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https://www.courtlistener.com/api/rest/v3/opinions/8484663/	Case: 22-30293 Document: 00516548893 Page: 1 Date Filed: 11/17/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-30293 FILED Summary Calendar November 17, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Randy L. Randall, Defendant—Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:11-CR-317-8 Before King, Higginson, and Willett, Circuit Judges. Per Curiam:* Randy L. Randall, federal prisoner # 15699-035, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. He contends that because the Government conceded in response to an earlier § 3582(c)(1)(A)(i) motion that his allegations related to COVID-19 * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-30293 Document: 00516548893 Page: 2 Date Filed: 11/17/2022 No. 22-30293 constituted an extraordinary and compelling circumstance, the district court could not consider the issue. In addition, Randall maintains that because his refusal to take the COVID-19 vaccine was based on a sincerely held religious belief, the district court’s reliance on his refusal to deny relief violated his First Amendment rights. Finally, Randall argues that the district court should have taken into account the Custody Classification Form created by the Bureau of Prisons in analyzing the 18 U.S.C. § 3553(a) factors and should not have given weight to his criminal history or his prison disciplinary record. We review for abuse of discretion. See United States v. Chambliss, 948 F.3d 691, 693-94 (5th Cir. 2020). The district court conducted an independent review of the § 3553(a) factors and concluded that Randall was not entitled to relief. Randall has not shown that the district court abused its discretion in this conclusion. See id. at 693; see also Concepcion v. United States, 142 S. Ct 2389, 2404-05 (2022). Because the district court’s independent § 3553(a) analysis supports the dismissal, it is unnecessary to consider Randall’s arguments challenging the district court’s conclusion that he failed to show extraordinary and compelling reasons warranting relief. See United States v. Jackson, 27 F.4th 1088, 1093 & n.8 (5th Cir. 2022); Ward v. United States, 11 F.4th 354, 360-62 (5th Cir. 2021). Accordingly, the judgment of the district court is AFFIRMED. 2	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484668/	Filed 11/17/22 P. v. Jackson CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F081960 Plaintiff and Respondent, (Super. Ct. No. BF174521A) v. DEVON DUPREE JACKSON, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Jennifer M. Poe and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION A jury convicted defendant Devon Dupree Jackson of arson after he intentionally set fire to his bed in a treatment facility where he was living. The trial court sentenced defendant to six years in prison and ordered defendant to pay various fines and assessments. Defendant argues that the trial court erred in failing to instruct the jury as to the lesser included offense of unlawfully causing a fire and in ordering fines and assessments without first determining defendant’s ability to pay them. In supplemental briefing, defendant argues that we should remand for the trial court to resentence in light of amendments to Penal Code1 section 1170. The People concede that we should remand this matter for resentencing. We accept the People’s concession, mooting defendant’s argument as to the imposition of fines and assessments, but otherwise affirm the judgment. PROCEDURAL BACKGROUND Defendant was originally charged by complaint on November 20, 2018. Prior to defendant’s preliminary hearing, defense counsel raised a doubt as to defendant’s competency pursuant to section 1368. The trial court found defendant incompetent to stand trial and committed him to the State Department of State Hospitals on January 23, 2019. Defendant was found competent to stand trial on June 27, 2019, and the trial court reinstated his criminal proceedings. By amended information filed on September 15, 2020, the District Attorney of Kern County charged defendant with arson of property (§ 451, subd. (d); count 1) and alleged one prior “strike” conviction within the meaning of the “Three Strikes” law (currently codified at §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and one prior serious felony conviction (§ 667, subd. (a)), both for the same prior conviction. Defendant pleaded not guilty and denied the prior conviction allegations. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2. The jury convicted defendant of arson of property on September 17, 2020, after a three-day trial. During a bifurcated sanity trial, the jury found defendant sane at the time of the offense. Defendant waived his right to a jury trial on allegations relating to his prior convictions, and the trial court found the allegations true. The trial court denied defendant’s motion to strike his prior serious felony conviction for purposes of the Three Strikes law but granted his motion to strike the conviction for purposes of the five-year sentencing enhancement pursuant to section 667, subdivision (a). The trial court sentenced defendant to the upper term of six years in prison for arson and ordered defendant to pay victim restitution (former § 1202.4, subd. (f)), a $300 restitution fine (former § 1202.4, subd. (b)), a suspended $300 parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). Defendant timely appealed on October 20, 2020. FACTS Defendant was admitted into a sober living facility in Kern County on November 16, 2018. The facility was occupied by 16 clients and supervised 24 hours a day. Defendant was assigned the top bunk of a bed owned by the facility. At approximately 6:45 p.m., defendant entered the dayroom of the facility and asked Edward Klinefelter, the facility’s manager, “Would I get violated if I lit a fire?” Within minutes, the facility’s fire alarms activated. Klinefelter grabbed a fire extinguisher and went to defendant’s bedroom. Someone had already taken the mattress outside, and Klinefelter extinguished fire in the bedroom and in the kitchen, caused by dragging the mattress outside, and then went outside and extinguished fire on the mattress. The fire caused smoke damage on the bedroom ceiling and melted the window blinds. After the fire, Klinefelter saw defendant outside asking another client for a cigarette. At Klinefelter’s direction, defendant handed Klinefelter the lighter defendant was holding and followed instructions to sit inside. Captain Victor Mabry, at that time an 3. arson investigator with the Bakersfield Fire Department, responded to the facility and spoke with defendant after defendant waived his Miranda2 rights and agreed to answer questions. Mabry asked defendant what happened. Defendant motioned with his hand to indicate the use of a cigarette lighter. Defendant then said that he set the mattress on fire with a cigarette lighter. Defendant identified the cigarette lighter that Mabry received from Klinefelter as the one defendant used to set the fire. Defendant told Mabry that he set the fire because he heard voices that told him to do so. Mabry determined that the top bunk in defendant’s bedroom was the point of origin for the fire based upon the V-shaped pattern of smoke staining the corner over that area. Mabry testified that finding a burnt cigarette might be indicative that the fire was caused accidentally. However, if the fire had been caused by a smoldering cigarette, it would have taken more than 15 minutes to combust into an open flame. Mabry testified that it was unlikely the fire was caused by a smoldering cigarette given the fast spread of the fire and indications of a high smoke layer in the room. Defendant testified he arrived at the facility at approximately 4:30 p.m., after his parole officer transported him there from a mental ward. Defendant had been hearing voices from the time he was six years old. While outside lighting a cigarette, defendant heard a voice that told him to set a fire. Defendant decided to do as the voice asked, went inside to his room, and asked his roommates to leave. Defendant waited until he was alone to set the fire. He stood by his bed and used a cigarette lighter to set fire to the blanket and pillowcase. Defendant watched the fire spread. He tried to put it out but was too late. Unable to extinguish the fire, defendant found Klinefelter in another room and asked if he would get into trouble for starting the fire. Defendant then watched television while other individuals took the mattress outside. Later, defendant gave the lighter to Klinefelter and told Mabry that he set the fire. 2 Miranda v. Arizona (1966) 384 U.S. 436. 4. DISCUSSION I. The trial court did not err in refusing to instruct the jury as to the lesser included offense of unlawfully causing a fire. A. Background Defense counsel requested that the trial court instruct the jury on the elements of unlawfully causing a fire (CALCRIM No. 1532) as a lesser included offense of arson. The trial court denied defendant’s request. B. Applicable Law and Standard of Review The trial court possesses a duty to instruct on all lesser included offenses “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, abrogated on another ground by amendment of § 189.) However, “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could … conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Id. at p. 162, first bracketed insertion added.) Whether or not a reasonable jury could have so concluded based on the evidence in this case is a matter we determine de novo. (See People v. Cole (2004) 33 Cal.4th 1158, 1215.) Unlawfully causing a fire (§ 452) is a lesser included offense of arson (§ 451). (People v. Atkins (2001) 25 Cal.4th 76, 88 (Atkins); People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 (Schwartz); People v. Hooper (1986) 181 Cal.App.3d 1174, 1182, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 198– 199, fn. 7.) “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” (§ 452.) 5. Relating to arson, “recklessly” means that “a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (§ 450, subd. (f).) “The critical distinction between arson, as defined in section 451, and unlawfully causing a fire, as defined in section 452, is the mental state with which the burning is carried out.” (People v. Hooper, supra, 181 Cal.App.3d at p. 1181.) Arson’s “willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire.” (Atkins, supra, 25 Cal.4th at p. 88.) Arson is a general intent crime that requires a person to have the general intent to do the act that causes the harm (i.e., start the fire). (Id. at pp. 79, 84, 86, 89.) In the context of arson, malice in law “will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right.” (In re V.V. (2011) 51 Cal.4th 1020, 1028.) “On the other hand, the offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is ‘aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property.’ [Citations.] For example, such reckless accidents or unintentional fires may include those caused by a person who recklessly lights a match near highly combustible materials.” (Atkins, at p. 89.) We review the trial court’s refusal to instruct on a lesser included offense de novo. (People v. Nieves (2021) 11 Cal.5th 404, 463.) C. Analysis In this case, the record includes no evidence that would support a conviction for recklessly causing a fire. No evidence suggests that the offense was anything less than 6. arson. The evidence demonstrated defendant admitted he used a lighter to start the fire to his blanket and pillowcase. Defendant testified that voices told him to set a fire and he decided to do what the voices asked, went inside to his room, cleared his roommates from the room, and used a lighter to set the fire. This was a deliberate act. No evidence suggests that defendant started the fire through reckless or unintentional conduct, such as carelessly discarding a lit cigarette in the presence of combustible materials or emptying a trash can containing smoldering embers. Thus, the trial court did not err by refusing to instruct the jury on the lesser included offense of unlawfully starting a fire. Defendant argues that “[s]ince little is known about how the fire started, other than the fact that [defendant] most likely used a lighter, the possibility that [defendant] started the fire in a way that indicated recklessness cannot be ruled out.” But such speculation is not the test and, contrary to defendant’s claim, the jury did not have to speculate about his intent because he admitted he used the lighter specifically to start the fire. We also reject defendant’s argument that his claimed attempts to extinguish the fire and his report to Klinefelter evidence a lack of intent to set the fire. Defendant testified that the voices told him to set a fire “[s]o I went in there and I set the fire.” He testified, “As soon as he gave me the lighter[,] I sat down and I lit the cigarette and the voices start telling me [to] go in there and set the house on fire.” When asked if he went into the house, defendant testified, “I just went right in there and set the house on fire.” Defendant testified that while in the bedroom, he hesitated and asked himself what he was doing. But he always did as the voices asked “[s]o I just set the blanket on fire and I set the pillowcase on fire and then I—I backed up and I was watching.” Then he thought, “ah, shit,” and tried to put it out before going to Klinefelter. On cross-examination, defendant testified, “I was already—my mind was already made up before I walked [into the bedroom]. [The voices] told me to do it so that’s what I was going in there for, to set the fire.” Defendant never testified that he started the fire accidentally or unintentionally, and his testimony does not support a finding that he did not willfully or maliciously set the fire. 7. Defendant relies on Schwartz, supra, 2 Cal.App.4th at pages 1324–1325 to support his argument that the trial court erred in failing to instruct on the lesser included offense. However, Schwartz is distinguishable. In that case, the evidence demonstrated Schwartz intentionally set fire to numerous car frames inside a repair business because he was angry that work had not been completed on his car. (Id. at p. 1322.) A flame from a vehicle burned the structure’s loft and roof. (Id. at pp. 1322–1323.) The appellate court reversed Schwartz’s arson conviction due to a failure to instruct on the offense of unlawfully causing a fire because it determined that reasonable inferences drawn from the evidence supported a conclusion that he only intended to set fire to the cars and his intention was reckless as to the structure.3 (Schwartz, at p. 1325.) Here, however, defendant set fire to his blanket and pillowcase and was not charged with burning the structure. (Compare § 451, subd. (d) [arson of property] with § 451, subd. (b) [arson of an inhabited structure].) The evidence established defendant used a lighter to set his bedding on fire. The jury could not reasonably infer from this evidence anything other than he intended to set the bedding on fire. The trial court did not err in refusing to instruct the jury as to the lesser included offense of unlawfully causing a fire because the instruction was not supported by substantial evidence.4 3 Schwartz was decided before our Supreme Court held in Atkins that “arson requires only a general criminal intent and that the specific intent to set fire to, burn, or cause to be burned the relevant structure or forest land is not an element of arson.” (In re V.V., supra, 51 Cal.4th at p. 1027, citing Atkins, supra, 25 Cal.4th at p. 84.) Therefore, Schwartz does not appear to be good law on the necessity to instruct on a lesser included offense under circumstances where a defendant intends to burn one thing but also burns property not intended. But even before Atkins addressed the issue, at least one other appellate court disagreed with Schwartz’s conclusion that arson required an intent to burn a particular piece of property. (See People v. Frye (1993) 19 Cal.App.4th 1334, 1339.) 4 Defendant argues that the failure to so instruct violated the federal Constitution’s due process requirement that the courts afford every criminal defendant an opportunity to present a complete defense. However, the refusal to instruct on an unsupported theory does not prevent a 8. II. The effect of new sentencing legislation. A. Background The trial court sentenced defendant a term of six years, which represents the upper term of three years provided by section 451, subdivision (d), doubled due to defendant’s prior serious felony conviction pursuant to section 667, subdivision (e). In striking the five-year enhancement pursuant to section 667, subdivision (a), the trial court described defendant’s case as “unusual in that it’s clear he does suffer from a mental condition.” At the time of defendant’s sentencing, section 1170, former subdivision (b) provided that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Stats. 2020, ch. 29, § 15.) Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) amended section 1170 in one respect that is relevant here. Section 1170, subdivision (b)(6)(A) now provides in relevant part that “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term,” if, the trial court finds an offender’s psychological, physical, or childhood trauma was a contributing factor in the offense. (Stats. 2021, ch. 731, § 1.3.) Defendant’s many psychiatric reports discuss his childhood and history of mental illness. As relevant here, defendant denied childhood abuse or neglect but did report that he “got a lot of whoopin[g]s as a kid” and was hit in the head by a brick, which caused him to lose consciousness and required surgery. B. Applicable Law and Analysis Defendant contends that because his case is not yet final on appeal, he is entitled to the benefits of section 1170, as amended, pursuant to the principles of retroactivity set defendant from presenting a complete defense. (People v. Nelson (2016) 1 Cal.5th 513, 540– 541.) The trial court did not violate defendant’s right to present a complete defense. 9. forth in In re Estrada (1965) 63 Cal.2d 740. The People agree the amendments are retroactive and concede that because the record reflects the possible existence of such trauma, we should remand the case for resentencing. Under In re Estrada, supra, 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Nothing in Senate Bill 567 suggests legislative intent that the amendments apply prospectively only, and defendant’s case is not yet final. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Where an ameliorative statute like this one is retroactive, a remand is appropriate unless “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) At the time of sentencing, defendant was not entitled to a presumptive lower term upon a showing that he suffered a qualifying psychological, physical, or childhood trauma and that trauma contributed to the commission of his crime. Defendant thus had less incentive to develop a record regarding these issues. By the same token, the trial court had less incentive to assess whether psychological, physical, or childhood trauma was a contributing factor. (See People v. Banner (2022) 77 Cal.App.5th 226, 242.) However, the record contains some indication that defendant might suffer from qualifying trauma and that the trauma may have contributed to the crime. The record does not clearly indicate what sentencing decisions the trial court would have made if it was bound by the new requirements of Senate Bill 567. Therefore, we agree with the parties that remand is appropriate so the trial court may fully resentence defendant anew, incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) 10. We express no opinion as to whether defendant suffered qualifying trauma, or whether it in fact contributed to the commission of the crime, or whether imposing the lower term would be contrary to the interests of justice. “Those are questions best left to the trial court to answer in the first instance.” (People v. Banner, supra, 77 Cal.App.5th at p. 242.) III. Imposition of fines and assessments without an ability to pay hearing. Defendant argues the court failed to conduct an ability-to-pay hearing as to the fines and assessments it imposed and that we should strike them pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. Given the remand for further proceedings that will require resentencing, we conclude it is unnecessary to reach defendant’s Dueñas arguments; they are moot and defendant may raise them at resentencing. DISPOSITION Defendant’s sentence is vacated, and the matter is remanded to the trial court to resentence defendant under Penal Code section 1170, as amended by Senate Bill 567. Following resentencing, the trial court clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed. HILL, P. J. WE CONCUR: PEÑA, J. SNAUFFER, J. 11.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484664/	Case: 21-30489 Document: 00516548855 Page: 1 Date Filed: 11/17/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 17, 2022 No. 21-30489 Lyle W. Cayce Clerk Rene Joseph Foley Bey; Julia Mae Foley Bey, Plaintiffs—Appellants, versus Steve Prator, Sheriff; Mark Terry, Deputy Sheriff; L. C. Cope, Deputy Sheriff; Glyn Best, Deputy Sheriff, Defendants—Appellees. Appeal from the United States District Court for the Western District of Louisiana No. 5:19-CV-1262 Before Smith, Barksdale, and Haynes, Circuit Judges. Per Curiam: Rene Foley Bey and Julia Foley Bey (“plaintiffs”) appeal a summary judgment and the denial of recusal. We find no error and affirm. I. Plaintiffs, who identify as Moorish Americans, sought to enter the Caddo Parish Courthouse to file documents with the court clerk. Upon arriv- ing at the security-screening station, plaintiffs informed the officers on duty that they wished to enter without passing through the security screening, Case: 21-30489 Document: 00516548855 Page: 2 Date Filed: 11/17/2022 No. 21-30489 which, they asserted, would violate their rights under the Fourth Amend- ment and their rights as Moorish Americans under the United States- Morocco Treaty of Peace and Friendship. The officers informed plaintiffs that they could not enter without being screened and were required to leave the courthouse if they did not agree. After plaintiffs’ repeated refusals to depart, the officers stated they would count to three and, if plaintiffs refused to leave, they would be arrested. They did not depart and were arrested, charged with violating Louisiana Revised Statutes § 14:63.3, “Entry on or remaining in places or on land after being forbidden.” Plaintiffs were taken to the courthouse basement, searched, and taken to the Caddo Correctional Center. They allege that, during that search, the officers removed their religious headwear, namely, a fez worn by Rene Foley Bey and a turban worn by Julia Foley Bey. Plaintiffs also assert that they were “subjected to mistreatment and harsh conditions” while in custody. They were released early the next day after friends posted bail; the district attorney ultimately dismissed the charges. Proceeding pro se, plaintiffs brought a litany of claims against various officials serving in Caddo Parish and the Louisiana state government based on their actions taken during the arrest. Some of the defendants were dropped from the amended complaint, while others successfully moved to dismiss. 1 Ultimately, federal claims under 42 U.S.C. § 1983 and state-law claims against the three arresting officers (Mark Terry, L.C. Cope, and Glyn Best), and state-law claims against Sheriff Steve Prator remained. The four remaining defendants moved for summary judgment, asserting that the offi- cers were protected by qualified immunity, which the district court granted on the magistrate judge’s recommendation. Plaintiffs also moved for recusal 1 Plaintiffs do not appeal these dismissals. 2 Case: 21-30489 Document: 00516548855 Page: 3 Date Filed: 11/17/2022 No. 21-30489 of the magistrate judge, which the district court denied. Plaintiffs, pro se, timely appeal. II. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly estab- lished’ at the time of the challenged conduct.” 2 Consistent with our standard of review for summary judgments, the legal issues underlying the district court’s qualified-immunity ruling is reviewed de novo. 3 When considering whether summary judgment was appropriate, “we ‘view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.’” 4 “A qualified immunity defense alters the usual summary judgment burden of proof” because the plaintiff, to overcome qualified immunity, “must rebut the defense by establishing a genuine [dispute of material fact] as to whether the official’s allegedly wrongful conduct violated clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Although the complaint raised claims running the gamut from false arrest to genocide, the district court isolated the claims as being two-fold: The officers (1) perpetrated a false arrest without probable cause in violation of the Fourth Amendment and (2) violated plaintiffs’ religious rights by removing and searching their religious headgear during that arrest. “A search 2 Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). 3 Trammell v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017). 4 Hanks, 853 F.3d at 743 (quoting Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016)). 3 Case: 21-30489 Document: 00516548855 Page: 4 Date Filed: 11/17/2022 No. 21-30489 and seizure of a person must be based on probable cause particularized with respect to that person unless a constitutionally adequate substitute for proba- ble cause exists.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 208 (5th Cir. 2009). Because of the possibility of qualified immunity, however, a plaintiff seeking to recover damages ion an action under § 1983 for a false arrest must prove not only that probable cause did not exist but also that “the officers were objectively unreasonable in believing there was probable cause for the arrest.” Davidson, 848 F.3d at 391. Therefore, even those officers “who ‘rea- sonably but mistakenly conclude that probable cause is present’ are entitled to immunity.” 5 The plaintiffs have not met that standard. The officers arrested them for violating Louisiana Revised Statutes § 14:63.3, which states, No person shall without authority go into or upon or remain in or upon . . . any structure . . . which belongs to another, in- cluding public buildings and structures . . . after having been forbidden to do so, either orally or in writing, . . . by any owner, lessee, or custodian of the property or by any other authorized person. The summary judgment evidence, including videos of plaintiffs’ encounter with the officers and their own and the officers’ affidavits, demon- strate that, at the very least, the officers reasonably thought there was proba- ble cause to arrest under that statute. The plaintiffs attempted to enter the courthouse without passing through security screening. The officers, who are authorized to control entry into the courthouse, refused and told the plaintiffs that if they would not pass through security, they had to leave. They refused (i.e., remained in a structure after having been forbidden to do so). 5 Club Retro, 568 F.3d at 206 (quoting Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)). 4 Case: 21-30489 Document: 00516548855 Page: 5 Date Filed: 11/17/2022 No. 21-30489 There was at least arguable probable cause to arrest under Section 14:63.3, so the officers were entitled to qualified immunity. Nor can plaintiffs point to any other clearly established law that ren- dered the officers’ actions objectively unreasonable. They cannot point to Fourth Amendment jurisprudence that clearly establishes that the officers were required to allow plaintiffs into the courthouse without passing through routine security screening. Indeed, the relevant authorities suggest the oppo- site and certainly do not clearly establish that the screening was unconstitu- tional. 6 Plaintiffs also cannot point to the 1836 United States-Morocco Treaty of Peace and Friendship as clearly establishing a right for Moorish Americans to enter the courthouse as a port of commerce without any screen- ing. 7 It is not clearly established that the officers were required to allow plain- tiffs to pass through security screening; nor is it clearly established that the officers were not allowed to ask them to leave once they refused and then arrest them once they would not leave after being told to do so. Further, it was not clearly established that once plaintiffs had been arrested, the officers were not allowed to search their headgear solely because it had religious significance. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested.” Chimel v. California, 395 U.S. 752, 762–63 (1969). Moreover, plaintiffs have pointed to no precedent that abrogates the general “search incident to arrest” rule when religious head- wear is involved. Accordingly, the district court correctly granted summary 6 See, e.g., McMorris v. Alioto, 567 F.2d 897, 899–900 (9th Cir. 1978); Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987). 7 Cf. United States v. James, 328 F.3d 953, 954 (7th Cir. 2003) (explaining that “an ancient treaty between the United States and Morocco” does not allow those within the United States to ignore its laws because “[l]aws of the United States apply to all persons within its borders”). 5 Case: 21-30489 Document: 00516548855 Page: 6 Date Filed: 11/17/2022 No. 21-30489 judgment on the ground of qualified immunity. 8 There is no error in the district court’s denial of the plaintiffs’ motion for recusal of the magistrate judge. Plaintiffs rely on 28 U.S.C. § 455, which requires recusal “in any proceeding in which [the judge’s] impartiality might reasonably be questioned,” when the judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts con- cerning the proceeding,” or when the judge either “served as [a] lawyer in the matter in controversy” or “a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.” “A motion to disqualify brought under 28 U.S.C. § 455 is ‘committed to the sound discretion of the district judge,’” and so we review for abuse of discre- tion. 9 The magistrate judge did not work on this case in private practice nor work with the defendants’ counsel in the practice of law while he was working on this case. Nor is there evidence of any bias or knowledge of the case that would have required the district court, in its discretion, to order recusal. The most that plaintiffs can point to is that the magistrate judge went to law school 8 For the same reasons, the district court was correct to grant summary judgment on the state-law false-arrest claims and to grant summary judgment for Sheriff Prator, who remained in the case only on the ground that he could be vicariously liable should the state- law claims succeed. Lastly, plaintiffs are unable to save their case by pointing to any actions taken at the Caddo Criminal Center. The district court was correct that the named defendants asso- ciated with the Criminal Center had been dismissed and that the remaining named defen- dants were not present at the Criminal Center and had no role in the processing of plaintiffs there. Plaintiffs had the opportunity to conduct discovery and amend their complaint to add defendants who plaintiffs believed violated their rights during processing. They have not done so and therefore have no claims they can maintain based on those later events; final judgment was appropriate on all claims asserted. 9 Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004) (quoting Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. 1982)). 6 Case: 21-30489 Document: 00516548855 Page: 7 Date Filed: 11/17/2022 No. 21-30489 with defendants’ counsel and then served as a law clerk alongside him over thirty years ago. That is insufficient to require recusal, so the district court did not abuse its discretion. See In re United States (Franco), 158 F.3d 26, 33– 34 (1st Cir. 1998). AFFIRMED. 7	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484675/	11/17/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0405 No. DA 21-0405 STATE OF MONTANA, Plaintiff and Appellee, v. NATHAN BRYCE HARDIN, Defendant and Appellant. ORDER Upon consideration of Appellant’s motion for extension of time, and good cause appearing, IT IS HEREBY ORDERED that Appellant is granted an extension of time to and including December 28, 2022, within which to prepare, file, and serve Appellant’s opening brief on appeal. Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court November 17 2022	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484676/	11/17/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0581 No. DA 21-0581 STATE OF MONTANA, Plaintiff and Appellee, v. CATHERINE MARIE RYMAL, Defendant and Appellant. ORDER Upon consideration of Appellant’s motion for extension of time, and good cause appearing, IT IS HEREBY ORDERED that Appellant is granted an extension of time to and including December 28, 2022, within which to prepare, file, and serve Appellant’s opening brief on appeal. Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court November 17 2022	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484677/	11/17/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0456 Supreme Court Cause No. DA 22-0456 IN THE MATTER OF THE ESTATE OF ORDER GRANTING HORATIO W. BURNS, EXTENSION OF TIME Deceased. FOR COURT REPORTER TO FILE TRANSCRIPTS Pursuant to Appellant’s Motion for an Extension of Time for Court Reporter to Transmit Record, pursuant to Rule 9(4) of the Montana Rules of Appellate Procedure, and for good cause appearing, IT IS HEREBY ORDERED that the Court Reporter shall have to and until February 15, 2023, in which to file the transcripts in the above matter. The Clerk is directed to provide a copy of this Order to all counsel of record and to the Court Reporter. Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court November 17 2022	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484672/	Filed 11/17/22 Abrahams v. Askew CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE HARRY ABRAHAMS, Plaintiff and Appellant, A160853, A162554 v. TRENOR ASKEW et al., (Contra Costa County Super. Ct. Defendants and Respondents. No. CIVMSC19-01570) Harry Abrahams invested money in real estate owned by defendant Kevin Hampton; their relationship ultimately soured after Hampton experienced financial difficulties and Abrahams suffered monetary losses. Abrahams sued Hampton, and he also sued defendants Trenor Askew, TRA Lending, LLC, and TRA Investments, LLC (collectively TRA), alleging they raised money from investors for a real estate scheme that benefitted only defendants and operated to Abrahams’s detriment. Askew and TRA filed a demurrer requesting dismissal of negligent misrepresentation, unfair business practices, and quiet title claims alleged against them, which the trial court sustained without leave to amend. On appeal, Abrahams argues the court erred. We disagree and affirm. 1 BACKGROUND1 Hampton sold and offered to sell deeds of trust and assignment of rents for real property and other negotiable instruments. Hampton (or one of his limited liability corporations) was the “borrower” on the deed of trust, and investors, who provided capital, were the “lender.” Each deed of trust was secured by a fractional interest in a mortgage on real property. Hampton represented that the real properties providing collateral for the investors’ deeds of trust would generate more than enough revenue to cover Hampton’s loan payments, the properties’ operating expenses, and produce a positive cash flow for investors. Beginning in 2004, Abrahams and his agent, PENSCO Trust Company (PENSCO), invested Abrahams’s retirement funds in various property development projects managed by Hampton. Abrahams or PENSCO had second or third mortgage interests in 11 properties. From 2004 to 2006, Abrahams received regular payments from Hampton from these mortgages. But Hampton’s development projects experienced financial difficulties during the 2008 recession. According to Abrahams, Hampton began taking government loans intended to help banks liquidate bad loans and created several limited liability companies to conceal this practice while avoiding capital gains taxes. In addition, Hampton failed to record certain deeds of trust, which made it difficult to determine each lienholder’s rights. He then cross-collateralized multiple properties to make the requisite interest payments on his loans to his primary lenders. We deny Abrahams’s request to augment the record with his fourth 1 amended complaint because that document does not bear on our analysis here. 2 At one point, Hampton required more funds and asked his second and third lienholders, such as Abrahams, to execute zero-demand letters — that is, letters indicating the lienholder was waiving a second or third lien on a property. Hampton promised Abrahams he would nonetheless recover his investment because Hampton would shift Abrahams’s lien to a property with equity. Based on Abrahams’s prior business dealing with Hampton and the trust he placed in Hampton, Abrahams executed zero-demand letters for two specific properties. In August 2018, Abrahams had several conversations and meetings with Askew, who worked with Hampton to reorganize investors’ monetary positions on properties, regarding his investments. Abrahams wanted the properties he invested in to be liquidated to allow him to recover his investments. But Askew told Abrahams that Hampton intended to repay him after the completion of construction and sale of various properties. Askew also told Abrahams he would not foreclose on any properties Abrahams had invested in that were owned by Askew or TRA unless Abrahams could recover his funds. He told Abrahams that Hampton would complete construction on one particular property, which they would then sell and convey the funds to Abrahams. On that basis, Abrahams executed the requested additional zero-demand letter. But Hampton never shifted Abrahams’s liens to other properties. And Askew and TRA foreclosed on or are in the process of foreclosing on three of the 11 properties Abrahams and PENSCO had invested in, with Askew and TRA retaining the primary mortgage interest in each of the properties. Hampton also allegedly allowed government liens, including tax liens, to accumulate on the properties. Moreover, the intended construction was not completed, and the interest generated on the senior loans diminished any 3 possible monetary return for Abrahams. In the end, Abrahams lost much of his investment — nearly two million dollars. Relevant here, Abrahams filed a complaint against Hampton, Askew, and TRA, among other defendants, alleging they engaged in negligent misrepresentation and unfair business practices, and seeking to quiet title. Askew and TRA filed a demurrer on these causes of action as to them, which the trial court sustained with leave to amend. Abrahams filed a second amended complaint, alleging Askew and TRA negligently engaged in fraud and misrepresentation by inducing him to continue investing money into the properties with a promise of a return on his investment, even though there was no equity available in the properties to allow such recovery. He also alleged Askew and TRA engaged in unfair business practices by failing and refusing to perform all material terms of their agreement with him, and fraudulently conveying title to the properties identified in his complaint through cross-collateralization, which undermined all debt owed to Abrahams. Finally, Abrahams sought to quiet title to the investment properties as against Askew and TRA. The court sustained Askew and TRA’s second demurrer without leave to amend after concluding Abrahams had not plead sufficient facts to support these claims against them. DISCUSSION Review of an order sustaining a demurrer requires examining the complaint de novo to determine whether it states facts sufficient to establish every element of each cause of action. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) “We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (Ibid.) We reasonably construe the pleadings, reading the 4 allegations in context, and affirm if the judgment is correct on any stated ground in the demurrer. (Ibid.) The plaintiff must demonstrate the trial court erred in sustaining the demurrer. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) And if the demurrer was sustained without leave to amend, we must determine whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Dones v. Life Ins. Co. of North America (2020) 55 Cal.App.5th 665, 676–677.) We reverse the denial of leave to amend only where there is an abuse of discretion. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1830.) Abrahams first contends the trial court erred by dismissing his negligent misrepresentation claim against Askew and TRA. Specifically, Abrahams alleged he relied on Askew’s representations that executing a zero- demand letter would allow Abrahams to recover his investment, that Hampton would repay Abrahams, and that Askew would not foreclose on the properties. But after executing the zero-demand letters, the properties were foreclosed on and Abrahams lost his investments due to the lack of equity on the named properties. Abrahams argues Askew promised he would recover his monetary investments, even though Askew knew or should have known Hampton failed to pay taxes on the properties, had not disclosed private construction liens, the equity remaining on the properties rendered it unlikely Hampton would recoup Abrahams’s investments, and that construction had been halted. We conclude there was no error in the court’s ruling. Favorably construing Abrahams’s complaint, these allegations fail to state a claim for negligent misrepresentation. That claim requires a (1) misrepresentation of fact; (2) by a person who has no reasonable grounds for believing the fact to be true; (3) intent to induce another’s 5 reliance on the misrepresented fact; (4) justifiable reliance on the misrepresentation; and (5) damage. (Civ. Code, § 1710; Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230–231.) A misrepresentation is actionable if it concerns past or existing facts, not future events. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158 (Tarmann).) “ ‘[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’ ” (Ibid.) Statements involving a false promise to perform or not perform at a future time may support an intentional misrepresentation claim, but not a claim for negligent misrepresentation. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 458; Tarmann, at p. 158 [defendant’s statement that he would pay for repairs immediately upon completion and defendant’s failure to do so was a promise to perform in the future].) Here, Askew’s statements — that Askew would not foreclose on any of the properties until Abrahams recovered his entire investment, and that Hampton would recover Abrahams’s investment if Abrahams refrained from foreclosing on property and construction was completed — were predictions regarding future actions or promises to perform in the future. Consequently, these statements do not form the basis for a negligent misrepresentation claim. (Tarmann, supra, 2 Cal.App.4th at p. 158.) Notably, the trial court provided Abrahams the opportunity to amend his complaint to assert an intentional misrepresentation cause of action after sustaining Askew’s and TRA’s first demurrer. But Abrahams disclaimed any intention to accuse Askew of intentional fraud. Askew’s statement that executing the zero-demand letters would allow Abrahams to recover his investments likewise does not constitute 6 a misrepresentation of fact. Askew merely expressed his opinion — predicting the financial effects of the zero-demand letter and Hampton placing Abrahams’s liens on another property with equity — regarding a future event. (San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 43–44.) As such, it cannot support a negligent misrepresentation claim. (Tarmann, supra, 2 Cal.App.4th at p. 158.) And while there are several recognized exceptions to this general rule — “ ‘(1) where a party holds himself out to be specially qualified and the other party is so situated that he may reasonably rely upon the former’s superior knowledge; (2) where the opinion is by a fiduciary or other trusted person; [and] (3) where a party states his opinion as an existing fact or as implying facts which justify a belief in the truth of the opinion’ ” — Abrahams has not argued or demonstrated Askew’s statements fit within any exception. (Cohen v. S & S Construction Co. (1983) 151 Cal.App.3d 941, 946.) To the extent Abrahams argues Askew had a contractual duty to disclose all facts known to him about Abrahams’s investments, nothing in the complaint indicates Abrahams had a business or contractual relationship with Askew. We reject Abrahams’s argument that he made out a negligent misrepresentation claim by alleging Askew failed to disclose information he knew or reasonably should have known — that there were other priority mortgages and unpaid tax liens on the properties at issue, and construction had been delayed or halted — such that Abrahams’s recovery on his investment was unlikely. Negligent misrepresentation claims, as Abrahams acknowledges, entail fraud or deceit and specifically require a positive assertion or assertions of fact. (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 306.) More is required than the omission or failure to disclose information Abrahams alleges here. (Byrum v. Brand 7 (1990) 219 Cal.App.3d 926, 941.) Nor does Bock v. Hansen (2014) 225 Cal.App.4th 215, compel a different result, contrary to Abrahams’s assertions. That case simply determined an insurance adjuster owed a duty to the insured, and the law of negligent misrepresentation applied. (Id. at p. 229.) Aside from noting the adjuster had a duty to communicate accurate information, it did not address any duty to disclose information. (Ibid. [acknowledging the relationship between an insurer and insured was “special,” requiring the imposition of heightened, fiduciary-like duties to the insured].) Similar circumstances are not alleged to exist here. Because Abrahams fails to allege any actionable misrepresentation of fact, the trial court properly sustained the demurrer to the negligent misrepresentation claim. Having so concluded, we need not address whether Abrahams sufficiently alleged a causal connection between the misrepresentation of fact and harm. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880 [appellate court should affirm sustaining a demurrer if complaint fails to plead any essential element of a particular cause of action].) Abrahams next contends his allegations that all defendants “failed and refused to perform all material terms of the Agreements; and . . . fraud- ulently conveyed title to the properties described herein through cross collateralization thus undermining all debt owed to” him, stated an unfair business practices claim against Askew and TRA. We disagree. The unfair competition law prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code, § 17200.) Thus, a practice is prohibited as unfair or deceptive, even if it is not unlawful. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.) Courts broadly interpret 8 the language in Business and Professions Code section 17200 since the statute targets the public’s right to protection from fraud, deceit, and unlawful conduct. (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 877.) Despite this broad construction, Abrahams failed to allege facts supporting the statutory elements of an unfair business practices violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Although Abrahams alleges Askew and TRA engaged in unfair business practices by failing to comply with their agreement with him, the complaint fails to allege the existence of any contract or agreement between Abrahams and Askew or TRA. Nor are there any facts to support the allegation that Askew or TRA fraudulently conveyed title to any of the properties identified in Abrahams’s complaint. The complaint refers to Hampton incorrectly filing the deed concerning one particular property in the wrong county, Askew’s statement that he would ask Hampton to rectify the issue, and Hampton’s failure to follow through. But Abrahams does not argue, nor do we conclude, that this allegation rises to the level of a fraudulent conveyance by Askew and TRA — “a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim” — let alone an unfair business practice claim. (Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13.) We do not address Abrahams’s argument, as we understand it, that he properly alleged an unfair business practices claim because Askew and TRA violated the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.). That statute prohibits using deceptive representations, advertising goods or services with the intent not to sell them as advertised, or misrepresenting the authority of a representative. (Id., § 1770.) The complaint contains no 9 allegations regarding this statute, nor did Abrahams raise this argument in the trial court. The argument is thus forfeited. (Truck Ins. Exchange v. AMCO Ins. Co. (2020) 56 Cal.App.5th 619, 635 [arguments raised for the first time on appeal are generally deemed forfeited].) Finally, Abrahams fails to state a quiet title claim against Askew and TRA. One of the elements for a quiet title cause of action is the existence of “adverse claims to the title of the plaintiff against which a determination is sought.” (Code Civ. Proc., § 761.020.) But Abrahams only alleges that he, Hampton, and several limited liability companies — Enigami Global Investments, LLC, Community First Development, LLC, Focus Group Lounge Pinole, LLC, Focus Group Ventures, LLC — have adverse claims to the title for any of the identified properties at issue. There is no allegation Askew or TRA has any adverse claims to title. Accordingly, Abrahams’s quiet title claim against Askew and TRA fails. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1010.) We reject Abrahams’s remaining arguments. The trial court did not abuse its discretion by denying Abrahams leave to further amend his claims. Abrahams has not demonstrated a reasonable possibility another amendment could cure the defects identified above. (Dones v. Life Ins. Co. of North America, supra, 55 Cal.App.5th at p. 677.) In fact, despite being given the opportunity to allege an intentional fraud claim against Askew, Abrahams disclaimed any intention to do so. Abrahams’s conclusory statement that he can amend his complaint to state facts making out these claims fails to satisfy his burden here. And the court did not improperly consider facts asserted in Askew’s or TRA’s memorandum supporting their demurrer. Relevant here, the court’s decision cites only the facts alleged in Abrahams’s 10 complaint. (Fremont Indemnity Co. v. Fremont General Corp., supra, 148 Cal.App.4th at p. 111.) DISPOSITION The judgment of dismissal is affirmed. 11 _________________________ Rodríguez, J. WE CONCUR: _________________________ Fujisaki, Acting P. J. _________________________ Petrou, J. A160853 & A162554 12	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484673/	IN THE SUPERIOR COURT OF THE STATE OF DELAWARE KELLY ROOT and THOMAS JOYCE, ) ) Plaintiffs, ) ) v. ) ) C.A. No. N20C-05-156 CLS MAIDPRO WILMINGTON, ) THRESHOLD BRANDS LLC, ) MAIDPRO FRANCHISE, LLC, ) DAISY PEREZ, CASH IN JEWELRY ) AND PAWN INC., and JUAN ) CARIDE a/ka JUAN CARIDE- ) HERNANDEZ, ) ) Defendants. ) Date Submitted: August 29, 2022 Date Decided: November 17, 2022 Upon Defendant’s Motion to Dismiss the Second Amended Complaint. GRANTED. ORDER Josiah R. Wolcott, Esquire, Connolly Gallagher LLP, Newark, Delaware, 19711, Attorney for Plaintiffs, Kelly Root and Thomas Joyce. John G. Harris, Esquire, and Peter C. McGivney, Esquire, Berger Harris LLP, Wilmington, Delaware, 19801, Attorneys for Defendants Threshold Brands, LLC and MaidPro Franchise, LLC. Shae Chasanov, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware, 19899, Attorney for Defendant MaidPro Wilmington. Periann Doko, Esquire, Kent McBride, Wilmington, Delaware, 19809, Attorney for Defendants Cash In Jewelry and Pawn, Inc. and Juan Caride. SCOTT, J. 1 INTRODUCTION Before the Court is Defendants Threshold Brands, LLC and Maidpro Franchise, LLC’s Motion to Dismiss Kelly Root and Thomas Joyce’s (“Plaintiffs”) Second Amended Complaint. On November 1, 2022, the parties filed a Stipulation of Dismissal as to Defendant Threshold Brands, LLC. This Court now assesses the Motion to Dismiss as applied to MaidPro Franchise, LLC (“MaidPro”). For the following reasons, MaidPro’s Motion to Dismiss is GRANTED as for all claims. BACKGROUND/ALLEGED FACTS MaidPro Franchise, LLC is the franchisor of the MaidPro brand. Plaintiffs’ Second Amended Complaint alleged Respondeat superior/vicarious liability, negligent hiring, civil conspiracy, and intentional/negligent infliction of emotional distress stemming from MaidPro Wilmington’s former employee, Daisy Perez (“Ms. Perez”), entered their home through an unlocked door and stealing valuables. Plaintiffs allege MaidPro can be held liable as franchisors because MaidPro controls the daily operations of MaidPro Wilmington, the specific franchisee who hired Ms. Perez, because the franchisors require franchisees to use the set models and systems established. On or about June 13, 2018, MaidPro Wilmington hired Ms. Perez. On June 22, 2018, due to the findings of her background report, MaidPro Wilmington terminated Ms. Perez, ending their employer/employee relationship. 2 In October of 2018, Plaintiffs, while they were on vacation, claim Ms. Perez unlawfully entered their home and stole personal property. Ms. Perez has been held criminally liable for the crimes committed against Plaintiffs. On May 18, 2020, Plaintiffs filed a Complaint, which was amended on December 9, 2020, against Defendants. On April 14, 2021, MaidPro Wilmington and High Five Services Inc.1 filed a Motion to Dismiss relying on facts outside of the pleadings, Ms. Perez’s deposition testimony, affidavit from President of MaidPro Wilmington, and employment document regarding an employee’s introductory period, consideration of these exhibits/testimony goes beyond the scope of the pleadings. The Court denied MaidPro Wilmington’s Motion to Dismiss because the Motion would be more appropriately filed as a Motion for Summary Judgment. The amended complaint was subsequently amended, Second Amended Complaint, again on June 1, 2022. On July 28, 2022, this Motion was filed by Threshold and MaidPro, entities separate and apart from MaidPro Wilmington. Counsel for Defendant MaidPro Wilmington and Counsel for Defendants Cash In Jewelry and Pawn, Inc. and Juan Caride have indicated they do not oppose this Motion. Plaintiffs responded to this Motion in Opposition on August 29, 2022. Because this Motion does not rely on fact outside of the pleadings, this Court finds this Motion was appropriately filed 1 High Five Services, Inc. was released from this litigation in the Second Amended Complaint. 3 as a Motion to Dismiss, and the Court can make its findings based on the allegations contained within the Second Amended Complaint. On November 1, 2022, Plaintiffs filed a Stipulation of Dismissal as to Defendant Threshold Brands, LLC, allowing this Court to assess the Motion as to MaidPro only. STANDARD OF REVIEW A motion to dismiss, brought pursuant to Superior Court Rule 12(b)(6), for failure to state a claim upon which relief can be granted is appropriate only when there appears to be no reasonably conceivable set of circumstances susceptible of proof under the complaint.2 When determining whether to grant the motion, the Court must accept all well-pled allegations in the complaint as true.3 In addition, the Court is limited to the allegations in the complaint; “[i]f the moving party provides documents with the motion to dismiss, and the Court considers those materials in addition to the complaint, the motion to dismiss is converted to a motion for summary judgment, and the parties may expand the record.”4 Where those documents are integral to the plaintiff's claims and incorporated into the complaint, the motion to dismiss will not be converted into a motion for summary judgment.5 2 Spence v. Funk, 396 A.2d 967, 968 (Del.1978). 3 Id. 4 Spector v. Melee Entertainment LLC, 2008 WL 362125, 2 (Del . Super); Eden v. Oblates of St. Francis de Sales, 2006 WL 3512482, 3 (Del.Super.). 5 Willis v. City of Rehoboth Beach, 2004 WL 2419143, 1, n. 1 (Del.Super.) 4 DISCUSSION Respondeat superior/vicarious liability For Plaintiffs’ claims to survive this Motion, they must have alleged facts in their Second Amended Complaint that would constitute respondeant superior liability. An employer is liable for the tortuous acts of an employee under Respondent superior if the acts are performed “within the scope of employment.”6 “Conduct is within the scope of employment if it (i) is of the type the employee was hired to perform; (ii) takes place ‘within the authorized time and space limits'; and (iii) is at least partially motivated by a purpose to serve the employer.” 7 “The question of whether conduct is within the scope of employment is generally a question for the jury, unless the facts are so clear that they must be decided as a matter of law.”8 Therefore, Plaintiffs’ must have alleged the robbery was within the scope of employment. In Draper, the court approved the Restatement of Agency (2d), § 228, which sets forth factors which should be considered in determining whether unauthorized conduct is within the scope of employment. They include such factors as whether or 6 Drainer v. O'Donnell, No. CIV.A. 94C-08-062, 1995 WL 338700, at 1 (Del. Super. Ct. May 30, 1995) 7 Id. (citing Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del.1988)). 8 Id. (citing Draper v. Olivere Paving & Constr. Co., 181 A.2d 565, 570 (Del.1962)). 5 not the act is one commonly done by such servants; the time, place and purpose of the act; whether or not the act is outside the enterprise of the master; whether or not the master has reason to expect that such an act will be done; the similarity in quality of the act done to the act authorized; the extent of departure from the normal method of accomplishing an authorized result; and whether or not the act is seriously criminal.9 Plaintiffs state that Ms. Perez was not an employee of MaidPro Wilmington at the time of the burglary as they contend on June 22, 2018, Ms. Perez was terminated. The burglary did not occur until October of 2018, therefore Ms. Perez was no longer an employee at the time of the act. As a matter of law, Ms. Perez was not acting in the scope of her employment with Defendants. To make a finding that the unauthorized conduct is not within the scope of employment the Court looks to the factors outlined in the Restatement 2nd. The act of breaking into a home and stealing items is certainly not one commonly done by a housecleaner. The time, place and purpose of the act was to further Ms. Perez’s own interests and happened months after her employment with Defendants ended. The act is outside the enterprise of the master as the enterprise of Defendants is housecleaning. Defendants had no reason to expect that such an act will be done. There is no similarity in quality of the act 9 Simms v. Christina Sch. Dist., 2004 WL 344015, at 5 (Del.Super.) (citing Draper v. Olivere Paving & Const. Co.,440, 181 A.2d 565, 569 (1962) 6 done to the act authorized. There was an extreme departure from the normal method of accomplishing an authorized result. And the act is seriously criminal. None of the following factors support the Court finding Mr. Perez burglarizing Plaintiffs’ home was in the scope of employment with her former employer. Therefore, because Plaintiffs state Ms. Perez was not employed by MaidPro Wilmington at the time of the criminal activity and there is no claim made regarding the criminal act being within Ms. Perez’s scope of her employment from June of 2018, the Respondeat superior/vicarious liability claim is dismissed. Additionally, Plaintiffs claims fail because they are attempting to hold MaidPro, a parent company, liable for the acts of their subsidiary, MaidPro Wilmington. To hold a parent company liable for the activities of its subsidiaries, plaintiff must allege that the parent company’s control over the subsidiary is actual, participatory, and total.10 Here, Plaintiffs fail to allege MaidPro’s control over MaidPro Wilmington was actual, participatory, and total, therefore, MaidPro is not liable for MaidPro Wilmington’s actions. Negligent hiring An employer is liable for negligent hiring or supervision where “the employer is negligent in giving improper or ambiguous orders or in failing to make proper 10 J.E. Rhoads & Sons, Inc. v. Ammeraal, Inc., 1988 WL 32012, at 4 (Del. Super. Mar. 30, 1988). 7 regulations, or in the employment of improper persons involving risk of harm to others, or in the supervision of the employee's activity.”11 According to this Court, to have stated a claim for negligent hiring, Plaintiffs needed to allege MaidPro was on notice of Ms. Perez’s tortious behavior at the time she was hired.12 Plaintiffs have failed to allege MaidPro had knowledge of Ms. Perez’s tortious behavior at the time she was hired. In fact, Plaintiffs allege she was fired by MaidPro Wilmington due to the findings of her background check. The acts of MaidPro Wilmington are not extended to MaidPro as Plaintiffs failed to allege liability of MaidPro as a parent company. For this reason, Plaintiffs’ negligent hiring claim is DISMISSED. Civil Conspiracy Delaware law imposing liability for civil conspiracy is well settled. Plaintiffs must have alleged the following to survive this Motion: (1) A confederation or combination of two or more persons; (2) An unlawful act done in furtherance of the conspiracy; and (3) Actual damage.13 11 Id. at 8 (Del.Super.) (citing Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1998 WL 40009 (Del.Super.)). 12 Fanean v. Rite Aid Corp. of Delaware, 984 A.2d 812, 826 (Del. Super. Ct. 2009). 13 McLaughlin v. Copeland, 455 F.Supp. 749, 752 (D.Del.1978), aff'd, 595 F.2d 1213 (3d Cir.1979). 8 Plaintiffs fail to allege an unlaw act done in furtherance of the conspiracy on the part of MaidPro. On this point, Plaintiffs claim only all the named defendants in this case “combined to wrongfully interfere” with Plaintiffs possession of Personal Property and deprive them of it. This allegation does not allege MaidPro participated in an unlawful act done in furtherance of the conspiracy to burglarize Plaintiffs’ home. Therefore, on the Civil Conspiracy Claim is DISMISSED. Intentional/Negligent Infliction of Emotional Distress IIED In Delaware, the elements of the tort of intentional infliction of emotional distress (“IIED”) are defined by Section 46 of the Restatement (Second) of Torts.14 According to the Restatement, an IIED claim arises when “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”15 Extreme and outrageous conduct is that which “exceeds the bounds of decency and is regarded as intolerable in a civilized community.”16 The Court considers the Restatement's comment as to what conduct might be sufficiently extreme and outrageous to warrant IIED liability: 14 See Mattern v. Hudson, 532 A.2d 85, 85–86 (Del.Super.Ct.1987); Esposito v. Townsend, 2013 WL 493321, at 6 (Del.Super.Ct. Feb. 8, 2013). 15 Fanean v. Rite Aid Corp. of Delaware, 984 A.2d 812, 818 (Del.Super.Ct.2009). 16 Thomas v. Harford Mut. Ins. Co., 2004 WL 1102362, at 3 (Del.Super.Ct. Apr. 7, 2004). 9 The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim ‘Outrageous!’17 Plaintiffs have failed to allege extreme and outrageous behavior attributable to MaidPro. The Court will not find the employment of an individual, who is then discharged and then four months later commits a crime against Plaintiffs as extreme and outrageous behavior on the part of MaidPro. Such a finding would ultimately hold every parent company responsible for emotional damage caused by its subsidiary’s former employees, which this Court is not prepared to find. Because Plaintiffs have failed to allege extreme and outrageous behavior, the IIED claim is DISMISSED. NIED To survive this Motion, Plaintiffs must have alleged the elements of NIED, which are “(1) negligence causing fright to someone; (2) in the zone of danger; (3) producing physical consequences to that person as a result of the contemporaneous 17 Farmer v. Wilson, 1992 WL 331450, at 4 (Del.Super.Ct. Sept. 29, 1992) (citing Restatement (Second) of Torts § 46 cmt. d). 10 shock.”18 The zone of danger “is that area where the negligent conduct causes the victim to fear for his or her own safety.”19 Here, Plaintiffs are attempting to recover for NIED against MaidPro for its subsidiary’s former employee breaking into their homes months after the employee was no longer associated with MaidPro. Looking at the entirety of Plaintiffs Second Amended Complaint, Plaintiffs do not allege any of the necessary elements of NIED. Specifically, Plaintiffs do not allege there was negligence causing fright to Plaintiffs, that they were within an area where the negligent conduct caused fear for Plaintiffs safety, nor do Plaintiffs allege any physical consequences from the shock that could possibly be attributable to MaidPro. Therefore, the NIED claim is DISMISSED. CONCLUSION For the foregoing reasons, MaidPro’s Motion to Dismiss is GRANTED as for all claims. IT IS SO ORDERED. /s/ Calvin L. Scott Judge Calvin L. Scott, Jr. 18 Snavely v. Wilmington Med. Ctr., 1985 WL 552277, at 3 (Del.Super.Mar.18, 1985). 19 Doe v. Green, 2008 WL 282319, at 1. 11	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484679/	[Cite as State v. Callahan, 2022-Ohio-4103.