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https://www.courtlistener.com/api/rest/v3/opinions/3398658/ | The appeal here brings for review final decree and also interlocutory order.
There are two notices of appeal but since the appeal from the final decree brings all matters preceding such decree to this Court, the specific appeal from the interlocutory order referred to may be treated as surplusage.
The interlocutory order complained of was as follows: *Page 717
"This cause coming on to be heard upon petition of JOSEPH GORDON and MINERVA GORDON, complainants, for injunction, and it appearing to the Court that irreparable damage will be done to complainants unless the prayer of the petition filed herein is granted, and it appearing further to the Court that complainants do not have an adequate remedy at law, and the Court being fully advised in the premises,
"IT IS ORDERED, ADJUDGED and DECREED that the defendants, ELIZABETH W. PRICE, joined by her husband, T.A. PRICE, be and they are hereby, enjoined from in anywise interfering with the complainants, JOSEPH GORDON and MINERVA GORDON, in the recovery of the personal property set forth in the petition, and said defendants are ordered to give access to the said personal property forthwith.
"IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Sheriff of this County be, and he is hereby directed to take possession of the said personal property described in the petition filed herein by force if necessary and deliver same over to the complainants forthwith.
"IT IS FURTHER ORDERED, ADJUDGED and DECREED that the complainants be, and they are hereby, required to post bond in the sum of $1500.00, properly conditioned and approved by the Clerk of this Court.
"IT IS FURTHER ORDERED, ADJUDGED and DECREED that the defendants reply to the petition in this case as provided by law.
"DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of November, A.D. 1936."
Final decree, insofar as it is of any importance here, was as follows:
"ORDERED, ADJUDGED and DECREED that the defendants, ELIZABETH W. PRICE, joined by her husband, T.A. PRICE, *Page 718
be and they are hereby perpetually enjoined from in any wise interfering with the complainants, JOSEPH GORDON and MINERVA GORDON in the recovery of the personal property set forth in the petition, and that the complainants be relieved of any and all liability under the terms of the bond posted in the above entitled cause by said complainants, and that they are hereby authorized and directed to cancel said bond.
"DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of January, A.D. 1937."
The appellant has stated two questions for our consideration, as follows:
1. "Where personal property of any ordinary nature and belonging to guests of a lessee is held by a landlord without color of claim or lien, does the owner of such property have such adequate remedy at law as would deprive a Court of Equity of jurisdiction?
"2. Where personal property of guests of a lessee is held by owner and landlord, is it proper for a chancellor to require delivery of possession thereof by mandatory injunction issued without notice before the final decree and based upon unverified Bill of Complaint in which no showing is made that irreparaable damage will be suffered unless such relief is granted.?"
The assumption contained in the second question, that is, that the mandatory injunction issued without notice before the final decree "and based upon unverified bill of complaint in which showing is made by irreparable damage will be suffered unless such relief is granted," is not supported by the record. The record shows that the bill of complaint was signed by Joseph Gordon and Minerva Gordon and under their signatures the following appears, "subscribed and sworn to before me this 21st day of November, *Page 719
A.D. 1836, Emily Stone, Notary Public, State of Florida at Large, my Commission expires December 17, 1939."
The bill of complaint begins with a paragraph reading as follows:
"Now come Joseph Gordon and Minerva Gordon, a single woman whose residence is Boston, Massachusetts, and bring this Bill of Complaint against Elizabeth W. Price, joined by her husband, T.A. Price, residents of Dade County, Florida, and complaining say:"
Then follow the several allegations of the bill and the jurat.
The controlling question presented here is whether or not a court of equity may be invoked to intervene and exercise jurisdiction to restore personal property of a peculiar sort, and of peculiar value to the owner, to such owner when the possession thereof is retained by one who has no legal right to retain such possession and where a remedy at law is not full, complete and adequate, or where complete relief is doubtful and a more ample and appropriate remedy may be thereby afforded.
The record shows that one Harold B. Gordon, a resident of Boston, Mass., entered into a lease agreement with Elizabeth W. Price, a married woman, whereby he purported to lease from Mrs. Price a residence in Miami and paid a part of the money agreed upon the lease. Joseph Gordon, father of the lessee, and Minerva Gordon, sister of the lessee, came down and went into possession of the house but immediately found it so infested with vermin, as is alleged, that it was not fit for occupancy. The record shows that Mrs. Price agreed to fumigate the house and eliminate vermin and made some attempt to do so on the second day that it was occupied by the Gordons, but when the Gordons returned to the house they found it still so infested *Page 720
with vermin that it was unfit for occupancy; so, they notified Mrs. Price that they would not occupy the house longer but would find another place. They went out and secured another place, but when they returned Mrs. Price had locked up the house and refused to allow them to remove therefrom their personal effects consisting of clothing and a certain lot of medicines which were of a peculiar type necessary for the treatment of Mr. Gordon who was a man advanced in years and was under the treatment of physicians in his home town, Boston, Mass.
Conceiving it to be true that they had the right under existing conditions to invoke the aid of a court of equity to procure possession of their wearing apparel and medicines, they filed a bill of complaint and asked for the immediate issuance of mandatory injunction requiring Mrs. Price, joined by her husband, to restore possession of their personal property, offering to post good and sufficient bond to protect the defendants named in the suit from any damage that might be suffered by the wrongful issuance of the writ.
The court required bond in the sum of $1500.00 and issued mandatory injunction.
The record further shows that when the writ was placed in the hands of the Sheriff's deputy both Mrs. Price and her husband evaded service of the writ and upon showing to that effect, the Chancellor issued an order authorizing the Sheriff to use such force as might be necessary to take possession of the complainant's property and deliver same to the complainants. This was done. Upon final hearing the mandatory injunction was made permanent, as is shown by the record above quoted.
Whether or not personal property is of that peculiar nature that causes it to be of peculiar value and character *Page 721
and the loss of it, or the retention of it, can not be fully compensated in damages, must in all cases be a question to be determined by the Chancellor, subject, of course, to review. But if the personal property is of peculiar value such that the loss of it or the retention of it by one not entitled thereto cannot be fully compensated in damages, equity will interfere and grant full relief by requiring specific delivery. See McCullom v. Morrison, 14 Fla. 414. In the later case of Morgan v. City of Lakeland, 90 Fla. 525, 107 So. 269, it was said:
"While it is well settled that an injunction will not be granted where a remedy at law is adequate, yet where the remedy at law is not full, complete and adequate, or where complete relief is doubtful, and a more ample and appropriate remedy may be thereby afforded, equity will take cognizance and give relief, if it can be done, in accordance with recognized principles of chancery jurisdiction. McKnabb v. Tampa St. Petersburg Land Co., 78 Fla. 149, 83 South. Rep. 90; Rentz v. Granger Lewis,64 Fla. 445, 60 South. Rep. 221; Gordon v. Clarke, Admr., 10 Fla. 179; Carter v. Bennett, 6 Fla. 214."
In Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625, this Court, speaking through Mr. Justice Terrell, said:
"It is well settled that mandatory injunctions are rarely granted before final hearing, or before the parties have full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be; however, instances are not wanting where relief by mandatory injunction was granted on the proper showing made. Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 South. Rep. 574; Florida East Coast R. Co. v. Taylor, 56 Fla. 788, 47 South. Rep. 345; City of Ocala v. Anderson, 58 Fla. 415, 50 Sou. Rep. 572, 14 R.C.L. 317." *Page 722
And it was held in that case, "in the matter of granting mandatory injunction, each case must rest on its own facts and circumstances and whether or not the relief will be granted is in the sound discretion of the court."
Under the facts alleged in the bill of complaint and shown by affidavits in support thereof, the showing was adequate that the complainants could not have full, complete and adequate relief in a court of law and that a more ample and appropriate remedy would be afforded by resort to equity. A sick person's medicines and a person's entire supply of wearing apparel, except that which they may have on their person at the time the other is taken from their possession, are not things that may be taken from one without authority of law and he, or she, be required to await the slow process of replevin or other law procedure, to regain possession of same. The necessity for the use of such articles is immediate and continuing. It is not a sufficient answer that such persons so deprived of the possession of such articles may go into the marts of trade and buy more and resupply themselves with the same class of articles which have been wrongfully taken from their possession. Although by doing so and awaiting process of a court of law, such person might have ultimate and complete remedy, that remedy would not be full and adequate as would be the remedy which he may have by proceeding in equity, as was done in this case.
No reversible error is made to appear.
The decree should be and is affirmed.
So ordered.
ELLIS, C.J., and TERRELL, J., concur.
WHITFIELD, P.J., and BROWN and CHAPMAN, J.J., concur in the opinion and judgment. *Page 723 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3855575/ | Argued April 15, 1946.
Plaintiffs, husband and wife, tenants of defendants' dwelling house, brought trespass against them for damages arising from personal injuries to the wife occasioned by the alleged negligent repairs of the premises. The verdict for plaintiffs was sustained by the court below which overruled defendants' motions for judgment n.o.v. and a new trial.
Plaintiffs held under an oral lease, and there was no agreement obligating defendants to make repairs. Nevertheless, upon the request of the plaintiff husband, the defendants repaired the property, and this created liability for injuries resulting from negligent performance. Rehder v. Miller, 35 Pa. Super. 344;Theakston v. Kaszak, 152 Pa. Super. 576, 33 A.2d 46. The repairs were made by a carpenter employed by defendants, and since defendants' undertaking could be delegated, Rubin v. GirardTrust Co., 154 Pa. Super. 257, 35 A.2d 601, they would be liable only if the carpenter was their servant and not an independent contractor. Silveus v. Grossman, 307 Pa. 272,161 A. 362. For the most part, the argument here revolved around *Page 497
the question whether the carpenter was defendants' servant or an independent contractor.
Defendants, brothers and sisters, owned the dwelling house, and also other leased properties, and they committed their management to a sister, Lillie M. Moose. She admitted that she ordered the carpenter, E.O. Herald, to make the repairs. Thus, the rule ofReifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98, relied upon by defendants, holding that agency cannot be assumed from the mere fact that one does an act for another, is satisfied, for here the fact is established by defendants' admission that the carpenter was employed by them.
The question whether defendants' agent, using that term in the broad sense of the Restatement, Agency, § 1, Comment d, was their servant or an independent contractor was for the jury, since all the testimony was oral, and the facts were in dispute. "The precise nature of the relationship, [whether master and servant or independent contractor] under the evidence, presents a question of fact which it is the exclusive function of the jury to determine, after proper instructions by the court as to the matters of fact to be considered, except where the facts are not in dispute and the evidence is direct and certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact": Joseph v. United Workers Assn.,343 Pa. 636, 639, 23 A.2d 470; and see Eckert v. MerchantsShipbuilding Corp., 280 Pa. 340, 124 A. 477; Hass v. Phila. andSo. Mail S.S. Co., 88 Pa. 269; 39 C.J., Master and Servant, § 1592. It was for the jury to determine the facts, and from them to formulate, according to the rules set forth in Restatement, Agency, § 220, an ultimate finding of the relationship between defendants and Herald.
Upon that issue plaintiffs presented a prima facie case by showing that the carpenter was defendants' agent, and that he performed work upon defendants' premises upon their order and for their benefit. This was sufficient to support an inference that he was defendants' *Page 498
servant. See cases collected in 65 L.R.A. 459; 17 L.R.A. (N.S.) 372, 19 Am. and Eng. Ann. Cases 6. A prima facie case is made out whenever the evidence is strong enough to justify, even though it does not compel, an inference which tends to establish a fact necessary to carry an allegation to the jury. Cf. Schell v.Miller N. Broad Storage Co., 157 Pa. Super. 101,42 A.2d 180. Plaintiffs were not obliged to go further and to prove a negative, to show that Herald was not an independent contractor, or to present evidence which excluded the possibility that he was an independent contractor. It was for defendants to bring forward evidence to support their contention that Herald was an independent contractor. Hookey v. Oakdale Borough, 5 Pa. Super. 404, and for the sequel see Oakdale Borough v. Gamble,201 Pa. 289, 50 A. 971; 39 C.J., Master and Servant, §§ 1582, 1590.
We are reviewing this case upon defendants' motion for judgment n.o.v. Hence the evidence must be considered in the light most favorable to plaintiffs, the inferences which may be drawn from it must be taken as true, and all unfavorable testimony and inferences must be rejected. Holland v. Kohn, 155 Pa. Super. 95, 38 A.2d 500.
As stated, all the evidence was oral; there was no written contract or order for the repairs. Nor was there an agreement that the work should be performed for a fixed definite price. In response to Bross' complaint, Mrs. Moose requested Herald to inspect the premises and to estimate the probable cost of making the necessary repairs. At the same time he was requested to examine other properties of defendants and to estimate the cost of repairs upon them. Herald was a carpenter who had no employes; his brother assisted him; "me and him worked together, took jobs together", Herald testified. Herald reported that the cost "would be over a hundred dollars, or more." Apparently he was to furnish the materials, but whether he was to be paid a lump sum for his services or by the day or hour was not disclosed. *Page 499
Whereupon she instructed him to do the work and Herald, with his brother assisting, made repairs to the rear porch. After Herald had finished his work, Bross was dissatisfied with it, particularly with the banister and railing, and so notified Mrs. Moose, who recalled Herald to the job, and Herald made additional repairs. Mrs. Moose did not inspect the premises before or after the repairs were made, and was not present while Herald was making the repairs.
After the work was entirely completed Herald rendered an itemized bill which Mrs. Moose paid. Its exact amount was not revealed, and although the receipted bill was still in her possession she did not produce it at the trial. Thus a document which might have indicated whether Herald was working, in the language of the Restatement, supra, "by the time or by the job," and whether Herald's brother was employed and paid by Herald or by defendants, was not exhibited to the jury. Nor did the testimony definitely establish "the extent of control which, by the agreement, the master may exercise over the details of the work": Restatement, supra. Mrs. Moose testified that her order to Herald was general, that is, he was to do the work and "you do it right; do it right, mister," but a fair inference from Herald's testimony is that the details of the necessary repairs were reported to her, "I told her anyhow what was to be done and if there is anything else that would be extra." Thus, there was left in doubt whether Herald was, under the verbal order, charged with the duty of producing a result, or whether he was only required to do specified work, the details of which he had reported to Mrs. Moose. If the latter is the correct version, the case might well be ruled by Rubin v. Girard Co., supra, and Lasch v. Cohn,130 Pa. Super. 161, 196 A. 581. At all events, the evidence was not clear and direct, the facts were in dispute, variant inferences could be drawn from the evidence, and clearly the question was for the jury. We cannot disturb its verdict. *Page 500
The question of defendants' negligence was not stressed here, but we have examined the record and we are satisfied that the evidence presented a question for the determination of the jury. A year after the completion of the repairs, the wife plaintiff leaned against the banister while shaking out a carpet, it collapsed and she fell to the ground, six or seven feet below, suffering injuries. Plaintiffs charged that the banister or railing was not repaired in a workmanlike manner in that nails of insufficient strength were used and that the rail should have been enforced by wooden blocks. Their contention was reinforced by the testimony of experts, and their credibility, as well as the question whether the repairs had been so made as to last a reasonable length of time, were for the jury.
Judgments affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714452/ | 697 S.W.2d 791 (1985)
Dennis Joe WESTBROOK, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-84-00437-CR.
Court of Appeals of Texas, Dallas.
September 11, 1985.
*792 Malcolm Dade, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., Kathi Alyce Drew, Asst. Dist. Atty., Dallas, for appellee.
Before GUITTARD, C.J., and STEPHENS and VANCE, JJ.
GUITTARD, Chief Justice.
Appellant appeals his conviction for involuntary manslaughter. We affirm.
The manslaughter charge arose from an automobile collision. Mr. & Mrs. Bromberg, three of their children, and two neighbor children were driving home from Six Flags over Texas early one morning, at approximately 1:00 a.m., when appellant's car struck the rear left corner of the Bromberg car. This collision caused the Bromberg car, which was being driven by Mr. Bromberg, to flip over a guard rail and land in a ravine. Mr. Bromberg was killed.
Appellant, in five grounds of error, contends that the trial court erred: (1) in failing to submit a defensive issue to the jury; (2) in allowing the introduction of "custodial oral statements" made by appellant; (3) in allowing the introduction of testimony concerning appellant's drinking habits; (4) in permitting the cross-examination of appellant concerning his relationships with his work associates; and (5) in allowing the introduction of testimony concerning appellant's driving habits. We overrule all of appellant's grounds of error.
1. Defensive Issue on Causation
Survivors in the Bromberg car testified that they saw a car bearing down on them from the rear before the collision. An officer in an automobile ahead saw the collision in his rearview mirror. He pursued and arrested appellant, who made no attempt to stop at the scene. Another witness testified that appellant's car passed him at a speed of seventy to eighty miles per hour before the collision. The witness saw appellant's car strike the Bromberg car and then continue forward "at a pretty good clip."
The arresting officer testified that appellant appeared to be intoxicated. Appellant took a chemical breath test, which showed an alcohol concentration of 0.12 percent, .02 percent above the legal level of intoxication. TEX.REV.CIV.STAT.ANN. art. 6701l-1 (Vernon Supp.1985). There was other evidence of intoxication.
Appellant admitted that he had been drinking and that he had "clipped bumpers" with the Bromberg car. He also testified that he was driving in the center lane and the Bromberg car was in the right lane, but that as he attempted to pass the Bromberg car, it suddenly appeared in his lane. He said that he did not know that the Bromberg car had gone over the guard rail.
The trial court's charge instructed the jury that they were to find appellant guilty of involuntary manslaughter if they believed that he caused Bromberg's death by reason of (1) intoxication, (2) improper lane change, or (3) operating his car at an excessive rate of speed. The court's charge also included the following instruction on causation:
A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
This instruction tracks the language of section 6.04 of the Texas Penal Code (Vernon 1974). Appellant objected to the court's charge on the following ground:
The court's charge improperly fails to charge the jury that if Bromberg's driving *793 caused the collision by improper change of lane or there is a reasonable doubt thereof, then the jury should acquit the Defendant.
The trial court overruled this objection.
In his first ground of error, appellant contends that the court erred in overruling this objection because he was entitled to have this defensive issue submitted to the jury. He relies on Hill v. State, 585 S.W.2d 713 (Tex.Crim.App.1979), holding that failure to submit a defense raised by the evidence is reversible error.
Although we recognize that a defendant is entitled to have defenses raised by his own testimony submitted to the jury, we conclude that the facts stated in the objection, if found by the jury, would not have been a defense. If the jury had found that the collision was caused by the Bromberg car's change of lanes, that fact would not have established that the collision was not also caused concurrently by appellant's driving at a high rate of speed, his own change of lanes, or his driving while intoxicated, as submitted in the court's charge. The instruction suggested in appellant's objection would have allowed appellant to be acquitted on a finding of contributory negligence, which is no defense to a charge of involuntary manslaughter. Daniel v. State, 577 S.W.2d 231, 234 (Tex.Crim.App. 1979); Fox v. State, 145 Tex.Cr. 71, 165 S.W.2d 733, 735 (1942).
This conclusion is consistent with Section 6.04(a) of the Penal Code as follows:
A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
This section, which the trial court quoted in its charge, makes clear that the concurrence of a cause other than the defendant's conduct is not a defense to involuntary manslaughter "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Under the statute, when an indictment alleges that the defendant, while intoxicated, did "cause the death of" another person, the term "cause" must assume the meaning set out in section 6.04, that is, that the defendant's conduct caused the death "either alone or concurrently with another cause." Hayes v. State, 634 S.W.2d 359, 361 (Tex.App. Amarillo 1982, no pet.). On this reasoning, if the jury had found that Bromberg's driving "caused the collision," that fact would only have established that Bromberg's driving was a concurring cause of the collision, which would not have been a defense to the charge alleged in the indictment.
Perhaps a defense would have been presented under section 6.04 if the jury had found, pursuant to a proper instruction, that Bromberg's driving was "clearly sufficient" to cause his death and defendant's conduct was "clearly insufficient." Section 6.04 provides no standard, and we have found none, that would help determine when the conduct of a party, but for which the result in question would not have occurred, is "clearly sufficient" or "clearly insufficient" to produce the result. The practice commentary in the annotated statutes suggests that this language is used "to free the [penal] law from encrusted precedents on `proximate causation,' offering a principle that will permit both courts and juries to begin afresh in facing problems of this kind." Being freed from "encrusted precedents," we are left without authoritative guidance. We conclude that causation, being a concept too difficult for lawyers or even for philosophers, is best left to a jury.
In this case, the jury was properly instructed in the language of section 6.04, and if appellant desired a more specific instruction with respect to Bromberg's driving as a "clearly sufficient cause" and appellant's conduct as "clearly insufficient," he could have put his objection specifically on that ground. We conclude that the objection he made was not sufficient to call the court's attention to such an omission. *794 Consequently, without deciding whether appellant was entitled to a more specific instruction, we hold that the court did not err in overruling the objection as made.
2. "Custodial Oral Statements"
Appellant contends in his second ground of error that the trial court erred in allowing the introduction of "custodial oral statements" made by appellant. We disagree and overrule appellant's second ground of error.
The trial court allowed two policemen to testify that while they were transporting appellant in a police car from the central police station to the city jail, appellant declared that he had not been involved in an accident, that he had not done anything wrong, that they had no right to arrest him, and that he would get a lawyer and "beat this deal." Appellant contends that these "custodial oral statements" were inadmissible because they were not electronically recorded in accordance with section 3(a) of article 38.33 of the Texas Code of Criminal Procedure (Vernon Supp.1985).
Section 3(a) deals only with statements made by an accused as a result of a custodial interrogation. TEX.CODE CRIM. PROC.ANN. art. 38.33, § 3(a) (Vernon Supp.1985); see also TEX.CODE CRIM. PROC.ANN. art. 38.22, § 5 (Vernon 1979) ("Nothing in this article precludes the admission... of a statement that does not stem from custodial interrogation...."). Appellant's statements were clearly admissible under section 3(a) because there was no showing that they were the results of a custodial interrogation.
3. Testimony Concerning Appellant's Drinking Habits
Appellant's third ground of error asserts that the trial court improperly permitted the State to examine various witnesses about appellant's drinking habits. We overrule this ground of error. Appellant testified that although he had two frozen margaritas earlier in the evening and two and one-half beers immediately before the collision, he did not think that he was drunk at the time of the collision. This testimony permitted the State to elicit testimony on rebuttal indicating how certain amounts of alcohol affected appellant. In the context of this case, we conclude that the trial court did not err in allowing the State to elicit testimony on appellant's drinking habits, i.e., how alcohol affected appellant. See Hansen v. State, 636 S.W.2d 241, 243 (Tex.App. Texarkana 1982, no pet.).
4. Cross-Examination on Appellant's Relationships
In his fourth ground of error, appellant contends that the trial court erred in permitting the State to cross-examine him about his relationships with his fellow employees and supervisors. We agree, but overrule this ground of error because the trial court's error was harmless.
Two of appellant's co-workers, who had been to "happy hour" with him on the day of the collision, were called by the defense to testify as to how much appellant had to drink. On cross-examination the prosecutor asked appellant:
Is there anybody out there that you can think of, co-workers or supervisors, that you do not get along well with, that you have bad blood with?
Appellant responded, after his objection to this question was overruled, that there were a couple of supervisors with whom he had problems. Appellant objected to this line of inquiry on the ground that it was irrelevant and that he was not on trial for his work habits or relationships. In response to appellant's objections, the prosecutor made it clear that her sole reason for pursuing this line of inquiry was to discern whether anyone with whom appellant worked would have a reason to testify against him. On appeal the State also contends:
By this cross-examination, the State was not seeking to put Appellant's character as a peaceful and law abiding citizen into question; nor was the State seeking to cross-examination [sic] witnesses as to *795 Appellant's reputation. Rather, the State was seeking to inquire as to the motivations for witnesses who had already testified, and the possible motivations for future witnesses who might be called.
In addition, the State contends that any matter that might motivate a witness to lie is a proper matter for cross-examination.
We agree with this general rule in the sense that one may attempt to discredit a witness by cross-examining him on any matter that might motivate him to lie. However, in this case the prosecutor was not trying to discredit a defense witness. Presumably, any "bad blood" appellant had with his co-workers would have motivated them to testify against him rather than for him. We decline to apply this general rule i.e., that any matter that might motivate a witness to lie is a proper matter for cross-examination to allow the State to attack an accused's character or reputation by indiscriminately prying into his adverse relationships with his own defense witnesses.
Although we agree with appellant that this line of inquiry was improper, we overrule this ground of error because the admission of this testimony was harmless error. Although it appears that the State was trying to present appellant to the jury as an employee whose relationships with his fellow employees and supervisors were poor, it had only limited success. At most, the State elicited from appellant the fact he had had problems with two of his supervisors. This fact was so remote from the issues that any serious prejudice is unlikely. The testimony was not inflammatory and had no logical bearing on his conduct on the occasion in question. After reviewing the record, which contains strong evidence of guilt, we conclude that there is no reasonable possibility that the admission of this testimony contributed to appellant's conviction. Consequently, the error was harmless. Gutierrez v. State, 628 S.W.2d 57, 62 (Tex.Crim.App.1980).
5. Testimony of Appellant's Driving Habits
In his fifth ground of error, appellant contends that the trial court erred in allowing the introduction of testimony concerning his driving habits. Appellant has failed to cite to any portion of the record to indicate where the matter complained of may be found. Although the State refers to a portion of the record that includes testimony concerning appellant's driving, we decline to speculate whether it is that part of the record that contains the matter complained of. Furthermore, after considering this ground of error in the light of appellant's arguments in support of it, we are unable to identify and understand the point of appellant's objection. Accordingly, we overrule this ground of error because it does not comport with the requirements of section 9 of article 40.09 of the Texas Code of Criminal Procedure. Cook v. State, 611 S.W.2d 83, 87 (Tex.Crim.App.1981); TEX. CODE CRIM.PROC.ANN. art. 40.09, § 9 (Vernon Supp.1985).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060327/ | IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 10, 2003 Session
Heard at Dyersburg
STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE
Appeal by permission from the Court of Criminal Appeals
Criminal Court for Shelby County
Nos. 97-09254 & 97-09255 Bernie Weinman, Judge
No. W2001-00568-SC-R11-CD - Filed August 5, 2003
E. RILEY ANDERSON, J., dissenting.
The majority has concluded that the jury reasonably found that the defendant’s insanity at the
time of the offenses was not established by clear and convincing evidence. I disagree.
My review of the evidence in the record indicates that the lay and expert testimony
overwhelmingly established that the defendant suffered from the severe mental illness of paranoid
schizophrenia and was unable to appreciate the nature or wrongfulness of his conduct when he
tragically shot and killed Mike Fultz and Fred Bizot on April 5, 1997. See Tenn. Code Ann. § 39-
11-501(a) (1997). I would hold that no reasonable trier of fact could have failed to find that the
defendant’s insanity at the time of the offenses was established by clear and convincing evidence.
I would affirm the Court of Criminal Appeals’ judgment, and I therefore dissent.
I
Before July of 1995, the defense of insanity in Tennessee required evidence that “as a result
of a mental disease or defect,” a defendant “lacked substantial capacity either to appreciate the
wrongfulness of [his or her] conduct or to conform that conduct to the requirements of the law.”
Tenn. Code Ann. § 39-11-501 (repealed 1995). Under this statutory standard, if evidence at trial
raised a reasonable doubt as to the defendant’s sanity, the prosecution had the burden of proving the
defendant’s sanity beyond a reasonable doubt.” State v. Flake, 88 S.W.3d 540, 550 (Tenn. 2002)
(“Flake I”).
Effective July 1, 1995, the legislature fundamentally altered and significantly narrowed the
defense of insanity in Tennessee. See Flake I, 88 S.W.3d at 540-41. The defense of insanity now
requires that a defendant, “as a result of a severe mental disease or defect, was unable to appreciate
the nature or wrongfulness of such defendant’s acts.” Tenn. Code Ann. § 39-11-501(a) (1997).
Moreover, the statute now places the burden on the defendant to establish the affirmative defense
by “clear and convincing evidence.” Id. As we said in Flake I, “clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Flake I, 88 S.W.3d at 551.
In Flake I, the Court was confronted with determining the proper standard of review to
account for the revised and substantially narrowed statutory framework governing insanity. Flake
I, 88 S.W.3d at 551. The Court unanimously adopted a standard under which a jury verdict rejecting
the insanity defense should be reversed only when an appellate court, viewing the evidence most
favorably to the prosecution, concludes that no reasonable trier of fact could have failed to find that
the defendant’s insanity at the time of the offense was established by clear and convincing evidence.
Id. at 553-54. The Court majority believed that “this standard does not totally insulate the jury’s
finding from appellate review” but instead “enhances appellate review by virtue of its similarity to
the familiar sufficiency standard which appellate courts are accustomed to applying.” Id. at 554.
Although I concurred in the adoption of the standard of review in Flake I, I disagreed with
the majority’s application of it to the facts and circumstances in that case,1 and I dissented on the
basis that “virtually all of the lay and expert testimony established the defendant’s insanity at the
time of the offense.” Id. at 557 (Anderson, J., dissenting) (emphasis in original). Moreover, I wrote
that “by upholding the jury’s verdict under the facts and circumstances of [that] case, the majority
has made appellate review of a jury’s verdict meaningless and useless.” Id. at 560 (Anderson, J.,
dissenting). In my view, the majority’s application of the standard to the evidence in the present case
has again completely insulated an unreasonable jury verdict from meaningful appellate review.
II
In this case, the prosecution established that the defendant, Christopher M. Flake, was an
acquaintance of both Mike Fultz and Fred Bizot and that he shot both victims without apparent
provocation. The prosecution produced no evidence, however, establishing that the defendant had
ever expressed an intent or desire to commit acts of violence against the victims and no evidence
indicating that the defendant had any expressed motive or reason for his conduct. The prosecution
also produced no eyewitnesses to either offense and no lay or expert testimony describing the
defendant’s mental state immediately before, during, or after the offenses on April 5, 1997.
In contrast, the defense presented overwhelming lay and expert evidence of the defendant’s
history of mental illness and his mental state before, during, and after the offenses. For instance,
Michael Musso, the defendant’s co-worker at Cooper Moving Company, was the sole witness who
described the defendant’s conduct and mental state shortly before the offenses on April 5, 1997.
Musso testified that the defendant seemed “unusually agitated” that day, that he spoke even less than
1
The defendant was convicted of attempted voluntary manslaughter for the shooting of Turner Carpenter
on April 6, 1997. The defense presented an insanity defense based on nearly the same lay and expert testimony
prese nted in the pre sent case. Flake I, 88 S.W.3d at 542.
2
normal, and that he took an unusual number of breaks to smoke, even though he was in the presence
of customers who were paying them by the hour. Musso also described a bizarre incident that day
in which the defendant asked to borrow money for lunch but then tore up a hamburger into small
pieces without eating any of it. Musso testified that the defendant’s work performance that day was
“really bad,” and he later asked that he not be assigned to work with the defendant.
The defendant’s father, James Flake, testified that the defendant had a lengthy history of
mental illness, depression, and substance abuse. According to Flake, the defendant was 11 or 12
years of age when he began to withdraw socially and have trouble with his grades. The defendant
had few friends and began having disciplinary problems. James Flake consulted a church counselor
when the defendant was in ninth grade, and the counselor suggested that the defendant should see
a mental health professional.
The defendant began seeing a psychiatrist, Dr. Richard Luscomb, for a period of three or four
years. He began drinking, however, suffered from depression, and continued to decline
academically. The defendant was hospitalized for substance abuse and depression on three
occasions. In 1988, the defendant was admitted to Parkwest Hospital for sixty days. When released,
he began attending Alcoholics Anonymous six nights per week. In 1989, the defendant was
hospitalized for another sixty days due to substance abuse and depression. Although the defendant
transferred to a high school that had a support group for students with substance abuse issues, he
continued to deteriorate and suffer from depression. In 1990, the defendant was hospitalized a third
time for substance abuse and depression.
James Flake testified that the defendant graduated from high school but dropped out of a
Mississippi junior college after only one semester because he had grown “angry, frustrated, and
depressed.” The defendant next attended the University of Tennessee at Martin from 1991 to 1993;
while he improved academically, the defendant still returned home each weekend and appeared
depressed and angry. The defendant later dropped out of UT-Martin and attended Shelby State
Community College from 1993 to 1995, where he managed only a 1.8 grade point average.
James Flake testified that the defendant saw Dr. Melvin Goldin, a Memphis psychiatrist,
from 1993 to 1995, and Dr. Janet Johnson from 1995 to 1997,2 but that his condition did not
improve. Flake recalled the defendant saying at various times, “my head is messed up,” “my mind
is blank,” and “I don’t know who I am.” The defendant isolated himself, refused to trust anyone, and
lost several jobs. Flake testified that the defendant’s academic skills continued to erode and that he
had the writing ability of an elementary school student. Although the defendant enrolled at the
University of Memphis, he passed only two of six courses.
James Flake testified that the defendant’s condition continued its downward spiral throughout
February and March of 1997, and up until the offenses in this case. The defendant was depressed,
2
The evidence in the record later revealed that Dr. Janet Johnson was a physician w ho sp ecialized in
substance abuse and addiction. She was d eceased at the time o f the trial.
3
remained in bed much of the time, and often made bizarre remarks, which included the following:
• In February or early March of 1997, the defendant stated that his A.A. sponsor was
“running drugs from Mexico” and that another sponsor was going to “beat him to
death with a baseball bat.”
• The defendant said that he had caused a recent airliner crash in Florida.
• The defendant wrote the name of his elementary school principal on a piece of paper
with the words, “the first woman to hit me.”
• The defendant told his father that a grade school classmate told him that an
elementary school teacher had “bad mouthed him.” The defendant also told his
father that “Buchanani has the answer.”
• The defendant told his father that he was “getting closer to the answer” and gave his
father a business card and other “important papers” to hold onto.
• The defendant said that he knew who was responsible for the Oklahoma City
bombing and the 1993 World Trade Center bombing.
In March of 1997, the defendant drove to a convenience store in a thunderstorm, took
cigarettes, smiled and waved at the clerk, and then left without paying. When the police arrived to
investigate the theft, James Flake drove the defendant back to the store to pay for the cigarettes. The
defendant was angry, insisted that he was owed the cigarettes, and had no remorse.
On April 1, 1997, only four days before the offenses in this case, James Flake believed the
defendant was deteriorating and arranged for him to meet with Dr. Johnson. Dr. Johnson gave the
defendant an envelope containing samples of Prozac intended to last for two weeks. On the very
next day, however, Dr. Johnson called James Flake and told him that she had received a telephone
call from a man who had found the envelope with the Prozac samples in his mailbox. The defendant
said that he had placed the Prozac in the mailbox because he believed the man, who he did not know,
needed help. According to James Flake, it was around this time that the defendant had pulled a fire
alarm at the University of Memphis because a professor had changed his assignment.
James Flake testified that when he finally asked the defendant why he was acting so
strangely, the following exchange occurred:
[The defendant] was sitting on the edge of his bed and he turned and
looked at me for about ten seconds. I was petrified by his look. I can
only describe it as it appeared that his eyes had even changed colors.
It was as if he was burning right through me. He thought for ten
seconds and his answer to what had caused him to do these things
4
was the opening of the new Wolfchase Galleria Mall. I knew at that
point that I believed my son had lost his mind.
Flake made another appointment for the defendant with Dr. Johnson on April 3, 1997, during which
both he and Dr. Johnson tried to convince the defendant to voluntarily commit himself. The
defendant refused, saying that “they had never helped him before” and that he believed “everything
was okay.”
The record reveals that in March of 1997, i.e., in the midst of this period of bizarre behavior
and deteriorating mental health, the defendant applied for a handgun. He completed the application
and related paperwork by withholding his history of mental illness, hospitalizations, and substance
abuse. On April 4, 1997, the defendant retrieved the weapon from the store by filling out additional
paperwork. On the very next day, the defendant committed the offenses.
James Flake testified that he did not know the defendant had applied for and purchased a
handgun. On April 5, 1997, i.e., the day the victims were shot and killed, the defendant returned
home around 11:00 p.m. following an A.A. meeting. Flake asked the defendant if everything was
okay and the defendant said, “yes.” The next morning, April 6, 1997, the defendant had breakfast,
kissed his mother, and seemed to have a “regular” morning. Later that day, however, the defendant
shot a third person, Turner Carpenter, at a nearby church.
On the night of April 6, 1997, James Flake received a telephone call indicating that the
defendant was a suspect in a shooting. When the defendant arrived home, James Flake told him to
cooperate with authorities. He testified that the defendant had a “blank” look when arrested.3 The
police officers’ search of the defendant’s room after his arrest revealed a large quantity of
prescription Zoloft and Cylert that the defendant obviously had not taken as prescribed.
Turner Carpenter testified on the defendant’s behalf. Carpenter said that he had been
introduced to the defendant in his position as a pastoral counselor with an addiction and dependency
program. After missing several prior appointments, the defendant arrived at Carpenter’s office
around 6:00 p.m. on April 6, 1997, and asked to meet with him. The defendant appeared “normal,”
and he spoke in a normal voice. Carpenter agreed to meet with the defendant after he finished
meeting with another individual. A few minutes later, however, Carpenter saw the defendant in his
outer office. The defendant “leaped out from the couch” and “screamed” Carpenter’s name, “just
as loud as he could scream it.” The defendant, who Carpenter described as “horrible looking” and
“angry as the devil,” pointed a gun and fired one shot; the bullet struck Carpenter’s hand and
penetrated his lung, liver, and diaphragm. Carpenter testified that there had been no ill will or
animosity between he and the defendant and that he had no rational explanation for why the
defendant shot him.
3
One officer testified that the defendant showed no emotion but looked “tired” during the arrest. When an
officer asked about an “altercation,” the defendant said that he had “shot a guy.” The defendant executed a consent
to search form and told officers where to find the gun.
5
In addition to these lay witnesses, the defense introduced the expert testimony of seven
mental health professionals who related the defendant’s lengthy history of mental illness, treatment,
and medications. Moreover, six of the mental health experts, both psychiatrists and psychologists,
performed numerous, comprehensive evaluations and determined that the defendant suffered from
a severe mental illness, schizophrenia, and was unable to appreciate the wrongfulness of his conduct
when shooting the victims. Indeed, the record reveals that after the offenses and prior to trial, the
defendant was examined by a number of psychiatrists and found by the trial court to be incompetent
to stand trial for a period of over two years after the offenses. The trial court declared him competent
to stand trial only after the State had furnished extensive treatment and anti-psychotic medication
over the two years following the offenses.
The first expert witness to testify for the defense, Dr. Melvin Golden, stated that he saw the
defendant approximately 17 or 18 times between 1991 and 1995. He related that the defendant had
been under the care of Dr. Richard Luscomb since 1988, that the defendant had been hospitalized
three times, and that the defendant had thoughts of suicide that led to his hospitalization in 1989 and
1990. He recalled that the defendant reported “homicidal thoughts” about persons who frustrated
him. Dr. Goldin diagnosed the defendant with obsessive compulsive disorder and prescribed
medicine for depression. Dr. Goldin offered no testimony on the defendant’s mental state at the time
of the offenses in this case.
The next mental health professional to testify was Dr. Lynne Zager, a clinical psychologist
and Director of the Forensic Services Program at Midtown Mental Health Center. Pursuant to a
State-requested court order, Dr. Zager examined the defendant from October 1997 to January 1998
to determine both his competency to stand trial and his mental state at the time of the offenses. Dr.
Zager testified that she interviewed the defendant four times, that the defendant suffered from a
“severe, persistent mental illness,” i.e., paranoid schizophrenia, and that due to the mental illness,
the defendant could not appreciate the nature or wrongfulness of his conduct during the shootings
on April 5, 1997.4
Dr. Zager testified that persons suffering from schizophrenia form “false fixed beliefs,”
delusions, and possible hallucinations. She testified that the defendant claimed to hear voices that
were broadcast to others and that the defendant believed the victims were responsible for the
bombings in Oklahoma City and at the World Trade Center. She testified that the defendant believed
that the victims were homosexuals who made him feel uncomfortable and that the defendant said that
he had a list of 140 names of persons he had planned to kill. According to Dr. Zager, the defendant
believed his actions “were to protect society, to protect himself, [and] to protect his family.”
4
The majority no tes that D r. Zage r conceded on cross-exam ination that John Perry, the mental health
services coordinator at the Shelby County Jail, told her that the defendant “was not really sick” and was “pulling
one” on the evaluation team. Perry did not testify, however, and there was no evidence regarding his medical or
other qualifications, if any, or the basis for his opinion.
6
The next expert to testify was Dr. Sam Craddock, a state-employed clinical psychologist at
Middle Tennessee Mental Health Institute. Dr. Craddock testified that a team of mental health
workers evaluated the defendant from November 17, 1997 to December 16, 1997; the evaluation team
consisted of himself, a psychiatrist, a master’s level social worker who gathered the defendant’s social
and medical histories, and nurses and technicians who observed the defendant’s everyday conduct.
Dr. Craddock explained that the “goal of the team is to come up with a diagnosis and to report back
to the Court what we think the person’s mental disability is, if there is one.” He acknowledged that
he most often testifies on behalf of the prosecution because his findings and conclusions frequently
are not favorable to the defendant.
Dr. Craddock testified that he administered several psychological examinations to the
defendant including the Shipley Institution of Learning Scale to measure verbal comprehension, a
Booklet Category test to measure reasoning, a Minnesota Multi-phasic Personality Inventory, (“MMPI
- II test”), and a Personal Assessment Inventory. Dr. Craddock testified that he evaluated each
assessment for indicia of malingering and that the defendant’s symptoms were genuine:
[A]t times, it certainly came to my mind that he might be malingering.
Just because I have test scores that say one thing. His parents provided
input. And I’m not going to rule out the possibility, at any time, that
he might be malingering. But, once I decided that I was looking at
genuine symptoms, he expressed a number of delusional beliefs, false
beliefs, ideas that had no basis in reality [] that things were going on
that are consistent with somebody that has schizophrenia and
particularly paranoid thinking.
In diagnosing the defendant with paranoid schizophrenia, Dr. Craddock explained that the
defendant’s symptoms evolved over a period of years:
[The defendant] had not been diagnosed schizophrenic before he came
to our facility. A frequent diagnosis in his past was depression. He
also had a diagnosis of abusing alcohol, or other substances. I think
it’s well known in the literature, there’s good literature out there. I
think it very well describes [the defendant’s] evolving symptoms that
finally came to be recognized as schizophrenia.
Dr. Craddock concluded that the defendant suffered from this serious mental illness at the time of the
shootings on April 5, 1997. Although he could not address the issue of whether the defendant
appreciated the wrongfulness of his conduct, Dr. Craddock testified that the defendant “perceived
[that] the shootings were right” and that he felt “morally justified” because he falsely believed the
victims were terrorists.
Also testifying for the defense was Dr. Rokeya Farooque, the psychiatrist at Middle Tennessee
Mental Health Institute who evaluated the defendant along with Dr. Craddock and the team of mental
7
health professionals. Dr. Farooque reviewed the defendant’s medical records, which indicated the
defendant had experienced prior hallucinations associated with drug abuse, blackouts, major
depression, an anxiety disorder, and an obsessive-compulsive disorder. Dr. Farooque noted that the
defendant had received psychiatric treatment, including hospitalization, for his prior conditions.
Dr. Farooque testified that the defendant suffered from paranoid schizophrenia and described
the defendant’s delusional thinking:
[H]is delusional thinking was that the victims of his charges, one of
them was responsible for the Oklahoma bombing. One of the them
was responsible for the World Trade Center bombing and [the
defendant] worked for [the] FBI, so he’s going to take care of them
and that’s not wrong, because he’s doing society a favor by taking care
of the terrorists. . . . And that was fixed in his mind that whatever he
did, that was not wrong, [] because they are terrorists.
Dr. Farooque concluded that the defendant suffered from paranoid schizophrenia and was incapable
of appreciating the nature or wrongfulness of his acts in committing the offenses on April 5, 1997.
The next expert witness on behalf of the defense was Dr. John Aday, a state-employed
psychologist on the forensic unit of the Western Mental Health Institute. Dr. Aday testified that the
defendant was transferred to his facility in November of 1998, and that he was evaluated for his
competency in February of 1999. Although found to be competent to stand trial, the defendant “had
a major thought disorder[,] continue[d] to actively hallucinate and [his] delusions concerning the
victims remain[ed] intact.” Dr. Aday concluded that the defendant suffered from paranoid
schizophrenia based on his hallucinations, delusions, flat affect, and speech. The defendant indicated
that he was a government agent and that he did not believe that shooting the victims was wrong.
Dr. Hilary Linder, a practicing psychiatrist for thirty-three years employed by the State at
Western Mental Health Institute, also testified for the defense. He testified that the defendant had
been his patient since being transferred from Middle Tennessee Mental Health Institute in November
of 1998. Dr. Linder concluded that the defendant suffered from paranoid schizophrenia at the time
of the offenses on April 5, 1997, and that the defendant did not know it was wrong to shoot the
victims. Dr. Linder said that he observed the defendant five days a week for nearly two and a half
years and that the defendant was not malingering or feigning a mental illness.
Finally, Dr. John Hutson, a clinical psychologist employed by the defense, testified that he
interviewed the defendant on April 8, 1997, and later interviewed the defendant and his parents on
numerous occasions. The defendant was “very difficult to interview,” “very disturbed,” and “hard
to keep focused.” Dr. Hutson evaluated the defendant, reviewed his lengthy history of mental illness,
and administered several tests. He testified that the defendant’s results on an MMPI-II test showed
that “he was very disturbed, extremely disturbed actually,” and that “the paranoia scale and the
8
schizophrenia scale were elevated well beyond the level of psychopathology.” Dr. Hutson further
explained that the results did not indicate that the defendant was malingering.
Dr. Hutson concluded that the defendant had either paranoid schizophrenia or chronic
undifferentiated schizophrenia and could not appreciate the wrongfulness of his actions on April 5,
1997. Dr. Hutson testified that the defendant had “delusions, hallucinations, occasional disorganized
speech and virtually no affect,” and that the defendant believed that he was working as a government
agent when he shot and killed the victims. Dr. Hutson testified that the defendant was “one of the
three most disturbed criminal defendants” that he had ever seen among the over 10,000 persons he
had evaluated in his career as a mental health professional.
Not a single expert witness testified on behalf of the prosecution.
Accordingly, all of the mental health professionals who completed lengthy, comprehensive
evaluations of the defendant consistently determined that he suffered from a severe mental illness.
Six mental health experts concluded that the defendant suffered from the severe mental illness of
paranoid schizophrenia and was unable to appreciate the wrongfulness of his conduct on April 5,
1997. These professionals had years of experience in conducting competency and mental state
evaluations. Five of the expert witnesses were employed by the State of Tennessee and had no motive
to provide testimony favorable to the defense; indeed, Dr. Craddock testified that he nearly always
testifies on behalf of the prosecution because his conclusions are rarely helpful to the defendant.
In contrast, the State presented no lay or expert testimony showing either that the defendant
did not have a severe mental illness or that he could appreciate the wrongfulness of his conduct at the
time of the offenses.
III
It is with this overwhelming evidentiary record in mind that I turn to the issue of whether the
jury reasonably found that the defendant’s insanity at the time of the offenses was not established by
clear and convincing evidence. The majority applies the standard under Flake I, yet concludes that
the jury’s verdict was supported by the evidence. I disagree.
The majority argues that the defendant’s sanity was demonstrated by his ability to obtain a
handgun and his “forethought” in providing false answers on the purchase application and background
check. There was no evidence, however, that a person suffering from paranoid schizophrenia would
be incapable of such conduct; indeed, all of the expert testimony indicated that a person with
schizophrenia is capable of acting “normally” at times, just as the defendant appeared “normal” to
Turner Carpenter seconds before he was shot. Moreover, the defendant’s conduct in applying for and
obtaining a handgun was initiated weeks before the crimes and shed no light on his mental state at
the time of the offenses.
9
The prosecution offered no eyewitnesses to the crimes and no evidence regarding the
defendant’s mental state during the shootings. Only a single witness, Michael Musso, testified about
the defendant’s behavior and mental state on the day of April 5, 1997. Musso, the defendant’s co-
worker, stated that the defendant’s behavior was extremely unusual and that his work performance
that day was “really bad.” Moreover, the testimony of James Flake vividly illustrated that the
defendant’s purchase of the handgun occurred in the midst of the defendant’s continued mental
deterioration, bizarre conduct, delusional thinking, and apparent failure to take his prescribed
medication.
The majority also observes that the jury may have found that the defendant’s motive for
shooting the victims was in someway related to the defendant’s alleged fear of homosexuals.
Although the prosecution’s cross-examination of several of the mental health professionals alluded
to this point, each expert witness consistently reiterated that the defendant’s schizophrenia was
characterized in part by delusional thinking. The defendant believed, for instance, that the victims
were terrorists who were responsible for bombings in Oklahoma City and the World Trade Center in
the early and mid-1990s. The defendant also believed that he was a government agent, that he was
morally justified in killing the victims, and that he was protecting himself, his family, and society in
killing the victims. In this context, it is difficult to fathom how the defendant’s delusional belief that
the victims were homosexuals created a reasonable inference that the defendant’s actions were the
product of a rational or “sane” mind. In short, the evidence of what the majority has described as an
“alternative explanation” for the commission of the crimes was speculative at best and failed to
reasonably rebut the evidence of the defendant’s mental illness and his inability to appreciate the
wrongfulness of his actions.
The majority argues that the State’s cross-examination of the defense experts suggested that
the defendant was faking a mental illness because he never complained of auditory hallucinations
until after these offenses were committed and because he indicated to one expert that he did not want
to be “caught” committing the offenses. The malingering theory, however, was thoroughly refuted
by the evidence. Both the lay and expert testimony revealed that the defendant’s history of mental
illness, including his three prior hospitalizations and extensive mental health intervention, spanned
a period of over ten years before the offenses were committed. Moreover, the expert testimony
revealed that the defendant was examined, evaluated, tested, and interviewed by no fewer than six
psychologists and psychiatrists for over two years after the offenses on April 5, 1997. Every single
mental health professional who evaluated the defendant concluded that he suffered from a serious
mental illness and was not malingering.
Despite this overwhelming evidence, the majority emphasizes Dr. Craddock’s statement that
he was “not going to rule out the possibility at any time, that he might be malingering.” The context
of this testimony, however, was as follows:
[A]t times, it certainly came to my mind that he might be malingering.
Just because I have test scores that say one thing. His parents provided
input. And I’m not going to rule out the possibility, at any time, that
10
he might be malingering. But, once I decided that I was looking at
genuine symptoms, he expressed a number of delusional beliefs, false
beliefs, ideas that had no basis in reality [] that things were going on
that are consistent with somebody that has schizophrenia and
particularly paranoid thinking.
In my view, the entire quote reveals that the statement relied upon by the majority simply refers to
Dr. Craddock’s state of mind during the examination and testing of the defendant and not to his
conclusion after completing the evaluation. Indeed, Dr. Craddock’s very next sentence indicated that
he “decided that [he] was looking at genuine symptoms” and that the defendant “expressed a number
of delusional beliefs, false beliefs that had no basis in reality. . . .”
The majority also relies upon a statement made by John Perry, the mental health services
coordinator at the Shelby County Jail, who allegedly told Dr. Zager that the defendant “was not really
sick.” Neither Perry’s medical qualifications nor the basis for his conclusions are found in the record.
Indeed, it is telling that the prosecution did not present Perry as a witness in its case in chief.
In short, not a single mental health expert concluded that the defendant was malingering, and
not a single mental health expert testified that the defendant’s failure to report auditory hallucinations
before the offenses affected the question of whether he suffered from paranoid schizophrenia.
Accordingly, the evidence cited by the majority did not refute the evidence of the defendant’s serious
mental illness or his inability to appreciate the wrongfulness of his actions at the time the offenses
were committed.
This was not a case in which expert witnesses offered different opinions regarding the
defendant’s mental state. All were unanimous in the view that the defendant suffered from a severe
mental illness, schizophrenia, and that he could not appreciate the wrongfulness of his conduct. This
is also not a case in which there was lay testimony regarding the facts and circumstances of the
offenses that created reasonable inferences that differed from the expert testimony. In short, I once
again find no basis in this record for the jury to have reasonably rejected the expert and lay evidence
regarding the defendant’s serious mental illness and his inability to appreciate the wrongfulness of
his acts at the time of the offense.
As I feared in Flake I, the majority’s application of the standard of review to the even stronger
evidence of insanity in this case has once more rendered appellate review of the jury’s verdict all but
meaningless. Indeed, it is now difficult to imagine a case that will warrant a reversal of the jury’s
verdict on the issue of insanity.
Accordingly, I disagree with the majority’s conclusion and would affirm the Court of Criminal
Appeals’ determination that no reasonable trier of fact could have failed to find that the defendant’s
insanity at the time of the offense was established by clear and convincing evidence.
11
_______________________________________
E. RILEY ANDERSON, JUSTICE
12 | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/94326/ | 160 U.S. 327 (1895)
LEHIGH MINING AND MANUFACTURING COMPANY
v.
KELLY.
No. 617.
Supreme Court of United States.
Submitted November 11, 1895.
Decided December 16, 1895.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF VIRGINIA.
*330 Mr. R.A. Ayers, Mr. R.C. Dale, Mr. E.M. Fulton, Mr. A.L. Pridemore, Mr. J.L. White, and Mr. J.F. Bullitt, Jr., for plaintiff in error.
Mr. F.S. Blair, and Mr. H.S.K. Morrison for defendants in error.
MR. JUSTICE HARLAN, after stating the facts as above reported, delivered the opinion of the court.
Some of the paragraphs of the agreed statement of facts are so drawn as to leave in doubt the precise thought intended to be expressed in them. But it is clear that the individual stockholders and officers of the Virginia corporation, in February, 1893, organized the Pennsylvania corporation; that immediately thereafter, on the 1st day of March, 1893, the lands in controversy, which the Virginia corporation had for many years claimed to own, and which, during all that period, were in the possession of and claimed by the present defendants, who are citizens of Virginia, were conveyed by it in fee simple to the Pennsylvania corporation so organized; and that the only object, for which the stockholders and officers of the Virginia corporation organized the Pennsylvania corporation, and for which the above conveyance was made, was to *331 create a case cognizable by the Circuit Court of the United States for the Western District of Virginia. In order to accomplish that object, the present action was commenced on the 2d day of April, 1893. Although the parties have agreed that the above conveyance passed "all of the right, title, and interest" of the Virginia corporation to the corporation organized under the laws of Pennsylvania, it is to be taken, upon the present record, and in view of what the agreed statement of facts contains, as well as of what it omits to disclose, that the conveyance was made without any valuable consideration; that when it was made, the stockholders of the two corporations were identical; that the Virginia corporation still exists with the same stockholders it had when the conveyance of March 1, 1893, was made; and that, as soon as this litigation is concluded, the Pennsylvania corporation, if it succeeds in obtaining judgment against the defendants, can be required by the stockholders of the Virginia corporation, being also its own stockholders, to reconvey the lands in controversy to the Virginia corporation without any consideration passing to the Pennsylvania corporation.
Was the Circuit Court bound to take cognizance of this action as one that involved a controversy between citizens of different States within the meaning of the Constitution and the acts of Congress regulating the jurisdiction of the courts of the United States? This question can be more satisfactorily answered after we shall have adverted to the principal cases cited in argument. The importance of the question before us, to say nothing of the ingenious and novel mode devised to obtain an adjudication of the present controversy by a court of the United States, justifies a reference to those cases.
The first case is that of Maxwell's Lessee v. Levy, 2 Dall. 381, decided in the Circuit Court of the United States for the Pennsylvania District. That was an action of ejectment. The lessor of the plaintiff was a resident and citizen of Maryland, the defendant being a resident and citizen of Pennsylvania. A bill of discovery was filed against the lessor of the plaintiff, in which it was alleged that the conveyance of the premises in controversy was made by one Morris, a citizen of *332 Pennsylvania, for no other purpose than to give jurisdiction to the Circuit Court. The answer to that bill admitted that "the lessor of the plaintiff had given no consideration for the conveyance; that his name had been used by way only of accommodation to Morris." Upon a rule to show cause why the action of ejectment should not be stricken from the docket, Mr. Justice Iredell held that the conveyance was "colorable and collusive; and, therefore, incapable of laying a foundation for the jurisdiction of the court." The full opinion is reported in 4 Dall. 330.
In Hurst's Lessee v. McNeil, 1 Wash. C.C. 70, 82 which was ejectment in a Circuit Court of the United States, the parties being alleged to be citizens of different States one of the questions was as to the jurisdiction of the Circuit Court. Mr. Justice Washington said: "By the deed of the 15th January, 1774, from Timothy Hurst, Charles, Thomas, and John became entitled to the land therein conveyed, as tenants in common. The deed from Charles Hurst to Biddle, and the reconveyance to Charles, vested the legal estate in this land in Charles, but John and Thomas, it is admitted, were not thereby divested of their rights in equity, though they might be in law. Now the deed to John Hurst was meant to be a real deed, or was merely fictitious, and intended to enable John Hurst to sue in this court. If the former, it was void; as the assent of the grantee was not given at the time, nor has it ever been since given; for though the assent of a grantee to a deed, clearly for his benefit, may be presumed; yet, if a consideration is to be paid, as in this, (£1000 is mentioned,) the assent must be proved, or nothing passes by the deed. If it was not meant as a real conveyance, then it may operate to pass to John Hurst a legal title to his own third, which had become vested in Charles, but to which John still retained an equitable title. As to anything more, the deed cannot be supported; because, as to the rights of Charles and Thomas Hurst and John Baron, they remain unaffected by the deed to John; and being merely a fictitious thing, to give jurisdiction to this court, it will not receive our countenance."
McDonald v. Smalley, 1 Pet. 620, 624, was a suit in equity *333 in the Circuit Court of the United States for the District of Ohio to obtain a conveyance of a tract of land situated in that State the plaintiff McDonald being a citizen of Alabama and deriving title under one McArthur, a citizen of Ohio, and the defendants, Smalley and others, being citizens of Ohio. The Circuit Court dismissed the case for want of jurisdiction and the judgment was reversed by this court. Chief Justice Marshall, speaking for the court, said: "This testimony, which is all that was laid before the court, shows, we think, a sale and conveyance to the plaintiff, which was binding on both parties. McDonald could not have maintained an action for his debt, nor McArthur a suit for his land. His title to it was extinguished, and the consideration was received. The motives which induced him to make the contract, whether justifiable or censurable, can have no influence on its validity. They were such as had sufficient influence with himself, and he had a right to act upon them. A court cannot enter into them when deciding on its jurisdiction. The conveyance appears to be a real transaction, and the real as well as nominal parties to the suit are citizens of different States... . The case depends, we think, on the question, whether the transaction between McArthur and McDonald was real or fictitious; and we perceive no reason to doubt its reality, whether the deed be considered as absolute or as a mortgage."
In Smith v. Kernochen, 7 How. 198, 216, which was ejectment brought in the Circuit Court of the United States for the Southern District of Alabama, the plaintiff, a citizen of New York, was the assignee for value of a mortgage upon the premises executed by the owner in fee to an Alabama corporation to secure a sum of money. It was charged that the motive of the corporation in making the assignment was to obtain a decision of the Federal courts upon certain matters in dispute between it and the owner in fee of the premises. One of the questions to be determined was whether any title passed to the plaintiff which the Circuit Court could enforce, if it appeared that the transfer of the mortgage was for the purpose of giving jurisdiction to that court and to enable the *334 company to prosecute its claim therein, and if it also appeared that the plaintiff was privy to such purpose when he took the assignment. This court, speaking by Mr. Justice Nelson, said: "But the charge, [to the jury] we think, may also be sustained upon the ground on which it was placed by the court below. For, even assuming that both parties concurred in the motive alleged, the assignment of the mortgage, having been properly executed and founded upon a valuable consideration, passed the title and interest of the company to the plaintiff. The motive imputed could not affect the validity of the conveyance. This was so held in McDonald v. Smalley, 1 Pet. 620. The suit would be free from objection in the state courts. And the only ground upon which it can be made effectual here is, that the transaction between the company and the plaintiff was fictitious and not real; and the suit still, in contemplation of law, between the original parties to the mortgage. The question, therefore, is one of proper parties to give jurisdiction to the Federal courts; not of title in the plaintiff. That would be a question on the merits, to decide which the jurisdiction must first be admitted. The true and only ground of objection in all these cases is, that the assignor, or grantor, as the case may be, is the real party in the suit, and the plaintiff on the record but nominal and colorable, his name being used merely for the purpose of jurisdiction. The suit is then in fact a controversy between the former and the defendants, notwithstanding the conveyance; and if both parties are citizens of the same State, jurisdiction of course cannot be upheld. 1 Pet. 625; 2 Dall. 381; 4 Dall. 330; 1 Wash. C.C. 70, 80; 2 Sumner, 251."
The next case is Jones v. League, 18 How. 76, 81. The plaintiff, League, claimed to be a citizen of Maryland. The defendants were citizens of Texas. The action, which was trespass to try title to land, was brought in the District Court of the United States for the District of Texas. This court, speaking by Mr. Justice McLean, said: "In this case jurisdiction is claimed by the citizenship of the parties. The plaintiff avers that he is a citizen of Maryland, and that the defendants are citizens of Texas. In one of the pleas, it is *335 averred that the plaintiff lived in Texas twelve years and upwards, and that, for the purpose of bringing this suit, he went to the State of Maryland and was absent from Texas about four months. The change of citizenship, even for the purpose of bringing a suit in the Federal court, must be with the bona fide intention of becoming a citizen of the State to which the party removes. Nothing short of this can give him a right to sue in the Federal courts, held in the State from whence he removed. If League was not a citizen of Maryland, his short absence in that State, without a bona fide intention of changing his citizenship, could give him no right to prosecute this suit. But it very clearly appears from the deed of conveyance to the plaintiff, by Power, that it was only colorable, as the suit was to be prosecuted for the benefit of the grantor, and the one-third of the lands to be received by the plaintiff was in consideration that he should pay one-third of the costs, and superintend the prosecution of the suit. The owner of a tract of land may convey it in order that the title may be tried in the Federal courts, but the conveyance must be made bona fide, so that the prosecution of the suit shall not be for his benefit. The judgment of the District Court is reversed, for want of jurisdiction in that court."
In Barney v. Baltimore City, 6 Wall. 280, 288, which was a suit in equity in the Circuit Court of the United States for Maryland for a partition of real estate and for an account of rents and profits, etc., it appeared that certain persons, citizens of the District of Columbia, conveyed their interest in the property to a citizen of Maryland. It was admitted that the conveyance was made for the purpose of conferring jurisdiction, was without consideration, and that the grantee, on the request of the grantors, would reconvey to the latter. Mr. Justice Miller, speaking for the court, said: "If the conveyance by the Ridgelys of the District to S.C. Ridgely of Maryland had really transferred the interest of the former to the latter, although made for the avowed purpose of enabling the court to entertain jurisdiction of the case, it would have accomplished that purpose. McDonald v. Smalley, and several cases since, have well established this rule. But in point of *336 fact that conveyance did not transfer the real interest of the grantors. It was made without consideration, with a distinct understanding that the grantors retained all their real interest, and that the deed was to have no other effect than to give jurisdiction to the court. And it is now equally well settled, that the court will not, under such circumstances, give effect to what is a fraud upon the court, and is nothing more."
None of these cases sustain the contention of the plaintiffs. All of them concur in holding that the privilege of a grantee or purchaser of property, being a citizen of one of the States, to invoke the jurisdiction of a Circuit Court of the United States for the protection of his rights as against a citizen of another State the value of the matter in dispute being sufficient for the purpose cannot be affected or impaired merely because of the motive that induced his grantor to convey, or his vendee to sell and deliver, the property, provided such conveyance or such sale and delivery was a real transaction by which the title passed without the grantor or vendor reserving or having any right or power to compel or require a reconveyance or return to him of the property in question. We adhere to that doctrine.
In harmony with the principles announced in former cases, we hold that the Circuit Court properly dismissed this action. The conveyance to the Pennsylvania corporation was without any valuable consideration. It was a conveyance by one corporation to another corporation the grantor representing certain stockholders, entitled collectively or as one body to do business under the name of the Virginia Coal and Iron Company, while the grantee represented the same stockholders, entitled collectively or as one body to do business under the name of the Lehigh Mining and Manufacturing Company. It is true that the technical legal title to the lands in controversy is, for the time, in the Pennsylvania corporation. It is also true that there was no formal agreement upon the part of that corporation "as an artificial being, invisible, intangible, and existing only in contemplation of law," that the title should ever be reconveyed to the Virginia corporation. But *337 when the inquiry involves the jurisdiction of a Federal court the presumption in every stage of a cause being that it is without the jurisdiction of a court of the United States, unless the contrary appears from the record, Grace v. American Central Insurance Co., 109 U.S. 278, 283, Börs v. Preston, 111 U.S. 252, 255 we cannot shut our eyes to the fact that there exists what should be deemed an equivalent to such an agreement, namely, the right and power of those who are stockholders of each corporation to compel the one holding the legal title to convey, without a valuable consideration, such title to the other corporation. In other words, although the Virginia corporation, as such, holds no stock in the Pennsylvania corporation, the latter corporation holds the legal title, subject at any time to be divested of it by the action of the stockholders of the grantor corporation who are also its stockholders. The stockholders of the Virginia corporation the original promoters of the present scheme, and, presumably, when a question of the jurisdiction of a court of the United States is involved, citizens of Virginia in order to procure a determination of the controversy between that corporation and the defendant citizens of Virginia, in respect of the lands in that Commonwealth, which are here in dispute, assumed, as a body, the mask of a Pennsylvania corporation for the purpose, and the purpose only, of invoking the jurisdiction of the Circuit Court of the United States, retaining the power, in their discretion, and after all danger of defeating the jurisdiction of the Federal court shall have passed, to throw off that mask and reappear under the original form of a Virginia corporation their right, in the meantime, to participate in the management of the general affairs of the latter corporation not having been impaired by the conveyance to the Pennsylvania corporation. And all this may be done, if the position of the plaintiffs be correct, without any consideration passing between the two corporations.
It is not decisive of the present inquiry that under the adjudications of this court the stockholders of the Pennsylvania corporation the question being one of jurisdiction must be conclusively presumed to be citizens of that Commonwealth. *338 Nor is it material, if such be the fact, that the Pennsylvania corporation could not have been legally organized, under the laws of that Commonwealth, in February, 1893, unless some of the subscribers to its charter were then citizens of Pennsylvania. We cannot ignore the peculiar circumstances which distinguish the present case from all others that have been before this court. The stockholders who organized the Pennsylvania corporation were, it is agreed, the same individuals who, at the time, were the stockholders of the Virginia corporation. And under the rule of decision adverted to, the stockholders of the Virginia corporation, just before they organized the Pennsylvania corporation as well as when the Virginia corporation conveyed the legal title, were presumably citizens of Virginia. If the rule which has been invoked be regarded as controlling in the present case, the result, curiously enough, will be that immediately prior to February, 1893 before the Pennsylvania corporation was organized the stockholders of the Virginia corporation were, presumably, citizens of Virginia; that, a few days thereafter, in February, 1893, when they organized the Pennsylvania corporation, the same stockholders became, presumably, citizens of Pennsylvania; and that, on the 1st day of March, 1893, at the time the Virginia corporation conveyed to the Pennsylvania corporation, the same persons were presumably citizens, at the same moment of time, of both Virginia and Pennsylvania.
It is clear that the record justifies the assumption that there was no valuable consideration for the conveyance to the Pennsylvania corporation. Why should a valuable consideration have passed at all, when the stockholders of the grantor corporation and the stockholders of the grantee corporation were, at the time of the conveyance, the same individuals? Could it be expected that those stockholders, acting as one body, under the name of the Virginia Coal and Iron Company, would take money out of one pocket for the purpose of putting it into another pocket which they had and used only while acting under the name of the Lehigh Mining and Manufacturing Company? A valuable consideration cannot be presumed, merely because the agreed statement of facts recites that the *339 Virginia corporation executed and delivered a deed of "bargain and sale" conveying all its right, title, and interest to the Pennsylvania corporation. In view of the admitted facts, that recital must be taken as meaning nothing more than that the deed was, in form, one of bargain and sale, conveying the technical legal title. The deed cannot be regarded even as a deed of gift, unless we suppose that a body of stockholders, acting under one corporate name, solemnly made a gift of property to themselves acting under another corporate name. When it is remembered that the plaintiff in error stipulates that all that was done had for its sole object to create a case cognizable in the Federal court, which would otherwise have been cognizable only in a court of Virginia, it is not difficult to understand why the agreed statement of facts failed to state, in terms, that a valuable consideration was paid by the grantee corporation.
The arrangement by which, without any valuable consideration, the stockholders of the Virginia corporation organized a Pennsylvania corporation and conveyed these lands to the new corporation for the express purpose and no other purpose is stated or suggested of creating a case for the Federal court, must be regarded as a mere device to give jurisdiction to a Circuit Court of the United States and as being, in law, a fraud upon that court, as well as a wrong to the defendants. Such a device cannot receive our sanction. The court below properly declined to take cognizance of the case.
This conclusion is a necessary result of the cases arising before the passage of the act of March 3, 1875, c. 137, 18 Stat. 470. The fifth section of that act provides that if, in any suit commenced in a Circuit Court, it shall appear to the satisfaction of that court, at any time after such suit is brought, that it "does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable ... under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit." This part of the act of 1875 was not superseded *340 by the act of 1887, amended in 1888. 25 Stat. 434, c. 866. Its scope and effect were determined in Williams v. Nottawa, 104 U.S. 209, 211, and Morris v. Gilmer, 129 U.S. 315. In the first of those cases the court, referring to the act of 1875, said: "In extending a long way the jurisdiction of the courts of the United States, Congress was specially careful to guard against the consequences of collusive transfers to make parties, and imposed the duty on the court, on its own motion, without waiting for the parties, to stop all further proceedings and dismiss the suit the moment anything of the kind appeared. This was for the protection of the court as well as parties against frauds upon its jurisdiction."
The organization of the Pennsylvania corporation and the conveyance to it by the Virginia corporation, for the sole purpose of creating a case cognizable by the Circuit Court of the United States is, in principle, somewhat like a removal from one State to another with a view only of invoking the jurisdiction of the Federal court. In Morris v. Gilmer, just cited, the court said: "Upon the evidence in this record, we cannot resist the conviction that the plaintiff had no purpose to acquire a domicil or settled home in Tennessee, and that his sole object in removing to that State was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States. He went to Tennessee without any present intention to remain there permanently or for an indefinite time, but with a present intention to return to Alabama as soon as he could do so without defeating the jurisdiction of the Federal court to determine his new suit. He was, therefore, a mere sojourner in the former State when this suit was brought. He returned to Alabama almost immediately after giving his deposition. The case comes within the principle announced in Butler v. Farnsworth, 4 Wash. C.C. 101, 103, where Mr. Justice Washington said: `If the removal be for the purpose of committing a fraud upon the law, and to enable the party to avail himself of the jurisdiction of the Federal courts, and that fact be made out by his acts, the court must pronounce that his removal was not with a bona fide intention of changing his domicil, however frequent and public his *341 declarations to the contrary may have been.'" 129 U.S. 328, 329.
Other cases in this court show the object and scope of the above provision in the act of 1875. In Farmington v. Pillsbury, 114 U.S. 138, 139, 145 which was a suit upon coupons of bonds issued in the name of Farmington, a municipal corporation of Maine, the bonds themselves being owned by citizens of that State it appeared that the bonds were purchased and held by such citizens while a suit was pending in one of the courts of Maine to test their validity. The state court decided that they were void and inoperative. After that decision coupons of the same amount, gathered up and held by citizens of Maine, were transferred, by their agent, to Pillsbury, a citizen of Massachusetts, under an arrangement by which he gave his promissory note for $500, payable in two years from date, with interest, and agreed, "as a further consideration for said coupons," that if he succeeded in collecting the full amount thereof he would pay the agent, as soon as the money was gotten from the corporation, fifty per cent of the net amount collected above the $500. Pillsbury then brought his suit on these coupons, he being a citizen of Massachusetts, against the town of Farmington, in the Circuit Court of the United States for the District of Maine. Here was, in form, a sale and delivery of coupons for a valuable consideration. This court regarded the whole transaction as a sham, and speaking by Chief Justice Waite, said: "It is a suit for the benefit of the owners of the bonds. They are to receive from the plaintiff one half of the net proceeds of the case they have created by their transfer of the coupons gathered together for that purpose. The suit is their own in reality, though they have agreed that the plaintiff may retain one half of what he collects for the use of his name and his trouble in collecting. It is true the transaction is called a purchase in the papers that were executed, and that the plaintiff gave his note for $500, but the time for payment was put off for two years, when it was, no doubt, supposed the result of the suit would be known. No money was paid, and as the note was not negotiable, it is clear the parties intended to keep the control of the whole matter *342 in their own hands, so that if the plaintiff failed to recover the money he could be released from his promise to pay." The court, adopting the language of Mr. Justice Field, in Detroit v. Dean, 106 U.S. 537, 541, adjudged the transfer of the coupons to be "a mere contrivance, a pretence, the result of a collusive arrangement to create" in favor of the plaintiff "a fictitious ground of Federal jurisdiction." Referring to the above provision in the act of 1875, the court, after declaring it to be a salutory one, said that "it was intended to promote the ends of justice, and is equivalent to an express enactment by Congress that the Circuit Courts shall not have jurisdiction of suits which do not really and substantially involve a dispute or controversy of which they have cognizance, nor of suits in which the parties have been improperly or collusively made or joined for the purpose of creating a case cognizable under the act." p. 144.
These principles were reaffirmed in Little v. Giles, 118 U.S. 596, 603, in which Mr. Justice Bradley, speaking for the court, said that under the act of 1875, where the interest of the nominal party is "simulated and collusive, and created for the very purpose of giving jurisdiction, the court should not hesitate to apply the wholesome provisions of the law."
The case before us is one that Congress intended to exclude from the cognizance of a court of the United States. The Pennsylvania corporation neither paid nor assumed to pay anything for the property in dispute, and was invested with the technical legal title for the purpose only of bringing a suit in the Federal court. As we have said, that corporation may be required by those who are stockholders of its grantor, and who are also its own stockholders, at any time, and without receiving therefor any consideration whatever, to place the title where it was when the plan was formed to wrest the judicial determination of the present controversy from the courts of the State in which the land lies. It should be regarded as a case of an improper and collusive making of parties for the purpose of creating a case cognizable in the Circuit Court. If this action were not declared collusive, within the meaning of the act of 1875, then the provision making it the duty of the *343 Circuit Court to dismiss a suit, ascertained at any time to be one in which parties have been improperly or collusively made or joined, for the purpose of creating a case cognizable by that court, would become of no practical value, and the dockets of the Circuit Courts of the United States will be crowded with suits of which neither the framers of the Constitution nor Congress ever intended they should take cognizance.
The judgment is
Affirmed.
MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE FIELD and MR. JUSTICE BROWN, dissenting.
In April, 1893, the Lehigh Mining and Manufacturing Company, asserting itself to be a corporation organized and existing under the laws of the State of Pennsylvania, and a citizen and resident of said State, brought, in the Circuit Court of the United States for the Western District of Virginia, an action of ejectment for a tract of land in Wise County, State of Virginia, and within the jurisdiction of that court, against J.J. Kelly, James C. Hubbard, and others, all of whom were averred to be citizens of the State of Virginia, and residents of the Western District thereof.
The defendants filed two special pleas which were traversed by replications. The record shows that subsequently the cause was submitted to the court on the issues thus made and with an agreed statement of facts, and that the court, on May 30, 1893, sustained the pleas, found that it had no jurisdiction of the case, and dismissed the action for want of jurisdiction, but without prejudice. Upon exceptions duly taken, this judgment was brought to this court.
It is admitted, in the agreed statement of facts, that the Lehigh Mining and Manufacturing Company was, in February, 1893, duly organized as a corporation of the State of Pennsylvania, and was existing as such at the time of the commencement of this action.
The constitution of Pennsylvania, of which we take judicial notice, provides in the seventh section of article third that such *344 a corporation cannot be created by any local or special law, and we are thus given to know that the company in question was organized under a general law of the State. On resorting to that law, being the act of April 29, 1874, (Pruden's Digest, vol. 1, page 335,) and of the contents of which we also take judicial notice, we find it provided that to become duly organized as a mining and manufacturing company the charter must be subscribed by five or more persons, three of whom at least must be citizens of Pennsylvania; that the certificate must set forth that ten per centum of the capital stock has been paid in cash to the treasurer of the intended corporation; and these facts as to citizenship and the payment of the requisite proportion of the capital in cash must be sworn to by at least three of the subscribers. Upon such proof the governor is authorized to direct letters patent to be issued, but no corporation shall go into operation without first having the name of the company, the date of the incorporation, the place of business, the amount of capital paid in, and the names of the president and treasurer registered in the office of the auditor general of the State. While, therefore, it is stated in the agreed statement of facts that the said company was organized by the individual stockholders and the officers of the Virginia Coal and Iron Company, such statement is by no means inconsistent with the other statement that the Lehigh Mining and Manufacturing Company was duly organized, and therefore included in its membership citizens of Pennsylvania.
The presumption, therefore, must be that the Lehigh Mining and Manufacturing Company was, in all respects, a corporation regularly and legally organized, and the concession of the agreed statement is that, as matter of fact, at least three of its corporators are citizens of the State of Pennsylvania. As matter of law, as we shall presently see, all of its corporators are to be indisputably deemed, for the purpose of jurisdiction in the Circuit Court of the United States, citizens of that State.
The record, therefore, discloses that a regularly organized body corporate of the State of Pennsylvania, seeking to assert its title to a tract of land situated in Wise County, Virginia, *345 as against certain citizens of Virginia in possession of said tract, and having brought an action of law in the Circuit Court of the United States, has been dismissed from that court for alleged want of jurisdiction.
Such want of jurisdiction is not apparent on the face of the record, apart from the allegations contained in the special pleas. That the Circuit Court of the United States has jurisdiction of a dispute about the title to land between a corporation of another State and citizens of the State where the land is situated is, of course, now settled beyond controversy. After a long dispute, the history of which we need not here follow, it was finally decided in Louisville & Nashville Railroad v. Letson, 2 How. 497, that "a corporation created by and transacting business in a State, is to be deemed an inhabitant of the State, capable of being treated as a citizen, for all purposes of suing and being sued, and an averment of the facts of its creation and the place of transacting business is sufficient to give the Circuit Courts jurisdiction." Accordingly, in that case, a plea to the jurisdiction, alleging that some of the corporators of the defendant company, which was a corporation of the State of South Carolina, were citizens of New York, of which latter State the plaintiff was a citizen, was on demurrer overruled. In Ohio and Mississippi Railroad Co. v. Wheeler, 1 Black, 286, 296, the court, speaking by Chief Justice Taney, said: "Where a corporation is created by the laws of a State, the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence; and that a suit by or against a corporation, in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body; and that no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States. ... After these successive decisions, the law upon this subject must be regarded as settled, and a suit by or against a corporation in its corporate name as a suit by or against citizens of the State which created it."
If these cases correctly state the law, was it competent for *346 the court below, upon the facts agreed upon, to disregard the corporate character of the plaintiff company, and to find that it was composed, in a jurisdictional sense, of citizens of Virginia? It is true that the defendants, in their second plea, alleged that "there was no such legally organized corporation as the plaintiff company at the date of the institution of this suit." But, as we have seen, the statement of facts, agreed upon after the pleas were filed, states that the plaintiff company was a duly organized corporation of the State of Pennsylvania, and was existing as such at the time of the bringing of the suit.
Assuming, then, as we have a right to do, that the corporate existence of the plaintiff company is conceded, and that, under the authorities, the members of the company are to be deemed citizens of the State of Pennsylvania, and that no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of the Circuit Court, were there any other facts which justified the action of the court below in dismissing the action for want of jurisdiction?
It is said that, because it is conceded in the agreed statement of facts, that the land in controversy had been claimed by the Virginia Coal and Iron Company, a corporation organized under the laws of the State of Virginia, and that said company had executed and delivered a deed of bargain and sale to the Lehigh Mining and Manufacturing Company, by which it conveyed all its right, title, and interest in and to the land in controversy to the Lehigh Mining and Manufacturing Company in fee simple, and because it is admitted that the Pennsylvania company was organized by the individual stockholders and officers of the Virginia company, and that the purpose in organizing said Lehigh Mining and Manufacturing Company and in making to it said conveyance was to give the Circuit Court jurisdiction in the case, the legal effect of such a state of facts would constitute a fraud upon the court, and would justify it in dismissing the suit.
It is difficult to see, in the first place, how this could be a case of fraud. The facts were conceded, not concealed, nor *347 falsely stated. It would be one thing to say that an acknowledged state of facts failed to confer jurisdiction; another thing to say that such acknowledged state of facts, though formally conferring jurisdiction, constituted fraud on the court, not because untrue and pretended, and intended to deprive a court of jurisdiction, but because intended to bring a legal cause of action within its jurisdiction. We have seen that, ex necessitate and as a matter of fact, there were citizens of Pennsylvania who had, as members of a corporation of that State, an interest in the subject-matter of the suit; and we have seen that, by a well settled proposition of law, the Pennsylvania company must, for jurisdictional purposes, be indisputably deemed to be wholly composed of citizens of the State that created it. How, then, in the absence of misstatement or suppression of facts, can it be said that the Pennsylvania company was guilty of any fraud in invoking the jurisdiction of the Federal court?
I submit that the true question, under the pleadings and statement of facts, was whether the transaction, whereby title to the land in dispute was granted and conveyed by the Virginia Company to the Pennsylvania company, was an actual one, was really what it purported to be. If the conveyance by the Virginia company really and intentionally conferred its title on the Pennsylvania company, so that the latter company could legally assert its title against the parties in possession in a state court, no reason existed why the same cause of action might not be asserted in a Federal court; that, if the transaction were an actual one, and the conveyance one intended to vest an absolute title, unqualified by any trust, the jurisdiction of the Circuit Court validly attached has been frequently declared, even if the purpose was to make a case cognizable by the Federal court.
McDonald v. Smalley, 1 Pet. 620, 623, was a case where a citizen of Ohio, under the apprehension that his title to lands in that State could not be maintained in the state court, and being indebted to a citizen of Alabama, offered to sell and convey to him the land in payment of the debt, stating in the letter by which the offer was made that the title would most *348 probably be maintained in the courts of the United States, but would fail in the courts of the State. The Alabama citizen accepted the conveyance, and afterwards gave to a third party his bond to make a quitclaim title to the land, on condition of receiving $1000. The Circuit Court of the United States for the District of Ohio, in which the grantee filed, as a citizen of Alabama, a bill in equity, held that, upon the above state of facts, the court had no jurisdiction to entertain the suit. But this court held otherwise and reversed the judgment. Chief Justice Marshall, for the court, said:
"It has not been alleged, and certainly cannot be alleged, that a citizen of one State, having title to lands in another, is disabled from suing for those lands in the courts of the United States by the fact that he derives his title from a citizen of the State in which the lands lie. Consequently, the single inquiry must be, whether the conveyance from McArthur to McDonald was real or fictitious... . This testimony ... shows a sale and conveyance to the plaintiff, which was binding on both parties... . [McArthur's] title was extinguished, and the consideration was received. The motives which induced him to make the contract, whether justifiable or censurable, can have no influence on its validity. They were such as had sufficient influence with himself, and he had a right to act upon them. A court cannot enter into them when deciding on its jurisdiction. The conveyance appears to be a real transaction, and the real as well as nominal parties to the suit are citizens of different States. The only part of the testimony which can inspire doubt, respecting its being an absolute sale, is the admission that the plaintiff gave his bond to a third party for a quitclaim title to the land, on paying him $1100. We are not informed who this third party was, nor do we suppose it to be material. The title of McArthur was vested in the plaintiff, and did not pass out of him by this bond. A suspicion may exist that it was for McArthur. The court cannot act upon this suspicion. But suppose the fact to be averred, what influence could it have upon the jurisdiction of the court? It would convert the conveyance, which on its face appears to be absolute, into a *349 mortgage. But this would not affect the question. In a contest between the mortgagor and mortgagee, being citizens of different States, it cannot be doubted that an ejectment, or a bill to foreclose, may be brought by the mortgagee, residing in a different State, in a court of the United States. Why then may he not sustain a suit in the same court against any other person being a citizen of the same State with the mortgagor? We can perceive no reason why he should not. The case depends, we think, on the question whether the transaction between McArthur and McDonald was real or fictitious; and we perceive no reason to doubt its reality, whether the deed be considered as absolute or as a mortgage."
In Smith v. Kernochen, 7 How. 198, 216, where a mortgagee, a citizen of Alabama, assigned the mortgage to a citizen of New York, both parties concurring in the motive to have the question involved passed upon by a Federal court, it was held that "the motive imputed could not affect the validity of the conveyance. This was so held in McDonald v. Smalley, 1 Pet. 120. The suit would be free from objection in the state courts; and the only ground upon which it can be made effectual here is that the transaction between the company and plaintiff was fictitious and not real; and the suit still, in contemplation of law, between the original parties to the mortgage. The question, therefore, is one of proper parties to give jurisdiction to the Federal courts, not of title in the plaintiff. That would be a question on the merits, to decide which the jurisdiction must first be admitted. The true and only ground of objection in all these cases is, that the assignor, or the grantor, as the case may be, is the real party in the suit, and the plaintiff on the record but nominal and colorable, his name being used merely for the purpose of jurisdiction."
So, in Barney v. Baltimore, 6 Wall. 280, 288, the court said: "If the conveyance by the Ridgelys of the District to S.C. Ridgely, of Maryland, had really transferred the interest of the former to the latter, although made for the avowed purpose of enabling the court to entertain jurisdiction of the case, it would have accomplished that purpose. McDonald *350 v. Smalley (1 Pet. 620) and several cases since have well established this rule."
If, then, anything can be regarded as settled, it is that the motive or purpose of securing a right of action in a Federal court by a conveyance or assignment will not defeat the jurisdiction, if the conveyance or assignment be real and not fictitious.
It, therefore, follows, in the present case, that the concession in the agreed statement of facts, that the purpose was to give jurisdiction to the Circuit Court, will not defeat that jurisdiction unless it appears that the conveyance was not real but fictitious. This presents a question of fact. Stated in direct terms, the question is this: Given a Pennsylvania corporation, indisputably composed of citizens of that State, and a conveyance in fee simple to such company of a tract of land, situated in the State of Virginia, by a corporation of that State, the land being in possession of citizens of the latter State, was this apparent jurisdiction defeated by the admitted facts? It has been established, by the cases cited, that the mere purpose or intention to put the claim into an owner who would be entitled to go into a Federal court would not be objectionable if the conveyance were an actual one, and where the interest asserted belonged wholly to the plaintiff.
Hence, the only matter now to determine is, what was the character of the conveyance in the present case? It was, in form, a deed of bargain and sale, purporting to convey a fee simple. It is admitted in the agreed statement of facts that "said conveyance passed to said Lehigh Mining and Manufacturing Company all the right, title, and interest of said Virginia Coal and Iron Company in and to said land, and that since said conveyance said Virginia Coal and Iron Company has had no interest in said land, and has not and never has had any interest in that suit, and that it owns none of the stock of said Lehigh Mining and Manufacturing Company, and has no interest therein whatsoever."
It is contended, in the opinion of the majority, that "it appears, in view of what the agreed statement of facts contains, as well as what it omits to disclose, that the conveyance *351 was without any valuable consideration, and that, as soon as this litigation is concluded, the Pennsylvania corporation, if it succeeded in obtaining judgment against the defendants, can be required by the stockholders of the Virginia corporation, being also stockholders of the Pennsylvania corporation, to reconvey the land in controversy to the Virginia corporation."
This contention, and the fate of the case turns upon it, can be readily met. It assumes two facts, neither of which is found in the record, and both of which, if found, would be immaterial. First, it is said that the conveyance was without any valuable consideration. But it is distinctly admitted that the Virginia company "executed and delivered a deed of bargain and sale to the Lehigh Mining and Manufacturing Company, by which it conveyed all its right, title, and interest in the land in controversy in fee simple." It is not found that no consideration was given, and in the absence of such a finding the presumption would be that a deed of conveyance under seal, and granting an estate in fee simple, implies a consideration. But it is unnecessary to consider this, because it is wholly immaterial whether the grantee paid a consideration or not. The deed, even if it were a deed of gift, was executed and delivered, and an executed gift is irrevocable. Nor does it concern the defendants whether the grant by deed was or was not for a valuable consideration.
This very question came up in the case of De Laveaga v. Williams, 5 Sawyer, 573, 574, in the Circuit Court of the District of California, and where it was urged that no consideration was ever paid, and that the deed was executed to enable the suit to be brought in the Circuit Court of the United States. But the court said, by Mr. Justice Field: "There is no doubt that the sole object of the deed to the complainant was to give jurisdiction, and that the grantor has borne and still bears the expenses of the suit. But neither of these facts renders the deed inoperative to transfer the title. The defendants are not in a position to question the right of the grantor to give away the property, if he chooses so to do. And the court will not, at the suggestion of a stranger to the title, inquire into the motives which induced the grantor to *352 part with his interest. It is sufficient that the instrument executed is valid in law, and that the grantee is of the class entitled under the laws of Congress to proceed in the Federal courts for the protection of his rights. It is only when the conveyance is executed to give the court jurisdiction, and is accompanied with an agreement to retransfer the property at the request of the grantor upon the termination of the litigation, that the proceeding will be treated as a fraud upon the court... . Here there was no such agreement, and it will be optional with the complainant to retransfer or to retain the property. He is by the deed the absolute owner of the interest conveyed, and can only be deprived of it by his own will, and upon such considerations as he may choose to exact."
The only operation that could be given to the absence of proof of an actual consideration would be to create a suspicion of a secret trust. But this is negatived in the present case, by the admission that a deed in fee simple was executed and delivered, and that by it the entire title, interest, and right of the grantor company passed to the Pennsylvania corporation, and that "since said conveyance said Virginia Coal and Iron Company has had no interest in said land, and has not and never has had any interest in this suit."
It is admitted, in the opinion of the majority, that "the legal title to the lands in controversy is in the Pennsylvania corporation, and that there was no formal agreement or understanding upon its part that the title shall ever be reconveyed to the Virginia corporation." But it is said that "there exists what should be deemed an equivalent to such an agreement, namely, the right and power of those who are stockholders of each corporation to compel the one holding the legal title to convey, without a valuable consideration, that title to the other corporation." This seems to me to be a strained conjecture. Stock in a corporation is continually changing hands, and to suppose that, at the end of a pending litigation, the holders will be the identical persons who held it at the beginning is too uncertain and fanciful to form a basis for a judicial action. As was well said by Mr. Justice Grier, in Marshall v. Baltimore *353 & Ohio Railroad, 16 How. 314, 327: "The necessities and conveniences of trade and business require that such numerous associates and stockholders should act by representation, and have the faculty of contracting, suing, and being sued in a factitious or collective name... . It is not reasonable that representatives of unknown and ever changing associates should be permitted to allege the different citizenship of one or more of these stockholders," in order to defeat the jurisdiction of Federal courts.
Some expressions used in the opinion of the court below, and likewise in the majority opinion, seem to imply that the act of March 3, 1875, c. 137, 18 Stat. 470, has operated to change the law in respect to the jurisdiction of the Circuit Courts of the United States. I do not so understand the purpose of that enactment. I have supposed that it only operates as a rule of practice. As the law previously stood, if the face of the record disclosed a suit between citizens of different States, and thus within the jurisdiction of the Circuit Court, it was necessary to traverse the averment of citizenship by a plea in abatement, and if the defendant went to trial on a plea to the merits he could not afterwards question the truth of such averment. Smith v. Kernochen, 7 How. 198; Barney v. Baltimore, 6 Wall. 280.
But since the passage of the act of March 3, 1875, "it is competent for the court at any time, during the trial of the case, without plea and without motion, to stop all further proceedings and dismiss the suit the moment a fraud on its jurisdiction was discovered." Hartog v. Memory, 116 U.S. 588.
It is not perceived that the legal rights of owners of property are in anywise affected by this law, and it is still true, as was said in Barry v. Edmunds, 116 U.S. 550, 559, that "the order of the Circuit Court dismissing the cause for want of jurisdiction is reviewable by this court on writ of error by the express words of the act. In making such an order, therefore, the Circuit Court exercises a legal and not a personal discretion, which must be exerted in view of the facts sufficiently proven, and controlled by fixed rules of law. It might happen that the judge, on the trial or hearing of a cause, would receive *354 impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction, on this account, shall appear to the satisfaction of" the court.
As then the plaintiff company is conceded to be a duly organized and existing body corporate of the State of Pennsylvania; as the land in dispute is within the jurisdiction of the court, and the defendants in possession thereof are citizens of the State of Virginia; and as it is conceded that, by a deed of conveyance in fee simple, the Virginia company passed all its right, title, and interest in said land, and has since had "no interest in said land, or in the suit," I think the jurisdiction of the Circuit Court ought not to be defeated by the conjecture that the persons owning the stock of the corporation when the deed of conveyance was made might continue to own it years afterwards when the suit should terminate, and might choose, as such owners, to cause another transfer and conveyance of the land to be made. Such conjectures are very far from furnishing for judicial action that "legal certainty" which in Barry v. Edmunds is said to be the proper basis upon which to deprive parties of their right of access to the national tribunals.
If we are permitted to enter into the realm of supposition, it is easy to suggest that the present stockholders, so far as they are citizens of Virginia, might dispose of their stock in good faith and absolutely to citizens of Pennsylvania. Then, upon another action brought in the same court, the same pleas being interposed, it would be competent, according to the views which prevail in the present case, to meet the pleas by a replication averring that the individual stockholders are citizens of Pennsylvania, and thus the jurisdiction would be sustained. What, in such a case, would have become of the long-settled *355 rule that the status, as to citizenship, of the individual stockholders is not a matter of allegation and proof? Has the court retraced its steps, and can state corporations be turned out of the Federal courts on a plea that one or more of the stockholders is a citizen of the same State in which the litigation is pending?
MR. JUSTICE FIELD and MR. JUSTICE BROWN concur in this dissent. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/176580/ | 622 F.3d 432 (2010)
Tina ESPINOZA, Plaintiff-Appellant,
v.
CARGILL MEAT SOLUTIONS CORPORATION, Defendant-Appellee.
No. 09-11170.
United States Court of Appeals, Fifth Circuit.
October 5, 2010.
*435 Chad Douglas Inderman, Sean Michael Crowley, Kevin Thomas Glasheen (argued), Glasheen, Valles, Inderman & De-Hoyos, L.L.P., Lubbock, TX, for Espinoza.
Slater Chalfant Elza, S. Tom Morris (argued), Underwood Law Firm, Amarillo, TX, for Defendant-Appellee.
Before JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR[*], District Judge.
PRADO, Circuit Judge:
Tina Espinoza appeals the district court's grant of summary judgment in favor of Cargill Meat Solutions Corporation ("Cargill") on her negligence and gross negligence claims, stemming from an injury she incurred while working at Cargill's meat packing plant. The district court found that (1) Espinoza waived her right to *436 sue Cargill under Texas tort law by electing to participate in the Cargill Meat Solutions Corporation Texas Occupational Temporary Disability Plan (the "Plan"); (2) § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), preempted her suit; and (3) Espinoza failed to exhaust the claims, grievance, and arbitration procedure (the "Claims Procedure") in the Plan and in Cargill's collective bargaining agreement ("CBA"). On appeal, Espinoza argues that (1) under Texas Labor Code ("TLC") § 406.033(e), her waiver was "void and unenforceable"; (2) § 301 of the LMRA does not preempt her suit because her negligence claim is not "inextricably intertwined" with any provision of Cargill's CBA; and (3) because she retained her right to sue, she need not follow the Claims Procedure.
Because Cargill offered its employees Workers' Compensation coverage, and TLC § 406.033(e)'s prohibition against waiver of an employee's right to sue only applies to an employer who does not offer coverage, Espinoza's waiver was valid and enforceable. Additionally, § 301 of the LMRA preempts Espinoza's suit because a sufficient nexus exists between the terms of the CBA and the elements of Espinoza's negligence cause of action for purposes of preemption. Finally, because Espinoza's waiver of her rights was enforceable, her failure to follow the Claims Procedure bars her suit. We therefore affirm the district court's grant of summary judgment in favor of Cargill.
I. FACTUAL AND PROCEDURAL BACKGROUND
Since 2002, Cargill, a corporation operating a meat packing plant in Friona, Texas, has provided Workers' Compensation insurance for its employees. In addition to the Workers' Compensation insurance policy, Cargill instituted the Plan, which provides medical benefits so long as the injured claimant remains employed with Cargill. Upon commencement of employment, Cargill employees may: (1) receive protection under Cargill's Workers' Compensation insurance policy; (2) waive Workers' Compensation protection and retain the right to sue in tort; or (3) waive both Workers' Compensation protection and the right to sue in tort, and instead participate in the Plan.
On September 14, 2006, Cargill hired Espinoza. On September 15, 2006the day after her hiringEspinoza signed a written waiver of Workers' Compensation insurance and an election to participate in the Plan. The waiver states:
I have reviewed (1) the [CBA] between Excel[1] and the United Food and Commercial Workers Local No. 540, AFL-CIO, as amended . . ., (2) a summary of the [Plan], and (3) the written Notice dated APRIL 15, 2002, that Excel now provides Workers' Compensation Insurance under the Texas Workers' Compensation Act (the Act), and I understand that I may make a choice as to the coverage I desire.
Therefore, I hereby WAIVE Workers' Compensation Insurance and make the election checked as follows:
Under the bolded sentence, the waiver provides two options:
In lieu of Workers' Compensation Insurance, I elect to be covered by the [Plan], and I understand that the exclusive and mandatory procedure for enforcing my rights will be the [Claims Procedure] under the Plan and the CBA.
In lieu of Workers' Compensation Insurance and in lieu of coverage under the [Plan], I elect to retain my rights of *437 action under common and statutory law. I understand such rights will be subject to all defenses available to Excel under the common and statutory law. I further understand and agree that the exclusive and mandatory procedure for enforcing my rights will be the claim procedure provided in the CBA, including final and binding arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 2-13.
Espinoza initialed the first option.
Cargill also entered into a CBA with the United Food and Commercial Workers CLC Local #540, AFL-CIO (the "Union"), which governs the relationship between Cargill and its employees, including Espinoza. The CBA dictates that the Plan is the sole mechanism for addressing workplace injuries, and states that the Union "waive[s] on behalf of itself and all bargaining unit employees, and [sic] any and all other causes of action which it or such employees possess outside said Disability Plan which may in any way relate to or arise out of an on the job accident, illness, or injury." If a claim is not resolved by the Plan's administrative procedures, an employee may then proceed to arbitration pursuant to the CBA, which is "final and binding upon all parties." The Plan also states that "there shall be no right to appeal."
On February 15, 2007, Espinoza injured her hand while operating a "butt bone" saw. After her injury, Espinoza began receiving medical and wage replacement benefits through the Plan. Although she received Plan benefits, she did not miss any time from work. She did not seek administrative review of her benefits through the Claims Procedure. On August 29, 2007, Cargill fired Espinoza, which also terminated her eligibility for Plan benefits. Espinoza subsequently filed this action against Cargill, alleging gross negligence and negligence for failing to properly train and supervise her, failing to adopt proper polices and procedures regarding operation of machinery, failing to provide safe equipment, and failing to provide a safe place of work.
Cargill filed a motion for summary judgment, which the district court granted. The district court found that Espinoza had waived her causes of action for torts when she elected to participate in the Plan, and that TLC § 406.033(e) did not render her waiver void and unenforceable because Cargill provided its employees with the option to retain coverage through Workers' Compensation insurance, thus remaining a "subscriber." The district court also held that § 301 of the LMRA preempted Espinoza's suit because the scope of Cargill's duties and Espinoza's remedies under the CBA were inextricably intertwined with the scope of Cargill's legal duty for purposes of Espinoza's negligence claim. Finally, the district court found that Espinoza's failure to follow the Claims Procedure precluded her negligence action. Espinoza timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291, and review "the district court's grant of summary judgment de novo, applying the same standard as the district court." Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 228-29 (5th Cir. 2010) (citing Golden Bridge Tech., Inc. v. Motorola, Inc., 547 F.3d 266, 270 (5th Cir. 2008)). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). "Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Lynch Props., *438 Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.1998) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)).
III. DISCUSSION
On appeal, Espinoza advances several arguments, the first alleging that the district court erred by finding her waiver of her right to sue Cargill valid and enforceable under TLC § 406.033(e). Espinoza also argues that the district court erred by holding that § 301 of the LMRA preempts her cause of action because the legal duties upon which her negligence claim rests are not dependent upon an interpretation of the CBA, and are thus not inextricably intertwined with the CBA. Finally, Espinoza contends that the district court erred by holding that her failure to initiate a claim through the Claims Procedure precludes her suit, because she is not seeking Plan benefits and is thus not required to participate in such procedures.
A. Espinoza's Waiver of Workers' Compensation Insurance Bars her Suit
Espinoza's primary argument involves an application of TLC § 406.033. In relevant part, this provision reads:
(a) In an action against an employer who does not have workers compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.. . .
(e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.
Espinoza offers several reasons for why we should find that her waiver of future actions against Cargill is void and unenforceable. First, she contends that Cargill failed to provide evidence that it covered its employees with a Workers' Compensation insurance policy. Alternatively, Espinoza claims that the legislative history behind TLC § 406.033(e) mandates that we treat Cargill as a non-subscribing employer because the Workers' Compensation insurance did not cover Espinoza for her injuries. Finally, Espinoza argues that the options Cargill provides its employees with respect to workplace injury medical coverage are illegal.
1. Evidence of Cargill's Insurance Policy
Espinoza argues that Cargill failed to demonstrate that it purchased a Workers' Compensation insurance policy. Cargill responds that it provided sufficient evidence, including (1) the affidavit of Cargill's Vice President Brenda Smith-Pirkle, who stated that Cargill's predecessor Excel became a Workers' Compensation subscriber in 2002, and provided coverage at the Friona plant; (2) the affidavit of the Friona Plant's Human Resources Manager, Margaret Renteria, who stated that Cargill provides Workers' Compensation insurance coverage for employees who desire it, as well as Plan coverage for those who do not[2]; (3) Espinoza's signed waiver *439 of Workers' Compensation insurance coverage, which states that she reviewed "the written Notice dated APRIL 15, 2002, that Excel now provides Workers' Compensation Insurance"; and (4) Workers' Compensation insurance policy excerpts, which reference "Cargill, Incorporated" rather than "Cargill Meat Solutions Inc.," and which Cargill concedes do not specifically show that Cargill insured the workers at its Friona Plant. Espinoza challenges the sufficiency of this evidence and argues that no one at Cargill ever informed her that Cargill offered Workers' Compensation insurance coverage or explained Workers' Compensation to her.
Espinoza relies on Morales v. Martin Resources, Inc., in which a Texas Court of Appeals reversed a grant of summary judgment in favor of an employer because the employer failed to provide evidence that it covered its employees under a Workers' Compensation policy. 183 S.W.3d 469, 473 (Tex.App.Eastland 2005, no pet.). In that case, a temporary employee sued his staffing company and his temporary employer, Martin Resources, Inc., for negligence, after injuring his hand. Id. at 470. Martin Resources, Inc. submitted (1) an affidavit of an underwriting specialist with an insurance company stating that during the time in question, Martins Resources, Inc. had Workers' Compensation insurance coverage; (2) an affidavit from a Martin Resources, Inc. plant manager which stated that Martin Resources, Inc. had Workers' Compensation insurance coverage when the employee injured his hand; and (3) a Workers' Compensation insurance policy, which insured "Martin Resource Management Corporation," rather than Martin Resources, Inc. Id. at 473. The Morales court found that, "[i]n the absence of any evidence explaining the relationship, if any, among these entities, the insurance policy presented by Martin Resources, Inc. created a fact issue as to whether Martin Resources, Inc. had workers' compensation insurance." Id. As such, "Martin Resources, Inc. failed to meet its summary judgment burden of establishing that it was covered by workers compensation insurance coverage at the time of Morales's injury." Id.
In response, Cargill directs us to Esquivel v. Mapelli Meat Packing Co., in which another Texas Court of Appeals affirmed a grant of summary judgment in favor of an employer in a case where an employee challenged the existence of the employer's Workers' Compensation plan. 932 S.W.2d 612, 613-14 (Tex.App.San Antonio 1996, writ denied). To prove coverage, the employer submitted an affidavit of a manager, which stated that at the time of the employee's injury, the employer's Workers' Compensation plan "was in full force and effect"; as well as an affidavit of an employee of the insurance company that underwrote the Workers' Compensation policy, stating that the employer was a subscriber. Id. at 615, 616-17. Because the employee "did not point out," nor did the Esquivel court find, "other evidence that controvert[ed] the factual assertions contained in" the employer's affidavits, the Esquivel court affirmed the grant of summary judgment in favor of the employer. Id. at 617.
We find Esquivel more analogous to this case. The Morales court reversed the district court's grant of summary judgment in favor of Martin Resources, Inc., citing existing fact issues. See 183 S.W.3d at 473. This implies that the employee in Morales offered proof that countered the affidavits produced by Martin Resources, Inc. In *440 contrast, Espinoza has not provided any evidence to counter the Smith-Perkle or Renteria affidavits, other than her assertion that no one from Cargill ever explained Workers' Compensation to her or informed her of its existence. Espinoza's lack of knowledge, however, cannot suffice to create a fact issue as to whether Cargill offered Workers' Compensation protection to its employees.[3] We thus find that Cargill provided sufficient evidence to conclude, as a matter of law, that Cargill had Workers' Compensation insurance.
2. Classifying Cargill as a Subscribing Employer
Espinoza argues that, assuming Cargill did purchase Workers' Compensation insurance, it never covered Espinoza with it, and thus Cargill is more properly characterized as a "non-subscribing" employer for purposes of TLC § 406.033. Cargill, however, is most fairly characterized as a subscribing employer. TLC § 406.033(e) provides that an employee may not waive "[a] cause of action described in Subsection (a)," and that "[a]ny agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable." (emphasis added). Subsection (a) of TLC § 406.033, in turn, refers to "an action against an employer who does not have workers' compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment." (emphasis added). Because TLC § 406.033(a) refers only to whether an employer has Workers' Compensation insurance coverage, and not to whether an individual employee has been covered by his or her employer's Workers' Compensation policy, the operation of TLC § 406.033(e)'s bar does not apply to Cargillan employer who has Workers' Compensation coverageirrespective of Espinoza's decision to opt-out.
3. Legality of Cargill's Options
Espinoza also argues that Texas labor law does not permit the three choices Cargill offers its employees. Workers such as Espinoza are always at liberty to decline their employer's Workers' Compensation insurance coverage. See TLC § 406.034(b) ("An employee who desires to retain the common-law right of action to recover damages for personal injuries or death shall notify the employer in writing that the employee waives coverage under this subtitle and retains all rights of action under common law."). Espinoza, however, interprets TLC § 406.034 as mandating that employees either retain the Workers' Compensation coverage provided by their employer, or retain their right to sue in tort for personal injuries, and contends that TLC § 406.034 does not permit a third option where an employee opts out of Workers' Compensation coverage and waives his or her right to sue in tort.
Reading TLC § 406.034 in conjunction with TLC § 406.033, however, demonstrates that Espinoza's "either or" argument is not a reasonable interpretation of Texas's Workers' Compensation Act as a whole. See generally Tex. Workers' Comp. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000) ("[W]e do not view disputed portions of a statute in isolation.") (citation omitted). While it is true that TLC *441 § 406.034 states that an employee may opt out of Workers' Compensation by providing his or her employer with his or her intention to retain the right to sue in tort, the plain terms of TLC § 406.033 allow the same employee to waive his or her right to sue, so long as the employer has Workers' Compensation insurance. Therefore, Espinoza was at liberty to waive both her right to sue in tort and Cargill's Workers' Compensation coverage without her waiver becoming "void and unenforceable." TLC § 406.033(e). We thus find that Espinoza's waiver was valid and enforceable.
4. Espinoza's Other Arguments
Espinoza argues that the legislative history behind the passage of TLC § 406.033(e), when read in conjunction with the rest of Texas's Workers' Compensation Act, demonstrates the Texas Legislature's intent to prohibit the sort of waiver that Cargill procured from Espinoza. The Texas Supreme Court, however, has stated that a statute's "enacted language is what constitutes the law, and when a statute's words are unambiguous and yield a single inescapable interpretation, the judge's inquiry is at an end." Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006) (citation omitted). The operation of TLC § 406.033(e), and its interplay with TLC § 406.034, is unambiguous. We thus find that Espinoza's legislative history argument fails.
Espinoza also makes the unsupported contention that Cargill only provided "a minimal policy which covers no one." She uses this assertion to support her argument that Cargill "funnels" new employees into its Plan in a scheme to make an end run around Texas's Workers' Compensation Act. Espinoza, however, offers no evidence to demonstrate that Cargill bought only a "minimal policy." We will not give credence to this unsupported assertion.
In several instances, Espinoza seems to argue that she was not bound by her signed waiver because no one at Cargill explained it to her. As noted by Cargill, Texas law charges a person with knowledge of the contents of a document he or she signs. See In re Lyon Fin. Servs., Inc., 257 S.W.3d at 232. To the extent that Espinoza makes this argument, it lacks merit.
Finally, Espinoza argues that Cargill's system "seriously endanger[s] the Workers' Compensation system in Texas." We fail to see how this is the case. By operation of Texas's Workers' Compensation law, Espinoza was covered by Cargill's Workers' Compensation program, and would have remained covered had she not signed a waiver within five days of starting her employment. Because Cargill's employees remain covered by Workers' Compensation as long as they choose to be, Cargill's system is entirely consistent with Texas's Workers' Compensation Act.
B. The Waiver in the CBA was Valid, Thus Barring Espinoza's Suit
Although the district court did not address this issue, Espinoza argues that the Union's agreement with Cargill in the CBA, stating that "[a]ny and all claims, causes of action or controversy arising out of or otherwise related to on the job ... injuries shall be covered and administered pursuant to ... [the] Plan," also violates TLC § 406.033(e). Espinoza asserts that Cargill would breach the CBA if it covered her with Workers' Compensation insurance. According to Espinoza, because Cargill was contractually obligated not to cover its employees with Workers' Compensation insurance, the CBA's waiver of Union employees' right to sue was void as a contractual provision that violates the law.
*442 In general, unions are the "exclusive representatives of all the employees in [a] unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment," 29 U.S.C. § 159(a), and are "allowed a great deal of flexibility in serving [their] bargaining unit[s] during contract negotiations." Prudential Ins. Co. of Am. v. NLRB, 661 F.2d 398, 400 (5th Cir.1981). "This flexibility includes the right of the union to waive some employee rights, even the employee's individual statutory rights." Id. (citing Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972 (1967)); see also Cupit v. Walts, 90 F.3d 107, 109 (5th Cir.1996) (noting that a union has the authority to bargain away an employee's right to sue for workplace injuries). "Courts which have invalidated a clear contractual waiver of an employee's individual statutory right have done so only when the waived right affects the employee's right to exercise his basic choice of bargaining representative." Prudential Ins. Co. of Am., 661 F.2d at 400-01 (citing NLRB v. Magnavox of Tenn., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974)).
The Union, as Espinoza's "exclusive representative," 29 U.S.C. § 159(a), had the authority to waive her right to sue, so long as Texas law permitted the waiver. See Cupit, 90 F.3d at 109. As discussed above, Espinoza's simultaneous waiver of both Cargill's Workers' Compensation protection and her right to sue in tort was valid and enforceable under TLC § 406.033. Because Espinoza was at liberty to waive her right to sue in tort, the Union, through the CBA, could also do so on her behalf. We therefore find that the CBA provision mandating that the Plan cover and administer all workplace injuries was valid and enforceable.
C. Section 301 of the LMRA Preempts Espinoza's Suit
Espinoza also argues that the district court erred when it held that § 301 of the LMRA preempts her claims because they are neither "inextricably intertwined" with the terms of the CBA, nor do they require interpretation of the CBA. Section 301 of the LMRA does not specifically address preemption; rather, it provides federal jurisdiction for suits involving CBA disputes.[4] The Supreme Court, however, has held that "§ 301 expresses a federal policy that the substantive law to apply in § 301 cases is federal law, which the courts must fashion from the policy of our national labor laws," Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (citation and internal quotation marks omitted), and that the "dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the areas covered by the statute [so that] issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy." Id. (quoting Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)). As noted by the Allis-Chalmers Court, "[a] state rule that purports to define the meaning or scope of a term in a contract suit therefore is pre-empted by federal labor law." Id. at 210.
The Allis-Chalmers Court, however, went further, stating "[i]f the policies that animate § 301 are to be given their proper range, ... the preemptive effect of § 301 must extend beyond suits *443 alleging contract violations." Id. In other words:
"[Q]uestions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort."
Id. at 211, 105 S.Ct. 1904. Noting that "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301," id., the Supreme Court defined the contours of § 301 preemption, holding that "state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements." Id. at 213, 105 S.Ct. 1904. The Supreme Court then directed courts to inquire as to "whether evaluation of [a] tort claim is inextricably intertwined with consideration of the terms of the labor contract." Id.
We have elaborated on these general principles in the context of a negligence suit by an employee against an employer, holding that "such preemption occurs when a decision on the state claim is inextricably intertwined with consideration of the terms of the labor contract or when the application of state law to a dispute requires interpretation" of a CBA. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir.1996) (per curiam). We also held that "[t]o determine if adjudicating the claim requires interpreting the terms of a CBA, a court is required first to analyze the elements of the tort at issue." Id. In Richter, a trucker permanently injured himself in a slip and fall accident while working, and sued his employer for negligence and gross negligence. Id. After noting that "[t]he CBA at issue provide[d] the exclusive remedy for settling disputes involving negligence on the part of the Company," and that it also stated that "in any proceeding concerning an injury... sustained in the course of employment... the Company further agrees to waive its common law defenses," we found that "the application of state law requires interpretation of the" CBA, and thus held that § 301 of the LMRA preempted the employee's negligence claim. Id. at 97-98.
Our decision in Navarro v. Excel Corp., 48 Fed.Appx. 481 (5th Cir.2002) (per curiam) (unpublished), also carries significant persuasive force. The plaintiff in Navarro injured her arm while working, and sued her employer for negligence. Id. at *1. We were presented with the question of "whether adjudicating [the employee's] negligence claim would require a court to interpret or apply the terms of the CBA." Id. We noted that "the CBA requires [the employer] to create safety and grievance committees, allow paid rest periods, and give employees protective equipment," and that "[p]rocedurally, the CBA provides compensation and remedial procedures, including arbitration, to resolve workplace injury claims." Id. Although the employee did not "allege a breach of the CBA, a court still would have to determine the scope of [the employer's] duties and [the plaintiff's] remedies under the CBA in order to define the scope of [the employer's] legal duty for purposes of a negligence claim." Id. Therefore, we held that § 301 of the LMRA preempted the employee's suit. Id.
Here, Espinoza brought Texas state law claims for negligence, requiring as assessment of (1) Cargill's legal duty, (2) whether Cargill breached that duty, and (3) whether damages were proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).[5]*444 The CBA acknowledges Cargill's responsibility to provide a safe workplace, correct unsafe conditions, institute a safety committee, and provide a grievance committee. Additionally, the CBA details the procedure and scope of the remedies available to Cargill employees injured while working. Because "a court would still have to determine the scope" of Cargill's dutiessuch as its duty under the CBA to provide safety committees and ameliorate unsafe conditionsand Espinoza's "remedies under the CBA[,] in order to define the scope of" Cargill's "legal duty for purposes of a negligence claim," it follows that Espinoza's claims will involve an interpretation of the terms of the CBA. See Navarro, 48 Fed.Appx. 481, at *1.
Espinoza's arguments to the contrary are unavailing. The CBA does not "merely acknowledge[] Cargill's duty to provide a safe workplace for its employees"; instead, it helps define that duty by mandating such things as plant inspections, safety committees for each shift, and the provision of safety equipment. Likewise, Espinoza is incorrect when she posits that "[t]he CBA has no bearing on Cargill's duties as an employer in this situation"; rather the CBA "imposes duties" on Cargill. Id. (emphasis added). The question is not, as Espinoza suggests, whether a duty "emanates from Texas law" or from contract; it is whether "state-law rights and obligations ... exist independently of private agreements." Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904. Because the duty giving rise to Espinoza's state law negligence claim, as well as her available remedies for Cargill's alleged breach of that duty, will involve an interpretation of the CBA, we hold that § 301 of the LMRA preempts Espinoza's state law claims.
D. Espinoza's Failure to Follow the Claims Procedure under the Plan and the CBA Bars her Suit
Espinoza argues that the district court erred when it held that her failure to follow the claims procedure in the Plan or the arbitration provision of the CBA precludes her suit. First, Espinoza reiterates her argument that the pre-injury waiver of her right to sue in the CBA is void and unenforceable. She then notes that the Plan only addresses claims for Plan benefits, and because she seeks damages, she argues that the Claims Procedure does not apply. Finally, Espinoza argues that she no longer worked for Cargill when she filed her suit, and thus the Claims Procedure could not protect her.
Espinoza's arguments are without merit. We have determined that her waiver was valid, and her election into the Plan meant that she was entitled only to Plan benefits to remedy her injury. Her choice also had the effect of mandating that the Plan, the CBA, and the Claims Procedure govern any grievances Espinoza raised concerning the administration of the Plan's benefits.
As such, Espinoza's contention that she does not seek Plan benefits through her cause of action is immaterial; Espinoza had no legal right to anything except Plan benefits. Additionally, her argument that she no longer has access to the Claims Procedure is misleading. As noted by Cargill, Espinoza's alleged cause of action accrued while Cargill employed her, making her subject to the procedural requirements of the Plan and the CBA, and her termination six months later affected neither *445 her rights nor her procedural requirements, and certainly did not affect the waiver of her right to sue in tort. Because the CBA provides the only mechanism for adjudicating her claim, and because Espinoza concedes that she did not avail herself of the Claims Procedure, we find that Espinoza's claims are precluded.
IV. CONCLUSION
Espinoza waived her right to sue Cargill for work-related injuries, and under Texas labor law, her waiver is valid and enforceable. Because the Union also had the authority to waive her right to sue, the Union's waiver in the CBA is also valid and enforceable. Additionally, § 301 of the LMRA bars Espinoza's state law tort claim because adjudication of Cargill's duty and Espinoza's remedies will involve interpreting the terms of the CBA. Finally, Espinoza's suit is barred because she failed to exhaust the Claims Procedure. For these reasons, we affirm the district court's grant of summary judgment in favor of Cargill.
AFFIRMED.
NOTES
[*] District Judge of the Northern District of Texas, sitting by designation.
[1] Cargill succeeded Excel through a name change. The parties do not dispute that all relevant provisions are one and the same and are fully applicable to the instant litigation.
[2] Espinoza takes issue with Renteria's reference to Workers Compensation "benefits" rather than a reference to an insurance policy, arguing that "evidence of a policy in this matter can only be inferred or assumed from Ms. Renteria's affidavit." Renteria's affidavit, however, very clearly asserts that Cargill provided a Workers' Compensation insurance plan to its employees, regardless of the terminology she adopted. We will therefore not draw Espinoza's suggested distinction between "policy" and "benefits."
[3] Additionally, Espinoza's assertion is belied by the waiver she signed, which states that she "reviewed . . . the written Notice dated APRIL 15, 2002, that Excel now provides Workers' Compensation Insurance under the Texas Workers' Compensation Act (the Act), and . . . understand[s] that [she] may make a choice as to the coverage [she] desire[s]." Texas law charges a person with knowledge of the contents of a document he or she signs. See In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 232 (Tex.2008).
[4] "Suits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 29 U.S.C. § 185(a).
[5] Espinoza provides no analysis regarding the elements of her gross negligence claim, save for mentioning that she included it in her complaint. We thus find that she waived any arguments as to § 301 of the LMRA's preemption of this claim. FED. R.APP. P. 28(a)(5); see Chevron USA, Inc. v. Aker Maritime, Inc., 604 F.3d 888, 895 n. 6 (5th Cir.2010) (citing L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir.1994)). | 01-03-2023 | 10-05-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1714661/ | 63 N.W.2d 801 (1954)
WILLARD
v.
CIVIL SERVICE BOARD OF SIOUX FALLS et al.
No. 9421.
Supreme Court of South Dakota.
April 7, 1954.
Gene E. Pruitt, Sioux Falls, for plaintiff and appellant.
Thomas J. Barron, Sioux Falls, for defendants and respondents.
RUDOLPH, Judge.
The City of Sioux Falls has established a Civil Service System for its municipal employees, policemen and firemen and has appointed a Civil Service Board. SDC Supp. 45.0201(103). Appellant, William Willard, was discharged from the police force by the Chief of Police and he appealed to the Civil Service Board, which affirmed his discharge. He then had the proceedings of the Board reviewed by the circuit court under a writ of certiorari. The circuit court denied appellant any relief and affirmed the action of the Board.
The proceedings before the circuit court being in certiorari the review by that court extended only to determine whether the Board acted without jurisdiction or in excess of its jurisdiction. SDC 37.0401 and SDC 37.0407. Applying these statutes this court said in the case of State ex rel. Grey v. Circuit Court of Minnehaha County, 58 S.D. 152, 235 N.W. 509, 511, "* * * certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding, at least in the absence of fraud, or willful and arbitrary disregard of undisputed and indisputable proof wherein credibility of witnesses is not involved." *802 We have considered the entire record including the transcript of the testimony. It is not contended the Board was without jurisdiction to review the action of the Chief of Police, or that the proceedings invoking this jurisdiction were illegal or void. The contention seems to be that there was an entire lack of evidence upon which the Board could determine that the Chief of Police discharged appellant "in good faith for cause," which is an essential for disciplinary action under the ordinance. Briefly stated, there is evidence supporting the following: Willard while a member of the police force obtained other employment for a period of 8 hours each day. His regular employment as a policeman was from 10 o'clock A.M. to 6 o'clock P.M. each day except Sunday. His outside employment was from 11 P.M. to 7 A.M. If a member of the police force wished to augment his salary with some outside work he was required to file an application with the Chief of Police stating the nature of outside work and the time that would be required. Willard had made such application in June 1952 for work which involved 4 hour's time each day four days a week. This application had been granted. However, it appears that he made no request to be permitted to perform the outside work involved in this dispute. Upon hearing that he was performing such work the Chief of Police called him in and advised him that he could not approve this work which required 8 hours a day in addition to his regular police work and told him that he could have until the next evening to make up his mind which job he wanted. Willard did not contact the Chief until the day after the time within which the Chief gave him to make up his mind and then stated that he had decided to quit the outside work in about two weeks after breaking in another man. The Chief did not approve of this arrangement and so advised Willard but Willard insisted on going ahead with the outside work for the period indicated, whereupon he was discharged by the Chief. Under Rule 17 of the Rules governing the Sioux Falls Police Department a ground for disciplinary action is a failure to comply with any order relating to the position or duties of any member of the Police Department.
The mere statement of this evidence discloses that the Board acted neither fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof. We conclude that on this issue the Board regularly pursued its authority.
Appellant also contends that he was denied a fair hearing before the Board. This contention is based upon the refusal of the Board to permit the introduction of certain evidence offered by appellant. Without determining the correctness of the ruling of the Board on the offered evidence, we hold that such ruling of the Board cannot be reviewed in certiorari. The offered evidence did not relate to any jurisdictional fact, but was offered to dispute the Chief's testimony concerning a member of the force accepting outside employment. At most it would have raised an issue of fact for the determination of the Board, and there is no hint in the record that the offered testimony was rejected arbitrarily or in bad faith. Were we to consider whether the Board rightly or wrongly refused to consider this offered testimony we would be converting a proceeding in certiorari to an appeal proceeding on this issue. As stated above, in this state the review on certiorari is limited to a determination of whether the Board acted without jurisdiction or in excess of its jurisdiction. This limitation upon the review of the proceeding by the circuit court precluded that court from reviewing the rulings of the Board upon the admission or rejection of testimony. 14 C.J.S., Certiorari, § 151(c) page 295.
We have considered other assigned error and find it without merit.
The judgment appealed from is affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3856471/ | Argued October 10, 1940.
This action was brought by plaintiff to recover the "accidental death" benefits provided for in a policy of insurance issued by defendant to plaintiff's mother, Hattie Jackson, the insured, who died August 13, 1935. These benefits were payable in the event "of the death of the insured, resulting directly and independently of all other causes through external, violent and accidental means, provided death of the insured occurs within ninety (90) days from date of accident, provided the company shall not be liable for the payment of any sum whatsoever . . . . . . if such injury be sustained at a time when the insured is insane or not in the present full possession and normal exercise of all his faculties."
Plaintiff's statement of claim averred that Hattie Jackson died on August 13, 1935, "as a result of an intracapsular fracture of the left femur, caused by a fall in her home . . . . . . which fall was accidental, and resulted in her death within ninety days after the accident." The affidavit of defense denied that the insured died "directly and independently of all other causes through external, violent and accidental means"; it averred, on the contrary, that the insured died as a result of myocardial degeneration and bronchial pneumonia; *Page 118
it further alleges as new matter, the execution by the plaintiff, of an instrument releasing defendant from any and all claims under the policy. Plaintiff's answer to new matter admitted the execution of the instrument but averred that it was obtained by the fraudulent representation of defendant's agents. The case proceeded to trial upon these issues.
Plaintiff's testimony showed that she and her mother had lived in the same house for eight years. During that entire period there was a hole in the middle of the kitchen floor. The hole was approximately ten inches by three inches in area and existed by reason of the absence of a portion of the floor boards. On the day of the injury, July 14, 1935, plaintiff and her mother were working in the kitchen. Plaintiff testified that as she stood looking out of a window in the kitchen, about ten or twelve feet from her mother, she heard her fall and found her on the floor, and that was all she knew about it. Such was the substance of plaintiff's evidence on cross-examination covering her testimony on the point given on direct examination as follows: "Q. . . . . . . Mrs. Johnson, did you notice just how your mother caught in the floor, into the hole in the floor? A. She was caught by the front of her foot tripped over this floor. Q. Did she fall to the floor? A. Yes, she fell to the floor. Q. Did you see her fall? A. Well, I wasn't looking right at her. I turned around at the time,and, of course I heard the crash — she was going down then —
and I ran to her to pick her up, and she said, `No, let me lay. I am sick in my stomach.'" The insured was found fully conscious but suffering from two fractures of the left femur. On July 17, the insured was removed to a hospital. There she was placed in a cast and confined to bed. Approximately five or ten days later, while confined to bed in the hospital, insured contracted bronchial pneumonia and died on August 15, 1935. Plaintiff testified the insured was fifty-six years of age. *Page 119
Dr. Shaner testified that he was called to see the insured on July 15, 1935, and again on July 17, 1935, and that his diagnosis was a probable fracture; that he made no other physical examination of her at the time, but received from her a history of her present condition — to wit, that she had fallen in the kitchen; that he had ordered her removed to the hospital when he made his first visit on July 15, but she did not go, and that when he returned on July 17 he insisted upon her being removed to the hospital. That is all the testimony which was produced relative to the occurrence of the accident.
The medical testimony was supplied by three other physicians. Dr. Gelehrter testified that he X-rayed the insured and his findings revealed two fractures of the left hip, an inter-trochanteric fracture and an intracapsular fracture of the left leg. He further testified that an injury of some sort was necessary to produce that type of fracture, "some sort of an accident or violence or collision."
Dr. David Finkelstein, called on behalf of plaintiff, testified that he was an interne at the Philadelphia General Hospital at the time of insured's admission thereto; that he examined the insured and the X-ray pictures of insured's left femur; and that the insured was under his care during the entire time that she was in the hospital. He testified that the direct cause of insured's death was due to her fracture or her fractures. In response to further examination, Dr. Finkelstein stated that the surgical diagnosis of insured disclosed that "there was some degree of heart disease present, probably on an arteriosclerotic basis". He further testified that the insured developed bronchial pneumonia due to the fracture by reason of the fact that the patient was an elderly woman and was compelled to be on her back. It was his opinion that the primary cause of the insured's death was the injury to her hip, contributory causes being latent syphilis, arteriosclerotic heart *Page 120
disease and bronchial pneumonia. He attributed no effect to the latent syphilis. He explained the effect of the heart disease by stating that if the insured had not suffered the fracture, she probably would have "continued to navigate" in similar circumstances, but the heart disease was certainly aggravated by the fracture and by confinement to bed. He attributed the bronchial pneumonia to her confinement in bed.
Dr. Fishback, defendant's medical witness, testified that he performed an autopsy on the insured, and that his findings disclosed an intracapsular fracture of the femur, myocardial degeneration, chronic splenitis; congestion and nephrosclerosis of the kidneys; slight degeneration of the liver; chronic inflamed gall bladder and gall stones; and luetic aortitis. He testified that the chronic splenitis did not contribute to the cause of death, nor would he say that the slight degeneration of the liver contributed to the cause of death. In his opinion, the cause of death was the intracapsular fracture of the femur, pulmonary oedema, luetic aortitis being the contributing causes. Explaining the relationship of these conditions, he testified that he did not believe leutic aortitis (syphilitic condition of the large vessel of the heart) was the immediate cause of insured's death, nor did he believe that the heart trouble was of such an intense grade as to have produced oedema at that particular time and place. In this particular case, he testified, the intracapsular fracture of the femur precipitated the pulmonary oedema, which alone may produce death.
With reference to the execution of the release by plaintiff to the defendant company, J. Madison Moore, superintendent of the Weekly Health and Accident Department, testified that he explained the contents of the release and paid plaintiff one hundred and twelve dollars before she executed it. Plaintiff, however, testified that she signed two papers, the contents of which she could not and did not read; that the papers were *Page 121
not read to her and that the representative had explained to her that the payment then made was part payment and that she could get more than the one hundred or one hundred and twelve dollars.
Upon this testimony, the case was submitted to the jury by the trial judge and verdict was returned in favor of the plaintiff. Defendant's motions for a new trial and for judgment n.o.v. were overruled, and from the entry of judgment on the verdict, this appeal was taken.
The contention made by appellant on appeal is that the verdict is opposed to the evidence, there being no evidence of an "accidental death", nor any evidence that the insured's death resulted "directly and independently of all other causes through external, violent and accidental means."
A careful review of the testimony convinces us that the question of whether the insured suffered a fracture of the hip as a result of an accidental fall was properly submitted to the jury. Viewing the evidence in the light most advantageous to the plaintiff and giving her the benefit of every reasonable inference of fact by reason of the jury's verdict, we cannot say that the jury's finding was improper. From the testimony of the plaintiff relevant to the circumstances of the insured's mishap, it may even be inferred that insured did trip in the hole in the kitchen floor, and that the plaintiff got some glimpse of the occurrence. Aside from simply stating that the insured tripped, plaintiff testified that she turned around, heard the crash, and saw her mother "going down then". It further appears from the evidence that insured was fully conscious when the plaintiff came to her assistance a moment later.
Under these circumstances, the cases of Kelly v. PrudentialIns. Co., 334 Pa. 143, 6 A.2d 55 and Pomorskie v. PrudentialIns. Co. of America, 318 Pa. 185, 177 A. 783, cited therein, are controlling on the question of insured's accidental fall. In the Kelly case, the insured *Page 122
died from a fall sustained as she descended a flight of steps leading down to the unlighted cellar in her home. There were no eye-witnesses to the occurrence. She was found at the foot of the steps. Near her, was a commode which was broken in pieces and covered with blood stains. Mr. Justice MAXEY, in permitting the verdict for the plaintiff to stand, said, p. 148: ". . . . . . There was evidence from which it could be legitimately inferred that the fall which Mrs. Daley sustained was the result of a misstep which she made in the dark on the stairway, without giving any consideration to the afterwards excluded declaration made to appellee that this was what occurred. It is true that appellee's evidence afforded also the contrary inference, that the fall was the result of an attack of vertigo, but this rested solely on the testimony of a physician, reading from his hospital record, that he had been so informed by the insured while seriously afflicted. Such conflict as there was, was for the jury to reconcile, as by its verdict it did: (citing cases). The case is not comparable to DeReeder et al., v. Travelers Ins. Co.,329 Pa. 328, 333, 198 A. 45, where `there were no facts from which the jury could infer legitimately to the exclusion of otherinferences equally plausible that the insured's death resulted from an accident.' There was indeed stronger evidence in favor of an accidental cause of death than in Wainstein v. Equitable LifeAssurance Society, 318 Pa. 428, 178 A. 502, and Pomorskie v.Prudential Insurance Co. of America, 318 Pa. 185, 177 A. 783, in which latter case the jury was permitted to infer merely from thefall which the insured sustained, without more, that it was theresult of an accident." (Italics supplied).
In considering the second question raised by appellee, to wit, whether the death of the insured resulted directly and independently of all other causes through external, violent and accidental means, we have carefully examined the relevant medical testimony. Dr. Finkelstein, for plaintiff, and Dr. Fishback for *Page 123
defendant, both testified that the direct cause of the insured's death was due to the fractures sustained in the fall. Pneumonia and heart disease were regarded by both as contributory causes. Dr. Finkelstein explained that the fractures aggravated the heart disease and that pneumonia resulted from the insured's being confined in bed by reason of the fracture. Dr. Fishback explained that the heart condition was not so intense as to have produced pulmonary oedema at the time and place, but rather that oedema was precipitated by the intrascapular fracture of the femur.
The court below instructed the jury that if it found "from the evidence produced here that the efficient and proximate cause of the death of Hattie Jackson was the accident she sustained, the fracture of the femur, the plaintiff would be entitled to a recovery under the terms of the policy." The lower court, however, refused defendant's fourth point for charge to the effect that "if the death of the insured resulted partly from illness and partly from accidental means, then the plaintiff is not entitled to recovery". This refusal was covered by appellant's second assignment of error. The court also declined defendant's fifth point for charge, which was as follows: "5. If illness such as heart disease, or myocardial degeneration, or bronchial pneumonia, or the like, in any manner contributed to the death of the insured, even though the insured suffered an accident which might have contributed to death, then your verdict must be in favor of the defendant." This refusal constitutes appellant's third assignment of error.
The terms of the policy in the instant case provided for the payment of the accidental death benefit in the event "of the death of the insured, resulting directly and independently of all other causes through external, violent and accidental means." The effect of this restrictive clause alone in a policy of insurance has been settled in this State by a series of decisions, *Page 124
of which the leading one is Kelley v. Pittsburgh Casualty Co.,256 Pa. 1, 100 A. 494, cited with approval in later cases. Distinguished from that case are those cases which involve the construction of policies of insurance containing an additional restrictive clause avoiding payment of the indemnity where "death of the insured results directly or indirectly from disease or from bodily or mental infirmity". Representative of this line of cases are Ewing v. L.A.S. of U.S., 320 Pa. 577, 182 A. 369;Arnstein v. Metropolitan L. Ins. Co., 329 Pa. 158, 196 A. 491;Lucas v. Metropolitan L. Ins. Co., 339 Pa. 277, 14 A.2d 85; RealEstate Trust Co. of Phila. v. Metropolitan L. Ins. Co., 340 Pa. 533, 17 A.2d 416. The distinction that exists between the two types of policies has been clearly set forth in the last cited case wherein all of the foregoing cases have been appropriately classified so as to establish the distinguishing rules of construction.
The rule of construction established by the second class of cases is as follows: Where the liability of the insurance carrier is limited by both restrictive clauses, it is not sufficient for the insured or his beneficiary in case of death to establish a direct causal relation between the accident and the death or disability. He must show that the resulting condition was causedsolely by external and accidental means, and if the proof points to a pre-existing infirmity or abnormality which may have been a contributing factor, the burden is upon him to produce further evidence to exclude the possibility.
The rule established by the Kelley case, however, is as follows: Where the liability of the insurance carrier is limited by the one restrictive clause referred to, that exception in the policy will not relieve the insurer if the accident is the moving, sole and proximate cause of the death, even though a pre-existing disease or physical infirmity be a necessary condition to the result. In that case the court below adopted the following quotations *Page 125
as determinative of liability: "If disease, while existing, be but a condition and the accident the moving, sole and proximate cause of the death, the exception in the policy will not relieve the insurer for death so caused'". (p. 6) And, "`The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause. In such case, disease or low vitality do not arise to the dignity of concurring causes, but . . . . . . appear rather as the passive allies of the agencies set in motion by the injury. . . . . . Where accidental injury aggravated a disease, and thereby hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death. . . . . . The phrase "resulting directly, independently and exclusively in death," refers to the efficient or, as some courts speak of it, the predominant cause of death . . . . . . the language of this policy does not mean that there shall be no liability in case death results from the aggravation of a pre-existing disease'". (p. 7). The Supreme Court affirmed without opinion. See, Real Estate Trust Co. of Phila. v.Metropolitan L. Ins. Co., supra.
In the instant case, the evidence clearly supported the facts that the insured was at least fifty-six years of age at the time of her death, and that she suffered in some degree from arteriosclerosis which is present in all persons past middle age to some extent. Plaintiff's medical testimony disclosed that the insured had some degree of heart disease, on an arteriosclerotic basis, aggravated by the fracture, in the absence of which she would probably have "continued to navigate". From this evidence, the jury could properly find that insured's heart disease may have been a condition, and even a necessary condition, as defined by law, of her death, but such a finding would not preclude the additional *Page 126
finding that the accidental fall was the proximate cause of her death.
Likewise, the evidence is clear from the testimony of both plaintiff's and defendant's medical witnesses that the insured had developed pneumonia as a result of being confined to bed by reason of the fractures she had sustained, and that pneumonia would not have occurred but for the fractures.
In Dale v. Stand. Accident Ins. Co., 307 Pa. 398, 161 A. 307, where a policy similar to the one in the instant case was involved, the insured sustained a fracture on January 16, 1930, developed pneumonia and died on March 20, 1930. Affirming the judgment on the verdict for the plaintiff, the Supreme Court said, ". . . . . . the proximate cause of death was, as the jury found, the accidental injury received on January 16, 1930. `There was no break in the continuity of the consequences of the injury, and no intervening cause in the resulting disability': Farner v.Mass. Mutual Accident Association, 219 Pa. 71, 76."
We are of the opinion that the evidence was properly submitted to the jury under a correct charge as required by the terms of the policy involved in this case.
The assignments of error are dismissed and judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858001/ | Argued May 2, 1927.
We have held a number of times that the grant of a certificate by the Public Service Commission approving the exercise of the power of eminent domain under the provisions of the Act of May 21, 1921, P.L. 1057, does not determine the right of the applicant company to condemn the lands it desires to appropriate or the validity of the subsequent proceedings by eminent domain. It evidences only the preliminary approval of the regulatory body to whom general regulation of the service of such companies is entrusted by the Public Service Company Law, and is a finding that the exercise of the power, if it exists, is necessary for the *Page 164
convenience, accommodation or safety of the public: Hege v. Public Service Commission, 86 Pa. Super. 558, 561; Reiber v. Public Service Commission, 83 Pa. Super. 507,509; Dickson v. Public Service Commission, 89 Pa. Super. 126,137; Wilson v. Public Service Commission, 89 Pa. Super. 352,358.
The fact that the Commission may have considered the right of such company to institute such proceeding and upheld it does not adjudicate that right or give such conclusion the force of a judicial decision. "In granting a certificate of public convenience the commission confers no new chartered powers on any company. It takes away from no [person or] company any right or power then legally existing. As it is not a judicial body but an administrative one, its order, made from the standpoint of the public convenience solely, cannot be made the foundation for the judicial determination of what franchises do or do not belong to any corporation interested. Such matters must be determined as heretofore in a legal proceeding properly instituted in the courts for that purpose": Bethlehem City Water Co. v. Public Service Commission, 70 Pa. Super. 499, 501.
Of course the Commission will not grant a certificate to a company where its exercise would be manifestly a violation of law: Relief Electric L.H. P. Co.'s Petition, 63 Pa. Super. 1,16; but where the preliminary question of the right to condemn property is raised before the Commission its conclusion on that point if favorable to the right, becomes functus officio
as soon as it finds that the exercise of such power would be for the convenience, accommodation or safety of the public, and has no effect on the court proceedings that any parties interested may set in motion to adjudicate the right of the applicant to appropriate the property in question by eminent domain. *Page 165
It is only where such preliminary question is decided by the Commission adversely to the applicant and the certificate of public convenience is refused on the ground that the applicant has not the power to condemn, that its action upon such preliminary question of law will be reviewed by this court. See York Haven W. P. Co. v. Public Service Commission,87 Pa. Super. 213; reversed in 287 Pa. 241.
As the only ground of complaint in this appeal is a denial of the right of the intervening appellee to condemn a right of way over the property of the appellant, and the finding of the Commission that such right, if it exists, would be for the convenience and accommodation of the public is not questioned, and is amply supported by the evidence, it follows that the appeal must be dismissed and the order of the Commission affirmed; and it is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/217162/ | 645 F.3d 553 (2011)
NOKIA CORPORATION, Plaintiff-Appellee,
v.
INTERDIGITAL, INC., InterDigital Communications, LLC, and InterDigital Technology Corporation, Defendants-Appellants.[*]
Docket No. 10-1358-cv.
United States Court of Appeals, Second Circuit.
Argued: March 7, 2011.
Decided: May 23, 2011.
*555 Patrick J. Flinn, (Thomas J. Parker, Janice A. Christensen, on the brief), Alston & Bird LLP, New York, NY, for Plaintiff-Appellee.
Gideon A. Schor, (Joshua A. Plaut, on the brief), Wilson Sonsini Goodrich & Rosati, Professional Corporation, New York, NY, for Defendants-Appellants.
Before: WALKER, B.D. PARKER, and HALL, Circuit Judges.
B.D. PARKER, JR., Circuit Judge:
InterDigital, Inc. (along with two affiliated companies) appeals from an order of the United States District Court for the Southern District of New York (Batts, J.) denying its motion, made after a preliminary injunction was vacated by this Court, to recover damages against an injunction bond posted by Nokia Corporation. InterDigital's main contentions are that the district court incorrectly concluded that the damages sought were not proximately caused by the injunction and that, in deciding this issue, the district court should have applied a presumption in favor of recovery against the bond. We conclude that both of these contentions have merit. However, we find that the district court did not resolve InterDigital's motion with sufficient clarity to permit meaningful appellate review. Therefore, we vacate the order and remand for reconsideration and clarification.
BACKGROUND
In September 2007, in response to a complaint filed by InterDigital alleging that Nokia had infringed certain of its patents, the United States International Trade Commission ("ITC") initiated an investigation. Months earlier, InterDigital had filed a complaint with the ITC against Samsung Electronics Co., Ltd., and two of its affiliates, making similar allegations, also prompting an ITC investigation. In October 2007, in response to a motion by Nokia, the ITC consolidated its investigations involving Nokia and Samsung. In December 2007, Nokia moved to stay the consolidated investigation as to Nokia on the ground that, pursuant to a 1999 agreement between Nokia and InterDigital, the two entities were required to arbitrate the dispute. In January 2008, the ITC denied Nokia's motion for a stay on the ground that its conduct in the ITC proceedings, and in earlier related litigation, evidenced an intention to litigate rather than arbitrate the dispute in question.
The following month, Nokia sued InterDigital in the Southern District of New York. Specifically, Nokia sought to compel InterDigital to arbitrate the question of whether Nokia had licenses to the patents in question; to enjoin InterDigital from participating in the ITC proceedings against Nokia pending arbitration; and, in the alternative, to obtain a declaratory judgment that Nokia held valid licenses to the patents.
In March 2008, the district court granted Nokia's motion for a preliminary injunction and ordered InterDigital to stay or terminate the ITC proceedings against Nokia, and to arbitrate the infringement claim with Nokia. As a condition of obtaining the injunction, the court required Nokia to post a $500,000 bond. See Fed. R.Civ.P. 65(c) ("The court may issue a preliminary injunction or a temporary restraining *556 order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.").
InterDigital appealed the preliminary injunction to this Court, and we vacated it. Nokia Corp. v. InterDigital, Inc., Fed. Appx.(2d Cir.2008) (summary order). We concluded that Nokia, through repeated, intentional resort to the judicial process to resolve questions about the scope of the patents and licenses in question, had waived its right to arbitrate those questions. We remanded the case to the district court, which dismissed Nokia's complaint in its entirety. Nokia Corp. v. InterDigital, Inc., No. 08 Civ. 1507, 2009 WL 585848 (S.D.N.Y. Mar. 5, 2009).
During the period when the preliminary injunction was in place, Nokia and InterDigital undertook to comply with it. Nokia initiated arbitration proceedings with InterDigital, and InterDigital discontinued the ITC proceeding against Nokia and separately pursued its claims against Samsung, which were ultimately resolved. InterDigital alleges that it incurred substantial legal fees and expenses in connection with its effort to comply. Consequently, after the district court dismissed Nokia's complaint, InterDigital moved to recover against the injunction bond.
Mainly, InterDigital sought to recover attorneys' fees and expenses incurred in moving to stay the ITC proceedings, preparing to arbitrate with Nokia, and deconsolidating the Samsung and Nokia ITC Proceedings. InterDigital also sought to recover allegedly duplicative costs incurred as a result of litigating separate proceedings against Nokia and Samsung. The amount sought by InterDigital exceeded the face amount of the bond.
In March 2010, the district court denied InterDigital's motion in a one-paragraph order which stated, in its entirety:
On April 3, 2009, Defendants moved to recover against the preliminary injunction bond filed by Plaintiff. Defendants argue that their attorneys' fees are damages because they were caused by the issuance of the wrongful injunction. The Court has reviewed the papers of the Parties and finds that the Defendants have failed to convert attorneys' fees incurred because of the injunction into damages. Fed.R.Civ.P. 65(c) governs Defendants' right to recover upon a wrongful injunction, and the legal standard in the Second Circuit for Rule 65(c) damages is the law of proximate cause. Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1054 (2d Cir.1990) (wrongfully enjoined parties "are entitled to damages as may be shown to have been proximately caused by the injunction . . . up to the amount of the bond"). Defendants have failed to show that their attorneys' fees were proximately caused by the injunction. Accordingly, Defendants' Motion to Recover Against the Preliminary Injunction Bond is DENIED.
On appeal, InterDigital asserts that the district court erred in two respects. First, it erroneously shifted the burden of establishing entitlement to recovery against the bond to InterDigital and instead should have applied a rebuttable presumption in favor of recovery. Second, the district court incorrectly concluded that InterDigital failed to establish the damages proximately caused by the injunction.
DISCUSSION
I. Presumption in Favor of Recovery
We first consider the question of whether a wrongfully enjoined party is entitled to a presumption in favor of recovery *557 against a bond posted pursuant to Rule 65(c), a question of first impression in this Circuit. As a preliminary matter, we note that a district court's decision to grant or deny recovery against an injunction bond is, generally stated, reviewed for abuse of discretion. However, because we hold that wrongfully enjoined parties are entitled to a presumption in favor of recovery against the bond for provable damages, the court's discretion should be exercised in a manner consistent with this presumption. See Coyne-Delany Co., Inc. v. Capital Dev. Bd. of Ill., 717 F.2d 385, 392 (7th Cir.1983). The resulting standard "amounts to stricter review along the sliding scale of the abuse [of discretion] standard." Global NAPs, Inc. v. Verizon New Eng., Inc., 489 F.3d 13, 23 (1st Cir.2007); see also Coyne-Delany, 717 F.2d at 392 ("When rules prescribe a course of action as the norm but allow the district court to deviate from it, the court's discretion is more limited than it would be if the rules were nondirective.").
We conclude that a presumption in favor of recovery is warranted for several reasons. Rule 65(c)'s bond requirement serves a number of functions. It assures the enjoined party that it may readily collect damages from the funds posted in the event that it was wrongfully enjoined, and that it may do so without further litigation and without regard to the possible insolvency of the plaintiff. See Continuum Co., Inc. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir.1989). In addition, the bond provides the plaintiff with notice of the maximum extent of its potential liability. See id.; see also Alliance Bond Fund, Inc. v. Grupo Mexicano De Desarrollo, S.A., 190 F.3d 16, 20 (2d Cir.1999) ("[T]he applicant for the injunction consents to liability up to the amount of the bond, as the price for the injunction." (quoting Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1054) (2d Cir.1990) (alterations omitted)). As this Court has previously explained:
Th[e injunction bond] rule has its origin in early equity practice. The chancellor had limited authority to award damages directly, but had broad discretion to frame orders granting injunctions. The practice grew up of conditioning the grant of a preliminary injunction on a plaintiff's agreement to post a bond to cover any damages that might result if it were later determined that plaintiff was not entitled to an injunction.
Commerce Tankers Corp. v. Nat'l Mar. Union of Am., AFL-CIO, 553 F.2d 793, 800 (2d Cir.1977) (citation omitted); accord Blumenthal, 910 F.2d at 1054-55 (2d Cir. 1990).
Justice Stevens explained the underlying purpose of injunction bonds in Edgar v. MITE Corp.:
Since a preliminary injunction may be granted on a mere probability of success on the merits, generally the moving party must demonstrate confidence in his legal position by posting bond in an amount sufficient to protect his adversary from loss in the event that future proceedings prove that the injunction issued wrongfully.
457 U.S. 624, 649, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982) (Stevens, J., concurring in part and concurring in the judgment); see also Global NAPs, 489 F.3d at 21 ("[The party seeking an injunction] made a business judgment that it was willing to incur the `cost' of a possibly wrongful injunction in order to take its appeal."); Sprint Commc'ns Co. L.P. v. CAT Commc'ns Int'l, Inc., 335 F.3d 235, 240 (3d Cir.2003) ("The [injunction] bond can . . . be seen as a contract in which the court and the applicant `agree' to the bond amount as the `price' of a wrongful injunction." (quoting Instant Air Freight Co. v. *558 C.F. Air Freight, Inc., 882 F.2d 797, 805 n. 9 (3d Cir.1989) (alterations omitted))). Because all of this authority teaches that claims against injunction bonds can and should be expected when injunctions are found to be wrongful, we believe that a rebuttable presumption in favor of recovery constitutes a correct approach to Rule 65(c).
The existence of such a presumption is strongly implied by the text of Rule 65(c), which permits a court to issue a preliminary injunction "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed.R.Civ.P. 65(c) (emphasis added). The drafters' choice of words indicates that where a bond is posted, it serves as security for the "costs and damages" incurred by the wrongfully restrained party. If they intended that district courts would have unfettered discretion as to how to handle costs associated with a wrongfully obtained injunction, certainly Rule 65(c) would have been worded differently. As Judge Posner concluded in Coyne-Delany, the text of Rule 65(c) suggests that "[t]he draftsmen must have intended that when . . . damages were incurred[,] the plaintiff . . . would normally be required to pay the damages, at least up to the limit of the bond." 717 F.2d at 391 (citation omitted); see also Global NAPs, 489 F.3d at 23 ("[T]he preference for recovery of security granted under Rule 65(c) . . . [is] `implied by the text of Rule 65(c).'" (quoting Coyne-Delany, 717 F.2d at 392)).
Other circuits that have explicitly addressed the question of whether a presumption in favor of recovery applies have answered it in the affirmative. See Global NAPs, 489 F.3d at 23 ("[W]e adopt the majority rule that there is a rebuttable presumption that a wrongfully enjoined party is entitled to have the security executed so as to recover provable damages up to the amount of the security."); Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir.1994) ("[W]e join what appears to be the majority and hold there is a rebuttable presumption that a wrongfully enjoined party is entitled to have the bond executed and recover provable damages up to the amount of the bond."); Nat'l Kidney Patients Ass'n v. Sullivan, 958 F.2d 1127, 1134 (D.C.Cir.1992) ("[A] defendant injured by a wrongfully issued preliminary injunction is presumptively entitled to recovery on the injunction bond."); Coyne-Delany, 717 F.2d at 392 ("In deciding whether to withhold costs or injunction damages . . . the district court [is] to be guided by the implicit presumption in Rule[ ] . . . 65(c) in favor of awarding them. . . ."); accord Ala. ex rel. Siegelman v. U.S. Envtl. Prot. Agency, 925 F.2d 385, 390 (11th Cir.1991) (applying "the CoyneDelany view of discretion under Rule 65(c)").[1] We now join this majority.
*559 Although we hold that a wrongfully enjoined party is entitled to a presumption in favor of recovery, that party is not automatically entitled to the damages sought. The presumption applies to "provable" damages. Global NAPs, 489 F.3d at 23; Nintendo, 16 F.3d at 1036. Thus, the wrongfully enjoined party must first demonstrate that the damages sought were proximately caused by the wrongful injunction. See Blumenthal, 910 F.2d at 1056 ("[Wrongfully enjoined parties] are entitled to damages as may be shown to have been proximately caused by the injunction, up to the amount of the bond." (citation omitted)); see also Nintendo, 16 F.3d at 1038 (requiring that party seeking recovery "establish[] with reasonable certainty that it was damaged by the issuance of the injunction" (emphasis added)). The wrongfully enjoined party must also properly substantiate the damages sought. However, the party's proof of damages "d[oes] not need to be to a mathematical certainty." Global NAPs, 489 F.3d at 24.
Once the party seeking recovery adequately establishes its damages, it is entitled to a presumption in favor of recovery. Applying this presumption, the district court must have a "good reason" to deny recovery against the bond. Id. at 23; Milan Exp., Inc. v. Averitt Exp., Inc., 254 F.3d 966, 981 (11th Cir.2001). The burden of demonstrating that recovery should be denied is on the party opposing recovery. Good reasons to deny recovery of all or a portion of the alleged damages would be that the damages sought were unreasonable in amount or that a party failed to mitigate them. See Coyne-Delany, 717 F.2d at 392; see also Intercapital Debt Trading Ltd. v. Cantor Fitzgerald Inc., No. 94 CIV 9275, 1996 WL 167820, at * 1-2 (S.D.N.Y. Apr.10, 1996) ("`[A] good reason for not awarding damages against [a] Fed.R.Civ.P. 65(c) security would be that the defendant had failed to mitigate damages.'" (quoting Coyne-Delany, 717 F.2d at 392) (alterations omitted)).
II. InterDigital's Motion to Recover
As previously noted, the district court denied InterDigital's motion to recover fees and expenses allegedly caused by the injunction. However, the court's order does not provide us with a sufficiently clear explanation of its reasoning to permit meaningful review. For example, we are not clear what the court meant when it observed that "the Defendants have failed to convert attorneys' fees incurred because of the injunction into damages." We are also uncertain of the basis for the court's conclusion that "Defendants have failed to show that their attorneys' fees were proximately caused by the injunction."
Neither party seems to dispute that InterDigital was "wrongfully enjoined." See Guzman v. Local 32B-32J, Serv. Emps. Int'l Union, 72 F.3d 260, 263 (2d Cir.1995) ("[A] party has been wrongfully enjoined [if it has been] ordered to do something it had a right to refrain from doing or to cease doing something it had a right to continue doing."); Blumenthal, 910 F.2d at 1054 ("The focus of the `wrongfulness' inquiry is whether, in hindsight in light of the ultimate decision on the merits after a full hearing, the injunction should not have issued in the first instance."). Thus, the central dispute is whether the attorneys' fees and other legal expenses sought by InterDigital were "proximately caused" by the injunction.
Nokia contends that attorneys' fees and legal expenses, whether expended in *560 the defense of the injunction motion or in a collateral proceeding, are not recoverable.[2] It is true that under the "American Rule" a prevailing party is generally not entitled to collect attorneys' fees from the losing party. See Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 448, 127 S. Ct. 1199, 167 L. Ed. 2d 178 (2007); see also Bliven v. Hunt, 579 F.3d 204, 212 (2d Cir.2009) ("[T]he general `American Rule' is that the prevailing party in federal court litigation is not entitled to recover legal fees incurred in the conduct of that litigation. . . ." (emphasis added)). This rule appears to be rooted in early efforts by Congress to prevent "losing litigants [from] being unfairly saddled with exorbitant fees for the victor's attorneys." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 251, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975).
Consistent with this general rule against fee-shifting, it has long been established that a prevailing party may not generally collect as damages against an injunction bond attorneys' fees expended in litigating the injunction. See Tullock v. Mulvane, 184 U.S. 497, 509-14, 22 S. Ct. 372, 46 L. Ed. 657 (1902); Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 104 F.2d 105, 107 (2d Cir.1939); see also Matek v. Murat, 862 F.2d 720, 734 (9th Cir.1988) ("Attorney's fees are not recoverable as damages in an action on an injunction bond."), abrogated on other grounds by Koch v. Hankins, 928 F.2d 1471 (9th Cir.1991); Fireman's Fund Ins. Co. v. S.E.K. Constr. Co., 436 F.2d 1345, 1352 (10th Cir.1971) ("Under [Rule 65(c) ] attorneys' fees . . . are not recoverable.").
This principle is well established, and we adhere to it. However, this principle does not control here because InterDigital does not seek to recover attorneys' fees or legal expenses that it incurred in litigating the injunction. Instead, it seeks to recover fees and expenses that it incurred in complying with the injunction. Recovery of such costs, incurred in collateral proceedings required by the terms of a wrongful injunction, does not contravene the American Rule or its Rule 65(c) analogue. Nor would permitting recovery under these circumstances risk "unfairly saddling" losing parties with the prevailing parties' attorneys' fees. Instead, permitting recovery is consistent with the purpose of an injunction bondto cover the costs and damages incurred as a result of complying with a wrongful injunction.
Having concluded that wrongfully enjoined parties are entitled to a presumption in favor of recovery, and that the American Rule does not bar recovery here, we remand for the district court to reconsider its denial of InterDigital's motion to recover and to provide further explanation for its conclusion. We note, however, that in light of the presumption and principles we have discussed, we are inclined to think that at least a portion of InterDigital's alleged damages may be recoverable. For example, the causal relationship between the preliminary injunction and the cost incurred by InterDigital to file a motion to stay the ITC proceedings against Nokia seems clearthe stay was an explicit requirement of the preliminary injunction. Specifically, the injunction stated: "InterDigital shall file by April 11, 2008 a motion to stay the ITC Proceeding with respect to Nokia." Thus, provided that they are properly substantiated, and absent good *561 reason to deny recovery, we are inclined to think that these costs are recoverable.
Whether InterDigital should be able to recover the remaining damages alleged expenses incurred to prepare for arbitration with Nokia and to deconsolidate the ITC proceedings, and duplicative litigation costs allegedly resulting from deconsolidationraises closer questions. As part of its reconsideration on remand, we leave it to the district court to resolve these questions in the first instance.
CONCLUSION
The district court's order is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
NOTES
[*] The Clerk of Court is directed to amend the official caption to read as shown above.
[1] The approach in at least two circuits is somewhat less clear. Compare Continuum Co., Inc. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir.1989) ("Th[e injunction] bond requirement. . . assures the enjoined party that it may readily collect damages from the funds posted or the surety provided in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency of the assured." (emphasis added)), and Atomic Oil Co. of Okla. v. Bardahl Oil Co., 419 F.2d 1097, 1100-01 (10th Cir. 1969) ("Rule 65(c) states in mandatory language that the giving of security is an absolute condition precedent to the issuance of a preliminary injunction. It imports no discretion to the trial court to mitigate or nullify that undertaking after the injunction has issued."), with H & R Block, Inc. v. McCaslin, 541 F.2d 1098, 1099 (5th Cir.1976) ("The awarding of damages pursuant to an injunction bond rests in the sound discretion of the court's equity jurisdiction."), and State of Kan. ex rel. Stephan v. Adams, 705 F.2d 1267, 1269 (10th Cir. 1983) ("[T]he decision whether to award damages, and the extent thereof, is in the discretion of the district court and is based upon considerations of equity and justice.").
[2] InterDigital speculates that the district court may have adopted this position when it determined that InterDigital "failed to convert attorneys' fees incurred because of the injunction into damages." | 01-03-2023 | 05-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4523722/ | 04/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 18-0500
No. DA 18-0500
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID DEAN KOMEOTIS,
Defendant and Appellant.
ORDER
Upon consideration of Appellee’s motion for a 14-day extension of time,
and good cause appearing therefor,
IT IS HEREBY ORDERED that Appellee is granted an extension of time
to and including April 30, 2020, within which to prepare, serve, and file the
State’s response.
MPD
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
April 8 2020 | 01-03-2023 | 04-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3399083/ | There is no occasion for the granting of a rehearing to consider the alleged estoppel set up against the relator in prohibition in the respondent's return. That question is one that this Court has deliberately refused to decide in the present case wherein the party respondent is the Circuit Judge and not the Fort Myers Drainage District. *Page 435
It is in the district's favor that the estoppel exists, if at all, and such estoppel can become available only in some appropriate proceeding wherein the relator, Garrett, as administrator C.T.A., and the district are the parties, to a proper controversy concerning it.
The previous opinion of February 6, 1936, held relator entitled to a limited writ of prohibition only. That writ will be effective pendente lite and in futuro, but has no consequences as to releases of land that may have already been made prior to the institution of the cause.
Furthermore, the writ of prohibition sought by relator is for the benefit of the relator individually with respect to the particular claim asserted and relied upon by him as administrator C.T.A. It does not preclude judicial action by the respondent with respect to any matters other than his making future orders under Chapter 16031, Acts of 1933, that will purport to operate to release lands in the Fort Myers Drainage District from relator's claim.
Other claims than that of the relator are not protected by the limited writ of prohibition we have held should be awarded. This is so because the complaint made is one personal to the relator in his representative capacity as protector of the obligation of his testate's contract, and may be deemed waived by others similarly situated who fail to timely object in appropriate proceedings.
It is thereupon considered, ordered and adjudged that the petition for a rehearing be denied and that a writ of prohibition absolute do issue commanding the respondent, George W. Whitehurst, as Judge of the Circuit Court in and for Lee County, Florida, forthwith to cease and desist from further entering or purporting to enter orders in that certain cause now pending in the Circuit Court in and for Lee County entitled: "In the Matter of Winding Up and *Page 436
Liquidating the Affairs of Fort Myers Drainage District, Case No. 5470," and from further recognizing Chapter 16031, Acts 1933, as a valid enactment of the Legislature of the State of Florida insofar as the same is asserted to be applicable to the rights claimed by the relator, George Palmer Garrett, as administratorcum testamento annexo de bonis non of the Estate of P.A. Vans Agnew, Sr., deceased, and from further entering or purporting to enter, as against the right of said relator, any orders to release taxpayers of the Fort Myers Drainage District from their constitutional obligation to make good to relator as a valid creditor of said District, by taxation, the valid obligations of said District owing to relator as a creditor.
WHITFIELD, C.J., and ELLIS, TERRELL, BROWN and BUFORD, J.J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3399123/ | Dewey Booker and four others were convicted of breaking and entering a "smokehouse," within the curtilage of a dwelling house, with intent to commit larceny of property of less value than fifty dollars.
The property stolen consisted of bacon, which was taken from a smokehouse, and several chickens and turkeys from a chicken house. The property belonged to P. B. Hobbs, and the houses from which it was taken were located on the place which he occupied as a home and near to his dwelling house.
The plaintiffs in error seek to reverse the judgment on writ of error. There are three assignments of error. The first is that the Court erred in overruling the defendants' objection to a question propounded to the witness, P. B. Hobbs; another attacks the sufficiency of the evidence to support the verdict. The witness was asked the following question: "Did you miss anything out of the fowl house on that night?" The objection was that the question was irrelevant and immaterial. The objection was overruled and exception was taken.
The defendants were charged with the offense of breaking and entering "an outbuilding or structure within the curtilage of the dwelling house of one P. B. Hobbs, commonly called a smokehouse, the property of the said P. B. Hobbs, with intent then and there to steal, take and carry away the property, goods and chattels of another of the value of less than fifty dollars." The fowl house was a separate building from the "smokehouse," in which latter meat was kept and stored in barrels for the family use. The fowl house, as its name indicates, was a roosting shed or cover for the fowls which the owner kept on the place. *Page 213
There was no evidence that that building was entered by breaking. The witness was permitted to testify that he missed ten or twelve chickens and two turkeys from the fowl house. The defendants moved to strike that evidence; the motion was overruled and exception taken.
The defendants were indicated under Section 5119, Revised General Statutes, denouncing the offense of breaking and entering or entering without breaking any dwelling or storehouse, or any building, ship or vessel or railroad car with intent to commit a misdemeanor, but the indictment alleged with particularity that the defendants broke and entered a certain building described as a "smokehouse." While the proof should be confined to the allegations, the fact that the same night the fowl house also was entered and fowls stolen was not immaterial. While the stealing by the defendants of the ten or twelve chickens by entering the fowl house without breaking would not support the allegation of breaking and entering a smokehouse with intent to commit a misdemeanor, it was a circumstance tending to show their presence that night on the scene of the alleged crime.
It may not have been necessary for the pleader to have alleged in the indictment with such particularity the elements of the offense charged, but having done so he is required to establish the allegation beyond a reasonable doubt by appropriate evidence. Otherwise a person charged with an offense would be seriously embarrassed in defending himself and placed at a disadvantage, which the law does not contemplate shall be taken of him. See Barker v. State, 78 Fla. 477, 83 South, Rep. 287.
The statute provides a penalty for acts in the disjunctive. The indictment may have alleged them in the conjunctive and proof of one would have sufficed. See King v. State, 17 Fla. 183; Bradley v. State, 20 Fla. 738. *Page 214
But if one state of facts is alleged it cannot be established by proof of the other. See Washington v. State, 21 Fla. 328.
There was little or no evidence upon which the jury could have found the defendant guilty of entering the smokehouse; although there may have been sufficient evidence to sustain a conviction of entering without breaking the fowl house and the stealing of the chickens.
Judgment reversed.
STRUM AND BROWN, J. J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3399129/ | We review on appeal a judgment of conviction under an indictment charging "that Foster Gay, on the 7th day of December, A.D. 1939, in the County and State aforesaid, then and there unlawfully while Napoleon Wilson, a Deputy Sheriff of Taylor County, Florida, and in and for Taylor County, Florida, was then and there in said County and State *Page 692
lawfully and by virtue of his said office as a Deputy Sheriff of said County proceeding to arrest the said Foster Gay for violating the law in the presence of him, the said Napoleon Wilson, by then and there maintaining and using, for the purpose of catching and taking commercial sponges from the Gulf of Mexico in waters within the territorial limits of the State of Florida, diving suits, helmets, and other apparatus used by deep sea divers, and he, the said Foster Gay, then and there well knowing that the said Napoleon Wilson to be a Deputy Sheriff of Taylor County, Florida, did knowingly, wilfully and unlawfully resist the said Napoleon Wilson in the discharge of his duty as such Deputy Sheriff, aforesaid, which said duty as a Deputy Sheriff he, the said Napoleon Wilson, was then and there attempting to perform, by then and there refusing to submit to arrest and by then and there assaulting, bruising, striking and ill treating the said Napoleon Wilson and by then and there doing violence to said Napoleon Wilson, as aforesaid, and thereby and thus did obstruct the said Napoleon Wilson as such deputy sheriff."
It is noted that the indictment alleges as legal justification of the attempted arrest that, "While Napoleon Wilson, a deputy sheriff, of Taylor County, Florida, and in and for Taylor County, Florida, was then and there in said County and State lawfully and by virtue of his said office as a Deputy Sheriff of said County, proceeding to arrest the said Foster Gay for violating the law in the presence of him, the said Napoleon Wilson, by then and there maintaining and using for the purpose of catching and taking commercial sponges from the Gulf of Mexico in waters within the territorial limits of the State of Florida, diving *Page 693
suits, helmets, and other apparatus used by deep sea divers." The record shows that the arrest was attempted without a warrant and was as for the commission of a misdemeanor in the presence of the officer attempting to make the arrest.
The record fails to show that the defendant in the presence of the officer was "then and there maintaining andusing for the purpose of catching and taking commercial sponges from the Gulf of Mexico . . . diving suits, helmets and other apparatus used by deep sea divers."
Therefore, it follows that the attempted arrest was without authority of law. See Roberts v. Dean, 133 Fla. 47, 187 So. 561; Malone v. Howell, 140 Fla. 693, 192 So. 224.
The State's witnesses testified that neither of them saw the defendant using any equipment or apparatus in taking, or attempting to take, any sponges from the Gulf of Mexico at the time and place alleged or at any other time.
Aside from this, the preponderance of the evidence, including that adduced from witnesses who were employees of the Conservation Commission of the State of Florida, shows that the defendant was at all times, on the stated occasion, when within sight of the officer, beyond the territorial limits of Taylor County and the State of Florida. That is, more than nine nautical miles off shore.
While it is not essential to the disposition of this case, the point is presented, and we shall discuss it, that the court erred in sustaining objections by the State to questions propounded to defendant concerning his knowledge of the establishing by the State Conservation Commission of the exterior territorial *Page 694
boundary of Taylor County in the Gulf of Mexico and marking the same with a line of buoys. It was shown that such a line had been so established and marked.
Such line, having been so established and marked by a State agency on which rested the duty of enforcing the conservation law, including the laws concerning sponge fishing, the defendant was entitled to rely upon the correctness of that line. It was error to deny him the right to testify as to his knowledge of the location of the line and the markers and as to where he was with reference to that line when he was approached by the officer.
For the reasons stated, the judgment is reversed.
So ordered.
Reversed.
BROWN, C. J., WHITFIELD, TERRELL and THOMAS, J. J., concur.
CHAPMAN and ADAMS, J. J., dissent.
ON PETITION FOR REHEARING | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3399155/ | An extraordinary petition has been presented, but will not be filed unless leave is granted.
It is in effect suggested:
(1) That the Court failed to consider the fact that Chapter 18643, Acts of 1937, approved on referendum August 17, 1937, failed to validate or confirm taxes levied after the passage of Chapter 12990, Acts of 1927, but prior to the adoption of Chapter 18643, Acts of 1937; and failed to consider the fact that after the judgment of ouster in quo warranto there existed no law either general or special authorizing the levy of taxes upon lands of appellant, either prior to or subsequent to the judgment of ouster; and that such taxes were levied and are attempted to be collected in violation of Sections 3 and 5, Article IX, Constitution.
(2) That the city and the plaintiff were parties to the quo warranto proceedings, and plaintiff's lands were described in the proceedings and a judgment awarded against the municipality as to the lands, making the judgment res adjudicata as to the city.
(3) That in denying the petition for rehearing the opinion and judgment in the case of Ocean Beach Heights, Inc., v. Brown-Cummer Inv. Co., filed by the Supreme Court of the United States January 17, 1938, was overlooked.
The opinion referred to has not been overlooked. It is not applicable here, as shown by its words. In the Ocean Beach Heights case, or Town of North Miami case, the *Page 193
electors in a community on the west side of Biscayne Bay, in Dade County, incorporated a town called Miami Shores, now called North Miami. The attempted boundaries of the town included an area on the east side of Bay Biscayne non-contiguous to the area on the west side included in the town. The electors had no authorityunder the general statutes to include in the town limits the non-contiguous area east of the Bay. There was no statute expressly conferring jurisdiction of the town over the area on the east side of the Bay. See Lane v. State, 63 Fla. 220,57 So. 2d 662. The town was established over the area west of the Bay, but it never had de jure authority over the east side of the Bay. There could have been no de jure jurisdiction of the townestablished by the electors and not by statute over the area on the east side of the Bay, so there could be no de facto
jurisdiction over that area.
In this case the charter was attempted to be conferred bystatute. The quo warranto judgment of ouster negatives de jure
jurisdiction of the Town of Lake Placid, but it did not affect the de facto jurisdiction resulting from the attempted statutory jurisdiction, and from action taken thereunder by issuing bonds and levying taxes under the attempted statutory authority and the validation of the bonds by judicial decrees to which all the citizens and taxpayers of the town were parties under the statute, the decrees being res adjudicata. Later statutes may afford useful instrumentalities in enforcing the rights of bondholders.
This disposes of the petition, as the enactment of Chapters 18643 and 18644, Acts of 1937, can have no controlling effect on the rights of the Town and of the bondholders to have the taxes levied and collected to pay the bonds according to the law under which they were issued, the town having de facto power in the premises under its presumably valid statutory charter, notwithstanding the ouster judgment *Page 194
of the assumed de jure jurisdiction of the town. The bonds are not void, since they were issued under presumably valid statutory authority, pursuant to Chapter 11586, Acts of 1925. They were duly validated. West v. Town of Lake Placid, 97 Fla. 127,120 So. 2d 361.
For a discussion of the principles involved, see City of Winter Haven v. Klemm, at this term.
Leave to file extraordinary petition for rehearing denied.
ELLIS, C.J., and WHITFIELD, TERRELL, BUFORD and CHAPMAN, J.J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3993086/ | I am unable to concur in all that is said in the majority opinion, or all that is said in the separate opinions of the dissenting members of the court. I think the information sufficient to charge each and all of the defendants with murder in the first degree, and had it been shown that each and all of them actually participated in the acts which resulted in the death of Lester M. Wood, no *Page 107
fault could be found either with the trial proceedings or with the verdict of the jury. But the trouble is that the evidence failed to show an active participation by all of the defendants in the acts resulting in the death. In fact, the evidence conclusively showed that only one of the defendants actively participated in the immediate act, and conclusively showed that the others, if they were connected with the act at all, were connected with it as accessories before the fact. The question before the court is therefore, as I view it, Can a defendant who is charged with actively participating in an offense be convicted by showing that his act in connection therewith is that of a counsellor, an aider or an abetter?
The question is not a new one in this court. In the early case of State v. Duncan, 7 Wn. 336, 35 P. 117, 38 Am. St. 888, it was held that a person charged as a principal in the commission of a crime could be convicted by showing that he counseled, aided and abetted its commission. But the case was expressly overruled in State v. Gifford, 19 Wn. 464, 53 P. 709. In the course of the opinion in that case, the court called attention to art. 1, § 22, of the state constitution, which provides that a defendant in a criminal prosecution has the right to demand the nature and cause of action against him, and said, in substance, that any law or rule of procedure which did not grant to the defendant this right would be in violation of the constitution, and that to charge a defendant as a principal and prove that he was an aider or abetter was a denial of the right. In so far as I am aware, this court has not departed from this doctrine, and I think further it has been the uniform practice of the prosecutors of the state since the case of State v. Gifford,supra, to charge an accessory before the fact with *Page 108
having aided and abetted in the commission of an offense, where it was known in advance that the proofs would show that such was his connection with the offense. At least, I cannot now recall a case where it was not done.
If I am correct in my views, it follows that all of the evidence tending to show that Ellis Baker and Lewis Baker counseled, aided and abetted in the commission of the offense of which they were convicted was inadmissible, and that there was a mistrial because of its admission.
I think too that the instruction quoted in the majority opinion, and requoted by Judge French, is also erroneous. The information no more charges that the defendants agreed and conspired to kill Wood, the sheriff, than it charges that they counseled, aided or abetted in his killing. I am aware that the majority say that the court's words meant no more than "the alleged common purpose of the defendants." But aside from the fact that this is to me a strained construction of the court's language, I can find no allegation in the information that the defendants had a common purpose to commit a murder. It is conceivable that the language of the information charges that each of the defendants had at the same time a premeditated design to effect the death of any person who should interfere with them while they were engaged in illicit liquor operations, but it falls far short of charging that they had a common purpose so to do. In short, the information in my opinion does not charge either an agreement or conspiracy to commit an offense, or charge that the offense was committed by one of them and that the others counseled, aided and abetted therein. Without one or the other of these charges, proof of agreement and conspiracy, or of counselling, aiding or abetting was inadmissible. *Page 109
Nor can I agree that the evidence did not justify the conviction of Lewis "Ted" Baker. He was not only one of the owners of the illicit still, but he had a voice in the selection of the place of its location, carried to it the raw material out of which the whiskey was manufactured, and he disposed of the whiskey after it was so manufactured. I think too that the evidence justifies the inference that he carried to the vicinity of the still the gun with which the sheriff was killed, and justifies the inference that the gun was taken to the still as an instrument to be used in its protection. When it is remembered that Luther Baker, who did the actual killing, had no connection with the still other than that of an assistant operator and a possible sharer in its gains, it is going too far, in my opinion, to say that there is no competent evidence to show Lewis "Ted" Baker was connected with the means adopted for the protection of the still.
In my opinion there should be an affirmance as to Luther Baker and a reversal as to Ellis Baker and Lewis "Ted" Baker. *Page 110 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847102/ | Pursuant to a vote of the electors of Philadelphia County, as provided by the Act of April 18, 1929, P. L. 549, the county commissioners took steps to install voting machines in various election districts of the county. They advertised for bids, exhibited specifications as the act provides and in August, 1930, awarded the contract to the Automatic Voting Machine Corporation (herein called the corporation), of Jamestown, New York, for five hundred voting machines; this corporation being the lowest and best bidder. The machines were accordingly delivered in Philadelphia before October 1, 1930, that being the specified time. On the date just mentioned the plaintiffs, John W. Glover and Alice A. Glover, his wife, taxpayers of the county, filed the bill in this case, setting out manifold alleged defects in the voting machines so furnished and praying, inter alia, for an injunction to restrain the county commissioners from carrying out the contract, accepting, or paying for the voting machines, or installing them in the voting precincts of the county. The corporation was permitted to intervene as a defendant, answers were filed and testimony taken before the president judge, as chancellor.
It appears that the machines as delivered contained some defects and did not in all respects comply with the specifications. These defects, however, were promptly remedied by the corporation, at its own expense, before the final hearing on December 20, 1930. The main complaint was that the machines, as furnished, did not insure a secret ballot or safeguard the integrity of the election and that their use would be illegal. But at the final hearing a demonstration of the machines, with the defects remedied as above stated, was had before the chancellor, from which and the testimony submitted he found that the machines as then equipped complied in all respects with the contract and specifications and with the statute and general election laws of the Commonwealth, with ample safeguards against fraud or mistake. *Page 469
At the final hearing the county commissioners, through their solicitor, expressed their approval of the voting machines, the defects therein having been remedied as above stated. Where the defects complained of are corrected pending the litigation the injunction will be dissolved: Lowry v. Forest City Boro.,39 Pa. Super. 276.
The machines as delivered had been approved by the secretary of the Commonwealth, as required by clause (a) of section 6 of the above cited act (page 554) and by the board of examiners as provided in clause (b) of that section, and, as remedying the defects added to the machine's accuracy and efficiency, it did not require further approval. See clause (d) of the section (page 555).
The chancellor on ample evidence found the facts in favor of the defendants and upon a full discussion of the entire case concluded as matter of law that the bill should be dismissed and entered a decree nisi accordingly. No exceptions being filed thereto, a final decree was entered in due course and plaintiffs have appealed.
The sole statement of question involved is: "When the specifications of county commissioners call for delivery of voting machines fully equipped and with lockout devices on a certain date are those specifications complied with when on that date the machines delivered did not contain lockout devices, even though they may have been subsequently appended?" This and the final decree are the only matters called to our attention in the assignments of error, and neither has merit. The chancellor properly declined to consider the fact that the county commissioners permitted the corporation to remedy certain defects in the machines after the time specified for their delivery, because no such complaint was made in the pleadings. It is fundamental that a decree in equity must conform to the pleadings as well as the proofs: Reilly v. Magee, 272 Pa. 406; Eddy v. Ashley Boro., 281 Pa. 4. "Neither unproved allegations nor *Page 470
proofs of matters not alleged can be made a basis for equitable relief": Luther v. Luther, 216 Pa. 1. Furthermore, that was a matter as to which the plaintiffs had no standing to complain. A taxpayer can be heard only as to matters that injuriously affect him. As the defects were remedied by the corporation at its own expense, it made no difference to plaintiffs whether the machines were completed in October or sixty days later. Again, giving the corporation an opportunity to correct the defects was a matter within the discretion of the county commissioners, as to which a taxpayer had no standing to complain. It would be shocking to permit a taxpayer to strike down an important public contract because some defect in the work was remedied after the time for performance had expired. In principle the right to do so is ruled adversely to plaintiffs in Anders v. Phila., 235 Pa. 125, 140, where Mr. Justice STEWART, speaking for the court, said: "If it were within the power of taxpayers in all cases wherein it might be claimed that a contractor had failed to comply with the provisions of his contract, to come into court and cause the matter to be investigated, and, in case of default of performance, to require the contractor to render such an account as is called for in this case, the affairs of the city would be thrown into endless confusion, and the proper functions of the municipal officers would, to a large degree, be devolved upon and assumed by the courts. We regard the municipal authorities as the repository of all the power that is needed to deal with such questions, as a general rule." See also Roth v. Marshall et al., 158 Pa. 272.
There is no suggestion that when the contract was awarded there was an understanding that the corporation would be given extra time for performance, or that the bidders for the job did not have a common standard. So the rule requiring such, as stated in Guthrie v. Armstrong et al., 303 Pa. 11, has no application. The record contains no averment or proof of bad faith. *Page 471
The chancellor's findings are to the effect that the statutory requirements are all covered by the specifications and contract and that the machines as delivered, with the defects remedied, are a full compliance therewith and effective for their intended use. The decree dismissing plaintiffs' bill logically followed. Moreover, we are concluded by the findings, as they were challenged neither in the lower court nor here: Himrod v. McFayden, 283 Pa. 103; Ebling v. Schuylkill Haven Boro., 244 Pa. 505.
The decree is affirmed and the appeal is dismissed at the cost of appellants. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714652/ | 697 S.W.2d 749 (1985)
D.D. KING, El Campo Well Service, Inc., Gary Downing, Texas Farms, Inc., Wilhelm Degen and C.E. Muegge, Appellants,
v.
R.J. LINDLEY, Jr. and Lindley and Company, Appellees.
No. 13-84-183-CV.
Court of Appeals of Texas, Corpus Christi.
August 30, 1985.
Rehearing Denied October 10, 1985.
*750 Michael Connelly, Mayor, Day & Caldwell, Houston, Bill Payne, Lawrence, Thornton, Payne & Watson, Bryon, for appellant.
James R. Leahy, John O. Tyler, Jr., Houston, for appellee.
Before NYE, C.J., and SEERDEN, J.
OPINION
SEERDEN, Justice.
This suit arose from the non-performance of a contract to sell real estate. Two separate lawsuits were originally filed but were consolidated for the purpose of trial. On November 28, 1983, the date the consolidated cases had been preferentially set for a jury trial, the trial judge announced it was rendering judgment disposing of all matters in controversy except the amount of attorneys' fees to be awarded to Texas Farms, Inc. and R.J. Lindley, Jr. and Lindley and Company, Realtors. The jury was dismissed and, on February 21, 1984, the trial court signed its Corrected Final Judgment. Texas Farms, Inc. and El Campo Well Service, Inc. have each appealed from this judgment.
Texas Farms, Inc.'s appeal is predicated on sixteen points of error. In its first nine points, complaint is made that it was denied a trial by jury and was denied the right to present evidence of its various contentions. Points of error ten through thirteen raise no evidence and insufficient evidence points relating to the judgment, point of error 14 charges an abuse of discretion in ordering *751 funds deposited in the registry of the court disbursed and points of error 15 and 16 charge abuse of discretion in the trial court's action denying it the right to take a partial non-suit.
El Campo Well Service, Inc. appeals on five points of error. Points of error one through four complain of the trial court's awards relating to attorneys' fees; point of error five complains of the court's denial of requested relief without a trial or a consideration of the evidence.
The record before this Court consists of numerous pleadings, discovery matters, a certified copy of the trial docket sheet, the orders which the trial court made in connection with the case, and a statement of facts which is simply a record of a conference between the lawyers for the parties and the judge which occurred after the judge announced that he was going to enter judgment without hearing any evidence. There was no motion for summary judgment or any other motion for judgment, other than one filed by El Campo Well Service, Inc. (called El Campo), on February 17, 1984, which is not pertinent to our resolution of this case.
The following pertinent facts are revealed from the live pleading in this case. R.J. Lindley, Jr. and Lindley & Co., referred to as Lindley, instituted this litigation on April 6, 1981, with the filing of their original petition. In this suit, they alleged that before January 15, 1981, they entered into an agreement with El Campo Well Service, Inc., referred to as El Campo, to obtain a buyer for 2,761 acres of land in Wharton County, Texas. They were to receive $100,000 commission for their services in this connection. They obtained a buyer and a contract for the sale of the land was entered into between El Campo and Texas Farms, Inc. The defendants, Gary Downing, individually and as an officer of El Campo, Wilhelm Degen and C.J. Muegge were charged with fraudulently and tortiously interfering with the commission agreement; and Lindley claimed they had been damaged in the sum of $100,000, were entitled to exemplary damages and attorney's fees. All defendants answered, generally denying Lindley's allegations and making denials not material to this appeal. Later, on October 7, 1983, Lindley supplemented their original petition with claims that the defendants engaged in a conspiracy to defraud them and also made an alternate claim for quantum meruit.
On September 16, 1983, the First Amended Original Petition of Texas Farms was filed complaining of the actions of El Campo Well Service, D.D. King and Wilhelm Degen. Texas Farms alleged that the contract referred to in Lindley's original petition was entered into by Texas Farms, El Campo and D.D. King; that thereafter, on February 7, 1981, these parties entered into an addendum to the original agreement, whereby the sellers, El Campo and King could pay Texas Farms $150,000 by April 15, 1981, and the original contract would be cancelled. The addendum also provided a method by which Texas Farms could reinstate the original contract should sellers not pay Texas Farms the $150,000.
As stated earlier, both the Lindley and Texas Farms cases were consolidated by the trial court.
On October 12, 1983, El Campo filed a pleading entitled "Consent to Judgment." This document alleges that El Campo no longer contests Texas Farms' claim for specific performance of the January 15, 1981, contract and consents to judgment for specific performance of said contract. This pleading also specifically "does not admit nor confess the truth of Texas Farms, Inc.'s allegations that El Campo Well Service, Inc. breached a contract between the parties or, in any other way, committed any wrongful acts. El Campo Well Service, Inc. also expressly denies that Texas Farms, Inc. is entitled to any other remedy listed in ... Plaintiff's First Amended Original Petition."
Thereafter, on November 18, 1983, El Campo filed its First Amended Answer and Counterclaims to the pleadings of both Lindley and Texas Farms. This pleading is essentially the same as the original answer with respect to its response to the claims *752 by Lindley; however, as to the matters plead by Texas Farms, it not only continues its general denial of the matters plead, it continues to insist that Texas Farms is not entitled to relief for any alleged breach of the Real Estate Contract because 1) there was a failure of consideration, 2) Texas Farms breached the contract, 3) Texas Farms repudiated, renounced and abandoned the contract, 4) Texas Farms never intended to perform its obligation and finally, 5) that the contracts were fully performed and there was an acord and satisfaction. El Campo continued to specifically deny it was liable for attorney fees.
Thereafter, El Campo, along with D.D. King and Wilhelm Degen assert their First Amended Counterclaim wherein they ultimately pray that Lindley and Texas Farms take nothing and that the Real Estate Contract be specifically performed, that they have compensation for expenses incurred in maintaining the property since April, 1981, for loss of opportunities to dispose of the property, for other damages for their losses occasioned by the breach of the contract.
Degen and King filed separate pleadings identical to El Campo's First Amended Answer and Counterclaim.
This is essentially the state of the record on November 28, 1983, the date the matter was specifically set for a jury trial.
The following relief was granted in the judgment:
(1) The Real Estate Contract of January 15, 1981, between El Campo and Texas Farms was to be specifically performed, subject to certain modifications.
(2) Lindley was granted judgment against El Campo for $100,000, plus prejudgment interest and $20,000 in attorney's fees.
(3) Texas Farms was granted judgment against El Campo for $25,500 in attorneys' fees.
(4) Wharton County Abstract Company was granted judgment against El Campo in the amount of $1,000 in attorney's fees.
(5) All costs of court were taxed against El Campo.
The judgment of the trial court must be reversed and remanded for a trial on the merits. Both Texas Farms, in its first nine points of error, and El Campo Well Service, in its fifth point of error complain of the court's action in deciding their respective cases without giving them the opportunity to submit evidence or have a trial. Both the U.S. Constitution, Amendment Fourteen, Section One; and the Texas Constitution, Article I, Section 19, provide that a person shall not be deprived of life, liberty or property without due process of law. Fundamental to the concept of due process is the right to be heard. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). The right to be heard assures a full hearing, the right to introduce evidence at a meaningful time and in a meaningful manner and to have judicial findings based upon that evidence. Id.
El Campo takes the position that since it filed a consent to have the initial contract enforced and also agreed to same in its amended answer and counterclaim, Texas Farms was precluded from seeking any other form of additional relief. We disagree. A defendant may not dictate to a plaintiff the remedy which he should pursue. Baker v. Wasson, 59 Tex. 140, (1883). At the very least Texas Farms had the right to elect whether it wished to attempt to obtain specific performance of the addendum rather than have El Campo choose its remedy for it. Conversely, we agree with El Campo's position that it was entitled to be heard and present evidence of its alleged losses occasioned by the actions of Texas Farms.
Texas Farms' points of error one through nine and El Campo's point of error five are sustained. Because of our resolution of the case, we need additionally consider only Texas Farms' twelfth through fourteenth points of error, in which it contends that $150,000 in funds on deposit in the registry of the court were improperly disbursed to El Campo. Texas Farms alleges that pursuant to a February 7, 1981 addendum to the Real Estate Contract, El *753 Campo tendered the $150,000 to Intervenor Wharton County Abstract Company, which filed its plea of intervention and filed the money order with the District Court Clerk. Texas Farms further alleges that it entered into a joint motion with El Campo in which the parties agreed not to withdraw the $150,000 from the court registry until a final judgment was rendered. El Campo disputes the claim that it agreed not to seek disbursement until a final judgment was signed. We have found a copy of the addendum incidentally reproduced as an Exhibit in Lindley's brief. The addendum reflects that payment of the $150,000 is wholly contingent on El Campo's behavior, and that Texas Farms could have no enforceable rights to those funds. See Miller v. First State Bank, 551 S.W.2d 89 (Tex. Civ.App. Fort Worth 1977, aff'd as modified 563 S.W.2d 572). Appellant's twelfth through fourteenth points of error are overruled.
Through its points of error numbered one through four, El Campo complains of the trial court's actions in awarding Lindley, Texas Farms and Wharton recovery against it as well as the denying of its request for recovery of attorney's fees against Texas Farms. Since the trial court's rulings on these matters were premised on its granting specific performance, these awards cannot stand. El Campo's points of error one through four are sustained.
The judgment of the trial court is REVERSED and the cause is REMANDED for a new trial.
NYE, C.J., concurs.
NYE, Chief Justice, concurring.
The majority writes that this case should be reversed on the basis that El Campo Well Service was denied a right to a trial by jury. I agree that the case should be reversed and remanded, but for a different reason than that expressed by the majority.
Here, El Campo filed a pleading entitled "Consent to Judgment." By this document, El Campo claims that they consented to a judgment on the Texas Farms' specific performance claim, but expressly denied Texas Farms entitlement to any other remedy which was pleaded. It is very clear to me that there was no consent to judgment here. Texas Farms timely informed the trial court of its dissatisfaction with El Campo's consent to judgment. I believe that this put the trial court on notice that there was no mutual consent of the parties. This is a necessary requirement. See Milstead v. Milstead, 633 S.W.2d 347 (Tex.App. Corpus Christi 1982, no writ).
This situation is analogous to one in which there has been a settlement agreement. Judgment, in that type of case, may only be rendered if all the parties consent. Hensley v. Salinas, 583 S.W.2d 617 (Tex. 1979). Here, El Campo decided unilaterally to consent to only part of Texas Farms' cause of action which might benefit them. The trial court improperly granted judgment because the judgment clearly lacked the mutual consent of the parties. For these reasons, I concur in the result of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1975295/ | 260 N.J. Super. 133 (1992)
615 A.2d 647
SUSAN L. MOLNAR, PLAINTIFF-RESPONDENT,
v.
DOUGLAS M. HEDDEN, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued October 1, 1992.
Decided October 27, 1992.
*135 Before Judges PRESSLER, R.S. COHEN and MUIR, JR.
Ronald M. Katkocin argued the cause for appellant (Markwardt & Katkocin, attorneys).
*136 Elizabeth Macron argued the cause for respondent (Gertler & Hanna and Brotman & Graziano, attorneys; Elizabeth Macron and Nicholas Krochta, on the joint brief).
The opinion of the court was delivered by PRESSLER, P.J.A.D.
The important procedural question posed by this appeal is whether a counterclaim arising out of the transaction that gave rise to the complaint is barred if not filed within the applicable limitations period. We hold that although all the considerations generally governing disposition of an untimely motion to amend pleadings are relevant to a late motion to assert a counterclaim, the running of the statute of limitations before the motion is made does not preclude the claim.
On July 16, 1988, plaintiff Susan Molnar, while driving her automobile, collided with a motorcyclist, defendant Douglas Hedden. Both were injured, defendant grievously so. He was rendered a paraplegic. Plaintiff filed a personal injury complaint against defendant in late May 1990, about six weeks prior to the running of the two-year statute of limitations. Defendant turned the complaint over to his carrier for defense, and counsel was assigned to represent him. In due course, some six weeks later, insurance counsel filed an answer in defendant's behalf, alleging, by way of separate affirmative defenses, that plaintiff had been "guilty of contributory negligence in failing to exercise due and proper care under the existing circumstances and conditions" and that her right to recover damages, if any, was limited by "the comparative negligence law." The responsive pleading contained no counterclaim. It also appears that defendant had not, at this time, himself retained an attorney to protect and advance whatever affirmative claims he might have had arising out of the accident, but was represented only by counsel provided by his carrier.
*137 In August 1990, a second complaint was filed in plaintiff's name against defendant.[1] This was actually a subrogation claim in which the real party in interest was plaintiff's carrier, who was seeking reimbursement for the personal injury protection benefits (PIP) it had paid to her. This second complaint was filed by counsel retained by the plaintiff's insurer, not plaintiff's personal injury attorney. It does not appear that an answer to the subrogation complaint was ever filed. In any event, the two complaints were consolidated by order entered on September 14, 1990. Contrary to the prescription of R. 4:38-1(c) requiring the order of consolidation and all subsequent pleadings to include the docket number of each separate action, the September consolidation order referred only to the docket number of the first complaint, a fact which accounts for some of the subsequent procedural confusion.
Nothing in this record suggests what, if any, discovery ensued following the joinder of issue. It does, however, appear that during the summer of 1991, about a year after the filing of the first complaint, negotiations for a settlement of plaintiff's claim were successful. We gather from correspondence between plaintiff's personal injury attorney and defense counsel that plaintiff's personal injury claim was to be settled for $15,000, defendant's policy limit. The snag in consummating the settlement was defense counsel's insistence that the subrogation claim of plaintiff's carrier also be dismissed and defendant be released therefrom. Accordingly defense counsel refused to sign and return the stipulation of dismissal, already executed by plaintiff's personal injury attorney, until appropriate assurances were given by plaintiff's "subrogation" attorney. *138 It does not appear that defense counsel ever signed that stipulation.
Insofar as we are able to reconstruct from this markedly truncated record, this series of procedural steps and missteps ensued. On September 18, 1991, a different stipulation of dismissal was filed which bore the single docket number of the consolidated action. It contained a signature block only for plaintiff's subrogation attorney, and was signed only by that attorney. In his later certification in opposition to this motion, plaintiff's personal injury attorney described that stipulation as a "dismissal in regard to ... [the] subrogation claim." Although not expressly so stated by any of the parties, it appears that the single-signature stipulation of dismissal can be accounted for only if viewed as intending to dismiss the subrogation claim alone. That is, since no answer to that complaint appears to have been filed, the subrogation attorney, overlooking the consequences of consolidation, might have assumed that he could unilaterally dismiss his complaint under R. 4:37-1(a), which permits a plaintiff to do so prior to service of a responsive pleading or motion.
About a month later, the subrogation complaint, under its own separate original docket number, was listed for dismissal for lack of prosecution under R. 1:13-7, presumably because the omission of its docket number from the consolidation order precluded the court's tracking of that action as part of the consolidated action. In any event, an order of dismissal was entered on October 22, 1991, bearing the docket number only of the subrogation complaint. At some unspecified time between June and October 1991, defendant's carrier paid the $15,000 settlement sum to plaintiff. Defendant asserted in his certification in support of his motion for leave to file the counterclaim that he had no knowledge of the settlement and had never been consulted about it by his attorney or the carrier.
In any event, as these matters were proceeding, defendant finally consulted his present attorneys and retained them to act *139 for him and to assert such affirmative claims against plaintiff as he might have. A substitution of attorney dated October 29, 1991, and filed on November 1, 1991, was signed both by defendant's present counsel and the attorney originally assigned by his carrier to defend against plaintiff's complaint.
On November 12, 1991, present counsel filed the instant motion seeking leave for defendant to amend his answer in order to assert a personal-injury counterclaim against plaintiff. Since defendant's cause of action against plaintiff had accrued, as did hers against him, on July 16, 1988, the date of the accident, that motion was consequently filed sixteen months after the running of the statute of limitations. It was on that ground that the trial judge, rejecting defendant's relation-back argument under R. 4:9-3, denied the motion. Defendant appealed, and we reverse.
We start our analysis of the relation-back problem raised by this appeal with a consideration of whether, on November 12, 1991, when the motion for leave to assert a counterclaim was filed, there was still an action pending. We think it plain that the predicate for relation back of a pleading to the date of the filing of an earlier pleading is the pendency of that earlier pleading when the later pleading is asserted. Otherwise, there would be nothing to relate back to. We are therefore satisfied that if plaintiff's action against defendant had been entirely disposed of on the record and was consequently no longer pending on November 12, 1991, the cause of action defendant sought to assert by his late counterclaim would be barred both by the two-year statute of limitations prescribed by N.J.S.A. 2A:14-2 and by the entire controversy doctrine incorporated by R. 4:30A. See Burrell v. Quaranta et al., 259 N.J. Super. 243, 612 A.2d 379 (App.Div. 1992) (holding that a defendant in a personal injury action who fails to file a counterclaim seeking damages from plaintiff for the injuries he suffered in the same accident is barred by the entire controversy doctrine from *140 instituting a separate personal injury action against plaintiff after record termination of plaintiff's action).
We are satisfied that unlike Burrell, in which a stipulation of dismissal executed by all parties was filed prior to the commencement of defendant's action, plaintiff's action against defendant here was still technically pending when he sought to assert his affirmative claim. This is so because there was no record dismissal of that action in its entirety. The order of dismissal bore only the docket number of the subrogation action. The filed stipulation of dismissal was apparently also intended to address only the subrogation action. In any event, that stipulation could not have been effective as a dismissal of the personal injury action in view of an answer to that action having been previously filed. R. 4:37-1(a) requires a stipulation of dismissal to be filed by all parties who have appeared in the action. The stipulation here was defective on its face because it was not signed by defendant or in his behalf. Nor was it signed by the attorney of record for plaintiff who had filed the original complaint.
Holding, therefore, that plaintiff's action was still pending when the motion for leave to amend to assert the counterclaim was filed, we address the question of whether the then pendency of that action saved the counterclaim from the bar of the statute of limitations. The relation-back provisions of R. 4:9-3 have not been considered by our appellate courts in the context of a counterclaim. We are, however, satisfied that application of our well-settled and liberal procedural jurisprudence dictates the conclusion that a counterclaim arising out of the same transaction as pleaded by the complaint and therefore meeting the test of R. 4:9-3 that is to say, a litigation component embraced by the entire controversy doctrine is eligible for the relation-back principle of the rule and consequently for protection from the limitations bar.
R. 4:9-3 provides in relevant part that:
*141 Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading....
As explained by Justice Jacobs in Lawlor v. Cloverleaf Memorial Park Inc., 56 N.J. 326, 339, 266 A.2d 569 (1970), this provision is intended to accommodate the policy of repose underlying statutory limitations periods with the essential judicial task of ensuring substantial justice between litigants. That accommodation, as we said in Wimmer v. Coombs, 198 N.J. Super. 184, 189, 486 A.2d 916 (App.Div. 1985),
... is based on the perception that a person who has timely notice of the pendency of an action predicated on his alleged wrongful conduct cannot reasonably object to the late assertion against him of other claims attributable to that conduct provided he is reasonably chargeable with the knowledge that those other claims would have been timely asserted against him but for plaintiff's error or lack of information and provided further that the late assertion does not prejudice him in maintaining his defense.
Our courts have applied that principle in a variety of situations in order to permit a party to an action belatedly to assert additional components of the controversy against a party-defendant against whom a timely claim has already been asserted provided that the belated claim is related to the timely claim by the entire controversy doctrine. Thus, in Lawlor, the Supreme Court permitted plaintiff to amend the complaint to assert, after the running of the statute of limitations, a direct claim against a third-party defendant where the third-party defendant had been impleaded prior to the running of the statute, where the third-party complaint and the plaintiff's amended complaint alleged the same wrongful conduct, and where the cause asserted both by the third-party complaint and the amended complaint was transactionally related to the original complaint.
In Wimmer we permitted a plaintiff who had asserted only a per quod claim against defendant to amend after the running of the statute to add her personal injury claim which had been omitted inadvertently, which arose out of the same accident, and of which the defendant had prior notice. In Scott v. Garber, 82 N.J. Super. 446, 198 A.2d 103 (App.Div. 1964), rejecting *142 the "same evidence" test in favor of the single-controversy test, we permitted amendment of a complaint after the running of the statute to assert an additional component claim against defendant. See also Harr v. Allstate Insurance Co., 54 N.J. 287, 299-300, 255 A.2d 208 (1969); Campbell v. Union Beach, 153 N.J. Super. 434, 379 A.2d 1295 (App.Div. 1977); Ioannou v. Ivy Hill Pk. Section Four, Inc., 112 N.J. Super. 28, 270 A.2d 295 (Law Div. 1970); DeSisto v. Linden, 80 N.J. Super. 398, 193 A.2d 870 (Law Div. 1963).
In all of these cases the party against whom the late claim was permitted to be asserted was already a defendant. Hence he was already on notice when the amended pleading was allowed of his susceptibility to a judgment against him based on the originally alleged wrongful conduct. In the case of a counterclaim, as here, the party against whom the pleading is sought to be belatedly amended is the plaintiff, whose role in the litigation, at least up to that point, is to assert a claim, not to defend against one. The question then is whether this difference requires a different relation-back result. We hold that it does not.
To begin with, we note that the rules address with specificity the problem of the omitted counterclaim. R. 4:7-4 provides that "When the pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment." A counterclaim may, of course, be germane or not germane. It may constitute a component of the litigation required to be pleaded in order to avoid the preclusionary consequences of the entire controversy doctrine, or it may not. See R. 4:7-1. While our courts have not yet apparently addressed the question in a reported opinion, we have no doubt that a germane omitted counterclaim, that is, a compulsory counterclaim as defined by the entire controversy doctrine, qualifies for the relation-back provision of R. 4:9-3. We see no rational basis for differentiating for this purpose between an *143 amended answer adding a germane counterclaim under R. 4:7-4 and any other amended pleading allowed under the general authority of R. 4:9-1. The dispositive consideration is not the rule pursuant to which the amendment is allowed but whether the amended pleading meets the test of R. 4:9-3 by asserting a "claim or defense" that "arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading...."[2]
The counterclaim issue has been considered by two trial courts. In Giambuttista v. Bradlees, Inc., 130 N.J. Super. 381, 327 A.2d 256 (Law Div. 1974), the trial court denied a motion for leave to amend a timely answer to assert a personal-injury counterclaim after the running of the statute. We regard its holding, for the reasons we express herein, as overly rigid. In Atlantic City Hospital v. Finkle, 110 N.J. Super. 435, 265 A.2d 853 (Cty.Ct. 1970), the trial judge reached a contrary conclusion. There plaintiff-hospital had sued defendant to recover its bill for services rendered while he was a patient. After the running of the statute of limitations on the claim, defendant sought leave to amend his answer to assert, by way of counterclaim, a personal-injury claim based on a breach of warranty theory. By way of policy justification for permitting him to do so, the trial judge reasoned that:
Statutes of limitations are designed to bar stale claims; to require parties to assert their demands within a fixed time, in order to avoid losing witnesses or evidence that the opposing party ordinarily might have had except for the inordinate passage of time from the inception of the cause of action. Trenton *144 v. Fowler-Thorne Co., 57 N.J. Super. 196 [154 A.2d 369] (App.Div. 1959). However, where the subject of defendant's claim is intertwined with the cause of action advanced by the complaint, timely filed, reason and logic dictate that defendant's claims should not be denied on account of the passage of time.
[110 N.J. Super. at 440, 265 A.2d 853.]
While these concepts both presaged and were reinforced by Lawlor and its progeny, and hence, in our view, were able to stand on their own as the theoretical basis for application of the relation-back provision of R. 4:9-3, the trial judge further relied on the principle of recoupment, correctly noting that a defendant may raise that claim at any time during the pendency of the litigation, even after the statute has run. But the doctrine of recoupment is ordinarily one of commercial application and, more significantly, limits the defendant's recovery on his affirmative claim to the amount claimed against him by plaintiff. See e.g., Beneficial Fin. Co. of Atl. City v. Swaggerty, 86 N.J. 602, 609, 432 A.2d 512 (1981); Gibbins v. Kosuga, 121 N.J. Super. 252, 257, 296 A.2d 557 (Law Div. 1972). It is, therefore, evident that a personal injury counterclaim interposed in an action to collect a bill for the services that allegedly caused the injury and seeking greater damages than are sought by the complaint is, strictly speaking, not properly classifiable as a recoupment.
We are, however, satisfied that there is an alternate theoretical underpinning for excepting the transactionally-related counterclaim from the limitations bar consistent with the policy rationale of Lawlor and consistent as well with the underlying policy of recoupment as a procedural mechanism for permitting "a transaction which is made the subject of suit by a plaintiff to be examined in all its respects, and judgment to be rendered that does justice in view of the one transaction as a whole." Rothensies v. Electric Battery Co., 329 U.S. 296, 299, 67 S.Ct. 271, 272, 91 L.Ed. 296, 299 (1946). In analyzing the cognate federal rules, Professors Wright, Miller and Kane note that the majority of the federal courts have taken the view that "the institution of plaintiff's suit tolls or suspends the running *145 of the statute of limitations governing a compulsory counterclaim." 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane Federal Practice and Procedure § 1419 at 152 (1990). See, e.g., Perfect Plastics Industries, Inc. v. Cars & Concepts, 758 F. Supp. 1080 (W.D.Pa. 1991); UST Capital Corp. v. Charter Nat. Life Ins. Co., 684 F. Supp. 757 (D.Mass. 1986); Roberts-Wey v. Seafla, Inc., 613 F. Supp. 1204 (S.D.Ohio 1985); Tri-Ex Enterprises, Inc. v. Morgan Guaranty Trust, 586 F. Supp. 930 (S.D.N.Y. 1984); Oahu Gas Service, Inc. v. Pacific Resources, Inc., 473 F. Supp. 1296 (D.Haw. 1979).
We are satisfied that in this context, a compulsory counterclaim in the federal practice is the practical equivalent of a claim encompassed by the entire controversy doctrine in our practice. And we are persuaded that the federal rationale of tolling in respect of compulsory counterclaims applies fully to our definition of a required component of the controversy. That rationale is summarized by the authors of the treatise as follows:
This approach precludes plaintiff, when the claim and counterclaim are measured by the same period, from delaying the institution of the action until the statute has almost run on defendant's counterclaim so that it would be barred by the time defendant advanced it. Nor is plaintiff apt to be prejudiced by the tolling of the statute, since he presumably has notice at the time he commences his action of any counterclaim arising out of the same transaction as his suit. Moreover, the necessarily close relationship between the timely claim and the untimely counterclaim should insure that the latter is not "stale" in the sense of evidence and witnesses no longer being available; they should be as accessible for adjudicating the counterclaim as they were for the main claim.
[6 Wright et al., supra, § 1419 at 152-53.]
While we subscribe to the view of the treatise,[3] we further note that here plaintiff's notice of her susceptibility to a *146 counterclaim by defendant arising out of the same accident is not just presumed. The answer which was filed, although omitting a counterclaim, did, by way of affirmative defense, charge her with causal negligence. She was thus apprised that proof of her affirmative claim would require a full exploration of the asserted negligence of both parties.
Finally, we point out that there are situations in which only the tolling rationale, and not R. 4:9-3, will be available to save the counterclaim from the bar of the statute of limitations. That is so because R. 4:9-3, by its terms, applies to the relation-back of a claim or defense asserted in an amended pleading. Here, an answer having been previously filed, the counterclaim was sought to be asserted in an amended pleading. But it is also possible that a counterclaim might be sought to be asserted after the running of the statute by way of a first responsive pleading where no prior answer was filed. In that case, the responsive pleading, not constituting an amended pleading, would not be technically subject to R. 4:9-3. But the counterclaim therein asserted would nevertheless relate back to the date of the filing of the complaint under a tolling rationale.
Our conclusion that the counterclaim is not barred by the statute of limitations does not, of course, mean that it is automatically entitled to be pursued. As we said at the outset, it must still meet the standards applicable to all late motions to amend. The interests of justice must be served thereby. The court must be satisfied that there is some facial merit to the claim and that the party seeking relief has not acted in bad faith, for a strategic advantage only, or for purposes of delay or harassment. The failure to have timely raised the issue must, in the circumstances, be excusable. The court must consider whether denial of the motion would be preclusive of the claim under either the statute of limitations, the entire *147 controversy doctrine, or both. The court must be satisfied that permitting the amendment will neither unduly prejudice the adversary in maintaining a proper and effective defense nor unduly compromise the interests of other parties to the action, if any. See, e.g., Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J. Super. 277, 299-300, 375 A.2d 675 (App.Div.), certif. denied, 75 N.J. 528, 384 A.2d 507 (1977). We inquired carefully of counsel as to these matters at oral argument and found nothing to justify a denial of defendant's amendment motion. In the interests of expedition and economy, we therefore elect to exercise our original jurisdiction under R. 2:10-5 by reversing the denial order and directing entry of an order permitting the counterclaim to be filed and served.
We make one final observation. In both this case and Burrell, supra, the defendant who failed to file a timely counterclaim was being represented by an attorney assigned by his insurer to provide a defense to plaintiff's personal injury action. While we do not know from this record exactly why defendant's counsel did not file a counterclaim on his behalf, we nevertheless emphasize that that attorney owes his first allegiance to his client in the action, the insured, and bears the responsibility to represent him properly in all respects. Proper representation obviously includes exploration and preservation of his affirmative claims. Failure to do so, in our view, would constitute an egregious breach of the attorney-client relationship.
The order appealed from is reversed. We remand to the trial court for further proceedings consistent with this opinion.
NOTES
[1] According to the record before us, there were actually two subrogation complaints filed, one in July 1990 and one in August 1990. They are nearly but not quite identical and no reason is suggested in the record for the double filing. It appears, moreover, that only one docket number was assigned to that cause of action.
[2] The federal courts that have construed the federal analogues of R. 4:7-4, 4:9-1, and 4:9-3, namely Fed.R.Civ.Pro. 13(f), 15(a) and 15(c), respectively, are split on the question of whether an omitted counterclaim qualifies for relation back. Stoner v. Terranella, 372 F.2d 89 (6th Cir.1967), concluded that only an amendment allowed under Rule 15(a), not one allowed under 13(f) can qualify. Butler v. Poffinberger, 49 F.R.D. 8 (D.W. Va. 1970), disagrees. Professors Wright, Miller and Kane criticize the reasoning of Stoner and endorse Butler. See 6A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1496 at 67-70 (1990). We are in full agreement with their analysis.
[3] Our sister states are split on the question of application of the limitations bar to a germane counterclaim. See cases collected in Annotation, Tort Claim Against Which Period of Statute of Limitations Has Run as Subject of Setoff, Counterclaim, Cross Bill, or Cross Action in Tort Action Arising out of Same Accident or Incident, 72 A.L.R.3d 1065 (1976); Annotation, Claim Barred by Limitation as Subject of Setoff, Counterclaim, Recoupment, Cross-Bill or Cross Motion, 1 A.L.R.2d 630 (1948), and later case service. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3399376/ | The judge, to whom the case was submitted on the pleadings and an agreed statement of facts, properly construed the will and directed the executor as to the administration of the estate in the particulars shown in the written judgment set forth in the statement of facts preceding the opinion, infra.
No. 15941. OCTOBER 14, 1947.
Fred Young, as executor under the will of Mrs. Ella E. Young, deceased, filed in the Superior Court of Bleckley County, Georgia, a petition seeking construction of certain items of the will of Mrs. Young and direction as to administration, naming as defendants the legatees and devises in the said will, the sole heirs at law of Mrs. Young. The petition alleged the following: Mrs. Ella E. Young died testate on August 19, 1946, a resident of Bleckley County, Georgia, a copy of her will being attached to the petition as Exhibit "A" and made a part thereof. The said will reads as follows, omitting directions as to burial and payment of just debts: "3. I give, bequeath, and devise to my beloved daughter Mrs. Helen Mullis 25 acres of land in the northern portion of lot of land number 79 in the 21st district of Bleckley County, Georgia, which said 25 acres include the home on and in which I now live and the barn thereto, said 25 acres [then follows description]. 4. I give, bequeath and devise the balance of my land which includes 177 1/2 acres, more or less, in lot 79 in the 21st district of Bleckley County, Georgia, and 199 1/2 acres, more or less, in lot of land number 72 in the 21st district of Bleckley County, Georgia, to the following beloved daughters of mine, share and share *Page 695
alike: Mrs. Julia Lyles, Mrs. Maggie Purser, Mrs. Pansy Hall, and Mrs. Nora Bagley. 5. I give, bequeath, and devise to my beloved sons, namely Wilbur Young, Fred Young, Vance Young, and Linder Young, four United States Liberty bonds in denominations of $1000 each, share and share alike, and they are to have all interest and increase of same. 6. I desire that one Liberty bond, being a United States Liberty bond, be sold and my beloved son John Young be given the sum of $1000 out of this bond, and the balance be divided equally between my beloved sons, Wilbur Young, Fred Young, Vance Young, and Linder Young, this bond being a denomination of $1000, the four last named to receive the balance of same which is to include all interest and increase in same. 7. I give, bequeath, and devise to my beloved daughter, Mrs. Cora Hobbs, one United States Liberty bond denomination of $1000, she to have all interest and increase in same. 8. The six United States Liberty bonds included in items 5, 6 and 7 of this will being all the United States Liberty bonds that I own or possess at this time, and the serial numbers or other description of same unknown to me at the time of making of this will. 9. I give, bequeath, and devise to my beloved son, Linder Young, the double-barrel shotgun formerly belonging to his father, T. J. Young. 10. I give, bequeath, and devise to my beloved daughter, Mrs. Maggie Purser, my cedar chest. 11. I give, bequeath, and devise to my beloved daughters, namely Mrs. Cora Hobbs, Mrs. Helen Mullis, Mrs. Nora Bagley, Mrs. Julia Lyles, Mrs. Maggie Purser, Mrs. Pansy Hall, share and share alike, the balance of my furniture and household goods and kitchen furniture. 12. I give, bequeath, and devise to my beloved daughters, namely Mrs. Helen Mullis, Mrs. Cora Hobbs, Mrs. Nora Bagley, Mrs. Julia Lyles, Mrs. Maggie Purser, and Mrs. Pansy Hall, share and share alike, the $4000 that I have as life insurance with the AEtna Life Insurance Company. 13. I desire that all other property not included in this will be put up and sold by my executor hereinafter named at my home place publicly, but without any order of court and the proceeds therefrom be divided among my children as follows: Mrs. Nora Bagley, Mrs. Julia Lyles, Mrs. Maggie Purser, Mrs. Pansy Hall, Mrs. Helen Mullis, Wilbur Young, Fred Young, Vance Young, and Linder Young. 14. In the event of the death of any of the above legatees before I die, then I desire *Page 696
that their children to take the share of its parent, per stirpes. 15. I hereby name, constitute, and appoint my beloved son, Fred Young, as executor of this my last will and testament, and I expressly confer upon him the power as such executor to carry out all the provisions of this will, excusing him from giving any bond or making any returns to the court of ordinary, and confer upon him full power to sell the property not included in this will, as above provided, with the power to transfer any and all property herein bequeathed to the legatees herein named, without any order of court, and his legacies herein are to be in lieu of any commissions for his acting as executor herein. This 20 days of October, 1944."
It was further alleged as follows: The said will was probated in solemn form at the September term, 1946, of the court of ordinary of the said county, and the petitioner was duly named as executor therein and he qualified on such date. The following assets have come into the petitioner's hands as executor as to which he desires direction as to administering the same: (a) $3461.57 demand deposit in Cook Banking Company, Cochran, Georgia. (b) $991.78 time deposit in City Bank Trust Company, Macon, Georgia. (c) Certificate of participation, number 474, policy number NN89118 (issued or assumed by National Life Insurance Company of the United States of America) on the life of Tobe J. Young, a deduction of $396.27 for policy lien accrued interest having been made in settlement of a death claim under the above policy, the certificate of participation issued to Ella E. Young, widow and beneficiary of Tobe J. Young, deceased. (d) Some small open accounts due Mrs. Ella E. Young at the time of her death. (e) One United States of a America savings bond $1000, No. M131313B, series B, due July 1, 1946, issued to Mrs. Ella E. Young, Route 4, Cochran, Georgia, dated July 1, 1936, issue price $750, registered in name of Mrs. Ella E. Young. (f) One United States of America savings bond $1000, No. M131314B, series B, due July 1, 1946, issued to Mrs. Ella E. Young, Route 4, Cochran, Georgia, dated July 1, 1936, issue price $750, registered in name of Mrs. Ella E. Young. (g) One United States of America savings bond $1000, No. M131315B, series B, due July 1, 1946, issued to Mrs. Ella E. Young, Route 4, Cochran, Georgia, dated July 1, 1936, issue price $750, registered *Page 697
in name of Mrs. Ella E. Young. (h) Rents derived from real estate in said will. At the time of the making of the said will, Mrs. Ella E. Young was possessed of six United States savings bonds, series B, for $1000, of the character set out above. In October, 1945, Mrs. Ella E. Young cashed three United States savings bonds, series B, of the character set out above. The petitioner does not have any knowledge or information that the deceased delivered the money from the bonds so cashed to any of the legatees named in items 5, 6, and 7 of the will, and neither can the money from the said cashed bonds be traced. The petitioner did not find and does not have any knowledge or information that Mrs. Ella E. Young ever owned any United States Liberty bonds. The petition then named the above-mentioned legatees and devisees as being all the heirs at law of the testatrix and named them as defendants, and prayed for a construction of the will and direction as to administration, setting forth certain questions in the premises which need not be enumerated here, as they are fully covered in the judgment of the court hereinafter quoted. The defendants, Vance Young, John Young, Linder Young, and Mrs. Cora Young Hobbs, joined in a plea and answer, setting forth their contentions as to the proper construction of the items of the will upon which the executor desired to be instructed. The defendants, Wilbur Young, Mrs. Helen Mullis, Mrs. Julia Lyles, Mrs. Maggie Purser, Mrs. Pansy Hall, and Mrs. Nora Bagley, also joined in a plea and answer, setting forth their contentions as to the proper construction of the items of the will.
By agreement of all parties, the case was submitted to the judge of the court for decision, without the aid of a jury, upon the pleadings and the following stipulation of facts: Mrs. Ella E. Young died in Bleckley County on August 19, 1946, testate, having made her will on October 20, 1944. The will, a copy of which was attached to the petition, was probated in solemn form in the Court of Ordinary of Bleckley County at its September, 1946, term. Fred Young, who was named as executor in the will, duly qualified as such executor. Mrs. Young left surviving her the children who were named as legatees and devisees in the will, they being her sole heirs at law. Prior to her death Mrs. Young had rented for farm purposes for the year 1946 the lands devised in her will, the rental of $775 having been paid to the executor after her *Page 698
death. At the time of the execution of the will and at the time of her death, Mrs. Young owned and possessed three United States of America savings bonds of series B, in the denomination of $1000 each, the same having been issued as of July 1, 1936, with the maturity date July 1, 1946, and being numbered respectively M131313B, M131314B, and M131315B. The purchase-price of the bonds was $750 each, their maturity value being $1000 each. At the time of the execution of the will she owned and possessed, in addition to the foregoing described bonds, three United States of America savings bonds of series B in the denomination of $1000 each, the same being dated July 1, 1936, and maturing July 1, 1946, the purchase-price being $750 each and the maturity value $1000 each. These last three named bonds Mrs. Young surrendered, and they were redeemed, in October, 1945, after the execution of her will, and she did not own or possess the same at the time of her death or deposit their proceeds in her bank account. At the time of making her will the said testatrix did not own or possess any United States Liberty bonds or any United States bonds other than those above described, and this was also true at the time of her death. The above-described bonds, M131313B, M131314B, and M131315B, owned by the testatrix at the time of the execution of her will, were the bonds referred to in items 5, 6, 7, and 8 of the will. Under item 12, the beneficiaries of the bequest of "the $4000 that I have as life insurance with the AEtna Life Insurance Company" have received $114.61 each or a total of $687.65, the value of the insurance at the time of the death of the testatrix. At the time of the execution of the will, and at the time of her death, Mrs. Young owned and possessed an automobile, a few head of cattle, and farm implements located on her home place, which said property was sold by the executor, as provided for in item 13 of the will, for $2472.60. The testatrix died seized and possessed of certain other property not specifically mentioned in her will, namely: some small accounts due her at the time of her death; one Certificate of Participation, number 474, policy No. NN89118 (issued or assumed by National Life Insurance Company of the United States of America) on the life of Tobe J. Young, issued to the said testatrix as beneficiary of the said Tobe J. Young, deceased, in settlement of the claim under the said policy; $3461.57 on demand deposit in Cook Banking *Page 699
Company, Cochran, Georgia; $991.78 on time deposit in City Bank
Trust Company, Macon, Georgia. It was also stipulated as follows: The said executor has assented to the legacies in items 3, 4, 9, 10, 11, and 12 of the said will. The debts of the estate have been paid, except one contested demand for approximately $575. Funeral expenses of administration of the estate, amounting to $1222.96, have been paid. Unpaid items are as follows: expenses of administration for marker for the grave of the said testatrix; expenses of the executor and attorney's fees, the amount of which has not been determined. The executor now has on hand:
The foregoing described three United States of America savings bonds of series B, Nos. M131313B, M131314B, and M131315B, of the value of $1000 each ........................... $3000.00 Deposit in Cook Banking Company ................... 3461.57 Deposit in City Bank Trust Company .............. 991.78 Proceeds from sale of property on home place....... 2472.60 Rents collected from land ......................... 775.00 Cash collected from open accounts, approximately... 100.00 ----------- Total ..............................................$10,800.95
Less amount paid on expense of administration....... 1,222.96 Leaving on hand, approximately .....................$ 9,577.99
The court rendered judgment as follows: "Upon consideration of this case it appears the said executrix, Mrs. Ella E. Young, intended to remember all of her children in the distribution of her estate; that she possessed at the time of her death all of the property undertaken to be disposed of by her will save 6 United States Liberty bonds mentioned in items 5, 6, 7, and 8 of the will, which bonds she did not have either at the time of the execution of the will or at her death, but did have at the time of the execution of the will 6 United States of America savings bonds in denomination of $1000 each, and that she had disposed of 3 of same. Also that she had at time of her death on deposit in banks $4453.35, which she did not have in mind in making the will. The will did not mention any money. The answer to questions *Page 700
raised is not without doubt. It is difficult to know the law applicable to and controlling same. But it is clear the testatrix intended to remember all of her children substantially alike, and having done this it was her further intention to give the residue of her estate to all of her children excepting two. To carry out this scheme she made certain special bequests in items 3, 4, and 12 of the will, and intended to give the legatees named in items 5, 6, 7, and 8 not less than $1000 each, and then provided in item 13 for the disposition of the residue of her estate. Now I am not in doubt as to her intention and as to what is a fair and just construction of the will. Hence I find:
"1. That the $775 rents received from the lands mentioned in items 3 and 4 of the will go with the lands to the legatees named in said items.
"2. That the 3 United States of America savings bonds be collected and reduced to cash by the executor.
"3. That the legatees named in items 5, 6, 7, and 8 of the will receive $1000 each. Same to be paid, together with the debts, if any, of the estate and the expenses of administration, from the proceeds of the said three United States savings bonds, from the deposits in the banks, from the proceeds of the open accounts, the certificate of participation number 474, and from the proceeds $2472.60 from sale of the property on the home place.
"4. That the legatees named in item 13 of the will receive the residue of the estate, that is, the balance in hand after payment of the legacies in items 5, 6, 7, and 8, if any, and the expenses of administration.
"5. The executor is not entitled to any commissions, but is entitled to his expense in the administration of the estate.
"Wherefore, it is ordered and adjudged that the said will be construed as hereinbefore set out, and that the executor be instructed to administer and distribute said estate in accordance with the findings made herein in paragraphs 1, 2, 3, 4, and 5 of this judgment. Let the costs of this case be paid by the executor from the funds of said estate as part of the expense of administration of the estate. This May 29, 1947."
To the judgment of the court Wilbur Young, Mrs. Helen Mullis, Mrs. Julia Lyles, Mrs. Maggie Purser, Mrs. Pansy Hall, and *Page 701
Mrs. Cora Hobbs excepted, and it is contended that it should have been held by the court:
1. The legacies in items 5 and 7, relating to bonds, are specific and not general, and the legatees should receive only such specific property of that bequeathed as was owned by the testatrix at her death, the abatement being pro rata.
2. The legacy in item 6, $1000 from the proceeds of the sale of a bond to be paid to John Young, is adeemed.
3. The sum of money in banks, $4453.35, not specifically mentioned in the will, should be disposed of under item 13, along with "all other property not included in this will," and not be divided among all the heirs.
"Legacies may be either general or specific. A specific legacy is one which operates on property particularly designated. A gift of money to be paid from a specified fund is nevertheless a general legacy." Code, § 113-808. However, a testator may so charge a money legacy upon a particular fund as to make the legacy follow the fate of the fund. Tinsley v. Maddox,176 Ga. 471 (13) (168 S.E. 297). A good definition of a specific legacy is found in Harper v. Bibb, 47 Ala. 547, 553: "A specific legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui juris. The testator fixes upon it, as it were, a label, by which it may be identified and marked for delivery to the owner, and the title to it, as a separable thing, vests at once, on the death of the testator, in the legatee." In Jarmon on Wills (6th ed.), appears the following statement, quoted with approval in Bailes v.Halsey, 179 Ga. 182, 184 (175 S.E. 472): "A general legacy is a gift of something to be furnished out of the testator's general personal estate; it need not form part of the testator's property at the time of his death." A residuary legacy is "a general legacy into which fall all the assets of the estate after the satisfaction of all other legacies and the payment of all debts of the estate and all costs of administration." Redfearn on Wills and Administration (rev. ed.), 234, § 144; Henderson v.First National Bank of Rome, 189 Ga. 175 (5 S.E.2d 636, 128 A. L. 816). *Page 702
"In construing a will the intention of the testator is the controlling consideration, and his intention must be ascertained by taking the will, as it is said, `by the four corners,' and giving to all parts of it consideration." Yerbey v. Chandler,194 Ga. 263 (21 S.E.2d 636). See also Shoup v. Williams,148 Ga. 747 (98 S.E. 348); Owens v. Citizens SouthernNational Bank, 177 Ga. 289 (3) (170 S.E. 196). Another rule early announced is that, where the question is in doubt, the courts are not inclined to construe a legacy to be specific.Morton v. Murrell, 68 Ga. 141. As stated in Tifft v.
Porter, 8 N.Y. 516, and approved in Bailes v. Halsey, supra, "The presumption is stronger that a testator intends some benefit to a legatee than that he intends a benefit only upon the collateral condition that he shall remain, till death, owner of the property bequeathed."
Unquestionably the will of the testatrix evidences in its entirety an intention to remember all of her children substantially alike in the disposition of the property mentioned in the will, and as to any residue to bequeath it to all of her children with the exception of John Young and Mrs. Cora Hobbs. Omitting three bonds disposed of after the execution of the will, she possessed at her death practically all of the property she sought to dispose of by her will. The designation of her bonds as "Liberty bonds," instead of United States savings bonds as in truth they were, negatives any effort or desire to precisely label, sequester, or identify any bond so as to render it capable of being delivered to one rather than to another legatee among those to whom bonds were bequeathed. While the testatrix did not mention any money in bank or accounts receivable, yet in selling three of her bonds she was evidently aware that she had sufficient funds in her estate, or would have at her death, out of which to pay those deprived of a bond the exact equivalent. She refers in her will to the bonds as being of the denomination of $1000, and it may reasonably be inferred that she intended to bequeath to each of the legatees in items 5, 6, and 7 something which had a value of $1000, that is, she desired to confer upon each a benefit of $1000. Had the testatrix, in items 5 and 7, described or labeled the bonds, as it were, so that particular and definite bonds, as distinguished from bonds generally described and usually available in the open market, could be delivered to the legatees under item 5, and an equally *Page 703
separable and distinct bond could be delivered under item 7 to Mrs. Cora Hobbs, were all such bonds owned by the testatrix at her death, such legacies would, under the legal definitions above quoted, have been specific legacies. To illustrate: If the testatrix had willed "a bond which I now own, being a United States savings bond numbered M131316B, the same having been issued on July 1, 1936, and maturing on July 1, 1946, the issue price being $750 and the maturity value being $1000," such a legacy would clearly have been a specific legacy. If such a bond had been sold by the testatrix after so labeling or sequestering it, the legacy would, therefore, be adeemed, which ademption, as stated in the Code, § 113-817, may occur under the following circumstances: "A legacy is adeemed or destroyed, wholly or in part, whenever the testator delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given; or when the testator conveys to another the specific property bequeathed, and does not afterward become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy." The failure to particularize the bonds bequeathed in item 5 to the four named sons of the testator, and the bond bequeathed in item 7 to Mrs. Cora Hobbs, daughter of the testatrix, forbid their being classified as specific legacies, and, consequently, they do not fail but are payable as general legacies, $1000 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand, hereinafter referred to, after the payment of debts, if any, and the expenses of administration. These assets, being the "general assets," and to which recourse may be had for the payment of the legacies above mentioned, are: 1. The proceeds from the sale of the three bonds on hand. 2. $4453.35 in bank. 3. $100 collected from open accounts. 4. $2472.60, proceeds from the sale of certain property on the home place of the testatrix. 5. Proceeds from the certificate of participation No. 474. We do not include the $775 collected by the executor as rents which, as ruled by the trial court, properly go to those legatees to whom the lands were devised, and to which ruling no exception is taken.
In item 6 it is plain that the testatrix intended that the legatee, John Young, receive $1000, her "desire" that "one Liberty bond" *Page 704
be sold being merely the recommendation of a source from which the $1000 might be obtained. The legacy is not a specific legacy which has been adeemed, as contended by the plaintiffs in error, as it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind. It is a demonstrative legacy and does not fail if the subject-matter be not in existence on the death of the testatrix. "A demonstrative legacy is one which designates the fund or property from which it is to be satisfied, but is nevertheless an unconditional gift to the legatee of the amount or value specified. That it names a particular fund or other property from which it is to be satisfied, is considered to be demonstrative of a convenient mode of payment; if that mode fails, the legacy is to be satisfied out of the general assets of the estate. A demonstrative legacy differs from a general legacy in that it does not, in the first instance, abate upon the insufficiency of assets to pay the debts of the estate and the expenses of distribution; it differs from a specific legacy in that there is recourse for its payment from the general assets of the estate in the event of ademption in part or in whole." Owens v. Citizens Southern Nat. Bank,177 Ga. 289 (2) (170 S.E. 196); Thomas v. King, 182 Ga. 463
(1) (185 S.E. 820). This legacy is also payable out of the "general assets." Since the will may reasonably be construed as showing an intention of the testatrix to bequeath to the six legatees under items 5, 6, and 7 something of the value of $1000 each, and only three bonds remain, a fair and just execution of the will, as found by the trial court, would be to sell the three bonds and place the proceeds in the general assets, and from that fund pay the six legatees under items 5, 6, and 7, $1000 each.
The contention that the money in bank, $4453.35, though not specifically mentioned in the will, should be treated as part of the residue bequeathed in item 13, rather than be divided between all the heirs, is well taken, except that, along with other parts of the residue, it may be resorted to for the payment of the legacies in items 5, 6, and 7 in the manner hereinbefore pointed out. In item 13 it was willed: "I desire that all other property not included in this will be put up and sold by my executor hereinafter named at my home place publicly, but without any order of court and the proceeds therefrom be divided among my children as follows: *Page 705
(Naming all the children except John Young and Mrs. Cora Hobbs.)" The money in bank certainly comes within the description, "all other property not included in this will; and although the testatrix directed that the property intended for the children named in item 13 be put up and sold for the purpose of division, the will can not reasonably be construed to require the doing of a useless thing, that is, the selling of that which is already payable in money in a fixed sum, but to require only the sale of "all other property not included in this will," which necessarily has to be converted into cash in order to properly disburse the residue of the estate.
Respecting the inquiry from the executor in his petition as to whether he would be entitled to any commission, an inquiry evidently made in connection with the question whether or not the money in bank, $4453.35, not mentioned in the will, would pass to all the heirs or be distributed under item 13 relating to the residue of the estate, it must be said that, since all the property comes under the provisions of the will, the executor is not entitled to any commission whatever, it being provided by item 15 that "his legacies herein are to be in lieu of any commissions for his acting as executor herein." The trial court so held.
It follows from the above that the court correctly construed the will and properly instructed the executor as to the disposition of the assets, as set out in paragraphs numbered 1 to 5, inclusive, of the judgment.
Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/168968/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-2167
v. (D.Ct. No. CR -06-377 JP)
(D . N.M .)
A D RIA N IB AR RA -G U ZM A N ,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Adrian Ibarra-Guzman pled guilty to one count of reentry of a
*
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.
deported alien previously convicted of a felony in violation of 8 U.S.C.
§ 1326(a)(1) and (2) and (b)(1). The district court sentenced M r. Ibarra-Guzman
to twenty-four months imprisonment. W hile M r. Ibarra-Guzman appeals the
district court’s sentence, his attorney has filed an Anders brief and motion to
withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For
the reasons set forth hereafter, we grant counsel’s motion to w ithdraw and dismiss
this appeal.
M r. Ibarra-Guzman pled guilty to a one-count indictment for unlawful
reentry of a deported alien previously convicted of a felony, in violation of 8
U.S.C. § 1326(a)(1) and (2) and (b)(1). The record further establishes that in
2004, in case number CR04-0241-01VRW in the United States District Court for
the Northern District of California, M r. Ibarra-Guzman w as convicted of the
felony crime of illegal reentry following deportation and sentenced to fifteen
months custody, after which he w as again deported to M exico. He was also
convicted in August 1996, in case number SC38516A in the San M ateo County
Superior Court, of the felony crime of being an accessory to reckless discharge of
a firearm.
After M r. Ibarra-Guzman pled guilty to the indictment for unlawful reentry
of a deported alien previously convicted of a felony, the probation officer
-2-
prepared a presentence report calculating M r. Ibarra-Guzman’s sentence under the
applicable United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”).
The presentence report set his base offense level at eight pursuant to U.S.S.G.
§ 2L1.2(a), increased his base level four levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(D) because he had been deported following conviction of a felony,
and reduced his offense level by two for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1, resulting in a total offense level of ten. The presentence report
also set M r. Ibarra-Guzman’s criminal history level at VI, which, together with an
offense level of ten, resulted in a Guidelines sentencing range of twenty-four to
thirty months imprisonment.
M r. Ibarra-Guzman did not file any objections to the presentence report,
either prior to or at his sentencing hearing. In addition, at the sentencing hearing,
M r. Ibarra-Guzman told the district court all of the statements of fact in the
presentence report had been read to him in Spanish and were true and correct.
After the district court explicitly stated it had considered the presentence report
factual findings, the G uidelines, and the factors set forth in 18 U.S.C. § 3553(a),
it sentenced M r. Ibarra-Guzman at the low end of the Guidelines range to twenty-
four months imprisonment.
After M r. Ibarra-Guzman filed a timely notice of appeal, his appointed
-3-
counsel filed an Anders appeal brief, explaining M r. Ibarra-Guzman wished to
challenge only the length of his sentence and not his guilty plea. However,
counsel further states a review of the record and relevant case law reveal the
appeal to be wholly frivolous and, for that reason, counsel moves for an order
permitting withdrawal as counsel. See Anders, 386 U.S. at 744. In support of his
position the appeal is frivolous, M r. Ibarra-Guzman’s counsel points out M r.
Ibarra-G uzman’s offense level and criminal history category were correctly
calculated, the district court sentenced M r. Ibarra-Guzman within the applicable
Guidelines range, and his sentence was not otherwise imposed in violation of the
law under 18 U.S.C. § 3742(a). Pursuant to Anders, this court gave M r. Ibarra-
Guzman an opportunity to respond to his counsel’s Anders brief. Id. M r. Ibarra-
Guzman failed to file a response.
As required by Anders, we have conducted a full examination of the record
before us. See 386 U.S. at 744. W hen a defendant’s “claim is merely that the
sentence is unreasonably long, we do not require the defendant to object in order
to preserve the issue.” United States v. Torres-Duenas, 461 F.3d 1178, 1183
(10th Cir. 2006), petition for cert. filed (Nov. 22, 2006) (No. 06-7990). Instead,
we review for reasonableness the sentence’s length, as guided by the factors in 18
U.S.C. § 3553(a). See id. Having made such a review, we find no nonfrivolous
basis for challenging the sentence imposed. The district court in this case
-4-
explicitly considered the factors in § 3553(a), and a presumption of
reasonableness attaches to a sentence which is within the correctly-calculated
Guidelines range, which M r. Ibarra-G uzman has not rebutted. See United States
v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006) (per curiam). For these
reasons, no meritorious appellate issue exists.
Accordingly, we GR A N T counsel’s motion to withdraw and DISM ISS M r.
Ibarra-G uzman’s appeal.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4554025/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-17036
Petitioner-Appellee,
D.C. No.
v. 3:15-cv-00092-
WHA
SANMINA CORPORATION AND
SUBSIDIARIES,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted February 11, 2020
San Francisco, California
Filed August 7, 2020
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Susan R. Bolton,* District Judge.
Opinion by Judge Callahan
*
The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
2 UNITED STATES V. SANMINA CORP.
SUMMARY **
Tax
The panel affirmed in part and reversed in part the
district court’s determination, that taxpayer Sanmina
Corporation had waived attorney-client privilege and work-
product protection for certain memoranda prepared in
support of a worthless stock deduction on Sanmina’s federal
tax return, in a petition by the Internal Revenue Service to
enforce a summons for those memoranda.
The memoranda in question (Attorney Memos) were
authored by Sanmina’s in-house counsel and referenced in a
valuation report prepared by DLA Piper (DLA Piper Report)
in support of the worthless stock deduction. The district
court initially denied enforcement of the summons. This
court remanded for in camera review of the Attorney
Memos. On remand, the district court determined that the
Attorney Memos were covered by both attorney-client
privilege and work-product protection, but that those
privileges had been waived. On appeal, the parties did not
dispute that the Attorney Memos were privileged.
The panel first held that Sanmina expressly waived the
attorney-client privilege when it disclosed the Attorney
Memos to DLA Piper. The panel next held that Sanmina did
not expressly waive work-product immunity merely by
providing the Attorney Memos to DLA Piper, but it
impliedly waived the privilege when it subsequently used the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SANMINA CORP. 3
DLA Piper Report to support its tax deduction in an IRS
audit, because such use was inconsistent with the
maintenance of secrecy against its adversary. The panel
ordered disclosure of only the factual content of the Attorney
Memos on which the DLA Piper Report relies, and
remanded for the district court to determine the specific
portions of the Attorney Memos that should be disclosed to
the IRS.
COUNSEL
Michael C. Lieb (argued) and Leemore L. Kushner, Ervin
Cohen & Jessup LLP, Beverly Hills, California, for
Respondent-Appellant.
Bethany B. Hauser (argued) and Deborah K. Snyder,
Attorneys; Richard E. Zuckerman, Principal Deputy
Assistant Attorney General; Tax Division, United States
Department of Justice, Washington, D.C.; for Petitioner-
Appellee.
4 UNITED STATES V. SANMINA CORP.
OPINION
CALLAHAN, Circuit Judge:
Sanmina Corporation (“Sanmina”) claimed a worthless
stock deduction on its federal tax return, which triggered an
audit by the United States Internal Revenue Service (“IRS”)
of Sanmina’s tax returns. To support the deduction,
Sanmina provided to the IRS a valuation report that had been
prepared by DLA Piper, LLP, which in turn cited two
memoranda authored by Sanmina in-house counsel. The
IRS issued a summons for the memoranda, and Sanmina
objected on the basis that they were protected both by
attorney-client privilege and the attorney work-product
doctrine.
After the district court initially denied enforcement of the
summons, the IRS appealed to this court. We remanded for
in camera review of the memoranda but retained jurisdiction
over the appeal. United States v. Sanmina, 707 F. App’x 865
(9th Cir. 2017). On remand, the district court determined
that the memoranda were covered by both attorney-client
privilege and work-product protection, but that those
privileges had been waived.
We affirm in part and reverse in part the district court’s
findings. We agree that Sanmina’s disclosure of the
memoranda to DLA Piper waived the attorney-client
privilege. However, such disclosure did not waive their
work-product protection, except for the factual content of the
memoranda. Accordingly, we grant in part and deny in part
the IRS’s enforcement petition, and remand to the district
court to issue a disclosure order consistent with this opinion.
UNITED STATES V. SANMINA CORP. 5
I.
In its federal tax return, Sanmina claimed a worthless
stock deduction arising from its ownership of shares of stock
in a Swiss subsidiary, Sanmina International AG (“Sanmina
AG,” also referred to internally as “Swiss-3600”). The
deduction totaled $503 million and offset all of Sanmina’s
taxable income for the 2008 tax year, with carryforward
losses. The IRS subsequently initiated an examination of
Sanmina’s federal income tax liabilities of Sanmina
Corporation and subsidiaries for the 2008, 2009, and 2010
taxable periods.
To support the worthless stock deduction, Sanmina
provided the IRS with a valuation report prepared by DLA
Piper (the “DLA Piper Report”), which referred to two
memoranda authored by Sanmina’s in-house counsel (the
“Attorney Memos”) in a footnote of the report. The IRS then
issued a summons for the Attorney Memos. In response,
Sanmina declined to produce the memoranda, invoking
attorney-client privilege and attorney work-product
protection. However, Sanmina agreed to disclose to the IRS
the “non-privileged documents on which the analyses
contained in the [Attorney Memos] are based.”
A.
The DLA Piper Report is 102 pages and titled on the
cover page as “Sanmina-SCI Corporation – Estimate of Fair
Market Value of Sanmina International AG – Valuation as
of June 30, 2009.” Each page contains the label “Attorney-
Client Privilege – Confidential Draft.” The report begins
with a two-page letter, which is addressed to Sanmina’s in-
house counsel, and signed by a DLA Piper partner and
economist. It states in part:
6 UNITED STATES V. SANMINA CORP.
DLA Piper . . . has concluded a fair market
value (“FMV”) analysis supporting your
assessment of insolvency of Sanmina
International AG . . . . We understand our
summary report will be used solely for tax
compliance purposes, specifically for
confirming the worthlessness of Sanmina
International AG’s common shares. Our
estimate of value does not constitute a
fairness opinion or an estimate of FMV for
any other purpose and should not be relied
upon as such.
The two-page letter concludes: “Based on a combination of
DCF and ANA analyses, we estimate the FMV of a
marketable, controlling interest in Sanmina AG to be a
negative US$49 million as of the Valuation Date. The value
of Subject Company’s cumulative liabilities therefore
exceeded the value of its assets by US$49 million.”
In the report’s Executive Summary, a section headlined
“Nature of Engagement” states:
Sanmina . . . has asked DLA Piper . . . to
provide an estimate of the fair market value
(“FMV”) of 100 percent of the common stock
of its wholly-owned subsidiary . . . . as of
June 30, 2009 (“Valuation Date”). We
understand that this analysis will be used by
Sanmina’s management (“Management”) to
make a determination of value on liquidation
of Subject Company as of the Valuation Date
in the context of a restructuring of Sanmina’s
international operations. In this content [sic],
it is Management’s intent to assess whether
UNITED STATES V. SANMINA CORP. 7
Sanmina AG’s common stock as of the
Valuation Data [sic] was worthless.
Furthermore, it is our understanding that
Sanmina will not disclose our analysis to
third parties other than its financial auditors
and interested tax authorities without our
expressed written consent.
The footnote referencing the Attorney Memos is found
on page 56 of the report within the following paragraph:
We believed that the book value of each
liability provides the best estimation of its
FMV. However, based on interviews with
Management and related documents
provided by Management,6 we concluded
that the intercompany loan between Sanmina
Holding AB and Sanmina Kista (about
US$ 90 million) as well as the intercompany
non-trade receivable between Sanmina-SCI
and Sanmina AG [i.e., Swiss 3600] (about
US$ 113 million) should be disregarded.
In the text of footnote 6 above, three documents are listed
without further explanation: (1) “Memo draft: Stock and
Debt Losses on Swiss-3600, March 11, 2009”; (2) “Capital
Contribution Agreement between Sanmina-SCI Corporation
and Sanmina International AG, July 3, 2006; and
(3) “Memo: Guarantee and Capital Contribution Agreement
Concerning Sanmina International AG, July 2, 2006.” The
first and third documents listed are the Attorney Memos at
issue in this case.
8 UNITED STATES V. SANMINA CORP.
B.
The Attorney Memos are described by Sanmina’s in-
house counsel as follows:
The 2006 Attorney Memo is a memorandum
dated July 2, 2006 from a former Sanmina tax
department attorney named Chris Croudace
to “File.” The memorandum discusses the
legal analysis supporting the execution of
certain agreements among Sanmina and its
subsidiaries, including the reason for those
agreements, their legal enforceability, and
their tax treatment. The memorandum
includes citations to, and analysis of certain
IRS letter rulings and two tax court decisions.
. . . The 2009 Attorney Memo is a draft
memorandum dated March 11, 2009. The
name of the author is not apparent from the
face of the document, but I was able to
ascertain that the author is Mark L. Johnson,
a former Sanmina tax department lawyer.
Each page of the document bears the notation
“Confidential – Work Product Privilege.”
The 2009 Attorney Memo analyzes the tax
effect of the liquidation of “Swiss-3600,”
which is Sanmina’s internal designation for
Sanmina International AG. The 2009
Attorney Memo contains a factual discussion
and the bulk of the memo consists of a legal
analysis of those facts and their effect on the
liquidation of Swiss-3600. It cites IRS
revenue rulings, tax code provisions, tax
UNITED STATES V. SANMINA CORP. 9
court decisions, and a decision of the U.S.
Supreme Court.
A privilege log produced by Sanmina demonstrates that the
Attorney Memos were shared outside of Sanmina only with
Ernst & Young, KPMG, LLP, and DLA Piper. Sanmina’s
Director of Tax Controversy and Tactical Support, Brian
Dulkie, explains in an affidavit that the Attorney Memos
were “were provided to Ernst & Young . . . and KPMG to
support Sanmina’s taking of a worthless stock deduction”
and both those firms “provided tax advice related to
Sanmina’s decision to take the worthless stock.” According
to Dulkie:
Given the significance of that tax treatment,
Sanmina proceeded with the expectation that
IRS would likely call upon Sanmina to
defend the worthless stock deduction.
Anticipating the possibility that the Service
might adopt an adverse position, Sanmina
sought advice from DLA Piper, Ernst &
Young and KPMG concerning the propriety
of the deduction.
C.
In January 2015, the IRS filed a petition to enforce the
summons for the Attorney Memos, and the district court
issued an order to show cause to Sanmina. After briefing
from the parties and a hearing, the district court (Magistrate
Judge Paul S. Grewal) issued an order denying enforcement
of the summons, finding that the memoranda were privileged
and that the privileges were not waived. The IRS appealed.
In December 2017, a panel of this court remanded the
case “for the district court to review the 2006 and 2009
10 UNITED STATES V. SANMINA CORP.
memos in camera to determine whether the documents
requested by the government are privileged to any degree”
and “retain[ed] jurisdiction over this appeal.” Sanmina,
707 F. App’x at 866. In June 2018, after some dispute
between the parties regarding the scope of the remand and a
request for clarification from the district court, this court
issued another order defining the scope of remand as:
(1) whether the memoranda are privileged in the first
instance and (2) whether such privilege was waived.
D.
On remand, the district court (Judge William H. Alsup)
issued an order that affirmed “Judge Grewal’s finding that
the memoranda are protected by the attorney-client privilege
and attorney work-product doctrine,” but found that the
privileges were “waived when Sanmina disclosed the
memoranda to DLA Piper to obtain an opinion on value, then
turned over the valuation report to the IRS.” Based on its in
camera review of the memoranda, the court found that they
were protected both by (1) attorney-client privilege because
“Sanmina sufficiently showed that the memoranda were
prepared by in-house counsel, in response to a request for
legal advice, and contain legal advice communicated in
confidence to Sanmina executives” and (2) attorney work-
product doctrine because “while there was no pending
litigation when the memoranda were drafted, Sanmina
reasonably anticipated that the IRS would scrutinize its
$503 million stock deduction, so it engaged in-house
counsel to analyze the consequences of taking such a
deduction.”
As to waiver, the district court concluded:
Any attorney-client privilege that might have
attached to the memoranda was waived when
UNITED STATES V. SANMINA CORP. 11
Sanmina voluntarily disclosed the
memoranda to DLA Piper, not for the
purpose of receiving legal advice, but for the
purpose of determining the value of Sanmina
AG’s common stock. Sanmina engaged
DLA Piper for the purpose of conducting a
fair market value analysis to be used for tax
compliance reasons. Anticipating that the
IRS would adopt an “adverse position” to
taking a $500 million deduction, Sanmina
sought DLA Piper’s services in producing the
valuation report. Thus, the point of waiver
took place when Sanmina provided the
privileged memoranda to DLA Piper for the
purpose of producing a valuation report to
then turn over to the IRS. Sanmina cannot
disclose a privileged attorney communication
relevant to an issue of material fact, then
invoke privilege to shield that
communication from discovery.
The district court did not conduct a separate analysis for
waiver of work-product protection apart from its discussion
of waiver for attorney-client privilege but relied on Weil v.
Investment/Indicators, Research & Management, Inc.,
647 F.2d 18 (9th Cir. 1981), as “the controlling decision in
our circuit” for both issues.
Although its conclusion that waiver occurred when
Sanmina disclosed the Attorney Memos to DLA Piper was
“dispositive” of the waiver question, the district court also
alternatively held that “Sanmina’s disclosure of the DLA
Piper valuation report to the IRS waived any applicable
privilege as to materials used to reach the valuation.” Citing
Fed. R. Evid. § 502(a)(3), the district court reasoned that
12 UNITED STATES V. SANMINA CORP.
because “DLA Piper’s valuation report relied on the contents
of the memoranda” and “based its conclusions, at least in
part, on the two memoranda at issue,” “[t]he analyses that
informed the valuation report’s conclusions should, in
fairness, be considered together.” The court rejected
Sanmina’s argument “that the footnote merely disclosing the
existence of the memoranda did not waive any applicable
privilege as to their entire contents,” reiterating that “it
would be fundamentally unfair for Sanmina to disclose the
valuation report while withholding its foundation.”
II.
The district court found—and the parties do not
dispute—that the Attorney Memos constituted both
privileged attorney-client communications and protected
attorney work product. Thus, the only issue before us is the
question of waiver—specifically, whether Sanmina waived
attorney-client privilege or work-product protection by
providing the memoranda to DLA Piper and providing the
DLA Piper Report to the IRS. Because the Attorney Memos
constitute attorney-client communications and protected
attorney work product, we must find that Sanmina waived
both privileges to mandate disclosure of the memoranda.
Whether a privilege has been waived is a mixed question
of fact and law that we review de novo. United States v.
Plache, 913 F.2d 1375, 1379 (9th Cir. 1990); United States
v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). We
review for clear error a district court’s factual findings for
attorney-client privilege and work-product doctrine. See
United States v. Richey, 632 F.3d 559, 563–64 (9th Cir.
2011). “A finding is clearly erroneous if it is illogical,
implausible, or without support in the record.” United States
v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010).
UNITED STATES V. SANMINA CORP. 13
III.
A.
The attorney-client privilege protects confidential
communications between attorneys and clients, which are
made for the purpose of giving legal advice. Upjohn Co. v.
United States, 449 U.S. 383, 389 (1981). Whether
information is covered by the attorney-client privilege is
determined by an eight-part test:
(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his
capacity as such, (3) the communications
relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his
instance permanently protected (7) from
disclosure by himself or by the legal adviser,
(8) unless the protection be waived.
Graf, 610 F.3d at 1156.
“The attorney-client privilege may extend to
communications with third parties who have been engaged
to assist the attorney in providing legal advice,” Richey,
632 F.3d at 566, as well as to communications with third
parties “acting as agent” of the client. United States v.
Landof, 591 F.2d 36, 39 (9th Cir. 1978). “If the advice
sought is not legal advice, but, for example, accounting
advice from an accountant, then the privilege does not exist.”
Richey, 632 F.3d at 566 (citation omitted). Thus, we have
recognized several contexts in which communications with
attorneys for the purpose of non-legal advice are not
14 UNITED STATES V. SANMINA CORP.
privileged. 1 In general, however, “[i]f a person hires a
lawyer for advice, there is a rebuttable presumption that the
lawyer is hired ‘as such’ to give ‘legal advice,’ whether the
subject of the advice is criminal or civil, business, tort,
domestic relations, or anything else.” United States v. Chen,
99 F.3d 1495, 1501 (9th Cir. 1996). This “presumption is
rebutted when the facts show that the lawyer was ‘employed
without reference to his knowledge and discretion in the
law.’” Id.
There are “several ways by which parties may waive the
privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126
(9th Cir. 2012) (citations omitted). First, “voluntarily
disclosing privileged documents to third parties will
generally destroy the privilege.” Id. at 1126–27. Also
known as an “express waiver,” this type of waiver “occurs
when a party discloses privileged information to a third party
who is not bound by the privilege, or otherwise shows
disregard for the privilege by making the information
public.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir.
2003). “Disclosures that effect an express waiver are
typically within the full control of the party holding the
privilege; courts have no role in encouraging or forcing the
1
See, e.g., United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996)
(noting “[w]here the attorney was asked for business (as opposed to
legal) counsel, no privilege attached,” but “fact-finding which pertains
to legal advice counts as ‘professional legal services’” (citations
omitted)); United States v. Huberts, 637 F.2d 630, 640 (9th Cir. 1980)
(“Generally, an attorney who serves as a business agent to a client may
not assert the attorney-client privilege, because no confidential
relationship attaches.”); see also Harris v. United States, 413 F.2d 316,
320 (9th Cir. 1969) (applying “the general rule that ministerial or clerical
services performed by an attorney are not within the privilege”).
UNITED STATES V. SANMINA CORP. 15
disclosure—they merely recognize the waiver after it has
occurred.” Id.
In contrast, waiver by implication, or implied waiver, is
based on the rule that “a litigant waives the attorney-client
privilege by putting the lawyer’s performance at issue during
the course of litigation.” Id. at 718; see also Weil, 647 F.2d
at 24 (“[T]he federal cases presuppose that waiver may be
effected by implication.”). Waivers by implication rest on
the “fairness principle,” which
is often expressed in terms of preventing a
party from using the privilege as both a shield
and a sword. . . . In practical terms, this
means that parties in litigation may not abuse
the privilege by asserting claims the opposing
party cannot adequately dispute unless it has
access to the privileged materials.
Bittaker, 331 F.3d at 719 (citation omitted).
This fairness principle also animates the concept of
subject matter waiver, in which “voluntary disclosure of the
content of a privileged attorney communication constitutes
waiver of the privilege as to all other such communications
on the same subject.” Weil, 647 F.2d at 24; see also Plache,
913 F.2d at 1380 (finding disclosure of a privileged
communication waived the privilege “on all other
communications on the same subject”). Under this rule,
“disclosure of information resulting in the waiver of the
attorney-client privilege constitutes waiver ‘only as to
communications about the matter actually disclosed.’”
Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th
Cir. 1992) (quoting Weil, 647 F.2d at 25)); see also
Mendelsohn, 896 F.2d at 1189 (affirming decision confining
testimony based on waiver to the subject of the waiver).
16 UNITED STATES V. SANMINA CORP.
B.
Whether Sanmina expressly waived the attorney-client
privilege over the Attorney Memos by voluntarily disclosing
them to DLA Piper turns chiefly on whether Sanmina shared
the memoranda with DLA Piper for the purpose of obtaining
legal advice. If Sanmina did not engage DLA Piper for its
legal services, as the district court found, then DLA Piper
was properly treated as a third party for the purposes of
attorney-client privilege, and Sanmina’s disclosure of the
memos to DLA Piper expressly waived the privilege. On the
other hand, if Sanmina shared the memoranda with DLA
Piper in order to secure legal advice, as Sanmina asserts, then
these privileged communications were maintained within a
confidential relationship between Sanmina and DLA Piper.
In finding that Sanmina disclosed the Attorney Memos
to DLA Piper for a non-legal purpose, the district court
reasonably relied on language from the DLA Piper Report
and Dulkie’s statement indicating that “Sanmina engaged
DLA Piper for the purpose of conducting a fair market value
analysis to be used for tax compliance reasons” and “sought
DLA Piper’s services in producing the valuation report.”
These same evidentiary sources, however, also provide
inferential support for Sanmina’s claim that it engaged DLA
Piper as outside tax counsel and shared the privileged
memoranda for the purpose of obtaining DLA Piper’s legal
advice. For instance, Dulkie’s statement that “Sanmina
sought advice from DLA Piper . . . concerning the propriety
of the [tax] deduction” after “[a]nticipating that the [IRS]
might adopt an adverse position” could reasonably support
the conclusion that the advice Sanmina sought from DLA
Piper regarding the propriety of its tax deduction was legal
UNITED STATES V. SANMINA CORP. 17
in nature. 2 The DLA Piper Report also provides some
indications of an attorney-client relationship, or at least an
expectation of attorney-client confidentiality, between DLA
Piper and Sanmina. 3
Viewed in its entirety, the record might suggest that
Sanmina shared the Attorney Memos with DLA Piper for the
purpose of seeking both legal and non-legal advice
pertaining to the propriety of its tax deduction.
Communications made for such a “dual purpose” are not
uncommon in the tax law context, where an attorney’s
advice may integrally involve both legal and non-legal
analyses. 4 While our court has not yet addressed how to
2
While Dulkie does not explicitly describe the advice sought as
“legal,” such an inference would not be unreasonable given the
undisputed fact that DLA Piper is a law firm, which comes with a
“rebuttable presumption” that the firm was engaged for its legal
knowledge. See Chen, 99 F.3d at 1502 (stating that where “attorneys
were employed for their legal knowledge, to bring their clients into
compliance with the law . . . [t]heir communications with their clients
were . . . within the scope of the attorney-client privilege”).
3
For instance, the cover letter of the DLA Piper Report was
addressed to Sanmina’s in-house counsel and stated that DLA Piper had
conducted a valuation analysis “supporting your assessment of
insolvency of Sanmina International AG,” which could be interpreted as
evidence that Sanmina engaged DLA Piper to review and verify its in-
house legal analysis on the insolvency of its subsidiary and its potential
tax implications. The report was also signed, in part, by a firm attorney
and contains “attorney-client privilege” warnings on each page, which
could indicate an understanding between DLA Piper and Sanmina that
its shared documents and communications were covered by attorney-
client confidentiality.
4
See 1 Paul R. Rice, Attorney-Client Privilege in the United States
§ 7:4 (2019) (“In a broad range of areas (e.g., tax, commercial, patent,
criminal, or litigation and its avoidance), ‘legal’ assistance often involves
18 UNITED STATES V. SANMINA CORP.
assess when a “dual purpose” communication remains
within the privilege, we recognize that district courts in our
circuit have grappled with this question and differed in
regard to the proper test to apply. 5 Notwithstanding this
intra-circuit split, however, we need not decide the issue on
the facts of this case. Despite some evidence that Sanmina
may have had a “dual purpose” for sharing the Attorney
Memos to DLA Piper, the district court’s finding that
Sanmina’s purpose was to obtain a non-legal valuation
many non-legal, complementary services.”); United States v. Cote,
456 F.2d 142, 144 (8th Cir. 1972) (holding that an accountant’s work
papers used by the attorney in advising client were privileged where the
attorney’s “decision as to whether the taxpayers should file an amended
return undoubtedly involved legal considerations which mathematical
calculations alone would not provide” and “the accountant’s aid to the
lawyer preceded the advice and was an integral part of it.”); In re Grand
Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037
(2d Cir. 1984) (“Tax advice rendered by an attorney is legal advice
within the ambit of the privilege.”).
5
Some district courts have applied a “primary purpose” test. See,
e.g., Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 628 (D. Nev. 2013);
U.S. v. Salyer, 853 F. Supp. 2d 1014, 1018 (E.D. Cal. 2012); Premiere
Digital Access, Inc. v. Central Telephone Co., 360 F. Supp. 2d 1168,
1174 (D. Nev. 2005); United States v. ChevronTexaco Corp., 241 F.
Supp. 2d 1065, 1076 (N.D. Cal. 2002). Other courts have transported
the “because of” test from the work-product context, and looked to “the
totality of the circumstances” to determine “the extent to which the
communication solicits or provides legal advice or functions to facilitate
the solicitation or provision of legal advice.” See In re CV Therapeutics,
Inc. Sec. Litig., No. C-03-3709 SI(EMC), 2006 WL 1699536, at *3–4
(N.D. Cal. June 16, 2006); Visa U.S.A., Inc. v. First Data Corp., No. C-
02-1786JSW(EMC), 2004 WL 1878209, at *4 (N.D. Cal. Aug. 23, 2004)
(“The Court discerns no reason why . . . for purposes of determining the
discoverability of documents that have both a legal purpose and a
nonlegal purpose (e.g., business purpose), the [“because of”]
methodology in In re Grand Jury Subpoena[, 357 F.3d 900 (9th Cir.
2004),] should not be applied to the attorney-client privilege.”).
UNITED STATES V. SANMINA CORP. 19
analysis from DLA Piper, rather than legal advice, was not
clearly erroneous because it was not “illogical, implausible,
or without support in the record.” Graf, 610 F.3d at 1157.
Because its factual findings do not rise to clear error, we
affirm the district court’s conclusion that Sanmina expressly
waived attorney-client privilege over the Attorney Memos
when it disclosed the memos to DLA Piper.
Given our conclusion that Sanmina expressly waived
attorney-client privilege over the Attorney Memos when
they were disclosed to DLA Piper, we need not reach
whether Sanmina also waived the privilege when it provided
the DLA Piper Report to the IRS based on the fairness
principle. But our inquiry is not over. Because we agree
with the district court that the Attorney Memos constituted
both privileged attorney-client communications as well as
protected work product, we turn next to whether Sanmina
also waived work-product protection over the memoranda.
IV.
A.
The work-product doctrine is a “qualified” privilege that
protects “from discovery documents and tangible things
prepared by a party or his representative in anticipation of
litigation.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486,
1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3)); see
also United States v. Nobles, 422 U.S. 225, 237–38 (1975).
“At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within
which he can analyze and prepare his client’s case,” and
protects both “material prepared by agents for the attorney
as well as those prepared by the attorney himself.” Nobles,
422 U.S. at 238–39. The primary purpose of the work-
20 UNITED STATES V. SANMINA CORP.
product rule is to “prevent exploitation of a party’s efforts in
preparing for litigation.” Admiral Ins. Co., 881 F.2d at 1494.
“The privilege derived from the work-product doctrine
is not absolute. Like other qualified privileges, it may be
waived.” Nobles, 422 U.S. at 239. Similar to the waiver of
the attorney-client privilege, a litigant can waive work-
product protection to the extent that he reveals or places the
work product at issue during the course of litigation. For
instance, in Nobles, a criminal defendant’s decision to
present his defense investigator as a witness waived work-
product privilege over the investigator’s report “with respect
to matters covered in his testimony.” Id. at 236, 239.
Similarly, in Hernandez v. Tanninen, 604 F.3d 1095, 1100
(9th Cir. 2010), a party’s production of an attorney’s notes
in support of his opposition to a motion constituted a waiver
of work-product privilege over the subject matter of the
notes disclosed.
Both parties posit that, unlike waivers by disclosure in
the attorney-client privilege context, waivers of work-
product protection require disclosing the work product to an
adversary, and not merely to a third party. While the parties
do not provide us a controlling decision for this proposition,
we have nonetheless recognized that “there is an important
distinction between the rules governing when each type of
protection has been waived.” Transamerica Computer Co.,
Inc. v. Int’l Bus. Machines Corp., 573 F.2d 646, 647 n.1 (9th
Cir. 1978). Although we did not further elaborate on this
“important distinction” in Transamerica Computer, 6 we
6
We found the distinction between the two types of waiver
“unimportant” in Transamerica Computer because there, “the third
person to whom the disclosure was made, a disclosure supposedly
UNITED STATES V. SANMINA CORP. 21
cited a number of authorities expressing the principle that
waiver of attorney-client privilege by disclosure to a third
party “does not necessarily affect the work product
protection since the two are designed to accomplish different
results.” Ceco Steel Prod. Corp. v. H. K. Porter Co., 31
F.R.D. 142, 143 (N.D. Ill. 1962); see also Vilastor-Kent
Theatre Corp. v. Brandt, 19 F.R.D. 522, 524 (S.D.N.Y.
1956)).
Since our decision in Transamerica, courts appear to
have reached a general “uniformity in implying that work-
product protection is not as easily waived as the attorney-
client privilege” based on the distinct purposes of the two
privileges. United States v. Mass. Inst. of Tech., 129 F.3d
681, 687 (1st Cir. 1997). While the attorney-client privilege
“is designed to protect confidentiality, so that any disclosure
outside the magic circle is inconsistent with the privilege,”
work-product protection “is provided against ‘adversaries,’
so only disclosing material in a way inconsistent with
keeping it from an adversary waives work product
protection.” Id.; see also United States v. Deloitte LLP,
610 F.3d 129, 140 (D.C. Cir. 2010) (“Voluntary disclosure
waives the attorney-client privilege because it is inconsistent
with the confidential attorney-client relationship. Voluntary
disclosure does not necessarily waive work-product
protection, however, because it does not necessarily
undercut the adversary process.”). Accordingly, the
overwhelming majority of our sister circuits have espoused
or acknowledged the general principle that the voluntary
disclosure of work product waives the protection only when
such disclosure is made to an adversary or is otherwise
inconsistent with the purpose of work-product doctrine—to
resulting in a waiver, was IBM’s adversary in litigation.” 573 F.2d
at 647 n.1.
22 UNITED STATES V. SANMINA CORP.
protect the adversarial process. 7 District courts in our circuit
have also applied the same principle. 8
7
See, e.g., Mass. Inst. of Tech., 129 F.3d at 687 (“[O]nly disclosing
material in a way inconsistent with keeping it from an adversary waives
work product protection.”); In re Steinhardt Partners, L.P., 9 F.3d 230,
235 (2d Cir. 1993) (“[V]oluntary disclosure of work product to an
adversary waives the privilege as to other parties.”); In re Chevron
Corp., 633 F.3d 153, 165 (3rd Cir. 2011) (“[I]t is only in cases in which
the material is disclosed in a manner inconsistent with keeping it from
an adversary that the work-product doctrine is waived.”); Ecuadorian
Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010)
(“Although work product immunity is not automatically waived by
disclosure of protected material to third parties, disclosure does waive
protection if it ‘has substantially increased the opportunities for potential
adversaries to obtain the information.’” (citation omitted)); In re
Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289,
306 (6th Cir. 2002) (“Other than the fact that the initial waiver must be
to an ‘adversary,’ there is no compelling reason for differentiating waiver
of work product from waiver of attorney-client privilege.” (footnote
omitted)); In re Chrysler Motors Corp. Overnight Evaluation Program
Litig., 860 F.2d 844, 846 (8th Cir. 1988) (“Disclosure to an adversary
waives the work product protection as to items actually disclosed . . . .”
(internal quotation marks and citation omitted)); Doe No. 1 v. United
States, 749 F.3d 999, 1008 (11th Cir. 2014) (“Disclosure of work-
product materials to an adversary waives the work-product privilege.”);
United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir.
1980) (“[D]isclosure to a third party does not waive the privilege ‘unless
such disclosure, under the circumstances, is inconsistent with the
maintenance of secrecy from the disclosing party's adversary.’”); Carter
v. Gibbs, 909 F.2d 1450, 1451 (Fed. Cir. 1990) (“Voluntary disclosure
of attorney work product to an adversary in the litigation for which the
attorney produced that information defeats the policy underlying the
privilege . . . .”).
8
See, e.g., Samuels v. Mitchell, 155 F.R.D. 195, 200 (N.D. Cal.
1994) (“[T]he work product privilege is not automatically waived by any
disclosure to third persons. Rather, the courts generally find a waiver
only if the disclosure ‘substantially increases the opportunity for
UNITED STATES V. SANMINA CORP. 23
Thus, consistent with our sister circuits as well as
precedent on the unique purposes for the work-product
doctrine, we hold that disclosure of work product to a third
party does not waive the protection unless such disclosure is
made to an adversary in litigation or “has substantially
increased the opportunities for potential adversaries to
obtain the information.” 8 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2024 (3d ed. 2020).
Put another way, disclosing work product to a third party
may waive the protection where “such disclosure, under the
circumstances, is inconsistent with the maintenance of
secrecy from the disclosing party’s adversary.” Rockwell
Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 605 (D.C.
Cir. 2001) (internal quotation marks and citation omitted).
“Under this standard, the voluntary disclosure of attorney
work product to an adversary or a conduit to an adversary
waives work-product protection for that material.” Deloitte,
610 F.3d at 140.
In Deloitte, the D.C. Circuit applied this standard in the
context of a federal tax case, where the government also
sought production of work product that the taxpayer
company, Dow, had disclosed to its independent auditor,
Deloitte. 610 F.3d at 133. There, the government argued
that Dow’s disclosure of its attorney work product to
Deloitte waived the protection because Deloitte was either a
potential adversary or a conduit to an adversary. Id. at 140–
41. In rejecting both arguments, the D.C. Circuit provided
some useful guidance on how to determine whether
disclosure to an adversary, or a conduit to an adversary, has
occurred.
potential adversaries to obtain the information.’” (citation and quotation
omitted)).
24 UNITED STATES V. SANMINA CORP.
Addressing whether Deloitte was a “potential adversary”
to Dow, the D.C. Circuit framed the relevant question as “not
whether Deloitte could be Dow’s adversary in any
conceivable future litigation, but whether Deloitte could be
Dow’s adversary in the sort of litigation the [work-product
documents] address.” Id. at 140. In concluding “that the
answer must be no,” the court noted that, in preparing the
work product, “Dow anticipated a dispute with the IRS, not
a dispute with Deloitte,” and the work product concerned tax
implications that “would not likely be relevant in any dispute
Dow might have with Deloitte.” Id.
As to the “conduit to an adversary” analysis, the D.C.
Circuit noted that its prior applications of the “maintenance
of secrecy” standard have generally involved “two discrete
inquiries in assessing whether disclosure constitutes
waiver.” Id. at 141. The first inquiry is “whether the
disclosing party has engaged in self-interested selective
disclosure by revealing its work product to some adversaries
but not to others.” Id. If so, “[s]uch conduct militates in
favor of waiver” based on fairness concerns. Id. The second
inquiry is “whether the disclosing party had a reasonable
basis for believing that the recipient would keep the
disclosed material confidential.” Id. This “reasonable
expectation of confidentiality” could “derive from common
litigation interests between the disclosing party and the
recipient,” or it “may be rooted in a confidentiality
agreement or similar arrangement between the disclosing
party and the recipient.” Id.
These points of inquiry into the disclosing party’s
“selective disclosure” and “reasonable expectation of
confidentiality”—while highly relevant and often
dispositive—are not the only considerations at play in
assessing whether a work-product disclosure is inconsistent
UNITED STATES V. SANMINA CORP. 25
with the maintenance of secrecy against adversaries. Rather,
the fact-intensive analysis requires a consideration of the
totality of the circumstances and is ultimately guided by the
same principle of fundamental fairness that underlies much
of our common law doctrine on waiver by implication.
Thus, we may find the work-product immunity waived
where the disclosing party’s conduct has reached a “certain
point of disclosure” towards his adversary such that “fairness
requires that his privilege shall cease, whether he intended
that result or not.” Weil, 647 F.2d at 24. Under the fairness
doctrine however, a court must be careful to “impose a
waiver no broader than needed to ensure the fairness of the
proceedings before it. Because a waiver is required so as to
be fair to the opposing side, the rationale only supports a
waiver broad enough to serve that purpose.” Bittaker,
331 F.3d at 720.
In light of these relevant guideposts, we turn to whether
Sanmina voluntarily disclosed the Attorney Memos “to an
adversary or a conduit to an adversary” either when it
disclosed the Attorney Memos to DLA Piper or when it
provided the DLA Piper Report to the IRS.
B.
The question of whether Sanmina’s disclosure of the
Attorney Memos to DLA Piper alone qualifies as a
“disclosure to an adversary” is fairly easy to answer. We
conclude it does not. The government readily concedes that
DLA Piper was not an adversary to Sanmina. Nor was DLA
Piper a potential adversary. As Deloitte and other courts
have held, a taxpayer’s disclosure of its attorney work
product to an independent auditor does not constitute
disclosure to an adversary sufficient to waive the protection.
See Deloitte, 610 F.3d at 139 (“Among the district courts that
have addressed this issue, most have found no waiver.”)
26 UNITED STATES V. SANMINA CORP.
(citing cases). In that same vein, Sanmina’s disclosure of the
Attorney Memos to DLA Piper for the purpose of obtaining
a valuation analysis may render DLA Piper a third party
insofar as attorney-client privilege is concerned, but it does
not transform DLA Piper into an adversary or even a
potential adversary with respect to the memoranda. Similar
to the work product at issue in Deloitte, the Attorney Memos
were prepared in anticipation of a dispute between Sanmina
and the IRS, not between Sanmina and DLA Piper, and they
involve legal assessments of potential tax implications for
Sanmina, which would likely be irrelevant in any potential
dispute between Sanmina and DLA Piper. Id. at 140.
The government argues that DLA Piper was nonetheless
a “conduit to an adversary” because the DLA Piper Report
“was intended for disclosure to interested tax authorities”
and any “expectation of confidentiality was therefore
absent.” The relevant inquiry, however, is not whether
Sanmina expected confidentiality over the DLA Piper
Report. It is whether Sanmina “had a reasonable basis for
believing that [DLA Piper] would keep the [Attorney
Memos] confidential” in the process of producing its
valuation analysis. Deloitte, 610 F.3d at 141. That Sanmina
shared the Attorney Memos with DLA Piper to obtain a
valuation report for the IRS does not necessarily mean that
Sanmina knew or should have known that the resulting DLA
Piper Report would disclose or make reference to its attorney
work product. If anything, Sanmina’s enlistment of DLA
Piper’s assistance in anticipation of litigation with the IRS
indicates a “common litigation interest” between Sanmina
and DLA Piper insofar as the Attorney Memos are
concerned. Id. at 142. Furthermore, as discussed earlier,
some facts in the record support a reasonable belief on
Sanmina’s part that the Attorney Memos were maintained
within a confidential relationship with DLA Piper. See
UNITED STATES V. SANMINA CORP. 27
supra note 3. On balance, the circumstances suggest that
Sanmina had a reasonable expectation of confidentiality
over the Attorney Memos at the time of their disclosure to
DLA Piper.
There is also no indication that Sanmina was engaging in
“self-interested selective disclosure” when it provided the
memoranda to DLA Piper. Id. at 141. “Selective disclosure
involves disclosing work product to at least one adversary.”
Id. at 142. As we have already found and the government
concedes, DLA Piper was not an adversary to Sanmina when
it received the Attorney Memos, nor were any of the other
entities in receipt of the memoranda. Accordingly, we
conclude that Sanmina’s disclosure of the Attorney Memos
to DLA Piper did not constitute a disclosure to an adversary
or a conduit to an adversary sufficient to waive the work-
product privilege.
C.
Although Sanmina’s disclosure of the Attorney Memos
to DLA Piper in itself did not waive work-product
protection, the more difficult question is whether Sanmina
waived such protection when it provided the IRS with the
DLA Piper Report. Under the “disclosure to an adversary”
standard, there is no dispute that the IRS is an adversary to
Sanmina insofar as the Attorney Memos are concerned.
However, Sanmina did not disclose the actual Attorney
Memos to the IRS; rather, it disclosed a valuation report that
cited to the protected memoranda. Sanmina argues that
because the DLA Piper Report did “not disclose or describe
the contents of the Attorney Memos,” there is no
“disclosure” sufficient to waive the memoranda’s work-
product protection.
28 UNITED STATES V. SANMINA CORP.
The concept that waiver by disclosure requires the
disclosure of some “content” of a privileged document—or
at least more than the fact of its existence—makes intuitive
sense. It also finds support from case law. 9 This point,
however, is not wholly dispositive to our waiver analysis.
As we have recognized in the attorney-client privilege
context, there is a difference between express and implied
waivers. This framework is also applicable in the context of
work-product protection, where an express waiver generally
occurs by disclosure to an adversary, while an implied
waiver occurs by disclosure or conduct that is inconsistent
with the maintenance of secrecy against an adversary. See
In re Martin Marietta Corp., 856 F.2d 619, 625–26 (4th Cir.
1988) (finding a regulatory disclosure of work product
“impliedly waived the work product privilege as to all non-
opinion work product on the same subject matter as that
disclosed” but not to opinion work product). Sanmina’s
claim that the DLA Piper Report does not disclose any of the
content of the Attorney Memos to the IRS may foreclose a
finding of express waiver in this case, but it is only one factor
9
“The case law is well settled that disclosing the fact that there were
confidential communications between a client and his or her attorney—
or even disclosing that certain subjects confidentially were discussed
between a client and his or her attorney—does not constitute a waiver by
partial disclosure.” Roberts v. Legacy Meridian Park Hosp., Inc., 97 F.
Supp. 3d 1245, 1253 (D. Or. 2015). “The disclosure must be of
confidential portions of the privileged communications. This does not
include the fact of the communication, the identity of the attorney, the
subject discussed, and details of the meetings, which are not protected
by the privilege.” Id. (citing 2 Paul R. Rice, Attorney-Client Privilege in
the United States § 9:30 at 153–56 (2014)). This proposition also finds
inferential support from the statement in Weil that “voluntary disclosure
of the content of a privileged attorney communication” constitutes
subject matter waiver. 647 F.2d at 24 (emphasis added).
UNITED STATES V. SANMINA CORP. 29
we consider in determining whether to find an implied
waiver.
Thus, the focal point of our waiver inquiry is whether,
under the totality of the circumstances, Sanmina acted in
such a way that is inconsistent with the maintenance of
secrecy against its adversary in regard to the Attorney
Memos. More broadly, we must ask whether and to what
extent fairness mandates the disclosure of the Attorney
Memos in this case. While we are generally guided by the
same fairness principle underlying waivers by implication in
the attorney-client privilege context, the overriding concern
in the work-product context is not the confidentiality of a
communication, but the protection of the adversary process.
Here, Sanmina obtained a valuation report from DLA
Piper in anticipation of scrutiny from the IRS over a claimed
tax deduction. When asked for proof from the IRS, Sanmina
responded with the DLA Piper Report—a document that
expressly referred to the Attorney Memos. Presumably,
Sanmina could have chosen to substantiate the deduction
with other documents that did not make reference to the
Attorney Memos but did not. Such conduct seems
inconsistent with Sanmina’s purported goal of keeping the
memoranda secret from the IRS. Assuming that Sanmina
reasonably expected confidentiality over the Attorney
Memos when sharing them with DLA Piper, this expectation
became far less reasonable once Sanmina decided to disclose
to the IRS a valuation report that explicitly cited the
memoranda as a basis for its conclusions. In doing so,
Sanmina increased the possibility that the IRS, its adversary
in this matter, might obtain its protected work product, and
thereby engaged in conduct inconsistent with the purposes
of the privilege.
30 UNITED STATES V. SANMINA CORP.
To the extent that Sanmina implicitly waived the work-
product privilege, the scope of its waiver must be “closely
tailored . . . to the needs of the opposing party” and limited
to what is necessary to rectify any unfair advantage gained
by Sanmina from its conduct. Bittaker, 331 F.3d at 720. In
that regard, it is not clear what unfair advantage Sanmina has
gained from its conduct, or how the IRS has been unfairly
disadvantaged, particularly at the current stage of
proceedings. The dispute before us is whether to enforce a
petition for a summons in a tax audit initiated by the IRS.
The parties have not yet engaged in any formal litigation
regarding the underlying validity of Sanmina’s claimed tax
deduction. Even if Sanmina may have temporarily reaped
the benefit of its claimed tax deduction, the potential
consequences of Sanmina’s decision to withhold the
Attorney Memos and support the deduction with a
questionable valuation report ultimately bear more heavily
on Sanmina than on the IRS. We disagree with the district
court’s conclusion that, without the disclosure of the
Attorney Memos, “the IRS or any other reader would be
forced to simply accept the [DLA Piper] opinion without
access to the foundational material.” At this audit stage, the
IRS is not required to accept the conclusions in the DLA
Piper Report at all. Even without access to the Attorney
Memos, the IRS could still proceed with its examination of
Sanmina’s returns, conclude that Sanmina has failed to
adequately support its claimed deduction with the DLA
Piper Report and other documents provided, and disallow
the deduction. See Interstate Transit Lines v. Comm’r of
Internal Revenue, 319 U.S. 590, 593 (1943) (stating “the
now familiar rule that an income tax deduction is a matter of
legislative grace and that the burden of clearly showing the
right to the claimed deduction is on the taxpayer”). So long
as Sanmina continues to refuse to produce the Attorney
UNITED STATES V. SANMINA CORP. 31
Memos, it faces the likely risk of an unfavorable decision
from the IRS in regard to its tax deduction.
The Attorney Memos, as described by Sanmina’s in-
house counsel and confirmed by the district court’s review,
contain both factual discussions of the relevant transactions
and legal analyses of these facts in light of various tax law
authorities. Thus, the memoranda contain both factual work
product and opinion work product. Based on Sanmina’s
overall conduct, Sanmina has implicitly waived protection
over any factual or non-opinion work product in the
Attorney Memos that serve as foundational material for the
DLA Piper Report. However, the IRS provides no reason
why the scope of this implied waiver should encompass the
opinion work product contained in the Attorney Memos.
Besides its general argument the Attorney Memos are
needed to understand the DLA Piper Report, the IRS does
not explain why the “mental impressions, conclusions,
opinions or legal theories” of Sanmina’s in-house attorneys
are specifically at issue or critical to its assessment of the
deduction’s legal validity. Hickman v. Taylor, 329 U.S. 495,
508 (1947). We have held that such opinion work product
is discoverable only “when mental impressions are at issue
in a case and the need for the material is compelling.”
Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573,
577 (9th Cir. 1992); see also Upjohn Co. v. United States,
449 U.S. 383, 401 (1981) (“[S]uch work product cannot be
disclosed simply on a showing of substantial need and
inability to obtain the equivalent without undue hardship.”).
According to Sanmina, it has produced to the IRS both
the DLA Piper Report as well as the underlying transactional
documents on which the Attorney Memos and the DLA
Piper Report relied. These disclosures, along with our
ordered disclosure of the factual work product contained in
32 UNITED STATES V. SANMINA CORP.
the Attorney Memos, should provide the IRS with the same
underlying facts and data on which Sanmina’s attorneys
relied in generating the legal opinions contained in the
Attorney Memos. With this information, the IRS should be
able to rely on its own attorneys to analyze the relevant facts
in light of the applicable tax authorities to determine the
legal validity of Sanmina’s tax deduction. While it might
certainly be helpful to the IRS to have access to the entirety
of the memoranda, this reason does not justify the IRS’s
entitlement to the legal theories and opinions of its potential
adversary in litigation. In fact, mandating full disclosure of
such protected work product under these circumstances may
potentially undermine the adversary process by allowing the
IRS the opportunity to litigate “on wits borrowed from the
adversary” in a future legal dispute with Sanmina. Hickman,
329 U.S. at 516 (Jackson, J., concurring).
We conclude that fairness does not require the
categorical disclosure of Sanmina’s protected work product
to the IRS at this stage of prelitigation. Rather, fairness
requires, at most, the disclosure of the factual, or non-
opinion, work product contained in the Attorney Memos
upon which the DLA Piper Report relies. Any opinion work
product—meaning, the attorney’s “mental impressions,
conclusions, opinions or legal theories”—contained in the
Attorney Memos shall remain protected by the work-product
doctrine.
V.
Sanmina waived the attorney-client privilege when it
disclosed the Attorney Memos to DLA Piper. However,
such disclosure did not automatically waive work-product
protection over the Attorney Memos. Rather, waiver of
work-product immunity requires either disclosure to an
adversary or conduct that is inconsistent with the
UNITED STATES V. SANMINA CORP. 33
maintenance of secrecy against its adversary. Under this
standard, Sanmina did not expressly waive work-product
immunity merely by providing the Attorney Memos to DLA
Piper, but its subsequent use of the DLA Piper Report to
support its tax deduction in an audit by the IRS was
inconsistent with the maintenance of secrecy against its
adversary. In imposing an implied waiver of the work-
product privilege in this case, we conclude that the fairness
principle does not require the categorical disclosure of the
Attorney Memos at this stage. Rather, Sanmina’s implied
waiver of the work-product protection only extends to the
factual portions of the Attorney Memos.
Thus, we GRANT IN PART and DENY IN PART the
IRS’s petition to enforce its summons. We order disclosure
of only the factual content of the Attorney Memos on which
the DLA Piper Report relies. We remand to the district court
for the limited purpose of determining the specific portions
of the Attorney Memos that should be disclosed to the IRS
and ordering disclosure consistent with this opinion. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554023/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-2271
______________
EDWIN ANTHONY RAMOS-RAMIREZ,
Appellant
v.
BERWICK BOROUGH; KENNETH STRISH; REAGAN RAFFERTY; RANDY
GAUGER
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-17-cv-01442)
District Judge: Hon. Matthew W. Brann
______________
Argued on January 21, 2020
______________
Before: AMBRO, MATEY, and FUENTES, Circuit Judges.
(Opinion filed: August 7, 2020)
Curt M. Parkins (ARGUED)
Matthew T. Comerford
Comerford Law
204 Wyoming Avenue
Scranton, PA 18503
Counsel for Appellant
David J. MacMain (ARGUED)
Samantha Ryan
MacMain Connell & Leinhauser
433 West Market Street
Suite 200
West Chester, PA 19382
Counsel for Appellees
______________
OPINION
______________
FUENTES, Circuit Judge.
While responding to a domestic dispute call, Police Officer Reagan
Rafferty shot Appellant Edwin Anthony Ramos-Ramirez. Following the incident,
Ramos-Ramirez pled guilty to simple assault with a deadly weapon. Ramos-
Ramirez then filed the present lawsuit alleging that he was subjected to
constitutionally excessive force. The District Court granted summary judgment in
favor of the defendants, holding that Appellant’s excessive force claim was barred
by his guilty plea to simple assault under Heck v. Humphrey.1 We conclude that
the District Court erred in its application of Heck. Therefore, we will vacate the
District Court’s judgment and remand the case for further proceedings.
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
512 U.S. 477, 486-87 (1994).
2
I.
This case arose out of an August 15, 2015 domestic dispute in Berwick
Borough, at the home of Appellant’s girlfriend, Brittany Cope. After an argument
between Appellant and Cope, Appellant locked Cope out of the home. In
response, Cope called her ex-boyfriend, Alfredo Melendez, to come over and
“kick [Appellant] out of [her] house.”2 Appellant asserts that when Melendez
arrived he tried to enter the house through a window and, although Melendez did
not succeed in entering the house, he managed to hit Appellant through the
window with a large stick. Appellant then grabbed a knife from the kitchen and,
according to Cope, tried to stab Melendez with the knife through the open
window. Over the course of this encounter, both Cope and Appellant called 911.
At around 11p.m., Officer Rafferty, Chief Kenneth Strish and Officer
Randy Gauger responded to two calls requesting assistance at Cope’s address: one
regarding a suspicious person and the other related to a domestic dispute involving
a man armed with a knife. Officer Rafferty was the first to arrive on the scene.
He testified that upon arrival, he saw Melendez on the porch of the residence
holding a stick. After Officer Rafferty exited his car, he saw Appellant come out
onto the porch of the house, holding a knife. Rafferty remained on the sidewalk
separated from Appellant and Melendez by a small retaining wall. At this point,
the testimony diverges.
2
Appx126-27.
3
Appellant claims that he walked onto the porch, heard someone yelling to
drop the knife, and was almost immediately shot.3 He claims that he was shot
while standing on the porch, and that he was not making any threatening or
aggressive movements or gestures toward Melendez. Appellant further testified
that Melendez backed away across the yard when Appellant emerged from the
house and was approximately 20 feet away from Appellant at the time Officer
Rafferty fired his weapon.
Certain aspects of Appellant’s testimony were corroborated in a deposition
by Cope. Her deposition testimony, however, conflicts with the signed statement
that she provided to police on the night of the incident. In her deposition, Cope
states that Appellant was not chasing Melendez but “just came off of the porch”
when the “cops shot him.”4 However, in the statement provided to the police
officers on the night of the incident, Cope said “Anthony opened the door and ran
after [A]lfredo with the knife. As Anthony was running the police office[r] said
twice to put the knife down [a]nd he did not. The police . . . shot once at Anthony
in his shoulder.”5 When asked about the inconsistency between her statement to
police and her deposition testimony, Cope said “I assumed that [Ramos-Ramirez]
3
Appellant states that the police did not identify themselves upon arrival to the
scene and that he did not know that police were present. Cope corroborates this
testimony saying “nobody knew it was the police when they came until after he
shot him.” Appx138. Officer Rafferty also testified that he turned off his lights
and sirens about a block before arriving.
4
Appx139.
5
SAppx62-63.
4
was going towards [Melendez] but I don’t know where he was going because the
cop shot him as soon as he came off the porch.”6
In contrast to Appellant and Cope’s testimony, police officers on the scene
and Melendez all state that Appellant was actively chasing Melendez with a knife
at the time he was shot. In his interview with police officers after the incident,
Melendez stated that he heard the police yell “drop it, drop the knife, drop the
weapons” and that Appellant was within four feet of Melendez when he was shot.7
Similarly, Officer Rafferty testified that he observed the Appellant exit the house
with a knife and Melendez with a wooden stick. He stated that he ordered both
men to drop their weapons. Melendez complied but Appellant did not drop his
knife. Officer Rafferty stated that he witnessed Appellant chasing Melendez with
the knife. Officer Rafferty then claims that he fired his weapon when Appellant
was within a few feet of Melendez. He asserts that he believed Appellant was
going to stab Melendez. Additionally, Chief Strish testified that as he was pulling
up and putting his car in park, he witnessed Appellant chasing Melendez with the
knife raised above his head.
On January 10, 2017, Appellant pled guilty to simple assault with a deadly
weapon. During the plea colloquy in state court, the court stated “[t]he elements
of this kind of simple assault is that you attempted to cause bodily injury to
another person, and in this particular case with a deadly weapon, specifically a
6
Appx139-40.
7
SAppx20-21.
5
knife.”8 Next, the facts of the case were read: “It is alleged that on or about the
15th day of August, 2015, in the Borough of Berwick, the Defendant did attempt to
cause bodily injury to the victim Alfredo Melendez using a deadly weapon,
namely a knife, by chasing him with said knife.”9 Then, the court asked Appellant
if those facts are true, to which he replied “Yes, your honor.”10 Based on these
facts, the court accepted Appellant’s guilty plea.
At sentencing, the facts of Appellant’s plea were reiterated and Appellant’s
defense counsel stated, “Mr. Ramos understands that he had a knife and it appears
like he was going into[sic] Mr. Melendez’s direction.”11
To commence the present action, Appellant filed a Complaint alleging
Monell claims against Appellees Berwick Borough and Chief Strish, an excessive
force claim under 42 U.S.C. § 1983 against Officer Rafferty, a civil rights
conspiracy claim against all Appellees, and supplemental state claims for various
state torts against Officer Rafferty.12 Ultimately, the District Court granted
Appellees’ Motion for Summary Judgment, holding that Appellant’s § 1983
excessive force claim was barred by Heck v. Humphrey.13
This appeal followed.
8
Appx444.
9
Id.
10
Id.
11
SAppx68.
12
Appx017.
13
512 U.S. 477 (1994).
6
II.14
Appellant argues that the District Court erred in concluding that his
excessive force claim was barred by Heck v. Humphrey.15 In Heck, the Supreme
Court held that that a plaintiff may not recover damages under § 1983 if doing so
would imply the invalidity of a prior conviction, unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.16 For
Heck to apply “it must be the case that a successful § 1983 suit and the underlying
conviction be logically contradictory.”17 Other courts of appeals have generally
held that the mere fact of a conviction for assault or similar conduct does not
automatically preclude recovery on an excessive force claim brought
under § 1983, arising out of the same incident.18
Similarly, in Nelson v. Jashurek, this Court determined that convictions for
resisting arrest do not necessarily invalidate § 1983 excessive force claims stating,
“it is possible for a finding that [the defendant] was resisting arrest to coexist with
14
The District Court had jurisdiction over this matter pursuant to 28 U.S.C.
§§ 1331, 1343. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The
Court reviews a district court’s grant of summary judgment de novo.
Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995).
15
512 U.S. 477, 486-87 (1994).
16
Id. at 487.
17
Dyer v. Lee, 488 F.3d 876, 884 (11th Cir. 2007).
18
See, e.g., Dyer, 488 F.3d at 883; McCann v. Neilsen, 466 F.3d 619, 620 (7th Cir.
2006); Thore v. Howe, 466 F.3d 173, 180 (1st Cir. 2006); Ballard v. Burton, 444
F.3d 391, 400-01 (5th Cir. 2006); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.
1996) (per curiam).
7
a finding that the police used excessive force to subdue him.19 In keeping with
Nelson, we conclude that simple assault with a deadly weapon under Pennsylvania
law is not necessarily inconsistent with an excessive force claim. It is possible that
an individual could attempt to cause bodily injury to a third party and that a police
officer could use excessive force in their attempt to intervene.20
However, even where a particular type of conviction is not necessarily
inconsistent with a § 1983 suit, courts look to the underlying facts pled to assess
whether a claim is barred by Heck.21 The First Circuit discussed this factual
approach in O’Brien v. Town of Bellingham, stating “[a] plaintiff’s excessive force
claim and his conviction ‘may be so interrelated factually as to bar the § 1983
claim.’”22 In such circumstances, “to determine Heck’s applicability, a court must
. . . [ask] whether the plaintiff could prevail only by ‘negat[ing] an element of the
offense of which he [was] convicted.’”23
19
109 F.3d 142, 146 (3d Cir. 1997) (internal quotations omitted) (holding that a
reasonable juror could find that the arrestee resisted arrest, but was still subjected
to excessive force).
20
Under Pennsylvania law, simple assault occurs where an individual “attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to another.”
18 Pa.C.S.A. § 2701(a)(1). In contrast, excessive force occurs where an officer
uses unreasonable or excessive force to bring an arrestee into custody. Graham v.
Connor, 490 U.S. 386, 396 (1989).
21
McCann, 466 F.3d at 621-22.
22
943 F.3d 514, 529 (1st Cir. 2019) (citing Thore v. Howe, 466 F.3d 173, 180 (1st
Cir. 2006)).
23
Id. (last two alterations in original) (quoting Thore, 466 F.3d at 180).
8
Appellant pled guilty to simple assault asserting that he attempted to cause
bodily injury to Melendez “by chasing him with [a] knife.”24 Now, in pursuit of a
civil judgment against Officer Rafferty, Appellant makes two arguments. First,
Appellant argues that Officer Rafferty used excessive force because Appellant was
not chasing Melendez. Second, Appellant argues that even if he was chasing
Melendez, Officer Rafferty’s force was excessive because Appellant was too far
away from Melendez to stab him and, thus, was not an immediate threat. Although
Appellant’s first argument would negate an element of his simple assault
conviction and is barred by Heck, Appellant’s second argument does not imply the
invalidity of his conviction. Therefore, to the extent that Appellant argues that he
was simply too far away from Melendez to pose an immediate threat, Appellant’s
excessive force claim is not barred by Heck.
III.
For the foregoing reasons, we will vacate the District Court’s judgment to
the extent that it granted Appellees summary judgment under Heck v. Humphrey
and will remand the case to the District Court for further proceedings consistent
with this opinion.
24
Appx444.
9 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/162793/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD DEAN SMITH,
Plaintiff - Appellant,
v.
RICHARD KIRBY; H. N. SCOTT,
Warden; TERRI NEWKIRK,
Correctional Counselor; GEORGE
WILLIAMS, Warden’s Assistant;
JUSTIN CARR, Officer; OFFICER
HOWELL; MELINDA GUILFOYLE, No. 02-6109
D.C. No. CIV-01-488-F
Defendants - Appellees, (W.D. Oklahoma)
and
J.D. MCADAMS; TONY BURNS;
BILL MORGAN; DEPUTY WARE;
AGENT CRANE, OSBI; STEVE
BUZIN; JUSTUS HEFLEY;
THOMAS ZENDA; THOMAS G.
SMITH, JR; SHARON
WINCHESTER; JAMES R.
WINCHESTER; LARRY FIELDS,
Director, Oklahoma Department
of Corrections; STEVE HARGETT,
Warden; JIM DENNIS, Deputy
Warden; JAMES L. SAFFLE,
Director, Oklahoma Department
of Corrections; CAPTAIN COTTON;
OFFICER WILLIAMSON; KAREN
STUCHELL; SERGEANT RILEY;
MARY LIVERA, Deputy Director;
DELORES RAMSEY, Director
Designee; RAY PAGE, Chairman,
Oklahoma Pardon and Parole Board,
Defendants.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK and LUCERO , Circuit Judges.
Appellant Richard Dean Smith, an Oklahoma state inmate appearing pro se,
appeals from the district court’s orders (1) dismissing with prejudice all but one
of the claims raised in his 42 U.S.C. § 1983 action as frivolous, failing to state a
claim upon which relief may be granted, or seeking damages against an immune
defendant and (2) dismissing without prejudice the one remaining § 1983 claim
for failure to exhaust administrative remedies. We exercise jurisdiction under 28
U.S.C. § 1291, and affirm.
In the first report and recommendation, the magistrate judge recommended
dismissing Smith’s claims against several defendants as legally frivolous because
Smith failed to allege any personal participation by them or because the claims
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
-2-
were barred by the statute of limitations. The magistrate judge recommended
dismissing Smith’s other claims for failure to state a claim upon which relief
could be granted because Smith was merely challenging a Department of
Corrections’ policy concerning earned credits. Also, the magistrate judge
recommended dismissing other claims collaterally attacking Smith’s conviction.
Further, the magistrate judge recommended dismissing all other claims, but one,
because Smith failed to allege a plain and simple statement of his claims as
required by Fed. R. Civ. P. 8. On June 1, 2001, adopting the magistrate judge’s
recommendation, the district court dismissed all claims, but one, as frivolous, for
failure to state a claim upon which relief may be granted, or because Smith sought
money damages against defendants who are immune from such relief. See 28
U.S.C. §§ 1915(e)(2)(B), 1915A.
In his one remaining claim, Smith alleged his due process rights were
violated on September 27, 2000, when prison officials took his legal materials and
personal property from his cell and poured white latex paint on some of his
property. Smith further alleged this incident constituted an unconstitutional
retaliation for his exercise of First Amendment rights, including his request to
exceed Department of Corrections’ policy concerning the amount of legal
materials prisoners may keep in their cells. The magistrate judge ordered a
special report, which showed that before filing his § 1983 complaint, Smith filed
-3-
several administrative grievances. Smith, however, never completed the
prescribed administrative process. Adopting the magistrate judge’s
recommendation, the district court, on March 20, 2002, dismissed this remaining
claim for failure to exhaust administrative remedies. Smith appeals.
Smith makes various, primarily conspiracy, arguments concerning his 1981
criminal conviction for three counts of second-degree murder. The district court
correctly dismissed these arguments as a collateral attack on the conviction and
beyond the scope of a § 1983 action. See Heck v. Humphrey , 512 U.S. 477, 481-
82, 486-87 (1994). Further, we note this court affirmed the district court’s denial
of Smith’s habeas corpus petition raising similar issues in Smith v. Hargett , No.
99-6130, 1999 WL 1113073 (10th Cir. Dec. 7, 1999), cert. denied , 530 U.S. 1264
(2000).
Additional arguments concerning Smith’s imprisonment are advanced as
well. As to these, we affirm for substantially the reasons stated in the district
court’s order of June 1, 2001, those claims addressed by the district court.
Although we liberally construe Smith’s pro se allegations, see Haines v. Kerner ,
404 U.S. 519, 520 (1972); Cummings v. Evans , 161 F.3d 610, 613 (10th Cir.
1998), we do not consider the arguments Smith asserts on appeal that were not
properly before the district court and therefore were not addressed in that court.
To the extent Smith sought to amend his complaint to assert these claims, we
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conclude the district court did not abuse its discretion in denying leave to amend
or supplement the complaint. See Foman v. Davis , 371 U.S. 178, 182 (1962).
Smith’s new claims were not relevant to the claims before that court and they
should have been raised in the Eastern, not the Western, District of Oklahoma.
Also, we reject Smith’s argument that the district court abused its discretion in
denying injunctive relief with regard to some of these claims. See Signature
Props. Int’l Ltd. P’ship v. City of Edmond , No. 00-6403, 2002 WL 31538647,
at *8 (10th Cir. Nov. 8, 2002).
As far as Smith’s claim that the district court incorrectly decided that he
had failed to exhaust administrative remedies with respect to the September 27,
2000, incident, “we review de novo the district court’s finding of failure to
exhaust administrative remedies.” Jernigan v. Stuchell , 304 F.3d 1030, 1032
(10th Cir. 2002).
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
requires that “available” administrative remedies be exhausted prior
to filing an action with respect to prison conditions under § 1983.
Even where the “available” remedies would appear to be futile at
providing the kind of remedy sought, the prisoner must exhaust the
administrative remedies available.
Id. at 1032 (citing Booth v. Churner , 532 U.S. 731, 740 (2001)). “An inmate who
begins the grievance process but does not complete it is barred from pursuing a
§ 1983 claim under PLRA for failure to exhaust his administrative remedies.” Id.
-5-
Although Smith asserts he exhausted his administrative remedies, the
district court’s record does not support his assertion. Neither his partial
compliance with the grievance process nor the Oklahoma Department of
Corrections’ awareness of his grievances satisfy the exhaustion requirement.
Also, his asserted exhaustion of remedies for another claim not before the federal
courts at this time does not prove exhaustion of remedies for this claim.
Accordingly, we conclude that Smith failed to exhaust his administrative
remedies.
Contrary to Smith’s final arguments, we conclude the district court did not
abuse its discretion in denying his discovery requests concerning his criminal
conviction or in granting defendants’ request for a protective order from the
discovery requests, see Bldg. & Constr. Dep’t v. Rockwell Int’l Corp. , 7 F.3d
1487, 1496 (10th Cir. 1993), in granting defendants’ motion for enlargement of
time to file a brief, see Ellis v. Univ. of Kan. Med. Ctr ., 163 F.3d 1186, 1193
(10th Cir. 1998), or in failing to recuse, see Nichols v. Alley , 71 F.3d 347, 350
(10th Cir. 1995).
After having reviewed the district court’s file and Smith’s many filings
with this court, we AFFIRM the judgment of the United States District Court for
the Western District of Oklahoma for substantially the reasons stated in the
district court’s orders of March 20, 2002, and June 1, 2001. Smith’s motion for
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leave to proceed on appeal without prepayment of costs or fees is GRANTED ,
but he must make partial payments as specified in 28 U.S.C. § 1915 until the
entire filing fee is paid. His emergency en banc motion for a preliminary
injunction, ex parte motion for a contempt order, emergency en banc motion for
contempt against defendants’ attorney, motion for default against defendants and
motion to strike defendants’ brief, “Motion”-/“Affidavit In Support,” and
combined motion for default, motion for contempt order and motion to vacate
protective order are DENIED as moot. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-7- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/167101/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 14, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHARON K. BALDWIN,
Plaintiff-Appellant,
v. No. 02-5117
(D.C. No. 01-CV-360-J)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and McCONNELL, Circuit Judges.
Plaintiff-appellant Sharon K. Baldwin appeals from the order entered by the
district court affirming the Social Security Commissioner’s denial of her
application for supplemental security income (SSI) benefits under Title XVI of
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
the Social Security Act. Exercising jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291, we affirm.