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 22AP-221 v. : (C.P.C. No. 16CR-341) Wendell L. Callahan, : (ACCELERATED CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on November 17, 2022 On brief: Gary Tyack, Prosecuting Attorney, and Mark R. Wilson, for appellee. On brief: Wendell L. Callahan, pro se. APPEAL from the Franklin County Court of Common Pleas MENTEL, J. {¶ 1} Defendant-appellant, Wendell L. Callahan, pro se, appeals from a March 15, 2022 decision and entry denying his motion for leave for an oral hearing and motion to withdraw his guilty plea. {¶ 2} For the reasons that follow, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 3} By indictment filed March 1, 2016, plaintiff-appellee, State of Ohio, charged appellant with eight counts of aggravated murder in violation of R.C. 2903.01, unclassified felonies (Count One, Two, Four, Five, Six, Seven, Eight, Nine); murder in violation of R.C. 2903.02, an unclassified felony (Count Three); and aggravated burglary in violation of R.C. 2911.11, a felony of the first degree (Count Ten). The charges included eight course of conduct specifications, eight felony murder specifications, six murder to escape specifications, and six victim under age thirteen specifications. The charges related to an No. 22AP-221 2 incident on or about January 12, 2016 involving the death of E.H. and her two minor children, A.G. and B.H. On March 4, 2016, appellant entered a plea of not guilty. {¶ 4} On December 18, 2017, appellant, pursuant to a plea agreement, entered a plea of guilty to three counts of aggravated murder (Counts One, Four, and Seven), and aggravated burglary (Count Ten). The aggravated murder counts did not include the specifications asserted in the indictment. The remaining counts were dismissed nolle prosequi. The parties provided a joint sentence recommendation of 66 years to life, which was adopted by the trial court. Specifically, the trial court sentenced appellant to "TWENTY (20) YEARS TO LIFE ON COUNTS ONE, FOUR AND SEVEN TO BE SERVED CONSECUTIVELY WITH EACH OTHER AND CONSECUTIVE TO SIX (6) YEARS ON COUNT TEN at the OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS." (Capitalization sic.) (Dec. 26, 2017 Jgmt. Entry.) Appellant did not file a direct appeal. {¶ 5} On July 28, 2021, appellant filed a motion for leave for an oral hearing and motion to withdraw his guilty plea pursuant to Crim.R. 32.1. On August 4, 2021, appellant filed a motion for leave to supplement his motion to withdraw his guilty plea. On August 11, 2021, the state filed a combined motion in opposition to appellant's motions. A reply brief was filed on August 27, 2021. Appellant filed a motion for leave to file an amended motion to withdraw his guilty plea instanter on September 13, 2021. On September 16, 2021, the state filed a memorandum in opposition to appellant's September 13, 2021 motion. A reply brief was filed on October 1, 2021. {¶ 6} On March 15, 2022, the trial court denied appellant's motion to withdraw his guilty plea and motion for an oral hearing. The trial court first addressed appellant's claim that his prior trial counsel was ineffective based on lack of preparation. The trial court rejected appellant's claim finding the argument lacked merit and his affidavit, attached to the motion, was self-serving. (Mar. 15, 2022 at 4.) The trial court also concluded that appellant's claim of actual innocence was barred by res judicata as appellant had failed to assert this argument in a direct appeal. The trial court provided an alternative analysis that, even if the argument was not barred by res judicata, appellant's claim of actual innocence lacked credibility and was not supported by the evidence. {¶ 7} Appellant filed a timely notice of appeal on April 6, 2022. No. 22AP-221 3 II. ASSIGNMENT OF ERROR {¶ 8} Appellant assigns the following as trial court error: 1. Abuse of Discretion 2. Ineffective Assistance Of Counsel 3. Cumulative Effect Doctrine (sic passim.) III. LEGAL ANALYSIS A. Appellant's First Assignment of Error {¶ 9} In appellant's first assignment of error, he argues the trial court abused its discretion by failing to hold a hearing regarding his motion to withdraw his guilty plea. {¶ 10} Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." It is well-established law that a motion to withdraw a guilty plea after a sentence has been imposed will only be granted in cases of a manifest injustice. State v. Stumpf, 32 Ohio St.3d 95, 104 (1987). It is the defendant's burden to demonstrate the existence of the manifest injustice. State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-8139, ¶ 13, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. " 'Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' " State v. Morgan, 10th Dist. No. 12AP-241, 2012-Ohio-5773, ¶ 10, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Given the high standard at issue, the granting of a motion to withdraw a guilty plea is only permitted in the most " 'extraordinary of cases.' " State v. Muscroft, 10th Dist. No. 20AP-423, 2021-Ohio-3342, ¶ 10, quoting State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 14, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). {¶ 11} Whether to grant a motion pursuant to Crim.R. 32.1 falls within the sound discretion of the trial court. State v. Little, 10th Dist. No. 21AP-272, 2022-Ohio-1295, ¶ 10, quoting Smith at paragraph one of the syllabus. " '[T]his court's review of the trial court's denial of a post-sentence motion to withdraw a guilty plea or the decision not to hold a hearing is limited to a determination of whether the trial court abused its discretion.' " Little No. 22AP-221 4 at ¶ 10, quoting State v. Chandler, 10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8, citing State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. A trial court abuses its discretion when the decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶ 12} Upon review, we find the trial court's ruling denying appellant's motion for an oral hearing on his motion to withdraw his guilty plea was not an abuse of discretion. First, appellant's claims are precluded under the doctrine of res judicata as they could have been asserted on direct appeal. " 'It is well established by pertinent Ohio case law that claims submitted in support of a Crim.R. 32.1 motion to withdraw plea that could have been raised on direct appeal, but were not raised in direct appeal, are barred by res judicata.' " State v. Jordan, 12th Dist. No. CA2014-04-051, 2015-Ohio-575, ¶ 14, quoting State v. Hendrix, 12th Dist. No. CA2012-05-109, 2012-Ohio-5610, ¶ 11, quoting State v. Madrigal, 6th Dist. No. L-10-1142, 2011-Ohio-798, ¶ 16; State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59-60. There is no dispute that appellant failed to file a direct appeal of his conviction and sentence in this case. Because appellant could have raised these issues on direct appeal, but did not, this issue is precluded by res judicata. Arguendo, even if this argument was not barred by res judicata, the record does not support appellant's claim. Most notably, the motion relies heavily on appellant's self-serving affidavit. The affidavit lacks credibility and is not supported by other available evidence in the record. Without additional evidence to support appellant's claim that a manifest injustice occurred, it is more than reasonable that the trial court did not find it necessary to hold an oral hearing on this matter. " 'An evidentiary hearing on a post-sentence motion to withdraw a guilty plea is not required if the "record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice." ' " State v. Miranda, 10th Dist. No. 13AP-271, 2013-Ohio-5109, ¶ 21, quoting State v. Buck, 9th Dist. No. 04CA008516, 2005-Ohio-2810, ¶ 14, quoting State v. Russ, 8th Dist. No. 81580, 2003- Ohio-1001, ¶ 12. Accordingly, the trial court did not abuse its discretion in denying appellant's motion for an oral hearing on this matter. Appellant's first assignment of error is overruled. No. 22AP-221 5 B. Appellant's Second Assignment of Error {¶ 13} In appellant's second assignment of error, he argues the counsel was ineffective by failing to request a competency evaluation or hearing on this issue. {¶ 14} As an initial matter, we find that, for the first time on appeal, appellant has raised the issue of a competency evaluation. "A first principle of appellate jurisdiction is that a party ordinarily may not present an argument on appeal that it failed to raise below." State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Failure to raise an issue at the trial court level waives it on appeal. State v. Villareal, 10th Dist. No. 21AP-588, 2022-Ohio-1473, ¶ 14 (further citation omitted.). Because appellant failed to raise this issue with the trial court, we conclude the issue was waived on appeal.1 Accordingly, appellant's second assignment of error is overruled. C. Appellant's Third Assignment of Error {¶ 15} In appellant's third assignment of error, he argues that the cumulative error doctrine warrants withdraw of his guilty plea as these purported errors deprived him of his constitutional rights. {¶ 16} "Under the doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors * * * deprives a defendant of the constitutional right to a fair trial even though each of the errors does not individually constitute cause for reversal." State v. Allen, 8th Dist. No. 102385, 2016-Ohio-102, ¶ 53. After a review of the entire record as well as consideration of appellant's identified assignments of error, we find no cumulative errors that deprived appellant of his constitutional rights. As such, we find no basis for considering, let alone finding, cumulative error in this case. State v. Hall, 10th Dist. No.13AP-747, 2014-Ohio-1647, ¶ 28, citing Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 124, citing State v. Garner, 74 Ohio St.3d 49, 64 (1995) ("Because we failed to find any error in our discussion of appellant's * * * 1Arguendo, even if the issue was first raised with the trial court, the argument would be precluded by the doctrine of res judicata as appellant could have brought it as part of a direct appeal. See State v. Taylor, 10th Dist. No. 19AP-795, 2020-Ohio-4581, ¶ 12 ("[t]his court has consistently applied res judicata to bar a defendant from raising issues in a post-sentence Crim.R. 32.1 motion that were or could have been raised on direct appeal.") (Internal citations omitted.) Regarding the substance of appellant's claim, we are also unpersuaded that appellant's argument has merit as his brief fails to identify any evidence in the record that demonstrates a competency hearing was appropriate in this case. No. 22AP-221 6 assignments of error, we discern no basis for considering the question of cumulative error.") Hall at ¶ 28 {¶ 17} As such, appellant's third assignment of error is overruled. IV. CONCLUSION {¶ 18} Having overruled appellant's three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BEATTY BLUNT, and JAMISON, JJ., concur. _____________	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484671/	Filed 11/17/22 Estate of Singh CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX Estate of SUKHJINDER 2d Civil No. B319677 SINGH, Deceased. (Super. Ct. No. 19PR-0348) (San Luis Obispo County) MARISOL CUEVA, Petitioner, v. NIKI HAMIDI, Objector, Claimant and Appellant; IKE M. IQBAL, as Trustee, etc., Objector and Respondent. Appellant Niki Hamidi appeals from an order granting Respondent Ike M. Iqbal’s request for discovery sanctions against her pursuant to Code of Civil Procedure1 section 2033.280, subdivision (c). We affirm. FACTUAL AND PROCEDURAL HISTORY Sukhjinder Singh died in 2016. Marisol Cueva filed a petition to administer the estate. Hamidi, who is Singh’s ex-wife, objected to the petition and filed a creditor’s claim against the estate on behalf of herself and her daughter. Hamidi also filed a petition to administer the estate. Iqbal is trustee of Singh’s trust. Iqbal filed a competing petition to administer the estate. Hamidi objected to the petition. In June 2021, Iqbal served Hamidi requests for admission. A month later, Hamidi filed two “objections” with the trial court, objecting to the requests as “[overbroad] and unduly burdensome, irrelevant, repetitive, and frivolous questions that [Iqbal] already knows the answers to.” She did not answer any of the requests for admission. In August 2021, Iqbal filed a formal request for a discovery conference, after receiving no response from Hamidi for an informal conference. After the trial court set a date, Hamidi filed a declaration in which she asked the court to dismiss the discovery conference because it “would be a waste of time to have a premature conference hearing.” Hamidi did not appear at the discovery conference. In February 2022, Iqbal moved for an order that the requests for admission be deemed admitted. Iqbal also requested monetary sanctions. 1 Further unspecified statutory references are to the Code of Civil Procedure. 2 A month later, Hamidi filed a late opposition to Iqbal’s motion, interposing the same objections to the requests for admission. She asserted that the requests for admission sought “equally and easily accessed information . . . recorded and filed since 1992 to current in the same Superior Court of San Luis Obispo Family court division next to this probate court. [Counsel] can go to the clerk and access it very easily no need for discovery . . . .” Hamidi did not appear at the hearing on the motion. The trial court granted Iqbal’s motion and deemed “all of the Requests for Admissions . . . admitted for her failure and refusal to respond to them.” It found Hamidi’s objections were “not appropriate discovery responses, and as such, Hamidi has failed to respond to the RFAs.” The court also noted that based on Hamidi’s late opposition to the motion “reiterating that the information sought by the RFAs may be found in other court filings[, i]t is clear from her opposition that she has not served formal discovery responses.” The court awarded $6,500 in discovery sanctions in favor of Iqbal. Iqbal’s counsel originally sought approximately $11,600 in sanctions, but the court deducted several hours and reduced the award to approximately $9,500. And because it still found this amount “high,” the court further reduced the sanction amount to $6,500, stating, “while monetary sanctions are mandatory . . . , they must also be reasonable.” DISCUSSION Noncompliant briefs As Iqbal points out in his brief, Hamidi’s opening brief does not contain a single citation to the record. “Each and every statement in a brief regarding matters that are in the record on 3 appeal, whether factual or procedural, must be supported by a citation to the record.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96-97, fn. 2; see Cal. Rules of Court, rule 8.204(a)(1)(C).) “The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court.” (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5.) Because factual assertions in Hamidi’s briefs are not supported by appropriate reference to the record, we may disregard them. (Ibid.; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 60.) Moreover, Hamidi fails to affirmatively demonstrate error. An appellant bears the burden of affirmatively demonstrating error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “Whether legal or factual, no error warrants reversal unless the appellant can show injury from the error.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis.” (Id. at pp. 286- 287.) “[W]e may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions [they] want[ ] us to adopt.” (Id. at p. 287.) Here, Hamidi’s briefs fail to include cogent legal arguments, legal analysis, and pertinent legal authority. Thus, we may disregard her arguments. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [“To the extent [a party] perfunctorily asserts other claims without development . . . , they are not properly made, and are rejected on that basis”].) She also raises arguments and matters not relating to the sanctions order from 4 which she appealed. We disregard matters or arguments outside the scope of this appeal. (See Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) We are mindful that Hamidi appears in pro per, but that does not entitle her to special treatment. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) “‘A litigant has a right to act as [her] own attorney [citation] “but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” [Citations.]’” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) Despite these deficiencies in Hamidi’s briefs, we nonetheless review the challenge to the sanction order on the merits. Sanction order Code of Civil Procedure section 2033.280 provides: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: [¶] . . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . . . [¶] (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction . . . on the party . . . whose failure to serve a timely response to requests for admission necessitated this motion.” (Emphasis added.) We review an order imposing a discovery sanction for abuse of discretion and reverse only if the 5 court’s action was arbitrary or capricious. (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 80.) The judgment is presumed correct, and we defer to the trial court’s factual findings and credibility determinations if they are supported by substantial evidence. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1562.) Here, the trial court did not abuse its discretion in awarding mandatory monetary sanctions against Hamidi. As required by section 2033.280, subdivision (c), the trial court imposed these sanctions as a result of Hamidi’s failure to serve responses to Iqbal’s requests for admission. Hamidi’s “objections” to the requests did not comply with section 2033.210 et seq. She submitted general objections to the entire requests for admission, stating that the requests were “[overbroad], and unduly burdensome, irrelevant, repetitive and frivolous questions that [Iqbal] already knows the answers to.” Hamidi’s objections were not complete and straightforward, and she did not admit, deny, or state that she lacked sufficient information or knowledge, as required by section 2033.220. Moreover, substantial evidence supports the court’s finding of Hamidi’s failure and refusal to respond. As the trial court recognized, Hamidi’s late opposition in which she stated that the information sought “may be found in other court filings” demonstrated her refusal to respond to the requests for admission. Thus, the trial court properly deemed the requests for admission admitted and appropriately imposed monetary sanctions. Moreover, there was no abuse of discretion in setting the award amount. A trial court has “broad discretion” in setting the amount of monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 6 789.) “The test for abuse of discretion is whether the trial court’s decision exceeded the bounds of reason.” (Ibid.) Here, the court calculated the number of hours Iqbal’s attorneys spent on reviewing and preparing for the motion and reduced the requested amount to what it believed was “reasonable.” Hamidi does not demonstrate that the court “exceeded the bounds of reason” when setting this amount. Iqbal requests that this court instruct the trial court to revise its sanction award to reflect the attorney’s fees incurred in opposing this appeal. We decline to do so, but note that our decision does not preclude Iqbal from later seeking these attorney’s fees from the trial court. DISPOSITION The sanction order is affirmed. Respondent shall recover costs on appeal. NOT TO BE PUBLISHED. BALTODANO, J. We concur: GILBERT, P. J. YEGAN, J. 7 Tana L. Coates, Judge Superior Court County of San Luis Obispo ______________________________ Niki Hamidi, in pro. per., for Objector, Claimant and Appellant. Andre, Morris & Buttery and James C. Buttery for Objector and Respondent.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484678/	[Cite as Strother v. Columbus, 2022-Ohio-4097.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Orenthal Strother, : Plaintiff-Appellant, : No. 22AP-7 v. : (M.C. No. 21CVE-2559) City of Columbus et al., : (ACCELERATED CALENDAR) Defendants-Appellees. : D E C I S I O N Rendered on November 17, 2022 On brief: Darryl O. Parker, for appellant. On brief: Zach Klein, City Attorney, and Sheena D. Rosenberg, for appellee City of Columbus. On brief: Giffen & Kaminski, LLC, Karen L. Giffen and In Son J. Loving, for appellee The Ohio Bell Telephone Company. APPEAL from the Franklin County Municipal Court KLATT, J. {¶ 1} Plaintiff-appellant, Orenthal Strother, appeals a judgment of the Franklin County Municipal Court entered in favor of defendants-appellees, the city of Columbus and The Ohio Bell Telephone Company ("Ohio Bell"), incorrectly named in the complaint as American Telephone and Telegraph. For the following reasons, we affirm the judgment as to Ohio Bell, but reverse it as to the city of Columbus. {¶ 2} Due to the Covid-19 pandemic, many courts, including the municipal court, took measures intended to protect public health while maintaining essential court functions. To further those goals, on September 10, 2020, the municipal court issued an No. 22AP-7 2 administrative order stating that, "[i]n her discretion and in such manner as she deems appropriate, the Clerk of Court may receive any civil filing, including complaints for restitution of premises, by a way of a 'drop box' installed on the premises of the Franklin County Municipal Court." Admin. Order No. 19-2020; accord Admin. Order No. 26-2020 (order issued Nov. 25, 2020 that, in part, reiterated the provision permitting the clerk to install a drop box for the receipt of civil filings). {¶ 3} In this case, Strother's attorney averred that he visited the clerk's office on Monday, January 25, 2021 to file the complaint. Because the office was closed, he could not take the complaint to a deputy clerk to have it time stamped. The attorney placed the complaint, along with service instructions, in the drop box located in the municipal court for civil filings. {¶ 4} Although Strother's attorney placed the complaint in the drop box on January 25, 2021, the clerk did not time stamp the complaint until February 1, 2021. In accordance with the service instructions, a bailiff personally served copies of the complaint and summons at the addresses listed on the complaint on March 1, 2021. {¶ 5} The city answered the complaint and filed a cross-claim against Ohio Bell. Rather than answer the complaint, Ohio Bell moved to dismiss pursuant to Civ.R. 12(B)(6). {¶ 6} In its motion to dismiss, Ohio Bell pointed out that Strother's complaint alleged damage that occurred when Strother drove over a recessed utility hole cover "[o]n or about September 28, 2017 at approximately 1:37 PM." (Compl. at ¶ 8.) A plaintiff must file an action for damage to personal property within two years after the cause of action accrues. R.C. 2305.10(A). Ohio Bell contended that Strother's action accrued on the date Strother's vehicle incurred damage—September 28, 2017—and the statute of limitations expired two years later, on September 28, 2019. According to the time stamp on Strother's complaint, it was filed on February 1, 2021—well after the statute of limitations expired. Therefore, Ohio Bell argued, Strother's failure to file his action within the two-year statute of limitations was apparent from the face of the complaint, entitling Ohio Bell to dismissal pursuant to Civ.R. 12(B)(6). Ohio Bell also moved to dismiss the city's cross-claim because, Ohio Bell alleged, the city's cross-claim was derivative of Strother's action against defendants. No. 22AP-7 3 {¶ 7} Strother's response to Ohio Bell's motion to dismiss attempted to introduce facts to show that exceptions to the two-year statute of limitations applied. According to Strother, he initially filed a complaint regarding damage to his vehicle on October 31, 2018. He then voluntarily dismissed that complaint on January 24, 2020. Pursuant to R.C. 2305.19(A), Ohio's savings statute, Strother had one year from the date of the dismissal to refile his action. See id. ("In any action that is commenced * * , * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of * * * the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later."). Because January 24, 2021 fell on a Sunday, Strother had until Monday, January 25, 2021, to refile his complaint. See Civ.R. 6(A) (when the last day of a period of time prescribed or allowed by statute is a Sunday, "the period runs until the end of the next day which is not a * * * legal holiday"). In an affidavit attached to the memorandum contra, Strother's attorney explained how he had placed the complaint in the drop box located in the municipal court on January 25, 2021. Based upon these facts, Strother asked the trial court to deny Ohio Bell's motion to dismiss. {¶ 8} The city also moved for judgment in its favor on Strother's action. Unlike Ohio Bell, which had filed a Civ.R. 12(B)(6) motion to dismiss, the city filed a motion for summary judgment. However, similar to Ohio Bell, the city based its motion on Strother's alleged failure to file within the statute of limitations. {¶ 9} The city contended that a two-year statute of limitations also applied to Strother's action against it, albeit under R.C. 2744.04(A), which applies to actions against a political subdivision. See id. ("An action against a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function * * * shall be brought within two years after the cause of action accrues, or within any applicable shorter period of time for bringing the action provided by the Revised Code."). The city acknowledged that Strother had previously asserted an action against the city regarding his damaged vehicle within this two-year statute of limitations. The city also conceded that Strother had voluntarily dismissed that action on January 24, 2020, giving Strother until January 25, 2021 to refile his complaint. However, according to the city, Strother's instant action was untimely No. 22AP-7 4 because the complaint bore a time stamp of February 1, 2021. The city argued that Strother did not refile his action within one year of the voluntary dismissal of his first action, entitling the city to summary judgment. {¶ 10} In response to the city's motion for summary judgment, Strother reiterated the facts he had asserted in response to Ohio Bell's motion to dismiss. Strother argued that the trial court should apply the doctrine of equitable tolling to accept his complaint as timely filed. Strother contended that he diligently filed his complaint within the statute of limitations, but due to the extraordinary circumstances occasioned by the Covid-19 pandemic, the clerk did not immediately time stamp the complaint. {¶ 11} In a judgment entered December 2, 2021, the trial court granted Ohio Bell's motion to dismiss and the city's motion for summary judgment. In relevant part, the trial court stated: The docket reflects that [Strother's] complaint was filed by the Clerk of Court on February 1, 2021, beyond the one[-]year deadline of January 25, 2021. Even accepting as true that the complaint was placed in the Clerk's drop box on January 25, 2021, such that the Court and Clerk's office's operational response to the Covid-19 pandemic impacted [Strother's] ability to file his complaint on January 25, 2021, that extraordinary circumstance is not the sole criteria for applying equitable tolling to the statute of limitations. * * * [Strother's] filings invoking equitable tolling offer no explanation as to how [Strother] pursued his rights "diligently" by waiting until the very last day to re-file his claim. (Dec. 2, 2021 Order to Dismiss at 1.) Because the trial court found that Strother did not demonstrate diligence, the trial court refused to apply the equitable tolling doctrine. Given the trial court's finding that the complaint was filed on February 1, 2021, the trial court concluded that Strother's action was untimely. {¶ 12} Strother now appeals the December 2, 2021 judgment. For his assignment error, Strother asserts that "[t]he trial court abused its discretion when finding that the [a]ppellant did not diligently pursue his rights." Strother contends that he provided proof that he acted diligently and, thus, the trial court erred in concluding that he failed to establish entitlement to equitable tolling. {¶ 13} Initially, we will address whether the trial court erred in granting Ohio Bell's Civ.R. 12(B)(6) motion to dismiss on the ground that Strother failed to prove entitlement No. 22AP-7 5 to equitable tolling. A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiff's favor. Id. at ¶ 12; LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. A court may dismiss a claim under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the face of the complaint conclusively shows that the claim is time barred. Schmitz v. NCAA, 155 Ohio St.3d 389, 2018-Ohio-4391, ¶ 11; Ohio Bur. of Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 13. Appellate court review of a trial court's decision to dismiss a claim pursuant to Civ.R. 12(B)(6) is de novo. McKinley at ¶ 12. {¶ 14} In deciding a Civ.R. 12(B)(6) motion, a court may not consider factual allegations or evidence outside of the complaint. State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, ¶ 26; State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997); Loveland Edn. Assn. v. Loveland City School Dist Bd. of Edn., 58 Ohio St.2d 31, 32 (1979). Consequently, a defendant may only assert a statute-of-limitations defense through a Civ.R. 12(B)(6) motion—and a court may only grant such a motion—when the defense is apparent from the face of the complaint. Gore v. Mohamod, 10th Dist. No. 21AP-526, 2022-Ohio-2227, ¶ 14; Singleton v. Adjutant Gen. of Ohio, 10th Dist. No. 02AP-971, 2003- Ohio-1838, ¶ 18. To conclusively establish the statute-of-limitations defense, the complaint must show both: (1) the relevant statute of limitations, and (2) the absence of factors that would toll the statute of limitations or make it inapplicable. Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, ¶ 23 (10th Dist.); Singleton at ¶ 19. {¶ 15} In the case at bar, Strother did not contest that the two-year statute of limitations set forth in R.C. 2305.10(A) applied to his action against Ohio Bell. Under R.C. 2305.10(A), Strother's cause of action against Ohio Bell accrued "when the injury or loss to person or property occur[ed]." As we stated above, Strother alleged in his complaint that his injury occurred when he drove over a recessed utility hole cover "[o]n or about September 28, 2017 at approximately 1:37 PM." (Compl. at ¶ 8.) Consequently, the complaint establishes that the statute of limitations accrued on September 28, 2017, and it expired two years later, on September 28, 2019. No. 22AP-7 6 {¶ 16} To avoid operation of the statute-of-limitations defense, Strother asserted two exceptions to that defense in his memorandum contra to Ohio Bell's motion to dismiss. First, Strother claimed the benefit of the savings statute, and he presented affidavit testimony that he had voluntarily dismissed his initial action against Ohio Bell on January 24, 2020. Strother asserted, therefore, that he had one additional year from the date of dismissal to refile his action. Second, Strother testified to facts that he argued justified the application of the equitable tolling doctrine. {¶ 17} The trial court, however, could not consider Strother's arguments because they rested on factual allegations and evidence outside the complaint. As we stated above, a trial court's Civ.R. 12(B)(6) review cannot exceed the four corners of the complaint. Due to this rule, "when a complaint on its face is barred by a statute of limitation, [ ] it is the duty of the pleader to assert exceptions to the statute" in the complaint. Peterson v. Teodosio, 34 Ohio St.2d 161, 174 (1973). In other words, "where a statute of limitations problem is evident from the allegations in a complaint itself, the complaint in order to withstand a motion to dismiss must contain further allegations to suggest why the limitations bar does not apply." Gore, 10th Dist. No. 21AP-526, 2022-Ohio-2227, at ¶ 16; accord Vogel v. Huron Cty. Commrs., 6th Dist. No. H-92-048 (June 11, 1993) ("[W]here the complaint establishes a prima facie statute[-]of[-]limitations defense, then the plaintiff must bear the additional burden of pleading facts establishing an exception to the defense."). {¶ 18} The plaintiff's failure to meet its burden will result in dismissal. A trial court properly grants a Civ.R. 12(B)(6) motion to dismiss based on a facially apparent statute-of- limitations defense where the complaint contains no allegations supporting an exception to the defense. Gore at ¶ 11 (no allegations in the complaint supporting the application of the equitable estoppel doctrine); Omobien v. Flinn, 9th Dist. No. C.A. 29841, 2021-Ohio-2096, ¶ 8-11 (no allegations in the complaint supporting the application of the savings statute); Engler v. Adjutant Gen. of Ohio, 10th Dist. No. 17AP-814, 2018-Ohio-2273, ¶ 10-11 (no allegations in the complaint supporting the application of the equitable estoppel doctrine); Rankin v. Rosolowski, 8th Dist. No. 104079, 2016-Ohio-7490, ¶ 10 (no allegations in the complaint supporting the application of the savings statute); Brisk v. Draf Industries, Inc., 10th Dist. No. 11AP-233, 2012-Ohio-1311, ¶ 25 (no allegations in the complaint supporting No. 22AP-7 7 tolling due to the defendant's absence from the state); Kelley v. Stauffer, 10th Dist. No. 10AP-235, 2010-Ohio-4522, ¶ 13-15 (no allegations in the complaint to supporting tolling due to the defendant's absence from the state); Kennedy v. Heckard, 8th Dist. No. 80234, 2002-Ohio-6805, ¶ 11-12 (no allegations in the complaint supporting the application of the savings statute). {¶ 19} We recognize that a plaintiff does not generally bear the burden of pleading around defenses in its complaint. Savoy v. Univ. of Akron, 10th Dist. No. 11AP-183, 2012- Ohio-1962, ¶ 8. A plaintiff, however, has recourse if the factual allegations in the complaint establish a statute-of-limitations defense, but not an exception to that defense. A plaintiff may amend its complaint as a matter of course within 28 days after service of a motion to dismiss. Civ.R. 15(A). If necessary, a plaintiff may seek leave of court under Civ.R. 15(A) to amend the complaint, which a trial court should liberally grant to allow the plaintiff to properly assert an exception to a statute-of-limitation defense. Gore at ¶ 19; Vogel; accord Peterson, 34 Ohio St.2d at 175 (holding that the trial court erred in denying the plaintiff's motion to amend its complaint to add facts to establish an exception to a statute-of- limitations defense). {¶ 20} In Savoy, this court failed to appreciate the recourse Civ.R. 15(A) affords a plaintiff who does not anticipate a motion for dismissal based on the statute-of-limitations defense. Savoy filed a complaint that established, on its face, that his action was not filed within the two-year statute of limitations. The complaint contained no allegations regarding factors that would toll the statute of limitations or make it inapplicable. The trial court, therefore, granted the defendant's Civ.R. 12(B)(6) motion to dismiss the action. On appeal, the Savoy court reversed the trial court's judgment because, when Savoy responded to the motion to dismiss, he presented information indicating he filed his action within the one-year period of the savings statute. Id. at ¶ 9. The court reasoned that, "it is always difficult to fairly serve the interest of justice by reaching the substantial merits of the case when forcing a plaintiff to anticipate affirmative defenses for which a plaintiff may, in fact, have a sound rebuttal in the complaint." Id. {¶ 21} As the dissent in Savoy pointed out, after Savoy received the motion to dismiss, he had the option of amending his complaint to allege facts demonstrating an exception to the statute of limitations. Id. at ¶ 13. Although the defendant forced a No. 22AP-7 8 resolution of the statute-of-limitations defense early and, perhaps, unexpectedly, Savoy had a procedural mechanism, Civ.R. 15(A), through which to plead a factual rebuttal to the affirmative defense. Savoy, however, did not take advantage of his ability to amend. The interests of justice, therefore, did not weigh in Savoy's favor, defeating the rationale the Savoy court relied upon for its ruling. {¶ 22} The failure of the Savoy decision's rationale has particular importance because Savoy contravenes longstanding Supreme Court of Ohio precedent. As we have stated repeatedly in this decision, in deciding a Civ.R. 12(B)(6) motion, a court may not consider factual allegations or evidence outside of the complaint. Scott, 112 Ohio St.3d 324, 2006-Ohio-6573, at ¶ 26; Fuqua, 79 Ohio St.3d at 207; Loveland Edn. Assn., 58 Ohio St.2d at 32. The Savoy court held that factual allegations made in response to a Civ.R. 12(B)(6) motion to dismiss—but nowhere in the complaint—warranted denial of the motion. Because this holding hinges the ruling on a motion to dismiss on the factual allegations in a plaintiff's response, it violates with the well-settled rule prohibiting consideration of such extrinsic allegations. Moreover, Savoy conflicts with other precedent of this court that has held, as we stated above, that a trial court properly grants a Civ.R. 12(B)(6) motion to dismiss based on a facially apparent statute-of-limitations defense where the complaint contains no allegations supporting an exception to the defense. See Gore, 10th Dist. No. 21AP-526, 2022-Ohio-2227, at ¶ 11; Engler, 10th Dist. No. 17AP-814, 2018-Ohio-2273, at ¶ 10-11; Brisk, 10th Dist. No. 11AP-233, 2012-Ohio-1311, at ¶ 25; Kelley, 10th Dist. No. 10AP-235, 2010-Ohio-4522, at ¶ 13-15. We, consequently, must overrule Savoy. {¶ 23} Turning back to the case at bar, we find that Strother's complaint contains no allegations suggesting the application of any exception to the statute-of-limitations defense Ohio Bell raised in its motion to dismiss. There is no reference in the complaint to the prior action against Ohio Bell nor the drop box. Strother never amended his complaint to include such allegations. The trial court, therefore, erred in considering those allegations to decide Ohio Bell's motion to dismiss. The trial court should not have considered, much less determined, issues regarding the savings statute or equitable tolling because there are no allegations in the complaint relevant to those issues. {¶ 24} Nonetheless, this error does not require the reversal of the trial court's decision on the motion to dismiss. An appellate court should not reverse a correct judgment No. 22AP-7 9 because the trial court relied on an erroneous reason for its determination. Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 51. In other words, an appellate court will affirm a trial court's judgment if the court achieves the right legal result, even if the court's reasoning is wrong. Hassey v. Columbus, 10th Dist. No. 17AP- 726, 2018-Ohio-3958, ¶ 33. {¶ 25} With regard to the statute of limitations, the face of Strother's complaint reflects only that his action accrued on September 28, 2017, and the first page was time stamped "filed" on February 1, 2021. Over three years elapsed between those two dates. Applying the two-year statute of limitations set forth in R.C. 2305.10(A), a court can only conclude that Strother's action is time barred. Thus, the trial court properly granted Ohio Bell's Civ.R. 12(B)(6) motion to dismiss.1 {¶ 26} We next review the trial court's decision to grant the city's motion for summary judgment. A trial court must grant summary judgment under Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion when viewing the evidence most strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an independent review, without deference to the trial court's determination. Zurz v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.). {¶ 27} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party 1 In so ruling, we note that the city did not file a cross-appeal challenging the dismissal of its cross-claim against Ohio Bell. Consequently, our review of the trial court's judgment to grant the motion to dismiss does not include its decision to dismiss the city's cross-claim. We express no opinion regarding that decision. No. 22AP-7 10 must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. If the moving party meets its burden, then the nonmoving party has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293. {¶ 28} As we explained above, in its motion for summary judgment, the city conceded that Strother voluntarily dismissed his original action against the city on January 24, 2020, and thus, he had until January 25, 2021 to refile his action pursuant to the savings statute and Civ.R. 6(A). The city argued that Strother had not refiled his action timely. In response, Strother asserted that the trial court should apply the equitable tolling doctrine. {¶ 29} " 'The equitable tolling doctrine extends statutory deadlines in extraordinary circumstances for parties who were prevented from complying with them through no fault or lack of diligence of their own.' " In re Regency Village Certificate of Need Application, 10th Dist. No. 11AP-41, 2011-Ohio-5059, ¶ 36, quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir.2010). A litigant seeking equitable tolling must demonstrate that: (1) he has diligently pursued his rights, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at ¶ 37; Roach v. Vapor Station Columbus, Inc., 10th Dist. No. 21AP-511, 2022-Ohio-2106, ¶ 8. The diligence a litigant must exercise for equitable tolling purposes is reasonable diligence, not maximum feasible diligence. Holland v. Florida, 560 U.S. 631, 653 (2010). Generally, courts apply the equitable tolling doctrine sparingly and only in exceptional circumstances. Roach at ¶ 8; Regency Village at ¶ 36. Courts determine whether equitable tolling is appropriate on a case-by-case basis. Holland at 649-50; Regency Village at ¶ 36. {¶ 30} The trial court refused to apply equitable tolling because it found that Strother did not prove that he diligently pursued his rights. According to the trial court, Strother was less than diligent because he waited until the last day before the expiration of the statute of limitations to file his complaint. We thus begin by considering whether Strother acted diligently by placing his complaint in the clerk's drop box on January 25, 2021, the last day on which he could file his complaint within the statute of limitations. No. 22AP-7 11 {¶ 31} Pursuant to Civ.R. 3(A), "[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * ." Generally, a party must file a document "by filing [it] with the clerk of court * ." Civ.R. 5(E). "A document is 'filed' when it is deposited properly with the clerk of courts." Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, ¶ 7, vacated in part on reconsideration on other grounds, 126 Ohio St.3d 1227, 2010-Ohio-3754. Accomplishing the "filing" of a document does not depend on the clerk's performance of its duties, such as the duty to time stamp or docket the complaint. Id. "[A] party 'files' by depositing a document with the clerk of court, and then the clerk's duty is to certify the act of filing. In short, the time or date stamp does not cause the filing; the filing causes the certification." Id. {¶ 32} Here, the municipal court had authorized the clerk to "receive any civil filing[s] * * by way of a 'drop box' installed on the premises of the Franklin County Municipal Court." Admin. Order No. 19-2020; accord Admin. Order No. 26-2020 (order issued Nov. 25, 2020 that, in part, reiterated the provision permitting the clerk to install a drop box for the receipt of civil filings). According to the affidavit testimony of Strother's attorney, he placed the complaint in that drop box on January 25, 2021. A reasonable finder of fact could interpret this evidence to show that, on January 25, 2021, Strother deposited his complaint with the clerk via a method endorsed by the municipal court for the receipt of civil filings. A reasonable finder of fact, therefore, could conclude that Strother filed his complaint on January 25, 2021. While the clerk did not time stamp the complaint until February 1, 2021, that time stamp is merely evidence of a date of filing that contradicts Strother's evidence. See Rouse at ¶ 8, quoting King v. Penn, 43 Ohio St. 57, 61 (1885) (holding that the endorsement on the complaint of " 'the fact and date of filing is but evidence of such filing' "). {¶ 33} If Strother timely filed his complaint, then he diligently pursued his rights. Given that a question of fact exists regarding when Strother filed his complaint, we conclude that the trial court erred in determining Strother did not act diligently. Of course, if Strother timely filed his complaint, he need not resort to reliance on the equitable tolling doctrine at all, so his diligence or lack thereof becomes moot. No. 22AP-7 12 {¶ 34} Alternatively, we conclude that "delay between a document's arriving at a * * * drop-box, designated for court documents, and the clerk's docketing the document is not attributable to the filing party." Ross v. McKee, 465 Fed.Appx. 469, 474 (6th Cir.2012). Under Strother's version of facts, he placed his complaint in the drop box within the statute of limitations. The clerk, therefore, bears responsibility for the week delay between her receipt of the complaint and the docketing and time-stamping of the complaint. The diligence prong of the equitable tolling doctrine "covers those affairs within the litigant's control; the extraordinary-circumstances prong, by contrast, is meant to cover matters outside its control." Menominee Indian Tribe v. United States, 577 U.S. 250, 257 (2016). Construing the evidence most strongly in Strother's favor, it was the extraordinary circumstances outside of his control, not a lack of diligence over matters within his control, which resulted in the February 1, 2021 time stamp on the complaint. The trial court, therefore, erred in granting the city summary judgment. {¶ 35} In sum, we overrule Strother's assignment of error with regard to Ohio Bell because we conclude that the trial court did not err in granting Ohio Bell's Civ.R. 12(B)(6) motion to dismiss. We sustain Strother's assignment of error with regard to the city, with the caveat that we find that the trial court committed a legal error, not an abuse of discretion, in granting the city summary judgment. {¶ 36} For the foregoing reasons, we overrule in part and sustain in part the sole assignment of error. We affirm in part and reverse in part the judgment of the Franklin County Municipal Court, and we remand this matter to that court for further proceedings consistent with law and this decision. Judgment affirmed in part and reversed in part; cause remanded. SADLER and MENTEL, JJ., concur.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484683/	[Cite as Keller v. Keller, 2022-Ohio-4098.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Melissa Keller (n.k.a. Miller), : Plaintiff-Appellee, : No. 22AP-11 v. : (C.P.C. No. 15DR-3326) Brandon Keller, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on November 17, 2022 On brief: Ryan Legal Group and Corrine N. Ryan, for appellee. Argued: Corinne N. Ryan. On brief: Trolinger Law Offices, LLC and Michelle J. Meis, for appellant. Argued: Michelle J. Meis. APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations BEATTY BLUNT, J. {¶ 1} Defendant-appellant, Brandon Keller ("Brandon"), appeals the December 6, 2021 judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, overruling his objections to the July 1, 2021 magistrate's decision in this case. That decision sustained in part Brandon's motion to modify shared parenting plan and also sustained plaintiff-appellee, Melissa Keller's ("Melissa"), motion to modify child support. {¶ 2} The facts and procedures below are not in dispute. The parties were divorced in an agreed judgment on June 28, 2017 and have two minor children: A.K. (d.o.b. December 5, 2007) and H.K. (d.o.b. December 15, 2011). As part of their divorce, the parties agreed to and the court adopted a shared parenting plan. Brandon was the named parent for school placement purposes, his child support obligation was deviated down to $0.00 per month, and both Brandon and Melissa were granted liberal parenting time. No. 22AP-11 2 {¶ 3} When the divorce was granted, Brandon lived in Gahanna and Melissa lived in Pickerington. But in January 2018, Brandon's employer closed, and he lost his job. He attempted to find employment in Franklin County but was unable to do so, and as a result in August 2018 he took a job at Walnut Hills High School in Cincinnati, Ohio and moved to Hamilton County. Also during 2018, Melissa remarried and moved to Canal Winchester, Ohio. On November 8, 2018, an agreed judgment entry was filed redesignating Melissa as the named parent for school placement. Both children have attended school in Canal Winchester since the start of the 2018-2019 school year. {¶ 4} Brandon filed a motion to modify the shared parenting plan on February 27, 2020, shortly before both children began remote schooling resulting from the COVID-19 pandemic. He sought to be redesignated the named parent for school placement purposes. Melissa filed her motion to modify child support on August 21, 2000. Neither party sought to terminate shared parenting. {¶ 5} Magistrate Elliot conducted a three-day trial and issued a decision on July 1, 2021, in which he determined that: (1) it was in the best interest of the minor children that Melissa remain the named parent for school placement; (2) it was in the best interest of the minor children that Brandon should exercise parenting time in accordance with Franklin County Loc.R. 27.1 Option D (for parents traveling under 90 miles one way) with the exception that Brandon's Wednesday evening parenting time would be exercised in the Central Ohio area, and also that summer parenting time would follow a two week/one week rotation in Brandon's favor; (3) it was in the best interest of the children to alternate weekends between Melissa and Brandon; and (4) no deviation in child support was warranted, and therefore Brandon would be responsible for child support in the amount of $1,003.29 per month plus processing and $46.85 per month cash medical support plus processing. Brandon filed timely objections, arguing that the magistrate erred by improperly considering the factors outlined in R.C. 3109.051(D) in regards to parenting time, by not adopting the recommendation of Guardian Ad Litem ("GAL") to appoint him as the school placement parent for the 2022-2023 school year, by awarding him less parenting time contrary to the best interest of the children, and by declining to deviate his child support obligation downward. {¶ 6} The trial court examined and overruled each of Brandon's four objections: No. 22AP-11 3 [I.] Defendant's first objection, however, fails in that even removing the O.R.C. §3109.051(D) factors does not equalize the factors as Defendant claims. Even if the Court ignores the similarity between the factors in O.R.C. §3109.051(D) and O.R.C. §3109.04(F)(1), the latter factors alone would give ample support for the Magistrate's Decision. Ultimately, the Court agrees with the Magistrate that the factors under O.R.C. §3109.04(F)(1) and the best interest of the children compel the issuance of a shared parenting plan with Mother as residential parent for school placement purposes and for a parenting time schedule as modified by the Magistrate. Thus, Defendant's first and third objections are overruled. [II.] Defendant's second objection fails for a similar reason. Defendant is correct that the recommendation of the Guardian Ad Litem is specifically articulated as a factor to consider under O.R.C. §3109.04(F)(2)(e). But it is one factor of several. The Magistrate carefully considered the other relevant factors. As the Magistrate said, "[i]n a vacuum, where academic opportunity was the only factor, [Defendant] would have a strong case to be named school placement parent." Decision, page 14. But the other evidence and other factors, when considered, pointed to keeping Plaintiff as the school placement parent. "The children are thriving in their current schools and home environment. Both children are doing well academically and socially. Both children are close to their stepbrother, Tucker. Both children have many friends in Canal Winchester and are involved in activities in Canal Winchester." Id. The Court finds no error in this analysis. Defendant's second objection is overruled. [III.] Similarly, the Court finds no error in the Magistrate's Decision regarding child support. The Magistrate correctly found a substantial change in circumstance to require a modification of the child support amount. The Magistrate, again, correctly found there was insufficient evidence to support a deviation of the child support amount. That conclusion is amply supported by the evidence. Defendant's fourth objection is overruled. (Dec. 6, 2021 Jgmt. Entry at 4.) Brandon timely appealed, and has restated each of his objections to the magistrate's decision as assignments of error for this Court's consideration: First Assignment of Error: The trial court erred as a matter of law in applying the factors outlined in R.C. 3109.051(D) as said factors are inapplicable in instances of shared parenting. No. 22AP-11 4 Second Assignment of Error: The trial court erred and abused its discretion by not adopting the recommendation of the Guardian Ad Litem to designate father as school placement parent as such order was not in the best interests of the minor children. Third Assignment of Error: The trial court erred and abused its discretion by awarding father less parenting time as such order was not in the best interests of the minor children. Fourth Assignment of Error: The trial court erred and abused its discretion by failing to deviate father's child support obligation. In general, this court reviews the issues on appeal of a domestic relations case for abuse of discretion. See, e.g., Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). See also Booth v. Booth, 44 Ohio St.3d 142, 144 (1989) (holding that allocation of parental rights and responsibilities is appropriately viewed under an abuse of discretion standard). {¶ 7} In his first assignment of error, Brandon argues that in Bratz v. Bratz, 85 Ohio St.3d 40, 44 (1999), the Supreme Court of Ohio held "modification of [parenting time] rights is governed by R.C. 3109.051, and that the specific rules for determining when a court may modify a custody decree as set forth in R.C. 3109.04 are not equally applicable to modification of [parenting time] rights." He argues that the magistrate used both sets of factors in reaching the decision to modify the shared parenting decree, and that although the trial court "agree[d] with [Brandon] that the factors outlined in O.R.C. §3109.051(D) are not applicable to this situation," it nevertheless overruled his objection to the decision. (Dec. 6, 2021 Jgmt. Entry at 3.) {¶ 8} For this reason, Brandon asserts that his first assignment of error should be reviewed de novo rather than for an abuse of discretion. He contends that in making its determinations that the trial court must follow statutory guidelines and procedures, that the court made findings under the wrong statute that affected its judgment in the allocation of parenting time under the shared parenting plan, which he contends is a pure error of law reviewed de novo. See Picciano v. Lowers, 4th Dist. No. 08CA38, 2009-Ohio-3780, ¶ 19, citing Sanders–Bechtol v. Bechtol, 3d. Dist. No. 5-08-08, 2009-Ohio-186, ¶ 10 ("Although the trial court found that R.C. 3109.04(E)(2)(b) applied, that determination is not controlling. Rather, the question of which statutory standard applies is a question of law No. 22AP-11 5 that we review de novo."). He argues that under a de novo standard of review, his objection to the magistrate's decision should have been sustained. {¶ 9} We agree with both Brandon and the trial court that under Bratz, R.C. 3109.051(D) does not apply to this case. But it is worth noting that the trial court also concluded that "[e]ven if the Court ignores the similarity between the factors in O.R.C. §3109.051(D) and O.R.C. §3109.04(F)(1), the latter factors alone would give ample support for the Magistrate's Decision." (Dec. 6, 2021 Jgmt. Entry at 4.) It is this conclusion that we review de novo. {¶ 10} Initially, it is worth observing that under the plain language of R.C. 3109.04(F), "[i]n determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to [the statutory factors set forth in this subsection.]." (Emphasis added.) R.C. 3109.04(F). Accordingly, to prevail on this assignment of error, it must be shown that the magistrate's consideration of the R.C. 3109.051(D) was improper because those factors were not relevant to the trial court's decision. {¶ 11} On review, we observe that for most of the factors under R.C. 3109.051(D), the magistrate did not conduct a separate analysis, but simply referred to "the above findings and discussion related to R.C. §3109.04." (Mag's Decision at 11-13.) (addressing factors under R.C. 3109.051(D)(1), (2), (5), (6), (9), (10), (13), and (14)). For other factors, the magistrate simply recapitulated undisputed facts about the case. See id. (addressing factors under R.C. 3109.051(D)(4), (7), (8), and (15), and stating findings regarding the ages of the minor children, that neither child had any health or safety concerns, that the children were close to their stepbrother but that their stepbrother does not reside with them, and a general reference to the magistrate's findings of fact). And, the magistrate observed that most of the remaining factors were "not applicable to this case." See id. (addressing factors under R.C. 3109.051(D)(12) and (15)). {¶ 12} The only factor under R.C. 3109.051(D) that received any significant attention from the magistrate was (D)(3), regarding "[t]he child's and parents' available time, including, but not limited to, each parent's employment schedule, the child's school No. 22AP-11 6 schedule, and the child's and parents' holiday and vacation schedule." With respect to that specific factor, the magistrate found: Father is a teacher at Walnut Hills High School. Father's work hours would be similar to [A.K]'s school schedule. Father may require minimal before or after school care for [H.K.], depending on his class schedule. Mother has some flexibility in her employment hours. She worked partly from home during COVID. Mother gets home from work between 3:30 and 4:00 p.m., around the time [H.K.] gets off the bus. Mother does not need childcare. Father has a group of friends in Columbus with whom he regularly gets together to play Dungeons and Dragons. The group typically meets twice per week. The group meets at a restaurant on Tuesday evenings. The children occasionally attend this session with Father. The group also meets on Sundays for four to five hours (this meeting has been virtual during COVID). The children are often with Father during the weekend session. Prior to COVID, the weekend session was in- person in Westerville, Ohio. Id. at 11. We conclude that the magistrate's notice of the facts here did not prejudice Brandon in any way, as these same facts could have been presented and considered by the magistrate under R.C. 3109.04(F). Moreover, although the R.C. 3109.051(D) factors are not controlling in shared parenting cases under R.C. 3109.04 pursuant to Bratz, we conclude that it was both acceptable and appropriate for the magistrate to observe both that Brandon might require limited child care and he spends a significant but specific amount of time in Columbus while still living in Cincinnati. We do not believe that it was error for the trial court to evaluate these relevant considerations. And based on the totality of the magistrate's factfinding, we reach the same conclusion as the trial court regarding modification of the shared parenting decree. Accordingly, Brandon's first assignment of error is overruled. {¶ 13} In his second assignment of error, Brandon argues that the magistrate erred by not adopting the recommendation of the GAL for placement. The GAL recommended that Melissa remain the school placement parent through the end of the 2021-2022 school year, but that Brandon should become the school placement parent beginning in the 2022- 2023 school year—largely because of Walnut Hills High School's academic prestige. The No. 22AP-11 7 GAL suggested that maintaining the current placement until the 2022-2023 school year would allow H.K. more time to grow socially and obtain more self-confidence, but would still allow A.K. to begin high school at Walnut Hills as a freshman. {¶ 14} Despite the GAL's recommendation, the magistrate determined that while the academic opportunity presented by Walnut Hills "is the strongest evidence in favor of naming [Brandon] as school placement parent," the decision could not be made "[i]n a vacuum, where academic opportunity was the only factor." The magistrate concluded that both children were "thriving" in their current schools and home environment, both were doing well academically and socially, that both children were close to their stepbrother, and that both children have many friends and are involved in activities in Canal Winchester. It accordingly rejected the GAL's recommendation and maintained the children's school placement, a decision with which the trial court agreed. See Jgmt. Entry at 4 (quoting Mag's Decision at 14.). {¶ 15} On appeal to this court, Brandon simply contends that the academic benefits of Walnut Hills High School greatly outweigh those of the children's current school district. But even assuming that claim is correct, the magistrate's conclusion is demonstrably based in its careful consideration of all the facts relevant to the children's best interests for school placement. The trial court's concurrence in the magistrate's conclusion and overruling of Brandon's objection are not an abuse of its discretion. {¶ 16} In his third assignment of error, Brandon contends that the trial court abused its discretion by awarding him less parenting time than he was currently exercising and less parenting time than recommended by the GAL. The GAL testified that maximum time with each parent and at each household was in the children's best interests, but the magistrate concluded otherwise: After a review of the testimony and evidence, and weighing the credibility of the witnesses and the evidence, and considering the appropriate statutory factors, the Magistrate finds that it is in the best interest of the minor children that [Brandon] have parenting time with the children pursuant to Franklin County Local Rule 27.1, Option D, for parents traveling under 90 miles one way (and as modified herein). Since [Brandon] moved to Cincinnati, [Brandon] has had the children most weekends, except that [Melissa] had the children one weekend per month. During COVID, the parties exercised No. 22AP-11 8 a more equal parenting time schedule. Given the distance between Canal Winchester and Cincinnati, an equal parenting time schedule will not be possible while the children are "in- school." [Brandon] would like the non-residential parent to have three weekends per month. [Melissa] would like alternate weekends so that the children can maximize time with their friends and stepbrother. The children do have many friends in Canal Winchester and are involved in activities there. It is also noted that [Brandon] spends four to five hours on Sundays playing Dungeons and Dragons with his friends. While the children are often in [Brandon's] presence during that time, [Brandon's] actual interaction with the children during that time is less clear. The Magistrate finds that it is in the best interest of the children to alternate weekends between [Melissa] and [Brandon]. This schedule will allow the children to spend time during non- school days with both parents, reduce the travel time for the children between Canal Winchester and Cincinnati, and allow time for the children to spend time with friends and in their activities during some weekends in Canal Winchester. The Magistrate finds that it is in the best interest of the children to continue to spend significant quality time with [Brandon]. In order to give [Brandon] additional time with the children, the Magistrate finds that it is in the best interest of the children for the parties to exercise a rotating parenting time schedule during the summer, such that [Brandon] has the children for two weeks and [Melissa] has the children for one week. (Mag's Decision at 15-16.) On review of Brandon's objections, the trial court concluded that it "agree[d] with a parenting time schedule as modified by the Magistrate." (Jgmt. Entry at 4.) {¶ 17} Brandon contends that both the magistrate and the trial court erred because neither articulated why the parenting time schedule recommended by the GAL was not in the best interests of the minor children. But neither the magistrate nor the trial court was obliged to do so—as we have previously observed, "the GAL's recommendation does not bind the trial court." Galloway v. Khan, 10th Dist. No. 06AP-140, 2006-Ohio-6637, ¶ 70. Appellate courts across the state have agreed with this approach. See, e.g., Ferrell v. Ferrell, 7th Dist. No. 01 AP 0763, 2002-Ohio-3019, ¶ 43 (citations omitted) (holding that the "role in any proceeding is to investigate the child's situation and make a recommendation to the court that he or she believes is in the child's best interest," but that No. 22AP-11 9 "the ultimate decision is for the trial judge and not a representative of the children"). The trial court was not required to specifically address the GAL's parenting time recommendation, let alone refute it. Moreover, Brandon's claim that the trial court abused its discretion as to parenting time must be rejected, as both the magistrate's and the court's careful decision-making is completely justified within the record. Accordingly, Brandon's third assignment of error is overruled. {¶ 18} Finally, Brandon argues that the trial court abused its discretion by failing to adopt a deviation of his child support obligation. But both the magistrate's decision and the trial court's judgment entry overruling Brandon's objections demonstrate careful consideration of each of the factors stated in R.C. 3119.23 and R.C. 3119.24. The only evidence justifying a deviation was Brandon's testimony, pursuant to R.C. 3119.23(Q), that he had student loan payments, that a mandatory retirement contribution is taken out of his paycheck, and his claim he would need to get a second job if he was ordered to pay [guideline] child support. See Mag's Decision, 19-23 (noting "no evidence provided" as to 16 of the 20 mandated statutory factors). On appeal, Brandon contends that guideline child support could possibly result in him defaulting on his student loans—a claim that is at best speculative. We observe that Brandon incurred a significant portion of his student loan debt after the divorce was granted, and that Melissa was ordered by the trial court to pay Brandon approximately $8,257.00 (at a rate of $1,000.00 per month) "as her portion of the student loan payments owed by her as of March 17, 2021." Id. at 31. {¶ 19} Pursuant to R.C. 3119.03, the guideline amount of child support, "as calculated pursuant to the basic child support schedule and applicable worksheet * * * is rebuttably presumed to be the correct amount of child support due." The order of support here was simply for the guideline amount, not for any deviation upward. Brandon has not identified any specific evidence overcoming this rebuttable presumption, and on review we conclude that there is no evidence in the record upon which we could find that the trial court erred by adopting the magistrate's refusal to deviate the support amount downward. Accordingly, Brandon's fourth assignment of error must be overruled. {¶ 20} For all these reasons, appellant's four assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas, Division of Domestic No. 22AP-11 10 Relations overruling objections and adopting the magistrate's recommendation in this cause is affirmed. Judgment affirmed. MENTEL and MCGRATH, JJ., concur.