I. Background.
After plaintiff’s application for SSI benefits was initially denied, a de novo
hearing was held before an administrative law judge (ALJ). In a decision dated
February 9, 1999, the ALJ went through the five-part sequential evaluation
process for determining disability and found: (1) that plaintiff’s back impairment,
while severe, does not meet or equal the step-three listing for vertebrogenic
disorders of the spine, Listing 1.05C, see 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 1.05C (1998); 1
(2) that plaintiff has the residual functional capacity to perform
work at no greater than the light exertional level subject to no repetitive stooping
or twisting; (3) that plaintiff does not have the residual functional capacity to
perform her past relevant work; but (4) that plaintiff was not disabled during the
relevant time period because the Commissioner met her burden at step five of
showing that there are a significant number of jobs in the national economy that
plaintiff can perform despite her back impairment.
1
All citations herein to the Code of Federal Regulations are to the
regulations that were in effect at the time of the ALJ’s decision in February 1999.
We note that Listing 1.05 was revised and renumbered in 2002, and it is now
Listing 1.04. See 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.04 (2002).
-2-
In March 2001, the Appeals Council denied plaintiff’s request for review of
the ALJ’s decision. Plaintiff then filed a complaint in the district court. In May
2002, the magistrate judge, sitting by consent of the parties and by designation of
the district court under 28 U.S.C. § 636(c), entered an order affirming the ALJ’s
decision denying plaintiff’s application for SSI benefits. This appeal followed.
II. Onset Date.
To be entitled to SSI benefits, plaintiff must show that she was disabled
between November 24, 1997, the date she filed her application for SSI benefits,
and February 9, 1999, the date of the ALJ’s decision. See 20 C.F.R. §§ 416.330,
416.335, and 416.1476(b)(1). In addition, under the controlling regulations, SSI
benefits cannot be awarded retroactively. Id., § 416.335; SSR 83-20, 1983 WL
31249, at *1, *7 (1983); Kepler v. Chater, 68 F.3d 387, 389 (10th Cir. 1995).
Consequently, November 24, 1997 was the earliest date that plaintiff could have
been eligible to receive SSI benefits. 2 Like the ALJ, however, we will examine
medical evidence generated prior to November 1997, “but only for purposes of
2
As noted by the ALJ, plaintiff filed a prior application for benefits, and that
application was denied on October 29, 1996. See Aplt. App., Vol. 2 at 17. The
ALJ therefore concluded that “[t]he beginning date for the [disability] period
under consideration . . . is October 30, 1996, the day after the date [plaintiff]
previously was denied benefits.” Id. The ALJ was mistaken, however, because,
under the controlling regulations, plaintiff cannot receive benefits for any period
prior to the filing of her application for SSI benefits. See Kepler , 68 F.3d at 389
(citing 20 C.F.R. § 416.335).
-3-
establishing a baseline from which to evaluate [plaintiff’s] medical status.” Aplt.
App., Vol. 2 at 18.
-4-
III. Standard of Review.
Because the Appeals Council denied review, the ALJ’s decision is the
Commissioner’s final decision for purposes of this appeal. See Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,
“we neither reweigh the evidence nor substitute our judgment for that of the
agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.
1991). Instead, we review the ALJ’s decision only to determine whether the
correct legal standards were applied and whether the ALJ’s factual findings are
supported by substantial evidence in the record. See Doyal, 331 F.3d at 760.
IV. Analysis.
In this appeal, plaintiff claims the ALJ erred at step three in determining
that her back impairment did not meet or equal Listing 1.05C. She also claims the
ALJ erred at step five by failing to consider hand problems from which she
allegedly suffers, and the related physical limitations, in combination with her
back impairment, and by failing to propound a hypothetical question to the
vocational expert that included her hand limitations. Having reviewed the ALJ’s
decision to determine whether his factual findings are supported by substantial
evidence and whether he applied the correct legal standards, we conclude that
plaintiff’s claims are without merit.
-5-
A. Listing 1.05C and the ALJ’s Step-Three Finding.
Listing 1.05C provides as follows:
C. Other vertebrogenic disorders (e.g., herniated [disk], spinal
stenosis) with the following persisting for at least 3 months
despite prescribed therapy and expected to last 12 months.
With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in
the spine; and
2. Appropriate radicular distribution of significant motor loss
with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C.
Plaintiff has the “step three burden to present evidence establishing her
impairments meet or equal listed impairments.” Fischer-Ross v. Barnhart,
431 F.3d 729, 733 (10th Cir. 2005). To satisfy this burden, plaintiff must show
that her back impairment “meet[s] all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). In addition, the
determination of whether plaintiff’s back impairment meets or equals Listing
1.05C must be based solely on medical findings. See Kemp v. Bowen, 816 F.2d
1469, 1473 (10th Cir. 1987); 20 C.F.R. §§ 416.925-26. As we have explained, at
step three,
the ALJ must determine that the “medical findings” are at least equal
in severity and duration as those in the listed findings. 20 C.F.R.
§ 404.1526(a). “Medical findings” include symptoms (the claimant’s
-6-
own description of his impairments), signs (observations of
anatomical, physiological and psychological abnormalities which are
shown by clinical diagnostic techniques) and laboratory findings.
20 C.F.R. § 404.1528 . . . . However, the claimant’s descriptions,
alone, are not enough to establish a physical or mental impairment.
Id. at § 404.1528(a).
Bernal v. Bowen, 851 F.2d 297, 300 (10th Cir. 1988); see also 20 C.F.R.
§ 416.926(b) (stating that the Commissioner “will always base [the] decision
about whether [a claimant’s] impairment[] is medically equal to a listed
impairment on medical evidence only”).
The ALJ found that plaintiff’s lumbar spine impairment did not meet or
equal Listing 1.05C “because the objective medical evidence does not show all of
the required neurological deficits.” Aplt. App., Vol. 2 at 21. Relying on our
decision in Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996), plaintiff
argues that the ALJ’s step-three finding constitutes reversible error because he
did not discuss the evidence in the administrative record that supports his finding.
We agree with plaintiff that the ALJ should have discussed the medical evidence
in the record that supports his step-three finding. Under the circumstances of this
case, however, there is no reversible error.
First, the situation here is a far cry from the situation in Clifton where the
ALJ did not “even identify the relevant Listing or Listings; he merely stated in a
summary conclusion that appellant’s impairments did not meet or equal any Listed
-7-
Impairment.” Clifton, 79 F.3d at 1009. Instead, in this case, we have a specific
step-three finding by the ALJ.
Second, although the ALJ’s finding is expressed in terminology which does
not precisely mirror the terminology used in Listing 1.05C, it is clear the ALJ
directly addressed the specific medical criteria that is set forth in the listing.
Specifically, in referring to a lack of “the required neurological deficits,” we have
no doubt the ALJ was addressing whether plaintiff suffered from “[a]ppropriate
radicular distribution of significant motor loss with muscle weakness and sensory
and reflex loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C(2); see also The
Merck Manual of Diagnosis and Therapy, § 14 at 1490 (17th ed. 1999)
(discussing “objective neurologic deficits (weakness, sensory deficit)” that can be
caused by lumbar spine radiculopathies). 3 Thus, unlike in Clifton, this case does
not involve “a bare conclusion [that] is beyond meaningful judicial review.”
Clifton, 79 F.3d at 1009. To the contrary, the ALJ’s decision contains “an
explicit, definitive basis for rejection of the listing[].” Fischer-Ross, 431 F.3d at
734.
3
“Radiculopathy” is a “[d]isorder of the spinal nerve roots.” Stedman’s
Medical Dictionary at 1503 (27th ed. 2000); see also The Merck Manual , § 14
at 1488 (“Nerve root dysfunction, which is usually secondary to chronic pressure
or invasion of [a spinal nerve] root, causes a characteristic radicular syndrome of
pain and segmental neurologic deficit.”).
-8-
Finally, as set forth below, the ALJ’s step-three finding is supported by
substantial medical evidence in the record, and the most important evidence is
contained in the medical records of plaintiff’s treating orthopedist, Dr. Mark A.
Hayes. Although the ALJ did not address a significant part of Dr. Hayes’ medical
records in his decision (specifically, the medical records from August and
September 1998), the ALJ noted that Dr. Hayes “is the . . . treating physician who
performed [plaintiff’s back] surgery and then treated her,” Aplt. App., Vol. 2 at
20, and the ALJ stated that he was “giv[ing Dr. Hayes’] medical opinions full
weight,” id. As a result, unlike in Clifton, the ALJ in this case specifically
adopted medical opinions that support his step-three finding. Moreover, for
purposes of this appeal, it does not matter that the ALJ referred to Dr. Hayes’
opinions outside of the context of his step-three analysis. Cf. Fischer-Ross,
431 F.3d at 734 (“Clifton does not remotely suggest that findings at other steps of
an ALJ’s analysis may never obviate the lack of detailed findings at step three.
Clifton sought only to ensure sufficient development of the administrative record
and explanation of findings to permit meaningful review.”).
B. Substantial Evidence Review.
Although Listing 1.05C does not define the term “vertebrogenic disorders,”
the listing begins by specifically referring in parenthesis to two such disorders:
-9-
a herniated spinal disk and spinal stenosis. 4 In addition, another section of the
listing regulations states that “vertebrogenic disorders . . . result in impairment
because of distortion of the bony and ligamentous architecture of the spine or
impingement of a herniated [disk] or bulging annulus on a nerve root.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B (emphasis added). For purposes of
this case, we are dealing with an alleged vertebrogenic disorder of the latter type.
As a result, the specific issue before the ALJ was whether plaintiff suffered
during the relevant time frame from a spinal “[ne]rve root dysfunction . . . [that
was causing] a characteristic radicular syndrome of pain and segmental neurologic
deficit.” The Merck Manual, § 14 at 1488.
We conclude that there is substantial medical evidence in the administrative
record to support the ALJ’s finding that plaintiff did not suffer from radicular
neurological deficits caused by an impingement of a spinal nerve root during the
relevant time frame. Most importantly, while there is no question that plaintiff
suffered from a herniated lumbar disk at the time Dr. Hayes and Dr. Kosmoski, a
neurosurgeon, performed surgery on her lumbar spine in February 1996, see Aplt.
App., Vol. 2 at 154, 155, 101, 103, 150, 105-06, 107-08, 111-13, 109-10, neither
4
In 1995, an MRI scan of plaintiff’s lumbar spine showed no evidence of
any spinal stenosis, see Aplt. App., Vol. 2 at 155, and there is no indication in
plaintiff’s medical records that she suffered from spinal stenosis during the
relevant time frame.
-10-
Dr. Hayes nor Dr. Kosmoski diagnosed plaintiff as suffering from radicular
neurological deficits, either before or after the surgery.
Prior to plaintiff’s surgery, Dr. Hayes reported that she had “no motor
deficits.” Id. at 156. He also reported that, although an “MRI scan showed
possibility of a protruding disk herniation in the midline at L4-5,” plaintiff’s
“primary complaint of pain is discogenic rather than radicular.” Id. at 154.
Dr. Hayes thus concluded that he “felt her pain was discogenic rather than
radicular in character.” Id. at 105. Similarly, in the consultation report that he
prepared prior to plaintiff’s surgery, Dr. Kosmoski reported that there was “no
evidence of radicular findings.” Id. at 107.
While plaintiff underwent a second surgical procedure in February 1997,
the second surgery had nothing to do with a herniated disk or any related radicular
syndrome or disorder. Instead, Dr. Hayes performed the second surgery due to
the fact that plaintiff had developed “postoperative bursitis” in the area where the
first surgery had been performed, and she therefore needed to have the
“hardware” that was implanted in her spine during the first surgery removed. Id.
at 143, 129-30, 131-32, 128. The record also indicates that the second surgery
was successful. In fact, in March 1997, Dr. Hayes reported that plaintiff
“seem[ed] to be doing quite well,” and he released her from his care, stating only
-11-
that she had “limitations of no lifting or carrying of over 40 to 50 pounds and no
repetitive lifting of over 40 to 50 pounds.” Id. at 139.
Subsequently, in August 1998, Dr. Hayes noted that plaintiff’s condition
had worsened since her release from his care in March 1997, and he reported that
she had “motor deficits new from her last visit,” id. at 194, which included
“persistent dysesthesia down the leg, right and left,” id. at 193. Despite these
symptoms, however, an MRI scan taken at the time “show[ed] no recurrent disc
herniation.” Id. In addition, although Dr. Hayes expressed concern in August
1998 about a possible “neurological lesion,” id., plaintiff’s subsequent
neurological evaluation, which included an electromyogram and a nerve
conduction study, “[came] back satisfactory,” id. at 192. Dr. Hayes thus
concluded that “[n]o further surgical treatment [was] necessary.” Id.
To support her challenge to the ALJ’s listing finding, plaintiff is also
relying on medical evidence that was generated after the ALJ issued his decision.
Specifically, on March 4, 1999, less than a month after the ALJ issued his
decision denying benefits, plaintiff was examined by Dr. Hastings, an internist,
and an “internist evaluation” from Dr. Hastings dated March 8, 1999 was
submitted to and considered by the Appeals Council. Id. at 7, 9, 11, 215-19. In
his evaluation, Dr. Hastings reported that plaintiff’s back problems had worsened
“over the last three to four months,” id. at 218, and he noted that plaintiff was
-12-
complaining of radicular symptoms, including “burning, tingling and paresthesias
into the lower extremities bilaterally,” id. at 217. Plaintiff was also complaining
“of weakness with her legs going out and difficulty ambulating.” Id.
“After taking a history, reviewing available medical records, and
performing a physical examination of [plaintiff],” Dr. Hastings stated that it was
his “medical opinion that [plaintiff] should undergo further diagnostic testing
regarding [her] radicular symptomatologies.” Id. at 219. Dr. Hastings therefore
recommended that plaintiff “undergo further testing to include a CT myleogram
and/or an awake lumbar discogram to determine whether or not [she] does in fact
have radiculopathy as a result of a persistent disc injury.” Id. The administrative
record does not contain any records pertaining to such testing, however.
Consequently, for purposes of this case, Dr. Hastings’ concern about plaintiff’s
“radicular symptomatologies” was never confirmed by objective medical
evidence. Quite to the contrary, as he explicitly noted in his evaluation, Dr.
Hastings was still in the process of trying to confirm “whether or not [she] does in
fact have radiculopathy.” Id. Thus, having considered Dr. Hastings’ March 8,
1999 evaluation as “part of the administrative record to be considered when
evaluating [the ALJ’s] decision for substantial evidence,” O’Dell v. Shalala ,
44 F.3d 855, 859 (10th Cir. 1994), we conclude that the evaluation is insufficient
to support a remand on the step-three listing issue.
-13-
C. Alleged Hand Limitations.
In March 1998, plaintiff was examined by a consulting examiner,
Dr. Dalessandro, a general practitioner, and he found that both her right and left
hands had a grip strength of fourteen kilograms. See Aplt. App., Vol. 2 at 164.
Based on a medical article from The Journal of Hand Surgery that was not before
the ALJ or the Appeals Council, but that she attached to her district court brief,
see R., Doc. 16, plaintiff argues that Dr. Dalessandro’s finding translates into a
grip strength that “is from 38% to 41% of a normal female’s grip strength,” Aplt.
Opening Br. at 27. Plaintiff also testified at the hearing before the ALJ that she
experiences numbness in her hands on a daily basis, and that she “can’t lift very
much with these hands. Not like I used to.” Aplt. App., Vol. 2 at 227.
Plaintiff claims that “her hand limitations, as evidenced by the reduced grip
strength bilaterally, . . . constitute[] a ‘severe’ impairment at step two (2) of the
sequential analysis.” Aplt. Opening Br. at 25-26. She further claims that “[t]he
ALJ ignored the importance of [her] hand impairments as an additional
impairment that would impact negatively upon her ability to work.” Id. at 25.
Plaintiff also claims that, even if her hand limitations do not qualify as a severe
impairment at step two of the evaluation process, the ALJ was still required to
consider her hand limitations in combination with her back impairment in
determining if she was disabled.
-14-
We conclude that the ALJ did not err in failing to consider plaintiff’s
alleged hand limitations in combination with her back impairment. To begin
with, as pointed out by the ALJ, “there is no objective medical evidence [in the
record] showing a complaint of or treatment for numbness in the hands.” 5 Aplt.
App., Vol. 2 at 20. In addition, there is no objective medical evidence in the
record supporting plaintiff’s claim that her grip strength limits her ability to
perform the jobs identified by the ALJ at step five of the evaluation process. 6
In her opening brief, plaintiff cites to medical records of Dr. Cochran, the
orthopedic surgeon who removed a ganglion cyst from her right wrist in 1996,
claiming that the records document the pain associated with the cyst and the fact
that the cyst was irritating sensory nerves. See Aplt. Opening Br. at 26-27. But
the medical records of Dr. Cochran that plaintiff is relying on relate to the period
before she had the cyst surgically removed, see Aplt. App., Vol. 2 at 121-22, 126,
and she has made no showing that any of the problems persisted after the surgery.
5
The medical records from the Green Country Free Clinic, which were not
before the ALJ, but were reviewed by the Appeals Council, see Aplt. App., Vol. 2
at 7, 9, 10, indicate that plaintiff complained of right wrist, elbow, arm, and
shoulder pain in October 1998, id. at 196. The records do not contain any
specific medical findings by the physicians who treated plaintiff for these
complaints, however. Instead, the records state only that she had “[p]ossible . . .
Carpel Tunnel.” Id.
6
In fact, in the “Hand/Wrist Sheet” that he completed in March 1998,
Dr. Dalessandro reported that plaintiff could manipulate small objects and
effectively grasp tools. See Aplt. App., Vol. 2 at 167.
-15-
In fact, the last medical record from Dr. Cochran, which is dated January 20,
1997, states that plaintiff was “doing well . . . . [with] no signs of re-occurrence
at this point. No return appointments made.” Id. at 125.
Finally, plaintiff is correct that the ALJ must “consider the combined effect
of all of [a claimant’s] impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity.” 20 C.F.R.
§ 416.923. The problem here, however, is that plaintiff has overlooked the
threshold requirement that “[a] physical . . . impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by [the claimant’s] statement of symptoms.” Id., § 416.908. Because plaintiff’s
subjective claims regarding the physical limitations caused by her alleged hand
problems are not supported by any objective medical evidence, the ALJ did not
err in failing to consider her hand problems as an impairment, and he was not
required to consider the alleged hand limitations in combination with plaintiff’s
back impairment. For the same reason, the ALJ was not required to include the
alleged hand limitations in the hypothetical question he posed to the vocational
expert. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (holding that
hypothetical questions to vocational experts “need only reflect impairments and
limitations that are borne out by the evidentiary record”).
-16-
The judgment of the district court is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
-17- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4554027/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD DENT; JEREMY NEWBERRY; No. 19-16017
ROY GREEN; J. D. HILL; KEITH VAN
HORNE; RON STONE; RON D.C. No.
PRITCHARD; JAMES MCMAHON; 3:14-cv-02324-
MARCELLUS WILEY, on behalf of WHA
themselves and all others similarly
situated,
Plaintiffs-Appellants, OPINION
v.
NATIONAL FOOTBALL LEAGUE, a
New York unincorporated
association,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted March 12, 2020
San Francisco, California
Filed August 7, 2020
Before: Richard C. Tallman, Jay S. Bybee, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman
2 DENT V. NAT’L FOOTBALL LEAGUE
SUMMARY *
California Law / Negligence / Preemption
The panel affirmed in part and reversed in part the
district court’s dismissal of a third amended complaint
(“TAC”) brought by a putative class of former National
Football League (“NFL”) players, alleging that the NFL
negligently facilitated the hand-out of controlled substances
to dull players’ pain and to return them to the game in order
to maximize profits.
The panel affirmed the district court’s dismissal of
plaintiffs’ per se theory of negligence. The panel held that
while the district court’s order held plaintiffs to an
unnecessarily high pleading standard, it still correctly
identified the main deficiency in plaintiffs’ pleading: the
dearth of allegations regarding NFL behavior that violated
the duty to comply with federal and state laws outlined in the
TAC. In addition, the panel held that although it was evident
that plaintiffs suffered serious and long-standing injuries,
plaintiffs could not explain exactly what NFL actions were
responsible for them, and therefore it was impossible to
ascertain whether there was proximate causation.
The panel held that plaintiffs sufficiently alleged a
voluntary undertaking theory of negligence to survive a
motion to dismiss, and the district court erred in concluding
otherwise. Specifically, the panel held that plaintiffs’
allegations supported their theory that the NFL undertook
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DENT V. NAT’L FOOTBALL LEAGUE 3
the duty of overseeing the administration of the distribution
of pain medications to players, and the NFL was aware that
it should be providing protections. The panel also concluded
that there were adequate allegations that the NFL’s
carelessness in allowing drugs to be distributed as they were
increased the risk of harm to plaintiffs.
Plaintiffs argued that the TAC allegations supported a
negligence claim arising out of the special relationship
between themselves, as players, and the NFL. The panel
rejected the argument because plaintiffs failed to reference a
special relationship in the TAC, and upheld the district
court’s dismissal of this theory.
Because the district court did not consider whether
plaintiffs’ voluntary undertaking claim was preempted by
§ 301 of the Labor Management Relations Act, the panel
remanded to the district court for consideration in light of the
relevant collective bargaining agreements, and the guidance
in prior appeal outlined in Dent v. Nat’l Football League,
902 F.3d 1109 (9th Cir. 2018).
COUNSEL
William N. Sinclair (argued), Phillip J. Closius, Steven D.
Silverman, and Andrew G. Slutkin, Silverman Thompson
Slutkin & White LLC, Baltimore, Maryland, for Plaintiffs-
Appellants.
Pratik A. Shah (argued), Daniel L. Nash, and James E.
Tysse, Akin Gump Strauss Hauer & Feld LLP, Washington,
D.C.; Allen J. Ruby, Jack P. DiCanio, and Patrick Hammon,
Skadden Arps Slate Meagher & Flom LLP, Palo Alto,
California; for Defendant-Appellee.
4 DENT V. NAT’L FOOTBALL LEAGUE
OPINION
TALLMAN, Circuit Judge:
Plaintiffs, nine former National Football League (NFL)
players, represent a putative class of NFL athletes who
played for any NFL-member Club between 1969 and 2014
and allegedly suffered injury from what they claim was a
“return to play” business plan prescribed by the NFL.
According to Plaintiffs’ Third Amended Complaint (TAC),
the NFL negligently facilitated the hand-out of controlled
substances to dull players’ pain and return them to the game
after injury in order to maximize revenues by keeping
marquee players on the field. The NFL allegedly conducted
studies and promulgated rules regarding how Clubs should
handle distribution of the medications at issue, but failed to
ensure compliance with them, with medical ethics, or with
federal laws such as the Controlled Substances Act,
21 U.S.C. § 801 et seq., and the Food, Drug, and Cosmetic
Act, 21 U.S.C. § 301 et seq. We previously determined that
Plaintiffs’ claims, as long as they relate to actions of the NFL
itself, and not the Clubs, were not preempted by § 301 of the
Labor Management Relations Act, 29 U.S.C. § 141. See
Dent v. Nat’l Football League, 902 F.3d 1109 (9th Cir. 2018)
(hereinafter Dent I). On remand from that decision, the
district court remained convinced that Plaintiffs’ allegations
center too heavily on the actions of the Clubs and granted the
NFL’s motion to dismiss for failure to state a claim against
the NFL.
Plaintiffs now bring another appeal, challenging the
district court’s dismissal of their only remaining claim for
negligence, which they argue they have sufficiently alleged
under three different theories: negligence per se, voluntary
undertaking, and special relationship. Though we agree with
the district court that two of those theories were
DENT V. NAT’L FOOTBALL LEAGUE 5
insufficiently pled, we conclude that Plaintiffs’ voluntary
undertaking theory survives dismissal, given sufficient
allegations in the TAC of the NFL’s failure to “use its
authority to provide routine and important safety measures”
regarding distribution of medications and returning athletes
to play after injury. Mayall ex rel. H.C. v. USA Water Polo,
Inc., 909 F.3d 1055, 1067 (9th Cir. 2018). If proven, a
voluntary undertaking theory could establish a duty owed by
the NFL to protect player safety after injury, breach of that
duty by incentivizing premature return to play, and liability
for resulting damages.
I
Plaintiffs initially filed suit against the NFL in May
2014, followed by an amendment a few months later. At that
time, Plaintiffs’ claims included negligence (under a per se
theory), negligent hiring and retention, negligent
misrepresentation, fraud, and fraudulent concealment on
behalf of a class of players who had “received or were
administered” drugs by anyone affiliated with the NFL. See
Dent I, 902 F.3d at 1115. Plaintiffs sought damages,
injunctive and declaratory relief, and medical monitoring.
Id. The NFL filed a motion to dismiss, arguing that
Plaintiffs’ claims were preempted by § 301 of the Labor
Management Relations Act (LMRA), which the district
court granted. Id. at 1115–16.
On appeal in Dent I, we reversed the district court’s
preemption decision as to all claims, including negligence.
Plaintiffs’ negligence claim was premised on a per se
violation of federal statutes like the Controlled Substances
Act (CSA) and the Food, Drug, and Cosmetic Act (FDCA),
as well as corresponding state laws. Id. at 1117–18. We
determined that, although the CSA and FDCA did not
provide a cause of action, the NFL did have a duty to use
6 DENT V. NAT’L FOOTBALL LEAGUE
“reasonable care in the handling, distribution, and
administration of controlled substances,” which arises from
the “general character of [that] activity” and the “players’
right to receive medical care from the NFL that does not
create an unreasonable risk of harm.” Id. at 1118–19
(alteration in original). The claim was not preempted by
§ 301 of the LMRA because Plaintiffs’ allegations related to
the NFL (not the member Clubs), and the NFL’s duty to
properly handle controlled substances was not defined by the
Collective Bargaining Agreements (CBA) between the
Clubs and players. Id. at 1121. Though some confusion
naturally arose from the fact that the NFL is an
unincorporated association comprised of the Clubs (thirty-
two of them), and there is much overlap in the membership
and governance of those entities by team owners, we
instructed that any further proceedings in the case center on
the actions of “the NFL and NFL personnel” alone. Id.
Upon remand, Plaintiffs amended their complaint again,
to form the operative version on appeal: what is now the
TAC. 1 The TAC is limited to a single remaining negligence
claim; all other causes of action were voluntarily abandoned.
At its core, the claim centers on the theory that “[t]he NFL
was required to, or voluntarily undertook the duty to, comply
with federal and state laws regulating the manner in which
[pain] Medications were administered and distributed,” and
failed to do so because of its established “business culture in
which everyone’s financial interest depends on supplying
1
The TAC apparently incorporates information obtained during
discovery in the Evans v. Arizona Cardinals Football Club, LLC
litigation that another group of NFL players, represented by the same
counsel as Plaintiffs here, brought against the individual Clubs. 231 F.
Supp. 3d 342 (N.D. Cal. 2017) (order granting summary judgment for
Clubs on remaining RICO claim due to statute of limitations bar), aff’d,
761 F. App’x 701 (9th Cir. 2019).
DENT V. NAT’L FOOTBALL LEAGUE 7
Medications to keep players in the game.” The medications
at issue include opioids, non-steroidal anti-inflammatories
(such as Toradol), and anesthetics. Passages from the CSA
and FDCA are cited in the TAC to bolster Plaintiffs’
negligence per se theory, and documents uncovered during
the parallel Evans litigation against the Clubs are quoted to
develop Plaintiffs’ narrative alleging the NFL’s involvement
in the putative drug-distribution scheme. One such
document states that “reputational and financial interests . . .
and the nature of the sport combine to make opioid and other
pain medication usage much more prevalent in the NFL than
in virtually any other industry, population or endeavor,”
which “means that there is shared responsibility and joint
culpability for the problem.”
What is most striking about the TAC, the simplicity of
Plaintiffs’ single legal claim notwithstanding, is the
painstaking recitation of injuries sustained by Plaintiffs and
the medications they recall receiving during their tenure with
the NFL. For example, Plaintiff Jim McMahon, a player for
six different NFL Club teams during his career, sustained
shoulder injuries (among many others) that included
dislocation, rotator cuff tears, tendonitis, bone spurs,
osteoarthritis, and supraspinatus tears, and he recalls
receiving “hundreds, if not thousands, of injections . . . and
pills,” such as Percocet, Novocain, amphetamines, sleeping
pills, muscle relaxers, and Toradol. An NFL-created
document obtained by Plaintiffs purportedly notes that “the
number of prescription medication pills provided to a player
on a single occasion, [varies] from as few as one to as many
as 40 pills at one time.” The named Plaintiffs’ wide-ranging
internal organ and musculoskeletal injuries, and substances
distributed to manage those injuries (if true), are shocking,
even to a reader familiar with the physically demanding
8 DENT V. NAT’L FOOTBALL LEAGUE
nature of professional football and the resulting injuries from
playing the game.
The NFL filed a motion to dismiss the TAC under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim, which the district court granted in April 2019. The
court’s order reasoned that the TAC did not plausibly allege
negligence under a per se theory because it did not provide
evidence of “direct involvement in the handling,
distribution, and administration” of controlled substances by
“the NFL itself.” The order went on to swiftly dismiss
Plaintiffs’ other theories, and thus their negligence claim
altogether. Plaintiffs timely appealed.
We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s Rule 12(b)(6) dismissal de novo. See
Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir.
2012) (en banc).
II
In reviewing a complaint at the motion to dismiss stage,
we “must accept all material allegations in the complaint as
true, and construe them in the light most favorable to the
non-moving party.” Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter . . . to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted). We
note that “[t]he plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Dismissal is only proper where the allegations in the
DENT V. NAT’L FOOTBALL LEAGUE 9
complaint do not factually support a cognizable legal theory.
See Chubb Custom, 710 F.3d at 956.
Plaintiffs present three possible theories under which
their action might proceed; we address each in turn.
A
Plaintiffs argue that, contrary to the district court’s
determination, they have sufficiently pled a negligence claim
under a per se theory. Plaintiffs must allege facts to support
the four elements of negligence: duty, breach, causation, and
damages. Mayall, 909 F.3d at 1060 (citing Beacon
Residential Cmty. Ass’n v. Skidmore, Owings & Merrill LLP,
327 P.3d 850, 853 (Cal. 2014)). 2 “[T]he doctrine of
negligence per se is not a separate cause of action, but creates
an evidentiary presumption that affects the standard of care
in a cause of action for negligence.” Johnson v. Honeywell
Int’l Inc., 101 Cal. Rptr. 3d 726, 731 (Cal. Ct. App. 2009)
(alteration in original, citation omitted). Thus, in addition to
pleading facts sufficient to support the elements of
negligence, a complaint need only support Plaintiffs’ theory
of the case and may refer to a statute in doing so. See Jones
v. Awad, 252 Cal. Rptr. 3d 596, 605 (Cal. Ct. App. 2019)
(“[T]he doctrine of negligence per se is within the scope of
pleadings that allege general negligence, as proof of a breach
of duty is not limited to common law standards of care.”);
Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 244 (Cal.
Ct. App. 2006) (negligence per se “operates to establish a
presumption of negligence for which the statute serves the
2
Although Plaintiffs seek to represent a nationwide class, we will
follow in the footsteps of the district court and our previous opinion and
analyze Plaintiffs’ negligence claim under California common law—a
convenience the parties also adopted in their briefing. See Dent I,
902 F.3d at 1117 n.4.
10 DENT V. NAT’L FOOTBALL LEAGUE
subsidiary function of providing evidence of an element of a
preexisting common law cause of action”).
Plaintiffs’ primary argument for reversal of the district
court’s dismissal of this theory of their claim is that the
district court misconstrued both the thrust of their allegations
and the NFL’s duty, as identified in Dent I. We agree in
some respects, but ultimately conclude that there was no
error in the district court’s negligence per se dismissal
because the court correctly identified deficiencies in
Plaintiffs’ breach allegations.
In Dent I we determined that, while “no statute explicitly
establishes [] a duty” to “exercise reasonable care in the
distribution of medications,” such a duty arises from “the
general character of [that] activity.” 902 F.3d at 1119
(second alteration in original). And, “to the extent the NFL
is involved in the distribution of controlled substances,” it
has such a duty toward Plaintiffs. Id. The district court’s
characterization of that holding missed the mark somewhat,
requiring that Plaintiffs allege the “NFL’s direct
involvement in the handling, distribution, and administration
of [] controlled substances,” consistent with the fairly
clinical definitions of those terms in the CSA and FDCA.
But Plaintiffs are correct that Dent I did not adopt such a
rigid construction, and in fact referred to allegations that the
NFL may have “directly and indirectly supplied players”
with drugs or “coordinat[ed] the illegal distribution of
painkillers and anti-inflammatories,” in defining the duty.
Id. at 1115, 1118 (emphasis added, alteration in original).
Examining the TAC with that clarification in mind, it
does appear that Plaintiffs facially allege a duty somewhat
similar to that identified in Dent I. The TAC states: “The
NFL was required to . . . comply with federal and state laws
regulating the manner in which [the defined] Medications
DENT V. NAT’L FOOTBALL LEAGUE 11
were administered and distributed. It failed to do so . . . and
that failure directly and proximately caused the injuries for
which Plaintiffs seek damages.” Plaintiffs point to specific
provisions of the federal drug statutes that they claim the
NFL violated through the actions of “NFL doctors and
trainers.” For example, the TAC cites to CSA provisions
that make it “unlawful for any person to knowingly or
intentionally ‘. . . distribute, or dispense, a controlled
substance[]’ in violation of the CSA,” 21 U.S.C. § 841(a)(1),
and extend liability to “[a]ny person who attempts or
conspires to commit,” such an offense, id. § 846.
But what the TAC fails to do is marshal facts that tether
the alleged statutory violations to any concrete actions of the
NFL (i.e., allege breach). This shortcoming became clear at
oral argument when Plaintiffs’ counsel acknowledged that
the phrase “NFL doctors and trainers,” as used in the TAC,
does not actually refer to any employees of the NFL itself.
Despite the TAC’s separate references to “Club doctors and
trainers,” Plaintiffs’ counsel conceded that the “NFL” and
“Club” doctors and trainers are one and the same, and are in
fact the hired hands of the Clubs. While the district court’s
order held Plaintiffs to an unnecessarily high pleading
standard, it still correctly identified the main deficiency in
Plaintiffs’ pleading: the dearth of allegations regarding NFL
behavior that violates the duty to “comply with federal and
state laws” outlined in the TAC. Even allowing for claims
of “indirect” supply or “coordinat[ion of] the illegal
distribution” of substances, as discussed in Dent I, 902 F.3d
at 1115, 1118, we cannot say that Plaintiffs’ allegations of
breach sufficiently connect back to the NFL. By Plaintiffs’
own admission, the Club doctors and trainers appear to be
the only relevant actors purportedly in violation of statutory
requirements.
12 DENT V. NAT’L FOOTBALL LEAGUE
And although it is evident that Plaintiffs suffered myriad
serious and long-lasting injuries, because they cannot tell us
exactly what NFL actions are responsible for them, it is
impossible to ascertain whether there is proximate causation.
See Ileto v. Glock Inc., 349 F.3d 1191, 1206 (9th Cir. 2003)
(liability attaches to “foreseeable consequences that the
defendant’s negligence was a substantial factor in
producing” (quoting Mendoza v. City of Los Angeles, 78 Cal.
Rptr. 2d 525, 530 (Cal. Ct. App. 1998))). The absence of
facts in the TAC pertaining to the NFL’s alleged breach and
causation of damages dooms any possible recovery under
this theory. We affirm the district court’s dismissal of
Plaintiffs’ per se theory of negligence.
B
Plaintiffs offer voluntary undertaking as an alternative
theory for the NFL’s negligence liability. 3 In California, a
voluntary undertaking negligence claim may be sufficiently
pled by showing, inter alia, that:
(1) an actor undertook to render services to
another; (2) . . . of a kind the actor should
have recognized as necessary for the
protection of [the plaintiff]; (3) the actor
failed to exercise reasonable care in the
performance of the undertaking; (4) the
failure . . . resulted in physical harm to the
3
The NFL argues that Plaintiffs are judicially estopped from
asserting a voluntary undertaking theory because it was not raised at the
time of Dent I. We disagree. Plaintiffs’ decision to pursue a voluntary
undertaking theory in the face of an earlier assertion that their negligence
per se argument was the “primary duty at issue,” does not rise to the level
of a “clearly inconsistent” position. New Hampshire v. Maine, 532 U.S.
742, 750 (2001).
DENT V. NAT’L FOOTBALL LEAGUE 13
[plaintiff]; and (5) (a) the actor’s carelessness
increased the risk of such harm . . . .
Mayall, 909 F.3d at 1066 (citing Artiglio v. Corning Inc.,
957 P.2d 1313, 1318 (Cal. 1998)). Plaintiffs liken this case
to Mayall, in which we concluded that a negligence claim
based on voluntary undertaking should survive 12(b)(6)
dismissal where a putative class of youth water polo players
alleged that, “by failing to establish a concussion-
management and return-to-play protocol for its youth water
polo league, USA Water Polo failed to exercise reasonable
care in the performance of its undertaking—ensuring a
healthy and safe environment for its players.” Id. at 1067.
The Mayall plaintiffs asserted that USA Water Polo
“regulate[d] every aspect of water polo, including the
enactment of rules regarding player safety and health,” and
USA Water Polo’s own bylaws “require[d] it to ensure
proper safety precautions have been taken to protect the
personal welfare of the athletes” at its events. Id. Although
the team coaches and trainers were ultimately responsible for
the decision to put a player back in the game after that player
suffered a potential concussion, USA Water Polo itself could
still be liable for failing to promote regulations that may have
avoided return-to-play injuries. Id. at 1067–68.
Similarly, the TAC alleges that the NFL “voluntarily
undertook a duty” to “ensure the proper recordkeeping,
administration and distribution of Medications,” but
ultimately failed to protect players due to its “business
culture in which everyone’s financial interest depends on
supplying Medications to keep players in the game.”
Plaintiffs support this statement with factual allegations that
the NFL created a drug oversight program in 1973, which
“required teams and their doctors to report to the NFL
regarding the administration of Medications.” Beginning in
14 DENT V. NAT’L FOOTBALL LEAGUE
at least the early 1990s, the NFL allegedly “began auditing
clubs’ compliance with [federal drug] laws,” such as “the
types of drugs being administered, the amounts in which
they were administered,” and related information. Plaintiffs
also claim that the NFL has “mandated procedures to control
the drug distribution system,” including the registration of
the Clubs’ facilities as storage facilities for controlled
substances, the use of tracking software by SportPharm, and
periodic drug-use audits by the NFL Security Office. NFL
Club trainers and doctors are supposedly “mandated by the
NFL to meet on a yearly basis” with NFL officials, and
doctors provide “reports directly to the League about the
Medications.” The NFL also purportedly funded studies on
Toradol use, which resulted in Toradol guidelines that were
not followed.
Furthermore, Plaintiffs claim that the NFL is aware of
improper handling of pain medications and that its “standard
of treatment for professional athletes [is] ‘outside the lines.’”
A document written by a non-Club doctor, which was
apparently commissioned by the NFL, bluntly states that
both “appropriate (properly prescribed and monitored) and
inappropriate opioid and non-opioid pain medication use”
are “much more prevalent in the NFL than in virtually any
other industry, population or endeavor,” which “means that
there is a shared responsibility and joint culpability for the
problem.” And the NFL was alerted, via the same report,
that players “who would otherwise not play or play at the
same level of competitiveness may be induced by a pain
medication and their personal financial/reputational
incentives to play under conditions that could exacerbate
their injuries and hinder their recovery,” and “will be at
longer-term risk for developing abuse or addiction.”
DENT V. NAT’L FOOTBALL LEAGUE 15
The NFL has promulgated rules such as the “NFL
Prescription Drug Program and Protocol,” with the purpose
(as that document allegedly states) of “provid[ing]
guidelines for the utilization of all prescription drugs
provided to players and team personnel by physicians and
other healthcare providers and associated the [sic] NFL
clubs” and “to ensure [] appropriate handling (purchase,
distribution, dispensing, administration and recordkeeping)”
in compliance with “regulations of the Federal Drug
Enforcement Administration (DEA) as they apply to
controlled substances.” And yet, “when the DEA
investigated the clubs [in 2010], nothing had changed. The
clubs still did not understand—and were in woeful non-
compliance with—the law regarding controlled substances,
as evidenced by the many, many violations thereof.” Players
continued to face the heightened risks associated with
playing through their injuries while receiving improperly
handled and administered medications, and the NFL
allegedly was aware of this from its audit results but
nonetheless turned a blind eye to maximize its revenues.
We agree with Plaintiffs that their allegations read much
like those in Mayall. 4 We, and other courts, have previously
noted that the NFL “promotes, organizes, and regulates
professional football in the United States,” just as USA
Water Polo regulates its sport. Dent I, 902 F.3d at 1114
(quoting Williams v. Nat’l Football League, 582 F.3d 863,
868 (8th Cir. 2009)). Building on this baseline, the TAC
4
We reject the NFL’s attempt to distinguish Mayall on the basis that
it involved youth (rather than adult) athletes. Nothing in Mayall suggests
that the logic or holding of the case should be cabined that way. The
focus is instead on the harm that results from prematurely returning
athletes to play after they have already suffered an injury. Mayall,
909 F.3d at 1067.
16 DENT V. NAT’L FOOTBALL LEAGUE
paints a picture of the NFL’s “mandated” and “required”
audits, oversight, and procedures regarding drug distribution
across member Clubs, as well as the NFL’s failure to enforce
rules that it knows are necessary to avoid further injury to
players. These allegations support Plaintiffs’ theory that the
NFL undertook “the duty of overseeing [the] administration”
of the distribution of pain medications to players and is
aware that it should be providing protections.
The NFL argues that no court “has ever held that a
professional sports league owed such a duty to intervene and
stop mistreatment by the league’s independent clubs” and
there is “no reason to break new ground here.” But the NFL
misconstrues the alleged duty as one to “intervene” in the
Clubs’ drug management, rather than for the NFL to
properly exercise a voluntarily undertaken duty to create and
then enforce league-wide rules regarding player safety and
drug distribution. “Although defendants generally have no
legal duty to eliminate (or protect a plaintiff against) risks
inherent in the sport itself, it is well established that
defendants generally do have a duty to use due care not to
increase the risks to a participant over and above those
inherent in the sport.” Mayall, 909 F.3d at 1061 (quoting
Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992)). See also
Wattenbarger v. Cincinnati Reds, Inc., 33 Cal. Rptr. 2d 732,
738 (Cal. Ct. App. 1994) (duty of care exists to protect
baseball tryout participants from aggravating sustained
injuries, in part because it is “not at all unforeseeable a
participant will attempt to push his body beyond its
capabilities” to obtain a position on a “professional sports
team”). We believe Plaintiffs’ allegations are sufficient to
raise a claim that the NFL undertook such a duty here.
And the breach alleged by Plaintiffs—physical harm that
resulted from their premature return to play after suffering
DENT V. NAT’L FOOTBALL LEAGUE 17
otherwise debilitating injuries masked by over-prescription
of pain-relieving medications—resembles the alleged failure
on the part of USA Water Polo to “use its authority to
provide routine and important safety measures” regarding
return-to-play methods after an injury has been sustained.
Mayall, 909 F.3d at 1067. See also Wattenbarger, 33 Cal.
Rptr. 2d at 738 (returning an athlete to play after he has
suffered an injury is clearly a bad idea and it “requires no
depth of analysis” to reach that conclusion in the context of
a voluntary undertaking claim against a professional sports
team). Despite the NFL’s one-step-removed relationship to
the players, it was within the NFL’s control to promulgate
rules or guidelines that could improve safety for players
across the league. See Mayall, 909 F.3d at 1068 (potential
liability for USA Water Polo as the “rule-making
authority”); Ileto, 349 F.3d at 1207 (holding gun
manufacturers liable because they were “in the best position
to protect against the risk of harm” caused by the purchase
of illegal guns from all of the different sellers to whom they
distributed). The TAC even alleges that the NFL has already
demonstrated its ability to create better policies, regarding
Toradol use for example, but has failed to enforce them.
Only one aspect of the voluntary undertaking test
remains: whether the TAC includes allegations that “the
actor’s carelessness increased the risk of [physical] harm” to
Plaintiffs. Mayall, 909 F.3d at 1066 (presenting increased
risk as one of three options sufficient to satisfy element five).
In the TAC, each player recounts the drugs he recalls being
given during his NFL career and the injuries he suffered on
the field that were allegedly “caused, aggravated, extended,
worsened, prolonged, exacerbated, intensified, perpetuated,
protracted, or made permanent by the wrongful
administration of Medications to him.” Plaintiffs state that
some “doctors they saw after their careers concluded . . . that
18 DENT V. NAT’L FOOTBALL LEAGUE
some of their ailments might be the result of the amount of
Medications they took during their NFL careers.”
Additionally, we have already previewed Plaintiffs’
contention that the NFL received a medical report stating
that the organization’s policies regarding drug distribution
create “short and long term risks of pain medication use and
abuse.” We conclude that these are adequate allegations that
the NFL’s carelessness in allowing drugs to be distributed as
they were increased the risk of harm to Plaintiffs. See id.
at 1067 (USA Water Polo “increased the risk of secondary
concussions to players who improperly returned to play”).
All elements of the voluntary undertaking theory of
negligence have been properly pled.
Plaintiffs sufficiently allege a voluntary undertaking
theory of negligence to survive a motion to dismiss, and the
district court erred in its conclusion to the contrary.
C
As to their final theory of negligence, Plaintiffs argue
that the TAC allegations support a claim arising out of the
special relationship between themselves, as players, and the
NFL. Under California law, “a duty to warn or protect may
be found if the defendant has a special relationship with the
potential victim that gives the victim a right to expect
protection.” Regents of Univ. of Cal. v. Superior Court,
413 P.3d 656, 664 (Cal. 2018). Special relationships are
characterized by “an aspect of dependency” of a “limited
community” of plaintiffs upon a defendant who often
benefits from that relationship. Id. at 664–65.
As the district court pointed out, Plaintiffs failed to
reference a “special relationship” even once in the TAC, and
they likewise did not allude to any particular vulnerability or
DENT V. NAT’L FOOTBALL LEAGUE 19
dependency of their community. We therefore reject
Plaintiffs’ special relationship argument.
III
Though we conclude that Plaintiffs have properly pled a
theory of negligence, we recognize that the issue of § 301
preemption under the LMRA lurks in the background. As
discussed at length in Dent I, the LMRA bars state-law
claims “founded directly on rights created by [CBAs], and
also claims substantially dependent on analysis of a [CBA].”
902 F.3d at 1116 (internal quotation marks omitted) (quoting
Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987)).
Therefore, Plaintiffs cannot proceed with their voluntary
undertaking negligence claim if it “exists solely as a result
of the CBA” or requires interpretation of the agreement.
Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.
2007). Crucially, the “nature of the plaintiff[s’] claim”
governs the § 301 preemption analysis, Cramer v. Consol.
Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001), and
Plaintiffs did not expressly plead a voluntary undertaking
theory of negligence in the version of the complaint that we
examined in Dent I.
The district court did not consider whether Plaintiffs’
voluntary undertaking claim is preempted. While we have
discretion to consider preemption as a question of law on
appeal, we recognize that we cannot make a preemption
determination with regard to the Plaintiffs’ voluntary
undertaking claim because we do not have all potentially
relevant CBAs before us in this latest appeal. See Davis v.
Elec. Arts Inc., 775 F.3d 1172, 1180 (9th Cir. 2015). We
therefore remand to the district court for consideration of the
preemption question as to this claim in light of the relevant
CBAs and our guidance in Dent I. We said there that “[t]he
negligence analysis is not an equation, whereby one careless
20 DENT V. NAT’L FOOTBALL LEAGUE
act can be canceled out by a careful act in a related arena—
especially when the careful act is to be performed by a
different party.” Dent I, 902 F.3d at 1121. The district court
should examine afresh whether the NFL’s general disclaimer
of liability for individual players’ medical treatment is
relevant to the sufficiently pled allegations of the
organization’s inaction, where audit results demonstrate
failure to safely distribute pain killers to keep marquee
players in the game and maximize television revenues.
***
We affirm the district court’s determination rejecting
Plaintiffs’ negligence per se and special relationship
theories; both were improperly pled and rightfully dismissed
for failure to state a claim. We nonetheless reverse the
district court’s dismissal of Plaintiffs’ voluntary undertaking
theory of negligence because the TAC “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citation omitted). We remand for the
district court to determine whether the claim is preempted by
the LMRA.
Each party shall bear its own costs.
AFFIRMED in part; REVERSED in part and
REMANDED. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3864543/ | The complainants bring this bill to review and reverse a decree entered February 2, 1900, in a bill brought by this respondent against these complainants, Equity No. 4794.
This bill was filed August 4, 1902.
The respondent demurs to the bill, first, upon the ground of laches. The demurrer upon this ground must be overruled, because it does not appear from the bill that the respondent has suffered any disadvantage from mere delay. Chase v. Chase,20 R.I. 202. *Page 513
While the allegations of the bill show that it was brought more than two years after the appointment of the respondent, it does not show that it was brought more than two years after "the first publication of notice of the qualification of the first executor or administrator." This, being a special limitation, must be specially pleaded.
The second ground of demurrer is that it does not appear that the complainants, following the analogy of the law, filed their bill of review within one year after the entry of the decree complained of.
As early as Hodges v. New England Co., 3 R.I. 9, it was held that the time for filing a petition for rehearing and for leave to file a bill of review in equity was, by analogy, the time for filing a petition for a new trial at law. The same rule was recognized and followed in Randall v. Peckham,11 R.I. 600, and Fitch v. Richards, 18 R.I. 617. In the latter case the court stated that the only means by which the decree could be amended was by a bill of review, "if, indeed, a bill of review, under our practice, can be filed more than a year after the entry of a final decree," referring to the cases cited above. The query was appropriate, since that question was not before the court. Its obvious purpose was to avoid an implication, from the statement that the remedy sought was only cognizable by a bill of review, that such a bill would lie in that case. The query was therefore significant as well as appropriate.
The application of a bar to equity proceedings has been long established, and the reason for it was well stated by Lord Camden in Smith v. Clay, Ambl. 645, as more fully quoted in a note to Deloraine v. Browne, 3 Bro. Ch. (Eden) 639, as follows: "As the court has no legislative power it could not properly define the time of bar, by a positive rule. . . . But as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, the court of chancery adopted that rule and applied it to similar cases in equity."
The same rule has been recognized in this country. Thomas *Page 514
v. Harvie, 10 Wheat, 146; Boyd v. Vanderkemp, 1 Barb. Ch. (N.Y.) 273; Evans v. Bacon, 99 Mass. 213.
It has been assumed in the previous cases, in this State, that the rule applies as well to bills of review as to petitions for rehearing. We see no reason for treating them differently. The difference between a bill of review and a petition for rehearing is technical rather than substantial. Both seek to set aside and reverse an original and final decree. It is important in equity proceedings, as well as in actions at law, that there should be a time when decrees become fixed and absolutely final. Concurring in the decisions and intimations of this court already referred to, we decide that such time cannot exceed one year from the entry of the original decree. As this suit was not brought until two and a half years after such decree, we are not called upon in this case to decide whether even the time of one year may not be reduced by Gen. Laws cap. 246, § 2, which provides that in all decrees in equity causes, and cases following the course of equity, the court entering the same shall have control over the same for the period of six months after the entry thereof, and may, for cause shown, set aside the same and re-instate the case, or make new entry, or take any other proceedings.
The language is broad enough to cover less than a year; and as to a petition for divorce, a case "following the course of equity," by statute, it was held in White v. White,22 R.I. 602, that, as more than six months were allowed to elapse before the filing of the petition for a new trial and a rehearing, whatever power under said section would have been available to the suit, if invoked within six months after the judgment therein, was not available on the petition.
We may add that the rule herein followed has not deprived the complainant in this case of any substantial right. The objections set out were as fully known to him when the decree was entered as they are now, and he could have presented his petition seasonably as well as to do so after the lapse of so long a time.
It is unnecessary to consider the other grounds of demurrer. *Page 515
The demurrer to the bill is sustained. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554026/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONTOS MAUDILIA DIAZ-REYNOSO, No. 18-72833
AKA Sontos Maurilla Diaz-
Reynoso, Agency No.
Petitioner, A205-256-857
v.
OPINION
WILLIAM P. BARR, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 24, 2020*
San Francisco, California
Filed August 7, 2020
Before: Ronald M. Gould, Morgan Christen,
and Daniel A. Bress, Circuit Judges.
Opinion by Judge Christen;
Partial Concurrence and Partial Dissent by Judge Bress
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 DIAZ-REYNOSO V. BARR
SUMMARY**
Immigration
Granting Sontos Diaz-Reynoso’s petition for review of
the Board of Immigration Appeals’ decision affirming the
denial of her application for withholding of removal and
protection under the Convention Against Torture, and
remanding, the panel held that the Board misapplied Matter
of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board
and circuit precedent, in concluding that Diaz-Reynoso’s
proposed social group comprised of “indigenous women in
Guatemala who are unable to leave their relationship” was
not cognizable, and that she failed to establish that the
government of Guatemala would acquiesce in any possible
torture.
The panel rejected Diaz-Reynoso’s contention that Matter
of A-B- was arbitrary and capricious and therefore not entitled
to Chevron deference. The panel concluded that, despite the
general and descriptive observations set forth in the opinion,
Matter of A-B- did not announce a new categorical exception
to withholding of removal for victims of domestic violence or
other private criminal activity, but rather it reaffirmed the
Board’s existing framework for analyzing the cognizability
of particular social groups, requiring that such determinations
be individualized and conducted on a case-by-case basis.
The panel observed that the Board rejected Diaz-
Reynoso’s proposed social group, with almost no analysis,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DIAZ-REYNOSO V. BARR 3
because it “suffered from the same circularity problem
articulated by the Attorney General in Matter of A-B-.” The
panel explained that in doing so, the Board appeared to
misapprehend the scope of Matter of A-B- as forbidding any
mention of feared harm within the delineation of a proposed
social group. The panel concluded that this was error,
explaining that Matter of A-B- did not announce a new rule
concerning circularity, but instead merely reiterated the well-
established principle that a particular social group must exist
independently of the harm asserted. The panel recognized
that a proposed social group may be deemed impermissibly
circular if, after conducting the proper case-by-case analysis,
the Board determines that the group is defined exclusively by
the fact that its members have been subjected to harm. The
panel explained, however, that a proposed social group is not
impermissibly circular merely because the proposed group
mentions harm.
The panel concluded that the Board also erred in
assuming that domestic violence was the only reason Diaz-
Reynoso was unable to leave her relationship, and in failing
to conduct the rigorous case-by-case analysis required by
Matter of A-B-. The panel therefore remanded Diaz-
Reynoso’s withholding of removal claim for the Board to
undertake the required analysis applying the correct
framework.
Because the Board failed to discuss evidence that Diaz-
Reynoso reported her husband’s abuse to authority figures in
her village community, and the government conceded remand
was warranted, the panel also remanded Diaz-Reynoso’s
CAT claim for further consideration.
4 DIAZ-REYNOSO V. BARR
Concurring in the judgment in part and dissenting in part,
Judge Bress agreed with remand of the CAT claim in light of
the government’s concession, but disagreed with the
majority’s conclusion that the Board misread Matter of A-B-
in rejecting Diaz-Reynoso’s proposed social group. In Judge
Bress’s view, Matter of A-B- held that a proposed group that
incorporates harm within its definition is not a group that
exists independently of the harm asserted in an application for
asylum or statutory withholding of removal. Judge Bress
wrote that substantial evidence supported the Board’s
assessment that Diaz-Reynoso’s social group was defined
exclusively by the harm suffered, and that the Board correctly
applied Matter of A-B-, and the circularity rule, in rejecting
Diaz-Reynoso’s proposed social group.
COUNSEL
Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates,
Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf,
Certified Law Students; Hastings Appellate Project, San
Francisco, California; for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan
and Linda S. Wernery, Assistant Directors; Susan Bennett
Green, Senior Litigation Counsel; Ashley Martin, Trial
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and
Anne Peterson, Center for Gender & Refugee Studies, U.S.
Hastings College of Law, San Francisco, California, for
Amicus Curiae Center for Gender & Refugee Studies.
DIAZ-REYNOSO V. BARR 5
Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and
Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York
New York, for Amici Curiae Thirty-Nine Former
Immigration Judges and Members of the Board of
Immigration Appeals.
Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera,
Deborah Anker, and Zachary A. Albun, Attorneys; Rosa
Baum, Caya Simonsen, and Ana Sewell, Supervised Law
Students; Harvard Immigration and Refugee Clinical
Program, Cambridge, Massachusetts; for Amicus Curiae
Harvard Immigration and Refugee Clinical Program.
Ana C. Reyes and Alexander J. Kasner, Williams & Connolly
LLP, Washington, D.C.; Alice Farmer, United Nations High
Commissioner for Refugees, Washington, D.C.; for Amicus
Curiae United Nations High Commissioner for Refugees.
6 DIAZ-REYNOSO V. BARR
OPINION
CHRISTEN, Circuit Judge:
Sontos Maudilia Diaz-Reynoso, a native and citizen of
Guatemala, petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing her appeal of an
Immigration Judge’s (IJ) order denying her application for
withholding of removal and relief under the Convention
Against Torture (CAT). Diaz-Reynoso seeks withholding of
removal based on her fear that she would be persecuted in
Guatemala on account of her membership in the particular
social group of “indigenous women in Guatemala who are
unable to leave their relationship.” Diaz-Reynoso argues she
is entitled to relief under CAT because, if returned to
Guatemala, the Guatemalan government would acquiesce in
torture she would suffer at the hands of her husband.
On her withholding claim, the BIA concluded that Diaz-
Reynoso’s proposed particular social group was not
cognizable, relying on the Attorney General’s decision in
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). With
respect to Diaz-Reynoso’s CAT claim, the BIA concluded
that Diaz-Reynoso failed to establish that the government of
Guatemala would acquiesce in any torture she might suffer.
Because the BIA’s decision on both bases for relief departs
from its own precedent and is contrary to this court’s case
law, we grant the petition for review and remand for further
proceedings.
I
Diaz-Reynoso was born in 1989 in the small, rural town
of Yamoj, in the Guatemalan highlands. She is a member of
DIAZ-REYNOSO V. BARR 7
the indigenous group known as Mam. In 2008, Diaz-Reynoso
moved in with a man named Arnoldo Vasquez-Juarez, who
is also Mam. Although they did not legally marry, Diaz-
Reynoso and Vasquez-Juarez had a common-law marriage
and Diaz-Reynoso refers to Vasquez-Juarez as her husband.
Vasquez-Juarez subjected Diaz-Reynoso to physical and
sexual abuse. Among other things, he forced Diaz-Reynoso
to work in the coffee fields without pay, and to have sex with
him. When Diaz-Reynoso did not comply with his demands,
Vasquez-Juarez attacked her, hitting her on her head and all
over her body, sometimes with a belt. Diaz-Reynoso testified
that she was attacked weekly, and that the resulting bruises
sometimes lasted for eight to ten days.
In 2012, after four years of living with Vasquez-Juarez,
Diaz-Reynoso fled and entered the United States without
documentation. She was apprehended, and after roughly a
month in detention, returned to Guatemala. Diaz-Reynoso
moved back in with her family in Yamoj.
As soon as Diaz-Reynoso returned, Vasquez-Juarez came
to find her. Vasquez-Juarez told Diaz-Reynoso that if she did
not return to live with him, he would kill her, kill her
daughter,1 or harm her mother. Diaz-Reynoso returned to live
with Vasquez-Juarez for about a year. The abuse got worse
during that time. Diaz-Reynoso then escaped and went to
live with a friend in another town for roughly a year. She was
in hiding during this period and did not leave her friend’s
house. After that, Diaz-Reynoso returned to her family home
1
Diaz-Reynoso had a daughter with a previous partner named Angel
Tomas Vasquez. Although Vasquez also subjected Diaz-Reynoso to
physical and sexual abuse, she has not heard from him since she left him.
8 DIAZ-REYNOSO V. BARR
in the hope that Vasquez-Juarez had forgotten about her, but
Vasquez-Juarez found Diaz-Reynoso and ordered her to come
back with him. At the urging of her mother, Diaz-Reynoso
again fled to the United States.
Diaz-Reynoso was apprehended near Topawa, Arizona on
October 29, 2014, and her prior removal order was reinstated
pursuant to 8 U.S.C. § 1231(a)(5). She pled guilty to illegal
entry in violation of 8 U.S.C. § 1325(a)(1), and was sentenced
to thirty days imprisonment.
While Diaz-Reynoso was in detention, an asylum officer
interviewed her and she expressed fear of returning to
Guatemala. The asylum officer concluded that she had
established a credible fear of persecution and referred her to
removal proceedings before an immigration judge. Diaz-
Reynoso filed an application for withholding of removal and
protection under CAT. In her counseled brief, Diaz-Reynoso
defined her particular social group as “Guatemalan
indigenous women who are unable to leave their
relationship,” and advanced evidence of a number of factors
that prevented her from leaving.
The IJ issued a written decision denying Diaz-Reynoso’s
application for withholding of removal and relief under CAT.
The IJ found Diaz-Reynoso credible, but concluded that
because much of her account was inconsistent with her own
testimony and other record evidence, “significant portions of
her testimony [were] entitled to little weight.” On the
withholding claim, the IJ did not rule on whether Diaz-
Reynoso established the existence of a cognizable particular
social group, but concluded that she did not establish
membership in her proffered particular social group, did not
show that she would more likely than not suffer persecution,
DIAZ-REYNOSO V. BARR 9
and did not demonstrate that the Guatemalan government
would be unable or unwilling to protect her. On her CAT
claim, the IJ concluded that Diaz-Reynoso failed to establish
she would more likely than not be tortured if removed to
Guatemala, and that she did not demonstrate that her past
abuse or feared future abuse would occur in the context of
government control, authority, or acquiescence. The IJ
further concluded that Diaz-Reynoso failed to seek protection
from law enforcement, and found she could safely and
reasonably avoid abusive conduct by relocating within
Guatemala. Diaz-Reynoso timely appealed to the BIA.
The BIA dismissed Diaz-Reynoso’s appeal. On
withholding, the BIA did not rely on the IJ’s rationale.
Instead, the BIA concluded that Diaz-Reynoso’s proposed
particular social group was not cognizable in light of Matter
of A-B-, 27 I. & N. Dec. at 316.2 On CAT, the BIA concluded
that Diaz-Reynoso had failed to establish that any
Guatemalan public official would more likely than not
consent to or acquiesce in any torture she may suffer.
II
We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(5). “Our review is limited to
those grounds explicitly relied upon by the [BIA].” Budiono
v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). Where the
BIA writes its own decision, as it did here, we review the
BIA’s decision, except to the extent it expressly adopts the
IJ’s decision. Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th
Cir. 2012).
2
The Attorney General decided Matter of A-B- after the IJ issued its
decision, but before the BIA ruled on Diaz-Reynoso’s appeal.
10 DIAZ-REYNOSO V. BARR
We review de novo the BIA’s determinations on
questions of law. Pirir-Boc v. Holder, 750 F.3d 1077, 1081
(9th Cir. 2014). We review for substantial evidence the
BIA’s factual findings, which “should be upheld ‘unless the
evidence compels a contrary result.’” Budiono, 837 F.3d
at 1046 (quoting Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1184 (9th Cir. 2011)). Whether Diaz-Reynoso’s
particular social group is cognizable is a question of law.
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020);
see also Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir.
2019).
III
To qualify for withholding of removal, a petitioner must
demonstrate that, if removed to her home country, her life
would be threatened on account of any one of five
enumerated grounds: race, religion, nationality, membership
in a particular social group, or political opinion. Mendoza-
Alvarez v. Holder, 714 F.3d 1161, 1163–64 (9th Cir. 2013)
(per curiam). At issue here is “membership in a particular
social group”—specifically, the cognizability of Diaz-
Reynoso’s proffered social group. 8 U.S.C. § 1231(b)(3)(A);
see also Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir.
2016) (noting that establishing the “existence” of a
cognizable social group is a separate requirement from
establishing “membership” in the group).
The Attorney General’s and the BIA’s constructions of
ambiguous statutory terms are entitled to deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Pirir-Boc, 750 F.3d at 1081; Jiang
v. Holder, 611 F.3d 1086, 1091–92 (9th Cir. 2010). Because
we have already concluded that the phrase “particular social
DIAZ-REYNOSO V. BARR 11
group” is ambiguous, Henriquez-Rivas v. Holder, 707 F.3d
1081, 1083 (9th Cir. 2013) (en banc), we must adhere to an
agency interpretation of that term, so long as it is reasonable,
id. at 1087. An interpretation fails this step if it is “arbitrary
or capricious in substance.” Judulang v. Holder, 565 U.S. 42,
52 n.7 (2011) (quoting Mayo Found. for Med. Educ. &
Research v. United States, 562 U.S. 44, 53 (2011)); see also
Gomez-Sanchez v. Sessions, 892 F.3d 985, 993 (9th Cir.
2018).
A
The BIA first construed the phrase “particular social
group” in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),
overruled in part on other grounds as stated in Matter of
Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). There,
the BIA explained that members of a particular social group
must share a “common, immutable characteristic.” Id. at 233.
An immutable characteristic is one that is either: (1) “beyond
the power of an individual to change,” or (2) “so fundamental
to [individual] identity or conscience that it ought not be
required to be changed.” Id. at 233–34.
Over time, “Acosta’s immutable characteristic test ‘led to
confusion and a lack of consistency as adjudicators struggled
with various possible social groups, some of which appeared
to be created exclusively for asylum purposes.’” Reyes,
842 F.3d at 1134 (quoting Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 231 (BIA 2014)). Thus, beginning with Matter of
C-A-, 23 I. & N. Dec. 951, 957–59 (BIA 2006), the BIA
refined the Acosta standard by stating that an applicant must
also demonstrate that his or her proposed particular social
group has “social visibility” and “particularity.” See
12 DIAZ-REYNOSO V. BARR
Henriquez-Rivas, 707 F.3d at 1084; see also Matter of A-M-
E- & J-G-U-, 24 I. & N. Dec. 69, 74–76 (BIA 2007).
The BIA later reaffirmed that these concepts—
particularity and social visibility—are distinct requirements
for establishing membership in a cognizable social group.
Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008);
Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008). In
2014, the BIA continued to refine these concepts with its
decisions in Matter of M-E-V-G-, 26 I. & N. Dec. at 227, and
Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). See
Reyes, 842 F.3d at 1135–37. The BIA explained that the
particularity inquiry recognizes that the social group must be
defined by characteristics that provide a clear benchmark for
determining who falls within the group, such that the group
possesses “discrete and . . . definable boundaries.” Matter of
M-E-V-G-, 26 I. & N. Dec. at 239. Social visibility, later
renamed “social distinction,” considers whether those with a
common immutable characteristic are “set apart, or distinct,
from other persons within the society in some significant
way.” Id. at 238. As a result of this precedent, it is now well-
established that an applicant seeking relief based on
membership in a particular social group must establish that
the group is: “(1) composed of members who share a
common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question.” Id. at 237.
In 2014, the BIA also decided Matter of A-R-C-G-, 26
I. & N. Dec. 388 (BIA 2014). There, the BIA recognized as
cognizable the proposed social group of “married women in
Guatemala who are unable to leave their relationship.” Id.
at 389. Critically, in Matter of A-R-C-G-, the Government
conceded the petitioner had “established that she suffered past
DIAZ-REYNOSO V. BARR 13
harm rising to the level of persecution and that the
persecution was on account of” her particular social group.
Id. at 390. Although the BIA cited as controlling its recent
decisions in Matter of M-E-V-G- and Matter of W-G-R-, it
relied in large part on the Government’s concession that the
group was cognizable. Id. at 392–95.
B
This appeal concerns the Attorney General’s recent
interpretation of “particular social group” in Matter of A-B-,
27 I. & N. Dec. at 317. There, the Attorney General reviewed
a BIA decision that concluded the applicant’s social
group—“El Salvadoran women who are unable to leave their
domestic relationships where they have children in
common”—was cognizable. Id. at 317, 321; see also
8 C.F.R. § 1003.1(h)(1). In its review of A-B-’s appeal, the
BIA had relied heavily on its earlier precedential decision in
Matter of A-R-C-G-, 26 I. & N. Dec. at 388, so it was
necessary for the Attorney General to review that decision as
well. Matter of A-B-, 27 I. & N. Dec. at 321. Ultimately, the
Attorney General overruled Matter of A-R-C-G-, concluding
that it impermissibly deviated from the BIA’s prior precedent.
Matter of A-B-, 27 I. & N. Dec. at 317, 333, 340; see also
8 C.F.R. § 1003.1(d)(7), (g)(1).
The Attorney General found Matter of A-R-C-G-’s
reasoning to be lacking because the BIA failed to engage in
the rigorous analysis required to properly analyze a particular
social group. Matter of A-B-, 27 I. & N. Dec. at 331. The
Attorney General concluded that Matter of A-R-C-G-
“recognized a new particular social group without correctly
applying the[] standards” for asylum, id. at 317, and “[t]o the
extent that the Board examined the legal questions,” rather
14 DIAZ-REYNOSO V. BARR
than relying on the Government’s concessions, “its analysis
lacked rigor and broke with the Board’s own precedents,” id.
at 333.
The Attorney General identified several specific errors in
the BIA’s analysis of the particular social group at issue in
Matter of A-R-C-G-. First, “[t]o be cognizable, a particular
social group must ‘exist independently’ of the harm asserted.”
Id. at 334 (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
at 236 n.11). In the Attorney General’s view, the BIA had
“avoided considering whether [the petitioner] could establish
the existence of a cognizable particular social group without
defining the group by the fact of persecution.” Id. In
particular, the Attorney General opined that the BIA never
considered that the group “was effectively defined to consist
of women in Guatemala who are victims of domestic abuse
because the inability ‘to leave’ was created by harm or
threatened harm.” Id. at 335.
Second, the Attorney General reiterated the precedent
establishing that not every immutable characteristic is
sufficiently precise to define a particular social group. Id.
The Attorney General questioned the viability of “[s]ocial
groups defined by their vulnerability to private criminal
activity” because those groups “likely lack” particularity
“given that broad swaths of society may be susceptible to
victimization.” Id. The Attorney General observed that the
BIA did not engage with this analysis in Matter of A-R-C-G-;
it merely concluded that the terms used to describe the group
had “commonly accepted definitions within Guatemalan
society.” Id.
Third, the BIA “provided no explanation for why it
believed that [the] evidence established that Guatemalan
DIAZ-REYNOSO V. BARR 15
society” perceived the proposed social group to be distinct,
and erred by accepting the Government’s concession as to
distinction. Id. at 336. The Attorney General found the
record lacking on this point and concluded there was
significant room for doubt that Guatemalan society viewed
the women comprising the social group “as members of a
distinct group in society, rather than each as a victim of a
particular abuser in highly individualized circumstances.” Id.
After overruling Matter of A-R-C-G-, the Attorney
General described the BIA’s reasoning in Matter of A-B- as
similarly cursory because it consisted of general citations to
Matter of A-R-C-G- and country condition reports. Id. at 340.
The Attorney General vacated the BIA’s decision in Matter
of A-B- and remanded the case to the BIA for further analysis
“under the standards articulated in [the Matter of A-B-]
opinion and in past Board decisions.” Id. at 340–41, 346.
Separate from its holding, Matter of A-B- included several
broad observations about asylum claims brought by “victims
of private criminal activity.” Id. at 317. For example, the
Attorney General acknowledged that “there may be
exceptional circumstances when victims of private criminal
activity could meet” the requirements for asylum, id., but also
suggested that, “[g]enerally, claims by aliens pertaining to
domestic violence or gang violence perpetrated by non-
governmental actors will not qualify for asylum,” id. at 320.
In the end, Matter of A-B- reaffirmed existing standards
for establishing membership in a particular social group, and
overruled Matter of A-R-C-G- because of its failure to comply
with the BIA’s precedents regarding those requirements.
Indeed, the Attorney General has since described Matter of
A-B- in precisely this manner. Matter of L-E-A-, 27 I. & N.
16 DIAZ-REYNOSO V. BARR
Dec. 581, 588–89 (A.G. 2019) (recognizing that in Matter of
A-B-, the Attorney General “reaffirmed” and “reiterated” the
established framework for analyzing the cognizability of
particular social groups, and “emphasized the importance of
a rigorous application of that legal standard”).
IV
On Diaz-Reynoso’s withholding claim, the BIA ruled that
her proposed social group was not cognizable in light of the
Attorney General’s decision in Matter of A-B-. On appeal,
Diaz-Reynoso contends that the Attorney General’s decision
in Matter of A-B- is not entitled to Chevron deference because
it is arbitrary and capricious. Diaz-Reynoso raises two
principal arguments: (1) Matter of A-B- runs counter to the
Immigration and Nationality Act’s (INA) scheme for bars to
withholding; and (2) in Matter of A-B-, the Attorney General
eliminated the requirement that particular social groups be
evaluated on a case-by-case basis. Neither argument is
persuasive.
A
Diaz-Reynoso first argues that Matter of A-B- is arbitrary
and capricious because it announced a new rule that amounts
to a categorical ban on withholding of removal for victims of
domestic violence, and therefore runs counter to the INA’s
scheme, which provides for only narrow and expressly
enumerated exceptions to withholding. Diaz-Reynoso’s
argument is that the Attorney General essentially added a new
exception to withholding of removal claims.
Diaz-Reynoso is correct that withholding of removal is
generally mandatory “if an alien ‘establish[es] that it is more
DIAZ-REYNOSO V. BARR 17
likely than not that [she] would be subject to persecution on
one of the specified grounds.’” INS v. Aguirre-Aguirre,
526 U.S. 415, 419 (1999) (first alteration in original) (quoting
INS v. Stevic, 467 U.S. 407, 429–30 (1984)); see also
8 U.S.C. § 1231(b)(3)(A). And the statute has specific
exceptions embodied in 8 U.S.C. § 1231(b)(3)(B). See
Aguirre-Aguirre, 526 U.S. at 419. For example, an applicant
is barred from obtaining withholding relief when he or she
has been convicted of a particularly serious crime, 8 U.S.C.
§ 1231(b)(3)(B)(ii), or when there are serious reasons to
believe that he or she committed a serious nonpolitical crime
before arriving in the United States, id. § 1231(b)(3)(B)(iii).
See also Gomez-Sanchez, 892 F.3d at 990; Go v. Holder,
640 F.3d 1047, 1052 (9th Cir. 2011).
We recognize that the Attorney General began the opinion
in Matter of A-B- by offering some general impressions about
asylum and withholding claims based on domestic violence
and other private criminal activity. See 27 I. & N. Dec.
at 320. For example, the Attorney General observed that
“[g]enerally, claims by aliens pertaining to domestic violence
. . . perpetrated by non-governmental actors will not qualify
for asylum,” and “in practice such claims are unlikely to
satisfy the statutory grounds for proving group persecution
that the government is unable or unwilling to address.” Id.
(emphasis added). But the holding of Matter of A-B- plainly
does not endorse any sort of categorical exception based on
these remarks and observations. In fact, the Attorney General
explicitly stated: “I do not decide that violence inflicted by
non-governmental actors may never serve as the basis for an
asylum or withholding application based on membership in
a particular social group.” Id. Far from endorsing a
categorical bar, the Attorney General emphasized that the
18 DIAZ-REYNOSO V. BARR
BIA must conduct the “rigorous analysis” set forth in the
BIA’s precedents. Id. at 340.3
Despite the general and descriptive observations set forth
in the opinion, the Attorney General’s prescriptive instruction
is clear: the BIA must conduct the proper particular social
group analysis on a case-by-case basis. Indeed, had the
Attorney General announced a categorical rule, there would
have been no reason to remand Matter of A-B- to the BIA for
analysis “under the standards articulated in this opinion and
in past Board decisions.” Id. In Matter of A-B-, the Attorney
General did not announce a new categorical exception for
victims of domestic violence or other private criminal
activity.
B
Diaz-Reynoso next argues that the Attorney General’s
opinion in Matter of A-B- is arbitrary and capricious because
it marks a dramatic and unexplained departure from the
BIA’s longstanding recognition that particular social group
determinations must be individualized and conducted on a
3
Like Diaz-Reynoso, the dissent focuses on the Attorney General’s
observation that claims based on domestic violence “are unlikely to satisfy
the statutory grounds for proving group persecution that the government
is unable or unwilling to address.” Id. at 320. But the Attorney General
explicitly declined to decide that violence “inflicted by non-governmental
actors may never serve as the basis” for asylum or withholding relief. Id.
Indeed, though such applicants face numerous hurdles—e.g., establishing
the existence of a particular social group, membership in that group,
persecution on account of that membership, and persecution that a
government is unwilling or unable to control—the Attorney General
recognized that “there may be exceptional circumstances when victims of
private criminal activity could meet these requirements.” Id. at 317.
DIAZ-REYNOSO V. BARR 19
case-by-case basis. This argument is based on a misreading
of Matter of A-B-.
In Matter of A-B-, the Attorney General reaffirmed the
BIA’s existing framework for analyzing the cognizability of
particular social groups, and faulted the BIA for failing to
apply it. See 27 I. & N. Dec. at 331. Under the BIA’s
established standards, social groups must “be determined on
a case-by-case basis.” Matter of Acosta, 19 I. & N. Dec.
at 233; see also, e.g., Matter of M-E-V-G-, 26 I. & N. Dec.
at 251. On this point, the Attorney General was not subtle.
Matter of A-B- reminded the BIA to “perform[] the detailed
analysis required” by the BIA’s precedents, emphasizing that
“[s]uch claims must be carefully analyzed under the standards
articulated in [Matter of A-B-] and in past Board decisions.”
27 I. & N. Dec. at 332, 340. “Neither immigration judges nor
the Board may avoid the rigorous analysis required in
determining asylum claims . . . .” Id. at 340. Matter of A-B-
did not announce a bright-line rule concerning applications
based on domestic violence; in fact, it underscored the need
for an intensive case-by-case analysis. Accordingly, we
decline to hold that the Attorney General’s decision in Matter
of A-B- was arbitrary or capricious.
V
A
Diaz-Reynoso next argues that, even if Matter of A-B- did
not establish a categorical rule barring relief for victims of
domestic violence and other private criminal activity, the BIA
misapprehended the scope of the Attorney General’s holding
in Matter of A-B-. On this point, we agree with Diaz-
Reynoso. The BIA seems to have erroneously understood
20 DIAZ-REYNOSO V. BARR
Matter of A-B- to forbid any mention of feared harm within
a proposed social group.
With almost no analysis, the BIA rejected Diaz-
Reynoso’s proposed particular social group because it
“suffer[ed] from the same circularity problem articulated by
the Attorney General in Matter of A-B-.” But Matter of A-B-
did not announce a new rule concerning circularity, or
identify a categorical “circularity problem.” It merely
reiterated the well-established principle that a particular
social group must exist independently of the harm asserted,
and that the BIA must consider whether a petitioner’s social
group is cognizable if it is defined without reference to the
fact of persecution. Matter of A-B-, 27 I. & N. Dec.
at 334–35. If a group is otherwise cognizable, Matter of A-B-
does not demand that it be devoid of any reference to an
applicant’s claimed persecution. To the contrary, Matter of
A-B- reiterated the longstanding rule that persecution may be
relevant to a group’s social distinction. The BIA’s
precedents, as well as our own, make this clear.
Matter of A-B- restated the rule that “a particular social
group must ‘exist independently’ of the harm asserted in an
application for asylum or statutory withholding of removal,”
27 I. & N. Dec. at 334 (quoting Matter of M-E-V-G-, 26 I. &
N. Dec. at 236 n.11), and “individuals in the group must share
a narrowing characteristic other than their risk of being
persecuted,” id. at 335 (quoting Rreshpja v. Gonzales,
420 F.3d 551, 556 (6th Cir. 2005)). This principle finds its
genesis in the BIA’s 2006 decision in Matter of C-A-, 23 I. &
N. Dec. at 957–61.
Matter of C-A- discussed the importance of social
distinction (then called social visibility) to the particular
DIAZ-REYNOSO V. BARR 21
social group analysis. Id. at 959–60. The BIA cited the
guidelines adopted by the United Nations High
Commissioner for Refugees (UNHCR) for establishing
membership in a particular social group, and observed that
the guidelines “confirm that ‘visibility’ is an important
element in identifying the existence of a particular social
group.” Id. at 960 (citing UNHCR Guidelines ¶¶ 2, 14).4 The
BIA explained that “a social group cannot be defined
exclusively by the fact that it is targeted for persecution,” but
said nothing to suggest that the mention of feared harm
somehow disqualifies an otherwise cognizable group. Id.
(quoting UNHCR Guidelines ¶ 2). In fact, the BIA explained
that “persecutory action toward a group may be a relevant
factor in determining the visibility of a group in a particular
society.” Id. (quoting UNHCR Guidelines ¶ 14).
Subsequent BIA decisions in 2007 and 2008 repeated this
refrain. See, e.g., Matter of S-E-G-, 24 I. & N. Dec. at 584
(observing that although a particular social group cannot be
“defined exclusively by the fact that its members have been
subjected to harm in the past . . . [,] this may be a relevant
factor in considering the group’s visibility in society” (citing
Matter of C-A-, 23 I. & N. Dec. at 960)); Matter of A-M-E- &
J-G-U-, 24 I. & N. Dec. at 74 (“Although a social group
cannot be defined exclusively by the fact that its members
have been subjected to harm, . . . this may be a relevant factor
in considering the group’s visibility in society.” (citing
Matter of C-A-, 23 I. & N. Dec. at 960)). In 2014, the BIA in
4
“UNHCR Guidelines” refers to UNHCR, Guidelines on
International Protection: “Membership of a particular social group” within
the context of Article 1A(2) of the 1951 Convention and/or its 1967
Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02
(May 7, 2002), available at https://www.unhcr.org/3d58de2da.pdf.
22 DIAZ-REYNOSO V. BARR
Matter of M-E-V-G- reaffirmed that the requirement that “the
social group must exist independently of the fact of
persecution” was “well established in [its] prior precedents
and is already a part of the social group analysis.” 26 I. &. N.
Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. &
N. Dec. at 74); see also Matter of W-G-R-, 26 I. & N. Dec.
at 215 (“Persecutory conduct aimed at a social group cannot
alone define the group, which must exist independently of the
persecution.” (citing Matter of A-M-E- & J-G-U-, 24 I. & N.
Dec. at 74)).5
The Attorney General’s opinion in Matter of A-B-
reaffirmed this line of authority for assessing the
cognizability of particular social groups, citing the BIA’s
prior articulations of the rule in cases like Matter of M-E-V-
G-, 26 I. &. N. Dec. at 236 n.11, and Matter of W-G-R-, 26 I.
& N. Dec. at 215, and the Sixth Circuit’s decision in
5
Our sister circuits’ published opinions have widely acknowledged
the rule that persecution alone cannot define the social group. See, e.g.,
Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“[W]here
a proposed group is defined only by the characteristic that it is persecuted,
it does not qualify as a ‘social group.’” (emphasis added) (citation
omitted)); Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (“[A]
particular social group is not cognizable merely because members have
been subjected to harm . . . .” (emphasis added) (quotation marks and
citations omitted)); Orellana-Monson v. Holder, 685 F.3d 511, 518–19
(5th Cir. 2012) (“[T]he risk of persecution alone does not create a
particular social group . . . .” (emphasis added) (citation omitted));
Rivera-Barrientos v. Holder, 666 F.3d 641, 650 (10th Cir. 2012) (“[A]
social group cannot be defined exclusively by the fact that its members
have been subjected to harm . . . .” (emphasis added) (citation omitted));
Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011) (“The social group
. . . cannot be defined merely by the fact of persecution.” (emphasis
added)); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.
2006) (“The risk of persecution alone does not create a particular social
group . . . .” (emphasis added)).
DIAZ-REYNOSO V. BARR 23
Rreshpja, which explained that the “individuals in the group
must share a narrowing characteristic other than their risk of
being persecuted.” Matter of A-B-, 27 I. & N. Dec. at 334–35
(quoting Rreshpja, 420 F.3d at 556); see also Matter of L-E-
A-, 27 I. & N. Dec. at 595 (observing that a proposed social
group must have an “‘existence independent of’ the alleged
persecutors,” and that “the risk of persecution alone can never
create a particular social group” (citation omitted)). In
Rreshpja, the court further observed that persecution may not
be “the touchstone defining the group.” 420 F.3d at 556
(citation omitted). The group at issue in Rreshpja—young,
attractive Albanian women who were forced into
prostitution—lacked a “narrowing characteristic” because, if
viewed without reference to being forced into prostitution, the
proposed group would allow “virtually any young Albanian
woman who possesse[d] the subjective criterion of being
‘attractive’” to obtain asylum. Id.; see also Matter of A-B-,
27 I. & N. Dec. at 335.
B
Despite this solid and consistent line of precedent, on
appeal the Government and dissent defend the BIA’s
summary rejection of Diaz-Reynoso’s particular social group
on the grounds that it “suffers from the same circularity
problem articulated by the Attorney General in Matter of
A-B-.” They concede that the fact of persecution may be
relevant to social distinction in a particular society, but insist
that a proposed particular social group may not include
mention of feared persecution. In the Government’s and
dissent’s view, in order to exist independently from the
petitioner’s feared harm, a proposed group may not refer to
that harm at all. We disagree. The idea that the inclusion of
persecution is a sort of poison pill that dooms any group does
24 DIAZ-REYNOSO V. BARR
not withstand scrutiny. See Matter of C-A-, 23 I. & N. Dec.
at 960 (confirming that “‘visibility’ is an important element
in identifying the existence of a particular social group,” and
that “persecutory action toward a group may be a relevant
factor in determining the visibility of a group in a particular
society” (citation omitted)).
The BIA has taken pains to state that “the shared trait of
persecution does not disqualify an otherwise valid social
group.” Matter of M-E-V-G-, 26 I. & N. Dec. at 243 (citing
Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013) (en banc));
see also Paloka, 762 F.3d at 198. Though “persecutory
conduct alone cannot define the group,” Matter of M-E-V-G-,
26 I. & N. Dec. at 242 (emphasis added); see also id. at 243
(a particular social group “cannot be defined merely by the
fact of persecution” (quoting Cece, 733 F.3d at 671)),
persecution itself “may be the catalyst that causes” a society
to distinguish a group in a meaningful way and consider it
distinct, id. at 243; see also supra Part V.A.
Because BIA precedent dictates that a particular social
group cannot be defined “exclusively” by harm, the
Government and dissent insist that BIA precedent does not
permit a group to include any mention of harm. To reach this
conclusion, they ignore the word “exclusively”—along with
similar limiting language in the BIA’s decisions and those
from our sister circuits, supra Part V.A—and argue that in
order for a group to “exist independently” from harm, its
description must not refer to harm at all. But as we have
explained, BIA precedent confirms that a group that exists
independent of persecution is simply a group that shares an
immutable characteristic other than the persecution it
suffers—i.e., a group that shares a “narrowing characteristic.”
Matter of A-B-, 27 I. & N. Dec. at 335 (quoting Rreshpja,
DIAZ-REYNOSO V. BARR 25
420 F.3d at 556); Matter of W-G-R-, 26 I. & N. Dec. at 215;
see also Matter of L-E-A-, 27 I. & N. Dec. at 595.
The BIA articulated an example in Matter of M-E-V-G-
that leaves no room for doubt on this score.6 There, the BIA
posited that a proposed social group composed of former
employees of a country’s attorney general may not be valid
for asylum purposes, even though the group is discrete and
the members’ shared past experience is immutable, because
“the society may not consider these employees to be
meaningfully distinct within society in general.” Id. at 242.
However, the BIA explained, if the government began
persecuting those people, it is possible that society would
then discern that this group of individuals is distinct in some
significant way. Id. at 243. In this example, the act of
persecution by the government causes the society to
recognize the former employees as distinct, “but the
immutable characteristic of their shared past experience exists
independent of the persecution.” Id.
The UNHCR Guidelines provide a similar example
concerning left-handed people.7 Left-handed people possess
an immutable characteristic that is defined with particularity,
but the group lacks social distinction—that is, the relevant
society may not consider the characteristic to set apart the
group in a meaningful way. See UNHCR Guidelines ¶ 14. If,
however, left-handed people were subjected to persecution
6
This example is drawn from the Seventh Circuit’s decision in
Sepulveda v. Gonzales, 464 F.3d 770, 771 (7th Cir. 2006).
7
The BIA has recognized that although the views of the UNHCR are
not binding, they “are a useful interpretative aid.” Matter of M-E-V-G-,
26 I. & N. Dec. at 248.
26 DIAZ-REYNOSO V. BARR
because they were left-handed, their immutable characteristic
could become recognizable and distinct within their society.
Id. In this example, it is the attribute of being left-handed—
and not the persecutory acts—that would identify members of
this particular social group. Id. Thus, the group possesses an
underlying immutable characteristic, the fact of persecution
establishes the group’s distinction within the relevant society,
and because the group’s members can be identified by means
other than the feared persecution, it shares a narrowing
characteristic and is cognizable. 8
If we were to follow the reasoning suggested by the
Government and dissent, neither the BIA’s group of former
employees of a country’s attorney general, nor the UN High
Commissioner’s group of left-handed people, would be
cognizable if members of those groups included mention of
their feared persecution in their proposed social groups. The
particular formulation of the groups—e.g., “former
employees of the attorney general” versus “former employees
of the attorney general, who are being hunted down and
killed,” or “left-handed people” versus “left-handed people
who have been persecuted”—makes all the difference to the
group’s cognizability for the Government and dissent
because, in their view, groups that include mention of feared
harm cannot exist independently of that harm.
Though it cannot be contested that persecution may be
relevant to a group’s social distinction, the dissent argues that
the “group itself” cannot “be defined in some way by that
persecution,” and the Government echoes this view.
8
This example is borrowed from a “widely cited” decision. UNHCR
Guidelines ¶ 14 (citing Applicant A v. Minister for Immigration and Ethnic
Affairs (1997) 190 CLR 225, 264 (Austl.)).
DIAZ-REYNOSO V. BARR 27
In advancing this argument, the Government and dissent
confuse the definition of a “particular social group” with one
of its components—i.e., the group’s shared immutable
characteristic—and thereby treat every element of a proposed
social group as necessary to the group’s immutable
characteristic. This is contrary to BIA precedent, which
unequivocally establishes that a group’s persecution may be
relevant to a different component: social distinction. See
Matter of M-E-V-G-, 26 I. & N. Dec. at 242–43. Further, it
is important to recognize that the question is not whether
feared persecution can serve as an immutable characteristic;
the question is whether mention of feared persecution
disqualifies an otherwise cognizable social group.
The Government and dissent argue that by failing to treat
harm as integral to a social group’s definition—i.e., by failing
to treat it as part of the group’s shared immutable
characteristic—we advocate a rule that allows courts to
impermissibly rewrite proposed social groups. See Matter of
W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191–92 (BIA 2018)
(noting that a petitioner must delineate his or her proposed
social group before the IJ, and may not reframe the group on
appeal). We agree that courts cannot rewrite proposed social
groups, but nothing requires us to analyze them as
mechanistically as the dissent and Government urge.
As we have explained, the BIA’s precedent establishes
that we may consider the entirety of a proffered social group
to determine whether the petitioner has established all the
requirements for a cognizable group: an immutable
characteristic, particularity, and social distinction. Matter of
M-E-V-G-, 26 I. & N. Dec. at 227. We do not rewrite the
petitioner’s proposed social group by recognizing that the
mention of harm in a proposed social group may be relevant
28 DIAZ-REYNOSO V. BARR
to the group’s social distinction, nor does this prevent us from
examining whether the petitioner’s proffered group shares an
immutable characteristic other than harm. To be sure, it is
the applicant’s burden to demonstrate the existence of a
cognizable particular social group. Reyes, 842 F.3d at 1132
n.3; see also Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at
191 (noting that “it is an applicant’s burden to specifically
delineate her proposed social group”); Matter of A-T-, 25 I. &
N. Dec. 4, 10 (BIA 2009). And it is the applicant’s burden to
establish membership in that group. Reyes, 842 F.3d at 1132
n.3. But nothing in the precedential framework constrains the
petitioner to specifying a proposed group that mentions only
the proffered immutable characteristic, and no more.
The purpose of asylum and withholding is to provide
relief to people who have been persecuted in foreign lands
because of their race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also INS v. Cardoza-
Fonseca, 480 U.S. 421, 423–24, 427–29 (1987). The
Government and dissent do not explain why a person seeking
relief on the basis of membership in a particular social group
should be required to omit any mention of threatened
persecution. Notably, the rule they propose is not limited to
victims of domestic violence. Under the interpretation urged
by the Government and dissent, a Tutsi fleeing Rwanda
during the Rwandan Civil War would be denied relief if he or
she included in the description of the Tutsi social group that
Tutsis had been targeted in a campaign of genocide. See
Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009)
(“When the Hutus in Rwanda murdered as many Tutsis
as they could, the persecution was not on account of
‘race, religion, nationality, . . . , or political opinion,’” but
“being Tutsi . . . fits well into the ‘particular social group’
DIAZ-REYNOSO V. BARR 29
category.” (first alteration in original) (quoting 8 U.S.C.
§ 1101(a)(42)(A))). Tellingly, the dissent’s only response to
this hypothetical is that such person fleeing genocide would
not need to mention that harm because he or she could rely on
Tutsi ethnicity to establish group membership. Of course
they could, and that is precisely the point; the mere mention
of harm does not categorically disqualify an otherwise
cognizable social group.
The dissent asserts that no court has endorsed the view
that a proposed social group is not disqualified if it includes
mention of feared persecution. But the most recent decision
doing so is Grace v. Barr, — F.3d —, 2020 WL 4032652
(D.C. Cir. 2020). There, the Government argued that a group
“must be separate from the harm, not consisting of the harm,
even in part,” and the D.C. Circuit rejected this argument as
“flatly inconsistent” with Matter of A-B-. Id. at *16 (internal
quotation marks omitted); see also id. (noting the
Government’s concession at oral argument that the group
“Guatemalan women unable to leave their relationships”
would not be “categorically barred,” and that “its validity
would turn on the specific factual circumstances of an
applicant’s claim”).
The case-by-case approach we describe is the very one
articulated by Matter of A-B-. There, the Attorney General
faulted the BIA’s decision in Matter of A-R-C-G- because it
“avoided considering whether [the petitioner] could establish
the existence of a cognizable particular social group without
defining the group by the fact of persecution.” Matter of
A-B-, 27 I. & N. Dec. at 334. The Attorney General
explained that members of a cognizable group “must share a
narrowing characteristic other than their risk of being
persecuted.” Id. at 335 (emphasis added) (quoting Rreshpja,
30 DIAZ-REYNOSO V. BARR
420 F.3d at 556); see also, e.g., Sarhan v. Holder, 658 F.3d
649, 655 (7th Cir. 2011) (concluding that proposed social
group of “women in Jordan who have (allegedly) flouted
repressive moral norms, and thus who face a high risk of
honor killing” was cognizable because it was not defined
solely by its risk of persecution); Rodriguez v. U.S. Att’y
Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (concluding that
proposed social group of “members of a family targeted by a
drug-trafficking organization because a family member
sought criminal justice against a member of the drug-
trafficking organization” was not cognizable because its
“defining attribute” was its persecution, and the “risk of
persecution alone does not create a particular social group”
(citation omitted)); Matter of S-E-G-, 24 I. & N. Dec. at 584,
588 (concluding that proposed social group of “young
Salvadorans who have been subject to recruitment efforts by
criminal gangs” was not cognizable because aside from being
“subjected to harm in the past (i.e., forced gang recruitment
and any violence associated with that recruitment),” the
proposed group lacked a common immutable characteristic).
If the petitioners’ mere reference to harm defeated these
proposed social groups, any further analysis of the groups
would have been unnecessary. As the D.C. Circuit
recognized in Grace, Matter of A-B- requires a “careful[]”
examination of a group to “ascertain whether it contains any
attributes that ‘exist independently of the harm asserted.’”
2020 WL 4032652, at *14–15. This is because a group
“exists independently of the harm suffered” so long as
persecution is not “what defines the contours of the group.”
See id. at *2 (citation omitted).
DIAZ-REYNOSO V. BARR 31
We recognize that, consistent with Matter of A-B-,
numerous courts have deemed proposed social groups that
referred to feared harm to be impermissibly circular. In some
circumstances, this will be the correct result. Nothing in our
analysis negates the precedent establishing that a group may
be deemed impermissibly “circular” if, after conducting the
proper case-by-case analysis, the BIA determines that the
group is “defined exclusively by the fact that its members
have been subjected to harm.” Matter of M-E-V-G-, 26 I. &
N. Dec. at 242 (quoting Matter of A-M-E- & J-G-U-, 24 I. &
N. Dec. at 74). Courts have frequently held, after proper
analysis, that groups lacking a common characteristic aside
from persecution are not cognizable. See, e.g., Amezcua-
Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1345 (11th Cir.
2019) (concluding that proposed group lacked a “‘narrowing
characteristic’ other than the[] risk of being persecuted”);
Melnik v. Sessions, 891 F.3d 278, 286 (7th Cir. 2018)
(concluding that, other than persecution, “the only common
characteristic of members of the proffered class [was] their
status as small business owners”); Rreshpja, 420 F.3d at 556
(concluding that, aside from the fact of persecution, the group
included all “young, attractive Albanian women”). These
groups may also suffer from other deficiencies, such as a lack
of particularity or social distinction, but this appeal does not
require that we consider those aspects of the particular social
group analysis. Here, we clarify that the conclusion that a
proposed social group is impermissibly circular may not be
reached summarily merely because the proposed group
mentions harm.
32 DIAZ-REYNOSO V. BARR
The dissent cites to a plethora of unpublished decisions
that rejected groups similar to the one advanced here, arguing
that our decision is inconsistent with them.9 The dissent’s
reliance on these decisions reflects its mistaken premise that
the rejection of a social group in one case suggests that a
similar group may be rejected summarily in another. This
accounts for the dissent’s approval of the BIA’s one-sentence
analysis in this case. But it also contravenes binding
authority establishing that whether a particular social group
is cognizable “requires a fact-specific inquiry based on the
evidence in a particular case.” Matter of L-E-A-, 27 I. & N.
Dec. at 591.
The dissent also conflates the requirement to show nexus
with the requirements for establishing a particular social
group, and argues that if petitioners were allowed to include
mention of their claimed persecution, they would somehow
be relieved of the burden to establish a nexus between the
persecution and their membership in the group. What the
dissent overlooks is that this is only a concern if social groups
are “defined exclusively” by the harm the petitioners identify.
Matter of C-A-, 23 I. & N. Dec. at 960 (quoting UNHCR
Guidelines ¶ 14). If the only immutable characteristic is a
feared harm, the group becomes an impermissible “‘catch all’
applicable to all persons fearing persecution.” Id. (citing
UNHCR Guidelines ¶ 2); see also Castillo-Arias, 446 F.3d at
1198. That problem does not exist if a narrowing
9
Unpublished decisions are not precedent precisely because they are
“not written in a way that will be fully intelligible to those unfamiliar with
the case, and the rule of law is not announced in a way that makes it
suitable for governing future cases.” Hart v. Massanari, 266 F.3d 1155,
1178 (9th Cir. 2001). Thus, contrary to the dissent’s urging, we cannot
discern the reasoning of those decisions simply from their outcome.
DIAZ-REYNOSO V. BARR 33
characteristic allows the group to be defined without
reference to feared persecution. Matter of A-B- is clear on
this point. 27 I. & N. Dec. at 335 (noting that a group defined
by its persecution “moots the need to establish actual
persecution,” and it is “[f]or this reason” that the group
members must share a “narrowing characteristic” (emphasis
added) (citation omitted)).
C
The BIA ruled that Diaz-Reynoso’s proposed social group
was not cognizable because it assumed her inability to leave
her relationship was attributable to domestic violence, and
because it understood Matter of A-B- to say that the mention
of domestic violence disqualifies a particular social group.
The BIA’s decision consisted of a citation to Matter of A-B-
and an assertion that Diaz-Reynoso’s group suffered from the
same “circularity problem” identified in that case. Without
more, this was plainly contrary to the Attorney General’s
requirement that claims must be carefully analyzed under the
framework established by the BIA’s precedents. Matter of
A-B-, 27 I. & N. Dec. at 331–32, 339–40; see also Pirir-Boc,
750 F.3d at 1084. There are no shortcuts.
There are at least two problems with the BIA’s reasoning
in Diaz-Reynoso’s appeal. First, as explained, the BIA
misunderstood Matter of A-B-’s holding. Second, it is not
clear that the reason Diaz-Reynoso was “unable to leave” her
relationship was limited to domestic violence. Rather, the
BIA assumed that domestic violence was the only reason
34 DIAZ-REYNOSO V. BARR
Diaz-Reynoso was unable to leave her relationship. The
dissent makes the same assumption.10
Diaz-Reynoso described her particular social group as
“indigenous women in Guatemala who are unable to leave
their relationship.” The persecution Diaz-Reynoso fears is
undoubtedly the abuse perpetrated by her husband, but before
the immigration judge, she advanced evidence of economic,
societal, and cultural factors that also may have prevented her
from leaving her relationship. These included her financial
dependence on her husband, limited education, rural location,
and an ingrained Mayan cultural view that a relationship does
not end until the man so agrees.11 Contrary to the dissent’s
assertion, Diaz-Reynoso identified these factors in her brief
to the BIA.
The IJ made no findings about the cognizability of Diaz-
Reynoso’s particular social group. Instead, the IJ ruled that
Diaz-Reynoso failed to establish her membership in her
10
The dissent states that the IJ “made clear that the entire basis for
petitioner’s proposed social group was her fear of domestic violence.”
This is incorrect. The IJ made no findings about the basis for Diaz-
Reynoso’s proposed social group, and instead relied on her inability to
show membership in the group she advanced. The dissent also attributes
a finding to the BIA that it did not make—that Diaz-Reynoso’s inability
to leave “was created by harm or threatened harm.” The BIA did not
make this ruling, and we cannot supply our own reasoning in lieu of that
actually offered by the BIA. See, e.g., Recinos De Leon v. Gonzales,
400 F.3d 1185, 1189 (9th Cir. 2005).
11
There are many reasons a petitioner might be unable to leave a
relationship, including a variety of “cultural, societal, religious, economic,
or other factors.” De Pena-Paniagua v. Barr, 957 F.3d 88, 94 (1st Cir.
2020); see also Grace, 2020 WL 4032652, at *14–15; Amezcua-Preciado,
943 F.3d at 1345.
DIAZ-REYNOSO V. BARR 35
proposed social group because she did not establish she was
unable to leave her relationship. On appeal, the BIA relied on
entirely different grounds. It plucked one fact identified by
Diaz-Reynoso—that her husband physically abused her—and
ruled that her proposed social group, which it presumed to be
premised solely on domestic violence, suffered from the same
“circularity problem” identified in Matter of A-B-. By
reaching this conclusion without engaging in the analysis
underscored by the Attorney General, the BIA committed the
very same error it made in Matter of A-B-. See Matter of
A-B-, 27 I. & N. Dec. at 331, 340; see also Grace, 2020 WL
4032652, at *15 (noting that “whether a given group is
circular depends on the facts of the particular case”).
Even if Diaz-Reynoso’s social group necessarily
incorporated her husband’s physical abuse, the best indication
that this does not categorically disqualify her social group is
that the Attorney General remanded Matter of A-B- for the
BIA to conduct a proper analysis. 27 I. & N. Dec. at 340.
The group at issue in Matter of A-B- was “El Salvadoran
women who are unable to leave their domestic relationships
where they have children in common.” Id. at 321. Rather
than simply invalidating that group, the Attorney General
remanded so the group could be “carefully analyzed under the
standards articulated in this opinion and in past Board
decisions, such as M-E-V-G- and W-G-R-.” Id. at 340.
The dissent brushes aside the Attorney General’s remand
in Matter of A-B-, arguing the remand in that case was
nothing more than “standard remand language,” and urging
that Matter of A-B- reiterated a rule that any mention of harm
disqualifies a social group as impermissibly circular without
further analysis. Accepting this interpretation would require
us to ignore the Attorney General’s clear language about the
36 DIAZ-REYNOSO V. BARR
mistakes made in Matter of A-B-, including that we cannot
“avoid the rigorous analysis required” by the BIA’s
precedents, id. at 340, as well as the Attorney General’s
acknowledgment that “there may be exceptional
circumstances when victims of private criminal activity could
meet” the requirements for relief, id. at 317. See also id.
at 339 (observing that “any claim regarding the existence of
a particular social group” must be evaluated “in the context
of the evidence presented regarding the particular
circumstances in the country in question” (citation omitted)).
Because the BIA avoided the case-specific inquiry demanded
by Matter of A-B- and the BIA’s precedents, we grant Diaz-
Reynoso’s petition and remand her withholding claim.
D
Diaz-Reynoso argues that the panel should analyze her
proposed particular social group under the proper framework
in the first instance. We decline to do so.
A panel may only affirm on the grounds set forth in the
BIA’s decision. Recinos De Leon, 400 F.3d at 1189. When
the BIA’s decision “cannot be sustained upon its reasoning,
[the court] must remand to allow the agency to decide any
issues remaining in the case.” Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004) (per curiam); see also INS v.
Ventura, 537 U.S. 12, 16 (2002); Azanor v. Ashcroft,
364 F.3d 1013, 1021 (9th Cir. 2004).
VI
Diaz-Reynoso also sought relief pursuant to the
Convention Against Torture. CAT’s implementing
regulations require the agency to consider “all evidence
DIAZ-REYNOSO V. BARR 37
relevant to the possibility of future torture,” and we have
reversed where the agency has failed to do so. Parada v.
Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (quoting
8 C.F.R. § 1208.16(c)(3)); see also Cole v. Holder, 659 F.3d
762, 771–72 (9th Cir. 2011); Kamalthas v. INS, 251 F.3d
1279, 1284 (9th Cir. 2001). Here, we conclude that the BIA
failed to consider all relevant evidence, so we remand Diaz-
Reynoso’s CAT claim for further consideration.
To qualify for relief under CAT, an alien must establish
it is more likely than not that he or she would be tortured if
returned to the proposed country of removal. Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (citing
8 C.F.R. § 208.16(c)(2)). Torture is any act by which severe
pain or suffering is intentionally inflicted for such purposes
as obtaining information or a confession, punishing an act
committed or one suspected of having been committed,
intimidating or coercing, or for any reason based on
discrimination of any kind. Singh v. Whitaker, 914 F.3d 654,
663 (9th Cir. 2019) (citing 8 C.F.R. § 1208.18(a)(1)).
Torture must be inflicted by, at the instigation of, or with
the consent or acquiescence of, a public official or other
person acting in an official capacity. Zheng v. Ashcroft, 332
F.3d 1186, 1188 (9th Cir. 2003) (citing 8 C.F.R.
§ 208.18(a)(1)). “Public officials acquiesce in torture if they:
‘(1) have awareness of the activity (or consciously close their
eyes to the fact it is going on); and (2) breach their legal
responsibility to intervene to prevent the activity because they
are unable or unwilling to oppose it.” Barajas-Romero v.
Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting Garcia-
Milian, 755 F.3d at 1034). The public official need not have
actual knowledge of the specific incident of torture; instead,
it is sufficient that the public official is aware that torture of
38 DIAZ-REYNOSO V. BARR
the sort feared by the applicant occurs and remains willfully
blind to it. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir.
2013); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052,
1059–60 (9th Cir. 2006).
Diaz-Reynoso, who was deemed generally credible,
testified that she told a man in her community named
Sebastian about Vasquez-Juarez abusing her. Sebastian was
“like an assistant mayor” in Yamoj, and according to Diaz-
Reynoso, he had the power to arrest Vasquez-Juarez but did
not do so. Instead, Sebastian told her that the abuse she
suffered was a personal problem. Diaz-Reynoso further
testified that she witnessed her husband bribing Sebastian.
Diaz-Reynoso also reported her abuse to a man named
Avelino, who she described as a mayor figure in her village.
Avelino told Vasquez-Juarez that what he was doing was not
right, but Vasquez-Juarez responded that Avelino could not
tell him what to do because Vasquez-Juarez “kn[e]w the
law[].” Diaz-Reynoso did not attempt to report the abuse to
anyone else, as she lacked the resources to do so. Her
mountain village was quite remote, with the nearest police
station two hours away by car.
The BIA did not discuss the evidence that Diaz-Reynoso
reported her abuse to two different authority figures in her
remote, rural community and that neither of them helped her.
The BIA’s statement that it “consider[ed] all of the evidence,”
does not suffice in this context. See Cole, 659 F.3d at 772.
Indeed, after briefing in this appeal was completed, the
Government conceded that the BIA failed to discuss
potentially dispositive evidence regarding the issue of
governmental acquiescence, specifically acknowledging that
the BIA failed to consider whether Sebastian and Avelino
DIAZ-REYNOSO V. BARR 39
qualified as public officials within the meaning of 8 C.F.R.
§ 208.18(a)(1). The Government agreed that, remand is
required under these circumstances. Accordingly, we remand
for reconsideration of Diaz-Reynoso’s CAT claim.
VII
Contrary to the dissent’s concern, there is no confusion
about the next steps for this case. On the CAT claim, the
Government now stipulates that the failure to consider the
reports Diaz-Reynoso made to people in her village requires
remand. On the withholding claim, the BIA may consider in
the first instance Diaz-Reynoso’s proffered social group
under the required framework. See Matter of W-Y-C- & H-O-
B-, 27 I. & N. Dec. at 191; see also Matter of L-E-A-, 27 I. &
N. Dec. at 591.12 In addition or in the alternative, the BIA
may choose to rule on the other issues Diaz-Reynoso
appealed and briefed to the BIA—membership in her claimed
social group, a clear probability of persecution, and
persecution the Guatemalan government is unable or
unwilling to control.
Our decision today confirms a rule that has already been
firmly established in the BIA’s decisions. Beginning with its
2006 decision in Matter of C-A-, the BIA’s precedent has
been premised on the rule that persecutory action taken
toward a group can be relevant to that group’s social visibility
(now social distinction). It is equally clear that the mere
mention of persecutory action does not defeat an otherwise
12
Because the BIA cannot engage in fact-finding, 8 C.F.R.
§ 1003.1(d)(3), the BIA may find it necessary to remand for the IJ to
decide any underlying factual issues. Matter of W-Y-C- & H-O-B-, 27 I.
& N. Dec. at 191.
40 DIAZ-REYNOSO V. BARR
cognizable social group. Matter of A-B- did not hold
otherwise, and in fact expressly reaffirmed the BIA’s
longstanding precedent.
We remand Diaz-Reynoso’s claims to the BIA for further
consideration.
PETITION FOR REVIEW GRANTED;
REMANDED.
BRESS, Circuit Judge, concurring in the judgment in part and
dissenting in part:
In Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the
Attorney General revisited a recurring problem in the area of
immigration law: the circumstances under which victims of
domestic violence may seek asylum or withholding of
removal. The Attorney General recognized that domestic
abuse is “vile” but determined that under our immigration
laws, claims of persecution based on domestic violence will
generally “not qualify” for relief. Id. at 320, 346. The court
today purports to uphold Matter of A-B- but in fact largely
disregards it, creating an uncertain legal landscape and widely
opening the door to the types of claims Matter of A-B- said
were largely unavailable.
Under the Immigration and Nationality Act (INA), “the
Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)
DIAZ-REYNOSO V. BARR 41
(emphasis added). In Matter of A-B-, the Attorney General
reiterated the government’s longstanding approach to the
ambiguous term “particular social group”: “[t]o be
cognizable, a particular social group must exist independently
of the harm asserted in an application for asylum or statutory
withholding of removal.” 27 I. & N. Dec. at 334 (emphasis
in original) (quotations omitted). Because an applicant must
show persecution “because of” (or, for asylum, “on account
of”) membership in a “particular social group,” embedding
the harm in the definition of the group itself would be
impermissibly circular. Id. at 335, 338.
In Matter of A-B-, the Attorney General determined that
the Board of Immigration Appeals (BIA) erred in recognizing
the proposed social group “married women in Guatemala who
are unable to leave their relationship.” Id. at 319, 334. The
reason was that such a proposed group was impermissibly
circular, “effectively defined to consist of women in
Guatemala who are victims of domestic abuse because the
inability ‘to leave’ was created by harm or threatened harm.”
Id. at 335. The Attorney General in Matter of A-B- was
unequivocal: when these issues are “properly analyzed,” it is
“clear that the particular social group [is] not cognizable.” Id.
at 334.
Citing domestic violence at the hands of her common-law
husband, the petitioner in this case sought withholding of
removal based on the proposed social group “indigenous
women in Guatemala who are unable to leave their
relationship.” Recognizing that Matter of A-B- presented an
obvious obstacle to her claim, petitioner’s primary argument
on appeal is that the Attorney General’s decision was
arbitrary and capricious and unentitled to deference under
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
42 DIAZ-REYNOSO V. BARR
Inc., 467 U.S. 837 (1984). The court today rejects that
challenge. But the majority nevertheless concludes that the
BIA in this case misinterpreted Matter of A-B- in rejecting a
proposed social group that is in all relevant respects identical
to the proposed social group that the Attorney General
squarely rejected in Matter of A-B-.
This is error, with far-reaching consequences. The BIA
in this case did not misread Matter of A-B-; it just applied it.
So what did the BIA do wrong, not only in this case but
presumably in many cases in which substantially identical
proposed social groups have been rejected under the clear
reasoning of Matter of A-B-? The majority’s opinion
provides no clear answer to that question. The court’s
varying and inconsistent rationales share the common theme
that they reflect an unfortunate misunderstanding of the
INA’s requirements and the longstanding BIA precedent
interpreting them. Today’s opinion thus upholds Matter of
A-B- in name only, improperly overstepping the Attorney
General while departing from decisions of other circuits,
inviting confusion in this important area of law.
There is no doubt that domestic violence is a problem in
countries around the world and that the conduct of
petitioner’s husband is deplorable. But our court and the BIA
have long recognized that not every person who has
experienced suffering in a foreign country is entitled to
asylum or withholding of removal. In this case, the BIA
simply applied an Attorney General opinion in Matter of A-B-
that the majority otherwise holds is a valid interpretation of
the INA. That should have been the beginning and end of
this case.
DIAZ-REYNOSO V. BARR 43
I thus respectfully dissent from the majority’s
determination to grant the petition for review as to the
withholding of removal claim.1
I
To appreciate the errors in the majority opinion, it is
necessary to understand the statutory backdrop for the
Attorney General’s decision in Matter of A-B- and the
reasoning that supported that opinion.
A
An applicant is entitled to withholding of removal “if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The
undefined phrase “particular social group,” which also
appears in the similarly worded asylum statute, id.
§§ 1101(a)(42)(A), 1158(b)(1), has proven to be a source of
considerable difficulty. Reyes v. Lynch, 842 F.3d 1125, 1134
(9th Cir. 2016); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.
1993). We have therefore recognized that “particular social
group” is an ambiguous term and that the agency is entitled
to Chevron deference when interpreting it. Henriquez-Rivas
1
The majority also remands to the BIA for consideration of
petitioner’s claim under the Convention Against Torture (CAT). I concur
in this portion of the judgment because the government requested a
remand to the BIA on petitioner’s CAT claim. I do not, however, join in
the majority’s discussion of the merits of this claim because I find the
discussion unnecessary given the government’s remand request.
44 DIAZ-REYNOSO V. BARR
v. Holder, 707 F.3d 1081, 1083, 1087 (9th Cir. 2013) (en
banc).
Over time, the BIA has expounded on what “particular
social group” means. In Matter of Acosta, 19 I. & N. Dec.
211 (BIA 1985), and relying on the neighboring statutory
references to “race,” “religion,” “nationality,” and “political
opinion,” the BIA concluded that “particular social group”
means “a group of persons all of whom share a common,
immutable characteristic.” Id. at 233. In the BIA’s
considered view, “whatever the common characteristic that
defines the group, it must be one that the members of the
group either cannot change, or should not be required to
change because it is fundamental to their individual identities
or consciences.” Id.
Due to persisting uncertainty, and after a series of
intervening decisions, the BIA in Matter of M-E-V-G-, 26 I.
& N. Dec. 227, 237 (BIA 2014), and Matter of W-G-R-, 26 I.
& N. Dec. 208, 212–18 (BIA 2014), refined two other
requirements for a “particular social group.” In addition to
sharing an “immutable characteristic,” the group must also be
“defined with particularity” and “socially distinct within the
society in question.” Matter of M-E-V-G-, 26 I. & N. Dec.
at 237. “Particularity” means that the group “must be defined
by characteristics that provide a clear benchmark for
determining who falls within the group,” must be “discrete
and have definable boundaries,” and “must not be amorphous,
overbroad, diffuse, or subjective.” Matter of W-G-R-, 26 I. &
N. Dec. at 214. To be “socially distinct,” a group “must be
perceived as a group by society.” Matter of M-E-V-G-, 26 I.
& N. Dec. at 240. In Reyes, we held that the BIA’s
construction of the “particularity” and “social distinction”
requirements merited Chevron deference. 842 F.3d at 1133.
DIAZ-REYNOSO V. BARR 45
In Matter of M-E-V-G-, and particularly relevant here, the
BIA explained that a proposed social group must still meet
another separate requirement: “the social group must exist
independently of the fact of persecution,” a “criterion [that]
is well established in our prior precedents.” 26 I. & N. Dec.
at 236 n.11; see also Matter of W-G-R-, 26 I. & N. Dec.
at 215. The rationale for this requirement centers on the fact
that an applicant must not only prove membership in a
cognizable group, but a risk of persecution “on account of”
(or “because of”) “membership in the particular social
group.” Reyes, 842 F.3d at 1132 n.3; 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A), 1231(b)(3)(A).
This last requirement is known as the “nexus”
requirement. Reyes, 842 F.3d at 1132 n.3. The majority in
this case acknowledges the “well-established principle” that
a social group “must exist independently of the harm
asserted.” Maj. Op. 20. But the majority does little to
explain the rationale for that principle, which contributes to
the misunderstandings in today’s opinion. The logic of the
rule is important to this case.
Because a petitioner must establish a nexus between the
persecution and her membership in a proposed social group,
she cannot bake into the definition of the group the very
group-motivated persecution she must otherwise prove. That
would create a circularity problem, because “[i]f a group is
defined by the persecution of its members, then the definition
of the group moots the need to establish actual persecution.”
Matter of A-B-, 27 I. & N. Dec. at 335. Defining a group by
the harm, in other words, eliminates a petitioner’s obligation
to demonstrate persecution because of membership in the
group, effectively satisfying the nexus requirement in every
case.
46 DIAZ-REYNOSO V. BARR
This anti-circularity principle is not controversial and is
fundamental in this area of immigration law. Indeed, the
majority itself cites various cases from other circuits that have
acknowledged this rule. See, e.g., Perez-Rabanales v.
Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently
distinct social group must exist independent of the
persecution claimed to have been suffered by the alien and
must have existed before the alleged persecution began.”);
Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014)
(explaining that a proposed social group “must exist
independently of the persecution”) (quoting Matter of
W-G-R-, 26 I. & N. Dec. at 215); Rreshpja v. Gonzales,
420 F.3d 551, 556 (6th Cir. 2005) (“[A] social group may not
be circularly defined by the fact that it suffers persecution.”);
Maj. Op. 22 n.5, 23 (citing these cases).
Various other cases make the same point. See, e.g.,
Amezcua-Preciado v. U.S. Attorney Gen., 943 F.3d 1337,
1343 (11th Cir. 2019) (“[T]he proffered group must be
independent of, and cannot be defined by, the persecution.”);
Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019)
(“[T]he social group must exist independently of the fact of
persecution.”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
at 236 n.11) (alteration in original); Lukwago v. Ashcroft,
329 F.3d 157, 172 (3d Cir. 2003) (“We agree that under the
statute a ‘particular social group’ must exist independently of
the persecution suffered by the applicant for asylum.”).
Perhaps tellingly, of the many court of appeals cases the
majority cites on this point of law, Maj. Op. 22 n.5, all of
them denied petitions for review with the exception of one,
and that case only remanded to the BIA in light of intervening
precedent.
DIAZ-REYNOSO V. BARR 47
B
In Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014),
the BIA recognized as a particular social group “married
women in Guatemala who are unable to leave their
relationship.” Id. at 392. In treating this proposed social
group as cognizable, the BIA relied primarily on the
government’s concessions “that a particular social group
exist[ed]” and that the proposed group was “defined with
particularity.” Id. at 393–94. Based on A-R-C-G-, the BIA
then began to grant asylum and withholding of removal to
victims of domestic violence. That is what ultimately led to
the Attorney General’s intervention in Matter of A-B-, 27 I.
& N. Dec. 316 (A.G. 2018), the opinion most directly before
us.
The petitioner in Matter of A-B- claimed persecution in
the form of domestic violence based on her membership in
the claimed social group “El Salvadoran women who are
unable to leave their domestic relationships where they have
children in common.” Id. at 321. The BIA held that this
proposed group was cognizable under Matter of A-R-C-G-
and ordered that the petitioner receive asylum. Id. The
Attorney General then intervened in Matter of A-B-, see
8 U.S.C. §§ 1103(a)(1), (g)(2); 8 C.F.R. § 1003.1(h)(1), and
“overrule[d]” Matter of A-R-C-G-. See Matter of A-B-, 27
I. & N. Dec. at 317, 319, 340, 346. In the Attorney General’s
considered view, Matter of A-R-C-G- improperly elevated the
government’s concessions into binding precedent,
“recogniz[ing] a new particular social group without correctly
applying” the legal standards discussed above. Id. at 317; see
also id. at 333.
48 DIAZ-REYNOSO V. BARR
Matter of A-R-C-G- was “wrongly decided,” the Attorney
General explained, because “[t]o be cognizable, a particular
social group must ‘exist independently’ of the harm asserted
in an application for asylum or statutory withholding of
removal.” Id. at 333–34 (emphasis in original) (citing, e.g.,
Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter
of W-G-R-, 26 I. & N. Dec. at 215; Perez-Rabanales,
881 F.3d at 67). That longstanding principle was fatal to the
proposed social group in Matter of A-R-C-G-. As the
Attorney General explained, the BIA in “A-R-C-G- never
considered that ‘married women in Guatemala who are
unable to leave their relationship’ was effectively defined to
consist of women in Guatemala who are victims of domestic
abuse because the inability ‘to leave’ was created by harm or
threatened harm.” Id. at 335. The proposed social group in
Matter of A-R-C-G- thus violated the anti-circularity
principle. Id. at 334–35.
Although the Attorney General in Matter of A-B- did “not
decide that violence inflicted by non-governmental actors
may never serve as the basis for an asylum or withholding
application,” he explained that such claims based on domestic
violence “are unlikely to satisfy the statutory grounds for
proving group persecution.” Id. at 320.
II
In this case, petitioner claims her husband acted violently
toward her because of her membership in the claimed social
group “indigenous women in Guatemala who are unable to
leave their relationship.” The BIA held that petitioner’s
proposed group was not cognizable because it “suffers from
the same circularity problem articulated by the Attorney
General in Matter of A-B-.” In Part IV of its opinion, the
DIAZ-REYNOSO V. BARR 49
majority correctly rejects petitioner’s arguments that Matter
of A-B- is arbitrary and capricious and undeserving of
Chevron deference. Maj. Op. 16–19. But the majority
nonetheless concludes in Part V that the BIA misinterpreted
Matter of A-B-, requiring a remand to the agency.
Part V is where the problem lies. The petitioner’s
proposed social group of “indigenous women in Guatemala
who are unable to leave their relationship” is virtually
identical to the proposed social group in Matter of A-R-C-G-,
which was “married women in Guatemala who are unable to
leave their relationship.” The Attorney General in Matter of
A-B- clearly determined that the latter group was “not
cognizable.” 27 I. & N. Dec. at 334. Yet when the BIA
then applied Matter of A-B- to petitioner’s materially
indistinguishable proposed group, our court now tells the BIA
it erred in not following Matter of A-B-.
That holding is quite mistaken, turning on a misreading of
Matter of A-B- and a related misunderstanding of the core
principles of immigration law on which Matter of A-B- is
premised. While today’s opinion might initially appear to
reject a challenge to Matter of A-B- and narrowly remand on
case-specific grounds, in reality that is not so. Instead, the
court’s opinion improperly recasts Matter of A-B-, with
widespread consequences for the many cases that today’s
decision is sure to affect. The result is also that the federal
immigration law that applies in this circuit will differ
considerably from the law applied elsewhere in this country.
A central problem with today’s opinion—and one of the
reasons I fear it will engender confusion—is that the majority
offers what I see as varying and inconsistent rationales for
why the BIA erred. Each of those grounds for decision is
50 DIAZ-REYNOSO V. BARR
incorrect and each reflects a noted departure from governing
law.
A
1
In articulating why a remand is required, the majority first
explains that “[t]he BIA seems to have erroneously
understood Matter of A-B- to forbid any mention of feared
harm within a proposed social group.” Maj. Op. 19–20. The
majority consequently “disagree[s]” that “in order to exist
independently from the petitioner’s feared harm, a proposed
group may not refer to that harm at all.” Id. at 23. This
reflects legal error and departs from the decisions of our sister
circuits. See, e.g., Gonzales-Veliz, 938 F.3d at 232 (holding
that a proposed group of “Honduran women unable to leave
their relationship” was not cognizable because it was “defined
by, and d[id] not exist independently of, the harm—i.e., the
inability to leave”).
Simply stated, a proposed group that incorporates harm
within its definition is not a group that “exist[s] independently
of the harm asserted in an application for asylum or statutory
withholding of removal.” Matter of A-B-, 27 I. & N. Dec.
at 334 (emphasis added) (quotations omitted). Recall that the
overall framework requires an asylum or withholding
applicant to prove three things: (1) the existence of a
cognizable particular social group; (2) membership in that
group; and (3) “a risk of persecution on account of” (or
“because of”) “his membership.” Reyes, 842 F.3d at 1132 n.3
(emphasis added).
DIAZ-REYNOSO V. BARR 51
Now imagine a proposed social group that is transparently
based in part on the harm, such as “Guatemalan men who are
harmed by gangs.” Saying that a petitioner was harmed by
gangs based on his membership in the group “Guatemalan
men who are harmed by gangs” would collapse the inquiries.
And it would create the very circularity problem that Matter
of A-B- sought to avoid in the domestic violence context,
allowing nexus to be proven by the group definition itself.
See Matter of A-B-, 27 I. & N. Dec. at 334 (citing, e.g.,
Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter
of W-G-R-, 26 I. & N. Dec. at 215). The majority thus errs in
claiming that I “do not explain why a person seeking relief on
the basis of membership in a particular social group should be
required to omit any mention of threatened persecution.”
Maj. Op. 28. The reason, as I have explained, is the anti-
circularity principle.
Contrary to the suggestion in the majority opinion, Matter
of A-B- did not endorse the concept of a particular social
group that references harm in its definition. Maj. Op. 23–25.
Matter of A-B- in fact confirms that such a group is
impermissible. Matter of A-B- expressly rejected the
proposed social group in Matter of A-R-C-G-, which was
“married women in Guatemala who are unable to leave their
relationship.” Matter of A-B-, 27 I. & N. Dec. at 319. This
proposed group obviously does contain some immutable
characteristics not defined by the harm, namely, “married
women in Guatemala.” But the Attorney General concluded
the proposed social group still incorporated a reference to
harm, because a claimed “inability to leave” was “effectively
defined to consist of women in Guatemala who are victims of
domestic abuse.” Id. at 335. For that reason, the group
violated the anti-circularity principle and was “not
cognizable.” Id. at 334.
52 DIAZ-REYNOSO V. BARR
If referring to harm within the group definition were
allowed, Matter of A-B- on this central point should have
come out the other way. It is thus true, as the majority
explains, that Matter of A-B- did not “identify a categorical
‘circularity problem.’” Maj. Op. 20 (emphasis added). But
that is only because the anti-circularity rule had long existed
in the law. Matter of A-B- thus did not “identify” and
announce this rule, but it certainly applied it. Whether the
anti-circularity rule applies is determined on a case-by-case
basis by examining the proposed social group that an
applicant brings forward. See Matter of A-B-, 27 I. & N. Dec.
at 340; Matter of M-E-V-G-, 26 I. & N. Dec. at 251. But
when the rule does apply, it is, indeed, a categorical one.
Matter of A-B-’s reliance on Rreshpja v. Gonzales,
420 F.3d 551 (6th Cir. 2005), only confirms this point. The
Attorney General in Matter of A-B- specifically cited
Rreshpja for the rule that “[t]he individuals in the group must
share a narrowing characteristic other than their risk of being
persecuted.” 27 I. & N. Dec. at 335 (alteration in original)
(quoting Rreshpja, 420 F.3d at 556). In Rreshpja, the court
understood the proposed social group to be “young (or those
who appear to be young), attractive Albanian women who are
forced into prostitution.” 420 F.3d at 555. The Sixth Circuit
rejected this group because “a social group may not be
circularly defined by the fact that it suffers persecution.” Id.
at 556 (emphasis added).
The proposed particular social group in Rreshpja was not
completely defined by the harm, but the court rejected it
because it was still partially defined by the harm. Id. The
majority therefore gets Rreshpja backwards. Maj. Op. 23.
The Attorney General in Matter of A-B- was not purporting
to allow a group defined in part by the harm by relying on a
DIAZ-REYNOSO V. BARR 53
Sixth Circuit opinion that rejected a proposed social group
that was itself partially defined by the harm, and that
therefore suffered from the same problem as the proposed
group in this case.
Notably, both petitioner and her amicus agree with my
interpretation of Matter of A-B-. Petitioner herself regards
the “holding” of Matter of A-B- to be that a particular social
group “cannot be defined, even in part, by the fact of
persecution.” (Emphasis added). And amicus Center for
Gender & Refugee Studies likewise agrees that under Matter
of A-B-, the circularity rule “require[s] a group to be defined
completely independently of the harm.” (Emphasis in
original). Petitioner and the amicus both regard this as a new
rule, but it is not. It is the same rule that has always applied:
“[t]o be cognizable, a particular social group must exist
independently of the harm asserted.” Matter of A-B-, 27
I. & N. Dec. at 334 (emphasis in original) (quotations
omitted); see also Matter of M-E-V-G-, 26 I. & N. Dec. at 236
n.11.
Unlike the majority, my interpretation of Matter of A-B-
is also aligned with that of other circuits. The majority
opinion “recognize[s] that, consistent with Matter of A-B-,
numerous courts have deemed proposed social groups that
referred to feared harm to be impermissibly circular.” Maj.
Op. 31. The concession is well-taken. But it is, if anything,
a considerable understatement, because other circuits have
routinely denied petitions for review presenting materially
identical proposed social groups to the one at issue here, that
also referenced harm in the group definition itself.
In Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019),
the Fifth Circuit denied a petition for review seeking asylum
54 DIAZ-REYNOSO V. BARR
and withholding of removal based on the proposed social
group “Honduran women unable to leave their relationship.”
Id. at 223. The Fifth Circuit explained that “under A-B-’s
analysis, [this] group cannot constitute a particular social
group” because “[t]he group is defined by, and does not exist
independently of, the harm—i.e., the inability to leave.” Id.
at 232. In other words, the Fifth Circuit held, this group was
not cognizable because it was “impermissibly defined in a
circular manner.” Id.
Several months later, the Eleventh Circuit issued a similar
decision in Amezcua-Preciado v. U.S. Attorney General, 943
F.3d 1337 (11th Cir. 2019) (per curiam). There, the Eleventh
Circuit denied a petition for review seeking relief based on
the proposed social group “women in Mexico who are unable
to leave their domestic relationships.” Id. at 1339. The
Eleventh Circuit recognized that the petitioner’s “proposed
social group suffers from the kinds of problems the Attorney
General identified in A-B- as likely to render most groups of
victims of private violence not cognizable.” Id. at 1344. And
the Eleventh Circuit made clear that “to the extent [the
petitioner’s] proposed group of Mexican women . . . are
unable to leave their domestic relationships because they fear
physical or psychological abuse by their spouse or domestic
partner, this group is defined by the underlying harm
asserted.” Id. at 1345. In reading Matter of A-B- to allow
proposed social groups that include feared harm in the group
definition, the majority departs from both the reasoning and
the results of the Fifth and Eleventh Circuit decisions.
Indeed, the majority’s decision is inconsistent with many
cases from other circuits that have denied petitions for review
that advanced proposed social groups materially identical to
the one advanced here. See, e.g., Perez-Agustin v. U.S.
DIAZ-REYNOSO V. BARR 55
Attorney Gen., 798 F. App’x 608, 609 (11th Cir. 2020) (per
curiam) (rejecting as impermissibly circular proposed social
group of “indigenous women from Guatemala, who are native
Mam speakers, who are victim[s] of sexual violence”)
(alteration in original); Martinez Casco v. U.S. Attorney Gen.,
800 F. App’x 835, 838 (11th Cir. 2020) (per curiam)
(rejecting as impermissibly circular proposed social group of
“female domestic violence victims who are unable to leave”);
Serrano-de Portillo v. Barr, 792 F. App’x 341, 342–43 (5th
Cir. 2020) (per curiam) (rejecting as impermissibly circular
proposed social group of “El Salvadoran women targeted by
gang members to be gang girlfriends”); Garcia-Ventura v.
Barr, 788 F. App’x 969, 970–71 (5th Cir. 2019) (per curiam)
(rejecting as impermissibly circular proposed social groups of
“victims of domestic violence at the hands of their domestic
partner and unable to leave their domestic partner” and
“victims of domestic violence who are viewed as property by
virtue of their positions within a domestic relationship”);
Gonzalez-De Moreira v. U.S. Attorney Gen., 787 F. App’x
659, 662 (11th Cir. 2019) (per curiam) (rejecting as
impermissibly circular proposed social groups of “Salvadoran
women who are victims of violence” and “Salvadoran
children who are victims of violence”); Reyes v. Sessions,
750 F. App’x 656, 659 (10th Cir. 2018) (rejecting as
impermissibly circular proposed social group of “female
victims of domestic violence”). Indeed, our court in an
unpublished decision rejected as impermissibly circular a
proposed group of “women who have been harassed and
threatened by men and whose complaints to police have
failed to result in protection,” because the group was “defined
by the claimed persecutory conduct” and thus did “not exist
56 DIAZ-REYNOSO V. BARR
independently from the claimed persecution.” Calderon-
Espejo v. Barr, 771 F. App’x 371, 372–73 (9th Cir. 2019).2
The majority acknowledges this “plethora of unpublished
decisions that rejected groups similar to the one advanced
here,” but claims it “cannot discern the reasoning of those
decisions simply from their outcome.” Maj. Op. 32 & n.9.
Setting aside that the Fifth and Eleventh Circuits have
rejected proposed social groups materially identical to the one
here in published opinions, see Amezcua-Preciado, 943 F.3d
at 1345; Gonzales-Veliz, 938 F.3d at 232, the numerous
unpublished decisions reaching the same result easily reveal
their straightforward reasoning: the proposed group in each
case failed because it included a reference to harm, thus
presenting the circularity issue.
The groups in these cases were defined in part by
immutable characteristics that were separate and apart from
2
Even before Matter of A-B-, courts also routinely rejected proposed
social groups as circular if they referred to alleged harm or persecution.
See e.g., Soto-Ambrocio v. Sessions, 724 F. App’x 456, 458 (6th Cir.
2018) (per curiam) (rejecting as impermissibly circular proposed social
group of “young women from Guatemala subject to abuse from families”);
Moreno v. Lynch, 628 F. App’x 862, 865 (4th Cir. 2015) (rejecting as
impermissibly circular proposed social group of “Hondurans who have
been targeted by the police and their criminal associates to engage in drug
trafficking”); Rreshpja, 420 F.3d at 555–56 (rejecting as impermissibly
circular proposed social group of “young (or those who appear to be
young), attractive Albanian women who are forced into prostitution”).
The majority is thus not correct that the government and this dissent (and
by implication, the other circuits) “confuse the definition of a ‘particular
social group’ with one of its components—i.e., the group’s shared
immutable characteristic.” Maj. Op. 27. The requirement that a proposed
social group exist independent of the harm is its own separate
requirement. Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.
DIAZ-REYNOSO V. BARR 57
the harm, such as women from a certain country. But they
were also defined in part by an “inability to leave” or some
similar formulation that was regarded as a reference to harm.
Unlike today’s opinion, however, none of these cases treated
the BIA decisions on review as having “erroneously
understood Matter of A-B- to forbid any mention of feared
harm within a proposed social group.” Maj. Op. 19–20.
Instead, they treated the “mention” of that harm as a
dispositive violation of the longstanding anti-circularity
principle.3
2
The majority gives two primary reasons for departing
from the case law of other circuits and allowing proposed
3
The majority is correct that the D.C. Circuit recently stated (in a case
challenging a policy memorandum not at issue here) that the notion that
“the group must be ‘separate’ from the harm, not consisting of the harm,
even in part,” is “flatly inconsistent” with Matter of A-B-. Grace v. Barr,
— F.3d —, 2020 WL 4032652, at *16 (D.C. Cir. 2020). However, the
D.C. Circuit premised this point on an asserted government concession as
to whether the phrase “inability to leave” could be a reference to
something other than harm, id., which is a different issue (the majority
addresses this issue in its Part V.C and I address it in Part II.C below). In
Grace, the D.C. Circuit held that the policy memorandum at issue there
correctly stated the “circularity rule” as set forth in Matter of A-B-. Id.
The court described the “circularity rule” as requiring that “social groups
must ‘exist independently’ of the harm claimed by the applicant, that is,
the applicant must be able to establish the group’s existence ‘without
defining [it] by the fact of persecution.’” Id. at *14 (quoting Matter of
A-B-, 27 I. & N. Dec. at 334) (alteration in original). To the extent Grace
“endorsed the view that a proposed social group is not disqualified if it
includes mention of feared persecution” as the majority claims, Maj. Op.
29, the D.C. Circuit offered no explanation for this point, which is both
incorrect and against the weight of authority applying Matter of A-B-, as
detailed in this dissent.
58 DIAZ-REYNOSO V. BARR
social groups that include a reference to harm. Both
rationales fail as a matter of law.
First, the majority holds that a proposed social group
definition can include a reference to harm because
“persecution may be relevant to a group’s social distinction.”
Maj. Op. 20; see also id. at 23–24. This reflects a
misunderstanding of BIA precedent and the conflation of two
independent requirements for a “particular social group” to be
cognizable: (1) that the group exist independent of the harm
and (2) that it be socially distinct in the relevant society.
These are different requirements. Indeed, in explaining the
“social distinction” element, the BIA in Matter of M-E-V-G-
pointed out that while “the social group must exist
independently of the fact of persecution,” this is a separate
criterion from “social distinction.” Matter of M-E-V-G-,
26 I. & N. Dec. at 236 n.11.
The majority dismisses this as “mechanistic[],” Maj. Op.
27, but these separate requirements perform meaningful
analytical work. It is certainly true that persecution can be
used to demonstrate that a proposed group is “socially
distinct.” As the BIA has explained, “[t]he act of persecution
by the government may be the catalyst that causes the society
to distinguish [a proposed social group] in a meaningful way
and consider [it] a distinct group.” Matter of M-E-V-G-, 26 I.
& N. Dec. at 243. But this does not mean that the definition
of the group itself can include the harm. Why? Because the
entire reason the group “must exist independently of the harm
asserted,” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis
in original) (quotations omitted), is to avoid the circularity
problem that would otherwise allow petitioners automatically
to fulfill the separate nexus requirement by injecting the harm
DIAZ-REYNOSO V. BARR 59
itself into the very definition of the group whose membership
is supposedly causing the persecution.
The majority’s hypotheticals only prove this point. Maj.
Op. 25–26. The first one, used in Matter of M-E-V-G-,
consists of the proposed particular social group “former
employees of a country’s attorney general.” Matter of
M-E-V-G-, 26 I. & N. Dec. at 242. The second hypothetical
is found in United Nations High Commissioner for Refugees
(UNHCR) Guidelines and involves the proposed social group
of left-handed men. UNHCR, Guidelines on International
Protection, ¶ 14, U.N. Doc. HCR/GIP/02/02 (May 7, 2002)
[hereinafter UNHCR Guidelines]. Critically, unlike the
proposed social group in this case, neither hypothetical
involves a proposed group defined in any way by the harm
itself.
But though the fact of persecution does not define the
group, these hypotheticals show that the harm may
permissibly be used to show the group is socially distinct in
the relevant society. Take “former employees of a country’s
attorney general” as an example. As the BIA explained,
“[a]lthough such a shared past experience is immutable and
the group is sufficiently discrete, the employees may not
consider themselves a separate group within the society.”
Matter of M-E-V-G-, 26 I. & N. Dec. at 242. But if “the
government begins persecuting them,” “[u]pon their
mistreatment, it is possible that these people would
experience a sense of ‘group,’ and society would discern that
this group of individuals, who share a common immutable
characteristic, is distinct in some significant way.” Id.
at 242–43.
60 DIAZ-REYNOSO V. BARR
That is consistent with the anti-circularity principle,
because while “[t]he act of persecution by the government
may be the catalyst that causes the society to distinguish the
former employees in a meaningful way and consider them a
distinct group,” “the immutable characteristic of their shared
past experience exists independent of the persecution.” Id.
at 243 (emphasis added). The UNHCR made the same point
about its “[l]eft-handed men” hypothetical: the group would
still be defined by “the attribute of being left-handed and not
the persecutory acts.” UNHCR Guidelines ¶ 14 (emphasis
added).
The majority’s two hypotheticals thus demonstrate the
very analytical distinction the majority sweeps aside. Just
because persecution may show that a group is socially distinct
does not mean the group itself can be defined in some way by
that persecution. The majority apparently suggests it would
create no issue to define the hypothetical group of “former
employees of the attorney general” as “former employees of
the attorney general, who are being hunted down and killed.”
Maj. Op. 26. But that is exactly the type of group courts have
routinely rejected under the anti-circularity principle. See
ante at 53–56 & n.2. The majority is thus incorrect in
suggesting that I overlook that BIA precedent “unequivocally
establishes that a group’s persecution may be relevant to” the
social distinction requirement. Maj. Op. 27. Persecution is
relevant to the requirement of social distinction, as I have
explained. But that does not mean groups can include in their
definitions a reference to harm, contrary to the separate
DIAZ-REYNOSO V. BARR 61
requirement that the group exist independent of the harm.
See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.4
Second, and relying on snippets of language in BIA
decisions, the majority holds that a particular social group can
include harm in its definition because “[t]he BIA [has]
explained that a ‘social group cannot be defined exclusively
by the fact that it is targeted for persecution.’” Maj. Op. 21
(quoting Matter of C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006)
(emphasis in original)). The majority quotes other BIA
decisions that use this “exclusively” language, but these
decisions in turn rely on the BIA’s earlier opinion in Matter
of C-A-. See id. at 21–22, 31.
The majority’s reliance on “exclusively” is not correct.
That a proposed social group cannot be defined “exclusively”
by the harm does not somehow mean it could then be based
in part on the harm. If that were true, Matter of A-B-—which
rejected a proposed social group that was not based
exclusively on the harm—would have come out the other way
on this critical issue. And if the only limit was that a group
cannot be based “exclusively” on the harm, there would have
4
The majority’s hypothetical of Tutsis fleeing Rwanda is inapt. Maj.
Op. 28–29. There, the proposed social group would be defined based on
ethnicity, not harm. See Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th
Cir. 2009). A person who experienced genocide based on ethnicity would
have no reason to define his proposed social group by including the harm
in the group definition itself. Petitioner here, by contrast, had
understandable strategic reasons to try that approach here, as I explain
below. The majority is correct that the anti-circularity rule is not specific
to the domestic violence context. But that makes the majority’s departure
from the rule more problematic, not less. Under the majority’s approach,
the many cases that have rejected proposed social groups that referenced
harm were all wrongly decided on this point.
62 DIAZ-REYNOSO V. BARR
been no reason for the BIA repeatedly to articulate the
principle that the group “must exist independently of the harm
asserted.” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis
altered) (quotations omitted); Matter of M-E-V-G-, 26 I. & N.
Dec. at 236 n.11. Indeed, cases the majority cites that use the
“exclusively” formulation also state the rule that the group
must exist independent of the harm. See Maj. Op. 22 n.5
(citing Perez-Rabanales, 881 F.3d at 67; Paloka, 762 F.3d
at 196).
I suppose it is possible to imagine a proposed social group
that is defined “exclusively” by harm (e.g., “victims of
physical assaults”). But most proposed social groups that
have the circularity problem are defined in part by the harm
and in part by something else, such as gender or nationality.
There is nothing in the BIA’s precedent suggesting it did not
intend those proposed social groups to come within the anti-
circularity principle, whose logic clearly extends to them. To
the contrary, the BIA’s formulation—“must exist
independently”—ensures that groups defined in part by the
harm are not allowed.
The origins of the “exclusively” phrasing also
demonstrate it was not intended to operate in the way the
majority uses it, i.e., implicitly to allow groups defined in part
by the harm. As noted, this “exclusively” language can be
traced to the BIA’s decision in Matter of C-A-. But there, the
BIA stated that “the [UNHCR] Guidelines state that ‘a social
group cannot be defined exclusively by the fact that it is
targeted for persecution,’” although “persecutory action
toward a group may be a relevant factor in determining the
visibility of a group in a particular society.” Matter of C-A-,
23 I. & N. Dec. at 960 (emphasis in original) (quoting
UNHCR Guidelines ¶¶ 2, 14).
DIAZ-REYNOSO V. BARR 63
The quoted language drives home the distinction that the
majority elides, which is that persecution can be relevant for
social distinction (previously known as social visibility), but
not for the definition of the group itself. The quoted language
also shows that the majority is misusing the “exclusively”
phrasing on its own terms. The BIA in Matter of C-A- used
this language when quoting the UNHCR Guidelines, which
I discussed earlier. Matter of C-A-, 23 I. & N. Dec. at 960.
And these Guidelines likewise make clear that a group cannot
be defined in part by the harm.
In the Guidelines, the UNHCR used the left-handed men
hypothetical to show that persecution can be relevant to what
we now call social distinction. UNHCR Guidelines ¶ 14; see
Matter of M-E-V-G-, 26 I. & N. Dec. at 228. But the
UNHCR made clear that in that circumstance, “it would be
the attribute of being left-handed and not the persecutory acts
that would identify them as a particular social group.”
UNHCR Guidelines ¶ 14. That is a rejection of the majority’s
view that a group can be defined in part by the harm.
The majority opinion is thus incorrect in claiming that I
“ignore the word ‘exclusively’—along with similar limiting
language in the BIA’s decisions and those from our sister
circuits.” Maj. Op. 24. Instead, as the extensive discussion
above confirms, it is the majority that is incorrectly using the
“exclusively” formulation in service of authorizing groups
that refer to harm, contrary to other circuits that have
addressed substantially identical proposed social groups.
B
Equally mistaken is the majority’s suggestion that the
BIA erred in this case because it is possible to bracket out a
64 DIAZ-REYNOSO V. BARR
reference to harm in the definition of a proposed social group
in considering whether petitioner has put forward an
“otherwise cognizable” group. Maj. Op. 21–22, 27, 39–40;
see also id. at 20 (“If a group is otherwise cognizable, Matter
of A-B- does not demand that it be devoid of any reference to
an applicant’s claimed persecution.”) (emphasis added). The
majority’s analysis suggests that we may consider some
elements of a proffered social group as relevant to the
immutable characteristic inquiry, consider other elements for
their relevance to social distinction, and do so without
impermissibly rewriting the petitioner’s proposed social
group. See Maj. Op. 27–28.
That is not correct. I am aware of no case, and the
majority cites none, that would allow a court (or the BIA) to
take a petitioner’s proposed social group, break it down into
constituent elements, and then assign those elements out to
the distinct requirements that a petitioner must meet to
demonstrate a cognizable social group. In my respectful
view, that is not how this area of law works.
BIA precedent is clear that the agency must evaluate the
proposed social group exactly as the petitioner has defined it.
In precedent the majority cites, Maj. Op. 27, 28, 39 n.12, the
BIA has held that “[w]here an applicant raises membership in
a particular social group as the enumerated ground that is the
basis of her claim, she has the burden to clearly indicate ‘the
exact delineation of any particular social group(s) to which
she claims to belong.’” Matter of W-Y-C- & H-O-B-, 27 I. &
N. Dec. 189, 191 (BIA 2018) (quoting Matter of A-T-, 25 I. &
N. Dec. 4, 10 (BIA 2009)). The Immigration Judge (IJ) must
then analyze “the specific group” identified, and “[i]f an
applicant is not clear as to the exact delineation of the
proposed social group, the Immigration Judge should seek
DIAZ-REYNOSO V. BARR 65
clarification.” Id. On appeal, the BIA may only consider the
specific proposed social group that the petitioner presented to
the IJ. Id. at 191–92.
These various requirements are not empty formalities.
Instead, they follow from the fact that a petitioner bears the
burden of proof in demonstrating “the existence of a
cognizable particular social group” and persecution because
of her membership in that group. Reyes, 842 F.3d at 1132 n.3
(quoting Matter of W-G-R-, 26 I. & N. Dec. at 223); see also
Cantarero-Lagos v. Barr, 924 F.3d 145, 151 (5th Cir. 2019)
(“Requiring asylum and withholding applicants to delineate
their [particular social group] to an IJ is simply a logical
extension of this burden of proof.”).
Requiring the petitioner to delineate her proposed social
groups has important practical benefits as well. It ensures
that appropriate fact-finding is conducted at the IJ level.
Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191;
Cantarero-Lagos, 924 F.3d at 152. And it creates a “rational
administrative process” that allows the government to
respond to a petitioner’s proposed social group, while
preventing repeated remands to the IJ. Cantarero-Lagos,
924 F.3d at 152.
Consistent with this scheme, we have repeatedly
determined that we lack jurisdiction to consider a new or
different proposed social group that the petitioner did not
present to the agency. See, e.g., Lozano Fuerte v. Barr,
804 F. App’x 742, 742–43 (9th Cir. 2020); Nesta-Najar v.
Barr, 804 F. App’x 604, 606 (9th Cir. 2020); Perez Perez v.
Barr, 804 F. App’x 597, 598 (9th Cir. 2020); Vasquez-Leon
v. Barr, 804 F. App’x 612, 613 (9th Cir. 2020); Romero-
Castro v. Barr, 790 F. App’x 64, 65 (9th Cir. 2020); Lopez-
66 DIAZ-REYNOSO V. BARR
Velasquez v. Sessions, 742 F. App’x 195, 196 n.1 (9th Cir.
2018).
The majority agrees that “courts cannot rewrite proposed
social groups.” Maj. Op. 27. But the majority’s suggestion
that we or the BIA can splice out elements of a proposed
group and consider them for some, but not other purposes, is
inconsistent with established precedent and practice. The
same can be said of petitioner’s analogous suggestion that we
should “look[] beyond the language used to describe [her]
proposed social group.” (Emphasis added). Petitioners can
propose multiple and alternative particular social groups to
the agency; many petitioners do so. E.g., Honcharov v. Barr,
924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam). But under
the authority set forth above, we cannot take a petitioner’s
proposed group and alter it. Indeed, the very idea that there
are severable elements in the proposed social group is
misplaced. There are no such elements; there is only the
proposed group.
By the same token, if we subtract one element (here
“inability to leave”), we likewise create a different group than
the one the petitioner articulated. Tellingly, in none of the
cases cited above denying petitions with similar proposed
groups to the one here did the courts proceed to consider a
version of the proposed group minus the impermissibly
circular reference to the harm. Nor did those courts remand
to the BIA with instructions to do this. The majority opinion
thus fails to recognize that the definition of the proposed
group—as the petitioner has defined it—is central to how this
entire scheme works.
The majority errs in suggesting it can refashion
petitioner’s proposed group because “[t]he BIA has taken
DIAZ-REYNOSO V. BARR 67
pains to state that ‘the shared trait of persecution does not
disqualify an otherwise valid social group.’” Maj. Op. 24
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 243). The
BIA in Matter of M-E-V-G- was not implying that if a group
is defined to include the harm, that the BIA (or a court) could
carve out the reference to harm to produce an “otherwise
valid social group.” Instead, the BIA said that if the
petitioner had come forward with an “otherwise valid social
group,” using the fact of persecution to demonstrate the social
distinction requirement would not invalidate the group.
Matter of M-E-V-G-, 26 I. & N. Dec. at 243.
Equally mistaken is the majority’s assertion that the
Attorney General in Matter of A-B- “faulted the BIA[]” in
Matter of A-R-C-G- for not considering the petitioner’s
proposed social group without its reference to harm. Maj.
Op. 29. In Matter of A-B-, the Attorney General was
certainly not instructing the BIA to ignore a reference to harm
and to come up with an “otherwise cognizable” social group
using some of the other characteristics the petitioner brought
forth.
To the contrary, when the Attorney General in Matter of
A-B- faulted the BIA in Matter of A-R-C-G- for “avoid[ing]
considering whether [the petitioner] could establish the
existence of a cognizable particular social group without
defining the group by the fact of persecution,” it was because
the government in Matter of A-R-C-G- “conceded” that the
petitioner there was a member of a cognizable social group.
Matter of A-B-, 27 I. & N. Dec. at 334. The BIA’s error in
Matter of A-R-C-G- was in accepting that concession without
any further inquiry. Id. And had the BIA “properly analyzed
the issues,” Matter of A-B- went on, it would have been “clear
that the particular social group was not cognizable.” Id.
68 DIAZ-REYNOSO V. BARR
(emphasis added). As a result, whether petitioner here
included an “inability to leave” in her proposed group by
mistake or not, it is part of the group as she has defined it, and
such a group is not valid under the anti-circularity principle.
Id. at 334–35.
Of course, it is highly doubtful that the petitioner’s
inclusion of “unable to leave” in her group definition was a
mistake. Had petitioner omitted this phrase, and advanced
only the remaining portions of her proposed group
(“indigenous women in Guatemala”), that may have made it
more difficult for her to meet other requirements for a
particular social group, most notably “particularity” and
“social distinction.” As the First Circuit recently recognized,
the inclusion of “‘unable to leave’ in the group definition”
was likely a response to “[s]ome case law [that] gave rise to
a fear that ‘women,’ or ‘women in country X,’ or even
‘women in a domestic relationship,’ might be too large or too
indistinct a group to serve as a particular social group.” De
Pena-Paniagua v. Barr, 957 F.3d 88, 95 (1st Cir. 2020)
(collecting cases); see also Matter of A-B-, 27. I. & N. Dec.
at 336 (explaining that applicants sought “to avoid
particularity issues by defining a narrow class—such as
‘Guatemalan women who are unable to leave their domestic
relationships where they have children in common’”).
In fact, it was Matter of A-R-C-G-—the very case that
Matter of A-B- overruled—that “held out ‘unable to leave’ as
a supposedly smaller, better-suited safe harbor for women
seeking asylum and withholding of removal.” De Pena-
Paniagua, 957 F.3d at 95. In other words, the petitioner here
almost certainly defined her proposed social group as she did
to match what the BIA in Matter of A-R-C-G- then regarded
as cognizable. The problem is that the Attorney General has
DIAZ-REYNOSO V. BARR 69
since overruled Matter of A-R-C-G- and held “that the
particular social group [there] was not cognizable.” Matter
of A-B-, 27 I. & N. Dec. at 334.
In short, the majority’s suggestion that we can ignore the
petitioner’s reference to harm in her proposed social group is
contrary to settled law. The same is true of the majority’s
determination that we can extract the reference to harm from
the definition of the group and treat is as relevant only to the
social distinction requirement. Today’s decision breaks new
ground in suggesting that any of this is permissible.
C
The majority’s analysis in Parts V.A–B treated a
reference to harm in the definition of a proposed social group
as permissible under Matter of A-B-. In Part V.C, the
majority concludes that the BIA erred in dismissing
petitioner’s appeal because the BIA “assumed her inability to
leave her relationship was attributable to domestic violence,”
when “[t]here are many reasons a petitioner might be unable
to leave a relationship, including a variety of cultural,
societal, religious, economic, or other factors.” Maj. Op.
33–34, 34 n.11 (quotations omitted). The majority holds that
the BIA “avoided the case-specific inquiry demanded by
Matter of A-B-” and failed to “carefully analyze[]”
petitioner’s claim because it “assumed that domestic violence
was the only reason [petitioner] was unable to leave her
relationship.” Id. at 33–34, 36.
I will explain why this is mistaken momentarily. But it is
first important to point out that this rationale is inconsistent
with the rationales in Parts V.A–B. The import of Part V.C
is that if “inability to leave” were based on the harm, the BIA
70 DIAZ-REYNOSO V. BARR
could have denied petitioner’s appeal on this basis as
impermissibly circular. By the logic of this rationale, the
problem instead is that here “inability to leave” may not be
based on harm but on other factors, and the BIA erred by not
considering that possibility.
But if a particular social group can reference harm in the
group definition, then a remand for the reasons given in Part
V.C is unnecessary. Under Parts V.A–B of the majority
opinion, the BIA should be instructed to treat the proposed
group as written as non-circular and to analyze the group only
for its compliance with the other requirements (e.g.,
particularity and social distinction). If the BIA can just
ignore the reference to harm in the proposed group (as a
mistake or otherwise) and treat it as relevant only to social
distinction or some other requirement, there is no reason for
the BIA to now consider whether “inability to leave” may be
a reference to something other than the harm alleged.
Instead, the BIA should be instructed to excise “inability to
leave” and consider whether the proposed social group is
“otherwise cognizable.”
Or we can think of it this way: imagine the BIA had not
made the supposed error that the majority identifies in Part
V.C of its opinion and had even more explicitly regarded
“inability to leave” as based on harm. In that circumstance,
wouldn’t the BIA still have erred under Parts V.A–B of the
majority opinion? The answer apparently is “yes,” because
the majority says that one of the “problems with the BIA’s
reasoning” below is that “the BIA misunderstood Matter of
A-B-’s holding.” Maj. Op. 33. That reasoning would seem to
necessitate a remand separate and apart from any particular
arguments petitioner may have advanced to the BIA about
DIAZ-REYNOSO V. BARR 71
whether her “inability to leave” was based on something
other than domestic violence. Id. at 33.
Regardless, the majority is wrong to hold the BIA erred
by “assum[ing]” that petitioner’s “inability to leave her
relationship was attributable to domestic violence” and
“avoid[ing] the case-specific inquiry demanded by Matter of
A-B- and the BIA’s precedents.” Maj. Op. 33, 36. Petitioner
herself recognizes in her opening brief that in Matter of A-B-,
the Attorney General “specifically rejected the applicant’s
proposed social group of ‘El Salvadoran women who are
unable to leave their domestic relationships where they have
children in common with their partners.’” (Emphasis added).
Applying Matter of A-B-, which the court today upholds
under Chevron, the BIA here simply considered petitioner’s
specific articulation of her proposed social group under the
governing standards.
The BIA recognized that the petitioner’s proposed social
group was “substantially similar to the group in Matter of
A-R-C-G-.” The BIA at this point cited and incorporated the
decision of the IJ, which made clear that the entire basis for
petitioner’s proposed social group was her fear of domestic
violence. For this reason, the BIA could (and did) determine
that as in Matter of A-B-, “inability to leave” here was
“effectively defined to consist of women . . . who are victims
of domestic abuse because the inability ‘to leave’ was created
by harm or threatened harm.” Matter of A-B-, 27 I. & N. Dec.
at 334; see also Larita-Martinez v. INS, 220 F.3d 1092, 1096
(9th Cir. 2000) (explaining “the presumption” that the BIA
“did review the evidence”).
The BIA thus concluded that—because petitioner’s group
definition contained the same “inability to leave”
72 DIAZ-REYNOSO V. BARR
reference—it “suffer[ed] from the same circularity problem
articulated by the Attorney General in Matter of A-B-.” This
was not a “shortcut[],” as the majority claims, Maj. Op. 33,
but an application of Matter of A-B- of the type that has been
routinely affirmed in other circuits. Nor did the BIA offer a
“one-sentence analysis,” as the majority claims. Maj. Op. 32.
The BIA opinion devoted several paragraphs to this issue and
also incorporated two pages of the IJ’s decision.
The majority is thus incorrect in asserting that the BIA
here “committed the very same error it made in Matter of A-
B-.” Maj. Op. 35. Again, the fatal misstep identified in
Matter of A-B- was that the BIA in Matter of A-R-C-G- relied
on concessions to hold a similar proposed group was
cognizable. Matter of A-B-, 27 I. & N. Dec. at 334. In
contrast, the BIA here did the opposite of what the BIA did in
Matter of A-R-C-G-, because here it evaluated petitioner’s
proposed social group under the longstanding anti-circularity
principle that Matter of A-B- reaffirmed. It is hard to
understand why the BIA was required to say more when
petitioner’s claim clearly failed for a specific reason. As the
Fifth Circuit explained in denying a petition with a materially
identical proposed social group to the one here, “[a]s an
adjudicatory body, the BIA necessarily relies on established
precedents to decide matters pending before it and to avoid
re-inventing the wheel every time.” Gonzales-Veliz, 938 F.3d
at 232. And the “BIA did not blindly apply A-B- as a
categorical ban” when “A-B-’s substantive reasoning
happened to squarely foreclose [the petitioner’s] group.” Id.
Of course, even allowing that the vague phrase “unable to
leave” could be based on something other than harm (such as
cultural factors), I am hard-pressed to understand how the
BIA was supposed to derive that nuance from petitioner’s
DIAZ-REYNOSO V. BARR 73
brief to the BIA. Relying on Matter of A-R-C-G-, petitioner’s
counseled brief in the BIA argued that the proposed social
group “‘married women in Guatemala who are unable to
leave their relationship’ may share an immutable trait, where
specific facts demonstrated a woman’s inability to leave her
abusive marriage.” (Emphasis added). Petitioner’s brief to
the BIA then discussed the “repugnant abuse” and “weekly
beatings” at issue in Matter of A-R-C-G- and compared them
to petitioner’s own experience, explaining that petitioner
“[s]imilarly” “demonstrated that she suffered deplorable harm
and abuse by her ‘common law’ husband.” Contrary to the
majority opinion, the BIA thus did not “pluck[] one fact
identified by [petitioner]—that her husband physically abused
her.” Maj. Op. 35. This abuse was the central thrust of
petitioner’s entire submission to the BIA.
The majority opinion nevertheless states that the
petitioner “advanced evidence of economic, societal, and
cultural factors that also may have prevented her from leaving
her relationship.” Maj. Op. 34. But what the majority cites
for this are pages from the petitioner’s brief to the IJ, which
extensively discuss how the “inability to leave” is based on
domestic violence. To the extent petitioner and her expert
cited societal and cultural factors in Guatemala before the IJ,
they repeatedly intermixed them with domestic violence
itself. In other words, petitioner’s own application thus
specifically wove domestic violence into its identification of
the proposed group, at a time when Matter of A-R-C-G- was
the prevailing BIA precedent. But in all events, petitioner
certainly did not present “inability to leave” as a concept
distinct from the harm itself. And presenting the proposed
group in that way would likely have created problems for
other aspects of petitioner’s required showing, such as social
distinction and nexus.
74 DIAZ-REYNOSO V. BARR
Under all these circumstances, I cannot fault the BIA for
not divining an interpretation of “inability to leave” that
petitioner did not clearly advance. On this point, this court
reviews denials of withholding of removal “for substantial
evidence.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017) (quotations omitted). “Under the substantial
evidence standard, the court upholds the BIA’s determination
unless the evidence in the record compels a contrary
conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.
2007). Given the (at best) imprecise nature of the phrase
“inability to leave” and the record in this case, I cannot
conclude that the BIA’s assessment that the proposed social
group was effectively defined by the harm lacks substantial
evidence.5
Finally, the majority errs in premising its own remand on
the BIA’s remand in Matter of A-B-. According to the
majority, “the best indication that [mention of physical abuse]
does not categorically disqualify [petitioner’s] social group is
that the Attorney General remanded Matter of A-B- for the
BIA to conduct a proper analysis, . . . [r]ather than simply
invalidating th[e] group.” Maj. Op. 35. This is not correct.
5
The majority relies on De Pena-Paniagua v. Barr, 957 F.3d at 94,
for the proposition that “[t]here are many reasons a petitioner might be
unable to leave a relationship, including a variety of ‘cultural, societal,
religious, economic, or other factors.’” Maj. Op. 34 n.11. But for this
observation, the First Circuit cited Matter of A-R-C-G-, see De Pena-
Paniagua, 957 F.3d at 94, which the Attorney General of course overruled
in Matter of A-B-. In all events, De Pena-Paniagua theorized that “a
woman’s inability to leave a relationship may be the product of forces
other than physical abuse.” Id. at 93. The question in this case is whether
the record supports such a characterization of the proposed social group.
For the reasons set forth above, the record does not compel the conclusion
that the BIA erred in construing the petitioner’s proposed group in the way
that it did.
DIAZ-REYNOSO V. BARR 75
The Attorney General in Matter of A-B- was unequivocal that
“[h]ad the [BIA] properly analyzed the issues” in Matter of A-
R-C-G-, “then it would have been clear that the particular
social group was not cognizable.” Matter of A-B-, 27 I. & N.
Dec. at 334 (emphasis added). The Attorney General in
Matter of A-B- was therefore not somehow suggesting that
the BIA in any further proceedings that may occur in Matter
of A-B- itself could somehow treat as cognizable the very
proposed social group that Matter of A-B- expressly rejected.
The standard remand language in Matter of A-B- “for further
proceedings consistent with this opinion,” id. at 346, should
thus not be construed as a basis for our court to remand a
petition where the BIA complied with Matter of A-B-.
* * *
In upholding the Attorney General’s decision in Matter of
A-B-, we should have faithfully interpreted it. And in
reviewing the BIA’s decision applying Matter of A-B- to
petitioner’s application, we should have recognized the BIA’s
adherence to an Attorney General decision that is itself based
on longstanding precedent and at the very least reasonable.
The Attorney General in Matter of A-B- emphasized that
under the INA, claims for asylum and withholding of removal
based on domestic violence “are unlikely to satisfy the
statutory grounds for proving group persecution.” 27 I. & N.
Dec. at 320. Today’s decision does not directly quarrel with
that understanding, but it sets forth an internally inconsistent
analytical framework that is at odds with it, and also at odds
with how other circuits have handled this issue.
Where all of this will lead is uncertain. The majority’s
opinion remands this case “for further consideration” so the
BIA can conduct a “case-specific inquiry” under “the
76 DIAZ-REYNOSO V. BARR
required framework.” Maj. Op. 37, 39, 40. The BIA can be
forgiven if it finds this directive unclear. The only certainty
is that these issues will be before us again, as the BIA tries to
comply with both Matter of A-B- and today’s ruling. I
respectfully dissent. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4061218/ | APPLICANT THOMAS RAYMOND CARR APPLICATION NO. 79,620-05
APPLICATION FOR 11.07 WRIT OF HABEAS CORPUS
ACTION TAKEN
DISMISSED. NONCOMPLIANT WITH Tex. R. App. P. 73.1.
JUDGE I ' DATE | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554031/ | Filed 7/30/20; certified for publication 8/7/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LIN JOON OH et al., B297567
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC629958)
v.
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County. John A. Torribio, Judge. Affirmed.
Felahy Employment Lawyers, Allen Felahy; Yash Law
Group and Yashdeep Singh for Plaintiffs and Appellants.
Cozen O’Connor and Nathan Dooley for Defendant and
Respondent Teachers Insurance and Annuity Association of
America.
Lynberg & Watkins, Michael J. Larin and Jerome P.
Doctors for Defendants and Respondents Cushman & Wakefield
Management Corporation, Cushman & Wakefield of California,
Inc., and JRT Realty Group, Inc.
__________________________
SUMMARY
Plaintiffs Lin Joon Oh and Jung Hee Oh are the parents of
Ji Hoon Oh, who died when a hair care product he was handling
exploded and he was engulfed in the resulting fire. His employer
did not know the product was dangerous, and so did not comply
with legal requirements for storing and labeling hazardous
materials, or with provisions in the lease of the premises where
the fire occurred.
Plaintiffs sued the owner and lessor of the premises
(Teachers Insurance and Annuity Association of America or
TIAA) and the companies that managed the property for TIAA
(Cushman & Wakefield Management Corporation, doing business
as Cushman & Wakefield Management Company; Cushman &
Wakefield of California, Inc.; and JRT Realty Group, Inc.,
collectively C&W). Plaintiffs claimed defendants had a duty to
maintain and inspect the area where the employer stored the
product, to ensure the area was safe and in compliance with state
and local ordinances, and should have discovered the product was
hazardous.
The trial court granted motions by defendants for summary
judgment. The court concluded defendants had no duty of care to
the decedent. This was because defendants had no knowledge of
the dangerousness of the product, which was stored in drums
that did not disclose it was hazardous, and was stored in an area
leased to the employer, not in a common area.
We agree there was no evidence defendants had actual or
constructive knowledge the employer was storing and handling a
hazardous material, and defendants therefore owed no duty to
the decedent. We affirm the judgment.
2
FACTS
1. The Background
The decedent worked for I.B.S. Beauty, Inc. (IBS or tenant),
a company wholly owned by its chief executive officer, Daniel
Kim. IBS is a small company that distributes hair care products.
IBS operated its warehousing and distribution business from a
portion of a building on Pioneer Boulevard in Santa Fe Springs,
part of an industrial complex. IBS leased the premises from
defendant TIAA in October 2007, and renewed the lease several
times, including by a third amendment in October 2015.
On March 7, 2016, decedent was dispensing a hair care
product IBS sold as “MOA oil” from a 55-gallon drum to smaller
containers when the drum exploded, and fire engulfed decedent
and the premises. An investigation after the fire revealed that
the hair oil in the drum was highly flammable and volatile, with
a flashpoint of only 18 degrees Fahrenheit. IBS’s owner,
Mr. Kim, had no idea the hair oil was hazardous or highly
flammable until after the fire.
Plaintiffs sued TIAA and C&W, among others.1 Their
operative third amended complaint alleged causes of action for
negligence per se, wrongful death, and a survival action. After
several demurrers and rulings we need not recount, defendants
moved for summary judgment. They contended they owed no
duty to the decedent because they had no knowledge of the
1 TIAA cross-complained against Daniel Kim, and the trial
court granted TIAA’s unopposed motion for summary
adjudication on its cause of action for negligence against
Mr. Kim.
3
hazard, and that plaintiffs’ claim to the contrary relied on a
misinterpretation of the lease agreement.
2. The Evidence
The evidence included matters concerning the tenant’s
(Mr. Kim’s) lack of knowledge of the dangerous nature of the
MOA hair oil; the lease provisions prohibiting hazardous
materials on the premises without the owner’s consent; the lease
provisions describing the premises; and whether defendants were
on notice that a hazardous material was kept on tenant’s
premises. In reviewing this evidence, it may be helpful to bear in
mind plaintiffs’ central contentions, for which the trial court
found there was no supporting evidence: that IBS stored the
hazardous hair oil in a common area that was not a part of the
leased premises, but rather an area defendants controlled and
were obligated to inspect and maintain, and further that
defendants’ property manager saw the drums containing the hair
oil and should have investigated and discovered it was
hazardous.
a. Actual knowledge of the danger
As mentioned, IBS’s owner, Mr. Kim, had no idea the hair
oil was hazardous or highly flammable until after the fire, and
(accordingly) he never told anyone else that the MOA oil was
highly flammable. He repeatedly testified to the same effect, for
example, that “I didn’t think it was dangerous,” and “I thought it
was safe,” and he never told anyone he was handling flammable
materials, and that was because he “didn’t realize that the
materials were at all flammable, explosive, or volatile.”2 On an
2 Mr. Kim’s testimony is uncontroverted. Nevertheless,
plaintiffs purport to dispute it by saying it was common
4
earlier occasion, Mr. Kim himself had transferred MOA oil from
one of the drums to smaller containers.
b. Lease provisions: hazardous materials
The lease defined hazardous materials, and prohibited
tenant from storing or using such materials on the premises
without prior written consent. Mr. Kim signed an environmental
questionnaire and disclosure statement (Exhibit D to the lease),
stating that no hazardous materials—no wastes and no chemical
products—would be used or stored on site. The lease required
tenant to immediately notify the landlord “of any and all
changes” occurring after tenant’s delivery of the completed
environmental questionnaire. The lease also made the tenant
responsible for complying with any and all applicable laws,
regulations or ordinances pertaining to hazardous materials
“which impose any duty upon Landlord or Tenant directly or with
respect to the use or occupation of the Premises.” In the third
knowledge that the MOA oil “was dangerous and hazardous.”
They cite testimony from Sammy Lee, Mr. Kim’s uncle. Mr. Lee
worked as a consultant for IBS “on a lot of aspects of the business
regarding sales, distributors, representation, a lot of design work,
photography, marketing.” He testified that “everybody knows
that oils are flammable whether it be motor oil or cooking oil, oils
are all flammable therefore it is just common sense.” He did not
testify that MOA oil was dangerous or hazardous—quite the
contrary. He saw no reason to tell customers that hair oils are
flammable; some of the labels on competitors’ products stated
they were flammable but the majority did not. “I assumed that it
was common sense that it is flammable so therefore don’t use it
near open flames.” This testimony does not create a material
dispute.
5
amendment to the lease, in effect at the time of the fire, the
tenant reaffirmed and warranted that as of the date of the
amendment, the representations contained in the environmental
questionnaire and disclosure statement “attached to the Lease as
Exhibit D” were true and accurate, and that tenant was in
compliance with all applicable laws.
c. Lease provisions: the premises
The “basic lease provisions” (art. I) described the premises
as: “That portion of that certain free standing Building located at
10015 S. Pioneer Boulevard, Santa Fe Springs, California 90670,
consisting of approximately 5,025 square feet, as further
described on Exhibit A attached hereto.” Similarly, article II of
the lease defined “ ‘Premises’ ” as “the premises described in [the
basic lease provisions] as further shown on Exhibit A for the
exclusive use of Tenant.”
Exhibit A was entitled “Description of Premises” and
contained an illustration of the premises showing both the
building and an adjacent “Fenced Area.” A copy of Exhibit A is
attached at the end of this opinion. Exhibit A stated it was
“intended only to show the general layout/location of the
Premises as of the beginning of the Term of this Lease,” was
“intended for illustrative purposes only” and was not to scale.3
3 Plaintiffs assert that in the third amendment to the lease
(in effect at the time of the fire) “no reference was made to an
exhibit or other drawing or depiction describing the premises.”
This is irrelevant because the third amendment did not change
the definition of the premises, and it incorporated the original
lease, also specifying that all capitalized terms defined in the
lease had the same meaning in the amendment.
6
Mr. Kim testified that Exhibit A was “a fair representation
of the premises that [he] had leased.” At his deposition, he also
drew a diagram of the leased premises and the neighboring
property, showing the fenced area and explaining that there was
a roll-up chain door they could open during the day for trucks to
come in and out, and “you just close it before you go home,” and
“we had a lock on there.” (The parties sometimes refer to the
fenced area as the “fenced yard.”)
The lease defined “ ‘Outside Areas’ ” as “the areas of the
Project [the industrial complex] outside the exterior walls of the
Premises, including, without limitation, the roof of the Premises,
commonly referred to as common areas.” The landlord was
responsible for maintaining the outside areas, “including but not
limited to, landscaping (including replacement thereof), sprinkler
systems, walkways, parking areas, and approved signage.”
d. Evidence about the 55-gallon drums
Plaintiffs’ opposition papers contended the evidence showed
defendants’ senior property manager, Heather Montrone,
observed multiple light-blue 55-gallon drums in the fenced yard
prior to the fire, with labels identifying the contents as “KF-
9008.” According to plaintiffs, this put defendants on notice that
the substance in those drums was a hazardous material, yet
Ms. Montrone took no steps to remove them or investigate their
contents. The actual evidence about the drums was as follows.
In September 2015, Mr. Kim received, from a new supplier
in South Korea, three light-blue, metal, 55-gallon drums
containing the MOA hair oil. He had changed suppliers to reduce
costs, and had never before ordered or received MOA oil in a 55-
gallon drum. The three drums were marked “Made in Japan”
and “KF-9008.” (Mr. Kim was concerned about the “Made in
7
Japan” label, and testified the Korean supplier assured him the
drums contained his MOA oil, and the supplier had reused drums
that previously contained something else.)
At the time of the explosion, two of the three light-blue
metal drums were inside the building. The decedent was
dispensing the MOA oil from one of them. The third, empty drum
was in the fenced yard, and had been there for one or two
months. (Mr. Kim testified that “we just never got around to
[discarding] it,” and “just left it out there because it’s our space
that we can utilize.”)
Christopher Gardea, a fire inspector who investigated the
fire, found all three drums on the premises. He too testified the
drum out in the yard was empty. He did not recall seeing a
hazardous materials placard or warning anywhere on that drum.
He could not say whether the three drums were all identically
labeled, because some of the labeling (on the two drums that were
inside the building) was destroyed in the fire. The empty drum
in the fenced area was labeled “KF-9008,” but tests of the
substance in the drum that remained intact inside the warehouse
showed it had a flash point of 18 degrees Fahrenheit, much lower
than the flash point for KF-9008 (according to Mr. Gardea,
170 degrees Fahrenheit).4
There is a photograph in the record (an exhibit to Mr. Kim’s
deposition) that shows the fenced yard, with 11 drums in it.
Mr. Kim testified that he had received 55-gallon dark-blue plastic
drums in the past, but could not remember when, or from what
4 Under section 202 of the California Fire Code, liquids with
a flash point below 73 degrees Fahrenheit are categorized as
Class I flammable liquids. (Cal. Code Regs., tit. 24, pt. 9, § 202.)
8
manufacturer. (Those dark-blue plastic drums are not at issue in
this case; the MOA oil came in three light-blue metal drums.)
There is no evidence there was ever any drum containing MOA
oil stored in the fenced yard—only the one empty drum.
Ms. Montrone was responsible for oversight and
management of properties in the industrial complex, including
the leased premises. She or another staff member inspected the
common areas by way of a “landscape walk” on a quarterly basis.
When questioned about looking to see what was inside the
fenced yard, Ms. Montrone said that “I don’t remember
specifically looking in to see what was in there, but I am sure
that I’ve walked by and seen stuff that was inside.” She said,
“They would have pallets, the blue plastic drum I’ve seen. That’s
really all I can recall. I do this with so many tenants. I don’t
remember specifically.” When asked if she remembered “seeing
the blue plastic drums prior to the fire,” she replied, “Correct.”5
5 At Ms. Montrone’s second deposition, on April 23, 2018
(taken in her capacity as defendants’ person most
knowledgeable), plaintiffs’ counsel drew Ms. Montrone’s attention
to her previous testimony that she remembered seeing “the blue
plastic drums” prior to the fire. Counsel then showed her the
photograph of the fenced area (mentioned in the text, ante) that
shows the fenced area with 11 drums in it. Counsel asked
Ms. Montrone if “that [is] what you were referencing when you
testified that way, these particular drums in this picture?” She
replied, “[n]ot in this picture but similar drums.” Counsel asked
how many drums she saw, and Ms. Montrone said, “I don’t
know.” She further stated, “I may have seen one. These are
behind the fence, and if I was driving by, I would not have
stopped to count how many drums there were.” Counsel asked,
“You saw more than one; is that correct?” Ms. Montrone
9
Counsel asked, “[A]fter seeing those blue drums in that
yard, did you ever ask the tenant what those were?” and
Ms. Montrone said, “No.” This was because “[t]hey were
unmarked, and a large number of our tenants use them for a
variety of reasons,” such as water storage. Counsel asked
Ms. Montrone if she was “concerned that there were products
being stored in the outside area that might, in fact, be
hazardous?” She replied, “No,” and that she took no steps to find
out what was being stored in the outside area. She testified that
she “didn’t need to know what was in the drums.”
3. The Trial Court’s Decision
The court granted defendants’ motions for summary
judgment. The court found defendants provided “ample evidence
of lack of knowledge that the drums contained hazardous
materials”; it was “uncontroverted that the subject barrel was
mismarked and did not in any way disclose its dangerousness”;
and that “a fair reading of the lease clearly shows that the fenced
in area belongs to [the tenant].” The court also concluded that a
landlord is not liable for a tenant’s violation of an ordinance, so
plaintiffs’ claim of negligence per se had no merit.
The trial court entered judgments for defendants, and
plaintiffs filed timely notices of appeal.
answered, “I don’t recall.” She said, “I remember seeing a drum.
I don’t know how many.” When pressed to make an estimate, she
said, “I would say one.” There was only one “[t]hat I distinctly
remember seeing.” She remembered it because “[i]t was near the
opening of the fence; so I happened to see it going by the
building.”
10
DISCUSSION
We agree with the trial court that the evidence shows no
triable issue of material fact, and defendants were entitled to
summary judgment.
1. Appellate Motions
Two motions were filed during appellate briefing.
First, on March 25, 2020, defendants filed a motion to
augment the record with six volumes of documents, consisting of
a petition for writ of mandate with accompanying exhibits, filed
(and denied) earlier in the litigation. These documents are in the
trial record, but not all are in the appellate record. Defendants
say that in the first two pages of their opening brief, plaintiffs
improperly refer to matters that are not in the appellate record,
inaccurately characterizing several of the trial court’s demurrer
rulings. Defendants further argue plaintiffs made allegations in
earlier versions of the operative complaint that were omitted or
altered in the operative complaint, and that these are judicial
admissions (for example, allegations to the effect that the drums
were not labeled as hazardous, and that safety data sheets
supplied with the MOA oil were false). These claimed
admissions, defendants say, support their arguments and
undermine arguments plaintiffs make in their opening brief.
We deny the request to augment the record. The demurrer
pleadings and rulings are not relevant to this appeal. The only
record we require is the record of the summary judgment
proceedings, and the court is able to distinguish legal and factual
mischaracterizations when they are present. The record we have
sufficiently demonstrates the absence of material factual
disputes.
11
Second, on June 17, 2020, defendants filed a motion to
strike portions of plaintiffs’ reply brief. In that brief, plaintiffs
attached as an exhibit a page from the transcript of
Ms. Montrone’s deposition testimony, stating it had been omitted
from the appellate record. In fact, plaintiffs were mistaken; that
page of testimony is in the appellate record, twice, and has been
reviewed in normal course. We deny the request to strike the
exhibit from the record.
Defendants also ask us to strike plaintiffs’ references to the
declaration of Daniel Kim, on pages 15 through 16 of plaintiffs’
reply brief. We grant this request because Mr. Kim’s declaration
was not part of the record before the trial court.
The following summary of the background of the
declaration of Daniel Kim explains why we grant defendants’
request to strike it from the record of this appeal. TIAA
separately moved for summary adjudication of its cross-complaint
for negligence against Mr. Kim (see fn. 1, ante). That motion was
to be heard on the same dates as the motions against plaintiffs.
Mr. Kim did not oppose TIAA’s motion, and TIAA duly filed a
notice of nonopposition. Then, on September 7, 2018 (two weeks
after the first of the two hearings on the motions now under
review), Mr. Kim filed a motion for leave to file an opposition,
including his own proposed declaration. The declaration stated,
among other things, Mr. Kim’s understanding that IBS was
leasing only the building, not the fenced area. Mr. Kim’s motion
to file a late opposition and ensuing ex parte motions were
denied.
Meanwhile, on September 10, 2018, plaintiffs filed a
supplemental request for judicial notice of Mr. Kim’s declaration,
as a record of the court (Evid. Code, § 452, subd. (d)). In its
12
summary judgment ruling, the court granted all parties’ requests
for judicial notice “as to the existence of the documents, but not
as to any hearsay statements contained therein.”
Under these circumstances, we cannot consider the content
of Mr. Kim’s declaration. The trial court never granted Mr. Kim
permission to file any opposition to TIAA’s motion, specifically
denying Mr. Kim’s motions, and expressly granting TIAA’s
motion as “unopposed.” That necessarily means the declaration
was not part of the evidence on TIAA’s motion for summary
adjudication against Mr. Kim. Still less can it serve as evidence
in opposition to the entirely separate motions now under review.
The trial court’s judicial notice that the declaration exists
gets plaintiffs nowhere. “While we may take judicial notice of
court records . . . , the truth of matters asserted in such
documents is not subject to judicial notice.” (Arce v. Kaiser
Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482;
see also Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th
664, 689, fn. 22 [“[W]hile court records may be the subject of
judicial notice under Evidence Code section 452, subdivision (d),
we ‘may take judicial notice of a court’s action, but may not use it
to prove the truth of the facts found and recited.’ ”].) In short,
Mr. Kim’s declaration was not a part of the evidence before the
trial court, and for that reason, we grant defendants’ motion to
strike plaintiffs’ references to that declaration.
2. The Standard of Review
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
13
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.) On appeal, “we take the facts from the record that
was before the trial court . . . . ‘ “We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037, citation omitted.)
3. Contentions and Conclusions
a. The procedural claim
Plaintiffs’ first argument is that we cannot consider TIAA’s
motion for summary adjudication of the wrongful death and
survival causes of action. They say TIAA’s separate statement
did not comply with California Rules of Court, rule 3.1350(b) and
(d)(1), because it did not separately identify each cause of action
and each material fact supporting that cause of action. The
wrongful death and survival claims are derivative of the
negligence claim, and cannot succeed if plaintiffs’ negligence
claim is dismissed, because all three causes of action rest on the
same facts. Plaintiffs insist that failure to comply with the
separate statement rules is a sufficient ground for denying
TIAA’s motion, citing Code of Civil Procedure section 437c,
14
subdivision (b)(1). They omit to recite that it is a sufficient
ground “in the court’s discretion.” (Ibid.) It would be an abuse of
our discretion to refuse to review the grant of summary
adjudication of the wrongful death and survival causes of action
in this case.
b. The negligence per se claim
Plaintiffs’ second argument is that under the negligence
per se doctrine, negligence is presumed if the defendant violated
a statute or regulation, injury resulted from an occurrence the
regulation was designed to prevent, and the injured person was
among those the regulation was adopted to protect. They cite
authority that whether a person has violated a statute or
regulation is a question of fact (Spriesterbach v. Holland (2013)
215 Cal.App.4th 255, 263-264). So far, so good, but then
plaintiffs tell us there is “overwhelming evidence” that
defendants violated numerous fire safety regulations and
ordinances. In fact, there is none.
Plaintiffs assert defendants violated Fire Code provisions
that require an operational permit “[t]o store, handle or use
Class I liquids,” and “to store, transport on site, dispense, use or
handle hazardous materials,” in excess of certain amounts. As is
apparent from our fact recitation, there is no evidence defendants
did any of those things.6 Nor is there any evidence that
6 The two permit requirements appear in the 2013 edition of
the California Fire Code (in effect at the time of the fire), then-
sections 105.6.16 and 105.6.20 of part 9 of title 24 of the
California Code of Regulations. (Title 24 is also referred to as the
California Building Standards Code; part 9 is the Fire Code.)
Plaintiffs also say defendants violated two other Fire Code
provisions requiring a permit application to contain certain forms
15
defendants knew IBS was storing and using hazardous materials.
The evidence is undisputed that before the fire, even Mr. Kim did
not know that he had brought hazardous materials on the
premises, so he could not have conveyed that information to
defendants.
Undeterred by the absence of facts to support the asserted
Fire Code violations, plaintiffs tell us the permit requirements
have no “scienter requirement” and that ignorance of the law
requiring a permit is no excuse. Obviously, the pertinent point is
that defendants did not know the facts—that IBS was storing
hazardous materials—not that defendants did not know the law.
Plaintiffs offer no authority to support their apparent position
that owners are strictly liable for what their lessees do.7
with specified information (§§ 407.5 & 5001.5.2), and another
that states safety data sheets shall be readily available on the
premises for hazardous materials (§ 5003.4). These regulations
are even further afield.
7 Plaintiffs cite Grant v. Hipsher (1967) 257 Cal.App.2d 375
for the proposition that liability for a violation of the Fire Code
can be imposed on defendants even though they were not in
possession of the premises. That is not the issue here, where
defendants were unaware of the hazardous materials. In Grant,
a county ordinance required premises with a swimming pool to be
fenced with self-closing and self-latching access gates. The
tenant, with the lessor’s knowledge and using lessor-provided
materials, installed a fence with a gate that was not self-closing
and self-latching, and a neighbor’s child died in the pool. (Id. at
pp. 377-379.) The court applied the principle that “where a
tenant makes a structural change which is in violation of safety
regulations and the owner has knowledge of the change, a duty is
imposed upon the owner to terminate the tenancy or compel the
16
Plaintiffs then insist that defendants violated section 109.2
of the 2013 Fire Code. That section (now section 110.2) makes
the owner responsible for correction and abatement of violations
of the code. It further provides that if an occupant “creates, or
allows to be created, hazardous conditions in violation of this
code, the occupant shall be held responsible for the abatement of
such hazardous conditions.” Section 109.2 followed section 109.1
(“[u]nlawful acts”)—the code provision that makes conduct in
violation of the code unlawful. Section 109.1 (now section 110.1)
makes it unlawful “for a person, firm or corporation to . . . utilize
a building, occupancy, [or] premises . . . regulated by this code, or
cause same to be done, in conflict with or in violation of any of the
provisions of this code.”8
It was not defendants who utilized the premises in
violation of the Fire Code, or caused that to be done—it was IBS.
In any event, it does not matter whether Fire Code former
section 109.2 made both owner and occupant responsible for
abatement. Responsibility for correcting and abating a violation
of the code is not the same thing as creating the hazardous
condition that violates the code. It seems clear that a property
owner may be responsible for correcting and abating violations of
tenant to comply with the regulations.” (Id. at p. 381.) The
circumstances here are in no way comparable.
8 Section 109.1 of the 2013 Fire Code stated, in its entirety:
“It shall be unlawful for a person, firm or corporation to erect,
construct, alter, repair, remove, demolish or utilize a building,
occupancy, premises or system regulated by this code, or cause
same to be done, in conflict with or in violation of any of the
provisions of this code.”
17
the code, once notified of the violation (see section 109.3, now
section 110.3), or if the owner is otherwise aware of the violation.
But we know of no authority for the proposition that an owner
violates section 109.2 of the Fire Code—requiring it to correct
violations—if it does not correct a code violation it did not commit
and does not know, or have reason to know, existed. (We discuss
and reject plaintiffs’ assertion there was evidence defendants
should have known of the presence of hazardous materials, post.)
Nor do plaintiffs point to any such authority.
In short, plaintiffs have offered no evidence of a statutory
or regulatory violation by defendants, so there is no basis for
their negligence per se claim.
c. The claims of control and knowledge
Plaintiffs’ third argument is that, even without the
negligence per se doctrine, defendants as property owners owed a
duty to use ordinary care to prevent injury to the decedent, as an
employee of the tenant. This argument is founded on claims that
the fenced yard was a common area that defendants were
responsible for inspecting and maintaining, and on purported
evidence that defendants knew IBS was storing and handling
hazardous materials. Neither argument has merit.
i. The control claim: the fenced area
Interpretation of a contract is “solely a judicial function . . .
unless the interpretation turns upon the credibility of extrinsic
evidence.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d
861, 865.) “A contract must be so interpreted as to give effect to
the mutual intention of the parties as it existed at the time of
contracting” (Civ. Code, § 1636), and terms may be explained by
course of performance (Code Civ. Proc., § 1856, subd. (c)).
18
We refer the reader to our description of the lease
provisions in part 2.c. of the facts, ante at pages 6 through 7. We
will not repeat that recitation here, except as necessary to
express our agreement with the trial court’s construction of the
lease, namely, that the leased premises included the fenced area
shown on Exhibit A to the lease. The premises were defined as
that portion of a building consisting of 5,025 square feet, “as
further shown on Exhibit A for the exclusive use of Tenant.”
Exhibit A states it was intended for illustrative purposes only,
and it serves that purpose well—it clearly illustrates both the
building and the fenced area. We see no other reasonable
interpretation of the lease, the provisions of which we construe as
a whole, not in isolation.
To the extent there is any ambiguity in the lease—such as
by virtue of the lease’s definition of “outside areas” (common
areas) that defendants controlled—the intention of the parties on
the point is clear from Mr. Kim’s testimony that Exhibit A was
“a fair representation of the premises that [he] had leased.” And,
both parties conducted themselves in accordance with that
intention. Mr. Kim locked up the area after the close of business,
and Ms. Montrone testified that, on her quarterly landscape
walks, “[w]e do not go in the fenced yard,” even if the fence is
open, and that the fenced-off yard was “for tenant use only, and
that’s how we operate.”
Plaintiffs insist that Ms. Montrone “admitted in deposition”
that the fenced area was an “outside area” and therefore
defendants were responsible for maintaining it. That is arguably
inconsistent with the facts to which she testified, but her
19
testimony on a legal issue is irrelevant.9 The legal implications of
language in a lease is for the court to decide, based on the
document itself and admissible extrinsic evidence.
Ms. Montrone’s testimony to a legal conclusion has no
significance.
ii. The knowledge claim
Plaintiffs assert defendants had a duty to decedent because
they knew the hazardous liquid was stored, handled and
dispensed on their property. To the contrary, there is no evidence
defendants knew, and there is no evidence they should have
known.
We have recited the evidence that Mr. Kim had no idea he
was handling hazardous material at the premises (see pt. 2.a. of
the facts, pp. 4-5 & fn. 2), and we will not repeat ourselves. He
could not have conveyed what he did not know to defendants.
That brings us to the claim defendants should have known
of the danger, and “had an opportunity and the means to prevent
the explosion.” That, too, is unsupported by the evidence.
9 Ms. Montrone was questioned in detail about the meaning
of the lease provision defining “outside areas.” Then counsel
asked, “And you understood that the landlord was responsible for
maintaining that yard, because it was outside the four concrete
walls; isn’t that true?” She answered (over counsel’s objections),
“My understanding is that we would maintain the asphalt or the
fence if there were a problem with the fence, but nothing that is
tenant property, you know, by the fence area.” Plaintiffs’ counsel
moved to strike that answer as nonresponsive, and Ms. Montrone
then answered the same question, over the same objections,
“Yes.”
20
The evidence is clear there were only three light-blue metal
drums containing the hazardous MOA oil. Only one of them was
stored in the fenced area—an empty one. It was labeled “Made in
Japan” and “KF-9008.” There is no evidence it had any markings
showing its contents were dangerous or hazardous. There is
evidence Ms. Montrone might have seen this drum while walking
past the fenced area, but there is no evidence she saw any of the
labels on the drum. Indeed, she testified the drums she saw
“were unmarked.” Whether she saw that drum, or also saw
multiple blue plastic drums (which, unlike the metal drums, did
not contain MOA oil), she had no cause to think it or they posed
any danger to anyone.
Even if it were permissible to infer Ms. Montrone saw the
KF-9008 label on the empty blue metal drum in the fenced area,
that label without more does not even hint at a possible danger,
and cannot generate a duty to investigate to determine what “KF-
9008” means. Plaintiffs tell us that a Google search of KF-9008
would have led to a company’s website that identifies the two
components of KF-9008, one of which is cyclopentasiloxane,
which (plaintiffs tell us) is flammable. But the mismarked drum
did not in any way disclose that KF-9008 was a flammable or
dangerous substance and, as the trial court observed, “[t]his fact
answers all other questions regarding duty and liability.” The
court concluded, and we agree, that there is no authority
requiring a landlord to conduct research or otherwise investigate
the contents of containers that present no indication of possible
hazards.
Plaintiffs insist defendants had a right and a duty to
inspect the premises at the time the lease was renewed in
October 2015, when the three drums of MOA oil had already been
21
delivered to IBS. This gets plaintiffs nowhere either. “The
obligation to inspect arises ‘only if [the landowner] had some
reason to know there was a need for such action.’ ” (Garcia v.
Holt (2015) 242 Cal.App.4th 600, 605.) And, as we have seen, an
inspection would have revealed nothing marked hazardous or
dangerous. “The landlord need not take extraordinary measures
or make unreasonable expenditures of time and money in trying
to discover hazards unless the circumstances so warrant.” (Mora
v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 782.)
There was no evidence of any such circumstances here.
In sum, there is no theory under which defendants owed a
duty of care to decedent. The trial court properly entered
summary judgment.
DISPOSITION
The judgments are affirmed. Defendants shall recover
their costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
22
23
Filed 8/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LIN JOON OH et al., B297567
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC629958)
v. ORDER CERTIFYING
OPINION
TEACHERS INSURANCE AND FOR PUBLICATION
ANNUITY ASSOCIATION OF
AMERICA et al., [No change in judgment]
Defendants and Respondents.
THE COURT:
The opinion in the above-entitled matter filed on July 30,
2020, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
There is no change in the judgment.
____________________________________________________________
BIGELOW, P. J. GRIMES, J. STRATTON, J. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1975247/ | 150 Pa. Commw. 431 (1992)
615 A.2d 993
Ronald TOMCZAK, Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PRO-AIRE TRANSPORT, INC.), Respondent.
PRO-AIRE TRANSPORT, INC., Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TOMCZAK), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs July 17, 1992.
Decided September 10, 1992.
*432 Michael D. Schaff, for petitioners.
Audrey L. Jacobsen, for respondent.
*433 Before DOYLE and FRIEDMAN, JJ., and BARRY, Senior Judge.
BARRY, Senior Judge.
Ronald Tomczak, the claimant, and Pro-Aire Transport, Inc., the alleged employer, have each appealed an order of the Workmen's Compensation Appeal Board (the Board) which affirmed a decision of the referee denying the claimant benefits.
The claimant, an owner of a tractor, was hauling goods for Pro-Aire, an interstate common carrier, when he was injured in April of 1987. At that time, he was assisting in the loading of Pro-Aire's trailer when he was struck by a fork-lift operated by an employee of General Foods, a customer of Pro-Aire. The injury occurred at a plant of General Foods located in Hazleton, Pennsylvania. The claimant continued to drive for approximately six weeks despite continuing increasing pain. During that period, the claimant was treated by a number of physicians; in July of 1987, he was referred to Dr. Merylee E. Werthan, a board certified neurological surgeon. After extensive examination, Dr. Werthan operated on the claimant in August of 1987 to remove a herniated disc. Dr. Werthan testified that she believed the herniated disc was caused by the incident when the claimant was struck by the fork-lift; she also offered the opinion that the claimant's injuries prevented him from engaging in cross-county truck driving and the heavy lifting involved in the loading of the trailer. While Pro-Aire cross examined Dr. Werthan, it did not present any medical evidence.
The claimant also testified before the referee. In addition to describing his injury, surgery and the problems which resulted therefrom, he testified concerning his relationship with Pro-Aire. He testified that Pro-Aire's logo was on his tractor and that he registered the tractor in Pro-Aire's name while retaining title to the vehicle himself. Pro-Aire also designated his travel routes, required him to call in to its dispatcher on a daily basis and secured all of the loads which the claimant hauled. The claimant testified that he was paid *434 on the basis of a percentage of each load hauled. John Vance and Mildred Vance, the co-owners of Pro-Aire also testified in an attempt to show that the claimant was an independent contractor with, rather than an employee of, Pro-Aire. Both testified that the claimant established his own routes. Furthermore, Mrs. Vance testified that Pro-Aire did not hire truck drivers, acting instead as a truck broker. Mr. Vance also testified that the sole purpose of placing Pro-Aire's logo on the tractor was to comply with legal technicalities involved in interstate trucking. At the hearing, a document evidencing the agreement between the claimant and Pro-Aire was introduced which specifically stated that the claimant was an independent contractor and not an employee. The claimant testified that he was required to sign a number of documents at the time he signed on with Pro-Aire and that he never read the contract.
The referee specifically found the claimant to be credible in his description of his relationship with Pro-Aire. Based upon factual findings supported by the claimant's testimony, the referee concluded that an employment relationship existed between the claimant and Pro-Aire. Nonetheless, the referee made the following relevant factual findings:
10. The Referee finds that Claimant's injury on April 16, 1987 did not render him disabled and was not the cause of his subsequent herniated [disc] (sic) and subsequent disability.
11. The referee rejects the deposed expert medical testimony of Claimant's treating neurological surgeon, Dr. Merylee E. Werthan, who testified that as a result of Claimant's April 16, 1987 injury, Claimant sustained a herniated disc with nerve root pain into the right leg.
. . . .
14. The referee finds that any complaints and or disability were not causally connected to, or the result of, his alleged April 16, 1987 injury to his back.
(Referee's decision, 6/18/90). The referee went on to conclude that "[t]he claimant has failed to meet his burden of proving with substantial competent medical evidence that on April 16, *435 1987, or at any time while in [Pro-Aire's] employ, he sustained an injury which rendered him disabled." Id.
On July 13, 1987, the claimant appealed the June 20 decision of the referee to the Board. On July 25, 1987, Pro-Aire filed a protective cross appeal, alleging that the referee had erred in concluding that the claimant was a Pro-Aire employee. The Board affirmed, holding that the referee had rejected the claimant's medical evidence on credibility grounds. Because of that holding, the Board held that it was unnecessary to discuss Pro-Aire's appeal and the question of the claimant's status. The claimant filed his petition for review to this court on October 16, 1991 and Pro-Aire filed its cross petition for review nine days later.
The claimant first argues that the referee erred by capriciously disregarding the testimony of Dr. Werthan, relying upon our decision in McGarry v. Workmen's Compensation Appeal Board (Morrissey), 146 Pa.Commonwealth Ct. 594, 606 A.2d 648 (1992). Before discussing this question, however, we must respond to Pro-Aire's argument that the capricious disregard standard is not applicable. As this court has pointed out in Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987), that standard of review is applicable only where the party with the burden of proof is the sole party to present evidence yet loses before the factfinder. It is well settled that an injured employee seeking benefits via a claim petition is required to prove by unequivocal medical evidence, inter alia, that any disability was caused by a work related injury unless that relationship is obvious. Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa.Commonwealth Ct. 202, 465 A.2d 132 (1983). Pro-Aire thus argues that it presented evidence before the referee, thus negating the applicability of the capricious disregard standard. We cannot agree. While Pro-Aire did present evidence on the question of whether the claimant was an employee or independent contractor, it presented no evidence on the medical questions involved in this case. We thus are compelled to review the question of whether the claimant met *436 his burden of proving a work related disability under the standard of capricious disregard.[1]
In McGarry, the injured employee offered medical evidence, in the form of two reports from different physicians, in support of his burden which if believed was sufficient to meet his burden of proof. The referee in that case denied the claim petition, "rejecting" the opinion of one of the doctors and failing to discuss the second. While recognizing the well accepted principle that a referee is the sole arbiter of credibility, the majority of this court refused to equate the referee's "rejection" of the claimant's medical evidence with a finding that the evidence was not believable. Because of this holding, we are required to conclude that the Board here erred in affirming the referee's denial of benefits when it held that the referee's rejection of Dr. Werthan's opinion was a credibility decision. While the "rejection" of evidence on the ground that the evidence is not credible is beyond our review, we cannot infer such a determination here.
We cannot agree with the claimant, however, that a reversal is mandated. In McGarry, the majority noted that "[w]hen a referee makes vague findings of fact or fails to make credibility determinations, the case is normally remanded to the referee." Id. at 601, 606 A.2d at 652. While the court held that the facts of McGarry negated the need for a remand, we believe the facts of the present case are distinguishable from McGarry, thereby requiring the normal remand.
In that case, the court pointed out that the referee in one instance made a factual finding that was supported by the medical evidence which he nonetheless "rejected". Furthermore, the majority pointed out that medical evidence was not necessary there to establish that the injury was work related; the claimant experienced pain in his back while doing heavy work. Relying upon Morgan v. Giant Markets, Inc., 483 Pa. 421, 397 A.2d 415 (1979), the majority held that the causal *437 connection there was obvious. Finally, in McGarry, the referee made a specific finding that the injury was a recurrence of an old injury, a finding which found no support in the record. In fact, the record showed that the old injury was at left L5-S1 while the injury for which compensation was being sought was at right L4-5. In the present case, none of these oddities are present. There was no obvious causal connection between being struck by a fork lift and a herniated disc. Furthermore, the referee here did not attempt to attribute the disability to some non work related incident; he merely found that the disability was not work related, a finding which could be supported if the referee in fact meant to state that he did not believe Dr. Werthan's testimony on the crucial issue. Finally, there are no factual findings made by the referee which are supported by Dr. Werthan's testimony on causation. As we believe the present case is distinguishable from McGarry, we believe that a remand is the proper course to follow.
Pro-Aire has also filed an appeal to protect its claim that the referee erred in concluding that the claimant was its employee. The claimant has argued that Pro-Aire's initial appeal to the Board should be quashed because it was not filed within twenty days of the referee's decision as required by Section 423 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 853. We need not decide this question, however, as Pro-Aire's appeal to this court must be quashed for another reason. As we recently stated in Mahanoy Area School District v. Budwash, 146 Pa.Commonwealth Ct. 72, 76, 604 A.2d 1156, 1159 (1992):
Generally only an `aggrieved' party has standing to appeal. Pa.R.A.P. 501. Where a party is successful in the trial court, that party is not aggrieved and, therefore, has no standing to appeal. Police Pension Fund Association Board v. Hess, 127 Pa.Commonwealth Ct. 498, 503 n. 5, 562 A.2d 391, 394 n. 5 (1989). We have specifically stated that `[m]ere disagreement with the ... legal reasoning [of the tribunal whose order is being reviewed] ... does not confer standing [to appeal]....' Middletown Township v. Pennsylvania *438 Public Utility Commission, 85 Pa.Commonwealth Ct. 191, 210, 482 A.2d 674, 685 (1984).
Just as in that case, Pro-Aire simply was not aggrieved by the order of the Board which affirmed the referee's denial of the claimant's claim petition. Therefore, its appeal must be quashed.
Having quashed the appeal, we may nonetheless proceed to discuss the question. As Pro-Aire presented this issue to both the Board and this court in its briefs to each tribunal, it has done all that is required to preserve the question. Furthermore, if the claimant was not an employee of Pro-Aire, we would not have to remand as Pro-Aire would prevail on that ground. We do not believe that the referee erred in concluding that the claimant was an employee of Pro-Aire.
The referee made the following relevant findings of fact on this question.
2. The Referee finds that the Claimant was the owner of a tractor and pursuant to an equipment contract, began hauling goods for Defendant who is an inter-state common carrier.
3. The Referee finds that the Defendant's logo appeared on Claimant's tractor and on Defendant's trailer, and that before Claimant began hauling for Defendant, he had to register his tractor in Defendant's name and did in fact have the tractor's license plate changed to an Arizona license in the name of the Defendant, although Claimant retained title to his vehicle.
4. The Referee finds that Defendant designated the travel routes Claimant was to use, required Claimant to call in daily, and to keep a log of his trips.
5. The Referee finds that the equipment contract provided that before Claimant could haul for any other carrier, he had to first clear with or satisfy his obligations to Defendant.
6. The Referee finds that although the equipment contract required Claimant to obtain workmen's compensation insurance *439 the Defendant's general manager answered Claimant that Defendant would `take care of the insurance.'
7. The Referee finds that all loads hauled by Claimant were secured by Defendant and were in fact customers of Defendant.
. . . .
16. The Referee rejects the testimony of Mildred Vance, co-owner of Defendant's company, who testified that Pro-Aire Transport does not hire truck drivers but is a truck broker, and that `the owner-operator' i.e., Claimant established his own route.
17. The Referee rejects the testimony of John Vance, Defendant's co-owner and Chief Executive Officer, who testified that the purpose of placing Pro-Aire Transport decals, logos and license plates on Claimant's tractor was to identify the `particular power unit,' and that `the owner-operator' i.e., Claimant established his own routes.
(Referee's decision, 6/18/90).
The burden of proving that a claimant is an employee is on the claimant. J. Miller Co. v. Mixter, 2 Pa.Commonwealth Ct. 229, 277 A.2d 867 (1971). Except for the two findings of fact rejecting the testimony of the two co-owners, the other findings of fact are based upon the claimant's own testimony. Furthermore, it is important to note that Pro-Aire does not allege that these findings lack support in the record. Based upon these findings, we are persuaded that the claimant was an employee of Pro-Aire.
While cases of this type are decided on a case by case basis, a crucial element in any decision involves "whether the alleged employer had the right to control the work to be done and the manner in which the work is performed." North Penn Transfer, Inc. v. Workmen's Compensation Appeal Board (Michalovicz), 61 Pa.Commonwealth Ct. 469, 472, 434 A.2d 228, 229 (1981). Each side offers two cases as support for their respective positions.
The employer argues that this case is controlled by Mixter and Douglas v. Workmen's Compensation Appeal Board *440 (Dennis Trucking Co.), 40 Pa.Commonwealth Ct. 101, 396 A.2d 882 (1979). In both of those cases, we concluded that the injured claimant was an independent contractor. In the latter case, we stated:
It appears that the only indicia of an employment relationship was the fact that the Defendant would have told the Claimant when and where to deliver the materials had he been able to load them on his truck. In all previous assignment of this nature, Claimant was paid ... on a commission basis, he determined his own routes of travel and he controlled the means of accomplishing the delivery of goods.
Id. at 103, 396 A.2d at 883. Similarly, in Mixter we pointed out that "the only instructions that the claimant ever received from the defendant carrier were where to load and unload the cargo that was to be hauled." Id. at 236, 277 A.2d at 871. It is obvious that Pro-Aire exerted a much higher level of control over the claimant than did the carrier in either Mixter or Douglas. For that reason, those cases are distinguishable. Rather, our facts are much closer to those in North East Express, Inc. v. Workmen's Compensation Appeal Board (Woytas), 77 Pa.Commonwealth Ct. 255, 465 A.2d 724 (1983) which is relied upon by the claimant. In that case the trailer alone was emblazoned with the carrier's name. Furthermore, even though the carrier did not chose the claimant's route, we pointed out that the claimant was given a specific time frame in which to make the delivery. We believe that Pro-Aire exercised greater control over the claimant than did the carrier in North East and in that case we held that the driver had proven that he was an employee. Thus, on the facts as found by the referee, we must conclude that the claimant was an employee of Pro-Aire.
DOYLE, J., concurs in the result only.
ORDER
No. 2215 C.D. 1991
NOW, September 10, 1992, the September 19, 1991 order of the Workmen's Compensation Appeal Board at No. A90-1603 *441 is vacated and the matter is remanded for the referee to explain why he rejected the testimony of the medical expert offered by Ronald Tomczak.
Jurisdiction relinquished.
ORDER
No. 2269 C.D. 1991
NOW, September 10, 1992, the appeal in the above captioned matter is quashed.
NOTES
[1] The employer argues that its cross-examination of Dr. Werthan was sufficient to negate the applicability of the capricious disregard standard. The employer offers no authority for this proposition and we reject it out of hand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/169784/ | FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 18, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
TOM AS DELEON, III,
Petitioner - A ppellant, No. 06-6270
v. W .D. Okla.
R AN D A LL WO R K MA N , (D.C. No. CIV-06-171-L)
Respondent - Appellee.
O RD ER DEN YIN G
CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
Tomas D eLeon III, a state prisoner, filed a 28 U.S.C. § 2254 petition for a
writ of habeas corpus. The district court denied the petition as w ell as D eLeon’s
request for a Certificate of Appealability (COA). DeLeon renews his request for
a COA here. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). W e
decline to grant a COA and dismiss his application.
I. Background
On August 19, 2003, DeLeon was convicted by a jury of five counts of
lewd molestation in violation of Okla. Stat. tit. 21 § 1123. On August 20, 2003,
in accordance with the jury’s recommendation, the district court sentenced him to
ten years for Count 1, one year each for Counts 2, 4 and 5, and three years for
Count 3. The consecutive sentences combine for a total of sixteen years. H is
conviction was affirmed on direct appeal by the Oklahoma Court of Criminal
Appeals (O CCA). See D eLeon v. Oklahoma, No. F 2003-959 (Okla. Crim. App.
Nov. 24, 2004) (unpublished).
DeLeon filed a § 2254 petition on February 17, 2006, claiming seven errors
identical to the claims he argued to the OCCA. DeLeon claimed: (1) ineffective
assistance of trial counsel for failing to develop conspiracy and “alibi” defenses,
failing to object to hearsay and other crimes evidence, failing to object to the
information filed against him based upon the joinder of offenses; (2) prosecutorial
misconduct for statements made during closing argument; (3) improper admission
of evidence of other crimes; (4) failure of the trial court to ensure a complete
record; (5) insufficient evidence to support his convictions for lewd molestation
on Counts 3, 4, and 5; (6) insufficient evidence to bind him over on Count 4
following the preliminary hearing; and (7) cumulative error. 1 M agistrate Judge
Argo prepared a comprehensive and well supported Report and Recommendation
addressing each of D eLeon’s claims. On July 28, 2006, the district court
reviewed the magistrate judge’s Report and Recommendation and conducted a de
novo review of DeLeon’s objections to the report. It determined each of
DeLeon’s objections were without merit and adopted the Report and
1
DeLeon does not reassert claims 4 and 6 as grounds for granting a COA .
-2-
Recommendation in its entirety, denied DeLeon’s petition and dismissed the
action. Thereafter, the district court denied DeLeon’s request for a COA.
DeLeon timely filed his notice of appeal and request for a COA.
III. Certificate of Appealability
A COA is a jurisdictional prerequisite to our review. M iller-El v. Cockrell,
537 U.S. 322, 336 (2003). W e will issue a CO A only if DeLeon makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish “reasonable jurists could
debate w hether . . . the petition should have been resolved [by the district court]
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(internal quotations and citations omitted).
W e have carefully reviewed DeLeon’s arguments regarding alleged errors
in his state trial and appeal. We have also carefully review ed the magistrate
judge’s R eport and Recommendation and the district court’s order adopting its
findings; the analyses are correct. Nothing in DeLeon’s brief, the prior state and
federal judicial decisions pertaining to his conviction, or the record on appeal
raises an issue which meets our standard for the grant of a CO A. The district
court’s order of dismissal is not reasonably debatable. Slack, 529 U.S. at 484.
-3-
Accordingly, we D EN Y DeLeon’s application for a COA and DISM ISS the
appeal.
FOR TH E CO UR T:
Terrence L. O’Brien
United States Circuit Judge
-4- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4554040/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 12-4135
______________
REGENT INSURANCE COMPANY,
Appellant
v.
STRAUSSER ENTERPRISES, INC; GARY STRAUSSER
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-09-cv-03434)
Honorable James Knoll Gardner, District Judge
______________
Argued May 18, 2020
BEFORE: MCKEE, BIBAS, and COWEN, Circuit Judges
(Filed: August 7, 2020)
______________
Christina Capobianco
Fineman Krekstein & Harris
Ten Penn Center
1801 Market Street, Suite 1100
Philadelphia, PA 19103
Michael S. Saltzman (argued)
Goldberg Segalla
1700 Market Street
Philadelphia, PA 19103
Attorneys for Appellant
Patrick C. Campbell, Jr. (argued)
Montgomery McCracken Walker & Rhoads
1735 Market Street
21st Floor
Philadelphia, PA 19103
Attorney for Appellees
______________
OPINION ∗
______________
COWEN, Circuit Judge.
In this insurance coverage dispute, Plaintiff Regent Insurance Company
(“Regent”) appeals from the order of the United States District Court for the Eastern
District of Pennsylvania granting in part, denying in part, and dismissing in part the
cross-motions for summary judgment filed by Regent and Defendants Strausser
Enterprises, Inc. (“SEI”) and Gary Strausser (“Appellees”). We conclude that Regent has
no duty to defend (or indemnify) Appellees in the underlying action filed in the District
Court captioned Segal v. Strausser Enterprises, Inc. , case number 07-cv-04647 (“Segal
Action”). Accordingly, we will vacate the order in part and will remand with instructions
to grant Regent’s motion for summary judgment and deny Appellees’ summary judgment
motion as to Count V of Regent’s amended complaint and to enter judgment in favor of
Regent and against Appellees declaring that Regent has no duty to defend or indemnify
Appellees in the Segal Action.
I.
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
On November 5, 2007, Kenneth Segal, the Karen and Kenneth Segal Descendants
Trust (“Trust”), and Segal and Morel, Inc. (“S & M”) (collectively “Segal Plaintiffs”)
commenced the Segal Action against SEI, Strausser, and Leonard Mellon, Esq. (SEI’s
attorney). The Segal Action arose from purchase agreements in which SEI sold several
parcels of land to S & M (which then assigned its rights and obligations to several limited
liability companies (“the S & M LLCs”), of which Segal and the Trust are the sole
members). Segal and the Trust subsequently contracted to sell their interests in the S &
M LLCs to K. Hovnanian Pennsylvania Acquisitions, LLC (“Hovnanian”). According to
the underlying complaint, SEI, Strausser, and Mellon sabotaged the Hovnanian deal by
manufacturing a frivolous state court lawsuit as well as a frivolous arbitration:
Plaintiffs bring this action to recover significant damages arising
from Defendants’ scheme to use the judicial system to interfere with, and
ultimately cause the buyers of memberships in limited liability companies
to terminate contracts and refuse to negotiate new ones. In short,
Defendants manufactured a frivolous lawsuit and then a frivolous
arbitration in which they sought to invoke non-existent rights of first refusal
that would impede the aforementioned transactions. As is more fully set
forth herein, there were no such rights of first refusal, and Defendants knew
it before the first lawsuit was filed. They persisted with the frivolous
claims nonetheless, ultimately causing Plaintiffs to lose in excess of $10
Million.
(JA72.)
The Segal Action complaint included four counts: (1) tortious inference with
contract; (2) tortious interference with prospective contractual relations; (3) “Malicious
Prosecution; 42 Pa. C.S.A. § 8351 et seq.” (JA104 (emphasis omitted)); and (4) abuse of
process.
Appellees advised Regent of the Segal Action and sought coverage. The
3
insurance policy at issue expressly provides coverage for personal and advertising injury
liability:
COVERAGE B PERSONAL AND ADVERTISING INJURY
LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to
pay as damages because of “personal and advertising injury” to
which this insurance applies. We will have the right and duty to
defend the insured against any “suit” seeking those damages.
However, we will have no duty to defend the insured against any
“suit” seeking damages for “personal and advertising injury” to
which this insurance does not apply. . . .
(JA188.) “SECTION V – DEFINITIONS” defines “Personal and advertising injury”
as:
14. “Personal and advertising injury” means injury, including
consequential “bodily injury”, arising out of one or more of the following
offenses:
....
b. Malicious prosecution;
....
(JA197.) However, Coverage B also includes the following exclusion:
2. Exclusions
This insurance does not apply to:
a. Knowing Violation of Rights of Another
“Personal and advertising injury” caused by or at the direction of the
insured with the knowledge that the act would violate the rights of
another and would inflict “personal and advertising injury”.
4
....
(JA189.)
Regent provided a defense to the Segal Action subject to a reservation of rights
and filed the present action, seeking a declaration that it has no duty to defend or
indemnify Appellees. The parties subsequently filed cross-motions for summary
judgment. Following oral argument, the District Court granted in part, denied in part, and
dismissed in part both motions for summary judgment. Of particular importance in this
appeal, it granted Appellees’ summary judgment motion “to the extent it seeks a
declaration that [Regent] has a duty to defend [Appellees] in the [Segal Action]” and “to
the extent it seeks a declaration that [Regent] has a duty to indemnify [Appellees] for the
malicious prosecution claim in the underlying action, with the exception of punitive
damages.” Regent Ins. Co. v. Strausser Enters., Inc., Civil Action No. 09-cv-0434, at *1
(E.D. Pa. Sept. 28, 2012). In turn, Regent’s motion was denied to the extent it seeks
judgment on Count V of its amended complaint (seeking declaratory relief on the
grounds that the “Knowing Violation of Rights of Another” exclusion applies). Entering
partial judgment in favor of and against both Appellees and Regent, the District Court
declared that Regent has a duty to indemnify Appellees for the malicious prosecution
claim (with the exception of any punitive damages awarded on this claim) as well as to
defend Appellees in the underlying action. “It is the sense of this Order that plaintiff
[Regent] has a duty to defend [Appellees] against all claims (including liability,
compensatory damages and punitive damages) in the underlying action.” Id. at *2 n.1.
5
In a thorough opinion, the District Court explained that the policy language is
ambiguous because malicious prosecution under Pennsylvania law, codified as
“Wrongful use of civil proceedings” by the Dragonetti Act, 42 Pa. C.S.A. § 8351, et. seq.,
requires more than proof of gross negligence. Instead, proof of actual malice or improper
motive is required, and malicious prosecution thereby represents an intentional tort under
state law. According to the District Court, “if malicious prosecution under
Pennsylvania’s Dragonetti Act is an intentional tort, then Coverage B is a Catch-22”
because, on the one hand, “Regent promises to cover the Strausser defendants for claims
of malicious prosecution so long as no exclusion applies to bar coverage” while, on the
other hand, “the ‘Knowing Violation’ exclusion always applies to malicious prosecution
under the Dragonetti Act.” Regent Ins. Co. v. Strausser Enters., Inc., 902 F. Supp. 2d
628, 642 (E.D. Pa. 2012). Resolving this ambiguity in favor of the insureds, the District
Court determined that Regent has a duty to defend Appellees. The District Court then
explained that it would reach the same conclusion even if a malicious prosecution
plaintiff could prevail by proving nothing more than gross negligence. It observed that
there is a potential for the claim to be covered if the underlying complaint alleges a
particular level of knowledge or intent but the defendant would still be held liable under a
different level. “Where there is the potential for a claim against a defendant to be
covered under the defendant’s insurance policy, the insurer has a duty to defend.” 1 Id. at
1
We note that the Clerk subsequently granted Regent’s motion to stay its appeal
pending disposition of the motion for summary judgment filed by Appellees in the
underlying Segal Action. The stay was lifted after the motion was decided (and, because
6
642 n.41 (citing Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d
Cir. 1999)).
II.
Initially, the District Court concluded that malice or intent constitutes a necessary
element of a malicious prosecution claim under the Dragonetti Act.2 Instead of
defending the District Court’s interpretation, Appellees now agree with Regent that
“malicious prosecution claims under Pennsylvania law are based on negligence and/or
gross negligence.” (Appellees’ Brief at 17 (emphasis omitted).) Under the parties’
current interpretation of state law, the policy language clearly does not (as the District
Court put it) result in “a Catch-22.” On the contrary, the policy unambiguously covers
claims for malicious prosecution based on a showing of gross negligence while excluding
coverage for “intentional” (i.e., “Knowing Violation of Rights of Another”) claims of
malicious prosecution. 3
Appellees do contend that Regent has waived its challenge to the District Court’s
interpretation of the Dragonetti Act. We disagree. Admittedly, the insurer did initially
the parties had briefed this matter while the appeal was stayed, the appeal was calendared
for disposition in due course).
2
The District Court had diversity jurisdiction over this case pursuant to 28 U.S.C.
§ 1332. We possess appellate jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over the District Court’s disposition of the parties’
motions for summary judgment. See, e.g., Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 265 (3d Cir. 2014). “The court shall grant summary judgment if the movant shows
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).
3
Accordingly, we need not (and do not) decide whether the interpretation the state
statute offered by the District Court or the understanding proffered by the parties is
correct as a matter of law.
7
indicate in its motion for summary judgment that malice or intent constitutes a required
element of this state law cause of action. See, e.g., Regent Ins., 902 F. Supp. 2d at 641
n.39 (“In its brief in support of its motion for summary judgment, Regent appears to
argue that the ‘Knowing Violation’ exclusion applies to all malicious prosecution claims
because malice is a necessary element. See [JA386-JA389].”). However, Regent did
place particular emphasis on the specific allegations set forth in the underlying complaint
in the Segal Action. (See, e.g., JA380 (“Specifically, the Segal Plaintiffs allege that
Defendants intentionally and knowingly pursued a baseless and frivolous lawsuit and lis
pendens in the hopes of securing monies to which they were not entitled . . . .” (citing
JA70-JA107)).) In any event, Appellees argued in their own summary judgment brief
that “Regent’s denial of coverage based on the intentional acts exclusion is also wrong
because malicious prosecution claims, under Pennsylvania law, are based on negligence
and gross negligence, not intentional acts.” (JA312.) In their brief opposing Regent’s
motion, they continued to insist that malicious prosecution is not an intentional tort. In
its response to Appellees’ motion for summary judgment, Regent essentially agreed with
Appellees’ understanding of Pennsylvania law and clarified its earlier (arguably more
expansive) assertions by stating that, “[a]lthough malicious prosecution is covered when
the alleged conduct is negligent, it is not covered when the malicious prosecution is
intentional and knowing, as alleged by the Segal Plaintiffs.” (JA455.) Appellees, in turn,
acknowledged Regent’s position in their own reply brief and at oral argument. Although
it relied on Regent’s briefing as further evidence of contractual ambiguity (even though
that briefing actually implicated the distinct legal question of how to interpret a
8
Pennsylvania statute), the District Court did not make any waiver determination and, on
the contrary, ruled on the merits of the legal question of whether intent is an element
under the Dragonetti Act.
It is well established that “the obligation to defend arises whenever the complaint
filed by the injured party may potentially come within the coverage of the policy.”
Gedeon v. State Farm Mut. Auto. Ins. Co., 188 A.2d 320, 321-22 (Pa. 1963) (citing
Cadwallader v. New Amsterdam Cas. Co., 152 A.2d 484 (Pa. 1959)). The factual
allegations of the underlying complaint are to be taken as true and to be liberally
construed in favor of the insured. See, e.g., Biborosch v. Transamerica Ins. Co., 603
A.2d 1050, 1052 (Pa. Super. Ct. 1992). In turn, the duty to defend is “fixed solely” by
such allegations. Aetna Cas. & Sur. Co. v. Roe, 650 A.2d 94, 98 (Pa. Super. Ct. 1994)
(footnote omitted) (citations omitted). “In order to determine whether [the insurer] had a
duty to defend [the insured], therefore, we must compare the terms of the [insured’s]
policy with the nature of the allegations of the underlying complaint[] against [the
insured]. We must then determine whether, if the allegations were true, [the insured]
might be obligated to provide coverage.” Id. at 100 (citing Britamco Underwriters, Inc.
v. Weiner, 636 A.2d 649, 651 (Pa. Super. Ct. 1994)).
According to Appellees, “where the underlying complaint alleges intentional
action (which is excluded from coverage), but negligence or reckless action would suffice
to make the insured’s conduct actionable, the claim has the potential to come within
coverage if the underlying complaint could reasonably be amended to state a claim under
the policy.” (Appellees’ Brief at 8 (emphasis omitted).) However, this “amendment”
9
approach is inconsistent with Pennsylvania law. Although the Frog, Switch Court
referenced (and improved upon) the “amendment” line of reasoning adopted by the
district court in Safeguard Scientifics, Inc. v. Liberty Mutual Insurance Co., 766 F. Supp.
324, 330 (E.D. Pa. 1991), rev’d in part on other grounds & affirmed in part, 961 F.2d
209, 1992 WL 12915247 (3d Cir. Mar. 19, 1992) (non-precedential decision), we did so
as part of our summary of one of the insured’s arguments—and did not rely on the
approach to dispose of the appeal in the insurer’s favor. See Frog, Switch, 193 F.3d at
746 & n.2. “While the Supreme Court of Pennsylvania has not had occasion to consider
the validity of the Safeguard Scientifics approach, all intermediate Pennsylvania appellate
courts that have considered this issue since Safeguard Scientifics was decided have not
followed it and have, instead, continued unabatedly to apply the rule that it is the
allegations within the four corners of the complaint that govern.” I.C.D. Indus., Inc. v.
Fed. Ins. Co.¸ 879 F. Supp. 480, 488 (E.D. Pa. 1995) (citing eight Pennsylvania Superior
Court decisions including Roe and Biborosch). We agree that “‘the four corners of the
complaint’ rule is the correct statement of Pennsylvania law” and that, under this
approach, there is coverage “for claims that ‘potentially fall’ within the scope of
coverage, but only insofar as those ‘potential’ claims are grounded in the complaint
itself.” 4 Id. (citing Roe, 650 A.2d at 99; Humphreys v. Niagara Fire Ins. Co., 590 A.2d
4
Relying on I.C.D. Industries, the author of Safeguards Scientifics subsequently
abandoned his own “amendment” approach. Am. Planned Communities, Inc. v. State
Farm Ins. Co., 28 F. Supp. 2d 964, 970 (E.D. Pa. 1998) (“While plaintiffs may well be
correct that the Mazers and Gorens may at some future point amend their complaints so
as to include allegations of non-intentional acts, the court may not require State Farm to
10
1267, 1271 (Pa. Super. Ct. 1991)).
Applying this standard, we determine that the malicious prosecution claim set
forth in the underlying complaint in the Segal Action does not “potentially fall” within
the scope of coverage.
The underlying complaint clearly alleged intentional and knowing conduct—as
opposed to negligence (or gross negligence)—on the part of Appellees. The Segal
Plaintiffs specifically alleged that “there were no such rights of refusal, and Defendants
knew it before the first lawsuit was filed.” (JA72.) “As is more fully developed
hereinafter, SEI was aware of an impending transaction and desperately wanted to stop it,
hoping that doing so would garner it leverage from which to secure monetary concessions
from the Segal Sellers. SEI and Strausser, along with Mellon, their long-time counsel,
hatched a baseless, spiteful and malicious plan to derail the transaction by filing a
frivolous lawsuit mentioned below.” (JA84.) Strausser allegedly admitted that he knew
SEI lacked the requisite right of first refusal— “[d]uring this meeting [with
representatives of Hovnanian] Strausser candidly acknowledged to those present that
although SEI filed the Lis Pendens to encompass the entire Property, he knew that SEI
possessed no right of first refusal with regard to the single family lots, ie, those lots
conveyed by SEI to S&M, Inc. (and subsequently by S&M, Inc. to one of the S&M
LLCs) pursuant to the February 28, 2003 Agreement.” (JA89-JA90; see also, e.g., JA90
(“By making this admission during this meeting with Hovnanian’s representatives,
defend or indemnify the present action based upon the present allegations of the
underlying complaints, all of which allege intentional actions.”).
11
Strausser openly acknowledged the overbreadth of the Complaint that he verified under
penalty of perjury just three days earlier.”).) Likewise, Appellees’ counsel “admitted to
the Segal Sellers’ counsel [prior to the hearing before the state trial court] that Strausser
had instructed him to file anything that he could to stop the transaction.” (JA92.) Mellon
“also admitted that Strausser, who had verified the [state court] Complaint, had never
actually read the pleading.” (Id.) In the end, the filing of the state court action and the
Lis Pendens had “the desired effect: Hovnanian refused to proceed with a closing.”
(JA87.)
The underlying complaint in the Segal Action further alleged that Appellees
proceeded with the claims against the Segal Plaintiffs despite the contrary rulings of the
state court and the arbitration panel as well as their own prior admissions.
Specifically, the state trial court offered the following explanation for why it was
dismissing the complaint and the Lis Pendens:
Here, [SEI] agrees that ‘the instant dispute over the operation of the
buy back provision is subject to arbitration.’ Plaintiff’s Brief Contra
Defendants’ Petition to Strike Lis Pendens and Dismiss Complaint,
p.2. By its own admission, [SEI’s] complaint is inappropriate. This
admission undermines the notion that [SEI] has pursued its
complaint in good faith, and in the Court’s opinion tips any balance
of the equities against it.
Exhibit “R”, Opinion at 10. A true and correct copy of the February 28,
2006 Opinion in support of the February 28th Order is attached as Exhibit
“R”. In other words, SEI expressly admitted in its very own filing in
opposition to the pending petition to strike, that the dispute underlying its
Complaint was not properly before the Court.
(JA93 (emphasis omitted).) “Despite this admission, SEI inexplicably did not withdraw
its Complaint prior to the February 27 hearing.” (Id.) “With regard to its dismissal of
12
SEI’s Lis Pendens, the Court was equally direct in admonishing SEI for the frivolity of
that filing: ‘Thus, [SEI] has used the lis pendens mechanism as a procedural weapon, and
this is inappropriate.’” (JA94 (emphasis omitted) (quoting Exhibit R at 10); see also,
e.g., id. (“The purpose behind the frivolous filings was not lost on the Court: ‘Plaintiff
filed its Complaint in order to secure a lis pendens attached to the properties at issue in its
dispute . . . the practical effect of a recorded lis pendens is to render a defendants property
unmarketable.’” (quoting Exhibit R at 10)).
SEI instituted arbitration proceedings, and the arbitration panel allegedly rejected
its argument that “the Right of First Refusal provisions” prevented the sale of the
membership interests, e.g.:
81. The Panel found the Right of First Refusal Provisions at issue to be
“clear, precise, and unambiguous,” [Exhibit S at 1-2], and found that they
imposed “a condition upon the sale of individual building lots and [did] not
in any way impose a condition on the individual L.L.C.’s that would
prohibit the sale of membership interest in the L.L.C.’s.” Id. at 4.
82. Based upon these findings, the Panel held:
“The transfer of a membership interest, in whole or in part, by the
L.L.C. assignees of [S&M, Inc.] as set forth in the afore referred to
agreements will not trigger, and are not subject to, the right of first
refusal as set forth in the agreement of April 25, 2003, as amended.”
Id. at 5.
(JA95-JA96 (emphasis omitted).) Meanwhile, SEI appealed from the state trial court’s
dismissal of its state court complaint and Lis Pendens. A letter from Mellon
accompanying the statement of appeal stated that it was filed in order to keep the Lis
Pendens issue alive pending the arbitration and recording of a memorandum of
13
understanding and explained that, “‘[w]hile I understand from Attorney Pastor that the
Havanian [sic] deal is off, we do not want to have the same problem arise again if it is
resurrected, or another third party become interested before the Memorandum of
Understanding is filed or arbitration completed.’” (JA97 (emphasis omitted) (quoting
Exhibit T).) Despite the resolution of the arbitration proceeding, the appeal was not
withdrawn. “By Memorandum Opinion dated October 20, 2006, the Superior Court
dismissed Defendants’ appeal as moot, and so doing noted, ‘we find no basis to disturb
the trial court’s ruling.’” (Id. (quoting Exhibit U at 4).)
Appellees single out just two allegations in support of their assertion that the
underlying complaint set forth a claim for malicious prosecution based on negligent
conduct: “E.g., [JA102] (alleging the appeal and arbitration instituted without a
‘reasonable basis’) & [JA104-JA105] (alleging that SEI and Mr. Strausser could not have
reasonably believed that there was a basis to support claims being advanced).”
(Appellees’ Brief at 19-20).) However, the first allegation clearly implicated the
Appellees’ knowledge, i.e., Appellees, with the assistance of counsel, instituted the state
court complaint, the Lis Pendens, the Pennsylvania Superior Court appeal, and the
arbitration proceeding “knowing that there was no reasonable basis to the claim being
advanced.” (JA102.) In the second allegation, Segal Plaintiffs claimed that Appellees
commenced and continued to prosecute the legal actions “primarily for the improper
purpose of attempting to secure for SEI and Strausser contractual rights that were neither
bargained for nor contained within the Purchase Agreements, as amended.” (JA104.)
Given these circumstances as well as the additional allegations of intentional and
14
knowing actions included in the complaint, the underlying malicious prosecution cause of
action does not trigger Regent’s duty to defend. 5
5
In addition to noting that “the Segal Entities themselves have characterized the
argument that the claims in their Underlying Complaint are founded solely on intentional
conduct as ‘misdirected’” (Appellees’ Brief at 4 (quoting JA481)), Appellees’ counsel
observed at oral argument that the district court’s “opinion in the recent Motion for
Summary Judgment in the underlying case, [Segal v. Strausser Enterprises, Inc., CIVIL
ACTION NO. 07-4647, 2019 WL 2450416, at *11 (E.D. Pa. June 12, 2019),]
characterizes the gist of the claim as one being based on gross negligence” (Transcript of
Oral Argument at 16). He also refers to the subsequent arbitration proceeding that was
“peeled off of that case” (Transcript of Oral Argument at 28) in which “Mr. Strausser
won $20 million from Mr. Segal” (id. at 29). However, we are limited to the factual
allegations set forth in “the four corners” of the underlying complaint. See, e.g., I.C.D.
Indus.¸879 F. Supp. at 488. In turn, it is our responsibility (and not the plaintiffs, the
arbitrators, or the district court in the underlying action) to conduct the requisite analysis
under applicable state law to determine if the insurer has a duty to defend in the
underlying proceeding.
Appellees raise a number of additional arguments, but we likewise conclude that
they are without merit. According to them, “general exclusions cannot, as a matter of
policy, be used to eviscerate the express coverages.” (Appellees’ Brief at 15 (emphasis
omitted)). However, the unambiguous “Knowing Violation of Rights of Another”
exclusion is a specific component of Coverage B and does not result in illusory coverage
for all malicious prosecution claims because it does not apply to claims based on alleged
negligence. Furthermore, the cases cited by Appellees either did not apply Pennsylvania
law or did not specifically adopt Appellees’ “evisceration” line of reasoning. See Hurst-
Roche Eng’rs, Inc. v. Commercial Union Ins. Co., 51 F.3d 1336 (7th Cir. 1995) (Illinois
law); Tews Funeral Home, Inc. v. Ohio Cas. Ins. Co., 832 F.2d 1037 (7th Cir. 1987)
(same); Cincinnati Ins. Cos. v. Pestco, Inc., 374 F. Supp. 2d 451, 460-61 (E.D. Pa. 2004)
(concluding that express exclusion for trademark infringement did not apply to distinct
claim of trade dress infringement); Fluke Corp. v. Hartford Accident & Indemn. Co., 34
P.3d 809 (Wash. 2001) (en banc) (Washington law). We further believe that the injury
allegedly intended by Appellees (i.e., to extract additional concessions out of the Segal
Plaintiffs) is of the same general type as (and in fact closely connected to) the harm that
allegedly resulted from their actions (i.e., the derailing of the Hovnanian deal itself). See,
e.g., United Servs. Auto. Ass’n v. Elitzky, 517 A.2d 982, 987 (Pa. Super. Ct. 1987).
Appellees further argue that the exclusion does not apply because the claims are
potentially vicarious in nature (based on the attorney’s conduct), but Strausser himself
allegedly verified the state court complaint and instructed Mellon to file anything he
could to stop the Hovnanian transaction. Finally, the District Court properly
15
III.
Accordingly, we will vacate the order in part and will remand with instructions to
grant Regent’s motion for summary judgment and deny Appellees’ summary judgment
motion as to Count V of Regent’s amended complaint and to enter judgment in favor of
Regent and against Appellees declaring that Regent has no duty to defend or indemnify
Appellees in the Segal Action.
acknowledged that a duty to indemnify cannot exist in the absence of a duty to defend.
See Regent Ins., 902 F. Supp. 2d at 636 (“A duty to defend can exist without a duty to
indemnify. However, a duty to indemnify cannot exist without a duty to defend. Frog,
Switch & Manufacturing. Co., Inc., 193 F.3d at 746.”).
16 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3399611/ | Where a city ordinance providing for the issuance of licenses to operate taxicabs authorizes the mayor and council to grant or refuse a license in their discretion, the courts will not control their discretion by the writ of mandamus.
No. 16206. MAY 12, 1948.
John R. (Jack) Rogers filed a petition for mandamus against the Mayor and Councilmen of the City of Blairsville. He sought *Page 595
a license to operate a taxicab, and alleged that he had complied with all prerequisites of the city ordinance relating thereto, and he expressed a readiness to abide by all regulations imposed by the ordinance, but that his application had been denied without cause, which was arbitrary, illegal, capricious, was a gross abuse of discretion, and denied him equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution (Code, § 1-815), and impartial and complete protection of the laws in violation of article 1, section 1, paragraph 2, of the Georgia Constitution (Code, Ann. Supp., § 2-102). To his petition was attached a copy of the ordinance. A rule nisi was issued. The mayor and councilmen filed an answer, admitting that they had declined to issue the license, and asserting that they had authority so to do under the terms of the ordinance. At the hearing the issue was submitted to the trial judge without evidence except the admission of facts in the pleadings in the case. A mandamus absolute was denied, and to this order exceptions were taken.
The ordinance here in question contains the following provision: "Each and every applicant for a license shall and will be carefully considered by the Mayor and Councilmen of the City of Blairsville, and after a careful consideration of all the facts and circumstances, any and all applications, in the discretion of the authority aforesaid, they will then grant or deny the applicant a license."
The transportation of passengers for hire upon the streets of a city is not an inherent right, but a privilege which the municipality, in the exercise of discretion may grant or refuse.Schlesinger v. Atlanta, 161 Ga. 148 (2) (129 S.E. 861);Clem v. LaGrange, 169 Ga. 51 (4) (149 S.E. 638, 65 A.L.R. 1361).
The writ of mandamus will issue only to enforce a duty which is imposed by law. The law must not only authorize the act to be done, but must require its performance. It must appear that the petitioner has a clear legal right to have performed the particular act which he seeks to have enforced. Hart v. Head,186 Ga. 823 (199 S.E. 125); Harmon v. James, 200 Ga. 742
(38 S.E.2d 401). *Page 596
The ordinance under which the license is sought authorizes the mayor and council to grant or deny the application in their discretion; and where they have exercised the discretion reposed in them and refused an application, the courts will not control their discretion by the writ of mandamus. Harbin v. Holcomb,181 Ga. 800 (184 S.E. 603); Tate v. Seymour, 181 Ga. 801
(184 S.E. 598); Hodges v. Kennedy, 184 Ga. 400
(191 S.E. 377).
The instant case differs from the case of McWhorter v.Settle, 202 Ga. 334 (43 S.E.2d 247), as the ordinance there relied upon made no provision for the exercise of the discretion of the mayor and council in granting or denying a license.
Judgment affirmed. All the Justices concur, except Candler,J., who is disqualified. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3856519/ | Argued April 15, 1941.
This was an action of ejectment to recover possession of a strip of land fronting two feet on North Front Street in the Borough of Punxsutawney, and extending in depth of that width, eastwardly, one hundred and fifty feet to a twenty foot alley known as Snyder Alley. It was tried by the court without a jury under the Act of April 22, 1874, P.L. 109, and resulted in findings and a decision for the defendants. Exceptions of the plaintiff to the findings, conclusion, etc. of the court were dismissed and judgment entered for defendants. Plaintiff appealed.
Both parties claim from a common source. *Page 228
The strip in question and the adjoining lands of both plaintiff and defendants form part of a large tract of land owned by one P.W. Jenks. Mr. Jenks, it seems, first granted to the Buffalo, Rochester Pittsburgh Railroad Company (now the Baltimore Ohio Railroad Company) for its right of way a piece of land one hundred feet wide. This deed is not in evidence, but in another deed its course at this point was described as running north 53 3/4 degrees east. It seems to be conceded, however, that the course described an arc which approximated that direction. The grant to the railroad is not in dispute in this action.
Out of his remaining land Jenks then conveyed to John and Mary Hennigh, by deed dated December 22, 1882 and recorded March 17, 1883, a lot of ground in Young Township fronting on the east side of the Punxsutawney and Luthersburg turnpike road (now known as North Front Street1 in the Borough of Punxsutawney), 75 feet, and extending in depth of that width eastwardly 150 feet. This deed made no reference whatever to the distance of the lot from the railroad right of way, or the location of the lot with reference to it, the north and south points on the turnpike road being described only as posts.
Jenks subsequently conveyed all of his land south of the railroad, inter alia, to Henry A. Ham, by deed dated February 3, 1883, recorded April 17, 1883. The description was as follows:
"Also all that certain piece of land on East side of Punxsutawney Luthersburg road in said Township of Young and adjoining grant of land given to R. P.R.R. Beginning at a post on said L. Turnpike road; thence N. 53 3/4 East along said Railroad grant 42 perches to Mahoning Creek; thence down the bank *Page 229
of said Creek following the meanderings thereof on North side thereof to lot conveyed to H. Ernest; thence along line of Ernest lot to Punxsutawney and Luthersburg Turnpike road; thence North along said road to place of beginning, containing 6 acres 120 perches, neat measure, excepting and reserving out of said pieces of land the lot sold and conveyed to John and Mary Hennigh, said lot being seventy-four feet on Turnpike road by one hundred and fifty feet in depth."
It will be noted that the reservation of the lot conveyed to John and Mary Hennigh was for a lot fronting only 74 feet on the turnpike instead of 75 feet as had been conveyed to them. The description in the Hennigh deed will govern, as the deed to them was recorded within six months2 after its execution and before the deed to Ham was recorded.
The difficulties present in this case grew out of the fact that Mr. Ham and his successors in title conveyed more frontage on North Front Street than he or they owned, and the question arises who must bear the shortage.
In an endeavor to solve this question, in so far as it might affect the strip of land in controversy, the defendant appellees and the court below insisted on making the railroad right of way the basic starting point from which the lots to the south of it must be measured; while the plaintiff contends that as none of the land of either plaintiff or defendants was conveyed with any reference to the railroad right of way, the lot conveyed to the Hennighs, now known as the Rentschler lot, which was unquestionably the first or oldest conveyance of the lots on the east side of North Front Street laid out by Jenks or Ham, must be the starting point. On this, we agree with the plaintiff. If the location of the lot conveyed to John and Mary Hennigh — now known *Page 230
as the Rentschler lot — can be fixed, the respective measurements of the plaintiff's and defendants' lots will be easily established, for they are all governed by their distance from the south line of the Rentschler lot, and are not based on their respective distances from the railroad right of way.
The following plan shows the lots conveyed by Jenks and the Hams respectively, the numbers representing the order in which the conveyances were made. (See Figure 1)
The plaintiff, J.M. Gutelius's claim is based (1) on his title to No. 4 (50 feet) conveyed by Ham to H.C. Gutelius, September 17, 1888, (recorded September 24, 1888); and sold by the sheriff, as the property of H.C. Gutelius to J.M. Gutelius, July 28, 1930 (acknowledged August 8, 1930, recorded December 11, 1930); and (2) on his title to the southern two feet of No. 5 (58 feet)3, which No. 5 was conveyed by Ham to Shields, May 1, 1893, (recorded May 22, 1893) and by Shields to Mrs. Sophia Ham, May 2, 1893, (recorded May 22, 1893). Mrs. Ham conveyed the northern 36 feet of No. 5, adjoining the Burgen lot (No. 3) to Kurtz, November 1, 1895, (recorded December 26, 1895), which became vested in Shaffer, August 11, 1896, (recorded August 13, 1896). She conveyed the southern 22 feet, adjoining H.C. Gutelius (No. 4) to H.C. Gutelius, March 1, 1906, (recorded March 5, 1906). H.C. Gutelius conveyed the northern 20 feet of this *Page 231
[EDITORS' NOTE: FIGURE 1 IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 232
lot to Dollie Douthett November 27, 1920, (recorded December 6, 1920), who, on November 14, 1934, (recorded January 29, 1935), conveyed it to the Coldwells, these defendants. This left two feet remaining in H.C. Gutelius, which, inter alia, his heirs conveyed to J.M. Gutelius, March 11, 1938, (recorded April 11, 1938). It is this two foot strip which is the subject of this action. The defendants entered upon and took possession of it. (See Figure 2)
[EDITORS' NOTE: FIGURE 2 IS ELECTRONICALLY NON-TRANSFERRABLE.]
It is apparent from the above plan that the total frontage of the lots conveyed along the east side of the turnpike, or North Front Street, between the railroad *Page 233
right of way and the 15 foot alley was 348 feet, whereas the actual distance on the ground between them is only 344 1/2 feet.
As the strip of land now laid out as Foundry Street was the last lot originally conveyed by Jenks or the Hams, any shortage in the land would have to come off it, provided the Hennigh or Rentschler lot was located so as to leave a distance of 158 feet between its southern boundary line and the 15 foot alley south of Gutelius. Mr. Walker, the surveyor witness for plaintiff, testified that as the iron pins marking the Rentschler lot are placed, a distance of 158 feet remains between the south line of the Rentschler lot and the alley. There was no contradiction of this testimony.
Just when the iron pins were placed at the corners of the Rentschler lot does not definitely appear in the evidence. Mr. Walker testified that to his knowledge they were placed therebefore 1923, and it was his understanding and belief that they were placed there by R.S. Van Rensselaer, the surveyor who made the plan known as plaintiff's exhibit No. 6 in October, 1900.
There is nothing in the record to show that the present location of the Rentschler lot (No. 1) — by which the location of all the other lots must be governed, for the deed for the Kinsley lot (No. 2) fixes it as its southern boundary, and the deed for the Burgen lot (No. 3) fixes it as its northern boundary — is disputed; nor is it apparently disputed that, based on the present location of the Rentschler lot, the defendants are in possession of the full twenty feet to which their deed entitles them, in addition to the two foot strip which is in dispute in this case, and which according to the paper title belongs to the plaintiff as part of his 52 feet, made up of 50 feet (No. 4) and two feet remaining of the 22 feet granted to H.C. Gutelius, after his conveyance of 20 feet thereof to Dollie Douthett, who subsequently conveyed said 20 feet to the defendants. If the judgment appealed from should stand, the defendants, *Page 234
although having title to only 20 feet on North Front Street, would apparently be in possession of 22 feet, while plaintiff, who has title to 52 feet would have possession of only 50 feet, or if carried to the extreme fixed by the court's findings, would have only 48 1/2 feet, the entire shortage of three and a half
feet being charged against his lot, irrespective of the fact that the deeds under which he claims (No. 4 and part of No. 5) were conveyed out of Jenks and Ham respectively long before the strip devoted to road purposes (No. 6) was conveyed.
It was testified without contradiction that the owners of the Kinsley lot (No. 2) were also the owners of the Brewery lot to the east of this land, for entrance into which the strip of land afterwards devoted to Foundry Street (No. 6) was chiefly obtained. If as owners of the Kinsley lot (No. 2) they saw fit to allow a part or corner of that lot to be used for a roadway or street entrance into their brewery lot, they could do so, but their doing so would not warrant or justify the widening of their lot at the expense of the lots south of it. So, too, if any portion of the Kinsley lot was used to widen the roadway or entrance to the brewery, which was ordained and opened in 1902 as Foundry Street, it would have to come off the Kinsley lot and leave it that much less frontage on Front Street.
Furthermore, the testimony of Mr. Gleason, the defendants' witness, on whom the court below relied for its findings, was confused as to the figures involved and his mathematical conclusions were wrong.
In trying to find the distance on Front Street of the strip between the Kinsley lot and the railroad right of way he became confused. Drawing a perpendicular from the railroad right of way to North Front Street, which in the Van Rensselaer draft appeared to be 10 1/2 feet, and using the course North 53 3/4° East — although once he referred to it as North 54 3/4° East — as if the right of way was on a straight line instead of a curve *Page 235
or arc, and its course equalled one of the two acute interior angles of the triangle, the remaining angle would necessarily be 36 1/4 degrees. The distance of this strip of land along Front Street would be the hypotenuse of the right angle triangle of which the perpendicular 10 1/2 feet or 126 inches was the one side and the interior angles, in addition to the right angle, would be 53 3/4 degrees at the northern end and 36 1/4 degrees at the southern — 180 degrees in all. (See Figure 3)
[EDITORS' NOTE: FIGURE 3 IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 236
With this data, Gleason once calculated the length of the hypotenuse along Front Street — AC — at 14 4/10 feet or 14 feet five inches, and another time at 14 3/10 feet or 14 feet four inches. A mathematician to whom we submitted the problem calculated it as 13 feet and 24/100 of an inch — practically 13 feet.
His solution was:
AB 10 1/2 ft. (126 inches) 126 AC = -------- = --------------------------- = --------- Cos. A Cosine 36° 15' .80644
= 156.24 inches = 13 ft. 24/100 inch.
If it be remembered that Front Street does not run due north and south, but as stated in the Van Rensselaer plan, North 1° 10' West, this would make the angle BCA, 53° 45' + 1° 10' or 54° 55', and the other angle, 35° 5', and this would reduce the length of the hypotenuse, AC, to 12 8/10 feet. But in addition, the course of the railroad right of way is not actually a straight line but a curve, or arc, and hence the figure is not strictly a triangle.
Mr. Walker testifying for the plaintiff said the actual distance on the ground along Front Street from the railroad right of way to the true corner of the Kinsley lot was 11 1/2 feet, and using this figure, there are 344 1/2 feet to the 15 foot alley, enough to give every lot conveyed out of the tract prior to the last strip granted for road purposes, (No. 6), the full frontage called for by its deed.
We are of opinion that Mr. Walker's testimony established the right of the plaintiff to the two foot strip in dispute in this case and that the contrary findings of the court based on the erroneous contention of the defendants and the incorrect calculations of Mr. Gleason cannot stand. The attempt to base the frontage of the lots of plaintiff and defendants respectively on their distance from the railroad right of way, although not one lot in the plan of lots sold was described in its deed as being located so many feet from the railroad *Page 237
right of way was erroneous. While the railroad right of way was a fixed and permanent monument and not in dispute, it could only be applied as governing the conveyances of lots made by Jenks and Ham if reference had been made in the deeds for the lots to the right of way, fixing the lots as being located so many feet south of the right of way — and this was not done in any of them. Hence while a permanent monument, it can have no controlling force or effect in this dispute.
Without discussing the matter further, we sustain all of the appellant's assignments of error except the fifth. The judgment is reversed and it is ordered that judgment be entered in the court below for the plaintiff for the land described in the praecipe and writ.
1 Apparently also known for a while as Water Avenue. See deed, Sophia Ham to Hans Olson, November 10, 1900, p. 232a-233a, for a strip of land 15 feet wide to be used as a public highway.
2 Section 1 of the Act of March 18, 1775, 1 Sm. L. 422; reduced to ninety days by the subsequent amendment of May 19, 1893, P.L. 108. See Davey v. Ruffell, 162 Pa. 443, 29 A. 894.
3 The deeds from Ham to Shields and from Shields to Mrs. Ham for No. 5 conveyed a frontage of 59 feet, but this was an error probably due to the mistake in the reservation of the Hennigh lot of 74 feet, when it should have been 75. The purpose was to convey all the land south of the Hennigh lot remaining after the conveyance to Burgen (No. 3) and the conveyance to Gutelius (No. 4). This was later recognized as 58 feet instead of 59, for in conveying it away Mrs. Ham split it into two lots, 86 feet and 22 feet respectively, and in her deeds for them, she recognized, by naming the adjoiners, that these deeds conveyed the whole lot. Hence we have counted it as 58 feet. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3399637/ | 1. The plaintiff sought, among other things, to recover a sum of money alleged to have been paid to the defendant, in excess of the principal amount of a loan claimed by the plaintiff to have been usurious and to have been renewed several times at usurious rates; the *Page 220
amount sued for being limited to excess payments alleged to have been made within one year next before suit. The petition alleged the time when the original loan was made and when it was payable, the date, amount, and maturity of each renewal, the amount of usury charged in each instance, and the dates and amounts of payments. Held, that the petition was not subject to general demurrer on the ground that it did not comply with the law as to what must be alleged in order to recover in such case. Code, § 81-901; Kilcrease v. Johnson, 85 Ga. 600 (11 S.E. 870); Alexander v. Forman, 25 Ga. App. 446 (103 S.E. 817). The petition stated a cause of action for a money judgment based on overpayment of principal. it appearing from the allegations that all interest was forfeited because of usury. Code, §§ 57-112; 57-115; Reconstruction Finance Corporation v. Puckett, 181 Ga. 288 (181 S.E. 861, 101 A.L.R. 735).
2. The petition prayed for injunction to restrain the defendant from instituting a threatened trover action, and for cancellation of a note and bill of sale. The defendant demurred generally, objecting that the petition did not state a cause of action and showed upon its face that the plaintiff had a complete and adequate remedy at law and was not entitled to equitable relief. The demurrer, being thus addressed to the petition as a whole, and not attacking any particular allegation or prayer, was too general and indefinite to raise any question as to whether the petition stated a cause of action for the equitable relief sought; and accordingly this question will not be decided. But see Lee v. King, 142 Ga. 609 (6) (83 S.E. 272); Calhoun v. Davis, 163 Ga. 760
(137 S.E. 236); Lawrence v. Patterson, 170 Ga. 419
(2) (153 S.E. 29); American Security Co. v. Miller, 173 Ga. 82 (159 S.E. 692); American Security Co. v. Sealey, 173 Ga. 754 (161 S.E. 253); Straub v. First Mutual B. . L. Asso., 178 Ga. 672 (173 S.E. 714); Jones v. Equitable Loan Co., 179 Ga. 228 (175 S.E. 554); Nash Loan Co. v. Dixon, 181 Ga. 297 (4), 303 (182 S.E. 23); Kent v. Citizens Mutual Investment Association. 186 Ga. 91
(2) (196 S.E. 770).
3. The petition was not subject to a further ground of demurrer contending that it appeared from the allegations that the plaintiff was indebted to the defendant in a stated sum.
4. Since a petition is not subject to general demurrer if it states a cause of action for any of the relief sought, whether legal or equitable, and since the petition here stated a cause of action at least for a money judgment, it was not subject to dismissal on general demurrer attacking it as a whole, for any of the reasons indicated. Blaylock v. Hackel, 164 Ga. 257
(5) (138 S.E. 333); Hogan v. Cowart, 182 Ga. 145
(3-c) (184 S.E. 884).
Judgment affirmed. All theJustices concur.
No. 13711. MAY 17, 1941. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858063/ | Submitted April 13, 1925.
The plaintiff recovered the judgment appealed from because of an injury received by Mrs. Lillian H. Buchanan resulting from a fall on the sidewalk on Broad Street. The accident occurred about half past four o'clock on an afternoon in May. Mrs. Buchanan crossed Broad Street to the west side in a direction substantially at right angles with the pavement on that side of the street. There was not a crossing where she went over the street, but the locality was used as a short cut by some of the pedestrians passing between the west side of Broad Street and Lincoln Avenue on the opposite side of the street. The curb at the west side is about six inches above the surface of the cartway and between the curb and the paved footway is a space four or five feet wide along which were shade trees. For many years there has been a three-inch natural gas pipe along this space which is nearly parallel with the pavement. For a distance of twelve feet or more at the west side of two trees growing there, the pipe lay on the surface of the ground and partly in the ground. The trees last referred to are about fifteen feet apart. Between them, for a space of about two feet or less, the water flowing during rains had washed the earth from under the pipe, but to a slight extent. The pipe was about four inches from the paved foot-walk and nearly on a level therewith. North of the *Page 180
two trees mentioned and south of them, the pipe is in the ground and the space between the pavement and the curb is practically level; just north of the northward tree is a flag stone between the curb and the sidewalk over which pedestrians passed who crossed Broad Street. Mrs. Buchanan's account of the accident was that having crossed the street and stepped from the cartway onto the surface west of the curb, she proceeded toward the walk, and in doing so stepped on the gas pipe which yielded to some extent under her weight causing her to slip, whereupon the toe of her shoe caught under the paving stone immediately in front of her as a result of which she fell on the sidewalk. The locality involved was plainly shown in photographs admitted to be correct representations of the place where the accident occurred and the immediate vicinity. The negligence charged is that the gas pipe was permitted to be loose or unsupported at the place where Mrs. Buchanan stepped on it. The question for our consideration is whether she is chargeable with contributory negligence on the facts recited. A pedestrian may pass over streets at whatever place he chooses and is not limited to established crossings, but in so doing he must exercise ordinary care under the circumstances. If a better way than that adopted is immediately available, it is his duty to use the safer way and if the negligent condition complained of is apparent to him, it is his duty to avoid it if that can be reasonably done. The evidence shows that the plaintiff was familiar with the locality; that she had passed that way before; that she knew of the presence of the pipe, and that it was not supported by earth for a part of the distance between the trees. She also saw, or should have seen, that it was entirely practicable to step across the pipe. It was not a part of the footway and was not placed there to be walked on. There is no evidence of the presence of any object which interfered with her as she approached the pavement. The day *Page 181
was bright; her footing was not insecure before stepping on the pipe and she admits that she could so have regulated her movements that she could have stepped to the sidewalk without putting her foot on the pipe. She had the same opportunity to see the alleged defect in the highway which the municipal authorities had, and the law requires that she be observant of where and how she was going so as to avoid dangers which ordinary prudence would suggest. When consideration is given to the small diameter of the gas pipe and its observed situation and the undisputed opportunity to have stepped from the firm ground between the pipe and the curb onto the pavement, we are unable to avoid the conclusion that the plaintiff's injury was not wholly attributable to the alleged negligence of the defendant. It is not sufficient that the latter be shown to be negligent. The plaintiff's case must be free from her own negligence. If she chose to test the stability of the pipe which she alleged was not adequately supported, she did so at her own risk. She had unquestioned opportunity to see the situation and elected to knowingly walk in a place which she declares the city was negligent in maintaining, and her injury therefore resulted from her mistake. By going a few feet to the right or left as she approached the sidewalk, she could have avoided the pipe wholly; she could have stepped over it without the slightest difficulty, so far as the evidence disclosed, and it must have been apparent to her as it is to us that it was not a stepping stone for approach to the sidewalk. The plaintiff's case is not more meritorious than that disclosed in Lerner v. City of Philadelphia, 221 Pa. 294, where a nonsuit was sustained. Misfortune alone will not support an action for negligence and while we may sympathize with the plaintiff in her unfortunate experience, we are required to apply the established rule that an action cannot be maintained unless the injury was caused by the negligence of the defendant alone. *Page 182
The judgment is reversed and is now entered for the defendant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1275773/ | 282 S.E.2d 548 (1981)
Thomas Garland DYER
v.
Thomas W. BRADSHAW, Jr., Secretary of the N. C. Department of Transportation, in his Official and Individual Capacity, And his Agents, Assigns, and Successors in Interest.
No. 8110SC140.
Court of Appeals of North Carolina.
October 6, 1981.
*549 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. James W. Lea III, and Asst. Atty. Gen. J. Chris Prather, Raleigh, for respondent-appellee.
Western North Carolina Legal Services, Inc. by Patrick Lordeon and Raymond D. Large, Sylva, for plaintiff-appellant.
VAUGHN, Judge.
The sole issue presented is whether the Superior Court had jurisdiction under any statute to review defendant's action in upholding plaintiff's dismissal. We hold the Superior Court was without jurisdiction and therefore properly dismissed plaintiff's complaint.
Plaintiff seeks judicial review of defendant's decision under G.S. 150A-43 of the Administrative Procedure Act. The statute provides:
Any person who is aggrieved by a final agency decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this Article, *550 unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute....
G.S. 150A-43 (1973). There are five requirements under this statute: (1) plaintiff must be an aggrieved person; (2) there must be a final agency decision; (3) the decision must result from a contested case; (4) plaintiff must have exhausted administrative remedies; (5) there must be no other adequate procedure for judicial review.
In the case at bar, plaintiff fails to meet the third element of a "contested case." "Contested case" is defined by G.S. 150A-2(2) as "any agency proceeding, by whatever name called, wherein the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing." (Emphasis added). It is clear that no statute requires the Secretary of Transportation to provide an adjudicatory hearing in reviewing the recommendation of the Employee Relations Committee.
Chapter 4 of Title 19A, North Carolina Administrative Code, sets forth the mechanics for dismissal of an employee of the Department of Transportation. The unit head must thoroughly investigate the case before taking any action. If the unit head discharges an employee and the employee feels his dismissal was unjustified, the aggrieved person may then appeal to an Employee Relations Committee. The Employee Relations Committee is a five-member panel appointed by the Department of Transportation's Director of Personnel. The decision handed down by this Committee is then reviewed by the Secretary of the Department of Transportation. According to 4B.0303, "the Secretary may either agree or disagree with the recommendations made by the committee." At no point does Chapter 4 require the Secretary to provide "an opportunity for an adjudicatory hearing" before making his determination. See also Advertising Co. v. Bradshaw, Sec. of Transportation, 48 N.C.App. 10, 268 S.E.2d 816 (1980).
Plaintiff, however, contends that the hearing before the Employee Relations Committee was itself an adjudicatory hearing, and thus there was a "contested case" triggering the application of G.S. Chapter 150A. We disagree. According to the Department of Transportation's personnel manual, the Employee Relations Committee hears appeals from state employees who have been suspended, demoted, or discharged. No final determination is made by the Employee Relations Committee. Its inquiry results in a recommendation with which the Secretary is free to agree or disagree in reaching his final decision. Title 19A, North Carolina Administrative Code 4B.0303. Such a recommendation is binding only if the Secretary fails to render a decision within thirty working days of receiving its recommendation, an event which did not occur in the present case.
Plaintiff must show "an opportunity for an adjudicatory hearing" in order for there to be "a contested case" as required for judicial review under G.S. 150A-43. Because plaintiff has failed to do so, we hold that the trial court properly dismissed plaintiff's claim for relief under the Administrative Procedure Act.
Plaintiff nevertheless contends that his complaint states a claim for relief under 42 U.S.C. § 1983. Plaintiff argues that his loss of employment constituted deprivation of a constitutionally protected property and liberty interest, thereby entitling him to procedural due process. We find no constitutional violation.
Not every property interest requires procedural due process. A protected property interest arises when one has a legitimate claim of entitlement as decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Thus, unless plaintiff can demonstrate that he had a legitimate claim to continued employment under either his employment contract or a state statute, he is not entitled to procedural due process in the form of an adjudicatory hearing. On this record, it is clear that plaintiff cannot so demonstrate.
*551 First, employment by the State of North Carolina does not automatically confer tenure. Nantz v. Employment Security Comm., 290 N.C. 473, 226 S.E.2d 340 (1976). There is nothing in the record which suggests that plaintiff's contract contained a duration clause. It is well established in this State that, absent such a clause, a contract of employment is terminable at the will of either party, irrespective of the quality of performance. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). Plaintiff's employment contract did not, therefore, provide him with a legitimate expectation of continued employment.
Second, there is no statutory recognition of a property interest in continued employment. G.S. 126-35 of the State Personnel Act states that no permanent employee shall be discharged except for just cause. It has been held that G.S. 126-35 "creates a reasonable expectation of continued employment and a property interest within the meaning of the due process clause." Faulkner v. North Carolina Dept. of Corrections, 428 F.Supp. 100, 103 (W.D.N.C.1977). That statute, however, only applies to employees who have been "continuously employed by the State of North Carolina for five years at the time of the act, grievance, or employment practice complained of." G.S. 126-39. The present case is governed by G.S. 126-4 which provides that the policies and rules of the State Personnel Commission
"...shall not limit the power of any elected or appointed department head, in his discretion and upon his determination that it is in the best interest of the Department, to transfer, demote, or separate a State employee who has not been continuously employed by the State of North Carolina for the immediate five preceding years."
G.S. 126-4 (1977).
In the case at bar, plaintiff had been employed by the State of North Carolina for less than five years at the time of his dismissal. He has, therefore, been deprived of neither "liberty" nor "property" within the scope of the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The order dismissing the action is affirmed.
Affirmed.
ARNOLD and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1275782/ | 159 Ga. App. 22 (1981)
282 S.E.2d 679
GRISWOLD
v.
THE STATE.
61647.
Court of Appeals of Georgia.
Decided June 19, 1981.
Robert A. Whitlow, for appellant.
Stephen A. Williams, District Attorney, Mike Cherof, Assistant District Attorney, for appellee.
SOGNIER, Judge.
Griswold was convicted of arson in a trial without a jury and appeals on the general grounds. He also contends the trial court erred by admitting a confession into evidence which was not made *23 voluntarily and was not corroborated by other evidence.
1. On January 2, 1980 W. W. Newberry, Jr. found his new home trailer burning. The trailer was smoldering on the bottom, and brush that had also been on fire was piled up under the area of the trailer that was burning. Newberry called the fire department and removed the brush. The fire was put out and fire investigators determined that the fire had been set deliberately. Later the same night appellant called the assistant fire chief from the police station and told him he (appellant) had set fire to the trailer. He repeated his confession when the assistant fire chief came to the police station; the fire chief informed a police detective and after being advised fully of his rights, appellant confessed to the detective. This evidence is more than sufficient to sustain the conviction, and we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond reasonable doubt. Fisher v. State, 151 Ga. App. 93 (258 SE2d 920) (1979).
2. At trial, appellant testified that prior to his confession, he had drunk a quart of whiskey. He denied setting the fire and testified that he confessed so his stepson could claim a reward offered for conviction of the person setting the fire. However, both the assistant fire chief and the detective testified that they detected no odor of alcohol on appellant's breath; the detective testified that he talked to appellant for five to ten minutes to see if he was under the influence of alcohol or drugs, and he was not. Appellant was advised fully of his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694) (1966)), stated that he understood his rights and waived his right to an attorney. Appellant was not threatened or coerced in any way, and no promises were made to induce his confession; in fact, he was advised that if he admitted committing arson he possibly could receive a jail sentence. In short, there is absolutely no evidence to indicate that appellant's confession was not voluntary.
Factual and credibility determinations as to voluntariness of a confession are normally made by a trial judge at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Daniel v. State, 150 Ga. App. 798, 801 (2) (258 SE2d 604) (1979). Since the trial judge was also the trier of fact in this case, the weight of the evidence and credibility of witnesses are questions for the trial judge. There is no evidence indicating that the trial court's determination of voluntariness was erroneous, and thus, it was not error to admit appellant's confession into evidence.
3. Appellant contends the evidence presented is not sufficient to corroborate his confession, and that he cannot be convicted on his confession alone. (See Code Ann. § 38-420). As pointed out in *24 Division 1, a house trailer was found on fire, and there was undisputed testimony that the fire was set. Additionally, Newberry's trailer was directly in front of appellant's trailer; appellant was Newberry's tenant, and was angry at Newberry because of bugs in his (appellant's) trailer; the trailer was new, and no electricity was hooked up to it which could start a fire; and there was no brush under the trailer when Newberry put it there. Additionally, appellant was in his trailer from about 4:00 p. m. until he went to the police station about 12:30 or 1:00 a. m. on the night the fire occurred. The question of the amount of evidence necessary to corroborate a confession is left to the jury. (trier of fact), and the jury "may consider the confession along with other facts and circumstances independent of and separate from it in determining whether or not the corpus delicti has been established to their satisfaction." Gilder v. State, 219 Ga. 495, 497 (133 SE2d 861) (1963). Applying this rule to the instant case, we find that the trial court was authorized to find that the confession was corroborated as required by Code Ann. § 38-420.
Judgment affirmed. Shulman, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3991171/ | I concur in the foregoing opinion save as to the amount of damages for which recovery is allowed. In my opinion such a recovery is not supported by the evidence and the amount should be materially reduced.
TOLMAN and FULLERTON, JJ., concur with BEALS, J. *Page 460 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/94444/ | 162 U.S. 466 (1896)
WALLACE
v.
UNITED STATES.
No. 731.
Supreme Court of United States.
Submitted March 2, 1896.
Decided April 20, 1896.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.
*471 Mr. John D. Hill and Mr. James H. Pratt for plaintiff in error.
Mr. Solicitor General for defendants in error.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
If Jerry Wallace believed and had reasonable ground for the belief that he was in imminent danger of death or great bodily harm from Zane at the moment he fired, and would not have fired but for such belief, and if that belief, founded on reasonable ground, might in any view the jury could properly take of the circumstances surrounding the killing, have excused his act or reduced the crime from murder to manslaughter, then the evidence in respect of Zane's threats was relevant and it was error to exclude it; and it was also error to refuse to allow the question to be put to Wallace as to his belief based on the demonstration on Zane's part to which he testified.
Where a difficulty is intentionally brought on for the purpose of killing the deceased, the fact of imminent danger to the accused constitutes no defénce; but where the accused embarks in a quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or killing, and under reasonable belief of imminent danger he inflicts a fatal wound, it is not murder. Whart. Hom. § 197; 2 Bish. Cr. L. §§ 702, 715; 4 Am. and Eng. Ency. Law, 675; State v. Partlow, *472 90 Missouri 608; Adams v. People, 47 Illinois, 376; State v. Hays, 23 Missouri, 287; State v. McDonnell, 32 Vermont, 491; Reed v. State, 11 Tex. App. 509.
In Adams v. People, it was ruled by the Supreme Court of Illinois, speaking through Mr. Chief Justice Breese, that where the accused sought a difficulty with the deceased for the purpose of killing him, and in the fight did kill him, in pursuance of his malicious intention, he would be guilty of murder, but if the jury found that the accused voluntarily got into the difficulty or fight with the deceased, not intending to kill at the time, but not declining further fighting before the mortal blow was struck by him, and finally drew his knife and with it killed the deceased, the accused would be guilty of manslaughter, although the cutting and killing were done in order to prevent an assault upon him by the deceased or to prevent the deceased from getting the advantage in the fight.
In Reed v. State, the Court of Appeals of Texas, in treating of the subject of self defence, said: "It may be divided into two general classes, to wit, perfect and imperfect right of self defence. A perfect right of self defence can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong if he was himself violating or in the act of violating the law and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self defence, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self defence. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him his own wrong and its consequences, to the extent that they may and should be considered in determining the grade of offence, which *473 but for such acts would never have been occasioned... . How far and to what extent he will be excused or excusable in law must depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defence and resistance whilst in the perpetration of such unlawful act. If he was engaged in the commission of a felony, and, to prevent its commission, the party seeing it or about to be injured thereby makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such attack he slays his assailant, the law would impute the original wrong to the homicide and make it murder. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self defence from any assault made upon him, would be manslaughter under the law."
After quoting from these and other cases, Sherwood, J., delivering the opinion of the Supreme Court of Missouri in State v. Partlow, remarked: "Indeed, the assertion of the doctrine that one who begins a quarrel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder, and cannot avail himself of the doctrine of self defence, carries with it, in its very bosom, the inevitable corollary, that if the quarrel be begun without a felonious purpose, then the homicidal act will not be murder. To deny this obvious deduction is equivalent to the anomalous assertion that there can be a felony without a felonious intent; that the act done characterizes the intent, and not the intent the act."
In this case it is evident that Wallace was bent as far as practicable on defending his possession against what he regarded and the evidence on his behalf tended to show was an unwarrantable invasion. But a person cannot repel a mere trespass on his land by the taking of life, or proceed beyond what necessity requires. When he uses in the defence of such property a weapon which is not deadly, and *474 death accidentally ensues, the killing will not exceed manslaughter, but when a deadly weapon is employed it may be murder or manslaughter, according to the circumstances. 1 Hale P.C. 473; 1 Hawk. P.C. c. 31, §§ 34, et seq.; Foster, 291; Davison v. People, 90 Illinois, 221; People v. Payne, 8 California, 341; Carroll v. State, 23 Alabama, 28; 1 Whart. C.L. § 462, and cases cited.
Whether the killing with a deadly weapon may be reduced in any case to manslaughter when it is the result of passion excited by a trespass with force to property, we need not consider, as the question, perhaps in view of the interval of time during which Wallace was seeking his gun, does not seem to have been raised. Conceding, though without intimating any opinion on the facts disclosed, that Jerry Wallace committed a crime, still the inquiry arose as to the grade of the offence, and, in respect of that, the threats offered to be proven had an important, and it might be decisive bearing, nor was the mere fact that Wallace procured the gun as stated in itself sufficient ground for their exclusion.
In Gourko v. United States, 153 U.S. 183, this court held that it was error to instruct a jury that preparation by arming, although for self defence only, could not be followed, in any case, by manslaughter, if the killing after such arming was not, in fact, necessarily in self defence; and that if, under the circumstances on the occasion of the killing, the crime were that of manslaughter, it was not converted into murder by reason of the accused having previously armed himself.
In Beard v. United States, 158 U.S. 550, 563, it was said: "In our opinion, the court below erred in holding that the accused, while on his premises, outside of his dwelling-house, was under a legal duty to get out of the way, if he could, of his assailant, who, according to one view of the evidence, had threatened to kill the defendant, in execution of that purpose had armed himself with a deadly weapon, with that weapon concealed upon his person went to the defendant's premises, despite the warning of the latter to keep away, and by word and act indicated his purpose to attack the accused. The defendant *475 was where he had a right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life or to do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury."
In Allison v. United States, 160 U.S. 203, it was held that in charging the jury on a capital trial in respect of the possession of a deadly weapon by the accused, it was error to ignore evidence indicating that such possession was for an innocent purpose. The subject of threats was there somewhat considered and authorities cited.
Necessarily it must frequently happen that particular circumstances qualify the character of the offence, and it is thoroughly settled that it is for the jury to determine what effect shall be given to circumstances having that tendency whenever made to appear in the evidence.
In Stevenson v. United States, 162 U.S. 313, we said:
"The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder... . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder and not manslaughter, or an act performed in self defence, and yet, so long as there was some evidence relevant to the issue of manslaughter, the *476 credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.
"By section 1035 of the Revised Statutes of the United States it is enacted that `in all criminal causes the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: Provided, That each attempt be itself a separate offence.' Under this statute a defendant charged in the indictment with the crime of murder may be found guilty of a lower grade of crime, viz., manslaughter. There must, of course, be some evidence which tends to bear upon that issue. The jury would not be justified in finding a verdict of manslaughter if there were no evidence upon which to base such a finding, and in that event the court would have the right to instruct the jury to that effect. Sparf v. United States, 156 U.S. 51... . Manslaughter at common law was defined to be the unlawful and felonious killing of another without any malice, either express or implied. Whart. Am. Cr. L. (8th ed.) sec. 304. Whether there be what is termed express malice or only implied malice, the proof to show either is of the same nature, viz., the circumstances leading up to and surrounding the killing. The definition of the crime given by section 5341 of the Revised Statutes of the United States is substantially the same. The proof of homicide, as necessarily involving malice, must show the facts under which the killing was effected, and from the whole facts and circumstances surrounding the killing the jury infers malice or its absence. Malice in connection with the crime of killing is but another name for a certain condition of a man's heart or mind, and as no one can look into the heart or mind of another, the only way to decide upon its condition at the time of a killing is to infer it from the surrounding facts, and that inference is one of fact for a jury. The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter."
Treating the excluded evidence as admitted, and assuming that Wallace would have testified that he believed from Zane's *477 demonstration that Zane intended to kill him, the evidence on defendant's behalf tended to establish bad feeling between Zane and Wallace in reference to the line between Mrs. Wallace's land and that of Julia Zane; an attempt on Zane's part to include a part of Mrs. Wallace's land in the Zane parcel; declarations by Zane the day before the homicide that he was going the next day to run a fence across what Wallace claimed to be his land, and threats that, if Wallace interfered with him in so doing, Zane would kill him, all communicated to Wallace before the homicide; previous threats also communicated that he would kill Wallace; forcible entrance by Zane, accompanied by several others, into the field claimed by Wallace, in which he was ploughing, and fencing off part of it commenced; boisterous and disorderly manifestations on their part and refusals by Zane to leave when ordered to go; such demonstrations by Zane at the moment as induced Wallace to believe that he was in imminent danger, and action based on that belief. Granting that the jury would have been justified in finding that Wallace's intention in going for the gun and returning with it as he did was to inflict bodily harm on Zane if he did not leave, still the presumption was not an irrebuttable one, and it was for the jury to say whether Wallace's statement that he procured the gun only for self protection was or was not true. And if they believed from the evidence that this was true, and that the killing was under reasonable apprehension of imminent peril, then it was for the jury to determine under all the facts and circumstances whether Wallace had committed the offence of manslaughter, rather than that of murder, if he could not be excused altogether.
We think that the threats were admissible in evidence, and, this being so, that the question as to Wallace's belief should not have been excluded. It has been often decided that where the intent is a material question, the accused may testify in his own behalf as to what his intent was in doing the act. People v. Baker, 96 N.Y. 340; State v. Banks, 73 Missouri, 592; Thurston v. Cornell, 38 N.Y. 281; Over v. Schiffling, 102 Indiana, 191; People v. Quick, 51 Michigan, *478 547; Fenwick v. Maryland, 63 Maryland, 239. In the latter case it was held that a person on trial for an assault with intent to commit murder is competent to testify as to the purpose for which he procured the instrument with which he committed the assault.
This rule is not controverted, but it is contended that Wallace's belief was immaterial. For the reasons given we cannot concur in that view and are of opinion that the witness should have been allowed to answer.
It is unnecessary to pass upon any of the other points raised on behalf of plaintiff in error.
Judgment reversed and cause remanded with a direction to set aside the verdict and grant a new trial. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/92904/ | 137 U.S. 496 (1890)
BASSETT
v.
UNITED STATES.
No. 110.
Supreme Court of United States.
Argued December 10, 1890.
Decided December 22, 1890.
ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.
*497 Mr. Franklin S. Richards for plaintiff in error. Mr. Charles C. Richards was with him on the brief.
Mr. Attorney General for defendants in error.
*501 MR. JUSTICE BREWER delivered the opinion of the court.
On November 23, 1886, the grand jury of the First Judicial District Court of Utah found an indictment for polygamy against the plaintiff in error, charging him with having married one Kate Smith on the 14th day of August, 1884, when his lawful wife, Sarah Ann Williams, was still living and undivorced. Upon trial before a jury a verdict of guilty was returned, and he was sentenced to imprisonment for a term of five years and to pay a fine of five hundred dollars. Such sentence, on appeal, was affirmed by the Supreme Court of the Territory, and is now brought to this court for review.
A preliminary question is presented by the Attorney General. It is urged that there was no proper bill of exceptions as to the proceedings in the trial court, and therefore nothing is presented which this court can review. But we are reviewing the judgment of the Supreme Court of the Territory; and the rule in this court is not to consider questions other than those of jurisdiction, which were not presented to the court whose judgment we are asked to examine. Clark v. Fredericks, *502 105 U.S. 4. Beyond the fact that the proceedings of the trial court were examined and considered by the Supreme Court of the Territory, and are, therefore, presumably reviewable by this court, is this matter, noticed by this court in the case of Hopt v. Utah, 114 U.S. 488, that a large liberty of review is given by the statutes of Utah to the Supreme Court of the Territory, even in the absence of a formal bill of exceptions. See also Stringfellow v. Cain, 99 U.S. 610; O'Reilly v. Campbell, 116 U.S. 418.
But it is unnecessary to rest upon this recognition by the Supreme Court of the Territory, or the presumptions arising therefrom. The record shows the pleadings, proceedings and exceptions to the charge of the trial judge, all certified properly by T.A. Perkins, the clerk of the trial court. At the close of his certificate, which is of date January 20, 1887, is this statement: "And I further certify that a copy of defendant's bill of exceptions in said cause is not made part hereof because said bill of exceptions is in the possession of defendant's counsel, at the City of Salt Lake, and because I am informed by said counsel that it has been stipulated by and between themselves and the United States district attorney for Utah Territory that the original thereof in place of such copy should be used in the Supreme Court upon this appeal." The bill of exceptions referred to by him in this statement is signed by the trial judge and thus endorsed: "No. 984. First Dist. Court, Utah. The United States v. William E. Bassett. Polygamy. Bill of exceptions. Filed Jan'y 19th, 1887. T.A. Perkins, clerk"; and also by the clerk of the Supreme Court of the Territory as "Filed Feb'y 2nd, 1887," the date of the filing of the transcript of the proceedings of the trial court. The import of all this is that the bill of exceptions signed by the trial judge was filed in the trial court; and that, for the purposes of economy, time and convenience, such original bill, together with the record of the proceedings, was brought to and filed in the Supreme Court after having been filed in the trial court. It needs but this suggestion, that if a copy is good the original is equally good. The identification of such bill of exceptions is perfect, vouched by the signatures *503 of the trial judge, the clerk of the District Court, and the clerk of the Supreme Court. To ignore such authentication would place this court in the attitude of resting on a mere technicality to avoid an inquiry into the substantial rights of a party, as considered and determined by both the trial court and the Supreme Court of the Territory. In the absence of a statute or special rule of law compelling such a practice, we decline to adopt it.
Passing from this question of practice to the merits, the principal question, and the only one we deem necessary to consider, is this: The wife of the defendant was called as a witness for the prosecution, and permitted to testify as to confessions made by him to her in respect to the crime charged, and her testimony was the only direct evidence against him. This testimony was admitted under the first paragraph of section 1156 of the Code of Civil Procedure, enacted in 1884, section 3878 of the Compiled Laws of Utah, 1888, which reads: "A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other." And the contention is, that polygamy is within the language of that paragraph a crime committed by the husband against the wife. We think this ruling erroneous. A technical argument against it is this: The section is found in the Code of Civil Procedure, and its provisions should not be held to determine the competency of witnesses in criminal cases, especially when there is a Code of Criminal Procedure, which contains sections prescribing the conditions of competency. Section 421 of the Code of Criminal Procedure, section 5197 of the Compiled Laws, 1888, is as follows: "Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife are competent witnesses for or against each other, in a criminal action or proceeding to *504 which one or both are parties." Clearly under that section the wife was not a competent witness. It is true that the Code of Criminal Procedure was enacted in 1878, and the Code of Civil Procedure in 1884, so that the latter is the last expression of the legislative will; but a not unreasonable construction is, that the last clause of this paragraph was inserted simply to prevent the rule stated in the first clause from being held to apply to the cases stated in the last, leaving the rule controlling in criminal cases to be determined by the already enacted section in the Code of Criminal Procedure. This construction finds support in the fact that the same legislature which enacted the Code of Civil Procedure passed an act amending various sections in the Code of Criminal Procedure, among them the section following section 421, quoted above, and did not in terms amend such section, (Laws of Utah, 1884, chapter 48, page 119); and in the further fact that the same legislature passed an act for criminal procedure in justices' courts, and in that prescribed the same rule of competency, and in the same language as is found in section 421, (Laws of Utah, 1884, chapter 54, section 100, page 153). It can hardly be believed that the legislature would establish one rule of competency for a trial in a justices' court, and a different rule for a trial of the same offence on an appeal to the District Court. And there are many offences of which justices' courts have jurisdiction, which are like polygamy in their social immorality and their wrong to the wife.
But we do not rest our conclusion on this technical argument. If there were but a single section in force, and that the one found in the Code of Civil Procedure we should hold the testimony of the wife incompetent. We agree with the Supreme Court of California, when, in speaking of their codes, which in respect to these sections are identical with those of Utah, it says in People v. Langtree, 64 California, 256, 259, "we think upon a fair construction both mean the same thing, although the Penal Code is more explicit than the other. On this, as on nearly every other subject to which the codes relate, they are simply declaratory of what the law would be if there were no codes." See also People v. Mullings, 83 California, 138.
*505 It was a well-known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other, except in cases of personal violence, the one upon the other, in which the necessities of justice compelled a relaxation of the rule. We are aware that language similar to this has been presented to the Supreme Courts of several States for consideration. Some, as in Iowa and Nebraska, hold that a new rule is thereby established, and that the wife is a competent witness against her husband in a criminal prosecution for bigamy or adultery, on the ground that those are crimes specially against her. State v. Sloan, 55 Iowa, 217; Lord v. State, 17 Nebraska, 526. While others, as in Minnesota and Texas, hold that by these words no departure from the common law rule is intended. State v. Armstrong, 4 Minnesota, 251; Compton v. State, 13 Texas App. 271, 274; Overton v. State, 43 Texas, 616. This precise question has never been before this court, but the common law rule has been noticed and commended, in Stein v. Bowman, 13 Pet. 209, 222, in which Mr. Justice McLean used this language: "It is, however, admitted in all the cases that the wife is not competent, except in cases of violence upon her person, directly to criminate her husband, or to disclose that which she has learned from him in their confidential intercourse." "This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down and impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence." We do not doubt the power of the legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the *506 common law, a rule having its solid foundation in the best interests of society, can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. When a code is adopted, the understanding is that such code is a declaration of established law, rather than an enactment of new and different rules. This is the idea of a code, except as to matters of procedure and jurisdiction which often ignore the past, and require affirmative description.
We conclude, therefore, that the section quoted from the Code of Civil Procedure, if applicable to a criminal case, should not be adjudged as working a departure from the old and established rule, unless its language imperatively demands such construction. Does it? The clause in the Civil Code is negative, and declares that the exception of the incompetency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other. Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the statute speaks of crimes against her, it is simply an affirmation of the old familiar and just common law rule. We conclude, *507 therefore, that under this statute the wife was an incompetent witness as against her husband.
Other questions in the record need not be considered, as they will probably not arise on a new trial.
The judgment of the Supreme Court of the Territory of Utah is reversed, and the case remanded, with instructions to order a new trial. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3421643/ | Appellants instituted this suit to foreclose *Page 278
a chattel mortgage given to the bank as security for the payment of three notes.
The amended complaint, on which the case was tried, was in three paragraphs, one on each note. Appellees filed joint and several answers in four paragraphs, one of which was verified and denied the acknowledgment of the chattel mortgage. The issues were closed by a reply in general denial.
The cause was submitted to the court for trial without a jury, and, request therefor having been duly made, the court made a special finding of facts and stated conclusions of law which were in effect that: (1) Appellants recover judgment against appellees William C. Michel and Clara Michel (his wife) on the notes, but (2) that appellant "is not entitled to a foreclosure of said chattel mortgage;" and (3) that no recovery be had as against appellee Earl Michel. Judgment was rendered in accordance with the conclusions of law.
The overruling of a motion for new trial, filed by appellants, and alleged error in the second conclusion of law, are the errors assigned and relied upon for reversal in this appeal.
The causes for new trial presented are: (1) the decision is not sustained by sufficient evidence; (2) the decision is contrary to law.
All the questions presented relate to the decision of the court that appellants were not entitled to a foreclosure of the chattel mortgage. The mortgage contained a proper form of acknowledgment and indicated that appellee William C. Michel had acknowledged it before a named notary public. The court found specially that William C. Michel had signed the mortgage, but found further that he "never acknowledged the execution of the chattel mortgage" before the notary public.
Appellants contend the evidence does not sustain such finding. *Page 279
The evidence on the subject of the acknowledgment of the mortgage is conflicting. For the purpose of determining said contention, we may disregard the evidence which is 1, 2. unfavorable to the finding. Appellee William C. Michel testified that the notary public was not present when he signed the instrument. That testimony was corroborated by the testimony of appellee Clara Michel and appellee Earl Michel. William C. Michel further testified that he at no time acknowledged the execution of said instrument before or to said notary public. We hold that the evidence is sufficient to sustain said finding.
The evidence further shows and the court found specially that on December 23, 1933, about three years after appellee William C. Michel signed said chattel mortgage, he executed and delivered to appellee Earl Michel (his son) his chattel mortgage on substantially the same personal property covered by the mortgage which appellants seek to foreclose, to secure the payment of a promissory note executed and delivered to him by his father; that on the same date appellee William C. Michel executed and delivered to appellee Clara Michel (his wife) another chattel mortgage on substantially the same personal property, to indemnify her as surety on a note executed by the mortgagor to the First State Bank of Huntington, which note was dated December 11, 1933.
The mortgage sought to be foreclosed not having been acknowledged, it is not valid against appellees Clara Michel and Earl Michel, who were not parties thereto, but who have an 3. interest in the property covered by the mortgage (Sec. 33-301 Burns 1933, § 8373 Baldwin's 1934), and therefore the court's decision that appellants be not entitled to a foreclosure of their mortgage as against said two appellees *Page 280
is not contrary to law, but in harmony with law. The evidence is sufficient to sustain the decision.
Other questions are stated in appellants' brief, but the questions which we have discussed are determinative of this appeal, and it is not necessary that we discuss any of said other questions.
No reversible error having been shown, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3991282/ | 1 Reported in 173 P.2d 994.
This is an appeal from a judgment dismissing a petition for a writ of mandate which, if it had been granted, would have compelled the city of Seattle, its mayor, and fire chief to put into immediate operation the provisions of an initiative ordinance reducing the hours of work of Seattle city firemen, but prohibiting any reduction in their existing salaries.
The initiative ordinance reads as here set forth in full:
"AN INITIATIVE MEASURE
"TO THE HONORABLE MAYOR AND CITY COUNCIL OF SEATTLE:
"The undersigned voters of Seattle, King County, Washington, hereby propose and request the enactment of an ordinance as follows:
"ORDINANCE NO. (74805)
"AN ORDINANCE providing for a forty-eight hour week for members of the uniformed force of the Seattle Fire Department.
"BE IT ORDAINED By the City of Seattle as follows:
"Section 1. No member of the uniformed force of the Fire Department shall be required to be on duty more than 48 hours in any one week, except in case of a fire emergency; provided, that an arrangement may be made whereby the hours of duty for such members when averaged over each consecutive fifty-two weeks shall not be more than at the rate of 48 hours per week.
"Section 2. No reduction shall be made in the existing *Page 335
salaries of such members by reason of the enactment of this ordinance."
The proposed ordinance was duly and regularly prepared and submitted to the voters of Seattle under the provisions of the city charter which was then in force, and which will hereinafter be referred to as the old charter.
At a regular municipal election held March 12, 1946, the initiative measure received the requisite majority of votes in its favor, as shown by the return of the canvassing board made March 21st, and on March 26th the acting mayor issued a proclamation declaring the measure to be in full force and effect as an ordinance of the city of Seattle, as required by the provisions of the old charter as well as by the terms of the new charter, to both of which more specific reference will presently be made.
At that same election, held March 12, 1946, the voters of Seattle duly and regularly adopted a new charter, which differed from the old one in certain respects material to the present controversy. The old charter contained a provision, Art. IV, § 1 (paragraph 7), reading as follows:
"Any measure [initiative] thus submitted to the vote of the people, which shall receive in its favor a majority of all the votes cast for and against the same, shall become an ordinance of the City of Seattle, and be in full force and effect from andafter proclamation by the mayor, which shall be made, and published in the city official newspaper, within five (5) daysafter the election." (Italics ours.)
The new charter contained this same provision, in Art. IV, § 1F, but with this proviso:
"Provided that if such adopted ordinance contemplates any expenditure which is not included in the current budget, or which is not to be paid from an existing bond issue, or which eliminates or reduces an existing revenue; such expenditure or elimination shall not be lawful until after the next succeeding budget shall take effect; Provided, further, that the above restriction shall not be operative when less than twenty thousand dollars is involved." (Italics ours.)
In this case, no question of payment "from an existing bond issue" and no question of an expenditure which will *Page 336
eliminate or reduce "an existing revenue" are involved, but only a question relating to an expenditure "which is not included in the current budget."
The election board duly canvassed the votes cast with reference to the new charter and certified the result thereof on March 21, 1946, the same day on which the canvass and return were made with respect to the initiative measure.
Thereafter, on April 29, 1946, the city council of Seattle passed ordinance No. 74925, which was approved by the mayor on May 1st. That ordinance, after referring to the adoption of the initiative measure set forth above, recited various reasons why the working conditions, the expenditures required thereby, and the present budgetary restrictions contemplated by the measure made it impossible to put that measure immediately into operation, and then ordained that the chief of the fire department take the necessary steps to place the uniformed fire force on a forty-eight hour work week on January 1, 1947, and in the meantime to recruit and train additional firemen necessary and sufficient to accomplish the purpose and object of the initiative measure.
Prior to the adoption of the initiative ordinance, the hours and wages of the city firemen had been based on a seventy-two hour work week, under what is termed a two-platoon system. That system and schedule have been maintained by the municipal authorities continuously ever since, despite the adoption of the initiative measure. Respondents predicate their refusal, or rather failure, to put the initiative measure into immediate operation on two alternative grounds, as recited in the later ordinance No. 74925: (1) that to use the present force on a forty-eight hour work week basis would create a seriously dangerous condition of fire protection; and (2) that, if the initiative ordinance were put into immediate operation, it would require the creation of a three-platoon system together with the expenditure therefor of approximately four hundred thousand dollars during the remainder of the year 1946, such amount not being included in the current budget and for which no provision could presently be made. *Page 337
Appellant concedes that if the matter of expenditures for an additional quota of firemen can be considered relevant to the present issue, the amount necessary therefor would exceed twenty thousand dollars. The new charter provides that any expenditure in excess of that amount which is not included in the current budget shall not be lawful until the next succeeding budget shall be in effect.
Two questions are presented upon the appeal. The first question is whether the operative effect of the initiative measure is determined and governed by the old charter or, on the contrary, by the new charter. Appellant contends that the old charter is controlling in that respect, and that the new charter was intended to operate only upon new initiatives arising by petition filed after the effective date, and under the authority, of the new charter. He argues that any other construction of the new charter would give it a retroactive effect, antagonistic to the rule of statutory construction that a statute is presumed to operate prospectively only and will not be given a retroactive effect unless, by its terms, it shows clearly that such was the legislative intent. Respondents take the opposite position, contending that, upon the adoption of the new charter, it became the entire organic law of the city and therefore superseded the old charter with respect to the matter here involved, and that, by virtue of the prior effective date of the new charter, its operation is in fact and law altogether prospective and in no sense retroactive.
As stated above, the election, both upon the new charter and upon the initiative measure, was held on March 12, 1946, that is to say, the voting on both propositions took place on that day; on March 21st, the election board canvassed the vote and certified the results as to both of those matters; and, on March 26th, the acting mayor of Seattle issued his proclamation relative to the adoption of the initiative measure, as required by the express terms of both charters.
Article XI, § 10, of the state constitution, relating to the incorporation of municipalities and adoption of charters therefor, provides: *Page 338
". . . Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organiclaw thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with suchcharter. . . ." (Italics ours.)
Rem. Rev. Stat., §§ 8953, 8954 [P.P.C. §§ 364-7, 364-9], enacted in 1890 and implementing the constitution, provide for the framing of charters by fifteen freeholders previously elected and for the submission of charters so framed to the qualified voters of the city at an election duly called and held for that purpose.
Rem. Rev. Stat., § 8955 (chapter 137, § 1, Laws of 1925, Ex. Ses.) (now Rem. Supp. 1945, § 8955 [P.P.C. § 367-1]) relates to the revision of charters by altering, changing, revising, adding to, or repealing previously existing charters, and provides for submitting such new charters to the qualified electors of the city for ratification or rejection.
Rem. Rev. Stat., § 8956 [P.P.C. § 367-3] (chapter 137, § 2, Laws of 1925, Ex. Ses.), provides that such new or revised charter shall be submitted to the qualified electors of the city,
". . . and if a majority of such qualified electors voting thereon ratify the same it shall become the charter of saidcity, and shall become the organic law thereof and supersede anyexisting charter." (Italics ours.)
The new charter which is here involved was prepared, submitted, and adopted pursuant to the provisions of Rem. Rev. Stat., §§ 8955, 8956, relating to revision of charters.
While § 8956 employs the general phraseology used in Art. II, § 10, of the constitution and provides that, if a majority of the qualified electors ratify the proposed new charter, it "shall become the charter of said city, and shall become the organic law thereof," neither the constitution nor the statute specifies or indicates the exact time when such proposed or new charter shall take effect. The determination of that question in this instance has considerable bearing on the present controversy, for the reason that, if the *Page 339
new charter became effective prior to the effective date of the initiative measure, the new charter would be controlling. There would then be no valid ground for contending, as appellant contends, that only by giving the new charter a retroactive effect could it dispel or postpone the immediate operation of the initiative measure as adopted. We therefore turn our attention to a consideration of the question thus suggested.
Under the laws of this state, all elections are conducted according to the manner provided by an election board consisting of the chairman of the board of county commissioners, the county auditor, and the prosecuting attorney in each county. Rem. Supp. 1945, § 5147 [P.P.C. § 522-9]. This board also constitutes the canvassing board for all such elections. Rem. Rev. Stat., § 5148 [P.P.C. § 522-11]. The vote in city elections is canvassed and the returns made by the same officers and in the same manner as for general elections. Rem. Rev. Stat., § 5201 [P.P.C. § 529-53]. Canvass of the votes and return of the results from general elections must be made on the tenth day after the day of each election. Rem. Rev. Stat., § 5340 [P.P.C. § 525-21].
In view of these latterly-mentioned statutes with reference to the holding of elections, canvassing the votes, and making returns thereon, taken in connection with Rem. Rev. Stat., §§ 8955, 8956, relating to the adoption of revised charters, some question might at times arise, as apparently was suggested to the trial court, as to whether the effective date of a city charter is the day on which the charter election is held or whether it is the day on which the canvass and official return of the result are made.
[1] While this question has not often arisen, the cases upon the subject seem to be in general accord to the effect that the legislature has the power, within constitutional limitations, to provide for the manner in which the result of an election shall be determined and declared, and where the legislature has so provided, an election is not complete until the legislative mandate is obeyed. 29 C.J.S. 325, *Page 340
Elections, § 222; 18 Am. Jur. 357, Elections, § 268. There is some room for argument, however, that provisions of an election statute which affect the receiving and recording of the ballot and the canvass of the vote, are merely directory, and that therefore the election is complete when the electors have expressed their will.
[2] In the case at bar, it is immaterial whether we consider the date of the election or the date of the canvass and return thereof as the effective date of the new charter, for, in either instance, the result will here be the same. In either instance, the effective date of the new charter will have antedated the effective date of the initiative measure by five days. This is so for the reason that both the old charter and the new charter expressly provide that any measure submitted to the vote of the people and receiving in its favor a majority of all the votes cast for and against it shall become an ordinance of the city and be in force and effect from and after proclamation by the mayor, which shall be made and published within five days after theelection.
If the new charter became effective on March 21st, when the canvass of the vote was completed and the return thereon made, the initiative ordinance did not become effective until March 26th, when the proclamation of the mayor was actually made. If, on the other hand, the new charter became effective on the date of the election, March 12th, the initiative ordinance could not have become effective until the proclamation thereof was made, within five days after the election.
[3] As to the operative effect of a legislative enactment, the rule in this state, and elsewhere generally, is that a statute or an ordinance speaks only from the time it goes into effect. State ex rel. Hardy v. Superior Court, 155 Wash. 244,284 P. 93; State ex rel. French v. Seattle, 187 Wash. 58,59 P.2d 914.
[4] Under these circumstances, the new charter, which in any event became effective before the effective date of the initiative measure, does not operate retroactively with respect to the initiative ordinance, as contended by appellant, but operates entirely in a prospective manner. *Page 341
An analogous situation was presented to this court in State exrel. School Dist. No. 301 v. Clausen, 109 Wash. 37,186 P. 319, wherein the facts were these: On May 24, 1919, a school district regularly called and held a special election upon a proposition which, if adopted, would have enabled the district to borrow the sum of seventy-five thousand dollars for the erection of certain school buildings, and to issue its negotiable interest-bearing bonds evidencing its indebtedness in that amount. The proposition and its adoption were in accordance with Rem. Code, § 4607, which provided that bonds so issued should bear interest payable annually or semiannually and should be redeemable at such time "as may be designated in the bonds, but not to exceed twenty (20) years from date of issue."
Within a short time after the election, the state officers who possessed authority to invest the permanent school fund submitted a bid for the bonds to be so issued. The bid was accepted, but on June 12, 1919, before the bonds had actually been issued, a statute (Laws of 1919, p. 216, § 12) went into effect, amending Rem. Code, § 4607, and providing that all school district bonds issued for the erection of buildings of a permanent character "shall be made payable in semi-annual installments, beginning the third year, over any period not exceeding forty years from date."
Upon refusal of the state auditor to accept the bonds and issue warrants therefor, the school district instituted an action to compel him to do so. This court, in denying the requested relief, held that the power of school districts was wholly a legislative matter and could be taken away or limited by the legislature after once being granted. The court further held that, no contractual rights of any nature having accrued with reference to the proposed bond issue prior to the going into effect of the amendatory act, the latter act operated to dispossess the school district of power to issue the bonds as proposed and voted, and for which the bid in question was made.
In State ex rel. Rose v. Hindley, 67 Wash. 240, 121 P. 447, this court considered the effect of a new charter upon a salaried position created by a former charter. In holding *Page 342
that the position ceased upon the adoption of the new charter, the court said:
"This court has many times noticed and followed the rule that a new law purporting to be the whole law upon the subject-matter of which it relates repeals a former general law on that subject, even though the new law contains no express repealing clause. [Citing cases.]
"It follows that, since the new charter was adopted as a new and complete charter, and in no sense as an amendment of the old one, it thereby became the entire organic law of the city, and all the provisions of the old charter were thereby effectually repealed, although we do not find in the new charter any express repealing language directed against the old charter."
[5] In the case at bar, the new charter, being a revision of the old charter, became the sole and complete organic law of the city of Seattle, superseding the old charter, including any amendments thereto, and all special laws inconsistent with the new charter. Upon the first question involved in this appeal, we hold against appellant's contention.
The second question presented by the appeal arises upon appellant's contention that, in any event, the restriction contained in the new charter does not apply to the initiative ordinance. The restrictive language in the new charter provides that, if any adopted ordinance contemplates any expenditure inexcess of twenty thousand dollars which is not included in thecurrent budget, such expenditure shall not be lawful until after the next succeeding budget shall take effect. It is conceded that the next succeeding budget involved in this case will not take effect until January 1, 1947.
Appellant's contention is that the initiative measure does notcontemplate any particular fixed expenditure, but "contemplates" only (1) a reduction in hours of work of firemen to a forty-eight hour work week level and (2) the maintenance of their existing salaries; that the matter of expenditures is purely incidental, to be taken care of by the city council through its legislative and administrative processes. This contention and the argument thereon require consideration *Page 343
of the meaning of the word "contemplates," as used in the new charter.
Appellant's counsel quotes the definition as taken from Webster's New International Dictionary (1941):
"1. To mediate on; to study; 2. to have in view as contingentor probable or as an end or intention; to purpose or intend." (Italics ours.)
Funk Wagnall's New Standard Dictionary (1929) defines the word thus:
"1. To look at attentively; hence, to consider thoughtfully; meditate on; think on. 2. To consider with a view of accomplishing; intend; plan. 3. To treat of as contingent orpossible. (Italics ours.)