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484688/	[Cite as Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2022-Ohio-4100.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Columbus City Schools Board : of Education et al., : Appellants-Appellees, : No. 22AP-33 v. (B.T.A. No. 2019-72) : Franklin County Board of Revision et al., (REGULAR CALENDAR) : Appellees-Appellees, : CCA Development, LLC, : Appellee-Appellant. : D E C I S I O N Rendered on November 17, 2022 On brief: Rich & Gillis Law Group, LLC, Mark H. Gillis, and Kelley A. Gorry, for appellee Columbus City School District Board of Education. Argued: Kelley A. Gorry. On brief: Plank Law Firm, LPA, and David Watkins, for appellant CCA Development, LLC. Argued: David Watkins. APPEAL from the Ohio Board of Tax Appeals DORRIAN, J. {¶ 1} Appellant, CCA Development, LLC ("CCA"), appeals from a decision and order ("decision") of the Ohio Board of Tax Appeals ("BTA") regarding the value of six properties in Franklin County owned by CCA for tax years 2017 and 2018. For the following reasons, we affirm. No. 22AP-33 2 I. Facts and Procedural History {¶ 2} On March 18, 2018, appellee, the Columbus City Schools Board of Education ("BOE"), filed a complaint before the Franklin County Board of Revision ("BOR") seeking increases for tax years 2017 and 2018 on the value of six properties owned by CCA in Franklin County on grounds that the properties were sold in an arm's-length transaction on March 6, 2015 for $1,850,000. The principal use of the properties was alleged to be parking garage, structures, and lots. On May 25, 2018, CCA filed a countercomplaint objecting to the increases being sought. The properties were listed by the BOE as follows: 010-009459-00 address 135 West Spruce Street; 010-010155-00 address 135 West Spruce Street; 010-039814-00 address 135 West Spruce Street; 010-066960-00 address West Spruce Street; 010-255957-00 address Jetway Boulevard; and 010-270790-00 address West Spruce Street. The five properties located on West Spruce Street are collectively referred to as the Arena District properties. The property located on Jetway Boulevard is referred to as the Jetway property. A seventh property, referred to as the Masonry property, (010-255956-00), located adjacent to the Jetway property, was also sold in the same arm's- length transaction. However, the Masonry property was not included in the complaint or countercomplaint before the BOR. The BOE's opinion of true value as listed in the original complaint, CCA's opinion of true value as listed in the original countercomplaint, and the Franklin County Auditor's assessment of true value1 while the complaint and countercomplaint were pending were as follows: 1 Article XII, Section 2 of the Ohio Constitution provides that "[l]and and improvements thereon shall be taxed by uniform rule according to value." County auditors are required to appraise real property "at its true value in money." R.C. 5713.01(B). R.C. 5713.03 governs the determination of the true value of real property. Gallick v. Franklin Cty. Bd. of Revision, 10th Dist. No. 15AP-182, 2018-Ohio-818, ¶ 26. " '[T]he value or true value in money of real property' refers to 'the amount for which that property would sell on the open market by a willing seller to a willing buyer * * , i.e., the sales price.' " Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision, 150 Ohio St.3d 527, 2017-Ohio-4415, ¶ 9, quoting State ex rel. Park Invest. Co. v. Bd. of Tax Appeals, 175 Ohio St. 410, 412 (1964). Generally, Ohio determines real property's true value "by determining, as a first step, the property's fair market value at its highest and best use." Johnson v. McClain, 164 Ohio St.3d 379, 2021-Ohio- 1664, ¶ 7. R.C. 5713.03 states in relevant part: "In determining the true value of any tract, lot, or parcel of real estate under this section, if such tract, lot, or parcel has been the subject of an arm’s length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor may consider the sale price of such tract, lot, or parcel to be the true value for taxation purposes." No. 22AP-33 3 Parcel Number and Opinion of True True Value per Auditor2 when Opinion of True Address Value per BOE complaint and countercomplaint Value per CCA were pending as of Sept. 13, 2018 010-009459-00 215,600 44,3003 125,200 135 W. Spruce St. 010-010155-00 110,200 64,000 64,000 135 W. Spruce St. 010-039814-00 71,800 41,800 41,800 135 W. Spruce St. 010-066960-00 89,600 52,100 52,100 W. Spruce St. 010-255957-00 1,343,000 780,000 780,000 Jetway Blvd. 010-270790-00 19,800 11,200 11,200 W. Spruce St. Totals 1,850,000 1,074,300 1,074,300 (BOE Compl. at 2-4.) {¶ 3} The BOR held a hearing on October 3, 2018 then continued until December 11, 2018. At the hearing, the BOE presented the March 4, 2015 Real Property Conveyance Fee Statement of Value and Receipt reflecting a total sale price of $1,850,000 for all six properties and the March 6, 2015 General Warranty Deed reflecting the transfer of the six properties from Midwest Investment Group, LLC to CCA. {¶ 4} At the BOR hearing, CCA presented the testimony of Samuel D. Koon, a real estate appraiser,4 as well as Koon's written appraisal dated November 21, 2018. The 2In the record, there is a BOR decision dated July 11, 2016 which indicates that based on evidence the BOR received at the hearing on June 28, 2016 it determined the market values of the properties for tax years beginning 2015 were as follows: 010-009459-00 $211,000; 010-010155-00 $771,500; 010-039814-00 $41,800; 010-066960-00 $120,200; 010-255957-00 $780,000; 010-270790-00 $25,800. 3At some point, the true value of parcel 010-009459-00 was listed as $125,200. However, in the record there is a Corrected Letter from the BOR which indicates 010-009459-00 as of January 1, 2018 has "no value change" and is $44,300. (Emphasis omitted.) (Dec. 14, 2018 Corrected Letter.) 4 Upon appeal of a decision of a BOR to the BTA, R.C. 5717.01 requires the BOR to "certify to the [BTA] a transcript of the record of the proceedings of the county [BOR] pertaining to the original complaint, and all evidence offered in connection therewith." In the case before us, there was no objection or allegation before the BTA that the BOR did not comply with R.C. 5717.01. Upon appeal of a decision of the BTA to a court of appeals, R.C. 5717.04 requires the BTA "upon written demand filed by an appellant * * [to] file with the court to which the appeal is being taken a certified transcript of the record of the proceedings of the [BTA] pertaining to the decision complained of and the evidence considered by the [BTA] in making such decision." Although, in the case before us, there is no objection or allegation that the BTA did not comply with R.C. 5717.04, we sua sponte observe that the record certified to us from the BTA contains an audio recording of the BOR hearing— which includes Koon's oral testimony—but no written transcript of the BOR hearing. At oral argument, upon inquiry of the court, CCA's counsel indicated he did not intend to provide the court with a written transcript. No. 22AP-33 4 appraisal indicates Koon visited the site on November 10, 2017. He applied a sales comparison approach to value because the land was vacant, unimproved, and not an income-producing property. In applying the sales comparison approach, Koon looked at six based parcels which he determined to be comparable, some of which were recently sold but others were just listed. Koon also looked at a listing for the sale of the Jetway and Masonry properties which were being offered for sale together. He did not take into App.R. 9(B) states in relevant part: [1] (1) * * * it is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App.R. 9(B)(6)[;] * * * [2] (3) [t]he appellant shall order the transcript in writing and shall file a copy of the transcript order with the clerk of the trial court[;] * * * [and 3] (6) [a] transcript of proceedings under this rule shall be in the [form outlined below]. (Emphasis added.) It is not clear, however, that App.R. 9 applies to appeals to courts of appeals from the BTA as App.R. 1(B) states that "[p]rocedure in appeals to courts of appeals from the [BTA] shall be as provided by law, except that App.R. 13 to 33 shall be applicable to those appeals." Notwithstanding the lack of reference to App.R. 9 in App.R. 1(B), as noted in Yim v. Cuyahoga Cty. Bd. of Revision, 8th Dist. No. 109470, 2020-Ohio- 6742, the Eighth District Court of Appeals has applied App.R. 9 in appeals to the Eighth District from the BTA. Yim held "[w]e first observe that the statutory transcript before the BTA includes an audio disc of the hearing before the BOR. App.R. 9(B)(1) and (6) require the BOR hearing audios to be transcribed, but appellants did not have the recording transcribed to be included as part of the record on appeal. See Schwartz v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 106659, 2018-Ohio-4712, ¶ 38, fn. 3. As a result, we rely on the BTA's account of what transpired at the BOR hearing in its decision." Id. at ¶ 4. We are inclined as well to apply the requirements of App.R. 9(B)(1), (3) and (6) in appeals to the Tenth District from the BTA and not to consider the audio transcript of the BOR hearing. Nevertheless, even if we did not apply App.R. 9, we still would not consider the audio transcript of the BOR hearing because CCA and the BOE did not comply with App.R. 16(A)(3) which requires that briefs include "[a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected." (Emphasis added.) At page eight of its merit brief, CCA cites to the hour-minute location in the audio recording where the BOE's presentation of evidence began and where Koon's testimony began, but CCA's brief and reply brief contain no specific references to support either first-hand knowledge of the March 2015 sale of the properties, some involvement in the transaction, or an explanation of who the owner's representative was with whom Koon consulted and the extent of first-hand knowledge or involvement the representative had in the March 2015 sale, and more specifically in the allocation of $90,000 to the Jetway property. CCA does not point to any reference in the audio recording of how Koon "reportedly" became aware that the sale allocation did not reflect the true value. In its merit brief, the BOE merely states "[s]ee BOR Hearing Record." (BOE's Brief at 5.) It is clear that App.R. 16 applies to appeals to courts of appeals from the BTA. See App.R. 1(B) infra. Furthermore, "[t]he burden of affirmatively demonstrating error on appeal rests with the [appellant]." (Quotations and citations omitted.) Groveport Madison Local Schs. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 10th Dist. No. 17AP-693, 2018-Ohio-4620, ¶ 24. "It is not the duty of this court to search the record for evidence to support an appellant's argument as to alleged error." (Quotations and citation omitted.) Id. For these reasons, we will not consider the audio transcript of the BOR hearing. No. 22AP-33 5 consideration the March 2015 sale of the Arena District and Jetway properties because based on information he reportedly received from an owners representative, he did not consider it to be pertinent to the analysis. Ultimately, Koon opined the market value of the Jetway property as of January 1, 2017 was $275,000 (5 acres at $55,000 per acre). {¶ 5} At the BOR hearing, CCA amended its countercomplaint and withdrew its objections to the BOE's valuation of all the Arena District properties but not the Jetway property. CCA also amended its opinion of true value for the Jetway property from $780,000 to $275,000. {¶ 6} The BOR rendered a decision on December 13, 2018 based on evidence it received at hearing on December 11, 2018 and determined that the new market values of the properties for tax years 2017 and 2018 were as follows: • 010-009459-00 BOR increased value from $125,200 to $215,600 • 010-010155-00 BOR increased value from $64,000 to $110,200 • 010-039814-00 BOR kept value remaining at $71,800 • 010-066960-00 BOR increased value from $52,100 to $89,600 • 010-255957-00 BOR decreased value from $780,000 to $275,000 • 010-270790-00 BOR increased value from $11,200 to $19,800 {¶ 7} The BOE appealed to the BTA the BOR's valuation and listed on its notice of appeal the Arena District properties and the Jetway property and opined that the value of the properties should be as follows: • 010-009459-00 $215,600 (same as BOR valuation) • 010-010155-00 $110,200 (same as BOR valuation) • 010-039814-00 $71,800 (same as BOR valuation) • 010-066960-00 $89,600 (same as BOR valuation) • 010-255957-00 $1,343,000 (higher than BOR valuation) • 010-270790-00 $19,800 (same as BOR valuation) {¶ 8} The BOE indicated it would support its opinion of market value with the statutory transcript from the BOR and that "[a]dditional evidence may be submitted at the hearing." (BTA Jan. 11, 2019 Notice of Appeal to BTA.) The BTA set the case for hearing on August 6, 2019. No. 22AP-33 6 {¶ 9} The BTA set June 10, 2019 as the cutoff date for witness list and evidence. CCA disclosed evidence as found in the statutory transcript and potential witnesses as Koon, Aaron J. Duffy, and Patrick Emery from Samuel D. Koon & Associates. The BOE, however, filed its exhibits on August 5, 2019 at 3:00 p.m., less than 24 hours prior to the hearing. The BOE disclosed as evidence: (1) a chart titled "actual sale allocation,"5 (2) real estate purchase contract, (3) settlement statement of the sale of the 7 properties dated March 3, 2015, and (4) auditor's print out for the Masonry property, parcel 010-255957- 00. Ultimately, over the objection of CCA, the real estate purchase contract and the settlement statement were admitted into evidence by the BTA. CCA did not present Koon, Duffy, Emery, or any other witness at the hearing. {¶ 10} Relevant here, Article I of the real estate purchase contract listed the purchase price for all seven properties, the Arena District, Jetway and Masonry properties, as $2,450,000. Article I indicated: The Purchase Price shall be allocated as follows (i) $1,760,000.00 for the 039814 Property, 010155 Property, 066960 Property, 135 Spruce Property [010-009459-00] and 270790 property and (ii) $690,000.00 for the 255957 Property and Masonry Property, of which $90,000.00 shall be allocated to the 255957 property and $600,000.00 shall be allocated to the Masonry property. {¶ 11} Attorney Examiner Temeka Higgins ("AE") conducted the hearing for the BTA. At the outset of the hearing, CCA's counsel objected to the admission of the BOE's exhibits as they were: (1) untimely, (2) not authenticated, although provided by CCA to BOE pursuant to a discovery request, and (3) hearsay. BOE's counsel responded that although it was not an excuse, she was not able to keep up with her workload and she looked at the file for this case for the first time the day prior to the hearing. Notwithstanding, BOE's counsel argued there was no prejudice to CCA from the late disclosure as the purchase contract and the settlement statement had been provided to the BOE from CCA pursuant to discovery. 5The chart titled "actual sale allocation" has five columns: parcel no., contractual allocation, original value, FirstCal percentage, and allocation. This document is not signed or certified and was prepared by BOE's counsel pursuant to her calculations according to FirstCal Indus. 2 Acquisitions, L.L.C. v. Franklin Cty. Bd. of Revision, 125 Ohio St.3d 485, 2010-Ohio-1921. No. 22AP-33 7 {¶ 12} Pursuant to what was reflected in the purchase contract and the settlement statement, the BOE argued that the BTA should allocate $1,760,000 to the Arena District properties, $90,000 to the Jetway property, and $600,000 to the Masonry property. The BOE then argued the $1,760,000 total for the Arena District properties should be allocated pursuant to FirstCal Indus. 2 Acquisitions, L.L.C. v. Franklin Cty. Bd. of Revision, 125 Ohio St.3d 485, 2010-Ohio-1921,6 and indicated the BOE's FirstCal allocations are reflected in the chart titled "actual sale allocation." Finally, the BOE acknowledged that CCA had presented the Koon appraisal before the BOR and that Koon's opinion of value for the Jetway property was much higher at $275,000. The BOE objected however to the Koon opinion as there was no testimony of a witness with personal knowledge of the sale. The BOE also objected that there had been no other evidence of value presented in the form of an appraisal to rebut the sale price as to the Arena District properties. {¶ 13} CCA then indicated it would stand on the evidence that was already in the record, including the Koon appraisal. CCA's counsel also renewed his objection to BOE's "evidence submitted or, quote unquote, evidence submitted today as being highly damaging to us and well out of rule." (BTA Proceedings at 7.) The AE then asked CCA's counsel if it was alleging the purchase contract and settlement statement were not what they are purported to be, and CCA's counsel indicated that he was not alleging anything. The AE then deferred ruling on CCA's objection. {¶ 14} The BTA entered its decision on December 20, 2021. It overruled CCA's objection to the admission of the purchase contract and the settlement statement and accorded little weight to the Koon appraisal. 6"In FirstCal, multiple properties * * * were sold for a single sale price. Id. at ¶ 6-7. First the [BOR] and then the BTA assigned a portion of the sale price as the value of the parcels located in Franklin County by (1) accepting the sale price reported on the conveyance-fee statement as the aggregate value of all the Franklin County properties and then (2) allocating the value to each parcel in the county using the ratio of individual- parcel value to aggregate value in accordance with the auditor's original assessments. Id. at ¶ 31." Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 132 Ohio St.3d 371, 2012-Ohio-2844, ¶ 31. We note that CCA does not argue the calculations the BTA made pursuant to the FirstCal formula are incorrect. Therefore, we will not address the same. CCA does however, argue, in essence, that it was incorrect for the BTA to apply the FirstCal formula in the second assignment of error and, in particular, the third assignment of error. We address this argument in our analysis of those assignments of error. No. 22AP-33 8 {¶ 15} The BTA accepted the total purchase price of $2,450,000 for the Arena District properties, the Jetway property and Masonry property as evidenced in the purchase contract and settlement statement as well as the allocation of $600,000 of the total purchase price to the Masonry property and $90,000 of the total purchase price to the Jetway property. Accordingly, the BTA concluded the total purchase price for the Arena District properties and the Jetway property was $1,850,000, with $90,000 of that total being allocated to the Jetway property. {¶ 16} The BTA further allocated the $1,760,000 in accordance with the auditor's initial values pursuant to FirstCal. The BTA set the allocation of values as follows: • 010-009459-00 true value $748,050; taxable value $261,820 • 010-010155-00 true value $383,000; taxable value $134,050 • 010-039814-00 true value $250,150; taxable value $87,550 • 010-066960-00 true value $311,770; taxable value $109,120 • 010-255957-00 true value $90,000; taxable value $31,500 • 010-270790-00 true value $67,030; taxable value $23,460 (BTA Decision at 9-10.) The BTA unanimously adopted the AE report. {¶ 17} CCA appealed the BTA's decision pursuant to R.C. 5717.04. II. Assignments of Error {¶ 18} CCA sets forth three assignments of error as follows: [I.] THE OHIO BOARD OF TAX APPEALS ("BTA") ERRED BY ADMITTING EVIDENCE THAT WAS IDENTIFIED BY THE APPELLANT-APPELLEE COLUMBUS CITY SCHOOLS BOARD OF EDUCATION ("BOE"), OUT OF RULE AND ON THE EVE OF THE HEARING. [II.] THE BTA ERRED BY DETERMINING THE VALUE OF THE FIVE PARCELS THAT WERE NOT DISPUTED BEFORE THE FRANKLIN COUNTY BOARD OF REVISION ("BOR") [III.] THE BTA ERRED BY NOT GIVING PROPER WEIGHT TO THE APPRAISAL INTRODUCED INTO EVIDENCE BY THE APPELLEE-APPELLANT, CCA DEVELOPMENT, LLC ("CCA") AND ALLOCATING THE VALUES OF THE CCA PROPERTY AS SUGGESTED BY THE BOE. No. 22AP-33 9 III. Analysis {¶ 19} In the first assignment of error, CCA argues the BTA erred in admitting into evidence the purchase contract and settlement statement because the BOE disclosed it would be admitting the same into evidence less than 24 hours before the scheduled hearing and out of rule. CCA argues the BOE did not show good cause7 for failure to abide by the timeline and that it was unfair for the BTA to consider the evidence with no notice to CCA. CCA states it had no reason to believe that anyone needed to testify about the itemization of valuations contained in the real estate purchase contract and that it was unfairly taken by surprise by the BTA's allowance of the BOE's last minute evidence. Finally, CCA argues the evidence was unauthenticated hearsay material. {¶ 20} CCA objected to the admission of this evidence before the hearing and therefore our standard of review is abuse of discretion. See Gaston v. Medina Cty. Bd. of Revision, 133 Ohio St.3d 18, 2012-Ohio-3872, ¶ 24. {¶ 21} The BTA overruled the objection and found the admission of the documents to not be prejudicial. The BTA found as follows: Before we consider the merits of this appeal, we must first dispose of preliminary issues. As noted above, the property owner objected to the evidence proferred by the BOE at this Board's hearing. To be sure, the BOE was untimely in 7In Gaston v. Medina Cty. Bd. of Revision, 133 Ohio St.3d 18, 2012-Ohio-3872, the Supreme Court analyzed R.C. 5715.19(G) which states: "(G) A complainant shall provide to the [BOR] all information or evidence within the complainant’s knowledge or possession that affects the real property that is the subject of the complaint. A complainant who fails to provide such information or evidence is precluded from introducing it on appeal to the [BTA] or the court of common pleas, except that the [BTA] or court may admit and consider the evidence if the complainant shows good cause for the complainant’s failure to provide the information or evidence to the [BOR]." (Emphasis added.) CCA does not point us to any specific authority that requires a showing of good cause when the timelines set forth in Ohio Adm.Code 5717-1-07 are not followed. Nevertheless, as noted above, in Gaston the Supreme Court pointed to R.C. 5715.19's text requiring a showing of good cause as a prerequisite to admission in the case of non-compliance with R.C. 5715.19. Here, however, the allegation is not that the BOE did not comply with R.C. 5715.19—to the contrary, the BOE was attempting to provide to the BTA all the information or evidence it had within its knowledge or possession that affected the Arena District and Jetway properties—the purchase contract and the settlement statement. Rather, the allegation here is that the BOE did not provide the evidence in a timely manner. Furthermore, the BOE did not have the purchase contract and settlement statement in its possession when it went before the BOR. CCA, however, did have it in its possession at that time, but did not present it to the BOR. No. 22AP-33 10 disclosing its exhibits according to the case management schedule. Ohio Adm.Code 5717-1-07(A)(2). Case management schedules exist for a reason and this Board expects all litigants to follow them unless good cause8 is shown. However, as it relates to Exhibit B, the underlying purchase agreement related to the subject sale, and Exhibit C, the settlement statement related to the subject sale, we cannot say that the property owner was prejudice or harmed by the production of documents it provided during discovery especially when the crux of this matter involves whether the subject sale [is] the best indication of the subject properties' values. Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2020-Ohio-353. We will, therefore, overrule the property owner's objection as [to] Exhibits B and C, but sustain the property owner's objection as to the remaining proffered exhibits. (BTA Decision at 3-4.) {¶ 22} In support of its argument, CCA points to Ohio Adm.Code 5717-1-07 which reads in relevant part: (A) In appeals proceeding under case management schedules established by this rule, * * * [f]ailure to adhere to established deadlines may result in the denial of requests to adjust or amend a case management schedule, the exclusion of written legal argument, the prohibition against introducing documents and testimony into evidence, or such other action as deemed appropriate. * (2) Appeals from decisions of county boards of revision not proceeding on the small claims docket or under paragraph (A)(1) of this rule shall adhere to the following schedule: * (d) Only if a hearing is scheduled, appellant shall disclose to all other parties the witnesses and evidence upon which the appeal is based not more than one hundred fifty days after the filing of a notice of appeal[.] (Emphasis added.) See infra fn. 4. 8 No. 22AP-33 11 {¶ 23} We find, on the facts of this case, that the BTA did not abuse its discretion in admitting the evidence of the purchase contract and the settlement statement. We agree with the BTA that BOE's counsel should have complied with the disclosure deadlines. However, Ohio Adm.Code 5717-1-07 states that non-compliance with established deadlines "may" result in the prohibition against introducing documents into evidence, but it does not require such prohibition. Therefore, the BTA could exercise its discretion in determining whether to exclude or admit the purchase contract and settlement statement. The BTA considered that both documents were relevant to the valuation of the Arena District and Jetway properties and the question before the BTA was whether the 2015 sale was the best indication of the properties' values. The BTA also noted the purchase contract and settlement statement were provided to the BOE by CCA pursuant to discovery related to this case—thus, CCA was clearly on notice that the BOE was interested in the information contained in the purchase contract and settlement statement. Furthermore, although CCA now argues the documents were unauthenticated hearsay, when the AE asked CCA's counsel at the hearing whether he was alleging the same, CCA's counsel responded he was not alleging anything. {¶ 24} Accordingly, we overrule the first assignment of error. {¶ 25} In the second assignment of error, CCA avers the BTA erred by determining the values of the Arena District properties which were not disputed before the BOR. In support, CCA argues it had no notice that the valuations of the Arena District properties were at issue because it had amended its countercomplaint to reflect the values set forth in the BOE's complaint. It further argues the parties were in agreement regarding the fair market value of all the parcels and that the BOE waived its right to appeal the BOR's valuations of the Arena District properties. We are not persuaded by CCA's arguments. {¶ 26} First, we note that the BOE's opinion of the Arena District properties before the BOR and upon its filing of an appeal before the BTA were formed without the benefit of the information contained in the purchase contract—which CCA did not present as evidence before the BOR and which Koon did not consider in his appraisal of the Jetway property. The BOE was only able to obtain a copy of the purchase contract and settlement statement from CCA pursuant to discovery it conducted after it filed an appeal with the BTA. No. 22AP-33 12 {¶ 27} Second, we reject CCA's argument that the BOE waived the right to appeal the valuation of the Arena District properties. In support of the waiver argument, CCA cited Leslie v. Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 47 (10th Dist.). Leslie acknowledged the general principle of waiver that a party has waived on appeal an issue it did not raise before a lower court. Leslie observed that such principle has been applied in appeals from administrative agencies as well. {¶ 28} However, case law specific to appeals to the BTA from a BOR point us to a different conclusion in this case. The Supreme Court of Ohio has held: One principle of general importance is that the BTA has the duty, in a real-property-valuation case, to " ' "independently weigh and evaluate all evidence properly before it" ' in arriving at its own decision." *** A special situation is presented when the record as developed "negates the validity of the county's valuation of the property." Colonial Village [Ltd. v. Washington Cty. Bd. of Revision, 123 Ohio St.3d 268, 2009-Ohio-4975], ¶ 24. In that situation, the BTA acquires "the legal duty * * * to determine whether the record as developed by the parties contain[s] sufficient evidence to permit an independent valuation of the property" by the BTA. Id. at ¶ 25. If the record contains such evidence, the BTA should perform an independent valuation. Id. Finally, when performing an independent valuation, the BTA is not bound by the values advocated by the parties—indeed, the statutory language calls for the BTA on appeal from the BOR to "determine the taxable value of the property." R.C. 5717.03(B). The same language in R.C. 5717.05 has been construed by this court, in the context of an appeal from the board of revision to the common pleas court: the taxpayer's valuation complaint "places neither minimum nor maximum limitations on the court's determination of value, and there are none save the judicial requirement that the determination be supported by the evidence." (Citations omitted.) Sapina v. Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188, 2013- Ohio-3028, ¶ 25-28. Furthermore, the Supreme Court has "emphatically held that the BTA's independent duty to weigh evidence precludes a presumption of validity of the BOR's No. 22AP-33 13 valuation." Id. at ¶ 35, citing Vandalia-Butler City Schools Bd. of Edn. v. Montgomery Cty. Bd. of Revision, 130 Ohio St.3d 291, 2011-Ohio-5078, ¶ 13. {¶ 29} Here, the county auditor's original valuation of the Jetway property of $780,000 and the BOR's valuation of $275,000 was negated by the record presented in the form of the purchase contract, Article I, which allocated a sale price of $90,000 to the Jetway property. The county auditor's original valuation of the Arena District properties of $294,3009 and the BOR's valuation of $507,00010 was negated by the record presented in the form of the purchase contract, Article I, which allocated a total sales price of $1,760,000 to the Arena District properties. Furthermore, there was sufficient evidence in the record in the form of the purchase contract and the settlement statement to conduct an independent evaluation. With this evidence, as well as the county auditor's original valuations, the BTA was able to apply the FirstCal formula and arrive at an allocation of value of the Arena District properties. Accordingly, we do not find the BTA erred by determining the values of the Arena District properties. Their values necessarily changed as a result of the evidence presented regarding the specific allocation to the Jetway property in the purchase contract, and the BTA did not err in addressing the same. {¶ 30} Accordingly, we overrule the second assignment of error. {¶ 31} In the third assignment of error, CCA argues the BTA erred by not giving proper weight to the Koon appraisal and consequently by allocating the values of the properties as suggested by the BOE pursuant to FirstCal. {¶ 32} An appellate court will affirm a BTA decision that is reasonable and lawful. De novo review applies to the BTA's resolution of legal questions, but abuse of discretion review applies to the BTA's determination of the credibility of witnesses and its weighing of the evidence subject only to an abuse-of-discretion review on appeal. PI in the Sky, L.L.C. v. Testa, Tax Commr., 155 Ohio St.3d 113, 2018-Ohio-4812, ¶ 11. {¶ 33} CCA argues that even when properties are purchased as part of a bulk sale, an agreement by the parties to the sale to allocate certain amounts to individual properties does not by itself establish the propriety of the allocation. Therefore, CCA argues the BTA 9 The sum of $125,200 plus $64,000 plus $41,800 plus $52,100 plus $11,200 equals $294,300. But, see also fn. 3. 10 The sum of $215,600 plus $110,200 plus $71,800 plus $89,600 plus $19,800 equals $507,000. No. 22AP-33 14 erred in finding the true value of the Jetway property to be $90,000 consistent with the $90,000 price allocated to the Jetway property in the purchase contract. {¶ 34} Recently, the Supreme Court held in Arbors E. RE, L.L.C. v. Franklin Cty. Bd. of Revision,11 153 Ohio St.3d 41, 2018-Ohio-1611, ¶ 16, 22-23, as follows: When applied to such "bulk sales," the familiar precept that "[t]he best evidence of the 'true value in money' of real property is an actual, recent sale of the property in an arm's-length transaction" has a corollary: the principle that the law favors a "proper allocation of [a] lump-sum purchase price" over "an appraisal ignoring the contemporaneous sale." Conalco, Inc. v. Monroe Cty. Bd. of Revision, 50 Ohio St.2d 129, 363 N.E.2d 722 (1977), paragraphs one and two of the syllabus. *** It is true that the case law attaches importance, when allocating the sale price among various bulk-sale assets, to "corroborating indicia" or the "best available evidence" that is associated with matters contemplated by the parties at the time of sale. On the other hand, we have stated that "negotiation of the allocation itself is neither a necessary nor a sufficient condition for concluding that the allocation reflects the value of the constituent properties." Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 132 Ohio St.3d 371, 2012-Ohio-2844, 972 N.E.2d 559, ¶ 26. Most significantly, we recently found an abuse of discretion by the BTA when it failed to consider after- 11We distinguish Arbors East from the case at bar in that Arbors East involved the sale of a nursing home which the appraiser determined was a sale of a "going concern" and that the purchase price included not only the sale of realty but also constituted a sale of all the assets of the nursing-home business, including licenses, FF&E and goodwill. The Supreme Court determined first that the BTA erred by holding as a matter of law that any allocation to goodwill is improper. Second, the Supreme Court admonished the BTA for neglecting to exercise its statutory authority to obtain a complete record from the BOR. Finally, while acknowledging that case law attaches importance, when allocating the sale price among various bulk-sale assets, to "corroborating indicia" or the "best available evidence" associated with matters contemplated by the parties at the time of the sale, the Supreme Court determined it was error to not consider an after-the-fact appraisal presented to show the allocation in a purchase contract did not reflect the true value of a property. The court remanded the case with instructions to determine whether there was adequate support in the record to find that any of the consideration paid by Arbors East was for assets other than real estate and, if the record supported the conclusion that the sale was bulk sale, to determine the proper allocation of the sale price. In the case at bar, the subject of the appraisal, the Jetway property, was a vacant lot, unimproved, and non-income producing. There was no allegation or indication that the BOR did not comply with the duty to provide the complete record. Last, and most significantly, here, the BTA did carefully consider the Koon after-the-fact appraisal as well as the audio of Koon's testimony and gave a reasoned analysis for discounting the weight of the same and not accepting the Koon allocation of $275,000 rather than the $90,000 allocation indicated in the purchase contract. No. 22AP-33 15 the-fact appraisal evidence offered to demonstrate that the original allocation set forth on the conveyance-fee statement did not reflect the true value of the real-estate component of the sale. Buckeye Terminals, L.L.C. v. Franklin Cty. Bd. of Revision, 152 Ohio St.3d 86, 2017-Ohio-7664, 93 N.E.3d 914, ¶ 35. {¶ 35} An owner of a property has the burden to show the impropriety of the allocated sales price. In Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 132 Ohio St.3d 371, 2012-Ohio-2844, ¶ 26, 32-33. CCA argues the evidence it presented in the form of the Koon appraisal shows the impropriety of the $90,000 allocation in the purchase contract to the Jetway property. As noted above, the Koon appraisal addressed only the value of the Jetway property, and Koon opined the value of the property was $275,000 or $55,000 per acre. He supported his opinion with a chart referred to as a "Summary of Comparable Land Sales and Listings." (Koon Appraisal at D-16.) Koon stated the comparable listings were of land within close proximity to the subject site but that "the number of comparable sales is limited." (Koon Appraisal at D-1.) The chart included the purchase date and purchase price of four properties. It also included the listing date and listing price of three properties, one of which was the Jetway and Masonry properties which were listed as being offered for sale together in January 2017 with a listing price of $518,900 or $65,017 per acre. Koon also noted regarding the Jetway and Masonry properties that they were "recently in contract in 2018 for approximately $55,000 per acre[,] [t]hough ultimately, this sale did not close."12 (Koon Appraisal at D-21.) Koon further stated it is his understanding "according to a representative of the property owner, that this sale ultimately did not close, and the property remains on the market for sale with RS Garek and Associates for $512,850, or approximately $65,000 per acre." (Koon Appraisal at A-6) In his appraisal, Koon stated he did not consider the March 6, 2015 sale of the properties because: It is noted that the subject's owner, CCA Development LLC, acquired non-subject parcel 010-25595[7] on March 5, 2016. The property was included as a package to acquire an improved property in the central business district, and the owner's 12There is included in the BOR record a Real Estate Purchase Contract signed by CCA as the seller and John Effah as the buyer, on June 11-12, 2018, that listed the purchase price of $438,900 ($55,000 per acre) for two parcels: the Jetway and Masonry properties. No. 22AP-33 16 representative indicated the transfer price was not reflective of the value of the vacant parcel. Similarly, we have not included the 2015 sale of the subject as a comparable sale, because the property transferred with five other Arena District parcels which were of primary interest to the buyer. Reportedly, the sale price is not reflective of market value. This is also demonstrated in the marketing history of the subject since it last transferred. Since this time, it has been on the market along with the superior adjacent parcel to the south (with road access) for no more than $65,000 per acre. Therefore, the 2015 acquisition of the subject is not considered to be pertinent to our analysis and has not been utilized as a comparable sale. (Emphasis added.) (Koon Appraisal at D-17.) {¶ 36} The BTA observed that the information on which Koon relied did not come from anyone with firsthand knowledge of the sale. The BTA also observed that a listing price is aspirational as contrasted with an actual sale price. The BTA noted as follows: Furthermore, we note that the BOE objected to any consideration of Koon's oral or written testimony about the facts and circumstances of the subject sale; the BOR failed to expressly rule on the objection. We now sustain the objection. No one with firsthand knowledge of the subject sale testified at the BOR hearing or this Board's hearing. At the BOR hearing, Koon conceded that he did not speak to anyone with firsthand knowledge of the sale and that he spoke to the spouse of an owner in the corporate entity that owns the subject properties. Without firsthand knowledge of the sale, we find that Koon's assertions regarding the negotiations and details of the overall transaction are unreliable hearsay to the extent that he merely reiterated statements made to him as we cannot verify their veracity. * * * Additionally, while Koon's appraisal report will be given its appropriate evidentiary weight, because the reliability of the March 2015 sale is a key issue to be determined by this Board, we will not abdicate our fact-finding authority to an expert witness with respect to this material fact. *** [Koon] seemingly rejected the sale because he concluded that it was not conducted at arm's-length; however, no information that is properly within the appraisal report supports such a finding. As noted above, no one with firsthand knowledge of the facts and circumstances of the subject sale testified at any No. 22AP-33 17 level of these proceedings. We are, therefore, left to speculate.* * * To the extent that the property owner or Koon implied that the subject sale was offered for sale on a "take it or leave it" basis, this Board has consistently rejected that argument. We acknowledge that the contents of the appraisal report certainly suggest that the $90,000 allocation to parcel 010- 255857 might not reflect its value. As noted above, Koon relied upon the $65,017 per acre, or $518,900 asking price of parcel 010-255857, and the 2.98-acre adjacent parcel, from January 2017. However, "a listing price, in essence an aspirational selling price, is not conclusively probative or what a willing buyer would pay for the property in an arm's-length transaction and is therefore not conclusively probative of actual market value." * * * As for the remaining comparable sales, we do not find them to be more competent, credible, and probative tha[n] the recent, arm's-length sale of parcel 010-255857. We are mindful of our duty to independently determine the subject property's value. * * * In doing so, we find that none of the evidence that is properly in the record rebuts the presumptions accorded to the subject sale. We find therefore, that the subject properties shall be valued consistent with the parties' agreed allocation as highlighted in the purchase agreement. Specifically, for [the Arena District properties], their combined allocated value of $1,760,000 will be further allocated in accordance with the auditor's initial values. FirstCal Industrial 2 Acquisition LLC v. Franklin Cty. Bd. of Revision, 125 Ohio St.3d 485, 2010-Ohio-1921. (Decision at 4, 8-9.) {¶ 37} This court will affirm the BTA's rulings on credibility of witnesses and weight attributed to evidence if the BTA has exercised sound discretion in rendering these rulings. Campbell Soup Co. v. Tracy, Tax Commr., 88 Ohio St.3d 473, 477-78 (2000). Furthermore, the Supreme Court has held with regard to the weighing of appraisals: First, the case law makes clear that "the weighing of evidence and the assessment of credibility as regards both of the appraisals are the statutory job of the BTA." The BTA exercises " 'wide discretion in determining the weight to be given to the evidence and the credibility of the witnesses that come before it.' " No. 22AP-33 18 Second, the case law makes clear that the BTA has discretion to depart from any particular appraisal opinion of value and independently determine a value based on whatever evidence in the record the BTA finds to be the most probative. (Internal citations omitted.) Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 155 Ohio St.3d 247, 2018-Ohio-4286, ¶ 10-11. {¶ 38} Finally, in Bedford Bd. of Edn., the Supreme Court remanded a case to the BTA to determine whether testimony of an appraiser with personal knowledge of the sales transaction negated the validity of allocation in a sales contract. Id. at ¶ 32-33. Bedford Bd. of Edn. held: While FirstCal does articulate the starting point for the present case, it does not furnish guidance for evaluating the testimony offered by [the appraiser] at the BOR hearing. In this case, as in FirstCal, it is the burden of [the owner] to present evidence negating the validity of using the allocated sale price. But the FirstCal court simply did not confront a situation where a witness with some involvement in the transaction ascribed tax motives to the allocation. The latter circumstance necessitates the remand in the present case. (Emphasis added.) Id. at ¶ 33. {¶ 39} In the case before us, CCA did not present any testimony or other evidence of a witness with some involvement in the transaction of the sale of the properties and the reasons for the allocation of the sales price. Koon stated in the appraisal: Reportedly, the subject's owner acquired both the subject and the adjacent parcel strictly as a means of enticing the previous owner to part with the five central business district parcels to "round out" adjacent holdings owned by the subject's owner or related entities. Most importantly to this appraisal, the owner's representative indicated the transfer prices were not reflective of the value of the subject as they effectively overpaid for the subject and adjacent Jetway Boulevard site in order to "round out" the owner's Arena District real estate holdings. (Emphasis added.) (Koon Appraisal at A5-6.) The appraisal contains no indication who the owner's representative was and whether the owner's representative was personally involved in the sales transaction or the determination of allocation reflected in the sales transaction. The AE's analysis of Koon's appraisal and testimony is deliberate and well- No. 22AP-33 19 reasoned. We cannot say the BTA abused its discretion in discounting Koon's appraisal and testimony. {¶ 40} Therefore, we find the BTA acted reasonably and lawfully and did not abuse its discretion in not according additional weight to the Koon appraisal sufficient to negate the validity of the $90,000 allocated price to the Jetway property and, thus, applying the FirstCal formula allocation to the Arena District properties. {¶ 41} Accordingly, we overrule the third assignment of error. IV. Conclusion {¶ 42} Having overruled CCA's three assignments of error, we affirm the decision of the Ohio Board of Tax Appeals. Judgment affirmed. MENTEL and McGRATH, JJ., concur	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484682/	[Cite as McDougald v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-4096.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Jerone McDougald, : Plaintiff-Appellant, : No. 21AP-655 v. : (Ct. of Cl. No. 2019-00950JD) Ohio Department of Rehabilitation : (REGULAR CALENDAR) and Correction, : Defendant-Appellee. : D E C I S I O N Rendered on November 17, 2022 On brief: Jerone McDougald, pro se. On brief: Dave Yost, Attorney General, and Howard Harcha, IV, for appellee. APPEAL from the Court of Claims of Ohio BEATTY BLUNT, J. {¶ 1} Plaintiff-appellant, Jerone McDougald, appeals from the November 3, 2021 judgment entry of the Court of Claims of Ohio adopting the magistrate's decision and recommendation as its own and rendering judgment in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). For the reasons that follow, we affirm the judgment of the trial court. I. Facts and Procedural History {¶ 2} Appellant is an inmate in defendant's custody who resides at Toledo Correctional Institution ("TOCI") in Toledo, Ohio. (Mag's Decision at 1.) TOCI is a maximum-security facility which houses only inmates at the highest security level. Id. No. 21AP-655 2 Appellant filed his complaint in the Court of Claims of Ohio seeking damages for injuries he alleged were sustained when certain employees of ODRC used force on him on July 22, 2019. (See Compl.) {¶ 3} The case proceeded to trial before a magistrate conducted via Zoom video conferencing on December 8, 2020. On May 17, 2021, the magistrate issued a decision recommending judgment in favor of ODRC. (Mag's Decision at 6.) {¶ 4} On May 26, 2021, appellant filed a motion seeking a 30-day extension of time in which to file objections to the magistrate's decision. On June 3, 2021, appellant filed a motion seeking leave for the trial court to consider alternative technology in reviewing the evidence, as provided for in Civ.R. 53(D)(3)(b)(iii), and further requested that he be granted access to an electronic copy of the trial proceedings. On June 9, 2021, the trial court granted the May 26, 2021 motion for an extension of time and appellant was given until July 6, 2021 to file his objections. No objections were filed by appellant. {¶ 5} On August 18, 2021, the trial court issued an entry addressing appellant's June 3, 2021 motion, granting it in part and denying it in part. (Aug. 18, 2021 Entry.) Specifically, the trial court granted appellant's request for a copy of audio or DVD recordings of the trial proceedings and ordered the clerk to create a copy of the DVD of the proceedings and provide a copy to both appellant and ODRC. Id. The trial court also granted appellant an additional 30-days from the date of the entry, i.e., until September 17, 2021, to file his objections. The trial court denied appellant's request that the court utilize a DVD or audio tape when reviewing the magistrate's decision and considering objections. The trial court further ordered appellant to prepare and submit an affidavit of evidence in support of his objections to the magistrate's decision. Id. No. 21AP-655 3 {¶ 6} On August 24, 2021, appellant filed another motion for extension of time in which to file objections to the magistrate's decision, this time seeking an additional six months. On September 7, 2021, the trial court issued an order granting in part the motion for extension of time, finding a six-month extension to be excessive but giving appellant until October 15, 2021 to file his objections. (Sept. 7, 2021 Order.) The trial court further stated that it would consider granting additional time if appellant could show that circumstances warranted a further extension. Id. {¶ 7} On October 22, 2021, after the deadline for filing his objections had passed, appellant filed another motion for extension of time in which to file objections to the magistrate's decision seeking an additional 90 days. In this motion, appellant stated he had not been able to file his objections due to not having access to the recording trial proceedings despite the court having ordered that he be permitted to review and listen to the trial proceedings in order to present his objections. Id. {¶ 8} On November 3, 2021, the trial court entered a judgment entry adopting the magistrate's decision. (Nov. 3, 2021 Jgmt. Entry.) In it, the trial court specifically stated "[p]laintiff was granted leave to file his objections on or before October 15, 2021. To date, no objections have been filed." Id. {¶ 9} On November 17, 2021, the clerk filed a notice indicating that a DVD of the trial proceedings was sent to counsel for ODRC, and on November 18, 2021, the clerk filed a similar notice indicating a DVD of the trial proceedings was sent to appellant. {¶ 10} On November 29, 2021 appellant filed a notice of appeal in the trial court, and on December 7, 2021 appellant filed a notice of appeal with this court, which is now before us. No. 21AP-655 4 II. Assignment of Error {¶ 11} Appellant asserts the following assignment of error for our review: The trial court denied my due process by denying me a means to review DVD recording of trial proceedings for objecting to Magistrates [sic] Decision. III. Law and Analysis A. Standard of Review {¶ 12} Civ.R. 53(D)(3)(b)(iv) provides that "[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)." Civ.R. 53 " 'imposes an affirmative duty on the parties to make timely, specific objections in writing to the trial court, identifying any error of fact or law in the magistrate's decision.' " In re Estate of Sheares, 10th Dist. No. 07AP-02, 2007-Ohio-3624, ¶ 8, quoting State ex rel. Alston v. Indus. Comm., 10th Dist. No. 00AP-1379, 2002-Ohio- 4720, ¶ 4 (further citation omitted.). If no objections are filed, Civ.R. 53(D)(4)(c) provides that a court may adopt the magistrate's decision unless the court determines an error of law or other defect evident on the face of the magistrate's decision. Id. B. Discussion {¶ 13} In this case, because appellant failed to file objections to the magistrate's decision in this case, this court is limited to a review for plain error by the trial court in considering the appeal. PHH Mtge. Corp. v. Santiago, 10th Dist. No. 11AP-562, 2012-Ohio- 942, ¶ 8, citing In re G.S., 10th Dist. No. 10AP-734, 2011-Ohio-2487, ¶ 6 ("It is well-settled that a party's failure to file objections to a magistrate's decision waives all but plain error."). "In civil cases, the plain error doctrine will only apply in the 'extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, No. 21AP-655 5 seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.' " Santiago at ¶ 9, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. The doctrine of plain error "implicates errors that are 'clearly apparent on the face of the record and [are] prejudicial to the appellant.' " Id., quoting Brooks-Lee v. Lee, 10th Dist. No. 11AP-284, 2012-Ohio-373, ¶ 26, citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 223 (1985). {¶ 14} In this case, appellant asserts he was denied due process because he was not provided with a DVD recording of the trial proceedings to assist him with preparing objections to the magistrate's decision. It is true that the trial court granted appellant's request for a DVD recording of the trial proceedings in its August 18, 2021 entry and ordered the clerk to create a copy of the DVD of the proceedings and provide a copy to both appellant and ODRC. (See Aug. 18, 2021 Entry.) The trial court further granted appellant two additional extensions of time in which to prepare his objections, the latest of which gave appellant until October 15, 2021 to file his objections. (See Aug. 18, 2021 Entry; Sept. 7, 2021 Order.) {¶ 15} The September 7, 2021 order clearly stated that the trial court would consider granting additional time beyond the October 15, 2021 deadline if appellant could show that circumstances warranted a further extension. Yet appellant waited until after the deadline had passed to file his motion on October 22, 2021 wherein he finally advised the trial court that he had never received the DVD recording of the trial proceedings. Appellant has provided no explanation whatsoever for his delay in bringing to the court's attention this salient fact.1 1There is certainly no question that appellant is more than capable of making filings with the trial court, given his prolific filings evinced by this matter's docket in the trial court. No. 21AP-655 6 {¶ 16} It is well-settled that a party's failure to notify the trial court of a possible error results in a waiver of the issue for appeal unless appellant can show plain error. Noble v. Noble, 10th Dist. No. 07AP-1045, 2008-Ohio-4685, ¶ 20, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Because "the plain error doctrine is not favored" in civil appeals, it "may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss at paragraph one of the syllabus. {¶ 17} Here, the record is clear that appellant was afforded multiple opportunities over the span of five months to file his objections to the magistrate's decision. The record is equally clear that appellant did not make any efforts to make the trial court aware of the fact that the DVD of the trial proceedings had not been received until after the latest deadline for filing his objections. Under these circumstances, appellant cannot now argue that the trial court erred when all he would have had to do is bring the issue to the trial court's attention. In short, we find no plain error on the part of the trial court in this case. IV. Disposition {¶ 18} Accordingly, for the foregoing reasons, we overrule appellant's sole assignment of error, and we affirm the judgment of the Court of Claims of Ohio. Judgment affirmed. MENTEL and JAMISON, JJ., concur.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484681/	[Cite as Nationwide Energy Partners, L.L.C. v. Ohio Power Co., 2022-Ohio-4099.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Nationwide Energy Partners, LLC, : Plaintiff-Appellant, : v. No. 22AP-13 : (C.P.C. No. 21CV-7186) Ohio Power Company, d.b.a. AEP Ohio, : (REGULAR CALENDAR) Defendant-Appellee. : D E C I S I O N Rendered on November 17, 2022 On brief: Frost Brown Todd LLC, Ashley L. Oliker and Zackary L. Stillings, for appellant. Argued: Bryce McKenney. On brief: Porter Wright Morris & Arthur, LLP, James A. King and Eric B. Gallon, for appellee. Argued: Eric B. Gallon. APPEAL from the Franklin County Court of Common Pleas BEATTY BLUNT, J. {¶ 1} Plaintiff-appellant, Nationwide Energy Partners, LLC ("NEP"), appeals from the December 13, 2021 entry of the Franklin County Court of Common Pleas journalizing the December 3, 2021 decision granting the motion of defendant-appellee, Ohio Power Company, d.b.a. AEP Ohio ("AEP"), to dismiss. For the reasons that follow, we affirm the judgment of the trial court. I. Facts and Procedural History {¶ 2} NEP is in the business of installing and maintaining private electric infrastructure and providing billing management services to multi-family properties. No. 22AP-13 2 (Compl., at ¶ 1.) AEP is an electric utility with a statutorily granted, certified territory for electric distribution service comprising large areas of Franklin County, Ohio, and several other surrounding counties. Id. at ¶ 2. {¶ 3} On November 12, 2021, NEP filed a verified complaint for injunctive and other relief against AEP alleging claims for promissory estoppel, promissory fraud, tortious interference with contractual relations, tortious interference with existing and prospective business relations, antitrust violations under the Valentine Act and R.C. 1331, et seq., and injunctive relief. (See generally Compl.) NEP also filed a motion for temporary restraining order and preliminary injunction. {¶ 4} In its complaint, NEP alleges that in 2020, it entered into contracts with the landlords or owners of five apartment complexes in Franklin County to provide on-site infrastructure services to assist them in apportioning and billing electric service costs to their respective tenants. (Compl., at ¶ 35-66.) Essentially, NEP serves as the landlord or property owner's billing agent for the electricity that is provided by AEP. Id. at ¶ 16. {¶ 5} NEP further alleges that to perform the contracted services at the five apartment complexes, it submitted work orders on behalf of the landlord or property owner's behalf to AEP to perform the work required to change the utility service to AEP "master meter single account service" at each of the complexes. Id. at ¶ 39, 45, 51, 57, 63. NEP alleges, however, that AEP has taken no action towards completing the work orders that have been submitted by NEP, and that despite promises to the contrary, AEP has since indicated that it intends to decline any work orders submitted by NEP. Id. at ¶ 69, 73, 91, 92, 94. NEP further alleges that, as a result of AEP's refusal to complete the work orders previously submitted by NEP and AEP's stated intention to deny any future work orders No. 22AP-13 3 submitted by NEP, the apartment complexes, their tenants, and NEP have been harmed and irreparably damaged. Id. at ¶ 99-108. {¶ 6} On November 22, 2021, AEP filed a motion to dismiss NEP's complaint pursuant to Civ.R. 12(B)(1). (See Nov. 22, 2021 Mot. to Dismiss.) In it, AEP asserted that NEP's claims are related to utility service and/or based on AEP's tariff and, therefore, within the exclusive jurisdiction of the Public Utilities Commission of Ohio ("PUCO") under R.C. 4905.26. {¶ 7} On December 3, 2021, the trial court issued its decision granting the motion to dismiss for lack of subject-matter jurisdiction. (Dec. 3, 2021 Decision granting defendant Ohio Power Company, d.b.a. AEP Ohio's motion to dismiss.) In its decision, the trial court found that "although * * * NEP's claims may seemingly be 'sounding in tort or contract,' they are undeniably based upon alleged violations within the scope of R.C. 4905.26 and the PUCO's exclusive jurisdiction." Id. at 11. {¶ 8} On January 5, 2022, NEP timely filed this appeal. II. Assignments of Error {¶ 9} NEP asserts the following assignments of error for our review: [1.] The trial court erred in improperly applying the two- prong jurisdictional test set forth in Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301 (2008), to Plaintiff/Appellant Nationwide Energy Partners, LLC's ("NEP") promissory estoppel, promissory fraud, tortious interference with contractual relations, and tortious interference with existing and prospective business relations claims. [2.] The trial court erred in dismissing NEP's antitrust Valentine Act claims under R.C. 1331, et seq., for lack of subject-matter jurisdiction. No. 22AP-13 4 [3.] The trial court erred in ruling on NEP's antitrust Valentine Act claims under R.C. 1331, et seq., on an expedited basis. III. Law and Analysis A. Standard of Review {¶ 10} "Subject-matter jurisdiction involves ' "a court's power to hear and decide a case on the merits and does not relate to the rights of the parties." ' " Moore v. Ohio Dept. of Rehab. and Corr., 10th Dist. No. 18AP-599, 2019-Ohio-767, ¶ 4, quoting Robinson v. Ohio Dept. of Rehab. and Corr., 10th Dist. No. 10AP-550, 2011-Ohio-713, ¶ 5, quoting Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. In considering a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter jurisdiction, a trial court "determines whether the claim raises any action cognizable in that court." Id., citing Brown v. Tax Commr. of Ohio, 10th Dist. No. 11AP-349, 2012-Ohio-5768; Robinson at ¶ 5. Furthermore, "in making a determination regarding subject-matter jurisdiction, '[t]he trial court is not confined to the allegations of the complaint,' and 'it may consider material pertinent to such inquiry without converting the motion into one for summary judgment.' " Id., quoting Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211 (1976), paragraph one of the syllabus. This court applies "a de novo standard when we review a trial court's ruling on a Civ.R. 12(B)(1) motion to dismiss" for lack of subject-matter jurisdiction. Id. B. Discussion {¶ 11} In general, "PUCO has exclusive jurisdiction over most matters concerning public utilities." Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008- Ohio-3917, ¶ 5. This exclusive jurisdiction " 'includes matters * * * such as rates and charges, classifications, and service.' " Pacific Indem. Co. v. Deems, 10th Dist. No. 19AP- No. 22AP-13 5 349, 2020-Ohio-250, ¶ 9, quoting Valentin v. Ohio Edison, 7th Dist. No. 11 MA 93, 2012- Ohio-2437, ¶ 9, citing Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 201 (7th Dist.2000), appeal not allowed by the Supreme Court of Ohio, 89 Ohio St.3d 1409 (2000). {¶ 12} R.C. 4905.26 governs PUCO's jurisdiction and states in pertinent part: Upon complaint in writing against any public utility by any person * * * that any rate, fare, charge, toll, rental, schedule, classification, or service, * * * or service rendered * * * is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, * * * if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof. The notice shall be served not less than fifteen days before hearing and shall state the matters complained of. The commission may adjourn such hearing from time to time. Thus, R.C. 4905.26 specifically establishes the exclusive jurisdiction of PUCO " 'to determine whether any "service rendered" by a public utility or any "practice affecting or relating to any service furnished by a public utility, or in connection with such service" is in any respect unjust, unreasonable, or in violation of law.' " Deems at ¶ 11, quoting Pro Se Commercial Properties v. Illum. Co., 8th Dist. No. 92961, 2010-Ohio-516, ¶ 9. See also Jones v. Ohio Edison Co., 11th Dist. No. 2014-A-0015, 2014-Ohio-5466, ¶ 9 (noting the Supreme Court of Ohio has interpreted R.C. 4905.26 "to confer jurisdiction upon PUCO to hear all complaints pertaining to service provided by a public utility, i.e., 'service complaints' "). No. 22AP-13 6 {¶ 13} Moreover, the exclusive jurisdiction of PUCO "includes complaints regarding the termination of service by public utilities." State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 352 (2004), citing Milligan v. Ohio Bell Tel. Co., 56 Ohio St.2d 191, (1978), paragraph two of the syllabus ("A Court of Common Pleas is without jurisdiction to hear a claim alleging that a utility has violated R.C. 4905.22 by * * * wrongfully terminating service, since such matter[] [is] within the exclusive jurisdiction of the Public Utilities Commission"); Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 202 (7th Dist.2000) ("refusal or termination of service by a public utility is a matter which is in the exclusive jurisdiction of the [commission], subject to an appeal to the Ohio Supreme Court"). {¶ 14} In Allstate, the Supreme Court adopted a two-part test from Pacific Indemn. Ins. Co. v. Illum. Co., 8th Dist. No. 82074, 2003-Ohio-3954, to be used in determining whether PUCO has exclusive jurisdiction over a case. The first part of the test "asks whether PUCO's administrative expertise is required to resolve the issue in dispute." Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, ¶ 15. The second part of the test "is whether the act complained of constitutes a practice normally authorized by the utility." Id. at ¶ 16. " 'If the answer to either question is in the negative, the claim is not within PUCO's exclusive jurisdiction.' " Id. at ¶ 12, quoting Allstate at ¶ 12-13. {¶ 15} A year after Allstate, the Supreme Court further clarified the jurisdictional issue in Corrigan. Quoting State ex rel. Ohio Edison Co. v. Shaker, 68 Ohio St.3d 209, 211 (1994), the Supreme Court held "[t]he broad jurisdiction of PUCO over service-related matters does not affect 'the basic jurisdiction of the court of common pleas * * * in other areas of possible claims against utilities, including pure tort and contract claims.' " Corrigan at ¶ 9. Yet, in deciding whether claims raised in a complaint are within the No. 22AP-13 7 exclusive jurisdiction of PUCO or, instead, are pure tort and contract claims, a court is "not limited by the allegations in the complaint." Id. at ¶ 10. Rather, a court "must review the substance of the claims to determine if service-related issues are involved." Id. Thus, "[c]asting the allegations in the complaint to sound in tort or contract is not sufficient to confer jurisdiction upon a trial court when the basic claim is one relating to service, a claim which only the PUCO has jurisdiction to resolve." Higgins at 202. {¶ 16} Against the foregoing authorities, we turn to NEP's first assignment of error, which asserts that the trial court erred in improperly applying the two-prong jurisdictional test set forth in Allstate to NEP's claims for promissory estoppel, promissory fraud, tortious interference with contractual relations, and tortious interference with existing and prospective business relations claims. As explained below, we disagree. {¶ 17} Regarding the first prong of the Allstate test, the core of NEP's four tort claims and its claim for injunctive relief is that AEP has refused to install a master meter at the five apartment complexes located within AEP's certified territory at issue in this case, and bill electric usage at those communities through a single account maintained by the owner of each community. (Compl. at ¶ 21, 35.) Thus, the substance of each of NEP's claims is, in effect, that AEP has refused to provide electric service—which is a service-related issue in the exclusive jurisdiction of PUCO. Inland Steel Dev. Corp. v. Pub. Util. Comm., 49 Ohio St.2d 284, 288 (1977); Deems, at ¶ 11. {¶ 18} Furthermore, determining the merits of NEP's claims requires the application of PUCO's relevant governing statutes. NEP's allegation of "disparate treatment" set forth in its complaint at ¶ 25 is a particularly good example of why these claims fall within PUCO's jurisdiction. Section 4905.35 of the Ohio Revised Code prohibits AEP from subjecting a corporation such as NEP to "undue or unreasonable advantage"; in No. 22AP-13 8 turn, R.C. 4905.26 provides that the exclusive private remedy for violations of any of the utility statutes is to file a complaint against the public utility with PUCO. See R.C. 4905.22, R.C. 4905.35; R.C. 4905.26. Indeed, NEP recently brought such a counterclaim against AEP before PUCO, and PUCO determined that it had jurisdiction over those claims. Ohio Power Co. v. Nationwide Energy Partners, LLC, Pub. Util. Comm. No. 21-990-EL-CSS, 2022 Ohio PUC LEXIS 344, 8-9 (Apr. 4, 2022). {¶ 19} Additionally, consideration of NEP's tortious interference claims (tortious interference with contractual relations; tortious interference with existing and prospective business relations) necessarily requires determining whether AEP had legal justification for refusing to install the master meters as requested. See Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 418 (1995), paragraph two of the syllabus (proving a claim of intentional interference requires, inter alia, proving "the lack of justification"). This in turn requires considering and deciding the merits of AEP's assertion that it cannot fulfill NEP's requests because doing so would impermissibly allow NEP to act as a utility within AEP's exclusive certified territory.1 In short, resolving NEP's claims necessarily requires PUCO's administrative expertise in analyzing and applying its own governing statutes in this case, and for that reason alone the first prong is met. {¶ 20} A second and independently sufficient basis for finding the first Allstate prong is met also exists: that is, resolving NEP's claims necessarily involves a determination regarding the rights and obligations of both parties under the relevant tariffs, which set forth AEP's legal obligations to its customers. For example, reference to Paragraph 2 of the Terms and Conditions of Service ("Application for Service"), which states that electric 1This is the very question that "is one that is best left to the PUCO in the first instance." In re Complaint of Wingo v. Nationwide Energy Partners, L.L.C., 163 Ohio St.3d 208, 2020-Ohio-5583, ¶ 26. No. 22AP-13 9 service may be "made available to a prospective customer * * upon * * * execution of a contract therefore and acceptance by an officer or authorized representative of the Company," and Paragraph 10 of the Terms and Conditions of Service ("Extension of Local Facilities"), which requires AEP to "construct suitable electric * * * distribution facilities * * * when the customer cannot be served from existing electric facilities," would likely be necessary. P.U.C.O. No. 21, Terms and Conditions of Service, 8th Revised Sheet Nos. 103- 1 and 103-5.2 Although we note that NEP does not characterize its claims as relating in any way to the tariff, as the authorities discussed above make clear, this court must look beyond the form of the claims as asserted by NEP and "must review the substance of the claims to determine if service-related issues are involved." Corrigan at ¶ 10. We find that NEP's claims directly implicate the obligations of AEP provided in the tariff, and thus are properly and exclusively before PUCO. In sum, we find the first prong of the Allstate test is met in this case. {¶ 21} Regarding the second prong of the Allstate test, we find that it too is readily met in this case. Despite the protestations of NEP that its claims are nothing more than routine construction dispute claims, it is clear the crux of these claims is the refusal by AEP to install the master meters and go to single-party billing at the five apartment complexes. In other words, all of these claims have to do with the provision—or refusal thereof—of electric service within AEP's territory. The provision of electric service is required by statute and by the obligations set forth in AEP's approved tariff and is thus an authorized utility practice. As noted by the trial court, "[t]he issue here is just what type of service Defendant AEP must provide." (Decision at 11.) As discussed above, service-related issues are within 2AEP's current approved tariff can be found at aepohio.com/lib/docs/ratesandtariffs/Ohio/October_2022 %20_AEP_OhioTariff.pdf. No. 22AP-13 10 PUCO's exclusive jurisdiction. See Inland Steel Dev. Corp., 49 Ohio St2d.284 (1977). Thus, both prongs of the Allstate test have been met in this case. {¶ 22} Therefore, for the foregoing reasons, the first assignment of error is overruled. {¶ 23} Turning to NEP's second and third assignments of error relating to NEP's claims under the Valentine Act, we find that the trial court properly dismissed these claims for lack of subject-matter jurisdiction, and properly did so sua sponte. First, NEP's contention in its third assignment of error that the trial court is not permitted to dismiss, sua sponte, claims over which it finds it does not possess subject jurisdiction is utterly without merit. It is hornbook law that a court always has the power to consider subject- matter jurisdiction sua sponte, and indeed must decline to hear and issue rulings pertaining to claims over which it lacks subject-matter jurisdiction. Pointer v. Smith, 10th Dist. No. 20AP-555, 2021-Ohio-2247, ¶ 8, citing Cardi v. State, 10th Dist. No. 12AP-15, 2012-Ohio- 6157, ¶ 8, citing Foreman v. Lucas Cty. Court of Common Pleas, 189 Ohio App.3d 678, 2010-Ohio-4731, ¶ 12 (1oth Dist.); Adams v. Cox, 10th Dist. No. 09AP-684, 2010-Ohio-415, ¶ 19; Civ.R. 12(H)(3) ("[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). Furthermore, NEP's protestations that it should have been permitted to brief this issue notwithstanding, no amount of briefing could alter the fact that if the trial court does not have subject-matter jurisdiction over these claims, it cannot preside over them. {¶ 24} Thus, based on the foregoing, we overrule the third assignment of error. {¶ 25} Next, regarding NEP's second assignment of error in which NEP asserts the trial court erred in dismissing NEP's antitrust Valentine Act claims under R.C. 1331, et seq., for lack of subject-matter jurisdiction, just as with its first assignment of error, NEP No. 22AP-13 11 again focuses solely on form over substance. NEP's antitrust claim under the Valentine Act is premised upon the allegation that AEP is abusing the "monopoly over the distribution of electricity in Franklin County" that it has "as a utility" by extending that monopoly to services where it does not apply—i.e., "the construction, measuring, invoicing, and assignment of energy costs by a property owner and/or landlord to its tenants in multi-family properties." (Compl. at ¶ 138-39.) The monopoly referred to by NEP is provided by the Certified Territory Act, R.C. 4933.81, et seq., which creates certified territories within which electric suppliers generally "have the exclusive right to furnish electric service to all electric load centers * * *." R.C. 4933.83(A). {¶ 26} In this case, AEP asserts it has denied NEP's work orders because AEP believes that if NEP were to take over electric service to the five apartment complexes at issue in this matter, it would be operating as a "public utility" in violation of the Certified Territory Act. The Certified Territory Act is "set forth in Title 49 of the Revised Code and fall[s] within the exclusive purview of the PUCO." Duke Energy Ohio, Inc. v. Hamilton, 12th Dist. No. CA2018-01-001, 2018-Ohio-2821, ¶ 25. Thus, resolving NEP's purported antitrust claims would require a determination of AEP's rights and obligations under the Certified Territory Act and whether NEP's contracted services to the apartment complexes render it a public utility under R.C. 4905.02. As discussed previously, these are the very questions that require PUCO's expertise to decide, and thus are within PUCO's exclusive jurisdiction. {¶ 27} Furthermore, NEP's argument that the trial court must hear its Valentine Act claims because PUCO has found that it lacks jurisdiction over Valentine Act claims again ignores the substance of NEP's claims. In the PUCO cases cited by NEP, the claims were in form and substance true antitrust claims—not claims relating to the provision of electric No. 22AP-13 12 service under the Certified Territory Act that are properly heard by PUCO. The fact that NEP characterized its claims as sounding in antitrust law, rather than utility law, does not change the substance of its claims. {¶ 28} In short, all of NEP's claims, including its ostensible Valentine's Act claims, are premised upon the provision—or refusal thereof—of electric service within AEP's territory. And as thoroughly discussed above, service-related issues are within the exclusive jurisdiction of PUCO. See Inland Steel Dev. Corp., 49 Ohio St.2d 284 (1977). {¶ 29} Therefore, NEP's second assignment of error is overruled. {¶ 30} Accordingly, for all of the foregoing reasons, we overrule appellant's three assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. SADLER and McGRATH, JJ., concur.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484680/	[Cite as Smith v. Ohio State Univ., 2022-Ohio-4101.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Brooke Smith, : Plaintiff-Appellee, : No. 22AP-125 (Ct. of. Cl. No. 2020-00321JD) v. : (REGULAR CALENDAR) The Ohio State University, : Defendant-Appellant. : D E C I S I O N Rendered on November 17, 2022 On brief: Squire Patton Boggs (US) LLP, and John R. Gall, Traci L. Martinez, E. Joseph D'Andrea, Elizabeth P. Helpling, and Roger M. Gold, for appellant. Argued: John R. Gall. On brief: Climaco Wilcox Peca & Corogoli Co., LPA, and Scott Simpkins, and Bursor & Fisher, P.A., and John Arisohn, Scott Bursor, and Sarah Westcot, for appellee. Argued: John Arisohn. APPEAL from the Court of Claims of Ohio SADLER, J. {¶ 1} Defendant-appellant, The Ohio State University ("OSU"), appeals a decision and judgment of the Court of Claims of Ohio granting the motion for class certification filed by plaintiff-appellee, Brooke Smith. For the following reasons, we reverse the trial court judgment. I. FACTS AND PROCEDURAL HISTORY {¶ 2} In 2016, Smith was admitted to OSU as an undergraduate student at the Columbus campus. By the spring semester of 2020, Smith was a fourth-year student in OSU's College of Education enrolled in a supervised student teaching internship and an in- No. 22AP-125 2 person seminar corresponding with the internship—the last two classes she needed to graduate. {¶ 3} According to OSU's policies, Smith, as well as every other enrolled student, were "financially responsible to The Ohio State University for payment of all tuition, room and board fees, and related costs added to the student account" including "fees." (Appellant's Memo. in Opp. to Class Certification, Ex. A, A Buckeye's Guide to Academic Policies, hereinafter "Academic Policy," at 37.) The Academic Policy described the fees that could be accessed, in part pertinent to this case, as follows: Instructional Fee The Instructional Fee is used to fund instructional costs at the university. Students who are taking classes at more than one Ohio State campus during the same term are assessed fees based on the campus where they are taking the most instructional credit hours. General Fee The General Fee is mandated by the State of Ohio for the funding of non-instructional student services. At Ohio State, general fees provide student services that contribute to students' emotional and physical well-being as well as their cultural and social development outside formal instruction. These student services include Counseling and Consultation Services, Student Health Services, Disability Services and the Multicultural Center. Learning Technology Fee Some majors charge a Learning Technology Fee to pay for certain technology-related expenses within the primary program. [And providing a link to a fee table for particular majors.] Program Fee Some majors charge a Program Fee to pay for certain program- related expenses. [And providing a link to a fee table for particular majors.] Course Fee Course Fee(s) fund additional costs for specific courses. Any courses that require added materials and/or equipment will have this fee. [And providing a link to a fee table for particular courses.] *** No. 22AP-125 3 Distance Education fee Instruction in distance education courses occurs via technology; they have no scheduled in-classroom or on-site activities. Students enrolled exclusively in distance education courses are assessed a distance education administration surcharge of $100 per student per term. For these students, site-based fees (COTA Fee, Recreation Fee and Ohio Union Fee) are waived. * * * If a student has any regular or "hybrid" courses (regular courses that also have a significant distance education component but are not exclusively distance education) in addition to distance education classes, all regular fees are assessed. [And providing a link to a fee table for programs specifically designed as distance learning.] * Student Activity Fee All students at the Columbus campus are assessed a Student Activity Fee each term. This fee is used to fund major campus events planned by the Ohio Union Activities Board, student organizations, student governments, the Discount Ticket program, Buck-I-SERV (the alternative breaks program), local community service initiatives, and some of Ohio State's largest and most traditional campus programs. * COTA Fee The COTA Fee provides students at the Columbus campus unlimited use of Central Ohio Transit Authority (COTA) services each term. (Id. at 37-40.) Out-of-state residents, such as Smith, also incurred a surcharge as compared to Ohio residents. {¶ 4} The Academic Policy required students to "agree to [a] Financial Responsibility Statement before they can register for classes each term." (Id. at 41-42.) The Financial Responsibility Statement reiterates the student's agreement to be "financially responsible to The Ohio State University for payment of all tuition, room and board fees and related costs added to [the student's] account" and sets forth the student's "promise to pay any fees, fines or penalties" related to attendance at the university. (Appellant's Memo. in Opp. to Class Certification, Ex. J, Financial Responsibly Statement at 1.) {¶ 5} According to Smith, for the spring 2020 semester, she paid OSU a total of $15,548.77 in fees comprised of: $4,584.00 instructional fee (i.e., tuition), a $10,488.50 No. 22AP-125 4 non-resident surcharge on her tuition, a $186.00 general fee, a $37.50 student activity fee, a $90.00 learning technology fee, a $74.87 recreational fee, a $74.40 student union facility fee, and a $13.50 COTA bus fee. (Appellee's Brief at 28.) On or about January 6, 2020, Smith began both her internship, which involved a 12-week field placement in a local public school district classroom, and her reflective seminar, which was held in-person on OSU's Columbus campus. {¶ 6} The semester proceeded without incident until February 2020, when the COVID-19 pandemic struck the United States. In response to the pandemic emergency, the State of Ohio mandated, among other restrictions and with limited exceptions, stay-at- home orders and the closure of schools. As a result, on March 16, 2020, following spring break, OSU transitioned all in-person classes to remote instruction and closed its campus facilities. The public school district where Smith was placed for her internship likewise ceased in-person instruction. Consequently, Smith's in-person internship halted, and her seminar transitioned to remote instruction. Smith participated in asynchronous student teaching in the form of "read aloud[s]" and completed alternative assignments for her seminar. (Smith Depo. at 80.) OSU considered the combination of in-person instruction, the read alouds, and alternative activities sufficient for Smith to complete her course requirements, and Smith graduated on-time in May 2020 with a degree in Early Childhood Education. OSU provided Smith a partial, pro-rated refund for room and board and a refund for the recreational fee but did not refund her tuition or the other fees it had charged. {¶ 7} On May 21, 2020, Smith filed a class action complaint against OSU claiming breach of contract, unjust enrichment, and conversion.1 In her complaint, Smith states the class action lawsuit is brought "on behalf of all people who paid tuition and fees for the Spring 2020 academic semester * * * and who, because of [OSU's] response to [the COVID- 19] pandemic, lost the benefit of the education for which they paid, and/or the services for which their fees paid, without having their tuition and fees refunded to them." (Compl. at 1.) Smith alleged that she paid for a full semester of in-person classes with access to the OSU campus, but, for approximately half the semester, OSU instead provided her with online classes, which Smith asserted are "subpar" and "no way the equivalent" of in-person education. (Compl. at 2, 7.) Smith contended OSU's tuition and fees for in-person 1 Smith voluntarily dismissed the conversion claim. No. 22AP-125 5 instruction were higher than for on-line instruction because in-person instruction encompasses a different, more robust experience beyond academic instruction. Smith's theory of the case centered on her entering a binding contract with OSU through the admission agreement and payment of tuition and fees, and that she and members of the class "suffered damage as a direct and proximate result of [OSU's] breach, including but not limited to being deprived of the education, experience, and services to which they were promised and for which they have already paid." (Compl. at 11.) {¶ 8} On June 30, 2020, OSU filed a motion to dismiss pursuant to Civ.R. 12(B)(6). The trial court denied the motion to dismiss on September 9, 2020. {¶ 9} Smith moved for class certification on June 25, 2021. Smith contended the central question to be answered by the class action is: "Should [OSU] be allowed to keep the tuition and fees that students paid for in-person instruction during the Spring 2020 semester, or should it instead be required to refund a portion of that money because it did not provide the services that students paid for?" (Mot. for Class Certification at 1.) According to Smith, the "handbooks, catalogs, policies, and brochures will provide the basis for any contractual terms across the board on a classwide basis." (Mot. for Class Certification at 12.) Smith asserted OSU breached its contract with her and class members when it terminated in-person classes on March 9, 2020. (Mot. for Class Certification at 12.) As to injury caused by the breach, Smith asserted: "none of the undergraduate students at OSU received the full semester of in-person classes that they paid for" but instead received online classes that "she intends to show (through expert testimony) that she should have been charged less for the substitute remote instruction that OSU provided." (Mot. for Class Certification at 3, 12.) She contended the trial court need not "adjudicate whether remote instruction was an adequate substitute for in-person instruction, but rather whether such a question raises a classwide issue" of "economics (i.e., what are the market differences in pricing for in-person instruction vs. emergency remote instruction)." (Mot. for Class Certification at 3.) {¶ 10} These experts, according to Smith, "have also set out the methods that they will use to measure damages on a classwide basis." (Mot. for Class Certification at 13.) Her survey expert, Steven P. Gaskin, "has designed 'a market research survey and analysis' that will enable him 'to assess the extent of any reduction in market value resulting from the No. 22AP-125 6 closure of the OSU campus (measured in dollars and/or percentage terms), meaning the difference in market value between in-person classes and full access to OSU's campus and facilities, compared to the market value of virtual classes and no access to OSU's campus and facilities' " using a survey methodology called "conjoint analysis." (Mot. for Class Certification at 13.) {¶ 11} According to Gaskin's declaration provided in support of the motion for class certification, this methodology is appropriate where the objective is "to determine the relative market values of a product or service with and without a particular product or service feature or claim on the label or given the disclosure or non-disclosure of a product or service feature at the time and point of acceptance" and "provide valid and reliable measures of consumer choices." (Gaskin Declaration at 3, 4.) Gaskin used similar methodologies in class actions involving consumer products such as motor vehicles, software, internet modems, LED televisions, chainsaws, cereal, iPhones, and pain medicine. In his deposition, Gaskin stated that he had not previously conducted a conjoint survey regarding university tuition prices and could not recall any other conjoint surveys used in this way. {¶ 12} The nuanced survey design developed by Gaskin elicits responses based on certain defined "features" or "attributes" of an educational experience but is "independent from the pandemic"; it "assum[es] there are two safe * * * educational experiences available." (Gaskin Depo. at 97, 107-08, 111, 147.) Although he agreed that some students' preferences changed during the pandemic for health and safety reasons, he did not account for those preferences in his survey design. (Gaskin Depo. at 107-09.) In other words, the survey design is based on student preferences in a hypothetical safe world without "the added glitch that it might kill them to do one or the other" when evaluating preferences. (Gaskin Depo. at 109, 164.) Along these same lines, according to Gaskin, the design of the survey did not account for students who valued graduating more than the mode of the instruction. (Gaskin Depo. at 164.) {¶ 13} Gaskin had not conducted the survey since he had not been asked to do so; he proposed the conjoint analysis survey "will be" pretested at some point and then conducted via a web-based software system that "will be" programmed. (Gaskin Declaration at 12.) According to Gaskin, "[t]he results obtained from conducting the No. 22AP-125 7 conjoint analysis survey will allow [him] to calculate the reduction in market value (measured in dollars and/or percentage terms) attributable to the closure of OSU campus in Spring 2020." (Footnote omitted.) (Gaskin Declaration at 25.) During his August 24, 2021 deposition, Gaskin agreed that he could not opine with a reasonable degree of scientific certainty that there is a reduction in market value between in-person classes with full access to the campus and virtual classes with no access to the campus at OSU since he had not yet conducted any surveys or analysis. (Gaskin Depo. at 27-32; Gaskin Declaration at 12.) {¶ 14} According to Smith, once Gaskin issues findings expressed as a percentage of an overpayment factor, Smith's damages expert, Colin B. Weir, would then calculate tuition overpayment by multiplying the percentage overpayment factor by the total tuition that the class paid, prorated for the time period of remote instruction at issue. In his deposition, Weir stated that, although his client (Smith and her team of lawyers) expected a "likely" outcome after the survey is performed, he declined to say he had an expectation of the outcome. (Weir Depo. at 44.) The survey, according to Weir, "tests [a] hypothesis" that could be disproven by the results of the survey—a scenario that Weir recalled occurring in previous, unrelated surveys. (Weir Depo. at 44-45.) {¶ 15} On September 1, 2021, OSU moved to strike the declarations and exclude the testimony of Smith's experts, but the motion was denied by the trial court. OSU additionally opposed the motion for class certification on its merits, arguing that Smith failed to carry her burden to show class certification is warranted under the rigorous analysis required under Civ.R. 23. In OSU's view, Smith failed to establish common issues of fact exist, let alone predominate, since there is no common, class-wide proof of either breach of contract or injury and because the fact and extent of injury requires individual inquiries, which Smith's experts failed to take into account. OSU further argued the conjoint analysis methodology proposed by Smith's expert's is unreliable and untested in assessing university tuition, and, regardless, is "speculation"—no part of it had yet been performed to stand as evidence of class-wide injury sufficient to meet Civ.R. 23 requirements. (Memo. in Opp. at 20.) {¶ 16} To contrast Smith's experts' potential finding of economic injury, OSU provided a supporting affidavit and official documents of the University Registrar showing No. 22AP-125 8 OSU offered four different modes of instruction in Spring 2020—in-person, hybrid, distance enhanced, and distanced learning—each "identical" in cost. (Bricker Aff., Ex. A at 3.) Further, each mode of instruction had, built-in, the potential for remote instruction regardless of a state of emergency: an in-person course was generally defined to include up to 24 percent of remote instruction; a hybrid course involved a combination go in-person and online instruction with 25-74 percent of student activities completed online; a distance enhanced course offered 75-99 percent of student activities online; and a distance learning course would be conducted completely online. (Memo. in Opp. at 3; Bricker Aff., Ex. A at 2-3; July 6, 2021 Letter, Ex. C at 1.) OSU provided an expert report opining the proposed class was not economically damaged by OSU's transition to online instruction for a few weeks during the Spring 2020 semester, and that Smith's experts' proposed methodology was flawed in several key respects. OSU emphasized that, "before registering for classes, students agree to be financially responsible to OSU for the payment of all tuition, room and board fees and related costs that are added to the student's account." (Bricker Aff., Ex. A at 5.) OSU additionally asserted that even if breach and injury could be shown, the amount of damages is not capable of measurement on a class-wide basis, Smith is inadequate as a representative of the class, and the stated class is overbroad, ambiguous, and indefinite. {¶ 17} Smith filed a reply to the memorandum in opposition to class certification on September 29, 2021. Smith argued that the post-COVID-19 "version of OSU should have cost less." (Reply to Memo. in Opp. at 1.) Smith cited to Weir's deposition that explained that, at the point of sale, "[i]f the value of that tuition would be less on a marketwide basis, everybody is injured by an overpayment." (Reply to Memo. in Opp. at 1, citing Weir Depo. at 136.) Therefore, in Smith's view, calculation of overpayment does not depend on individual questions. Smith added, "[b]ecause there is no data on the market price for online-only classes at OSU without campus access, a survey is required to calculate it." (Reply to Memo. in Opp. at 5.) Smith included Gaskin's reply to the report of the OSU's expert, a reply declaration from Weir, and part of a deposition in which Weir addressed injury and explains, "[i]t remains to be seen what the outcome of the Gaskin survey will be. * * * So if the value of that tuition would be less on a marketwide basis, everybody is injured by an overpayment." (Weir Depo. at 135-36.) No. 22AP-125 9 {¶ 18} The trial court held an oral hearing on class certification on December 13, 2021. During the hearing, the trial court expressed that it did not "want the issue of the identification of the class being something that bogs this case down" and that it would like to certify a class in order to reach the merits issues. (Dec. 13, 2021 Hearing Tr. at 23.) The attorneys for both parties likewise acknowledged the trial court's reluctance to consider issues related to the merits of the case at the class certification stage. Smith's attorney stated, "[s]o I know the Court doesn't want to get into the merits at this stage, and I won't do that," while OSU's attorney similarly stated, "[a]nd I understand Your Honor's position here which is you want to get by the class phase and onto the merits." (Dec. 13, 2021 Hearing Tr. at 7, 28.) {¶ 19} OSU declined the court's suggestion to agree to a class definition and persisted in arguing Smith had not met her burden in adducing common evidence that class members suffered an injury to warrant class certification. OSU argued that, in fact, no evidence of common injury exists in this case: Smith's expert was unable to opine whether there is a diminished value since the proposed survey had not yet been done. OSU emphasized that under prevailing case law, "for the class phase, [presenting] the methodology alone is not sufficient." (Dec. 13, 2021 Hearing Tr. at 29.) OSU additionally argued against Smith as a representative of the proposed class. Smith countered that, at the class certification stage, only a methodology for calculating damages is needed; she did not separately address OSU's argument regarding the lack of any common evidence of injury. {¶ 20} In the trial court's view, "[t]he reason that the expert hasn't done [the survey and analysis] is because the plaintiffs don't want to pay him [a large sum of money] to go and do that" and, as a reason to certify the class, that the court believed "getting to the merits of this case is something that is important to do." (Dec. 13, 2021 Hearing Tr. at 18- 19.) The trial court acknowledged the damages issue is "perplexing," but wanted "to give the plaintiffs an opportunity to give their best shot, let me look at it. Let me see what it is." (Dec. 13, 2021 Hearing Tr. at 20.) As to the issue of calculating damages, the trial court signaled that the methodology presented, while "maybe improbabl[e] or difficult[]," was nevertheless sufficient for class certification as long as "it is not in the realm of impossibility." (Dec. 13, 2021 Hearing Tr. at 48.) The trial court added, "[b]ut that's not No. 22AP-125 10 what I'm here to determine today * * * I'm here to determine whether a class should be certified." (Dec. 13, 2021 Hearing Tr. at 48.) {¶ 21} On January 21, 2022, the trial court issued its written decision and judgment entry certifying a class consisting of: "All undergraduate students enrolled in classes at the Columbus campus of The Ohio State University during the Spring 2020 semester who paid tuition, the general fee, student union activity fee, learning technology fee, course fees, program fees, and/or the COTA bus fee." (Jan 21, 2022 Decision at 4 and Judgment Entry at 1.) In doing so, the trial court: accepted Smith's implied contract theory; determined the proposed class is identifiable, unambiguous and not overbroad; found that the injury suffered by the class is "losing the benefit for which they contracted: in-person classes and access to the campus"; found the "proposed * * * model of determining that damages is consistent with its liability case;" and agreed Smith was a proper representative of the class. (Jan 21, 2022 Decision at 2-3, 15.) {¶ 22} Appellant filed a timely notice of appeal.2 II. ASSIGNMENTS OF ERROR {¶ 23} Appellant sets forth eight assignments of error for review: A. In its Decision of January 21, 2022, the trial court erred and abused its discretion in certifying the class because it failed to conduct the "rigorous analysis" required by Civ.R. 23 in determining whether Plaintiff had satisfied the prerequisites for class certification. B. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it found that Plaintiff's claims satisfied the commonality requirement of Civ.R. 23. C. In its Decision of January 21, 2022, the trial court erred and abused its discretion by certifying the class when individual issues of fact predominated as to the existence of an implied contract, of a breach of that contract, of injury and of damages, and a class action was not superior for resolving the controversy. D. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it certified the class, which was overbroad and ambiguous as stated. 2A motion for summary judgment filed on November 5, 2021 by OSU on the basis of liability remains pending before the trial court. No. 22AP-125 11 E. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it held that Plaintiff's claims were typical of the class and that Plaintiff herself was a member of the class she sought to represent. F. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it held that that Plaintiff was an adequate representative, where her alleged injuries differed from other members of the class and where her interests were inherently at odds with a substantial number of the class members. G. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it failed to conduct the "rigorous analysis" required under Civ.R. 23 regarding Plaintiff's experts' proposed methodology to determine liability and damages, and when it failed entirely to consider OSU's expert's report and testimony. H. In its Decision of January 21, 2022, the trial court erred and abused its discretion when it certified the class in a suit over which the court lacked jurisdiction because OSU is an agency or instrumentality of the State, and its decision to temporarily close or restrict access to its facilities in the face of the COVID- 19 pandemic was a basic policy decision characterized by a high degree of official judgment and discretion. III. STANDARD OF REVIEW {¶ 24} A trial court has broad discretion in deciding whether a class action may be maintained, and that conclusion will not be disturbed absent a showing of an abuse of discretion. Egbert v. Shamrock Towing, Inc., 10th Dist. No. 20AP-266, 2022-Ohio-474, ¶ 14, citing Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. However, "a trial court's discretion in deciding whether to certify a class action is not without limits and must be exercised within the framework of Civ.R. 23." Egbert at ¶ 15, citing Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70 (1998). Moreover, as a trial court "does not have discretion to apply the law incorrectly[,] * * * courts apply a de novo standard when reviewing issues of law." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38. IV. ANALYSIS {¶ 25} Because OSU's last assignment of error, labeled "H," asserts the trial court lacked jurisdiction to issue the instant decision on class certification, which, if correct, would render the remaining assignments of error moot, we will address it first. Following No. 22AP-125 12 analysis of the jurisdictional issue, we will proceed to address appellant's assignments of error concerning the merits of the trial court decision on class certification. A. Discretionary Immunity and Jurisdiction of the Court of Claims {¶ 26} OSU argues that discretionary immunity applies in this case because it is an agency or instrumentality of the state, and its decision to temporarily close or restrict access to its facilities in the face of the COVID-19 pandemic was a basic policy decision characterized by a high degree of official judgment and discretion. In OSU's view, because OSU enjoys discretionary immunity, the trial court lacked jurisdiction over Smith's lawsuit since Smith's claims do not fall within the waiver of sovereign immunity in R.C. 2743.02 as required by R.C. 2743.03(A)(1). OSU believes that although it did not raise discretionary immunity to the trial court, it can be raised at any time because it involves a jurisdictional issue. Therefore, OSU contends this court should determine that the trial court erred and abused its discretion when it certified the class in a suit over which the court lacked jurisdiction. {¶ 27} Smith counters that because discretionary immunity is an affirmative defense, and OSU did not raise this issue to the trial court, it has been waived. Smith also argues the discretionary immunity argument fails on the merits since not issuing a partial refund to account for the campus closures is merely implementation of the larger policy decision, and, regardless, courts have not applied discretionary immunity to defeat a breach of contract claim (as opposed to a tort claim) against the state. {¶ 28} The discretionary immunity doctrine provides that the "state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." Al-Jahmi v. Ohio Ath. Comm., 10th Dist. No. 20AP-321, 2022-Ohio-2296, ¶ 80, quoting Reynolds v. State Div. of Parole & Community Servs., 14 Ohio St.3d 68, 70 (1984). "Under Ohio law, immunity is an affirmative defense." Allen v. Dept. of Adm. Servs. Office of Risk Mgt., 10th Dist. No. 19AP- 729, 2020-Ohio-1138, ¶ 21 (considering discretionary immunity issue arising in the court of claims), citing Turner v. Cent. Local Sch. Dist., 85 Ohio St.3d 95, 97 (1999). See Pottenger v. Ohio Dept. of Transp., 10th Dist. No. 88AP-832, 1989 Ohio App. LEXIS 4549, at 6 (Dec. 7, 1989) (stating the defense of discretionary immunity is an affirmative defense No. 22AP-125 13 within the contemplation of Civ.R. 8(C)). Considering precedent explaining the issue of discretionary immunity is an affirmative defense, OSU has not demonstrated that discretionary immunity is jurisdictional in nature. {¶ 29} Since OSU has not shown that discretionary immunity is a jurisdictional bar, it is an issue that OSU should have raised to the trial court to address in the first instance. "A fundamental rule of appellate review is that an appellate court will not consider any error that could have been, but was not, brought to the trial court's attention." Greenberg v. Heyman-Silbiger, 10th Dist. No. 16AP-283, 2017-Ohio-515, ¶ 50, quoting Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 91 Ohio App.3d 76, 80 (9th Dist.1993). For example, this court declined to address an immunity issue where the state defendant raised public duty immunity as an affirmative defense in an answer but did not argue it in the motion to the trial court, and the trial court did not independently address public duty immunity. See, e.g., Al-Jahmi at ¶ 46, fn. 10, 15 (declining to address public duty immunity for the first time where the state defendant raised public duty immunity as an affirmative defense in an answer but did not argue it in the motion to the trial court, and the trial court did not address public duty immunity in its decision.). See also Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 22 (declining to decide issues of immunity before the lower courts had the opportunity to address them in the first instance). {¶ 30} Overall, we find the assigned error lacks merit as to its assertion of a jurisdictional bar, and additionally find it inappropriate to decide, in the first instance, whether OSU is entitled to the defense of discretionary immunity. See Al-Jahmi at ¶ 46. For these two reasons, OSU's assignment of error based on discretionary immunity and jurisdiction fails. {¶ 31} According, we overrule assignment of error H. B. Merits of the Decision to Certify the Instant Class {¶ 32} OSU in its remaining seven assignments of error makes a broad challenge to the trial court's certification of the class in this case. For the following reasons, we find OSU has demonstrated the trial court abused its discretion in failing to conduct a rigorous analysis as required for class certification. No. 22AP-125 14 1. Legal standard and analysis required to support class certification {¶ 33} Ohio courts find seven prerequisites for certification of a class action pursuant to Civ.R. 23: (1) an identifiable class must exist and the definition of the class must be unambiguous, (2) the named plaintiff representatives must be members of the class, (3) the class must be so numerous that joinder of all the members is impracticable ("numerosity"), (4) there must be questions of law or fact common to the class ("commonality"), (5) the claims or defenses of the representatives must be typical of the claims or defenses of the class ("typicality"), (6) the representative parties must fairly and adequately protect the interests of the class, and (7) one of the three requirements for certification set forth in Civ.R. 23(B) must be met. Egbert at ¶ 16, citing Hamilton at 70, 71 (1998), citing Warner v. Waste Mgt., 36 Ohio St.3d 91, 96 (1988); Civ.R. 23. {¶ 34} In this case, Smith moved for certification under Civ.R. 23(B)(3), which sets forth the "predominance" and "superiority" requirement. Specifically, Civ.R. 23(B)(3) states that "[a] class action may be maintained if * : (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (a) the class members' interests in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already begun by or against class members; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (d) the likely difficulties in managing a class action. Civ.R. 23(B)(3). {¶ 35} "[C]lass-action suits are the exception to the usual rule that litigation is conducted by and on behalf of only the individually named parties." Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, ¶ 25. "To fall within that exception, the party bringing the class action must affirmatively demonstrate compliance with the procedural rules governing class actions." Id. Specifically, "[t]he party seeking class action certification pursuant to Civ.R. 23 must prove, by a preponderance of the evidence, that the proposed class meets each of the requirements set forth in the rule." See Egbert at ¶ 17. No. 22AP-125 15 See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54 ("A preponderance of the evidence is defined as that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence."). Correspondingly, "[t]he trial court must carefully apply the requirements of Civ.R. 23 and conduct a rigorous analysis into whether those requirements have been satisfied." Egbert at ¶ 15, citing Hamilton at 70, Felix at ¶ 26, and Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, at ¶ 17. 2. The trial court failed to conduct a rigorous analysis as to the common evidence of class-wide injury (Assignments of Error A and G) {¶ 36} In OSU's first assignment of error, labeled "A," OSU contends the trial court abused its discretion in certifying the class despite failing to conduct the "rigorous analysis" required by Civ.R. 23 in determining whether Smith had satisfied the prerequisites for class certification. (Appellant's Brief at 1, 25.) In assignment of error G, OSU reiterates its position asserting the trial court failed to conduct the required rigorous analysis particularly with regard to Smith's proposed methodology to determine liability and damages. {¶ 37} Smith counters that OSU waived this argument, and, regardless, OSU is incorrect that she failed to demonstrate classwide injury. Smith asserts, "[a]ll class members were injured because they all paid for something that they did not receive: in- person classes with access to the OSU campus. [Smith] is not required [to] provide more at the class certification stage." (Appellee's Brief at 38.) Smith argues that under Felix at ¶ 33, which relied on Comcast Corp. v. Behrand, 559 U.S. 27 (2013), and the "similar standard" stated in Rikos v. Proctor & Gamble Co., 799 F.3d 497, 505 (6th Cir.2015), which was decided a week prior to Felix, "class certification requires a methodology for demonstrating classwide injury and damages, not an actual quantification." (Appellee's Brief at 39.) {¶ 38} Following precedent of this court and the Supreme Court of Ohio concerning the level of analysis required at the class certification stage, we agree with OSU. In explaining a court's duty to conduct a rigorous analysis prior to certifying a class for litigation, the Supreme Court has emphasized that Civ.R. 23 is not "a mere pleading standard." Felix at ¶ 26, quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). No. 22AP-125 16 Contrary to Smith's suggestion, it is not sufficient for class certification purposes that the plaintiff's allegations merely raise " 'a colorable claim.' " Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-217, 2021-Ohio-956, ¶ 15, quoting Cullen at ¶ 34. Rather, the court must determine whether the party seeking class certification "affirmatively demonstrat[ed] compliance with the rules for certification and [is] prepared to prove 'that there are in fact sufficiently numerous parties, common questions of law and fact, etc.' " Felix at ¶ 26, quoting Dukes at 350. {¶ 39} To this point, "a trial court's rigorous analysis of the evidence often requires looking into enmeshed legal and factual issues that are part of the merits of the plaintiff's underlying claims," but review of the merits may "only [be conducted] for the purpose of determining that the plaintiff has satisfied Civ.R. 23." Felix at ¶ 26, citing Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 40. This "analysis requires the court to resolve factual disputes relative to each requirement and to find, based upon those determinations, other relevant facts, and the applicable legal standard, that the requirement is met." Cullen at ¶ 16. {¶ 40} Cullen serves as an illustration of a rigorous analysis of the underlying merits of a plaintiff's claim, and review of the evidence presented, for purposes of determining whether class certification is appropriate. At the outset, the Cullen court emphasized that a court should not avoid evaluating evidence presented on contested issues of merit and reiterated that sufficient evidence must support the trial court's findings on class certification. Among other issues, the Cullen court examined the testimony and reports provided by the plaintiff's experts and found that, contrary to the plaintiff's argument, the experts fell short of establishing common proof of an element of the plaintiff's contract claim. In doing so, the court remarked on the questionable reliability of the scientific theory employed, the lack of sufficient evidentiary foundation for the experts' opinions, and the failure of the experts' opinions to resolve individual questions raised by the facts of the case that would overwhelm any classwide issue. Therefore, the Cullen court determined the trial court abused its discretion in granting class certification since a rigorous analysis of the evidence presented by the parties demonstrated that, under Civ.R. 23(B)(3), individual questions predominated over issues common to the class. No. 22AP-125 17 {¶ 41} This court had occasion to apply the Cullen and Felix standard recently in a similar case. In Cross v. Univ. of Toledo, 10th Dist. No. 21AP-279, 2022-Ohio-3825, we reversed the judgment of the trial court certifying a class of undergraduate students who paid tuition and fees at the University of Toledo during the spring 2020 pandemic. In doing so, while we were mindful of the high bar for reversal in an appeal of a class certification ruling, we nevertheless found the trial court's "perfunctory, conclusory" decision and "fail[ure] to grapple with the relevant law and the parties' arguments" to constitute an abuse of discretion considering the novel and complex issues of the case and, particularly, the plaintiff's theory of common injury as viewed under the Civ.R. 23(B)(3) predominance requirement. Id. at ¶ 39. Therefore, we found the trial court failed to conduct a rigorous analysis necessary for class certification and remanded the matter for further proceedings. {¶ 42} Here, contrary to Smith's assertion of waiver, the parties hotly contested whether Smith provided sufficient proof of injury amenable to resolution on a classwide basis, and OSU contends the trial court's analysis on this issue lacked the necessary scrutiny of the arguments and evidence. " 'Perhaps the most basic requirement to bringing a lawsuit is that the plaintiff suffer some injury.' " Felix at ¶ 36, quoting Schwartz & Silverman, Common Sense Construction of Consumer Protection Acts, 54 U.Kan.L.Rev. 1, 50 (2005). "Although plaintiffs at the class-certification stage need not demonstrate through common evidence the precise amount of damages incurred by each class member, * * they must adduce common evidence that shows all class members suffered some injury." Felix at ¶ 33. "If the class plaintiff fails to establish that all of the class members were damaged (notwithstanding questions regarding the individual damages calculations for each class members), there is no showing of predominance under Civ.R. 23(b)(3)." Felix at ¶ 35. See also Cullen at ¶ 15 (stating that, as a part of a proper rigorous analysis, the trial court must determine whether the party satisfied "through evidentiary proof at least one of the provisions of Rule 23(b) "). (Emphasis added.) {¶ 43} The trial court in this case concluded that each student in the class had been injured by "losing the benefit for which they contracted: in-person classes and access to the campus," and this conclusion served as the basis for nearly every class certification requirement. (Trial Court Decision at 7 (identifiable class), 9 (class representative and membership, numerosity), 11 (commonality, typicality), 12-13 (fair and adequate No. 22AP-125 18 representation), and 15 (predominance, superiority). The trial court treated the fact of closure of the campus and the cessation of in-person classes as dispositive to establishing an injury on behalf of Smith and the class. The trial court explained, "[t]he determination of whether in-person classes ceased and whether the campus was closed is well suited for classwide determination." Id. at 15. The trial court then repeatedly treated Smith experts' model as the means to, eventually, pin down the amount of damages owed to the class and did not consider OSU's challenge to it: "the precise application of [Smith]'s [market value] model to the students' various circumstances, and the resultant amount of damages for each student, is not addressed at this time." Id. at 15. {¶ 44} Several problems undermine this analysis. First, instead of considering whether Smith presented sufficient evidence of the economic injury she claimed to have occurred, the trial court here assumed a "benefit" was lost based only on the fact OSU closed its campus and switched to remote classes and services in response to the pandemic. In other words, the trial court either accepted Smith's allegations as true, as would occur under a pleading standard, or believed the asserted breach in this case—closure of campus and temporary termination of in-person classes and services—itself served as evidence of economic injury. Either scenario constituted an abuse of discretion. See Felix at ¶ 26 (stating Civ.R. 23 is not "a mere pleading standard"); Leiby v. Univ. of Akron, 10th Dist. No. 05AP-1281, 2006-Ohio-2831, ¶ 24, citing Metro. Life Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 235 (1st Dist.1994) (finding that, to recover on a breach-of-contract claim, the claimant must prove not only that the contract was breached, but that the claimant was injured due to the breach); Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn., 10th Dist. No. 12AP-647, 2013-Ohio-3890, ¶ 23 ("Generally, to recover for breach of contract, a plaintiff must prove the existence of economic damage as the result of the breach. * * * Recovery does not require proof of the amount of the economic damage."). Claris, Ltd. v. Hotel Dev. Servs., LLC, 10th Dist. No. 16AP-685, 2018-Ohio-2602, ¶ 28, quoting Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144, (9th Dist.1996) ("[d]amages are not awarded for a mere breach of contract; the amount of damages awarded must correspond to injuries resulting from the breach"). {¶ 45} Second, the trial court did not review the evidence and arguments raised by OSU contesting proof of injury. OSU argued that, having not conducted any portion of the No. 22AP-125 19 market survey or analysis, Gaskin admitted he could not opine to a reasonable degree of scientific certainty that OSU students were injured in this case.3 Moreover, according to Gaskin's report and testimony, the methodology presented to potentially answer the question of whether the class suffered any common injury due to the campus closure and switch to remote classes excludes any survey questions or consideration of market preferences during an emergency such as the pandemic that forced the closure here. OSU submitted an expert report that made this point, as well as evidence that students paid the same for in-person and online learning and that the in-person teaching modality carried the possibility of substantial remote instruction even in a normal semester. {¶ 46} The trial court, in assuming an injury from the fact of closure and termination of in-person classes, did not assess these complicated and difficult considerations, particularly as they relate to whether Smith presented any common evidence—or even a method to possibly determine—that class members suffered an economic injury considering the effect of the pandemic.4 As demonstrated by statements during the oral hearing, the trial court did not believe that issues of merit should be considered at the class certification stage and sought to expediate defining a class in order to examine those merits issues at the next stage of litigation. Thus, having accepted the closure of campus and temporary termination of in-person classes and services as an injury per se, and having failed to consider how the pandemic affects class certification in this case at all, the trial court did not undertake a rigorous analysis with respect to the number and nature of individualized inquires that might be necessary to establish liability with respect to both tuition and fees. {¶ 47} Finally, the trial court folded Smith's unjust enrichment claim and arguments as to certain fees into the same generalized injury analysis without providing any individualized consideration of those issues. See, e.g., Cross at ¶ 36 (finding the trial court failed to conduct a rigorous analysis as to certain fees where the trial court acknowledged 3 In other words, without an expert opinion as to this issue, the plaintiff's case here is arguably weaker than that presented in Cullen, which included experts' opinions as common proof of a breach of contract claim under the predominance requirement, but, according to the Supreme Court, those opinions lacked a sufficient evidentiary foundation. 4 We note that even Smith agrees speculation is insufficient to "tip the scales in a class certification ruling." (Reply to Memo. in Opp. at 3, citing Bridging Communities Inc. v. Top. Fin. Inc., 843 F.3d 1119, 1125 (6th Cir.2016).) No. 22AP-125 20 the parties' competing factual positions on the fees but "went no further in addressing how issues of commonality or predominance applied to [them]"). {¶ 48} Considering all the above, we find the trial court's conclusion that OSU's (alleged) breach of implied contract to hold in-person classes on an open campus constituted—in and of itself—proof of a common injury suffered by the class was an error of law, and the trial court's failure to rigorously analyze the requirements for class certification due to this error constitutes an abuse of discretion. Therefore, we conclude OSU's assignments of error challenging the trial court's rigorous analysis, labeled A and G, have merit. We further find that, because the error permeated the trial court's reasoning throughout its decision, our decision in this regard renders the remaining assignments of error, labeled B, C, D, E, and F, moot at this juncture. App.R. 12(A)(c). {¶ 49} Accordingly, assignments of error A and G are sustained. V. CONCLUSION {¶ 50} Having overruled assignment of error H, sustained assignments of error A and G, and determined assignments of error B, C, D, E, and F to be moot, we reverse the judgment of the Court of Claims of Ohio. The cause is remanded for further proceedings consistent with this decision. Judgment reversed and cause remanded. BEATTY BLUNT and McGRATH, JJ., concur. _____________	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484684/	[Cite as In re B.T., 2022-Ohio-4093.