Oxford's Dictionary (Murray, 1893), defines it as:
"1. To look at with continued attention, gaze upon, view, observe; 2. to view mentally; to consider attentively, meditate upon, ponder, study. 3. To consider in a certain aspect; to look upon, regard. 4. To have in view, look for, expect, take intoaccount as a contingency to be provided for." (Italics ours.)
Selecting one of the definitions permissible by these lexicons, and using it in place of the word "contemplates," the proviso in Art. IV, § 1F of the new charter would read:
"Provided that if such adopted ordinance have in view ascontingent, probable or possible any expenditure which is not included in the current budget," etc.
The question then would be: Does the initiative ordinance have in view as contingent, probable, or possible any expenditure which is not included in the current budget?
The evidence in this case shows, and the fact is, that if the present force of firemen were required to be on duty only forty-eight hours a week, instead of seventy-two hours, the city of Seattle would either be left utterly without fire protection during twenty-four hours of each week, or else, in order to maintain continuous protection, the force on duty during any particular period would have to be reduced by one third. The evidence also shows without dispute that to maintain a three-platoon system, affording complete and constant fire protection, would require the *Page 344
employment of an additional quota of firemen, involving an expenditure of approximately five hundred thousand dollars between the time of the adoption of the initiative measure and January 1, 1947.
Appellant makes this concession in his brief:
"It is true that the expenditure, if the plan proposed by the Fire Chief were put into effect, would be over $20,000 [the amount specified in the new charter as not being within its restrictive provision]. On the other hand, if so desired by the City, as shown by the evidence, the hours might be reduced, witha lowering of efficiency it is true, without any expenditure whatsoever or with a varying degree." (Italics ours.)
The firemen themselves no doubt would be the last to concede that the work heretofore done by them in seventy-two hours could as easily and efficiently be performed by them in forty-eight hours, and they no doubt would likewise readily concede that to employ men sufficient to make up a third platoon would involve expenditures for salaries comparable with their own.
It is inconceivable that the electors who voted in favor of the initiative measure contemplated that the city would thereby be left with inadequate fire protection, or, to state it in converse form, it may be safely assumed that the electors contemplated that the present standard of fire protection was to be maintained. Any intelligent voter would also know, or have in mind the probability, that to maintain the present standard of protection would require the addition of a large force of firemen, involving a tremendous cost, regardless of whether the necessary money came out of a future budget or out of the present emergency fund. No matter whence the required funds were to be derived, the expenditures would have to be made, in order to accomplish the needs of the city occasioned by the adoption of the initiative ordinance.
While the charter might have used some word or phrase which would have expressed its intent with greater precision than the word "contemplates," we do not believe that any such substituted word or phrase would have much *Page 345
improved, or have been greatly preferable to, the definition above given, "to have in view as contingent, probable, or possible." To say that when the voters adopted the initiative measure they had in view only the matter of reducing the number of work hours for firemen and the maintenance of their existing salaries, without regard to the immediate consequences or necessities involved therein, would be to ascribe to them either a reckless disregard of the safety of their own lives and property, or else a total lack of conception of the relation between services required and the cost thereof. We do not think that the citizens of any community would be so devoid of care for self-preservation or so lacking in knowledge of the fundamental principles of financial matters.
[6] The general purpose or spirit of a legislative act must always be held in view, and absurd consequences avoided as far as possible. Dennis v. Moses, 18 Wash. 537, 52 P. 333, 40 L.R.A. 302; State v. Asotin County, 79 Wash. 634, 140 P. 914; In reHorse Heaven Irr. Dist., 11 Wash. 2d 218, 118 P.2d 972;Martin v. Department of Social Security, 12 Wash. 2d 329,121 P.2d 394. A thing which is within the object, spirit, and meaning of a legislative act is as much within the act as if it were within the letter. State ex rel. Spokane United Rys. v.Department of Public Service, 191 Wash. 595, 71 P.2d 661; 2 Lewis' Sutherland Statutory Construction (2d ed.), §§ 369, 379.
[7] We are entirely convinced that the initiative measure, its proponents, and its adopters did contemplate the expenditures made necessary by the immediate operation of the measure.
The judgment is affirmed.
MILLARD, C.J., SIMPSON, MALLERY, and SCHWELLENBACH, JJ., concur. *Page 346 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3841970/ | Proceeding by Minnie Norton, administratrix of the estate of Mary Norton, deceased, against Claude Harold Norton and others to determine the heirs and distributees of the estate, in which named defendant filed a cross-petition and cross-complaint claiming the entire estate. From an order sustaining two of three general demurrers to the cross-petition and cross-complaint and adjudging that cross-complainant is not an heir to the estate and is not entitled to inherit or receive as heir of said estate any part thereof, said Claude Harold Norton appeals.
AFFIRMED.
Proceeding to determine who are heirs and distributees of the estate of Mary Norton, deceased. From an order sustaining two general demurrers to the cross-petition and cross-complaint of Claude Harold Norton and ordering, adjudging and decreeing that the said Claude Harold Norton is not an heir to the estate aforesaid and is not entitled to inherit or receive as heir of said estate any part thereof, said Claude Harold Norton appeals. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858305/ | Submitted October 26, 1943.
This is a workman's compensation case. The appeal involves the validity of the claimant's marriage to the deceased employee, Edward Joseph Wydra, also known as Adam Wydra. *Page 531
It is undisputed that the relation between them was meretricious at its inception; for he had a legal wife (Stella Wydra) living at the time they had sexual intercourse, resulting in the birth of a son, Edward Joseph Wydra, on March 22, 1938. About two weeks thereafter they began housekeeping on Chestnut Street, Kulpmont, where they lived together, with their child, ostensibly as husband and wife. This continued until shortly after the death of his mother in May, 1939, when the three of them moved into the home of his father, Joseph Wydra, 942 Spruce Street, Kulpmont, with whom they all continued to live until the employee's death on January 20, 1941, as the result of an accident in the course of his employment with the defendant. During all that time the claimant and the employee cohabited together as husband and wife and were so known and reputed in the neighborhood. Of course that did not make them husband and wife, for as long as Stella Wydra was living and undivorced, Edward Joseph Wydra (or Adam Wydra) was legally incompetent to marry the claimant.
But on April 6, 1940 Stella Wydra procured a divorce in Northumberland County from Adam Wydra (also known as Edward Joseph Wydra) on the ground of desertion; and thereafter he and the claimant were legally competent to marry each other. It is the circumstances following this divorce that rule this case.
It was proved by a number of witnesses that shortly after the final decree of divorce was entered, a `wedding party' was held in the father's home, to which they were invited as guests and were present when the parties, the claimant and the employee, Wydra, publicly took each other as husband and wife respectively and Wydra placed a ring on her finger in token of their marriage. The witnesses were foreigners not familiar with the niceties of grammar or the distinction of tenses in English, and there was some difference of recollection as to the language used. *Page 532
The claimant testified:
"Q. After this divorce was granted then did you marry this man? A. I just make a party, dinner wedding in my father-in-law's house. Q. What happened there, what did he say to you and what did you say to him? A. There were people there and everything on the table and he said `Mary, are you going to be wife and husband' and gave me a ring and I took that ring and I said `Joseph, I am going to be your wife.' Q. And did you go to live after that as husband and wife? A. Yes. Q. Where? A. In the house."
Antoinette Rakus, a niece of claimant, testified:
"Q. Were you present at the dinner of these parties, this woman testified to? A. Yes. Q. Where was that held? A. On Spruce Street, Kulpmont. Q. What was the purpose of that dinner? A. To celebrate a wedding. Q. Who were the parties to that wedding? A. Mary Wydra and Edward Wydra. Q. The fellow who was killed? A. Yes. Q. What did you hear and see at that wedding? A. At the table he put a ring on her finger and said `Mary, I want you to be my wife' and Mary said to him `Edward, I want you to be my husband.' Q. And then he put the ring on her finger? A. Yes. Q. Did you enjoy the wedding feast? A. Yes; we congratulated them and wished them a lot of happiness."
Bernard Robacheski, a brother of claimant, testified:
"Q. Were you present at this supposed wedding ceremony? A. Yes. Q. Where did it take place? A. On Spruce Street, Kulpmont. Q. What did take place? A. He gave me an invitation to the wedding and I came over and he said `Mary, I take you for my wife' and she said `I take you for my husband' and he put a ring on her finger. Q. And they lived together from then on? A. Yes."
Stella Giacowski, claimant's sister, testified:
"Q. Did you attend this wedding? A. Yes. Q. Where was that held? A. On Spruce Street, Kulpmont. *Page 533
Q. What time of day was it held? A. I don't know, some day in May. Q. Evening? A. Evening. Q. Why was it held there, do you know; why did they have the wedding like that? A. Wedding. Q. Have a good time at the wedding? A. And how; lots of drink, lots of beer, everything. Q. What did these people say to each other? A. Joe Wydra said `You be my wife, I be' — I can't say. Q. Husband? A. That is right."
Joseph Wydra, the father of the deceased employee, testified that shortly after the divorce was granted, his son and the claimant married each other, at a wedding party held in his home, at which his son put a ring on her finger and said `You be my wife' and she said `You be my husband'; but as he later retracted this testimony, when called as a witness by the defendant, the board did not give it much weight.
The circumstances attending the gathering — the wedding
dinner or supper — the use of the ring — in connection with the language used by the participants — some of which was clearly in the present tense,1 and all of which contemplated an immediate taking in marriage — warranted a finding by the board of a present intention on the part of both man and woman, then and there, to enter into the relation of husband and wife. That was the object of the gathering. It was not a betrothal dinner. It was a wedding dinner. The fact that the witnesses did not exactly agree in their recollection as to the words used by Wydra and the claimant lends support to their truthfulness. If the words used by all had been precisely the same, it would have suggested a rehearsed story.
The circumstances of this case clearly distinguish it fromWolford v. Whiterock Quarries, 144 Pa. Super. 577,20 A.2d 887, relied on by the court below, in that (1) the words there used were casually spoken, *Page 534
immediately following the receipt of news that Wolford had been divorced by his wife, and not at a gathering called to be present at a wedding, and (2) the claimant admitted that thereafter they had fixed a day on which they would be married, and that Wolford was killed before that day arrived.
We held that the testimony in Sharpe v. Federal Cleaning Co.,144 Pa. Super. 231, 233, 19 A.2d 509, was sufficient to support a finding that a common law marriage had taken place, but held it invalid because the man was already married when it took place. The testimony was no stronger, if as strong, inCaddy v. Johnstown Firemen's Relief Assn., 129 Pa. Super. 493,496-498, 196 A. 590; Estate of William A. Goldman, 109 Pa. Super. 388,390, 391, 167 A. 244; Hines's Est., 10 Pa. Super. 124,126; Brown v. Nolen, 298 Pa. 384, 387,148 A. 498; McGrath's Est., 319 Pa. 309, 179 A. 599; in all of which the marriage was sustained.
It must be remembered that the workmen's compensation board is the fact-finding body; that neither the court of common pleas nor this court can disturb its findings of fact if there is sufficient competent evidence to support them, and they do not contravene some established principle of law.
The evidence, if believed, was sufficient to support a finding that Edward Joseph Wydra and the claimant, in the presence of witnesses invited to be guests at their "wedding", married each other, using words uttered for the purpose and with the intent of then and there — that is `in praesenti' — assuming the relation of husband and wife, and that following the same they lived together as man and wife continuously to the date of his death. This would be sufficient to establish a legal marriage. The board, in effect, so found, and its finding being supported by sufficient competent evidence, and not being in contravention of law, cannot be disturbed by the lower court or this court, whether *Page 535
it or we would have made the same finding, if we had been the triers of fact.
If, as the board found, a valid legal marriage took place between the claimant and the decedent, their child born before marriage was thereby legitimated (Act of May 14, 1857, P.L. 507, 48 P. S. § 167) and he is to be regarded as a legitimate child of the deceased employee and not a child to whom such employee stood in loco parentis.
The assignments of error are sustained. The judgment is reversed, and the record is remitted to the court below with directions that judgment be entered on the award of the referee, as affirmed by the board.
1 See the testimony of Bernard Robacheski and Stella Giacowski,
supra. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3856580/ | Argued May 4, 1937.
On April 6, 1935, libellant filed his libel in divorce alleging that respondent, by her cruel and barbarous treatment, had endangered his life and offered such indignities to his person as to render his condition intolerable and life burdensome. On May 31, 1933 respondent was committed to the Allegheny County Home suffering from locomotor ataxia, and on the date of the presentation of the libel, was still so confined. On the day the libel was filed, libellant presented his petition, which showed that on June 28, 1933 the Potter Title and Trust Company had been appointed a guardian of respondent's estate, and asked for the appointment of a committee ad litem to represent the respondent in the divorce proceeding, upon which an order was made appointing William F. Beatty, Esq., as committee ad litem, who appeared as counsel in the court below and also in this court. It is unnecessary to detail the steps taken by the court below to protect the interests of the respondent, who was physically and *Page 108
mentally able to contest the divorce. The court of common pleas entered a final decree on both grounds alleged in the libel.
Libellant, now aged 49, and respondent, 43, were married in Allegheny County on July 25, 1917 and lived with the wife's parents in McKees Rocks until the death of the wife's father. The mother then purchased a home at Crafton where libellant and respondent lived until libellant left on December 19, 1931. The mother died in 1925.
Libellant testified in part as follows: "Q. What was the cause of your separation on December 19, 1931, Mr. Campbell? A. Well, I knew she was running around with other men and I told her a couple of times about it and on a couple of occasions in the morning when I slept late she was fighting to get me out of the house and I watched from the corner and saw this fellow drive up and go in the house on several occasions. . . . . . . Q. You stated you had other suspicions about the fact that your wife was ill with a disease. How did your suspicions arise, Mr. Campbell? A. The breaking out on the face and then in her walk. I had seen some of the cases. Q. How did she walk? A. She walked in a stooped posture and legs straight out. Q. Were there any other reasons that caused this suspicion you had? A. Just prior to me leaving she started to become violent toward me. Q. When you speak of violence, what do you mean, Mr. Campbell? A. She would break out in rages over no reason whatever and fire things at me. Q. What would she fire at you? A. She would pick up anything she could get her hands on. She threw dishes at me on several occasions. Q. Was there anything else she threw at you besides dishes? A. I don't recall anything more."
He also testified respondent always displayed an antagonistic attitude toward him and all of his friends. A short time after the marriage, while attending a party *Page 109
at the home of a friend, and while he was playing the piano, respondent demanded that he go home, cracked him on the back of the head twice and knocked him to the floor. In February 1921, libellant's father died, and he, respondent and her mother went to the home of the deceased parent, remained a few minutes, when respondent insisted that she be taken back to her own home. When he wished to return to his father's home and greet the visitors, who desired to pay their respects, respondent flew into a rage and grabbed a key and locked the door and gouged libellant on the back of the head and neck, as a result of which it was necessary for the wounds to be treated. On other occasions, when visiting with friends, she displayed a generally, mean, antagonistic attitude, and during all their relations with outsiders, she was a source of embarrassment to him. For about a year after their marriage, he took her out among his friends, but made no effort from that time on. After the separation, on different occasions, she annoyed him as he was leaving the office building where he worked. As to these incidents, he was corroborated by W.F. McCrea, a fellow-employee. He first learned that his wife was afflicted with syphilis in July, 1931, when he found in his wife's dresser a report by Dr. Ernest W. Willets, dated July 8, 1931, which showed that the Wassermann reaction was very strongly positive and the Kahn test four plus. Prior to this, his wife had informed him that she was suffering from spinal trouble, and was being treated by Doctor Orr. He also found in the dresser some pictures of one George Chillicothe, and a purported unsigned will of respondent disposing her property to Chillicothe. In 1931 he frequently saw George Chillicothe enter his home after he had left in the morning. He testified that his health was very good, and, to the best of his recollection, he had never gone to a doctor; that he had been continuously employed by the same company nearly twenty-five years; and that he had not had intercourse *Page 110
with his wife during the last eight years of their married life, they having slept in separate rooms.
Mrs. Campbell, an aunt of libellant, testified, in corroboration of the injuries received by libellant when he was gouged with a key, that "it looked to me as though he had been scraped." As to respondent's antagonistic attitude and source of embarrassment to her husband, H.F. Stocker, a friend of libellant, testified she was always antagonistic "so much so that everybody just got tired of her and didn't want her in their midst . . . . . . raising the devil, just different from anybody else." This occurred the first year of their marriage.
Dr. Ernest W. Willets testified that the report from his office of July 8, 1931, indicated that the respondent had syphilis. His testimony was that this disease can be inherited, or contracted by contact with the infection; but proof of its presence is not proof of sexual relations with one who has it. On May 8, 1934 he examined the libellant and reported that the Wassermann test and the Kahn test were both negative; but that these tests, although reliable, would not show that libellant did not have the disease in 1931, and had been cured.
Respondent, sole witness in her behalf, testified that for quite a few years she and her husband went out together until he said, "I cramped his style"; that on one occasion when he arrived home intoxicated, he choked and abused her; that he had kicked at her and used vile language more than once; that she objected to her husband's attending the parties as he was not able to afford to keep up with their style, and she did not care to see him drinking; that the only time she drank was when she was with her husband, and she had not touched any drink for ten or eleven years. As to the incident, at the time of the father's death, her testimony was that the husband had been drinking and he wanted to get rid of her so he could have a party, *Page 111
and he was then intoxicated. She admitted that she had gone down to the building where libellant was employed during 1932 and 1933. No complaint was made that the husband failed to support her. According to her testimony, she learned in 1929 that she was afflicted with syphilis, and her explanation was that she contracted the disease from her husband, "because there wasn't anyone else"; that libellant forced her to continue sexual relations until the time of the separation in 1931, with knowledge of her condition.
On cross-examination, respondent identified one of the pictures taken from the dresser, as that of George Chillicothe, but had no recollection of writing the purported will; but it was conceded that the handwriting was similar to respondent's. In explanation of the visits by Chillicothe, she stated they were made to Mrs. Forsythe, a roomer in the home. On this phase, she testified: "Q. After your husband left, Mrs. Campbell, how often did Mr. Chillicothe come to visit you? A. I wouldn't know. I wouldn't remember. Q. Would you say it was daily or weekly? A. Oh, no. Q. Every other day? A. I can't say that. I don't remember. Q. But he did come there? A. Probably he came to see the woman who was staying with me. Mrs. Forsythe was there. I had her right with me since my husband left. Q. Have you Mrs. Forsythe in court here? A. No, I have lost connection with my friends and everything since I have been away. Q. Did you tell your attorney about Mrs. Forsythe? A. No, I don't think I ever did because I have never concentrated on it that much. Q. You knew Mr. Chillicothe well enough to write a will, willing all your property to him? A. I may have done something like that. I don't remember anything about it, because my condition was very upset, I wasn't responsible for what I did and haven't been for quite a while."
It is apparent that the parties to this proceeding have lived a most unhappy life, with an ending that, in *Page 112
some respects, is even more tragic than death. Cruel and barbarous treatment consists of actual personal violence or a reasonable apprehension thereof, or such a course of treatment as endangers life or health and renders cohabitation unsafe; but conduct and threats, which may not amount to treatment endangering life, are properly considered in connection with other conduct under the charge of indignities to the person:Sklan v. Sklan, 110 Pa. Super. 226, 168 A. 481; Conrad v.Conrad, 112 Pa. Super. 198, 170 A. 342. What acts or course of conduct will amount to such indignities as will justify the court in making a decree of divorce, seems to be nowhere defined, and perhaps they are incapable of specification or exact definition, but they must be such as, in the language of the act, render the condition of the libellant intolerable and life burdensome: Crawford v. Crawford, 64 Pa. Super. 30,33. In Breene v. Breene, 76 Pa. Super. 568, and repeated in many subsequent cases, we said indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation, of settled hate and estrangement; but slight or irregular acts of misconduct are not sufficient.
Neither respondent's general antagonistic and disagreeable attitude toward libellant and his friends, nor the instances in which she is alleged to have knocked libellant from the piano stool, scratched him with the key, and thrown dishes at him, were sufficient of themselves to establish either of the causes alleged. Bad temper, surliness, disagreeable disposition and antagonistic attitude have never been held sufficient to establish the charge of indignities. Nor do the attacks, over a period of several years, establish such personal violence, as endangered the life or health of the libellant, and constituted cruel and barbarous treatment. These acts, however, when taken in connection with the *Page 113
proof that respondent was afflicted with a loathsome venereal disease, of which she had knowledge, yet, as we believe the testimony, never informed her husband, thereby exposing him to infection and making it possible for him to have contracted this disease, indicate such a wilful disregard for his safety as to render cohabitation dangerous. From 1929, when she first discovered she was suffering from syphilis, until the separation in December, 1931, respondent performed her household duties and cooked the meals, and the facilities of the entire household, except that they slept in separate rooms, were used in common. It may be conceded that the proof was not sufficient to establish that respondent's condition was brought about by adulterous conduct, but coupled with the unusual and most suspicious circumstances that among her personal effects were found the pictures of a man, other than her husband, and a purported will in his favor, and the presence of this man in her home on various occasions, in the absence of her husband, it indicates a settled estrangement from her husband. Her explanation that Chillicothe came to see Mrs. Forsythe does not bear the earmarks of truth, especially when it appears that she never informed her counsel that Mrs. Forsythe had been a roomer at the home, nor made any effort to obtain her as a witness. When we consider that the husband had been in good health, not having consulted a doctor for many years, and found free from disease when examined by Dr. Willets after the separation, it is incredible that he forced his attentions upon the wife, with knowledge that she was infected with one of the vilest diseases with which the human body can be afflicted. Taking into consideration all the testimony in this record, the majority of this court is of opinion that respondent's conduct toward her husband constituted such indignities as to render his condition intolerable and life burdensome. In so concluding, we are not to be understood as holding that the mere *Page 114
presence of a venereal disease is of itself an indignity; but, in the absence of explanatory proof of innocent origin and notice to the other spouse of its existence and when accompanied by such additional facts as this record contains, it may amount to an indignity within the meaning of the statute.
The question, as to whether a loathsome venereal disease constitutes a ground for divorce, was raised in McMahen v.McMahen, 186 Pa. 485, 40 A. 795; Baker v. Baker, 195 Pa. 407,46 A. 96 and Cantor v. Cantor, 70 Pa. Super. 108. In the McMahen case it appeared that the wife contracted syphilis from her husband, and that as long as cohabitation continued, the wife would be in danger of her life. A decree was granted. In the Baker case, where the decree was granted, and the proof was that the husband had gonorrhea, the court said: "If he had such a disease as that during the continuance of the marital relation, it must be regarded, in the absence of explanatory proof, as evidence of the fact of illicit connection with other women than his wife, there being no proof in the case that she was affected by that disease." In the Cantor case, where the husband was refused a divorce, it appeared that when doubt as to the health of the wife was first raised, she immediately withdrew from the marital relation and had not afterwards urged or solicited further association with her husband that would, in the slightest degree, affect his health. True it is, that in the present case the husband testified that he had not cohabited with his wife for some years, and had not been subjected to infection by intercourse, but this was not the only way by which libellant could have been infected with the disease.
Decree affirmed. *Page 115 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2121973/ | 641 N.E.2d 402 (1994)
161 Ill.2d 267
204 Ill.Dec. 178
Ronald J. ZIARKO
v.
SOO LINE RAILROAD, Appellant (Milwaukee Motor Transportation Company, Appellee).
No. 74212.
Supreme Court of Illinois.
June 16, 1994.
Rehearing Denied October 3, 1994.
*403 James T. Ferrini, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, Ivar R. Azeris and Edward M. Kay, of counsel), for appellant.
Cassiday, Schade & Gloor, Chicago (Timothy J. Ashe, Lynn D. Dowd, D. Patterson Gloor and Morgan A. Milne, of counsel), for appellee.
Justice McMORROW delivered the opinion of the court:
In this appeal, we decide that the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)) permits a defendant found guilty of willful and wanton conduct to seek contribution from a defendant found guilty of ordinary negligence, if the willful and wanton acts did not amount to intentionally tortious misconduct. In addition, we conclude that "common liability" under the Contribution Act is the amount agreed upon in a post-judgment settlement between the plaintiff and one of the defendants, where the settlement agreement released the plaintiff's claims against both defendant tortfeasors, and there is no argument that the settlement agreement was entered into in bad faith.
BACKGROUND
Plaintiff Ronald Ziarko was injured in May 1982 in a railroad yard owned by defendant Soo Line Railroad Company (Soo Line). At the time of the accident, Ziarko, who was employed as a truck driver, had stopped his truck in an area of the railroad yard operated by Milwaukee Motor Transportation Company (Milwaukee Motor). Shortly after Ziarko alighted from his truck, the truck was struck by a Soo Line train. This collision caused the truck to hit Ziarko, inflicting substantial injuries.
Ziarko filed suit against Soo Line and Milwaukee Motor. As ultimately amended, the complaint alleged that Soo Line had been guilty of negligent and willful and wanton misconduct and that Milwaukee Motor had been guilty of ordinary negligence. Soo Line and Milwaukee Motor filed cross-counterclaims for contribution under the Contribution Act (740 ILCS 100/2 (West 1992)).
A jury trial was held and a verdict returned for Ziarko in the amount of approximately $7.1 million. The jury determined that Ziarko's contributory negligence amounted to 3%. In addition, the jury found both defendants liable, and assessed Soo Line's fault at 95% and Milwaukee Motor's *404 fault at 5%. In response to a special interrogatory, the jury indicated that it found Soo Line's misconduct had been willful and wanton. The trial court refused to reduce Ziarko's damages by the percentage of his contributory negligence, relying on this court's decision in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522 (comparative fault principles inapplicable to contributorily negligent plaintiff where defendant found willful and wanton). The trial court entered judgment according to the percentages of the defendants' liability as apportioned by the jury.
Both Soo Line and Milwaukee Motor appealed from the trial court's judgment. During the appeal, Soo Line and Ziarko entered into a settlement agreement. In this agreement, Soo Line agreed to tender to Ziarko $6.65 million. In exchange, Ziarko agreed to release all of his claims against both defendants.
In view of the settlement agreement between Ziarko and Soo Line, the appellate court entered an order that remanded the matter to the circuit court. Upon remand, the trial court determined that the settlement agreement did not obligate Soo Line to pay more than its pro rata share of the defendants' common liability to Ziarko, as determined in the jury's verdict. As a result, the trial court denied Soo Line's request for contribution from Milwaukee Motor. The appellate court affirmed the trial court's determination (234 Ill.App.3d 860, 176 Ill.Dec. 698, 602 N.E.2d 5). This court granted Soo Line's petition for leave to appeal (134 Ill.2d R. 315). Plaintiff Ziarko is not a party to the instant appeal. The case before this court concerns only the contribution claims of defendants Soo Line and Milwaukee Motor.
Contribution Between a Willful and Wanton Tortfeasor and a Negligent Tortfeasor
The parties' first argument pertains to whether Soo Line is permitted to seek contribution from Milwaukee Motor under the Contribution Act, in light of the jury's determination that Soo Line was guilty of willful and wanton conduct and Milwaukee Motor was guilty only of negligent conduct. Milwaukee Motor contends that neither the provisions of the Contribution Act nor our common law jurisprudence authorizes a willful and wanton tortfeasor to seek contribution from a negligent tortfeasor.
Our Contribution Act is intended to apportion liability based upon the relative fault of the parties, and applies when the parties are "subject to liability in tort arising out of the same injury to person or property, or the same wrongful death." (740 ILCS 100/2(a) (West 1992).) Although the Act does not define the scope of the terms "subject to liability in tort," this court has held that the phrase is intended to exclude intentionally tortious conduct. In Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill.2d 179, 131 Ill.Dec. 155, 538 N.E.2d 530, this court observed that the Contribution Act was adopted to codify the decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, in which the court adopted the rule that a strict product liability defendant could seek contribution from a negligent defendant. (Skinner, 70 Ill.2d at 16, 15 Ill.Dec. 829, 374 N.E.2d 437.) This court's decision in Skinner did not abolish the view, originally announced in Merryweather v. Nixan (K.B. 1799), 101 Eng.Rep. 1337, and subsequently adopted in most States of this country, including Illinois, that contribution is not permissible between intentional tortfeasors. (Gerill, 128 Ill.2d at 203-04, 131 Ill.Dec. 155, 538 N.E.2d 530.) The rule prohibiting contribution among intentional tortfeasors was founded on the notion that an intentional tortfeasor, whose liability has arisen "entirely [from the tortfeasor's] own deliberate wrong," should not be afforded the equitable benefits of shifting a portion of that liability to another tortfeasor under principles of contribution. (W. Keeton, Prosser & Keeton on Torts § 50, at 336 (5th ed. 1984); see also Neuman v. City of Chicago (1984), 110 Ill. App.3d 907, 910, 66 Ill.Dec. 700, 443 N.E.2d 626.) The legislative history of the Contribution Act reveals that the General Assembly's adoption of the Act was not intended to alter or modify the common law rule which did not permit contribution among intentional tortfeasors. (Gerill, 128 Ill.2d at 204-05, 131 *405 Ill.Dec. 155, 538 N.E.2d 530.) For these reasons, this court has held that intentional tortfeasors are not entitled to contribution under the Contribution Act. Gerill, 128 Ill.2d at 206, 131 Ill.Dec. 155, 538 N.E.2d 530.
The question presented for our determination in the present appeal is whether a defendant found guilty of willful and wanton conduct should be precluded from obtaining contribution from a defendant found guilty of ordinary negligence. (See Lannom v. Kosco (1994), 158 Ill.2d 535, 199 Ill.Dec. 743, 634 N.E.2d 1097; Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill.App.3d 445, 103 Ill.Dec. 513, 501 N.E.2d 830 (barred contribution for willful and wanton tortfeasor); Pipes v. American Logging Tool Corp. (1985), 139 Ill.App.3d 269, 93 Ill.Dec. 757, 487 N.E.2d 424 (permitted contribution for willful and wanton tortfeasor); Neuman v. City of Chicago (1982), 110 Ill.App.3d 907, 66 Ill.Dec. 700, 443 N.E.2d 626 (acknowledged viability of equitable apportionment for willful and wanton tortfeasor whose conduct fell short of intentional behavior); McQueen v. Shelby County (C.D.Ill.1990), 730 F.Supp. 1449 (followed ruling in Bresland).) To resolve this question, we look to the similarities, and dissimilarities, between negligent, willful and wanton, and intentional conduct.
Our jurisprudence has defined negligent conduct as "a failure to exercise the care that a reasonable man of ordinary prudence would exercise to guard against any reasonably foreseeable, unreasonable risks of harm which might flow from his conduct." (Beccue v. Rockford Park District (1968), 94 Ill. App.2d 179, 190, 236 N.E.2d 105; see also Illinois Pattern Jury Instructions, Civil, No. 10.02 (3d ed. 1989); No. 10.03 (3d ed. 1993) (hereinafter IPI Civil 3d).) Generally, "[t]ort intent means * * * a desire to cause consequences or at least [a] substantially certain belief that the consequences will result. [Citations.]" 1 M. Polelle & B. Ottley, Illinois Tort Law § 1.01, at 1-3 n.8 (2d ed. 1993); see also Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill.App.3d 617, 620, 44 Ill. Dec. 791, 411 N.E.2d 1157.
In contrast, this court has offered the following definition of willful and wanton acts:
"A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293.
See also IPI Civil 3d No. 14.01.
Milwaukee Motor argues that willful and wanton acts are considered similar to conduct that is intentionally tortious, and that as a result contribution principles cannot apply where one defendant is found guilty of willful and wanton conduct and another defendant is found guilty of ordinary negligence. To support this argument, Milwaukee Motor relies upon this court's reasoning in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522. In Burke, this court concluded that comparative fault principles cannot be applied to reduce the compensatory damages awarded to a negligent plaintiff for the liability of a willful and wanton defendant. To reach this conclusion, the Burke court found a "qualitative difference" between acts of negligence and conduct that is willful and wanton. Burke, 148 Ill.2d at 450, 170 Ill.Dec. 633, 593 N.E.2d 522.
The Burke court's perception of a "qualitative difference" between negligent and willful and wanton conduct was founded on the premise that willful and wanton conduct "`"approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it."'" (Burke, 148 Ill.2d at 448, 170 Ill.Dec. 633, 593 N.E.2d 522, quoting Loitz v. Remington Arms Co. (1990), 138 Ill.2d 404, 416, 150 Ill.Dec. 510, 563 N.E.2d 397, quoting Bresland, 150 Ill.App.3d at 457, 103 Ill.Dec. 513, 501 N.E.2d 830.) However, decisions in this State have not limited willful and wantonness to instances where the conduct was intentional. Acts have been identified as willful and wanton where the defendant's *406 conduct was intentional, but have also been found to arise where the defendant's actions were merely reckless.
It is well established that willful and wanton acts may be found where the tortious conduct was intentional. Willful and wanton conduct includes that which was performed intentionally. (See, e.g., Schneiderman, 394 Ill. at 583, 69 N.E.2d 293.) However, unlike intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentionali.e., where there has been "a failure, after knowledge of impending danger, to exercise ordinary care to prevent" the danger, or a "failure to discover the danger through * * * carelessness when it could have been discovered by the exercise of ordinary care." (Schneiderman, 394 Ill. at 583, 69 N.E.2d 293.) There is no separate and independent tort of "willful and wanton" misconduct. See Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill.2d 87, 96 Ill. Dec. 939, 492 N.E.2d 181; Mucklow v. John Marshall Law School (1988), 176 Ill.App.3d 886, 895, 126 Ill.Dec. 314, 531 N.E.2d 941.
Our jurisprudence has not been wholly consistent on the degree to which negligent acts are considered similar to willful and wanton behavior. (See Wassell v. Adams (7th Cir.1989), 865 F.2d 849; Davis v. United States (7th Cir.1983), 716 F.2d 418.) For example, it has been remarked that willful and wanton acts bear greater resemblance to intentionally tortious misconduct. (Bresland, 150 Ill.App.3d at 457, 103 Ill.Dec. 513, 501 N.E.2d 830.) Other cases have observed that willful and wanton behavior is more similar to an act of ordinary negligence. (Spivack v. Hara (1966), 69 Ill.App.2d 22, 26, 216 N.E.2d 173; Cooper v. Cox (1961), 31 Ill.App.2d 51, 56, 175 N.E.2d 651.) Our case law has sometimes used interchangeably the terms "willful and wanton negligence," "gross negligence," and "willful and wanton conduct." See, e.g., Schneiderman, 394 Ill. at 583, 69 N.E.2d 293 (reviewing evidence to determine whether plaintiff was "guilty of wilful and wanton negligence as a matter of law," where jury found defendant guilty of "gross negligence"); Illinois Central R.R. Co. v. Goodwin (1863), 30 Ill. 117, 118 ("[n]egligence of the plaintiff being so apparent, the defendant could be responsible only for gross negligence, which implies a willful injury"); Oropeza v. Board of Education (1992), 238 Ill.App.3d 399, 402, 179 Ill.Dec. 650, 606 N.E.2d 482 (defining "willful and wanton negligence"); Batteast v. St. Bernard's Hospital (1985), 134 Ill.App.3d 843, 853, 89 Ill.Dec. 561, 480 N.E.2d 1304 (observing that pleadings alleged that defendants were guilty of "acts of an intentionally wilful and wanton nature").
Thus, the label "willful and wanton conduct" has developed in this State as a hybrid between acts considered negligent and behavior found to be intentionally tortious. This hybrid character of willful and wantonness is reflected in case law decisions of this State, which have recognized that willful and wanton acts share many similar characteristics with acts of ordinary negligence. In Burke, this court expressly acknowledged that negligent and willful and wanton conduct "shar[e] some characteristics." (Burke, 148 Ill.2d at 451, 170 Ill.Dec. 633, 593 N.E.2d 522.) This court has previously observed that there is a "thin line" between simple negligence and willful and wanton acts (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 35, 330 N.E.2d 509). The comments of this court in Myers v. Krajefska (1956), 8 Ill.2d 322, 134 N.E.2d 277, are particularly apt: "[Willful and wanton conduct] is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree, a hard and thin line definition should not be attempted." (Myers, 8 Ill.2d at 329, 134 N.E.2d 277.) Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing.
The court's ruling in Burke of a "qualitative distinction" between willful and wanton acts and negligent conduct does not take into account this State's development of the dual characteristics of willful and wanton conduct. The court in Burke limited its analysis to willful and wanton acts that are committed intentionally.
*407 To support its conclusion, the Burke court relied on the meaning of the term "willful and wanton" as that phrase has been applied to awards of punitive damages, and the significant policy considerations underlying an award of punitive damages. (See Burke, 148 Ill.2d at 448-51, 170 Ill.Dec. 633, 593 N.E.2d 522.) However, willful and wanton conduct may be grounds not only for punitive damages, but compensatory damages as well. Compensatory damages are designed to make amends for the injuries suffered by the plaintiff, whereas punitive damages are intended to punish the wrongdoer and serve as a deterrent to antisocial behavior in the future. (See, e.g., Loitz, 138 Ill.2d at 414-17, 150 Ill.Dec. 510, 563 N.E.2d 397.) Because the concerns regarding punitive damages focus upon punishment and retribution, they should not predominate in this court's inquiry into the apportionment of defendants' liability for compensatory damages when one tortfeasor is found guilty of willful and wanton conduct and another tortfeasor is found guilty of ordinary negligence.
The justifiable concern over the policies underlying punitive damages can be adequately protected by a rule that prohibits apportionment of liability for punitive damages, similar to the rule this court adopted in Gerill that bars contribution where both defendants have been found guilty of intentional torts. (See Gerill, 128 Ill.2d 179, 131 Ill.Dec. 155, 538 N.E.2d 530.) "Keeping in mind that comparative negligence is a method of providing compensation to the plaintiff in proportion to the relative fault of the parties, whereas punitive damages are to punish the misconduct of the defendant, the conduct of the plaintiff should have no bearing on the award of punitive damages." (J. Palmer & S. Flanagan, Comparative Negligence Manual § 1.310, at 63-64 (rev.ed. 1986).) It has already been established in this State that an award of punitive damages is not subject to contribution. See Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill.2d 448, 458-60, 120 Ill.Dec. 556, 524 N.E.2d 586; see also Harriss v. Elliott (1991), 207 Ill.App.3d 384, 389, 152 Ill.Dec. 359, 565 N.E.2d 1041; see generally Annot., Effect of Plaintiff's Comparative Negligence in Reducing Punitive Damages Recoverable, 27 A.L.R.4th 318 (1984); Piegore, The Conflict Between Punitive Damages and the Right to Contribution, 78 Ill.B.J. 338 (1990).
The Burke court also justified its position in reliance on the views expressed in the Restatement (Second) of Torts. The Restatement (Second) of Torts does not refer to "willful and wanton" conduct, but rather characterizes conduct as either negligent, reckless, or intentional. (See Restatement (Second) of Torts § 500 (1965).) Under the Restatement's view, a "plaintiff's contributory negligence does not bar recovery for harm caused by the defendant's reckless" conduct. (Restatement (Second) of Torts §§ 482(1), 503(1) (1965).) However, the Restatement also recites that a "plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff's safety is a legal cause of the plaintiff's harm." (Restatement (Second) of Torts §§ 482(2), 503(3) (1965).) Unlike the views expressed in the Restatement (Second) of Torts, this court has not addressed the question of whether a plaintiff's willful and wanton acts should serve as a complete bar, or serve as a damage-reducing factor, in the award of compensatory damages, where the defendant has also engaged in willful and wanton conduct. In addition, the definition of "reckless" under the Restatement is not the same as the definition given in this State to the term "willful and wanton." See Restatement (Second) of Torts § 500 (1965) (defining recklessness as intentionally doing an act, or intentionally failing to do an act, "knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent").
Legal commentary has been critical of this court's decision in Burke. (See Hoffman & Bry, The Status of an Illinois Plaintiff's Comparative Negligence as a Damage-Reducing Factor Where a Defendant Is Found Liable Under the Theory of Willful and Wanton Misconduct, 16 So.Ill.L.J. 663 (1992); Note, The Long, Strange Trip of Willful and Wanton Misconduct and a Proposal *408 to Clarify the Doctrine, 26 J. Marshall L.Rev. 363 (1993).) As this latter commentary suggests, continued adherence to the full scope of the Burke decision could lead to harsh and unjust results supported by neither the clear terms of, nor underlying purposes for, our laws regarding comparative fault and contribution. It is of some note that legislation has been introduced in the General Assembly to alter this court's holding in Burke and permit comparative fault principles to apply where the plaintiff has been found negligent and the defendant found willful and wanton. See 88th Ill.Gen.Assem., Senate Bill 424, 1993 Sess. (amending section 2-1116 of the Code of Civil Procedure regarding comparative fault).
The Burke court limited its analysis to willful and wanton acts as intentionally tortious conduct. On this basis, and in order to further the policy that equitable principles should not lessen the liability of a party found to have committed an intentionally tortious act, the Burke court held that the willful and wanton defendant could not seek to reduce his liability by the percentage of the plaintiff's contributory negligence. See Burke, 148 Ill.2d at 448-52, 170 Ill.Dec. 633, 593 N.E.2d 522.
We find no injustice to the rule adopted in Burke to the extent that it is applied to willful and wanton conduct that amounts to intentional behavior. However, we do not believe that the rule announced in Burke carries equal force or validity when applied to willful and wanton acts that are reckless, rather than intentional. The Burke court did not address the interests of parties who have been found willful and wanton because of unintentional, reckless behavior. It may be equally unjust to refuse to mitigate the liability of the willful and wanton defendant whose behavior was reckless, rather than intentional, where there are other parties to the incident whose tortious acts also proximately caused the plaintiff's injuries.
Bearing in mind these considerations, we conclude that the determination of whether a willful and wanton defendant should be permitted to seek contribution from a negligent defendant depends upon whether the willful and wanton defendant's acts were reckless or intentional. Our IPI Civil jury instructions recognize that a distinction should be drawn between willful and wanton acts that are intentional and willful and wanton conduct that is unintentional but reckless. According to the IPI Civil jury instructions, the trial judge should instruct the jury as follows, where there is an allegation of willful and wanton acts:
"When I use the expression `willful and wanton conduct' I mean a course of action which [shows actual or deliberate intention to harm or which, if not intentional,] shows an utter indifference to or conscious disregard for [a person's own safety] [and] [the safety of others]." (IPI Civil 3d No. 14.01.)
With respect to its Notes on Use, the IPI Civil jury instructions advise trial judges that the first bracketed phrase regarding "actual or deliberate intention to harm" "should be omitted unless a deliberate intention to harm is alleged and supported by evidence sufficient to make a submissible case." IPI Civil 3d No. 14.01, Notes on Use, at 14-3.
We conclude that contribution should not be authorized where the defendant's willful and wanton acts amount to intentional behavior. Allowing contribution where the defendant's willful and wanton acts are found to have been intentional would contradict the holdings in Skinner and its progeny, including this court's ruling in Gerill that prohibits contribution for intentional tortfeasors, and would be contradictory to the very purpose of contribution. This court has affirmed as the "governing principle in this jurisdiction" that "the costs of accidental injury are to be apportioned in accordance with the relative fault of all concerned in the action." (Emphasis added.) Allison v. Shell Oil Co. (1986), 113 Ill.2d 26, 31, 99 Ill.Dec. 115, 495 N.E.2d 496.
In addition, we hold that a defendant found guilty of willful and wanton conduct may seek contribution from a defendant found guilty of ordinary negligence if the willful and wanton defendant's acts were found to be simply reckless, and thus were determined to be less than intentional conduct. We believe this ruling will better serve justice and will be more harmonious with the *409 policies underlying the Contribution Act. "[T]he loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight" (Li v. Yellow Cab Co. (1975), 13 Cal.3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal.Rptr. 858, 873), and "a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional" (Li, 13 Cal.3d at 826, 532 P.2d at 1241, 119 Cal.Rptr. at 873). See also Neuman v. City of Chicago (1982), 110 Ill.App.3d 907, 910-11, 66 Ill.Dec. 700, 443 N.E.2d 626.
We believe that the approach we adopt herein will more adequately preserve the important distinctions between negligence, willful and wantonness, and intentionally tortious behavior. By retaining the distinctions between these concepts, our ruling reduces the likelihood that courts, lawyers, and juries will confuse or dilute the different standards applicable to each of these three mental states in tort law. See 1 M. Polelle & B. Ottley, Illinois Tort Law § 1.01, at 1-3 (2d ed. 1993) (noting that "confusion in some of the cases * * * seems to authorize an action for assault or battery not merely where the defendant has acted intentionally but also where the defendant has acted only recklessly or even negligently, without knowing with substantial certainty that injury would follow").
Our conclusion in the present cause is supported by the greater weight of authority in other jurisdictions. (See appendix at the end of this opinion.) This court's prior ruling in Burke considered only the decisions in a few States on the question of whether a plaintiff's negligent conduct could be compared with the defendant's willful and wanton conduct. (Burke, 148 Ill.2d at 445-48, 170 Ill.Dec. 633, 593 N.E.2d 522.) The court did not address the additional questions, presented in the decisions cited in the appendix, regarding an apportionment of liability where one defendant's conduct was willful and wanton while another defendant's conduct was negligent, or with respect to an apportionment of liability when there has been an award of punitive damages. Once these additional decisions from other jurisdictions are also considered, it becomes apparent that the majority of jurisdictions (as shown in the appendix) generally support the conclusion that willful and wanton conduct can be compared to simple negligence in apportioning liability for compensatory damages, provided the willful and wanton acts do not constitute intentional behavior. In addition, the decisions from other jurisdictions generally do not permit the apportionment of liability with respect to awards of punitive damages. See generally Annot., Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness, or the Like, 10 A.L.R.4th 946 (1981).
For all of these reasons, we hold that contribution principles may lawfully be applied with respect to an award of compensatory damages where one defendant is found negligent and another defendant is found guilty of willful and wanton acts that did not rise to intentional conduct. The record in the present cause does not reflect that the jury found Soo Line's willful and wanton misconduct to have been intentionally committed. As a result, Soo Line's misconduct did not preclude its claim for contribution from Milwaukee Motor. Because the trial court and the appellate court erroneously found that Soo Line, as the willful and wanton tortfeasor, was not entitled to contribution, those rulings are hereby reversed.
"Common Liability" Under the Contribution Act
The parties also raise a second issue, regarding the proper meaning of the term "common liability" under section 2(b) of the Contribution Act. This section states in pertinent part:
"The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability." 740 ILCS 100/2(b) (West 1992).
The question presented by the parties is whether "common liability" in the instant cause is the amount of the jury verdict, approximately *410 $7.1 million, or the amount agreed upon by Ziarko and Soo Line in their settlement, $6.65 million.
Soo Line claims that "common liability" in the present case should be the amount in the settlement agreement, viz., $6.65 million. Soo Line notes that the jury assessed Milwaukee Motor's fault at 5%. On this basis, Soo Line claims that it is entitled to contribution from Milwaukee Motor for 5% of the settlement amount, viz., $332,500.
Milwaukee Motor argues that "common liability" in the instant cause is the amount of the jury's verdict, approximately $7.1 million. The record reflects that the jury found Soo Line 95% at fault for Ziarko's injuries, which amounted to approximately $6.7 million. Consequently, Soo Line's settlement amount, $6.65 million, is less than the amount for which Soo Line was found liable by the jury. Milwaukee Motor argues that because Soo Line's settlement amount is less than the amount of the jury's verdict against Soo Line, Soo Line did not pay more than its pro rata share in the settlement agreement. For these reasons, Milwaukee Motor contends that Soo Line is not entitled to any funds in contribution from Milwaukee Motor.
Generally, statutory provisions are to be given their plain and ordinary meaning in order to give effect to the objective of the legislation. (DiFoggio v. Retirement Board of the County Employees Annuity & Benefit Fund (1993), 156 Ill.2d 377, 382-83, 189 Ill. Dec. 753, 620 N.E.2d 1070.) One of the fundamental goals of the Contribution Act is to encourage settlements that equitably apportion damages among the tortfeasors according to their relative fault. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill.2d 308, 137 Ill.Dec. 579, 546 N.E.2d 524.) As a general rule, a settlement agreement is considered valid and enforceable if the agreement was entered into in good faith. (Wilson, 131 Ill.2d at 318, 137 Ill.Dec. 579, 546 N.E.2d 524.) To determine the validity of the settlement agreement, the court looks to the totality of the circumstances surrounding the making of the agreement. Wilson, 131 Ill.2d at 318, 137 Ill.Dec. 579, 546 N.E.2d 524.
Our courts have consistently rejected arguments that the sole guidepost of the proper settlement amount for the injured plaintiff's damages must be the amount set by a jury in a trial on the merits of the plaintiff's claims against the defendants. "It has been recognized that settlements may be substantially different from the results of litigation because damages are often speculative and the probability of liability uncertain. [Citation.]" (Smith v. Texaco, Inc. (1992), 232 Ill.App.3d 463, 469, 173 Ill.Dec. 776, 597 N.E.2d 750 (citing Ruffino v. Hinze (1989), 181 Ill.App.3d 827, 830-32, 130 Ill.Dec. 542, 537 N.E.2d 871, O'Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill.App.3d 911, 916, 103 Ill.Dec. 242, 501 N.E.2d 263, Doellman v. Warner & Swasey Co. (1986), 147 Ill.App.3d 842, 848-49, 101 Ill.Dec. 366, 498 N.E.2d 690, Wasmund v. Metropolitan Sanitary District of Greater Chicago (1985), 135 Ill.App.3d 926, 929-30, 90 Ill.Dec. 532, 482 N.E.2d 351, and Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill.App.3d 80, 94-95, 79 Ill.Dec. 238, 463 N.E.2d 792).) A disparity between the value of the settlement and the amount of damages which the jury might have awarded does not render the settlement agreement invalid. "The circumstance that the [defendant's] eventual liability pursuant to the jury's verdict would have been much greater does not void the [defendant's] settlement agreement with [the plaintiff], and our courts have declined to utilize a `proportionality' or `reasonable range' test in order to determine whether a defendant's settlement with a plaintiff, when compared to the jury's subsequent verdict, was made in good faith. [Citations.]" McDermott v. Metropolitan Sanitary District (1992), 240 Ill.App.3d 1, 46, 180 Ill.Dec. 758, 607 N.E.2d 1271.
This reasoning is reflected in Mallaney v. Dunaway (1988), 178 Ill.App.3d 827, 128 Ill. Dec. 26, 533 N.E.2d 1114, in which our appellate court considered a question similar to the issue raised in the present cause. The plaintiff in Mallaney settled all of her claims in an agreement with one of the defendants. The agreement also released the remaining defendants of their liability to the plaintiff. One of the defendants, who was not a party to the settlement agreement, argued that he should be permitted, in a trial of the contribution *411 actions among the defendants, to contest the amount stated in the settlement. The question presented to the appellate court was whether "`common liability'" under the Contribution Act was "limited to the amount the injured party has settled her entire cause of action for [in the settlement agreement] * * * or whether * * * [the] third-party defendant [was] entitled to establish in the trial of the contribution action that the injured party's damages exceeded that amount." (Mallaney, 178 Ill.App.3d at 830, 128 Ill.Dec. 26, 533 N.E.2d 1114.) The observations of the court in Mallaney are equally applicable to the present cause, and bear repeating:
"The policy of the Contribution Act is to encourage compromise and settlement in the absence of bad faith, fraud or collusion. [Citation.] This policy is promoted by approving settlements that represent a fair compromise of the parties' interests, even though the dollar amount so given does not accurately represent the injured party's damages.
A settlement given in good faith may be presumed reasonable in the absence of a timely objection in the trial court. And, the mere fact that an injured party's actual damages exceed the amount of the settlement does not prove that the settlement was unreasonable. [Citation.]" Mallaney, 178 Ill.App.3d at 833, 128 Ill.Dec. 26, 533 N.E.2d 1114.
In light of this reasoning, the court in Mallaney concluded that the parties' "common liability" was the amount stated in the settlement agreement, even if the nonsettling defendant might have been able to prove that actual damages exceeded or were less than the amount provided for in the settlement agreement. Mallaney, 178 Ill.App.3d at 832-33, 128 Ill.Dec. 26, 533 N.E.2d 1114.
The appellate court in the instant cause found Mallaney distinguishable because the settlement agreement in that case was reached before the amount of the plaintiff's damages was decided by the jury, while the settlement agreement in the present case was entered into after the jury's verdict was returned. However, jury verdicts may be modified, reduced, or vacated on post-trial motion or on appeal. (See, e.g., Henry v. St. John's Hospital (1990), 138 Ill.2d 533, 150 Ill.Dec. 523, 563 N.E.2d 410 (jury verdict subject to trial court remittitur).) As a result, we do not believe that, once the jury's verdict is returned, the parties should be obligated to accept the verdict amount as the final determination of the defendants' common liability to the plaintiff to be reflected in a post-judgment settlement agreement. As the court noted in Jessee v. Amoco Oil Co. (1992), 230 Ill.App.3d 337, 171 Ill.Dec. 690, 594 N.E.2d 1210:
"[T]here exist several reasons why [a] plaintiff would settle with [a tortfeasor defendant] [for a lesser amount than the jury's verdict] subsequent to a judgment, none of which point to collusion or fraud. At the time of the settlement, post-trial motions were pending; a viable explanation for plaintiff's settlement is that she anticipated a lengthy appeal process which might have forestalled collection of her judgment, providing an impetus for her to settle. A further reason for settlement while post-trial motions were pending could be plaintiff's desire to settle in order to achieve some measure of certainty." Jessee, 230 Ill.App.3d at 348, 171 Ill.Dec. 690, 594 N.E.2d 1210.
Consistent with this analysis, we believe that "common liability" in the case at bar means the good-faith amount stated in the settlement agreement between Ziarko and Soo Line, even though the evidence may have proven, to a reasonable jury, that the plaintiff's damages exceeded or were less than the sum stated in the settlement agreement. We believe that this conclusion is supported by the language of the Contribution Act. "Nowhere in the Contribution Act does the legislature distinguish between pretrial or post-judgment settlements * * *." (Jessee, 230 Ill.App.3d at 347, 171 Ill.Dec. 690, 594 N.E.2d 1210.) Under section 2(b) of the Act, both types of settlement agreements are treated identically, and both entitle the settling defendant to seek contribution from another tortfeasor whose liability to the injured plaintiff is also extinguished in the settlement agreement.
We note that the explicit provisions of the settlement agreement between Soo Line and *412 Ziarko specifically extinguished Milwaukee Motor's liability to Ziarko. Section 2(c) of the Contribution Act provides in pertinent part that a settlement agreement "does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the [agreement]." (740 ILCS 100/2(c) (West 1992).) If the settlement agreement had not extinguished Milwaukee Motor's liability to Ziarko, Ziarko could have pursued Milwaukee Motor for the full net amount due on the jury verdict, after crediting the settlement amount paid by Soo Line. See, e.g., Henry v. St. John's Hospital (1990), 138 Ill.2d 533, 150 Ill.Dec. 523, 563 N.E.2d 410.
In our view, if Milwaukee Motor believed that the settlement agreement did not accurately reflect the parties' "common liability" to Ziarko, then Milwaukee Motor should have challenged the good-faith nature of the settlement agreement. (See Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill.2d 448, 460-61, 120 Ill.Dec. 556, 524 N.E.2d 586.) In the context of a good-faith argument, Milwaukee Motor also could have presented its claim that Soo Line should not be permitted to "retain the jury's determination as to the percentages of liability, and to then apply those percentages of Soo Line's own determination as to the amount of the plaintiff's damages." According to Milwaukee Motor, "Soo Line cannot pick and choose those portions of the verdict it wishes to enforce, and those it wishes to ignore." However, Milwaukee Motor did not complain that the settlement agreement was entered into in bad faith, nor has Milwaukee Motor raised the argument that the percentages of fault as determined by the jury were inequitable or in error. Consequently, we find Milwaukee Motor's arguments on these matters an inadequate basis to sustain Milwaukee Motor's position in this appeal. The cases cited by Milwaukee Motor do not support the position it has taken in the instant cause. See Mason v. F. Lli Luigi & Franco Dal Maschio Fu G.B. (7th Cir.1987), 832 F.2d 383, 389-90 (right to contribution remains "contingent, subordinate and inchoate" until defendant makes payments in excess of his pro rata share of common liability); Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill.App.3d 419, 61 Ill.Dec. 303, 434 N.E.2d 456 (contribution principles did not apply to cause of action that arose before date on which contribution rule went into effect; court rejected argument that a "contribution cause of action" accrued on date judgment paid, rather than date on which negligence cause of action arose).
By reaching a settlement agreement with Ziarko, Soo Line was able to convince Ziarko to accept less money than the amount awarded by the jury. Moreover, because of Soo Line's efforts, Ziarko further agreed to extinguish the liability of both Soo Line and Milwaukee Motor. As a result, Milwaukee Motor was relieved of its liability to Ziarko, which amounted to approximately $353,000 under the jury's verdict. In light of these considerations, we conclude that the trial court was in error when it determined that the defendants' "common liability" in the present case was the amount reached in the jury's verdict. In our view, the court should have held that the parties' common liability to Ziarko which should be subject to contribution principles was the amount agreed upon in the settlement between Ziarko and Soo Line.
The appellate court in the case at bar affirmed the trial court's denial of Soo Line's request for contribution. Because we conclude that Soo Line's status as a willful and wanton tortfeasor did not bar it from seeking contribution from Milwaukee Motor in the present cause, and because we find that the defendants' common liability in this case was the amount stated in the settlement agreement between Ziarko and Soo Line, we reverse the appellate and circuit courts' judgments and remand the matter for further proceedings consistent herewith.
Appellate court reversed; circuit court reversed; cause remanded.
Chief Justice BILANDIC took no part in the consideration or decision of this case.
Justice HARRISON, concurring:
I agree with the result reached by the majority. I write separately because I see *413 no justification for revisiting our decision in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522. Burke was a comparative negligence case. Under comparative negligence principles, a defendant's liability in an action "based on negligence" can be offset to the extent that the plaintiff was contributorily negligent, subject to statutory limitations. (See 735 ILCS 5/2-1116 (West 1992).) The question that confronted this court in Burke was simply whether an action against a defendant for willful and wanton conduct constituted an action "based on negligence" within the meaning of this rule.
The case before us today involves the quite different issue of contribution among joint tortfeasors. The doctrines of contribution and comparative fault are distinct. (J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill.2d 447, 463, 114 Ill.Dec. 105, 516 N.E.2d 260.) Contribution is governed by the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)). By its terms, that statute does not limit the right of contribution among joint tortfeasors to actions "based on negligence." Rather, it employs much broader language, specifying that a right of contribution exists whenever two or more persons are "subject to liability in tort" arising out of the same injury to person or property or the same wrongful death. (740 ILCS 100/2(a) (West 1992).) Accordingly, the question we must decide here is not whether a defendant's willful and wanton conduct is "negligence," but whether it constitutes a "tort" within the meaning of the Contribution Act. This is a matter of statutory construction to which Burke does not speak.
As the majority correctly notes, Illinois law recognizes that willful and wanton conduct may consist of either intentional behavior or conduct that is unintentional but reckless. Both are torts in the generic sense, and both would seem to fall within the ambit of the Contribution Act. The Contribution Act does not, after all, differentiate between intentional and unintentional torts or tortfeasors, nor does it explicitly limit itself to unintentional torts. Nevertheless, upon review of the common law and the applicable legislative history, our court has held that intentional tortfeasors may not avail themselves of the Act. Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill.2d 179, 131 Ill. Dec. 155, 538 N.E.2d 530.
If we adhere to this precedent (and no one has suggested that we should not), the conclusion is self-evident. A defendant may not seek contribution from a joint tortfeasor where his willful and wanton conduct was intentional. In all other cases, where the conduct is unintentional, contribution is permitted by the express terms of the Contribution Act.
For the purposes of this appeal, we need go no further. The soundness of this court's analysis in Burke is irrelevant. By reaching out to reexamine Burke, the court accomplishes nothing but to provide willful and wanton defendants with another opportunity for avoiding the full measure of their liability to the plaintiffs they have injured. If the members of the majority are intent on achieving this unfortunate goal, they should at least wait for a case where the issue is necessary to disposition of the appeal.
Justice NICKELS, dissenting:
I respectfully dissent from the majority's opinion finding a right of contribution between joint tortfeasors, where one tortfeasor is liable for willful and wanton conduct. The Joint Tortfeasor Contribution Act apportions liability based on the relative fault of the parties where they are "subject to liability in tort arising out of the same injury to person or property, or the same wrongful death." (740 ILCS 100/2(A) (West 1992).) As a court of law, our duty is to determine the intent of the legislature where a statute is unclear or ambiguous. Gerrill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill.2d 179, 203, 131 Ill.Dec. 155, 538 N.E.2d 530.
Although I agree that the term "tort" is ambiguous, unlike the majority I acknowledge that this court has already interpreted the statute as encompassing only negligent tortfeasors. In Gerrill Corp., this court considered whether the term "tort" in the Joint Tortfeasor Act encompassed intentional conduct. This court reviewed the legislative history of the Act and determined that "statements *414 made during the floor debates by both the Senate and House sponsors of the bill that was to become the Contribution Act demonstrate that the statute was meant to create a right of contribution for negligent tortfeasors." (Emphasis added.) (Gerrill Corp., 128 Ill.2d at 204-05, 131 Ill.Dec. 155, 538 N.E.2d 530.) Thus, this court found that there was no right of contribution for intentional tortfeasors because the Act applies to only negligent conduct.
In Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522, this court directly considered the relationship between negligence and conduct that is willful and wanton. This court held that comparative fault principles cannot be applied to reduce the compensatory damages awarded to a negligent plaintiff, where the defendant's liability was premised on willful and wanton conduct. In support, this court stated that "[b]ecause of the qualitative difference between simple negligence and willful and wanton conduct, and because willful and wanton conduct carries a degree of opprobrium not found in merely negligent behavior, we hold that a plaintiff's negligence cannot be compared with defendant's willful and wanton conduct." (Burke, 148 Ill.2d at 451-52, 170 Ill.Dec. 633, 593 N.E.2d 522.) I see no reason to depart from this reasoning finding a qualitative difference between negligence and willful and wanton conduct that prevents application of comparative fault principles.
Unhappy with the application of our precedent, the majority finds that the legislature "intended" to allow a defendant found liable for his willful and wanton conduct to seek contribution from a negligent joint tortfeasor, as long as the willful and wanton conduct is not intentional. Thus, after acknowledging the confusion surrounding the concept of willful and wanton conduct, the majority further muddies the waters by carving it into "recklessly willful and wanton conduct" and "intentionally willful and wanton conduct." Contribution is then proper where the willful and wanton conduct is not intentional.
The majority justifies this legislative line drawing by blurring the distinctions between willful and wanton conduct and simple negligence. I agree with our precedent recognizing a significant distinction between conduct that is merely negligent and that which is willful and wanton. Although sharing characteristics of both intentional and negligent conduct, willful and wanton conduct is analytically distinct from either concept.
Engaging in intentional conduct where the injurious results are "substantially certain" to follow is the most wrongful form of conduct. In contrast, negligence is conduct that creates unreasonable risks of harm, without reference to a culpable mental state. The rule transferring the cost of an injury where an actor is negligent rests not on the culpable nature of the wrongdoing, but on the belief that the person who creates unreasonable risks should bear the cost of a resulting injury.
Negligent conduct should be distinguished from willful and wanton conduct because such conduct involves a quasimental state. (W. Keeton, Prosser & Keeton on Torts § 34, at 212-13 (5th ed. 1984); Burke, 148 Ill.2d at 449, 170 Ill.Dec. 633, 593 N.E.2d 522.) Willful and wanton conduct occurs where the actor is aware of a specific risk, and acts in conscious disregard of that risk or with utter indifference to the consequences. While the harm may not be "substantially certain" to follow, consciously disregarding an obvious risk carries with it a culpable mental element absent in simple negligence. (See Burke, 148 Ill.2d at 451, 170 Ill.Dec. 633, 593 N.E.2d 522.) The law attaches significance to this distinction. For example, immunities can be lost and punitive damages can be awarded where conduct is willful and wanton. That such drastic consequences attach to the characterization of conduct as willful and wanton belies the majority's assertion that such conduct should be compared the same as negligent conduct.
I recognize that forbidding a right of contribution where a party's conduct is willful and wanton, but only slightly responsible for an injury, can produce injustice. Similarly, a party is not entitled to contribution where his conduct is intentional, but only accounts for a small amount of the damages. I note that the legislature has recently introduced legislation to address the application of comparative *415 fault principles to willful and wanton conduct. I believe that the solution to this problem lies in amendment to the Joint Tortfeasor Contribution Act by the legislature, rather than blurring the distinctions between negligent, willful and wanton and intentional conduct.
The majority not only acts as a super legislature in creating this dual concept of willful and wanton conduct for purposes of the Contribution Act, but also acts in place of the jury in applying the new concept to the present cause. The majority finds that "the record in the present cause does not reflect that the jury found Soo Line's willful and wanton misconduct to have been intentionally committed. As a result, Soo Line's misconduct did not preclude its claim for contribution from Milwaukee Motor." (161 Ill.2d at 282, 204 Ill.Dec. at 185-186, 641 N.E.2d at 409-410.) I fail to understand how the jury in the present case could have considered the nature of the willful and wanton conduct, where the distinction between "intentional willful and wanton conduct" and "reckless willful and wanton conduct" had been neither pleaded, proved, nor specifically asked of the jury.
In passing, I question what effect this holding has on the concept of willful and wanton conduct in general. Does a municipality lose immunity under the Tort Immunity Act only where there is "intentional wilful and wanton conduct" or when there is "reckless willful and wanton conduct"? Which type of willful and wanton conduct is proper for imposing punitive damages? Are there now two forms of willful and wanton conduct that should be pleaded in separate counts? Based upon all the foregoing reasons, I respectfully dissent.
Justice HEIPLE joins in this dissent.
APPENDIX
Alaska:
Borg-Warner Corp. v. Avco Corp. (Alaska 1993), 850 P.2d 628.
Arkansas:
Billingsley v. Westrac Co. (8th Cir.1966), 365 F.2d 619 (applying Arkansas law).
California:
Zavala v. Regents of University of California (1981), 125 Cal.App.3d 646, 178 Cal. Rptr. 185; Sorensen v. Allred (1980), 112 Cal.App.3d 717, 169 Cal.Rptr. 441; Plyler v. Wheaton Van Lines (9th Cir.1981), 640 F.2d 1091 (applying California law).
Colorado:
White v. Hansen (Colo.1992), 837 P.2d 1229; Lira v. Davis (Colo.1992), 832 P.2d 240.
Florida:
American Cyanamid Co. v. Roy (1986), 498 So.2d 859; Tampa Electric Co. v. Stone & Webster Engineering Corp. (M.D. Fla.1973), 367 F.Supp. 27.
Iowa:
Godbersen v. Miller (Iowa 1989), 439 N.W.2d 206; Campbell v. Van Roekel (Iowa 1984), 347 N.W.2d 406.
Kansas:
Bowman v. Doherty (1984), 235 Kan. 870, 686 P.2d 112.
Massachusetts:
Lane v. Meserve (1985), 20 Mass.App. 659, 482 N.E.2d 530.
Michigan:
Vining v. City of Detroit (1987), 162 Mich. App. 720, 413 N.W.2d 486.
Mississippi:
Salster v. Singer Sewing Machine Co. (N.D. Miss.1973), 361 F.Supp. 1056 (applying Mississippi law).
Missouri:
Menaugh v. Resler Optometry, Inc. (Mo. 1990), 799 S.W.2d 71; Friley v. International Playtex, Inc. (W.D. Mo.1984), 604 F.Supp. 126 (applying Missouri law).
Montana:
Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d 140; Shahrokhfar v. State Farm Mutual Automobile Insurance Co. (1981), 194 Mont. 76, 634 P.2d 653.
*416 New Jersey:
Blazovic v. Andrich (1991), 124 N.J. 90, 590 A.2d 222 (also allowing comparative apportionment where parties' actions were intentionally tortious).
New York:
Lippes v. Atlantic Bank of New York (1979), 69 A.D.2d 127, 419 N.Y.S.2d 505.
Oklahoma:
Amoco Pipeline Co. v. Montgomery (W.D. Okla.1980), 487 F.Supp. 1268 (applying Oklahoma law).
Oregon:
Johnson v. Tilden (1977), 278 Or. 11, 562 P.2d 1188; DeYoung v. Fallon (1990), 104 Or.App. 66, 798 P.2d 1114.
South Carolina:
Stockman v. Marlowe (1978), 271 S.C. 334, 247 S.E.2d 340.
Texas:
Trevino v. Lightning Laydown, Inc. (Tex. App.1990), 782 S.W.2d 946; Turner v. Lone Star Industries, Inc. (Tex.App.1987), 733 S.W.2d 242; Otis Elevator Co. v. Joseph (Tex.App.1988), 749 S.W.2d 920; Olin Corp. v. Dyson (Tex.App.1986), 709 S.W.2d 251; Anderson v. Trent (Tex.App.1984), 685 S.W.2d 712.
Wisconsin:
Wangen v. Ford Motor Co. (1980), 97 Wis.2d 260, 294 N.W.2d 437. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3996202/ | I cannot concur in the view inferable from this opinion that the children belong to the state; therefore, I dissent.
October 26, 1944. Petition for rehearing denied. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850269/ | Charles Frederick Moyer and William Paul Byron were jointly tried for the murder of Harvey Zerbe, which occurred during the perpetration of a robbery. The jury convicted them of murder in the first degree and imposed the death penalty. On the night of July 13, 1946, the defendants while in a taproom in Chester, Pa., "decided to go out and rob a filling station or some place." Byron, armed with a .32 caliber Smith Wesson revolver and Moyer, armed with a .32 caliber Royal automatic pistol, cruised along MacDade Blvd., Delaware County, in a car which they had previously stolen, with the specific intent of carrying out their conspiracy. At or about 11 P. M. they selected as a suitable site to rob, a gasoline station located on MacDade Blvd. and Sylvania Ave., Delaware County, which was owned and operated by one Earl Shank. They drove their stolen car into the gasoline station, between the curb and the "island", where they were approached by Harvey Zerbe, who was employed as a gasoline attendant. Byron was behind the wheel and Moyer was slumped in the front seat beside Byron so that he was unobserved. When Zerbe inquired of their needs, Moyer pushed open the car door, pointed his weapon at Zerbe and informed him it was a "hold-up". Moyer got out of the car and put his loaded gun against Zerbe's person and ordered him to advance toward the building. Byron remained in the car. At the time, Earl Shank, the owner of the station, was leaning in front of the doorway of the building on the premises. He was not immediately observed by Moyer whose vision was obscured by a large Panama hat which he wore pulled down over his eyes.
As Moyer was marching Zerbe toward the building, Zerbe moved sidewise to the left. Moyer then looked up and saw Shank. Moyer immediately fired at Shank but missed. Shank who had a .38 caliber revolver in his left pocket, which he obtained from Zerbe five minutes prior *Page 184
to the perpetration of the robbery,1 fired at Moyer five times. Two of the shots hit Moyer, one in the shoulder and the other in the chest. Moyer then shot twice at Shank and retreated to the automobile. When he reached the car he shot again and about that time Byron shot. Moyer's last shot was aimed at Shank but it was alleged by the Commonwealth that the bullet hit Zerbe, who was then in the line of fire. Zerbe fell mortally wounded. Shank testified that while the exchange of shots took place, he "picked up a three-pound maul, and as I did a shot came in the doorway . . . I dropped the maul and grabbed the telephone." He was asked: "When you picked up the telephone had you seen Zerbe go down?" He replied: "No, sir." He stated: "Before I completed the call, when I was telephoning the police, Mr. Zerbe was looking in the window at me when I started to make the telephone call to the police." When he was asked what happened after he finished making his call, he answered: "I went to go out the door and Mr. Stauffer was standing in front of the door and he said: '. . . Are you hurt, are you hurt?' I said to him: 'No.' . . . I didn't know he [Zerbe] was hit yet. Just then someone said there was a man shot." I looked over to see who it was and telephoned to get the Milmont ambulance." It was "Harvey Zerbe . . . lying on his back." After the shooting, Byron and Moyer escaped in the stolen car.
Zerbe faced Shank throughout the shooting. Zerbe was shot in the back from the direction of Byron and Moyer. The bullet passed completely through his body. An eye-witness, Marion Stauffer, saw Moyer's arm drop immediately after the shooting (as having just completed the shot) and saw Zerbe then fall to the ground. After Zerbe was shot, a bullet that was identified as having come from Moyer's gun was found underneath Zerbe's prostrate body. Shank did not shoot in Zerbe's direction. *Page 185
In Moyer's confession he said that when he was at the gasoline station and saw Zerbe approach the car, he [Moyer] said "Put your hands up; this is a hold-up." This man "was sweeping up or doing something like that." Moyer said he "pointed the gun at him" and told him he "wanted his money." Byron was then at the wheel of the car. The man that came whom Moyer had addressed, replied "all right" and then Moyer marched him towards the building and he told him to get the money. Moyer said, "I was walking behind him with the gun on him . . . then the other fellow started to shoot." By "the other fellow" he evidently meant Shank, who was "in the doorway." He said he [Shank] shot twice and hit him both times, once in the shoulder and in the chest. Zerbe, who had been ahead of Moyer, started to run toward the left hand corner of the building. Moyer then started shooting. He fired four times in rapid succession. He said he "was aiming at the fellow in the doorway." He was asked: "While you were firing what did you notice happen if anything?" "A. I saw the fellow that was hit falling. Q. That is the fellow that you had been marching along with the gun pointed at him? A. Yes." Moyer was also asked: "Then what happened?" He answered: "I turned around, ran around, jumped up, got inside of the car, and we pulled away." As he pulled away, he heard the man who had been shot and who was then lying on the ground "moaning."
The Commonwealth claims that it proved beyond a reasonable doubt that the bullet which killed Zerbe was fired by the defendant, Moyer. After Zerbe was shot down and these two defendants escaped from the scene, a .32 caliber bullet was found beneath Zerbe's body. The inference was legitimate that this was the bullet that passed through Zerbe's body. M. E. Williams, special agent of the F. B. I., testified as follows: "Of the three weapons I examined, this bullet, State's exhibit 9 [the .32 caliber, Royal bullet found beneath Zerbe's body] *Page 186
could only have been fired in the automatic pistol, State's exhibit 11 [Moyer's gun]." Defense counsel asked: "Could you tell us whether or not the laboratory of the Federal Bureau of Investigation is equipped to test bullets that have gone through objects?" He answered: "Certainly." "Q. Such as wood? A. Yes, sir. Q. And bodies? A. Yes, sir." As we hereafter point out in this opinion, it is quite immaterial in the question of the guilt of these defendants whether or not the fatal bullet was fired by Moyer or by Zerbe's employer in repelling Moyer's murderous attack upon him and Zerbe in the attempted perpetration of a robbery.
Dr. John H. Turner testified for the Commonwealth that an examination of Zerbe's body disclosed "a bullet wound on his back and penetrating through the abdomen on the left side; it went in on the right and came out on the left." He was asked: "Will you tell us where the point of entrance was?" He answered: "The point of entrance was two inches to the right of the fourth lumbar vertebrae on the right side." He distinguished the entrance "because of the dark area on the skin" which was "in the back on the posterior surface, and on the front there was none at all." He also testified that the powder burns indicated that the victim was not at "close range" and that the revolver shot in relation to the object shot was "from a distance". The witness further stated that a "reflected bullet" could not have caused the victim's mortal injury. John Daniel Stauffer a resident near the gasoline station, testified that he had heard the exchange of shots and saw the defendants' car "coming out of the station", it "was going very fast, as fast as it could go." He went over as fast as he could and saw Zerbe "lying on his back." He said Shank was still on the telephone when he got into the doorway.
The defendants were apprehended on November 7, 1946, and were subsequently convicted of murder in the first degree. Each defendant filed a motion for a new trial After these motions were refused in due course, this appeal followed. *Page 187
The first assignment complains that the charge of the court "removed from the jury's consideration a possible verdict of acquittal", by the following language:
". . . I understand counsel here asked for acquittal, although not stressing the point, but that is entirely a matter for you, you will reach a verdict and it is your verdict but we do not know why the question was ever propounded to you at all, why they should be acquitted."
". . . but certainly not for any acquittal of any kind whatsoever; under the evidence in the case, we will not submit that to you at all."
This language was ill chosen and if it was not rectified by other portions of the charge, it might require a reversal. However, we have frequently said that a judge's charge must be considered in its entirety and that error cannot be predicated on certain isolated excerpts from the charge. See Com. v.Malone, 354 Pa. 180; Com. v. Glenn, 321. Pa. 241; Com. v.Bryson, 276 Pa. 566. A reading of the entire charge in this case reveals that the jury could have been in no doubt that it was their duty to acquit the defendant if the Commonwealth failed to establish guilt beyond a reasonable doubt. For example, the court said:
"Where a reasonable doubt exists it is the property of the defendant and must result in an acquittal."
"Of course it must follow, if you would be of the opinion under all the evidence in this case that it was an accidental killing of Zerbe by Shank, it is possible that these defendants may not be found guilty of murder in the first degree, or may not be found guilty at all . . ."
"We are not indicating to you what your verdict should be at all. We have told you that you have authority to say whether this was murder in the first degree, murder in the second degree or voluntary manslaughter, but we cannot conscientiously say to you that we agree with any suggestion made by counsel for the defendants that the men ought to be set free on the *Page 188
charges preferred against them. However, we are leaving the matter entirely to you. We are expressing our opinion, and you will not be influenced by anything we will say, but we are quite sure you look to the judge for guidance . . . but we cannot acquiesce in conscience with the suggestion that these men should be acquitted. They are charged with this offense; the matter is entirely with you, and you are free to do as you please."
In Com. v. Bloom, 88 Pa. Super. 93, this court said: ". . . a judge may express his opinion regarding the evidence, and in some cases it may be his duty so to do, but this should be so done as not to withdraw the evidence from the consideration and decision of the jury." See also Com. v. Cunningham, 242 Pa. 609, in which this court, speaking through Chief Justice FELL, said: This court will not reverse a conviction of murder in the first degree because a judge expresses his opinion as to the guilt of the defendants if "the jurors must have understood that they were entirely free to form their own judgment." The charge in the instant case does not justify the claim that the jury was not free to return whatever verdict the evidence when weighed by the jury called for.
The second assignment of error is based on the excerpt from the charge of the court in which the jury was instructed that: "All of the participants in an attempted robbery are guilty of murder in the first degree if someone is killed in the course of the perpetration of the first-named crime. That is the law of the Commonwealth of Pennsylvania." The appellants challenge that statement and say that the issue in this case is whether or not the decedent met his death by a wound inflicted by the defendant Moyer or by the garage owner Shank.
This assignment of error poses the question whether or not these defendants can legally be convicted of murder if the bullet which killed Zerbe came from the revolver fired by the latter's employer in an attempt by him to frustrate the attempted robbery. We have no *Page 189
doubt that even under these facts, which facts the Commonwealth does not concede, the complained of conviction was proper.
A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons. This is a question which apparently has never before arisen in this Commonwealth and has arisen elsewhere only rarely. Our Act of June 24, 1939, P. L. 872, section 701, 18 PS 4701, reads as follows: "All murder which shall be . . . committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree." This section is, with the addition of the word "kidnapping" and with a negligible change in phraseology, a re-enactment of the corresponding provision of the Criminal Code of March 31, 1860, P. L. 382, and of later Acts and of the Act of 1794.2
The numerous states which have copied this Pennsylvania statute, (including the states of Massachusetts, New York, Connecticut, New Jersey and Michigan) all use in their respective statutes the word "murder" instead of the word "homicide" for the reason that a killer in the malicious perpetration of one of the specified felonies has committed common law murder. The felon obviously possesses that "wickedness of disposition, hardness of heart, cruelty and recklessness of consequences and a mind regardless of social duty" (Commonwealth v. *Page 190 Drum, 58 Pa. 9) which constitutes malice. Blackstone, Book IV, section 199, says that "The grand criterion which now distinguishes murder from other killing" is that malice which is "the dictate of a wicked depraved and malignant heart." This court said in Commonwealth v. Kelly, 333 Pa. 280, 287,4 A.2d 805, "To this Commonwealth one must answer as a malicious criminal for any fatal injury he here causes a human being by anything done by him intentionally or unintentionally during the commission or attempted commission of any of the specified felonies, for malice is the mainspring of his outlawed enterprise and his every act within the latter's ambit is imputable to that base quality. Such a rule is essential to the protection of human life." In that case we held, as we had previously in Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24, that "when in the commission or attempted commission of a robbery there is 'no break in the chain of events' between the felony and the shooting which caused death, even though 'the discharge [of the gun] was unintentionally caused [by the felon] while struggling with his victim, or with a third party who came to the latter's assistance,' the defense of accidental killing is inadmissible and the homicide is, under the statute, 'murder of the first degree.' "
The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blackstone, Book IV, page 1599, section 201, "if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to theother." (Italics supplied). It is equally consistent with reason and sound public policy to hold that when a felon's attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and *Page 191
almost inevitable sequence results from the initial criminal act. For any individual forcibly to defend himself or his family or his property from criminal aggression is a primal human instinct.3 It is the right and duty of both individuals and nations to meet criminal aggression with effective countermeasures. Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance. Any robber or burglar who carries deadly weapons (as most of them do and as these robbers did) thereby reveals that he expects to meet and overcome forcible opposition. What this court said in Commonwealth v. LeGrand, 336 Pa. 511, 518, about burglars, applies equally to robbers: "Every burglar is a potential assassin and when his felonious purpose encounters human opposition his intent to steal becomes an intent to kill
and any weapon he finds at hand becomes a weapon of murder." Every robber or burglar knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible. For Earl Shank, the proprietor of a gas station in Ridley Township, Delaware County, which at 11 P. M. on July 13, 1946, was being attacked by armed robbers, to return the fire of these robbers with a pistol which he had at hand was as proper and as inevitable as it was for the American forces at Pearl Harbor on the morning of December 7, 1941, to return the fire of the Japanese invaders. The Japanese felonious invasion of the Hawaiian Islands on that date was in law and morals the proximate cause of all the resultant fatalities. The Moyer-Byron felonious invasion of the Shank gas station on July 13, 1946, was likewise the proximate cause of the resultant fatality. *Page 192
If in fact one of the bullets fired by Earl Shank in self-defense killed Harvey Zerbe, the responsibility for that killing rests on Moyer and his co-conspirator Byron, who had armed themselves with deadly weapons for the purpose of carrying out their plan to rob Shank and whose murderous attack made Shank's firing at them in self-defense essential to the protection of himself and his employees and his property. If, for example, a father sees his child being kidnapped and opens fire, as any normal father would be expected to do if he had a gun available, and if the bullet which he fires at the kidnapper inadvertently kills the child, the death of the child is properly attributable to the malicious act of the kidnapper. The principle which sustains this conclusion is expressed by Bishop on Criminal Law, 9th Ed., Vol. 2, section 637, page 480, as follows: "It is a rule both of reason and law that whenever one's will contributes to impel a physical force, whether another's, his own, or a combined force proceeding from whatever different sources, he is responsible for the result, the same as if his own unaided hand had produced it. The contribution, however, must be of such magnitude, and so near the result, that sustaining to it the relation of contributory cause to effect, the law takes it within its cognizance."
Stephen's History of the Criminal Law of England, Vol. 3, page 21, says that at common law "murder was homicide with malice aforethought and that the latter consisted of any of the following states of mind: 1. . . . 2. . . . 3. . . . 4. An intent to commit any felony whatever." Blackstone, Book IV, pages 192-193, says: "When an involuntary killing happens in conseqence of an unlawful act it would be either murder or manslaughter according to the nature of the act which occasioned it, but in consequences naturally tending to bloodshed it will be murder."
In Keaton v. State, 57 S.W. 1125, the Court of Criminal Appeals of Texas held that where the defendant *Page 193
and others went to rob a train, and, after stopping it, forced the fireman to the door of the express car, after being warned that some one would probably commence shooting at them from the rear of the car, and persons resisting the attempted robbery, and intending to kill the robbers, shot and killed the fireman, the defendant was held guilty of murder.
In the case of Taylor v. State, 55 S.W. 961, which grew out of the same train robbery, it was likewise held that the defendant was properly convicted of murder in the first degree. The court said in that case, "The whole question here is one of causal connection. If the appellant here set in motion the cause which occasioned the death of deceased, we hold it to be a sound doctrine that he would be as culpable as if he had done the deed with his own hands." In Bishop on Criminal Law, Vol. 2, section 657, page 500, it is stated: "Any employment of unlawful force, whereby the life of a human being is taken, whether this result was intended or not, is a felonious homicide." In section 679 it is stated: "Whenever one without legal excuse or palliation does what is directly and immediately dangerous to life, any homicide which results therefrom, whether intended or not, is deemed by the law to have proceeded from malice aforethought and is murder, not manslaughter." In People v. Manriquez, 206 P. 63, the Supreme Court of California held that homicide, committed in the perpetration of a robbery, was murder in the first degree, not withstanding defendant's claim that the pistol went off when his victim grabbed at it.
In the so-called "Anarchists' Case", Spies et al. v. People
(1887) 122 Ill. 1, 12 N.E. 865, 3 Am. Stat. 320, it was held that any act done by a party to an unlawful conspiracy, in furtherance of and naturally flowing from the common design, is the act of each and all of the conspirators, (1) even though the conspirator who did the act cannot be identified; or (2) though the defendant may have been absent; or (3) though the act charged *Page 194
may not have been arranged for; or (4) was unauthorized in point of time, place, occasion or instruments; or (5) was not anticipated, if the conspirators either did or ought to have anticipated the result, although they did not contemplate the means.
The man who hurled the deadly bomb was never identified and there was no direct proof that he was ever in privity with the defendants and there was only circumstantial proof that the defendants' inciting of others to overthrow the social order by violent methods and to kill law officers was a contributing factor in the throwing of the destructive projectile.
The Illinois Supreme Court in affirming the judgment and the death sentence against seven of the defendants held that whether the fatal act "naturally flowed" from the criminal design of the defendants was a fact for the jury's determination. It quoted the following from I Bishop Criminal Law, section 636: "A man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally through some other specific or a general evil purpose. When therefore, persons combine to do an unlawful thing, if the act of one proceeding or growing out of the common purpose terminates in a criminal result, though not the particular result meant, all are liable." The court also said: " 'He who inflames people's minds, and induces them by violent means to accomplish an illegal object, is himself a rioter, though he takes no part in the riot.' Reg. v. Sharpe, 3 Cox, Crim. Cas. 288. 'One is responsible for what wrong flows directly from his corrupt intentions. . . . If he set in motion the physical power of another, he is liable for its result. If he contemplated the result, he is answerable, though it is produced in a manner he did not contemplate. . . . If he awoke into action an indiscriminate power, he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what he might have forseen would be the understanding, he is responsible.' *Page 195
1 Bish. Crim. La., section 641. . . . It was a question for the jury whether, . . . the attack upon the police at the Haymarket 'was so connected with the inflammatory language used that they cannot be separated by time or other circumstances.' "
In Johnson v. Alabama, 38 So. 182, 2 L.R.A. (N.S.) 897, it was held by the Supreme Court of Alabama that one who, by interfering in aid of his insane parent, whom officers are attempting to arrest, frees his hands, and enables him to kill one of the officers, is guilty of murder. "The person who unlawfully sets the means of death in motion . . . is the guilty cause of the death at the time and place at which his unlawful act produces its fatal result; . . .": GRAY, J. inCom. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89.
In the law of torts, the individual who unlawfully sets in motion a chain of events which in the natural order of things results in damages to another is held to be responsible for it. In Boggs v. Jewell Tea Co., 266 Pa. 428, 433, this court said, quoting from 1 Thompson on Negligence, section 52, "Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoer." See also, Cameron v. Citizens TractionCo., 216 Pa. 191, and King v. Lehigh Valley R. R., 248 Pa. 255.
In Insurance Co. v. Boon, 95 U.S. 117, the U.S. Supreme Court held that when in a Missouri city in 1864 an armed force of Confederates attacked the city and the commander of the United States forces of the city upon realizing that he could not successfully defend the city, set fire to the city hall in order to prevent military stores in that hall from falling into the Confederate hands and the fire spread from the city hall to neighboring properties destroying the property of one Boon who had a policy of insurance upon the goods in *Page 196
that property, the proximate cause of the fire which destroyed the plaintiff's property was "the rebel invasion and military or usurped power. The fire occurred while the attack was in progress, and when it was about being successful. The attack, as a cause, never ceased to operate until the loss was complete. It was the causa causans which set in operation every agency that contributed to the destruction. It created the military necessity for the destruction of the military stores in the city hall, and made it the duty of the commanding officer of the Federal forces to destroy them. His act, therefore, in setting fire to the city hall, was directly in the line of the force set in motion by the usurping power, and what that power must have anticipated as a consequence of its action. . . . It was one of a continuous chain of events brought into being by the usurped military power, — events so linked together as to form one continuous whole." The court held that the loss by the fire which destroyed plaintiff's property was excepted from the risk undertaken by the insurers.4
This same principle is illustrated in the so-called "Squib Case" of Scott v. Shepherd, 2 William Blackstone's Rep. 892. In that case, there was instituted an action of trespass for tossing a lighted squib against the infant plaintiff and striking him on the face and so burning one of his eyes that he lost the sight of it. The facts were that on the 28th of October 1770, defendant threw a lighted squib made of gunpowder from the street into the market house. A large concourse of people were assembled there. One Willis to prevent injury to himself and to the goods of one Yates, grasped the lighted squib and threw it across the market house where it *Page 197
fell upon one Ryal. The latter, to save his own goods from being injured, took up the lighted squib and threw it to another part of the market house and struck the plaintiff in the face, putting out one of his eyes. In that case, Justice GOULD said, ". . . the defendant may be considered in the same view as if he himself had personally thrown the squib in the plaintiff's face. The terror impressed upon Willis and Ryal excited self-defense, and deprived them of the power of recollection. What they did therefore was the inevitable consequence of the defendant's unlawful act." Chief Justice DeGREY said, "The throwing the squib was an act unlawful and tending to affright the bystanders. So far, mischief was originally intended; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it; — Egrediturpersonam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered as the doer of all that follows; if done with a deliberate intent, the consequence may amount to murder . . ." The court held that an action of trespass was maintainable against the defendant Shepherd whose unlawful act started the squib on its journey through two other hands to the eyes of the plaintiff.
In Welser et al. v. United Gas Improvement Co., 304 Pa. 227,155 A. 561, which involved the question of the proximate cause of an injury in a tort case, this court said "the defendant's employees were responsible for a situation which would naturally cause the [police] officer to act as he acted in this case." We quoted the following from Lane v. Atlantic Works,111 Mass. 136, 139, "The act of a third person, intervening and contributing to a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable, direct cause of the injury." *Page 198
There is no reason why the principle underlying the doctrine of proximate cause as illustrated in three civil cases just cited should not apply to criminal cases also. Chief Justice DEGREY, in the squib case, supra, showed that he regarded the analogy between civil and criminal cases in which individuals are injured or killed as being so close that the principle of proximate cause applied to both classes of cases.
The second assignment of error is overruled. The third assignment of error is based on another excerpt from the charge of the court in which the court said: ". . . the contention of the Commonwealth is . . . that that was the bullet that caused the death of Zerbe, that it was from an automatic revolver in the hands of Moyer, and that Byron is in the picture because they started out to rob, and they intended to rob this particular place, they were working in concert, and if either one of them were to kill a person in the perpetration of a robbery or an attempt to commit robbery, they are both equally culpable." The objection here appears to be that the court made a statement as to a fact in issue, to wit, that the bullet which caused the death of Zerbe was from the automatic pistol "in the hands of Moyer." We do not find that the court deprived the jury of its right to determine who fired the bullet which killed Zerbe. Furthermore, as we have already stated, it is immaterial whether the fatal shot was fired by Moyer or Shank. The third assignment of error is overruled.
The fourth assignment of error is based on an excerpt from the charge of the court stating that the ballistic expert gave "his professional opinion about the calibre of the bullet . . . all for the purpose of showing . . . there was no doubt that was the bullet which passed through the body of the deceased." Under our view of the case, it is immaterial whether or notthat was the bullet which passed through the body of the deceased. The fourth assignment of error is overruled.
The fifth assignment of error also relates to what the court said as to the identity of the fatal bullet. *Page 199
Under our view in this case, the identity of the bullet is immaterial.
The sixth assignment of error is based on the following excerpt from the charge of the court:
"Here is a man who is deceased, Zerbe, thirty-nine years of age, a family man, working gainfully, stricken down in the vigor of life by men of the reputation of these men, according to evidence introduced here, habitual criminals, who were seeking to gain unlawfully, taking the law into their own hands . . ."
Appellants argue that the minds of the jurors were inflamed and prejudiced when the court referred to the defendants as "habitual criminals." For the purpose of enabling the jury to impose the appropriate penalty on these defendants in the event of their being adjudged guilty of murder in the first degree, the Commonwealth offered records showing that Byron had been convicted of twenty-five robberies and one rape and Moyer had been convicted of twenty-six robberies and five burglaries and one rape. In the light of these facts, the trial judge's characterization of the defendants as "habitual criminals" was only a harmless supererogatory indulgence on his part. The sixth assignment of error is overruled.
The seventh assignment of error is based upon the following excerpt from the charge of the court:
"These indictments have been offered to show what type these men were on this occasion and had been for some time before."
We find no reversible error in this excerpt. This assignment of error is overruled.
The eighth assignment of error is based on "the charge of the Court from page 463a to 488a which repeats the argument of the Commonwealth exclusively and is prejudicial, misleading and biased." This assignment of error is not made in accordance with Rule 22. See Tate-Jones Co., Inc. v. Union ElectricSteel Co., 281 Pa. 448, 457. Because of this violation of Rule 22 and because of its lack of intrinsic merit, this assignment of error is disregarded. *Page 200
That certain excerpts from the trial judge's charge are erroneous is clear. That any charge must be judged in its entirety is equally clear. When so judged the charge of this case did not amount to a denial to these defendants of a fair trial. That these defendants are guilty of murder in the first degree and deserve the penalty of death is a statement on which the evidence casts no doubt. What the Superior Court said in speaking through Judge RENO in Commonwealth v. Blose, 160 Pa. Super. 165, 50 A.2d 742, applies to the instant case, to wit: ". . . where the evidence of guilt is overwhelming, the rule [as to harmless error] has been applied and the conviction sustained, thereby promoting the causes of justice without harm to the defendant's legal right to fair trials."
The judgments are affirmed and the record is remitted so that the sentences may be executed.
1 There had been other recent robberies in that vicinity and Shank had been warned by the police to be prepared to defend himself.
2 Wharton's Criminal Law, Vol. I, 12th Ed., page 730, section 503, says of the Pennsylvania statute on this phase of murder: "The earliest of these statutes was that of Pennsylvania, and was drafted by the first Mr. William Rawle and Mr. William Bradford, jurists, as distinguished for their humanity as for their legal capacity. As the Pennsylvania statute has been reproduced in a majority of the states in the Union, it forms the basis of most of the adjudications which have been given under this head." Wharton is evidently referring to the Act of April 22, 1794, 3 Smith Laws 187, section 2.
3 "Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England." 4 Blackstone, section 181.
4 The policy contained the following stipulation: "Provided always and it is hereby declared, that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire." | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3863474/ | Argued April 21, 1925.
This appeal was argued with No. 169, April T., 1925, in which an opinion was filed today. The suit was brought by the William Penn Motor Indemnity Exchange, without the intervention of the attorney in fact, thus differing from No. 169. A liability substantially the same was however averred and a statutory demurrer was filed by defendant. Judgment was entered for defendant. Without now considering the reasons stated by the court below for its conclusion, we affirm the judgment for the reasons stated in the opinion filed at No. 169, April Term, 1925. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975263/ | 487 Pa. 313 (1979)
409 A.2d 367
Victoria Bertini HALASKI, Appellant,
v.
HILTON HOTEL and Workmen's Compensation Appeal Board.
Supreme Court of Pennsylvania.
Argued September 17, 1979.
Decided December 21, 1979.
*314 *315 Thomas P. Geer, Pittsburgh, for appellant.
Raymond F. Keisling, Pittsburgh, for Allstate.
Eugene F. Scanlon, Jr., Pittsburgh, for CNA Ins. Co.
James Miller, Pittsburgh, for appellees.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.
OPINION OF THE COURT
NIX, Justice.
The complete record in this case consists of the testimony of the claimant-appellant and her medical witness. The evidence established that Mrs. Halaski was employed by the Hilton Hotel in Pittsburgh for over sixteen years. On *316 October 15, 1973, while serving as a pantry girl, appellant was standing on a chair pouring orange juice when the chair slipped, causing her to fall to the floor. As a result, she sustained an injury to her back and received total disability compensation from October 16, 1973 to January 24, 1975. On February 10, 1975, the employer filed a termination petition alleging that Mrs. Halaski recovered from the injury and was able to return to work as of January 24, 1975. The referee entered a decision on September 16, 1975, ruling that all disability from the October 15, 1973 incident terminated as of April 18, 1975.
Mrs. Halaski returned to work at the Hilton Hotel in December, 1975 and continued to work until March, 1976. On March 8, 1976 while performing her duties in the kitchen of the hotel, she was struck by a food truck pushed by a fellow employee and was knocked to the floor. She testified that on this occasion she heard a snapping sound in her back. Because of the pain she was forced to leave work early and went to the hospital the day of the incident for treatment. After Mrs. Halaski remained home for two weeks, she was advised by her doctor to attempt to return to work. She was able to work for only one week before the pain caused her to return for further medical attention. Since that time the appellant has not returned to work.
On March 17, 1976, appellant filed a petition to reinstate the previous order for disability payments. This petition was dismissed by the referee on the basis that she "failed to show that her present disability [was] a result of her injury of October 15, 1973." Appellant also petitioned for compensation for injuries arising from the March 8, 1976 incident. The same referee who decided the reinstatement claim denied benefits under this claim because, "claimant failed to produce credible testimony that she sustained a compensable injury on March 8, 1976." The orders of the referee were affirmed by the Workmen's Compensation Appeal Board and the Commonwealth Court. We allowed this appeal.[1]
*317 During her Workmen's Compensation hearing, appellant called Samuel Sherman, M.D., as her medical witness. Dr. Sherman's qualifications as a physician in occupational medicine and rehabilitation were stipulated to by the parties. The Doctor testified that he first examined Ms. Halaski on August 12, 1976 and thereafter began a course of treatment. Dr. Sherman's examination uncovered a chronic compression fracture in the area of the 12th vertebra which was confirmed by x-rays made after the March 8, 1976 incident. In response to the inquiry as to which of the two injuries caused the compression fracture, the Doctor responded:
Well, she had two injuries. And I honestly can't tell you which of these injuries caused the compression fracture, which is an objective finding. But when she described this snapping in her back at the time of the second injury on March 8, 1976, I certainly would have to feel this may have been the precipitating cause, but honestly can't say.
In a claim for compensation under the Pennsylvania Workmen's Compensation Act, Act of June 21, 1939, P.L. 520 § 1, et seq., as amended, 77 P.S. § 1 et seq. (1952), the claimant has the burden of establishing the right to compensation and all of the elements necessary to support an award. See Velardi v. Page's Department Store, 464 Pa. 276, 282, 346 A.2d 556, 558 (1975); Fox v. W.C.A.B., 30 Pa.Cmwlth. 93, 95, 373 A.2d 141 142 (1977).[2] The Commonwealth Court relied on the rule that where no obvious relationship exists between an injury and work activity said to be its cause, unequivocal medical testimony is necessary to establish the causal connection. Based upon this premise, the court found that the medical testimony was equivocal because the doctor was unable to definitely state which of *318 the two injuries caused the compressed fracture. Although we accept the general validity of the rule, we find that its application to the instant factual situation is inappropriate.
With the deletion of the requirement of a finding of an "accident,"[3] a claimant's right of recovery is dependent upon the successful establishment that the injury occurred in the course of employment and is related thereto. Firestone Tire & Rubber Co. v. W.C.A.B., 40 Pa.Cmwlth. 142, 396 A.2d 902, 904 (1979); W.C.A.B. v. U.S. Steel, 31 Pa.Cmwlth. 329, 331-33, 376 A.2d 271, 273 (1977). Thus if the injury of March 8, 1976 caused the resulting disability, appellant would clearly have been entitled to compensation under the Act. Moreover, in cases where a pre-existing ailment or condition is a factor, the claimant is entitled to recovery if he or she can establish by competent medical evidence that the disability resulted from the new injury, and not from the normal progress of the pre-existing physical defect. See, W.C.A.B. v. Western Packers, 22 Pa.Cmwlth. 598, 350 A.2d 194 (1976); W.C.A.B. v. A.R. Bar, Inc., 22 Pa.Cmwlth. 609, 349 A.2d 805 (1976); W.C.A.B. v. State Workmen's Insurance Fund, 19 Pa.Cmwlth. 605, 339 A.2d 158 (1975). The fact that an employee was afflicted with a pre-existing physical defect or ailment which rendered him or her more *319 susceptible to injury than an entirely normal person will not bar recovery.[4]Updegraff v. Pa. Game Commission, 163 Pa.Super. 112, 60 A.3d 605 (1948). Lackner v. Pierre, Inc., 120 Pa.Super. 50, 181 A. 845 (1935).
The injury need not be the sole or exclusive cause of the disability. It is sufficient if the injury materially contributed to the disability, rather than the disability resulting from the natural progress of the pre-existing condition. Euker v. Welsbach Street Lighting Co., 149 Pa.Super. 78, 25 A.2d 758 (1942); Byars v. Howard Cleaners, Inc., 109 Pa.Super. 406, 167 A. 483 (1940).
It is also significant that in this case the original injury was in the course of employment with the same employer. Despite the fact that a prior compensable injury renders a claimant particularly susceptible to harmful effects of later injuries, this jurisdiction awards compensation for subsequent injuries to the same portion of the body. Gallagher v. Hudson Coal Co., 117 Pa.Super. 480, 178 A. 161 (1935); Carey v. Wiedlandt & Co., 100 Pa.Super. 220 (1930). Thus, if the March 8, 1976 injury aggravated the pre-existing condition caused by the October, 1973 injury or the October, 1973 injury created a condition that caused appellant to be particularly susceptible to the subsequent injury, she would be entitled to compensation for the resulting disability.
The Workmen's Compensation Act has vested the referee with broad discretion in assessing the credibility of witnesses and making findings of fact. See 77 P.S. § 833; Harman Coal Co. v. Dunmyre, 474 Pa. 610, 379 A.2d 533 (1977); American Refrigerator Equipment Co. v. W.C.A.B., 31 Pa.Cmwlth. 590, 595, 377 A.2d 1007, 1010 (1977). Where *320 the decision has been rendered against the party shouldering the burden of proof, our scope of view is limited to "a determination of whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence" in finding that the appellant had not established her entitlement to an award.
The undisputed record reflects that appellant has suffered a compression fracture of the spine causing disability.[5] It is also undisputed that any disability flowing either from the 1973 injury or the 1976 injury would be compensable, since both injuries arose in the course of employment and were related thereto. Finally, although the medical evidence could not identify with certainty which of the two injuries produced the subsequent liability, it is clear that one or the other, or possibly a combination of the two, was responsible.
In conclusion, since the medical testimony unequivocably established that the disability flowed from one of two compensable injuries, we cannot accept the result that the claim must fail because of the claimant's inability to unequivocably establish which injury was the cause.[6] Although additional testimony will be required to ascertain which carrier might be responsible,[7] we are satisfied that appellant on the *321 instant record has established her right to an award.[8]
Accordingly, the order of the Commonwealth Court affirming the decision of the Workmen's Compensation Appeal Board and the orders of the referee is reversed, the order of the Workmen's Compensation Appeal Board and the orders of the referee are vacated, and the petitions are remanded to the referee for further proceedings consistent with this opinion.
MANDERINO, J., did not participate in the decision of this case.
NOTES
[1] Jurisdiction over this appeal is pursuant to 42 Pa.C.S.A. § 724 (1979 Pamphlet).
[2] The proper test for legal sufficiency of medical testimony is:
. . . the expert has to testify, not that the condition of claimant might have, or even probably did, come from the [injury], but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence.
Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 501, 103 A.2d 681, 684 (1954).
[3] Under former law, claimant's right of recovery was dependent upon a finding that there had been an accident which resulted in the claimed disability. Over the years the term "accident" became a term of art acquiring connotations somewhat different from the meaning of that word as used in common parlance. Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975). Previously, an "accident" was found to have occurred where there was: (1) a sudden unexpected traumatic event, which is the normal use of the term; (2) an unusual exertion in the course of work causing unexpected and sudden injury; (3) an unusual pathological result of an ordinary condition of work; or (4) a sudden and unexpected injury caused by the failure of an employer to furnish medical care to an employee. Puher v. U.S. Steel Corp., 18 Pa.Cmwlth. 278, 335 A.2d 854 (1975).
In 1972 the Act was amended to provide for compensation for all injuries suffered in the course of employment, thus eliminating the requirement of proof of an accident. See Act of March 29, 1972, P.L. 159, No. 61, § 11, as amended, 77 P.S. § 431. Since the effective date of this amendment was May 1, 1972, all of the events in this lawsuit are controlled thereby.
[4] 77 P.S. § 411 provides:
(1) The terms "injury" and "personal injury", as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury. . . .
See, Pittsburgh Outdoor Advertising Co. v. W.C.A.B., 39 Pa.Cmwlth. 338, 395 A.2d 648 (1978).
[5] On the petition to reinstate workmen's compensation payments, the referee found, "After a careful review of Dr. Sherman's testimony, this referee finds that Dr. Sherman failed to show any causal relationship between her disability and the injury of October 15, 1973." On the petition asserting entitlement to workmen's compensation payments on the basis of a new compensable injury, the referee found that "Dr. Sherman . . . failed to state that the claimant's disability was related to the alleged injury of March 8, 1976." Together, these two findings exhibit that the referee acknowledged that the claimant was disabled.
[6] There is no evidence in the record or any contentions by the appellee that claimant's disability originated from a non-work source.
[7] In this case, Hilton Hotel was insured by CNA Insurance Company during the 1973 accident, and was insured by the Allstate Insurance Company during the 1976 injury. If the Court recognizes that the claimant suffered a work-related injury, and the only issue involved is the liability between two carriers, 77 P.S. § 751 provides for immediate payments to be made to the claimant. After a final determination is made, the carrier found liable must reimburse the non-liable carrier.
77 P.S. § 751 provides in part:
Whenever any claim for compensation is presented and the only issue involved is the liability as between the defendant or the carrier or two or more defendants or carriers, the referee of the department to whom the claim in such case is presented shall forthwith order payments to be immediately made by the defendants or the carriers in said case. After the department's referee or the board on appeal, render a final decision, the payments made by the defendant or carrier not liable in the case shall be awarded or assessed against the defendant or carrier liable in the case, as costs in the proceedings, in favor of the defendant or carrier not liable in the case.
[8] On remand, further testimony is required to determine the nature and length of Ms. Halaski's disability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3996206/ | I think the instruction defining the presumption of due care on the part of the deceased was not only erroneous, but prejudicial. It was erroneous in that it failed to tell the jury that the presumption of due care could not be overcome by interested testimony. It was prejudicial in that it was upon a vital issue in the case. I think the presumption was still in the case at the time it was submitted to the jury, and the appellant was entitled at that time to a proper instruction upon it. Had the jury been instructed that the presumption could be overcome only by disinterested testimony, the verdict might well have been for plaintiff. For, in my opinion, the physical facts were not in themselves sufficient to overcome it.
BLAKE, C.J., and MILLARD, J., concur with MAIN, J. *Page 273 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3861073/ | Argued October 1, 1936.
This is an appeal by the Borough of North Braddock from an order of the Court of Quarter Sessions of Allegheny County, sustaining a complaint by the Township of North Versailles against an Ordinance of the Borough of North Braddock, purporting to annex 31.6 acres of land described in the ordinance as situate in North Versailles Township and contiguous to the Borough, and adjudging said ordinance lacking in propriety and void and of no effect.
The right of complaint against a borough ordinance is permitted by Section 1010 of the General Borough Act of May 4, 1927, P.L. 519, as amended by the Act of May 18, 1933, P.L. 818. The amendment expressly provides that "The court shall have jurisdiction to review the propriety as well as the legality of ordinances affecting annexation of territory." The complaint charged that the annexation ordinance is not only illegal, but wholly improper under existing circumstances.
The facts in this case are correctly set forth in the opinion of the court below by MARSHALL (ELDER W.) J., from which we quote: "The dividing line between North Versailles Township and North Braddock Borough has always been the center of the stream known as Turtle Creek. Some forty years ago a portion of Turtle Creek was found to lie in the path of an enlargement or extension of the Edgar Thompson Steel Works; accordingly the owners of that plant dug a new channel into which they diverted the flow of the creek, and after filling in so much of the old channel as had been rendered useless by the change, occupied it with various of their structures. Thenceforth, the land lying between the old and new channels continued to be assessed for tax purposes as a part of the township, although the structures erected thereon were assessed in the borough. In April, 1933, the township instituted a proceeding in this court at No. 33 April Sessions, *Page 56
1933 (on appeal at No. 187 April Term, 1936, to this court), reciting that the boundary between the borough and the township was in dispute, and asking the court to ascertain and determine the true location of the same. To settle such dispute, it became necessary to determine the precise location of the original channel of Turtle Creek, manifestly a difficult task at so late a date. The borough and the township contended over the matter for upwards of two years, and at great expense. Eventually, on October 8, 1935, a final decree was entered, from which the borough has appealed to the Superior Court where the case now pends.
"The township had scarcely initiated the suit for determination of the boundary controversy when the borough, on June 21, 1933, and in response to a petition of alleged freeholders, enacted an ordinance designed to annex to the borough all of the township territory lying between the borough limits and the new channel of Turtle Creek, `for the purpose,' so the petition recited, `of obviating any further litigation between the township and the borough.' It is this ordinance which is under attack in the present proceeding.
"The area proposed to be annexed contains 31.6 acres and in the ordinance is described by metes and bounds. As described, it has three boundaries: The first is the center line of the new location of Turtle Creek from the Monongahela River to the projection of the North Braddock-East Pittsburgh Borough dividing line; the second is a projection of the dividing line last mentioned; the third is a line more than two-thirds of a mile in length and containing ten angles, which line extends from the boundary of East Pittsburgh Borough to the mouth of Turtle Creek in the Monongahela River. Of the eleven courses which comprise the third boundary, ten were taken from the calls in the charter line of North Braddock Borough, while the eleventh is a line interpolated in order to reach the point of beginning *Page 57
in the mouth of Turtle Creek. The charter line of the borough was prepared many years ago by an engineer named Middlemist, and the testimony taken in the proceeding at No. 33 April Sessions, 1933 (on appeal at No. 187 April Term, 1936 to this court, all of which is in evidence in the present proceeding) establishes that it was obtained, not from an actual survey on the ground, but by using courses and distances found in various deeds, charters and other documents of record. Stated in the vernacular it was merely a paper line (on appeal at No. 187 April Term, 1936, before this court). For purpose of convenience, the third boundary of the annexed area, that is, the line supposedly extending along the borough boundary, will be referred to hereafter as the Middlemist line.
"In the ordinance of annexation, the borough described the territory which it was annexing as `situate in the Township of North Versailles,' although throughout the disputed boundary proceeding, the borough at all times denied that the limits of the township extended to the Middlemist line. In point of fact, all of the borough's proof in the latter proceeding was offered in an effort to establish that the borough limits extended for a considerable distance beyond the Middlemist line and all of the various lines which, at one time or another during the course of the proceeding, the borough advocated as being the true boundary line lie considerably nearer to the present channel of Turtle Creek than does the Middlemist line.
"The purpose of this somewhat detailed recital of the facts is to make clear the inconsistency between the borough's position and claims in the disputed boundary case and in the present annexation proceeding, and thus to give point to the township's contention of impropriety."
A motion to quash the appeal of the Township was made in the court below and was overruled. *Page 58
The assignments of error in the present appeal are treated by appellant under three heads: (1) on the motion to quash the appeal, appellant claims that the court below erred because (a) the Township did not with its appeal, file bond as required by the Act, (b) the complaint of the Township is not signed by any "person aggrieved;" (2) that the court below erred in sustaining the appeal of the township and (3) the court below was guilty of an abuse of discretion in basing its decree upon evidence of the diminution of territory and the impairment of revenue affecting both the Township and the School District, the latter not having appealed.
Appellant has presented a very learned and comprehensive brief, but it would be to no purpose to answer every proposition therein contained, if the opinion and order of the court below is based on proper evidence and does not show an abuse of discretion, particularly in view of the express power conferred on the court to pass on the propriety of the proposed annexation.
(1). As to the refusal to quash the appeal. The appeal in this case was taken under Article 10, Section 1010, of the General Borough Act of 1927, as amended by the Act of May 18, 1933, P.L. 818, which provides that: "Complaint may be made to the Court of Quarter Sessions, upon entering into recognizance with sufficient security to prosecute the same with effect and for the payment of costs, by any person aggrieved, within thirty days after any ordinance or resolution takes effect, etc."
Appellants contend that the court committed error in allowing the entry of a proper bond nunc pro tunc as of the date when the defective bond was filed. The cases upon which counsel for the borough relies, Moritz's Contested Election, 256 Pa. 537,100 A. 1033, and Knoxville School District Election, 274 Pa. 354,118 A. 307, *Page 59
are inapplicable to the question for each of those cases arose under a statute which provided explicitly that "if the said bond shall not be filed as herein provided, the said petition to contest the election shall be dismissed." Such provision being mandatory, the court was powerless to accept a corrected bond after the statutory period had elapsed. The General Borough Act, however, contains no such direction.
In the present case, although the original bond was filed and approved by the Court on August 10, 1933, the Borough of North Braddock filed an answer to the petition for appeal on August 31, 1933, wherein it defended the legality and propriety of the annextion, and it was not until January 29, 1934, more than five months after the bond had been placed of record, that the borough first challenged its regularity. Under these circumstances, the court was of the opinion that it could and should allow a corrected bond to be filed nunc pro tunc, no harm having been suffered by the borough by reason of its absence.
The case is ruled by In Re: Scottdale Borough Annexation,91 Pa. Super. 1, where a bond was allowed to be filed for thefirst time after the statutory period had expired, owing to the annexing municipality having answered on the merits without questioning the fact that no bond had theretofore been entered.
In Kerr v. Martin, 122 Pa. 436, 15 A. 860, it was held error to strike off an appeal from an award of arbitrators, regular in other respects, without a rule upon the appellant to perfect his recognizance.
Is the Township of Versailles a "person aggrieved" by the passage of the ordinance? This is best answered in the opinion of the court below, from which we quote: "The petition for appeal charges that by said ordinance the borough is attempting to take away valuable land from the township for the sole purpose of procuring the taxes to be derived therefrom, and that the effect of the *Page 60
annexation will be to make it difficult and financially burdensome for the township to maintain its roads and highways. Such result must follow inevitably, if for example, the taxes produced from the territory to be annexed are more than sufficient to pay the governmental service furnished by the township in that territory. Such excess income helps to bear the cost of government in the remaining portion of the township, and if the township be deprived of it, because of the annexation, either the service must be curtailed or the tax rate increased. In this aspect of the matter, it is possible for the township to be seriously aggrieved by the loss of a portion of its revenue-producing territory without compensating relief from its obligation to provide municipal service. This view is strengthened by the provision in the amending statute before mentioned, that `The court shall have jurisdiction to review the propriety as well as the legality of ordinances affecting annexation of territory.' The propriety of an annexation comes before the court, not automatically, but only upon the complaint of a person aggrieved. Manifestly, if the effect of a proposed annexation will be to dislocate the fiscal affairs and situation of the township, or disproportion the tax burden, or render it difficult or impossible for the township authorities to render necessary municipal service, the persons best able to calculate the impropriety of the annexation are the township officials and not the individual taxpayers.
"`A grievance is an injury or a wrong done which gives ground for complaint because it is unjust and oppressive': Borough ofChartiers, 19 W.N.C. 46, and a party aggrieved is one who suffers from such injustice. Our judgment is that if the consequence of an annexation is to impose an injustice and oppressive burden on the township from which the land is taken (and such is pleaded to be the fact in this case), the township is aggrieved, and acting in the interest of the taxpayers *Page 61
may properly complain against the ordinance, just as the Supervisors of Upper Tyrone Township, Fayette County, did in theScottdale Borough Annexation Case, 91 Pa. Super. 1. Our courts have frequently said that persons aggrieved are those who suffer some special injury different from that which affects them and the public generally: Welsh's Appeal, 22 Pa. Super. 392; Heller's Appeal, 16 D.R. 647; Davies v. Crafton Borough, 48 Co. Ct. 295. The Township of North Versailles is not the general public. It has a special interest in that, if the ordinance is sustained, it will lose the tax on the property in the annexed area. It charges that an oppressive financial burden, affecting its ability to maintain roads and highways, will thereby be cast upon it. Assuming this allegation to be true, then the township will be aggrieved and has standing to complain: In Re: Ordinanceof the Borough of Mount Joy, 37 Lanc. Law Review 517."
On the question of propriety:
Prior to the passage of the ordinance of annexation, the Township of North Versailles had instituted a proceeding to have determined the true boundary line between the borough and township and said proceeding had not been concluded.
Quoting from the opinion of the court below: "Section 426 of the General Borough Act prescribes that before annexation shall be effective, `a certified copy of the ordinance, together with a description and a plot showing the courses and distances of the boundaries of the borough before and after such proposed annexation shall be filed in the Court of Quarter Sessions.' The necessary implication is that such description shall be reasonably accurate and correct. In the present case, the borough's engineer testified that the described boundaries of the borough prior to the annexation, as filed of record in this proceeding, will not close by about 385 feet. Accordingly, even though the description of *Page 62
the area to be annexed has closure to within three-eighths of an inch, as the engineer testified, its addition to the incorrect description first mentioned necessarily renders the description of the enlarged borough likewise incorrect. This is unquestionably the fact, for the borough engineer conceded that to make the latter description close, he would be obliged to `force some line some place,' using his own judgment as to which of the described courses and distances should be changed.
"We are asked, then, to place the stamp of our approval upon two descriptions of the boundaries of North Braddock Borough (one before, the other following, the proposed annexation) which admittedly are faulty and incorrect to a considerable degree. We are also asked by the borough to approve the statement in the annexation ordinance that all of the territory therein described lies in the Township of North Versailles, and that the Middlemist line which bounds one side of such territory was the true dividing line between borough and township, whereas, at the very moment of enactment of the ordinance, the borough was engaged in prolonged litigation wherein it contended and the court has since found that the Middlemist line was not the true division line and that much of the territory now proposed to be annexed was never a part of North Versailles Township. The impropriety of approving a proceeding so lacking in accuracy and predicated upon a fact situation so patently false is manifest.
". . . . . . The fact is that the council of North Braddock Borough, in passing the ordinance of annexation, undertook to legislate a change in the dividing line between the municipalities without knowing where the existing boundary line actually was located. It based its action upon an incorrect and untrue description of its own territory, and it falsely recited that all of the territory then being annexed lay within the township. *Page 63
Such recital was diametrically opposed to and inconsistent with the position it had assumed and continues to assume in the disputed boundary proceeding. Finally, it lodged in this court descriptions of its old and new boundaries which are faulty and incorrect, the latter description because it will not close, and the former because, in addition to not closing, it fails to specify the true location of the boundary between borough and township. A sense of propriety should have restrained the borough council from attempting annexation until the boundary dispute was settled; the impropriety of its action under the circumstances, coupled with the falsity and inaccuracies of the descriptions filed require that the ordinance and the annexation be set aside."
Contemporaneously with the filing of this opinion, we have filed an opinion in the case involving the disputed boundary lines, at No. 187 April Term, 1936, which is hereby referred to, and in which we have decided adversely to the claims of the Borough of North Braddock.
On the question of impairment of revenue to the Township of Versailles, the court below has found upon competent legal testimony: "It is plain, therefore, that if the land of the steel company be transferred from township to borough, the current taxes recoverable by the township, at least so long as the depression continues, will be reduced by from 20% to 25%, thus necessitating either a large increase in the annual tax rate or a sharp curtailment in the servicing of township roads. In either event the citizens of the township will be adversely affected. . . . . . . The proof was uncontradicted that if the annexation becomes effective and school taxes on the steel company's property are no longer available to the School District of North Versailles Township, the annual levy for school purposes must be increased to at least 32 mills to provide revenue *Page 64
equivalent to that now being received. Since the maximum permitted by the school code is but 25 mills, the normal school needs of the children in the township cannot possibly be supplied if the annexation takes place.
". . . . . . If the annexation becomes effective, the borough will receive an additional yield of but; $2,500.00 and the School District of but $6,000.00. There was not a breath of proof that such additional revenue is needed for any municipal or school purpose, and even were it received, it could occasion only an infinitesimal reduction in existing tax rates in the borough.
"Aside from the possibility of an inconsequential reduction in its taxes, the steel company would profit not at all by the annexation. There are no roads, streets or alleys in the area to be annexed and the company has no need for any governmental service supplied to residents of the borough, since it guards and polices its own property without assistance from the borough. There was no proof that the other companies which signed the petition would be benefited in any particular.
"So far as can be perceived, the only proper arguments which can be made in favor of annexation are that the present division line which crosses through a large manufacturing plant will be replaced by Turtle Creek, a natural boundary, and that the owners of the property in the affected area desire the change. The wishes of the petitioners for annexation are entitled to respect(Edgewood Borough, 130 Pa. 348) and natural boundaries as a rule are preferable to artificial ones, but these are not the only factors to be considered. The scope of our inquiry has beengreatly broadened by the amendment of 1933, which authorizes thepropriety of the change to be reviewed. Even though prior to1933, the impairment of township revenue by reason of theformation of a new borough seems to have *Page 65 been a matter of little concern (Edgewood Borough, supra), webelieve such impairment has a direct bearing on the question ofpropriety of annexation. With the passage of the depression, the financial situation of North Versailles Township and School District will doubtless become normal, so that loss of one-tenth of the taxable real estate will not impose an insurmountable tax burden on that which remains. At present, however, such withdrawal of taxable property will have a paralyzing effect upon the ability of the township to keep its roads in repair and maintain its schools, and thus will outweigh any possible advantage accruing to the Borough of North Braddock and to the owners of property in the area to be annexed." (Italics supplied).
In view of the uncertainty of the boundary line at the time of the institution of the proceedings for annexation, as the proceedings for the determination of the disputed boundary line had not been concluded, we believe that the proceedings for annexation were premature. Petitioners for annexation were in no position to comply with the provisions of the Act of May 4, 1927, P.L. 519, Art. IV, laying down the procedure for annexation, which requires the filing in the Court of Quarter Sessions of the county, of "a description, and a plot showing the courses and distances of the boundaries of the borough before and after such proposed annexation, etc." (Italics supplied). See Annexation ofBorough of Jenkintown, 101 Pa. Super. 227, 234.
Appellant contends that the evidence as to the effect upon the School District was not admissible as the latter had not appealed. While the School District is a separate corporate entity for the administration of the functions committed to it, yet the interests of the Township and the School District are so co-related, that whatsoever may injure the one also affects the *Page 66
other, we believe the evidence as to the effect upon the School District was competent in the consideration of the propriety of the proposed annexation.
In view of the broader discretion vested in the court below under the Act of Assembly governing these proceedings, and after a careful examination and consideration of the entire record, we cannot say that there was an abuse of discretion on the part of the court which would warrant a reversal of the order made therein.
The assignments of error are overruled and the order of the court below is affirmed. Appellant to pay costs. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3990363/ | This case was heard with Shapiro v. Reed reported in the 98 Vt. 76, and presents for review the same questions there raised and considered. On the authority of that case, the instant case must go back for a new trial.
Judgment reversed and cause remanded. Petition dismissedwithout costs to either party. *Page 82 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400025/ | 1. A suit brought in the name of the State on the relation of the solicitor-general, containing allegations that certain persons are at usurious rates lending money to ignorant people of small means, who by reason thereof are unable to protect themselves from threatened garnishments which may cause their discharge, on the part of the defendants, which are alleged to be injurious to the social interest and general welfare of the people of the State, there being no allegation that the Governor directed the bringing of such suit, can not be treated as one by the State itself in its sovereign capacity to prevent resulting injury to the general welfare. It is not decided whether the institution of such a suit in the name of the State by direction of the Governor would confer jurisdiction on a court of equity to entertain it.
2. Constant and repeated violations of the Code, §§ 25-201 et seq., relating to the business of buying wages or salaries, and like violations of §§ 25-301 et seq., relating to the small-loan business, with threats to continue the same, do not amount to such a public nuisance as may be abated and prevented by a suit in the name of the State, on the relation of the solicitor-general, under § 72-202.
No. 13504. DECEMBER 5, 1940. REHEARING DENIED DECEMBER 14, 17, 1940. *Page 383
This petition was brought by the State of Georgia ex rel. John A. Boykin, solicitor-general, against Ball Investment Company, a corporation, and against named individuals, one of whom is a nonresident of Georgia, alleged to be doing business under the trade name of Ward Investment Company, the petition seeking to enjoin the defendants from continuing their practice of making small loans and collecting usury thereon, which practice is alleged to be in violation of the laws of Georgia which prohibit the maintenance of a continuing nuisance; and for other relief as hereinafter stated. The allegations of the petition are, in substance, as follows: The defendants, Ball Investment Company, L. H. Meyerholtz, R. H. Frye, and P. C. Mathes (the latter a non-resident) are engaged in operating and carrying on the business of making small loans of less than $300, and usually less than $50, in a manner contrary to the laws of Georgia, and at exorbitant, usurious rates of interest. The business is carried on from an office at a designated location in the City of Atlanta. Mathes, the non-resident, is the owner of the business and owns and controls all of the capital stock of Ball Investment Company. Meyerholtz and Frye are employees of Mathes and Ball Investment Company, and are actively in charge of carrying on the business. The business is commonly known as the "loan shark" business, and the loans are made under the pretense and guise of purchasing salary assignments, but in reality are small loans at exorbitant and usurious rates of interest. The customers are persons of small means, having small incomes from wages and salaries and usually are in distressed circumstances. The rates of interest exacted from them range from 240 per cent. per annum upward. The defendants carry on said business without complying, or pretending to comply, with the requirements of the law known as the small-loan law contained in § 25-301 et seq. of the Code of Georgia of 1933, and in direct violation and defiance of that law.
While the defendants hold themselves out as being engaged in the business of purchasing wages, they do not comply, or pretend to comply, with the provisions of the law contained in chapter 25-2 of said Code, but operate regularly, continuously, and habitually in defiance of the provisions therein, and in fact are not engaged in the *Page 384
business of making bona fide purchases of wages and salaries; their pretense of being so engaged is a mere sham and device to evade the small-loan law and the usury laws of the State. They exact from their customers pretended fees or discounts greatly in excess of the rates authorized by the law known as the salary-purchase act (chapter 25-2 of the Code of 1933). They do not pretend to comply with the requirements of that law with respect to keeping books and records or furnishing duplicates to borrowers, and in fact they are not legally licensed according to the requirements of that chapter. The method commonly, customarily, and habitually employed by the defendants is to take from each borrower a so-called application for the sale and assignment of a part of his wages (which almost invariably are then unearned wages), and then to take from the borrower a pretended assignment of a certain amount of his then unearned wages. The purported assignment authorizes the defendants to collect from the borrower's employer the "assigned" portion of the wages. On the contrary, they require the borrower to collect his wages and pay the defendants the amount purported to have been assigned. In most instances the borrower is paid his wages each two weeks, and the period for which he pays for the use of the money is two weeks, and the rate of interest or discount is ten per cent for each two weeks. Frequently it is a higher rate. In the vast majority of cases the borrower renews the transaction each two weeks, paying the interest or discount and retaining, or receiving back, the original amount borrowed. As an example: The borrower gets an advance of $15, and executes a pretended assignment in the sum of $16.50, to be paid out of his wages to be earned during the ensuing two weeks. At the end of this two weeks' period he collects his wages, goes to the defendants' office, pays the $16.50, signs a new "assignment" for $16.50, and receives back $15.00, the original amount borrowed; and this is repeated time and time again, frequently over many months, and sometimes for years. The result is that the borrower pays $1.50 each two weeks for the use of $15, which is all that is advanced to him by the defendants. If the borrower fails to go to the defendants' office on his pay-day and pay up, or renew the transaction, he is threatened with suit or garnishment, and is nagged at and molested by the defendants both at his place of employment and at his home, and, as a result *Page 385
of threats of the defendants to serve the assignment on the employer, is placed in fear of being discharged from his employment. The borrower is usually either ignorant of his legal rights or is of such limited means as to be unable to protect those rights; and consequently he yields to the demands of the defendants, who in the ways stated extort from him the exorbitant and unconscionable usury.
It is alleged, that by reason of the illegal manner in which the transactions are carried on by the defendants they are not legally or morally entitled to collect anything from the borrowers, who in most instances have already paid them many times the amount of the principal and legal interest thereon; that the wholesale illegal practices carried on by the defendants are injurious to the social interest and general welfare of the people of the State, and constitute a public nuisance of an aggravated character, warranting the interposition of a court of equity for the prevention of repeated flagrant violations and defiance of the laws and public policy of the State, that there is no adequate and complete remedy at law; that to attempt to prevent, remedy, and redress such wrongs, abuses, and illegal practices by actions at law would involve a multiplicity of actions; that in order to have effectual relief it is necessary that the defendants be enjoined, and that their records and the evidences of the illegal transactions, in the form of notes or assignments, be taken into possession and impounded by the court through a receiver, or otherwise. The prayers were: that a rule nisi issue, requiring the defendants to show cause why a receiver should not be appointed; that the defendants be enjoined from carrying on the alleged pretended business in the illegal manner alleged, from collecting or attempting to collect or enforce the pretended assignments, from transferring, removing, or concealing the records, assignments, cards, and other documents relating to said pretended assignments and loans; and that a receiver be appointed to take possession of and hold all evidences of indebtedness and records relating thereto.
At interlocutory hearing, after introduction of evidence and argument of counsel, the court rendered the following judgment: "The court finds that the allegations of fact are in the main supported by evidence; but, irrespective of such finding, it is the judgment of the court that the State of Georgia has a full, adequate, *Page 386
and complete remedy at law as to those things of which complaint is made in the petition; that the acts complained of are not at common law, nor declared by statute, to be or to constitute a public nuisance; that the acts of the legislature dealing with the subjects of salary assignments and small-loan business do not undertake to extend the jurisdiction of equity over nuisances or to enlarge the category of public nuisances. Therefore the prayers of the petition for a receiver and injunction, and for the various kinds of relief prayed are hereby denied, and the restraining order heretofore granted is hereby dissolved." To this judgment the petitioner excepted.
1. It is in the first place insisted that this is a suit in equity, brought by the State in its sovereign capacity, to suppress and prevent the commission of repeated wrongs inimical to the general welfare, and that the facts alleged and proved demanded that the court grant redress on that theory. The plaintiff relies on In re Debs, 158 U.S. 564
(15 Sup. Ct. 900, 39 L. ed. 1092); Trust Company of Georgia v.State, 109 Ga. 736 (35 S.E. 323, 48 L.R.A. 520); Peoplev. Tool, 35 Colo. 225, 86 P. 224, 6 L.R.A. (N.S.) 822, 117 Am. St. R. 198); State v. Pacific Express Co., 80 Neb. 823
(115 N.W. 619, 18 L.R.A. (N.S.) 664); McCarter v. Firemen's Ins. Co., 74 N.J. Eq. 372 (73 A. 80, 29 L.R.A. (N.S.) 1194, 135 Am. St. R. 708, 18 Ann. Cas. 1048). The complainant in the instant case is designated as "State of Georgia ex rel. John A. Boykin." In Hart v. Atlanta Terminal Co., 128 Ga. 754
(58 S.E. 452), it was held that the suit was substantially one by the State. It was instituted by virtue of an executive order directing that such a suit be brought. The case of Walker exrel. Mason v. Georgia Railway Power Co., 146 Ga. 655
(92 S.E. 57), was likewise held an action in the name of the State. The judgment refusing to grant an injunction was affirmed. After reviewing the various duties and powers conferred *Page 387
on the attorney-general by the constitution and statutes of this State, this court said: "The duties and powers of the attorney general of this State are limited by the provisions of the constitution and statutes above quoted. This holding is no new pronouncement of the law controlling the question involved, but is a mere reiteration of the well-settled legal principle recognized in various decisions of the courts of last resort in this country, which are to the effect that where the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions. Therefore nothing more is necessary than the citation of some of such cases. The Floyd Acceptances, 7 Wall. 666 (19 L. ed. 169);State of Georgia v. Southwestern R. Co., 66 Ga. 403, 406;Western Union Telegraph Co. v. W. A. R. Co., 142 Ga. 532
(83 S.E. 135); State v. Bank, etc., of Missouri, 45 Mo. 528,540. In view of the foregoing, the attorney-general of this State was without authority to institute an equitable action in the name of the State, on the relation of a number of designated individuals, against a domestic corporation, to enjoin it from doing acts alleged to be ultra vires." In that case the suit was not brought by the express direction of the Governor.
In denying the right of the members of the State Board of Health to bring a petition for injunction against the members of the local board of health of the City of Atlanta, it was said, inWoodward v. Westmoreland, 124 Ga. 529, 531 (52 S.E. 810, 4 Ann. Cas. 472): "The constitution declares that the Governor shall take care that the laws be faithfully executed; and although there is no express statutory provision which in terms authorizes the Governor to cause suits to be instituted in the name of the State in matters relating to the public health, under the general powers conferred by the constitution upon the Governor, and on account of his peculiar relation to the affairs of the State, he has the power to authorize the attorney-general to bring a suit in behalf of the State, either at law or in equity, whenever the interests of the public or of the State would be subserved by an appeal to the courts. It may be that the attorney-general himself, without express authority from the Governor, could bring a suit of this character in the name of the State." In re Debs, supra, it is to be gathered *Page 388
from the statement preceding the opinion that the complainant was "the United States by Thomas E. Milchrist, district attorney for the Northern District of Illinois, under the direction of Richard Olney, Attorney-General." In Trust Company of Ga. v. State, supra, the petition was filed by the attorney-general in the name of the State, in accordance with an executive order from the Governor. In Walker ex rel. Mason v. Ga. Ry. Power Co., supra, a petition for injunction was refused by the trial court. In the instant case there was no demurrer. In the Walker case there was. This court held that, as the law then stood, the judge was without jurisdiction to dismiss the action, presumably on demurrer, before the appearance term, but affirmed the denial of injunction on the ground that the attorney-general of the State was without authority to institute an equitable action in the name of the State; and this ruling was made without any decision as to whether a case was made for injunction at the instance of the State. Following the reasoning in that case, we hold that the judge did not err in refusing the relief prayed for, so far as it was predicated on the idea that it presented a case by the State to suppress and prevent the commission of repeated wrongs inimical to the general welfare. A judgment denying an application for injunction will be affirmed when it appears that there was lack of capacity in the plaintiff to bring the suit, although there was no demurrer on that ground. In such a case there is no cause of action in the plaintiff. Hamilton v.
McIndoo, 81 Minn. 324 (84 N.W. 118); Hinton on Code Pleading (3d ed.), 287. There is no law authorizing the solicitor-general, by virtue alone of his office, to bring such a suit. The foregoing ruling renders it inappropriate for us to discuss further In re Debs, supra, Trust Co. of Ga. v. State, supra, and other cases relied on, with a view of determining whether or not on their merits they may be distinguished on principle from the instant case. Whether such an action based on the allegations of the petition before us could have been legally brought by the attorney-general by express direction of the Governor is a question not involved in this case.
2. This brings us to the second question. There is authority authorizing a suit, with proper and sufficient allegations, to proceed for the public on information filed by the solicitor-general of the circuit, to have a public nuisance enjoined. Code, § 72-202. *Page 389
In so far as this is a suit in equity for that purpose, it is properly brought. Whether it can be successfully maintained as such depends on certain factors presently to be mentioned. In order for the petition to proceed, the object which it is sought to enjoin must be a public nuisance. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. Code, § 72-102. We shall decide this case upon the assumption that the alleged nuisance, if it exists at all, is of a public character within the meaning of § 72-202, which permits a suit to enjoin it to be filed by the solicitor-general. We take no issue with the proposition, that, although a nuisance exists in a city under the government of a mayor or common council, a court of equity will in a proper case take jurisdiction of a suit to enjoin its continuance, notwithstanding the provisions of the Code § 72-401, when the nuisance is a continuing one. Town ofRentz v. Roach, 154 Ga. 491 (5) (115 S.E. 94), and cit;Spencer v. Tumlin, 155 Ga. 341 (116 S.E. 600). We concede that in a proper case equity will enjoin an existing nuisance, although the acts to be enjoined constitute crimes. Edison v.Ramsey, 146 Ga. 767 (92 S.E. 513); Rose Theatre Inc. v.Lilly, 185 Ga. 53 (193 S.E. 866). The fact that in the commission of the illegal acts no disorderly conduct is indulged does not prevent such acts from constituting a public nuisance.Gullatt v. Collins, 169 Ga. 538, 541 (150 S.E. 825). Due recognition of these principles, however, still leaves unanswered the major question, whether or not plaintiff has alleged a state of facts which amounts in law to a public nuisance. Our Code, § 72-101, declares: "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." This was not intended to change the common law definition of a nuisance. Hill v. McBurney Oil Fertilizer Co., 112 Ga. 788,793 (38 S.E. 42). In common parlance the word nuisance is a broad term. In law it has restricted meaning. It is customary to refer to many things unpleasant, unsightly, irritating, obnoxious, as nuisances. In a restricted sense, a person may sometimes become a nuisance. A *Page 390
classic example of this is recorded by Horace in his ninth satire. He tells of going along the Via Sacra one day in deep meditation, and describes his sufferings from the loquacity of an impertinent fellow, who, although a chance acquaintance, nevertheless insisted on asking the poet many foolish and personal questions. Horace in describing this experience repeated what was told him when a child by an old sorceress, that a babbler would one day destroy him, adding that it seemed to him that day had come. He had met with a nuisance undoubtedly, but not such an one as the law could enjoin or abate.
For the proposition that the practices carried on in the manner described in the petition constitute a public nuisance, counsel rely on State ex rel. Smith v. McMahon, 128 Kan. 777
(280 P. 906, 66 A.L.R. 1072). That was a case on its facts quite similar to the case at bar, and it does support the contention of counsel, unless that case should be valueless as persuasive authority, for two reasons: first, in Kansas usury is not a crime, and so far as it appears none of the acts alleged against the defendant were; second, the Kansas court in an earlier case had in effect held that the repeated and persistent violation of a statute constitutes a nuisance, and any place where such repeated violations take place is a public nuisance. The McMahon case, however, has not escaped criticism. In 43 Harvard Law Review, 499, 500, referring to its findings it was said: "The distortion of the injunction into a weapon of the criminal law can be of no ultimate salutary effect. Furthermore, the propriety of such summary action as was ordered here on the basis of a statute which merely imposes a penalty in civil actions is especially questionable. Only a conception of the injunction as a nostrum for social evils unnoticed by a negligent legislature can justify the result." In 14 Minnesota Law Review, 691, it was said: "The facts in the instant case (McMahon) show the legislature had already recognized the practice of usury as a social evil and had provided civil penalties therefor. Ought the court to assume jurisdiction to provide penalties beyond those provided by the legislature and attempt to remedy defects in legislation by the use of injunction? It would seem not." State ex rel. Goff v. O'Neil, 205 Minn. 366 (286 N.W. 316), was on its face a similar case, wherein a similar result was reached. The opinion states that in Minnesota, as in Kansas, the statutes forbidding the taking *Page 391
of usury do not subject the transgressor to a penalty by way of imprisonment or fine, and adds: "So there is no remedy for usury under the criminal law." The opinion in State Board of Dental Examiners v. Payne, 213 Ky. 382 (281 S.W. 188), lays down certain propositions which tend to support the position of plaintiff, but it is to be observed that the conception of a nuisance held by the Kentucky court is very different from the meaning of that term as defined in our Code and expounded in our decisions.
In State ex rel. Moore v. Gillian, 141 Fla. 707, in a brief opinion as reported in 193 So. 751, the Florida court ruled: "Where amended bill of complaint in effect alleged that respondents, holding themselves out as `salary buyers,' were engaged in the short-loan business and unlawfully exacted payment of usurious interest on such loans, and that such practice constituted a violation of the criminal and civil laws of Florida, was a menace to the public welfare, and abatable as a public nuisance, motions to dismiss amended bill and demurrer to amended bill were properly overruled." Contrary to the ruling in the Florida case is that in Means v. State, by the Court of Civil Appeals of Texas, 75 S.W.2d 953, where it was ruled that injunction will not lie at suit of the State to restrain one from merely making loans of his own money at usurious rates of interest. In the opinion it was said: "What the evidence does show is that appellant was making small loans of money to laborers at an unconscionable and outrageous interest. It is easy to understand how a chancellor, with a commendable desire to protect the unfortunate victims from such a pernicious practice, would seek to interpose the equitable powers of the court for its suppression. However, under the present state of the law, we do not think that an injunction will lie at the suit of the State to restrain one from merely making loans of his own money at usurious rates of interest. Contracts for the payment of usurious interest are void. The offended individual has his remedy by suit against the lender for recovery of double the amount of the usurious interest paid. See article 5073, R. S. 1925."
In State ex rel. Chicago c. R. Co. v. Woolfolk, 269 Mo. 389
(190 S.W. 877), an injunction was sought to abate what was alleged to be public nuisance, the transportation of liquor by railroad into a dry county. The court held it would be improper to grant the injunction. In the opinion it was said. "It necessarily *Page 392
results from a consideration of the allegations in the injunction suit filed in the court below that their sum and substance was an averment of the violation of the three sections of the criminal law supra, which forbade, under penalties, the receiving, storing, keeping, or delivering, as the agent or otherwise, of intoxicating liquors, without a license as a dramshop keeper or wholesaler, or in any county that had adopted the local option law. It follows, under the principles above stated and in view of the restricted allegations contained in the petition for injunction, that a court of equity is possessed of no power to enjoin the mere violation of the provisions of these criminal statutes, R. S. 1909, §§ 7227, 7229. Neither does it appear from its tenor that the defective petition could be so amended as to state a case within the jurisdiction of a court of equity, nor has the respondent favored us with any suggestions as to its amendment. . . While we can not escape the conclusion that the trial court acted without jurisdiction of the subject-matter in awarding the temporary injunction, it does not follow that either the relator or any other persons will be permitted to disobey with impunity the statutes governing the storing and delivery of intoxicating liquors (except section 7226 held unconstitutional in State v. Rawlings, 232 Mo. 544, 134 S.W. 530); for those statutes are a part of the criminal law and should be enforced through the process of the criminal courts against all violators, and it is the duty of the prosecuting attorney to see that this is done."
People ex rel. Stephens v. Seccombe, 103 Cal.App. 306
(284 P. 725), is an instance where the State sought to abate a loan business on the theory that it was a public nuisance. The court refused to treat it as a nuisance, the ruling being that, where acts or conduct sought to be enjoined constitute merely crime or series of crimes, and not nuisance, neither specific nor preventive, relief can be granted, under Civil Code, § 3369.
Dean v. State, 151 Ga. 371 (106 S.E. 792, 40 A.L.R. 1132), was a case wherein the solicitor-general brought an equitable petition against Dean, a chiropractor, alleging that by practicing his profession without having obtained a license to practice medicine from the State Board of Medical Examiners, he was maintaining a public nuisance. Calling attention to the fact that the unlawful practice of medicine in this State is a misdemeanor, and that *Page 393
none of the medical acts of this State undertake to extend the jurisdiction of equity over nuisances or to enlarge the category of public nuisances, it was held: "The mere fact that the plaintiff in error in practicing his profession without a license may be guilty of a misdemeanor will not authorize a court of equity to enjoin him from practicing his profession. If the medical acts of this State are applicable to the plaintiff in error, he is amenable to criminal prosecution. Unless the legislature sees fit to extend the jurisdiction of equity or to enlarge the category of public nuisances (conceding the power of the legislature so to do), equity will not enjoin the plaintiff in error from practicing his profession simply because in so doing he is violating the penal laws of the State (conceding the validity of the medical acts, as construed and applied by the chancellor)." That decision is in line with like decisions from foreign jurisdictions. People v. Universal Chiropractors Asso.,302 Ill. 228 (134 N.E. 4); Redmond v. State ex rel. Atty.-Gen., 152 Miss. 54 (118 So. 360); State v. Maltby,108 Neb. 578 (188 N.W. 175). In the case last cited it was said: "If the penalty for any crime seems to be inadequate, equity will not for that reason interfere, for the relief must come from the law-making power, and not by extending equity into a field foreign to its purposes."
In Bentley v. State Board of Medical Examiners, 152 Ga. 836
(111 S.E. 379), it was ruled that the State Board of Medical Examiners was without power to file an equitable petition to enjoin one from illegally engaging in the practice of medicine in this State. It was there argued that the act creating the board conferred on it the power sought to be exercised. In meeting that argument, this court said: "It is made a crime for any person to practice medicine in this State without possessing in full force and virtue a valid license to practice under the laws of this State; and such person so practicing is declared to be guilty of a misdemeanor, and upon conviction of such offense he shall be punished for a misdemeanor, in accordance with section 1065 of the Penal Code of this State. Thus the statutes creating this board fully prescribed the means and methods of protecting the people of this State against illegal and unqualified practitioners of medicine and surgery; and when such means and methods are prescribed for such protection, they must be followed by this board. The board *Page 394
can not resort to any other methods of protecting the people of this State. Certainly no other power of protection will be inferred from the acts creating this board. This court held that a court of equity, at the instance of the State, can not enjoin a person from illegally practicing medicine in this State. Dean
v. State [supra]. If the State itself can not in equity protect the people of the State by enjoining one from illegally practicing medicine, then of course this board can not maintain a petition for such injunction; and this was recognized by the court below in striking so much of the prayers of the petition as sought injunctive relief. On principle and reason, the principle ruled in Dean v. State controls the case at bar."
In Bennett v. Bennett, 161 Ga. 936 (132 S.E. 528), it was sought, at the instance of the superintendent of banks, to enjoin acts substantially the same as those alleged in the instant case. The petition was dismissed on general demurrer. It was held that there was no law giving the plaintiff the right to maintain any such action, but the court went further. It analyzed the holding in Bentley v. State Board of Examiners, supra, and quoted from the opinion where it was ruled that the statutes creating the board having prescribed the means and methods for protecting the people of this State, the board could not resort to any other method; and added: "And so we may say of the act regulating the loan business, that the statute confers specific remedies and means for protecting the people of this State against illegal loans made by persons without a license, as provided by the terms of the act of August 17, 1920. In the case of Dean v. State [supra] it was said: `A court of equity will not enjoin the commission of crime generally; but it has jurisdiction, and will in a proper case, at the instance of the State, restrain an existing or threatened public nuisance, though the offender is amenable to the criminal laws of the State.' There is no ground for holding that the acts against which an injunction is sought in this case amounted to a public nuisance; and if they were, the petitioner here is not the party to bring the suit for injunction." Of the Bennett case, it may be observed that only five Justices concurred, and therefore we are at liberty to disregard it as a precedent if we should be of opinion that it was erroneously decided. It may be said that the statement therein to the effect that a series of acts similar to those alleged in the instant *Page 395
case did not amount to a public nuisance was obiter, since the court held that petitioner had no standing in court to bring the suit. Whether or not that part of the decision be obiter is immaterial, since, as heretofore pointed out, the Bennett case was by five Justices only. But we find inescapable the reasoning of Mr. Presiding Justice Beck in that particular. The statement accompanying this opinion gives a fairly complete summary of the allegations of the petition pertinent to the point here under discussion. The alleged public nuisance is not of such character as to justify a court of equity entering a decree enjoining its maintenance. The Code, § 25-201 et seq., deals with our statute law on the subject of buying wages or salaries; § 25-301 with the small loan business. Licenses are required; many regulations made respecting the business; penalties provided for their violation; the taking of usury and the violation of various provisions of the small-loan act are made misdemeanors. There is no suggestion anywhere in either the wage-buying or the small-loan act that a violation of its provisions shall constitute a nuisance, or that for repeated violations equity should issue an injunction. If the penalties there provided be not a sufficient check to the abuses described in the instant case, the appeal should be made to the lawmakers, and not to a court of equity, whose powers can never be invoked where the law has provided what it deems to be an adequate remedy.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400018/ | 1. Refusal of a continuance of the trial was no abuse of discretion.
2. Refusal of injunction to prevent eviction under writ of possession was not erroneous.
No. 13721. JUNE 16, 1941.
The facts as they appear from the petition, the answer, and the evidence as recited in the bill of exceptions, are as follows: Martha Jane Thomas died testate, devising certain land to her five *Page 420
children who survived her, A. L. Thomas, Sam Thomas, Mrs. Estelle Purvis, Mrs. Ruth Harrelson, and Mrs. Lula Mae Harrelson. The last named was nominated as executrix, qualified as such, and probated the will. A. L. Thomas resided on the land with his wife, and before the death of the testatrix he procured from her a deed conveying the land in dispute to his wife, Viola Thomas; and she and her husband refused to give possession to the executrix. Sam Thomas set up an adverse claim to some of the personal property, and A. L. Thomas claimed other parts of the personalty. Mrs. Lula Mae Harrelson, as executrix, brought suit against Viola Thomas, A. L. Thomas, Sam Thomas, Mrs. Estelle Purvis, and Mrs. Ruth Harrelson, to cancel the deed under which A. L. Thomas was claiming the land for his wife, for an accounting of rents and profits, and to recover the personalty for the purpose of administering the same as the estate of the testate under the terms of her will. A. L. Thomas and his wife and Sam Thomas filed defenses. The other defendants made no contest. That trial resulted in a verdict in favor of the executrix for recovery of the land and certain personal property as a part of the estate of the deceased, to be administered by the executrix under the terms of said will; and a decree was entered, enjoining all of the defendants from interfering with the taking possession by the executrix. No motion for new trial was filed, and no exception taken to the verdict or decree. Writ of possession was issued and placed in the hands of the sheriff for execution.
A. L. Thomas filed the present action to enjoin the sheriff and Lula Mae Harrelson, executrix, from entering on, taking possession of, or otherwise interfering with the land in question, and from disposing of or converting any part of said estate; for an accounting between the parties, appointment of a receiver, and other equitable relief.
At interlocutory hearing the plaintiff made a motion for a continuance because of the absence of two of his witnesses, he testifying that he did not know anything in particular that these witnesses would swear; that they just knew all the circumstances of the case from beginning to end. He further testified that he could swear to the same facts that he wished to prove by his absent witnesses. The court refused a continuance, and denied an injunction; and the plaintiff excepted. *Page 421
1. There was no abuse of discretion in overruling the motion to continue. When the case was first reached for trial on January 15, 1941, the plaintiff was ready for the trial to proceed, but the defendants were not ready, and the case was reassigned for a hearing on January 25, 1941, on which date the plaintiff moved for a continuance, on the ground that two of his witnesses, his sister-in-law and son-in-law, were both sick and could not be present. The plaintiff swore that he could not safely go to trial without them; that he did not consent for them to remain away; that they had promised to come to the hearing, and he and his counsel had relied on them. On cross-examination he testified, in part: "I do not know anything in particular the witnesses would swear. They just know the case and all its circumstances from the beginning to the end." In answer to a question from his attorney, he stated that he could prove by each of his witnesses that the allegations in his petition were true. The judge asked him if he could not testify to the same facts that he wished to prove by each of his witnesses; and the plaintiff answered that he could, but he wanted the witnesses.
2. There was no error in refusing an injunction. In a previous suit between the same parties on substantially the same issues, where the present plaintiff was a defendant, the jury found against him, and in favor of the plaintiff in that suit for the premises in dispute; and a decree having been entered, and no exception taken, the defendant (now plaintiff) is not entitled to an injunction preventing the sheriff from evicting him under a writ of possession issued as a result of the verdict and decree in the former suit.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3853872/ | Argued October 17, 1929.
In the spring of 1926 the City of Philadelphia was constructing a subway on North Broad Street, in order that additional transportation facilities might be afforded the public. A contract for the performance of the work had been awarded to Patrick McGovern, *Page 3
Inc., defendant below and appellee herein; it was stated of record that he "was an independent contractor ...... and used dynamite to blast out rocks at the time of excavation."
Appellant, G. Gould Hirsh, was the owner and occupier of a building at No. 4717-21 on that street, used as an automobile sales room and service station. As the work progressed toward appellant's building, concussions from the blasting weakened a supporting pillar in the show room, and, simultaneously with an explosion on February 4, 1926, a large show window was shattered and fell inside, damaging one of the stored cars. Appellant, alleging that the contractor "negligently engaged in the blasting and use of high explosives" and that the injuries "were the result of the gross, wanton and negligent acts of the defendant and were occasioned by reason of the discharge of a quantity of high explosive and the resulting vibrations so great that the defendant knew, or was bound to know, before exploding said high explosive, that it would unnecessarily damage the building and its contents" unless proper supports were erected and maintained, brought an action of trespass against him in the municipal court. The trial judge entered a compulsory nonsuit upon the ground that appellant failed to submit any evidence of negligence upon the part of the contractor or his employes; the court, in banc, refused to take it off and we have this appeal. No proceedings of any kind were instituted against the municipality.
There was no testimony that the blasts were excessive or exploded without due care, or that stones or dirt were cast upon the premises. Evidence was introduced to show that one of appellee's officers had promised to put protective wiring on the windows before the accident; that one set was put on thereafter; *Page 4
that following the explosion some effort was made by appellee to install a temporary covering for the shattered window, which, however, was abandoned; and, finally, that one of the officers of the construction company had told appellant to put a new window in and charge it to appellee. We agree with the court below that no inference can be drawn from these acts that the blasting was done in a negligent manner, since the facts were equally consistent with an unavoidable injury; in fact, appellant concedes on appeal that no negligence was shown, but argues that the rule of liability without fault for damages caused by concussion, resulting from the use of explosives, is applicable. To support his contention, he cites numerous cases from various states in which liability in such instances is held to be identical with that resulting from a trespass quare clausum fregit where there is an actual physical invasion of another's premises. Appellee, on the other hand, cites cases which refuse to extend the rule to damages resulting merely from concussions. The point has never been adjudicated in Pennsylvania; nor need it be decided in this case.
In many of the cases cited the issues arose between private parties. Here, however, we have a property owner alleging that his real estate has been injured by a municipal corporation, acting through its contractor, in the enlargement of one of its highways. A complaint of this character immediately directs attention to Article XVI, Section 8, of our Constitution, which, inter alia, requires municipal corporations to "make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements."
Assuming, as we may for present purposes, that the injuries of which appellant complains are within the contemplation of this section (Ladd v. Phila., *Page 5 171 Pa. 485; Stork v. Phila., 195 Pa. 101; Mellor v. Phila.,160 Pa. 614; Lewis on Eminent Domain, 3rd Ed., Sec. 352), the question involved upon this appeal relates exclusively to the remedy for enforcing the constitutional right. The rule by which this question must be determined is well established. If such injuries resulted from the negligence of the municipality, or its contractor, in the performance of the work, the remedy is by an action of trespass against the municipality or the contractor, as the case may be, based upon such negligence, but, if the injuries were the direct, immediate and necessary or unavoidable consequences of the act of eminent domain, no matter how carefully performed, the remedy is against the municipality and ordinarily by proceedings before a board of view: Stork v. Phila., supra; Fyfe v. Turtle Creek Borough,22 Pa. Super. 292; Robinson v. Norwood Borough, 27 Pa. Super. 481; Cooper v. Scranton City, 21 Pa. Super. 17; Postal Telegraph Cable Co. v. Keystone State Const. Co.,63 Pa. Super. 486. When an improvement by a municipal corporation is the direct and proximate cause of the injury and the damage is the necessary and unavoidable consequence of the non-negligent performance of the work by the municipality or its contractor, but there is no legislation providing for the appointment of viewers with power to award just compensation, the property owner may enforce his right against the municipality by an action in the nature of trespass on the case: County of Chester v. Brower, 117 Pa. 647; Pennsylvania Railroad Co. v. Duncan, 111 Pa. 352, affirmed under the title of Pennsylvania Railroad v. Miller, 132 U.S. 75. The presence or absence of negligence in the manner in which the act of eminent domain is performed does not affect the constitutional right of the property owner, but does materially affect *Page 6
his remedy. All we now decide is that this appellant, having grounded his action upon the alleged negligence of the contractor and having admittedly failed in the proof thereof, was not entitled to go to the jury. The single assignment of error is based upon the refusal to take off the nonsuit and for the reasons stated must be overruled.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400048/ | 1. "Where the clerk or the sheriff whose duty it is to receive or collect fines imposed upon persons in criminal proceedings discharges a prisoner against whom a fine is imposed, by taking the promise of another party to pay the fine, the convict can not afterwards be rearrested or imprisoned for a breach of the contract for the payment of such fine." Pridgen v. James, 168 Ga. 770 (3) (149 S.E. 48). To the same effect, see Williams v. Mize, 72 Ga. 129; Long v. Collier, 154 Ga. 673 (115 S.E. 9); Howard v. Tucker, 12 Ga. App. 353 (77 S.E. 191).
2. On the hearing of a petition for habeas corpus brought by one who had been rearrested for failure to pay a fine, the evidence was in conflict on the issue as to whether or not the petitioner had been released by the sheriff upon the promise of another person to pay the fine. The judge was authorized to find that the sheriff did not make such an agreement, and did not abuse his discretion in denying the writ.
Judgment affirmed. All the Justicesconcur.
No. 14373. DECEMBER 1, 1942.
Bill Huffman was convicted of the offense of "drunk and driving" in October, 1940, and was sentenced to pay a fine of $100 and costs and serve six months in jail, and then serve twelve months at the Georgia State Farm. The sentence provided that upon payment of the fine and costs, and after serving one month in jail, the defendant could serve the remainder of his sentence on probation. His motion for new trial was overruled on December 17, 1940. When, if ever, he began to serve his sentence does not appear from the record. On June 8, 1942, he was arrested on two misdemeanor warrants, and the sheriff of Floyd County refused to accept bail until he paid the fine and costs provided for in his previous sentence; but on July 1, 1942, the sheriff accepted bond in the two misdemeanor cases, and released Huffman without his having paid the fine and costs. On August 31, 1942, the sheriff rearrested Huffman and placed him in jail, for failure to pay the fine and costs. Huffman instituted a habeas-corpus proceeding, alleging that his detention was illegal, because he had served approximately one month of his sentence in jail and eighteen months on probation; and that he had been relieved of paying the fine and costs, because the sheriff had released him from jail on the promise of one Ernest Huffman to pay the same.
On the hearing it was admitted that the fine and costs had not been paid. Ernest Huffman testified, that he went to see the sheriff while Bill Huffman was in jail, and asked him to allow Bill to pay his fine by the week; that when the sheriff said that Bill would not pay it, the witness told the sheriff that he would see that Bill paid the fine, if Bill was allowed to pay it by the week; and that the sheriff told witness that he would look to him for the fine and costs, and he "could look to Bill." The sheriff admitted that he talked to Ernest Huffman about Bill paying the fine by the week, but denied that he agreed to release him and take Ernest in his place. He testified: "I don't remember just what was said when I talked to Ernest, but Ernest said he was going to pay Bill's fine, and I said `Well, you will have to pay it, if it is paid; for Bill won't pay it.' I did not agree to take Ernest in Bill's place, but he said he would pay it. . . I never did release Bill Huffman on what Ernest said. I did not let him out of jail on what Ernest said. I don't know how he got out of jail without giving any bond in this case." Bill Huffman testified that he did not promise to *Page 119
pay the sheriff his fine by the week, but that Ernest Huffman did. The judge denied the writ of habeas corpus, and the petitioner excepted. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400056/ | By the act of 1949 (Ga. L. 1949, p. 1007), it is made lawful to sponsor or hold "athletic events, games and contests" on Sunday by obtaining a permit from the governing body of the municipality or county, and an automobile race is such a "game or contest" as provided by the statute. Worley v. State, 79 Ga. App. 594 (54 S.E.2d 439). Accordingly, where a person is enjoined from holding such a race "on the Sabbath day in violation of the laws of Georgia," and subsequently is granted a permit from the proper authority in accordance with the statute and thereafter holds such a race on Sunday, it is error for the trial court to adjudge him in contempt for violating the injunction.
Judgment reversed. All the Justicesconcur.
No. 16863. NOVEMBER 14, 1949.
Warren Akin, as Solicitor-General of the Cherokee Judicial Circuit, brought a proceeding against Tasker Brown and others. A copy of the petition is not made a part of the record. However, *Page 154
on June 13, 1949, a consent order was taken thereon as follows: "It appearing to the court that Mrs. Maudine Brown and her two minor children, Jimmy and Johnny Brown, have title to and own certain real estate in Gordon County, Georgia, upon which Sky Way Race Track is located, and it also appearing that Tasker Brown, husband of Mrs. Maudine Brown and the father of said two minors, and Mrs. Maudine Brown executed a written lease with Dan Fleenor dated May 23, 1949, leasing said Sky Way Race Track to said Dan Fleenor, and that under said lease said Dan Fleenor has the control and management of said race track and that said Dan Fleenor has been holding races on Sundays at said Rack Track: it is hereby ordered and adjudged, until further order of the court, that Tasker Brown, Mrs. Maudine Brown, and Dan Fleenor be and they are hereby restrained and enjoined from holding and maintaining and permitting any automobile, motorcycle, and horse races on said race track on the Sabbath day in violation of the laws of Georgia."
Subsequently Tasker Brown and others held and maintained an automobile race on Sky Way Race Track on Sunday, July 24, 1949.
Thereafter a citation for contempt for violating the injunction of June 13, 1949, was served, and upon a hearing the solicitor-general introduced the injunction, and evidence that an automobile race was held on the Sky Way Race Track on Sunday, July 24, 1949.
In response, Tasker Brown introduced a permit from the Commissioner of Roads and Revenues of Gordon County, issued after the date of the injunction and before the automobile race in question was held, as follows: "Under and by virtue of the authority vested in me as Commissioner of Roads and Revenues of and for Gordon County, Georgia, under an act of the legislature of the State of Georgia, approved February 25, 1949 (Ga. L. 1949, p. 1007), I do hereby authorize Tasker Brown of said county to operate, exhibit, and hold athletic events, games, contests, and all such events and amusements as are authorized under the provisions of said acts of the Georgia Legislature above cited, on Sundays, at his track and on the premises whereon is located what is known as Sky Way Track and Sky Way Park in said County of Gordon or elsewhere in said county, and *Page 155
this permit shall be authority for said Tasker Brown to so operate and exhibit such events on Sundays."
On an order adjudging him in contempt of court error is assigned. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854278/ | Argued May 15, 1940.
MEMORANDUM OPINION
Five of the Judges of this court — two Judges dissenting — are of opinion that the judgment of the lower court should be affirmed; but a majority of the court are not in agreement as to the grounds on which the affirmance should rest.
Consequently, we shall do no more than enter a formal judgment.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3858347/ | Argued September 28, 1936.
Appellant was convicted of operating an automobile, in Philadelphia county, while under the influence of intoxicating liquor. On this appeal appellant contends that the evidence is insufficient to warrant his conviction, and that a new trial should have been granted by the court below because of after-discovered evidence.
There was ample evidence from which the jury was justified in finding that about 5:30 a.m. on October 13, 1935, the appellant drove his automobile into a wooden telegraph pole, at Thirteenth and Lombard Streets, in the City of Philadelphia, and thereafter, in an intoxicated condition, continued to drive his automobile to *Page 63
a garage on Reed Street between Sixth and Seventh Streets. A police officer, who was a witness for the Commonwealth, arrived at the scene of the accident immediately thereafter. After inspecting the damage to the pole, which bore the imprint of an eagle, later found to be the insignia on the front of appellant's automobile, he proceeded in a police car, driven by another officer, and followed a trail of water, apparently caused by a leaking radiator, leading away from the scene of the collision eastwardly on Lombard Street to Sixth Street. At Sixth Street, still following the trail made by the leaking radiator, they turned south and saw the tail light of an automobile some distance ahead, which turned west on Reed Street. When the police car reached the corner of Sixth and Reed Streets, this automobile was still moving in a westerly direction on Reed Street, at four or five miles per hour. While still under the observation of the witness, it came to a stop in front of a garage on Reed Street between Sixth and Seventh Streets. This witness testified that he heard a horn blow and saw an attendant come out of the garage and enter the left-hand side of the automobile. Upon reaching the car, he found the attendant behind the wheel and the appellant beside him on the front seat. He further testified that nobody had left the appellant's car while it was under his observation; that during the pursuit he saw no one in the car but the driver; that nobody else was on the street excepting the garage attendant whom he saw come from the garage and enter the automobile of the appellant.
A police surgeon examined the appellant, and testified that he found him under the influence of intoxicating liquor.
The defense was to the effect that the appellant was not driving the automobile, but that the same was being driven by an employee of the appellant. One Max Silowitz testified that he had driven appellant's car from the Saratoga Club, at Sixty-sixth Street and *Page 64
Elmwood Avenue, where appellant admittedly had been drinking; that while so driving he had collided with the telegraph pole; that he thereupon drove to the garage at Reed Street, summoned the attendant, and walked down the street to his home on Sixth Street above Reed Street. The garage attendant testified that he had been summoned by Silowitz; that he came out and got into appellant's car; that he did not see Silowitz; that he recognized Silowitz by his voice; that he proposed to drive the appellant to his home and then return the car to the garage.
The evidence was properly submitted to the jury by the learned trial judge. The issue was purely one of fact. The jury, apparently believing the testimony of the police officer, was justified in concluding that the appellant had been driving his automobile while intoxicated. See Commonwealth v. Brown, 82 Pa. Super. 81. There was legal evidence to prove appellant's guilt beyond a reasonable doubt. See Commonwealth v. Harman,4 Pa. 269.
The trial judge heard, in open court, the testimony of several witnesses at the argument on motion for a new trial. This testimony does not meet the tests which have long prevailed in this Commonwealth. It does not satisfactorily appear that the evidence was such as could not have been obtained at the trial by the use of reasonable diligence; it seeks to impeach the credibility of a witness, or is simply corroborative or cumulative. Had all of this testimony been in evidence at the trial, there is no good reason to believe that it would have resulted in a different verdict. With exception of the testimony of a witness which tended to corroborate the contention of the appellant that Silowitz, and not he, was driving the automobile when they left the Saratoga Club, this testimony would seem to support, rather than contradict, the statements of the police officer who was the principal witness for the *Page 65
Commonwealth. The court below, in its opinion refusing appellant's motion for a new trial, has stated: "At the trial, after seeing and hearing the witnesses, the court was convinced that the defendant was guilty, and after hearing the additional evidence, our conviction of defendant's guilt is even stronger than it was before." It was within the sound discretion of the court below to refuse a new trial on the ground of after-discovered evidence; and a review of the entire record satisfies us that there was no abuse of that discretion. SeeCommonwealth v. Mellon, 81 Pa. Super. 20; Commonwealth v.Elliott, 292 Pa. 16, 140 A. 537; Commonwealth v. Greenfield etal., 103 Pa. Super. 489, 157 A. 50; Commonwealth v. Heck,Williams et al., 92 Pa. Super. 541.
Assignments of error are overruled. The judgment is affirmed, and it is ordered that the defendant, John Kerns, appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been performed at the time the appeal in this case was made a supersedeas. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975268/ | 1 B.R. 284 (1979)
In the Matter of TWIST CAP, INC., Debtor.
TWIST CAP, INC., Plaintiff,
v.
SOUTHEAST BANK OF TAMPA, Aluminum Company of America, and Central Can Company, Defendant.
Bankruptcy No. 79-1170-T.
United States Bankruptcy Court, D. Florida, Tampa Division.
November 6, 1979.
Stanley M. Lane, Tampa, Fla., for plaintiff.
Francis H. Cobb, Tampa, Fla., for defendant.
ORDER DENYING MOTION TO DISMISS
ALEXANDER L. PASKAY, Bankruptcy Judge.
THIS IS an arrangement proceeding and the matters under consideration are the motions *285 to dismiss the complaint filed by the defendants, Aluminum Company of America (Alcoa) and Central Can Company (Central). In order to put this controversy into proper focus, a recital of the relevant facts and procedural posture of this case is in order.
It is without dispute that on March 28, 1978, Twist Cap, the above-named debtor, entered into a security agreement with the Southeast Bank (the Bank) which secured monies paid by the Bank on behalf of the debtor. It is also without dispute that on December 5, 1977, and June 14, 1978, the Bank issued two letters of credit for the account of the debtor, each in the amount of $30,000 which were payable to the defendant Alcoa. Additionally, on March 19, 1979, the Bank issued a letter of credit in the amount of $25,000 for the account of the Debtor, payable to the defendant Central. On August 22, 1979, the debtor filed a petition for relief under Chapter XI and on August 28, 1979, the debtor filed a complaint and sought an order restraining the Bank from honoring the letters of credit. The complaint under consideration was originally filed only against the Bank, but Alcoa and Central were later added as party defendants.
On August 29, 1979, the debtor obtained a Temporary Restraining Order prohibiting the Bank from honoring the letters of credit payable to Alcoa and Central until a full and final hearing on the matter could be had. On September 6, 1979, Alcoa and Central each filed motions to dismiss the complaint both of which challenged this Court's subject matter jurisdiction over the dispute and also the in personam jurisdiction over the defendants in that no service of process was made on either defendant. At the hearing on the motions to dismiss, however, the defendants waived any defects in service of process leaving only the challenge as to subject matter jurisdiction for consideration.
It is the position of the Bank that it will honor the letters of credit upon presentment, unless enjoined by order of this court, and that, by virtue of the security agreement entered into by the Bank and the debtor on March 28, 1978, the security interest created thereby would extend to and will cover the total obligation owed by the debtor to the Bank including the monies paid by the Bank on the letters of credit to Alcoa and Central.
It is the contention of the defendants that inasmuch as this Court's jurisdiction is limited to the "properties" of the debtor under Sec. 311 of the Bankruptcy Act, that this Court is without jurisdiction of this controversy because the letters of credit are not "properties" of the debtor. In support of this contention, the defendants cite In re Marine Distribution, Inc. v. Smith, 522 F.2d 791 (9th Cir. 1975) where the Court of Appeals for the Ninth Circuit held that the Court had no summary jurisdiction over letters of credit or the monies of the bank represented by them, and that the court lacked the power to enjoin payment of such letters of credit.
The holding of the Court of Appeals when viewed in the narrow context of that case is correct. It should be pointed out, however, that the court also stated that the bankruptcy court's jurisdiction depends on whether or not the letters outstanding in the hands of third parties are or are not secured by properties of the bankrupt. This is precisely the position taken by the debtor and is clear that these letters of credit are in fact secured by properties of the debtor and that if they are honored by the Bank, the Bank will assert that the properties of the debtor included in the collateral previously pledged secure all indebtedness of the debtor owed to the Bank including the sums paid out by the Bank in honoring the letters of credit. In addition, to permit these two unsecured creditors to receive a payment, possibly in full, on the pre-petition indebtedness owed to them by the debtor would amount to an impermissible preferential treatment of these two unsecured creditors which is contrary to the scheme of Chapter XI and would certainly be counterproductive to the debtor's efforts to obtain rehabilitation.
*286 Whether or not Sec. 311 of the Bankruptcy Act is the basis of jurisdiction is really immaterial because it is clear that the automatic stay provision of Bankruptcy Rule 11-44 is not exclusive and that the debtor may apply for injunctive relief under the powers granted the court by Sec. 2a(15) of the Bankruptcy Act.
These conclusions should not be construed to be a determination of the debtor's ultimate right to stop payment of these letters of credit, but pending such determination, it is imperative to preserve the status quo, and in light of the fact that the jurisdictional challenge is rejected, the temporary restraining order should be deemed to be converted into a preliminary injunction to protect the debtor until disposition of the controversy on its merits.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss filed by Aluminum Company of America and the Motion to Dismiss filed by Central Can Company, be and the same, are hereby denied. It is further
ORDERED, ADJUDGED AND DECREED that the Southeast Bank of Tampa, be and the same, is hereby enjoined, pending further order of this court, from honoring those letters of credit being Nos. 1034, 1037 and 1047 payable to Aluminum Company of America and Central Can Company respectively. It is further
ORDERED, ADJUDGED AND DECREED that the defendants shall file and serve responsive pleadings to the complaint within 20 days from the date of entry of this order. It is further
ORDERED, ADJUDGED AND DECREED that the pre-trial conference in this adversary proceeding is set for December 13, 1979 at 9:30 a.m. in Room 436 of the Post Office Building in Downtown Tampa, Florida. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3400133/ | 1. Where a petition for the writ of habeas corpus affirmatively shows on its face that the restraint is legal, the court has the power on general demurrer to dismiss the writ and remand the applicant. In such a case the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of the allegations in the petition.
2. There is nothing contained in the Indeterminate Sentence Act of 1939 which could be construed as giving the jury the right, where by consent two or more cases are tried together, to say whether the sentences shall run concurrently or consecutively. In those cases where the jury assess the punishment, it is mandatory that it fix a minimum and a maximum period within the limits fixed by the statute, this being the extent of the jury's duty.
3. Where a party is accused of several separate and distinct violations, and by consent the cases are tried together by one jury which renders separate verdicts of guilty, it is proper to impose a sentence in each case where the jury returns a verdict of guilty; the only effect of the agreement being that the cases may be jointly tried, which can not be done except by consent.
(a) Habeas corpus is never a substitute for a writ of error, or other remedial procedure to correct errors in the trial of a criminal case.
No. 15645. NOVEMBER 13, 1946.
On August 9, 1946, Nacomas Morris filed a petition against A. C. Aderhold, Warden of Georgia State Prison, for the writ of habeas corpus. He alleged: That a grand jury in the Superior Court of Crisp County, at the July term, 1942, had returned three true bills against him, each charging a felony. Indictment No. 6397 was in two counts. The first charged him with having forged the name of W. E. Gordon to a check for $10, drawn on Cordele Banking Company on July 13, 1942. The second count charged *Page 534
that he falsely and fraudulently passed to W. G. Gleaton the forged check of $10 on the date it was forged. Indictment No. 6399 charged that he forged the name of W. E. Gordon to a check for the sum of $8, on July 13, 1942, which was drawn on Cordele Banking Company. Indictment No. 6400 charged him with having forged the name of W. E. Gordon on a check for $15, on July 17, 1942, which was drawn on First State Bank in Cordele. He filed pleas of not guilty, a separate plea being entered on each indictment. By consent the three cases were tried together before one jury, which returned a verdict of guilty on each of the three indictments, and by each separate verdict fixed his punishment at from three to four years in the penitentiary. The court on October 3, 1942, imposed three separate sentences on him, fixing his punishment in each as found by the jury, but provided therein that they should be served consecutively, that is one to follow the other. He was now being illegally detained under the second sentence thus imposed, which provided that it should begin at the expiration of the first sentence. The court was without authority to provide in the sentences that they should be served consecutively, because: (1) the sentences are known in law as indeterminate sentences, whereby there is a fixed minimum sentence and an indefinite or indeterminate period within a limit of a maximum sentence, to be dealt with by rules of (then the Prison Commission and now) the State Board of Pardons and Paroles, which is a different authority from the court imposing the sentences; (2) the jury by its verdicts made no provision as to whether the sentences should be served concurrently or consecutively, and it was therefore the duty of the court to impose sentences only in accord with the verdicts and sentences, to be concurrently served, which were the only legal ones that could have been imposed; and (3) the three offenses charged indicate a single criminal enterprise of about the same time, and were treated as such by the court in permitting them to be consolidated for trial by one jury, and while the jury returned three like verdicts, one on each indictment, they should be construed as one verdict fixing punishment at from three to four years in the penitentiary. The petitioner had now served more than four years, and was legally entitled to be released.
The respondent demurred generally to the petition as failing to state a cause of action for the relief sought, and as showing on its face that the detention was legal. *Page 535
The court sustained the demurrer and remanded the accused to the custody of the warden. To this judgment exception was taken.
1. Where an application for the writ of habeas corpus affirmatively shows on its face, as here, that the restraint is legal, the judge before whom the writ is made returnable has the power, on general demurrer, to dismiss the writ and remand the applicant. In such instance the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of the allegations in the petition. Smith v. Milton, 149 Ga. 28
(98 S.E. 607); Coleman v. Grimes, 154 Ga. 852
(115 S.E. 641); Kinman v. Clark, 185 Ga. 328 (195 S.E. 166). The allegations in the application for the writ of habeas corpus affirmatively show that the restraint was legal, and it was therefore not error to sustain the demurrer and remand the applicant.
2. In McLarry v. State, 72 Ga. App. 864
(35 S.E.2d 378), it was held: "Under the law as it now exists, where two or more indictments against an accused are, by consent of the State and of the accused, submitted to the same jury for trial, and where the jury return verdicts of guilty on two or more of such indictments, it is their duty to fix a minimum and a maximum term of years; they have no authority to determine that such verdicts may run concurrently rather than consecutively, and the judge does not err in failing to instruct the jury that they may so decide." In that case McLarry made an application to this court for the writ of certiorari, and after we had carefully examined the case, we denied the writ because we were of the opinion that the decision stated a correct principle of law, and we are still of that opinion. In the instant case the accused was indicted, for three separate and distinct violations of a penal statute, by separate indictments. By consent the three cases were tried together by one jury, which found that he was guilty of all three offenses. Having convicted him, the jury did all that it was authorized to do under § 27-2526 of the Code, namely, fix a minimum and a maximum period of time for him to serve in each case; and then the trial judge imposed a sentence in each case in accordance with the finding of the jury and *Page 536
specified in the sentences that they were to run consecutively, as he was required to do under § 27-2510 of the Code. There is nothing contained in our Indeterminate Sentence Act of 1939 (Ga. L. 1939, p. 285) which gives the jury the right to say whether sentences shall run concurrently or consecutively. For the reason assigned it was not error for the court to remand the applicant.
3. It is urged that the three offenses charged against the accused represent a single criminal enterprise of about the same date, and were treated as such by the court in permitting them to be tried together before one jury; and that, while the jury returned three like verdicts, one on each indictment, these should have been construed as one verdict fixing punishment at from three to four years in the penitentiary. There is clearly no merit in this contention. Each indictment charged the accused with a separate and distinct offense, and his consent to try all three cases at the same time before one jury did not change that fact. The only effect of the agreement was to permit the cases to be tried jointly, which could only be done by his consent. Habeas corpus, however, is never a substitute for a writ of error, or other remedial procedure to correct errors in the trial of a criminal case. This writ is the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its jurisdiction in passing the sentence by virtue of which the party is imprisoned, so that such sentence is not merely erroneous, but is absolutely void. McFarland v.Donaldson, 115 Ga. 567 (41 S.E. 1000); Smith v. Milton, supra; Wells v. Pridgen, 154 Ga. 397 (114 S.E. 355);Shiflett v. Dodson, 180 Ga. 23 (177 S.E. 681); Kinman v.Clark, supra. Since the three sentences were legal ones, providing for consecutive service, and the accused had only served one of them and started on the second, the court did not err in refusing to release him for the reason herein urged.
It therefore follows from what we have ruled in the preceding divisions that the court did not err in sustaining the general demurrer and remanding the applicant to the custody of the warden.
Judgment affirmed. All the Justices concur. *Page 537 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400134/ | In a habeas corpus proceeding, where the contest for the custody of minor children was between grandparents, and the paternal grandmother based her claim on an alleged legal right, the evidence showing unusual *Page 835
and exceptional facts and circumstances, it was not error for the trial judge in the exercise of his discretion to award the custody of the children to their maternal grandparents.
No. 15693. FEBRUARY 6, 1947.
J. D. Smith, the maternal grandfather of two minor children, Patricia Ann and Linda Carroll Lucas, aged three years and ten months, respectively, filed his petition for habeas corpus against Mrs. Will Lucas, the paternal grandmother of the children. The petition alleged that: The mother of the children was killed on July 29, 1946, and Needham Lucas, the father of the children, was confined in the common jail of Twiggs County, charged with the murder of his wife. Prior to the date of the actual killing, Lucas wilfully mistreated his wife and children and he is not a fit and proper person to have custody of the children. Mrs. Will Lucas is illegally detaining from the petitioner the persons of the children named. The petitioner is financially able to provide necessities, to provide for their care and welfare, and he and his wife will train and teach them in a Christian manner of living.
The respondent's answer admitted the relationship of the children as alleged, and admitted that the father of the children was confined in the common jail of Twiggs County. She alleged that: Since the birth of the children they have remained in her home; she is financially and physically able to have their custody and control; and she has them domiciled in a Christian home under good environment. She is holding possession of them under a contract with the father relinquishing parental control to her.
The evidence for the petitioner showed that during the married life of Needham Lucas and the petitioner's daughter, Lucas was cruel to her, and on several occasions she separated from him and returned to the home of the petitioner, and on one occasion instituted divorce and alimony proceedings against her husband. The last separation occurred about five months before the homicide of the petitioner's daughter. Under all of the testimony, the trial judge was amply authorized to find that the petitioner and his wife were fit and proper persons to have custody of the minor children named.
The evidence for the respondent, Mrs. Will Lucas, showed that *Page 836
she was residing in the home of her son-in-law, and had not resided on her farm, where the homicide occurred, since its date. The home maintained by her son-in-law was comfortable, the children were well cared for, and the son-in-law was perfectly willing for Mrs. Lucas to have and care for the children in his home. The contract introduced, whereby the father of the children conveyed his parental authority to his mother, Mrs. Lucas, was made during the time he was incarcerated in the common jail of Twiggs County charged with the murder of his wife, Anne Corene Lucas.
At the conclusion of the evidence the trial judge entered an order awarding the custody of the children to the maternal grandparents, Mr. and Mrs. J. D. Smith, in which order it was stated that, since the father was charged with the homicide of his wife, he could not control the custody of his children, and further stated as follows: "In consideration of the fact that Mrs. Lucas has lost her good husband, she is now living away from her homestead and living under the shoulder and protection of her good son-in-law, it would be going a long way to say that she was physically, morally, and otherwise as capable of devoting as much attention to these children as the maternal grandparents. Except for her devoted daughters, she is alone. Mr. and Mrs. Smith are happily living together. Their character and moral and financial capacity is conceded. There is a small difference in the situation that tends to make the court think, at least until there is a change in the circumstances of the life of the parties, that the custody of these children should be with the maternal grandparents." The court further granted to Mrs. Lucas the right to visit the children at any time consistent with their welfare.
The exception here, by the paternal grandmother, Mrs. Lucas, is to the judgment awarding the custody of the children to their maternal grandparents.
Counsel for the plaintiff in error insist that under the Code, § 74-108, parental power of the father over his children can be lost only in one of the methods provided by such section; that the father in this instance had not lost his parental control and authority, and under the assignment of such parental authority to Mrs. Lucas, she was entitled *Page 837
to the possession, custody, and control of the minor children. This section of the Code, if construed alone, would appear to authorize the contentions of counsel, but our system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts. See Huntsinger v. State,200 Ga. 127 (36 S.E.2d 92), and authorities cited. The Code, § 50-121, provides that, in writs of habeas corpus, "the court, on hearing all the facts, may exercise his discretion as to whom the custody of such . . child shall be given, and shall have power to give such custody of a child to a third person."
This court has many times construed the discretion vested in the trial judge in habeas corpus proceedings for the custody of children. "The judge in a habeas corpus proceeding involving the custody of children must look to the welfare of the children, and has a very wide discretion, within legal limits, in reference to such matters; and where the decision complained of is within such discretion, gross abuse must appear in order to work a reversal of his judgment." Abernathy v. Abernathy, 165 Ga. 208
(140 S.E. 382).
The discretion vested in the trial judge "ought to be exercised in favor of the party having the legal right, unless the circumstances of the case and the precedents established would justify the court, acting for the welfare of the child, in refusing it." Miller v. Wallace, 76 Ga. 479
(2 Am. St. R. 48).
The rules of law applicable here appear to have been summed up in Williams v. Crosby, 118 Ga. 298 (45 S.E. 282), where this court said: "In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail. But in every case, regardless of the parties, the welfare of the child is the controlling and important fact. This is not intended to nullify the laws of nature; for in most instances it will be found that the legal right of the parent and the interest of the child are the same. But if through misconduct or other circumstances it appears that the case is exceptional, and that the welfare of the child requires that it should be separated even from its parent, the parents patriae must *Page 838
protect the helpless and the innocent. They are the wards of the court, the hope of the State, and the seed corn of the future."
In the present case, the contest is not between a person having the legal right on one side and persons without such legal right on the other side, unless it should be said that the contract made by the father at the time he was incarcerated in jail transferred his parental authority to the plaintiff in error, Mrs. Will Lucas. Ordinarily a father may transfer and assign his parental authority, where the wife is dead, and such assignment would be valid. There is evidence, however, in this case, of "misconduct or other circumstances" as to the father, which at least places him under suspicion as the murderer of his wife, the mother of the children. Such evidence makes this case exceptional on its facts, and authorizes a judgment based on the court's determination of what is best for the welfare and happiness of the children, independently of any expression or wishes of the father.
There does not appear that abuse of discretion by the trial court necessary to reverse the present judgment.
Judgment affirmed. All the Justices concur. Atkinson, J.,concurs in the judgment but not in all that is said in theopinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3400143/ | 1. The first count of the petition being a suit for the writ of mandamus to compel the governing officials of a municipality to levy a tax to pay an alleged indebtedness upon a series of promissory notes, all appearing to have been given in a single transaction, some of them maturing during the year in which they were executed and others during the following year, and there being no allegation of fact to show their consideration or validity, the notes were prima facie invalid under the constitutional provision limiting the authority of counties and municipalities as to incurring indebtedness. The court did not err in sustaining the general demurrer and striking the first count.
2. The second count was based upon the theory that the city was liable to the plaintiff for the value of goods furnished by it to the city and used by the latter for a beneficial purpose. The notes referred to above were introduced in evidence for purpose of proving such value. Held, that the notes were no evidence of value of benefit received by the city; and no other evidence of such value having been introduced, the court did not err in granting a nonsuit.
No. 13639. MAY 15, 1941.
Wallace Tiernan Company Incorporated filed a suit against the City of Abbeville and its governing officers, seeking a mandamus absolute. The petition was in two counts. Each count claimed an indebtedness in favor of the plaintiff and against the City of Abbeville, and sought mandamus to compel the defendant officers to levy a tax for the purpose of paying such indebtedness.
In the first count, as amended, the petition contained substantially the following allegations: The City of Abbeville, by and through its duly authorized officers, executed twelve promissory notes payable to the order of petitioner, dated August 25, 1936, payable on the 25th of each succeeding month until all were paid, the last note being due August 25, 1937; eleven of the notes being for the principal sum of $58.33, and one for $58.30; all bearing interest from August 25, 1936, at 6% per annum. Only one note has been paid. All of them constitute valid and binding obligations on the part of the City of Abbeville. While the notes were signed only by the mayor, he was authorized so to do by the mayor and council "at that time." The notes were authorized at a meeting of the mayor and council of July 28, 1936, and were ratified, audited, and approved at a meeting on September 4, 1936. Demand *Page 150
for payment has been refused by the governing authorities. They have also refused a demand that they levy a tax on the taxable property of the city, for the purpose of paying off and discharging such alleged indebtedness. The city has no funds with which to pay the same, nor will the defendants levy a tax for that purpose unless they are compelled by mandamus to do so.
The second count was based on the theory that the municipality had received and used certain goods furnished by the plaintiff, and should pay the reasonable value thereof; the allegations of this count being substantially as follows: The City of Abbeville is indebted to petitioner in the sum of $679.77, including interest at 6 per cent. per annum from date of delivery, upon an account for goods had and received, a copy of the invoice being attached as an exhibit to the petition. The indebtedness was created by the purchase of one chlorinator complete, with other goods, wares, and merchandise as shown by such invoice, to be used in improving the water system of the city, and which was used immediately and continuously after purchase and which is now in the possession and use of the City of Abbeville. The said articles of merchandise and appliance were needed by the city, and were necessary for the health and safety of its citizens in the successful operation of its water system. The plaintiff's claim constitutes a valid and subsisting obligation on the part of the city. The said articles were of the reasonable value charged for the same. The said claim was audited and found correct by the giving of the notes mentioned in the first count of this suit. The other allegations, as to refusal of demand for payment, necessity for levying tax, and refusal of defendants of demand for such levy, were substantially the same as in the first count.
The court sustained a general demurrer to the first count, but overruled a like demurrer to the second count. The defendants filed an answer in which they denied every allegation of each count of the petition which would in any way tend to show liability, except that in answering the allegations of the first count the defendants admitted that one of the notes had been paid as alleged. The first count having been stricken on demurrer, the plaintiff proceeded to trial upon the second count. After the plaintiff had introduced evidence the court awarded a nonsuit. The plaintiff excepted, assigning error on the sustaining of the demurrer to the first count and on the nonsuit. *Page 151
1. The court did not err in sustaining the general demurrer to the first count of the petition. In this count the plaintiff sought relief solely on the basis of the promissory notes, without disclosing their consideration, and without alleging the circumstances in which they were given, except that their execution by the mayor was authorized by the governing authorities. It appeared from the allegations that the notes all related to a single transaction, and that they were payable monthly, some in the year 1936 and others in the year 1937. Since the allegations thus showed that all the notes were given in a transaction which occurred in the year 1936 and that some of them were payable in the year 1937, they were prima facie invalid under the constitutional provision limiting the authority of municipalities such as the City of Abbeville as to incurring indebtedness. Code, § 2-5501. Whether if the notes had all been made to mature during the year in which they were executed, the petition would have been subject to demurrer, or, on the other hand, would have been sufficient to cast the burden on the defendant of proving their invalidity as a matter of defense, still, since their invalidity prima facie appeared from the petition itself, the defense could be raised by demurrer. Townof Wadley v. Lancaster, 124 Ga. 354 (52 S.E. 335); Town ofWhigham v. Gulf Refining Co., 20 Ga. App. 427 (6) (93 S.E. 238); Galion Iron Works Co. v. Marion County, 23 Ga. App. 57
(2) (97 S.E. 448); Citizens Bank v. Ludowici, 24 Ga. App. 201
(100 S.E. 229). The case differs on its facts fromMonk v. Moultrie, 145 Ga. 843 (90 S.E. 71), where it affirmatively appeared that lawful provision had been made for payment of a note during the year in which it was executed. The same is also true of the following cases: Mayor c. ofHogansville v. Planters Bank, 147 Ga. 346 (94 S.E. 310);Gaines v. Dyer, 128 Ga. 585 (7) (58 S.E. 175); Settle v.Howell, 174 Ga. 792 (164 S.E. 189). Although in CitizensBank of Moultrie v. Rockdate County, 152 Ga. 711
(111 S.E. 434), it appeared that the notes were payable in different years, they contained certain recitals indicating that they were valid. In Mayor c. of Jeffersonville v. Taylor Iron Works c. Co.,154 Ga. 434 (114 S.E. 579), the petition for the writ of mandamus was based upon a Judgment which *Page 152
had previously been obtained against the city. The judgment of course was sufficient to show, prima facie at least, that the claim was valid. The allegation that the notes constituted a valid and subsisting obligation of the city, being a mere conclusion of the pleader, inconsistent with the inferences to be drawn from the specific allegations of fact, did not save the first count from the general demurrer.
2. Did the court err in granting a nonsuit relating to the second count? This count was based upon the theory that since the city accepted the chlorinator and its appurtenances, and used the same for a beneficial purpose, it should pay to the plaintiff the reasonable value of the benefit received. There was, however, no evidence of such value, unless the notes themselves might be considered as evidence on the question, those that remained unpaid having been introduced. The evidence showed "that the original agreement was to pay for the chlorinator in the future by the month, and that the several notes were executed in pursuance of this agreement." It thus appears that the property was purchased on credit, to be paid for in part during the succeeding year, and that the whole transaction was illegal. In the circumstances the plaintiff could not recover except on proof of the actual value of the benefit received by the municipality; and whether the notes, although void, might still have been taken as evidence of market value (Butts County v. Jackson BankingCo., 129 Ga. 801, 60 S.E. 149, 15 L.R.A. (N.S.) 567, 121 Am. St. R. 244), they constituted no evidence of a benefitthereafter actually received by the city, nor did they show that the "claim was audited and found correct" by the municipal authorities. See Barwick v. Roberts, 188 Ga. 655 (3) (4 S.E.2d 664).
The conclusion here reached does not conflict with the rulings in any of the following cases: In Adams v. Weston, 181 Ga. 503
(183 S.E. 69), the suit related to a balance of salary due a town clerk. The claim had been approved for payment by governing authorities, as shown by the minutes. Such approval did not disclose an illegal transaction. Howell v. Bankston,181 Ga. 59 (181 S.E. 761), was a suit by county registrars, whose compensation was fixed by law. It was held that no judgment or other form of liquidation was necessary as condition precedent to a suit for mandamus. The same observation will apply to other cases cited by counsel, relating *Page 153
to official salaries prescribed by law. In City of Abbeville v.Eureka Fire Hose Manufacturing Co., 177 Ga. 204
(170 S.E. 23), the action was based on warrants issued by the city authorities on the city treasury, and not on a series of notes. The warrants were issued several years after the sale, and could be treated as evidence of value. They were not part and parcel of an illegal transaction, as the notes here appeared to be. For similar reason, Board of Education of Candler County v.Southern Michigan National Bank, 184 Ga. 641 (192 S.E. 382), is distinguished by its facts from the present case.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/623034/ | 672 F.3d 27 (2012)
UNITED STATES of America, Appellee,
v.
James F. FARRELL, Defendant, Appellant.
No. 10-1140.
United States Court of Appeals, First Circuit.
Heard June 8, 2011.
Decided February 17, 2012.
*28 Tina Schneider, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, and Stephanie S. Browne, Assistant United States Attorney, were on brief, for appellee.
Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.
HOWARD, Circuit Judge.
Following a jury trial, James Farrell was convicted of being a felon in possession of a firearm. Finding that Farrell had three prior violent felony convictions, the district court sentenced Farrell to fifteen years in prison, the mandatory minimum sentence under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e). On appeal, Farrell claims that his prior convictions did not fall within the ambit of the ACCA and seeks remand for resentencing. He also argues that his attorney was constitutionally deficient in failing to properly object to his sentence. After careful review, we remand for resentencing.
I.
In June 2005, a federal grand jury in Rhode Island indicted Farrell on one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g).[1] Prior to trial, the government, pursuant to 21 U.S.C. § 851, filed an information alleging that Farrell was subject to the ACCA's mandatory minimum sentence based on his three prior convictions, which were for two Pennsylvania burglaries and a Massachusetts breaking-and-entering. The government also submitted state court records relating to those convictions. Farrell's first trial ended in a hung jury in September 2009. He was convicted after a second trial roughly a month later.
A Presentence Investigation Report (PSR) addressed the predicate convictions, observed that they satisfied the ACCA, and concluded that Farrell was subject to a United States Sentencing Guidelines *29 (Guidelines) range of 188-235 months imprisonment. Farrell objected to neither the section 851 information nor the contents of the PSR. The sentencing hearing was similarly bereft of acrimony. The defense proffered no objection to the Guidelines calculation; the government, taking into account Farrell's age (67), recommended a sentence at the bottom end of the range and offered little rebuke to defense counsel's request for a variance from the Guidelines range down to the statutory mandatory minimum of 180 months. The district court acceded to the defense request and sentenced Farrell accordingly.
II.
Farrell claims on appeal that none of the prior convictions lodged against him were "violent felonies" within the meaning of the ACCA. Relatedly, he argues that his attorney's failure to object to the PSR or at sentencing amounted to ineffective assistance of counsel in violation of his Sixth Amendment rights.
A. Standard of Review
Ordinarily, we engage in de novo review of a district court's legal conclusion that a prior conviction is a violent felony under the ACCA. United States v. Luna, 649 F.3d 91, 106 (1st Cir.2011), cert. denied, ___ U.S. ___, 132 S.Ct. 861, 181 L.Ed.2d 560 (2011). Because, however, Farrell did not object below to the inclusion of the alleged predicate offenses at issue, we review for plain error. United States v. Weekes, 611 F.3d 68, 72 (1st Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 3021, 180 L.Ed.2d 850 (2011). In order to meet this rigorous standard, Farrell must identify: 1) an error 2) that was clear and obvious 3) that affected his substantial rights, and 4) that seriously impaired the fairness, integrity, or public reputation of the judicial proceeding. United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir.2011).
B. The ACCA
The ACCA mandates a fifteen-year minimum prison sentence for anyone convicted of being a felon in possession of a firearm who also has three previous convictions for a violent felony. 18 U.S.C. § 924(e). A prior offense qualifies as a "violent felony" under the ACCA if it is both punishable by a prison term longer than one year and either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B). We have referred to clause (i) as the "force clause" and the section of clause (ii) after the four enumerated offenses as the "residual clause." See United States v. Holloway, 630 F.3d 252, 256 (1st Cir.2011).
We take a "categorical approach" in determining whether a prior conviction qualifies as a "violent felony" under the ACCA. Id. (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). "[W]e may consider only the offense's legal definition, forgoing any inquiry into how the defendant may have committed the offense." Id. (citing Taylor, 495 U.S. at 600, 110 S.Ct. 2143; Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)).
The first step in this process is identifying the offense of conviction. Id. (citing United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009) ("Giggey II")). As this case demonstrates, this task can be a complicated one when a prior conviction is based on a statute that covers multiple offenses. In that scenario, the sentencing *30 court is permitted to consider a limited group of records (hereinafter "Shepard documents") to assist in determining which particular offense was the actual foundation for the conviction. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Giggey II, 589 F.3d at 41. The Supreme Court has observed that "approved" records include charging documents, plea agreements and colloquies, bench trial fact-finding and legal conclusions, jury instructions and verdict forms, or some comparable judicial record. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Holloway, 630 F.3d at 257; see also Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010); United States v. Pratt, 568 F.3d 11, 21 (1st Cir. 2009). A court may not, however, rely on police reports to inform its decision. Shepard, 544 U.S. at 16, 125 S.Ct. 1254.
Finally, "if at least one of the possible offenses of conviction would not qualify as a violent felony, the conviction may not be relied on for ACCA purposes. In such a case, it is impossible to tell whether the defendant was convicted of a violent or non-violent felony." Holloway, 630 F.3d at 257 (emphasis in original).
C. Predicate Offenses
1. 1977 Pennsylvania Burglary
In October 1977, Farrell was convicted of burglary, in violation of 18 Pa. Cons. Stat. Ann. § 3502(a), which provided,[2] in relevant part, as follows:
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
The statute is further illuminated by the definition of "occupied structure" as "[a]ny structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." 18 Pa. Cons.Stat. Ann. § 3501.
This statute does not have as an element the threat or use of physical force, so it does not come within clause (i) of the ACCA. With respect to clause (ii), the Supreme Court has held that "burglary," within the meaning of clause (ii), refers only to "generic burglary," which the Court has defined as "the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. 2143. A state statute that proscribes such conduct in a wider array of places "such as automobiles and vending machines, other than buildings" is broader than "generic burglary" and is thus not within the purview of "burglary in" clause (ii). Id. The government, recognizing the Third Circuit's holding in United States v. Bennett, 100 F.3d 1105, 1109 (3rd Cir. 1996), concedes that the "occupied structure" definition makes the Pennsylvania statute non-generic on its face. We turn then to the Shepard documents to determine whether the Farrell's conviction necessarily included the elements of generic burglary. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (holding that offense constitutes ACCA "burglary" if either the statutory definition substantially corresponds to generic burglary or the charging papers and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant).
The government has submitted on appeal documents underlying the alleged predicate convictions. These records *31 were, for the most part, not before the district court. We generally do not consider evidence that was not part of the district court record. See, e.g., United States v. Rosario-Peralta, 175 F.3d 48, 56 (1st Cir.1999). Farrell, however, does not contest our consideration of the government's supplemental submission, conceding at oral argument that had he objected below, the evidence would likely have been submitted to the district court.[3]See also United States v. Kane, 434 Fed.Appx. 175, 176-77 (4th Cir.2011) (taking judicial notice in ACCA appeal of state court indictment not submitted to district court at sentencing); United States v. Mercado, 412 F.3d 243, 247-48 (1st Cir.2005) (taking judicial notice of state court docket entries).
The criminal complaint[4] filed in connection with the 1977 case provided that Farrell:
did unlawfully enter the St. Joseph's convent ... and did at this time enter the second floor portion of this residence which is the area which contains the convent safe, money and valuables. The... defendant ... was confronted by Sister Rita Marie Zahorchimny. The defendant did ... physically grab [her] by the arms and throw her across the room [and] did then flee the premises.
The subsequent information echoed the complaint, charging that Farrell "did feloniously enter a building or occupied structure, or separately secure or occupied portion thereof, property of, St. Joseph Convent ... with intent to commit a crime therein." Farrell pled guilty to the charge. The record of the plea noted that Farrell admitted to committing the crime charged.
Against this backdrop, we can find no error, and certainly no error that was plain, in the district court's implicit conclusion that Farrell's 1977 burglary conviction fits squarely within the contours of "generic burglary." See Taylor, 495 U.S. at 599, 110 S.Ct. 2143.
2. 1980 Pennsylvania Burglary
In September 1980, Farrell was charged with violating the same Pennsylvania burglary statute. He was convicted in 1981. The complaint charged him with entering a:
building, occupied structure or separately secured or occupied portion thereof... being a house, next to a church, property of St. Patrick's Catholic church and the residence of Father Snyder with the intent to commit a crime therein in that he did break open [sic] outside door of house leading into the bedroom of Father Snyder and he did enter the house and room, and when confronted by Father Snyder he did run from said house.
*32 The jury verdict slip noted that Farrell was found guilty of both burglary and criminal trespass. Considering these facts, which bear no significant difference from the 1977 burglary, we find no plain error in the finding below that the 1980 Pennsylvania burglary was properly considered an ACCA predicate.
3. 1980 Massachusetts Breaking-and-Entering
Farrell's 1980 Massachusetts conviction presents a stickier wicket. The government relies on the same evidence that it submitted in the district courta single entry which it claims is from a Newburyport (Mass.) District Court docket sheet. The entry itself, however, while attested-to as a "true copy," is devoid of information as to the document's identity. An entry indicates that a defendant named "James Farrel"[5] was charged in March 1980 in case number 2482 of breaking-and-entering in the daytime to commit a felony. A judgment of guilty was noted on June 2, 1980, as was a one-year suspended sentence and probation.[6]
Despite the paucity of information, the parties agree that, among several extant Massachusetts statutes, there were only two possible statutes of conviction.[7] During the relevant time period, Mass. Gen. Laws ch. 266, § 17 provided that:
Whoever ... breaks and enters in the day time, a building, ship, vessel, or vehicle, with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than ten years.
Mass. Gen. Laws ch. 266, § 18 provided that:
Whoever ... breaks and enters in the day time a building, ship or motor vehicle or vessel, with intent to commit a felony, no person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than five hundred dollars and imprisonment in jail for not more than two years.
The parties further agree that the inclusion of "ship[s] or vessel[s]" within the statutory proscriptions takes the statute of conviction outside the confines of "generic" burglary, which requires a building or other structure as a target. Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Moreover, in light of the scant available records, the possibility that the burglary was of a vessel or ship cannot be excluded.[8] Thus, the government's only available argument is that Farrell's Massachusetts conviction fits within the ACCA's residual clause because it "otherwise involves conduct that presents a serious potential risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B)(ii).
In making this assessment, we again employ a categorical approach, "comparing the elements of the state crime against the residual otherwise clause ... *33 supplementing that comparison only with the information" from the permissible documents discussed above. United States v. Holloway, 630 F.3d 252, 260 (1st Cir.2011) (citing United States v. Giggey, 551 F.3d 27, 29 (1st Cir.2008) ("Giggey I")). To fit within the ACCA's residual clause, the predicate "offense at issue must: (1) present a risk of physical injury similar to the risk presented by the clause's enumerated offenses and (2) be similar `in kind' to those offenses." Id. (quoting Giggey I, 551 F.3d at 41-42). An offense is "similar in kind" to an enumerated offense if it "typically involve[s] purposeful, violent and aggressive conduct." Id. (citations and internal quotation marks omitted); see also United States v. Peterson, 233 F.3d 101, 110 (1st Cir.2000) (refusing to include within ACCA residual clause Rhode Island breaking and entering statute that lacked requirement of intent to commit a crime because "in order to fall under the `otherwise' clause, a breaking and entering offense must contain elements truly comparable to those of a burglarycomparable enough that the offense poses an equivalent risk of physical injury.").
The government first suggests that affirmance is foreordained by James v. United States, 550 U.S. 192, 212-213, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). There, the Court held that the ACCA's residual clause encompassed attempted burglary of a dwelling under a Florida statute which included the dwelling's curtilage within its proscription.[9] The government also points to our decision in United States v. Sanchez-Ramirez, 570 F.3d 75 (1st Cir.2009), where, applying James, we held that the defendant's prior Florida conviction for burglary of an unoccupied structurea churchsatisfied the elements of the ACCA residual clause. Id. at 83. As we noted in Sanchez-Ramirez, the Court in James based its holding on the observation that an attempt to enter a dwelling's curtilagedefined as "an enclosed area surrounding a structure," 550 U.S. at 213, 127 S.Ct. 1586"requires both physical proximity to the structure and an overt act directed toward breaching the enclosure [and thus] presents a serious potential risk that violence will ensue and someone will be injured." Sanchez-Ramirez, 570 F.3d at 83 (citation and internal quotation marks omitted). The Court in James further noted that the injury risk stemmed from the possibility that an innocent person might appear while the crime was in progress or from a confrontation with police or bystanders who might investigate. Id. (citing James, 550 U.S. at 203, 127 S.Ct. 1586). Building on these factors, we ultimately concluded that the risks to persons identified by the Court in James in relation to a dwelling-curtilage burglary, were equally present in Sanchez-Ramirez's structure-curtilage burglary. Id.
Here, although the Massachusetts statutes include the requisite specific intent to commit a crime, see Peterson, 233 F.3d at 108, we must operate under the premise that the elements of the asserted predicate do not necessarily include either a dwelling or other structure, unlike the predicate crimes in James and Sanchez-Ramirez. Additionally, given the dearth of available Shepard documents, we cannot assume that Farrell was convicted under Mass. Gen. Laws ch. 266, § 17, which requires that a person "be put in fear," and not section 18, which lacks the "put in fear" element. See Holloway, 630 F.3d at 259 (holding that government bears burden of showing that defendant was convicted of violent variety of Massachusetts assault and battery); cf. Giggey II, 589 F.3d at 42 *34 (noting that defendant's state court guilty plea left no uncertainty as to which of several possible burglary offenses was at issue in assessing whether the predicate offense was a "crime of violence" under Sentencing Guidelines career offender provision).[10] In this light, James and Sanchez-Ramirez are of limited utility to the government's position. The government asks us to find that the completed breaking-and-entering in this case involved a level of risk comparable to generic burglary, as James found when comparing attempted burglary to burglary simpliciter. The gist of the argument is that, as was observed in James and Sanchez-Ramirez, in each case there is a realistic possibility that a perpetrator will be interrupted and violence will ensue. But such an argument could be applied to almost any crime in which "getting caught in the act" escalates the potential for violence. We require a more fine-toothed approach. See Holloway, 630 F.3d at 260-62 (analyzing ACCA implications of Massachusetts reckless battery statute). Applying the now-established approach, we conclude that Farrell's conviction does not come within ACCA's residual clause.
We have not previously directly addressed the precise issue that we face here: whether breaking and entering a ship or vessel in the daytime is within the ACCA's residual clause. But a case decided while this appeal has been pending portends with unmistakable clarity our answer to the question. In United States v. Brown, 631 F.3d 573 (1st Cir.2011), we held that burglary of a non-dwelling building under Massachusetts' night-time breaking and entering statute did not qualify as a "crime of violence" under the Sentencing Guidelines' career offender provision.[11] We observed that, while burglary of a non-dwelling building is "comparable in kind to one of the listed offenses (burglary of a dwelling) ... we do not think that the risks of burglary of a `building'at least given Massachusetts' broad definitionare comparable to burglary of a `dwelling,' ..." Id. at 579. Specifically, we noted that while dwellings are regularly occupied and thus create the risk of night-time surprise encounters that could lead to violence, "the reality is that many buildings are wholly unoccupied at night.... [T]he Massachusetts statute covers a wide range of structures like storage sheds or detached garages where one might rarely encounter someone else at night." Id.
It must be acknowledged that Brown is not on all fours with this case. There are differences between the offenses enumerated in the ACCA (at issue here) and those in the career offender guideline that we analyzed in Brown. See supra, n. 10. Moreover, in the present case we review only for plain erroras opposed to Brown's de novo standard. And the substance of the interpretive issues is also not identical. Specifically, whereas in Brown the comparison was between breaking and entering into a non-dwelling building in the night-time and burglary of a dwelling, here we must determine whether daytime *35 breaking and entering into a non-structure, such as a vessel or a ship, is comparable in kind and in degree of risk to generic burglary of a building. But ultimately those differences are immaterial to our analysis; similarly to our holding in Brown, we conclude that the predicate crime in this case and generic burglary are insufficiently congenerous.
In reaching this conclusion, we turn to the construction of Massachusetts law rendered by the Commonwealth's courts. Holloway, 630 F.3d at 259. In assessing the violent or aggressive nature of the predicate, Giggey I, 551 F.3d at 41-42, we note that conduct that constitutes the element of "breaking" includes opening a closed but unlocked door or window. See Commonwealth v. Lewis, 346 Mass. 373, 191 N.E.2d 753, 756 (1963). Also, "entering" is satisfied by "some portion of the defendant's hand or arm" coming within the house. Commonwealth v. Moore, 50 Mass.App.Ct. 730, 741 N.E.2d 86, 89 (citing Lewis, 191 N.E.2d at 756), review denied, 434 Mass. 1102, 751 N.E.2d 419 (2001). Conduct that satisfies these elements does not strike us as being typically "violent or aggressive," Giggey I, 551 F.3d at 41-42, and violence is not necessarily a hallmark of breaking-and-entering convictions in the Massachusetts cases. See, e.g., Maher v. Justices of the Quincy Div. of the Dist. Ct. Dept., 67 Mass.App.Ct. 612, 855 N.E.2d 1106, 1107 (2006) (noting a municipal employee's conviction under Mass. Gen. Laws ch. 166 § 18 for breaking into a personnel office on a Saturday to view and pilfer file documents).
As we noted in Brown, "buildings" under Massachusetts law include "detached garages and storage facilities ... that may invite theft of property, but would rarely expose individuals to violence." 631 F.3d at 579. The same rationale applies with even more force to the "ship or vessel" potentially at issue here. As in Brown, "[i]f [Farrell] had been tried for ... `armed' burglary ... this would be a different case." Id. at 580. Similarly, if theft of the vessel itself were an element, or the Shepard documents revealed that the charge included the "person put in fear" element, the calculus might lead to a different result.
The government asks us to follow cases from two circuits in which predicate burglaries have been classified as violent felonies under the ACCA residual clause where the relevant statutes included non-structures such as tents or watercraft within their ambit. We are not persuaded that those cases should inform the analysis in this one. In United States v. Scoville, 561 F.3d 1174 (10th Cir.2009), the court found that violation of two Ohio burglary statutes posed risks of injury or violence that were similar in kind to generic burglary due to their requirements that persons be present or that the structures be occupied or adapted for overnight accommodation. Id. at 1180-81. The Massachusetts statutes at issue in this case, however, do not require the presence of similar conditions.
The government also relies on United States v. Mayer, 560 F.3d 948 (9th Cir. 2009), in which the court held that Oregon's first degree burglary statute fell within the ACCA residual clause. Unlike the statutes at issue here, however, the Oregon law limits its application to either dwellings or "structure[s] adapted for overnight accommodation of persons or for carrying on business therein." Id. at 959. Additionally, conviction under the Oregon statute requires being armed with a weapon or other dangerous object, use of a dangerous weapon, or causing or attempting to cause physical injury. Id. Finally, the remaining case relied on by the government, United States v. Terrell, 593 F.3d *36 1084 (9th Cir.), reh'g denied, 621 F.3d 1154 (9th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2094, 179 L.Ed.2d 895 (2011), is similarly distinguishable because the relevant state burglary statutes at issue there limited their reach to structures adapted for residential use, business use, or overnight stay. Id. at 1091-92.
Against this backdrop, and given the limited scope of Shepard-permissible evidence, we conclude that the district court necessarily erred in finding that Farrell's 1980 Massachusetts breaking-and-entering conviction was a violent felony within the meaning of the ACCA.
Having determined that the first prong of the plain error test is met, we turn to the second requirement: that the error be "obvious and clear under current law." United States v. Newell, 658 F.3d 1, 28 (1st Cir.), cert. denied, ___ U.S. ___, 132 S.Ct. 430, 181 L.Ed.2d 280 (2011). We have said that "current law" means the law at the time of appellate consideration, United States v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir.2005), but there is some debate over whether that rule applies when the law was unsettled at the time of trial. In Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Supreme Court established that "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be `plain' at the time of appellate consideration." The Court, however, left open the question of whether plain error would be established where the law was unsettled at the time of trial, and subsequently clarified while the appeal was pending. The circuits are divided on this issue. Some have deemed Johnson a narrow exception to the rule that error is plain only if it was clear at the time of a district court's decision. See, e.g., United States v. Mouling, 557 F.3d 658, 663-64 (D.C.Cir.2009); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997); United States v. David, 83 F.3d 638, 643 (4th Cir.1996). Others have held that "the time of appellate consideration" standard applies regardless of the law's clarity at the time of trial. See, e.g., United States v. Smith, 402 F.3d 1303, 1315 n. 7 (11th Cir.2005), vacated on other grounds by 545 U.S. 1125, 125 S.Ct. 2938, 162 L.Ed.2d 863 (2005); United States v. Cordery, 656 F.3d 1103, 1106 (10th Cir.2011); United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir. 1996); United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir.2011); United States v. Gamez, 577 F.3d 394, 400 (2d Cir.2009) (per curiam).
We subscribe to the latter view: the plainness of the error should be evaluated at the time of appellate consideration, regardless of whether the law at the time of trial was settled and clearly contrary to the law at the time that the appeal is considered, or whether the law was unsettled at the time of trial.
This approach is consistent with the principles undergirding the forfeiture doctrine, and the stringency of its accompanying plain error standard of review. Plain error review is not a vehicle for gauging the magnitude of the district court's mistake; rather, it functions as a limitation on the appellate court's discretion. We do not correct forfeited errors that are questionable or inconsequential, but only those that are "plain" and "affect substantial rights." See United States v. Laboy-Delgado, 84 F.3d 22, 31 n. 9 (1st Cir.1996). In other words, the focus of plain error review should be "whether the severity of the error's harm demands reversal," and not "whether the district court's action ... deserves rebuke." United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir.1996). When viewed as a restriction on our discretion, rather than as a measure of district *37 court fault, it is clear that the "plainness" inquiry must be undertaken from the vantage of the appellate court. See id. Moreover, as a matter of practice, assessing the plainness of error at the time of appellate consideration allows the reviewing court to avoid the elusive and potentially onerous case-by-case determination of whether the law was "settled" or "unsettled" at the time of trial. Smith, 402 F.3d at 1315 n. 7.
Accordingly, we need not consider whether the law at the time of Farrell's sentencing was merely unsettled or was clearly contrary to the law as it stands now. The question here is whether our intervening decision in Brown makes the error in this case clear and obvious at the present time. We hold that it does.
We have pointed out the differences between Brown and Farrell's sentencing: there, we construed the Sentencing Guidelineshere, the ACCA; there, the distinction was between burglary of a dwelling and nighttime breaking and entering a non-dwelling buildinghere, it is between a building and a vessel. But to describe those differences is to answer the question. As we concluded in determining that there was error, if breaking and entering a building at night is not similar in kind and does not pose a degree of risk similar to burglary of a dwelling, then neither can breaking and entering a vessel be similar in kind to, nor pose a degree of risk similar to, burglary of a building.
If only because of the differences between the physical characteristics of a vessel and a building, and the general ability to observe whether anyone is aboard a vessel, happening upon a person is far less likely to take place while breaking and entering a vessel than it is while burglarizing a building. Cf. Mass. Gen. Laws ch. 90B § 1 (2009) (in statute regulating motorboats, other vessels and recreational vehicles, "vessel" means "watercraft of every description, except a seaplane on the water used or capable of being used as a means of transportation on water"); Barker v. Fairhaven, 265 Mass. 333, 163 N.E. 901, 902 (1928) (as used in tax statutes, "vessel" is a "craft for navigation on the water and larger than a common rowboat"; "ships" are vessels that are not "propelled by oars, paddles or the like"). While not all vessels are so easily distinguished from buildings, we are concerned here with the scope of the statute and the likelihood of physical injury, not simply with whether subclasses of vessels exist. See Brown, 631 F.3d at 579 (the statute "covers a wide range of structures ... where one might rarely encounter someone else" and "would rarely expose individuals to violence"). After Brown, it is plain that reliance on the 1980 Massachusetts conviction was error.
Finally, in this case, the prejudice and unfairness prongs of the plain error doctrine may be addressed summarily. The government makes no argument with respect to them, and both the mandatory minimum sentence of imprisonment for fifteen years under the ACCA and the career offender determination under the Guidelines were arrived at in reliance on the error. No more need be said.
III.
We remand for resentencing consistent with this opinion.[12]
NOTES
[1] See 18 U.S.C. § 922(g)(1) ("It shall be unlawful for any person . . . who has been convicted... of[] a crime punishable by imprisonment for a term exceeding one year ... to. . . possess . . . any firearm or ammunition....").
[2] The statute has since been amended in ways not relevant here.
[3] We reject the government's contention that Farrell has waivedrather than forfeitedhis ACCA argument. Under the circumstances of this case, the failure to object to the PSR does not constitute an "intentional relinquishment or abandonment" of the right to contest the legal adequacy of the ACCA finding. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see United States v. Jimenez, 512 F.3d 1, 6 (1st Cir.2007) (finding waiver where defendant was "expressly invited" to object to inclusion of predicate offenses in PSR). Similarly, defense counsel's request for leniencyin the form of an eight month variance down to the statutory minimumis not an abandonment of the claim made here that the predicates do not qualify for ACCA consideration.
[4] Criminal complaints in Pennsylvania are considered charging instruments. See Garcia v. Att'y Gen., 462 F.3d 287, 292 (3d Cir.2006) (citing Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826, 829 (1977)); cf. Shepard, 544 U.S. at 16, 125 S.Ct. 1254 (holding that sentencing courts may not rely on police reports or complaint applications in ACCA predicate felony analyses).
[5] The correct spelling of the appellant's surname is "Farrell."
[6] Although the government states in its brief that Farrell pled guilty to the charge, the submitted document notes only an original plea of not guilty in April 1980 and an entry of "guilty" dated "6-2-80" under the column headed "judgment." There is no indication whether the judgment followed a trial or guilty plea.
[7] Both statutes have since been amended to include vehicles within their ambit.
[8] The government's brief contains a parenthetical aside suggesting that there are other sources showing that the crime did not involve a vessel or ship. If we were permitted to consider such other sources, the government presumably would have made them available.
[9] James also held that attempt crimes are not categorically excluded from the ACCA residual clause. 550 U.S. at 213, 127 S.Ct. 1586. That issue is not presented by this case.
[10] See United States v. Willings, 588 F.3d 56, 58 n. 2 (1st Cir.2009) (observing that "crime of violence" under Guidelines and "violent felony" under the ACCA are nearly identical in meaning and that decisions construing one inform the construction of the other). This symbiosis, however, does not necessarily extend to analysis of burglaries, because the guideline definition is narrower, including only dwelling burglary among its enumerated offenses. Id.; U.S.S.G. § 4B1.2(a)(2).
[11] Although the statute, Mass. Gen. Laws ch. 266, § 16, included ships and vessels within its proscriptions, the parties in Brown agreed that the alleged predicate involved a non-dwelling building. Brown, 631 F.3d at 578-79.
[12] In light of our disposition of this issue, we do not address the ineffective assistance of counsel claim. Farrell also posits that his sentence violates the Fifth and Sixth Amendments because a jury did not find, beyond a reasonable doubt, that he had the requisite predicate felonies. We have repeatedly rejected this attempt to avoid the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and do so again here. See United States v. Goncalves, 642 F.3d 245, 255 (1st Cir.2011) (and cases cited therein). | 01-03-2023 | 02-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/45271/ | United States Court of Appeals
Fifth Circuit
F I L E D
In The United States Court Of Appeals August 2, 2006
For The Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-51602
Summary Calendar
GAYLE J. WARD,
Plaintiff - Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. 1:04-CV-00328
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gayle Ward applied for disability insurance benefits under Title II of the Social
Security Act (SSA), alleging an inability to work due to systemic lupus erythematosus (SLE),
fibromyalgia, Sjogren’s syndrome, depression, rheumatoid arthritis, osteoporosis, and renal
insufficiency. The claim was denied initially, upon reconsideration, and after a hearing, at
which an Administrative Law Judge (ALJ) determined that Ward is not disabled because she
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
is capable of performing her past relevant work as a housekeeper. Ward appealed this
determination to the Appeals Council, who denied her request for review, and sought further
review in the federal district court, which affirmed the ALJ’s decision. Ward appeals.
Our review of the Commissioner’s decision to deny benefits is limited to two
inquiries: whether the decision is supported by substantial evidence and whether the
Commissioner applied the proper legal standards.1 Substantial evidence “means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion”2
and is “more than a mere scintilla[] and less than a preponderance.”3 If supported by
substantial evidence, the Commissioner’s factual findings are conclusive.4 “The court does
not reweigh the evidence in the record, try the issues de novo, or substitute its judgment for
the Commissioner’s, even if the evidence weighs against the Commissioner’s decision.”5
The Commissioner, rather than the court, is charged with resolving any conflicts in the
evidence.6
Ward bears the burden of proving she suffers from a disability under the SSA.7
1
See, e.g., Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
2
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations and citations omitted).
3
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
4
42 U.S.C. § 405(g).
5
Newton, 209 F.3d at 452.
6
Id.
7
Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992).
2
Disability is defined as the “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected
to . . . last for a continuous period of not less than 12 months.”8 The Commissioner uses the
familiar five-step sequential process to evaluate disability claims and considers whether:
(1) the claimant is performing substantial gainful activity; (2) the claimant has a “severe
impairment”; (3) the claimant’s impairment meets or equals one listed in Appendix 1 of the
regulations; (4) the claimant has the residual functional capacity (RFC) to perform her past
relevant work; and (5) the claimant can make an adjustment to other work in light of her age,
education, work experience, and RFC.9 If the claimant shows that she is disabled under the
first four steps, the burden shifts to the Commissioner for the fifth step to demonstrate that
the claimant can perform other substantial work in the national economy.10 A finding that
the claimant is not disabled at any step is conclusive and ends the inquiry.11 The ALJ found
that Ward has the severe impairments of SLE, fibromyalgia, Sjogren’s syndrome, rheumatoid
arthritis, and depression, but that she is not disabled because she has the RFC, meaning the
most she can do despite her limitations,12 to perform her past relevant work as a housekeeper.
Ward first challenges the ALJ’s decision to place little weight on the opinion of her
8
42 U.S.C. § 423(d)(1)(A).
9
20 C.F.R. § 404.1520.
10
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
11
Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990).
12
20 C.F.R. § 404.1545(a).
3
treating physician, Dr. Irma Aguirre, that her conditions prevent her from walking even one
city block, lifting any weight, sitting for more than 30 minutes at a time, or standing for more
than 10 minutes at a time and thus from performing any of her past relevant work. Ward
specifically argues that the ALJ failed to follow the detailed analysis required by the
regulations and based his decision on less than substantial evidence. Although “the opinion
and diagnosis of a treating physician should [generally] be afforded considerable weight in
determining disability,” and should often be given controlling weight, the ALJ may give the
opinion little or no weight when good cause is shown, for instance where the opinion is
conclusory or unsupported by the objective medical evidence.13 When the ALJ determines
that the opinion is not entitled to controlling weight,14 the regulations require the ALJ to
consider several factors in deciding how much weight to give the opinion, such as the length
of treatment, the consistency of the opinion with the record as a whole, and the specialization
of the treating physician.15 This court has held, though, that the ALJ need not consider each
of the factors where “‘there is competing first-hand medical evidence and the ALJ finds as
a factual matter that one doctor’s opinion is more well-founded than another.’”16
13
Newton, 209 F.3d at 455-56.
14
See id. at 455 (“A treating physician’s opinion on the nature and severity of a patient’s
impairment will be given controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence.”)
(internal quotations and citations omitted); 20 C.F.R. § 404.1527(d)(2).
15
20 C.F.R. § 404.1527(d); see also Newton, 209 F.3d at 456.
16
See Walker v. Barnhart, No. 04-31256, 158 Fed. Appx. 534 (5th Cir. Dec. 9, 2005)
(quoting Newton, 209 F.3d at 458 (holding that the ALJ must consider each of the factors in 20
4
Although the ALJ did not discuss every factor listed by the regulations, the ALJ
engaged in a detailed discussion of the evidence, which included competing first-hand
medical evidence that conflicted with Dr. Aguirre’s opinion as to Ward’s limitations, and
there is substantial evidence to support his decision to place little weight on that opinion.
Significantly, just 10 days prior to completing the RFC assessment, Dr. Aguirre stated in a
progress note that Ward’s SLE, rheumatoid arthritis, and Sjogren’s syndrome had stabilized,
that she was doing better on her medication regimen, and that her insomnia and fatigue had
improved. Later that year, another examining physician stated that Ward’s SLE was “under
fairly good control” with her medication. According to another treating physician, Ward has
normal muscle tone and bulk with “five out of five strength in all muscle groups in all
extremities.” The ALJ further noted other inconsistencies between Dr. Aguirre’s RFC
assessment and the record. For example, Dr. Aguirre claimed that Ward has swelling in her
joints, but an exam two months earlier revealed no swelling. Additionally, Dr. Aguirre
indicated that Ward’s conditions implicate her gastrointestinal system, but the record
contains evidence of only some constipation, which had improved with fiber therapy. In
these circumstances, the ALJ did not err by placing little weight on (or effectively rejecting)
the treating physician’s opinion that Ward could not walk one city block, lift any weight, or
stand or sit for prolonged periods. Although Ward disagrees with the ALJ’s resolution of the
C.F.R. § 404.1527 before declining to give any weight to the opinions of the claimant’s treating
specialist, but noting that the case did not involve competing first-hand medical evidence)).
5
conflicting evidence, we decline to substitute our judgment for that of the ALJ.17
Ward next challenges the ALJ’s assessment of her RFC. First, Ward argues that the
ALJ erroneously characterized her past relevant work as a housekeeper as “light work,”
which requires the ability to lift no more than 20 pounds,18 even though her past work
actually required her to lift 50 pounds. We find no error in the ALJ’s characterization. The
determination of whether a claimant can perform past relevant work “may rest on
descriptions of past work as actually performed or as generally performed in the national
economy.”19 Here, the vocational expert testified that a person who could perform a limited
range of light work could work as a housekeeper as that job is generally performed. Second,
Ward argues that the ALJ erred by not explicitly finding that she could maintain
employment. Such a finding is generally implicit in the RFC assessment,20 and an explicit
finding was not required in this case because there is no evidence in the record that Ward’s
conditions “waxe[d] and wane[d] in [their] manifestation of disabling symptoms.”21 Finally,
17
See Newton, 209 F.3d at 452.
18
See 20 C.F.R. § 404.1567(b) (defining light work to require the ability to lift no more than
20 pounds, with frequent lifting of 10 pounds).
19
Villa, 895 F.2d at 1022.
20
See Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003) (noting that “RFC is a measure
of the claimant’s capacity to perform work ‘on a regular and continuing basis’” and implying that an
ability to maintain employment is inherent in the definition of RFC).
21
Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) (“Watson [v. Barnhart, 288 F.3d 212
(5th Cir. 2002), in which the court held that the ALJ erred by not determining whether the claimant
could maintain employment,] requires a situation in which, by its nature, the claimant’s . . . ailment
waxes and wanes in its manifestation of disabling symptoms.”).
6
Ward argues that the ALJ did not apply the proper legal standards or base his RFC
determination on substantial evidence. We disagree. The ALJ considered all of the relevant
evidence and addressed Ward’s exertional and non-exertional limitations, as required by the
regulations.22 After rejecting the treating physician’s RFC assessment as unsupported by the
evidence, the ALJ adopted the state agency, non-examining physician’s opinion that Ward
could lift 20 pounds occasionally, 10 pounds frequently, stand and/or walk 6 hours out of an
8 hour day, and sit 6 hours out of an 8 hour day, or, in other words, that she could perform
light work.23
Ward also argues that the ALJ failed to follow the requirements in 20 C.F.R.
§ 404.1529 for evaluating her allegations of disabling pain and the resulting limitations on
her ability to work. Under the regulations, the ALJ must first determine whether there is a
medically determinable physical or mental impairment that could reasonably be expected to
produce the claimant’s pain.24 If the ALJ finds such an impairment, he then has to consider
a variety of factors, including the claimant’s daily activities and treatment for pain, to
determine the extent to which the pain limits the claimant’s ability to do basic work
activities.25 “It is within the ALJ’s discretion to determine the disabling nature of a
22
See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p.
23
See 20 C.F.R. § 404.1567(b).
24
20 C.F.R. § 404.1529(b); Social Security Ruling 96-7p.
25
Id.
7
claimant’s pain, and the ALJ’s determination is entitled to considerable deference.”26
“Subjective complaints of pain must also be corroborated by objective medical evidence.”27
Here, the ALJ evaluated Ward’s testimony in light of all the objective medical
evidence and concluded that the evidence did not support her pain allegations to the extent
alleged. The ALJ noted that there is evidence that Ward’s SLE and rheumatoid arthritis were
stabilizing, her muscle pain was greatly improved with medication, her headaches were
short- lived and improved with Prozac, and her abdominal pain improved with fiber therapy.
The ALJ also noted that the medical record contains no complaints regarding the side effects
of her medication. Finally, there is evidence that Ward attended church twice a month,
occasionally went grocery shopping, and did some cleaning and cooking. The ALJ applied
the correct legal standard in evaluating the claimant’s pain, and there is substantial evidence
in the record to support his conclusion that her pain is not as limiting as she reports.
Finally, Ward argues that the Appeals Council failed to give her attorney a copy of
the hearing transcript upon request and failed to consider her attorney’s brief when declining
to review her claim. Ward identifies no prejudice from these alleged errors. “Procedural
perfection in administrative proceedings is not required[, and] [t]his court will not vacate a
judgment unless the substantial rights of a party have been affected.”28
AFFIRMED.
26
Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
27
Id.
28
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
8 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/93024/ | 139 U.S. 385 (1891)
DOLAN
v.
JENNINGS.
KIBBE
v.
JENNINGS.
Nos. 265, 266.
Supreme Court of United States.
Argued March 26, 1891.
Decided March 30, 1891.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*386 Mr. John R. Bennett for appellants.
Mr. Arthur v. Briesen (with whom was Mr. Antonio Knauth on the brief) for appellee.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
These are appeals from final decrees rendered in the Circuit Court of the United States for the Southern District of New York, awarding to Abraham G. Jennings and Warren P. Jennings, complainants, damages against Thomas Dolan, of Philadelphia, and Kibbe, Chaffee, Shreve & Co., of New York, for the infringement of letters patent No. 218,082 for lace purling. A design patent No. 10,448 for a design for fringed lace fabric was also proceeded on in the bills of complaint, but was held not to have been infringed by defendants. Final decrees were rendered in each suit in favor of Abraham G. Jennings and Warren P. Jennings against Dolan and Kibbe et al., respectively, on the 12th of February, 1887.
On the 25th of March, 1887, a petition for appeal was filed in each case on behalf of the defendants, entitled "Abraham G. Jennings, survivor of Abraham G. Jennings and Warren P. Jennings," and against Dolan and Kibbe et al., and the appeals were allowed.
The bond in No. 265 was approved March 10, 1887, and entitled "A.G. Jennings, surviving complainant in A.G. Jennings and W.P. Jennings v. Thomas Dolan," and recited that Dolan and his sureties were "held and firmly bound unto the above-named complainants in the sum of thirty-five hundred dollars, to be paid to the said complainants." The citation ran, "to Abraham G. Jennings, surviving complainant, etc." and was served March 24, 1887.
In No. 266 the bond was entitled "A.G. Jennings, surviving complainant in A.G. Jennings and W.P. Jennings v. Henry R. Kibbe," and the other defendants, and recited that the persons signing were "held and firmly bound unto the above-named A.G. Jennings and W.P. Jennings in the sum of *387 twenty-seven hundred dollars, to be paid to the said A.G. Jennings & W.P. Jennings." This bond was filed March 10, 1887. The citation ran to "Abraham G. Jennings, surviving complainant, etc.," and was served March 24.
The bills commenced "Abraham G. Jennings and Warren P. Jennings, doing business at the city of New York, county and State of New York, and citizens of the State of New York," and set up that Abraham G. Jennings and Warren P. Jennings were "the sole and exclusive owners" of the patents in question. It nowhere appeared from the pleadings, proofs, proceedings or decrees, that the complainants claimed to own or did own the patents as partners, though there was some evidence that there was a firm styled A.G. Jennings & Son, or A.G. Jennings & Sons, or Jennings & Co. Sundry licenses were put in evidence, describing Abraham G. Jennings and Warren P. Jennings as the owners of the patents and the granting of the licenses accordingly. The death of Warren P. Jennings was not suggested on the record by the appellants, except as the titles to the petitions for appeal and the bonds on appeal, and the directions of the citations, might be considered as such. But we understand his death after decree to be conceded. No order was procured, directed to the proper representatives of the estate of Warren P. Jennings, or notifying them of the appeal, nor have they voluntarily appeared.
The proper course of proceeding upon this subject has been wholly disregarded. Rev. Stat. § 955; Act March 3, 1875, § 9, 18 Stat. 470, c. 137; Rule 15, 108 U.S. 581. So far as disclosed by these records, the cause of action did not on the death of one of the complainants survive to the other, nor could there have been nor was there any severance between Abraham G. Jennings and the legal representatives of Warren P. Jennings; nor do we think that the defect can now be cured. More than four years have elapsed since the final decrees were entered, and as we have never had jurisdiction over the legal representatives of the deceased complainant, it is impossible for us to obtain it now.
In Knickerbocker Life Insurance Co. v. Pendleton, 115 U.S. 339, after judgment had been rendered here reversing the *388 judgment below, which had passed in favor of the plaintiffs below, the court discovered that the writ of error was sued out and citation directed and served against only one of those plaintiffs, and that the preliminary appeal bond was made to him alone. The supersedeas bond was, however, executed to all the plaintiffs, and the subsequent proceedings generally bore a plural title. The special circumstances of the case were held to justify the amendment of the writ of error and the issue of a new citation.
In Mason v. United States, 136 U.S. 581, the application to amend being made more than two years after the entry of judgment, and the omitted parties being in no way in court, the application was denied and the writ of error dismissed. Estis v. Trabue, 128 U.S. 225.
We are compelled to hold the objection fatal to our jurisdiction, and the appeals must be
Dismissed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3857004/ | Argued May 5, 1925.
Appellant, defendant in the court below, was the lessee in possession of a certain storeroom and cellar located in Federal Street in the City of Pittsburgh. He used the storeroom as a salesroom and the cellar for storage purposes connected with his business. He permitted a plumber by the name of Shraeder to keep, without charge, a kit of tools in the cellar and to use the cellar doors for the purpose of going in and out. The cellar doors covered an opening in the sidewalk in front of the store. They came together in the middle and were fastened to the stone of the pavement on either side of the opening with hinged fastenings. On July 3, 1921, the plumber went into the cellar for his tools, and from within raised the iron doors in such a negligent manner that Mrs. Morse, one of the plaintiffs, who was walking along Federal Street in front of the building, tripped over them and was injured. There was nothing to warn her or to attract her attention to any possible danger. Mrs. Morse and her *Page 258
husband brought this action to recover the damages resulting from the injury. The case was tried in the county court of Allegheny County before a judge without a jury, who found for plaintiffs. On appeal to the court of common pleas, counsel for the respective parties agreed to a case stated for the opinion of the court in the nature of a special verdict, and a judgment was entered in favor of the wife for $1,499 and for the husband for $1. This appeal is from the judgment in favor of the wife. We have stated above all of the material facts set forth in the case stated.
Appellant's statement of the questions involved presents the following legal propositions: 1. Is a tenant of a building abutting on a public highway liable in damages for the negligence of a licensee, to whom he has permitted the use of a cellar door opening into the pavement of the building? 2. Can there be a recovery against the defendant, without proof of negligence on his part?
The nature and extent of the liability of the owner or occupier of property who maintains an opening in the sidewalk of the public highway on which the property abuts has been considered by this court in several cases. In Spratt v. Reymer Bros., Inc.,57 Pa. Super. 566, plaintiff fell into an opening in the sidewalk immediately in front of defendant's store when an ice company was delivering ice through the opening to defendant, who had authorized the use of the opening by the ice company for the purpose, with directions to the employees of the ice company that they must be careful while using the opening to guard the interest of pedestrians. The principal question before this court in that case was whether the evidence disclosed a legal foundation for a finding by the jury that defendant had been negligent in permitting the opening in the sidewalk to be used in the conduct of its own business without providing for the protection of pedestrians lawfully using the footway. It was *Page 259
held that it did, and that it would have been error for the trial judge to have withdrawn the question of defendant's negligence from the jury. As stated in Scheafer v. Iron City Sand Co.,31 Pa. Super. 476, the law imposes upon the owner or occupier of property who maintains an opening in the sidewalk, the duty of reasonably safeguarding it so as to fairly protect the public in its ordinary use of the street. In Doll v. Ribetti, 203 Fed. Repr. 593, the defendant was the lessee and occupier of a building on Penn Avenue in the City of Pittsburgh. He entered into a contract with one Hern, for cleaning the windows of a building at stated intervals. The plaintiff was walking upon the sidewalk in front of the building when one of Hern's employees, who was engaged in cleaning a window on the fourth floor of the building, fell upon the plaintiff and injured him. The negligence charged against the defendant was the failure to use reasonable care to protect pedestrians against accidents such as that which happened. It was held, following both English and American authorities, that the exigence of the defendant's duty was not affected by the fact that the condition from which damage resulted was due to the negligence of an independent contractor; "that where the thing committed to an independent contractor to do for the occupier, on or about his premises, is of itself inherently dangerous, such contractor is the mere instrument or agent of the occupier so far as concerns the responsibility to those lawfully coming within such danger; and that the responsibility of the defendant, as occupier, is the same as if the window cleaner who fell from the window sill had been the ordinary servant of the defendant." In Spratt v. Reymer Bros., Inc., supra, this court cited with approval the following statement from the opinion of Judge GRAY of the circuit court of appeals, in Doll v. Ribetti: "The defendant was a lessee and occupier of the building in question. As such he was in control thereof, and the *Page 260
law imposes upon such occupier a very positive duty to those using the highway upon which the building abuts to use the care requisite according to the circumstances to guard them against injury resulting from the condition of the premises or from what is being done in or about the same by the direction or permission or for the convenience and benefit of the occupier. . . . . . The duty imposed by law on the occupier is an absolute duty which he cannot shift." In Strohm v. Haverstick, 44 Pa. Super. 166, we said: "It seems clear enough that when the defendant opened the coal hole for the receipt of his coal, and turned over for the time being to the driver of the coal wagon his own obligation to reasonably guard the dangerous opening in the sidewalk, he did not cease to be responsible for any negligent act or omission of that driver." The able counsel for appellant points out that in all the cases above cited the act which caused the injury was being done for the use and benefit of the defendant. We are clear that that fact is neither controlling nor important.
The legal rule applicable to this case is that where one in possession or control of premises abutting on a sidewalk along a city street does something or permits another to do something on the sidewalk which requires disturbance of the surface thereof or the placing of an obstruction thereon, the condition resulting therefrom is one for which he is responsible, and it becomes his duty to exercise reasonable care in guarding the public against dangers which are naturally incident thereto. The fact that the negligent act of defendant's licensee was the direct cause of the accident is no defense. But the question remains whether defendant used reasonable care in guarding pedestrians against the dangers which were likely to result from the opening and closing of the cellar doors. The use of the doors was necessarily attended with some danger to those using the sidewalk. Was *Page 261
defendant negligent in failing to safeguard the sidewalk? That is a question of fact which must be answered before defendant's liability can be determined. As stated above, the parties submitted to the court of common pleas an agreement which they called a case stated. But the essential fact in the case, the negligence of the defendant, was not agreed upon, nor does the case stated contain any facts from which the negligence of defendant may be inferred as a matter of law, the presumption being that he did his duty. The agreement that Shraeder was negligent does not supply the defect. A case stated must set forth all the facts and nothing must be left to inference. Only questions of law are submitted to the court: Kinsley v. Coyle,58 Pa. 461; Union Savings Bank v. Fife, 101 Pa. 388. Where a special verdict or case stated in the nature thereof is defective, in failing to find the facts, a new trial will be awarded: Union Savings Bank v. Fife, supra. Whatever is not set forth will be taken not to exist: Williamsport v. Lycoming County, 34 Pa. Superior Co. 221. It follows that we must reverse the judgment.
Judgment reversed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/45980/ | United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 21, 2006
August 30, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
______________________
No. 06-20632
______________________
HALLIBURTON COMPANY BENEFITS COMMITTEE, In Its Capacity as Plan
Administrator of the Halliburton Energy Services, Inc. Welfare
Benefits Plan, including its constituent benefit program, the
Dresser Retiree Life and Medical Program; HALLIBURTON CO;
HALLIBURTON ENERGY SERVICES INCORPORATED WELFARE BENEFITS PLAN
Plaintiffs - Appellants
v.
JAMES GRAVES; PHIL GRIFFIN; PAUL M BRYANT, individually and as
representatives of a requested class of all similarly situated
persons
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before KING, STEWART and DENNIS, Circuit Judges.
KING, Circuit Judge:
This class action, brought under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (2000)
(“ERISA”), arises from the September 1998 merger of Dresser
Industries, Inc. into a wholly owned subsidiary (Halliburton
N.C., Inc.) of Halliburton Company pursuant to the terms of a
merger agreement among the three companies and the effect of the
merger agreement on the Dresser Retiree Medical Program, an
employee welfare benefit plan under 29 U.S.C. § 1002(1). As part
of the merger agreement, Halliburton agreed to maintain the
Dresser Retiree Medical Program for eligible participants, except
to the extent that any modifications to the program are
consistent with changes in the medical plans provided by
Halliburton for similarly situated active employees. In November
2003, Halliburton amended three subplans of the Dresser Retiree
Medical Program “to align the benefits provided to the
participants in the three subplans more closely with the benefits
provided to other Halliburton retirees.” Halliburton did not
make similar modifications to the plans for its own similarly
situated active employees.
After receiving written complaints from at least three
affected Dresser retirees challenging the validity of the
November 2003 amendments in light of the merger agreement,
Halliburton filed this action against the Dresser retirees in the
district court, seeking class certification of all participants
in the Dresser Retiree Medical Program and declarations that the
November 2003 amendments are valid and that the merger agreement
does not limit Halliburton’s right to amend or terminate the
Dresser retiree program. The parties filed cross-motions for
summary judgment, and on December 20, 2004, the district court
granted partial summary judgment in favor of the Dresser
retirees. The district court concluded that the merger agreement
modified the Dresser Retiree Medical Program and that Halliburton
2
must maintain the program for eligible participants and may amend
or terminate the program only if it makes the same changes to the
programs for its similarly situated active employees. On June
26, 2006, the district court certified its order pursuant to 28
U.S.C. § 1292(b). We granted Halliburton’s unopposed petition
for permission to appeal, and for the following reasons, we
AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In 1998, Dresser Industries, Inc. (“Dresser”), a Delaware
corporation in the oilfield services business, merged with
Halliburton N.C., Inc. (“Halliburton N.C.”), a newly formed
Delaware corporation and wholly owned subsidiary of Halliburton
Company (“Halliburton”), also a Delaware corporation in the
oilfield services business. The merger was accomplished under
the Delaware General Corporation Law. Prior to the merger,
Halliburton and Dresser separately had established welfare
benefit programs for employees and retirees. The Halliburton
Company Welfare Benefits Plan (“Halliburton Plan”) provided very
limited medical benefits for its retirees. On January 1, 1994,
Halliburton had amended its retiree program to eliminate medical
benefits for those retirees over the age of sixty-five who were
Medicare-eligible, unless the retiree had reached the age of
sixty-five by January 1, 1994. For the latter retirees, the
3
Halliburton Plan provided only a prescription drug benefit of $22
per month and eliminated all other medical benefits.
The retiree medical benefits provided by the Dresser Retiree
Medical Program were significantly greater than those provided by
the Halliburton Plan at the time of the merger. The Dresser
Retiree Medical Program consisted of separate subplans that
provided medical benefits to different groups of Dresser
retirees. It was governed by Dresser’s umbrella plan for welfare
benefits, the Dresser Industries, Inc. Welfare Benefit Plan, Plan
750 (“Dresser Plan 750”).1 On January 1, 1993, Dresser had
amended the Dresser Retiree Medical Program to exclude additional
1
The most recent iteration of Dresser Plan 750 is the 1995
version. The summary plan description in effect on the date of
the merger was “Your Benefits Handbook 1997, Plan 750 For Non-
Union Employees and Retirees, Effective January 1, 1997” with
minor changes found in “Your Dresser Benefits--1998/Enrollment
Information Retiree Union-Free Version.”
Dresser Plan 750 also governed Dresser’s other welfare
benefit programs, including the Dresser Executive Deferred
Compensation Plan, the Dresser Executive Life Insurance Program,
the Dresser Supplemental Executive Retirement Plan, and the
pension equalizer payments under the Dresser Retirement Savings
Plan.
In their brief, the Retirees allude to provisions in the
merger agreement affecting these other welfare benefit programs;
however, our jurisdiction applies to the order certified to this
court, and that order is limited to the merger agreement’s effect
on the Dresser Retiree Medical Program. See 28 U.S.C. § 1292(b)
(2000); see also Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 205 (1996) (“As the text of § 1292(b) indicates, appellate
jurisdiction applies to the order certified to the court of
appeals . . . . [b]ut the appellate court may address any issue
fairly included within the certified order because ‘it is the
order that is appealable, and not the controlling question
identified by the district court.’”) (quoting 9 J. MOORE & B. WARD,
MOORE’S FEDERAL PRACTICE ¶ 110.25[1] (2d ed. 1995)).
4
retirees over the age of sixty-five, except for a defined group
of so-called “grandfathered” employees who remained eligible for
full medical benefits under the program after they turned sixty-
five.2 There were approximately 5500 participants in the Dresser
Retiree Medical Program when Halliburton and Dresser merged in
1998. Since the merger, the number of grandfathered employees
has been declining, and it is these employees who are the members
of the defendant class.3 Dresser Plan 750 specifically reserved
the right to amend or terminate any of its welfare benefit plans,
including the Dresser Retiree Medical Program.
In preparation for the merger between Halliburton and
Dresser, senior management of the two companies, along with their
financial and legal advisors, met on February 20-22, 1998, to
negotiate the terms of the merger agreement. At a meeting on
February 20, the parties discussed Dresser Plan 750, including,
inter alia, medical benefits for Dresser retirees.4 Mark Vogel,
2
The “grandfathered” employees fell into three categories:
(1) existing retirees with coverage; (2) active employees who met
the age and service requirements as of January 1, 1993; and (3)
specified active employees who could “grow in” to retiree
benefits if they completed the requisite years of service before
retiring. The first group had approximately 5000 employees, and
the second and third groups had approximately 500 employees
combined.
3
At oral argument, counsel for the Retirees estimated that
as of May 3, 2006, the Dresser Retiree Medical Program had
between 3000-4000 participants.
4
David Lesar, President and Chief Operating Officer of
Halliburton, Lester Coleman, Executive Vice President and General
Counsel of Halliburton, Donald Vaughn, President and Chief
5
an attorney with Weil, Gotshal & Manges, LLP, representing
Dresser, indicated in his notes from the meeting that David Lesar
(“Lesar”), then President and Chief Operating Officer of
Halliburton, “agreed to protect all [Dresser] salaried employees
who were grandfathered with respect to [the] old retiree medical
plan at no less benefits than active employees.” The notes from
the meeting were delivered to Lesar and Lester Coleman
(“Coleman”), Executive Vice President and General Counsel of
Halliburton, at 7:00 p.m. that same day.
Shortly after the negotiations concluded, on February 25,
1998, the companies executed the Agreement and Plan of Merger
(the “merger agreement” or “agreement”) by and among Halliburton,
Halliburton N.C., and Dresser. On September 29, 1998, the
effective date of the agreement, Halliburton N.C. merged with and
into Dresser. The agreement specified that “[a]s a result of the
Merger, the separate corporate existence of [Halliburton N.C.]
shall cease and [Dresser] shall continue as the Surviving
Corporation.” It further explained that “all the property,
rights, privileges, powers and franchises of [Halliburton N.C.]
and [Dresser] shall vest in the Surviving Corporation, and all
debts, liabilities and duties of [Halliburton N.C.] and [Dresser]
shall become the debts, liabilities and duties of the Surviving
Operating Officer of Dresser, and Paul Bryant, Vice President of
Human Resources for Dresser, were among those present at the
meeting.
6
Corporation.” Under the terms of the agreement, Dresser’s
shareholders received one share of newly issued Halliburton
common stock for each share of Dresser common stock.
The agreement itself recited that the respective boards of
directors of Halliburton and Dresser had approved the merger.
The agreement was signed by Lesar on behalf of Halliburton and
William Bradford (“Bradford”), then Chairman and Chief Executive
Officer of Dresser, on behalf of Dresser. On June 25, 1998, the
Halliburton and Dresser shareholders approved the agreement at
separate meetings. The agreement was to be governed by and
construed in accordance with Delaware General Corporation Law.
This appeal primarily concerns three provisions in the
merger agreement, two of which deal with employee benefit plans
and one of which addresses the parties in interest to the merger
agreement. The two provisions concerning employee benefit plans
are found in section 7.09, entitled “Assumption of Obligations to
Issue Stock and Obligations of Employee Benefits Plan;
Employees.” First, section 7.09(g)(i) states that:
(g) [Halliburton] shall and shall cause the Surviving
Corporation and each Subsidiary of the Surviving
Corporation to take all corporate action necessary to:
(i) maintain with respect to eligible participants
(as of [September 29, 1998]) the [Dresser] retiree
medical plan, except to the extent that any
modifications thereto are consistent with changes
in the medical plans provided by [Halliburton] and
its subsidiaries for similarly situated active
employees . . . .
Following this provision, section 7.09(h) provides that:
7
Subject to Section 7.09(g), until the third anniversary
of the Effective Time [of the merger agreement] (the
“Benefits Maintenance Period”) [Halliburton] shall and
shall cause the Surviving Corporation and each Subsidiary
of the Surviving Corporation to provide each employee of
[Dresser] or any of its Subsidiaries at the Effective
Time (“Company Participants”) with employee benefits and
compensation after the Effective Time that are
substantially comparable to similarly situated employees
of [Halliburton] and its Subsidiaries.
The parties also included a section covering the parties in
interest to the merger agreement. Section 10.07 states that the
agreement shall inure solely to the benefit of each party and
that nothing in the agreement is intended to confer upon any
other person any right, benefit, or remedy. It also provides an
exception to its general prohibition on third-party
beneficiaries:
Notwithstanding the foregoing and any other provision of
this Agreement, and in addition to any other required
action of the Board of Directors of [Halliburton] a
majority of the directors . . . serving on the Board of
Directors of [Halliburton] who are designated by
[Dresser] pursuant to Section 7.13 shall be entitled
during the three year period commencing at the Effective
Time (the “Three Year Period”) to enforce the provisions
of Sections 7.09 and 7.13 on behalf of the Company’s
officers, directors and employees, as the case may be.
Such directors’ rights and remedies under the preceding
sentence are cumulative and are in addition to any other
rights and remedies that they may have at law or in
equity, but in no event shall this Section 10.07 be
deemed to impose any additional duties on any such
directors. . . .
Following the merger, the Halliburton Plan and Dresser Plan
750 were separately maintained. Because the welfare plans
differed in many respects, proper administration of the plans
posed a significant challenge. For Dresser Plan 750, this
8
responsibility fell, at least in part, on Paul Bryant (“Bryant”),
the former Dresser Vice President of Human Resources who became
the Halliburton Shared Services Vice President of Human Resources
after the merger. On May 14, 1999, almost eight months after the
effective date of the merger, Bryant submitted a memorandum and a
notebook to senior management, including, inter alios, Bradford,
Coleman, and Celeste Colgan (“Colgan”), Halliburton’s Vice
President of Administration. The memorandum and the notebook,
entitled “Dresser Legacy--Employee Pay and Benefit Obligations,
Merger Agreement Section 7.09(g),” were prepared, and, in the
case of the memorandum, signed, in the regular course of Bryant’s
employment as Vice President at Halliburton. In the memorandum,
Bryant stated that he had prepared the notebook “to assist in
complying with the Merger Agreement, Section 7.09(g).” Bryant
also noted that “[s]ince [he] was the primary figure from Dresser
dealing with pay and benefit matters at the Merger negotiations,
[he] thought it would be helpful to provide this material before
[he] retired.” With regard to the Dresser Retiree Medical
Program and section 7.09(g)(i), the provision in the merger
agreement concerning the retirees’ program, Bryant explained
that:
During the merger negotiations, Dresser wanted to ensure
that the Dresser Retiree Medical plan was kept similar to
the current plan but recognized that the future was
unpredictable. Thus, wording was included that gave
Halliburton the ability to make changes to the Dresser
Retiree Medical plan as long as the same changes were
being made to active employees. For example, if business
9
conditions caused Halliburton to increase active employee
contributions 20% and raise the minimum deductible to
$1,000, the same actions could be taken to the Dresser
Retiree Medical plan participants.
There is no indication in the record that Halliburton or any
senior management of Halliburton receiving the memorandum and
notebook disputed Bryant’s interpretation of the Dresser Retiree
Medical Program or that administration of the retiree program was
being carried out contrary to Bryant’s interpretation. Rather,
Halliburton’s correspondence indicates that it was mindful of its
obligations to Dresser retirees under the merger agreement. For
example, on February 16, 1999, Colgan wrote a letter to Clint
Ables (“Ables”), one of the Dresser retirees, in response to
Ables’s request for a copy of the Dresser Summary Plan
Description for the retiree medical program. Colgan explained
that although she was enclosing a copy of the 1997 handbook--the
version existing before the 1998 merger--that version “contains
the benefit information pertaining to coverage currently extended
to Dresser ‘grandfathered’ retirees.” She also noted that
Halliburton “is mindful of its obligation to ‘maintain with
respect to eligible participants . . . [Dresser’s] retiree
medical plan except to the extent that any modifications thereto
are consistent with changes in the medical plans provided by
[Halliburton] and its subsidiaries for similarly situated active
employees.’”
Less than a year after the effective date of the merger,
10
Halliburton started taking action to amend Dresser’s employee
benefit plans, including Dresser Plan 750. On July 16, 1999,
Halliburton agreed to assume the sponsorship of, adopt, and
continue Dresser Plan 750,5 along with other pension and welfare
benefit plans sponsored by Dresser as of January 1, 1999.
Included in this agreement was Halliburton’s promise to assume
“all powers, rights, duties, obligations, and liabilities of
Dresser” under the plans. The agreement also amended the plans
to vest the administration of the plans in the Halliburton
Company Benefits Committee and the power to amend or terminate
the plans in the Chief Executive Officer of Halliburton. The
agreement was executed by officers of Halliburton and was to
retroactively amend the Dresser plans effective January 1, 1999.
On December 31, 2002, Halliburton decided to combine the
separate welfare benefit plans by merging the Halliburton Plan
5
After the merger with Dresser, Halliburton automatically
could have succeeded Dresser as the plan sponsor under the terms
of Dresser Plan 750. Dresser Plan 750 contains a provision
entitled “Employer Successor,” which states that “[a]ny successor
entity to an Employer, by merger, consolidation, purchase or
otherwise, shall be substituted hereunder for such Employer.”
The plan defines “employer” as the “company,” and “company” as
“Dresser Industries, Inc. (d.b.a. Dresser) or any successor
entity by merger, consolidation, purchase, or otherwise unless
such successor entity elects not to adopt the plan.” (emphasis
added). In light of the terms of the merger agreement, which
named Dresser as the surviving corporation to Halliburton N.C.
and provided that Dresser shall possess all rights and
obligations as the surviving corporation, Halliburton apparently
elected not to adopt the plan through the merger agreement. The
July 1999 agreement therefore was necessary to substitute
Halliburton as the plan sponsor and give Halliburton all of
Dresser’s rights and obligations under the plan.
11
with Dresser Plan 750 and renaming it the Halliburton Energy
Services, Inc. Welfare Benefits Plan (“HESI Plan”). On January
1, 2003, Halliburton amended the HESI Plan so that various
subplans of Dresser Plan 750, including the Dresser Retiree
Medical Program, became constituent benefit programs of the HESI
Plan. Under the HESI Plan, “the Company reserve[d] the absolute
right to amend the Plan and any or all Constituent Benefit
Programs.”
In November 2003, over five years after the merger,
Halliburton, acting through its plan administrator, amended three
subplans of the Dresser Retiree Medical Program.6 As Halliburton
explained to the Dresser retirees:
Halliburton has maintained separate retiree medical plans
for Halliburton and Dresser retirees since the time of
the merger in 1998. The goal of future changes to the
Company’s retiree medical plans is to achieve parity for
all retirees. The changes described below to the Dresser
Retiree Medical Plan are intended to address the current
variations between the Halliburton and the Dresser
Retiree Medical Plans.
The amendments provided that effective January 1, 2004,
Halliburton’s contributions to the cost of medical coverage would
be frozen at the 2003 contribution amounts and that plan
participants would be responsible for any increase in the cost of
coverage. The amendments also provided that effective January 1,
2005, Dresser retirees who had attained the age of sixty-five and
6
Halliburton amended Subplans 501, 901, and 902, all of
which were listed in the HESI Plan as constituent benefit
programs for Dresser retirees.
12
were Medicare-eligible would be eligible for prescription drug
coverage only and that all other medical benefits would be
discontinued. Halliburton’s prescription drug coverage included
a monthly subsidy of $22 per covered adult toward the cost of
prescription drug coverage, which was the same subsidy provided
to Halliburton retirees with prescription drug only coverage. In
its 2003 annual report, Halliburton estimated that the amendments
decreased Halliburton’s obligation by $93 million in future
medical benefit costs.
On December 8, 2003, before the effective dates of the plan
amendments, Bryant, who had since retired, wrote Lesar, who had
since become Halliburton’s Chief Executive Officer and Chairman
of the Board. In his letter, Bryant asked Lesar to withdraw the
November amendments, contending that the amendments violated
section 7.09(g)(i) of the merger agreement because no comparable
modifications were made to the plans for Halliburton’s similarly
situated active employees. Lesar forwarded Bryant’s letter to
the Halliburton Company Benefits Committee (“Halliburton Benefits
Committee” or “Committee”) for consideration. On January 21,
2004, Michele Mastrean (“Mastrean”), the Committee chairperson,
responded to Bryant by letter, stating that the Committee was
denying his request to withdraw the November 2003 amendments
because it had concluded that Halliburton’s amendments to the
retiree program were consistent with its obligations under the
merger agreement. Specifically, the Committee determined that
13
section 7.09(g)(i) only limited Halliburton’s otherwise
unfettered right to amend the Dresser Retiree Medical Program for
a period of three years from the effective date of the merger
agreement, as provided in section 10.07. Accordingly, the
Committee concluded that there was nothing in the merger
agreement limiting its right to amend the Dresser Retiree Medical
Program.
B. Procedural History
On January 21, 2004, the same date as Mastrean’s letter to
Bryant, the Halliburton Benefits Committee initiated this
declaratory action in the district court against Bryant, James
Graves, and Phil Griffin, all of whom are participants in the
Dresser Retiree Medical Program, individually and as
representatives of a requested class. The Committee’s complaint
requested certification of a class of all participants (the
“Retirees”) in the Dresser Retiree Medical Program, i.e., the so-
called “grandfathered employees,” and sought declarations that
(1) Halliburton’s November 2003 amendments to the Dresser Retiree
Medical Program are permissible and do not violate the terms or
provisions of the HESI Plan, the merger agreement, or ERISA; and
(2) the merger agreement, including section 7.09(g)(i), does not
limit Halliburton’s right to amend or terminate the Dresser
Retiree Medical Program. The Committee invoked 29 U.S.C.
§ 1132(a)(1)(B), explaining that the “participants’ right to seek
14
judicial clarification of their right to future benefits arises
exclusively under [this section in] ERISA.”
On May 12, 2004, the Retirees filed counterclaims and third-
party claims against the Halliburton Benefits Committee and
Halliburton (collectively, “Halliburton”), requesting, inter
alia, declaratory and injunctive relief prohibiting any
modifications to the Dresser Retiree Medical Program “to the
extent any such modifications are inconsistent with medical
benefit plans provided to similarly situated active Halliburton
employees, and specifically prohibiting the implementation of the
November 2003 amendments to the Dresser Retiree Medical Plan.”
On August 18, 2004, the district court certified the class
to “consist[] of all people who were eligible to participate,
directly or indirectly, in the Dresser Retiree Medical Plan on
December 31, 1998.” On September 10, 2004, the parties filed
cross-motions for summary judgment. The Retirees’ motion for
partial summary judgment requested the district court to find as
a matter of law that the merger agreement requires Halliburton to
maintain the Dresser Retiree Medical Program in accordance with
section 7.09(g)(i) of the merger agreement. Halliburton’s motion
for summary judgment asked the district court to declare that:
(1) the no-third-party-beneficiary clause in the merger agreement
bars the Retirees from enforcing the terms of the merger
agreement; (2) only the parties to the merger agreement and the
directors designated in section 10.07 could enforce the merger
15
agreement, and the three-year window within which the directors
designated in section 10.07 were entitled to enforce section
7.09(g)(i) had expired; and (3) the merger agreement imposes no
limitation on Halliburton’s right to amend or terminate the
Dresser Retiree Medical Program. Halliburton also requested the
district court to dismiss the Retirees’ counterclaims with
prejudice.
On December 20, 2004, the district court granted partial
summary judgment in favor of the Retirees. The district court
found that the merger agreement modified the Dresser Retiree
Medical Program based on the signatures of the officers and the
approval of the agreement by the boards of directors and the
shareholders of both companies. According to the district court,
even if the merger agreement itself did not amend the retiree
program, Halliburton “waited until November 2003 to change the
plans for former Dresser workers” and “Halliburton’s wait shows
that it recognized the validity of the plan amendments for
employees that stemmed from the merger.” The district court
ordered that “Halliburton must maintain the Dresser Retiree
Medical Program for eligible participants and may adjust benefits
in that program only if it makes identical changes to benefits
for similarly situated active employees.”
On December 23, 2004, at the request of Halliburton, the
district court entered a separate order entitled “final
judgment,” which stated that “[t]he partial judgment dated
16
December 20, 2004, is severed and made final.” On January 24,
2005, Halliburton filed a notice of appeal.
C. Subsequent Proceedings
On June 21, 2006, this court dismissed Halliburton’s appeal
for lack of jurisdiction. See Halliburton Co. Benefits Comm. v.
Graves, No. 05-20088, 2006 WL 1751045 (5th Cir. June 21, 2006)
(unpublished). We concluded that the district court’s partial
summary judgment order neither disposed of any particular claim,
nor evidenced the district court’s intention to sever any
specific claim, as required by FED. R. CIV. P. 21, but instead
decided a legal issue common to the claims of both parties. Id.
at **2-3. We decided that we therefore lacked jurisdiction to
decide the merits of the district court’s interlocutory order
because the district court’s order was not “final” within the
meaning of 28 U.S.C. § 1291. Id. at *3.
On June 23, 2006, the Retirees moved the district court to
amend its order on partial summary judgment to include the
certification language contemplated by 28 U.S.C. § 1292(b) to
facilitate immediate appellate review. On June 26, 2006, the
district court amended its order to provide that it was “of the
opinion that [its order originally entered on December 20, 2004]
involves a controlling question of law as to which there is
substantial ground for difference of opinion and an immediate
appeal from the order may materially advance the ultimate
17
termination of the litigation, as contemplated by 28 U.S.C.
§ 1292(b) and FED. R. APP. P. 5(a)(3).” On July 5, 2006, within
ten days after the district court entered its amended order,
Halliburton filed an unopposed petition for permission to appeal,
which we granted. See 28 U.S.C. § 1292(b); FED. R. APP. P.
5(a)(3).
II. DISCUSSION
On appeal, Halliburton argues that section 7.09(g)(i) of the
merger agreement does not limit its right to amend, modify, or
terminate the Dresser Retiree Medical Program. Halliburton
contends that the district court’s contrary conclusion errs in
several respects. First, Halliburton maintains that the merger
agreement did not effect a plan amendment to the Dresser Retiree
Medical Program because the agreement was not signed by Dresser’s
Vice President of Human Resources, thus failing to follow the
amendment procedure in Dresser Plan 750. Second, Halliburton
asserts that under the plain language of the no-third-party-
beneficiary clause in section 10.07, the Retirees cannot enforce
any provision of the merger agreement, including section
7.09(g)(i). Halliburton claims that even if the merger agreement
did in fact amend the Dresser Retiree Medical Program, only the
parties to the merger agreement and the directors designated in
section 10.07 were entitled to enforce section 7.09(g)(i), and
the three-year window within which the directors could do so has
18
expired. Finally, Halliburton argues that the district court’s
order requiring Halliburton to maintain the program amounts to an
impermissible vesting of the Retirees’ benefits because there is
no temporal limitation on Halliburton’s requirement to continue
benefits under the program.
The Retirees respond that section 7.09(g)(i) amended the
Dresser Retiree Medical Program to limit the manner in which
Halliburton can make future amendments. More specifically, the
Retirees claim that section 7.09(g)(i) gave them a “right of
nondiscrimination” such that Halliburton cannot modify or
terminate the retiree program unless it makes the same changes to
the plans for similarly situated active employees of Halliburton.
The Retirees argue that the merger agreement meets all of the
procedural requirements set forth in Dresser Plan 750 for making
a plan amendment to the Dresser Retiree Medical Program, and that
in any event, Halliburton ratified the plan amendment by its
actions following the merger with Dresser. The Retirees further
contend that the no-third-party-beneficiary clause cannot deprive
them of their right to seek judicial clarification of the terms
of the program because it is ERISA that grants them that right
and not the merger agreement. According to the Retirees,
Halliburton’s argument that any amendment effected a three-year
obligation enforceable only by the parties to the agreement and
certain directors is not supported by the text of section
7.09(g)(i), which does not contain any temporal limitation on the
19
amendment to the retiree program and does not disclaim
enforcement by plan participants. Finally, the Retirees assert
that construing section 7.09(g)(i) as a plan amendment does not
constitute a vesting of their benefits because the amendment
still allows Halliburton to modify or terminate their benefits or
the plan as long as it makes the same changes to the benefits or
the plans of similarly situated active employees.
We will address each argument in turn. In making these
determinations, we review questions of law de novo. See Nickel
v. Estes, 122 F.3d 294, 298 (5th Cir. 1997) (reviewing
interpretation of ERISA plan terms de novo); Arleth v. Freeport-
McMoran Oil & Gas Co., 2 F.3d 630, 633 (5th Cir. 1993) (reviewing
interpretation of merger agreement governed by Delaware General
Corporation Law de novo).
A. Effect of the Merger Agreement on Dresser Retiree Medical
Program
1. Consequences of the Merger Agreement
Inherent in Halliburton’s argument that section 7.09(g)(i)
does not limit its right to amend the Dresser Retiree Medical
Program is the assumption that it possesses the right to amend or
terminate the retiree program in the first place. Because this
right is not so apparent under the terms of the merger agreement,
we begin here.
When companies merge under Delaware General Corporation Law,
the surviving corporation succeeds to both the rights and
20
obligations of the constituent corporation, including rights and
obligations of every nature, whether they be in contract or in
tort. See DEL. CODE. ANN. tit. 8, § 259(a) (2001); 15 WILLIAM MEADE
FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS
§§ 7082, 7115 (perm. ed., rev. vol. 1999) [hereinafter 15 FLETCHER
CYCLOPEDIA]. Such rights and obligations include those associated
with a company’s welfare benefit plan. Cf. EDWARD P. WELCH & ANDREW
J. TUREZYN, FOLK ON THE DELAWARE GENERAL CORPORATION LAW § 259.1 (2006)
(stating that the surviving or new corporation has “sole
possession of all rights and powers of the constituent
corporations”) (emphasis added); 15 FLETCHER CYCLOPEDIA § 7115
(noting that obligations assumed include those arising from
contracts of every kind). One of the rights generally reserved
under a welfare benefit plan is the company’s right to amend or
terminate the plan. See Curtiss-Wright Corp. v. Schoonejongen,
514 U.S. 73, 78 (1995) (noting that because ERISA does not create
any substantive entitlement to employer-sponsored health benefits
or any other kind of welfare benefits, “[e]mployers or other plan
sponsors are generally free under ERISA, for any reason at any
time, to adopt, modify, or terminate welfare plans”).
Dresser Plan 750 included such a provision, reserving the
right for the company to amend or terminate its welfare benefit
programs, including the Dresser Retiree Medical Program, at any
time. Halliburton did not, however, succeed to Dresser’s right
to amend or terminate its welfare plans via the merger agreement
21
or Delaware law. Rather, the merger agreement specified that
“the separate corporate existence of [Halliburton N.C.] shall
cease and [Dresser] shall continue as the Surviving Corporation.”
The agreement also explained that Dresser, as the surviving
corporation, shall succeed to “all the property, rights,
privileges, powers and franchises” and “all debts, liabilities
and duties” of the two merged corporations. It was not until
January 1999, three months after the effective date of the
merger, that Halliburton, as the parent corporation, acquired
Dresser’s rights and obligations under its employee benefit
plans, including Dresser’s right to amend or terminate its
welfare benefit plans. In a separate agreement dated July 16,
1999,7 Halliburton agreed to assume all of Dresser’s employee
benefit plans, including Dresser’s welfare plans governed by
Dresser Plan 750. In addition to assuming the sponsorship of all
employee benefit plans, Halliburton acquired “all powers, rights,
duties, obligations, and liabilities of Dresser” under the plans,
which included, inter alia, Dresser’s right to amend or terminate
the plans. It is this post-merger agreement--and not the merger
agreement itself–-that gives Halliburton the right to amend or
terminate the Dresser Retiree Medical Program.
7
Although Halliburton’s separate agreement to assume,
adopt, and amend Dresser’s employee benefit plans is dated July
16, 1999, the agreement specified that it was to be effective as
of January 1, 1999, which was approximately three months after
the effective date of the merger.
22
The post-merger agreement not only gave Halliburton a right
to amend or terminate the retiree program, but it also imposed a
concomitant obligation on Halliburton to maintain the program
according to its terms. Cf. 15 FLETCHER CYCLOPEDIA § 7115 (noting
that obligations assumed include those arising from contracts of
every kind). The terms of the retiree program are at the center
of this dispute, as the parties disagree over whether section
7.09(g)(i) of the merger agreement amended the retiree program in
such a way as to limit Halliburton’s otherwise unfettered right
to amend or terminate the plan. We therefore must determine
whether section 7.09(g)(i) effectively amended the Dresser
Retiree Medical Program so that Halliburton may amend or
terminate the program only to the extent it makes the same
changes to the plans for its similarly situated active employees.
2. Merger Agreement as a Plan Amendment
a. Amendment by Plan Procedure
In order to amend a welfare benefit plan governed by ERISA,
the employer must “provide a procedure for amending such plan,
and for identifying the persons who have authority to amend the
plan.” 29 U.S.C. § 1102(b)(3). ERISA imposes no additional
formalities on plan amendments. See Curtiss-Wright Corp., 514
U.S. at 80 (stating that ERISA “requires only that there be an
amendment procedure”). In particular, there is no requirement
that a document claimed to be an amendment to a welfare plan be
23
labeled as such. See Horn v. Berdon, Inc. Defined Benefit
Pension Plan, 938 F.2d 125, 127 (9th Cir. 1991); see also JOHN F.
BUCKLEY, ERISA LAW ANSWER BOOK 5-7 (5th ed. 2006) [hereinafter ERISA
LAW ANSWER BOOK] (“[A]ny act that is directed to a provision of an
ERISA plan may be deemed to constitute a plan amendment even
though it does not recite that it is intended to amend the plan
and it is not included in a plan document.”). Clearly then, a
provision in a merger agreement could amend a welfare plan, even
if it is not labeled as a plan amendment. See Beck v. Dillard
Dep’t Stores, Inc., 1991 WL 72784, at *1 (E.D. La. May 1, 1991)
(unpublished) (stating that the companies “were at liberty to
clarify their existing Plan in the context of the merger” and
noting that the merged company’s severance policy was clarified
as part of the merger agreement); cf. Miss. Power Co. v. Nat’l
Labor Relations Bd., 284 F.3d 605, 622 (5th Cir. 2002)
(anticipating that an obligation to continue the retirees’
medical insurance coverage or to maintain the type or terms of
coverage might “be found in some other document”). However, only
an amendment executed in accordance with the plan’s procedures is
effective. Williams v. Plumbers & Steamfitters Local 60 Pension
Plan, 48 F.3d 923, 926 (5th Cir. 1995); cf. Curtiss-Wright Corp.,
514 U.S. at 85 (“[W]hatever level of specificity a company
ultimately chooses, in an amendment procedure or elsewhere, it is
bound to that level.”).
The amendment procedure in Dresser Plan 750, the governing
24
plan for the Dresser Retiree Medical Program, provides that
“[t]he Company may amend, modify, change, revise, discontinue or
terminate the Plan or any Benefit Agreement at any time by
written instrument signed by the Vice President, Human
Resources.” Another provision in the plan reiterates that “[t]he
Company shall have overall responsibility for the establishment,
amendment and termination of any Benefit or of the Plan . . . .”
When an amendment procedure says the plan may be amended by
“[t]he Company,” “principles of corporate law provide a ready-
made set of rules for determining, in whatever context, who has
authority to make decisions on behalf of a company.” Curtiss-
Wright Corp., 514 U.S. at 80. In making this determination, we
are mindful that
[t]he answer will depend on a fact-intensive inquiry,
under applicable corporate law principles, into what
persons or committees within [the corporation] possessed
plan amendment authority, either by express delegation or
impliedly, and whether those persons or committees
actually approved the new plan provision . . . . If the
new plan provision is found not to have been properly
authorized when issued, the question would then arise
whether any subsequent actions . . . served to ratify the
provision ex post.
Id. at 85 (internal citation omitted).
Under corporate law principles, officers generally have
authority to take action on behalf of the company when that
action is approved by the board of directors. See 2 WILLIAM MEADE
FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 437
(perm. ed., rev. vol. 2006) [hereinafter 2 FLETCHER CYCLOPEDIA]
25
(stating that an officer’s authority as an agent for the
corporation “may be implied from [his] conduct and the
acquiescence of the directors”). Drawing on these principles, we
have no trouble concluding that section 7.09(g)(i) of the merger
agreement amended the Dresser Retiree Medical Program to provide
that Halliburton must maintain the retiree program for eligible
participants except to the extent that any modifications are
consistent with changes in the medical plans provided by
Halliburton for similarly situated active employees. The
agreement was signed by Bradford, Dresser’s Chief Executive
Officer and Chairman of the Board of Directors, and approved by
Dresser’s Board of Directors. These individuals had authority to
act on behalf of the company, and their actions effectively
amended the retiree program. See id. § 439 (“A resolution of the
board of directors is sufficient to show express authority in a
corporate agent or officer . . . .”).
Halliburton nevertheless maintains that section 7.09(g)(i)
could not have amended the retiree program because the merger
agreement was not signed by Dresser’s Vice President of Human
Resources. Halliburton contends that “an act by ‘the Company’ is
not sufficient; Dresser’s procedure requires a writing by the
Vice President of Human Resources.” Halliburton misreads
Dresser’s amendment provision, which vests the authority “to
amend, modify, change, discontinue or terminate” the benefit
programs in the company itself and not in the Vice President of
26
Human Resources. The reference to the Vice President constitutes
a delegation of authority for one way in which “[t]he Company”
may amend the plan. It does not, however, constitute the only
way in which the company may amend the plan. Cf. id. § 495
(“[T]he appointment of such an officer does not mean that the
board has completely abdicated its authority.”) (citing In re
Walt Disney Co. Derivative Litig., 2005 WL 2056651, at *49 n.574
(Del. Ch. Aug. 9, 2005) (unpublished)). Under corporate law
principles, Dresser could revoke its delegation of authority and
act to amend the plan in some other manner. See id. § 437.10 (“A
principal who employs an agent always retains the power to revoke
the agency.”); id. § 495 (“[T]he board constitutes the
corporation and does not . . . exercise a delegated authority.”).
This interpretation of the Dresser amendment provision is
consistent not only with corporate law principles, but also with
other provisions in the plan. Section 6.14, entitled “Action by
the Company,” provides that
[a]ny action by the Company pursuant to any of the
provisions of this Plan shall be evidenced by a
resolution of its Board of Directors over the signature
of its secretary or assistant secretary, by written
direction of the Chairman of the Board of Directors, or
by written instrument executed by any person authorized
by the Board to take such action.
The plan amendment procedure essentially designated the latter--
i.e., “written instrument executed by any person authorized by
the Board to take such action”--as the way in which the company
could amend the plan. It stated that “[t]he Company may amend
27
. . . the Plan or any Benefit Agreement at any time by written
instrument signed by the Vice President.” However, as evidenced
by the plan provision on delegation of responsibility, the
company had the authority not only to “delegate, from time to
time, all or any part of its responsibilities under the Plan to
such person or persons as it may deem advisable,” but also to
“revoke any such delegation or responsibility.” Put another way,
a “written instrument executed by any person authorized by the
Board to take such action” was only one of the ways in which
Dresser could act to amend the plan. Dresser always had the
authority to revoke the Vice President’s authority and to
evidence its action to amend the plan in some other authorized
way, such as by resolution of the board of directors or by
written direction of the chairman of the board of directors.
Accordingly, Dresser’s Board of Directors’ approval and
Bradford’s signature on the merger agreement, as the Chairman of
the Board of Directors, were more than sufficient to constitute
an action by the company to amend the plan. Cf. ERISA LAW ANSWER
BOOK 5-7 (“[I]t would be difficult to argue that an action by the
board of directors of an entity would not, even in the absence of
specific authority, constitute a valid act of amendment of the
plan.”).
Halliburton’s position that Dresser could amend its welfare
plans only through a signed writing of the Vice President of
Human Resources is especially curious in light of its own
28
actions. On at least two occasions following the merger,
Halliburton purportedly amended Dresser Plan 750 without a
written instrument signed by the Vice President of Human
Resources. First, on July 16, 1999, Halliburton amended Dresser
Plan 750 to name the Halliburton Company Benefits Committee as
the plan administrator and to vest the power to amend or
terminate the welfare plans in the Chief Executive Officer of
Halliburton. That amendment was signed by Lesar and not by the
Vice President of Human Resources. Similarly, on December 31,
2002, Halliburton made several amendments to Dresser Plan 750,
none of which was signed by the Vice President. Thus, as
illustrated by its own actions, even Halliburton has recognized
that under the amendment provision in Dresser Plan 750, the
Dresser welfare plans may be amended by procedures other than a
writing signed by the Vice President of Human Resources.
b. Amendment by Ratification
In any event, even if the Vice President’s signature had
been required for section 7.09(g)(i) to amend the retiree
program, Halliburton’s subsequent actions served to ratify the
provision ex post. See Curtiss-Wright Corp., 514 U.S. at 85 (“If
the new plan provision is found not to have been properly
authorized when issued, the question would then arise whether any
subsequent actions, such as the executive vice president’s
letters informing respondents of the termination, served to
29
ratify the provision ex post.”); see also 2A WILLIAM MEADE FLETCHER,
FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 764.10 (perm. ed.,
rev. vol. 2001) [hereinafter 2A FLETCHER CYCLOPEDIA] (“A corporation
may bind itself by ratifying an act done by an agent of its
subsidiary company.”). Under the doctrine of ratification, “[a]
corporation may render itself liable for unauthorized acts of its
officers by subsequently ratifying them.” 2 FLETCHER CYCLOPEDIA
§ 434; see Depenbrock v. Cigna Corp., 389 F.3d 78, 83 (3d Cir.
2004) (“The doctrine of ratification provides that an improperly
authorized amendment may be ratified ex post by subsequent
acts.”).
Halliburton ratified section 7.09(g)(i) as an amendment to
the Dresser Retiree Medical Program in at least two ways.8
First, the shareholders of Halliburton and Dresser approved the
merger agreement on June 25, 1998, four months after the
8
Halliburton argues that this court cannot consider “parol
evidence” in determining whether section 7.09(g)(i) amended the
Dresser Retiree Medical Program. Halliburton is correct that
extrinsic evidence is not admissible to interpret unambiguous
plan documents. See ERISA LAW ANSWER BOOK 2-8 (noting that “[t]he
unambiguous written provisions of a plan must control, and
extrinsic evidence cannot be introduced to vary express terms of
a plan”).
However, evidence that tends to show subsequent
ratification of a plan amendment is admissible. See 2A FLETCHER
CYCLOPEDIA § 778 (“Where the act of a corporate officer or agent
was unauthorized or irregular, any competent and material
evidence is admissible which tends to show a subsequent
ratification by officers having authority to ratify or by
shareholders where they may ratify. . . . If the ratification was
implied, the conduct of the corporate officers and directors
tending to show implied ratification is admissible.”).
30
agreement was executed, thereby ratifying the amendment to the
extent it was unauthorized. See 2A FLETCHER CYCLOPEDIA § 764 (“The
shareholder may ratify unauthorized or irregular acts of the
directors or of other corporate officers . . . by vote at a
shareholders’ meeting . . . .”); cf. 2 FLETCHER CYCLOPEDIA § 437
(noting that the corporation acts through the action of its
shareholders and managing board).
Second, Halliburton administered its obligations under the
Dresser Retiree Medical Program consistent with section
7.09(g)(i). In the five years following the merger agreement,
Halliburton maintained separate retiree medical plans for
Halliburton and Dresser retirees, and admitted to doing so in a
November 2003 letter to the Retirees. Prior to November 2003,
Halliburton never attempted to amend the retiree program in a way
that was inconsistent with its obligation under section
7.09(g)(i). In fact, Halliburton’s correspondence on the
provision shows that the company was mindful of its obligations
under the merger agreement. For example, Colgan’s February 16,
1999, letter to Ables, one of the Dresser retirees, noted that
Halliburton was mindful of its obligation to maintain the retiree
medical plan, except to the extent it made identical
modifications to the medical plans for similarly situated active
employees. Therefore, to the extent it is necessary,
Halliburton’s ex post actions ratified section 7.09(g)(i) as a
valid plan amendment.
31
B. Enforceability of Section 7.09(g)(i) as a Plan Amendment
1. Effect of the No-Third-Party-Beneficiary Clause
Halliburton maintains that under the plain language of the
no-third-party-beneficiary clause in section 10.07 of the merger
agreement, the Retirees cannot enforce any provision of the
agreement, including section 7.09(g)(i). Halliburton argues that
even assuming the agreement amended the Dresser Retiree Medical
Program, only the parties to the merger agreement and the
directors designated in section 10.07 were entitled to enforce
section 7.09(g)(i), and the three-year window within which the
directors could do so has expired.
We cannot agree. First, Halliburton’s contention that the
Retirees are precluded by section 10.07 from enforcing section
7.09(g)(i) wrongfully equates a plan participant’s enforcement of
a plan right under ERISA with a third party’s enforcement of a
provision in a contract. The Retirees are not seeking to enforce
a breach of contract claim under the merger agreement. As they
recognize, principles of preemption prevent them from doing so.
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62 (1987) (holding
that a contract claim is preempted by ERISA if the claim
“relate[s] to [an] employee benefit plan”). Instead, they seek a
clarification of their rights to future benefits under the terms
of the retiree program. See 29 U.S.C. § 1132(a)(1)(B) (stating
that a civil action may be brought by a participant or
32
beneficiary under ERISA “to enforce his rights under the terms of
the plan, or to clarify his rights to future benefits under the
terms of the plan”). The detailed provisions of § 1132(a)(1)(B)
“set forth a comprehensive civil enforcement scheme” that was
“intended to be exclusive.” Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 54 (1987). Simply put, enforcement of a plan’s
provisions, including any amendments thereto, falls exclusively
in ERISA’s remedial scheme. See Morales v. Pan Am. Life Ins.
Co., 914 F.2d 83, 87 (5th Cir. 1990) (“ERISA’s civil enforcement
provision creates an exclusive remedial scheme focusing on the
terms of the plan.”). To adopt Halliburton’s argument that a
provision in a contract, or more specifically, a no-third-party-
beneficiary clause, can trump rights prescribed by ERISA would
fly in the face of the exclusive remedial scheme prescribed by
Congress for plan participants and beneficiaries to enforce
rights under employee benefit plans.9 Cf. Dallas County Hosp.
9
Halliburton relies on two cases, neither of which is
controlling here. First, Halliburton cites In re Fairchild
Indus., Inc. & GMF Invs., Inc., ERISA Litig., 768 F. Supp. 1528,
1533 (N.D. Fla. 1990), a case in which the district court
rejected the plaintiff’s argument that a purchase agreement
constituted a plan amendment “[b]ecause ERISA prohibits the
amendment of an employee benefit plan through informal written
documents, or by any other means except as specified in the plan
documents themselves . . . .” The court noted that its
conclusion was “buttressed by the contracting parties’ clearly
expressed intent not to create any third party rights by
executing the agreement.” Id. at 1533.
The district court’s reliance on the no-third-party-
beneficiary clause was not dispositive to its holding; rather, it
relied on the informality of the purported amendment and the fact
that the amendment was not executed in accordance with the plan
33
Dist. v. Assocs.’ Health & Welfare Plan, 293 F.3d 282, 289 (5th
Cir. 2002) (stating that whether a party is a beneficiary under a
contract, which is not itself an ERISA plan, “is of no relevance
in determining whether it is an ERISA beneficiary”).
Second, Halliburton’s claim that only certain parties were
entitled to enforce section 7.09(g)(i) for a three-year period is
not supported by the express language in the merger agreement.10
Section 10.07 provides that notwithstanding its prohibition on
third-party beneficiaries, certain directors are entitled “to
documents, concluding that “the Purchase Agreement could not
legally operate to amend the plan documents.” Id. Such is not
the case here, where the parties executed section 7.09(g)(i) in
accordance with the amendment procedures in Dresser Plan 750. In
addition, to the extent In re Fairchild holds that ERISA imposes
formalities on plan amendments, the Supreme Court rejected such
an approach in Curtiss-Wright Corp., 514 U.S. 73.
Moreover, we cannot give any weight to Halliburton’s
reliance on LaFata v. Raytheon Co., 147 F. App’x 258, 261 (3d
Cir. 2005) (unpublished), because that decision has nothing to do
with amendments to an ERISA plan.
10
Before the district court, Halliburton initially took
the position that section 7.09(g)(i) of the merger agreement had
in fact amended the plan, but that it had done so for only a
three-year period. See 8 Rawle 292-306, Am. Compl. ¶ 16 (stating
that “[c]ertain provisions of the Halliburton/Dresser Merger
Agreement described permissible amendments to Dresser’s welfare
benefit programs during a three-year period following the
effective date of the merger”); id. ¶ 31 (“The Merger Agreement
contains certain provisions that limited Halliburton’s ability to
change or terminate the Dresser Retiree Program benefits for a
period of three years.”); id. ¶ 33 (“As a result of these
provisions [including section 7.09(g)(i)], Halliburton committed
to maintain the Dresser Retiree Program, save for changes
consistent with changes to the benefits of ‘similarly situated
active employees,’ for a period of three years.”). In front of
this court, however, Halliburton has argued that the merger
agreement did not amend the retiree program, but that if it did,
it did so for only three years pursuant to section 10.07.
34
enforce the provisions of Sections 7.09 and 7.13 on behalf of
[Dresser’s] officers, directors, and employees” during the three-
year period following the effective date of the merger. The
problem with Halliburton’s argument is that it does not give
effect to the language in section 7.09(g)(i), the provision
directed at the retiree medical plan. The explicit language in
section 7.09(g)(i) does not contain any temporal limitation on
its enforcement and does not disclaim enforcement by plan
participants. Rather, it simply states that Halliburton shall
cause the Surviving Corporation to take all corporate action
necessary to maintain the Dresser Retiree Medical Program,
“except to the extent that any modifications thereto are
consistent with changes in the medical plans provided by
[Halliburton] and its subsidiaries for similarly situated active
employees.”
A comparison of section 7.09(g)(i) with the section
succeeding it, section 7.09(h), provides further support that the
parties did not intend to impose any enforcement limitations on
the retiree program, other than the one expressly provided for in
section 7.09(g)(i). Section 7.09(h) requires Halliburton to
provide Dresser employees with benefits comparable to similarly
situated Halliburton employees “until the third anniversary of
the effective time” of the merger agreement. Section 7.09(h) is
significant because it illustrates that the parties knew how to
limit the duration of Halliburton’s obligation for Dresser
35
employees, in connection with section 10.07 of the agreement. In
drafting the sections in 7.09, the parties carefully drew a
distinction between employees and retirees. To construe
“employees” in section 10.07 to include “retirees” in order to
impose a three-year limitation on the obligations under the
retiree program would render section 7.09(g)(i) meaningless and
unnecessary in light of section 7.09(h). We decline to read a
three-year requirement into section 7.09(g)(i).
2. Consequences of the Plan Amendment
Finally, Halliburton misconstrues section 7.09(g)(i) as a
grant of “permanent benefits.” Halliburton argues that section
7.09(g)(i) violates the prohibition in the merger agreement on
vested benefits and that, in any event, there is no clear
intention to vest benefits under section 7.09(g)(i) as required
by Spacek v. Mar. Ass’n, 134 F.3d 283, 293 (5th Cir. 1998),
abrogated on other grounds by, Cent. Laborers’ Pension Fund v.
Heinz, 541 U.S. 739 (2004). Section 7.09(g)(i) states that
Halliburton must maintain the Dresser Retiree Medical Program,
“except to the extent that any modifications thereto are
consistent with changes in the medical plans provided by
[Halliburton] and its subsidiaries for similarly situated active
employees.” To argue that this provision constitutes vesting
amounts to a misunderstanding of what it means to “vest” a right
or benefit under ERISA. An employer “vests” a benefit under
36
ERISA when it intends to confer unalterable and irrevocable
benefits on its employees, and it does so by using clear and
express language. See Spacek, 134 F.3d at 293 (stating that
“courts may not lightly infer an intent on the part of a plan to
voluntarily undertake an obligation to provide vested,
unalterable benefits”) (internal alterations, quotation marks,
and citation omitted). Nothing in section 7.09(g)(i) requires
Halliburton to maintain the retiree program indefinitely; rather,
Halliburton is free, at any time and for any reason, to amend or
terminate the program, as long as it does the same for its
similarly situated active employees.11 Because Halliburton may
modify or terminate the program, the benefits have not vested.
See Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 565 (7th
Cir. 1995) (“If a contract provides that benefits can be
terminated, then those benefits do not vest.”).
Nor is it problematic that section 7.09(g)(i) precludes
future amendment or termination of the plan, except as consistent
with the provision’s terms. Employers generally are free under
11
Accordingly, section 7.09(g)(i) does not violate the
other terms in the merger agreement. Sections 4.13(j) and
5.13(j) of the agreement make clear that the merger agreement
does not “create or give rise to any additional vested rights.”
Under section 6.02(a)(i) and (b)(i) of the agreement, Dresser and
Halliburton covenanted not to amend any employee benefit plans to
vest any employee benefits under such plans. That section
7.09(g)(i) amended the Dresser Retiree Medical Program is not
inconsistent with these provisions because the amendment does not
give rise to vested rights, but merely limits the way in which
Halliburton can amend or terminate the retiree program.
37
ERISA to modify or terminate plans, but if the plan sponsor cedes
its right to do so, it will be bound by that contract. See
Vasseur v. Halliburton Co., 950 F.2d 1002, 1006 (5th Cir. 1992);
see also Hughes v. 3M Retiree Med. Plan, 281 F.3d 786, 790 (8th
Cir. 2002) (“An employer offering welfare benefits may
unilaterally modify or terminate benefits at the employer’s
discretion, so long as the employer has not contracted an
agreement to the contrary.”); 2 MICHAEL J. CANAN, QUALIFIED RETIREMENT
PLANS § 24:134 (2006) (“[Welfare benefit plans] can be amended or
terminated by the employer provided there is no contractual
obligation that prevents such an amendment.”). This court has
recognized that a reservation-of-rights clause in a plan
document, which allows a company to amend or terminate a plan at
any time, “cannot vitiate contractually vested or bargained-for
rights. To conclude otherwise would allow the company to take
away bargained-for rights unilaterally.” Int’l Ass’n of
Machinists & Aerospace Workers v. Masonite Corp., 122 F.3d 228,
233 (5th Cir. 1997) (emphasis added).
We decline to allow Halliburton to unilaterally take away
the “bargained-for rights” that Dresser and Halliburton
negotiated and made on the retiree program as part of their
merger agreement. The parties were free to impose contractual
obligations on the right to amend or terminate the Dresser
Retiree Medical Program, and they did. See id. Because of these
limitations, Halliburton cannot alter the retiree program, except
38
as consistent with the plan as amended by section 7.09(g)(i).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the Amended Order on
Partial Summary Judgment of the district court.
39 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3400380/ | 1. Since the act of 1931 (Ga. L. 1931, p. 153; Code, § 67-1305), the effect of failure to record a security deed, as against ordinary judgment liens, is the same as the effect of failure to record a deed of bargain and sale, with the result of restoring the rule before the act of 1889 (Ga. L. 1889, p. 106; Code 1910, § 3320), under which present rule an unrecorded security deed is given priority except as against subsequent deeds by the same grantor, and except as hereinafter indicated.
(a) Under the statutes relating to materialmen's liens and the recording statutes, the bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the record of the materialman's claim of lien, will take priority over the materialman's claim of lien, although the security deed was itself not recorded until after the first material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of his deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed.
(b) Even if the question of actual notice to a security-deed holder would *Page 371
be pertinent, where he took the instrument before the delivery of the first material and did not record it until thereafter, but before the materialman's claim of lien was recorded, the instant petition of such materialmen against holders under a security deed failing to show any actual notice to the deed holders before its record, the priority of such holders was properly sustained.
(c) The priority of such deed claimants was not affected by the fact that all of the money secured by the deed was not paid to the debtor at the time of its execution.
2. The petition failing to attack the validity of the security deed, and attacking merely a foreclosure deed, executed by virtue of a power in the security deed, as a conveyance to hinder, delay, and defraud creditors under an alleged fraudulent conspiracy between the grantee in the security deed, the grantee in the foreclosure deed, and the debtor executing the security deed, no sufficient facts were alleged to support the general charges of the pleader as to fraud.
3. In the additional attack on the validity of the foreclosure deed and sale under the security deed, on account of an alleged chilling of the bidding, the petition also failed to show facts such as would invalidate the sale.
4. Under the preceding rulings, the court did not err in dismissing the action on general demurrer.
No. 14107. JULY 14, 1942. REHEARING DENIED JULY 25, 1942.
Two materialmen, creditors of J. W. Cobb, filed an equitable petition against him and against Northwest Atlanta Bank and B. S. Barker, praying for cancellation of a foreclosure deed from the bank to Barker, executed under a power of attorney under a previous security deed from Cobb to the bank; and praying for an injunction against any change of title pending the litigation. It was alleged, that on June 11, 1940, Cobb executed to the bank a deed conveying the described land, to secure a debt of $1,800; that this deed was recorded on June 17, 1940; that the $1,800 loaned was not paid to Cobb on the date of the loan, but "payments were made after material had been furnished [by petitioners] and was being used upon said premises, all of which was known to defendant bank;" that approximately $300 is still held by the bank; that petitioners furnished materials for the improvement of said property, and filed their claims of lien, one for $368.71, and the other for $108.34; that one of plaintiffs began to deliver material on June 13, 1940; and that "such delivery constituted implied notice to the defendant . . bank that material was being furnished and the plaintiffs' claims of lien." It was further alleged that *Page 372
when the house on the premises was about two-thirds completed, "the improvements . . were stopped by litigation involving the property lines," filed in said court, between a third person and the debtor; and that "petitioners each have a judgment which has been made a special lien against the property improved." There is no additional averment as to the nature of this judgment or special lien; and there is no allegation as to when the materialmen's liens were recorded, or when the suit in which judgment was obtained was filed. While the validity of the original security deed from Cobb to the bank is not attacked, petitioners claim priority under their alleged materialmen's liens, and allege that they "rank superior to any claim of the defendants and should be so decreed."
In attacking the validity of the foreclosure deed made by the bank to Barker as purchaser at a sale under a power in the security deed, the original petition alleged: that the bank "did secretly during the pendency of said litigation [as to property lines] endeavor to sell the [said property] under an alleged power of attorney from [Cobb], and did, on or about the 16th of January, 1941, as will appear of record in deed book 531, page 383, clerk's office, . . make an alleged deed to the defendant . . Barker at and for a named consideration of $1,500 upon a foreclosure of an alleged indebtedness of $1,800;" that said "effort to collect an indebtedness of $1,800 constitutes a misrepresentation of a material fact, calculated to and which actually would and did chill bidding on said property;" that "said Barker was at all times herein set forth employed by and an agent for the defendant bank;" that Barker "did not pay a cash consideration of $1,500 for said property, and that the alleged sale was really a sale to the defendant bank;" that Cobb, the debtor, "was informed by the defendant bank that the foreclosure was for the sole purpose of putting title in the defendant . .Barker, in order that he might intervene in the above-stated litigation over the property line, . . and that materialmen's liens would not be affected thereby but would be paid off;" and that by reason of the facts alleged the foreclosure deed of January 16, 1941, from the bank to Barker, purporting to convey the property "for an alleged consideration of $1,500, fully appearing in [said deed book], is null and void." It was also alleged that plaintiffs have "no full, adequate, and complete remedy at law." *Page 373
By amendment of the petition it was further set forth, that Barker "was not present at the time of the alleged sale, and did not personally bid upon the property, but had a secret understanding with the defendant bank that a bid would be offered, by an unknown bidder, in his behalf, for not over $1,500, and that he would be excused from paying cash for the premises sold, although the advertised sale was for cash;" that Barker "did not pay cash at said sale, but was allowed to execute a note therefor dated February 4, 1941;" that "a sale under the circumstances herein set forth is calculated to, and, as petitioners charge, actually did chill the bidding and constitute an unfair and fraudulent sale, being a sale upon terms other than those upon which the public and other bidders were invited to bid upon the property;" and that "the defendants' acts, taken together, constitute a fraudulent conspiracy to hinder, delay, and defraud petitioners and other creditors out of the value of the material furnished and used to improve said real estate," and, "if allowed to stand, will . . also give the defendant bank a preference."
The defendant bank and Barker demurred to the petition as amended, on the grounds that it stated no cause of action; that there was no equity in the petition; that the petition showed the existence of a complete and adequate remedy at law; that the facts stated did not constitute fraud on the part of the defendants; that there was no allegation as to any tender of the amount admitted to be due to the defendant bank; and that there was no allegation of insolvency as to either the bank or Barker. The plaintiffs excepted to the dismissal of the action on this demurrer.
1. "Every deed to secure debt shall be recorded in the county where the land conveyed lies. . . Deeds or bills of sale not recorded remain valid against the persons executing them. The effect of failure to record such deeds and bills of sale shall be the same as is the effect of failure to record a deed of bargain and sale." Code, § 67-1305. The statute with reference to the record of a deed of bargain and sale is as follows; "Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the land lies. The record may be made at any time, but such deed loses its priority *Page 374
over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first." § 29-401. It thus appears that the penalty of failure to record a deed of bargain and sale has reference only to the rights of a subsequent vendee, taking a deed from the same vendor without notice of the existence of the prior unrecorded deed; and it has been held that the provision of the Code, § 67-2501, declaring that "deeds, mortgages, and liens of all kinds, which are required by law to be recorded in the office of the clerk of the superior court, shall, as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk's office," has reference only to liens arising by contract, and not to judgments.Donovan v. Simmons, 96 Ga. 340 (22 S.E. 966); Griffith
v. Posey, 98 Ga. 475, 476 (25 S.E. 515). Thus, under the original recording laws, it was held that the failure to record a security deed did not postpone the deed to a judgment obtained after its execution, any more than the failure to record an ordinary deed of bargain and sale. Phinizy v. Clark, 62 Ga. 623
(3), 627; Gibson v. Hough, 60 Ga. 588, 593; Lowe v.Allen, 68 Ga. 225 (b), 227; Davie v. McDaniel, 47 Ga. 195
(5); Smith v. Worley, 10 Ga. App. 280 (2), 282 (73 S.E. 428). But under the subsequent recording act of 1889 (Ga. L. 1889, p. 106; Civil Code of 1910, § 3320), it was held that a judgment would take priority over an unrecorded security deed.Saunders v. Citizens First National Bank, 165 Ga. 558, 565
(142 S.E. 127); Coley v. Altamaha Fertilizer Co., 147 Ga. 150
(93 S.E. 90). However, under the present recording act of 1931 (Ga. L. 1931, p. 153), as embodied in the Code, § 67-1305, providing that "the effect of failure to record such [security] deeds and bills of sale shall be the same as is the effect of failure to record a deed of bargain and sale," the result is to restore the rule as it originally existed, thus giving priority to the unrecorded security deed except as against subsequent deeds by the same grantor. See Walker County Fertilizer Co. v.Napier, 184 Ga. 861, 865 (193 S.E. 770).
(a) Under the Code, § 67-2002, in order "to make good the liens specified in section 67-2002, in favor of materialmen and others, "they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall *Page 375
not be effective: . . The recording of his claim of lien within three months after the completion of the work, or within three months after such material . . is furnished, in the office of the clerk of the superior court . . [and] the commencement of an action for the recovery of the amount of his claim within twelve months from the time the same shall become due." It has been held that after the lien of a materialman is thus made good, it then attaches from the time the materialman commenced to deliver material. Picklesimer v. Smith, 164 Ga. 600 (139 S.E. 72). But it has also been held, with reference to a bona fide purchaser of the absolute title under an unrecorded deed, that such a purchaser, with no actual notice at the time his conveyance was executed as to a then unrecorded materialman's lien upon the same property, takes the property free of such lien. Ashmore v. Whatley, 99 Ga. 150 (24 S.E. 941);Oglethorpe Savings Trust Co. v. Morgan, 149 Ga. 787, 790
(102 S.E. 528); Willingham-Tift Lumber Co. v. Barnes,147 Ga. 209 (2) (93 S.E. 201); Dwight v. Acme Lumber SupplyCo., 186 Ga. 825 (199 S.E. 178); Frazer v. Jackson,46 Ga. 621. The same rule has been applied, and the same priority allowed, as to the vendee under an unrecorded security deed, whose rights under the present recording statutes, as pointed out in paragraph 1 above, are the same as the rights of a purchaser of the absolute title. Milner v. Wellhouse, 148 Ga. 275
(96 S.E. 566); Guaranty Investment Co. v. Athens EngineeringCo., 152 Ga. 596 (6, 7) (110 S.E. 873); Picklesimer v.Smith, supra.
(b) Under the preceding rules, since the security deed was executed before the delivery of any material, and therefore necessarily before the record of the materialmen's claims of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved. But even if the failure of the grantee to record his security deed until between the time the first material was furnished and the record of the materialmen's claims of lien could suffice to make relevant the rule as to actual notice of such a claim, then the "actual notice" required of the grantee in the deed in such a case would be "such notice as is positively proved to have been given to him directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put *Page 376
him upon inquiry." Picklesimer v. Smith, supra. SeeWilliams v. Smith, 128 Ga. 306, 310 (57 S.E. 801); 30 Am.Jur. 238-241, §§ 12, 13; 46 C. J. 546, 547, §§ 33, 34. A mere averment, as in this case, that a materialman on a certain date "furnished and delivered material on the premises," without any other fact, will not suffice to support a bare legal conclusion by the pleader that "such delivery constituted actual implied notice" to the security-deed holder "that material was being furnished and [as to] the plaintiffs' claims of lien." See WestLumber Co. v. McPherson, 173 Ga. 53, 54 (159 S.E. 868); 40 C. J. 292, 293, §§ 371, 330.