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT In the Matter of: : No. 21AP-485 B.T., : (C.P.C. No. 19JU-6052) [K.M. : (ACCELERATED CALENDAR) Appellant]. : D E C I S I O N Rendered on November 17, 2022 On brief: Robert J. McClaren, for appellee Franklin County Children Services. On brief: Campbell Law, LLC, and April F. Campbell for appellant. APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch McGRATH, J. {¶ 1} Appellant, K.M. (hereafter "K.M." or "mother"), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting permanent custody of her daughter, B.T., to appellee, Franklin County Children Services ("FCCS" or "agency"). {¶ 2} The following procedural background is taken primarily from the trial court's decision and entry granting the motion for permanent custody. W.T. (hereafter "W.T." or "father") and K.M. are the parents of B.T., born on May 20, 2018. Paternity was established between father and B.T. on the basis of a paternity affidavit. {¶ 3} B.T. was initially "removed from the custody of her parents * * * by emergency custody order of June 14, 2018, [and] then a temporary custody order * * * of June 15, No. 21AP-485 2 2018." Several subsequent cases "were dismissed and refiled by operation of law because the Court was not able to reach disposition within the ninety-days from filing required by law." (Sept. 28, 2021 Decision at 4.) {¶ 4} The case filings arose out of "an incident when [B.T.], not yet one month old, was * * * admitted to the ICU at Nationwide Children's Hospital on June 13, 2018" and found to "have a skull fracture on both sides, swelling of the brain, and swelling of the scalp. She had been vomiting her formula for three days at home." The parents "first denied any abuse." The father "indicated mother slightly hit the infant's head on the bassinet causing a bump." The parents subsequently "altered their story, indicating that [W.T.] fell while carrying [B.T.] down the stairs." (Sept. 28, 2021 Decision at 4.) {¶ 5} During the prior case filings, "mother had failed to complete random urine screens; missed most of her [American Court Services] tests. She was however on Suboxone and receiving counseling from Primary One." (Sept. 28, 2021 Decision at 4-5.) Father "completed a drug/alcohol assessment in January of 2019. He missed all but two of the 38 drug screens provided. Both were positive for marijuana." Both parents completed parenting classes; father "switched jobs several times during the past few months" while mother "was at home with the other two siblings of [B.T.]" Although mother "had removed [W.T.] from the house, he was still visiting the siblings there. His address, and whereabouts, however[,] at the time of [the most recent] complaint were unknown." B.T. "remained in the temporary custody of FCCS since the first filing and was placed with paternal grandparents A.B. and J.B." (Sept. 28, 2021 Decision at 5.) {¶ 6} On May 20, 2019, FCCS filed the complaint in the instant case alleging that B.T. was an abused, neglected, and dependent child. On May 21, 2019, during a preliminary hearing, a magistrate of the trial court granted FCCS's request for a temporary order of custody ("TOC"). During that hearing, counsel for mother was re-appointed and made an appearance, and the trial court appointed counsel for father. Abbie Obenour, the appointed guardian ad litem ("GAL"), also made an appearance "along with the prosecutor." (Sept. 28, 2021 Decision at 5.) {¶ 7} On August 1, 2019, the GAL filed a report "recommending temporary custody and commitment to the grandparents." On August 7, 2019, the magistrate conducted an adjudicatory hearing, at which time "the first and second counts of abuse, [and] the neglect No. 21AP-485 3 and dependency counts were dismissed at the request of the State." (Sept. 28, 2021 Decision at 5.) On September 16, 2019, the magistrate issued a decision finding B.T. to be an abused child pursuant to R.C. 2151.031(D). The magistrate terminated the TOC and issued an order of temporary court custody ("TCC"). The trial court subsequently filed a judgment entry adopting the magistrate's decision. {¶ 8} On February 7, 2020, FCCS filed a motion for permanent court commitment ("PCC"), also known as permanent custody, of B.T. On March 6, 2020, the GAL filed a report recommending that the motion for PCC be granted. {¶ 9} On February 12, 2021, the GAL filed her "final report recommending permanent court custody." On February 18, 2021, the date scheduled for the hearing on the PCC motion, mother could not participate by Zoom because she could not "enable her sound." In addition, the GAL "wished to have the opportunity to observe mother and child at a visit." The trial court "advised mother to contact the [GAL] to arrange a mutually agreeable time for this observation." (Sept. 28, 2021 Decision at 6.) The court continued the matter and set a new hearing date for August 11, 2021. {¶ 10} On August 5, 2021, the GAL filed a "supplemental report." (Sept. 28, 2021 Decision at 6.) On August 9, 2021, mother filed a motion to exclude the testimony of the GAL. FCCS filed a response in opposition to the motion. {¶ 11} The trial court conducted the hearing on the PCC motion on August 11 and 12, 2021. At the start of the proceedings, the trial court denied mother's motion to exclude the testimony of the GAL. During the hearing, FCCS presented five witnesses: (1) mother (as on cross-examination); (2) A.B., the paternal step-grandmother; (3) J.B., the paternal grandfather; (4) Abbey Sebert, the FCCS caseworker for the family; and (5) Abbie Obenour, the GAL. Mother presented the testimony of one witness, Angela Look, her friend. {¶ 12} On September 28, 2021, the trial court filed a decision and entry granting FCCS's motion for permanent custody. In its decision, the trial court found by clear and convincing evidence that B.T. "has been in the custody of [FCCS] for more than 12 out of 22 consecutive months," pursuant to R.C. 2151.414(B)(1)(d), and that permanent custody was in B.T.'s best interest. (Sept. 28, 2021 Decision at 16.) The court therefore ordered B.T. to be committed to the permanent custody of FCCS for purposes of adoption. No. 21AP-485 4 {¶ 13} On appeal, mother sets forth the following two assignments of error for this court's review: [I.] The lower court reversibly erred with respect to the GAL: A. by failing to apply and enforce R.C. 2151.218(D) and (I), Sup.R. 48, Juv.R. 4, and Loc.R. 4 with respect to the GAL; B. by allowing the GAL's testimony as to the child's best interest when it was not competent and should have been excluded as [K.M.]'s counsel requested. C. by failing to exclude her testimony when the GAL did not conduct at least one interview with [B.T.] where no caregiver or parent was present. D. By failing to exclude her testimony when the GAL did meet with [B.T.] at least once a month under R.C. 2151.281 and Loc.Rul 4(D). [II.] The trial court's decision to grant permanent custody to the agency should be reversed for lack of clear and convincing evidence, under the manifest weight standard, as prejudicial error, and a due process violation: E. The record is devoid of reliable evidence as to [B.T.'s] wishes. F. The lower court relied on inadmissible hearsay regarding "failed" drug screenings. G. The record is devoid of evidence that FCCS made diligent efforts to reunify [B.T.] with her mother. (Sic passim.) {¶ 14} Under the first assignment of error, mother asserts the trial court erred in failing to comply with R.C. 2151.281(D) and (I), as well as Sup.R. 48, and Loc.Juv.R. 4. Mother further contends the trial court erred in considering testimony by the GAL as to B.T.'s best interest, and by failing to exclude the testimony of the GAL on grounds the GAL (a) filed an untimely report, (b) did not conduct at least one interview with B.T. and a parent, and (c) failed to testify that she met with B.T. at least once a month. {¶ 15} R.C. 2151.281 "governs the appointment of a GAL," and "requires a juvenile court to 'appoint a guardian ad litem, subject to rules adopted by the supreme court, to No. 21AP-485 5 protect the interest of a child in any proceeding * * * held pursuant to [R.C.] 2151.414.' " In re A.S., 10th Dist. No. 21AP-249, 2022-Ohio-1861, ¶ 49, quoting R.C. 2151.281(B)(1). {¶ 16} R.C. 2151.281(D) delineates a juvenile court's "responsibility regarding the appointment of a GAL," while R.C. 2151.281(I) "governs a GAL's responsibilities and duties." R.C. 2151.281(D) states as follows: The court shall require the guardian ad litem to faithfully discharge the guardian ad litem's duties and, upon the guardian ad litem's failure to faithfully discharge the guardian ad litem's duties, shall discharge the guardian ad litem and appoint another guardian ad litem. The court may fix the compensation for the service of the guardian ad litem, which compensation shall be paid from the treasury of the county, subject to rules adopted by the supreme court. {¶ 17} R.C. 2151.281(I) provides in part as follows: The guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child shall perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court. {¶ 18} This court has observed that "[t]he Ohio Rules of Juvenile Procedure, which were recently amended effective July 1, 2020, provide that a juvenile court 'shall appoint a guardian ad litem to protect the interests of a child * * * in a juvenile court proceeding when * * * [a]ny proceeding involves allegations of abuse, neglect, or dependency, voluntary surrender of permanent custody, or termination of parental rights as soon as possible after the commencement of such proceeding.' " A.S., at ¶ 50, quoting Juv.R. 4(B)(5). Further, "Article IV, Section 5(A)(1) of the Ohio Constitution provides the Supreme Court of Ohio with general superintendence over all the courts in the state." Id. at ¶ 51. Thus, "[i]n accordance with this authority, the Supreme Court originated the Rules of Superintendence for the Courts of Ohio, including the courts of common pleas and the divisions thereof." Id., citing Sup.R. 1; Arlington Bank v. Bee, Inc., 10th Dist. No. 10AP-41, 2010-Ohio-6040, ¶ 16; In re D.E., 10th Dist. No. 20AP-83, 2021-Ohio-524, ¶ 72. The Rules of No. 21AP-485 6 Superintendence "were recently amended," effective January 1, 2021, and "contain certain specified provisions that apply in domestic relations and juvenile court cases where the court appoints a GAL." A.S. at ¶ 51. {¶ 19} At the time the GAL in the instant case filed her final report and testified, 2021 Sup.R. 48.03(D) was in effect, and that rule provides: (D) Duties of the Guardian ad Litem. Unless specifically relieved by the court, the duties of a guardian ad litem shall include, but are not limited to, the following: (1) Become informed about the facts of the case and contact all relevant persons; (2) Observe the child with each parent, foster parent, guardian or physical custodian; (3) Interview the child, if age and developmentally appropriate, where no parent, foster parent, guardian, or physical custodian is present; (4) Visit the child at the residence or proposed residence of the child in accordance with any standards established by the court; (5) Ascertain the wishes and concerns of the child; (6) Interview the parties, foster parents, guardians, physical custodian, and other significant individuals who may have relevant knowledge regarding the issues of the case. The guardian ad litem may require each individual to be interviewed without the presence of others. Upon request of the individual, the attorney for the individual may be present. (7) Interview relevant school personnel, medical and mental health providers, child protective services workers, and court personnel and obtain copies of relevant records; (8) Review pleadings and other relevant court documents in the case; (9) Obtain and review relevant criminal, civil, educational, mental health, medical, and administrative records pertaining to the child and, if appropriate, the family of the child or other parties in the case; No. 21AP-485 7 (10) Request that the court order psychological evaluations, mental health or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; (11) Review any necessary information and interview other persons as necessary to make an informed recommendation regarding the best interest of the child. {¶ 20} In accordance with the above language "[m]any of the Rules of Superintendence impose a requirement that the GAL meet with, interview, or observe the children." D.E. at ¶ 82. Loc.Juv.R. 4 imposes "similar standards" and "duties" as those set forth in the Rules of Superintendence. Id. {¶ 21} As noted, mother contends the GAL failed to discharge statutory duties, as well as duties required under the Rules of Superintendence and the local rules. Mother maintains the trial court erred in failing to exclude the testimony of the GAL on grounds the GAL had yet to observe mother with B.T. during the time the case was pending, and because the GAL failed to testify that she met with B.T. at least one time per month. Mother also contends the testimony should have been excluded because the GAL's report was untimely. {¶ 22} In response, FCCS argues that, while counsel for mother preserved for review the issue regarding attempts by the GAL to observe a visit with mother and B.T., the remaining arguments were not raised by mother's counsel before the trial court. FCCS further argues the GAL competently carried out her duties and filed a timely report. {¶ 23} As set forth under the facts, the hearing on the PCC motion was initially scheduled for February 18, 2021. During the start of those proceedings, counsel for mother asserted that "the new [GAL] Rules adopted in December of last year * * * mandates that the Guardian will observe the child with the parent and the caregiver." Counsel for mother represented that "through a combination of [various] things that are not the fault of the [GAL], this has not taken place." (Feb. 18, 2021 Tr. at 5.) Counsel also represented that mother, who was participating in the proceedings via Zoom, "can't hear for whatever reason." (Feb. 18, 2021 Tr. at 6.) {¶ 24} Based upon the circumstances presented at the time of the hearing, the trial court indicated it would continue the matter. As part of a discussion addressing a new No. 21AP-485 8 hearing date, the GAL informed the court she was "going to have a baby sometime in the next three weeks." (Feb. 18, 2021 Tr. at 11.) In response to a scheduling inquiry by the trial court, the GAL stated she would be available in "May, at the earliest." The trial court, upon review of its docket, stated that "my next * * * available hearing would be in August." (Feb. 18, 2021 Tr. at 12.) The court also discussed the issue of the GAL having "the opportunity for you to observe mother and child[]." Abbey Sebert, the FCCS caseworker, informed the court that visits were "scheduled at the agency right now," but that mother "just missed several of them." (Feb. 18, 2021 Tr. at 13.) The trial court, noting that the visits were "scheduled," directed that "mom will have to make it a point to schedule a visit," and the court requested that counsel for mother "help coordinate this." (Feb. 18, 2021 Tr. at 14.) {¶ 25} With regard to the issue of scheduling a visitation, the GAL made the following request to the trial court: I would ask that the Court order the mother or her counsel stay in touch with me about when visits are occurring. Mother's phone number changes often and * * * she'll schedule these visits and then she doesn't show up and this was a problem that I had when I initially investigated this case. I attempted several times, mom wasn't there, and * * * I don't want to play this game. I would really appreciate * * * some kind of * * * communication so that I don't have to spend weeks chasing everybody down and making multiple unsuccessful attempts. I just * * * don't think that's a realistic or fair expectation for anybody, currently. (Feb. 18, 2021 Tr. at 15.) {¶ 26} In response to the GAL's request, the trial court directed counsel for mother to "make that clear to mom that she needs to be in touch with the [GAL] when she is going to visit * * * so the [GAL] is not going there on a fool's errand." (Feb. 18, 2021 Tr. at 16.) The trial court therefore continued the matter until August 11, 2021, "in that the [Z]oom hearing failed as to mother's connectivity and also we're continuing it for [the GAL] to observe mother and [B.T.] and that mother connect with the [GAL] to arrange it." (Feb. 18, 2021 Tr. at 20-21.) In a continuance entry filed February 18, 2021, the trial court made a notation directing mother to connect with the GAL. No. 21AP-485 9 {¶ 27} At the start of the proceedings on August 11, 2021, counsel for mother objected to the "expected testimony of the [GAL]," asserting that the final report of the GAL was late, and that the GAL had failed to meet with mother and [B.T.] (Aug. 11, 2021 Tr. at 23.) Counsel for mother acknowledged that "admittedly my client was not easy * * * for the [GAL] to contact or see." Counsel further stated that if he could "proffer" the testimony of his client (i.e., mother), it "would be that she tried to meet with the [GAL and] was unable to do it, was unable to arrange a visit. * * * So * * * I understand the circumstances were difficult for the [GAL]." (Feb. 18, 2021 Tr. at 25.) Counsel for FCCS objected to the motion, arguing that "the [GAL] had made diligent efforts to try to observe visitation." (Feb. 18, 2021 Tr. at 28.) {¶ 28} Regarding the timeliness of the GAL's report, and in response to questioning by the trial court, counsel for mother acknowledged the GAL had filed more than one report. When further questioned by the trial court as to how "the last report" is "different from the report that the [GAL] wrote * * * August 5, 2021," counsel responded: "It probably differs in no material way." (Feb. 18, 2021 Tr. at 27.) {¶ 29} In considering the merits of mother's argument, the trial court indicated it had reviewed the GAL's reports of February and August 2021 and did not "see that [the GAL] ever changed her mind, * * * it's been the same recommendation basically the whole time." The trial court further observed that "in reading those prior reports, the [GAL] outlined her attempts to contact to visit with the parents at visitations but they were so sporadic in visiting that she could never do that and then she tried later to visit with the parents at the grandparent's home * * * and the same thing happened, she could never schedule a time when the parents were visiting at the grandparent's home * * * so * * * there were attempts made by the [GAL]." (Feb. 18, 2021 Tr. at 29.) The trial court also cited the fact that counsel for mother filed the motion to exclude "two days ago." (Feb. 18, 2021 Tr. at 22.) Noting "[t]here's not been any allegations that the [GAL] didn't fulfill all her other obligations," and that counsel for mother will "have the right to cross examine the [GAL]," the trial court held that "the need of the child for resolution outweighs a last-minute motion for a continuance and I don't believe you've met any standards for asking me to not allow the [GAL] to testify, so I'm overruling the motion." (Feb. 18, 2021 Tr. at 31-32.) No. 21AP-485 10 {¶ 30} During the hearing on the PCC motion, the GAL testified as to her efforts to observe B.T., as well as her efforts to observe B.T. with her parents. Specifically, the GAL testified in part as follows: I have observed B.T. in her home with [the grandparent caregivers] many times over the course of the last three years. I have attended all hearings here at the Franklin County Juvenile Court concerning [B.T.]. I have communicated with the ongoing caseworker, Abbey Sebert, * * * consistently throughout the last three years. I have attended most but not all case plan review meetings at the agency, those happen about every ninety days. * * * I don't get them all, they don't schedule those with me in advance and sometimes I have conflicts but if I'm available I go or I call. I have * * * attempted to observe [B.T.] with her parents. I did go to [FCCS] at 4017 East Main Street twice in the Fall of 2018 to try to observe a visit and both times the parents did not attend so I was unsuccessful. (Aug. 12, 2021 Tr. at 78.) {¶ 31} The GAL also testified regarding the filing of reports, noting that she filed a "preliminary report prior to the pretrial hearing on the agency's PCC motion, and then we have had a trial scheduled and continued several times, * * * and I * * * did file[] a report prior to our first trial date, and then we were continued at that time into February of 2021 and I filed another written report in February of 2021, we were continued again here to our dates in August, and I filed a supplemental report last week prior to our trial date today." (Aug. 12, 2021 Tr. at 79.) {¶ 32} The GAL further testified more specifically about her efforts to arrange a visit to observe B.T. and mother subsequent to the February 2021 hearing, stating in part as follows: So * * * I did request at that time that the Court issue an order that [mother] reach out and * * * proactively communicate with me to let me know when she would be visiting with [B.T.] so that I could come and observe. The Court did in fact issue that written order, it's written on the continuance that was docketed on February 22, 2021. And the reason I asked for that order is because - - and I think the Court has been able to observe this over the last couple of days, scheduling and communication with [mother] has been very chaotic and frustrating and inconsistent so * * * I have tried. I have left voicemails, sometimes I didn't have a phone number. In February of this No. 21AP-485 11 year I didn't have a phone number and * * * I asked [counsel for mother] for the phone number and he never responded. There's only so much I can do without * * * the other * * * person I'm supposed to be observing * * * meeting me halfway with respect to communication. You know, I'm not psychic and * * * my failure to observe [B.T.] with her mother as part of my investigation, I really do not feel was a lack of due diligence on my part, I tried - - I tried. *** I called and called. Often what would happen * * * is that * * * a referral would be made to the visitation department at [FCCS] for visits to be scheduled at the agency and then it would take several weeks, if not several months, for the visits to actually be scheduled because of communication issues between [mother] and the visitation department. And then the visit would be scheduled and I sometimes was notified when that happened and sometimes I was not notified when that happened. When I was notified, it would usually tak[e] a couple of weeks before I could actually go, right, because I have other cases * * * on my workload and other commitments so * * * I could never go on like one day notice. And then by the time I would actually be able to go, mother * * * would no longer be attending the visits and she would have her three missed visits and then they would drop off the schedule again and then we would start the process over when she made contact and requested another referral for visitation. So * * * again, * * * without some communication from [mother] to * * * facilitate my attendance at one of her visits, * * * I don't have the ability to just hang out at [FCCS] 24 hours a day and wait for her to come for a visit. * * * I can't do that and I don't think the rule requires me to. (Aug. 12, 2021 at 83-85.) {¶ 33} As noted, mother's argument that the trial court should have excluded the testimony of the GAL for failure to observe both mother and child together is premised in part on her contention that the GAL failed to comply with Sup.R. 48(D). This court has consistently noted, however, that "[t]he Rules of Superintendence are internal housekeeping rules that create no substantive individual rights." In re R.P., 10th Dist. No. 20AP-538, 2021-Ohio-4065, ¶ 31, citing D.E. at ¶ 77. Further, "[b]ecause Sup.R. 48 is a general guideline that lacks the force of statutory law, noncompliance with Sup.R. 48(D) is not grounds for the automatic exclusion of a [GAL's] report, testimony, or No. 21AP-485 12 recommendation." Id. Rather, a trial court "may exercise its discretion to consider that evidence." Id. {¶ 34} While mother contends the GAL failed to perform her duty of observing her and B.T., the record supports a finding that the GAL attempted to facilitate such an interaction but was frustrated by mother's unavailability and lack of cooperation. We note the facts of the instant case are distinguishable from this court's recent decision in A.S., in which we held the trial court committed plain error "in not requiring the GAL to faithfully discharge his duties and in not discharging the GAL and appointing a new GAL for failure to faithfully discharge GAL duties, as well as in admitting the GAL's report and testimony." Id. at ¶ 75. The record in that case revealed multiple deficiencies by the GAL, including the fact the GAL met only once with the child over a three-year period, that there was "no evidence" to support a finding the GAL had observed the child's interaction with the foster parents, id. at ¶ 63, and that it appeared the GAL "was basing his opinion at the permanent custody hearing in part on testimony he heard at the hearing itself." Id. at ¶ 70. {¶ 35} By contrast, in the instant case (as outlined above) the GAL testified as to the duties she performed over the approximately three years of the case, including her "many" observations of B.T. with the caregivers at their home, her attendance at court hearings regarding B.T., communications with the caseworker, her attendance at case plan reviews, and the filing of GAL reports. The GAL also represented in her report that she had interviewed the paternal grandparents, the caseworkers, and both parents. While the GAL acknowledged (in her report of August 5, 2021) that she had been unable to observe a visit with both B.T. and the parents, the GAL outlined her attempts to "observe a visit between [B.T.] and her parents." (Aug. 5, 2021 GAL Report at 2.) {¶ 36} The GAL also testified as to her attempts to contact mother to set up a visitation whereby the GAL could observe the interaction between B.T. and mother. During the February 2021 hearing, the GAL requested the trial court to order mother to cooperate in setting up a visitation time. The trial court granted a continuance of that hearing "for [the GAL] to observe mother and child," and the court directed that "mother connect with the [GAL] to arrange [a visitation]" (such directive also notated in the trial court's continuance entry). (Feb. 18, 2021 Tr. at 20-21.) At the subsequent (August 2021) hearing No. 21AP-485 13 on the PCC motion, the GAL testified that mother did not communicate with her between the February 2021 hearing and the final hearing in August 2021. {¶ 37} Upon review, the record supports the trial court's findings that the GAL made efforts to observe the parents interact with B.T., but that such efforts were unsuccessful in part due to the lack of visitations attended by the parents and the fact that mother, as acknowledged by her counsel during the trial court proceedings, "was not easy" for the GAL "to contact or see." (Aug. 11, 2021 Tr. at 25.) Ohio courts have held, under similar circumstances, that a GAL's failure to observe a visit between a child and parent is not grounds to exclude testimony by the GAL. See, e.g., In re R.B., 8th Dist. No. 107709, 2019- Ohio-1656, ¶ 38 ("As a result of the inconsistent nature of appellant's visits with the child, we are unable to conclude that the GAL's performance or investigation were deficient based on the GAL's failure to attend a visit between appellant and the child."); In re K.S., 6th Dist. No. L-16-1298, 2017-Ohio-7383, ¶ 56 (no abuse of discretion by trial court in admission of GAL's testimony and recommendation, despite failure of GAL to observe father's interaction with child, where GAL "testified that she tried to observe [father's] interaction with the child by attending [father's] scheduled visitation, but the times that she tried to do this, [father] failed to appear," and where GAL also made attempts to contact father by phone but "was never able to reach him"). {¶ 38} As noted above, Sup.R. 48 does not create "substantive individual rights." R.P. at ¶ 31. Further, "the trial court, as the trier of fact, is permitted to assign weight to the GAL's testimony and recommendation and to consider it in the context of all the evidence before the court," and "[t]he decision of whether to consider a GAL report, even when the [GAL] did not fully comply with Superintendence Rule 48, is within a trial court's discretion." In re K.A., 5th Dist. No. 2021 CA 00002, 2021-Ohio-1772, ¶ 59. Here, we find no abuse of discretion by the trial court in its determination the GAL made reasonable efforts to observe B.T.'s interactions with mother, and that the GAL otherwise substantially complied with her duties. {¶ 39} Mother also contends the trial court erred in its consideration of the recommendation of the GAL where the GAL failed to testify that she visited B.T. on a monthly basis, as required by the local rules. Upon review, we find no error by the trial court. No. 21AP-485 14 {¶ 40} During the hearing on the motion for PCC, the GAL testified on direct examination that she had the opportunity to observe B.T. "many times" during her current placement, and that she "observed [B.T.] in her home with [the paternal grandparents] many times over the course of the last three years." (Aug. 12, 2021 Tr. at 78.) The GAL similarly noted in her report that she "observed [B.T.] in the home." (Aug. 5, 2021 GAL Report at 2.) Further, counsel for mother had ample opportunity during the hearing to cross-examine the GAL. However, as noted by FCCS, counsel for appellant did not inquire of the GAL as to the number of times she visited B.T. and/or the nature of those interviews. Under these circumstances, mother has not shown abuse of discretion by the trial court. {¶ 41} Finally, mother contends the trial court should have excluded the testimony and report of the GAL based on a contention the report was untimely as filed on August 5, 2021, less than seven days prior to the hearing date of August 11, 2021. Counsel for mother raised this issue before the trial court by motion filed August 9, 2021 (two days prior to the re-scheduled August 11, 2021 hearing date on the PCC motion), seeking to exclude the GAL's testimony based on the contention that "Loc.Juv.R. 4(D) requires the GAL to file a final report with the court no less than seven days before the dispositional hearing." (Aug. 9, 2021 Mot. to Exclude Testimony of GAL at 2.) FCCS filed a response in opposition to the motion, asserting the rules "do not require that a supplemental report be submitted seven days prior to trial." (Aug. 10, 2021 FCCS Response at 1.) {¶ 42} A review of the record indicates the GAL filed an initial report on March 6, 2020, recommending that FCCS's motion for permanent custody be granted. The GAL filed a second report on February 12, 2021 (i.e., prior to the initially scheduled hearing date of February 18, 2021), and she filed a third report on August 5, 2021, six days prior to the re- scheduled hearing date (August 11, 2021) on the motion for PCC; in both of those reports, the GAL similarly recommended the trial court grant FCCS's motion for permanent custody. {¶ 43} As previously noted, during the start of the proceedings on August 11, 2021, the trial court addressed mother's timeliness argument, inquiring whether counsel agreed the GAL had "done more than one report." Specifically, the trial court inquired about the report filed by the GAL at the time of the initially scheduled hearing date (i.e., in February 2021). Counsel for mother agreed that the GAL had prepared more than one report but No. 21AP-485 15 argued "the Rule 48 instruction is that * * * a final report should be filed." (Aug. 11, 2021 Tr. at 26.) The trial court then inquired of mother's counsel: "How is the last report different from the report that the [GAL] wrote * * * August 5, 2021?" Counsel responded: "It probably differs in no material way." (Aug. 11, 2021 Tr. at 27.) {¶ 44} Ohio courts, including this court, have addressed "the seven-day filing requirement in Sup.R. 48(F)(1)(c)." In re S.S., 10th Dist. No. 17AP-681, 2018-Ohio-1249, ¶ 13. Those cases have analyzed this issue in the context of whether the parent was able to "show any prejudice or explain how [the parent] was unable to offer an adequate defense due to the untimely filing," including such considerations as whether the parent " 'had the opportunity to and did cross-examine the GAL,' " and whether the GAL's testimony " 'was consistent with and essentially duplicative of much of the content of the report.' " Id., quoting In re M.T., 12th Dist. No. CA2016-11-100, 2017-Ohio-1334, ¶ 48. This court has held that "these cases demonstrate * * * it is the testimony and cross-examination of the GAL that actually cures the untimely filing." Id. at ¶ 17. {¶ 45} In the present case, mother "does not explain how [she] suffered prejudice or was unable to offer a defense" because of the filing of the GAL's report six days prior to the hearing. M.T. at ¶ 47. As noted above, counsel for mother had ample opportunity to cross- examine the GAL during the hearing on the motion for PCC. As also noted, counsel for mother in fact acknowledged during the hearing that the August 2021 report differed "in no material way" from the February 2021 report. {¶ 46} Upon review, mother has failed to show abuse of discretion by the trial court in failing to exclude the testimony and/or report of the GAL for failure to fulfill her statutory duties or to comply with the applicable rules. Accordingly, mother's first assignment of error is not well-taken and is overruled. {¶ 47} Under the second assignment of error, mother challenges the trial court's judgment granting the motion for PCC as against the manifest weight of the evidence and based on prejudicial error by the trial court. Mother asserts there was nothing in the record to suggest what the best interests of B.T. were, and further maintains the trial court erred in considering, based on the admission of purported hearsay testimony, evidence as to alleged failed drug screens in finding she failed to comply with her case plan. Mother also contends the record fails to show reasonable efforts to reunify mother and B.T. No. 21AP-485 16 {¶ 48} The determination by a trial court in a PCC case " 'will not be reversed on appeal unless it is against the manifest weight of the evidence.' " In re E.B., 10th Dist. No. 16AP-352, 2017-Ohio-2672, ¶ 19, quoting In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio- 4682, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. In reviewing a judgment of the trial court "granting permanent custody to FCCS under the manifest weight standard, ' "an appellate court 'must make every reasonable presumption in favor of the judgment and the trial court's findings of facts.' " ' " Id., quoting K.M. at ¶ 13, quoting In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. Further, where " ' " 'the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's verdict and judgment.' " ' " E.B. at ¶ 19, quoting K.M. at ¶ 13, quoting In re Brooks, 10th Dist. No. 04AP- 164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). Thus, " ' "[a]n appellate court will not overturn a permanent custody order when it is supported by competent, credible evidence." ' " Id., quoting In re M.W., 10th Dist. No. 11AP-524, 2011-Ohio-6392, ¶ 20, quoting In re Siders, 10th Dist. No. 96APF04-413 (Oct. 29, 1996), citing In re Brofford, 83 Ohio App.3d 869, 876-77 (10th Dist.1992). {¶ 49} Both federal and state courts recognize "[p]arents have a constitutionally protected fundamental interest in the care, custody, and management of their children." In re M.W., 10th Dist. No. 19AP-769, 2020-Ohio-5199, ¶ 13, citing Troxel v. Granville, 530 U.S. 57, 65 (2000); In re Murray, 52 Ohio St.3d 155, 157 (1990). Those rights, however, "are not absolute, and a parent's natural rights are always subject to the ultimate welfare of the child." M.W., 2020-Ohio-5199, at ¶ 13, citing In re Cunningham, 59 Ohio St.2d 100, 106 (1979). Accordingly, "in certain circumstances, the state may terminate the parental rights of natural parents when it is in the best interest of the child." Id., citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000). {¶ 50} R.C. 2151.414 "governs the termination of parental rights in Ohio." M.W., 2020-Ohio-5199, at ¶ 14, citing In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42. In accordance with R.C. 2151.414(B)(1), "a trial court may grant permanent custody of a child to an agency if the court determines, by clear and convincing evidence, that: (1) it is in the No. 21AP-485 17 best interest of the child to grant permanent custody of the child to the agency, and (2) one of the situations set forth in R.C. 2151.414(B)(1)(a) through (e) applies." Id. {¶ 51} R.C. 2151.414(B)(1) states in part: [T]he court may grant permanent custody of a child to a movant if the court determines at the hearing * * * by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (a) * * * [T]he child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents. (b) The child is abandoned. (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. (d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty- two-month period * * . (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state. {¶ 52} If a trial court "determines that one of the circumstances in R.C. 2151.414(B)(1) applies, it must then determine whether 'clear and convincing' evidence demonstrates that a grant of permanent custody is in the child's best interest." In re A.U., 10th Dist. No. 20AP-594, 2021-Ohio-2658, ¶ 22, quoting In re A.J., 10th Dist. No. 13AP- 864, 2014-Ohio-2734, ¶ 16; R.C. 2151.414(B)(1). The standard of "[c]lear and convincing evidence is more than a mere preponderance of the evidence; it concerns that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." (Internal quotations omitted.) M.W., 2020-Ohio- 5199, at ¶ 14. No. 21AP-485 18 {¶ 53} Once a juvenile court determines that "one of the circumstances in R.C. 2151.414(B)(1) applies, the court turns to R.C. 2151.414(D) to decide if a grant of permanent custody is in the child's best interest." In re E.C., 10th Dist. No. 18AP-878, 2019-Ohio-3791, ¶ 25. R.C. 2151.414(D)(1) states in part as follows: In determining the best interest of a child at a hearing held pursuant to division (A) of this section * * the court shall consider all relevant factors, including, but not limited to, the following: (a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of- home providers, and any other person who may significantly affect the child; (b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child; (c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state; (d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child. For the purposes of division (D)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home. No. 21AP-485 19 {¶ 54} In the present case, the trial court found the child was in the temporary custody of FCCS for 12 or more months of a consecutive 22-month period. On appeal, mother does not appear to challenge that finding. Thus, "because the statutory factor set forth in R.C. 2151.414(B)(1)(d) was established, the court was statutorily authorized to grant FCCS permanent custody of the children if clear and convincing evidence existed that it was in the child's best interest to do so." In re K.R., 10th Dist. No. 18AP-633, 2019-Ohio-2192, ¶ 78. Under Ohio law, the focus with respect to " 'the best interest determination is upon the child, not the parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a grant of permanent custody would have upon the parents.' " In re C.W., 1oth Dist. No. 19AP-309, 2020-Ohio-1248, ¶ 57, quoting In re B.B.H., 10th Dist. No. 14AP-882, 2015-Ohio-2347, ¶ 20. {¶ 55} With respect to the first factor under R.C. 2151.414(D)(1)(a), the trial court must consider the "[t]he interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child." In its decision, the trial court considered the child's interaction and interrelationship with the parents and other care providers and made the following findings. {¶ 56} W.T. "is the legal father of [B.T.]," and "[h]e established paternity by Paternity Affidavit * * * signed May 21, 2018," three days after B.T.'s birth. Shortly after B.T.'s "injuries and removal, he and [B.T.'s] mother separated." The father was observed by the caseworker on "only two visits occurring at the agency in December 2018 and March 2019." During those visits, while father "did interact with [B.T.], only mother helped and cared for [B.T.] despite father's completion of parenting classes." B.T. "appeared comfortable with father who acted appropriately at the visits." (Sept. 28, 2021 Decision at 9.) {¶ 57} The GAL "attempted to observe two visits in 2018, but the parents failed to attend." Father's "last visit at the agency was April 19, 2019." The paternal grandparents "also set up visits with the parents in 2019 either in the kinship home or in the community." However, "after April 19, 2019," father "ceased visits" and "[t]he grandparents, mother, agency, and [B.T.] had no further contact with him." W.T.'s "whereabouts have been No. 21AP-485 20 unknown ever since." Finding "no evidence of a parent/child bond," the trial court concluded father "has abandoned" B.T. (Sept. 28, 2021 Decision at 9.) {¶ 58} Mother, K.M., "has more of a bond with [B.T.] than her father." B.T. "comes to her easily." Mother "has helped care for [B.T.] when she visits," and she has "supplied clothing and gifts to [B.T.] at Christmas." Mother "completed parenting classes in March 2019," but her psychological evaluation "recommended more classes which have just been rescheduled by mother for this month." (Sept. 28, 2021 Decision at 9.) The grandmother "observed and criticized the way mother fed [B.T.]," which resulted in B.T. "almost falling from her highchair." (Sept. 28, 2021 Decision at 9-10.) Kinship visits with mother "often ended in bitter words and arguments, which led the agency to reschedule them back to supervised visits." (Sept. 28, 2021 Decision at 10.) {¶ 59} Mother's visits with B.T. during the course of the proceedings "have been sparse." In 2018, mother "admits she attended only ten visits at the agency," and in 2019 "she admits she attended only five visits." Mother made "virtual visits" during "Covid restrictions." In 2021, "only two visits were scheduled by [mother] at the agency." Mother "did not show for the second visit," and therefore "only one visit was made in 2021." The trial court concluded that "[s]eventeen visits over a three-year period does little to reinforce the parent/child bond." (Sept. 28, 2021 Decision at 10.) {¶ 60} The trial court also considered B.T.'s interaction with A.B. and J.B., her paternal grandparents (and current caregivers). With respect to the "paternal grandparent's home," the court found B.T. "has a regular routine. She has walking braces she uses eight hours a day." B.T. "is enrolled in daycare and has been enrolled in Franklin County MRDD for over a year. She is on a waiting list for speech therapy and may again have occupational and physical therapy when and if she needs them." The paternal grandparents "do exercises with [B.T.] to teach her colors, shapes, and counting," and "[t]hey use software on a tablet to teach her the alphabet." B.T. "can now count to 15," and she "plays games on the tablet to help with her eye/hand coordination." A.B. and J.B. are working with B.T. on her "ability to dress herself and to use words in sentences." B.T. "is still in potty training [and] [h]er concentration level remains low." (Sept. 28, 2021 Decision at 10.) No. 21AP-485 21 {¶ 61} The trial court noted the grandparents schedule the medical appointments for B.T., and the grandfather "transports her to them as grandmother is currently in a wheelchair recovering from back surgery." When needed, an aunt, "who has a bond" with B.T., helps the grandparents. Both grandparents assist B.T. with "dressing, feeding, bathing and otherwise caring for her." (Sept. 28, 2021 Decision at 10.) B.T. "has been tested for autism"; she is "on the autism spectrum and is still developmentally delayed." (Sept. 28, 2021 Decision at 10-11.) B.T. "still has a brain shunt and eye issues," but her "seizures have stopped." B.T. "still sees a neurologist." B.T. "goes to her grandparents for support, affection and all of her needs." The grandparents "also care for a developmentally delayed adult son of grandfather" in their home. (Sept. 28, 2021 Decision at 11.) {¶ 62} The GAL, who "observed [B.T.] with A.B. and J.B.," described B.T. as "[a] sweet, affectionate child, [who] enjoys sitting on their laps." The GAL "observed their care of her, including issues with her helmet." The GAL also "observed J.B. play with her and the grandparents being very attentive to her." B.T. "is observed to be very bonded with both and especially to J.B." A.B. and J.B. "wish to adopt [B.T.]" (Sept. 28, 2021 Decision at 11.) {¶ 63} A review of the record supports the trial court's findings under the first statutory factor. While the trial court recognized a bond between mother and B.T., and that mother behaved appropriately during visits, the court cited testimony regarding a strong bond between B.T. and her grandparent caregivers. As indicated above, the court heard the testimony of both grandparents regarding their care of B.T. A.B., the paternal step- grandmother, testified that B.T. has been in their home for "about three years and two months." (Aug. 11, 2021 Tr. at 95.) A.B. testified that she and her husband, J.B., would "[m]ost definitely" be interested in adopting B.T. (Aug. 11, 2021 Tr. at 103.) {¶ 64} J.B., the paternal grandfather of B.T., testified that his bond with B.T. is "really good." He stated there "isn't [anything] I wouldn't do for her, and I'm trying to get her to where she needs to be so she can have a peaceful life." (Aug. 11, 2021 Tr. at 129.) He related that B.T. looks to "[m]e and her grandma" for comfort. (Aug. 11, 2021 Tr. at 130.) {¶ 65} Abbey Sebert, the caseworker, who has observed B.T. with her caregivers, testified that B.T. is "very bonded" to J.B. and A.B. She stated that "[e]ven when [J.B.] leaves, she gets upset [because] she wants to go with him to work. They're very close and * * * she's very bonded to both grandmother and grandfather." Sebert has not observed No. 21AP-485 22 B.T. together with her two siblings "to say whether there's a * * * bond or not." It has been "several years" since father has had contact with B.T. (Aug. 11, 2021 Tr. at 34.) Sebert stated that mother " was always appropriate * * * during visits and I would say [B.T.] was bonded to her." (Aug. 11, 2021 Tr. at 36.) {¶ 66} As set forth in the above findings, the trial court also considered the issue of visitation history and its effect on the parent-child bonding process. This court has noted that "resolution of [the R.C. 2151.414(D)(1)(a) factor] is not limited to merely the bond between child and parent." K.R. at ¶ 81. In this respect, "[c]ourts have considered the consistency of a party's visitation with a child when resolving the R.C. 2151.414(D)(1)(a) factor." Id. at ¶ 82. {¶ 67} The caseworker (Sebert) provided testimony during the hearing as to the parents' visitation history. Sebert stated the last time father saw B.T. was on April 10, 2019, "his last visit." (Aug. 11, 2021 Tr. at 159.) When B.T. first came into FCCS's custody in June 2018, the visitation department set up a schedule. In 2018, the parents "seemed to visit rather often," but "it then started to become very inconsistent." The inconsistency in visits began in Fall 2018. Sebert testified that, "between October and November" 2018, "they were missing enough that they had been removed from the schedule." (Aug. 12, 2021 Tr. at 5.) According to Sebert, "after three missed visits they are removed from the schedule and then * * * if parents request visitation a new referral is then made to have them rescheduled." Over the span of the case, Sebert put in referrals "[f]ive times." (Aug. 12, 2021 Tr. at 14.) After October 2020, mother "was very inconsistent" with visitation and "[t]hey were removed from the schedule due to * * * the three missed visits and then I placed a new referral in February of 2021." (Aug. 12, 2021 Tr. at 24.) {¶ 68} After February 2021, mother was "[a]gain * * * inconsistent in visits and they were removed from the schedule due to missed visits." In 2021, mother "only attended two visits total, and * * * kinship did cancel two visits also." (Aug. 12, 2021 Tr. at 25.) Mother attended one visitation in January 2021 and one in May 2021. The reasons mother gave for missed visitations were work and transportation issues. Sebert testified that mother has "had her own transportation * * * on and off," but when she did not have transportation available and requested a bus pass, "she would get one" from FCCS. (Aug. 12, 2021 Tr. at 32.) No. 21AP-485 23 {¶ 69} During the PCC hearing, mother was also questioned, as on cross- examination, regarding her visitation history. Mother acknowledged visits were initially set up with FCCS, and then at the caregivers, "but then we got in an argument and they wouldn't let me come over there anymore." (Aug. 11, 2021 Tr. at 58-59.) In 2018, mother attended approximately ten visits at FCCS; in 2019, she attended five visits at FCCS. Mother stated "it's just been a mess with the visits. Like, sometimes I'll be notified of a visit afterwards and then other times I have missed, * * * I have. * * * I'm not perfect, I would never say that to anybody." (Aug. 11, 2021 Tr. at 59-60.) When asked whether FCCS had reached out to her in June 2020 to schedule visits, mother responded: "I don't recall that, but probably yes." She agreed that, in 2021, she had "about two visits" with B.T. (Aug. 11, 2021 Tr. at 61.) Mother acknowledged that, during the course of the case, she had approximately 18 visits with B.T. at FCCS, and that she had gone more than 90 days without any contact with B.T. {¶ 70} Here, the record supports the trial court's findings that mother, while acting appropriately with B.T., often missed scheduled visitations, and that mother's visitation history did "little to reinforce the parent/child bond." (Sept. 28, 2021 Decision at 10.) The trial court also recognized that B.T. thrived in the care of her paternal grandparents, and that her needs were met by their care, and such findings are not against the weight of the evidence. {¶ 71} Under the second best-interest factor, R.C. 2151.414(D)(1)(b), the court is to consider the "wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child." Ohio courts have recognized that "[t]his section 'unambiguously gives the trial court the choice of considering the child's wishes directly from the child or through the guardian ad litem.' " R.P. at ¶ 48, quoting In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 55. {¶ 72} With respect to this factor, the trial court cited testimony by the GAL that B.T., "who is now 3 years old, is too young and developmentally immature to express her wishes or to understand permanent placement concepts." The trial court further noted the GAL "recommends * * * the Court grant the motion for permanent custody." (Sept. 28, 2021 Decision at 11.) No. 21AP-485 24 {¶ 73} Mother argues on appeal that the record was lacking as to the best wishes of B.T. According to mother, there was no evidence the GAL interviewed B.T. "or even could describe what [her] best wishes were." (Mother's Brief at 24.) {¶ 74} This court has held "[w]hen the evidence demonstrates that a child is not capable or competent to communicate his or her wishes, a trial court is not required to assess the wishes of that child in determining whether permanent custody is in the child's best interest." In re J.H., 10th Dist. No. 19AP-517, 2021-Ohio-807, ¶ 42. Rather, a juvenile court " 'properly considers the GAL's recommendation on the permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the children are too young to express their wishes.' " In re J.A., 8th Dist. No. 111029, 2022-Ohio-1324, ¶ 30, quoting In re B/K Children, 1st Dist. No. C-190681, 2020-Ohio-1095, ¶ 45. See also R.P. at ¶ 51 (trial court did not err in relying on GAL's testimony in considering R.C. 2151.414(D)(1)(b) factor where evidence "is that the children's immaturity—not any deficiency on the guardian ad litem's part—precluded the children from expressing their wishes"). {¶ 75} In the present case, the GAL testified that B.T. was not capable of expressing her wishes. The GAL explained that B.T. "is three years old, she does have some verbal development. She does speak but she does not have either the verbal capabilities t0 * * * express her feelings or emotions with respect to placement, nor does she have the cognitive development * * * to understand what placement options are available to her and why. She's * * * too young and the development is just not there for her to understand or express her wishes." (Aug. 12, 2021 Tr. at 79-80.) Citing in part B.T.'s "intense medical and developmental needs," the GAL testified that permanent custody was in her best interest. (Aug. 12, 2021 Tr. at 87.) Here, competent, credible evidence supports the trial court's determination that B.T., based on age and cognitive difficulties, was too young and developmentally immature to express her wishes. Thus, the trial court did not err in failing to consider the wishes of B.T. or in relying on the testimony of the GAL as to the best wishes of her. {¶ 76} In accordance with R.C. 2151.414(D)(1)(c), a trial court is to consider the "custodial history of the child." In its decision, the trial court made the following findings with respect to this factor: [B.T.] was removed from her home by Emergency Care Order of June 14, 2018 in prior case no. 18JU-06-7217. The No. 21AP-485 25 temporary custody order in that case was granted on June 15, 2018. She has remained in the temporary custody of FCCS since that date. Sixty days after the first temporary order of custody is August 14, 2018, earlier than the adjudication of August 7, 2019. From August 14, 2018 to the filing of the Motion for Permanent Custody on February 7, 2020, [B.T.] has been in the temporary custody of [FCCS] for one year, five months and 24 days, more than twelve of a consecutive twenty-two months. (Sept. 28, 2021 Decision at 11-12.) {¶ 77} The record supports the trial court's findings as to this factor (and mother does not dispute those findings). Further, "[t]his factor favors granting permanent custody to FCCS." In re J.R., 10th Dist. No. 17AP-698, 2018-Ohio-1474, ¶ 44. {¶ 78} Under R.C. 2151.414(D)(1)(d), a trial court is required to consider the child's "need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency." With respect to this factor, the trial court made the following findings. {¶ 79} B.T. has been in the temporary custody of FCCS "since June 15, 2018, when she was less than one month old," and "[s]he is in great need of a legally secure permanent placement." (Sept. 28, 2021 Decision at 12.) {¶ 80} Father, W.T., "did establish paternity of [B.T.]," and he "completed a parenting class in March 2019." He also completed an "AOD [alcohol and other drug] assessment in January 2019," but the "remainder of his case plan was not substantially completed." Father "never followed any recommendations of his alcohol/drug assessment"; he "completed only two drug screens, each of which was positive for marijuana," and he "missed 108 screens." He "never completed his required psychological assessment," failed to verify "any employment" or income, nor did he verify "stable and safe housing." Father also "did not meet regularly with his caseworker," nor did he attend medical appointments of B.T. (Sept. 28, 2021 Decision at 12.) Regarding visitations with B.T., father "visited inconsistently together with mother and [B.T.]'s siblings." (Sept. 28, 2021 Decision at 12-13.) His last visit "was on April 10, 2019," and since that time "he has not been in contact with the caseworker, his parents who are the caretakers of [B.T.], or No. 21AP-485 26 [B.T.]." He also is "the father of [C.T.] who was recently removed from mother's home with another child." Father "has abandoned [B.T.]." (Sept. 28, 2021 Decision at 13.) {¶ 81} Mother, "despite several discussions with the caseworker about her case plan, and in receipt of physical copies of her plan on multiple occasions," has not "achieve[ed] substantial compliance" regarding the case plan. Mother "did sign releases of information for the agency" and "did maintain housing until 2020," initially with W.T. for "about a year," and "then at her mother's home for six months before it was foreclosed." She then "lived in a homeless shelter for five months." Mother "now has her own apartment and has lived there for four to five months"; the caseworker "testified the two-bedroom apartment is appropriate for [B.T.]." She "also did maintain regular contact with the caseworker." Mother has "two other children." One of those children "had school attendance problems"; the other child "is a special needs child suffering from epileptic seizures" and, while in mother's care, "missed several medical appointments." Those two children "are now also in the temporary custody of [FCCS]," and mother "testified she does not know why they were removed." (Sept. 28, 2021 Decision at 13.) {¶ 82} While mother "told [the] caseworker and testified that she was employed and most probably will be obtaining a new position, she had never proven that she is or has income by providing pay stubs to the caseworker." Mother "completed a parenting class in March 2019" but "has yet to follow through with the second class recommended by her psychological examination"; that "new class begins after this trial." She also "failed to complete a component of the psychological examination." (Sept. 28, 2021 Decision at 14.) {¶ 83} While aware of the fact B.T. "has needed cognitive and developmental therapy," mother "has no idea what medications [B.T.] takes or has taken, no idea of the identity of [B.T.'s] doctors and has attended zero medical or clinical appointments for [B.T.], despite being given advanced notice for three year[s] of these appointments." The trial court found that "[o]nly this year's blocked attempt of mother to attend Nationwide Children's Hospital is excusable." (Sept. 28, 2021 Decision at 14.) {¶ 84} Mother "admits her visits were few and inconsistent, but places blame on the caregivers, who have cancelled only three visits in three years according to the caseworker's testimony." Mother's plan for B.T.'s medical care "is to do whatever is needed (of which No. 21AP-485 27 she is not aware because she testified she was never told anything)," and she "plans to transport [B.T.] by car or bus whichever is available." (Sept. 28, 2021 Decision at 14.) {¶ 85} Although mother has had "some counseling for her diagnosis of anxiety and depression, after missing two appointments at the Forum in the summer of 2020, she wishes to change her current counselor whom she has not seen in two months despite her probation requirements for Theft, a felony of the third degree in Judgment Entry [filed] on April 15, 2021, entered after a capias had been issued for her failure to appear at trial." (Sept. 28, 2021 Decision at 14-15.) Mother "appears to possibly be in further criminal jeopardy as she is the subject of [a court order of May 25, 2021] in the Franklin County Municipal Court * * * for failure to appear for pretrial in that Court." (Sept. 28, 2021 Decision at 15.) {¶ 86} Mother "has not substantially completed her substance abuse portion of the case plan." She has received a prescription for Suboxone by her family physician for "approximately four years * * * for her past abuse of opiates." Mother testified she "is also, through her doctor, obtaining a medical marijuana card in two weeks." She testified that "she sometimes attends AA or NA meetings." Mother "claims she drops every three months for probation on her theft conviction and her probation officer knows nothing about any outstanding warrants (for a different case)." Out of the "157 scheduled random drug screens under her case plan, mother has completed only 29"; in 2021, several of the screens "were positive for Suboxone and THC," and another screen in 2021 "was positive for alcohol." Mother's "excuses for failing to test were work schedules, transportation and Covid," but "alternative scheduling after March of 2020 was available once a week." In 2020, mother "only performed six drug screens for the year." (Sept. 28, 2021 Decision at 15.) {¶ 87} The trial court found mother "has not remedied the causes for removal nor substantially completed the objectives of her case plan to warrant the return of [B.T.] to her custody." While mother's only witness testified she was a good mother to her two sons, "the witness never met [B.T.], nor has she seen [B.T.] and mother together." (Sept. 28, 2021 Decision at 15.) {¶ 88} The only relative of B.T. "approached as a possible custody alternative, besides the paternal grandparents[,] was the maternal grandmother who was advised by No. 21AP-485 28 the agency that she could request a home study and file a motion for custody"; she "did not follow through," and "[n]o other relatives have been named as potential custodians[,] nor have any come forward to seek legal custody." (Sept. 28, 2021 Decision at 16.) {¶ 89} A.B. and J.B., the paternal grandparents, "have been the acting parents of [B.T.] since one month after her birth." The paternal grandparents "love and care for her daily and completely," and "[t]hey have missed no medical appointments and have been proactive in obtaining medical, educational and developmental care for her." B.T. is "completely integrated into this family and thriving in their care," and A.B. and J.B. "wish to adopt [B.T.]." (Sept. 28, 2021 Decision at 16.) {¶ 90} Based on the evidence presented, the trial court determined B.T. "is in great need of a legally secure permanent placement to continue her development physically, educationally, emotionally and socially." The trial court concluded "[t]his cannot be achieved without a grant of permanent custody to the agency." (Sept. 28, 2021 Decision at 16.) {¶ 91} Mother's primary challenge to the trial court's findings under this factor involves the court's discussion of failed drug screens. According to mother, the trial court relied on inadmissible hearsay to find she failed to comply with her case plan. Mother points to testimony by the caseworker regarding failed drug screens, and argues that "no drug screens were introduced at this trial." (Mother's Brief at 23.) {¶ 92} In response, FCCS notes that counsel for mother did not object to any evidence at the hearing regarding drug screens. FCCS further notes that, while there was testimony by the caseworker as to positive drug screens for Suboxone and marijuana, mother herself testified she had taken Suboxone for four years and had used marijuana for two months. {¶ 93} A review of the record indicates that Sebert (i.e., the caseworker) testified that mother, as part of her case plan, was required to complete random drug screens. According to Sebert, mother was "[n]ot very compliant with completing screens. She's been scheduled for 157 screens and she's completed 29." When asked what mother had disclosed to her about those tests, Sebert responded: "Typically, she was always positive for Suboxone only. She did have two negative drug[] screens, at one point, when she was in Suboxone therapy, and then in 2021, recently, she's had several drug screens that have included THC as well." No. 21AP-485 29 (Aug. 11, 2021 Tr. at 174.) Sebert further related that "[m]om always reported that she plans to get a medical marijuana card and she was working on that with her counselor through Primary One, but she's never, to my knowledge, gotten that and then she had denied the alcohol use on a screen from May of 2021." (Aug. 11, 2021 Tr. at 174-75.) As noted by FCCS, counsel for mother raised no objection to this testimony. {¶ 94} The record further indicates that, prior to the above testimony by Sebert, mother was called as a witness by FCCS as on cross-examination. Counsel for FCCS questioned mother about providing drug screens, and mother testified: "I take Suboxone." (Aug. 11, 2021 Tr. at 81.) Mother explained that she had a prescription for that drug, and that she had "been on Suboxone for a long time." (Aug. 11, 2021 Tr. at 83.) Mother further testified: "The only thing that would potentially show up that I'm not prescribed yet is marijuana and I will have my medical card within the next two weeks for that." (Aug. 11, 2021 Tr. at 82.) {¶ 95} Having failed to object to the testimony on this issue, mother "has waived all but plain error." In re C.C., 1oth Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 37. The plain error doctrine "is limited to exceptionally rare cases in which the error, left unobjected to at the trial court, 'rises to the level of challenging the legitimacy of the underlying judicial process itself.' " Id. at ¶ 38, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997). Stated otherwise, "the plain error rule should not be invoked unless, but for the error, the outcome of the trial would clearly have been otherwise." Id., citing State v. Cooperrider, 4 Ohio St.3d 226, 227 (1983). {¶ 96} Here, even assuming the complained of testimony by the caseworker was hearsay, any error in its admission did not rise to the level of plain error as mother herself testified as to her use of Suboxone and marijuana. Further, we agree with FCCS that the drug screen evidence was not a significant part of the trial court's decision. See, e.g., In re T.V., 10th Dist. No. 04AP-1159, 2005-Ohio-4280, ¶ 58 (where caseworker's testimony about positive drug screens was not a significant factor in trial court's decision granting permanent custody to FCCS, "we cannot say * * * that the outcome would have been different if the court had excluded the testimony"). See also In re A.E., 1oth Dist. No. 19AP- 782, 2021-Ohio-488, ¶ 57-58 (where purported hearsay testimony regarding drug screens were given "minimal consideration in reaching the custody determination," the record and No. 21AP-485 30 decision of juvenile court "forecloses a reasonable probability that the results of the custody hearing would have been different" had mother's counsel objected to the positive screening results). {¶ 97} Mother also contends the record fails to show reasonable efforts by FCCS to reunify mother with B.T. We disagree. {¶ 98} As noted by FCCS, it filed its motion requesting permanent custody under R.C. 2151.413, and the trial court "heard the matter pursuant to R.C. 2151.414, thereby eliminating the requirement to prove 'reasonable efforts' as set forth in R.C. 2151.419 at the permanent custody hearing." In re J.C., 10th Dist. No. 10AP-766, 2011-Ohio-715, ¶ 20. In this respect, the Supreme Court of Ohio has held that the provisions of R.C. 2151.419 " 'involve adjudicatory, emergency, detention, and temporary disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state.' " Id. at ¶ 17, quoting C.F. at ¶ 41. {¶ 99} In the present case, the trial court, prior to the hearing on permanent custody, made a finding that FCCS "made reasonable efforts to prevent the continued removal of the child(ren) from the home and that those efforts failed to prevent the continued removal of the child(ren) from the home." (May 21, 2019 Mag.'s Findings of Fact and Conclusions of Law.) {¶ 100} In addition, the trial court's decision granting the motion for PCC included findings that FCCS "made reasonable efforts to prevent or eliminate the need for removal of said child from the child's own home." (Sept. 28, 2021 Decision at 17.) During the hearing, the trial court heard testimony by the caseworker as to her discussions with mother regarding the case plan, FCCS's referrals and scheduling of services for mental health and alcohol and other drug ("AOD") treatment, as well as providing transportation assistance. The caseworker also testified as to efforts to assist mother with dates and times of medical appointments. Based on the evidence presented, the trial court cited the fact that mother, despite "discussions with the caseworker about her case plan," failed to achieve substantial compliance. (Sept. 28, 2021 Decision at 13.) {¶ 101} Here, the record supports a determination that FCCS made "reasonable efforts to assist mother" in linking her to services "necessary to complete [her] case plan[]." In re D.K., 10th Dist. No. 19AP-801, 2020-Ohio-5251, ¶ 26 (findings that father failed to No. 21AP-485 31 complete AOD recommendations (preventing him from moving forward with case plan), and that caseworker made reasonable efforts in linking parents for services necessary to complete case plans, satisfy statutory "reasonable efforts finding requirement"). {¶ 102} Mother does not otherwise specifically challenge the findings of the trial court under R.C. 2151.414(D)(1)(d). The hearing evidence before the trial court included the testimony of the GAL who expressed her concerns as to the ability of mother "to meet [B.T.'s] medical and developmental needs." (Aug. 12, 2021 Tr. at 85.) Citing B.T.'s intense medical and developmental needs, as well as barriers mother has faced in attending medical appointments, the GAL testified that "[f]rom a best interest perspective * * * I don't * * * necessarily care too much what the reason was that mom could not make it to those appointments. [B.T.] needs this care * * * period." (Aug. 12, 2021 Tr. at 87-88.) The GAL further testified: "I do believe that permanent custody to [FCCS] is in [B.T.'s] best interest. * * * She is absolutely in need of a permanent legal placement and I have not seen unfortunately from [mother] what I would need to see to feel confident that she could meet [B.T.'s] intense medical and developmental needs should custody return to her." (Aug. 12, 2021 Tr. at 89-90.) The caseworker (Sebert) similarly testified that B.T. was in need of legally secure permanent placement. {¶ 103} As set forth above, in addressing the best-interest factor under R.C. 2151.414(D)(1)(d), the trial court noted the length of time B.T. had been under the supervision of FCCS, mother's failure to substantially comply with various aspects of her case plan (including drug treatment and mental health counseling), the inconsistent and sporadic visitation history of mother, missed medical appointments relating to B.T., mother's lack of understanding regarding B.T.'s medications and physicians despite B.T.'s high medical needs, and the significant progress B.T. has made while in the care of her paternal grandparents. On review, the testimony and evidence presented supports the trial court's findings as to this factor. {¶ 104} With respect to R.C. 2151.414(D)(1)(e) (i.e., whether any of the factors in divisions (E)(7) to (11) apply in relation to the parents and child), the trial court found "that father, [W.T.] by his absence since April 19, 2019, with no further contact with [B.T.], has abandoned her." (Sept. 28, 2021 Decision at 16.) The court found that the factor (E)(10) applies. Mother does not challenge this finding. No. 21AP-485 32 {¶ 105} The record in this case indicates the trial court reviewed the relevant factors under R.C. 2151.414(D)(1) and weighed the evidence in considering whether the grant of permanent custody to FCCS was in the best interest of the child. Based upon this court's review of the record, there was competent, credible evidence to support the trial court's finding, by clear and convincing evidence, that granting permanent custody to FCCS was in the child's best interest. Accordingly, the trial court's determination was not against the manifest weight of the evidence. Mother's second assignment of error is not well-taken and is overruled. {¶ 106} Based upon the foregoing, mother's two assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed. Judgment affirmed. DORRIAN and MENTEL, JJ., concur. ________________	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484687/	[Cite as Dalrymple v. Westerville, 2022-Ohio-4094.