Accordingly, in the instant equitable action by materialmen against the grantee in a security deed and against the purchaser at a foreclosure sale under that deed, the petition having failed to show any actual notice to the defendant holders under the security deed as to the furnishing of materials by the plaintiffs at the time the security deed was executed, or during the time before it was recorded, and it appearing that at the time the security deed was executed and recorded the materialmen's claims of lien remained unrecorded, the priority of the holders under the security deed was properly sustained.
(c) The fact that, as alleged, the holder of the security deed did not advance to the debtor all of the money secured by the deed at the time of its execution would not affect the priorities of the parties. Picklesimer v. Smith, supra.
2. The petition of the materialmen, while claiming priority over the security deed, does not attack its validity. However, cancellation is sought as to the subsequent deed from the bank holding the security deed, to the defendant purchaser under a foreclosure sale by virtue of a power in the deed, on the ground that the foreclosure deed was made to hinder, delay, and defraud creditors, including petitioners, and that the acts of the deed holders and of the debtor constituted a fraudulent conspiracy. Even could it possibly be assumed that a foreclosure deed executed by a bona fide creditor, by virtue of an irrevocable power of attorney in its security deed, could legally constitute a fraudulent conveyance within the meaning of the Code, § 28-201, enumerating "acts by debtors" that are voidable against creditors, the petition wholly fails to show facts to indicate fraud. Not only are the good faith and validity of the original security deed not attacked, but it is *Page 377
manifest that the foreclosure deed was neither "secret," as alleged by a mere conclusion, nor voluntary, since the facts set forth in the petition show that the deed was made after a public sale, for a consideration of $1,500, and that it was recorded on the day of its date. Nor is there any averment that the consideration did not represent the fair market value of the property; or that any defendant was or is insolvent. In so far as any participation by the debtor in the foreclosure sale is alleged, fraud on his part is expressly negatived by the averment that he was informed by the security-deed creditor as to certain purposes of the sale, which were legitimate. The decisions inMoncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440
(19 S.E.2d 155), and Sweat v. Airline, 186 Ga. 460
(197 S.E. 893), were based on wholly different averments. In the former case the deed was voluntary; and in both cases the debtor was a party to alleged fraudulent transfers and acts.
3. Whether or not an alleged holder of a materialman's lien could be heard to attack a foreclosure sale by a creditor under a power in a security deed, on the ground that there was a chilling of the bidding or like irregularity, in the absence of any attack on the validity of the instrument or the right of the creditor to sell under the power (see Williams v. Williams Co., 122 Ga. 178,180, 50 S.E. 52, 106 Am. St. R. 100), the petition contains no sufficient averment that the bidding was chilled so as to prevent the property from bringing its fair value. There are general allegations that the purchaser was an employee or agent of the bank holding the security deed; and that the alleged sale was "really a sale to the defendant bank." Even if these averments could suffice to show any illegal act by such parties, bad faith is negatived by the deed of purchase itself, showing the alleged agent to be the grantee; and by the allegation that the grantee actually executed his note to the bank for the purchase-money, the good faith of which loan instrument is not attacked. The averment that the bank accepted a note instead of cash from the purchaser and the sheriff would not show a chilling of the bidding, or otherwise invalidate the sale, especially since it is not made to appear that this was done by prearrangement, or that any bidder was informed of such a prearrangement, or that it would be limited to the one person, so as to show that the bidding was thus in any wise affected. *Page 378
See generally, in this connection, as to what chilling of the bidding must be shown to invalidate a public sale, and who may attack the sale on that ground: Universal Chain TheatricalEnterprises v. Oldknow, 176 Ga. 492 (2), 496 (168 S.E. 239); Ruis v. Branch, 138 Ga. 150, 152 (74 S.E. 1081, 42 L.R.A. (N.S.) 1198), and cit.; Code, § 39-1316.
4. Under the preceding rulings, the court did not err in dismissing the action of the materialmen on general demurrer.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4243709/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/09/2018 08:13 AM CST
- 759 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
Cite as 298 Neb. 759
State of Nebraska on behalf of M ariah B. and
R enee B., minor children, appellee,
v. Kyle B., appellant.
___ N.W.2d ___
Filed January 26, 2018. No. S-16-1142.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
2. Contempt: Due Process: Judgments: Appeal and Error. Though the
ability to pay the purge amount in a civil contempt proceeding is a fac-
tual question that is reviewed for clear error, whether the facts result in
a due process violation is a question of law.
3. Contempt: Words and Phrases. Civil contempt requires willful dis-
obedience as an essential element. “Willful” means the violation was
committed intentionally, with knowledge that the act violated the
court order.
4. Contempt. If it is impossible to comply with the order of the court, the
failure to comply is not willful.
5. Words and Phrases: Appeal and Error. Willfulness is a factual deter-
mination to be reviewed for clear error.
6. Contempt: Proof: Evidence: Presumptions. Outside of statutory pro-
cedures imposing a different standard, it is the complainant’s burden
to prove civil contempt by clear and convincing evidence and without
any presumptions.
7. Contempt: Presumptions: Child Support. Neb. Rev. Stat. § 42-358(3)
(Reissue 2016) provides that a rebuttable presumption of contempt shall
be established if a prima facie showing is made that court-ordered child
or spousal support is delinquent.
- 760 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
Cite as 298 Neb. 759
8. ____: ____: ____. Necessarily, the rebuttable presumption of contempt
provided by Neb. Rev. Stat. § 42-358(3) (Reissue 2016) encompasses
the essential element of willfulness.
9. Contempt: Evidence: Child Support. In contempt proceedings, both
Neb. Rev. Stat. § 42-358(3) (Reissue 2016) and logic dictate that a valid
child support order is evidence of the parent’s ability to pay the amount
specified therein.
10. Child Support. The parent’s ability to pay is an important consider-
ation in setting the amount of a child support order.
11. Child Support: Rules of the Supreme Court: Presumptions. Child
support established under the Nebraska Child Support Guidelines is
presumed correct, unless one or both parties present sufficient evidence
to rebut that presumption.
12. Trial: Witnesses: Evidence. Triers of fact have the right to test the
credibility of witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof.
13. Constitutional Law: Criminal Law: Contempt: Due Process. A
criminal or punitive sanction is invalid if imposed in a proceeding
that is instituted and tried as civil contempt, because it lacks the pro-
cedural protections that the Constitution would demand in a criminal
proceeding.
14. Contempt: Sentences. A present inability to comply with a contempt
order is a defense, not necessarily to contempt, but to the sanction of
incarceration.
15. Contempt: Judgments. When a purge order involves payment of
money, the sum required to purge oneself of contempt must be within
the contemnor’s ability to pay within the time period provided in the
order, taking into consideration the assets and financial condition of the
contemnor and his or her ability to raise money.
16. Contempt. Contemnors in civil contempt must carry the keys of their
jail cells in their own pockets.
17. Contempt: Presumptions: Child Support. The statutory presumption
of contempt under Neb. Rev. Stat. § 42-358(3) (Reissue 2016) is inap-
plicable to the question of whether the purge plan is punitive.
18. Contempt: Judgments. Despite any overlap with the finding of willful
disobedience in the underlying contempt, a court that imposes incarcera-
tion as part of civil contempt proceedings shall make express findings
regarding the contemnor’s ability to comply with the purge order.
19. Contempt: Proof. It is the contemnor who has the burden to assert and
prove the inability to comply with the contempt order as a defense to
incarceration.
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20. ____: ____. The burden of both production and persuasion is on the
contemnor to show the present inability to comply.
21. ____: ____. A showing of inability to comply with a purge order
entails attempts to exhaust all resources and assets or borrow sufficient
funds and the inability to thereby secure the funds to comply with
the order.
22. Contempt. The contemnor’s inability to comply with a contempt order
cannot be voluntarily created, for example by not diligently seeking a
job at one’s earning potential.
23. ____. The inability-to-pay threshold for determining that the contemnor
lacks the keys to his or her own jail cell is higher than the indigence
threshold for appointing counsel. Thus, a finding of indigency for
purposes of retaining legal counsel does not preclude a finding that
the contemnor is able to pay whatever purge amount has been set by
the court.
24. Child Support. The support of one’s children is a fundamental obliga-
tion which takes precedence over almost everything else.
Appeal from the District Court for Lancaster County: K evin
R. McM anaman, Judge. Affirmed.
Nancy R. Wynner, of Olson, Zalewski & Wynner, L.L.P.,
for appellant.
Joe Kelly, Lancaster County Attorney, and Jason M. Cooper
and Braden W. Storer, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Heavican, C.J.
NATURE OF CASE
A father appeals from an order of civil contempt for fail-
ure to pay child support. He was found indigent for purposes
of appointment of counsel in the contempt proceedings. He
asserts that he did not willfully disobey the support order.
Further, he argues that the purge plan set forth in the contempt
order is impossible to perform, making it a punitive rather than
coercive sanction. We affirm.
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BACKGROUND
Paternity and Child
Support Order
In a paternity action filed by the State due to the involve-
ment of the “Title IV-D Division”1 of the Department of
Health and Human Services (DHHS), Kyle B. was established
as the father of Mariah B. and Renee B. Genetic testing had
determined with a probability of 99.999 percent that Kyle was
the biological father of the children.
Kyle was ordered to pay $230 in child support per month
beginning on December 1, 2015. The amount of Kyle’s monthly
child support obligation was established in accordance with the
child support guidelines. The district court referee calculated
that Kyle was capable of earning $8 per hour and of work-
ing 40 hours per week, for a total monthly earning capacity
of $1,387. By failing to respond to the State’s request for
admissions, Kyle was deemed to have admitted this earning
potential. Attached to the referee’s report was evidence that
Kyle had earned $4,306.90 working at a roofing company from
October to December 2014 and had earned $3,578.62 working
there from July to September 2014.
Kyle did not attend the hearing at which evidence was
submitted pertaining to paternity and child support, and his
counsel withdrew. Kyle did not appeal from the child sup-
port order.
Contempt Order
On June 7, 2016, the court issued an order for Kyle to
appear at a hearing scheduled for July 7 and show cause why
he should not be in contempt for willfully failing to comply
with the December 2015 order. The order to appear required
Kyle to bring to the hearing his income tax returns for the
past 3 years, as well as his last three wage statements. Kyle
was appointed counsel on July 8, 2016, upon a finding of
1
Neb. Rev. Stat. § 43-3341(12) (Reissue 2016).
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indigency. On September 12, the court issued another order to
appear, at a hearing scheduled for November 2, on the order to
show cause.
Kyle appeared at the November 2, 2016, hearing, repre-
sented by his appointed counsel. At the hearing, the State
introduced a certified copy of a history of Kyle’s payments
to DHHS. The document demonstrated that Kyle had never
made payments on the December 2015 order and that he was
$2,551.59 in arrears.
Kyle did not submit income tax returns, wage statements,
or any other financial documentation. The only evidence pre-
sented by Kyle at the hearing was his own testimony. Kyle tes-
tified that he was unemployed. Kyle stated that his “last good
job” was working as a “roof loader” for the roofing company.
That job ended in November 2015 when he was laid off for
the winter.
Kyle testified that he had been applying for three jobs per
week for the past 2 months, as required by a workforce devel-
opment program he was participating in. The most recent jobs
he applied for were at a supermarket, a home improvement
store, and a discount department store. Kyle explained that he
had not applied for work at a fast food restaurant or for other
food service work, because he was still “trying to get [his]
food handler’s permit to go that route.”
Kyle refused to describe how many and what jobs he had
applied for in the approximately 10-month period between the
November 2015 layoff and beginning the workforce develop-
ment program. After repeated evasiveness on Kyle’s part, the
court instructed him to “calm[] down” and “listen carefully”
to the State’s questions. But Kyle still refused to describe in
detail his search for employment, stating, “I’m not gonna sit
here and just keep beating around the bush about I’m not try-
ing to get a job or this or that.”
Kyle stated that he had done some subcontracting work
since being laid off at the roofing company. He did not say
how long he had worked as a subcontractor, nor how much he
had earned.
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Kyle indicated that he had not pursued more subcontract-
ing work because he was disabled. Kyle testified that he had a
“third grade reading and writing disability” and “a back prob-
lem and a neck problem” related to a fall out of a tree in 2005.
Kyle testified that he had applied for disability benefits the day
before the hearing.
Kyle testified that he paid $506 per month for rent and utili-
ties. He spent an unknown amount on cigarettes. He also had a
third child, a 6-month-old daughter, to support.
Kyle explained that he had not paid child support for Mariah
and Renee because he was struggling financially. Kyle elabo-
rated that during the times that he was employed as a subcon-
tractor, it was not “that much money or that much work.”
What money he had made “[p]robably” went toward his rent
and utilities. Beyond Kyle’s odd jobs, the mother of Kyle’s
6-month-old daughter had been paying their rent, utilities, and
other expenses with her Social Security income. That relation-
ship had recently ended, however, and Kyle testified that he
had “no money” at the time of the hearing.
Kyle did not clearly indicate whether he had applied for or
received unemployment benefits at any point since he was laid
off in November 2015. He testified that he was not receiving
any assistance at the time of the hearing.
Kyle expressed that the amount of the support order was
too high. Kyle indicated that the amount of the support order
may have been set too high because he had failed to attend the
paternity hearing in December 2015. He claimed he had missed
the hearing because he did not receive the paperwork inform-
ing him of the court date. Though Kyle claimed he had since
brought the amount of the child support order to the court’s
attention two or three times, there is no evidence that Kyle
moved for modification of the order.
Kyle did not deny being aware of the December 2015 child
support order as of its effective date. He specifically acknowl-
edged that he was aware of the child support order, though his
testimony was imprecise as to when. He said:
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Well, I think the first time that I was aware that I was
starting to pay child support, the guy who was represent-
ing me did not give me the paperwork to where I was
supposed to make the payment to the child support, this
and that. I don’t know. It’s my first time going through
this stuff. I got reading and writing and disability prob-
lems myself. I’ve just been trying to figure out — it’s
been set at such a high — such high — like 200-whatever
dollars, and I’ve been telling them that it’s been hard for
me to afford to pay my own bills and to still be able to
afford to pay the child support.
Kyle did not assert that ignorance of the order was the reason
for his failure to pay child support.
The court found Kyle in willful contempt of the December
2015 order. In its written contempt order, the court specifically
found that during the period applicable to the contempt cita-
tion, Kyle had the ability to pay the support ordered. Pursuant
to the contempt order, Kyle was committed to 60 days’ jail
time, to be suspended as long as he paid to the clerk of the
court “$230.00 a month on current child support and $100.00
[a month] on arrearage, commencing January 1, 2017.” In the
event that Kyle complied with this payment schedule for 18
months, he would be purged of contempt. In the event com-
mitment was issued as a result of noncompliance, he would be
released and purged of contempt upon payment of $1,000. The
court did not set forth an explicit finding that Kyle was at that
time able to pay the purge amount. Nor does the record reflect
that the court pronounced its order in Kyle’s presence.
Kyle timely appeals the contempt order.
ASSIGNMENTS OF ERROR
Kyle assigns that the district court abused its discretion in
(1) finding him in civil contempt; (2) imposing an unreason-
able, arbitrary, capricious, and punitive sanction; and (3) set-
ting for the purge plan payment amounts that were impossible
to perform.
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STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion.2
[2] Though the ability to pay the purge amount is a factual
question that we review for clear error, whether the facts result
in a due process violation is a question of law.3
ANALYSIS
Kyle appeals from a contempt order imposed to enforce
the prior judgment of paternity and child support.4 The parties
agree that the underlying proceedings were instituted and tried
as civil contempt. Kyle’s attorney asserts on appeal that the
district court erred in finding Kyle in contempt because he did
not willfully disobey the support order and, further, that the
court erred in setting a purge amount that resulted in a puni-
tive rather than coercive sanction. Kyle asserts that for these
reasons, the district court’s order was unreasonable, arbitrary,
and capricious.
Willful
[3-5] We first address whether the court clearly erred in
finding that Kyle’s violation of the child support order was
2
Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
3
See, United States v. Armstrong, 781 F.2d 700 (9th Cir. 1986); Arbor
Farms v. GeoStar Corp., 305 Mich. App. 374, 853 N.W.2d 421 (2014);
Reed v. Reed, 265 Mich. App. 131, 693 N.W.2d 825 (2005); In re Wilson,
879 A.2d 199 (Pa. Super. 2005).
4
See Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d
848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, supra
note 2.
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willful. Civil contempt requires willful disobedience as an
essential element.5 “Willful” means the violation was commit-
ted intentionally, with knowledge that the act violated the court
order.6 If it is impossible to comply with the order of the court,
the failure to comply is not willful.7 Willfulness is a factual
determination to be reviewed for clear error.8
[6-8] Outside of statutory procedures imposing a differ-
ent standard, it is the complainant’s burden to prove civil
contempt by clear and convincing evidence and without any
presumptions.9 But, as this is a case involving child sup-
port payable to DHHS, the presumption set forth in Neb.
Rev. Stat. § 42-358(3) (Reissue 2016) is applicable. Section
42-358(3) provides in part that “[a] rebuttable presumption
of contempt shall be established if a prima facie showing is
made that the court-ordered child or spousal support is delin-
quent.” Necessarily, the rebuttable presumption of contempt
provided by § 42-358(3) encompasses the essential element
of willfulness.10
It is undisputed that the State made such a prima facie show-
ing that Kyle was delinquent in his court-ordered child sup-
port by providing a certified copy of payments, balances, and
arrearages maintained by the Title IV-D Division of DHHS.11
5
Hossaini v. Vaelizadeh, supra note 2.
6
Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). See, also,
Hossaini v. Vaelizadeh, supra note 2.
7
Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994), overruled on
other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.
8
See, In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011);
State on behalf of Lockwood v. Laue, 24 Neb. Ct. App. 909, 900 N.W.2d 582
(2017). See, also, e.g., In re Hollis, 150 B.R. 145 (D. Md. 1993); People
v. Penson, 197 Ill. App. 3d 941, 557 N.E.2d 230, 145 Ill. Dec. 460 (1990);
McLarty v. Walker, 307 S.W.3d 254 (Tenn. App. 2009).
9
Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.
10
See D’Angelo v. Guarino, 88 So. 3d 683 (La. App. 2012).
11
See Neb. Rev. Stat. § 43-3342.01 (Reissue 2016).
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We conclude that the district court did not err in finding that
Kyle’s testimony failed to rebut the presumption of contempt
established pursuant to § 42-358(3).
Contrary to the assertions of Kyle’s attorney on appeal, Kyle
did not indicate at the contempt hearing that he was ignorant of
the fact that he was violating a court order. The only testimony
regarding Kyle’s lack of knowledge related to his failure to
attend the paternity hearing. Kyle’s testimony that he was con-
fused at some point about where he was supposed to send his
payments did not rebut the presumption of willfulness; instead,
it demonstrated his knowledge of the support order.
Neither do we find merit to Kyle’s argument that the district
court erred in concluding that it was possible to comply with
the support order. Kyle argues that the district court erred in
finding his conduct willful because there was no evidence
that he was able to pay the court-ordered child support. But
the State presented evidence establishing a presumption that
Kyle was able to comply with the 2015 order when it made
a prima facie showing that the court-ordered child support
was delinquent.12
[9] Other jurisdictions hold under either common law or a
statutory presumption that a child support order calculated in
accordance with applicable guidelines creates a presumption
that the parent was able to pay the amount so ordered during
the time period subject to contempt.13 The parent rebuts this
presumption of ability to pay by demonstrating that circum-
stances beyond the parent’s control have intervened since the
time the child support order was entered.14 We similarly hold
that in contempt proceedings, both § 42-358(3) and logic dic-
tate that a valid child support order is evidence of the parent’s
ability to pay the amount specified therein.
12
See § 42-358(3).
13
See, Polli v. Vina, 557 So. 2d 55 (Fla. App. 1989). See, also, 18 U.S.C.
§ 228(b) (2012).
14
See Polli v. Vina, supra note 13.
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[10,11] The Nebraska Court of Appeals applied a similar
presumption in In re Interest of Noelle F. & Sarah F.15 when
it held that a child support order issued in accordance with the
Nebraska Child Support Guidelines presupposed a financial
ability that, absent other evidence, defeated a claim of indi-
gence for purposes of appointment of counsel. We have con-
sistently held that in determining the amount of a child support
award, the trial court must consider the status, character, and
situation of the parties and attendant circumstances, including
the financial condition of the parties and the estimated cost of
support of the children.16 In other words, the parent’s ability
to pay is an important consideration in setting the amount of
the child support order.17 We have also held that child support
established under the Nebraska Child Support Guidelines is
presumed correct, unless one or both parties present sufficient
evidence to rebut that presumption.18
The best way to rebut the presumption of an ability to pay
established by a child support order issued in accordance with
the Nebraska Child Support Guidelines is evidence to dem-
onstrate a change of circumstances. Though not decisive in a
contempt proceeding, procedures exist for parents whose situ-
ation has changed to timely file a complaint for modification
of the child support order pursuant to Neb. Rev. Stat. § 42-364
(Reissue 2016) or to ask DHHS to consider referring the child
support order to the county attorney or authorized attorney for
filing an application for modification under Neb. Rev. Stat.
§ 43-512.15 (Reissue 2016).19
15
In re Interest of Noelle F. & Sarah F., 3 Neb. Ct. App. 901, 534 N.W.2d 581
(1995).
16
Faaborg v. Faaborg, 254 Neb. 501, 576 N.W.2d 826 (1998).
17
See id. See, also, Bird v. Bird, 205 Neb. 619, 288 N.W.2d 747 (1980).
18
See, State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340
(2007); Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995).
19
See, also, Neb. Rev. Stat. § 43-512.12 (Reissue 2016).
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Kyle failed to demonstrate a change of circumstances
defeating the presumption of his ability to pay in accordance
with the support order. Viewed in the light most favorable to
the prevailing party, Kyle’s unsupported claims of unemploy-
ment and disability stated nothing new or different. Other than
his testimony that he had applied for three jobs per week for
the past 2 months with no success, Kyle did not present any
evidence that his ability to earn $8 per hour and work 40 hours
per week had diminished since the date of the support order.
Instead, he was evasive when asked to specify how many jobs
and what kind of jobs he had applied for during the 11 months
he failed to pay child support, and none he described appeared
to be in a field he had experience in. Given that Kyle was
working as a roof loader with the same alleged disabilities
until his seasonal layoff in November 2015, Kyle failed to
adequately explain why he has not since sought employment
in a similar field.
Kyle’s testimony that he suffered disabilities that diminished
his earning capacity was simply as follows: “I was actually
taking on some jobs through a subcontractor subcontracting
work and finishing up some work there. But physically with
my disability and this and that, I try to do things hands-on so
—.” Kyle presented no medical documentation or expert tes-
timony supporting his assertion that he suffered from reading
and writing disabilities and “a back problem and a neck prob-
lem” which prevented him from earning income sufficient to
pay his child support obligations.
Furthermore, as this testimony illustrates, Kyle was vague
as to the extent he had actually earned income doing subcon-
tracting work during the 11 months that the support order had
been in effect. Kyle failed to comply with the court’s prior
order that he submit at the hearing his tax returns and wage
statements. Kyle failed to provide the court with any employ-
ment records. The court reasonably could have made a nega-
tive inference from Kyle’s disobedience of the court’s order.
Though Kyle stated that his support was sometimes supplied
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entirely by the mother of his 6-month-old daughter, such testi-
mony does not establish his inability to become employed; nor
do his obligations toward that child relieve him of the duty to
support Mariah and Renee.20
[12] Triers of fact have the right to test the credibility of
witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof.21 In this case, Kyle’s testimony
was woefully inadequate when weighed against the presump-
tion inherent to the child support order that he was capable of
paying it. The district court did not clearly err in finding that
during the period applicable to the contempt citation, Kyle had
the ability to pay the support ordered by the December 2015
order. By explicitly finding that Kyle had the ability to pay
and implicitly finding that Kyle had knowledge of the sup-
port order, the district court found that Kyle’s disobedience
was willful. The court did not clearly err in these findings
and did not abuse its discretion in determining that Kyle was
in contempt.
A bility to Comply With
Purge Order
[13,14] We turn next to whether the court erred in setting a
purge amount in excess of Kyle’s present ability to pay, thereby
making the sanction of incarceration punitive. A criminal or
punitive sanction is invalid if imposed in a proceeding that
is instituted and tried as civil contempt, because it lacks the
procedural protections that the Constitution would demand in
a criminal proceeding.22 A present inability to comply with a
contempt order is a defense, not necessarily to contempt, but
20
See Richardson v. Anderson, 8 Neb. Ct. App. 923, 604 N.W.2d 427 (2000).
21
Ohnstad v. Omaha Public Sch. Dist. No. 1, 232 Neb. 788, 442 N.W.2d 859
(1989); First Nat. Bank of Omaha v. First Cadco Corp., 189 Neb. 734, 205
N.W.2d 115 (1973).
22
Sickler v. Sickler, supra note 6.
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to the sanction of incarceration.23 Though the ability to pay
the purge amount is a factual question that we review for clear
error, whether the facts result in a due process violation is a
question of law.24
[15,16] When a purge order involves payment of money,
the sum required to purge oneself of contempt must be within
the contemnor’s ability to pay within the time period provided
in the order, taking into consideration the assets and finan-
cial condition of the contemnor and his or her ability to raise
money.25 For the punishment to retain its civil character, the
contemnor must, at the time the sanction is imposed, have the
ability to purge the contempt by compliance and either avert
punishment or, at any time, bring it to an end.26 Contemnors
in civil contempt must carry the keys of their jail cells in their
own pockets.27
[17] Though related and involving similar evidence, the
due process question of whether Kyle is able to pay the
purge amount is not the same as whether Kyle willfully vio-
lated the December 2015 child support order and was thereby
in contempt. The statutory presumption of contempt under
§ 42-358(3) does not determine the question of whether the
purge plan is punitive. And while a presumption of an abil-
ity to pay the child support order made in accordance with
the Nebraska Child Support Guidelines may be relevant, it is
not conclusive as to the reasonableness of the purge amount.
Kyle’s ability to pay in accordance with the child support order
was evaluated over the 11-month period since its issuance,28
23
See id.
24
See, United States v. Armstrong, supra note 3; Arbor Farms v. GeoStar
Corp., supra note 3; Reed v. Reed, supra note 3; In re Wilson, supra
note 3.
25
See id.
26
Id.
27
See id.
28
See id.
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but whether the purge plan was punitive was evaluated at the
time of the order of contempt. A past ability to comply with an
order does not show a present ability to purge the contempt.29
But past failure coupled with unpersuasive or unsupported
claims of present inability is sufficient.
[18] We reiterate our recent holding in Sickler v. Sickler30
that, despite any overlap with the finding of willful disobedi-
ence in the underlying contempt, a court that imposes incar-
ceration as part of civil contempt proceedings shall make
express findings regarding the contemnor’s ability to comply
with the purge order. Such a finding is required because of
“the importance of the ability to comply in distinguishing
between civil and criminal contempt and its due process
implications.”31
While the district court stated in its order that Kyle had the
ability to pay the support obligation, it failed to explicitly find
that Kyle had the present ability to comply with the contempt
order. Kyle does not assign as error the court’s failure to make
a specific finding regarding his ability to comply with the
contempt order, however. And we find no plain error, because
the record supports the court’s implicit conclusion that Kyle
failed to prove an inability to comply.
[19-22] It is the contemnor who has the burden to assert
and prove the inability to comply with the contempt order as
a defense to incarceration.32 The burden of both production
and persuasion is on the contemnor to show the present inabil-
ity to comply.33 Such a showing entails attempts to exhaust
all resources and assets or borrow sufficient funds and the
inability to thereby secure the funds to comply with the purge
29
Sickler v. Sickler, supra note 6.
30
Id.
31
Id. at 543, 878 N.W.2d at 566.
32
See Sickler v. Sickler, supra note 6.
33
Id.
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order.34 In general, the contemnor’s inability to comply cannot
be voluntarily created, for example by not diligently seeking a
job at one’s earning potential.35
As already discussed, the evidence suggested that Kyle was
able to work as a roof loader despite his claimed disabilities.
The district court did not find credible Kyle’s testimony to
the contrary.
Kyle’s evidence that he was unable to comply consisted of
his self-serving and vague testimony that he had unsuccessfully
applied for work during the prior 2 months. The only specific
testimony regarding Kyle’s recent attempts to gain employ-
ment were that he had applied for three jobs per week and that
his most recent three applications were in retail—a field that
there was no evidence he had experience in. Kyle provided
scant evidence he was incapable of finding work similar to
his “last good job” as a roof loader, which he had been able to
perform despite the disabilities alleged at the hearing. Kyle’s
failure to find a job in the 2 months preceding the hearing did
not foreclose the district court from finding that Kyle would be
able to obtain full-time employment within the 2-month grace
period of the contempt order.
Furthermore, although Kyle testified that he did not own a
vehicle or his home, and that he had “no money,” Kyle failed
to make a full accounting of his assets. Instead, he disobeyed
the court’s order to produce his tax documents.
Finally, Kyle presented no evidence whatsoever of an inabil-
ity to borrow sufficient funds to comply with the purge order.
[23] It is true that the district court found Kyle indigent
on July 8, 2016, for purposes of the appointment of counsel.
Kyle relies on this finding in asserting that it was impossible
for him to pay the purge amount. But the inability-to-pay
threshold for determining that the contemnor lacks the keys to
34
Id.
35
See Jenkins v. State, 60 Neb. 205, 82 N.W. 622 (1900).
- 775 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
Cite as 298 Neb. 759
his or her own jail cell is higher than the indigence threshold
for appointing counsel.36 Thus, a finding of indigency for pur-
poses of retaining legal counsel does not preclude a finding
that the contemnor is able to pay whatever purge amount has
been set by the court.
Neb. Rev. Stat. § 29-3901(3) (Reissue 2016) defines indi-
gent as “the inability to retain legal counsel without prejudic-
ing one’s financial ability to provide economic necessities for
one’s self or one’s family.” A court may find indigency for
purposes of appointment of counsel based alone on a situation
where expenses exceed income, and a person is not required to
prejudice one’s financial ability to provide economic necessi-
ties for oneself or one’s family in order to be determined indi-
gent for that purpose.37 Nor must a person dispose of all his or
her assets or have exhausted all possible sources of borrowing
money before being eligible for appointment of counsel.38
[24] In contrast, as stated, an inability to comply with a
purge order entails having exhausted all assets and opportu-
nities to borrow sufficient funds.39 Moreover, a purge order
involving simply the arrears owed in child support promotes
rather than prejudices the contemnor’s provision for his or her
family. As we have said before, “[t]he support of one’s chil-
dren is a fundamental obligation which takes precedence over
almost everything else.”40
We read the contempt order as including the $230 monthly
support obligation as part of the purge amount. It may have
36
See In re Mancha, 440 S.W.3d 158 (Tex. App. 2013). See, also, Lamb v.
Eads, 346 N.W.2d 830 (Iowa 1984). But see, Turner v. Rogers, 564 U.S.
431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011); Andrews v. Walton, 428
So. 2d 663 (Fla. 1983); State ex rel. Shaw v. Provaznik, 708 S.W.2d 337
(Mo. App. 1986).
37
See State v. Masilko, 226 Neb. 45, 409 N.W.2d 322 (1987).
38
Id.
39
See Sickler v. Sickler, supra note 6.
40
State v. Reuter, 216 Neb. 325, 328, 343 N.W.2d 907, 910 (1984).
- 776 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
Cite as 298 Neb. 759
been the court’s intention to impose as the purge amount $100
monthly in arrearages and to simply reiterate that Kyle must
continue his underlying monthly support obligation during
that time. But that does not appear on the face of the order to
be what the court did. While we recognize the purge order in
this respect is irregular, in that it includes future child support
installments which have not yet accrued, Kyle does not chal-
lenge the propriety of including in the purge amount his ongo-
ing monthly obligation. The question presented is whether it
was impossible to comply with the order. The record supports
the court’s conclusion that Kyle did not demonstrate inability
to pay $330 monthly for 18 months, beginning approximately
2 months from the time of the contempt hearing, or, alterna-
tively, inability to pay $1,000 once jailed.
We find no merit to Kyle’s claim that the contempt order
impermissibly imposed a criminal or punitive sanction in a
civil proceeding.
CONCLUSION
There is no merit to Kyle’s assignments of error challenging
the underlying finding of contempt and the reasonableness of
the purge amount. We affirm the order of contempt.
A ffirmed.
Wright, J., not participating. | 01-03-2023 | 02-09-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4554047/ | Case: 19-30018 Document: 00515519133 Page: 1 Date Filed: 08/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30018
FILED
August 7, 2020
Lyle W. Cayce
JUSTIN TERRELL ATKINS, Clerk
Petitioner - Appellant
v.
TIMOTHY HOOPER, Warden, Elayn Hunt Correctional Center,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:17-CV-1544
Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
A Louisiana inmate appeals the district court’s denial of habeas relief
based on a Confrontation Clause violation. We REVERSE and REMAND so
the district court can grant the relief requested.
Justin Terrell Atkins was convicted by a jury of armed robbery and
aggravated battery. The conviction was affirmed on direct appeal, and the
Louisiana Supreme Court denied review. State v. Atkins, 46,613 (La. App. 2
Cir. 9/21/11); 74 So. 3d 238, writ denied, 2011-2287 (La. 2/17/12); 82 So. 3d 284.
Our factual and procedural summaries are taken from the Louisiana
Court of Appeal decision. Atkins, 74 So. 3d at 239. Robert Jones, Howard
Bishop, and Tom Harris were drinking alcohol together at Jones’s house.
Case: 19-30018 Document: 00515519133 Page: 2 Date Filed: 08/07/2020
No. 19-30018
Atkins knew that Bishop and Jones had just returned to Jones’s house after
Jones had cashed a check. After kicking in the door to the house, Atkins
demanded money, but Jones refused. Atkins began beating Jones with the
butt of a firearm. When Harris intervened, Atkins hit him too. Bishop
witnessed the incident and saw Atkins take money from Jones’s pocket.
During the robbery, Lawrence Horton was at the door to Jones’s house.
Horton had followed Jones and Bishop and observed Jones cash his check at a
store. Eight days after the robbery, Horton approached law enforcement and,
upon questioning by Detective Jeffrey Dowdy, Horton admitted he had a role
in the robbery, but he said Atkins was primarily responsible for the crime.
Detective Dowdy then obtained an arrest warrant for Atkins. Separately,
Harris gave a photo of Atkins to law enforcement and said it was of the person
who hit him and who robbed and beat Jones.
Atkins filed for state post-conviction relief in which he contended that he
was denied his right to confront and cross-examine Horton when alleged
hearsay evidence was presented at trial. The claim focuses on the State’s
opening statement before the jury, the testimony of Detective Dowdy, and the
State’s closing statement.
In the State’s opening statement, the prosecutor stated:
Finally, I believe the State will have the testimony of Lawrence
Horton. Lawrence Horton is a co-defendant in this case. That he
was arrested for this offense as well as the defendant in this case.
I believe that he will tell you that he and the defendant met on the
morning of January 2nd, 2009. That they went ultimately to 1710
Jackson Street wherein the defendant, Mr. Atkins over here,
busted the door in at 1710 and robbed and beat the victims while
he himself, Mr. Horton, served as a lookout. And I believe that will
– you will anticipate that testimony as well.
During the trial, the following exchange occurred between the prosecutor
and Detective Dowdy:
Q. Okay. And did you in fact speak with Lawrence Horton?
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A. Yes, sir, I did.
Q. All right. Was he advised of his rights?
A. Yes, sir, he was.
Q. And did he provide a statement to you?
A. Yes, sir, he did.
Q. Was the statement inculpatory? Did he –
A. Yes, sir, it was.
Q. Okay. Did he implicate anybody else?
A. Yes, sir, he did.
Q. Okay. As a result of this – well, all right, he implicated someone
else. What did you do next with regard to your investigation?
A. Based on the – the information that he provided he was arrested
and again, based on the information that he provided I was able
to obtain a warrant.
Q. For whom?
A. Justin Atkins.
The State rested without calling Horton to testify. Finally, the prosecutor
stated in closing argument: Detective Dowdy “interviews Lawrence Horton,
who is known as O and then obtains an arrest warrant for Justin Atkins, the
defendant.” This testimony and closing argument are the facts underlying the
claim before us.
The state trial court denied Atkins’ application for post-conviction relief.
The court of appeal and the Louisiana Supreme Court denied Atkins’ writ
applications. Atkins filed a federal habeas application under 28 U.S.C. § 2254
claiming that he was denied his Sixth Amendment right to confrontation. The
magistrate judge issued a report and recommended that Atkins’ application be
denied. The district court adopted the report, dismissed Atkins’ Section 2254
application, and denied Atkins a Certificate of Appealability (“COA”). Atkins
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timely appealed. This court granted Atkins’ application for a COA on August
9, 2019.
DISCUSSION
Atkins contends the state court’s decision denying his Sixth Amendment
Confrontation Clause claim was contrary to and involved an unreasonable
application of Supreme Court precedent. Atkins also argues the State waived
any harmlessness argument, and Atkins alternatively argues the error was
harmful. We consider Atkins’ arguments in that order, but first we address
whether the State waived a defense of procedural default.
I. Whether the State waived a defense of procedural default
Atkins contends the State waived a defense of procedural default
because the State failed to raise the defense in the district court. In the State’s
response brief, the State does not attempt to raise procedural default as a
defense and the State does not respond to Atkins’ waiver argument. Thus, to
bar habeas relief based on procedural default, we would have to raise and apply
the defense sua sponte.
When considering whether we should identify and apply a procedural
default in habeas review, we consider (1) whether the applicant has had a
reasonable opportunity to argue against the application of the bar, and
(2) whether the government intentionally waived the procedural defense.
Smith v. Johnson, 216 F.3d 521, 523–24 (5th Cir. 2000); see United States v.
Willis, 273 F.3d 592, 596 (5th Cir. 2001) (extending this reasoning to
Section 2255 review). We begin and end this analysis with the second
consideration.
Here, the district court explicitly identified a possible defense of
procedural default and instructed the State to raise the defense if the State
4
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No. 19-30018
believed any of Atkins’ habeas claims were procedurally defaulted. The State
thereafter answered Atkins’ habeas application and explicitly abandoned the
defense, stating that “it appears [Atkins] has exhausted his state court
remedies.” This chronology confirms that the State intentionally waived the
defense. We will not inject the issue into this appeal of whether Atkins’ habeas
application is procedurally defaulted.
II. Whether Atkins is entitled to habeas relief
We review a “district court’s findings of fact for clear error and its
conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th Cir.
2013). Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal courts may not grant habeas relief on a claim that the state
courts have adjudicated on the merits unless that adjudication resulted in a
decision that was either (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
The first standard, that the decision be “contrary to . . . clearly
established Federal law,” is met when “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). The second standard that would justify relief, which is that the state
court made an “unreasonable application of clearly established federal law,” is
satisfied when that court “identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. These alternatives require more than a federal
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court’s conclusion that the state court erred. The federal court must also
conclude the state court’s decision was “unreasonable.” Id. at 411.
A. The last reasoned decision
The first task for us in reviewing a claim governed by the AEDPA is to
identify the relevant state-court decision. § 2254(d). To that end, the Supreme
Court says that we must examine closely the “last related state-court decision”
that provides a “relevant rationale” for a particular claim. Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). If the last related state-court decision does not
provide a relevant rationale for the relevant claim, we must “look through” that
decision and find one that does. Id. Only then can we consider whether the
highest state court to decide the claim resolved it in a manner contrary to or
with an unreasonable application of clearly established Supreme Court
precedent. Id.
Before identifying the appropriate state-court decision, we review
Atkins’ application for state post-conviction relief. Atkins’ state application
included the same Confrontation Clause claim he brought in his federal
application under Section 2254, but Atkins’ state application also included
claims of ineffective assistance of trial counsel. The allegations included claims
about deficient pretrial preparation and about later failures in cross-
examining witnesses, objecting to jury instructions, and failing to move for
mistrial based on a Confrontation Clause violation. None of those allegations
were raised in Atkins’ federal application. The highest state-court decision for
us to identify is the one resolving the Confrontation Clause claim.
The Louisiana Supreme Court denied relief to Atkins for two reasons.
First, the court concluded that Atkins’ claims were procedurally defaulted
because he “failed to raise his claims in the proceedings leading to the
conviction,” relying on Louisiana Code of Criminal Procedure article 930.4(B).
That is the procedural default that we have already explained we will not inject
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into this appeal. Second, the court held that Atkins failed to “satisfy his post-
conviction burden of proof” under Louisiana Code of Criminal Procedure article
930.2. Because the Louisiana Supreme Court could have been applying article
930.2 to the ineffective assistance claims alone, we cannot evaluate whether
the court’s decision was contrary to or an unreasonable application of clearly
established United States Supreme Court precedent. § 2254(d). We therefore
look through the Louisiana Supreme Court’s decision. 1
The next decision is that of the Louisiana Second Circuit Court of Appeal.
The court of appeal provided only a string-cite of authority, without
explanation. First, the court cited Louisiana Code of Criminal Procedure
article 930.2, which provides that an applicant for post-conviction relief bears
the burden of proof. Second, the court cited Louisiana Code of Evidence article
801(c), which defines hearsay. Third, the court cited State v. Lewis, 47,853 (La.
App. 2 Cir. 2/27/13), 110 So. 3d 644, 653, writ denied, 2013-0672 (La. 10/25/13),
124 So. 3d 1092. In Lewis, a criminal defendant raised five issues on direct
appeal. 110 So. 3d at 649–55. In resolving Atkins’ appeal, the court of appeal
cited the page of Lewis discussing the right to confrontation, the only issue that
was relevant to Atkins’ state application. Id. at 653. On that issue, the Lewis
Court held that certain testimony connecting the defendant to the crime was
inadmissible hearsay, but the error was harmless because of substantial
evidence of guilt before the jury. Id.
Finally, the court of appeal cited Woods v. Etherton, 136 S. Ct. 1149, 1151
(2016). Woods dealt only with a claim of ineffective assistance of appellate
counsel for failing to raise a Confrontation Clause argument on appeal. Id. at
1151–53. The Atkins court of appeal decision cited the portion of Woods
1Atkins argues we should “look through” the state high court’s decision and review
the court of appeal decision. The State does not take a position on which decision to review.
7
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discussing the procedural history of the case and setting forth the “doubly
deferential” standard for claims of ineffective counsel in habeas review. Id. at
1151. Atkins argues that the state court of appeal denied his Confrontation
Clause claim by incorrectly applying this double deference. We cannot reliably
interpret the reference to Woods. The state court of appeal might have been
applying double deference to the Confrontation Clause claim, which would
have been error, but it also might have been using double deference merely to
reject the claims for ineffective counsel. As to Lewis, the state court of appeal
could have determined there was no Confrontation Clause violation; or
alternatively that there was a Confrontation Clause violation, but the error
was harmless.
The state court of appeal’s reasoning falls short of what is needed to
consider whether that court’s decision was contrary to or an unreasonable
application of clearly established United States Supreme Court precedent.
§ 2254(d).
Thus, we look through a second opinion. In doing so, we now see the
state district court’s decision. That court denied Atkins’ application for post-
conviction relief with far more explanation than the state appellate court or
state supreme court used. The state district court held that Atkins’ right to
confrontation was not violated, reasoning that because Detective Dowdy’s
testimony did not reference the actual statements made by Horton during
Detective Dowdy’s investigation, no hearsay was admitted. The court also
found that Detective Dowdy’s testimony was “used to explain the sequence of
events leading to the arrest of [Atkins] from the viewpoint of the arresting
officers,” which is permissible under state law.
This decision is the needed state-court ruling that provides a relevant
rationale for Atkins’ Confrontation Clause claim. Applying our deferential
review, we consider whether it suffices under Section 2254(d).
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No. 19-30018
B. Unreasonable application of Supreme Court precedent
We are not aware of a Supreme Court opinion with nearly identical facts
to those here, so we consider whether “the state court misapplied the relevant
legal principles to the facts.” Taylor v. Cain, 545 F.3d 327, 334 (5th Cir. 2008).
The Confrontation Clause provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. That provision bars the admission of
“testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). We know
that “testimony” is the “solemn declaration or affirmation made for the purpose
of establishing or proving some fact.” Id. at 51 (citation omitted). Testimonial
statements can be used without constitutional barrier “for purposes other than
establishing the truth of the matter asserted.” Id. at 59 n.9.
We consider the state district court’s initial reason that Atkins’ right to
confrontation was not violated: there was no hearsay admitted because
Detective Dowdy did not recite the actual statements made by Horton during
Detective Dowdy’s investigation. We compare that reasoning to the Supreme
Court’s holding in Gray v. Maryland, 523 U.S. 185 (1998). In Gray, the Court
held that a defendant’s Confrontation Clause rights were violated by the
admission of a codefendant’s confession; the confession was redacted by
replacing the defendant’s name with blank spaces and, when the blanks were
read into evidence by a police detective at trial, the word “deleted” or “deletion”
was used instead. Id. at 188. Although the police detective did not repeat the
mention of the defendant’s name, the Court reasoned that such redacted
statements “obviously refer directly to someone, often obviously the defendant,
and which involve inferences that a jury could ordinarily make immediately,
even were the confession the very first item introduced at trial.” Id. at 196. So
9
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too here. Detective Dowdy may not have used Atkins’ name, but surely there
was no doubt in jurors’ minds that Horton had implicated Atkins. This was
clear because Dowdy testified that based on what Horton said, Dowdy obtained
an arrest warrant for Atkins. The state district court’s first reason to deny
Atkins’ Confrontation Clause claim was an unreasonable application of Gray.
The state district court decision we are reviewing also concluded that
Detective Dowdy’s testimony was introduced for a purpose other than
establishing the truth of the matter asserted. Instead, this testimony was
introduced only to explain the course of Detective Dowdy’s investigation
leading to Atkins’ arrest. The state district court based that conclusion on
State v. Calloway, 324 So. 2d 801, 809 (La. 1975), in which the state supreme
court held that statements made “to explain the sequence of events leading to
the arrest of the defendants from the viewpoint of the arresting officers” are
not hearsay. Thus, according to the state district court, Detective Dowdy’s
testimony was not hearsay under state law, and therefore there was no
violation of Atkins’ confrontation rights.
This court’s caselaw is clear that explain-the-investigation exceptions to
hearsay cannot not displace the Confrontation Clause. For example, “police
testimony about the content of statements given to them by witnesses are
testimonial,” and “officers cannot refer to the substance of statements made by
a nontestifying witness when they inculpate the defendant.” United States v.
Kizzee, 877 F.3d 650, 657 (5th Cir. 2017) (collecting decisions). 2
We return to Taylor v. Cain, as the questioned testimony there is quite
similar to what occurred here. There, the detective stated that he “had a
conversation with [the witness] and during this conversation, learned some
2 Although the AEDPA requires us to look at clearly established law from the
Supreme Court, our decisions discussed here that interpret Supreme Court precedent are
binding in this circuit on what that Court has clearly established.
10
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information,” and from that information the detective testified he “was able to
develop a suspect.” Taylor, 545 F.3d at 331. The prosecutor immediately
asked, “per this end of your investigation, what was the name of your suspect?”
Id. The detective gave the defendant’s name. Id. We held that the detective’s
testimony that a nontestifying witness implicated the defendant’s guilt and the
prosecution’s references to that testimony in closing argument were hearsay.
Id. at 336. Introducing that hearsay testimony violated the defendant’s
confrontation rights under Ohio v. Roberts, 448 U.S. 56, 65 (1980), and the
state court’s contrary decision constituted an unreasonable application of
Supreme Court precedent. Id. Under Supreme Court Confrontation Clause
jurisprudence, law enforcement “officers cannot, through their trial testimony,
refer to the substance of statements given to them by nontestifying witnesses
in the course of their investigation, when those statements inculpate the
defendant.” Id. at 335.
Like Taylor, Detective Dowdy testified that Horton, a nontestifying
witness, implicated Atkins and the prosecution likewise referenced that
testimony in its closing argument. Such testimony violates the Confrontation
Clause. If a state court decides otherwise, the decision is an unreasonable
application of Supreme Court precedent. 3 Accordingly, unless the state court’s
error was harmless, relief is warranted.
3 In Taylor, we relied on the Supreme Court’s Ohio v. Roberts opinion. Some of the
analysis of that opinion was overruled before Atkins’ trial by Crawford v. Washington, 541
U.S. 36, 53–54 (2004). Crawford’s rejection of some parts of Ohio v. Roberts, though, does not
affect the issue before us. Crawford expanded the Sixth Amendment’s Confrontation Clause
right by rejecting the “reliability” justification set forth in Ohio v. Roberts that saved some
out-of-court statements from Sixth Amendment scrutiny. Id. at 67–68. Crawford did nothing
to undermine the longstanding recognition that the type of statement here — the inculpatory
out-of-court statement of an eyewitness — implicates the Confrontation Clause. Taylor still
controls.
11
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III. Whether the state district court’s error was harmless
Confrontation Clause violations are subject to harmless error analysis.
Horn v. Quarterman, 508 F.3d 306, 322 n.24 (5th Cir. 2007). The State
concedes that it did not raise harmlessness in this case but urges us to consider
the possibility sua sponte. We have the discretion to do so. Jones v. Cain, 600
F.3d 527, 541 (5th Cir. 2010). We see no reason for exercising it here.
***
The state district court’s decision that no Confrontation Clause violation
occurred through the handling of Detective Dowdy’s testimony constitutes an
unreasonable application of Supreme Court precedent, and the State waived
harmlessness. We REVERSE the district court’s judgment denying Atkins
habeas relief and the case is REMANDED for the district court to grant relief
consistent with this opinion.
12 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554053/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0469n.06
No. 19-2441
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 07, 2020
DANIEL O’BRIEN, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
COMMISSIONER OF SOCIAL SECURITY, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
BEFORE: BOGGS, SUTTON, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Daniel J. O’Brien appeals from
the district court’s affirmance of the Commissioner of Social Security’s decision denying his
application for Social Security Disability Insurance Benefits (DIB) on the basis that he was not
disabled prior to the expiration of his insured status in December 2015. We affirm.
I. Background
A. Factual Background
O’Brien alleges that he became disabled in April 2009, due to spinal, knee, and other
physical impairments1 that caused back, knee, and hand pain. His insured status expired on
December 31, 2015. O’Brien worked at the General Motors’ Willow Run plant for 32 years,
including as a shipping and receiving clerk, assembler, and an inspector. In 1984, O’Brien fell at
1
O’Brien also alleged various mental impairments, including fatigue from trouble sleeping. He does not
challenge on appeal the administrative law judge’s (ALJ) decision on the basis of those impairments. We focus only
on his physical impairments.
19-2441, O’Brien v. Comm’r of Soc. Sec.
work, sustaining “a jamming injury to his dominant right upper extremity, including his neck
region.” R. 8-9, PID 690. After a period of temporary incapacitation from this injury, he was
cleared to return to GM with restrictions, including no repetitive motion and no lifting above his
head. Id. at PID 688.
Beginning in May 2008,2 O’Brien sought treatment for pain from Dr. Laran Lerner, D.O.
He was prescribed a regimen of pain medications. He returned to Dr. Lerner in March 2009,
complaining of lower back pain following a round of ice hockey. R. 8-7, PID 341. Later that year,
in July 2009, O’Brien reported neck and continuing back pain that began after he power washed
on a ladder. Id. at PID 326. His electromyography (EMG) study during this visit returned normal
results and there was “[n]o evidence of lumbosacral radiculopathy or neuropathy.” Id. at PID 327,
330. In August 2009, Dr. Lerner examined O’Brien again, noting decreased range of motion in
the cervical spine and tenderness to palpation. R. 8-8, PID 412. Dr. Lerner diagnosed O’Brien
with back, left shoulder, and left knee impairments, and observed that O’Brien could not raise his
left arm overhead because of the resulting pain and muscle weakness in his left shoulder and arm.
Id. O’Brien reported in a pain questionnaire completed during that visit that his pain and ability
to work significantly improved with the pain relievers he was prescribed. R. 8-7, PID 324-25.
O’Brien returned to Dr. Lerner the following month. Dr. Lerner’s examination again noted
decreased range of motion in the cervical spine, but normal range of motion and no tenderness to
palpation in the lumbar spine. R. 8-8, PID 410. O’Brien returned to Dr. Lerner on several
occasions between September 2009 and September 2010. Dr. Lerner’s observations during these
visits were largely consistent with the previous observations, and he often adjusted the dosage or
changed O’Brien’s medication to better control O’Brien’s symptoms. In January 2010, O’Brien
2
We recount only the facts most relevant to the ALJ’s decision, and those relied on by O’Brien.
2
19-2441, O’Brien v. Comm’r of Soc. Sec.
returned to Dr. Lerner, complaining of neck pain radiating into his left shoulder and pain and
swelling in his right hand following an altercation while playing hockey. R. 8-8, PID 400.
Dr. Lerner observed decreased range of motion in both the cervical and lumbar spines as well as
tenderness to palpation.
In December 2010, Dr. Lerner observed decreased range of motion and tenderness to
palpation in both the cervical and lumbar spines, tenderness to palpation in the left shoulder and
left elbow, and an antalgic gait. Id. at PID 385. Dr. Lerner again adjusted O’Brien’s medications
and opined that “[O’Brien] is currently disabled from gainful employment.” Id.
Between January 2011 and January 2015, O’Brien saw several physicians for pain
management, including Dr. Lerner, Dr. Michael Fitzsimmons, M.D. (an orthopedic hand surgeon),
and Dr. John Rosella, D.O. (O’Brien’s primary care provider). Medical examinations during these
visits confirmed decreased range of motion in the spine, tendonitis in the hand and wrist, and knee
sensitivity. See, e.g., id. at PID 376. His medications were again adjusted, and O’Brien began
receiving injections for knee pain.
In January 2015, an MRI of O’Brien’s lumbar spine revealed bone spurs that “appear[] to
contact the extraforaminal right L5 nerve root,” which “may account for a right-sided L5
distribution radiculopathy.” Id. at PID 424. The MRI also revealed “moderate bilateral foraminal
stenosis.” Id. In May 2015, a MRI of the cervical spine revealed moderate left neural foraminal
stenosis at C3-C4, mild to moderate bilateral neural foraminal narrowing at C4-C5, and bilateral
facet arthrosis at C7-T1. R. 8-9 PID 500. The overall impression was “multilevel cervical
degenerative spondylosis with neural foraminal stenosis.” Id.
On May 22, 2015, O’Brien underwent a psychological examination by John Jeter, MA,
LMSW. Id. at PID 502-06. During the examination, O’Brien reported “performing a few light
3
19-2441, O’Brien v. Comm’r of Soc. Sec.
ADL’s [activities of daily living] independently with the support of his brother.” Id. at PID 503.
He was able to go shopping, run errands, cook meals, and do laundry, and had additionally been
working part-time for twelve to fifteen hours a week. Id. O’Brien reported that his medicines,
including Norco for pain, were effective. Id. Jeter opined that O’Brien had “no difficulty in the []
ability to comprehend and carry out simple directions, and perform repetitive, routine simple tasks.
There is no difficulty in the [] ability to comprehend complex tasks.” Id. at PID 505.
On June 24, 2015, O’Brien was seen at the Tri County Pain Consultants for complaints that
his back pain had continued to worsen over the past 18 months, weakness of the right leg worsened
by physical activity,3 and ongoing neck and knee pain. Id. at PID 507. During this examination,
O’Brien exhibited normal muscle tone and gait. Id. at PID 508. However, a straight-leg raising
test was positive on the right at 60 degrees and sensation was “slightly” diminished in the right L5
nerve distribution. Id. James Gilson, P.A., diagnosed O’Brien with lumbar/thoracic radiculitis and
lumbosacral spondylosis. O’Brien received an epidural injection. The following month, O’Brien
returned to Tri County and reported significant improvement from the epidural steroid injection
and some relief of his back pain. Id. at PID 520. His physical examination results were unchanged,
and he received another epidural injection. Id. at PID 522.
In August 2015, O’Brien returned to Tri County, reporting increased pain following a golf
outing, a cross-country trip to Colorado and back to move his daughter, and installing carpet. Id.
at PID 518. He was given another injection. In February 2016, examinations of O’Brien’s left
knee were within normal limits and muscle strength was 5/5. Id. at PID 630, 669. The following
month, O’Brien refilled his pain medication prescription after hurting his back shoveling snow.
Id. at PID 622. In April 2016, O’Brien reported increasing knee pain, but examinations revealed
3
O’Brien acknowledged that his pain was alleviated by medications and periods of rest.
4
19-2441, O’Brien v. Comm’r of Soc. Sec.
full knee strength and negative results for abnormalities. Id. at PID 510, 511, 515. He received
another injection to the left knee.
B. Procedural Background
O’Brien applied for Social Security DIB in February of 2015. His application was denied,
and he requested a hearing before an ALJ. On April 4, 2017, O’Brien had a hearing before ALJ
Lawrence Blatnik. At the hearing, O’Brien and a vocational expert testified. The ALJ issued a
decision denying O’Brien’s application for benefits on May 24, 2017. R. 8-2, PID 39.
The ALJ performed the required five-step sequential evaluation process for determining
whether a claimant is disabled. At step one, the ALJ determined that although O’Brien had worked
part-time during this period, his “work activity did not rise to the level of substantial gainful
activity.” Id. at PID 44. At step two, the ALJ determined that O’Brien had “degenerative joint
disease/meniscal tear of the left knee and degenerative disc disease of the cervical and lumbar
spine,” which qualified as severe impairments. Id. At step three, the ALJ concluded that
“[O’Brien] did not have an impairment or combination of impairments that met or medically
equaled the severity of [a] listed impairment . . . .” Id. at PID 46. As relevant here, the ALJ
determined that O’Brien’s spinal impairment did not meet or medically equal a listed impairment
because the listing
[r]equires an impairment resulting in the compromise of a nerve root or spinal cord.
Additionally, the claimant would need evidence of nerve root compression
characterized by a neuro-anatomic distribution of pain, limitation of motion of the
spine, and motor loss accompanied by sensory or reflex loss. He would also need
to show positive straight-leg raising in the sitting and supine positions. In the
alternative, the claimant could have spinal arachnoiditis, confirmed by an operative
note, pathology, report, or acceptable imaging. The spinal arachnoiditis would need
to manifest in severe burning or painful dysesthesia, resulting in the need for the
claimant to change position or posture more than once every two hours. If the
claimant does not meet either of the preceding options, he could show that he has
lumbar spinal stenosis resulting in pseudoclaudication, established by findings on
5
19-2441, O’Brien v. Comm’r of Soc. Sec.
acceptable imaging, that manifests in chronic nonradicular pain and weakness,
which results in the inability for the claimant to ambulate effectively.
Id. at PID 46. The ALJ determined that the medical evidence in the record did not meet any of
these conditions. At step four, the ALJ determined that O’Brien had the residual functional
capacity (RFC) to:
perform light work . . . . Specifically, he was able to lift, carry, push or pull
20 pounds occasionally and ten pounds frequently . . . was able to sit for six hours,
stand for six hours, and walk for six hours. He could occasionally reach overhead
with either upper extremity. The claimant could frequently handle and finger with
the right hand. He was able to climb ramps and stairs occasionally, but never climb
ladders, ropes, or scaffolds.
Id. at PID 47. Finally, the ALJ determined that, through the date last insured, O’Brien was capable
of performing his past relevant work as a shipping and receiving clerk, assembler, and inspector,
and, therefore, was not disabled. Id. at PID 49-50.
O’Brien sought judicial review in the district court, and the parties’ cross-motions for
summary judgment were referred to a magistrate judge for a report and recommendation (R&R).
R. 1. As relevant here, the R&R disagreed with the Commissioner and concluded that the ALJ
should have obtained a medical opinion on whether O’Brien’s medical impairments were
equivalent to a listed impairment at step 3.4 The R&R concluded, however, that the error was
harmless because O’Brien bore the burden of demonstrating that his impairments were at least as
severe as a listing, and he could not meet that burden given the evidence in the record. The R&R
4
This dispute centered on the applicability of Social Security Ruling 96-6p, which generally requires that the
finding at step 3 that a claimant does not medically equal a listed impairment be supported by a medical opinion. SSR
96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“longstanding policy requires that the judgment of a physician (or
psychologist) designated by the Commissioner on the issue of equivalence . . . .”). The Commissioner argued that
Social Security Ruling 17-2p, which repealed SSR 96-6p, applied. That Ruling provides that an ALJ may find that a
claimant does not meet or exceed a listed impairment even without a supporting medical opinion. See SSR 17-2p,
2017 WL 3928306, at *4 (effective Mar. 27, 2017). Because O’Brien filed his claim for benefits on February 17,
2015, which was a month prior to the effective date of SSR 17-2p, the magistrate judge concluded that SSR 96-6p
was applicable. See, e.g., R. 17, PID 787.
6
19-2441, O’Brien v. Comm’r of Soc. Sec.
also concluded that substantial evidence supported the ALJ’s RFC determination, and therefore
recommended that the Commissioner’s motion for summary judgment be granted. R. 17, PID
785-800.
O’Brien filed objections to the R&R, arguing that the ALJ’s failure at step three to obtain
a medical opinion on equivalence was per se reversible error and that the ALJ’s RFC determination
that O’Brien could perform a range of light work was erroneous. In response to O’Brien’s
objections to the R&R, the Commissioner repeated its assertion that SSR 17-2p5 applied and that
the ALJ properly considered all of the evidence when determining that O’Brien had the RFC to
perform a range of light work.
The district court concluded that the Commissioner forfeited the argument that SSR 17-2p
applies, and that the magistrate judge was correct that SSR 96-6p applied. R. 27, PID 873-74.
However, the district court concluded that even under SSR 96-6p, remand was not warranted
because O’Brien failed to show that his medical impairments met or exceeded a listing. Id. at 874-
75. The district court also determined that the ALJ’s RFC determination was reasonable and
appropriately considered all the evidence in the record, including O’Brien’s testimony about the
extent of his impairments. The district court held that O’Brien’s objections “amount to little more
than a critique on how the ALJ weighed the evidence.” Id. at PID 876. The district court granted
the Commissioner’s motion for summary judgment. Id. at PID 879. O’Brien renews his arguments
on appeal.
5
The Commissioner argued that there is nothing in SSR 17-2p stating that it applies only to claims filed on
or after its effective date. Rather, it became effective on March 27, 2017, and because it, and not its predecessor, was
in effect at the time the ALJ issued its decision, it applied. In support, the Commissioner cited to portions of the Social
Security Hearings, Appeals, and Litigation Law Manual (HALLEX) which instruct ALJs to cite SSR 17-2p even for
claims filed before March 27, 2017. See, e.g., R. 21, PID 835 (Comm’r Br., citing HALLEX § I-5-3-30(IV)(F), 2017
WL 1362776, at *5 (Apr. 14, 2017)).
7
19-2441, O’Brien v. Comm’r of Soc. Sec.
II. Discussion
We first consider the disputes between the parties about whether SSR 96-6p or SSR 17-2p
applies here and whether the Commissioner forfeited his argument that the latter applies by failing
to object to the R&R’s application of the former. On appeal, both parties cite language from the
HALLEX in support of their respective positions. We need not decide which view is correct,
however, because we agree with the magistrate judge and the district court that, even if SSR 96-
6p applies and the ALJ erred by failing to seek a medical opinion on equivalence, the error was
harmless.
At step three, O’Brien bears the burden of demonstrating from medical evidence in the
record that his impairments meet or exceed a relevant listing. Duncan v. Sec’y of Health & Human
Servs., 801 F.2d 847, 855 (6th Cir. 1986). “The listings define impairments that would prevent an
adult, regardless of his age, education, or work experience, from performing any gainful activity,
not just ‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (emphasis
added). To succeed on his claim that his impairments match a listing, O’Brien’s impairments
“must meet all of the specific medical criteria. An impairment that manifests only some of these
criteria, no matter how severely, does not qualify.” Id. at 530. In the alternative, O’Brien may
demonstrate medical equivalence by demonstrating that his impairments are “at least equal in
severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). But, “[f]or
a claimant to qualify for benefits by showing that his unlisted impairment, or combination of
impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed impairment.” Zebley, 493 U.S. at 531.
The only listing at issue is Listing 1.04(A) (Disorders of the spine). That Listing applies
when the impairment includes, inter alia, “herniated nucleus pulposus, spinal arachnoiditis, spinal
8
19-2441, O’Brien v. Comm’r of Soc. Sec.
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [or] vertebral fracture” that
“result[s] in compromise of a nerve root.” A given set of impairments may qualify under this
listing in several ways.6 But, the ALJ determined that none of the options applied here because
O’Brien’s medical examinations concluded that he retained full strength in his legs, there was no
evidence of nerve-root compression, and there was no evidence of positive straight-leg raising tests
in both the sitting and supine positions. R. 8-2, PID 46, 48.
We agree that because there is no evidence of nerve-root compression (accompanied by
motor loss and positive straight-leg raising tests in both the sitting and supine position), spinal
arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication, the evidence does not
support a finding that O’Brien’s impairments meet or are equivalent to this Listing. Bailey v.
Comm’r of Soc. Sec., 413 F. App’x 853, 855 (6th Cir. 2011) (“to establish the equivalent of nerve-
root compression, Bailey must demonstrate a lack of motor strength, a lack of sensory functions,
and a positive straight-leg raising test, among other things . . . . She cannot do so: numerous
doctors’ reports show the opposite of these findings.”); see also Kallenbach v. Berryhill, 766 F.
App’x 518, 520 (9th Cir. 2019) (per curiam) (holding that a claimant failed to meet Listing 1.04(A)
criteria where medical records of positive straight-leg raising tests did not specify both sitting and
supine testing). The January 2015 MRI finding of possible nerve-root contact and the one positive
straight-leg raising test fail to show “nerve root compression characterized by . . . positive straight-
leg raising test (sitting and supine).” Listing 1.04(A) (emphasis added). Because the evidence did
not show that O’Brien’s medical findings are equivalent to all the criteria in Listing 1.04(A), we
6
An impairment meets Listing 1.04(A) where there is 1) “[e]vidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).” 20 C.F.R. pt. 404, subpt. P, App’x 2 § 1.04.
9
19-2441, O’Brien v. Comm’r of Soc. Sec.
agree with the Commissioner that the failure to have a medical consultant evaluate the evidence
was harmless. Substantial evidence supports the ALJ’s conclusion that O’Brien’s impairments do
not meet or exceed this Listing.
O’Brien additionally argues that the ALJ’s RFC determination was not supported by
substantial evidence. “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence in this context “means—and means
only—‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”’ Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This standard
means that “the Commissioner’s decision cannot be overturned if substantial evidence, or even a
preponderance of the evidence, supports the claimant’s position, so long as substantial evidence
also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). In reviewing the ALJ’s decision, we “may not try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984). Finally, O’Brien bears the burden of demonstrating a RFC more restrictive than
that determined by the ALJ. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008).
As noted above, the ALJ determined that O’Brien had the RFC to perform light work and
was able to “lift, carry, push or pull 20 pounds occasionally and ten pounds frequently,” able to
sit, stand, and walk for six hours, and that he could “occasionally reach overhead with either upper
extremity,” “could frequently handle and finger with the right hand,” and “was able to climb ramps
and stairs occasionally, but never climb ladders, ropes, or scaffolds.” R. 8-2, PID 47.
In arriving at this RFC, the ALJ noted that
[O’Brien] alleges he was unable to work due to a combination of symptoms from
his impairments. Specifically, the claimant testified that he is unable to work due
to pain and [] has difficulty on his feet. He alleges he was able to be on his feet for
10
19-2441, O’Brien v. Comm’r of Soc. Sec.
less than 30 minutes. The claimant testified that he could [sit] or [stand] for
approximately 15 to 20 minutes at a time.
...
The claimant has complained of low back pain radiating into his left hip and neck
pain radiating into the bilateral shoulders. Examination has shown decreased range
of motion of the claimant’s cervical and dorsolumbar spine, with tenderness to
palpation. He had an antalgic gait. His strength was intact, but he had diminished
sensation in the right L5. . . . There was also multilevel spondylosis without
significant spinal canal stenosis at other levels. An MRI of his cervical spine
performed on May 8, 2015 showed multilevel cervical degenerative spondylosis
with narrow foraminal stenosis. The claimant received epidural steroidal injections
for his back pain, which alleviated his pain. Despite his back pain, the claimant
went on a three-day golf outing in the northern part of the state, drove to Colorado
and back, and installed carpet during the relevant time period.
The claimant has had tenderness to palpation of his bilateral knees, with full
strength and range of motion. X-rays of the claimant’s left knee taken on February
16, 2016, were essentially negative. X-rays of the claimant’s left knee taken on
April 11, 2016, showed minimal marginal spurring of the patellofemoral joint
compartment.
The claimant has complained of right hand pain after playing hockey. On
examination, he had some mild soft tissue swelling around the third
metacarpophalangeal joint. . . . The anti-inflammatory medication that he was using
helped alleviate his symptoms.
Id. at PID 47-48 (citations omitted). On appeal, O’Brien primarily challenges how the ALJ
evaluated the medical evidence in the record, contending that the ALJ ignored Dr. Lerner’s opinion
in December 2010 that O’Brien was disabled from gainful employment, over-emphasized
O’Brien’s successful treatment with pain relievers and steroid injections, and impermissibly
considered O’Brien’s outside activities when determining his RFC. We disagree.
First, Dr. Lerner’s December 2010 statement that O’Brien was “disabled” is not
dispositive. As we have explained before, an ALJ may “reasonably [give] no weight to [a treating
physician’s] opinion because [the] conclusion that [the claimant] is totally disabled is a
determination reserved to the Commissioner.” Cosma v. Comm’r of Soc. Sec., 652 F. App’x 310,
11
19-2441, O’Brien v. Comm’r of Soc. Sec.
311 (6th Cir. 2016); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (noting that “a
conclusion of disability is reserved to the Secretary . . . and that no ‘special significance’ will be
given to opinions of disability, even if they come from a treating physician”). This is especially
true where Dr. Lerner’s opinion omits any discussion of how the multiple impairments he
diagnosed limit O’Brien’s ability to work and why such impairments, in the aggregate, are work-
preclusive.
Second, we have often concluded that ALJs properly discounted the opinions of treating
physicians where the opinions were incompatible with the claimant’s generally conservative
course of treatment or activities of daily living. See, e.g., Kepke v. Comm’r of Soc. Sec., 636 F.
App’x 625, 631 (6th Cir. 2016) (concluding that ALJ had good reasons to reject physician’s
statement that claimant’s ailments were “quite restrictive” where the claimant had received only
conservative treatment for symptoms); Lester v. Soc. Sec. Admin., 596 F. App’x 387, 389 (6th Cir.
2015) (same); Turk v. Comm’r of Soc. Sec., 647 F. App’x 638, 641 (6th Cir. 2016) (concluding
that substantial evidence supported ALJ’s decision where pain medication and spinal injections
alleviated symptoms). Here, for example, medical records and O’Brien’s own testimony confirm
that the pain and anti-inflammatory medication and steroidal injections alleviated his pain.
Finally, O’Brien argues that the ALJ improperly considered his various activities, including
his recent part-time work, his three-day golf outing, his cross-country trip to and from Colorado,
and his daily activities. We have long held that “[a]s a matter of law, an ALJ may consider
household and social activities in evaluating complaints of disabling pain.” Blacha v. Sec’y of
Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (per curiam); Masters v. Comm’r of
Soc. Sec., 707 F. App’x 374, 379 (6th Cir. 2017) (“The ALJ reasonably noted that despite her
symptoms, Masters remains able to perform routine, daily tasks that he viewed as inconsistent with
12
19-2441, O’Brien v. Comm’r of Soc. Sec.
her allegations that her pain and symptoms were completely debilitating.”). Here, the ALJ
reasonably concluded that O’Brien’s subjective evaluations of his physical abilities was
inconsistent with his daily activities, his recent part-time work as a “clean-up man,” his golf trip
and cross-country trip to and from Colorado, his shoveling of snow, and his carpet installation.
Substantial evidence supports the ALJ’s conclusion that O’Brien experienced “mild to moderate
functional limitations in his ability to perform basic work activities . . . .” R. 8-2, PID 49. On this
record, O’Brien has not met his burden of demonstrating that the RFC assessed by the ALJ was
not supported by substantial evidence.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
13 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554056/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 7, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-8036
(D.C. No. 2:18-CR-00148-NDF-1)
JACKSON BURLEY COOMBS, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and EID, Circuit Judges.
_________________________________
Jackson Coombs challenges the reasonableness of his sentence. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On the night of July 28, 2018, Coombs assaulted M.C. in a women’s restroom
in Yellowstone National Park. When M.C. entered the restroom, she noticed that
someone was in one of the stalls—a pair of black cowboy boots was visible beneath
the stall partition. The boots were facing the wall, not the door of the stall. Getting a
“weird feeling,” M.C. entered the stall farthest from the occupied stall. As M.C.
*
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.
finished using the restroom, Coombs—who was wearing the cowboy boots—crossed
the restroom to M.C.’s stall, began pounding on the door, and battered it open.
Coombs had wrapped his face in toilet paper, and he held a can of bear spray
in one hand. He attacked M.C., spraying her in the face and eyes with the bear
repellent and punching her in the face and head. Coombs wore several large rings,
which worsened the blows. M.C. screamed for help as Coombs beat her to the floor
and straddled her. Attempting to escape, M.C. tried to squeeze under the wall of the
stall into the adjacent stall. Hearing her screams, M.C.’s boyfriend, W.L., entered the
women’s restroom and pulled Coombs off M.C. M.C. escaped the restroom while
W.L. and Coombs fought. Coombs bit W.L. in the chest and forearm, but W.L. was
ultimately able to wrestle Coombs to the floor. With the help of a passerby who
came to his assistance, W.L. kept Coombs pinned to the ground until law
enforcement arrived and placed him in handcuffs.
Coombs was charged and indicted for two counts of assault with a dangerous
weapon under 18 U.S.C. § 113(a)(3) and one count of assault resulting in serious
injury under 18 U.S.C. § 113(a)(6). He pled guilty to one count of assault with a
dangerous weapon and to the lesser-included offense of simple assault. Prior to
sentencing, the probation office issued a Presentence Investigation Report (“PSR”),
which was later revised after Coombs filed several objections. The revised PSR
described Coombs’ previous criminal history and history of drug abuse, particularly
of alcohol. Applying a two-level enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) § 2A2.2(b)(1) for more than minimal planning in the
2
commission of the aggravated assault, the revised PSR recommended a term of
imprisonment of 70 to 87 months. Coombs objected to the enhancement, contending
that he was too intoxicated to more than minimally plan the crime. He submitted
medical testimony regarding his level of intoxication at the time he assaulted M.C.
and argued that the PSR overstated his criminal history. Based on these objections,
Coombs sought a sentence in the 33- to 41-month range.1
The district court agreed with the probation office that the correct guidelines
imprisonment range for Coombs’ sentence was 70 to 87 months. After considering
Coombs’ objections and hearing witness testimony, the court sentenced Coombs to
78 months’ imprisonment, followed by three years’ supervised release, and ordered
him to pay $2,199 in restitution for his victims’ injuries. On appeal, Coombs
challenges the court’s application of the more-than-minimal-planning enhancement to
his sentence, and he contends that his sentence is substantively unreasonable.
II
We review a district court’s sentencing decision for reasonableness.
“[R]easonableness review has two aspects: procedural and substantive.” United
States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). “Review for procedural
reasonableness focuses on whether the district court committed any error in
calculating or explaining the sentence.” United States v. Friedman, 554 F.3d 1301,
1307 (10th Cir. 2009). Substantive reasonableness addresses “whether the length of
1
Coombs erroneously states in his opening brief that he sought a sentence in
the 31- to 41-month range. This discrepancy is immaterial to our analysis.
3
the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d
884, 895 (10th Cir. 2008) (quotation omitted). A sentence within the correctly
calculated guidelines range is presumed to be substantively reasonable. United States
v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
When reviewing a sentence for reasonableness, we apply “a deferential abuse
of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.
2008). We review the district court’s underlying factual findings in support of a
sentencing decision for clear error and its legal determinations de novo. Kristl, 437
F.3d at 1054. We accept a district court’s factual findings “unless the record does not
support them or, after reviewing the record, we are left with the definite and firm
conviction that a mistake has been made.” United States v. Archuletta, 231 F.3d 682,
684 (10th Cir. 2000) (quotation omitted). We will not reverse a district court’s
sentencing decision unless it is “arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)
(quotation omitted).
A
Coombs argues the district court procedurally erred by applying the more-
than-minimal-planning enhancement to his sentence. Section 2A2.2(b)(1) of the
United States Sentencing Guidelines provides for a two-level enhancement if an
aggravated assault involved “more than minimal planning,” meaning it involved
“more planning than is typical for commission of the offense in a simple form” or
4
“significant affirmative steps were taken to conceal the offense.” U.S.S.G.
§ 2A2.2(b)(1) cmt. n.2 (2018). Actions such as “luring a victim to a specific
location” or “wearing a ski mask to prevent identification” constitute more than
minimal planning to commit an aggravated assault, but merely waiting to commit the
offense until no witnesses are present is not enough. Id.
Coombs argues that the district court erred as a matter of law in applying the
enhancement because his crime “was not complex, did not involve significant
affirmative steps [taken] to conceal the crime, and did not involve complicated
criminal activity considered to be more blameworthy and deserving of greater
punishment than the commission of the offense in a ‘simple’ form.” To support this
argument, he cites numerous Tenth Circuit cases involving fraud or theft schemes in
which we applied the enhancement. He asserts that these cases demonstrate that the
level of planning necessary to apply the more-than-minimal-planning enhancement is
higher than the level of planning typically present in aggravated assault cases.
Similarly, Coombs cites several Fifth Circuit cases in which the enhancement was
applied in the aggravated assault context, but he contends that the facts of these cases
exhibit significantly more planning than his assault of M.C. Finally, Coombs points
to statistical evidence that the more-than-minimal planning enhancement is seldom
applied in aggravated assault cases nationwide and has not been applied in this
circuit.
These arguments do not help Coombs. Section 2A2.2(b)(1) expressly provides
for the application of the enhancement to aggravated assault sentences. Thus, the
5
Sentencing Commission has clearly approved its applicability in appropriate
aggravated assault cases. The mere fact that the more-than-minimal-planning
enhancement is applied more frequently to other crimes is legally irrelevant—it does
not render impermissible the application of the enhancement when the requirements
of § 2A2.2(b)(1) are met.
Nevertheless, Coombs implies that the more-than-minimal-planning
enhancement is inapplicable in aggravated assault cases because district courts did
not apply the enhancement in several such cases in Wyoming. See United States v.
Duran, 127 F.3d 911 (10th Cir. 1997); United States v. Montoya, 85 F.3d 641 (10th
Cir. 1996); United States v. Jenkins, 17 F. App’x 769 (10th Cir. 2001) (unpublished);
United States v. Yellowbear, 382 F. App’x 715 (10th Cir. 2010) (unpublished). But
none of these cases so much as mention the enhancement. Similarly, the Fifth Circuit
cases on which Coombs relies do little to support his contention that the more-than-
minimal-planning enhancement does not apply, as a matter of law, to his assault of
M.C. These cases merely identify particular facts the reviewing court held sufficient,
but not necessary, to support application of the enhancement; they do not purport to
identify a minimum level of planning required under § 2A2.2(b)(1). Accordingly,
Coombs’ reliance on these various cases is unavailing. See Auraria Student Hous. at
the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1242 (10th Cir.
2016) (questions “neither brought to the attention of the court nor ruled upon[] are
not to be considered as having been so decided as to constitute precedents”
(quotation omitted)); Merrifield v. Bd. of Cty. Comm’rs for Cty. of Santa Fe, 654
6
F.3d 1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding
precedent on an issue it did not address.”).
Additionally, Coombs argues that the district court legally erred in applying
the enhancement to his sentence because the enhancement applies only to complex
criminal activity. Citing Archuletta, Coombs asserts the more-than-minimal-planning
enhancement is designed to target criminals who engage in “complicated criminal
activity because their actions are considered more blameworthy and deserving of
greater punishment than a perpetrator of a simpler version of the crime.” 231 F.3d at
686. Coombs latches onto the word “complicated” and asserts that his crimes were
“uncomplicated assault[s].” But “complicated” is a relative term dependent on
comparison between the underlying criminal conduct for which the defendant is
being sentenced and the simplest form of the offense. See, e.g., United States v.
Moore, 225 F.3d 637, 642 (6th Cir. 2000) (“It is not necessary that a crime suggests
planning in its most deliberative form; rather, it is sufficient if the evidence suggests
merely that the crime was not committed in its simplest form.”); United States v.
Bean, 18 F.3d 1367, 1370 (7th Cir. 1994), abrogated on other grounds by United
States v. Vizcarra, 668 F.3d 516, 523 (7th Cir. 2012) (“The ‘offense’ is the crime of
which the defendant has been convicted, not of the particular way in which he
committed it.”). Archuletta involved bank fraud, which “is committed by one who
knowingly executes, or attempts to execute, a scheme or artifice (1) to defraud a
financial institution[] or (2) to obtain any of the moneys, funds or other property
under the custody or control of a financial institution by means of false or fraudulent
7
pretenses.” 231 F.3d at 684 (quoting 18 U.S.C. § 1344). By contrast, the
government contends—and Coombs does not dispute—that the simple form of his
crime required only that on a particular date, at a particular location, he knowingly
assaulted another individual with a dangerous weapon with the intent to do bodily
harm. See § 113(a)(3). Thus, the simple form of bank fraud is much more complex
than the simple form of aggravated assault with a deadly weapon. And, as the
Sentencing Guidelines indicate, merely donning a ski mask in an attempt to conceal
one’s identity constitutes more than minimal planning to commit an aggravated
assault. § 2A2.2(b)(1) cmt. n.2. Accordingly, the district court did not legally err in
applying the more-than-minimal-planning enhancement to Coombs’ assault simply
because aggravated assault is not “complicated criminal activity.” What matters is
whether Coombs more than minimally planned his assault of M.C, not whether his
offense was “complicated.”
Finally, with respect to the district court’s factual findings, Coombs challenges
several inferences the court drew from undisputed facts in the record. For example, it
is undisputed that Coombs was in a stall in the women’s restroom when M.C. entered
the restroom, but Coombs challenges the district court’s inference that he was
waiting in the stall and knew he was in the women’s restroom. Similarly, Coombs
challenges the district court’s inference that because he wrapped his face in toilet
8
paper, he attempted to conceal his identity.2 According to Coombs, his attack on
M.C. was spontaneous and did not involve significant affirmative steps to conceal the
offense. The district court found otherwise, and we discern no clear error in that
determination.
Coombs presented to the district court a narrative that he was drunk and
hallucinating when he assaulted M.C. The district court considered and rejected that
narrative. It noted that not even Coombs’ doctor “would go so far” as to suggest his
actions were the product of hallucination. Moreover, the record reflects that the
emergency room doctor who examined Coombs after the attack noted that “[h]e has
been drinking this evening, at least a fifth of vodka. He also uses oxycodone and
Adderall for ADHD and has taken both of those this evening. He is actually quite
awake and alert for having had these sedating medications. He clearly states that he
did not have a loss of consciousness.” In light of all the record evidence, the court
determined that the most logical inferences were that Coombs “knew he was in the
wrong restroom, that he battered his way into another stall where someone was there
not presenting any threat, and he concealed his identity during the course.” The
district court determined this “goes beyond the simple form of assault and is more
than minimal planning.”
2
Coombs asserts he did not take significant affirmative steps to conceal the
assault because he did not wear a ski mask and did not succeed in concealing his
identity. But wearing a ski mask is merely one example constituting more than
minimal planning, and the fact that Coombs—as he phrased it—“ineptly wrapped
toilet paper around the lower part of his face” does not mean he did not attempt to
conceal his identity.
9
Contrary to Coombs’ contention, these are reasonable inferences drawn from
undisputed facts in the record. In essence, Coombs complains that the district court
found persuasive an explanation different from the one he advanced. But where, as
here, there is “a range of possible outcomes the facts and law at issue can fairly
support,” the reviewing court does not “pick and choose among them” but rather
“defer[s] to the district court’s judgment so long as it falls within the realm of these
rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th
Cir. 2007). Because the record supports the district court’s factual findings, the court
did not clearly err by drawing inferences contrary to the ones Coombs would have
had it draw.
For these reasons, we conclude the district court did not commit procedural
error in applying the more-than-minimal-planning enhancement. Accordingly, we
conclude that the district court correctly determined the applicable guidelines
imprisonment range was 70 to 87 months.
B
Turning to substantive reasonableness, we conclude that Coombs has failed to
rebut the presumption that his sentence is substantively reasonable. As explained
above, the district court did not commit procedural error in calculating the guidelines
range for his sentence to be 70 to 87 months. Because the court’s ultimate sentence
of 78 months’ imprisonment falls within this range, it is presumptively reasonable.
Kristl, 437 F.3d at 1054.
10
Substantive reasonableness addresses “whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” Verdin-Garcia, 516 F.3d at 895. Under § 3553(a)(6),
sentencing courts must consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct.” Relying on statistical data regarding the infrequent application of the
more-than-minimal-planning enhancement in aggravated assault cases, Coombs
argues that his sentence is substantively unreasonable because it is “well above the
national average” and thus violates § 3553(a)(6). But § 3553(a)(6)’s consideration of
unwarranted sentence disparities is but one factor that a district court must balance
against the other § 3553(a) factors in arriving at an appropriate sentence. See United
States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010). Moreover, Coombs admits
he does not know whether the enhancement was applied in any of the cases
comprising the data set on which he relies for his purported average sentence. Nor
does he provide any information about the underlying facts of the aggravated assault
cases making up that data set. Without more, Coombs has failed to show that his
sentence is similar to the cases he asserts are comparable or that any disparity
between his case and these other cases is “unwarranted.” § 3553(a)(6).
Coombs also contends that the district court placed excessive weight on
§ 3553(a)(2)’s instruction to consider “the need for a sentence to reflect the
seriousness of the crime, deter future criminal conduct, prevent the defendant from
committing more crimes, and provide rehabilitation.” Specifically, he takes issue
11
with the court’s assessment that he had repeatedly received lenient sentences for
troubling conduct and was not deterred by these sentences from assaulting M.C. Yet
under our deferential standard of review, we must affirm “[a]s long as the balance
struck by the district court among the factors set out in § 3553(a) is not arbitrary,
capricious, or manifestly unreasonable.” Martinez, 610 F.3d at 1229 (quotation
omitted).
Coombs has not persuaded us that his sentence was arbitrary, capricious, or
manifestly unreasonable. He asserts that his crime was less serious than other
aggravated assault crimes committed in Wyoming, but this bare comparison does not
demonstrate an unreasonable application or balancing of the § 3553(a) factors.
Similarly, he attempts to minimize aspects of his criminal history, but he fails to
explain how the court’s assessment of his criminal history is erroneous. Instead, he
complains about the court’s “censorious tone” and insinuates that the sentencing
judge had a “personal and perhaps socio-economic connection to [M.C.]” These
conclusory and unfounded assertions fail to rebut the presumption that Coombs’
sentence is substantively reasonable.
Finally, Coombs argues that his sentence is longer than necessary to achieve
the goals of sentencing. See § 3553(a). But he fails to address the district court’s
thorough explanation as to why the 78-month sentence imposed was appropriate.
Instead, he asserts without elaboration that a 51-month sentence is more than
adequate to achieve the statute’s purposes. Again, without more, Coombs has failed
to rebut the presumption that his sentence is substantively reasonable.
12
Accordingly, we conclude the district court’s sentencing decision was not
substantively erroneous.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
13 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3400478/ | 1. Where, in a case previously brought to this court, error in the admission of incriminatory statements and confessions as not having been freely and voluntarily made was alleged, and a ruling was made thereon; and where the same question is again raised in the same case, upon its second appearance in this court, and it appears that on the second trial the evidence as to the circumstances under which the admissions and confessions were made was substantially the same as on the first trial, the ruling of this court in its first decision is "the law of the case" and a final adjudication of such question.
2. Where a defense of mental incapacity to commit a crime is interposed, *Page 642
and several defense witnesses testify in various degrees as to the lack of mental capacity of the accused; and where the State has introduced two written statements identified as having been taken down in the language of the accused; it is a proper subject of cross-examination for the solicitor-general to read such statements to the witnesses, in order to elicit from them whether the ability of the accused to make the statements displayed such memory, association of ideas, and ability to relate events in a chronological order, as would affect the opinion and testimony of the witnesses as to the mental condition of the accused.
3. Where a person testifies that certain articles of clothing exhibited to him are similar to those worn by a suspect in a murder case, whom the accused is attempting to identify as the guilty party, it is proper to exclude hearsay testimony identifying the ownership of the clothing as being that of the suspect. This evidence does not come within the exception to the hearsay-evidence rule as provided in the Code, § 38-302.
4. It is improper for counsel to remark upon the force or effect of evidence while it is being submitted to the jury; but where the remark is not prejudicial or inflammatory, and is withdrawn by counsel, and the court gives proper instructions to the jury, a mistrial is not required.
5. The side remarks or "side-bar" remarks made by the solicitor-general in the presence of the jury, to a witness who was leaving the stand. while improper, were not prejudicial or inflammatory, and in view of the instruction given by the court to the jury, did not require the grant of a mistrial.
6. It was proper to exclude a question predicated upon a fact not in evidence, and calling for an answer merely illustrating the operation of the witness's mind and his conclusion as to what he would have done under an assumed state of facts.
7. Where the accused had been previously tried for the same offense and a new trial granted, and at the second trial, during the examination of a witness who had testified in the previous trial but did not recall the date thereof, the solicitor-general exhibited a paper to him, and pointing out a date thereon, asked: "That is the jury's notation, 19th day of February, 1940?" this question was not tantamount to a statement by the solicitor-general that the previous jury had found the accused guilty, and the court did not err in refusing to declare a mistrial.
8. Where a defense witness was undergoing direct examination by counsel for the accused, and, to a statement made by the witness, the solicitor-general said: "I object to that. I will withdraw my objection; the Supreme Court — I am scared of the Supreme Court;" such statement was not prejudicial to the accused, and the trial judge properly over ruled a motion to declare a mistrial.
9. Declarations by another person to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial.
(a) Nor does the fact that the person, whose confession is sought to be introduced, is in another State and unavailable as a witness, or that there is evidence tending to establish his guilt, change the foregoing rule. *Page 643
10. In the charge of the court on the subject of reasonable doubt, it was not error to include the phrase, "a doubt for which you can give a reason."
11. The portion of the charge complained of, on the subject of the defense of insanity, the burden of proof, and the consideration of the evidence of insanity in connection with other evidence in the case in the event the burden of establishing insanity had not been carried by the accused, was not an expression of opinion by the court.
12. Where a ground of a motion for new trial is based on newly discovered evidence, and the affidavits setting forth the details thereof contain much that would not be admissible in the event of another trial, it is proper for the trial judge and for this court, in passing upon this ground, to consider only such portions of the alleged newly discovered evidence as would be admissible in the event of another trial.
(a) Considering only such parts of the alleged newly discovered evidence as would be relevant and admissible in the event of another trial, such evidence did not require the grant of a new trial, and the trial judge was correct in so ruling.
No. 14802. APRIL 6, 1944. REHEARING DENIED MAY 5, 1944.
1. The plaintiff in error was tried for murder. He was convicted without recommendation, and sentenced to death by electrocution. A motion for new trial was overruled, and is here for review. The record and the briefs are voluminous, together containing a thousand pages. The case was previously before this court. Bryant v. State, 191 Ga. 686
(13 S.E.2d 820). The evidence relied upon to sustain a conviction was proof of the corpus delicti, incriminatory admissions, confessions, and some evidence in corroboration of a confession. If the confessions and incriminatory admissions were properly admitted in evidence, as having been freely and voluntarily made under the Code, § 38-411, there would be sufficient evidence to authorize the verdict; otherwise the evidence would not be sufficient to sustain the conviction. Under the grounds of the motion for new trial, numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 16, 17, and 18, each relating to the evidence of different witnesses who testified in reference to admissions or confessions by the accused, the evidence under which the admissions and confessions were admitted is attacked as not establishing either as having been freely and voluntarily made. It is insisted that all evidence relating to admissions and confessions *Page 644
was the result of wrongful conduct on the part of the State's witnesses, and especially the conduct of and questioning by deputy sheriffs Waldron and Stokes, two of the State's witnesses; and that their conduct was such as to preclude any evidence of admissions and confessions, because the influence of the alleged coercion by these officers and other witnesses extended to and covered all admissions and confessions, and made them inadmissible as also coerced.
When the case was previously before this court, this same question was raised and ruled upon, and the evidence relating to the circumstances under which such evidence was admitted is set forth in that decision. Comparing the evidence relating to the admission of admissions and confessions which was adduced on the previous trial with that in the second trial, now under review, it is found to be substantially the same. In the first trial there was evidence that the two deputy sheriffs, at the request of the accused, had given him a total of about fifty cents with which to purchase tobacco and soft drinks. This evidence does not appear in the record of the second trial. Also, there was evidence in both trials that at the time the officers talked to the accused they were wearing their pistols, although nothing appears in the evidence reported in the former decision as to this except that the defendant in his subsequent statement said that the officers had their pistols; and one of the State's witnesses testified that on one occasion the officers had with them the gun which it was claimed the defendant had used. Other than this, there is no difference in substance, but only in phraseology.
In the previous decision, this court, in passing upon this evidence, held as a matter of law that the question of the voluntary character of these admissions and confessions was for the jury, and that it would not reverse the ruling admitting them in evidence. "A judgment of a trial court granting or refusing an injunction, when the same depends entirely upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question." Ingram v. Trustees of MercerUniversity, 102 Ga. 226 (29 S.E. 273); Hughes v.Morrison, 141 Ga. 476 (81 S.E. 202); City of Atlanta v.First Methodist Church, 83 Ga. 448 (10 S.E. 231); GeorgiaRailway Power Co. v. Decatur, 153 Ga. 329 (111 S.E. 911). "The charges of the court excepted to . . are in *Page 645
accordance with the law, as declared in this case, when it was formerly before this court. 62 Ga. 685. Whether that decision be right or wrong, it is immaterial to inquire; it is enough to know that it is the law of this case. Neither this nor the superior court has power to modify or change it." CentralRailroad v. Coggin, 73 Ga. 689, 695. Points of law decided by this court are res adjudicata upon another appearance of the same case. Lewis v. Hill, 87 Ga. 466 (13 S.E. 588). In referring to a previous decision in the same case, it was stated: "Whether this decision be right or wrong, it is the law of this case; it is res adjudicata." Saulsbury v. Iverson, 73 Ga. 733,735. Where a case was brought to the Supreme Court the second time, it was held that questions contained in the case at the time of its first appearance, though not insisted on, were res adjudicata. McWilliams v. Walthall, 77 Ga. 7. Where, upon a retrial, a case is brought to this court for a second time, the rulings in the first decision on undisputed facts became res adjudicata. Price v. Central of Georgia Ry. Co.,124 Ga. 899 (53 S.E. 455). The same ruling has been applied where the facts on the second trial were the same. Henderson v.Central Railroad. 73 Ga. 718 (3). This court will not review a former decision in the same case. Rawlins v. State,126 Ga. 96 (54 S.E. 924). Whether this court has power to review or reverse a decision formerly rendered in the same case has been doubted. Atlantic Birmingham Ry. Co. v. Cordele, 128 Ga. 293,296 (57 S.E. 493). Where a petition was dismissed in the trial court upon general demurrer, and the Court of Appeals reversed the judgment, and subsequently the Supreme Court rendered a decision in another case. the effect being to show that the decision of the Court of Appeals was erroneous, and after the rendition of such decision by the Supreme Court, the case first mentioned again came to the Court of Appeals, the Court of Appeals was bound by its first decision and should not follow the decision of the Supreme Court. Southern BellTelephone Telegraph Co. v. Glawson, 140 Ga. 507
(79 S.E. 136).
The doctrine of "the law of the case" is not confined to civil cases, but is applicable also to rulings made by our courts of review in criminal cases. Where a former decision has been rendered by this court in the same criminal case, on its subsequent appearance this doctrine has been applied where the evidence shows substantially *Page 646
the same facts: where there was a lack of proof of the corpus delicti and a connection of the accused with the alleged offense (Wellman v. State, 103 Ga. 559, 29 S.E. 761); that where the evidence did not authorize the conviction (Stephens v.State, 105 Ga. 844, 32 S.E. 344); where there was sufficient evidence to authorize the verdict (Walker v. State, 124 Ga. 97,52 S.E. 319) where under the evidence and the prisoner's statement, voluntary manslaughter was not involved (Herrington
v. State, 130 Ga. 307 (5), 60 S.E. 572); where manslaughter was not involved (Dotson v. State, 136 Ga. 243,71 S.E. 164); as to the effect of cheering and applause inside and outside the court room (Frank v. State, 142 Ga. 741 (4),83 S.E. 645, L.R.A. 1915D, 817); and as to the introduction of a letter in evidence. Tanner v. State, 163 Ga. 121 (4) (135 S.E. 917). Also see Leary v. State 14 Ga. App. 797
(82 S.E. 471), and Hudson v. State, 26 Ga. App. 786
(107 S.E. 400).
In accordance with what is heretofore said, the rulings invoked under the above-enumerated grounds of the motion for new trial, are controlled by the previous decision in Bryant v.State, 191 Ga. 686 (supra), as to the admission in evidence of the incriminatory statements and confessions, the refusal, on motion, to rule out the same, and as to the constitutionality of the admission of this evidence. It may be further said that the ruling there made, to the effect that the admission of this evidence was not in violation of the fourteenth amendment of the Federal constitution (Code, § 1-815). or the provision against self-incrimination in the State constitution (Code, § 2-106), has not been affected by the decision of the United States Supreme Court in the case of McNabb v. United States, 318 U.S. 332
(63 Sup. Ct. 608, 87 L. ed. 819). That case is not binding upon us. The prosecution there involved was under the Federal law in the Federal court, and at the outset of the opinion it was said: "We brought the case here because the petition for certiorari presented serious questions in the administration of Federal criminal justice." Also, it was there said: "In the view we take of the case, however, it becomes unnecessary to reach the constitutional issue pressed upon us." See Russell v. State,196 Ga. 275 (26 S.E.2d 528).
2. Grounds 10, 11, 12, and 13 of the motion deal with the same question. Each complains that the court erred in permitting the *Page 647
solicitor-general to read to a witness in the presence of the jury, parts or all of the written statements made by the accused on November 2 and 6. Under the 10th ground, it appears that the statement of November 6 was read to the defendant's witness, Lloyd Ricks. Under the 11th ground, that part of the statement of November 2, relating to the homicide, was read to the defendant's witness, P. H. Williams. Under the 12th ground, the statement of November 6 was read to the defendant's witness, Cliff Moody. The 13th ground was based on the reading of the statements of November 2 and November 6 to the defendant's witness, Dr. Otis Knight. The objection in each ground is that the court erred in permitting the solicitor-general to read and re-read these statements in the presence of the jury. It was pointed out that the statement of November 2 was read to the jury by solicitor-general Chas. H. Garrett when it was originally introduced in evidence, and that the statement of November 6 was read to the jury by R. H. Casson at the time it was introduced; and that to permit the solicitor-general to read and re-read these statements continuously during the examination of witnesses for the defendant, over the repeated objections of counsel for the accused, was tantamount to permitting the statements to be taken to the jury room with the jury.
Each of the foregoing witnesses had testified in reference to the mental condition of the accused. Lloyd Ricks had testified: "I don't think he is mentally balanced, . . didn't have any memory, . . he is balmy, and by that I mean feeble-minded." P. H. Williams had testified: "He acted just like an animal, . . [his] memory was very poor. He didn't seem to take in anything. . . [he] didn't seem to be able to have any impression of anything." Cliff Moody testified: "He didn't have as much sense as the average man on the chain-gang, . . he didn't have the sense that he really ought to have;" and in answer to a hypothetical question setting forth the time, place, and manner of the robbery and homicide in the instant case, the witness testified: "I would not think this boy has got sense enough to do it. . . I would not think he had that much sense." Dr. Otis Knight, who taught psychology and sociology at Mercer University, and who qualified as an expert, testified that he had given the accused an intelligence test, and that, "I determined the mental age as seven years, ten months, or eight years. . . By the system of grading and the *Page 648
scale now in use, the term that fits Willie now is imbecile. . . In my opinion Bryant is feeble-minded."
Each of the witnesses having testified as above indicated, and the witnesses who wrote down the two written statements having previously testified that each statement was taken down and recorded, as related by the accused in his own words, it was a proper subject and matter of cross-examination for the solicitor-general to read the statements to the witnesses, in order to elicit from them whether the ability of the accused to make such statements displayed such memory, association of ideas, and ability to relate events in chronological order, as would affect the opinion of the witnesses as to his mental condition.
3. Grounds 19 and 19A of the motion are based on the refusal of the court to permit G. C. Britt, a witness for the State, while on cross-examination, to answer the following questions: (10) "Do you recall whose jacket they identified it as being, as the Richard Collins jacket?" (19A) "I asked you whether or not that is the jacket that Officer McCallum told you was Richard Collins's jacket, and asked whether that jacket you are testifying about is the jacket that Mr. McCallum told you was Richard Collins's jacket and came from the Georgia-Carolina Oil Company?" To these questions the solicitor-general's objections on the ground of hearsay were sustained. The accused insists that the answers to these questions were admissible. Annie Ruth Clark had testified that immediately after the shooting she saw a man leave the premises wearing a certain described hat and jacket. Shortly after the crime was committed, Richard Collins was suspected, and subsequently, at the April, 1939, term of court, was indicted for the same murder. Soon after the murder and during the investigation, a hat and jacket, similar in description to those worn by the person who left the premises immediately after the shooting, were brought to headquarters. Annie Ruth Clark, who was taken to headquarters and shown the articles, testified: "I told them that that looked like the coat and hat I had seen that night." The witness, to whom the question now under consideration was propounded, and who was a police officer, had previously testified, "I saw this jacket which . . Annie Ruth Clark looked at . . I don't remember whether I was there when . . [she] looked at it or not." In some manner the coat and hat had been misplaced before the trial and were *Page 649
not available. The questions propounded to this witness, which are the subject of this ground of the motion, sought to elicit from him what some one had said as to whose coat and hat it was. If some one had told the witness that this was the Richard Collins coat and hat, it would not have been admissible for him to so testify. It would have been identifying the ownership of the articles by hearsay testimony. Such evidence does not meet the requirements of the Code, § 38-302, which provides: "When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." This section is limited to evidence of facts to explain conduct and ascertain motives, and the evidence now under question would neither explain the conduct nor ascertain the motive of either the witness or the accused.
4. Ground 20 alleges error in the refusal to grant a mistrial on account of a remark made by the solicitor-general during the redirect examination of the witness, J. C. Smith, who was in charge of the bureau of identification of the City of Macon. The witness had testified: "During the course of the investigation it developed that the person under suspicion had a jacket of that nature. The person under suspicion at that time was Richard Collins. I learned that Richard Collins had a coat and hat which answered the description which Annie Ruth Clark gave of the coat and hat worn by the man she saw the night of the crime. . . I did not have any other way of knowing whose coat and hat it was except by what somebody told me." Thereupon, the solicitor-general moved to rule out what the witness said as to the coat and hat belonging to Richard Collins, and the court ruled as follows: "I understood he introduced it for the purpose of explaining conduct. I will overrule the motion." Whereupon the solicitor-general stated "that he did not think the evidence amounted to a row of pins." The accused immediately made a motion for mistrial on the ground that it was improper for the solicitor-general to make this remark in the presence of the jury. After the motion for mistrial was made, the solicitor-general said: "I withdraw what I said. I wish I had never thought of it, never in the world." The court then overruled the motion for mistrial stating: "All questions of fact are to be considered by the jury and it is not a matter for counsel." *Page 650
The movant insists that the remark was harmful, hurtful, and prejudicial to his case. During the progress of a trial and while evidence is being submitted, counsel should avoid making remarks in the presence of the jury as to the force or effect of the evidence But where, as in the instant case, such a remark, though inopportune and out of place, was in no wise prejudicial or inflammatory it was not cause for a mistrial. Patterson v.State, 124 Ga. 408 (52 S.E. 534); Hicks v. State,196 Ga. 671 (2) (27 S.E.2d 307); Woodward v. State,197 Ga. 60 (8) (28 S.E.2d 480). While the remark, made at that particular time, was improper, yet it would have been a legitimate statement as to the force and effect of such evidence had it been made during the course of the solicitor-general's argument, as he would have had a right to draw from this evidence any inferences apparently reasonable and legitimate. Smalls v.State, 105 Ga. 669 (3) (31 S.E. 571). In view of the withdrawal of the remark by the solicitor-general and the instruction by the court to the jury, we cannot see how the accused was injured.
5. Ground 21 alleges error in the refusal to declare a mistrial on account of another remark by the solicitor-general in the presence of the jury. This remark was made just as Lady Dixon, a witness for the defense, had left the witness stand and was passing between the solicitor-general and the jury. Lady Dixon, as a witness, had shown "a poor ability at remembering dates," and upon the conclusion of her testimony and after leaving the witness stand, she asked, "can I go home?" Whereupon the solicitor-general replied: "Yes, if you know the way, and if you don't, somebody will tell you." Then the solicitor-general laughed and two or three of the jurors laughed with him. The motion for new trial states the remark was made "before the jury and in the presence and hearing of the jury, and of counsel for movant, and in the presence of the court, but said remark was not heard by the court." During the same day of the trial and after four additional witnesses had testified, the movant's counsel made a motion for a mistrial because of the remark. After the jury retired, the following took place. The judge said: "I don't know how we would be able to recall what transpired. I didn't hear it. I don't know whether you can agree upon what was said." Counsel for the movant then repeated the remark made by the solicitor-general, and the solicitor-general *Page 651
then stated: "She was coming along here by me. I had asked her two or three dozen questions . . ninety per cent. of which answers she didn't know. That is all I could get out of her, and she asked if she could be excused — said she wanted to go home — and then counsel asked me if I would excuse her and she looked at me and said, `Can I go home?' and I said, `Yes, if you know the way, and if you don't, somebody will tell you,' . . I said it in a jocular mood." The court overruled the motion, and upon the return of the jury gave them the following instructions: "I want to give you these instructions, gentlemen. If any side remarks or side remark was made by the solicitor-general to the witness, Lady Dixon, that is not a proper remark to be made in your hearing, and you will not consider that remark. It is not proper for any such remark to be considered by you as casting any reflection on the witness. You will erase any such remark or remarks from your mind, and not give it any consideration whatever upon the issues of this trial. I will overrule the motion." Movant insists that the remark was calculated to ridicule the witness and to discredit her testimony and therefore was highly prejudicial. Side remarks, or "side-bar" remarks, made by counsel during the trial of a case and in the presence of the jury, are improper. But all improper conduct in the court-room is not prejudicial or inflammatory as against the person on trial. The remark by the solicitor-general which is the subject of this ground of the motion for new trial was more a breach of the decorum of the court than a violation of the rights of the accused. In view of the instructions given to the jury, the circumstances did not require the grant of a mistrial.
6. Ground 22 alleges error in the sustaining of an objection to a question propounded on cross-examination to R. H. Casson, a witness for the State. This witness had testified that he knew nothing about the circumstances under which the written confession of November 6 was dictated, but that after the confession was written off he took it to the accused, read it over to him phrase by phrase, and as each phrase was read the accused asserted that it was correct. The written confession stated that about ten days after the homicide the accused left Macon and went to Mayfield where he spent $300 or $400, and then went to Valdosta and spent $300 or $400. On cross-examination the witness was asked: "If you had known that his mother had to borrow $3 to send him to Valdosta *Page 652
you would not have let him sign that statement?" The court sustained an objection to this question, and properly so. The question did not call for a fact, but instead for a mere operation of the witness's mind as to his conclusion of what he would have done under an assumed state of facts. Western UnionTelegraph Co. v. Watson, 94 Ga. 202, 206 (21 S.E. 457, 47 Am. St. R. 151); Friedlander v. Kassell, 38 Ga. App. 443
(2) (144 S.E. 143). Moreover, it was a hypothetical question to a non-expert witness, and at the time it was propounded it was not predicated upon any testimony then before the court.
7. The 23rd ground of the motion alleges error in the refusal to declare a mistrial on account of the conduct of the solicitor-general during the cross-examination of M. M. Ferrell, a witness for the accused. The witness had testified on direct examination that he had gone to the home of the accused and made an examination of the ground near the chimney under the house, and found no evidence indicating that anything had been buried there. On cross-examination by the solicitor-general the witness said: "Q. You went out there shortly before the defendant was tried the other time? A. Yes, sir. Q. That trial the other time was in February, 1940? A. I believe that is right. I don't remember the exact date on it." The solicitor-general then walked over to the witness stand where the witness was sitting and held before the witness's eyes the indictment against the movant in this case, and pointing his finger at the date on the verdict returned on the indictment by the jury which tried the case the first time, asked this question: "That is the jury's notation, 19th day of February, 1940?" to which the witness replied, "Yes, sir." Q. "How long before that trial was it before you went out to inspect the premises? A. Three or four weeks, I believe. Q. That was the last part of January? A. Yes, sir. Q. You went at the suggestion of Mr. Bootle?" Immediately after the last question above, counsel for the movant moved for a mistrial because of the question: "That is the jury's notation, 19th day of February, 1940?" and the conduct of the solicitor-general in presenting the indictment to the witness, as above stated. This ground states that, although the jury saw and heard all that was said and done while the paper was being held before the witness for his observation, they could not read any of the writing on the indictment. The movant insists *Page 653
"that this conduct of the solicitor-general was highly prejudicial, harmful, and hurtful to movant because it forcibly directed their attention to the fact that one jury had tried and convicted him for this same offense. Movant contends that when the solicitor-general asked in the jury's hearing "That is the jury's notation, 19th day of February, 1940?' he, in so many words, told the jury that the other jury convicted movant on February 19, 1940, for that as a matter of common knowledge juries make on indictments only two notations `guilty' or `not guilty,' and in those instances where the jury's notation is `not guilty,' there is no second trial. Movant contends therefore that since, as the jury well knew, they were trying movant the second time, that first `notation' referred to by the solicitor-general was, by virtue of the solicitor-general's reference to it, well known to the jury to be a notation of `guilty.'" In reference to this ground of the motion for new trial, the judge attached a certificate, as follows: "It is further certified that at the time the original indictment was shown to the witness Ferrell, and the question made the basis of this motion for mistrial was asked, the paper shown to this witness was not referred to as the indictment, and while the paper was being held before the witness for his observation, the jury could not then read any printing or writing on this paper. The court does not know whether any member of the jury ever knew that the paper exhibited to this witness was the original indictment. . . Second, it is further certified generally, and particularly with reference to ground 23 of said amended motion, that before this case was submitted to the jury, counsel for both sides agreed in open court that a copy of the original indictment, containing no reference whatever to arraignment, plea, or verdict on the former trial, should be prepared and submitted to the jury to be taken out with them in lieu of the original indictment. This agreement was approved by the court, and such a copy was prepared and taken out by the jury. This jury did not at any time have possession of the original indictment with the arraignment, plea, and verdict upon the former trial on it. According to the agreement between counsel, this agreement was not made in the presence of the jury and the substitute indictment was not prepared in the presence of the jury, nor was this agreement or substitution called to the attention of the jury."
The question for determination under this ground is whether or *Page 654
not the conduct of the solicitor-general and the statement made by him were tantamount to telling the jury that on a previous trial the jury had found the accused guilty under this charge. The fact that there had been a previous trial of the accused under this same charge was well known to the jury, as there is much reference in the record to what various witnesses had testified on the former trial, some of which had been brought out by counsel for the accused. In accordance with the facts contained in this ground, the jury saw the solicitor-general present a paper to the witness, point out an entry thereon, and ask this question: "That is the jury's notation, 19th day of February, 1940?" What paper it was, or its contents, in so far as this ground of the motion discloses, was not known to the jury. In this regard, it is stated that they could not read any of the writing thereon, and in the certificate of the trial judge it is stated that the paper was not referred to as an indictment. Considering all of the concomitant circumstances surrounding this incident — that is, that the witness was being questioned as to the date of the previous trial, and the solicitor-general exhibited to the witness a paper, pointed out a date thereon, and asked: "That is the jury's notation, 19th day of February, 1940?" — we cannot say that from such facts the jury, or any juror, deduced that the jury on the previous trial found the accused guilty. Had the language been: "That is the jury's verdict, 19th day of February, 1940?" with a reasonable amount of legal knowledge and by a process of logical deductions, it could have been determined that the jury had returned some verdict other than one of not guilty. But "notation" is not synonymous with "verdict," nor could it have necessarily been so construed by the jury in the instant case. While the question is novel, yet, to reach any other conclusion would require this court to give the jury credit for a knowledge of legal procedure and a power of analytic reasoning that is beyond the requirements of qualification for jury service.
8. The 25th ground of the motion alleges error in the refusal to grant a mistrial on account of a remark by the solicitor-general in the presence and hearing of the court and jury. This incident occurred during the direct examination of Leola Banks, a witness for the accused. In accounting for his absence from his home during a period of time between the homicide and his incarceration in jail, the accused sought to show that he left the city on account of *Page 655
trouble he had with some employees of the T. T. Packing Company, an incident entirely disconnected with the homicide which was the subject of the instant trial. Leola Banks testified: "He come back in the door panting like he was tried, and he said the T. T. man shot at him," to which the solicitor-general objected as follows: "I object to that. I will withdraw my objection; the Supreme Court — I am scared of the Supreme Court." Immediately upon the conclusion of the witness's testimony, and within thirty minutes after the solicitor-general made the remark, counsel moved for a mistrial and stated: "This remark was highly prejudicial because this case having been tried in this court was reversed and a new trial granted because of the error of the presiding judge in the exclusion of hearsay testimony, which was in explanation of conduct; and the jury impaneled to try this case must have been aware of the former trial." In this ground it is alleged that immediately after the first conviction of the movant, the Supreme Court had in January, 1941, reversed the conviction on account of error in the charge, and the exclusion of certain hearsay testimony; that the local newspapers had carried stories to this effect; that the solicitor-general, by the remark, "directed the attention of the jury to the prior conviction of movant on this same charge;" and that it was "equivalent to the solicitor-general's stating to the jury that a prior jury had convicted movant on this same indictment for this same charge." Much that is said in the preceding division of this opinion in reference to the assumed power of deduction by the jury is applicable here. While it is better practice, during the trial of cases, for the court and counsel not to make references to the power of the reviewing courts except to cite their decisions as authority: yet the statement here made by the solicitor-general could in no wise be so construed as prejudicial to the accused, and the trial judge properly overruled the motion for a mistrial.
9. The 24th ground of the motion alleges error in the court's refusal to permit Will Ross, a witness for the accused, to answer the following question: "What did he (Colonel Dixon) tell you?" The accused sought to establish that Colonel Dixon was guilty of the crime for which the accused was being tried, and upon the court's refusal to permit the witness to answer the foregoing question, counsel for the accused related the witness's expected response. This response, as stated by counsel, would have been that a statement *Page 656
was made by Colonel Dixon to the witness, Will Ross, in which Colonel Dixon admitted that he killed the man for whose homicide the accused was charged, and related details of the manner in which the killing took place (the proposed statement in no way connecting the accused with the crime). In support of the admission of this testimony from Will Ross, counsel related testimony that would be offered, and other testimony that had previously been admitted, to connect and illustrate the proposed testimony, and to establish that Colonel Dixon had committed the homicide, and also evidence that Colonel Dixon was in another state and accordingly inaccessible.
It is a well-settled principle of law in this State that statements made by another person to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. This principle has been applied where it was sought to introduce the confession of one who was not accused of having any connection with the crime. Moughon v. State, 57 Ga. 102 (3); Daniel v.State, 65 Ga. 199; Lowry v. State, 100 Ga. 574
(28 S.E. 419); Beach v. State, 138 Ga. 265 (2) (75 S.E. 139);West v. State, 155 Ga. 482 (117 S.E. 380); Johnson v.State, 188 Ga. 662 (4 S.E.2d 813). The same principle has been applied to the admission of confessions by one who was jointly indicted with the accused. Lyon v. State, 22 Ga. 399;Kelly v. State, 82 Ga. 441 (2) (9 S.E. 171);Robison v. State, 114 Ga. 445 (2) (40 S.E. 253);Whitaker v. State, 159 Ga. 787 (127 S.E. 106); Parks v.State, 24 Ga. App. 243 (100 S.E. 724). The same rule has been followed where it was sought to procure a new trial on the ground of newly discovered evidence that another had confessed to the crime. Briscoe v. State, 95 Ga. 496 (20 S.E. 211);Hubbard v. State, 57 Ga. App. 856 (2) (197 S.E. 64). And also, where there was a motion to continue on account of the absence of a witness who would testify that one jointly indicted with the accused had confessed. Delk v. State, 99 Ga. 667
(3) (26 S.E. 752).
The accused insists that none of the above-cited cases are controlling, as there is nothing in any of them to show that the person who it was claimed made the confession was inaccessible to the court, or that there was other evidence pointing to the guilt of the person making the confession; whereas, in the instant case, *Page 657
there was evidence that he was inaccessible and also much evidence to indicate his guilt. In Green v. State, 153 Ga. 215
(2) (111 S.E. 916), it was held: "The declaration of a person, since deceased, that he committed the killing for which the accused was on trial, was not admissible on behalf of the latter." Under this ruling it seems to be definitely settled that the inaccessibility of the person making the confession does not alter the rule. Counsel for the accused requests that this case be reconsidered, reviewed, and overruled, in so far as it is inconsistent with the admissibility of this evidence offered by the witness, Will Ross. This court declines to do so, as we consider this ruling sound, and in accordance with the overwhelming weight of authority on this subject. 20 Am. Jur. 428, § 495; 35 A.L.R. 441; 48 A.L.R. 348; 37 L.R.A. (N.S.) 345; 16 C. J. 643, § 1278; Ann. Cas. 1913E, 722. Nor does the fact that there is other evidence to connect the one whose confession is sought to be introduced change this rule. While there is some authority to the contrary from other courts, based upon particular circumstances, yet we do not think such exceptions are sound; and to follow any rule other than what is herein stated would not be conducive to a proper administration of our criminal law.
10. Ground 26 complains of error in the charge of the court on the subject of reasonable doubt, to wit: "Now a reasonable doubt is just what the term implies. It is a doubt based upon reason, a doubt for which you can give a reason;" the particular objection being to the phrase, "a doubt for which you can give a reason." This exact language has heretofore been held not to be error.Vann v. State, 83 Ga. 44 (4) (9 S.E. 945); Jordan v.State, 130 Ga. 406 (60 S.E. 1063); Arnold v. State,131 Ga. 494 (4) (62 S.E. 806); Hudson v. State, 153 Ga. 695
(12) (113 S.E. 519); Holmes v. State, 194 Ga. 849 (2) (22 S.E.2d 808); Andrews v. State, 196 Ga. 84 (10) (26 S.E.2d 263). Counsel's motion to reconsider and overrule these cases is denied.
11. The 27th ground alleges error in the following portion of the charge on the subject of insanity: "I charge you that although the burden of establishing his insanity or unsoundness of mind at the time of the alleged offense be not successfully carried by the defendant, so as to authorize his acquittal on this ground, it is nevertheless the duty of the jury to consider the evidence touching *Page 658
the alleged insanity in connection with the other evidence in the case; and if, in view of all the evidence, the jury entertain a reasonable doubt of the guilt of the defendant, he should be given the benefit of that doubt and should be acquitted." It is insisted that the portion of the above statement, to wit, "that although the burden . . be not successfully carried by the defendant," was an expression of opinion by the court that the accused had not successfully carried the burden of establishing his insanity. We can not agree to this interpretation. Just preceding this paragraph, the court had charged on the preponderance of evidence to establish the defense of insanity; and when taken in connection with that part of the charge, the portion complained of could not be construed as an expression of opinion, but must be taken merely as a further instruction that, in the event the accused had not carried the burden of establishing insanity, it would be their duty to consider such evidence along with all the other evidence in passing upon his guilt or innocence.
12. The 28th ground of the motion is based upon newly discovered evidence contained in fourteen affidavits of witnesses accompanied by supporting affidavits; and the effect of each is to establish that Colonel Dixon, and not the accused, is the guilty party. In the trial of an accused, it is always proper and relevant for the accused to introduce evidence to show that some one else, and not the accused, is the guilty party; but evidence to establish this fact must be such evidence as is relevant on the trial of the accused, and does not necessarily include all evidence that would be relevant on the trial of the one who the accused seeks to show was the guilty party. From a perusal of the fourteen affidavits, forming the basis of this ground of the motion, practically all, or at least a great portion, of the facts set forth would be proper evidence on the trial of Colonel Dixon; but a large portion of these facts would not be relevant in the event of another trial of the accused. We must view the facts stated in these affidavits purely from the point of view of their relevancy and effect in another trial of the accused, and not as they may relate to a trial of Colonel Dixon. After a painstaking examination of each of these affidavits. eliminating therefrom the parts that would not be legal testimony in another trial of the accused, the material parts may be summarized as follows: That Colonel Dixon was in Macon Saturday *Page 659
morning before the killing of Mr. Trice that night. He was dressed in overalls, had on a jacket that zipped up, which was shorter than the ordinary coat, and wore a cap, all being similar to those worn by the party who did the killing. He had always worn good neat dress clothes, and was never seen before this date wearing any work clothes like those worn that morning. He had no job but always had money. He owned a pistol that was bright-colored. He was not seen in Macon from the Sunday, the day after the killing, until three or four weeks later. In the latter part of September, 1941, he was placed in the jail at Macon. On July 1, 1942, he was sent to the State Hospital at Milledgeville, and at that time was in a highly excited condition; but responded to treatment and was returned back to the jail in Macon on August 21, 1942. When confronted with the women with whom he had previously lived, with his sisters, and with his mother, he would not recognize them, but subsequently recognized his mother.
While the affidavits relied on to constitute this ground are copious, yet when their inadmissible parts are deleted, and consideration is given to only the portion which would be admissible in the event of another trial (as above set forth), it is apparent that such portion would not have required the trial judge to grant a new trial, and his refusal to do so was not error.
The trial judge did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4048497/ | ACCEPTED
12-15-00043-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
6/15/2015 10:05:11 AM
CATHY LUSK
CLERK
NO. 12-15-00043-CR
FILED IN
12th COURT OF APPEALS
STATE OF TEXAS § IN THE TYLER, TEXAS
§ 6/15/2015 10:05:11 AM
VS. § TWELFTH COURT CATHY S. LUSK
§ Clerk
MIKO PARKS § OF APPEALS
SECOND MOTION TO EXTEND TIME TO FILE APPELLANT'S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes Miko Parks, Appellant in the above styled and numbered cause,
and moves this Court to grant an extension of time to file appellant's brief, pursuant
to Rule 38.6 of the Texas Rules of Appellate Procedure, and for good cause shows
the following:
1. This case is on appeal from the 159th Judicial District Court of
Angelina County, Texas.
2. The case below was styled the STATE OF TEXAS vs. Miko Parks,
and numbered 2014-0129.
3. Appellant was convicted of Possession of Marijuana and Possession
of Controlled Substance.
4. Appellant was assessed a sentence of nine years eleven months
incarceration in the Texas Department of Criminal Justice Institutional Division on
January 30, 2015.
5. Notice of appeal was given on February 2, 2015.
6. The clerk's record was filed on March 31, 2015; the reporter's record
was filed on April 15, 2015.
7. The appellate brief is presently due on June 15, 2015.
8. Appellant requests an extension of time of 30 days from the present
date, i.e. July 15, 2015.
9. One previous extension to file the brief has been received in this
cause.
10. Defendant is currently free on bond.
11. Appellant relies on the following facts as good cause for the requested
extension:
Counsel has a burgeoning practice. Counsel is preparing numerous felony
and misdemeanor cases in Angelina County, Nacogdoches County, Polk County,
Trinity County, San Jacinto County, Shelby County, and Cherokee County, Texas.
In addition, the Reporter’s Record in this case is very extensive and counsel needs
additional time to complete and file Appellant’s Brief.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court grant this Motion To Extend Time to File Appellant's Brief, and for such
other and further relief as the Court may deem appropriate.
Respectfully submitted,
DEATON LAW FIRM
103 East Denman
Lufkin, TX 75901
Tel: (936) 637-7778
Fax: (936) 637-7784
By:
T. Ryan Deaton
State Bar No. 24007095
Attorney for Miko Parks
CERTIFICATE OF SERVICE
This is to certify that on June 15, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Angelina
County, Texas, by fax.
T. Ryan Deaton | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1126651/ | 637 So. 2d 45 (1994)
STATE of Florida, Appellant,
v.
Reginald Demond WILLIAMS, Appellee.
No. 92-04414.
District Court of Appeal of Florida, Second District.
May 13, 1994.
*46 Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellant/cross-appellee.
James Marion Moorman, Public Defender, and Timothy J. Ferreri, Asst. Public Defender, Bartow, for appellee/cross-appellant.
FRANK, Chief Judge.
The state has appealed the downward departure sentence imposed upon Reginald Demond Williams following his convictions for two counts of sexual battery with a deadly weapon, kidnapping, and grand theft. Williams has cross-appealed, contending that the court erred in scoring points for victim injury and in adjudicating him guilty of sexual battery with a deadly weapon. We affirm the convictions but reverse the sentence.
Williams was sentenced to 7 years in Florida State Prison, to be followed by 10 years of probation. The trial court relied in its order upon Williams' age (17) and a minimal prior record as the reasons for departing from the recommended range of 12 to 17 years and the permitted range of 9 to 22 years. His age and prior record, however, without more, cannot support a downward departure. State v. Matlock, 544 So. 2d 244 (Fla. 2d DCA 1989). Although age and the lack of prior record can be factors when there are other extraordinary reasons to support downward departure, such as the help of relatives and friends, rehabilitation, and participation in a treatment program, found appropriate in State v. Frinks, 555 So. 2d 916 (Fla. 1st DCA 1990), the trial court in this instance made no equivalent findings. Upon remand, Williams must be sentenced within the guidelines. At resentencing, however, the trial court should delete victim injury points from the scoresheet calculations. Nothing in the record indicated that the victim sustained physical injury. See Karchesky v. State, 591 So. 2d 930 (Fla. 1992).
Williams also asserts that he should not have been found guilty of sexual battery with a deadly weapon because he neither possessed nor used the weapon during the crime. The record discloses that Williams and his co-defendant, Findley, approached the victim in the parking lot of her apartment complex. The evidence was conflicting as to which of them held the gun when she was forced into her car but it was not disputed that Williams drove the car from the apartment while Findley, holding the gun, forced the victim to perform oral sex, raped her, and fondled her breasts. Williams became a principal in the crime of sexual battery by aiding and abetting Findley. § 777.011, Fla. Stat. (1991); Taylor v. State, 619 So. 2d 1017 (Fla. 5th DCA 1993). Williams claims that physical possession of the weapon is a prerequisite for a conviction of this offense. He grounds that contention upon the notion that a minimum mandatory sentence for possession of a firearm after conviction of the crime of robbery cannot be imposed unless the defendant has physically used the gun. The robbery setting, however, is governed by a specific statutory prohibition against the imposition of a minimum mandatory sentence when the crime occurs without a gun. Hence, the analogy fails. § 775.087(2); Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993). In the absence of a special statute to the contrary, Williams was properly convicted and sentenced for the life felony of sexual battery with a deadly weapon based upon his involvement as a principal in the crime.
Affirmed in part; reversed in part; and remanded for resentencing.
PARKER and LAZZARA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4000815/ | This is a companion case of Cypert v. Roberts, ante p. 33,13 P.2d 55, tried in the superior court at the same time and presented together in this court. The questions involved are in all material respects similar to those in the Cypert case, and upon the authority of that case, the judgment of the superior court in this case is reversed, with directions to the superior court to enter judgment for the appellant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1975269/ | 1 B.R. 740 (1979)
In re RITE-CAP, INC., Debtor.
Bankruptcy No. BK-79-242.
United States Bankruptcy Court, D. Rhode Island.
December 28, 1979.
Laurent C. Bilodeau, Woonsocket, R.I., for Rite-Cap, Inc.
Norman Orodenker, Providence, R.I., for Tecknor Apex, Co.
MEMORANDUM OPINION
ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.
Heard on September 14, 1979 on the petition of Tecknor Apex, Co. to adjudicate Rite-Cap, Inc. an involuntary bankrupt, and Rite-Cap Inc.'s motion to dismiss the petition.
The facts in this case are undisputed. On July 20, 1979, Tecknor Apex Co. filed a *741 receivership petition against Rite-Cap in Rhode Island Superior Court, and a temporary receiver was appointed. On August 2, 1979, Tecknor Apex filed an involuntary bankruptcy petition against Rite-Cap, requesting that it be adjudicated a bankrupt. The act of bankruptcy alleged in Tecknor Apex's petition is that Rite-Cap had suffered the appointment of a state court receiver. On August 31, Rite-Cap filed its answer to the involuntary bankruptcy petition, and moved for dismissal on the ground that Tecknor Apex is estopped to act as a petitioning creditor because of its participation in the alleged act of bankruptcy.[1]
On September 6, 1979, shortly after Rite-Cap had filed its motion to dismiss, Long Mile Rubber Co. (through the same attorneys representing Tecknor Apex) filed a petition requesting that it be allowed to join in these proceedings as a petitioning creditor. The effect of allowing Long Mile to join in the involuntary bankruptcy petition would be to cure any defect arising from Tecknor Apex's state court participation in creating the act of bankruptcy. Rite-Cap objects to the joinder of Long Mile.
Section 59d of the Bankruptcy Act, and Bankruptcy Rule 104(e) which incorporates § 59d, sets forth the applicable rule for permitting joinder of petitioning creditors. Rule 104(e) provides that "creditors other than the original petitioners may join in an involuntary bankruptcy proceeding at any time before its dismissal." Creditors who are allowed to intervene in support of a petition under Rule 104(e) acquire the status of a petitioning creditor as of the date on which the original petition was filed. See, Canute Steamship Co., Ltd. v. Pittsburgh & West Virginia Coal Co., 263 U.S. 244, 249, 44 S. Ct. 67, 68 L. Ed. 287 (1923).
Joinder of petitioners under Rule 104(e) is considered to be a matter of right where the original petition was filed in good faith, but is later found to be defective because of failure to meet the requirements of the Bankruptcy Act for filing an involuntary petition. In re Crown Sportswear, Inc., 575 F.2d 991, 993 (1st Cir. 1978); Guterman v. Parker, 86 F.2d 546 (1st Cir. 1936). Section 59b of the Bankruptcy Act permits a single creditor to file an involuntary bankruptcy petition if its claim is at least $500, and if the debtor has fewer than twelve creditors. 11 U.S.C. § 95b. Rather than ordering dismissal of a petition, courts normally allow additional creditors to join in and cure the petition of any defects relating to the requisite number or qualification of creditors, or the aggregate amount of alleged debt. As the United States Supreme Court stated in Canute Steamship Co., Ltd. v. Pittsburgh & West Virginia Coal Company,
". . . where a petition for involuntary bankruptcy is sufficient on its face . . . and containing all averments essential to its maintenance, other creditors . . . who . . . intervene in the proceeding and join in the petition . . . are to be counted at the hearing in determining whether there are three petitioning creditors qualified to maintain the petition, it being immaterial whether the three qualified creditors joined in the petition originally or by intervention." Supra, 263 U.S. at 249, 44 S. Ct. at 68.
An essential prerequisite for allowing joinder of additional creditors to cure a defective petition is that the petition was filed initially in good faith. If the original petition was a sham, prepared with a view of being later supported by intervention of other creditors, joinder should be denied. In re Crown Sportswear, Inc., supra, at 994; Pianta v. Reich Co., 77 F.2d 888, 891 (2nd Cir. 1935). For example, where the creditor bringing the involuntary petition affirmatively participated in the act of bankruptcy, and its participation can be imputed to other creditors who later seek to join in the proceeding under Rule 104(e), the petition will be dismissed, In re DeGelleke Co., Inc., *742 411 F. Supp. 1320 (E.D.Wis.1976); In re Acorn Electric Supply, Inc., 339 F. Supp. 785 (E.D.Va.1972), and if the original petition is filed in bad faith and with knowledge of its falsity, it will be dismissed as a fraudulent attempt to confer jurisdiction on the court. In re Crofoot, Nielsen & Co., 313 F.2d 170, 171 (7th Cir. 1963).
In the present case, it is clear that Tecknor Apex participated in the act of bankruptcy alleged in its petition, and is precluded from bringing an involuntary bankruptcy petition. The issue facing this court, however, is whether the original petition was made in bad faith so that Long Mile Rubber Co. should be prevented from joining as a qualified creditor and curing the petition. See, Myron M. Navison Shoe Co., Inc. v. Lane Shoe Co., 36 F.2d 454, 459 (1st Cir. 1929). The burden of proof in demonstrating bad faith which would prevent the joinder of Long Mile in the involuntary bankruptcy petition rests with the objectorin this case Rite-Cap, Inc. Here, there is no evidence to support a determination that Tecknor Apex's original petition was filed in bad faith, notwithstanding its participation in the alleged act of bankruptcy. There are allegations of Machiavellian conduct and conclusory statements by counsel in oral argument on the motion, but no evidence on the point.
Assuming that Rite-Cap had proved that Tecknor Apex initiated the state court receivership with the express intention of creating an act of bankruptcy, later to be used as the basis for an involuntary bankruptcy petition, we disagree that this alone constitutes sufficient bad faith to warrant dismissal. The act of bankruptcy requirement itself, by denying bankruptcy court protection to creditors of often hopelessly insolvent debtors, forces such creditors to circumvent this requirement in order to protect their fading interests. See e.g., Note, Counting Creditors and Petitioning Creditors in Bankruptcy, 48 Iowa L.Rev. 833 (1963). The new Federal Bankruptcy Code, 11 U.S.C. 101 et .seq., effective October 1, 1979, repealed the requirement of commission of an act of bankruptcy to support an involuntary bankruptcy petition, in recognition of the wasteful litigation and lengthy delays caused by this provision. See, Report of the Commission on the Bankruptcy Laws of the United States, H.R.Doc.No. 93-137, 93rd Cong., 1st Sess., 186-91 (1973). Because Rite-Cap failed to meet its burden of proof with respect to the presentation of any evidence which would support a finding that Tecknor Apex Inc. acted in bad faith, we conclude that Tecknor Apex acted in good faith in filing the involuntary bankruptcy petition. In the circumstances here, and in the absence of evidence to the contrary, we conclude that the conduct of the parties does not constitute bad faith so as to require dismissal of the involuntary petition.
Our position is consistent with the First Circuit Court of Appeals decision in In re Crown Sportswear, Inc., in which the court stated:
"[I]ntervention is a matter of right unless the bankruptcy court finds the petition was filed in bad faith for the purpose of improperly invoking its jurisdiction. Good faith is presumed and the burden of showing bad faith rests on the alleged bankrupt or another interested party." Supra, at 993. (emphasis added.)
Accordingly, Long Mile Rubber Co. can properly join as a petitioning creditor in the involuntary bankruptcy petition. Rite-Cap's motion to dismiss the petition is denied.
The parties are directed to present a judgment in accordance with the terms of this decision for entry within ten (10) days.
NOTES
[1] Rite-Cap admitted in its answer that it had less than twelve creditors, but left "the amount and extent of [its] debt to the Petitioner's proof." See 11 U.S.C. § 95b. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3849062/ | Argued December 7, 1928.
This case calls for a more detailed explanation of what was intended to be included in the exception mentioned in Greene Co. v. Southern Surety Co., 292 Pa. 304, 311, where "life insurance policies and mortgage clauses in fire insurance" were mentioned as cases in which it has been universally held that a third party beneficiary could sue. It is not to be supposed that there is any particular virtue in the terms "life insurance," or "fire insurance," or that these were used in an exclusive sense. The reasons for sustaining a third party beneficiary action in such cases should be available for insurance policies generally.
Lillian Dickson, injured by Rose Son's truck, recovered a judgment of $6,000 for the damages sustained. Rose Son had protection by the defendant, an insurance carrier, in the sum of $5,000, the policy reading: "against loss from the liability imposed by law upon the Assured for damages on account of bodily injuries." It also contained the further provision: "G.G. The insolvency or bankruptcy of the Assured shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the term of this policy, but in case of such insolvency or bankruptcy an action may be maintained by the claimant against the company subject to the terms of this policy." Averring that Rose Son was insolvent, Miss Dickson instituted an action in the name of Rose Son, to her use, under this clause, to recover the amount of the judgment from the insurance company. The court below sustained the action. The insurance company claims (1) that its policy is one of indemnity and an action on it could not be maintained until the indemnitee had paid the judgment; *Page 209
(2) that claimant is a third party beneficiary and has no right of action directly or indirectly to sue the company because of her damages, and paragraph G.G. did not enlarge her right in this respect; (3) that in any case, suit cannot be in claimant's name.
No right of action accrues, in a simple contract of indemnity, until the indemnitee has suffered a loss against which the covenant runs. The party protected cannot recover until he has actually been damnified. But, though the present policy was "to indemnify the insured against loss," paragraph G.G. broadens the normal effect of these words. It has the effect of making it similar to a mortgagee clause in an insurance policy as discussed in Knights of Joseph B. L. Assn. v. Mechanics' Fire Ins. Co. of Phila., 66 Pa. Super. 90; Trustee B. L. Assn. v. Liverpool, London and Globe Ins. Co., 93 Pa. Super. 242. By the words "insolvency or bankruptcy do not release the company from payment . . . . . ., but an action may be maintained by the claimant," the contract clearly recognizes indemnity alone was not intended; if loss was made certain by suit, as required by the contract, yet, as the insolvency or bankruptcy of the insured might defeat the purpose of the hazard either through payment to him directly or to his trustee or assignee, it was no doubt because of this possibility the right to recover under the policy was in positive terms transferred from the insured to the claimant.
The transfer of the right was not solely for claimant's benefit. The judgment was a continuing liability against the insured, even though not paid. The policy was to protect this form of liability, and it was to insured's interest to see this purpose would not be defeated. The insurance company was to respond when that liability was lawfully imposed. The insured could sue the company, or, if they became bankrupt or insolvent, the claimant could sue the company. The latter circumstance would not add the slightest to the insurance company's burden, as it embraced every element of liability *Page 210
created by the contract. The indemnity feature, therefore, does not affect claimant's right of action if it was otherwise permissible.
Insurance contracts generally, as related to third party beneficiaries, are in a class by themselves. An action may be maintained directly thereon against the insurer. Whether the right is created by the agreement, or arises when the event happens which the contract contemplates, or is imposed directly or indirectly as a matter of public policy by statute, there is little difference in practical conception, and certainly none in their legal effect. The beneficiary may sue. Take away this right and insurance passes out as a protection not only to property rights, but to the security of estates and the general welfare of that great part of society which in some form or other use it or are its beneficiaries. It should not require an extended discussion to establish, at least its great merit, and none to sustain its legality. It has been stated that cases of this character depend on the nature of the policy as a mercantile instrument (1 Williston, Contracts 699, section 368), having their own rules. We have held, without question, in this State in a host of cases, that the beneficiary in insurance contracts may sue directly, nor is there good reason to exclude contracts like the one before us from the rule. The clause G.G. was for the benefit of the injured claimant.
It may be that the insurance company recognized there might be some liability over, either presently or by future legislation, as did the insured, and for the legal protection of both this provision may have been written into the contract generally, but there can be no doubt that what the parties did had the effect of making the claimant's right of primary importance. His rights may be deeper than a mere third party's right to sue, and may involve the necessity of the insurer's ascertaining whether the claimant's damages have been paid before settling with insured. *Page 211
While the claimant is uncertain until an accident happens, that event fixes legal responsibility, as to person, time and place. The clause may be likened to a policy of life insurance in which the beneficial interest is payable to the estate of deceased. In such a case it cannot be known until death who the beneficiaries may be, whether heirs, creditors or legatees; but the fact no person is named is immaterial. It also bears some similarity to contracts giving the insured the right to change the beneficiary, or a mortgagee clause in fire insurance, where loss, if any, is payable to the mortgagee.
While automobile public liability insurance is of recent origin, we hold its beneficiary clause is no different in legal effect from that of the ordinary life insurance or mortgagee insurance contract. It has been so held in other jurisdictions where the question has been presented, whether under a statute, or where no such statute exists. See Finkelberg v. Continental Casualty Co., 126 Wash. 543, 219 P. 12; Parker v. London Guarantee Accident Co., U.S. Dist. Ct. E.D. Pa., March Term, 1926, No. 12218; Merchant's Mutual Ins. Co. v. Smart,267 U.S. 126.
Appellant further objects to the institution of suit in the name of the legal plaintiff to the use of the claimant. Whether or not suit is brought in the name of the claimant is immaterial so far as defendant is concerned. In fact, it is to the interest of defendant that all parties be brought on the record. While the contract gives a direct right of action to the claimant, the manner in which the present suit was instituted was proper. The legal plaintiff here shows an interest from the fact that a judgment within the policy has been recovered against him, and, as he is the promisee named in the instrument, he would have a substantial right to have his obligation discharged. That this right is transferred to another does not destroy his right to have performance under the contract; hence he may be made a party. The authorities cited by appellant construing bond cases, and others of *Page 212
like nature, do not apply; they have been considered in the Greene County Case, and we need not go over that ground again.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714711/ | 63 N.W.2d 874 (1954)
STATE
v.
McCALL.
No. 48310.
Supreme Court of Iowa.
April 7, 1954.
Rehearing Denied June 18, 1954.
*876 Geiser, Donohue & Wilkins, New Hampton, for appellant.
Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Everett G. Scott, County Atty. Fayette County, West Union, for appellee.
OLIVER, Justice.
Defendant was a farmer. His family consisted of his children, Letha aged fifteen years and Layton, aged eleven years. He was tried, convicted and sentenced for the crime of incest with Letha. He has appealed to this court.
There was evidence defendant had sexual intercourse with Letha approximately one hundred times during the two year period prior to and including July 21, 1952, the date of the alleged act for which defendant was tried. Letha testified defendant compelled her to submit to that act of sexual intercourse by choking her and beating her brutally, that her nose bled, her lip was cut and her head was swollen and black and blue and that defendant's fist was injured in striking her and was so swollen he was unable to use his hand for several days.
Defendant testified he took Letha to a tavern, he drank beer and she ate ice cream, she left the tavern for the car, he left the tavern about midnight and found her sitting in another automobile with a young man, the young man said something and defendant struck him, injuring his fist, after Letha and defendant arrived home they argued about the matter and defendant chastised her by slapping her twice with his open hand. He testified he never had intercourse with Letha and never talked to her about intercourse.
I. Defendant contends the court erred in overruling his motion for directed verdict, based upon the insufficiency of the evidence. One complaint is there was no proof of penetration of the female organ, which is essential to conviction of incest. State v. Judd, 132 Iowa 296, 301, 302, 109 N.W. 892; 42 C.J.S., Incest, § 5; 27 Am. Jur., Incest, section 2. This contention is not well founded. Letha was a bright girl, aged fifteen years. She had been raised on a farm and was in the tenth grade at school. She testified she understood the meaning of the term sexual intercourse, and that defendant had sexual intercourse with her, July 21, 1952. The meaning of this term is clear and is common knowledge. A dictionary definition is: sexual or carnal connection; coition. The term itself necessarily includes penetration. State v. Frazier, 54 Kan. 719, 39 P. 819; Hunley v. Commonwealth, 217 Ky. 675, 290 S.W. 511, 514; Shepherd v. State, 111 Tex. Crim. 4, 10 S.W.2d 730; State v. Haston, 64 Ariz. 72, 166 P.2d 141, 143, 144; State v. Diamond, 50 Nev. 433, 264 P. 697. The testimony above noted, without more, was sufficient to make the question of penetration one of fact for the jury. There was also evidence her hymen had been ruptured.
Another complaint is there was no corroboration of Letha's testimony. *877 Corroboration was not necessary. Incest is not one of the sex crimes listed in section 782.4 Code of Iowa, 1950, I.C.A., requiring corroboration of the testimony of the injured female. State v. Mentzer, 230 Iowa 804, 298 N.W. 893. Nor is Code section 782.5 which requires corroboration of the testimony of an accomplice, here applicable. This is because Letha, being under sixteen years of age, was legally incapable of consenting to sexual intercourse and hence could not be an accomplice to such crime. State v. Pelser, 182 Iowa 1, 13, 14, 163 N.W. 600; State v. Spridgen, 241 Iowa 828, 831, 43 N.W.2d 192. Letha's testimony was not incredible and was supported by other evidence and circumstances in the record. We hold it was sufficient to require submission to the jury of the case against defendant.
II. The indictment accuses defendant of the crime of incest in violation of section 704.1 of the Code and charges defendant, on or about July 21, 1952, "committed incest with his daughter, Letha McCall." The court submitted to the jury the offense of incest only. Defendant assigns as error the failure to submit also assault with intent to commit incest, assault and battery and simple assault, which defendant contends are included in the charge.
State v. Jones, 233 Iowa 843, 847, 10 N.W.2d 526, 528, considers the question of included offenses in a charge of incest. It concedes "some states have held that there is such an offense as assault with intent to commit incest." Perhaps this concession is too broad. The decisions and texts refer to an offense of "attempt to commit incest." State v. Winslow, 30 Utah 403, 85 P. 433, 435, 8 Ann.Cas. 908; People v. Murray, 14 Cal. 159; People v. Gleason, 99 Cal. 359, 33 P. 1111; Cox v. People, 82 Ill. 191; State v. McGilvery, 20 Wash. 240, 55 P. 115; 27 Am.Jur., Incest, section 8; 42 C.J.S., Incest, § 9; 16 Am. & Eng.Ency. of Law, 2d Ed. 141. See also 75 C.J.S., Rape, § 20.
Whether an assault with intent to commit would be the same as an attempt to commit, appears questionable. State v. Western, 210 Iowa 745, 231 N.W. 657. People v. Rupp, Cal., 260 P.2d 1, 7, states an assault with intent to commit a crime necessarily embraces an attempt to commit said crime but said attempt does not necessarily include an assault. See also State v. Murbach, 55 N.D. 846, 215 N.W. 552.
State v. Jones, 233 Iowa 843, 10 N.W.2d 526, supra, stated the question whether assault with intent to commit incest should be submitted to the jury, had never arisen in this state and could not arise under the evidence in that case, which showed the act had been completed in every detail required by law to constitute the offense. It held, also, the court was not required to submit the (lesser) included offenses of assault and battery, and simple assault since it appeared the child with whom the crime was committed could and did consent to the touching or fondling of her person. In State v. Spridgen, 241 Iowa 828, 43 N.W.2d 192, error was assigned to the refusal to instruct on assault and battery and simple assault in the trial of an incest case. In affirming the judgment of conviction, the court held the evidence showed defendant was guilty of incest or of no crime; citing State v. Jones, supra.
The statute on included offenses, Code section 785.6 provides:
"* * *, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment."
The rule is that two factors must combine to require the submission to the jury of the included offense. (1) The so-called included offense must be necessarily included in the offense charged, and (2) The record must contain evidence justifying a finding by the jury of such included charge, rather than of some higher offense. State v. Johnson, 221 Iowa 8, 11, 12, 264 N.W. 596, 267 N.W. 91; State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, supra. Our discussion here will be directed primarily to (1) whether the lesser offenses are necessarily included in the offense charged in the indictment or information. As pointed *878 out in State v. Hoaglin, 207 Iowa 744, 754, 223 N.W. 548, 552:
"Much of the confusion in our previous cases has arisen from a failure to distinguish between the abstract question of what is an included offense in the charge of rape and the question of when included offenses should, under the evidence in the case, be submitted."
State v. Marshall, 206 Iowa 373, 375, 376, 220 N.W. 106, states: "* * * where the minor offense is necessarily an elementary part of the greater, then the minor offense is included in the greater."
In State v. Costello, 200 Iowa 313, 316, 202 N.W. 212, 213, the court instructed upon assault and battery as an included offense in an indictment for assault with intent to commit great bodily injury. This was held incorrect, because, although the evidence did show acts constituting assault and battery, "there was no charge in the indictment of any act which could constitute an assault and battery."
The language of the statute "necessarily included" in the offense charged, is explicit and its meaning is clear. It is not enough that the evidence in some cases or in most cases would be sufficient to include the lesser offense. Our decisions involving included offenses in cases based upon indictments charging assault with intent to commit rape, illustrate this. They hold an indictment for assault with intent to commit rape (in ordinary language) does not include a charge of assault and battery. The reason stated is that defendant may desist without touching the person of the female. However, the evidence in most of such cases would support a charge of assault and battery.
State v. Hoaglin, 207 Iowa 744, 752, 753, 223 N.W. 548, 551, states:
"An indictment charging assault with intent to commit rape (statutory or otherwise) charges assault, and it may be so drawn as to charge assault and battery. As to whether or not the indictment for assault with intent to commit rape charges assault and battery will depend solely upon the wording of the indictment. * * *
"It is obvious that, where an indictment for assault with intent to commit rape fails to charge a battery, then it would be improper for the court to submit to the jury the crime of assault and battery."
State v. Ellington, 200 Iowa 636, 639, 204 N.W. 307, 309, states:
"Where the charge is assault with intent to rape, assault and battery need not be submitted, unless the indictment charges force."
In the language of State v. Desmond, 109 Iowa 72, 79, 80, 80 N.W. 214, 216, "* * * it must be averred in the indictment that the attempt was accompanied by some actual violence to the person of the woman."
Giles v. U. S., 9 Cir., 144 F.2d 860, 861, quotes: "`To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser.' House v. State, 186 Ind. 593, 117 N.E. 647." State v. Petty, 73 Idaho 136, 248 P.2d 218, 219, states where an offense cannot be committed without necessarily including another offense, the latter is a necessarily included offense. Similar definitions appear in People v. Whitlow, 113 Cal. App. 2d 804, 249 P.2d 35, 36, 37; in 42 C.J.S., Indictments and Informations, § 273; and in 27 Am.Jur., Indictments and Informations, section 105.
Many appeals in rape cases have been before this court and the rules governing such cases are better settled than those applicable to most other sex offenses. Consequently there have been attempts to apply to some other sex cases, doctrines formulated in rape cases. The indiscriminate employment of this procedure would be unsound because of fundamental differences in the various kinds of sex cases. In the case at bar the assignment of error for failure to instruct the jury on the claimed included offenses of assault with intent to commit incest apparently assumes the same *879 offenses are "necessarily included" in a charge of incest as in a charge of rape. This assumption is erroneous.
Chapter 698, Code of 1950, I.C.A., is entitled Rape, although this term is not used in defining that offense. Code section 698.1 provides: "If any person ravish and carnally know any female, by force or against her will," etc., he shall be imprisoned, etc. The word "ravish" in itself means carnal knowledge of a female by force and against her consent. Rape is basically a crime of force perpetrated upon a female. It is always against her consent, either actual or conclusively presumed, as in the case of a female under the age of consent.
In State v. Hoaglin, 207 Iowa 744, 223 N.W. 548, defendant was charged with statutory rape and was convicted of assault with intent to commit rape. That is a leading case on the subject of included offenses in rape cases. It reviews many decisions and holds an indictment charging rape necessarily includes: (1) Assault with intent to commit rape, and (2) assault and battery, and (3) simple assault. The decision discusses these lesser offenses and the reasons for holding them necessarily included in the charge of (statutory) rape there involved.
The crime of incest is fundamentally different from rape. Code section 704.1 provides: "If any persons, being within the degrees of consanguinity or affinity in which marriages are declared by law to be void, carnally know each other, they shall be guilty of incest, * * *." In short, incest is sexual intercourse between persons too closely related. It is comparable with adultery which is sexual intercourse between persons one or both of whom are married to third persons.
Incest is not essentially an offense against the person of the female. It is an offense with her. She, as well as the male, may be guilty of the offense. State v. Judd, 132 Iowa 296, 109 N.W. 892. Neither force and violence nor lack of consent are essential elements of that offense. State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, supra. Nor is assault an essential element. Both male and female may voluntarily participate in the offense. They may commit it in cohabiting together as husband and wife. See State v. Lamb, 209 Iowa 132, 227 N.W. 830. Hence, the indictment for incest in the case at bar, which charged only that defendant committed incest with his daughter, Letha, did not necessarily include assault or assault and battery or assault with intent to commit incest, assuming, without deciding there is such an offense. In the language of State v. Jones, 233 Iowa 843, 845, 10 N.W.2d 526, 527, supra, "manifestly, unless in the charge there are such included crimes, they should not be submitted; * * *." It follows that the failure to submit to the jury any of these so called included offenses was not error.
III. Defendant was a witness in the trial. Upon rebuttal, over his objections, four witnesses for the state testified his general reputation for general moral character in and about the community where he lived, was bad. The objections to the questions were, there was no proper foundation for the testimony and the witnesses were not competent to testify. These objections were properly overruled. Each of these witnesses testified he resided in the community, had been acquainted with defendant for many years and knew such reputation in and about said place, "at the present time." That qualified each to testify to such reputation. The testimony was admissible under section 622.18, Code of Iowa 1950, I.C.A., which provides, "The general moral character of a witness may be proved for the purpose of testing his credibility." See State v. Huckelberry, 195 Iowa 13, 16, 188 N.W. 587; State v. Parsons, 206 Iowa 390, 395, 396, 220 N.W. 328; State v. Alberts, 241 Iowa 1000, 43 N.W.2d 703, and citations.
IV. Error is assigned to the failure of the court to instruct the jury that such testimony and also defendant's testimony of his previous conviction of a felony, "was introduced solely for the purpose of *880 impeachment and was to be considered by the jury solely for the purpose of testing the credibility of the defendant." The jury was given a general instruction to the effect that a witness may be impeached by disproving his testimony, showing his bad general reputation for moral character in the neighborhood or his previous conviction of a felony and if the jury believes a witness has been successfully impeached it may consider that and give to his testimony such weight as it believes the same is justly entitled to under all evidence and may disregard his entire testimony unless it has been corroborated.
Defendant does not contend any part of that instruction was incorrect. Nor did he request any instructions. Under the circumstances this court will not determine whether a more specific instruction should have been given. State v. Olds, 106 Iowa 110, 114, 115, 76 N.W. 644; State v. Anderson, 240 Iowa 1090, 1099, 1100, 38 N.W.2d 662; State v. Johnson, 223 Iowa 962, 968, 969, 274 N.W. 41.
No error appears here.
V. Complaint is made that the definition of a "reasonable doubt" in the fourth instruction did not include a doubt arising through want or lack of evidence. The instruction states: "A reasonable doubt may arise from the evidence in the case or it may arise from a lack or failure of evidence, * * *." Having thus referred to the lack or failure of evidence it was unnecessary to repeat that language at other places in the fourth instruction. State v. Billberg, 229 Iowa 1208, 1222, 296 N.W. 396, 403; State v. King, 232 Iowa 16, 19, 20, 4 N.W.2d 244, and citations.
The complaint is not meritorious.
VI. Error is assigned to subdivisions two and four of instruction No. eight which lists the propositions the state must establish to justify a verdict of guilty. Subdivision two states: "That the defendant did have sexual intercourse with the said Letha McCall." Instruction No. five states the statutes "provide that if any man carnally know, that is, have sexual intercourse with his daughter he shall be guilty of the crime of incest * * *." The criticism of Subdivision two is that the instructions did not define sexual intercourse or require penetration of the female organ. This presents questions already answered in the first division of this opinion which states, the meaning of the term sexual intercourse is clear and is common knowledge; a dictionary definition is sexual or carnal connection; coition; the term itself necessarily includes penetration. Hence, additional definitions or explanations were not required.
Subdivision four of Instruction eight required the state to prove:
"That said act of incest was committed on or about the 21st day of July, 1952."
The complaint is that the instruction was misleading because the date was not limited to July 21, inasmuch as there was evidence of another act of incest on July 20.
At the close of the state's evidence defendant moved that the state be required to elect on which act of intercourse it relied and to specify the time and date thereof. Thereupon the state announced it elected to rely upon the act committed with Letha "on or about the 21st day of July, 1952, by said defendant." If the language "on or about" July 21, was misleading, defendant should have made known his objection at that time. Instead he moved for a directed verdict. Ground One of his motion asserted, "That the evidence fails to show any act of intercourse took place on the 21st day of July, 1952." That ground was not as devoid of factual basis as it might appear to have been. The record indicated the act in question took place after midnight of July 21.
Defendant now contends the instruction should have stated the act of incest "was committed on the 21st day of July, 1952." The use of this language in the instruction would have left the way open for a *881 renewal, upon appeal, of the contention made in ground one of the motion for directed verdict. Hence, defendant was in a position to assign error whether the instruction stated the act took place "on July 21", or "on or about July 21."
We hold subdivision four of Instruction eight was not misleading or erroneous as contended by defendant.
VII. Two cases based upon indictments were pending against defendant, the incest case at bar, number 28881, and number 28900, for rape. The incest case was set for trial. The rape case was not set for trial. About one week before the commencement of the trial on the charge of incest the county attorney caused to be given defendant, notice of additional testimony of four witnesses who had not been examined before a committing magistrate or the grand jury. This notice was headed, State of Iowa v. Leo W. McCall, but it did not contain the number or description of the case. When these witnesses were introduced defendant objected to their competency on the ground proper notice had not been given as required by section 780.10 Code of Iowa. 1950, I.C.A. Error is predicated upon the order overruling these objections.
The order was not erroneous. The objections were hypertechnical. It is not contended defendant was prejudiced or misled by the failure to give the number of the case. Nor does it appear reasonable that any serious doubt could have existed in the minds of defendant and his able counsel that the notice referred to the incest case which was then about to be reached for trial.
VIII. Over defendant's objections Letha was permitted to testify to many acts of sexual intercourse with defendant, other than the act of July 21, 1952, for which he was on trial. This testimony was admitted, as stated in the instructions to the jury, "for its bearing, if any, upon the inclination and incestuous disposition, if any, of the defendant toward his daughter, Letha McCall, on or about July 21, 1952, and for the purpose of throwing light, if any, upon the relations existing between the defendant and his daughter, Letha McCall, at that time, and will not be considered by you for any other purpose." Our decisions hold such evidence may be received for the purpose stated in the instructions. State v. Pelser, 182 Iowa 1, 163 N.W. 600; State v. Judd, 132 Iowa 296, 109 N.W. 892; State v. Hurd, 101 Iowa 391, 70 N.W. 613. Therefore, its admission was proper.
Defendant contends also his objections to the questions asked Letha about the various acts of sexual intercourse with her father should have been sustained on the ground they called for the conclusion and opinion of the witness. This contention is not well founded. The questions called for the narration of past transactions rather than conclusions of the witness. The meaning of the term sexual intercourse is definite and commonly understood. It appears Letha understood this meaning. It was the province of the jury to determine the weight to be given this and other parts of her testimony.
Other complaints based upon the admission of or the refusal to strike testimony have been considered and the questioned orders have been found to be not erroneous or non-prejudicial.
IX. We find no prejudicial misconduct on the part of the county attorney, in his argument to the jury.
Affirmed.
BLISS, C. J., and WENNERSTRUM, SMITH, MULRONEY, HAYS, THOMPSON and LARSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3849063/ | Argued April 16, 1928.
This action, brought under the Federal Employers' Liability Act of April 22, 1908, 35 U.S. Stat. 65, c. 149, on account of the death of Joseph Dawson, resulted in a verdict and judgment for plaintiff and defendant has appealed. *Page 304
While the case falls within the act, his work being in furtherance of interstate commerce, the recovery cannot be sustained for lack of proof of defendant's negligence. Dawson was working as one of a gang of track repairers on defendant's double track railway at the Cheltenham section, a short distance from Philadelphia, and had been so employed for months. On the forenoon of September 29, 1925, the men were working on the tracks some seven hundred feet east of the Cottman Street bridge when Dawson went for a bucket of water. In so doing, he walked on the westbound track, going with the current of traffic and, shortly after passing under the bridge above mentioned, was killed by a rapidly moving westbound express train. The situation was more hazardous as at that time a freight train was passing eastward on the opposite track. Numerous track hands were employed between New York and Philadelphia and, when seen upon the track, it was defendant's custom to warn them of the approach of trains by ringing the bell and, if necessary, by sounding the whistle. The bell on the engine here in question was ringing automatically; but the admitted failure to give the additional warning by sounding the whistle is urged for plaintiff as evidence of negligence. This is the crucial point in the case. It was a clear day and yet the engineer testified that, although keeping a sharp lookout ahead, he did not see Dawson. This was explained by the fact that going west in the vicinity of the Cottman Street bridge the tracks curve sharply to the left (south) so that the engineer's view was obstructed by the convex surface of the passing freight train. The engine was of the large modern type and extended a considerable distance forward of the engineer's place on the right side, which also prevented a clear view of the track while rounding the curve to the left. There is no complaint here of a faulty construction of tracks or engine and under the existing conditions there is nothing to justify a finding that the testimony *Page 305
of the engineer is false when he says he was looking ahead and failed to see the man on the track. There is even less occasion to criticize the fireman who had other duties to perform and whose vision was also obstructed by the passing freight train.
The evidence fails to sustain the very earnest contention for appellee that the accident happened after the engine had passed out of the curve. Witnesses Moll and Schaefer, standing near the tracks, saw a dark object which proved to be one of Dawson's boots, fly up between the trains at a point about two hundred and fifty feet west of the bridge. Both say this point was on the curve, while their opinions differ as to just where the latter ended. Moll was plaintiff's witness and this uncontradicted testimony definitely fixes the place of accident on the curve, for it could not have happened west of where the boot flew up, although the force of the collision carried Dawson's body some distance in that direction. The bell was ringing because of the curved tracks, but the evidence on both sides agreed that the duty of sounding the whistle arose only when workmen were seen upon the track. Of course, a failure to see them if in view would be evidence of negligence. The express train was on time and had passed the track repairers on this section, so it could not have been anticipated that a lone workman would be walking on the track at the place in question, especially as there was a path along the outside of the westbound track where pedestrians might safely walk. Under this record, which we have examined with great care, it cannot be affirmed that failure to warn the deceased by sounding the whistle was, under the circumstances, an act of negligence and none other appeared. Defendant cannot, therefore, be held responsible for the deplorable accident and the other questions raised will not be considered.
While the Employers' Liability Act renders an employer liable for an injury suffered by one employee *Page 306
through the negligence of another and cuts out the defense of contributory negligence, except as to the question of damages, yet, there can be no recovery thereunder without proof of causal negligence on part of the defendant (Kansas City Southern Ry. Co. v. Jones, 48 U.S. Supreme Court Reporter 308, issue of April 1, 1928; Waina v. Pennsylvania Co., 251 Pa. 213; McAvoy, Admrx., v. Phila. Read. Ry. Co., 283 Pa. 133; McDonald v. Pgh. Lake Erie R. R. Co., 279 Pa. 26; Sullivan v. Balt. Ohio R. R. Co., 272 Pa. 429, 433; Curtis, Admr., v. Erie R. R. Co., 267 Pa. 227; Murray v. Pgh., C., C. St. L. R. R. Co., 263 Pa. 398) and none was shown here. On this vital question, the verdict finds no substantial support in the testimony and, therefore, cannot stand: Chicago, M. St. P. Ry. Co. v. Coogan, 271 U.S. 472; 46 Supreme Court Reporter 564; see also Gt. Northern Ry. v. Wiles, 240 U.S. 444.
The judgment is reversed and is here entered for the defendant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3845135/ | When David L. Ward died on November 12, 1913, he bequeathed to Anna Ward, his widow, $50,000.00 in trust, to invest the same and pay over the net income to his daughter Josephine while her mother lived. The mother was appointed trustee. Upon the death of Anna Ward, the principal was bequeathed to Josephine, absolutely. On June 24, 1915, after Josephine became of age, she signed an instrument in which she ratified and confirmed the setting aside of certain non legal investments to be held in trust for her under her father's will and requested that her mother, as trustee, continue the investments in these non legal securities. The record discloses that the mother, as trustee, distributed all of the income to Josephine. The trustee filed no account during her lifetime. On November 10, 1942, the mother-trustee died and Milton S. Leidner was appointed guardian for Josephine, who had been declared weak-minded by the Court of Common Pleas No. 7 of Philadelphia County, as of December Term, 1942. After the administrator c. t. a. of the estate of Anna Alexander [Ward], deceased, had filed the account of Anna Alexander [Ward] as trustee for Josephine, the guardian took exceptions to the account, claiming the accounting inadequate in that it failed to disclose the date when the securities *Page 146
were received by the trustee and how acquired, that the accountant failed to disclose as a charge the principal sum originally awarded to the deceased trustee, and the investments were held in non legal securities. While these exceptions were pending, the guardian and accountant agreed to compromise the controversy provided the Court of Common Pleas No. 7 of Philadelphia County approved the arrangement and advised the auditing judge thereof. Before any action was taken by that court the auditing judge modified the decree by allowing commissions and then dismissed the guardian's exceptions, stating in the decree: "There is, however, no reason for holding this adjudication pending that event because this adjudication can be made, and it is made by the direction that the Accountant here shall withhold the sum of One Thousand Dollars ($1,000.) from funds in his hands to be paid to Milton S. Leidner, Guardian of the said Ward, at any time a proper acquittance is given by the Exceptants for said sum." After this decree, the present intervenor, the son of the weak-minded Josephine, appeared and took this appeal.
An examination of this case on its merits disclosed that the daughter Josephine, after she came of age and while still of sound mind, signed an instrument requesting her trustee to continue her beneficial estate in non legal investments. "Where the sole beneficiary requests in writing that a conversion of property should be postponed until further notice by her, the executor is legally justified in acceding to her wishes":Stephen's Estate, 320 Pa. 97, 102, 181 A. 559. "A competent beneficiary who with full knowledge of the facts and of his rights expressly consents to or affirms an investment by the trustee cannot, in the absence of fraud, thereafter question its propriety": Stephen's Estate, supra; Armitage's Estate,195 Pa. 582, 46 A. 117; Detre's Estate, 273 Pa. 341, 117 A. 54;Brown's Estate, 287 Pa. 499, 135 A. 112; Macfarlane's Estate,317 Pa. 377, 177 A. 12; Curran's Estate, 312 Pa. 416,167 A. 597; Strawbridge's Estate, *Page 147 322 Pa. 406, 411, 185 A. 726. See also, Restatement, Trusts, section 216.
The other substantive question raised by the appellant is that the trustee's commissions and counsel fees should not be allowed because, it is alleged by the appellant, the trustee mingled the trust funds with her own moneys, kept no record of income and disbursements, and neglected for thirty years to file an account. The question as stated by the appellant is not supported by the record. There is no evidence of a commingling of the trust funds. The funds of the trust were invested in securities and kept in a separate safety deposit box in the name of the deceased as trustee under the will of David L. Ward. The learned auditing judge found the account "sufficiently informative to enable the Guardian of the said Josephine Ward Beale to discover that of which the estate consists", and an examination of the account will confirm this finding. The securities in which the estate was invested are traced from the time the trust was created up until the accounting, and the record discloses the mother-trustee paid for the benefit of Josephine all of the income produced by the trust and that she had spent on Josephine "a sum far in excess of the income which this estate yielded to her." It was pointed out in the adjudication, "While it is true that the legislation makes a mother-parent liable to a state institution for the maintenance of her child, in this instance the child was not in a state institution and for considerable part of the time was the wife of a man whom she had married many years before her mother died." On July 2, 1943, the administrator c. t. a. of the deceased trustee filed an income account to which no exception was taken. In view of the beneficiary's approval of the investments and the clear evidence that there was no mismanagement, imprudent action, or fraud, shown in the handling of the funds of the trust by the mother-trustee, and the findings and conclusions of the court below negativing the implication of such conduct, they are conclusive *Page 148
upon this court: Snyder Estate, 346 Pa. 615, 621, 31 A.2d 132;Quinn's Estate, 342 Pa. 509, 514, 21 A.2d 78; Frank's Estate,339 Pa. 499, 501, 15 A.2d 353. This beneficiary, when competent, had full knowledge of the facts and of her rights, and expressly consented to and affirmed the investments by the trustee and, in the absence of fraud, this intervenor-exceptant cannot now question their propriety: Clabby's Estate, 338 Pa. 305, 12 A.2d 71.
The court below allowed commissions to the trustee. The trustee was faithful and honest in the administration of her trust, derived no personal benefits therefrom, and was authorized by the beneficiary to carry the estate in non legal securities. It was proper, under these circumstances, to allow the trustee commissions (see Quinn's Estate, 342 Pa. 509, 515) and counsel fees. The allowance or disallowance of counsel fees rests generally in the judgment of the court of the first instance and its decision will not be interfered with except for palpable error: Foulke's Estate, 334 Pa. 186, 190,5 A.2d 179; Rambo's Estate, 327 Pa. 258, 266, 193 A. 1.
As this case is properly disposed of by the foregoing conclusions, it is unnecessary for us to consider any of the other questions raised on this appeal.
Judgment affirmed; costs to be paid by the appellant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3849561/ | Argued March 19, 1929.
The pleadings and evidence in this case reveal that Mrs. Olive Campbell, a resident of the Borough of Butler, a widow, at the time 44 years of age, appellant, on or about February 7, 1925, entered into an agreement of marriage with William M. Fairman, a widower, then 89 years old, a citizen of the Borough of Punxsutawney. On the same date Fairman executed and delivered to appellant, in consideration of the engagement referred to, a paper, clearly testamentary in form and substance, as follows:
"When I pass out of this life, I give and direct Thirty Thousand ($30,000) Dollars worth of my bonds now deposited in the Punxsutawney National Bank be given to Mrs. Olive Campbell." *Page 371
Later, on May 22, 1925, when attacked by serious illness, Fairman went to the residence of Mrs. Sadie C. Taylor, in Punxsutawney, appellant's sister, remaining there until May 27th, and was then removed to Adrian Hospital in Punxsutawney, where he died May 31, 1925. The day following his arrival at the Taylor home, appellant appeared there and remained in the house of her sister until Fairman was removed to the hospital. While both were at the Taylor home, Fairman executed and gave to appellant a promissory note dated May 22, 1925, payable to her order, sixty days after date, saying to Mrs. Taylor, according to her testimony: "I am making the note to her in place of the other paper," referring to the one of February 7, 1925. Eight days later he died at the hospital, the marriage not having been performed. This note forms the basis of the present action against Fairman's estate. At the close of the testimony offered by plaintiff, defendant moved for a nonsuit, which was granted, and on this appeal the only error assigned is the court's refusal to reverse its action. With variation in terms, both parties present that question for consideration as the sole one involved; and the court below concludes that the only question for its determination is whether the promise to marry made February 7, 1925, is, without more, a valid consideration to support the note given May 22, 1925, and finds there was a total failure of consideration. We are of the opinion that on the pleadings and proofs before us the question as set forth by the court covers the precise point in controversy and controls the case and was rightly answered in the negative.
We are at the start left in no doubt as to appellant's contention in the controversy, and the correctness of the finding of the court below is emphasized by the plainly mistaken theory of the case upon which her counsel claims an erroneous conclusion by the court below; they state in their brief of argument that the "transaction between the parties — the engagement of marriage — was *Page 372
complete when she, in good faith, promised to marry the maker of the note in consideration of his (in equal good faith) giving her the note." This theory however is entirely at variance with the facts as revealed by the evidence. As we understand appellant's contention, expressed in the above quoted words, her promise to marry was coincident with the giving of the note of May 22d. It certainly was not, and in the entire range of plaintiff's evidence we find no assertion to that effect. The fact is undisputed that the engagement of marriage was made and concluded on or before February 7, 1925, more than three months previous to execution of the note of May 22d, of the same year; and if that contract to marry was induced by any consideration, it was the consideration represented by the testamentary paper of the same date, which later was revoked and rendered void, as the evidence establishes, by the declaration of Fairman that he made the promissory note to appellant in lieu of the other paper.
The mistaken theory of appellant is serviceable here, since it at once brings to the front the important question, namely, What possible ground, established by the proofs, can be found upon which to base the claim that the concluded promise of marriage of February 7th was the inducing consideration for the note of May 22d? The law requires the consideration to be valuable to support an executory contract; slight loss however, or inconvenience to the promisee upon his entering into the contract, or like benefit to the promisor, is deemed a valuable consideration: Conmey v. Macfarlane, 97 Pa. 361, 363. It is not denied by appellant, and is correctly declared by the court below, that the contract in question to wed was executory, made in contemplation of the continued existence of the life of Fairman and of the actual consummation by marriage. Inevitably, of course, his death rendered performance of the agreement impossible. Still it is appellant's contention that the engagement, the promise of appellant to marry, constituted *Page 373
the valuable consideration for the note. It is true, the real consideration of a note may be shown when not apparent on its face: 1 Joyce's Defenses of Commercial Paper, 393. But there are embodied in the obligation here in question no directions or explanations to indicate a consideration, and we search in vain for similar indications in the testimony before us. Lacking these proofs, what other elements of consideration may be evoked? An agreement, such as a promise to marry, will not be deemed to embody a promise which the law itself would not imply; and certainly neither by direct terms nor by implication, is it shown that Fairman gave the note to secure a promise of marriage which he had already secured months before. The agreement was at the time of the making of the note a subsisting contract, and nothing had intervened to end or change it. As the court below states, "nothing appeared to show either that the failure to consummate this marriage was due to any default on either side; namely, nothing to show either that he had requested her to fulfill her engagement, or that she asked him to marry her and he had refused. No breach was proven on either side." And we may add, that at no period had appellant performed service for decedent, incurred expense or sustained loss or inconvenience during the engagement. Any of these happenings would, under proper circumstances, have constituted a good consideration and an inducing cause for the giving of the note: 1 Daniels on Negotiable Instruments, page 259; Helfenstein's Est., 77 Pa. 328; but, as we have stated, none of these eventuated, so far as the record discloses. The position of appellant therefore necessarily narrows down to the single claim that her promise to marry was the inducement for the note.
We have, as the learned judge of the court below sets forth, no Pennsylvania decisions involving the precise situation which here confronts us. In lieu of such decisions he quotes at length from authorities directly in point from other states, which we adopt here. The case *Page 374
of Blanshan v. Russel et al., 52 N.Y.S. 963, noticed frequently in textbooks, is in most of its essential points similar to the controversy before us. There suit was brought against the estate of a decedent on a promissory note signed by the deceased, the alleged consideration being an earlier promise or engagement to marry entered into by the payee; the court held the promise to marry was not the inducing cause of the execution of the paper. In that case the court said: "The evidence concerning the marriage engagement clearly does not show a valid consideration to support the note. The evidence shows that an engagement to marry existed between them at the time the note was executed, but there is nothing whatever to show that the engagement was induced by the giving of the note. The note was not given in consideration for the engagement, nor was the engagement entered into in consideration of the giving of the note. The betrothal had existed for some time before the note was executed, and the mere existence of such an engagement will not, in itself, support an executory contract to pay . . . . . . It is true that the recital 'for value received' in a note imports a consideration, and the burden is upon the defendant to overcome the presumption arising therefrom. But if the plaintiff upon the trial proves that the note was made and delivered for a consideration that the law does not recognize as sufficient to sustain the promise, the burden which rested upon the defendant has been met by the evidence in the case quite as effectively as if it had been introduced by the defendant himself. The trial judge had the right to assume that there was no consideration other than appeared in the evidence before him, and was correct in his conclusion that none sufficient in law could there be found."
That is the situation here. The engagement between appellant and Fairman was an agreement made months previous to the giving of the obligation. It was a subsisting agreement at that date, and no reasonable mind *Page 375
can assent that the note was executed by Fairman to secure a promise already gained or to renew a promise that remained unbroken. Nor, as we have said, does appellant show that the delay of marriage, for which in fact she was responsible, resulted in loss or inconvenience that might be sufficient to constitute a consideration, and on this point the learned court below emphatically declares: "It was not claimed on the trial that the plaintiff had given up any position she then held or was likely to obtain, or that she made any arrangements to change her abode, or that she had in any way altered her household arrangements, or even that she had announced the proposed marriage and was humiliated by its never having taken place, or indeed any circumstance whatever to show that she had altered her conduct in the slightest degree from the course she would have pursued if the engagement had never been entered into. . . . . . . She seeks to recover the sum of thirty thousand dollars for nothing except a bare naked promise to marry, which, so far as we know, she never made any effort to perform. She does not even aver in her pleadings that she was ready to marry the deceased or had ever offered to do so."
Since we sustain the finding of the learned court below that the evidence does not show a valid consideration to support the note in question, we shall refer only briefly to the aspect of the case noted at length by that court, namely, that the contract to marry, being executory, failed of completion by the death of Fairman, on the legal principle that a contract fails where the continued existence of something essential to the performance is an implied condition of the contract and such thing has ceased to exist: 5 Page on Contracts (2d ed.), page 4713. On this point we may adopt the language of Wilson v. Nolen, 200 Ky. 609, quoted in the opinion of the court below in the present case: "Where the contract between the parties is from its very nature an executory one and contemplates future performance as to the consideration *Page 376
and before the time comes for that consideration to pass, unforeseen things happen which are not brought about by either of the parties involved, and it thereby becomes impossible for the contract to be performed by either party, then there has come about a state of things not contemplated by either and which, relating back to the original transaction, destroys the original consideration or, as it is sometimes said, brings about a total failure of consideration."
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4002380/ | I concur in the result reached by the majority. There are, however, additional, cogent reasons for my concurrence.
The contract merely substitutes one payee for another, for the same liability. Alimony liability could not be discharged by bankruptcy proceedings. The contract is still one for the support of minor children which cannot be discharged by such proceedings. Neither can the adoption statute be used as a protection from fraud as is attempted by appellant. Federal courts would not permit it, and state courts should not. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3849066/ | Argued November 25, 1929.
The complainant, Dr. Sprout, in 1913, purchased a two-story frame dwelling in the 1800 block of North Maine Avenue, in the City of Scranton, which he improved, adapting it for the use of offices and residential apartments. The first floor is occupied by his family, while the second is rented to a physician. The Peerless Oil Company, defendant, leased, in 1922, a lot, adjoining on the south, having a frontage of 50 feet, and constructed a filling station designed to supply automobiles with oil and gas, erecting thereon the necessary storage tanks and pumps. At the time, plaintiff complained to city council, but made no further efforts to prevent the installation of the plant until the filing of the present bill five years thereafter. He averred that the increased operations of the filling station had become so offensive as to constitute a nuisance, and asked to have its further use restrained.
The street fronting both properties is a main highway traversing the business section of the city. With the exception of plaintiff's house and one adjoining to the north, all of the buildings abutting are devoted to commercial purposes, and upon the thoroughfare is laid a double track railway, over which cars pass from morning until late at night during short intervals. The road is also extensively used for local and through automobile traffic, connecting, as it does, with the "Lackawanna Trail." Plaintiff has erected at the rear of his lot a four-car garage, occupied by himself and others who rent space therein. A like construction, operated as a general service garage, exists on the land of the resident adjoining, and immediately opposite a public gasoline and oil tank has been operated for many years. The whole block was set aside by a zoning ordinance in 1924 as a purely commercial district, and the trial court found as a fact that the location is not residential in character, as insisted on by plaintiff below. By this conclusion, amply supported as it is by the evidence, we are bound, in consideration *Page 403
of the questions here raised: Burke v. Hollinger, 296 Pa. 510.
The rule has frequently been laid down in Pennsylvania, that the construction of garages in places surrounded exclusively by residences constitutes a nuisance per se, the operation of which will be enjoined: Slingluff v. Tyson, 280 Pa. 206; Ladner v. Siegel, 293 Pa. 306. The same has been held of gas or filling stations: Carney v. Penn Oil Co., 291 Pa. 371; Mitchell v. Guaranty Corp., 283 Pa. 361. A different situation arises where the district is commercial, the right to maintain in such case depending on proof as to whether the continuance of operations constitutes a nuisance in fact: Penna. Co. v. Sun Co., 290 Pa. 404; Ladner v. Siegel, 296 Pa. 579; Manorville Borough v. Flenner, 286 Pa. 103. The determination of the character of the surroundings is often difficult, since the location in question may have the characteristics of both classes mentioned, in which case the court must say whether the attempted use constitutes such an interference with the rights of adjoiners as to justify restraint. This matter has been recently the subject of discussion by Mr. Justice KEPHART in Burke v. Hollinger, supra, to which reference is made for a review of the principles applicable.
In view of the justified conclusion, reached by the trial court in this case, that the district in question is commercial rather than residential, as contended by complainant, an injunction could not be granted unless in fact its use constituted a nuisance, as in Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209. The conduct of a public garage is a lawful one (Burke v. Hollinger, supra), and an owner of property has the right to employ his property, barring malice and negligence, for all legitimate purposes, unless he conducts his business in disregard of the rights of his neighbors, and prevents the reasonable enjoyment of their own land or buildings constructed thereon. The mere fact that the adjoiner is subjected to some annoyances furnishes no ground for *Page 404
relief where he resides in a commercial district, for he must bear the inconvenience arising from his location just as he enjoys the benefits: Houghton v. Kendrick, 285 Pa. 223; Burke v. Hollinger, supra. A dweller therein cannot expect the same peace and quiet as if surrounded by residences alone: Quinn v. American Spiral Spring Mfg. Co., 293 Pa. 152. "The rise in real estate values in the neighborhood such as the one here involved, consequent upon such encroachment, more than compensates landowning plaintiffs for any present loss of comfort and convenience": Burke v. Hollinger, supra. In the present case, the evidence shows the market value of complainant's property to have doubled since it was purchased and improved, because of the adjacent business development.
Though the operation complained of is in itself lawful, yet it must be carried on with due regard for the rights of others, and in the manner usually followed in such localities. The trial court here found defendant's gas station to be "of the most modern type and properly conducted according to that kind of business," and this determination, supported as it is by competent evidence, will not be disturbed by us. Doubtless the stopping of many cars for filling purposes, and the maintenance of lights so that business may be continued after nightfall, interfere to a certain extent with the enjoyment of the complainant's property as a dwelling house, but this is the necessary consequence of a legitimate occupation managed in the most approved manner, in a district devoted to purely commercial purposes, and furnishes no ground for restraint, as prayed for.
It was further contended by defendant that the bill filed should be dismissed because of the laches of plaintiff. The gas station was constructed in 1922, and complaint then made to city council, but no legal proceedings to restrain were instituted until five years thereafter, during which period $10,000 had been expended in adapting the leased premises to their present *Page 405
use, and the whole district has by zoning ordinance been officially set aside for business purposes only. Such delay was held by the court below a bar to the present proceeding: Orne v. Fridenberg, 143 Pa. 487; Hohl v. Modell, 264 Pa. 516; Stewart Wire Co. v. Lehigh Coal Nav. Co., 203 Pa. 474. It may be noted that complainant attempts to excuse his lack of diligence in proceeding on the ground that the filling station had been enlarged in size since 1922, and therefore had become more annoying to the adjoiner. An operation complained of, legitimate at the time of its inception, may become a nuisance by subsequent method of operation, and, for that reason, delay in asking equitable relief excused (Quinn v. American S. Spring Mfg. Co., supra), but, in the present instance, the only change is the increase of defendant's business, and the construction of an open pit (enclosed since the filing of this bill). It is now, according to the plaintiff himself, an "up to date" gas station. There was no proof that new and unexpected conditions have been created which justified the failure to earlier proceed, when it was known that large expenditure was being incurred to make possible the carrying on of the operation, as now conducted. There is no necessity, however, to invoke the principle referred to, to warrant the dismissal of the bill. The plaintiff plainly failed to make out a case justifying equitable interference.
The decree is affirmed at the cost of appellant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714734/ | 104 So. 2d 570 (1958)
HOTEL AND RESTAURANT COMMISSION, an agency of Florida, et al., Appellants,
v.
SUNNY SEAS NO. ONE, Inc., a Florida corporation, et al., Appellees.
Supreme Court of Florida.
August 1, 1958.
Richard W. Ervin, Atty. Gen., and John C. Reed, Asst. Atty. Gen., for appellants.
Sibley, Grusmark, Barkdull & King and Milton E. Grusmark, Miami Beach, for appellees.
ROBERTS, Justice.
This is an appeal from a decree of the trial court dismissing the appellants' complaint to enjoin the appellees from operating the Seabrook Hotel and Apartments upon the ground that the appellees were wrongfully operating the same in violation of the automatic suspension provisions of § 561.291, Fla. Stat. 1955, F.S.A.
As shown by the complaint, all telephone service being rendered over the main switchboard facility of the appellees' hotel was *571 discontinued by the telephone company, and the switchboard disconnected, as required by § 365.08, Fla. Stat. 1955, F.S.A. following a written notification from the Attorney General that this telephone facility had been used in violation of gambling laws of this state. It is conceded that other telephone facilities on the premises were not ordered to be disconnected by the Attorney General and remain in operation.
The Chancellor was of the opinion that the automatic suspension provisions of § 561.291 were not activated unless the hotel had been deprived of all communication facilities pursuant to § 365.08, Fla. Stat. 1955, F.S.A., because of the illegal use thereof for bookmaking or other gambling and dismissed the complaint. We agree.
Section 561.291 provides that
"Whenever the telephone, telegraph or any other communication facility or service furnished by a public utility to any place or installed on the premises of any place * * * has been duly and legally removed or terminated by operation of a state law having for its purpose the prohibiting of bookmaking or other gambling, * * * the license or licenses shall be automatically and immediately suspended during the time the communication facilities are denied such places or premises."
The statute in question, providing for the automatic suspension of the appellees' hotel license, and its companion statute, § 365.08, providing for the removal, without a hearing, of the appellees' telephone facilities, obviously impose a severe penalty upon hotel owners who, whether knowingly or inadvertently, allow the communication facilities in their hostelry to be used for bookmaking or other gambling purposes. See Peters v. Southern Bell Tel. & Tel. Co., Fla. 1954, 70 So. 2d 547. The statute itself indicates its penal nature, providing as it does in subsection (3) thereof that "[t]he penalties herein imposed shall be in addition to any other penalties." And it is well settled that statutes imposing a penalty must always be construed strictly in favor of the one against whom the penalty is imposed and are never to be extended by construction. See Lee v. Walgreen Drug Stores Co., 1942, 151 Fla. 648, 10 So. 2d 314; Lollie v. General American Tank Storage Terminals, 1948, 160 Fla. 208, 34 So. 2d 306.
The fact that the Legislature indicated in subsection (2) of § 561.291 that the statute should be liberally construed to effectuate its public purpose cannot prevail over a principle of law as firmly established in our jurisprudence as that referred to above. The language of Mr. Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 95-96, 5 L. Ed. 37, while referring to criminal penalties, is equally applicable to statutes imposing a civil penalty:
"The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment."
In view of our duty to give the statute a strict construction, it must therefore be held that § 561.291, supra, is activated only if and when all telephone communications have been removed from the hotel. Stated differently, the hotel must have become an "island" with all telephonic communications with the outside world cut off, in order to effect an automatic suspension of its license. The admitted facts here are that there has not been a severance of all communication; therefore, the automatic suspension provision of § 561.291 was not activated.
This holding is without prejudice to the right of the Hotel Commission to pursue the less drastic procedure afforded by § 509.261, Fla. Stat. 1957, F.S.A. for the suspension or revocation of appellees' hotel *572 license, predicated upon formal charges, notice and a hearing.
This opinion is not to be construed as an adoption of the reasons given by the Chancellor for his decree dismissing the complaint in the instant case, since this court is not required to approve the theory upon which a ruling is made if it is otherwise correct; and we do not at this time pass upon the soundness of his theory. We hold, only, that the application of the rule of strict construction to the statute in question justifies the decree here reviewed.
For the reasons stated the decree here reviewed should be and it is hereby
Affirmed.
TERRELL, C.J., and THOMAS, HOBSON and DREW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3849068/ | Argued September 27, 1927.
Novice, plaintiff, agreed, on December 2, 1913, to purchase a house and lot of ground from Alter, the defendant, and paid a small sum as hand money to bind the bargain. The understanding of the parties was embodied in a writing under seal, by which the vendor promised to convey, by deed of general warranty, a fee simple title, clear of all encumbrances, except a certain mortgage for $2,200, with interest from January 1, 1914, of which the vendee was "to assume payment," as a part of the total consideration of $3,600. Alter was the maker of the obligation referred to, and it is called throughout this proceeding the Sloan mortgage, though it had subsequently passed into the ownership of others before the foreclosure to which we shall later refer.
Examination of the record disclosed the fact that Alter did not have title to the property agreed to be conveyed, having transferred the same two years previously to Bremer and Pinkney, who in turn had deeded it to the Richmond Realty Company, both conveyances being subject to the outstanding Sloan mortgage. The vendor was not able to transfer ownership directly, but did secure a conveyance to Novice from the record holder. Alter advised the purchaser that the terms of sale must be changed, and the mortgage, agreed to be assumed, paid off. Novice was unable to make the necessary financial arrangements, and asked that the contract be cancelled and the sum already paid returned.
Defendant offered to arrange the negotiation of another mortgage on the same property for the exact amount, with the proceeds of which the Sloan mortgage was to be satisfied, the newly executed obligation being substituted therefor. In pursuance of this understanding, *Page 67
plaintiff met defendant at the office of the attorney, with whom the vendor had made the arrangements for the taking of the new mortgage, executed it, and received at that time from Alter a deed for the property in which the realty company was named as grantor. The papers were redelivered to him, and he in turn handed them to the attorney, Wegley, for the purpose of recording, receiving the amount called for from the new mortgagee, Ruff, and satisfying the Sloan lien. The balance of the purchase price, though paid in cash to Alter, was evidently also transferred to Wegley, and this amount, less deductions, was later accounted for by the attorney to Alter and the Richmond Realty Company.
Novice took possession of the property, paid the interest on the Ruff mortgage for $2,200, which he, on request, had given in place of the one held in the name of Sloan for the same amount, and referred to in the articles of agreement, and later paid the principal of the obligation executed by him, and it was satisfied. As a matter of fact, the proceeds of his mortgage were not applied to the satisfaction of the one standing in Sloan's name, as understood and agreed on when he delivered the second mortgage, requested by Alter at the time of taking title, and which plaintiff gave in part payment of the purchase-money. No demand for interest was made on the Sloan obligation, which Novice believed was paid, for more than nine years after the closing of the transaction. In 1922, the house and lot were sold by him to one Elwood, and thereafter foreclosure proceedings were instituted, and the vendee evicted. The latter recovered from his vendor on the strength of his warranty deed, and plaintiff was compelled to pay the amount of the judgment recovered.
This suit, brought by Novice against Alter, was originally based on breach of the warranty appearing in the deed from the latter to the predecessors in title of the plaintiff, the one to whom he had contracted to convey, *Page 68
all of the parties interested in the intermediate conveyances having been notified to come in and defend, when Elwood brought his action to recover for loss by reason of the enforcement of the outstanding encumbrance. Later, with leave, the statement of claim was changed so as to aver a breach of the agreement by which defendant had promised to transfer title free of liens, except of a mortgage for a specific amount, which was to be treated as part of the purchase price. The amended statement avers a failure to carry out the sealed contract, which had been modified only to the extent that, instead of taking the property subject to the Sloan mortgage of $2,200, a like obligation for the same amount by the vendee was accepted, and alleged that Alter agreed the first mortgage would be satisfied or cancelled, and, having failed to remove the encumbrance, and to convey free of any lien, he was liable for the loss ensuing. The trial was had on this theory, as is apparent from an examination of the amended statement and declarations of counsel at the time of hearing, as set forth on the record, and not upon the ground that the responsibility of defendant, if any, rested on the oral promise to satisfy the Sloan mortgage made when the new one was delivered.
All of the facts, essential to the establishing of plaintiff's claim, were proven, and the jury found in his favor. The learned court below, however, was of opinion that the real foundation of the claim was the oral promise of Alter to satisfy the mortgage made in 1913, and not the agreement under seal to sell free of encumbrances, except one lien for a fixed amount, and for which another had been substituted by consent, and, therefore, the statute of limitations barred a recovery. The correctness of this conclusion, and the entry of a judgment n. o. v. for defendant as a result, is challenged on this appeal.
An action within six years is necessary, where the breach of an oral contract, or an agreement in writing *Page 69
not under seal, is relied upon as the basis for recovery, and if the violation of the parol promise, made in 1913, is to be considered the cause of action, then the right of plaintiff to recover has been lost. But the agreement for the sale of the land free of encumbrances was under seal, not merged in the subsequent deed made by the Richmond Realty Company to Novice (Lulay v. Barnes, 172 Pa. 331; Anderson's Admrs. v. Washabaugh,43 Pa. 115), and, if breached, and suit can be brought on it, the statute does not apply: Ahrns v. Chartiers Valley Gas Co.,188 Pa. 249; Williams v. Short, 155 Pa. 480.
It is argued that the present action cannot be rested on the sealed agreement of sale, by reason of the subsequent oral change in the understanding, and any suit was necessarily based on the loss arising from the failure of Alter to carry out his promise to satisfy the Sloan mortgage with the proceeds of the one, executed upon request, for the purpose of negotiation, and the funds thus procured for that purpose. The contention is that the subsequent parol agreement was a modification of the written one, and that it follows, as a matter of law, the whole must be considered as oral, and the statute of limitations applied accordingly. The rule has been frequently stated, particularly in the earlier cases prior to 1887 (May 25, P. L. 271), where it became important to determine whether the action should be one technically of covenant or assumpsit, that a subsequent verbal contract, changing the terms of an earlier written one, reduced the whole understanding to parol.
Vicary v. Moore, 2 Watts 451, is one of the earliest and most frequently cited of the decisions in which this statement will be found, and it is there held that when new oral stipulations are engrafted onto a written agreement, so that a new contract is the result, the whole must be considered in parol. Later, in Ellmaker v. Ins. Co., 6 W. S. 439, the case first cited is discussed by the same justice who wrote the prior opinion, and the distinction drawn that, to have the effect of reducing *Page 70
the whole agreement to parol, there must in effect be a newly substituted contract, and an inability to execute the two understandings together. The right to sue on the original agreement, where the modification does not amount to the making of a new contract, has been upheld in subsequent decisions: M'Combs v. M'Kennan, 2 W. S. 216; Quigley v. De Haas, 98 Pa. 292; Grace Contracting Co. v. N. W. Ry. Co., 259 Pa. 241; Irwin Glass Co. v. Buchanan, 289 Fed. 348. On the other hand, if such changes are made as to establish a second and substituted agreement, all will be treated as in parol: Lawall v. Rader, 24 Pa. 283; Prouty v. Kreamer, 199 Pa. 273.
In the present case, the vendor agreed in writing to convey free of encumbrances, except that vendee should "assume payment" of a mortgage for $2,200. Instead of doing so, the seller suggested that he execute his own mortgage for the same amount, and that he would see the first was satisfied, so that the property should pass as originally understood in fee simple with but one lien against it of the sum mentioned, which was a part of the purchase price. It could not be successfully argued that if Novice had paid off by agreement the whole purchase price in cash, in lieu of assumption of liens, and taken the property over, an action would not lie on the contract against the seller for loss from failure to convey free from encumbrances. In effect, that is the situation here. Instead of assuming payment of the Sloan mortgage, in part satisfaction of the price agreed, Alter took the equivalent of cash in payment, when, at his request, a new security was given and negotiated by him. If money had been paid, he could not have avoided his obligation, nor with any more reason can he do so when he accepted the equivalent of cash. The plaintiff here substituted, with consent, his own mortgage for a similar amount of money. The rule is, as shown by decisions already cited, that if a mere alteration of some term of performance is made for the convenience of the *Page 71
parties, the character of the agreement as a writing is not altered.
Like cases have arisen where specific performance of a contract, changed merely as to the manner of carrying out some condition, has been asked, and the courts have granted relief though the statute of frauds requires the terms to be in writing. Thus, where an oral agreement to extend the time of carrying out the written agreement of sale, is proven, the alteration of this term has been held not to affect the character of the instrument as a writing. Such modifications as to time or mere terms of performance, which do not result in the making of a new and substituted agreement, are held not to reduce the contract to one in parol: Jordan v. Cooper, 3 S.
R. 564; Wilgus v. Whitehead, 89 Pa. 131. Cases in other jurisdictions where alterations were made similar to those found here, and the action on the writing sustained, will be found in Welch v. McIntosh, 89 Kan. 47, 130 P. 641; Anderson v. Moore, 145 Ill. 61, 33 N.E. 848; Low v. Treadwell, 12 Me. 441.
"Subsequent agreements between the parties, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determine the time when the purchase-money becomes due, are not affected by the statute [of frauds]": 25 Rawle C. L. 709. If contracts to sell land were reduced to parol by such alterations of terms, not amounting to new agreements, then they could not be specifically enforced because of the statute of frauds. Modifications, such as we have here, do not have that effect. So, in determining whether the statute of limitations is applicable, we must consider the sealed instrument on which this suit was brought, not as abolished and a new contract substituted, but merely modified as to the medium of payment. The suit here is not based on the oral change, which was fully carried out, but on the written agreement, as altered. *Page 72
In the case at bar, the parol change was in the expressed willingness to accept cash, or what was the same thing, the proceeds of the new mortgage which Alter had negotiated. Having received the full purchase price fixed in the agreement of sale, it was his duty to convey a title to the property free of all liens. Novice did not receive what he contracted and paid for, and is entitled to recover for the loss sustained by the breach of the obligation on which his suit was based. The writing was under seal, and the fact that suit was not brought within six years is no bar, and the court below erred in holding that it was. It is unfortunate for Alter, if he trusted Wegley, with whom he had placed the new mortgage, and failed to demand the money equivalent himself, or if Wegley did not appropriate it as directed, but the loss cannot be shifted to Novice, and he is entitled to recover.
The judgment is reversed and here entered for plaintiff on the verdict. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3846388/ | In my opinion the construction placed by the learned court below on the contract of insurance here involved is manifestly correct. The insured's prior erroneous monthly reports of the value of his goods at the location covered by the policy may, for the purposes of this case, be readily assumed to have been the result of a scrupulously honest mistake of fact and, yet, after the occurrence of the loss by fire, the extent of such loss recoverable under the terms of the policy is to be determined on the basis of the insured's "last report of values, filed prior to the loss". That is what the policy expressly provides. In short, the rights and liabilities of the parties to the contract were to become static upon the happening of the contingency insured against. Such is not only the implicit intendment of the policy's relevant terms but it is also the rule of contract law otherwise applicable to the undisputed circumstances.
Obviously, therefore, no justifiable purpose is to be served by sending the case back for the trial of an immaterial issue of fact. Plainly enough, there will be marked hardship in subjecting the non-offending party to the hazard of an unnecessary trial simply because of what, at best, was a serious and harmful mistake on *Page 493
the part of the insured. On the other hand, if the insured's prior erroneous reports of value were, in truth, the result of a bona fide mistake, he is not without an appropriate and adequate remedy. He may sue to reform such reports on the ground of mistake and, upon obtaining relief in such regard to the extent that a chancellor deems him entitled under the evidence, may thereafter claim loss, accordingly, under the policy. He would also be rightly required in the reformation suit, as a proper condition to the correction of the reports, to make good the deficiencies in past premiums which so far he had been able to escape because of his mistake.
What the ruling of the majority means is that in every such "open liability" policy, as here, the insured may always file after the occurrence of a loss a new and enlarged report of value and thus increase the amount of his insurance coverageafter the loss. All that any insured would need do to secure that unusual and startling right would be to withhold the filing of the successive monthly reports contemplated by the contract until the last day of the thirty-day period following the last day of each month. In that way, a report would always be due for filing even though a loss had occurred in the meantime. It requires little or no imagination to realize that judicial authentication of such a situation will be an open invitation to fraud which may be freely practiced wherever such an insurance policy as the present exists and a loss by fire occurs. As Judge McNAUGHER cogently stated for the court below, "To hold that the parties intended that an insured might defraud the company in premium payments and then, after a loss took place, set up a very much larger value than in the last report before the loss would be a wholly unreasonable construction of the language used". And, it may be added that the construction is directly contrary to the provisions of the contract as well.
I should unhesitatingly affirm the judgment of the court below. *Page 494 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3854346/ | Argued March 9, 1938.
This is an action of trespass brought by Alice Weir, plaintiff, to recover for injuries suffered as a result of the alleged negligence of the defendant, Bond Clothes Inc., a corporation.
Defendant operates a men's clothing store at 313 Lackawanna Avenue in the City of Scranton. The premises are approximately 100 feet deep. The fore part is used for the display of merchandise which is arranged on either side of the aisle or passageway leading to the back wall of the storeroom. In the rear part of the premises is located the defendant's office. The surface of the defendant's floor was covered with linoleum, waxed regularly and maintained in a highly polished condition. On the 14th day of April, 1934, between the hours of 1:00 and 1:30 o'clock in the afternoon, plaintiff and her mother, Lila Weir, approached the defendant's store. The mother entered for the purpose of paying a bill. A short time thereafter, plaintiff entered for the purpose of meeting her mother. She proceeded along the passageway until she reached a point approximately 14 or 15 feet from the office in the rear of the premises, when she slipped and fell heavily to the floor, suffering the injuries complained of. In attempting to get to her feet, plaintiff placed her weight on her hand, but because of the slippery condition of the highly glossed linoleum covering, she slipped again. Finally, her mother assisted her to her feet. Plaintiff's clothes and hands were stained with a *Page 56
waxy, greasy substance, as a result of the contact with the polished linoleum. After the fall, she noticed the presence of blotches and irregular patches of wax on the floor. Plaintiff's evidence was to the effect that the wax had been improperly applied the Friday night preceding the accident, on Saturday afternoon. Defendant's evidence tended to show that the wax was applied the Monday preceding the Saturday on which the injuries were suffered; that the waxing process was completed on the preceding Tuesday. No warning of the slippery condition was given, nor was light in the rear part of the store, according to plaintiff's testimony, sufficient to expose the danger.
At the conclusion of the trial, the jury awarded plaintiff $1,500. Defendant filed a motion for judgment n.o.v. The court made the rule absolute in an opinion by LEWIS, J., directing judgment to be entered for the defendant. This appeal followed.
The verdict having been in favor of plaintiff, in considering the motion for judgment non obstante veredicto, we must give plaintiff the benefit of all the evidence and reasonable inferences therefrom favorable to her and reject all others:Cathcart v. Sears Roebuck Co., 120 Pa. Super. 531,183 A. 113; McDonald v. Pgh., 278 Pa. 485, 123 A. 467; Fuller v. StewartCoal Co., 268 Pa. 328, 112 A. 65; Muehlhof v. Reading Co.,309 Pa. 17, 162 A. 827.
Plaintiff testified that the rear of the store was dimly lighted only by a window in the rear; that looking straight ahead as she walked toward the back part of the store, she suddenly fell to the floor; that after being assisted to a chair, she noticed little blotches of wax enclosed in area of about two feet in diameter at the place where she had fallen; and that in her opinion the wax on the floor where she had fallen had not been rubbed down.
The testimony of plaintiff's mother was to the effect *Page 57
that the place where plaintiff had fallen was "spotty or blotchy" and that the thickness of the wax was about one-thirty-second of an inch and enclosed in an area of about two feet square; and that in her opinion, the place on the floor had not been rubbed down.
The court submitted the case to the jury in a fair and comprehensive charge as to the burden on plaintiff to establish by the weight of the evidence, the negligence of the defendant before there could be a recovery, as also to the effect of any contributory negligence on the part of plaintiff barring a recovery.
The duty of the possessor of business premises to a business invitee is fully set forth in a very comprehensive opinion by Mr. Justice BARNES in Vetter v. Great A. P. Tea Co., 322 Pa. 449,185 A. 613, on p. 454, as follows: "The appellee was lawfully on the premises as an invitee. Appellant owed him a duty to use due care for his protection and to keep the premises in a reasonably safe condition, for the uses and purposes of the invitation, so as not to expose appellee to danger. It is true that in cases such as the present the person in ownership or control of the property is not the insurer of the safety of the invitee; his duty is discharged by the exercise of reasonable care. To such effect we have declared the rule in several of our recent decisions. Mr. Justice SIMPSON in Nettis v. Gen. Tire Co.,317 Pa. 204, 209 said: `All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended: Newingham v.J.C. Blair Co. 232 Pa. 511; Craig v. Riter-Conley Mfg. Co.272 Pa. 219.' To the same effect we recently held in Kulka v.Nemirovsky, 314 Pa. 134, 139: `Defendant owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors, such *Page 58
as plaintiff, and of giving warning of any failure to maintain them in that condition; Robb v. Niles-Bement-Pond Co., 269 Pa. 298; Markman v. Bell Stores Co., 285 Pa. 378; Newingham v. J.C.Blair Co., 232 Pa. 511; Pauckner v. Wakem, 231 Ill. 276; Starcherv. So. Penn Oil Co., 81 W. Va. 587, 602; Restatement, Torts, Section 332 (see comment a). Plaintiff was entitled to rely on defendant's performance of this duty: Restatement, Section 343 (see comment d); Yuhasz v. Pitt. Const. Co. 305 Pa. 166; Adams v.Fields, 308 Pa. 301, 305; Blondin v. Oclitic Quarry Co., 11 Ind., App. 395; Gobrecht v. Beckwith, 82 N.H. 415.'"
While the mere presence of wax or oil on the floor of business premises is not of itself negligence, where there is evidence tending to show that it was improperly applied, it becomes a question for the jury. See W.B. MacDonald et ux. v. F. W.Grand, Inc., 89 Pa. Super. 526.
In view of the verdict of the jury in favor of plaintiff, it is not necessary to discuss the question of contributory negligence. The language of our court in Ralston et al. v. Merritt, 117 Pa. Super. 487, 178 A. 159, is most pertinent (p. 489): ". . . . . . It was not her duty to anticipate that it was necessary that she exercise greater care on account of the negligent treatment of the floor, of which she was ignorant. . . . . . . It was for the jury to say whether, by the use of ordinary care, she could have seen and avoided the wax and it had a right indetermining the question of injured plaintiff's negligence totake into consideration the light and all the attendingcircumstances. The presumption is that she used due care and the proof does not clearly establish the contrary. She was not required to use as high a degree of care in keeping her eyes on the floor as in watching her steps when traveling on a highway.Bloomer v. Snellenburg et al., 221 Pa. 25, 69 A. 1124. . . . . . ." (Italics supplied). *Page 59
Likewise in the case of Ross v. Mayflower Drug Stores, 324 Pa. 513,188 A. 346, the Supreme Court, in affirming a refusal of the lower court to enter judgment n.o.v. after a verdict for plaintiff, in an opinion by Mr. Justice SCHAFFER, said at P. 515: ". . . . . . In Clark v. Lancaster, 229 Pa. 161, 164, 78 A. 86,87, we said: `She (plaintiff) admitted that she was not looking down on the ground as she was walking along, but was looking straight ahead. This, however, was not sufficient to convict her of contributory negligence for it must have appeared that if she had looked, she could not have helped seeing the danger.' This was substantially repeated in Gorman and Gorman v. Phila., 82 Pa. Super. 136; and in Ralston v. Merritt, 117 Pa. Super. 487,490, 178 A. 159, 160, that court thus summed up the situation before it: `It is true that the injured plaintiff did not look at the floor until after she had arisen. . . . . . It might very reasonably be assumed that if she had looked she would not have observed the danger that confronted her. At least, her lack of care was not so evident that the only conclusion that could have been reached was that she was negligent.'
"In our opinion the situation shown by the testimony in the present case does not parallel that in such cases as Bilger v.Great A. P. Tea Co., 316 Pa. 540, 175 A. 496; Ziegler v.Western Union Telegraph Co., 319 Pa. 274, 179 A. 45; Walker v.Broad Walnut Corp., 320 Pa. 504, 182 A. 643, where recovery was denied, but rather discloses one in which there was sufficient doubtfulness to warrant the questions of defendant's negligence and the contributory negligence of plaintiff being submitted to the jury for solution."
After a careful consideration of the entire record, we are of the opinion that it would have been error to have withdrawn the case from the consideration of the *Page 60
jury and that there was sufficient evidence to sustain the verdict for plaintiff.
The assignment of error is sustained, judgment reversed and now entered in favor of plaintiff-appellant. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1714719/ | 63 N.W.2d 157 (1954)
158 Neb. 390
CULPEN
v.
HANN.
No. 33517.
Supreme Court of Nebraska.
March 12, 1954.
Glen Culpen, pro se.
Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
CARTER, Justice.
The appellant filed a petition for a writ of habeas corpus in the district court for Lancaster County on October 8, 1953, in which he asserted he was improperly held in the State Penitentiary. The trial court refused to issue the writ for the reason that the petition failed to allege facts sufficient to state a cause of action. The petitioner appeals.
*158 It is fundamental that a petition for a writ of habeas corpus must state a cause of action, and if it does not the court may properly enter an order denying the writ. Howell v. Hann, 155 Neb. 698, 53 N.W.2d 81, certiorari denied 343 U.S. 981, 72 S. Ct. 1083, 96 L. Ed. 1372; Stapleman v. Hann, 155 Neb. 410, 51 N.W.2d 891. A writ of habeas corpus will issue as a matter of right only when the petition states a cause of action.
The petition alleges that in May 1947, the petitioner was sentenced to the State Penitentiary for a term of 3 years. On October 6, 1947, petitioner escaped custody while serving this sentence. On October 14, 1947, he was charged with escaping custody and with automobile theft. He pleaded guilty to both charges and was sentenced to serve 3 years in the penitentiary for each offense. It appears to be the contention of petitioner that these two 3-year sentences are to be treated as concurrent sentences irrespective of the court's order to the contrary.
This contention of the petitioner has no merit. The trial court may properly sentence a convicted criminal to consecutive terms in the penitentiary for separate offenses. In re Walsh, 37 Neb. 454, 55 N.W. 1075; Luke v. State, 123 Neb. 101, 242 N.W. 265. It is the rule, however, that where two sentences are imposed in the same court at the same time for two offenses, the sentences will run concurrently if the trial judge does not otherwise order. Luke v. State, supra; State ex rel. Allen v. Ryder, 119 Neb. 704, 230 N.W. 586. We gather from the petition that the trial court failed to specify whether the two 3-year sentences were to run consecutively or concurrently. If this be true, the writ should issue where the petition alleges that one of the 3-year sentences has been served. Petitioner alleges that he commenced serving the two 3-year terms on April 1, 1950. Consequently his allegation that the two 3-year terms run concurrently would indicate that these sentences terminated on or before April 1, 1953.
The petition for the writ of habeas corpus was evidently prepared by the petitioner himself. It lacks much in the way of clarity, but, giving it the most favorable construction possible, we think it states a cause of action and warrants the issuance of a writ. If the commitments under which he is held do not show that the court imposed sentences to be consecutively served, as petitioner alleges, it would appear that he is entitled to relief.
We think the trial court erred in not issuing the writ as prayed. The judgment is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4554075/ | J-S24034-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY MARTINEZ, :
:
Appellant : No. 1371 EDA 2019
Appeal from the PCRA Order Entered April 16, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0207821-1988
BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 07, 2020
Gregory Martinez (Appellant) appeals pro se from the order entered on
April 16, 2019, dismissing his motion for post-conviction DNA testing filed
pursuant to section 9543.1 of the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Upon review, we affirm.
This Court has previously provided the following factual summary.
On May 12, 1997, Jerry Morris[], a used-car dealer,
allowed [A]ppellant to borrow a gold-colored Plymouth to show
to a potential buyer; [A]ppellant occasionally sold cars for
Morris. While having lunch later that day, [A]ppellant
encountered John Reese [(Victim)], to whom he had sold a car
transmission two years earlier. [Victim] complained about the
transmission and demanded his money back. Appellant refused
to refund the money, and the verbal argument escalated into a
fistfight. Appellant left the restaurant [in his car] and vowed to
return for [Victim]. Moments later, [A]ppellant came back in the
gold Plymouth and shot [Victim].
***
*Retired Senior Judge assigned to the Superior Court.
J-S24034-20
During the investigation… Morris… spoke to the police,
stating that [A]ppellant had been to see him on the night of the
murder and [Appellant] had stated that he killed [Victim].
Commonwealth v. Martinez, 897 A.2d 520 (Pa. Super. 2006)
(unpublished memorandum at 1-2).
Based on the foregoing, Appellant was charged with first-degree
murder, possessing an instrument of crime, and carrying a firearm without a
license. On March 18, 1999, Appellant proceeded to a jury trial. The
Commonwealth presented, inter alia, Morris’ testimony, as well as testimony
from two eyewitnesses who observed Appellant shoot Victim. One of those
eyewitnesses was Teresca Cherry, who
was nearby when the shooting occurred[. She stated that
Appellant], whom she had known for a long time as Chop, and
[Victim] got into a fight. As the fighting ended, Cherry heard
[Appellant] say, “I'll be back.” Cherry testified that she then saw
[Appellant] get into a beige[-]colored car1 and drive away. A few
minutes later, [Appellant] returned, walked up to the victim, and
shot him twice. Cherry… saw [Appellant] get back in the beige
car and drive north on Lancaster [Street]. Officer Lorenzo
Walker… testi[fied ]that he saw [Appellant] shoot the victim.
After sending out a bulletin, Officer Walker pursued [Appellant]
as he fled the scene in a beige colored Plymouth Reliant. Officer
Walker followed the vehicle down Lancaster [Street] to Sloan
Street.
Commonwealth v. Martinez, 764 A.2d 1125 (Pa. Super. 2000)
(unpublished memorandum at 1-2). Officer Walker lost sight of Appellant
1
Throughout trial, the car was interchangeably referred to as gold and beige.
Because Appellant abandoned the vehicle and escaped on foot down an
alley, the identification of the car used to flee the shooting was not at issue.
Martinez, 897 A.2d 520 (unpublished memorandum at 2).
-2-
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after Appellant jumped out of the Plymouth and ran down an alley.
Martinez, 897 A.2d 520 (unpublished memorandum at 2).
A second law-enforcement officer placed Appellant near the scene of
the murder, and a third officer saw the Plymouth Reliant speed away from
Victim after the shooting.
Officer Anthony Winbush testified that, near the time of
the shooting, he was traveling on Sloan Street, a narrow side
street, when he pulled onto the curb to let another car pass. The
car was driven by [Appellant]. As it passed, both men looked at
each other. Officer Winbush testified that he had known
[Appellant] and his family for several years.…
Shortly before the shooting, Officer Samuel McClain, who
was off duty, was driving toward Lancaster [Street] to meet with
Officer Winbush when Officer McClain heard a gunshot. A few
seconds later, he observed a beige Reliant drive by him in the
opposite direction at a high rate of speed. A few moments later,
Officer McClain saw a marked police car with its lights flashing
speed by him. As Officer McClain approached 40th and Lancaster
[Streets], he saw people taking items off of a body that was
resting on the ground. He stopped his car and approached the
body. Upon turning the body over, Officer McClain observed that
the victim[] had been shot. [Victim] died shortly thereafter.
Martinez, 764 A.2d 1125 (unpublished memorandum at 2).
Finally, the Commonwealth presented evidence that Appellant’s palm
print was found on the Plymouth Reliant, and .32 caliber Smith and Wesson
bullets recovered from Victim’s body were similar to .32 caliber cartridges
seized from Appellant’s residence. Id. (unpublished memorandum at 3).
On March 23, 1999, the jury convicted Appellant of first-degree
murder, possessing an instrument of crime, and carrying a firearm without a
license. Appellant was sentenced to life imprisonment without the possibility
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of parole for murder and concurrent sentences of two to four years of
imprisonment on the remaining charges. Appellant filed a direct appeal. This
Court affirmed Appellant’s judgment of sentence on August 7, 2000, and our
Supreme Court denied his petition for allowance of appeal on January 31,
2001. Id., appeal denied, 766 A.2d 1245 (Pa. 2001). Appellant’s first PCRA
petition was timely filed on September 13, 2001, and dismissed by the PCRA
court. We affirmed the PCRA court’s dismissal, and our Supreme Court
denied allocatur. Martinez, 897 A.2d 520, allocatur denied, 911 A.2d 934
(Pa. 2006).
Appellant filed his second PCRA petition on May 14, 2012, amended on
August 16, 2012.2 On March 14, 2018, Appellant pro se filed the instant
motion for post-conviction DNA testing of clothing worn by Victim.
Appellant’s Motion for DNA Testing, 3/14/2018, at 3. The Commonwealth
filed a motion to dismiss Appellant’s second PCRA petition and motion for
DNA testing on January 16, 2019, to which Appellant responded on February
13, 2019.3 The PCRA court sent Appellant a notice of intent to dismiss his
2The PCRA Court’s opinion states that Appellant “filed an amended petition”
on August 16, 2012 and discusses exclusively the content of Appellant’s
August 2012 filing, however a review of the record does not indicate whether
Appellant had leave to amend his May 14, 2012 petition. See PCRA Court
Opinion, 10/24/2019, at 3, 4-7.
3 The Commonwealth’s motion to dismiss covers both Appellant’s 2012 PCRA
petition and 2018 motion for DNA testing, erroneously stating that they were
filed together on May 14, 2012. Commonwealth Motion to Dismiss,
1/16/2019, at 7. No explanation appears in the record for the more than six
(Footnote Continued Next Page)
-4-
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PCRA petition pursuant to Pa.R.Crim.P. 907 on March 18, 2019. Appellant
responded on April 8, 2019. On April 16, 2019, the PCRA court dismissed
Appellant’s PCRA petition as untimely filed and without merit and denied his
motion for DNA testing.
Appellant timely filed a notice of appeal from the denial of his motion
for DNA testing.4
Appellant raises the following issue on appeal.
Appellant’s... petition to have DNA testing was denied without a
hearing, which deprived Appellant of due process and caused a
miscarriage of justice. The lower court abused it[]s discretion
and was in error of the law, as the ruling was contrary to the
statute, and was not supported by the record.
Appellant’s Brief at 8 (unnumbered)5 (some capitalization omitted).6
(Footnote Continued) _______________________
year delay in addressing Appellant’s 2012 PCRA petition. We do not condone
such extreme delays. Our Supreme Court has made clear that “[t]he PCRA
court [has] the ability and responsibility to manage its docket and caseload
and thus an essential role in ensuring the timely resolution of PCRA
matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012).
However, we need not address this delay further as Appellant’s responses to
the Commonwealth’s motion to dismiss and subsequent filings exclusively
contest the dismissal of his 2018 motion for DNA testing, and not his 2012
PCRA petition.
4
The PCRA court complied with Pa.R.A.P. 1925(a). It did not order a
Pa.R.A.P. 1925(b) statement and none was filed.
5 Appellant purports to hand-number his brief; however it is difficult to
follow; so we have renumbered for ease of reference.
6
Insofar as Appellant argues tangentially that he was not afforded counsel,
we note that section 9543.1 does not confer a right to counsel.
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011).
-5-
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“Post[-]conviction DNA testing falls under the aegis of the… PCRA, and
thus, our standard of review permits us to consider only whether the PCRA
court’s determination is supported by the evidence of record and whether it
is free from legal error.” Commonwealth v. Kunco, 173 A.3d 817, 823 (Pa.
Super. 2017) (original brackets omitted) (quoting Commonwealth v.
Conway, 14 A.3d 101, 108 (Pa. Super. 2011)).
The post-conviction DNA testing statute permits “[a]n individual
convicted of a criminal offense in a court of this Commonwealth” to apply by
“written motion to the sentencing court at any time for the performance of
forensic DNA testing on specific evidence that is related to the investigation
or prosecution that resulted in the judgment of conviction.” 42
Pa.C.S. § 9543.1(a)(1). “DNA testing may be sought at any time if the
motion is made in a timely manner and for the purpose of demonstrating the
applicant’s actual innocence and not to delay the execution of sentence or
administration of justice.” 42 Pa.C.S. § 9543.1(a)(4).
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
***
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by
the perpetrator was at issue in the proceedings
that resulted in the applicant’s conviction and
sentencing; and
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(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant’s actual innocence of the
offense for which the applicant was
convicted[.]
***
(d) Order.--
***
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the
record of the applicant’s trial, the court determines
that there is no reasonable possibility that the
testing would produce exculpatory evidence that:
(i) would establish the applicant’s actual innocence
of the offense for which the applicant was
convicted[.]
42 Pa.C.S. § 9543.1.
“[O]n its face, the prima facie requirement set forth in § 9543.1(c)(3)
and reinforced in § 9543.1(d)(2) requires that an appellant demonstrate that
there is a reasonable possibility[] that favorable results of the requested
DNA testing would establish the appellant’s actual innocence of the crime of
conviction.” Conway, 14 A.3d at 109 (internal quotation marks omitted). In
order for new evidence resulting from DNA testing to establish “actual
innocence,” it “must make it ‘more likely than not that no reasonable juror
would have found [the appellant] guilty beyond a reasonable doubt.’ Thus,
this standard requires a reviewing court ‘to make a probabilistic
determination about what reasonable, properly instructed jurors would do,’ if
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J-S24034-20
presented with the new evidence.” Conway, 14 A.3d at 109 (quoting
Schlup v. Delo, 513 U.S. 298, 327, 329 (1995)). Accordingly, the PCRA
court must “review not only the motion [for DNA testing], but also the trial
record, and then make a determination as to whether there is a reasonable
possibility that DNA testing would produce exculpatory evidence that would
establish … actual innocence.” Commonwealth v. Williams, 35 A.3d 44,
50 (Pa. Super. 2011) (quoting Commonwealth v. Smith, 889 A.2d 582,
584 (Pa. Super. 2005)).
In his motion for DNA testing, Appellant argued he was entitled to
have Victim’s shirt, sweatshirt, and jacket tested for “DNA, blood, hair[,] and
any fibers that would reveal [an]other persons’ DNA besides the deceased.”
Appellant’s Motion, 3/14/2018, at 3. Through a string of inferences, he
posits that blood on Victim’s shirt could exonerate him by showing that
someone else committed the murder. Id. at 2. First, Appellant maintains
that he is innocent, and his DNA would not be found on Victim. Id. Next,
Appellant states that the “struggle and … fight” preceding the shooting put
Victim and his attacker “in very close contact” such that it is reasonable to
believe blood from the attacker would have gotten on Victim’s clothing. Id.
at 2. He then endorses “the testimony explain[ing that] the man who fought
[Victim] is the same person who came back and shot [Victim].” Id.
Therefore, Appellant reasons that blood on Victim’s shirt “could be of both
parties, the shooter and the deceased.” Id. As a result, Appellant concludes
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DNA testing may result in identifying the shooter and exonerating Appellant.
Id. at 3.
In denying Appellant’s motion, the PCRA court found that Appellant
failed to make out a prima facie case pursuant to § 9543.1(c)(3). PCRA
Court Opinion, 10/24/2019, at 10. The PCRA court determined that, given
the “overwhelming[]” evidence establishing Appellant’s responsibility for the
murder, neither the absence of his DNA nor the presence of another person’s
DNA would establish Appellant’s actual innocence. Id.
On appeal, Appellant asserts that the PCRA court “failed to
understand that eyewitness testimony … is unreliable and most damaging to
a fair trial because of misidentification.” Appellant’s Brief at 7 (unnumbered).
Appellant relies on Conway to argue he has presented a prima facie case
that, assuming exculpatory results, DNA testing would resolve the purported
misidentification and reveal the actual murderer based upon Conway’s data
bank theory and confession theory. Id. at 10-11 (unnumbered) (citing
Conway, 14 A.3d at 110; In re Payne, 129 A.3d 546 (Pa. Super. 2015)).
Taken together, the data bank and confession theories postulate that if DNA
testing yields DNA of an unknown person, it “could be run through state and
federal data banks for a match.” Conway, 14 A.3d at 110. If the data bank
search finds a match, the identified person could be confronted with the
results and choose to confess. Id. Appellant concludes that, applying the
theories to his case, “[t]he blood may reveal the real killer. The killer may
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also confess to the crime.… The DNA would reveal that Appellant is actually
innocent of the crimes charged.” Appellant’s Brief at 10-11 (unnumbered).
Appellant’s comparison to Conway and Payne is inapt.7 Motions for
DNA testing are evaluated on a case-by-case basis; the data bank and
confession theories are not universally applicable or exculpatory. Payne,
129 A.3d at 559-60, 564. Here, rather than exonerate Appellant, the
detection of multiple DNA profiles on Victim’s clothing is consistent with the
evidence adduced at trial. First, although Appellant’s argument focuses on
blood, we note that his broad request for testing any source of DNA would
have no exculpatory value. See Appellant’s Motion, 3/14/2018, at 3. In
addition to Victim’s encounters prior to the shooting and while receiving
medical care, Officer McClain observed multiple people come in contact with
Victim’s clothing while removing items from the body. Moreover, the mere
absence of Appellant’s DNA cannot establish actual innocence. See Smith,
889 A.2d at 585 (“Merely detecting DNA from another individual on the
victim’s fingernails, in the absence of any evidence as to how and when that
7
In Payne, we held that detection of another person’s DNA could be
exculpatory where no physical evidence linked the appellant to the murder;
the conviction was based on testimony from two jailhouse informants and
one other witness claiming the appellant confessed to them; and testing was
sought for specific, inherently inculpatory items such as a pubic hair. Payne,
129 A.3d at 564. In Conway, we found that DNA testing was warranted
where Conway was convicted based on circumstantial evidence and no prior
relationship existed between Conway and the victim to suggest a motive.
Conway, 14 A.3d at 109.
- 10 -
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DNA was deposited, would not exculpate appellant by pointing to a different
assailant.”).
Appellant has not demonstrated that there is a reasonable possibility
the presence of another person’s blood on Victim’s clothing, and/or the
absence of Appellant’s, would establish his actual innocence. The
Commonwealth’s case did not rely on proving that the assailant and Victim’s
fight caused either party to bleed, that the assailant came in such close
contact with Victim that blood would inevitably transfer, or that the assailant
bled on Victim. As such, new evidence showing someone else’s blood came
into contact with Victim’s body or clothing, but Appellant’s blood did not,
would not disprove or outweigh the most salient evidence introduced at trial.
At trial, a law enforcement officer and a person who knew Appellant for
years testified that they saw Appellant shoot Victim.8 Two more law
enforcement officers placed Appellant near the crime scene, fleeing in the
Plymouth Reliant. Finally, Appellant does not challenge the evidence that he
drove the Plymouth Reliant used to flee the scene, confessed the murder to
Morris, and possessed ammunition consistent with the bullets used to kill
Victim. Thus, even if DNA evidence favorable to Appellant had been
8
Notwithstanding Appellant’s bald proclamation that eyewitness accounts
are generally unreliable, we note that Appellant’s theory for the transfer of
the shooter’s DNA onto Victim’s clothing relies on his selective endorsement
of eyewitness testimony. Appellant’s Reply Brief at 1 (“[I]t was the
Commonwealth’s witness [Cherry] that presented a prima facie case that
DNA testing is needed” by testifying to the fight between Appellant and
Victim.).
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introduced at trial, it is not probable that any reasonable juror would have
found Appellant not guilty.
As Appellant has failed to meet his prima facie burden under
§ 9543.1(c)(3), we find that the PCRA court did not err in denying
Appellant’s motion for post-conviction DNA testing. Accordingly, we affirm
the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
- 12 - | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554076/ | J-S28045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREVR B. KOESTNER :
:
Appellant : No. 285 MDA 2020
Appeal from the PCRA Order Entered January 29, 2020
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0006116-2017
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020
Trevr B. Koestner (“Koestner”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1
Additionally, counsel for Koestner2 have filed a Motion to Withdraw as
Counsel, and an accompanying Turner/Finley3 brief. We grant the Motion
to Withdraw, and affirm the Order of the PCRA court.
In its Opinion, the PCRA court summarized the relevant factual and
procedural history underlying this appeal as follows:
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 The PCRA court appointed Dennis C. Dougherty, Esquire (“Attorney
Dougherty”), and Barrie L. Wellener, Esquire (“Attorney Wellener”) to
represent Koestner.
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S28045-20
On October 30, 2017, officers from the Northwest Regional
Police Department and Elizabeth[town] Borough Police
Department were checking the Elizabethtown area for Koestner,
who had an active warrant out of Jonestown, Pennsylvania.
They received information that Koestner was located in a Turkey
Hill convenience store, and proceeded there. One of the officers
confronted Koestner inside the store. As Koestner attempted to
flee, he punched an officer in his hands and in the chest. He
then pushed another officer in an attempt to get out the door of
the Turkey Hill. A [t]aser was deployed and Koestner was taken
into custody. While resisting arrest, Koestner knocked over
several display cases inside the store and damaged
merchandise. As a result of his actions, Koestner was charged
at [Lancaster County docket number] 6116-2017 [(“6116-
2017”)] with two counts of aggravated assault, [and one count
each of] retail theft, resisting arrest and criminal mischief.
These new charges resulted in a State Parole Violation at
[Lancaster County docket number ]148-2015 [(“148-
2015”)].[FN1]
___________________________________________________
[FN1] On November 27, 2014, Koestner was discovered
unconscious in a running vehicle in a parking lot in Lancaster
Township. Large bundles of cash and drug paraphernalia were in
plain view on Koestner’s lap and on the passenger seat. A
search of the vehicle, after obtaining Koestner’s verbal and
written consent, disclosed $5,540 cash, approximately 45 grams
of suspected heroin, [] drug packaging materials[,]
paraphernalia, knives, and a [vial] of the controlled substance
Alprazolam. After being arrested, Koestner slipped his handcuffs
under his feet[,] brought his hands to the front of him and
grabbed a large amount of seized heroin from the front of the
patrol cruiser. Koestner was charged[, at 148-2015,] with
[possession with intent to distribute a controlled substance],
tampering with evidence, possession of a controlled substance,
and possession of drug paraphernalia. Pursuant to a negotiated
guilty plea, Koestner received an aggregate sentence of two and
one-half to six years[ of] incarceration in a state correctional
institution.
___________________________________________________
On September 18, 2018, Koestner tendered a negotiated
guilty plea[, at 6116-2017,] to one count of aggravated assault,
a reduced charge of simple assault in lieu of the originally
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charged aggravated assault, resisting arrest and criminal
mischief. The charge of retail theft was nolle prossed as a part
of the negotiated agreement. After an on-the-record colloquy,
[the trial court] accepted the plea and sentenced Koestner
pursuant to the agreement to an aggregate term of 21 months[]
to 4 years[ of] incarceration. … No post sentence motion … [or]
direct appeal was filed. Koestner was represented at his plea
and sentencing by … David L. Blanck, Esquire [(“Attorney
Blanck”)].
On March 15, 2019, Koestner filed a pro se “Motion for
Concurrent Time Clarification,” requesting that the new sentence
of 21 months to 4 years[ of] incarceration imposed at [] 6116-
2017 be ordered [to run] concurrent [with] the prior sentence
imposed at [ ]148-2015. An order was entered on April 1, 2019,
granting Koestner’s [M]otion. Subsequently, on June 25, 2019,
the Department of Corrections notified Koestner that the new
sentence at [] 6116-2017 could not, however, be served
concurrently with the back[]time imposed on the State Parole
Violation after he was sentenced on the new Lancaster County
Charges.
As a result, on July 12, 2019, Koestner served on the court
a timely pro se [PCRA] Petition …[,4] which claimed that his plea
was unlawfully induced and he is innocent of the charges, and
further that the sentence imposed exceeded the lawful
maximum. … [O]n July 23, 2019, Dennis C. Dougherty, Esquire
[(“Attorney Dougherty”)], was court appointed to represent
Koestner[, and Attorney Dougherty’s law partner, Attorney
Wellener, was granted permission by the PCRA court to handle
any and all court matters appointed to Attorney Dougherty.] …
Attorney Wellener filed an [A]mended PCRA [P]etition claiming
Koestner did not enter a knowing, intelligent and voluntary guilty
plea[,] given that the sentence imposed [at] 6116-2017 was
illegal in that it was made [consecutive to ]148-2015.
An evidentiary hearing was held [on] January 17, 2020.
The [PCRA c]ourt heard testimony from [Attorney Blanck] and
Koestner. At the conclusion of the hearing, Koestner’s
____________________________________________
4 Koestner’s pro se PCRA Petition does not appear in the certified record and
its filing is not reflected in the docket.
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[A]mended PCRA [P]etition was denied on the record. A timely
[N]otice of [A]ppeal was filed with [this Court] on February 13,
2020.[5] Pursuant to [the PCRA c]ourt’s directive, a [Pa.R.A.P.
1925(b)] [C]oncise [S]tatement of matters complained of on
appeal was filed on February 19, 2020….
PCRA Court Opinion, 2/25/20, at 1-4 (citations to record and some footnotes
omitted; one footnote added).
Prior to addressing the merits of the issue raised in the Turner/Finley
Brief, we must determine whether counsel has met the procedural
requirements to withdraw. Counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the PCRA court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner[] (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
satisfy the technical demands of Turner/Finley, the court …
must then conduct its own review of the merits of the case. If
____________________________________________
5 The Amended PCRA Petition included both docket numbers, and the PCRA
court issued one Order denying the Petition. However, Koestner properly
filed separate Notices of Appeal, one at each docket. See Commonwealth
v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that “when a single order
resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed. The failure to do so will result in quashal of
the appeal.” (citing Pa.R.A.P. 341)). The instant appeal concerns 6116-
2017.
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the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(corrections and some quotations and citations omitted).
Here, counsel have provided Koestner with a copy of the Motion to
Withdraw and the Turner/Finley Brief, and advised Koestner of his right to
proceed pro se or with private counsel. See Motion to Withdraw, 5/1/20, at
2. Thus, counsel have complied with the procedural requirements for
withdrawing as PCRA counsel. See Muzzy, supra. Koestner has neither
retained private counsel nor submitted any pro se filings to this Court.
Accordingly, we next address Koestner’s substantive claims to determine
whether they lack merit.
Koestner alleges that his guilty plea was involuntarily induced by the
ineffective assistance of Attorney Blanck. Turner/Finley Brief at 8-13.
Koestner claims that Attorney Blanck wrongly advised him that his sentence
at 6116-2017 would run concurrent with any other sentence he was serving,
including his sentence at 148-2015. Id. at 8-9. Koestner argues that, as a
result, his plea was not “knowing, intelligent, and voluntary.” Id.
As this Court has explained,
[w]hen reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a
PCRA court’s credibility determinations. However, with regard to
a court’s legal conclusions, we apply a de novo standard.
-5-
J-S28045-20
Commonwealth v. Lee, 206 A.3d 1, 6 (Pa. Super. 2019) (citations
omitted).
To prevail on a claim alleging counsel’s ineffectiveness
under the PCRA, Appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel’s course
of conduct was without a reasonable basis designed to effectuate
his client’s interest; and (3) that he was prejudiced by counsel’s
ineffectiveness, i.e.[,] there is a reasonable probability that but
for the act or omission in question the outcome of the
proceedings would have been different.
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
The law does not require that the defendant be pleased
with the outcome of his decision to enter a plea of guilty: All that
is required is that his decision to plead guilty be knowingly,
voluntarily, and intelligently made.
Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)
(citations and quotation marks omitted).
In order to ensure a voluntary, knowing, and intelligent
plea, trial courts are required to ask the following questions in
the guilty plea colloquy:
1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the
right to a trial by jury?
-6-
J-S28045-20
4) Does the defendant understand that he or she is
presumed innocent until found guilty?
5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the
judge accepts such agreement?
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)
(citation omitted). “In determining whether a guilty plea was entered
knowingly and voluntarily, … a court is free to consider the totality of the
circumstances surrounding the plea.” Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004) (citation and quotation marks omitted).
Furthermore, the oral colloquy may be supplemented by a written colloquy
that is read, completed, and signed by the defendant and made a part of the
plea proceedings. Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa.
Super. 2005).
Here, Koestner stated that he understood the nature of the charges to
which he pled guilty. Guilty Plea Colloquy, 9/18/18, at 3-4; N.T., 9/19/18,
at 4-7. Koestner also indicated that he understood the factual basis of the
underlying charges. N.T., 9/19/18, at 7-8. Koestner acknowledged that he
had a right to a trial by jury and that he was presumed innocent until found
guilty. Guilty Plea Colloquy, 9/18/18, at 2. Moreover, Koestner confirmed
that he was aware of the permissible ranges of sentences for the offenses
charged, and that the trial court judge was not bound by the terms of the
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J-S28045-20
plea agreement. Guilty Plea Colloquy, 9/18/18, at 3-4; N.T., 9/19/18, at 8-
9. Koestner further stated that Attorney Blanck had fully explained the
terms of the plea agreement, and that he was not forced or threatened to
plead guilty. Guilty Plea Colloquy, 9/18/18, at 5, 7.
Additionally, Attorney Blanck testified at the PCRA hearing that he had
advised Koestner that any sentence he received at 6116-2017 would run
consecutive to his state parole back time at 148-2015. See N.T. (PCRA
hearing), 1/17/20, at 6. The PCRA court found Attorney Blanck’s testimony
to be credible. See Trial Court Opinion, 2/25/20, at 5, 7.
Based on the totality of the circumstances, we conclude that Koestner
knowingly and voluntarily entered his guilty plea. See Commonwealth v.
Muhammad, 794 A.2d 378, 384 (stating that the appellant cannot claim
that he involuntarily entered a guilty plea where he stated that no one
threatened him to plead guilty); Commonwealth v. McCauley, 797 A.2d
920, 922 (Pa. Super. 2001) (stating that “where the record clearly
demonstrates that a guilty plea colloquy was conducted, during which it
became evident that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established.”). Thus, because
Koestner entered a voluntary, knowing, and intelligent guilty plea, his
ineffectiveness claim is without merit. See Willis, supra.
Motion to Withdraw granted. Order affirmed.
-8-
J-S28045-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/07/2020
-9- | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3857574/ | Argued October 6, 1932.
This action in ejectment involves the title to a small, irregular piece of land. The controversy is over the location of a division line between the lands of these adjoining owners.
The plaintiff made no claim in his declaration that he or his predecessors in title were ever in possession of the land in controversy; nor did he offer to prove possession at the trial, but relied on his paper title as set forth in his abstract of title. His abstract showed a series of conveyances commencing with the deed from Jacob Gorgas and wife to Jacob Hortter, dated September 1, 1801, and terminating with the deed from Emma W. Page, Executrix et al. to the plaintiff, dated August 9, 1922.
The defendant averred in her answer that neither the plaintiff nor his predecessors had been in possession of or had title to this land, but that she and her predecessors in title had been in actual, visible, exclusive and adverse possession for more than 150 years, and set up a paper title running back uninterruptedly to the Commonwealth. *Page 90
The trial judge, after directing a verdict for the defendant, as the plaintiff did not prove title out of the Commonwealth or from a common owner, stated that if the plaintiff should perfect his chain of title, a new trial would be granted. Thereafter, plaintiff filed a motion for a new trial and accompanied it with an amended abstract of title, which set forth two additions to the original abstract. The first was a series of conveyances from the Commonwealth, ending with a deed from Barned Gates and wife to Barnet Shewcart, dated March 18, 1786; but the deed from Shewcart to Jacob Gorgas, from whom the plaintiff alleges he derived his title in the original abstract, is missing. The second was a note referring to a deed, included in the defendant's abstract, dated April 2, 1804, from Frederick Smith and wife to George Berger. In describing the premises therein conveyed, a reference was made to Jacob Hortter as an adjoiner. The court below held the amended abstract insufficient and refused a motion for a new trial; this appeal followed.
It requires no authorities to support the well settled rule that in an action of ejectment the plaintiff must recover on the strength of his own title. As possession was not averred or proven, the plaintiff's right to recover rested solely on his paper title. The deed from Gorgas to Hortter did not establish title to the land in the plaintiff as it was not shown that Gorgas had previously acquired any legal right thereto. As was said in Crist v. Boust, 26 Pa. Super. 543, 545, "His title is suspended in the air." It may have been acquired from entire strangers who had no color of title. Without further proof, the deed was of no value: Bonaffon v. Peters, 134 Pa. 180, 19 A. 499. Nor did a presumption of good title exist under his abstract, as contended by the appellant, as there was no proof of possession of the land, which was an imperative requirement if the appellant relied on a presumptive *Page 91
title: Kingston v. Lesley, 10 S. R. 383. The appellant tried to meet the burden by referring in his written argument to a prior rule taken by the defendant against him in 1925 to bring an action of ejectment, which the court discharged. This proceeding, however, was not pleaded or proven and, therefore, is not before us. If this record had been offered in evidence it would not have been helpful. It determined only that the plaintiff at that time was not in possession of the land in dispute; it did not establish the appellant's possession.
In Dougherty v. Welshans, 233 Pa. 121, 81 A. 997, cited by appellant, the plaintiff had paid the taxes for a period of at least 40 years and had exercised dominion over the land for 50 years. In Fox v. Thompson, 31 Pa. 172, it was held that the existence of an intermediate link in an abstract of title will be presumed against an intruder without a title, where there has been a long assertion of title, if accompanied by acts of ownership. See also Townsend v. Boyd, 217 Pa. 386, 66 A. 1099; Armstrong County v. McElheny, 273 Pa. 208, 116 A. 812. We find no authority, and none has been cited, to support the appellant's contention that presumptive title may be successfully invoked to amend the defective paper title, unless the alleged owner for a period of years has exercised dominion over the land unchallenged by a counterclaim. It was incumbent on the plaintiff, in view of the missing link in his title, to prove clearly the facts and circumstances from which the existence of the lost deed might be reasonably inferred, or, as already stated, possession; he did neither.
In the deed from Smith to Berger in 1804, the reference to Jacob Hortter as one of the adjoining owners is not a sufficient circumstance from which an existence of a conveyance from Shewcart to Gorgas might be inferred. The statement in the deed was made in connection *Page 92
with the description of the premises conveyed, which was not this land, and it cannot be said that Smith, the grantor, made a claim thereto. An additional and a stronger reason is, that it does not clearly appear, and it may not be reasonably assumed, that the adjoining land of Hortter, mentioned in the deed, included the strip now in dispute. Hortter presumably owned the adjoining lands, but, according to the plaintiff's abstract of title, his lands were along the fence, which the defendant contends is the true dividing line. There is nothing inconsistent with defendant's contention and the call in the deed. In truth, the reference in the deed throws no light whatever upon the correct location of this line, which is the main matter of dispute.
The plaintiff having failed to prove a legal title to this land in controversy, the learned court below was right in directing a verdict for defendant and refusing a new trial.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554081/ | J-S20039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD N. DANIELS :
:
Appellant : No. 35 EDA 2019
Appeal from the PCRA Order Entered October 17, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012194-2009
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 07, 2020
Edward N. Daniels appeals the order denying as untimely his petition for
relief filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
Daniels alleges his petition is timely under the newly discovered facts
exception,1 and that the PCRA court abused its discretion in denying his
motion for recusal. We affirm.
We have previously summarized the underlying facts as follows:
On June 27, 2009, [Daniels], along with Donnell Murchison and
Antonio Wright, entered the Piazza Navona Apartments in the
Northern Liberties section of Philadelphia. All three men waited in
the hallway of the seventh floor. As Rian Thal, who was allegedly
expecting a shipment of $500,000 worth of powder cocaine from
Texas, and her associate, Timothy Gilmore, were exiting the
elevator, [Daniels], Wright, and Murchison pulled out their guns
and announced a robbery. Gilmore resisted, and Wright shot him.
Murchison then shot Thal in the back of the head. Upon noticing
that Gilmore was still alive, Wright shot Gilmore twice more, also
____________________________________________
1 See 42 Pa.C.S.A. § 9545(b)(1)(ii).
J-S20039-20
in the head. Both victims died at the scene. [Daniels], Wright, and
Murchison fled without obtaining the targeted drugs.
Commonwealth v. Daniels, No. 539 EDA 2016, 2016 WL 6124110, at *1
(Pa.Super. Oct. 20, 2016) (unpublished memorandum).
The Commonwealth charged Daniels with the second-degree murder of
Rian Thal, robbery, conspiracy, and carrying firearms in public in Philadelphia.2
A jury found Daniels guilty, and the court sentenced Daniels to life without
parole for his second-degree murder conviction. We affirmed the judgment of
sentence except that we vacated the conviction for conspiracy.3 The
Pennsylvania Supreme Court denied Daniel’s petition for allowance of appeal
on February 19, 2014.
Daniels filed his first PCRA petition in April 2014. The PCRA court
appointed counsel and ultimately denied relief. This Court affirmed, and the
Pennsylvania Supreme Court denied review.
Daniels filed a second PCRA petition, pro se, in June 2017. Daniels
alleged he had discovered news articles reporting misconduct by Philadelphia
Police Detectives Ronald S. Dove, Ohmarr Jenkins, and James Pitts. In the
petition, Daniels requested “any available documentary evidence concerning
the claim made regarding [the detectives].” PCRA pet., 6/2/17, at 5, ¶ 36.
____________________________________________
2 The Commonwealth charged Daniels with the second-degree murder of
Timothy Gilmore, robbery, and conspiracy on a separate docket number. See
companion case, Commonwealth v. Daniels, No. 3005 EDA 2019.
3 We determined that the evidence supported one count of conspiracy, and
therefore affirmed the conspiracy conviction in Daniels’ other case. See note
2, supra.
-2-
J-S20039-20
The PCRA court dismissed the petition, and this court affirmed.
Commonwealth v. Daniels, No. 2525 EDA 2017, 2018 WL 3469857 at *1
(Pa.Super. July 19, 2018) (unpublished memorandum). As to the allegations
against Detective Pitts, we concluded that the petition was untimely because
the 2013 and 2016 news articles that Daniels claimed as “newly discovered
facts” pre-dated Daniels’ 2017 petition by more than 60 days.4
Daniels filed the instant PCRA petition, his third, pro se on August 28,
2018. Daniels asserted that on November 7, 2017, an attorney notified him
of the Philadelphia Court of Common Pleas’ decision in Commonwealth v.
Thorpe, No. CP-51-CR-0011433-2008 (Phila. Cty. filed Nov. 3, 2017). Daniels
claimed that in Thorpe, the PCRA court granted relief after finding that
Detective James Pitts had engaged in coercive conduct when interviewing
witnesses in that case and other cases. Daniels stated that sometime after the
attorney informed him of Thorpe, he obtained the transcripts of and exhibits
from the evidentiary hearing in Thorpe. Daniels asserted that ten witnesses
at that hearing “testified about the conduct of Detective James Pitts, which
established that he routinely threat[en]s, coerces, and abuses people to obtain
statements.” PCRA Pet. 8/28/18, at 5 ¶ 34.
____________________________________________
4The current version of the statute allows petitioners one year to file a petition
based on newly discovered facts. See 42 Pa.C.S.A. § 9545(b)(2).
-3-
J-S20039-20
Daniels alleged that Detective Pitts interviewed five people in connection
with the investigation of Daniels’ case.5 Daniels claimed the Commonwealth
____________________________________________
5 Daniels’ allegations regarding Detective Pitts’ involvement in his case are, in
full, as follows:
(a) Robert Keith was brought in, and interrogated, by Detective
Pitts on July 9, 2009. Keith implicated Epps, Murchison and Jones.
(b) Nicholas Davitt was interrogated by Detective Pitts on June
27, 2009. Davitt said he observed 3 black males driving around
the apartment building, going inside it, and a female that seemed
to be listening and observing people, after the police arrived.
(c) Edward Emerson was interrogated by Detective Pitts on
September 29, 2009. Emerson was inside Rian Thal’s apartment
when the shooting happened, but he did not see it. Emerson was
from Houston and came to Philadelphia in the truck with Timothy
Gilmore, who was killed along with Thal.
(d) Langdon Scott was interrogated by Detectives Pitts and
Jenkins on July 24, 2009. Scott was originally a suspect and plead
guilty to lesser charges. He testified at the trial and implicated
Daniels. Scott identified Caesar Holloway and Donnell Murchison.
(e) Katoya Jones gave 4 statements. She was interrogated by
Detective Pitts three times, the second two times she was
interrogated by Pitts along with Detective Jenkins. N.T. 11/15/11,
[Daniels’ trial] pp. 68, 77, 87.
. . . Jones testified that she was held at the police station for two
days and interrogated on and off, sometimes 15 to 30 minutes in
between questioning, sometimes up to two hours. N.T. 11/15/11,
[Daniels’ trial] pp. 85-86. She testified that changes were made
to her statement that were not in her handwriting. N.T. 11/15/11,
[Daniels’ trial] pp. 178-179. Jones also testified that the
detectives gave her the names of streets and, at least, one
person’s name in her statement. Id. at 180-181. These
characteristics are consistent with Detective Pitts pattern of
conduct in obtaining statements.
-4-
J-S20039-20
was aware of Detective Pitts’ pattern of abuse before Daniels’ 2011 trial, and
violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding this
information from Daniels. Daniels argued the evidence from the Thorpe
hearing qualified under the PCRA as both after-discovered evidence and
evidence of a constitutional violation. See 42 Pa.C.S.A. § 9543(a)(2)(i), (vi).
Daniels claimed his petition was timely under the newly discovered facts
exception because he allegedly discovered the Thorpe decision and obtained
the transcripts from that case during the appeal of his second PCRA petition.
He alleged that he filed the instant petition within 60 days of the conclusion
of his previous appeal. See Daniels, 2018 WL 3469857, at *6 n.4 (noting
Daniels obtained and raised the Thorpe transcripts while his case was on
appeal, and dismissing those claims without prejudice to raise them in a
subsequent PCRA petition subject to the PCRA’s timeliness requirements).
Daniels also filed a Motion for Recusal. Daniels claimed that he had
requested permission to conduct discovery in connection with his second
petition, and that the PCRA court judge, who had also presided over his trial
and previous PCRA petitions, had denied the request and “almost
immediately” dismissed the petition as time-barred. Daniels claimed the judge
had done so as “a result of bias and partiality,” because the judge had presided
____________________________________________
. . . Daniels was also physically and verbally abused by Detective
Pitts when interrogated about this case.
PCRA Pet. at 9-10, ¶¶ 45-47. We note that Emerson, Scott, and Jones testified
for the Commonwealth at Daniels’ trial; Keith and Davitt did not.
-5-
J-S20039-20
over another case, Commonwealth v. Mclaughlin,6 “in which Detective
Pitts’ pattern of conduct in obtaining statements was an issue.” Mot. for
Recusal, 9/12/18, at ¶ 5, 7.
The PCRA court dismissed Daniels’ petition and denied Daniels’ motion
for recusal. The PCRA court found Daniels’ petition was untimely because
Daniels could have discovered the underlying facts through the exercise of
due diligence.7 The PCRA court also concluded that had the petition been
timely, Daniels would not be due relief, because the evidence does not relate
to misconduct by Detective Pitts in connection with his case; the Thorpe
decision does not qualify as after-discovered evidence, as it would only be
used to impeach Detective Pitts’ credibility; and the Commonwealth presented
overwhelming evidence of Daniels’ guilt. The court denied Daniels’ recusal
motion, finding that it could fairly and objectively rule on the PCRA matter,
and that the court’s denial of Daniels’ discovery motion in a previous PCRA
petition did not warrant recusal.
____________________________________________
6 See CP-51-CR-0010456-2008.
7 The PCRA court’s Rule 907 notice of its intent to dismiss the petition
erroneously stated it was dismissing the petition because it lacked merit,
whereas the court’s Rule 1925(a) opinion states it dismissed the petition
because it was untimely. However, Daniels does not argue this caused him
prejudice, and because the petition is untimely, the court’s failure to comply
with Rule 907 is not reversible error. Commonwealth v. Lawson, 90 A.3d
1, 5 (Pa.Super. 2014).
-6-
J-S20039-20
Daniels appealed,8 and raises the following:
1. Whether [Daniels] presented newly discovered facts and
exercised due diligence sufficient to satisfy an exception to the
time-bar[.]
2. Whether [Daniels] would have been entitled to relief on the
claim that the Commonwealth violated Brady v. Maryland[.]
3. Whether [Daniels] would have been entitled to relief on the
claim of newly discovered evidence[.]
4. Whether the PCRA Court abused its discretion by denying
[Daniels’] Motion for Recusal[.]
Daniels’ Br. at 4 (answers below omitted, italics added).
Timeliness of the PCRA Petition
When the PCRA court denies relief, we review to “determine whether
the PCRA court’s order is supported by the record and free of legal error.”
Commonwealth v. Anderson, --- A.3d ----, 2020 WL 3261489, at *2
(Pa.Super. June 17, 2020) (quoting Commonwealth v. Smith, 181 A.3d
1168, 1174 (Pa.Super. 2018)).
Timeliness is a jurisdictional threshold to PCRA relief. Id. Daniels’
judgment of sentence became final in 2014, when the Pennsylvania Supreme
____________________________________________
8 Daniels filed his notice of appeal two months after the court dismissed his
PCRA petition. His notice asserted that the PCRA court did not mail him the
final order dismissing his petition until November 26, 2018, and he did not
receive it until December 7, 2018. Daniels attached, as an exhibit, an envelope
sent to him from the Philadelphia Court of Common Pleas, bearing a postmark
of November 26, 2018, and stamped as received by the prison on December
7, 2018. Although this Court may not extend the deadline for filing an appeal,
we decline to quash where the appellant’s appeal was untimely due to a
breakdown in the trial court’s operations. See Commonwealth v.
Stansbury, 219 A.3d 157, 160 (Pa.Super. 2019), reargument denied (Nov.
12, 2019). Under the instant circumstances, we will not quash.
-7-
J-S20039-20
Court denied review, and the time in which to appeal to the Supreme Court of
the United States expired. See 42 Pa.C.S.A. § 9545(b)(3). As Daniels did not
file his petition until more than one year after that date, Daniels’ petition is
timely only if he has pleaded and proven that one of the enumerated
exceptions to the one-year time-bar applies. See 42 Pa.C.S.A. § 9545(b)(1)(i-
iii). Daniels claims his petition is timely under the “newly discovered facts”
exception, which requires proof that “the facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).
The focus of the exception is “on [the] newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”
Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004), abrogated on
different grounds as recognized by Commonwealth v. Bennett, 930
A.2d 1264 (Pa. 2007); see, e.g., Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1267 (Pa. 2008) (holding affidavit alleging fabricated testimony was not
newly discovered fact, but merely new “conduit” for a previously raised claim
of perjury).
Daniels bases his claim on his receipt of the transcripts of the June 2017
evidentiary hearing in Thorpe. Daniels argues he acquired the transcripts of
the Thorpe hearing in late 2017 and filed his petition within 60 days after this
Court disposed of the appeal of his previous petition. Daniels claims the
evidence presented at the Thorpe hearing constituted new facts proving that
Detective Pitts engaged in coercive interrogation tactics that affected the
-8-
J-S20039-20
outcome of his own case. Daniels claimed he could not have obtained the
testimony or records presented at the Thorpe hearing earlier, or compile such
evidence himself, as Thorpe did, without the assistance of counsel.
Daniels failed to meet the newly discovered facts exception because the
“facts” he asserts are not “new.” In his second PCRA petition, Daniels claimed
that Detective Pitts had a history of abusive and coercive interrogation
techniques, which had corrupted the integrity of other criminal cases, and
called into question the validity of his conviction. Daniels recycles that claim
in his present petition, but merely identifies a new source for the same “facts,”
the transcript of the Thorpe hearing. See Commonwealth v. Hill, 202 A.3d
793, 799-800 (Pa.Super. 2019) (holding PCRA petition, based in part on
newspaper article of 2016 civil judgment against Detective Pitts, untimely
where petitioner had raised allegations of Detective Pitts’ investigatory
corruption in previous petition); see also Commonwealth v. Ambrose, No.
1464 EDA 2018, 2019 WL 3307523, at *4 (Pa. Super. Ct. July 23, 2019)
(holding transcript from PCRA hearing in Thorpe was not newly discovered
fact where petitioner had raised allegations of Detective Pitts’ misconduct in
other cases in earlier PCRA petition, and was not evidence of misconduct in
the instant case).9
____________________________________________
9 Even if we considered the substantive content of the Thorpe hearing as
newly discovered facts within the context of the timeliness exception, Daniels
has not proven that he could not have uncovered the same content earlier
through the exercise of due diligence. As the PCRA court stated,
-9-
J-S20039-20
In addition, the “fact” a petitioner claims to have newly discovered must
bear some logical connection to a plausible claim for relief. See
Commonwealth v. Robinson, 185 A.3d 1055, 1062 (Pa.Super.) (en banc),
appeal denied, 192 A.3d 1105 (Pa. 2018). In Commonwealth v. Brown, 134
A.3d 1097, 1109 (Pa.Super. 2016), we held that a new trial was not warranted
where the only evidence offered against Detective Pitts was not specific to the
case at bar. Likewise, here, the evidence from the Thorpe hearing is not
evidence of Detective Pitts’ misconduct in the instant case and therefore does
not provide a factual basis for any claim Daniels could make.
Denial of the Recusal Motion
Daniels argues the PCRA court abused its discretion in denying his
motion for recusal, and did not decide the motion based on whether there was
an objective appearance of impropriety. Daniels argues there was at least the
appearance of impropriety because: (1) the evidence he obtained from the
Thorpe hearing shows that the PCRA court judge presided over another case
____________________________________________
[T]he evidence underlying [the Thorpe] decision [was] not [new
facts], as evidenced by the fact that [it was] set forth in the
Thorpe case, wherein Thorpe filed his PCRA petitions raising the
allegations against Detective Pitts on May 8, 2015. [Daniels],
thus, could have discovered the facts underlying his current PCRA
petition had he exercised due diligence[. . . .] Notably, [Daniels]
failed in his most recent PCRA petition to set forth any argument
as to why he could not have discovered the allegations against
Detective Pitts sooner. This alone rendered his filing untimely
filed.
PCRA Ct. Op., 1/30/19, at 7.
- 10 -
J-S20039-20
in which Detective Pitts’ pattern of misconduct was at issue; and (2) that same
judge had dismissed Daniels’ second PCRA petition, which may have
uncovered this evidence earlier, “almost immediate[ly],”10 without allowing
Daniels to conduct discovery or amend his petition. Daniels’ Br. at 24.
When considering a motion for recusal, a judge must determine
“whether his or her continued involvement in the case creates an appearance
of impropriety and/or would tend to undermine public confidence in the
judiciary.” Commonwealth v. Rominger, 199 A.3d 964, 976 (Pa.Super.
2018) (quoting Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)),
reargument denied (Feb. 4, 2019), appeal denied, 217 A.3d 217 (Pa. 2019).
We presume “judges of this Commonwealth are ‘honorable, fair and
competent,’” and the moving party “bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating recusal.” Id. (quoting
Druce, 848 A.2d at 108). We will not disturb the denial of a recusal motion
absent an abuse of discretion. Id. (quoting Druce, 848 A.2d at 108).
Daniels hinges his claim on the appearance of impropriety arising from
the fact that the PCRA judge dismissed his previous PCRA petition, allegedly
preventing him from discovering that the PCRA judge had presided over
another case in which Detective Pitts’ behavior was called into question.
However, Daniels has made no assertion that the judge – rather than
____________________________________________
10 Daniels filed his second PCRA petition on June 2, 2017, and the court issued
its notice of dismissal on June 16, 2017, and dismissed the petition on July
11, 2017.
- 11 -
J-S20039-20
Detective Pitts – was found to have acted improperly in that other case. There
is therefore no reason to believe that the judge would have wanted to prevent
Daniels from learning about that case. We thus fail to see how the judge’s
dismissal of the second petition made the judge’s presiding over the present
petition appear improper.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
- 12 - | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554078/ | J-S24037-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
H.C., :
:
Appellant : No. 3378 EDA 2017
Appeal from the Judgment of Sentence April 10, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006886-2015
BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 07, 2020
H.C. (Appellant) appeals from the April 10, 2017 judgment of sentence
entered after a jury found Appellant guilty of aggravated indecent assault of
a child, indecent assault of a person less than 13 years of age, and
endangering the welfare of a child (EWOC). Upon review, we vacate
Appellant’s judgment of sentence and remand for resentencing.
We provide the following background.
Appellant was arrested on January 27, 2015 in connection with
the sexual abuse of J.H., who at the time was six years old.[1] []
Appellant’s actions came to light when J.H. told [S]tepmother[]
that Appellant had “touched her private parts.” J.H. was
subsequently interviewed by various experts, including Dr. June
1 At that time, biological mother (Mother) split custody 50-50 with biological
father (Father). Stepmother resided in the house where Father lived.
Appellant, Mother’s paramour, resided with Mother and was akin to a
stepfather.
*Retired Senior Judge assigned to the Superior Court.
J-S24037-20
Elcock-Messam, who testified that J.H. had sustained a
laceration to her genitals.
Trial Court Opinion, 8/15/2019, at 2 (citation omitted). Appellant was
charged with one count each of aggravated indecent assault, indecent
assault, EWOC, corruption of minors, and disorderly conduct.
On August 12, 2015, a hearing was held on the Commonwealth’s
motion to allow J.H. to testify by alternative means, pursuant to 42 Pa.C.S.
§ 5985 (testimony by contemporaneous alternative method). On November
16, 2015, the trial court granted the motion to allow J.H. to testify via
closed-circuit television at trial.2
Following several continuances, Appellant proceeded to a jury trial on
January 10-13, 2017.3 The Commonwealth presented testimony from J.H.
2 In this order, the trial court also granted the Commonwealth’s petition to
admit out-of-court statements made by J.H. to Stepmother; Portia Nicholson
from Delaware County Children and Youth Services; and Jodi Kaplan, a child
forensic interview specialist from Delaware County Children’s Advocacy
Center, pursuant to 42 Pa.C.S. § 5985.1 (tender years hearsay exception),
and denied Appellant’s petition for a competency hearing. None of the
motions disposed of in this order appears in the certified record.
3 The Commonwealth proceeded to trial on the first three counts:
aggravated indecent assault, indecent assault, and EWOC. On the first day
of trial, the trial court granted the Commonwealth’s request to amend the
information as follows:
Amend count one, aggravated indecent assault, 18 Pa.C.S.
§ 3125(a)(1), to aggravated indecent assault of a child, 18 Pa.C.S.
§ 3125(b);
(Footnote Continued Next Page)
-2-
J-S24037-20
(via live video from another room); Stepmother; Nicholson; Kaplan; and Dr.
Elcock-Messam, an expert in the fields of general pediatrics and child abuse
pediatrics, who examined J.H. The jury heard audio recordings of J.H.’s
interviews with Nicholson (12/12/2014) and Kaplan (12/17/2014 and
1/2/2015), wherein J.H. disclosed details surrounding Appellant’s kissing of
her face and body, and his reaching inside her pants to penetrate her
digitally, scratching her genitals with his fingernail in the process. Dr.
Elcock-Messam testified that J.H. suffered a genital laceration that was
consistent with J.H.’s account of Appellant’s actions. In defense, Appellant
and Mother testified that Appellant was never alone with J.H. At the
conclusion of the trial, the jury found Appellant guilty as indicated above.
Prior to sentencing, the trial court ordered Appellant to undergo
psychological and psychosexual evaluations, as well as an assessment by the
Sexual Offenders Assessment Board. On April 10, 2017, the trial court
sentenced Appellant to a term of 78 to 156 months of incarceration for
aggravated indecent assault of a child, 16 to 32 months for indecent assault
of a person less than 13 years of age, and 16 to 32 months for EWOC. All
(Footnote Continued) _______________________
Amend count two, indecent assault, 18 Pa.C.S. § 3126(a)(1) (without
consent), to subsection (a)(7) (complainant less than 13 years of
age); and
Amend the offense date from December 17, 2014 to between
November 30, 2014 and December 17, 2014.
See N.T., 1/10/2017, at 9-11.
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sentences were set to run consecutively, for a total aggregate sentence of
110 to 220 months of incarceration.4 Appellant was also required to register
as a sex offender for life.
On April 19, 2017, Appellant filed a post-sentence motion challenging,
inter alia, the weight and sufficiency of the evidence. 5 On September 8,
2017, the trial court denied Appellant’s post-sentence motion.
This timely-filed notice of appeal followed.6 On appeal, Appellant
raises five issues, which we have reordered for ease of disposition. See
Appellant’s Brief at 7-8.
4 This converts roughly to an aggregate term of 9.16 to 18.33 years of
incarceration.
5 Appellant sought leave to file a supplemental motion following transcription
of the notes of testimony. The relevant transcripts were filed by May 9,
2017. However, Appellant did not file a supplemental motion.
Because it was approaching the 120-day deadline pursuant to
Pa.R.Crim.P. 720(B)(3), the trial court granted Appellant’s oral request for a
30-day extension to decide Appellant’s post-sentence motion. Order,
8/8/2017.
6 We note our displeasure with the delays holding up this Court’s review.
This case originated in 2015 and did not proceed to trial until 2017 due to
several continuances. Following the filing of Appellant’s notice of appeal,
Appellant timely filed his ordered Pa.R.A.P. 1925(b) statement on October
18, 2017. However, the trial court inexplicably did not file its Pa.R.A.P.
1925(a) opinion until August 16, 2019, almost two years later. Once this
Court finally received the trial court’s opinion and the record was
transmitted, our review was again delayed by Appellant twice seeking an
extension of time to file his brief. Despite our granting these requests,
Appellant filed his brief six days late. Pursuant to Pa.R.A.P. 2188, “If an
appellant fails to file his ... brief ... within the time prescribed by these rules,
or within the time as extended, an appellee may move for dismissal of the
(Footnote Continued Next Page)
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J.H.’s Closed-Circuit Television Testimony
We first address Appellant’s claim that the trial court erred in allowing
J.H. to testify by closed-circuit television, thereby denying Appellant his right
to face his accuser. Id. at 7, 26. We review this claim mindful of the
following.
Section 5985 of the Judicial Code governs testimony by a
contemporaneous alternative method:
(a) Contemporaneous alternative method.—
Subject to subsection (a.1), in any prosecution or
adjudication involving a child victim [], the court
may order that the testimony of the child victim []
be taken under oath or affirmation in a room other
than the courtroom and transmitted by a
contemporaneous alternative method. Only the
attorneys for the defendant and for the
Commonwealth, the court reporter, the judge,
persons necessary to operate the equipment and any
person whose presence would contribute to the
welfare and well-being of the child victim [],
including persons designated under section 5983
(relating to rights and services), may be present in
the room with the child during his testimony. The
court shall permit the defendant to observe and hear
the testimony of the child victim [] but shall ensure
that the child cannot hear or see the defendant. The
court shall make certain that the defendant and
defense counsel have adequate opportunity to
communicate for the purposes of providing an
effective defense. Examination and cross-
examination of the child victim [] shall proceed in
the same manner as normally permitted.
(Footnote Continued) _______________________
matter.” The Commonwealth filed its brief after one extension, and did not
move for dismissal based upon Appellant’s late-filed brief. While we do not
dismiss this appeal, we caution all parties against such unnecessary and
significant delays in the future.
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(a.1) Determination.—Before the court orders the
child victim [] to testify by a contemporaneous
alternative method, the court must determine, based
on evidence presented to it, that testifying either in
an open forum in the presence and full view of the
finder of fact or in the defendant’s presence will
result in the child victim [] suffering serious
emotional distress that would substantially impair
the child victim’s [] ability to reasonably
communicate. In making this determination, the
court may do all of the following:
(1) Observe and question the child victim [],
either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or
any other person, such as a person who has
dealt with the child victim [] in a medical or
therapeutic setting.
42 Pa.C.S.[] § 5985(a), (a.1).
In Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super.
2006), [] the Commonwealth presented the expert testimony of
the child victim’s treating psychotherapist. The psychotherapist
testified that the victim suffered depression, suicidal thoughts,
and post-traumatic stress disorder[,] which likely would impact
her ability to testify effectively. Likewise, the psychotherapist
testified that the defendant’s presence in the courtroom would
send the victim “into an emotional tailspin.” Id. Given this
testimony, we found no error in the trial court’s decision to
permit the victim to testify via closed[-]circuit television. Id.
Similarly, in Commonwealth v. Torres–Kuilan, 156 A.3d
1229, 1230 (Pa. Super. 2017), the victim, seven years old at the
time of trial, broke down and cried and refused to enter the
courtroom to testify. The trial court conducted an in camera
hearing to determine whether to permit the child to testify via
closed[-]circuit television. The court heard testimony from the
victim and a woman who had been keeping the victim company
that morning and ultimately decided to permit the victim to
testify remotely. Id. We affirmed, reasoning that the trial court’s
observations are a sufficient basis for permitting remote
testimony under § 5985(a.1)(1).
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Commonwealth v. Tyrrell, 177 A.3d 947, 951-52 (Pa. Super. 2018) (some
quotation marks and citations omitted).
We note that “[f]ew published decisions address § 5985, and those
that do have not announced a standard for reviewing the trial court’s
decision. In Torres–Kuilan, this Court employed the principles of statutory
construction to determine whether the Commonwealth’s proffer complied
with § 5985’s terms.” Tyrrell, 177 A.3d at 952 (citation omitted).
Instantly, the trial court held a hearing on August 12, 2015 to address
the Commonwealth’s request pursuant to section 5985. The Commonwealth
presented testimony from Stepmother, Nicholson, and Kaplan, all of whom
testified about J.H.’s demeanor when speaking about the incident. When
J.H. disclosed to Stepmother in early December 2014, J.H. slouched and
covered her face. N.T., 8/12/2015, at 12. Nicholson interviewed J.H. on
December 12, 2014, and noted that during the interview J.H. said she was
afraid, and was shaking with tears in her eyes throughout the interview. Id.
at 34-35. During Kaplan’s December 17, 2014 interview, J.H. appeared
frightened prior to the interview after Mother and Mother’s sister-in-law were
yelling in the waiting area. Id. at 39. When Kaplan questioned J.H. about
Appellant, J.H. covered her face and began shaking and crying. Id. at 40.
During Kaplan’s second interview on January 2, 2015, J.H. shook less and
appeared less frightened, which J.H. attributed to her not having seen
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Appellant recently. Id. The Commonwealth introduced audiotape
recordings of Nicholson’s interview and Kaplan’s two interviews.
Additionally, Stepmother testified that J.H. misses Appellant, is
anxious about him being in trouble, and expresses that she wants things to
go back to normal as long as Appellant does not do what he did again. Id.
at 16. According to Stepmother, “to go in front of [Appellant] and to know
that he’s in trouble is just going to be too much for her. She’s already going
through separation anxiety.” Id. at 15. Stepmother also testified regarding
J.H.’s change in behavior; prior to the incident J.H. was very neat and
organized, but after the incident she began to rip apart her room. Id. at 14.
The trial court took the matter under advisement, and on November
16, 2015, granted the Commonwealth’s motion for J.H. to testify
contemporaneously by alternative means. In its Rule 1925(a) opinion, the
trial court explained that in light of the testimony presented at the August
12, 2015 hearing, it concluded that “forcing J.H. to testify in court in front of
her abuser would undoubtably [sic] cause her to suffer serious emotional
distress.” Trial Court Opinion, 8/16/2019, at 3. Specifically, the trial court
credited J.H.’s behavior change, demeanor of crying and shaking during
interviews, and stating that she could not speak to Nicholson because she
was afraid due to her “mom’s boyfriend [being] dangerous.” Id. (record
citations and internal quotation marks omitted).
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Although framed as a challenge to the trial court’s permitting J.H. to
testify by closed-circuit television pursuant to section 5985, Appellant’s
argument on appeal is slightly different. In the argument section of his
brief, Appellant argues that the trial court erred in permitting J.H. to testify
via closed-circuit television “without conducting a hearing to make any
determination as to whether [J.H.] was incompetent to testify, due to her
capacity to communicate being overwhelmed by serious emotional distress.”
Appellant’s Brief at 27. According to Appellant, the failure to test J.H.’s
competency violated Appellant’s “constitutional right to confront his accuser”
under the United States and Pennsylvania constitutions. Id. Thus,
Appellant’s arguments on appeal focus on (1) the lack of a competency
hearing, and (2) an alleged violation of the Confrontation Clause due to
J.H.’s testifying by closed-circuit television.
We begin with Appellant’s argument that the trial court erred in failing
to conduct a competency hearing prior to granting the Commonwealth’s
request to permit J.H. to testify by contemporaneous alternative means,
mindful of the following. “A decision on the necessity of a competency
hearing is addressed to the discretion of the trial court.” Commonwealth
v. Delbridge, 855 A.2d 27, 39 (Pa. 2003) (citation omitted).
Although competency of a witness is generally presumed,
Pennsylvania law requires that a child witness be examined for
competency. See [] Delbridge, []855 A.2d at 39 (citing Rosche
v. McCoy, [] 156 A.2d 307, 310 ([Pa.] 1959) and Pa.R.E.
601).8 As we have recently reiterated, “this Court historically has
required that witnesses under the age of fourteen be subject to
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judicial inquiry into their testimonial capacity.” Commonwealth
v. Ali, 10 A.3d 282, 300 n. 11 (Pa. 2010). “A competency
hearing of a minor witness is directed to the mental capacity of
that witness to perceive the nature of the events about which he
or she is called to testify, to understand questions about that
subject matter, to communicate about the subject at issue, to
recall information, to distinguish fact from fantasy, and to tell
the truth.” Delbridge, supra at 45. In Pennsylvania,
competency is a threshold legal issue, to be decided by the trial
court.
______
8 Pa.R.E. 601(a) provides as follows:
General Rule. Every person is competent to
be a witness except as otherwise provided by
statute or in these Rules.
The Comment to Rule 601 expressly states that Pa.R.E.
601 “is intended to preserve existing Pennsylvania law.”
In Rosche [], this Court stated that, under the prevailing
rule, competency was presumed when the witness was
over 14 years of age; however, when the witness was
under 14 years of age, “there must be judicial inquiry as to
mental capacity, which must be more searching in
proportion to chronological immaturity.”
Commonwealth v. Hutchinson, 25 A.3d 277, 289-90 (Pa. 2011).
Before reaching the merits, we must address whether Appellant has
preserved this issue for our review. In Appellant’s Rule 1925(b) statement,
he asserted that “[t]he trial court erred in not allowing [Appellant] to face
his accuser and permitting the victim to testify at trial by video television.”
Pa.R.A.P. 1925(b) Statement, 10/18/2017, at ¶ 1. Completely absent is any
reference to the trial court’s failure to conduct a competency hearing for J.H.
See Commonwealth v. Scott, 212 A.3d 1094, 1112 (Pa. Super. 2019)
(observing that “issues not raised in a Rule 1925(b) statement will be
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deemed waived for review”) (citation omitted). Accordingly, this issue is
waived.
As to Appellant’s Confrontation Clause argument, the current version
of section 5985 was specifically amended to comport with the Confrontation
Clause after the prior version was found to violate it.
[Sections 5984 and 5985] were deemed unconstitutional
because they allowed the use of a child’s videotaped depositions
or testimony by closed-circuit television if the court approved
their usage upon “good cause shown.” This standard was
deemed insufficient to afford an accused his or her constitutional
guarantees to confront a witness “face to face” as provided for
by the Pennsylvania Constitution.4 Accordingly, the statutes
were amended to require the trial court to find that “testifying
either in an open forum in the presence and full view of the
finder of fact or in the defendant’s presence will result in the
child victim [] suffering serious emotional distress that would
substantially impair the child victim’s [] ability to reasonably
communicate.” 42 Pa.C.S.[] §§ 5984(b) and 5985(a.1).
______
4 In 2003, the citizens of this Commonwealth voted to
amend Article 1, Section 9 of the Pennsylvania
Constitution. The amendment changed the right of an
accused to confront his accuser “face to face” to the right
“to be confronted with the witnesses against him.”
Commonwealth v. Kriner, 915 A.2d 653, 660 (Pa. Super. 2007).
Based on the hearing testimony discussed above, we discern no error
in the trial court’s conclusion that J.H.’s testifying in Appellant’s presence
would result in J.H. suffering serious emotional distress that would impair
substantially her ability to communicate reasonably. Having satisfied this
standard, Appellant’s right to confront the witnesses against him was not
violated by J.H.’s closed-circuit television testimony, as Appellant had the
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opportunity to observe and hear J.H., confer with counsel regarding his
defense, and the examination and cross-examination of J.H. occurred as if
she were in the courtroom. Accordingly, the trial court’s decision to permit
J.H. to testify by closed-circuit television pursuant to section 5985 did not
violate the Confrontation Clause, and Appellant is not entitled to relief on
this claim.
Expert testimony
We next review Appellant’s claim that the trial court erred in allowing
the Commonwealth’s expert witness to testify “that Appellant had committed
a sexual assault of the alleged victim, where that testimony went to the
ultimate issue in the case and invaded the province of the jury[.]”
Appellant’s Brief at 7. Specifically, Appellant argues that Dr. Elcock-
Messam’s statement that the laceration was consistent with J.H.’s
description of Appellant’s conduct was a determination that could have been
made by the jurors based on their “common sense assessment of the facts,
without the aid of expert testimony.” Appellant’s Brief at 32.
We review this claim mindful of the following.
The admissibility of evidence is within the sound discretion of the
trial court, and this Court will not reverse a trial court’s decision
concerning admissibility of evidence absent an abuse of the trial
court’s discretion. An abuse of discretion will not be found based
on a mere error of judgment, but rather exists where the court
has reached a conclusion which overrides or misapplies the law,
or where the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will. To the extent
that this case presents a question of law, our standard of review
is de novo, and our scope is plenary.
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Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (citations omitted).
Pennsylvania courts permit expert testimony as an aid to the
jury when the subject matter is distinctly related to a science,
skill, or occupation beyond the knowledge or experience of the
average layman. Conversely, expert testimony is not permitted
on matters of common knowledge. Commonwealth v.
Hernandez, [] 615 A.2d 1337, 1343 ([Pa. Super.] 1992).
Expert testimony may not be used to bolster the credibility of
witnesses because witness credibility is solely within the province
of the jury.
In determining the admissibility of expert testimony on matters
related to sexual assaults, our courts have distinguished
between testimony regarding physical facts and testimony
regarding the behavior of victims. Generally, the conduct or
behavior of victims has been held not to be a proper subject for
expert testimony because such testimony tends to encroach
upon the jury's function of evaluating witness credibility.
Testimony regarding physical facts, however, has been held to
be admissible.
For example, in Hernandez, a panel of this Court held that “a
pediatrician ..., qualified as a medical expert, may testify that
the physical facts observed and reported by the treating
physician were consistent with the allegation of anal
sodomy.” Id. [] at 1343. In making this determination, we did
not expressly state whether the pediatrician testified regarding
the absence of evidence of physical trauma or the presence of
such evidence. We also concluded that this testimony concerned
a matter that was not within the common knowledge of an
average juror. Id. Further, because the witness was informing
the jury about objective and verifiable physical facts, we
concluded that his testimony did not impermissibly
withdraw “the issue of witness credibility from the jury.” Id. In
other words, because the witness was testifying about the
physical condition of the victim, the purpose of his testimony
was not simply to bolster the credibility of the victim. Likewise,
in Commonwealth v. Seigrist, [] 385 A.2d 405, 410 n. 7 ([Pa.
Super.] 1978), we concluded that an expert medical witness
could testify that the physical condition of an alleged rape victim
was consistent with her rape allegations.
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Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. 1997).
At trial, Dr. Elcock-Messam testified on direct examination and redirect
examination that the laceration was consistent with J.H.’s proffered history
of Appellant’s conduct, i.e., digital penetration of J.H.’s genitalia. N.T.,
1/12/2017, at 31, 44. Specifically, the following exchanges occurred.
[ASSISTANT DISTRICT ATTORNEY (ADA)]: Within a reasonable
degree of medical certainty is that scratch consistent with a
fingernail?
[DR. ELCOCK-MESSAM]: That scratch could be consistent with a
fingernail.
[ADA]: And within a reasonable degree of medical certain[t]y is
that scratch consistent with digital penetration of the genitalia?
[DR. ELCOCK-MESSAM]: Of the genitalia yes.
[ADA]: And with a reasonable degree of medical certainty,
doctor, is that scratch consistent with the history that [J.H.]
gave you, what [J.H.] says happened to her?
[DR. ELCOCK-MESSAM]: It is consistent with that history.
***
[ADA]: So the labial adhesions were something else you found,
but to keep our eye on the ball is the laceration consistent or
inconsistent with digital penetration of the genitalia?
[DR. ELCOCK-MESSAM]: It is consistent with digital penetration.
Id.
Appellant’s counsel did not object to this testimony at the time of trial.
“We have long held that [f]ailure to raise a contemporaneous objection to
the evidence at trial waives that claim on appeal.” Commonwealth v.
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Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations and quotation
marks omitted). Because Appellant’s counsel failed to object at trial, this
claim is waived.7
Weight of the evidence
We next review Appellant’s claim that the trial court erred in denying
his post-sentence motion challenging the weight of the evidence for his
convictions because “the Commonwealth presented [Stepmother] who
clearly perjured herself, and there were glaring inconsistencies in the
account of [J.H.]” Appellant’s Brief at 7.
“A verdict is against the weight of the evidence ‘where certain facts are
so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.’” Commonwealth v. Williams, 176
A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa. Super. 2003)). We examine challenges to the weight of
the evidence according to the following standard.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. When a trial
court considers a motion for a new trial based upon a weight of
the evidence claim, the trial court may award relief only when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so
7Even if not waived, it was clearly the type of testimony that is permissible
by an expert witness in a sexual abuse case. See Johnson, 690 A.2d at
276. Accordingly, Appellant would not be entitled to relief on this claim.
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that right may be given another opportunity to prevail. The
inquiry is not the same for an appellate court. Rather, when an
appellate court reviews a weight claim, the court is reviewing the
exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the
evidence. The appellate court reviews a weight claim using an
abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotation marks omitted).
Instantly, Appellant raised boilerplate weight challenges in his post-
sentence motion, arguably preserving this issue for appeal. See Post-
Sentence Motion, 4/19/2017, at ¶¶ 5(VII), 5(VIII), 5(VIX). However,
Appellant failed to raise a weight issue in his Rule 1925(b) statement. See
Scott, 212 A.3d at 1112 (observing that “issues not raised in a Rule 1925(b)
statement will be deemed waived for review”) (citation omitted).
Accordingly, this issue is waived.
Sufficiency of the Evidence
We next review Appellant’s claim challenging the sufficiency of the
evidence to sustain his EWOC conviction. Appellant’s Brief at 8.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and substitute our
judgment for [that of] the fact-finder. In addition, we note that
the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined
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circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)
(citation omitted).
Instantly, the trial court found this issue waived because Appellant
failed to specify which elements of which crimes he intended to challenge on
appeal in his Rule 1925(b) statement. See Trial Court Opinion, 8/16/2019,
at 5; Pa.R.A.P. 1925(b) Statement, 10/18/2017, at ¶ 4 (“The evidence
presented at trial was insufficient as a matter of law to support the
convictions of the defendant on the charges of Aggravated Indecent Assault
of Child, Indecent Assault Person Less than 13 Years of Age, Endangering
Welfare of Children, Parent/Guardian/Other Commits Offense[.]”).
We have repeatedly held that [i]n order to preserve a challenge
to the sufficiency of the evidence on appeal, an appellant’s
[Rule] 1925(b) statement must state with specificity the element
or elements upon which the appellant alleges that the evidence
was insufficient. … Therefore, when an appellant’s 1925(b)
statement fails to specify the element or elements upon which
the evidence was insufficient[,] ... the sufficiency issue is waived
on appeal.
Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)
(citations and quotation marks omitted). Thus, we agree with the trial court
that Appellant has waived any sufficiency claim he attempted to raise in his
Pa.R.A.P. 1925(b) statement.
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However, Appellant’s purported sufficiency claim on appeal is actually
a challenge to the grading of his EWOC conviction. See Appellant’s Brief at
33. “[A] claim that the court improperly graded an offense for sentencing
purposes implicates the legality of a sentence. [A] challenge to the legality
of sentence is never waived and may be the subject of inquiry by the
appellate court sua sponte.” Commonwealth v. Hoffman, 198 A.3d 1112,
1123 (Pa. Super. 2018) (citations and quotation marks omitted).
Accordingly, Appellant’s challenge to the grading of his EWOC conviction is
properly before us, and we sua sponte review the grading of his convictions
for aggravated indecent assault and indecent assault, as well. “Our standard
of review is de novo, and the scope of our review is plenary.” Id. (citation
omitted).
Instantly, Appellant was charged with EWOC pursuant to 18 Pa.C.S.
§ 4304(a), as a felony of the third degree. The version of the EWOC statute
applicable from the time of Appellant’s conduct until his sentencing provided
as follows.
(a) Offense defined.--
(1) A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense
if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.
(2) A person commits an offense if the person, in an
official capacity, prevents or interferes with the making of
a report of suspected child abuse under 23 Pa.C.S. Ch. 63
(relating to child protective services).
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(3) As used in this subsection, the term “person
supervising the welfare of a child” means a person other
than a parent or guardian that provides care, education,
training or control of a child.
(b) Grading.--An offense under this section constitutes a
misdemeanor of the first degree. However, where there is a
course of conduct of endangering the welfare of a child, the
offense constitutes a felony of the third degree.
18 Pa.C.S. § 4304 (effective 1/29/2007 to 8/27/2017).8
8 The current version of the statute altered subsection (b) as follows.
(b) Grading.--
(1) Except as provided under paragraph (2), the following
apply:
(i) An offense under this section constitutes a
misdemeanor of the first degree.
(ii) If the actor engaged in a course of conduct of
endangering the welfare of a child, the offense constitutes
a felony of the third degree.
(iii) If, in the commission of the offense under subsection
(a)(1), the actor created a substantial risk of death or
serious bodily injury, the offense constitutes a felony of
the third degree.
(iv) If the actor’s conduct under subsection (a)(1) created
a substantial risk of death or serious bodily injury and was
part of a course of conduct, the offense constitutes a
felony of the second degree.
(2) The grading of an offense under this section shall be
increased one grade if, at the time of the commission of the
offense, the child was under six years of age.
18 Pa.C.S. § 4304 (effective 8/28/2017).
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According to Appellant, the evidence could not support a finding of
course of conduct required for a third-degree-felony grading because the
allegations comprised a single event, and thus he could only be charged and
convicted of EWOC as a misdemeanor of the first degree. Appellant’s Brief
at 33.
In Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004),
we addressed this issue. In that case, Popow was charged with
various offenses including endangering the welfare of a child,
following an altercation between him, his ex-girlfriend, and
others. Id. at 15. At one point during the altercation, Popow
picked up his four-year-old daughter, and when his ex-girlfriend
and others tried to retrieve the child from him, Popow fell down
a flight of stairs while holding the child. Id. Popow was convicted
and sentenced on the endangerment charge graded as a
felony. Id. On appeal, he challenged the legality of his sentence,
asserting (1) neither the information nor the evidence made out
a course of conduct that would raise the charge from a
misdemeanor to a felony and (2) the jury was not instructed to
make a finding on course of conduct. Id. We agreed, concluding
that “in order to be graded as a third-degree felony, the
Commonwealth must allege in the information and present
evidence at trial of the additional factor of ‘course of conduct,’
and the jury must be instructed on such.” Id. at 18. We thus
remanded for resentencing. Id. at 18.
Hoffman, 198 A.3d at 1123-24.
Here, Appellant proceeded to trial on charges of aggravated indecent
assault of a child, indecent assault, and EWOC based on allegations of a
single event wherein Appellant kissed J.H. and digitally penetrated her
genitalia. At trial, the Commonwealth presented evidence of that single
event. The Commonwealth did not request, and the trial court did not
provide, a jury instruction on course of conduct related to any of Appellant’s
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charges. As such, we conclude that the trial court erred when it sentenced
Appellant for EWOC as a felony of the third degree. See id.
As noted supra, Appellant’s charge for indecent assault was amended
at trial to indecent assault of a child pursuant to 18 Pa.C.S. § 3126(a)(7),
graded as a felony of the third degree. The indecent assault statute
provides, in pertinent part, as follows.
(b) Grading.--Indecent assault shall be graded as follows:
***
(3) An offense under subsection (a)(7) is a misdemeanor
of the first degree unless any of the following apply, in
which case it is a felony of the third degree:
(i) It is a second or subsequent offense.
(ii) There has been a course of conduct of indecent
assault by the person.
(iii) The indecent assault was committed by touching
the complainant’s sexual or intimate parts with
sexual or intimate parts of the person.
(iv) The indecent assault is committed by touching
the person’s sexual or intimate parts with the
complainant’s sexual or intimate parts.
18 Pa.C.S. § 3126(b). The record does not support a finding that this was a
second or subsequent offense, a course of conduct, or that Appellant’s
sexual or intimate parts came into contact with J.H.’s. Accordingly, the trial
court erred in sentencing Appellant for indecent assault as a felony of the
third degree.
- 21 -
J-S24037-20
Based on the foregoing, we vacate the judgment of sentence imposed
for EWOC and indecent assault and remand for resentencing with
consideration of the Sentencing Guidelines for those charges graded as
misdemeanors of the first degree. See Hoffman, 198 A.3d at 1125; 18
Pa.C.S. § 4304; 18 Pa.C.S. § 3126(b). Because the trial court ordered
Appellant’s sentences to run consecutively, we remand for resentencing on
all counts,9 as our ruling may upset the court’s overall sentencing scheme.10
Id. (citing Commonwealth v. Serrano, 61 A.3d 279, 287-88 (Pa. Super.
2013)).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
9 In doing so, we observe that Appellant’s amended charge of aggravated
indecent assault of a child was graded properly as a felony of the first
degree. See 18 Pa.C.S. § 3125(c)(2) (“An offense under subsection (b) is a
felony of the first degree.”).
10 In light of our disposition, Appellant’s discretionary-aspects-of-sentencing
claim is moot. See Commonwealth v. Tanner, 61 A.3d 1043, 1046 n.3
(Pa. Super. 2013).
- 22 - | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554077/ | J-S28044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREVR B. KOESTNER :
:
Appellant : No. 284 MDA 2020
Appeal from the PCRA Order Entered January 29, 2020
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000148-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020
Trevr B. Koestner (“Koestner”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1
Additionally, counsel for Koestner2 have filed a Motion to Withdraw as
Counsel, and an accompanying Turner/Finley3 brief. We grant the Motion
to Withdraw, and affirm the Order of the PCRA court.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 The PCRA court appointed Dennis C. Dougherty, Esquire (“Attorney
Dougherty”), and Barrie L. Wellener, Esquire (“Attorney Wellener”) to
represent Koestner. The Motion to Withdraw is presented on behalf of both
attorneys.
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S28044-20
In its Opinion, the PCRA court summarized the relevant factual history
underlying this appeal as follows:
On November 27, 2014, Koestner was discovered
unconscious in a running vehicle in a parking lot in Lancaster
Township. Large bundles of cash and drug paraphernalia were in
plain view on Koestner’s lap and on the passenger seat. A
search of the vehicle, after obtaining Koestner’s verbal and
written consent, disclosed $5,540 cash, approximately 45 grams
of suspected heroin, [] drug packaging materials[,]
paraphernalia, knives, and a [vial] of the controlled substance
Alprazolam. After being arrested, Koestner slipped his handcuffs
under his feet[,] brought his hands to the front of him and
grabbed a large amount of seized heroin from the front of the
patrol cruiser. Koestner was charged[, at Lancaster County
docket number 148-2015 (“148-2015”),] with [possession with
intent to distribute a controlled substance], tampering with
evidence, possession of a controlled substance, and possession
of drug paraphernalia. Pursuant to a negotiated guilty plea,
Koestner received an aggregate sentence of two and one-half to
six years[ of] incarceration in a state correctional institution[,
with credit for time served]. [Koestner did not file a direct
appeal].
[On October 30, 2017,] Koestner was charged at
[Lancaster County docket number] 6116-2017 [(“6116-2017”)]
with two counts of aggravated assault, [and one count each of]
retail theft, resisting arrest and criminal mischief.[4] These new
charges resulted in a State Parole Violation at []148-2015. On
September 18, 2018, Koestner tendered a negotiated guilty
plea[, at 6116-2017,] … [and was sentenced] to an aggregate
term of 21 months[] to 4 years[ of] incarceration. … No post
sentence motion … [or] direct appeal was filed. …
On March 15, 2019, Koestner filed a pro se “Motion for
Concurrent Time Clarification,” requesting that the new sentence
of 21 months to 4 years[ of] incarceration imposed at [] 6116-
2017 be ordered [to run] concurrent [with] the prior sentence
____________________________________________
4 The record is unclear regarding the date on which Koestner was released
from prison and placed on parole.
-2-
J-S28044-20
imposed at [] 0148-2015. An order was entered [by the trial
court] on April 1, 2019, granting Koestner’s [M]otion.
Subsequently, on June 25, 2019, the Department of Corrections
notified Koestner that the new sentence at [] 6116-2017 could
not, however, be served concurrently with the back[]time
imposed on the State Parole Violation after he was sentenced on
the new Lancaster County Charges.
As a result, on July 12, 2019, Koestner served on the court
a … pro se [PCRA] Petition …[,5] which claimed that his plea was
unlawfully induced and he is innocent of the charges, and further
that the sentence imposed exceeded the lawful maximum. …
[O]n July 23, 2019, [Attorney Dougherty], was court appointed
to represent Koestner[, and Attorney Dougherty’s law partner,
Attorney Wellener, was granted permission by the PCRA court to
handle any and all court matters appointed to Attorney
Dougherty.] … Attorney Wellener filed an [A]mended PCRA
[P]etition claiming Koestner did not enter a knowing, intelligent
and voluntary guilty plea[,] given that the sentence imposed [at]
[] 6116-2017 was illegal in that it was made [consecutive to the
sentence imposed at]148-2015.
An evidentiary hearing was held [on] January 17, 2020.
The [PCRA c]ourt heard testimony from [Koestner’s trial counsel,
David L. Blanck, Esquire (“Attorney Blanck”)] and Koestner. At
the conclusion of the hearing, Koestner’s [A]mended PCRA
[P]etition was denied on the record. A timely [N]otice of
[A]ppeal was filed with [this Court] on February 13, 2020.[6]
Pursuant to [the PCRA c]ourt’s directive, a [Pa.R.A.P. 1925(b)]
____________________________________________
5 Koestner’s pro se PCRA Petition does not appear in the certified record and
its filing is not reflected in the docket.
6 The Amended PCRA Petition included both docket numbers, and the PCRA
court issued one Order denying the Petition. However, Koestner properly
filed separate Notices of Appeal, one at each docket number. See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that
“when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” (citing Pa.R.A.P. 341)). The instant appeal
concerns 148-2015.
-3-
J-S28044-20
[C]oncise [S]tatement of matters complained of on appeal was
filed on February 19, 2020….
PCRA Court Opinion, 2/25/20, at 2-4 (citations to record and some footnotes
omitted; footnote 1 moved to body; footnotes added; paragraphs
reordered).
Initially, we must determine whether counsel have met the procedural
requirements to withdraw. Counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the PCRA court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner[] (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
satisfy the technical demands of Turner/Finley, the court …
must then conduct its own review of the merits of the case. If
the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(corrections and some quotations and citations omitted).
Here, counsel have provided Koestner with a copy of the Motion to
Withdraw and the Turner/Finley Brief, and advised Koestner of his right to
proceed pro se or with private counsel. See Motion to Withdraw, 5/1/20, at
2. Thus, counsel have complied with the procedural requirements for
-4-
J-S28044-20
withdrawing as PCRA counsel. Koestner has neither retained private counsel
nor submitted any pro se filings to this Court.
Next, we must determine whether Koestner’s pro se PCRA Petition was
timely filed. Under the PCRA, any PCRA petition “shall be filed within one
year of the date the judgment becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” Id. § 9545(b)(3). The PCRA’s timeliness
requirements are jurisdictional in nature and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Koestner’s judgment became final on June 11, 2015, when the
time to appeal to this Court expired.7 See Pa.R.A.P. 903(a) (stating that an
appellant’s notice of appeal “shall be filed within 30 days after the entry of
the order from which the appeal is taken.”). Therefore, Koestner’s Petition,
which was filed on July 12, 2019, is facially untimely under the PCRA. See
42 Pa.C.S.A. § 9545(b).
____________________________________________
7 We note that Koestner’s violation of his parole did not result in a new
judgment of sentence. See Commonwealth v. Kalichak, 943 A.2d 285,
290 (Pa. Super. 2008) (stating that “[u]nlike a probation revocation, a
parole revocation does not involve the imposition of a new sentence.”)
-5-
J-S28044-20
However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of three exceptions set forth at
42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any PCRA Petition invoking one of the
exceptions “shall be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
Here, Koestner has failed to plead or prove any of the three timeliness
exceptions. Therefore, we lack jurisdiction to address the merits of his claim
on appeal.8
Motion to Withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/07/2020
____________________________________________
8 Even if Koestner’s PCRA Petition was timely filed, we would conclude that
Koestner’s claim lacks merit for the reasons set forth by the PCRA court in
its Opinion. See PCRA Court Opinion, 2/25/20, at 4-8.
-6- | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3851911/ | Mrs. Nellie M. Dean, an elderly woman, widow and childless, died suddenly on the night of January 17, 1928, at her home in the City of New Castle, from heart disease. She had previously been in general good health and the heart trouble did not assume an acute form until a short time before her death. Her mental powers were strong; she had long been active and successful in the management of business and financial affairs attendant upon her estate, valued at approximately $300,000, left by her husband, who died intestate. On the day of her decease a will, the existence of which had not been known to any one, according to the evidence in the present litigation, was found in a small satchel placed in a clothes press in her room. The paper was entirely in writing, comprised four paragraphs, on a single sheet of paper, was dated December 5, 1927, and signed at the end thereof, "Nellie M. Dean." By its provisions her estate was bequeathed to numerous intimate friends and companions, none of whom included her next of kin. The paper was admitted to probate. Subsequently the heirs appealed to the orphans' court from the decision of *Page 127
the register, filing their declaration, in which they alleged that neither the signature on the paper, nor the words constituting the date, nor the body of the will itself, were in the handwriting of Mrs. Dean, and that the paper was not intended by decedent to be her last will and testament. An issue devisavit vel non was granted wherein Jane Ligo and others mentioned in the will are named as plaintiffs and appellants as defendants. Previous to the trial on the issue, it was agreed by the parties that the deciding question to be submitted to the jury was whether or not the paper, dated December 5, 1927, was signed at its end by Nellie M. Dean, as and for her last will and testament. The jury returned a verdict for plaintiffs, finding the signature to be genuine. Defendants' request for binding instructions and motions for judgment n. o. v. and for a new trial were refused. Defendants appealed.
The handwriting in the body of the will was disputed, but not established at the trial, and counsel for plaintiffs in their printed brief say: "It is true that plaintiffs were unable to and did not offer witnesses capable of expressing an opinion as to the handwriting in the body of the will." This phase of the case figured, however, prominently at the trial, and the presiding judge, to clearly inform the jury what bearing their finding as to the handwriting in the will itself might have upon their conclusion as to the authenticity of the signature, carefully and properly instructed them as follows: "The plaintiffs produce testimony only as to the signature; no one has come into court here and testified that in their opinion Mrs. Dean wrote the body of this will. Now, it is not necessary that she did write the body of it, if, after that was written, she signed it as and for her last will and testament; so that, in the last analysis, the signature must be controlling. . . . . . If you would find that this was her signature, and that she actually signed it, even if you do not think that she wrote it, [the body of the will], you would be warranted *Page 128
in finding that it was her will; that is, if she signed it after the writing was put on." The learned court was here adhering to the legal principles established long ago, as expressed in Dawson's Est., 277 Pa. 168, 171: "Forms of wills are immaterial; subscribing witnesses are not vitally essential; signature at the end and due proof of signature . . . . . . by two witnesses is all that our statute requires"; and in Weigel v. Weigel, 5 Watts 486, we said: "The signature of a party is prima facie evidence of execution; and though it is less forcible than if the body of the instrument were also in his handwriting, the difference is but in the degree."
The paper in question here was certainly testamentary in form and met the legal requirements necessary to constitute a valid will, save the signatures of subscribing witnesses. But under the lack of these, the statutory requirements of two or more witnesses may be supplied by circumstantial proof (McClure v. Redman, 263 Pa. 405; Hays v. Harden, 6 Pa. 409); and naturally the most that could be expected of such witnesses, both expert and nonexpert, was the expression of opinion to the effect that the signature at the end of the will was in decedent's own handwriting; their competency to so testify had first to be established, which was a matter for determination of the court. The testimony in the present case is voluminous; many witnesses on both sides testified for and against the genuineness of the signature, and a large number of standards of the handwriting of Mrs. Dean were introduced, of which the plaintiffs exhibited 105 and defendants thirty. To this feature of the case, the court carefully called attention of the jury and in further instructions said: "All these standards of handwriting therefore are admitted to be the true writing of Mrs. Dean, and you will have these with you in the jury room. You will take them and make your own comparisons, using the evidence that you have received from the witnesses here as to whether or not the signature is the genuine signature of Nellie *Page 129
M. Dean, and whether or not she signed this as and for her last will and testament at the end thereof." We have examined attentively much of this testimony and many of the exhibits, and are impressed, as the jury must also have been, by the number and standing of the witnesses who, properly qualified, testified, from their long familiarity with the handwriting of Mrs. Dean, that the signature on her will was genuine. Among them were cashiers and other bank officials, experienced in detecting spurious writing, who had seen her write checks and make deposits by check; her nurse and numerous intimate friends and companions; and a weighty characteristic of their testimony was the positive nature of their opinions that the signature was written by the hand of Mrs. Dean. It may be noted here that even before the writing was admitted to probate, it was submitted to careful scrutiny. The executor named in the document submitted it to the examination of Mrs. Dean's banker and her attorney, who pronounced the signature genuine. In our opinion the evidence produced by appellants to buttress their contention that the signature in question was not that of testatrix is overwhelmed by the preponderant value and conclusiveness of that presented by plaintiffs, granting, as we do, the apparent sincerity of the witnesses of the former, and noting, on the other hand, the emphatically expressed conclusions, as to the authenticity of the signature, of the witnesses of the plaintiffs. We are confirmed in this observation by the words of the learned court in banc, when they say in their opinion refusing the motion for a new trial: "We are personally acquainted with all of these witnesses. We have no reason to doubt the honesty and sincerity of any of them and we can see no legal reason why we should say that a verdict based upon their testimony should not stand."
The conflict of evidence relative to the genuineness of the signature was a matter for the jury, and over and over again the trial judge impressed this principle upon *Page 130
their minds, instructing them that the burden was upon plaintiffs to establish their case by the fair weight or preponderance of the evidence: "that is, the burden is upon them to satisfy you by the weight or preponderance of the evidence that this writing here was signed by Nellie M. Dean at the end of it, as and for her last will and testament." The court below declared it could find no legal reason for setting aside the verdict, and having given the record of the case close attention, we also can discover no reason why we should disturb it. As was said in Sharpless's Est., 134 Pa. 250, 261, "So much depends on the means of knowledge, the interest or bias, the manner, the character, and the personal weight which each witness carried as individuals among his neighbors and in the community, that a jury is the only appropriate tribunal . . . . . ., to determine which way the balance inclines."
The case before us is not without recognized difficulties, but unless we should find from the record before us that there is sufficient reliable evidence to clearly convince us that the verdict of the jury was wrong, we would be without justification to question it. We do not find such evidence, and the jury, — seeing and hearing all witnesses, many of whom, living in a comparatively small community, were known to them, noting their manner on the witness stand, their material interest or lack of such interest in the case, — were in a better position than we are to reach a just verdict. The jury found as a fact that the signature was genuine and the court below decides that the evidence sustains the verdict. "A court of first instance is always in a better position than a reviewing tribunal to pass upon the elements of fact entering into cases of this character, and on appeal its judgment thereon is entitled to the utmost consideration": Phillips' Est., 244 Pa. 35, 47.
As to charges by defendants of fraud and undue influence practiced on decedent, we think it is sufficient to say that we find nowhere in the record evidence that supports *Page 131
in the slightest degree the allegation of unlawful practices. The jury found as a fact that the signature to the will is genuine; whether they also found that the body of the instrument was written by Mrs. Dean is immaterial. There was no evidence showing that she did not know the contents of the will, and the signature being genuine and in the proper place, that fact, as has often been said by this court, raises the legal presumption that she knew its contents. The record also provides sufficient proof that she had in mind an intention to make a will. On several occasions she expressed her intention "to provide" for one or more of her friends, and some days after the date of the writing here in question, she said: "My condition, I do not think it is as critical as the doctor tries to make me believe it is; but at any rate, if we do not get back, either of us, I have my affairs fixed so that there will be no trouble. It may not suit all of you but I made them to suit myself." Why she kept the making of the will a secret to herself was not shown. She was estranged from some of her nearest relatives and kept aloof from others, and, having provided for none of them in the distribution of her estate, she may have been silent about the matter to avoid unpleasant criticisms. Whatever her reasons may have been, they were her own. The sole issue before the jury, as agreed upon by the parties, was as to whether the signature to the document found after her death was written by her or not. The jury found in the affirmative; the court below concluded that the verdict was sustained by the evidence, and with that judgment we agree.
Appellants assign three specifications of error; the first, directed against the judgment of the court below, is disposed of by the foregoing opinion, and the remaining two, being without merit, need not be considered.
Judgment affirmed. *Page 132 | 01-03-2023 | 07-06-2016 |
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