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Bonnie Dalrymple, : Plaintiff-Appellant, : No. 21AP-514 (C.P.C. No. 18CV-1789) v. : (REGULAR CALENDAR) City of Westerville et al., : Defendants-Appellees. : D E C I S I O N Rendered on November 17, 2022 On brief: Moore and Yaklevich, and W. Jeffrey Moore; Eric R. Nordman, for appellant. On brief: Isaac Wiles & Burkholder LLC, and Aaron M. Glasgow, for appellees. APPEAL from the Franklin County Court of Common Pleas McGRATH, J. {¶ 1} This is an appeal by plaintiff-appellant, Bonnie Dalrymple, from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, City of Westerville (individually "the city"), Bassem Bitar, Ed Ungar, Bryan Wagner, David Hays, Karl Craven, Westerville Industry and Commerce Corporation ("WICC"), and Uptown Improvement Program/Uptown Review Board ("URB"). {¶ 2} The following background facts are taken primarily from the decision of the trial court ruling on appellees' motion for summary judgment. Appellee Bassem Bitar (individually "Bitar") is the planning manager for the city; he manages the city's "involvement with private development activity," and his duties include "overseeing staff No. 21AP-514 2 input to the Planning Commission, Board of Zoning, Uptown Review Board, as well as communications to City Council." (Decision at 1.) One aspect of Bitar's position involves "speaking with persons and businesses considering buying property in Westerville and/or starting a business in Westerville about land use, zoning and development issues," including "discussing the viability of potential uses and potential funding opportunities for development." (Decision at 2.) {¶ 3} Appellee Bryan Wagner (individually "Wagner") is the enforcement officer for the city, whose duties are to "enforce the City's Zoning Ordinance, Property Maintenance Ordinance, Yard Care Ordinance and other City ordinances as assigned." Appellee Ed Ungar (individually "Ungar") is the city's chief building official, and his duties "are to oversee the daily activities of the building department, including the enforcement of the Ohio Building Code and Residential Code of Ohio." Appellee David Hays (individually "Hays") is a zoning enforcement officer for the city; his duties include "the enforcement of the City's Property Maintenance and Zoning codes." Appellee Karl Craven (individually "Craven") is the city's planning and development director, whose duties include "the administration of Planning and Development Department, management of personnel, budget issues and management of capital improvement projects." (Decision at 2.) {¶ 4} Appellee WICC is a "501(C)(3) non-profit corporation * * * formed to support economic development within the City and has seven members, which include the City Administrator, the City Attorney, the Mayor, the Director of Planning and Development, and three private citizens with connections to the City's business community." (Decision at 2-3.) One function of WICC is to "administer a grant funding program which provides funds to uptown business[es] for renovations." (Decision at 3.) {¶ 5} Procedurally, in order to secure funding from WICC to renovate a commercial property, "property owners initially apply to WICC for preliminary approval." If a project meets the program guidelines, "WICC conditionally approves their application," and the property owner "must then have their individual plans approved by the Uptown Review Board * * , a citizen board which reviews proposed alterations to uptown properties." If the URB "approves the plans, and if the property owner completes the buildout of the renovations consistent with the approval from the URB, [then] the property owner provides verifying evidence of the expenses for the project to development staff." If the renovations No. 21AP-514 3 and documentation of expenses are accurate, WICC "releases funds to reimburse the property owner's expenses in the previously agreed to amount." (Decision at 3.) {¶ 6} Appellant first contacted the city "in October 2015 regarding the potential purchase of investment property" within the city. After looking at several different properties in the area, she "eventually focused her attention on the property at 30 E. College Ave., which is located within the Uptown zoning district," a historical district in the city "with added review required for architectural changes to the exterior of properties." (Decision at 3.) {¶ 7} The property at 30 E. College Avenue was "originally a single-family home which had been converted to a commercial building, most recently being used for a flower shop." When appellant inquired about the property, Wagner "provided her with information regarding the status of the enforcement action against the prior owner for code violations." (Decision at 3.) Wagner and Bitar provided appellant information "regarding the grant funding program," and Wagner e-mailed appellant a link to a website with "program guidelines containing full information on the program." According to the guidelines, "WICC grant funding is available only for commercial and mixed-use properties, not for residential uses." (Emphasis sic.) Bitar also told appellant that "WICC funding might be available for her intended renovations if they were for a commercial use and encouraged her to review the program criteria." (Emphasis sic.) Neither Bitar nor Wagner "made any representations about what the building code requirements would be for a commercial use," although Bitar "encouraged [appellant] to check with the Chief Building Officer regarding how the applicable building code requirements might affect the use of the [p]roperty." (Decision at 4.) {¶ 8} Appellant closed on the property on December 23, 2015; the purchase price was $131,000. Appellant "did not speak to" Ungar, Hays or Craven about the property "prior to closing." Following the purchase of the property, appellant "worked with City staff to apply to WICC for funding." On January 5, 2016, Bitar provided appellant "with a roadmap for the approval process and the necessary forms to apply for funding." (Decision at 4.) Bitar also connected appellant with David Meadows, "an official with the City's Economic Development Department." (Decision at 4-5.) On February 3, 2016, Bitar "followed up" to provide appellant with "detailed information about how to apply for WICC No. 21AP-514 4 funding." (Decision at 5.) Over the course of the next month, Bitar and appellant "continued to discuss the WICC funding process." During the first week of March 2016, appellant asked Bitar if she would be eligible for WICC funding "if a portion" of the property would be used for commercial purposes. On March 8, 2016, Bitar "confirmed WICC would likely approve funding for the whole renovation even if only a portion of the home would be used commercially." (Decision at 5.) {¶ 9} On March 16, 2016, appellant filed her application for WICC funding. In her application, she "represented the renovation would be for a 'commercial space.' " (Emphasis sic.) Appellant "also agreed to be bound by the terms of the WICC funding program and she would comply with the applicable building code when completing the renovations." (Decision at 5.) {¶ 10} On March 21, 2016, WICC "conditionally approved every request" appellant made and "set aside $27,053" for appellant's project. In its letter notifying appellant of the approval, "WICC indicated the next step was to have her plans approved by the URB." WICC also "expressly indicated as a condition of the award of funding" that appellant "would need to agree not to convert the [p]roperty into a high-density residential use, a condition which would be reduced to writing." (Decision at 5.) {¶ 11} On April 7, 2016, the URB "approved all ten" of appellant's "applications for Certificates of Appropriateness for the various improvements proposed for the [p]roperty." This approval "cleared the way" for appellant "to move ahead with her renovations of the [p]roperty." (Decision at 5.) In order to obtain the WICC grant funds, appellant "would have needed only to complete the renovations on her [p]roperty consistent with the approval from the URB, as well as the grant criteria which require compliance with all City codes and give WICC discretion to set certain conditions." (Decision at 5-6.) {¶ 12} Following the approval, however, appellant "began to express concerns about the requirements necessary to secure WICC funding." More specifically, issues arose when Ungar "explained to [appellant] that if she intended to use the [p]roperty as a mixed use with some commercial component, the commercial portion of the building would need to meet the standards in the commercial building code," which would "require hiring a professional to determine whether the building currently met the commercial Building No. 21AP-514 5 Code requirements and, if not, what upgrades would be necessary to meet those standards." (Decision at 6.) {¶ 13} On July 11, 2016, David Meadows, the city's economic development director, contacted appellant to "discuss her concerns." On August 5, 2016, city staff members, including Meadows, Bitar, and the city attorney, met with appellant. Following that meeting, Meadows sent appellant a letter "explaining her options for the [p]roperty relative to WICC funding and the various uses she was considering." Meadows "reiterated that WICC funds could only be used for commercial uses and funding would be conditioned on her agreement that the [p]roperty could not be used for a multifamily use for five years (which was consistent with the approval letter sent months earlier)." (Emphasis sic.) (Decision at 6.) {¶ 14} Meadows outlined the following three options for appellant: (1) complete the project "as presented to WICC and the URB," whereby the project "would be eligible for reimbursement through WICC, but [appellant] would have to comply with the Ohio Building Code, which included the requirement to submit a plan from a licensed design professional for the commercial space"; (2) maintain the use "solely as commercial/office," whereby the project would be "eligible for reimbursement through WICC and would be largely 'grandfathered' as to compliance with" the Ohio Building Code, but appellant "would not be able to maintain any residential use on the [p]roperty"; (3) convert the project to "a residential use, with no commercial component," which would not subject the project to "the Ohio Building Code requirements for commercial uses or any other condition imposed by WICC, but the project would also not be eligible for reimbursement through WICC." (Decision at 6-7.) {¶ 15} Appellant was "unwilling to agree to the limitations on the use of her [p]roperty or engage a licensed design professional to bring the [p]roperty into compliance with Ohio Building Code." As a result, she "did not move forward with the process to obtain WICC funds." (Decision at 7.) {¶ 16} In 2016, appellant "began the process of marketing and selling" the property, and she engaged the services of Amy Clark, a real estate broker with the "Clark Realty Group." Agents listed the property for sale, and a local church purchased the property for No. 21AP-514 6 $400,000. According to figures submitted by appellant, "she made a profit of $78,254.26 over the amount for which she bought the house and the renovation costs." (Decision at 7.) {¶ 17} While the property was being marketed, appellant's real estate agents discussed the property with city staff, including Bitar, "several times." (Decision at 7.) Bitar informed the agents "there were restrictions on the uses to which the [p]roperty could be put if the [p]roperty owner wanted to obtain funds from WICC." (Decision at 8.) {¶ 18} On March 22, 2017, approximately one month after selling the property at 30 E. College Avenue, appellant purchased the property at 27 E. College Avenue. She sold this property "the next year for $470,000, $115,000 more than she bought it for." (Decision at 8.) {¶ 19} Appellant "has been a licensed real estate broker since 2006," and she "brokered the sale and lease of residential and commercial property in Colorado until she moved to Ohio." She "also completed at least three renovation projects—or 'flips'—prior to the one at issue here." (Decision at 8.) {¶ 20} On February 27, 2018, appellant filed a complaint, naming as defendants the city, Bitar, Ungar, Wagner, Hays, and Craven. The complaint alleged that the property at 30 E. College Avenue was "zoned mixed use," and that appellees "knew" that appellant's "main purpose was to live in it and conduct business from it." (Compl. at ¶ 10.) The complaint alleged that, prior to purchasing the property, appellees "assured/promised" appellant "that historical restoration funds would be available to her should they be needed to help pay for the rehab of the home in question." (Compl. at ¶ 11.) {¶ 21} According to the complaint, once appellant "had extensively beg[u]n the rehabilitation work the [appellees] started harassing and citing [appellant] for work done and not done, advising her that new contingencies and code requirements existed, completely ignoring their previous promises and representations." (Compl. at ¶ 13.) Appellant alleged that the actions of appellees forced her to sell the property, and that appellees "falsely stated and represented to real estate agents for potential buyers and/or potential buyers that the deed and use were restricted, thereby interfering with her sale to certain purchasers and causing potential buyers to either withdraw their purchase offers and/or fail to offer to purchase the property." (Compl. at ¶ 19.) No. 21AP-514 7 {¶ 22} On June 25, 2018, appellant filed a motion for leave to file an amended complaint, seeking to add as defendants WICC and "Uptown Improvement Program." The amended complaint alleged causes of action for fraud, fraud in the inducement, misrepresentation, breach of promissory estoppel, tortious interference with a business relationship, and intentional infliction of emotional distress. {¶ 23} On June 26, 2019, the city, Bitar, Ungar, Wagner, Hays, Craven, WICC, and URB (collectively "appellees") filed a motion for summary judgment. In the accompanying memorandum in support, appellees asserted the city, WICC, and URB were immune from liability under R.C. 2744.02(A), and that the individual appellees were immune from liability under R.C. 2744.03(A)(6). On November 7, 2019, appellant filed a memorandum contra appellees' motion for summary judgment. {¶ 24} On September 8, 2021, the trial court filed a decision and entry granting summary judgment in favor of appellees. In its decision, the court held that appellees were entitled to political subdivision immunity under R.C. 2744.02 and 2744.03, and that appellant failed to establish a genuine issue of material fact as to her claims for fraud/fraud in the inducement, promissory estoppel, tortuous interference with a business relationship, and intentional infliction of emotional distress. {¶ 25} On appeal, appellant sets forth the following eight assignments of error for this court's review: [I.] The Trial Court erred when it Granted Defendants'- Appellees Summary Judgment pursuant to Ohio Rule of Civil Procedure 56. [II.] The Trial Court erred when it ruled that the City of Westerville was entitled to governmental immunity under ORC 2744.02(A). [III.] The Trial Court erred when it ruled that Bitar and Ung[a]r are entitled to governmental immunity under ORC 2744.03(A). [IV.] The Trial Court erred when it ruled that WICC and URB have governmental immunity under ORC 2744.02(A), as "Instrumentalities" of a Political Subdivision. [V.] The Trial Court erred when it ruled that Appellant failed to produce sufficient evidence of fraud/fraud in the inducement and damages. No. 21AP-514 8 [VI.] The Trial Court erred when it dismissed Appellant's promissory estoppel action. [VII.] The Trial Court erred when it ruled that Appellant failed to produce sufficient evidence of tortuous interference with a business relationship and damages. [VIII.] The Trial Court erred when it ruled that Appellant failed to produce sufficient evidence of intentional infliction of emotional distress and damages. {¶ 26} Appellant's assignments of error, each challenging the propriety of the trial court's grant of summary judgment in favor of appellees, will be consolidated for purposes of review. Under these assignments of error, appellant asserts the court erred in: (1) determining the city was entitled to governmental immunity under R.C. 2744.02(A); (2) holding that URB and WICC were entitled to governmental immunity under R.C. 2744.02(A) as instrumentalities of a political subdivision; (3) ruling that city employees Bitar and Ungar were entitled to governmental immunity under R.C. 2744.03(A); (4) finding appellant failed to produce sufficient evidence as to the elements of her claims of fraud, fraud in the inducement, tortuous interference with a business relationship, and intentional infliction of emotional distress to withstand summary judgment; and (5) dismissing her promissory estoppel action. {¶ 27} In accordance with the provisions of Civ.R. 56(C), "summary judgment shall be granted when the filings in the action, including depositions and affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24. This court's review of a trial court's decision on summary judgment is "de novo." Id. {¶ 28} Under Ohio law, "[a] claim of sovereign immunity by a political subdivision requires the three-tiered analysis provided in R.C. Chapter 2744." Baker v. Wayne Cty., 147 Ohio St.3d 51, 2016-Ohio-1566, ¶ 11, citing Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 16. Under the "first tier" of this analysis, "a political subdivision has immunity for negligent acts as long as the negligent acts are in connection with governmental or proprietary functions." Id., citing R.C. 2744.02(A)(1); Rankin at ¶ 17. The "second tier" of the analysis requires an examination as No. 21AP-514 9 to "whether any of the five exceptions listed in R.C. 2744.02(B) apply." Id., citing Rankin at ¶ 18. If any exception under R.C. 2744.02(B) does apply, "the third tier of the analysis considers whether sovereign immunity can be reinstated by one of the statutorily listed defenses." Id., citing Rankin at ¶ 27. {¶ 29} Appellant initially contends the trial court erred in granting summary judgment in favor of the city. Specifically, appellant argues the trial court erred in finding the city was immune because it engaged in the governmental function of enforcement of its zoning laws. According to appellant, when a city gives a private citizen money or a benefit that is not for the public good, it is engaged in a proprietary, not a governmental, function. In asserting the city was engaged in a proprietary function, appellant seeks to rely on one of the exceptions to the general grant of immunity, R.C. 2744.02(B)(2),1 which imposes liability on a political subdivision for an employee's negligent performance of a proprietary function. {¶ 30} R.C. 2744.01(C)(1) "provides a generic description of governmental functions." Greenfield v. Schluep, 4th Dist. No. 05CA8, 2006-Ohio-531, ¶ 12. R.C. 2744.01(C)(1) states as follows: "Governmental function" means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following: (a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens of the state; (c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function. 1R.C. 2744.02(B)(2) states: "Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." No. 21AP-514 10 {¶ 31} In addition to the above "general definition, the statute also provides a nonexclusive list of items that are deemed governmental functions per se." Schluep at ¶ 12. As relevant to the instant action, R.C. 2744.01(C)(2)(p) states in part that "[t]he provision or nonprovision of inspection services of all types, including, but not limited to, inspections in connection with building, zoning, sanitation, fire, plumbing, and electrical codes, and the taking of actions in connection with those types of codes" is a "government function." {¶ 32} By contrast, "R.C. 2744.01(G)(1) defines 'proprietary function,' in relevant part, as 'a function of a political subdivision that is specified in division (G)(2) of this section' or one that satisfies both of the following: (1) 'The function is * * not one specified in division (C)(2) of this section,' and (2) 'The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.' " CR Hill, L.L.C. v. Westlake, 8th Dist. No. 110610, 2022-Ohio-693, ¶ 15, quoting R.C. 2744.01(G)(1)(a) and (b). {¶ 33} In the present case, there is no dispute the city is a political subdivision as defined in R.C. 2744.01(F). As noted, however, appellant argues the city engaged in a proprietary function by "[p]romising free grant money to a private citizen to fix a privately owned building with mixed use zoning and then requiring her to change her home's zoning status." (Appellant's Am. Brief at 30.) Upon review, we find unpersuasive appellant's contention that the trial court erred in failing to find the activity at issue involved a proprietary function. {¶ 34} In determining whether a political subdivision is engaged in a governmental or proprietary function under R.C. 2744.01, "a court should look to the particular activity the subdivision is engaged in and decide whether that particular activity is of the type customarily engaged in by nongovernmental persons." Schluep at ¶ 13. In this respect, "the central issue resolves to whether the action for which [the plaintiff] seeks to hold the city liable is part of a governmental function or part of a proprietary function." (Emphasis sic.) Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 11 (10th Dist.). Further, "an activity that is customarily performed by nongovernmental persons does not render proprietary an overarching function that is governmental." McDonald v. Lacy, 2d Dist. No. 27779, 2018-Ohio-2753, ¶ 18, citing Shank v. Springfield, 2d Dist. No. 94-CA-71 (May 3, 1995). No. 21AP-514 11 {¶ 35} While appellant frames the dispositive issue as whether a city's promise of grant funding involves a governmental or proprietary function, the broader issue, for purposes of examining the conduct at issue (as reflected in appellant's complaint and deposition testimony), involves her claim that she was denied such grant money because of requirements by the city as to zoning and building code requirements pertaining to renovations made to her property located in the Uptown District. In her amended complaint, appellant alleged that "[t]he historical district of Old Westerville is controlled in matters of restoration, zoning, improvements and preservation by [appellee] the Uptown Review Board which is sanctioned by the City to police and maintain certain zoning requirements for the area as well as sanction and approve citizens and/or companies for historical restoration funds." (Pl.'s Proposed Am. Compl. at ¶ 11.) Further, prior to purchasing the property at 30 E. College Avenue, she consulted with a city employee (Bitar) about operating her real estate business out of the property, and also expressed her desire to reside at the property and to maintain a separate room for her mother. Appellant alleged she was assured she would "receive the funding necessary to rehabilitate and restore the property if she needed it." (Pl.'s Proposed Am. Compl. at ¶ 15.) {¶ 36} However, once she began rehabilitation work on the property, appellees "started harassing and citing [her] for work done and not done, advising her that new contingencies and code requirements existed." (Pl.'s Proposed Am. Compl. at ¶ 16.) Appellant further alleged that, at the time she applied for "the promised financial aid for the rehabilitation of the property," appellees "told her she could only get the money if she agreed to change the zoning of her property from mixed use to a restricted use and/or restricted deed." (Pl.'s Proposed Am. Compl. at ¶ 17.) According to appellant, she "refused to agree to the new rezoning/use contingencies," and was "forced to sell" the property because it "no longer fit her use and because she had spent all of her money bringing her historical property up to new code and the historical rehabilitation standards." (Pl.'s Proposed Am. Compl. at ¶ 19, 21.) {¶ 37} The trial court, in addressing and rejecting appellant's claim that the city engaged in a proprietary function, found the activity at issue involved the city's enforcement of its zoning laws, i.e., that the city's conduct in providing advice to appellant about building and zoning code requirements for renovations in the city's historic Uptown District (albeit No. 21AP-514 12 in the context of applying/qualifying for grant program funding) involved a governmental function. In support, the trial court relied on Ohio case law holding that a political subdivision's enforcement of its zoning laws constitutes a governmental function. See, e.g., CR Hill at ¶ 16 ("[a]ctions a city takes in connection with its zoning code constitute a governmental function"); Brewer v. Butler Cty. Bldg. & Zoning Dept., 142 Ohio App.3d 567, 574 (12th Dist.2001) (department engaged in governmental function when it refused to issue building permit due to the appellant's failure to comply with requirements of county's building code). {¶ 38} Based on this court's de novo review, we agree with the trial court's determination that the city was engaged in a governmental function when providing advice to appellant on compliance with building and zoning code issues, i.e., that the conduct at issue involved the "taking of actions in connection with" building and zoning codes. R.C. 2744.01(C)(2)(p). Here, the issue of grant funds cannot be divorced from the fact that program funding (provided under the city's Facade Improvement Program and earmarked for improvements made to buildings in the city's historic district) was contingent upon an applicant's compliance with applicable building and zoning code requirements (including agreement to building inspections). Those requirements are set forth in the grant guidelines, which state in part: "The owner/tenant shall comply with all applicable provisions of the Westerville Codified Ordinances and Ohio Building Code. By submitting an application to the program, the tenant/property owner agrees to allow the City to inspect the interior and exterior of the building for code compliance." (2016 Uptown Westerville Facade Improvement Program Guidelines at 3.) {¶ 39} We further agree with the trial court's determination that none of the exceptions to immunity under R.C. 2744.02(B), including 2744.02(B)(2), apply to deprive the city of immunity in this action. While R.C. 2744.02(B)(2) "is the only exception which contemplates negligent performance of acts or omissions," that provision "only applies to the performance of proprietary functions under R.C. 2744.01(G)(1)." Padula v. Hall, 7th Dist. No. 03-MA-235, 2004-Ohio-4823, ¶ 18. See also CR Hill at ¶ 21 (as city's review of development plan implicates a governmental function, "R.C. 2744.02(B)(2) does not apply because it is limited to negligence in the execution of proprietary functions"). Accordingly, No. 21AP-514 13 the trial court did not err in its determination the city was entitled to political subdivision immunity under the statute. {¶ 40} Appellant also challenges the trial court's determination that both the URB and WICC were entitled to immunity, pursuant to R.C. 2744.02(A), as instrumentalities through which the city carried out its governmental functions. Appellant argues the URB and WICC are not entitled to governmental immunity under the holding in Trucco Constr. Co. v. Fremont, 6th Dist. No. S-12-007, 2013-Ohio-415 (concluding that a corporation and its engineers did not qualify as employees/agents of city for purposes of immunity under R.C. 2744.01(B)). {¶ 41} The evidence submitted on summary judgment indicates WICC is a community improvement corporation ("CIC") as defined under R.C. Chapter 1724. In accordance with R.C. 1724.01(B)(1), a CIC may be organized for the purposes of "[a]dvancing, encouraging, and promoting the industrial, economic, commercial, and civic development of a community or area." {¶ 42} Bitar, the city's planning manager, stated in his deposition testimony that WICC is an "agency that does economic development functions in association with the city." (Bitar Depo. at 11.) WICC performs "multiple functions that promote[] economic development within the city," including "the Facade Improvement Program," with the intent "to promote investment in the Uptown District." (Bitar Depo. at 12-13.) According to Bitar, WICC receives funding from city council for its grant program. {¶ 43} Craven, the city's planning director, stated in an affidavit that WICC is a non- profit corporation "formed to support economic development within the City and has seven members, which include the City Administrator, the City Attorney, the Mayor, the director of Planning and Development, and three private citizens with connections to the City's business community." One of the functions of WICC "is to administer a program which provides funds to uptown business[es] for renovations." (Craven Aff. at ¶ 5.) {¶ 44} In his affidavit, Craven further averred in part: In my position as Planning and Development Director, I am one of the City representatives on the WICC Board. The Board reviews and acts on all applications for WICC funding. For property owners seeking funding from WICC for a renovation project, property owners initially apply to WICC. If the project meets the program guidelines, WICC conditionally approves No. 21AP-514 14 their application. The property owner must then have their individual plans approved by the Uptown Review Board ("URB"), a citizen board that reviews proposed alterations to uptown properties. If the URB approves the plans, and if the property owner completes the build out of the renovations consistent with the approval from the URB, the property owner submits * * * verifying evidence of the expenses for the project to development staff. If the renovations and documentation of expenses are accurate, WICC then releases funds to reimburse the property owner's expenses in the previously agreed to amount. *** WICC funding is available for commercial and mixed uses with a commercial component. When a property is built out for a commercial use, that portion of the property must meet the commercial building code. WICC funds are contingent on building code approval. Thus, if a property owner is not willing to comply with the commercial building code, the project will not be eligible for WICC funding. As the administrator of the grant funds, WICC has the authority to attach reasonable conditions to grant money to ensure that it will be used for the purposes of the program, which is the development of commercial property. (Craven Aff. at ¶ 8, 10.) {¶ 45} With respect to the URB, the evidence on summary judgment indicates this entity is comprised of seven members appointed by the Westerville City Council, "who must either be an elector of the City or the owner of a business in the Architectural Review District." Westerville Codified Ordinance No. 1107.05(a). The powers and duties of the URB are to "[r]eview, approve or disapprove" the following: (1) "all proposed signage, landscaping, new construction, exterior remodeling or reconstruction proposed for all structures and premises within the Architectural Review District"; (2) "all requests for demolition of buildings, structures, site features or improvements within the Architectural Review District"; and (3) "all applications for signage within the Uptown District." Westerville Codified Ordinance No. 1107.05(d)(1), (2) and (3). The URB is also charged with the power to "[g]rant or deny applications for variances within the Uptown District from the provisions of the sign code," and to "[a]dopt by resolution criteria, rules and regulations consistent with the guidelines and purpose of Chapter 1149 for the purpose of No. 21AP-514 15 evaluating applications for certificates of appropriateness." Westerville Codified Ordinance No. 1107.05(d)(4) and (5). {¶ 46} In the present case, the trial court held that WICC and the URB are the instrumentalities through which the city carries out its government functions, and thus entitled to immunity under R.C. 2744.02(A). In addressing appellant's claims against WICC and the URB, the trial court relied on the Supreme Court of Ohio's decision in Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450 (1994).2 {¶ 47} In Wilson, the Supreme Court held in part that, while R.C. Chapter 2744 is silent as to whether county departments of human services are "themselves political subdivisions," they are nonetheless "instrumentalities through which the political subdivisions carry out governmental functions," and "[w]here a county is immune under R.C. 2744.02 in its operation of a human services department, that immunity extends to the human resources department itself." Id. at 452-53. The Supreme Court reasoned that "[t]he burdens imposed by litigation and damage awards ultimately fall upon the same county resources regardless of whether the nominal defendant is the county board of commissioners or the county department of human services." Id. at 453. {¶ 48} As set forth above, the record evidence reflects that WICC consists of seven members, four of whom are representatives of the city. WICC performs functions on behalf of the city to promote the civic development of commercial property; one of those functions is to administer a grant program (designated as the Uptown Westerville Facade Improvement Program) providing grant funds for renovations to buildings in the city's Uptown District. The city provides funding for WICC, and applications made to WICC for grant money are contingent upon plan approval by URB, as well as building code approval by the city. WICC works in conjunction with URB regarding applications for grant money, i.e., if WICC "conditionally approves" an application, the property owner "must then have their individual plans approved by the [URB]." Grant funds provided by WICC "are contingent on building code approval." (Craven Aff. at ¶ 8, 10.) 2The trial court also addressed and found inapposite appellant's reliance on Trucco Constr. Co. noting that R.C. 2744.01(B) was amended in 1995 and changed the definition of "employee" of a political subdivision, substituting the words "acting within the scope of his employment" with "acting within the scope of the officer's, agent's, employee's or servant's employment." (Emphasis sic.) (Decision at 17.) No. 21AP-514 16 {¶ 49} The URB is an entity comprised of members appointed by city council to review and approve and/or disapprove applications with respect to construction in the city's historic Uptown District. As to the URB's interaction with appellant in the instant case, the evidence indicates appellant submitted various applications for certificates of appropriateness for work to be performed on the subject property, and the URB approved all (ten) of appellant's applications. As discussed above, applications for funding from WICC's Uptown Westerville Facade Improvement Program require applicants to obtain all necessary permits and to carry out improvements in accordance with the city's building code, codified ordinances, and the Uptown Westerville Design Guidelines. Applicants also acknowledge that completed facade improvements are subject to "inspection by the Westerville Industry and Commerce Corporation and the Uptown Review Board." (2015 Uptown Westerville Facade Improvement Program App. at 2.) As recognized by the trial court, the activities conducted by these entities, including the administration of a grant funding program to promote economic development (involving the discretionary power to award grant funds based on compliance with building codes and enforcement provisions of city ordinances) and the authority to issue certificates of appropriateness, arguably implicate governmental functions. See, e.g., Lemley v. Cleveland, 8th Dist. No. 97296, 2012-Ohio-1544, ¶ 28 ("the City's issuance of a Certificate of Appropriateness falls squarely within the contemplation of R.C. 2744.01(C)(2)(p), specifically, inspections in connection with * * * buildings or structures"). {¶ 50} Upon review of the record, including evidence regarding the activities of WICC and the URB carried out on behalf of the city to promote commercial development and enhance the city's historic Uptown District, we find no error with the trial court's determination that WICC and the URB serve the city as instrumentalities through which it carried out certain governmental functions and duties, and therefore the immunity afforded the city "extends" to those entities. Wilson at 453. See also Miller Plumbing & Heating Co. v. Village of Chagrin Falls, 8th Dist. No. 73592 (Dec. 10, 1998) (immunity extended to village under R.C. Chapter 2744 also extends to engineering consulting firm as "the instrumentality through which the Village carried out the governmental function"); Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 20 ("the immunity granted by No. 21AP-514 17 statute to a political subdivision is also extended to the political subdivision's departments, agencies, and offices, which implement the duties of the political subdivision"). {¶ 51} We next address appellant's contention the trial court erred in granting summary judgment in favor of city employees Bitar and Ungar. Appellant argues the trial court failed to "explicitly address" whether the actions or omissions of Bitar and Ungar were outside the scope of their employment, as set forth under R.C. 2744.03(A)(6)(a), and that the court erred in failing to find evidence that acts or omissions of these employees were with malicious purpose, in bad faith, or wanton or reckless. (Appellant's Brief at 31.) {¶ 52} With respect to Bitar, appellant asserts genuine issues of material fact remain as to whether he was reckless regarding the truth or falsity of his representations to her about the opportunity for grant funding, and that the trial court erred in ruling she failed to produce sufficient evidence of fraud and/or fraud in the inducement. Appellant further argues she presented sufficient evidence that Ungar tortuously interfered with the business relationship between her and Anna DiCarlo, and that ample evidence exists that both Bitar and Ungar committed the tort of intentional infliction of emotional distress. {¶ 53} R.C. 2744.03(A)(6) "provides immunity to an employee of a political subdivision unless an exception found within R.C. 2744.03(A)(6)(a) through (c) applies." Thompson v. Buckeye Joint Vocational School Dist., 5th Dist. No. 2015 AP 08 0047, 2016- Ohio-2804, ¶ 27. Under the provisions of R.C. 2744.03(A)(6), "an employee of a political subdivision is immune from liability unless: (1) the employee's acts or omissions are manifestly outside the scope of the employee's employment or official responsibilities; (2) the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton and reckless manner; or (3) civil liability is expressly imposed on the employee by a section of the Revised Code." Id. {¶ 54} Although R.C. Chapter 2744 "does not define the type of employee acts that fall 'manifestly outside the scope of employment or official responsibilities' under R.C 2744.03(A)(6)(a), * * * Ohio courts have generally drawn from agency-law principles to hold that 'conduct is within the scope of employment if it is initiated, in part, to further or promote the master's business.' " Smith v. Pierce Twp., 12th Dist. No. CA2013-10-079, 2014-Ohio-3291, ¶ 35, quoting Curry v. Blanchester, 12th Dist. No. CA2009-08-010, 2010- Ohio-3368, ¶ 30, citing Jackson v. McDonald, 144 Ohio App.3d 301, 307 (5th Dist.2001). No. 21AP-514 18 Thus, " '[i]n the context of immunity, [a]n employee's wrongful act, even if it is unnecessary, unjustified, excessive or improper, does not automatically take the act manifestly outside the scope of employment.' " (Internal quotations omitted.) Id., quoting Curry at ¶ 30. Rather, " '[i]t is only where the acts of [political subdivision] employees are motivated by actual malice or other [situations] giving rise to punitive damages that their conduct may be outside the scope of their * * * employment.' " Id. {¶ 55} Under Ohio law, "[m]alice has been defined as the willful and intentional design to do injury." Wooton v. Vogele, 147 Ohio App.3d 216, 222 (1st Dist.2001). The term " '[b]ad faith' embraces more than bad judgment or negligence," as it "imports a 'dishonest purpose, moral obliquity, conscious wrong doing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud." Id. The Supreme Court "has defined 'wanton misconduct' as 'the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.' " (Emphasis sic.) Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 8, quoting Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph three of the syllabus. Wanton conduct involves "a degree greater than negligence," and "[t]he standard for showing wanton conduct is extremely high." Hiles v. Franklin Cty. Bd. of Commrs., 10th Dist. No. 05AP-253, 2006-Ohio-16, ¶ 39. {¶ 56} The Supreme Court has "defined 'reckless conduct' as conduct 'characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.' " Argabrite at ¶ 8, quoting Anderson at paragraph four of the syllabus. While negligence " 'consists in mere inadvertence, incompetence, [or] unskillfulness,' " reckless misconduct " 'requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.' " Marchetti v. Kalish, 53 Ohio St.3d 95, 100 (1990), fn.3, quoting Restatement of the Law, Torts 2d, 590, Section 500, Comment (g). The Supreme Court has held that "[d]istilled to its essence, and in the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk." O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 73. Accordingly, as recklessness "requires something more than mere negligence," the actor, "[i]n fact, * * * 'must be conscious that his conduct will in all No. 21AP-514 19 probability result in injury.' " Id. at ¶ 74, quoting Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356 (1994). {¶ 57} A court's grant of summary judgment in favor of an employee of a political subdivision "is proper where the employee's actions 'showed that he did not intend to cause any harm * * , did not breach a known duty through an ulterior motive or ill will, [and] did not have a dishonest purpose.' " Fox v. Daly, 11th Dist. No. 96-T-5453 (Sept. 26, 1997), quoting Hackathorn v. Preisse, 104 Ohio App.3d 768, 772 (9th Dist.1995). Further, "[t]he standard for showing that a political subdivision employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner is 'rigorous' and 'will in most circumstances be difficult to establish.' " Graf v. Nelsonville, 4th Dist. No. 18CA28, 2019-Ohio-2386, ¶ 53, quoting Argabrite at ¶ 8. {¶ 58} Under Ohio law, the elements of civil fraud are: "(1) a representation, (2) material to the transaction, (3) made falsely, knowingly, or recklessly, (4) with the intention of misleading another into a justifiable reliance on those facts, (5) that causes the other party injury." Curran v. Vincent, 175 Ohio App.3d 146, 2007-Ohio-3680, ¶ 18 (1st Dist.). The elements of a claim for tortuous interference with a business relationship are " '(1) a business relationship; (2) the tortfeasor's knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom.' " Walter v. ADT Sec. Sys., 10th Dist. No. 06AP-115, 2007-Ohio-3324, ¶ 31, quoting Diamond Wine & Spirits v. Dayton Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 23 (3d Dist.). A plaintiff seeking to bring a claim for intentional infliction of emotional distress " 'must prove (1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the proximate cause of plaintiff's serious emotional distress.' " Weaver v. Deevers, 11th Dist. No. 2020-P-0087, 2021-Ohio- 3791, ¶ 33, quoting Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410-11 (1994). {¶ 59} Appellant initially contends the trial court failed to address whether the actions of Bitar and Ungar were outside the scope of their employment. Appellant focuses specifically on the actions of Bitar, asserting that he promised appellant she could obtain grant funding and still use the real estate for the commercial and residential purposes she expressed. No. 21AP-514 20 {¶ 60} As noted by appellees, appellant's contention that Bitar was not acting within the scope of his employment with the city stands in contrast to the allegations of her complaint. Specifically, in her amended complaint, appellant alleged that "[a]t all times relevant [appellees] were acting under the supervision, authority, apparent authority, direction and control of the City of Westerville and/or WICC and/or the [URB]." (Pl.'s Proposed Am. Compl. at ¶ 7.) The complaint further alleged that, prior to purchasing the property, appellees "through its/their agents/other City Officials or apparent agents under the direction and control of the [appellees] assured/promised [appellant] that if she purchased the property and worked on its restoration, certain historical restoration grants would be available to her should they be needed to help pay for the rehab of the home in question." (Pl.'s Proposed Am. Compl. at ¶ 14.) {¶ 61} More significantly, we agree with appellees that the record evidence as to purported misrepresentations made by Bitar to appellant regarding the development of her property involve discussions made in his capacity as a zoning official. According to the deposition testimony of Bitar, in his role as city planning commissioner, he "oversees private development within the city," and also "[a]dminister[s] the zoning code." (Bitar Depo. at 7.) As part of those duties, Bitar acts as a "staff liaison" with respect to the URB and provides "recommendations to the board" regarding applications for approval of certificates of appropriateness. (Bitar Depo. at 26-27.) {¶ 62} The record indicates that Bitar, in his capacity as planning commissioner, guided appellant through the URB application and review process, as reflected in e-mail exchanges between those individuals. Prior to a meeting of the URB on appellant's application, Bitar submitted a staff report to the URB outlining the requests by appellant for "approval of various exterior building and site improvements with an urgent focus on roof replacement." (Apr. 1, 2016 Staff Report at 1.) Appellant testified in her deposition that Bitar attended the URB meeting on the proposed project and made a presentation and a staff recommendation, and appellant acknowledged that Bitar recommended the URB approve her recommendations. The record also reflects that the URB ultimately approved the application, i.e., appellant received certificates of appropriateness for all ten of the exterior items she sought to complete. No. 21AP-514 21 {¶ 63} While appellant contends Bitar provided inaccurate information regarding the availability of funding and use of her property, the record does not raise a genuine issue of material fact as to whether Bitar acted manifestly outside the scope of his employment regarding discussions he had with appellant on issues of funding and compliance with building and zoning code requirements. Accordingly, while the focus of the trial court's analysis with respect to the conduct of Bitar was on the provisions of R.C. 2744.03(A)(6)(b), rather than 2744.03(A)(6)(a), based on this court's de novo review appellant cannot show prejudicial error by the trial court in failing to explicitly discuss that provision. {¶ 64} Appellant further contends genuine issues of material fact remain as to whether the actions of Bitar and Ungar were malicious, in bad faith, or conducted in a wanton or reckless manner. With respect to Bitar, appellant maintains reasonable minds could conclude he mispresented and misled her into believing she could obtain WICC grant money to defray the cost of renovation of the commercial component of her mixed use purpose while still being able to maintain the residential use purpose. Appellant further contends reasonable minds could conclude that, according to Bitar's representations, the award of a WICC grant did not prohibit the owner from renovating the residential component of a project at her own expense. Appellant also maintains Bitar was aware of, and yet failed to disclose to her, several pitfalls "such as arduous building code requirements." (Appellant's Am. Brief at 25.) According to appellant, Bitar "was at the least reckless" in failing to discuss the viability of "potential uses and funding opportunities for development." (Appellant's Am. Brief at 25-26.) {¶ 65} In considering the evidence on summary judgment as to alleged misrepresentations by Bitar, the trial court noted deposition testimony by Bitar "that one of his job duties was to make sure the development of properties in the City meet the requirements of its zoning code," and that Bitar "informed [appellant] that WICC funding was available for commercial and mixed uses and, as long as there was some commercial use of her [p]roperty, her project would be eligible for WICC funds." (Decision at 14.) The trial court found that Bitar met with appellant "and advised her as best he could about zoning and development in the Uptown District and about a potential funding source to offset the expense of the renovation." Further, once appellant purchased the property, "Bitar successfully guided her through the process for securing grant funds from WICC and No. 21AP-514 22 the approval of her renovations with the URB." After appellant "balked at complying with the commercial building code for the home, Bitar was involved in laying out the various options [appellant] had to move forward with her [p]roperty." The trial court concluded "[n]one of these actions were in bad faith or negligent, let alone fraudulent, malicious, willful, wanton or reckless." (Decision at 15.) {¶ 66} In addressing appellant's specific claim for fraud, the trial court held that "none of the representations made by any of the Defendant[s] in this case were knowingly false." (Decision at 18.) Specifically, the trial court found it was "true that [appellant] could 'live-work' in the premises; she just could not convert the [p]roperty into a 'high-density residential' use"; it was "also true that [appellant's] mother could live with her in the [p]roperty; she just could not receive WICC funds if that happened"; similarly, it was "true that WICC funds might be available if [appellant] complied with the commercial code; she just could not use those funds for residential purposes"; and it was "also true that if [appellant] chose to receive WICC funds * * she would have to modify her deed to restrict the use of the [p]roperty to commercial uses; she just could not use the [p]roperty for mixed-use purposes." (Decision at 18-19.) {¶ 67} The record on summary judgment indicates Bitar met with appellant prior to her purchase of 30 East College Avenue and provided her information as to potential grant funding available for commercial renovations in the historic Uptown District. During her deposition, appellant, a licensed real estate broker, indicated she had been involved with three prior renovation projects, and acknowledged she was familiar with zoning codes. Appellant stated that she first met with Bitar in October 2015. Appellant "wanted to know if I could live, work, have my office in the front and my elderly mother in the back." According to appellant, Bitar informed her that she would have to contact the URB regarding "a historical renovation." (Appellant Depo. at 61-62.) Appellant testified that "right from the get-go after I told him how I wanted to use it and he said that the house does qualify but I'd have to go through - - for the money but I would have to go through the procedures, you know, I'd have to go through their hearing thing, and they were on vacation." (Appellant Depo. at 81.) Prior to closing, in December 2015, appellant did not speak with anyone from WICC or the URB. No. 21AP-514 23 {¶ 68} With respect to WICC grant funding, appellant understood that WICC provided conditional approval if the project fell within the parameters of the funding request. According to appellant, she "was told if I bought the house, that I could use it for all the reasons I wanted and I qualified for the funding and the money, no problem." (Appellant Depo. at 193.) She later came to understand that if she maintained an office and her mother lived in the house, she would not be eligible for WICC money. Appellant testified that, in February 2016, after purchasing the property, "I was told there was a mistake, but if I turned that back room that was supposed to be for my mother into a commercial property, then I could have the money, but that's not what I was told from the get-go." (Appellant Depo. at 64.) Bitar told her "they had made a mistake that I didn't qualify, my use didn't qualify for the money, so it changed * * * you know." (Appellant Depo. at 82.) {¶ 69} Appellant could not remember whether she looked at the zoning code requirements for the Uptown District prior to purchasing the property, and she did not understand that WICC and the URB are separate entities, or that the URB did not approve funding. Appellant agreed that the condition of signing the deed restriction was a condition relating to funding (and not a condition as to her ability to use the property in the manner desired). Appellant understood that she could have moved forward with the project as a pure commercial use and that she would have received funding; she also agreed that no one from the city told her she would be in violation of the zoning code if she used the property as originally proposed. {¶ 70} Appellant acknowledged that she received conditional approval from WICC for $27,053 in grant money, and that the URB subsequently approved all of her applications for certificates of appropriateness. Appellant declined, however, to sign a deed restriction regarding multi-family residential use "[b]ecause it was subject to their interpretations of things." (Appellant Depo. at 124-25.) Appellant "refused to restrict my deed. I did not take the money." (Appellant Depo. at 128.) {¶ 71} According to the deposition testimony of Bitar, the Uptown District "is established in the zoning code as a mixed-use district." (Bitar Depo. at 13-14.) During his deposition, Bitar, who testified that he first met appellant in "late 2015," identified an exchange of e-mails involving correspondence he had with appellant beginning in No. 21AP-514 24 December 2015. (Bitar Depo. at 40.) In response to an e-mail inquiry by appellant regarding a roof leak, Bitar "suggested we meet early in January to discuss the process and the funding." (Bitar Depo. at 41.) Bitar "mentioned there is a chance she can get assistance through the Facade Improvement Program, which may help with the roof and other exterior improvements." (Bitar Depo. at 41-42.) He also told appellant "there is a process that has to be followed, so I think it would make sense to strategize to make sure the process moves as efficiently as possible," and Bitar "[s]uggested she talk to [city official] Dave Meadows to understand more about the provisions of the grant." Bitar informed appellant "the Uptown board approval has to happen before or prior to the work being done," and that "[t]here have been occasions where URB * * * required reversal of work that was done without their approval." (Bitar Depo. at 42.) In that correspondence, Bitar also suggested that appellant "talk to economic development to understand the provisions of the program." (Bitar Depo. at 42-43.) {¶ 72} As noted, appellant contends that Bitar made representations that basically assured her, based on her proposed mixed use of property, that she would be eligible for grant funding to defray renovation costs. Appellant further maintains Bitar was aware of, yet failed to disclose, various pitfalls of the city's "arduous building code requirements." (Appellant's Brief at 25.) {¶ 73} Accepting appellant's testimony that Bitar informed her of a mistake with respect to the availability of grant funding for her proposed renovations, the summary judgment evidence as to the issue of mistaken advice and/or interpretation of zoning requirements does not, as a matter of law, rise to the level of recklessness. Here, a review of the record as to the conduct of Bitar's interactions with appellant, including purported mistaken and/or bad advice, does not indicate Bitar was conscious that his conduct would in all probability result in injury, i.e., there was no "perverse disregard of a known risk." O'Toole at ¶ 73. As noted by the trial court, the evidence indicates that Bitar sought to assist appellant throughout the process, that he attended the URB meeting and recommended that her application be approved, and that appellant ultimately received approval for each of her requested certificates of appropriateness. While the evidence construed most strongly in favor of appellant might create a genuine issue of material fact as to whether Bitar was negligent in advising her about the grant program and/or the steps she needed to No. 21AP-514 25 take to comply with building requirements in order to obtain funding, we agree with the trial court that there is a lack of evidence upon which reasonable minds could find that Bitar acted with malicious purpose, in bad faith, or in a wanton or reckless manner. See, e.g., Griggy v. Cuyahoga Falls, 9th Dist. No. 227533, 2006-Ohio-252, ¶ 10 (city housing inspector's "mistake" in citation to the wrong city code did not rise to the level of wanton and reckless conduct). {¶ 74} We note that appellant essentially alleges in part a fraud claim based on a purported assurance by Bitar that she would receive future grant funds, i.e., the alleged misrepresentation is promissory in nature. In general, "a claim for fraud cannot be predicated upon promises or representations relating to future actions or conduct." Martin v. Ohio State Univ. Found., 139 Ohio App.3d 89, 98 (1oth Dist.2000). An "exception to this rule" is when the individual making a promise of future action, " 'at the time he makes it, has no intention of keeping his promise.' " (Emphasis sic.) Id., quoting Tibbs v. Natl. Homes Constr. Corp., 52 Ohio App.2d 281, 287 (12th Dist.1971). While appellant contends she relied on Bitar's authority, experience, and guidance to navigate the rules for renovation of her property, the record evidence does not create a genuine issue of material fact that Bitar assured her that she would receive funding when he, in fact, knew she would be unable to do so, or that he made representations with the intent to mislead her. {¶ 75} We further note the record fails to demonstrate a genuine issue of material fact as to the justifiable reliance element for a fraud claim. While appellant contends Bitar failed to inform her of the arduous building code requirements, Ohio courts have "recognized that 'persons seeking information from the government must assume the risk that the agent of the government might be wrong.' " Mueller v. Vandalia, 2d Dist. No. 16158 (Mar. 7, 1997), quoting Gaston v. Ohio Bur. of Emp. Serv., 17 Ohio App.3d 12, 14 (8th Dist.1983). Further, "[a]n individual has no right to rely on a representation when the actual facts are equally open to both parties." Takis, LLC v. C.D. Morelock Properties, Inc., 180 Ohio App.3d 243, 2008-Ohio-6676, ¶ 30 (10th Dist.) (insufficient evidence to support fraudulent inducement claim where plaintiffs "produced no evidence suggesting they were prevented from independently inquiring into the zoning requirements" for proposed use of property). Id. No. 21AP-514 26 {¶ 76} Regarding appellant's allegations involving Ungar, the city's chief building official, appellant asserted before the trial court that Ungar's "conduct was 'malicious, willful, wanton and reckless' because (1) he told her steel beams would need to be installed on her [p]roperty, and (2) he made misstatements about 'facts to potential purchasers about the permitted use of [appellant's] real estate.' " The trial court found both arguments "disingenuous." (Decision at 15.) {¶ 77} In addressing appellant's claims against Ungar, the trial court cited Ungar's deposition testimony that he informed appellant "she may have to hire a design professional to determine whether additional supports like steel beams would need to be installed to comply with the commercial building code." The trial court further noted appellant "never spoke to Ungar before she closed on the [p]roperty at issue," and that Ungar "made no representations" to appellant that the property "would or would not qualify for WICC funds." Thus, the court concluded, "any conversations Ungar had with [appellant] were after she purchased the [p]roperty and do not rise to the level of maliciousness, willful, wanton or reckless conduct, not to mention she could not have relied on them in any way." (Decision at 15.) {¶ 78} Appellant's claim for tortious interference with a business relationship also alleged conduct by Ungar. Specifically, appellant asserted that Ungar interfered with her attempt to sell the property located at 27 East College Avenue (a property she purchased and sold after selling her property at 30 East College Avenue). In addressing this claim, the trial court noted that "this case is not about 27 E. College Avenue," and that if appellant had claims against appellees with respect "to that other property," her remedy "was to amend her complaint and make the allegations." (Decision at 20.) The trial court further noted that appellant's claim was based on the affidavit of Anna DiCarlo, who averred in part: " 'I am confident that Mr. Ungar most likely made the same kinds of statements to prospective buyers of 30 East College Avenue as he did to me regarding 27 East College Avenue.' " (Decision at 20, quoting DiCarlo Aff. at ¶ 22.) The trial court concluded that "this statement means nothing and is pure speculation." The trial court further held appellant "does not even identify who it was she had a business relationship with." (Decision at 20-21.) {¶ 79} Upon review, we find no error with the trial court's determination. With respect to representations by Ungar regarding steel beams, appellant points to a statement No. 21AP-514 27 by Ungar that appellant would have to hire a design professional to determine whether she needed steel beams in order to comply with the Ohio Building Code. According to appellant, the evidence shows Ungar "already predetermined that steel beams were required to conform to the Building Code." (Appellant's Brief at 37.) We agree, however, with the trial court that, as a matter of law, the facts/evidence as to the actions alleged, i.e., Ungar's statement/opinion about hiring a design professional, simply do not rise to the level of malicious, willful, wanton or reckless conduct. {¶ 80} We also find no error with the trial court's determination that appellant failed to submit evidence indicating Ungar knew of a business relationship with respect to appellant and the property at 30 East College Avenue, and/or that he intentionally interfered and caused termination of a relationship. As noted by the trial court, the evidence relied on by appellant involved the affidavit of Anna DiCarlo, who averred that she had an interest in purchasing the property at 27 East College Avenue, and that, because of representations made to her by Ungar, she chose not to pursue purchase of that property. That property, however, was not the subject of the instant action, and the record evidence is undisputed that the alleged statements occurred after appellant sold her property at 30 East College Avenue. During her deposition, appellant acknowledged that she sold the property at 30 East College Avenue prior to any interactions she had with DiCarlo. As found by the trial court, DiCarlo's averment in her affidavit that she was "confident" Ungar "most likely" made similar statements about the property at 30 East College Avenue is purely speculative and does not raise a genuine issue of material fact. {¶ 81} In addressing appellant's claim for intentional infliction of emotional distress, the trial court found appellant failed to "identify any [p]sychologists or [p]sychiatrists that she visited; she does not present any diagnoses provided by any attending mental health expert; she does not indicate when or for how long she suffered this alleged distress; she does not provide any treatment regimen; nor does she provide any evidence of damages in this regard." (Decision at 21-22.) The record supports the trial court's findings, and we find no disputed facts as to whether appellees acted with malicious purpose, in bad faith, or in a wanton or reckless manner with respect to appellant's claim for intentional infliction of emotional distress. No. 21AP-514 28 {¶ 82} Finally, the trial court did not err in denying appellant's claim for promissory estoppel. Appellant's argument is premised on her assertion appellees were engaged in a proprietary function, and that WICC and the URB are not entitled to immunity as instrumentalities of the city. We have, however, addressed and rejected appellant's contentions with respect to those issues. Under Ohio law, "the doctrines of equitable estoppel and promissory estoppel are inapplicable against a political subdivision when the political subdivision is engaged in a governmental function." Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, ¶ 25. See also Ohio Dept. of Jobs & Family Servs. v. Ohio Wilderness Boys Camp, 7th Dist. No. 13 NO 403, 2015-Ohio-2331, ¶ 18, quoting Halluer v. Emigh, 81 Ohio App.3d 312, 318 (9th Dist.1992) ("it is well-settled law in Ohio that estoppel cannot be used against [a political subdivision] or [its] agents during the exercise of a government function" based on rationale that " '[m]istaken advice or opinions of a government agent do not create an estoppel' "). {¶ 83} Based upon this court's de novo review of the record, the trial court did not err in granting summary judgment in favor of appellees. Accordingly, appellant's eight assignments of error are not well-taken and are overruled. {¶ 84} Based upon the foregoing, and having overruled appellant's eight assignments of error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. KLATT and JAMISON, JJ., concur. ________________	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484685/	[Cite as In re A.L., 2022-Ohio-4095.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT In the Matter of: : No. 21AP-633 [A.L., : (C.P.C. No. 19JU-5398) H.L., : (REGULAR CALENDAR) Appellant]. : D E C I S I O N Rendered on November 17, 2022 On brief: Campbell Law, LLC, and April F. Campbell, for appellant. On brief: Robert J. McClaren, and Tyler Dunham, for appellee Franklin County Children Services. On brief: David K. Greer, Guardian ad Litem for A.L. APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch LUPER SCHUSTER, P.J. {¶ 1} Appellant, H.L. ("mother"), mother of A.L., appeals from a decision and judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating her parental rights and placing A.L. in the permanent custody of appellee, Franklin County Children Services ("FCCS"). Appointed counsel for mother filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). For the following reasons, we find no non-frivolous issues for review and we affirm. However, we also use this opportunity to determine that, going forward, we will no longer accept Anders briefs in cases involving the termination of parental rights and motions for permanent custody. No. 21AP-633 2 I. Facts and Procedural History {¶ 2} This case involves FCCS's request for permanent custody of A.L., born May 1, 2019. FCCS obtained an emergency custody order and filed a complaint on May 3, 2019 alleging A.L. to be a neglected and dependent child. Pursuant to the complaint, mother had been hospitalized over 100 times due to psychiatric issues including threatening suicidal and homicidal ideations, and she was at a psychiatric hospital when she went into labor. When A.L. was born, mother required a 24-hour sitter to monitor her interactions with A.L. due to safety concerns for both mother and A.L. Additionally, mother had tested positive for cocaine during every one of her prenatal drug screens and she admitted to using marijuana throughout her pregnancy. The complaint further stated mother had been linked with mental health treatment professionals, and the treatment processionals were unable to determine that A.L. would be safe in mother's care. {¶ 3} The trial court conducted an August 1, 2019 hearing at which mother did not contest the facts underlying the complaint. In an August 6, 2019 judgment entry, the trial court adjudicated A.L. to be a neglected and dependent child and temporarily committed him to the custody of FCCS through a temporary order of custody. {¶ 4} Following the issuance of the temporary order of custody, FCCS initially placed A.L. in kinship care with a maternal aunt. However, on September 8, 2019, the maternal aunt took A.L. to the hospital alleging A.L. fell off a bed. Further medical examination indicated A.L. had suffered fractures of both of his femurs, 13 to 14 rib fractures in different stages of healing, two broken fingers, a skull fracture, brain injury, and injuries to his genitals. An investigation identified four alleged perpetrators from the kinship care home, though the investigation was ongoing and charges had not been filed. Family members in the kinship care home provided inconsistent stories about how A.L. sustained the injuries. After A.L. was hospitalized, FCCS placed the child in a non-relative foster home. {¶ 5} Due to the severity of A.L.'s injuries, A.L. was linked with treatment for urology, cardiology, physical, and occupational therapies. A.L. did not pass an EKG test, and doctors detected a heart murmur and abnormalities. Developmentally, the injuries rendered A.L. as starting over as a newborn. No. 21AP-633 3 {¶ 6} On March 12, 2020, FCCS filed a motion for permanent court commitment ("PCC"), also known as permanent custody, of A.L. In the PCC motion, FCCS alleged that A.L. cannot be placed with either parent in a reasonable period of time or should not be placed with either parent, the child is abandoned, and that permanent custody was in the best interest of the child. Further, FCCS stated mother had not visited A.L. since July 2019 and had therefore willfully abandoned him, had failed to maintain stable housing or income, had failed to engage in substance abuse or mental health treatment, and that the identity of the father was unknown. FCCS additionally stated that mother has significant mental health diagnoses and treatment needs, and that FCCS had not been able to make contact with mother to inquire about the identity of the biological father. FCCS then filed an amended PCC motion on July 20, 2021 to additionally assert that A.L. had been in the custody of FCCS for 12 or more months of a consecutive 22-month period. {¶ 7} The permanent custody motion was set for a full hearing. The trial court granted mother two continuances after mother failed to appear for the hearing, first on March 18, and again on May 26, 2021. When the matter came for hearing again on August 17, 2021, mother again failed to appear for trial. Counsel for mother requested another continuance, stating mother was scheduled to be released from her most recent hospitalization at Twin Valley Behavioral Health sometime that day. The trial court granted a third continuance, this time setting the trial for two days later. {¶ 8} At the August 19, 2021 hearing, mother again failed to appear for trial. Counsel again requested another continuance. Counsel informed the court that mother had been released from Twin Valley Behavioral Health and that FCCS had arranged a taxi to bring mother to court, but mother refused to get in the car. The trial court denied counsel's continuance request and proceeded to trial in mother's absence. Counsel for mother represented mother throughout the trial, including making evidentiary objections, cross- examining witnesses, giving an opening statement opposing the motion for PCC, and reiterating the opening statement as a closing argument. {¶ 9} During the trial, Sara Hartley, an employee with the Franklin County Guardianship Service Board, testified her agency was appointed guardian of mother in February 2020 following a referral from Ohio State University's Harding Hospital. Since her involvement with mother in February 2020, Hartley testified mother has had at least No. 21AP-633 4 ten mental health hospitalizations. Mother's most recent mental health hospitalization occurred in the days before the trial. Hartley stated her contact with mother has been very limited because mother would not provide her whereabouts to the agency, and the primary visits Hartley had with mother were when she was hospitalized. Mother's mental health diagnoses include severe schizoaffective bipolar disorder, moderate substance abuse with stimulant use disorder, and moderate cannabis use disorder. Hartley testified she does not believe mother has a bond with A.L., that mother never discusses A.L., and, based on her involvement in the matter, the agency recommends the PCC motion be granted. {¶ 10} The caseworker for FCCS assigned to the case, Tina Watkins, testified A.L. is placed in a treatment foster home. Watkins testified she went over the case plan with mother about five times. The case plan objectives included that mother obtain stable housing and a legal source of income, be compliant with her mental health treatment, live substance-free, provide for A.L.'s basic needs, complete visitation with A.L., and meet monthly with the caseworker. {¶ 11} Watkins testified mother has primarily lived with her mom and that mother has not lived independently since FCCS opened the case. Further, Watkins does not believe mother is capable of living independently because of her mental health issues. When mother is released from mental health hospitals, Watkins said mother typically stops taking her prescribed medications. Additionally, Watkins testified mother has not obtained a legal source of income and has never been employed during the pendency of the case. The mental health component of the case plan required mother to be compliant with her medication and complete counseling, both of which Watkins testified mother failed to do. Watkins described an incident when she visited mother at mother's mom's house and mother became verbally threatening toward Watkins when she inquired about mother's medications. Watkins testified mother has refused to sign releases for her mental health records. {¶ 12} Watkins testified she has had difficulty visiting and locating mother as mother often does not attend their scheduled appointments. Mother's mental health is an ongoing concern for Watkins. Moreover, Watkins testified mother completed only one of the random drug screens that FCCS required and had not engaged with the substance abuse services required of her. No. 21AP-633 5 {¶ 13} During the pendency of FCCS's case, Watkins testified that mother has been in and out of jail for criminal offenses including theft and loitering. At the time of trial, mother had a pending criminal indictment and capias for multiple counts of theft. {¶ 14} Watkins testified that FCCS arranged visits for mother with A.L. but mother only attended the first two visits when A.L. was an infant. After mother missed the next four scheduled visits, FCCS removed the visits from the schedule. {¶ 15} Watkins also described the circumstances related to the removal of A.L. from the kinship care home. She testified that when A.L. went to the hospital on September 8, 2019, the examining doctor determined A.L. had suffered severe physical abuse. A.L.'s injuries included multiple rib fractures from different dates, broken bones in his hand with different dates of healing, a healing fracture in his right femur, a yanking fracture in his right tibia, a fracture in his left tibia, a sub-congenital hemorrhage behind his right eye, a fresh brain bleed in the back of his skull, and injuries to his genitals. Watkins testified that the agency investigated A.L.'s injuries and determined it could not definitively identify a specific perpetrator because the family was not cooperative in the investigation, and she further noted mother had access to A.L. in the kinship care home during the timeframe of the abuse. A.L. has ongoing medical needs as a result of the abuse and is engaged with multiple specialists for his care. {¶ 16} In his current foster home, where he has been since he was removed from kinship care, Watkins said A.L. is thriving. The current foster parents have helped A.L. maintain his approximately 40 doctor's appointments each month, learned how to care for him with a feeding tube, and continue to help him recover. Watkins testified A.L. is "very well bonded" to his foster parents and to his foster siblings. (Aug. 19, 2021 Tr. at 46.) A.L. has special needs, including a diagnosis of cerebral palsy, and the foster home is a prospective adoptive home for him. Ultimately, Watkins testified it was her recommendation that the trial court grant the PCC motion. {¶ 17} E.T., the current foster mother for A.L., testified that A.L. has been placed in her home for 23 months. E.T. described A.L.'s condition on his arrival including a full cast- harness of both his legs up to his chest, and a cast on his right hand. In the early months of A.L.'s placement, E.T. said A.L. needed to attend medical appointments 30 to 40 times per month. Initially, E.T. stated doctors told her it was not likely that A.L. would ever walk, No. 21AP-633 6 talk, sit up, or function cognitively and could potentially be in a vegetative-like state his entire life. With lots of therapy and medical care, however, E.T. testified A.L. has exceeded expectations and has recently learned to walk and repeat a few words. A.L. has a lifelong diagnosis of spastic diplegic cerebral palsy, and E.T. testified she plans to work with his school at every stage to help him adapt. {¶ 18} E.T. stated she has two adopted children and described A.L. as bonded to his foster siblings and shows them affection. E.T. testified she hopes to be able to adopt A.L. if the motion for PCC is granted. Further, E.T. testified that if mother were able to stabilize, she would allow mother to have contact with A.L. {¶ 19} The final witness at the trial was David Greer, the guardian ad litem for A.L. The guardian ad litem noted that mother had not appeared at any semi-annual review meetings and had not appeared at any court hearing for more than two years. The guardian ad litem observed one of mother's visits with A.L. when A.L. was two months old and stated that mother held A.L. for less than five minutes before handing the baby back because mother was hungry. In the guardian ad litem's opinion, mother and A.L. were not bonded at all. Additionally, the guardian ad litem has observed A.L. with his foster family. The guardian ad litem described A.L. as "very bonded" with his foster parents and with his foster siblings. (Aug. 19, 2021 Tr. at 74.) The guardian ad litem testified A.L. cannot understand the nature of the court proceedings. It was the guardian ad litem's recommendation that the trial court grant the PCC motion. {¶ 20} At the conclusion of trial, the guardian ad litem for the mother, Keith Brewster, also recommended the court grant the motion for PCC, stating that due to mother's mental health issues, it would not be in mother's best interest to have custody of A.L. {¶ 21} Following the hearing, the trial court issued a decision and judgment entry on November 1, 2021 granting the PCC motion, terminating mother's parental rights and placing A.L. in the permanent custody of FCCS. The trial court found A.L. cannot be placed with either parent within a reasonable time and that permanent custody was in the child's best interest. Mother timely appeals. {¶ 22} Mother's appointed counsel filed a brief pursuant to Anders alleging that counsel found the appeal to be wholly frivolous. In an August 1, 2022 journal entry, this No. 21AP-633 7 court notified mother of her right to file a supplemental brief and granted counsel's motion to withdraw as counsel. Mother did not file a supplemental brief. Accordingly, this matter is before this court upon the Anders brief filed by mother's former appellate counsel and the response briefs filed by FCCS and the guardian ad litem for the child. II. Potential Assignment of Error {¶ 23} In the Anders brief, counsel identified the following potential assignment of error: Clear and convincing evidence did not support granting permanent custody of A.L. to FCCS. III. Analysis {¶ 24} As noted above, counsel for mother elected to file an Anders brief on mother's behalf. "In Anders, the United States Supreme Court held that if, after a conscientious examination of the record, appellate counsel concludes that a defendant's case is wholly frivolous, counsel should so advise the court and request permission to withdraw." State v. Hudson, 10th Dist. No. 18AP-924, 2019-Ohio-5136, ¶ 8, citing Anders at 744. Counsel making an Anders request must file a brief outlining anything in the record that arguably could support the client's appeal. Id., citing Anders at 744. Further, counsel must: (1) provide a copy of the brief and request to withdraw to the client, and (2) provide the client sufficient time to raise any matters the client chooses. Id., citing Anders at 744. See also State v. A.H., 10th Dist. No. 16AP-487, 2017-Ohio-7680, ¶ 16. {¶ 25} When an appellate court receives an Anders brief, it must conduct an examination of the proceedings to determine whether the case is wholly frivolous. Hudson at ¶ 9, citing Anders at 744. Further, where, as here, the party does not file a pro se brief in response to an Anders brief, the appellate court will examine the potential assignment of error and the entire record below to determine whether the appeal lacks merit. A.H. at ¶ 18, citing State v. Cooper, 10th Dist. No. 09AP-511, 2009-Ohio-6275. If, after full review of the proceedings below, the appellate court finds only frivolous issues on appeal, it may proceed to address the merits of the case without affording the appellant the assistance of counsel. Hudson at ¶ 9, citing Anders at 744. However, if the appellate court determines there are non-frivolous issues for appeal, the appellate court must afford appellant the assistance of counsel to address those issues. Id., citing Anders at 744. No. 21AP-633 8 {¶ 26} In the potential assignment of error, counsel asserts clear and convincing evidence did not support the trial court's decision granting permanent custody to FCCS. {¶ 27} "Parents have a constitutionally-protected fundamental interest in the care, custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014- Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham, 59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate the parental rights of natural parents when such termination is in the best interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8; In re Wise, 96 Ohio App.3d 619, 624 (9th Dist.1994). {¶ 28} A trial court may grant permanent custody if it determines by clear and convincing evidence that, pursuant to R.C. 2151.414(B), " 'such relief is in the best interest of the child.' " In re G.E.H., 10th Dist. No. 15AP-966, 2016-Ohio-3535, ¶ 52, quoting In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 9. On appeal, we will not reverse a trial court's decision in a permanent custody case unless it is against the manifest weight of the evidence. In re I.R., 10th Dist. No. 04AP-1296, 2005-Ohio-6622, ¶ 4, citing In re Andy- Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. Judgments in permanent custody proceedings are not against the manifest weight of the evidence "when all material elements are supported by competent, credible evidence." G.E.H. at ¶ 52, quoting J.T. at ¶ 8. "Clear and convincing evidence is that degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the facts to be established." In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 14. "It is more than a mere preponderance of the evidence but does not require proof beyond a reasonable doubt." Id. {¶ 29} In deciding to award permanent custody, the trial court must take a two-step approach. Id. at ¶ 18. The court must first determine if any of the factors set forth in R.C. 2151.414(B)(1) apply. Id. Here, there is no dispute that A.L. had been abandoned by mother and had been in the temporary custody of FCCS for more than 12 months of a consecutive 22-month period, satisfying R.C. 2151.414(B)(1)(b) and (d). See R.C. 2151.011(C) ("a child shall be presumed abandoned when the parents of the child have failed to visit or maintain No. 21AP-633 9 contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days"). {¶ 30} Additionally here, the trial court made the alternative finding that the child cannot or should not be placed with the parents within a reasonable period of time. The trial court determined the statutory factors in R.C. 2151.414(E)(1), (2), (4), (10), (14), and (16) applied to mother and supported a finding that A.L. cannot and should not be placed with mother. The evidence at trial supported this finding, including that mother had not remedied the conditions that caused the child to be placed outside of the home, that mother suffers from chronic mental illness that is so severe that mother is unable to provide an adequate permanent home for the child, mother has demonstrated a lack of commitment toward the child, mother has abandoned the child, mother is unwilling to provide for the child, and that mother has significant mental health diagnoses and numerous psychiatric hospitalizations but would not cooperate with FCCS to provide information about her mental health treatment. {¶ 31} Once the trial court determines that one of the circumstances in R.C. 2151.414(B)(1) applies, it must then determine whether a grant of permanent custody is in the best interest of the child. In re A.J., 10th Dist. No. 13AP-864, 2014-Ohio-2734, ¶ 16; R.C. 2151.414(B)(1). In determining the best interest of a child, R.C. 2151.414(D)(1) requires the trial court to consider all relevant factors including, but not limited to, the following: (a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of- home providers, and any other person who may significantly affect the child; (b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; (c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in [R.C. No. 21AP-633 10 2151.413(D)(1)], the child was previously in the temporary custody of an equivalent agency in another state; (d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (e) Whether any of the factors in [R.C. 2151.414(E)(7) to (11)] apply in relation to the parents and child. R.C. 2151.414(D)(1)(a) through (e). R.C. 2151.414(D) does not give any one factor "greater weight than the others." In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. {¶ 32} The evidence at trial overwhelmingly supported the trial court's determination that granting permanent custody to FCCS was in A.L.'s best interest. Under R.C. 2151.414(D)(1)(a), in making its best interest determination, the trial court must consider the interactions and relationships between the child and the individuals in the child's life, including the child's parents, siblings, relatives, and "any other person who may significantly affect the child." {¶ 33} Here, the evidence demonstrated there was no bond between mother and A.L., and that mother had only visited A.L. twice when A.L. was a few months old but since that time had stopped all visitations and has not seen A.L. in over two years. By contrast, A.L. is very bonded to his foster parents and foster siblings, having been in the continuous care of the same foster parents for 23 months at the time of trial. The foster mother testified her family loves A.L. and hopes to be able to adopt him, and she described the ways A.L. shows affection for his foster parents and foster siblings. The foster mother also described the specialized medical care A.L. requires and testified how she continues to help him achieve developmental milestones once thought unattainable after his physical abuse and cerebral palsy diagnosis. Additionally, both the FCCS caseworker and the guardian ad litem for the child testified that A.L. is very bonded to his foster family. {¶ 34} R.C. 2151.414(D)(1)(b) requires the trial court to consider the wishes of the child, expressed either directly by the child or through the child's guardian ad litem. Here, the guardian ad litem testified A.L. is unable to express his wishes. {¶ 35} R.C. 2151.414(D)(1)(c) requires the trial court to consider the custodial history of the child. A.L. has never lived with mother, and A.L. has been in the continuous No. 21AP-633 11 temporary custody of FCCS for 12 or more months of a consecutive 22-month period. Additionally, he has been placed with the same foster family for the 23 months immediately preceding the trial following his removal from kinship care. {¶ 36} R.C. 2151.414(D)(1)(d) addresses the child's need for legally secure placement and requires the trial court to consider whether this can be achieved without a grant of permanent custody to the agency. In re D.P., 10th Dist. No. 06AP-780, 2007-Ohio-1703, ¶ 16. The evidence demonstrated A.L. was in need of a legally secure placement, especially given his ongoing medical needs, and that such placement could not be achieved without a grant of permanent custody to FCCS. {¶ 37} R.C. 2151.414(D)(1)(e) asks whether any of the factors in R.C. 2151.414(E)(7) to (11) apply. The trial court found, and the evidence supports that finding, that mother had not visited or maintained any meaningful contact with A.L. for more than 90 days and had therefore abandoned the child. Mother's last visit with A.L. was in July 2019. Further, mother has demonstrated an unwillingness to protect and provide for the minor child. {¶ 38} The trial court also noted additional factors supporting its consideration of the best interest of the child. Specifically, the trial court considered the recommendations of the FCCS caseworker and the guardian ad litem of the child that it would be in the best interest of A.L. to grant the permanent custody motion. Additionally, mother made no progress on her case plan, failed to maintain contact with FCCS, failed to engage with any services, and failed to make any efforts to establish or maintain a relationship with A.L. Mother also repeatedly failed to appear for the permanent custody hearing and offered no explanation for failing to appear. {¶ 39} Based on all the testimony and evidence presented, including the entire case file, the trial court determined permanent custody is in the best interest of A.L. Having reviewed the entire record, we conclude the trial court had clear and convincing evidence to conclude permanent custody was in the best interest of the child. Furthermore, we find nothing in the record to indicate that an argument about the manifest weight of the evidence is anything other than wholly frivolous. {¶ 40} Following our review of mother's potential assignment of error asserted in the Anders brief and our independent review of the record, we find the potential No. 21AP-633 12 assignment of error lacks merit. Additionally, we are unable to find any non-frivolous issues for appeal having arguable merit. IV. Further Use of Anders Briefs in Permanent Custody Cases {¶ 41} This court has never considered the question of whether to allow Anders briefs in permanent custody cases. Having considered the approaches of the other appellate districts in Ohio, we note that some courts permit the filing of Anders briefs in these cases. See In re Co.J., 3d Dist. No. 5-19-15, 2020-Ohio-538 (accepting counsel's Anders brief and determining the appeal is wholly frivolous); In re D.M., 4th Dist. No. 15CA22, 2016-Ohio-1450, ¶ 8 ("[a]lthough Anders arose in a criminal context, we have previously determined that its procedures are appropriate in appeals involving the termination of parental rights"); In re K.B., 7th Dist. No. 09 BE 24, 2010-Ohio-1015, ¶ 1 (although permanent custody is a civil matter and not a criminal matter, the Anders procedure nonetheless applies to appointed counsel in parental rights cases); In re J.L., 8th Dist. No. 109626, 2020-Ohio-5254, ¶ 35 ("[a]lthough Anders arose in a criminal context, this court has applied Anders in appeals involving the termination of parental rights"); In re J.B., 9th Dist. No. 29443, 2020-Ohio-2917, ¶ 3 (accepting the Anders brief filed by the father's counsel and reviewing the matter under the Anders procedure); In re R.F., 12th Dist. No. CA2021-06-052, 2021-Ohio-4118, ¶ 36-37 (accepting the Anders brief filed by the father's counsel and dismissing the appeal as wholly frivolous). Other appellate districts, however, have recently considered this very question and determined that, despite a history of allowing Anders briefs in these matters, going forward they will no longer accept Anders briefs in cases involving the termination of parental rights. See In re J.M., 1st Dist. No. C- 130643, 2013-Ohio-5896, ¶ 11 ("[a]lthough we have allowed such appeals in the past, we decide today that the Anders procedure is not appropriate in permanent-custody cases"); In re N.C., 2d Dist. No. 28105, 2019-Ohio-567, ¶ 89 ("from this time forward, our district will no longer allow Anders briefs to be filed in cases involving termination of parental rights"); In re K.M., 5th Dist. No. 2019 AP 08 0033, 2020-Ohio-350, ¶ 17 ("from this point forward, this [court] will no longer accept Anders briefs for filing in cases involving permanent custody or dispositions of legal custody"); In re B.H., 6th Dist. No. L-17-1126, 2018-Ohio-1238, ¶ 4 (following the First District's decision in J.M. and determining "this No. 21AP-633 13 court will no longer accept Anders briefs in legal custody or permanent custody cases"). The Eleventh District, like our district, has not considered the issue. {¶ 42} Those districts that have specifically announced they will no longer accept Anders briefs have carefully set forth their reasoning. As the first district to announce its prohibition on Anders briefs in permanent custody cases, the First District Court of Appeals explained that "[a]lthough we have allowed such appeals in the past, we decide today that the Anders procedure is not appropriate in permanent-custody cases." J.M. at ¶ 11, 15 (noting "a parent's rights would be better protected where counsel is compelled to search the record and present arguments for review"). "The records in termination proceedings are typically extensive and highly fact-based. Anders review in a permanent-custody case places an inordinate burden on the appellate court to scour the voluminous record searching for error, a task that we are 'ill-equipped' to perform without the 'active and meaningful assistance of counsel.' " J.M. at ¶ 16, quoting State v. Tsibouris, 1st Dist. No. C- 120414, 2013-Ohio-3324. Following the First District's reasoning, the Sixth District similarly announced it would no longer accept Anders briefs in cases involving the termination of parental rights, noting the change to be consistent both with the Sixth District's local rule limiting the filing of "no-error briefs" only to criminal appeals and is in the best interest of justice. B.H. at ¶ 3-4 (finding the First District's reasoning in J.M. applicable to legal custody determinations following a finding of abuse, dependency, or neglect, and to awards of permanent custody to a children's services agency). {¶ 43} Though the Second District Court of Appeals did not have an analogous local rule limiting the filing of no-error briefs, it nonetheless determined it would follow the reasoning of both the First and Sixth Districts and no longer accept Anders briefs in permanent custody cases. N.C. at ¶ 86-88. The Second District specifically noted that while both R.C. 2151.352 and Juv.R. 4(A) provide a right to counsel for indigent parties involved in parental termination cases, "the fact that counsel is required does not equate to a right to use Anders procedures." Id. at ¶ 87 ("[p]arental termination cases are not criminal cases, and the same constitutional rights that motivated the Anders decision are not present"). Additionally, the Second District explained that "allowing Anders briefs can cause undue delay, contrary to the requirement to expedite cases involving termination of parental rights." Id. at ¶ 88. Most recently, the Fifth District followed the Second and Sixth Districts No. 21AP-633 14 and, while also not having an analogous local rule, determined it would no longer accept Anders briefs in permanent custody cases. K.M. at ¶ 17. {¶ 44} We share the concerns of the First, Second, Fifth, and Sixth Districts that the heavily fact-dependent nature of permanent custody cases and the requirement of expedited resolution of these matters makes permanent custody cases particularly ill-suited to the Anders procedure on appeal. Thus, although we completed our task under Anders in this matter in the interests of judicial economy, the need for swift resolution of permanent custody matters, and the unique circumstances of this case, we follow the reasoning of the First, Second, Fifth, and Sixth Appellate Districts in determining that, from this point forward, we will no longer accept Anders briefs in cases involving permanent custody and termination of parental rights. V. Disposition {¶ 45} Based on the foregoing reasons, we find no merit to the proposed assignment of error and overrule it. Having conducted our independent review under Anders, we are unable to find any non-frivolous issues for appeal related to the trial court's termination of mother's parental rights and the granting of permanent custody of A.L. to FCCS. Going forward, we will no longer accept Anders briefs in cases involving permanent custody and the termination of parental rights. Accordingly, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. Judgment affirmed. DORRIAN and BEATTY BLUNT, JJ., concur.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484696/	J-A11011-22 2022 PA Super 194 JOHN W. FOSTER, JR. AND MAUREEN : IN THE SUPERIOR COURT OF FOSTER, H/W : PENNSYLVANIA : : v. : : : ANDREW NUFFER AND BRIANNA : CLARK AND COVE HILL, INC. D/B/A : No. 2017 EDA 2021 HOUSEINSPECT AND COLONIAL : REALTY AND PROPERTY : MANAGEMENT, LLC, AND VICTOR : YOUNG AND PA CONTRATOR, LLC : : : APPEAL OF: COVE HILL, INC. D/B/A : HOUSEINSPECT : Appeal from the Order Entered September 3, 2021 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2017-01162 BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J. OPINION BY BOWES, J.: FILED NOVEMBER 17, 2022 Cove Hill, Inc. d/b/a HouseInspect (“Appellant”) appeals from the September 3, 2021 order confirming a March 5, 2020 arbitration award and entering a judgment in favor of John W. Foster, Jr. and Maureen Foster (collectively, “the Fosters”) for $40,390 with interest. We affirm. This controversy stems from the Fosters’ purchase of a single-family home located in Plymouth Meeting, Pennsylvania (“the property”). On June 30, 2015, the Fosters entered into an agreement to buy the property from Andrew Nuffer and Brianna Clark (collectively, “the Sellers”). The Sellers’ J-A11011-22 real estate agent was Victor Young (“Young”), who was an employee of Colonial Realty & Property Management, LLC (“Colonial”). The Fosters hired Appellant to inspect and report upon the condition of the property. After the sale was completed, the Fosters discovered several defects in the property, including a leaky roof, water penetration in the basement, and external flooding that required costly renovations and decreased the property’s value. The Fosters contended that Appellant’s report did not adequately discuss, discover, or disclose these issues. The contract between the Fosters and Appellant was executed on July 8, 2015, and mandated that disputes between the parties be submitted to binding arbitration and provided, in pertinent part, as follows: ARBITRATION: ANY DISPUTE, CONTROVERSY, INTERPRETATION OR CLAIM INCLUDING CLAIMS FOR, BUT NOT LIMITED TO, BREACH OF CONTRACT, ANY FORM OF NEGLIGENCE, FRAUD OR MISREPRESENTATION ARISING OUT OF, FROM OR RELATED TO, THIS CONTRACT OR ARISING OUT OF, FROM OR RELATED TO THE INSPECTION OR INSPECTION REPORT SHALL BE SUBMITTED TO FINAL AND BINDING ARBITRATION UNDER THE RULES AND PROCEDURES OF CONSTRUCTION DISPUTE RESOLUTION SERVICES LLC OF SANTA FE, NM (888 930 0011). THE DECISION OF THE ARBITRATOR(S) APPOINTED THEREUNDER SHALL BE FINAL AND BINDING AND JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. EACH PARTY SHALL BEAR THEIR OWN COSTS OF ARBITRATION AND SHALL PAY ONE-HALF OF ANY ADMINISTRATIVE COSTS THAT ARE NOT ALLOCATED TO ANY INDIVIDUAL PARTY. AT LEAST ONE ADMINISTRATOR MUST BE FAMILIAR WITH THE HOME INSPECTION PROFESSION. ALL CLAIMS, INCLUDING CLAIMS OF VIOLATION OF THE CONSUMER PROTECTION/FRAUD ACT MUST BE HEARD IN ARBITRATION AND THE CLIENT IS WAIVING THEIR RIGHT TO A JURY TRIAL. .... -2- J-A11011-22 CHOICE OF LAW: PARTIES AGREE THAT THIS CONTRACT WAS ENTERED INTO IN MEDIA, DELAWARE COUNTY, PENNSYLVANIA AND THAT THE INTERPRETATION OF THIS CONTRACT IS GOVERNED BY PENNSYLVANIA LAW Appellant’s Petition to Transfer, 5/10/18, at Exhibit A (“the Contract”). Thus, the Contract provided for arbitration under the rules and procedures established by Construction Dispute Resolution Services, LLC (“CDRS”). On September 27, 2016, the Fosters filed a request for arbitration with Appellant in connection with these events.1 Thereafter, [t]he arbitrator, Ronald M. Agulnick, Esquire, [(“the Arbitrator”)] heard testimony from the parties over the course of two days, September 26 and September 27[,] 2019. Oral argument followed on December 19, 2019, and on March 5, 2020[,] the Arbitrator came to the conclusion that [Appellant’s] inspection was wholly inadequate, in that it failed to disclose the presence of ____________________________________________ 1 Contemporaneously to the arbitration, the Fosters filed a civil complaint in January 2017 naming the Sellers, Young, and Colonial as defendants and asserting numerous claims for relief including fraud, detrimental reliance, breach of contract, respondeat superior, and various claims under the Real Estate Sellers Disclosure Law and the Unfair Trade Practices and Consumer Protection Law. Thereafter, Colonial and Young filed a praecipe to join Appellant as an additional defendant, along with a joinder complaint alleging, inter alia, that they were entitled to contribution or indemnity from Appellant with respect to the Fosters’ claims. See Joinder Complaint, 11/20/17, at ¶ 12. The Sellers also filed crossclaims against Appellant. Upon petition from Appellant, the trial court stayed the matter and transferred the indemnification claims of Colonial and Young to the then-ongoing arbitration proceedings. See Order, 12/20/18. Ultimately, the Arbitrator discharged the claims of Young and Colonial “without prejudice should that right arise at a later stage in the [c]ourt [l]itigation to assert such claim.” Motion to Confirm Arbitration Award, 10/16/20, at Exhibit B (“Arbitration Award”). In this Court, Young and Colonial filed a joint statement averring they “take no position in the matter before the [C]ourt and will not be filing any brief or memorandum.” No Brief Statement, 3/7/22, at 1 (unpaginated). Although listed as appellees, the Sellers have not participated in the instant appeal or otherwise communicated with the Court. -3- J-A11011-22 staining, the conditions of the walls in the basement and crawl space, as well as the structural conditions of the roof. Trial Court Opinion, 11/22/21, at 3. Thus, the Arbitrator entered an award “in favor of [the Fosters] and against [Appellant] in the amount of $40,390 together with interest thereon at 6% from July 8, 2015 to date of payment which shall not be later than 60 days after the date of this award.” Motion to Confirm Arbitration Award, 10/16/20, at Exhibit B (“Arbitration Award”). Appellant submitted a request for an internal appeal of the Arbitration Award pursuant to CDRS Rule A25 (“Rule A25”), which provides as follows: Appeals may only be filed as allowable by the Federal Arbitration Act [(“FAA”)]. . . . The appeal process shall be determined by the CDRS Senior Case Administrator as appropriate for each case. The CDRS Senior Case Administrator shall review all claims for appeal and shall determine if the claim merits the appeals process. There shall be an additional fee required for any request for appeal as determined by the CDRS Senior Case Administrator. (a) If any party feels that the Arbitration Award may be vacated by a court of competent jurisdiction according to section 10 of the [FAA], that party may apply to CDRS to have a second arbitrator decide if the Arbitration Award would be vacated by the court. The decision of the second arbitrator would be through a documents[-]only submission by the parties. If the second arbitrator determines that the Arbitration Award would most likely be vacated by the court, a new arbitration hearing would be arranged by CDRS to be handled by a new arbitrator . . . . The new arbitration would be held only with the agreement of all parties to the arbitration. If a party does not wish to proceed with the new arbitration, the party requesting the arbitration appeal will have the ability to file a case with a court of competent jurisdiction to request that the original Arbitration Award be vacated. -4- J-A11011-22 Response in Opposition to Motion to Confirm, 11/14/20, at Exhibit A (“CDRS Rules”). In its request, Appellant asserted, inter alia, the Arbitrator’s conclusions were not supported by the evidence adduced at the proceedings. On May 18, 2020, CDRS senior case administrator Peter G. Merrill (“Merrill”) responded to Appellant’s review request in a letter stating his opinion that there was a “possibility” the Arbitration Award might be overturned on the grounds asserted in Appellant’s request for review. Response in Opposition to Motion to Confirm, 11/14/20, at Exhibit B (“Appeal Letter”). Thus, Merrill proposed appointing a second arbitrator, Judith Meyer, Esquire, to conduct the documents-only review contemplated by Rule A25(a). In his capacity to set appellate limits pursuant to Rule A25, Merrill also emphasized that this proceeding would not present an opportunity to re-visit the underlying merits of the Arbitration Award: Please keep in mind that the scope of this arbitration is to determine if the previous arbitration award would be vacated by the court according to Section 10 of the [FAA]. There will be no re-arguing the merits of the case related to the decision of [the Arbitrator] in the prior arbitration award. Id. (emphasis added). Finally, Merrill also determined that the additional fees incurred by this internal review process would be borne by Appellant, alone. Appellant objected to being solely responsible for the fees associated with the CDRS appellate process, arguing that the prior agreement of the parties and CDRS’s own rules mandated that costs be equally divided amongst the parties. See CDRS Rules at A26(a) (“Unless there is a fee structure -5- J-A11011-22 specified in the [Contract], all CDRS fees shall be shared equally by the parties although personal expenses such as private attorneys, experts, etc. shall be the direct responsibility of the party.”); cf Rule A25 (providing Merrill, as senior case administrator for CDRS, is empowered to determine the “additional fee” associated with an appeal). For the next three months, Appellant and Merrill exchanged intransigent emails in which Appellant refused to pay and Merrill declined to alter his allocation determination. On September 15, 2020, Merrill closed the internal CDRS appeal process in consequence of non-payment, as follows: As CDRS has not received the payment requested that was due to CDRS on August [3] as originally requested or by September [11] . . ., CDRS has now closed your case related to the appeal process. Please note that should either party request any additional clarification or information related to the closure of this case, an additional administrative fee and if appropriate, an additional appeal arbitrator fee will be required prior to CDRS or the appeal arbitrator responding to such a request. Motion to Confirm Arbitration Award, 10/16/20, at Exhibit C (“Closure Letter”). Appellant did not file an additional request with CDRS, or a motion to vacate or modify the Arbitration Award in the court of common pleas. On October 16, 2020, the Fosters filed a motion to confirm the Arbitration Award pursuant to 42 Pa.C.S. § 7342(b) (“On application of a party made more than 30 days after an award is made by an arbitrator under section 7341 (relating to common law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with -6- J-A11011-22 the order.”). Appellant responded in opposition, arguing the Arbitration Award was no longer final. See Answer to Motion to Confirm, 11/14/20, at ¶ 6 (“It is further DENIED that said purported award is final as an appeal is in progress.”). The Fosters retorted the Arbitration Award became final at the closure of CDRS’s internal appellate process, i.e., September 15, 2020. On June 3, 2021, the trial court denied the Fosters’ petition for confirmation without prejudice. See Order and Memorandum, 6/3/21, at 1. In its brief analysis, the trial court seemed to concur with Appellant’s position that the Arbitration Award was not final due to Appellant’s pursuit, and subsequent abandonment, of CDRS appellate review. Id. at 2-4. The Fosters filed a motion for reconsideration, wherein it attached a new submission from Merrill styled as a “Final Award.” Therein, Merrill averred as follows: “As per previous notification to the parties, effective September 15, 2020[,] the above captioned arbitration is closed. The [Arbitration Award] dated March 5, 2020 is final. No further appeals will be considered by the arbitrator or [CDRS].” Motion for Reconsideration, 6/8/21, at Exhibit D (“Final Award Letter”). After holding a hearing, the trial court denied reconsideration. On July 22, 2021, the Fosters filed a second motion to confirm. By way of new information, they attached an affidavit from Attorney Meyer. Therein, she explained that, as a consequence of Appellant’s non-payment of the required fees, she “never reviewed the record on appeal and never made any determination as to whether [the Arbitration Award] might be vacated by a -7- J-A11011-22 court under [§] 10 of the FAA.” See Second Motion to Confirm, 7/22/21, at Exhibit F (“Meyer Affidavit”).2 Appellant responded in opposition, arguing, inter alia, “the non-finality of any award by CDRS has already been determined by this Court and is thus res judicata and the law of this case.” See Response in Opposition to Second Motion to Confirm, 8/2/21, at ¶ 10. A different judge was assigned to review the Fosters’ second motion to confirm. On September 3, 2021, the trial court confirmed the Arbitration Award. Thereafter, the Fosters filed a praecipe for a writ of execution and a praecipe to reduce the confirmed Arbitration Award to a judgment. On September 14, 2021, Appellant filed a timely notice of appeal to this Court. The trial court did not direct Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one. The trial court has filed an opinion discussing its reasoning pursuant to Rule 1925(a). ____________________________________________ 2 Appellant asserted that the Meyer Affidavit was hearsay and sought its exclusion during the hearing on the Fosters’ second motion to confirm. The trial court effectively denied this request and referenced the document in its Pa.R.A.P. 1925(a) opinion. Appellant has raised this issue in its brief to this Court, but its substantive argument spans only one sentence: “The Declaration is clearly hearsay and does not fall under any of the exceptions as detailed in Pa.R.E. 801, et seq. and thus should not have been admitted.” Appellant’s brief at 16. It is well-established that “[t]he argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities.” In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012). “Failure to cite relevant legal authority constitutes waiver of the claim on appeal.” Id. Instantly, we find Appellant’s single passing reference to the Pennsylvania Rules of Evidence inadequate to fulfill this obligation. This claim is waived. -8- J-A11011-22 Appellant has raised a single issue for our consideration: “Did the lower court issue a ruling in contravention of the coordinate jurisdiction and/or law of the case doctrines?” Appellant’s brief at 4. The instant matter concerns confirmation of a common law arbitration award under Pennsylvania law.3 An “order confirming a common law arbitration award will be reversed only for an abuse of discretion or an error of law.” Prudential Property and Cas. Ins. Co. v. Stein, 683 A.2d 683, 684-85 (Pa.Super. 1996). Instantly, Appellant’s arguments implicate the “coordinate jurisdiction rule,” which “commands that upon transfer of a matter between trial judges ____________________________________________ 3 The General Assembly has passed legislation winding down common law arbitration in the Commonwealth in favor of the Revised Statutory Arbitration Act, 42 Pa.C.S. §§ 7321.1-.31. Specifically, 42 Pa.C.S. § 7321.4(a) provides these revisions will govern all agreements to arbitrate made on or after July 1, 2019. Those agreements predating July 2019, however, are governed by the Uniform Arbitration Act (“UAA”), 42 Pa.C.S. §§ 7301-20, unless the parties expressly agree otherwise. See 42 Pa.C.S. § 7321.4(b)(1)-(2). The underlying agreement to arbitrate in this matter was executed on July 8, 2015. See Contract, 7/8/15, at 1-2. Thus, it is governed by the UAA. Pursuant to the UAA, 42 Pa.C.S. § 7302(a) provides an agreement to arbitrate a controversy “shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to [the UAA] or any other similar statute[.]” Here, the Contract does not expressly reference the UAA or any other analogous statute. Furthermore, there are no contrary agreements amongst the parties in the certified record. Accordingly, the arbitration in this matter is governed by the common law. See Bowdren v. Aetna Life and Cas., 591 A.2d 751, 753 (Pa.Super. 1991) (“Where the contract . . . does not specify whether statutory or common law arbitration is controlling and where the parties neither expressly nor impliedly agree subsequent to executing the contract that statutory arbitration applies, common law rules of arbitration apply.”); see also 42 Pa.C.S. §§ 7341-42. -9- J-A11011-22 of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge. Simply stated, judges of coordinate jurisdiction should not overrule each other’s decisions.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). However, this general prohibition against revisiting the prior holding of a judge of coordinate jurisdiction is “not absolute” and “[d]eparture from the rule is allowed under certain circumstances Id. Of particular import to the case at bar, “an exception is permitted where the prior holding was clearly erroneous and would create a manifest injustice if followed.” Id. Our Supreme Court has delineated the rationale behind this particular exception, as follows: The purpose for this limited exception is largely self-evident. To accede to a coordinate judge's order that is clearly erroneous would be not only to permit an inequity to work on the party subject to the order, but would allow an action to proceed in the face of almost certain reversal on appellate review. Moreover, the requirement that the prior holding also create a manifest injustice serves as a significant curb on the exception so that it would apply to only those situations in which adhering to the prior holding would be, in essence, plainly intolerable. Id. at 29-30. With these principles in mind, we turn to Appellant’s arguments. Appellant’s arguments are straightforward and assert that the second trial judge in this matter violated the coordinate jurisdiction rule by granting the Fosters’ second motion to confirm. See Appellant’s brief at 13-16. According to Appellant, this holding violated the first trial judge’s conclusion that the Arbitration Award was not final. Our review reveals that the first trial judge’s refusal to confirm the Arbitration Award was palpably erroneous. - 10 - J-A11011-22 Confirmation of common law arbitration awards is governed by § 7342(b), which provides as follows: (b) Confirmation and judgment.--On application of a party made more than 30 days after an award is made by an arbitrator under section 7341 (relating to common law arbitration), the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order. 42 Pa.C.S. § 7342(b). In conformity with this language, confirmation of an award pursuant to § 7342(b) is ”mandatory” after “thirty days have passed from the setting of the award.” Riley v. Farmers Fire Ins. Co., 735 A.2d 124, 130 (Pa.Super. 1999) (emphasis added). This Court has also “consistently interpreted [§] 7342(b) to require that any challenge to the arbitration award be made in an appeal to the Court of Common Pleas, by filing a petition to vacate or modify the arbitration award within [thirty] days of the date of the award.” U.S. Claims, Inc. v. Dougherty, 914 A.2d 874, 877 (Pa.Super. 2006). Taken together, § 7342(b) has been interpreted “to mean that the trial court is required to confirm the [arbitration] award unless the other party has filed a petition to vacate or modify the award within 30 days of the date of the award.” Civan v. Windermere Farms, Inc., 180 A.3d 489, 499 (Pa.Super. 2018) (emphasis added). The first trial judge’s holding was predicated upon its conclusion that the Arbitration Award was not sufficiently final for the purposes of confirmation. See Order and Memorandum, 6/3/21, at 1-4. In reviewing the veracity of this holding, we must conclude when, and if, the Arbitration Award became - 11 - J-A11011-22 final. Our Supreme Court has defined such a final award as “a ruling by the arbitrator which finally resolves all disputed matters submitted to him or her by the parties and must, therefore, include the arbitrator’s decision on all outstanding legal issues, and all necessary factual determinations.” Fastuca v. L.W. Molnar & Associates, 10 A.3d 1230, 1241 (Pa. 2011). When the Arbitration Award was first handed down on March 5, 2020, it clearly constituted a “final” award, in that it fully adjudicated the outstanding legal and factual issues then existing amongst the parties. See generally, Arbitration Award; Fastuca, supra at 1241. However, it is equally clear that Appellant’s pursuit of an appeal pursuant to Rule A25 temporarily rendered the Arbitration Award non-final. While the Arbitration Award was putatively under review for potentially fatal flaws, it could not constitute a final award to the extent that these disputed matters remained outstanding. See Fastuca, supra at 1241. Any such dispute was brought to a conclusive end when Merrill closed the arbitration on September 15, 2020. See Closure Letter. To the extent Appellant takes the position that the appeal process at CDRS was somehow still underway, there is no support for such a conclusion. Moreover, we find no indication that the mere initiation of the CDRS appellate process somehow vacated the Arbitration Award. No such order from the Arbitrator, Merrill, or any other person associated with CDRS appears in the certified record. To the contrary, Merrill’s communications indicated that the CDRS appeal process in this matter would leave the merits of the - 12 - J-A11011-22 Arbitration Award untouched. See Appeal Letter. Moreover, there was never a determination that the Arbitration Award was actually invalid on any particular ground. Merrill assessed only that there was a sheer “possibility” of such a conclusion. Id. But, as a consequence of Appellant’s refusal to pay, the appeal never progressed beyond a preliminary stage.4 The contemplated documents-only review by Attorney Meyer never took place. See Meyer Affidavit. The arbitration is fully concluded and without any expectation of it resuming again. See Final Award Letter. Upon the conclusion of this process, the Arbitration Award resumed its earlier finality. Based upon the foregoing, we conclude the Arbitration Award became final on September 15, 2020. Thus, Appellant had thirty days from that date to file a petition to vacate or modify the arbitration award with the trial court. See Dougherty, supra at 877. Appellant did not do so, and his time in which to act expired on October 15, 2020. On October 16, 2020, the Fosters filed their first motion to confirm the arbitration award. In the absence of a timely petition from Appellant challenging the arbitration award, the first trial judge was mandated to confirm the award pursuant to § 7342(b). See Civan, supra at 499; Riley, ____________________________________________ 4 CDRS Rule A26(e) provides a mechanism to avoid intractable disputes regarding the payment of fees, providing that “[i]f one of the parties fails to make payment when required, any other party may make the outstanding payment to facilitate the continuation of the arbitration process . . . and may have a cause of action in court against the party who was delinquent in their payment.” If Appellant believed the other parties were not paying their “fair share,” it had the option to make the disputed payment to ensure the arbitration continued apace and then file a separate cause of action. - 13 - J-A11011-22 supra at 130. Instead, the first trial judge considered arguments concerning the validity of the Arbitration Award that Appellant raised in response to the Fosters’ first motion to confirm. However, it is well-established that “a challenge to the validity of an arbitration award asserted for the first time in opposition to a petition to confirm is procedurally inadequate to preserve claims for judicial review.” Dougherty, supra at 877. Thus, the first trial judge should not have even entertained these belated arguments in the first place. Rather, it was empowered only to confirm the award. As the second trial judge reasoned: If [Appellant] believed that CDRS stepped out of bounds and exceeded its authority or failed to follow the proper rules[, Appellant] was required to file an appeal to the Court of Common Pleas within [thirty] days of the date the case was closed. [Appellant] received the letter dated September 15, 2020[,] closing the case and never appealed to the [c]ourt. Trial Court Opinion, 11/22/21, at 6. We agree. Based on the foregoing discussion, we find that the first trial judge erred by refusing to confirm the Arbitration Award pursuant to § 7342(b). We now consider the second criterion regarding manifest injustice. See Zane, supra at 33. Here, we believe that allowing the Arbitration Award to remain in its current legal limbo would work a manifest injustice. In addition to the obvious legal and monetary implications that depend upon confirmation of the Arbitration Award, we also bear in mind the long-stayed civil action underlying these matters. Furthermore, given the procedural posture of the Arbitration Award, it may be difficult to obtain sufficient appellate review of - 14 - J-A11011-22 the matter. We find that overlooking the first trial judge’s erroneous holding would be intolerable to the extent that it would perpetuate this controversy without cause, inhibit the ability of the parties to reach a final determination of the arbitrable matters, and detract greatly from judicial efficiency. Thus, we find the second requirement has also been satisfied in this case. See DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 371-72 (Pa.Super. 2003) (finding the existence of manifest injustice based upon delay, expense, and the squandering of judicial resources). Accordingly, we conclude that the exception to the coordinate jurisdiction rule applies here. The second trial judge did not err in granting the Fosters’ second motion to confirm but, rather, rectified a manifest injustice worked by the first trial judge’s erroneous ruling. We discern no abuse of discretion or error of law in the trial court’s confirmation of the Arbitration Award. Indeed, confirmation was mandatory here pursuant to § 7342(b). Order affirmed. Jurisdiction relinquished. Case remanded. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 - 15 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484699/	J-A18044-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANZORA ARNEZ SMITH : : Appellant : No. 1437 WDA 2021 Appeal from the PCRA Order Entered November 5, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003149-2016 BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 17, 2022 Franzora Arnez Smith appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541- 9546. He claims the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), and raises claims of ineffective assistance of counsel. He also argues we should remand for re-sentencing based on a sentencing disparity following the resentencing of his co-defendant. We affirm. The trial court summarized the procedural history as follows: [Smith] was initially charged with one count of Criminal Conspiracy of Possession with Intent to Deliver (PWID), two counts of PWID, one count of Possession of Drug Paraphernalia, two counts of Possession of a Controlled Substance, one count of Persons Not to Possess Firearms, and one count of Receiving Stolen Property.[1] The charges stemmed from the recovery of cocaine, heroin, and firearms ____________________________________________ 1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), (a)(32), and (a)(16), 18 Pa.C.S.A. §§ 6105(c)(2), and 3925(a), respectively. J-A18044-22 that were found on [Smith’s] person as well as in a house in Erie, Pennsylvania following a drug trafficking investigation and surveillance. [Smith] was tried with his Co-Defendant, Stephen Maurice Barry-Gibbons, who was charged with similar offenses. . . . [Smith] was represented at trial by Attorney Steven Townsend. Attorney Townsend had been privately retained and began representing [Smith] subsequent to [Smith’s] Preliminary Hearing. Attorney Townsend filed a Motion to Suppress, alleging that the police lacked reasonable suspicion to stop the car, in which [Smith] was a passenger. The motion was denied by Judge William R. Cunningham. [Smith] and Co-Defendant Gibbons were tried together before Judge Michael E. Dunlavey. The majority of the Commonwealth’s case consisted of evidence from officers involved in the drug trafficking investigation — Detective Michael Chodubski, a Sergeant with the Drug Unit of the City of Erie Police Department; Sergeant Matthew Bennaci, a County Detective with the Erie County District Attorney's Office; and Lieutenant Michael Nolan, the supervisor of the Drug and Vice Unit of the City of Erie Police Department. Trial Court Opinion, filed Nov. 5, 2021, at 1-2 (“1925(a) Op.”). We need not engage in a full recitation of the facts for this appeal, but will provide factual information relevant to two claims. First, during the direct examination of Lieutenant Nolan, two comments were made that indicated Smith’s co-defendant had prior contact with police and a criminal background. Lieutenant Nolan stated that when the Lieutenant walked into the interview room, the co-defendant “looked up at [Lieutenant Nolan]” and “said, ‘Good job, Mike, good fucking job[.]’” N.T., Aug 15, 2017, at 112. Lieutenant Nolan also discussed that the co-defendant wanted to work with the police, but that the co-defendant pointed out they should not charge him yet because he was on parole. Id. at 114. -2- J-A18044-22 Second, we repeat the PCRA court’s summary of the factual and procedural history regarding the Commonwealth’s disclosure during trial of a police report, which is relevant to Smith’s Brady claim: The other item of note involves testimony regarding the recovery of buy money from [Smith] and the apparent failure of the Commonwealth to turn over a copy of a police report referencing the recovery of the money as part of pre- trial discovery. As part of his testimony, Sergeant Chodubski explained that controlled buys and targeted buys were used during [the] course of the investigation. Attorney Townsend sought to discredit the evidence of the buys as they related to [Smith] by showing that Sergeant Chodubski had labeled Tag 14 on $1,534 of U.S. currency as having been seized from L.S. - Leiah Smith. Sergeant Chodubski testified that the evidence had been mislabeled, and it had actually been seized from Defendant Franzora Smith. See N.T., Aug. 14, 2017 at 136-37. Additionally, Attorney Townsend sought to discredit the testimony by suggesting that there was nothing in any of the investigation reports tying the money used in the controlled buys to [Smith]. Attorney Townsend concluded his cross-examination of Sergeant Chodubski with the following: [Attorney Townsend]; And with regard to the -- when you do buys, do you have prerecorded money? [Sergeant Chodubski]: Yes. Q. Okay. And when you do the prerecorded money, you would write a list of the serial numbers of the bills? A. That’s correct. Q. If you had that evidence that you believe someone was in possession of that recorded money, you would present that in your case, would you not? A. Yes. Mr. Townsend: All right. Thank you, that’s all I have. N.T., Aug. 14, 2017 at 140-41. -3- J-A18044-22 Immediately after the conclusion of Attorney Townsend’s cross-examination of Sergeant Chodubski, the Assistant District Attorney handed Attorney Townsend a copy of Detective Bennaci’s investigation report, which had apparently been omitted from the pretrial discovery provided to [Smith]. Bennaci’s report made reference to buy money that was recovered from [Smith] following the traffic stop. Following an in camera discussion, Judge Dunlavey found the failure to provide a copy Bennaci’s report in pre- trial discovery was an inadvertent oversight[2] and that there was no surprise or prejudice to [Smith] regarding the reference to Bennaci’s report and the buy money on [Smith’s] person because that information had been elicited at [Smith’s] Preliminary Hearing. See N.T., Aug. 15, 2017 at 19-22. Although Attorney Townsend had not represented [Smith] at the time of the Preliminary Hearing, the information about the buy money was of record and known to [Smith]. See N.T., Aug. 15, 2017 at 6-22. 1925(a) Op. at 3-4. ____________________________________________ 2 The Assistant District Attorney described the disclosure of the report as follows: Now, those questions [about the buy money] were asked. There was no answer elicited from Officer Chodubski and immediately, when Attorney Townsend was done cross- examining, I provided – I said, well, we had a reference to buy money in Sergeant Bennaci’s report. That report was not turned over to the defense. Sergeant Bennaci works for the District Attorney’s Office. It was not attached to the incident report. I was unaware that it was not provided in the initial discover that went out. I immediately turned it over to him. There is a reference to the buy money in that report, Officer Bennaci was the one that assisted with the arrest of . . . Smith along with patrol units from the Erie Police Department. I did provide both attorneys with that report, neither of them had it, unbeknownst to me[.] N.T., Aug. 15, 2017, at 6-7. -4- J-A18044-22 The jury convicted Smith of all charges. The court sentenced him to an aggregate sentence of 18 to 36 years’ incarceration.3 Smith appealed, and this Court affirmed the judgment of sentence. The Pennsylvania Supreme Court denied his petition for allowance of appeal in January 2020. In August 2020, Smith filed a timely pro se PCRA petition, alleging, among other things, prosecutorial misconduct under Brady. The petition also claimed that counsel was ineffective for failing to investigate the case and challenge the reliability of the confidential informants, file a motion for severance, and raise a Brady violation claim. The PCRA court appointed counsel. Counsel, “consistent with the directives of [Smith],” did not file an ____________________________________________ 3 The court imposed the following sentences: Count 1: Conspiracy (PWID) — 72 to 144 months incarceration; Count 2: PWID — 72 to 144 months incarceration, consecutive to Count 1 Count 3: PWID — 72 to 144 months incarceration, consecutive to Count 2; Count 4: Paraphernalia— merges with Count 3; Count 5; Possession — merges with Count 1; Count. 6: Possession – merges with. Count 3; Count 7: Persons Not to Possess — 60 to 120 months incarceration, concurrent to Count 3; Count 8: Receiving Stolen Property — 33 to 66 months incarceration, concurrent to Count 3. 1925(a) Op. at 5 (citation omitted). -5- J-A18044-22 amended petition. Supplemental Petition, filed May 28, 2012, at 1. The court scheduled a hearing, which after multiple delays, was set for June 30, 2021. In May 2021, counsel filed a supplement PCRA petition, seeking relief because this Court vacated Smith’s co-defendant’s receiving stolen property conviction and concluded certain convictions should have merged for sentencing purposes. The supplemental petition pointed out that the evidence supporting the receiving stolen property conviction was the same for both Smith and his co-defendant. Supplemental Petition at 2. The petition further noted that unlike the trial court at his co-defendant’s initial sentencing, the trial court properly merged Smith’s possession convictions for sentencing purposes. Id. The relief sought in the supplemental petition was to “vacat[e] the conviction for receiving stolen property at count 8 and [strike] the sentence imposed at count 8 arising from said conviction.” Supplemental Petition at 3. A hearing occurred on June 30, 2021.4 On November 5, 2021, the PCRA court granted the PCRA petition in part and denied it in part. It granted the petition on the claim that counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the receiving stolen property conviction and vacated the sentence on that count. It denied the petition as to the ____________________________________________ 4 The certified record does not have a copy of the transcript of this hearing, and counsel did not request one. The appellant is responsible for ensuring this Court receives a complete certified record. Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.Super. 2014) (citation omitted). However, we decline to find waiver here because the lack of the hearing transcript does not hinder our review. Id. at 458. -6- J-A18044-22 remaining claims. On that same day, it issued an amended sentencing order vacating the conviction for receiving stolen property and the sentence imposed at that count. It ordered that the remaining provisions and conditions of the September 2017 sentencing order remain unchanged. Smith filed a timely notice of appeal.5 Smith raises the following issues: A. Whether the PCRA court erred in failing to find that a Brady violation had transpired given the failure of the Commonwealth to provide a copy of the investigative report of Detective Bennaci in pre-trial discovery wherein said report was provided to counsel during trial at the conclusion of the cross-examination wherein that report would have been utilized in informing the content of the cross- examination? B. Whether [Smith] was afforded ineffective assistance of counsel given the failure to file a motion for severance of trial from the co-defendant Stephen Maurice Barry- Gibbons? C. Whether defense counsel was ineffective in failing to properly investigate the case in preparation of a defense by specifically seeking the disclosure and unmasking of the identity of the confidential informant(s) utilized by the police? D. Whether [Smith] should be granted sua sponte review and remedy as to the egregious circumstance of a disparate sentencing exposure arising from the resentencing of the co-defendant Barry-Gibbons on remand per a successful direct appeal wherein the co-defendant was resentenced to an aggregate sentence of 75 months to 150 months [Smith’s] sentence remains unaltered at 18 years to 36 years where both individuals are similarly-situated and identically convicted and where if anything [Smith] ____________________________________________ 5The court did not order a concise statement pursuant to Rule 1925(b), and Smith did not file one. -7- J-A18044-22 possesses vastly more significant mitigating factors while Barry-Gibbons bears a significant prior record score and indicia of being the mastermind and primary actor as to the drug trafficking at the core of the instant charges? Smith’s Br. at 2. Upon a challenge to the denial of PCRA relief, we determine whether the record supports the PCRA court’s findings and whether its conclusions are free of legal error. Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super. 2015) (en banc). In his first claim, Smith argues the PCRA court erred in denying his claim that a Brady violation occurred when the Commonwealth failed to provide Smith a copy of the police investigative report until after cross-examination of one of the police detectives. He maintains the report was material and the court erred in failing to find prosecutorial misconduct or a Brady violation. He argues the “prejudicial impact on a fair trial was evident” and “it surpasses credulity to assign knowledge and notice of the report contents to [defense counsel] wherein he was not even involved in the case at the time of the preliminary hearing.” Smith’s Br. at 9. To obtain relief under the PCRA, a petitioner must prove that the “allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). A claim is previously litigated “if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” Commonwealth v. Brown, 872 A.2d 1139, 1144 (Pa. 2005) (citing 42 Pa.C.S.A. § 9544(a)(2)). A claim is “waived ‘if the petitioner could have raised it but failed to do so before trial, at trial, on appeal -8- J-A18044-22 or in a prior state post[-]conviction proceeding.’” Id. (quoting 42 Pa.C.S.A. § 9544(b)). Smith discovered the alleged Brady violation during trial. See N.T., Aug. 15, 6-22. He did not challenge the trial court’s ruling on direct appeal, and he therefore waived the issue. See Brown, 872 A.2d at 1144. Even if he had not waived the claim, we would conclude the PCRA court did not err in finding it lacked merit. To establish a Brady violation, the petitioner must prove: “(1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant.” Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (citation omitted). The PCRA court noted that the trial court found the Commonwealth inadvertently failed to provide the report in pre-trial discovery. Trial Court Opinion, filed Nov. 5, 2021, at 16.6 It pointed out the information contained in the report – that is, the existence of buy money on Smith’s person when he ____________________________________________ 6 In his PCRA petition, Smith raised a Brady violation claim based on the late disclosure and a claim counsel was ineffective for failing to object to the testimony derived from the report that had not been disclosed during discovery. On appeal, Smith does not raise the ineffectiveness claim. Even if he did, because we agree with the trial court that the underlying Brady claim lacked merit, we would conclude the ineffectiveness claim also lacked merit. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (stating the three prongs the petitioner must prove to establish a counsel ineffectiveness claim, including that the petitioner must show the underlying claim had merit). -9- J-A18044-22 was arrested – was not favorable to Smith and had been known to him, as the existence of buy money on Smith had been mentioned at the preliminary hearing. Id. The PCRA court therefore concluded he was not prejudiced by the late provision of the report. This was not error. In his next two claims, Smith claims his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Spotz, 84 A.3d at 311 . “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any one of the three [ineffectiveness] prongs results in the failure of petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To establish the third, prejudice prong, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011). Smith claims counsel was ineffective for failing to file a motion to sever his trial from that of his co-defendant. He argues his co-defendant had a significant criminal history that was revealed during trial. Smith claims he was a “‘bit’ player if involved at all or just implicated by circumstance yet he had to bear the consequence of being tried with a major drug trafficker with a - 10 - J-A18044-22 marked criminal record.” Smith’s Br. at 10. He argues the situation was “rife with the prospect of prejudice and jury bias through unwarranted linkage between the two defendants.” Id. He claims the joint trial became more prejudicial because of the reference to the co-defendant’s criminal record, as there was testimony disclosing that the co-defendant was on parole. He concludes that trial counsel had a valid and arguable meritorious basis to seek severance and was ineffective for failing to do so. “Severance questions fall within the discretion of the trial [court].” Commonwealth v. Brown, 925 A.2d 147, 161 (Pa. 2007). “When conspiracy is charged, a joint trial generally is advisable.” Id. “In ruling upon a severance request, the trial court should consider the likelihood of antagonistic defenses. A claim of mere hostility between defendants, or that one defendant may try to exonerate himself at the expense of the other . . . is an insufficient basis upon which to grant a motion to sever.” Id. (citations omitted). Rather, “severance should be granted only where the defenses are so antagonistic that they are irreconcilable—i.e., the jury essentially would be forced to disbelieve the testimony on behalf of one defendant in order to believe the defense of his co-defendant.” Id. at 161-162 (citation omitted). Accordingly, “a defendant claiming error on appeal has the burden of demonstrating that he suffered actual, not speculative, prejudice because of the ruling permitting a joint trial.” Id. at 162 (citations omitted). - 11 - J-A18044-22 The PCRA court concluded Smith failed to establish his counsel was ineffective because he did not prove he was prejudiced, as he did not show the trial court would have granted a motion to sever: [T]he Court finds that there would have been little possibility the trial court would have granted such a motion had it been raised. There is a strong preference to trying co-defendants together where, as here, there are charges of conspiracy. ... [Smith] argues that the evidence presented at trial was either incredible or tended to prove that his Co-Defendant Barry-Gibbons was involved in drug trafficking but that there was no evidence to tie [Smith] to the crimes. There is nothing there to show that the Co-Defendants’ trial defenses were so antagonistic that they could not be tried together. Moreover, if the jury believed that the evidence of drug trafficking was only attributable to Co-Defendant Barry- Gibbons, that would have only benefitted [Smith], not prejudiced him. Additionally, [Smith] argues that evidence showing Co- Defendant was on parole at the time these crimes were committed was introduced at trial and that the “spillover” effect of knowledge of his Co-Defendant’s criminal background was prejudicial to [Smith’s] case. The only reference to Co-Defendant’s parole status came from two unsolicited references to Co-Defendant Barry-Gibbon’s past criminal history by Lieutenant Nolan. In the first instance, Lieutenant Nolan testified that when he walked into the interview at the Erie Police Department, Barry-Gibbons “looked up at [Lieutenant Nolan] and he said--he said, `Good job, Mike, good fucking job,’ and he kind of put his head down and shook his head.” N.T., Aug. 15, 2017 at 1[1]2. This passing reference, which indicated Co- Defendant Barry-Gibbons knew Lieutenant Nolan and might have suggested had a criminal background, was so minor that it did not raise an objection from either defense counsel and was so minor and fleeting that there was no prejudice to either Defendant from the reference. - 12 - J-A18044-22 The second reference occurred when Lieutenant Nolan responded to a question from the Commonwealth about Co- Defendant Barry-Gibbon’s offer to work with the Erie Police Department. At trial, the following exchange took place: [Assistant District Attorney Garcia] Q. Did. Mr. Barry- Gibbons make any proposals to you about wanting to work for the Erie Police Department? [Lieutenant Nolan] A. Yes, he did. Q. What did he say in that respect? A. Well, he told us that he’d be willing to help us get some bigger fish, and that. But he said he couldn’t go to the county prison. So what that means is he can’t charge me now, because if I go to the county prison, I’m on parole, and I’ll be locked up in there or -- by my -- everyone is going to know that I was – that’s what it was. Everyone is going to know that I was locked up. N.T., Aug. 1[5], 2017 at 1[1]4. Co-Defendant Barry-Gibbons’ counsel immediately requested a sidebar and requested a mistrial. At sidebar and in an in camera discussion with the trial judge, [Smith’s] trial counsel stated that the testimony did not prejudice his client. See id. at 116. Indeed, when the judge offered to make a curative instruction advising the jury to ignore all of the testimony regarding the conversation between Lieutenant Nolan and Co-Defendant Barry-Gibbons, [Smith’s] trial counsel specifically requested that the entirety of the conversation not be stricken from the record because some of the conversation helped his client. See id. [at 121]. Thereafter, the trial judge gave a curative instruction to the jury to disregard those portions of Lieutenant Nolan’s testimony. See id. at 127-28. It is well established that juries are presumed to follow the trial court’s instructions and that a trial court’s curative instruction is presumed to be sufficient to cure any prejudice. See Commonwealth v. Thornton, 791 A.2d 1190 (Pa. Super. 2002). The jury heard very little — and heard no details — about Co-Defendant Barry-Gibbon’s criminal record. The trial court - 13 - J-A18044-22 gave an immediate curative instruction which the jurors acknowledged. Accordingly, there was no prejudice to [Smith]. Additionally, trial counsel could not have known or anticipated that Co-Defendant Barry-Gibbons’ criminal history would be inadvertently disclosed at the time of trial. Trial counsel cannot be faulted for choosing not to file a motion to sever the two cases before trial because he did not foresee the unexpected disclosure. Here, [Smith] failed to present testimony at the Evidentiary Hearing tending to show that he suffered real prejudice because he was tried together with his Co-Defendant, and the Court cannot discern any. Accordingly, trial counsel was not ineffective for making the strategic decision not to raise the issue, particularly where the issue had no merit. 1925(a) Op. at 11-15 (some alterations in original). The record supports the court’s conclusions, and it did not err in finding Smith failed to prove prejudice. Smith did not establish that if counsel had filed a motion to sever, it would have been meritorious. The defenses were not “so antagonistic that they were irreconcilable,” such that severance was required. Next, Smith argues the PCRA court erred in denying his claim that his counsel was ineffective for failing to file a motion to compel the disclosure of the identities of the confidential informants. He maintains counsel should have “contested the reliability of the confidential informants and that the failure to pursue this avenue of investigation and challenge served to undermine his contentions underlying the suppression motion and further impeaching the reliability and efficacy of the Commonwealth’s case at trial.” Smith’s Br. at 12. He argues his “fundamental contention is that he did not know or have contact with any of the confidential informants and if they had been disclosed to the - 14 - J-A18044-22 defense he would have been positioned to display any lack of nexus with them,” which would call into question the Commonwealth’s case. Id. “The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source.” Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010) (citation omitted). “[T]o overcome this qualified privilege and obtain disclosure of a confidential informant's identity, a defendant must first establish, pursuant to Rule 573(B)(2)(a)(i), that the information sought is material to the preparation of the defense and that the request is reasonable.” Id. (citation omitted). “Only after the defendant shows that the identity of the confidential informant is material to the defense is the trial court required to exercise its discretion to determine whether the information should be revealed by balancing relevant factors, which are initially weighted toward the Commonwealth.” Id. at 321-322 (citation omitted). The PCRA court concluded any motion seeking the identities of the confidential informants would have been meritless and therefore counsel was not ineffective: Attorney Steven Townsend testified at the Evidentiary Hearing that he and [Smith] spoke often by phone and they discussed how the Confidential Informants may or may not factor into [Smith’s] case. Attorney Townsend further testified that, in his professional opinion, the identities of the Confidential Informants did not come into play. The controlled buys were made under surveillance and the investigating officers were available to testify that [Smith] had appeared and met a Confidential Information at a predetermined location. Therefore, the identity of the Confidential Informants was immaterial and a request to discover their identities was unlikely to be granted. See, - 15 - J-A18044-22 e.g., Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998). As the issue of the identity of the Confidential Informants was meritless, trial counsel could not be ineffective for refusing to raise it. 1925(a) Op. at 11.7 ____________________________________________ 7 Smith also contends the court erred in relying on the trial and appellate court findings that the confidential informants were reliable when they were ruling on the motion to suppress, reasoning such reliance “is dismissive of his present argument that but for the omission of counsel, there would have been more credible and compelling means and evidence to impugn the reliability of the confidential informants.” Smith’s Br. at 12. In denying Smith’s separate PCRA claim that counsel was ineffective for failing to contest the reliability of the informants, the PCRA court concluded the claim was previously litigated and, to the extent he attempted to reframe it on PCRA, it lacked merit, reasoning: On direct appeal, . . . [t]he Superior Court adopted the findings of the Suppression Court and cited the Suppression Court’s ultimate determination: All of the confidential informants were corroborated by the surveillance conducted by the police, who observed [Juan] [a/k/a Stephen Barry Gibbons] and [Appellant] [a/k/a/ Franzora Smith] inaction, starting from 1055 West 30 Street to the designated meeting sites. Both [Juan] and [Appellant] had a house key to enter 1055 West 30th Street since July, 2015. See Franzora Smith Superior Court Opinion, Aug. 26, 2019 at 15; Stephen Barry- Gibbons Trial Court Opinion, Feb. 21, 2018 at 10. Additionally, the Court notes that the Suppression Court specifically found that the information provided by the Confidential Informants was reliable. See Stephen Barry-Gibbons Trial Court Opinion, Feb. 21, 2018 at 9. As the Superior Court adopted the Suppression Court’s findings that the Confidential Informants were reliable, there is not merit to the underlying claim and counsel could not have been ineffective for not raising it. 1925(a) Op. at 9. The PCRA court did not mention this Court’s findings regarding reliability when denying the counsel ineffectiveness claim for failure (Footnote Continued Next Page) - 16 - J-A18044-22 The record supports the court’s findings, and it did not err in rejecting the ineffectiveness claim. Smith could not establish the identities were material, and therefore the underlying claim lacked arguable merit. In his final claim, Smith argues the court erred in failing to grant relief based on the sentencing disparity following the re-sentencing of Smith’s co- defendant. He argues that a vast disparity now exists between Smith’s sentence of 18 to 36 years’ imprisonment and his co-defendant’s sentence, which he alleges was 75 to 150 months’ imprisonment, and claims the disparity exists even though his co-defendant had more criminal culpability. He claims the disparity “is so significant as to constitute a legal travesty and compels a sua sponte correction.” Smith’s Br. at 15-16. He reasons that “a three-fold amplification of sentence for co-defendant convicted of the same criminal offenses arising out of analogous criminal conduct where if anything the mitigative factors would [] play toward the defendant facing the much lengthier sentence from any reasonable evaluation should be an affront to this Court as a lapse of fundamental fairness and justice.” Id. at 16. Smith argues “[t]he fact that a different judge imposed the resentencing causing the disparity should be of no legal moment as the judges are constituent members and constitute the same lower Court and the resulting sentences should be ____________________________________________ to file a motion to disclose the informants. To the extent Smith is attempting to also argue the court erred in denying the claim that counsel was ineffective for failing to contest the informant’s reliability, we conclude he was waived such claim and, even if he had not waived it, we would conclude the court did not err in denying it. - 17 - J-A18044-22 reviewable as if imposed by the same Court exercising the same jurisdiction and discretion and confronted with the same legal standards and obligations.” Id. at 17. He argues the court when sentencing Barry-Gibbons did not afford any reason as to the disparity in sentences.8 Smith waived this claim for failing to raise it in the PCRA court. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). In the PCRA court, Smith requested that the court vacate the receiving stolen property conviction and vacate the sentence on that conviction. The PCRA court granted this relief. Smith did not seek relief based on an alleged disparity in the sentencing following Barry-Gibbons’ re- sentencing. Smith asks us to review this claim sua sponte but provides no case law to support our ability to do so. Order affirmed. ____________________________________________ 8 On direct appeal Smith’s co-defendant, Barry-Gibbons, challenged, among other things, the sufficiency of the evidence supporting the receiving stolen property conviction and the court’s failure to merge the possession counts for sentencing purposes. Commonwealth v. Barry-Gibbons, 2019 WL 2503185 (Pa.Super. June 17, 2019). This Court agreed, vacated the sentences for the receiving stolen property conviction and the possession of controlled substances convictions. Id., at 11, 16. We found that resentencing was not required because the disposition did not impact the sentencing scheme. Id. at 16. Barry Gibbons then filed a PCRA petition claiming, among other things, that the sentence was based on an incorrect calculation of his offense gravity score. Commonwealth v. Barry-Gibbons, 2022 WL 1931429, at 3 (Pa.Super. filed June 6, 2022). The PCRA granted relief on his sentencing claim and re-sentenced Barry-Gibbons to ten to 20 years’ incarceration. Id., at 3- 4. - 18 - J-A18044-22 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 - 19 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484695/	J-A10029-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INT. OF: D.A.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: D.A.R. : : : : : : No. 945 MDA 2021 Appeal from the Dispositional Order Entered June 30, 2021 In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-JV-0000074-2021 IN THE INTEREST OF: D.A.R, A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.A.R. : : : : : No. 977 MDA 2022 Appeal from the Dispositional Order Entered June 28, 2021 In the Court of Common Pleas of Lancaster County Juvenile Division at No(s): CP-36-JV-0000516-2019 BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J. MEMORANDUM BY KUNSELMAN, J.: FILED: NOVEMBER 17, 2022 D.A.R., a minor, appeals the order adjudicating him delinquent of involuntary deviate sexual intercourse with a child and sexual assault,1 ____________________________________________ 1 18 Pa.C.S.A. §§ 3123(b) and 3124.1. J-A10029-22 committed against victim R.B. when he was 13 or 14 and she was 9. He challenges the sufficiency of the evidence of penetration. We affirm. The juvenile court in Lancaster County held an adjudication hearing on January 28, 2021. R.B. testified that on a camping trip in 2018, she was in bed in a camper trailer between D.A.R. and another child. When she was half asleep, half awake, D.A.R. pulled down her pants and underwear and “put his thing in [her] butt.” His “thing” means his “private part,” which is used “[t]o have babies, I guess.” When D.A.R. did so, R.B. “squeezed [her] butt together.” He stopped when R.B. got up, pulled up her pants, and moved to the other end of the bed. About a year after the incident, on May 22, 2019, R.B. showed her mother a note she had typed on her cellular phone that said: Mom, I got raped and I was scared so . . . what I did was move. . . . It was [D.A.R.’s nickname] who did it. What . . . he did was pull down my pants and underwear and put his thing in my butt. I’m not playing and I had to move where I was. And I made my butt cheeks tight and he put it in. And I pulled my pants up and moved to the other end of the bed. It happened when I was 9 or 10. Don’t yell at me. I was scared to tell you because I thought you were going to yell at [me]. That’s why I was scared and I’m scared to go to school tomorrow. N.T., 1/28/21, at 15–16. R.B. participated in a forensic interview. The juvenile court adjudicated D.A.R. delinquent of the above offenses. The case was transferred to juvenile court in Cumberland County, which -2- J-A10029-22 entered a dispositional order. D.A.R. appealed.2 However, because D.A.R. did not file a concise statement of errors complained of on appeal as directed by the juvenile court, the juvenile court was unable to enter an opinion in support of its order. See Pa.R.A.P. 1925. We remanded to give the juvenile court the opportunity to address the merits of D.A.R.’s appeal. D.A.R. filed a concise statement identifying one error challenging the sufficiency of the evidence. The juvenile court in Lancaster County entered an opinion explaining the bases for its factual findings. On appeal, D.A.R. raises the same issue: “In a prosecution for Involuntary Deviate Sexual Intercourse and Sexual Assault, was the evidence sufficient to prove that there was penetration of the anus, however slight?” D.A.R.’s Brief at 5. In reviewing a challenge to evidentiary sufficiency, we follow these well- settled principles: When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth. In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every ____________________________________________ 2D.A.R.’s adjudicatory hearing was in Lancaster County, and his dispositional hearing was in Cumberland County. He filed an appeal first in Cumberland County and then nunc pro tunc in Lancaster County. We are disposing of both appeals in this opinion. -3- J-A10029-22 element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence. The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant’s innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth. In Interest of K.G., 278 A.3d 934, 938–39 (Pa. Super. 2022) (quoting In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016)). In this case, D.A.R. was adjudicated delinquent of involuntary deviate sexual intercourse of a child and sexual assault, both of which require the Commonwealth to prove that he engaged in “deviate sexual intercourse.” 18 Pa.C.S.A. §§ 3123(b), 3124.1.3 “Deviate sexual intercourse” is defined to include “[s]exual intercourse per os or per anus between human beings.” 18 Pa.C.S.A. § 3101. Although this definition of “deviate sexual intercourse” does not expressly require penetration, our courts have inferred a requirement that the Commonwealth prove penetration. Compare Commonwealth v. Troy, 553 A.2d 992, 996 (Pa. Super. 1989) (single-judge opinion) (“While both [rape and involuntary deviate sexual intercourse] embrace deviate acts, only one—sexual intercourse in the ordinary sense—requires proof and contains the element of penetration.”), with Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002) (surveying cases defining “intercourse . . . per anus” with ____________________________________________ 3 The Commonwealth can also prove sexual assault when a defendant engages in “sexual intercourse” without the complainant’s consent. -4- J-A10029-22 its ordinary meaning of “anal sex”), and Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa. Super. 2001) (requiring “oral or anal intercourse, which involved penetration however slight” to sustain a conviction for involuntary deviate sexual intercourse). D.A.R. contends that it “is certainly in dispute” whether he penetrated R.B. D.A.R.’s Brief at 13. He asserts that she did not see what was behind her and never “identified a penis as what penetrated her.” Id. He claims that R.B. never testified that she was in pain or that she felt D.A.R. inside of her, only “that her butt felt funny.” Id. However, we conclude that the evidence was sufficient for the juvenile court to resolve the factual dispute by finding that D.A.R. penetrated R.B.’s anus. Although R.B. did not use the word “penis,” she testified that D.A.R. “put his thing in [her] butt,” his “thing” being “his private part” that is used “[t]o have babies.” The juvenile court could reasonably infer from this description that D.A.R.’s “thing” was his penis, which a 12-year-old child could describe as a private part that is used to have babies. Further, the court could infer from R.B.’s testimony that the body part penetrated was her anus, which is consistent with her testimony that she “squeezed [her] butt together.” It is reasonable to infer that a 12-year-old child would describe anal penetration -5- J-A10029-22 in this way.4 Viewed in a light most favorable to the Commonwealth, the evidence was sufficient to prove penetration. Adjudication order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 ____________________________________________ 4 The Commonwealth invites us to hold that penetration of the anus may be proven by entry into the external structure of that orifice, the natal cleft. Commonwealth’s Brief at 7 (citing Commonwealth v. Bowes, 74 A.2d 795 (Pa. Super. 1950) (holding that entry into the labia is sufficient to prove penetration of the vagina)). Because we hold the evidence in this case to be sufficient to prove that D.A.R. penetrated R.B.’s anus, we decline to opine whether entry between the buttocks would also be sufficient. -6-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484690/	USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 1 of 11 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14104 Non-Argument Calendar ____________________ JOSEPH BAER, Capt., Plaintiff-Appellant, versus MV AMERICANA, ABSOLUTE NEVADA, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Middle District of Florida USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 2 of 11 2 Opinion of the Court 21-14104 D.C. Docket No. 3:21-cv-00465-BJD-LLL ____________________ Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges. PER CURIAM: Plaintiff Capt. Joseph Baer, proceeding pro se, 1 appeals the district court’s dismissal -- pursuant to Fed. R. Civ. P. 12(b)(6) -- of Plaintiff’s civil action against the M/V Americana (“Vessel”) and against the Vessel’s owner, Absolute Nevada, LLC (“Absolute Ne- vada”). In his complaint, Plaintiff sought unpaid wages under the Seaman’s Act and sought the enforcement of a maritime lien against the Vessel. No reversible error has been shown; we affirm. I. Briefly stated, this civil action involves a dispute about pay- ment for repair work Plaintiff performed on the Vessel in 2019. Plaintiff says his company -- Grand Majestic Riverboat Company, LLC (“Grand Majestic”) -- and Absolute Nevada were parties to a charter agreement. In October 2019, Absolute Nevada asked Plain- tiff to help bring the Vessel into compliance with Coast Guard reg- ulations. Plaintiff says he agreed to do the repair work on the 1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). We also construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 3 of 11 21-14104 Opinion of the Court 3 condition that his services would be performed personally and not in connection with Grand Majestic. After Plaintiff began work on the Vessel, he discovered de- fects he believed rendered the Vessel unseaworthy. Plaintiff re- ported the unsafe conditions to Absolute Nevada but says his find- ings fell on “deaf ears.” Thereafter, the relationship between Plain- tiff and Absolute Nevada deteriorated. Absolute Nevada later told Plaintiff his services were no longer needed. Plaintiff disembarked the Vessel on 26 October 2019. In November 2019, Plaintiff sent Absolute Nevada an in- voice for over $17,000 for the work he performed on the Vessel. Plaintiff says the invoice was never paid. In June 2020, Plaintiff filed a “seaman’s wage lien” with the National Vessel Documentation Center. In April 2021, Plaintiff filed this civil action in the United States District Court for the Middle District of Florida. Plaintiff sought money damages and an order seizing the Vessel so that the Vessel could be sold to cover Plaintiff’s damages. The magistrate judge issued a show-cause order directing Plaintiff to show cause why Plaintiff’s claims were not barred by previous litigation between Absolute Nevada and Grand Majestic in the United States District Court for the Southern District of New York (“New York Case”). As background, the magistrate judge noted that -- in January 2020 -- the New York district court entered a Stipulation and Order mandating, in pertinent part, that all claims USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 4 of 11 4 Opinion of the Court 21-14104 arising from the failed charter between Absolute Nevada and Grand Majestic be arbitrated in the pending New York arbitration proceedings. The Stipulation and Order also barred Grand Majes- tic from seeking arrest of the Vessel. The magistrate judge noted further that the New York dis- trict court had issued an order in September 2020 in which the New York district court found Plaintiff in civil contempt for violating the terms of the Stipulation and Order and imposed a monetary sanc- tion (“September 2020 Order”). The New York district court de- termined that -- even though Plaintiff was not a party to the New York Case -- Plaintiff was still bound by the terms of the Stipulation and Order as an “officer” of Grand Majestic. In response to the show-cause order, Plaintiff denied that he was bound by the Stipulation and Order entered in the New York Case. Plaintiff also asserted that he performed the repair work on the Vessel personally as a contractor, separate and apart from the charter agreement between Absolute Nevada and Grand Majestic. The magistrate judge issued a report and recommendation (“R&R”), recommending that the district court dismiss Plaintiff’s complaint. The magistrate judge took judicial notice of the orders entered in the New York Case. The magistrate judge determined that Plaintiff’s complaint was subject to dismissal because, “in es- sence, Plaintiff is attempting to litigate, in a different court, the identical matters that have already been litigated in the Southern District of New York.” USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 5 of 11 21-14104 Opinion of the Court 5 Plaintiff objected to the R&R. The district court overruled Plaintiff’s objections and adopted the R&R. 2 The district court ob- served that the New York district court had already ruled that Plaintiff was bound by a settlement agreement that prohibited Plaintiff from asserting -- outside a pending New York arbitration action -- the claims he sought to raise in this case. In the light of the New York Case, the district court concluded that Plaintiffs’ claims were barred by res judicata. This appeal followed. II. A. Magistrate Judge’s Authority and Impartiality Plaintiff first contends that the magistrate judge exceeded his authority by ruling on matters reserved typically for Article III judges. We disagree. A district court is authorized by statute to designate a mag- istrate judge to hear and to determine non-dispositive pretrial mat- ters. See 28 U.S.C. § 636(b)(1)(A). A district court may also desig- nate a magistrate judge to make recommendations about the dis- position of the case. See id. § 636(b)(1)(B). Here, the district court exercised properly its statutory au- thority to designate the magistrate judge to assist in this case. The magistrate judge then acted within the scope of that designated au- thority when he ruled on non-dispositive pretrial matters and when 2 The district court modified in part the R&R to the extent the R&R recom- mended retaining jurisdiction over Absolute Nevada’s motion for sanctions. USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 6 of 11 6 Opinion of the Court 21-14104 he issued the R&R recommending that Plaintiff’s complaint be dis- missed. We also reject Plaintiff’s assertion that the magistrate judge was biased unfairly against him. As evidence of alleged bias, Plain- tiff points to the magistrate judge’s statements that Plaintiff was proceeding pro se and in forma pauperis. The complained-of state- ments characterize accurately Plaintiff’s status before the district court. Nothing in the record evidences that Plaintiff was treated less favorably because of his pro se or in forma pauperis status. To the contrary, by noting that Plaintiff was proceeding pro se, the magistrate judge was indicating that Plaintiff’s pleadings would be held to a less stringent standard and would be construed more lib- erally than pleadings drafted by lawyers. See Tannenbaum, 148 F.3d at 1263. B. Motion to Disqualify Absolute Nevada’s Counsel Plaintiff next challenges the magistrate judge’s denial of Plaintiff’s motion to disqualify Absolute Nevada’s lawyer (J.M.) and J.M.’s law firm (“Firm”). In his motion, Plaintiff alleged that a con- flict of interest existed based on Plaintiff’s former relationship with the Firm. Plaintiff said the Firm represented Plaintiff in the pur- chase of a commercial 150-passenger vessel named the M/V Cocoa Belle: a matter Plaintiff says is “similar to this current case.” Absolute Nevada opposed Plaintiff’s disqualification mo- tion. Absolute Nevada asserted that Plaintiff failed to show a rela- tionship between the M/V Cocoa Belle matter and the instant case USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 7 of 11 21-14104 Opinion of the Court 7 and failed to identify any information learned during the M/V Co- coa Belle matter that would now prevent the Firm from represent- ing Absolute Nevada. In a sworn affidavit, the Firm’s bookkeeper said the Firm had no record of Plaintiff being a client of the Firm. Between 2004 and 2006, the Firm did, however, represent an entity called B&C Ma- rine, LLC 3 concerning the purchase of the M/V Cocoa Belle. Pur- suant to the Firm’s document-retention policy, the paper file con- cerning the M/V Cocoa Belle matter was destroyed in 2019. Nei- ther of the two lawyers who worked on the M/V Cocoa Belle mat- ter were involved in representing Absolute Nevada in this case. In a sworn affidavit, J.M. said he contacted the Florida Bar Ethics hotline to discuss the potential conflict asserted by Plaintiff. J.M. says the hotline advice supported the Firm’s conclusion that no conflict existed under the applicable rule of professional con- duct: Florida Rule of Professional Conduct 4-1.9. The magistrate judge denied Plaintiff’s motion “for the rea- sons stated by Defendant Absolute Nevada.” We review de novo a district court’s interpretation and ap- plication of the pertinent Rules of Professional Conduct. See Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1557-58 (11th 3 Plaintiff says B&C Marine was a company he co-owned with his then-wife. USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 8 of 11 8 Opinion of the Court 21-14104 Cir. 1997). We review for clear error the district court’s factual findings. Id. In determining whether a conflict of interest exists between a party and an attorney or a law firm, we look to the local rules of professional responsibility and standards of conduct. See Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 380 F.3d 1331, 1338 (11th Cir. 2004). “The party moving to disqualify counsel bears the bur- den of proving the grounds for disqualification.” In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003). Florida Rule of Professional Conduct 4-1.9 governs conflicts of interest involving former clients. Under Rule 4-1.9, a lawyer is prohibited from “represent[ing] another person in the same or a substantially related matter in which that person’s interests are ma- terially adverse to the interest of the former client unless the for- mer client gives informed consent[.]” Fla. Bar Code Prof. Resp. 4- 1.9. A lawyer is also prohibited from “us[ing] information relating to the representation to the disadvantage of the former client” and prohibited from “reveal[ing] information relating to the represen- tation.” Id. Commentary to Rule 4-1.9 provides that matters are “substantially related” “if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” Id. Plaintiff has failed to satisfy his burden of establishing an im- permissible conflict of interest under Florida’s professional conduct rules. Even if we accept that Plaintiff can be considered a former client of the Firm, the matter involving B&C Marine’s acquisition USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 9 of 11 21-14104 Opinion of the Court 9 of the M/V Cocoa Belle was neither the same nor substantially re- lated to Plaintiff’s current claim for unpaid seaman’s wages. Nor has Plaintiff identified any information the Firm might have learned during the M/V Cocoa Belle matter that could now be re- vealed improperly or used to his disadvantage. On this record, we see no error in the magistrate judge’s denial of Plaintiff’s disqualifi- cation motion. C. Res Judicata Plaintiff next challenges the district court’s dismissal of his civil action. Plaintiff argues chiefly that he is not bound by the Stip- ulation and Order entered in the New York Case and that the ser- vices performed on the Vessel were performed personally and not in relation to the charter agreement between Absolute Nevada and Grand Majestic. Plaintiff raises no express challenge to the district court’s ruling that his claims are barred by the New York Case. We review de novo a district court’s decision that a claim is barred by res judicata. See Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). “Res judicata bars the filing of claims which were raised or could have been raised in an earlier proceed- ing.” Id. A claim is barred by earlier litigation if these four elements are met: (1) a prior final judgment on the merits exists, (2) the prior decision was rendered by a court of competent jurisdiction, (3) the parties are identical in both suits, and (4) the same cause of action is involved in both cases. See Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003). USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 10 of 11 10 Opinion of the Court 21-14104 Here, the New York district court’s September 2020 Order constitutes a final judgment for res judicata purposes and was en- tered by a court of competent jurisdiction. In its September 2020 Order, the New York district court (1) granted Absolute Nevada’s post-judgment motion to hold Plaintiff in civil contempt for violat- ing the terms of the Stipulation and Order and (2) imposed a non- contingent monetary sanction against Plaintiff. 4 See Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir. 2010) (“A postjudgment order is final for purposes of [28 U.S.C. §] 1291 only if the order disposes of all issues raised in the motion.”); Combs v. Ryan’s Coal Co., 785 F.2d 970, 976-77 (11th Cir. 1986) (explaining that a civil contempt order that includes a noncontin- gent order of sanction constitutes a final appealable judgment). The September 2020 Order also involved the same parties that are involved in this civil action: Plaintiff and Absolute Nevada. Although Plaintiff was not a named party in the New York Case, the New York district court determined that Plaintiff -- as Grand Majestic’s “President, sole member, sole director, and ‘sole propri- etor’” -- was bound expressly by the Stipulation and Order entered in that case. Both this civil action and the September 2020 Order also in- volve the same cause of action: Plaintiff’s claim for unpaid wages 4 The Second Circuit later affirmed the district court’s September 2020 Order on direct appeal. See Absolute Nevada, LLC v. Baer, No. 21-50-cv, 2022 U.S. App. LEXIS 3312 (2nd Cir. Feb. 7, 2022). USCA11 Case: 21-14104 Date Filed: 11/17/2022 Page: 11 of 11 21-14104 Opinion of the Court 11 under the Seaman’s Act. The New York district court found Plain- tiff violated the terms of the Stipulation and Order when Plaintiff brought a claim for unpaid seaman’s wages outside the pending New York arbitration proceedings and when Plaintiff filed a lien against the Vessel. On this record, the district court committed no error in con- cluding that Plaintiff’s claims were barred by res judicata. AFFIRMED. 5 5 We reject Plaintiff’s conclusory assertion that the district court violated his due process rights by failing to rule on his petition to vacate the Stipulation and Order, pursuant to 9 U.S.C. § 10. The district court lacked jurisdiction to vacate a judgment entered by the New York district court.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484691/	* FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * Electronically Filed Supreme Court SCPW-XX-XXXXXXX 17-NOV-2022 09:19 AM Dkt. 17 OP IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ---o0o--- SCOTT DAVID DEANGELO, Petitioner, vs. THE HONORABLE KEVIN A. SOUZA, Judge of the Circuit Court of the First Circuit, State of Hawaiʻi, Respondent Judge. and STATE OF HAWAIʻI, Respondent. SCPW-XX-XXXXXXX ORIGINAL PROCEEDING (CASE NO. 1CPC-XX-XXXXXXX) NOVEMBER 17, 2022 RECKTENWALD, C.J., NAKAYAMA, MCKENNA, WILSON, AND EDDINS, JJ. OPINION OF THE COURT BY EDDINS, J. This petition for an extraordinary writ challenges the constitutionality of Hawaiʻi Rules of Penal Procedure (HRPP) Rule 12(g). * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * Rule 12(g) allows a judge who dismisses a case based on a “defect in the institution of the prosecution or in the charge” to order the defendant held for a “specified time” while the State re-files charges. Up until recently, courts have rarely invoked Rule 12(g). But the present wave of dismissals in cases where the State did not obtain an indictment from a grand jury has prompted a surge in the rule’s use. Scott Deangelo is the defendant in one such case. After the court dismissed charges against him, it ordered under Rule 12(g) that Deangelo remain in custody for 90 days, while the State sought a grand jury indictment. Deangelo argues that Rule 12(g) violates the Fourth Amendment of the United States Constitution, which protects against unreasonable seizures, and Hawaiʻi Revised Statutes (HRS) § 803-9(5) (Supp. 2021), which requires an “arrested person” to be taken “before a qualified magistrate for examination” within 48 hours of arrest. While Deangelo’s case has been mooted by his indictment eleven days later, his challenge to Rule 12(g) presents an issue of public importance. We hold that, when probable cause has been found after a preliminary hearing but the case is dismissed without prejudice due to a defect in the institution of the prosecution, Rule 12(g) permits a court to hold a defendant in custody or continue 2 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * bail for a specified time that is reasonable under the circumstances. I. The police arrested Defendant-Petitioner Scott Deangelo without a warrant on February 8, 2022 for second-degree murder. The next day, the district court made a judicial determination of probable cause for the extended restraint of liberty and set bail at $500,000. On February 17, the court confirmed its probable cause and bail findings. After a two-day preliminary hearing on February 25, a different district court judge found probable cause to believe that Deangelo committed the charged felonies and sent the case to circuit court. On March 10, Deangelo was arraigned without a grand jury indictment. The circuit court confirmed bail at $500,000. In response to the State’s motion to either hold Deangelo without bail or increase bail, the circuit court ordered on June 6 that Deangelo be held without bail. The court based its order on the seriousness of Deangelo’s charged crimes and its finding that Deangelo posed a danger to the community and was a flight risk. On August 25, Deangelo moved to dismiss the case because he had not been indicted in accordance with HRS § 801-1 (2014). See State v. Obrero, 151 Hawaiʻi 472, 517 P.3d 755 (2022). The State conceded the motion, but requested that the court dismiss 3 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * the case without prejudice. Citing Rule 12(g), the State also asked the court to hold Deangelo in custody without bail. On October 10, the circuit court dismissed Deangelo’s case without prejudice and denied all pending motions as moot. But under HRPP Rule 12(g), the court ordered that Deangelo remain in custody without bail for 90 days. In the order, the circuit court made detailed factual findings. These findings reviewed the impact of Covid-19 on grand jury proceedings over the past two and a half years. The court observed that for fourteen of the last thirty months, grand juries were unavailable in the First Circuit. The court pointed out that when the State charged Deangelo via complaint, grand jury proceedings were not taking place in the First Circuit. In light of this, the court’s previous no-bail finding, and based on “the offenses alleged, the possible punishment upon conviction, Defendant’s financial ability to afford bail, the serious risk that Defendant will flee, and the serious risk that Defendant poses a danger to any person or the community,” the court decided to hold Deangelo in custody. By October 16, Deangelo had not yet been indicted. He filed a petition for an extraordinary writ to this court. His continued custody under 12(g) violated the Hawaiʻi and United States Constitutions, as well as HRS § 803-9(5), he argued. Deangelo wanted to be released. 4 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * Five days later, on October 21, a grand jury indicted Deangelo on three counts — murder in the second degree, place to keep a pistol or revolver, and place to keep ammunition. Eleven days had elapsed since the case’s dismissal. The parties disagree on whether Deangelo’s indictment has mooted the court’s 12(g) order holding him in custody for up to 90 days. But both urge us to review the broader issue of Rule 12(g)’s validity, since it is an issue of public interest that may repeat while evading meaningful judicial review. See Moana v. Wong, 141 Hawaiʻi 100, 115, 405 P.3d 536, 551 (2017). Because we agree that the 12(g) issue should be resolved promptly, we assume the mootness of the order holding Deangelo but go on to the merits of Deangelo’s statutory and constitutional challenges to Rule 12(g) itself. HRPP Rule 12(g) 1 reads: If the court grants a motion based on a defect in the institution of the prosecution or in the charge, it may also order that the defendant be held in custody or that the defendant’s bail be continued for a specified time pending the filing of a new charge. Nothing in this rule shall be deemed to affect provisions of any statute relating to periods of limitations. 1 The rule, formerly known as Rule 12(b)(5), is a slightly modified version of Federal R. Crim. P. 12(g). The federal rule provides: If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it may order the defendant to be released or detained under 18 U.S.C. § 3142 for a specified time until a new indictment or information is filed. This rule does not affect any federal statutory period of limitations. 5 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * Deangelo contends that Rule 12(g), on its face and as applied to him, violates HRS § 803-9(5) and the Fourth Amendment of the United States Constitution. 2 Deangelo argues that when the court dismissed his case, all proceedings against him terminated, including the prior judicial determination of probable cause to hold him. So he was like a person arrested without a warrant. And this person has rights. First, they have a statutory right under HRS § 803-9(5) to be charged or brought before a district court judge for a probable cause determination within 48 hours. Second, they have a Fourth Amendment and Hawaiʻi constitutional right to a probable cause finding made before arrest or promptly after it, where promptly means within 48 hours. Gerstein v. Pugh, 420 U.S. 103, 126 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); Constitution of the State of Hawaiʻi article I, section 7. By empowering judges to hold people in custody after dismissal for a specified period of time, Deangelo argues that Rule 12(g) on its face violates both HRS § 803-9(5) and his constitutional rights against unreasonable seizure. Since a court rule cannot abridge substantive rights, Rule 12(g) “must be stricken,” or if upheld, must be capped at 48 hours. 2 Deangelo mentions article I, section 7 of the Hawaiʻi Constitution, saying if there’s a Fourth Amendment violation, then there’s an article I, section 7 violation. But Deangelo presents no arguments specific to our constitution’s Fourth Amendment analogue. 6 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * Not so, says the State. It argues that a person against whom a judicial determination of probable cause has already been made is not in the same position as a person who has just been arrested without that finding. The plain language of HRS § 803- 9(5) governs only a person’s “initial appearance” in court after an arrest and has no relevance whatsoever to Rule 12(g). As to Deangelo’s constitutional claims, the State maintains that all required constitutional procedures were followed — probable cause to hold Deangelo was found within 48 hours and confirmed after a preliminary hearing. II. The equivalent of Rule 12(g) has existed in federal law since 1944 and as of today has been adopted by at least 26 states. The rule also has roots in the common law. See Latson v. State, 146 A.2d 597, 600 (Del. 1958) (observing that the rule “embod[ies] the practice theretofore existing that on the dismissal of an indictment the defendant is not automatically entitled to discharge, and the court may hold him in custody.”) Yet, courts seldom invoke 12(g). See U.S. v. Powers, 168 F.3d 943, 949 (7th Cir. 1999) (commenting on the “dearth of reported cases”). In Dawson v. Lanham, we suggested in passing that the trial court should have used this rule to hold the defendants in custody after the court dismissed their indictment. 53 Haw. 76, 7 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * 83, 488 P.2d 329, 334 (1971). In his dissent, Justice Abe pointed out that Rule 12(g) is valid only to the extent that it does not abridge substantive rights, a question that the Dawson Court did not consider. Id. at 87 n.4, 488 P.2d at 336 n.4. Fifty years later, we take up this question. The Fourth Amendment protects against “unreasonable . . . seizures.” U.S. Const. Am. IV. It “requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein, 420 U.S. at 114. That judicial determination, if made after arrest, must be made promptly. Id. at 125-26. The Supreme Court has held that determinations made within 48 hours of arrest will generally satisfy this requirement. McLaughlin, 500 U.S. at 56. HRS § 803-9(5) codifies this rule in Hawaiʻi law. Failure to promptly determine probable cause or a defect in the probable cause determination itself may render any subsequent custody unreasonable. See Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 918-19 (2017) (holding that probable cause obtained based on false police statements renders a seizure unreasonable.) Here, no one disputes that sufficient probable cause to arrest and hold Deangelo was found. Also, through a preliminary hearing a judge determined that probable cause existed to believe Deangelo had committed the dismissed charges. The constitutional question turns, then, on whether there was still 8 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * probable cause to hold Deangelo after the court dismissed his case. Typically, a dismissal ends the court proceedings, leaving “nothing further to be accomplished.” State v. Kalani, 87 Hawaiʻi 260, 261, 953 P.2d 1358, 1359 (1998). And we have said that after dismissal “even if the prosecution is allowed to recharge the defendant, recharging [them] does not revive the original case.” Id. at 262, 953 P.2d at 1360. In Kalani, however, we considered whether a dismissal without prejudice constituted a final order for the purpose of appeal. Kalani did not involve a Rule 12(g) order. Rule 12(g) creates a limited exception to the procedure that a dismissal completely terminates the original case. If the court grants a dismissal based on “a defect in the institution of the prosecution or in the charge,” the rule allows the judge to hold the defendant in custody (or continue bail) while the State re-charges. In effect, dismissal paired with a 12(g) grant resets the proceedings to where they were before the defective charge or indictment was made. In Deangelo’s case, that means after a preliminary hearing at which the court found probable cause. A “[p]reliminary hearing is for the purpose of determining whether there is probable cause to warrant holding the accused for action by the grand jury.” Engstrom v. Naauao, 51 Haw. 318, 9 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * 320, 459 P.2d 376, 377 (1969); see also State v. Tominaga, 45 Haw. 604, 609, 372 P.2d 356, 359 (1962) (“The only purpose of a preliminary hearing is to determine whether there is sufficient evidence against an accused to warrant his being held for action by a grand jury.” (citations omitted)). Because grand juries may take time to convene, the preliminary hearing helps ensure that a defendant is not unreasonably held before indictment. Within this framework, a rule like 12(g) does not offend the Fourth Amendment, article I, section 7, or HRS § 803-9(5), which duplicates the holding of McLaughlin. We stress that 12(g) is a procedural rule, limited to defects in the charging process. The rule cannot abridge a substantive right. HRS § 602-11 (2016). If, as in City of Joliet, it were discovered that police had sworn false statements in order to obtain a probable cause determination, the seizure would be unreasonable. In that case, custody could not continue without violating the Fourth Amendment and article I, section 7, and Rule 12(g) could not change that. No such defect in probable cause occurred here. The State charged Deangelo via complaint and a preliminary hearing was conducted before our clarification that prosecutions based on complaint and preliminary hearing alone are unlawful under HRS § 801-1. See Obrero, 151 Hawaiʻi 472, 517 P.3d 755. By dismissing the case, the circuit court addressed this defect in 10 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * the institution of the prosecution; by invoking Rule 12(g) the court ensured that a defendant it believed to be a danger to the public and a flight risk would remain in custody while the State sought a grand jury indictment. Custody under these circumstances abridges no substantive right. 3 From the question of whether Rule 12(g) is constitutional, we turn to the question of how long a court may hold a defendant under the Rule. The plain text of 12(g) does not specify how long a defendant can be held in custody, only that the time be “specified.” Several states that have adopted this rule have embedded specific time limits, ranging from one day to 60 days. 4 Other states have made explicit that the specified time must be reasonable. 5 Still others have decided that when a prosecution is dismissed, the defendant must be released. 6 3 The length of custody authorized under 12(g) may not, for example, abridge a defendant’s right to a speedy trial. 4 See Kan. Stat. Ann. § 22-3208(6) (custody limited to one day after dismissal); Wyo. R. Prac. & P. 12(i) (48 hours); Wis. Stat. § 971.31(6) (72 hours); Md. Crim. Causes. 4-252(h)(1) (ten days if the crime charged is a crime of violence, otherwise immediate discharge); Ohio Crim. R. 12(j) (fourteen days); Iowa R.2.11(7) (20 days); Ky. R. Crim. P. RCr 8.24(2) (within 60 days or until the discharge of the next grand jury assembled, whichever is sooner). 5 See Utah R. Crim. P. 12(h); Ala. R. Crim. P. 15.5(a); Fla. R. Crim. P. R. 3.190(e). 6 See Ariz. R. Crim. P. 16.4(e); Me. R. Crim. P. 12(5); Mont. Code Ann. § 46-13-402. 11 * FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * No court, federal or state, has interpreted the “specified time” language to mandate a fixed maximum time in all cases. See, e.g., Esguerra v. State, No. A-8395, 2005 WL 19220, at 3 (Alaska Ct. App. Jan. 5, 2005) (“[T]he time which the State can hold the defendant before reindicting him must be specified, but is not limited to ten days.”); Powers, 168 F.3d at 948 (declining to rule on what a “specified time” constitutes, but noting that such an extension potentially “cannot in itself affect the speedy trial clock”); U.S. v. Silverman, 129 F. Supp. 496, 514 (D. Conn. 1955) (continuing bail for 21 days under the federal equivalent to 12(g) without discussion). The rule does not contemplate a universal time limit and setting one would undermine the trial court’s ability to tailor its order to the circumstances. We hold only that the time specified must be reasonable in light of all the circumstances. Relevant circumstances may include the status of the case (is the case at the discovery and pretrial motions stage or is trial imminent?), the unprecedented exigencies of the Covid-19 pandemic, the inability of the State to convene grand juries during a particular time, the nature and seriousness of the defendant’s alleged crime(s), the extent to which the defendant 12 FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER * poses a flight risk and a danger to the community, and the defendant’s ability to afford bail. 7 The circuit court properly looked to these factors. Since the State indicted Deangelo before the 12(g) order expired, we do not find it necessary to determine whether the circuit court abused its discretion in specifying 90 days. However, we emphasize that no state that has specified a deadline to recharge under 12(g) has allowed custody to stretch beyond 60 days and that most have settled on a far lower number. We do not foresee any circumstances that will justify custody longer than 60 days under a 12(g) order. In Deangelo’s case, despite the grand jury postponements identified by the circuit court, the State was able to secure an indictment within eleven days. We expect that this time will continue to decrease as defendants are lawfully charged. Jon N. Ikenaga /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Anna Ishikawa /s/ Sabrina S. McKenna (Loren J. Thomas and /s/ Michael D. Wilson Steven S. Tsushima on the briefs) /s/ Todd W. Eddins for respondent 7 While Rule 12(g) gives the court the option of holding the defendant in custody or continuing bail, the court must support either determination with findings of fact that comply with HRS Chapter 804. 13	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484698/	J-S29035-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD MARK WATKINS : : Appellant : No. 45 WDA 2022 Appeal from the Judgment of Sentence Entered November 24, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001463-2021 BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 17, 2022 Appellant, Edward Mark Watkins, appeals from the judgment of sentence imposed following his conviction of driving under the influence (“DUI”)—controlled substance, accidents involving damage to attended vehicle or property, accidents involving damage to unattended vehicle or property, and careless driving.1 With this appeal, Appellant’s counsel has filed an application to withdraw as counsel and an Anders brief.2 Upon review, we affirm the judgment of sentence and grant counsel’s application to withdraw. On March 16, 2020, Appellant drove his white sports utility vehicle (“SUV”) onto the driveway of Ronald and Ann DiVecchio’s home in the City of ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 75 Pa.C.S. §§ 3802(d)(1)(i), 3743(a), 3745(a), and 3714, respectively. 2 See Anders v. California, 386 U.S. 738 (1967). J-S29035-22 Erie, struck Mrs. DiVecchio’s vehicle that was parked in the driveway, and pushed that vehicle into the frame of the garage. Mrs. DiVecchio’s car was totaled as a result of the accident, and the house sustained significant damage. After the accident, Appellant exited his SUV, looked at the damage to his vehicle, backed his vehicle from the driveway onto the street, and then drove away. Appellant was arrested as he was driving away from the scene and taken to the hospital for a blood test, to which he consented. The test revealed the presence of Delta-9-THC, an active ingredient in marijuana, as well as two THC metabolites. Appellant was charged with the above stated offenses, and he proceeded to trial on October 11, 2021. At the conclusion of trial, the jury found Appellant guilty of the DUI offense and accidents involving damage to attended vehicle or property and the trial court found Appellant guilty of the summary offenses of accidents involving damage to unattended vehicle or property and careless driving. On November 24, 2021, the trial court sentenced Appellant to 10 days to 6 months of imprisonment on the DUI offense, one year of probation for accidents involving damage to attended vehicle or property, and no further penalty on the remaining two offenses. Appellant filed a timely post-sentence motion, which the trial court denied on December 8, 2021. Appellant thereafter filed this timely appeal.3 ____________________________________________ 3 On January 21, 2022, counsel filed a notice of intent to file a petition to withdraw and Anders brief in lieu of a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(c)(4). -2- J-S29035-22 As stated above, counsel has filed an Anders brief and application to withdraw as counsel in this Court. In her Anders brief, counsel identifies the following issue: Whether the Commonwealth failed to present sufficient evidence to find the Appellant guilty beyond a reasonable doubt of driving under the influence [] and accidents involving damage to attended property? Anders Brief at 3 (unnecessary capitalization omitted). Before this Court can consider the merits of this appeal, we must first determine whether appellate counsel has satisfied all of the requirements that court-appointed counsel must meet before leave to withdraw may be granted. Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). To withdraw from representing a defendant on direct appeal on the basis that the appeal is frivolous, counsel must (1) petition the court for leave to withdraw stating that she has made a conscientious examination of the record and has determined that the appeal would be frivolous; (2) file a sufficient Anders brief; and (3) provide a copy of the Anders brief to the defendant and advise the defendant of his right to retain new counsel or proceed pro se and raise any additional points that he deems worthy of the court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply with all of the following requirements: -3- J-S29035-22 [T]he Anders brief . . . must (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel has satisfied the above requirements, it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an independent judgment as to whether the appeal is wholly frivolous. Dempster, 187 A.3d at 271; Bynum-Hamilton, 135 A.3d at 183. In the application to withdraw, counsel indicated that she had engaged in a thorough review of the record and determined that there are no non- frivolous grounds for the appeal. Counsel sent a letter to Appellant advising him of his right to retain new counsel or proceed pro se and raise any additional issues he deemed worthy of this Court’s attention,4 and counsel included with the letter a copy of the petition to withdraw and Anders brief. Counsel’s Anders brief includes a summary of the relevant procedural and factual background to this case and discusses the reasons upon which counsel bases her conclusion that the appeal is frivolous, with citation to applicable ____________________________________________ 4As of the date of this decision, Appellant has not filed a pro se brief with this Court, nor has privately retained counsel entered an appearance on Appellant’s behalf. -4- J-S29035-22 law. Therefore, we conclude that counsel has adequately complied with the procedural requirements for withdrawal. We therefore proceed to conduct an independent review to ascertain whether the appeal is indeed wholly frivolous. We first consider the issue raised by counsel in the Anders brief and determine whether it is in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc); Dempster, 187 A.3d at 272. If we find that issue to be frivolous, we then proceed to conduct an examination of the record to discern if there are any other issues of arguable merit overlooked by counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72. In her brief, Counsel addresses the question of whether the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Appellant committed the misdemeanors of which the jury convicted him: DUI—controlled substance and accidents involving damage to attended vehicle or property. A challenge to the sufficiency of the evidence presents a question of law and is subject to plenary review under a de novo standard. Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth, were sufficient to prove every element of the offense beyond a reasonable doubt. Id. “[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” -5- J-S29035-22 Commonwealth v. Bowens, 265 A.3d 730, 740 (Pa. Super. 2021) (en banc) (citation omitted). “The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Id. (citation omitted). Finally, we note that the trier of fact has the authority to determine the weight of the evidence and credibility of the witnesses and is free to believe all, part, or none of the evidence. Id. at 741. At trial, Ronald DiVecchio testified that, at approximately 10:00 p.m. on March 16, 2020, he and his wife, Ann, were inside their home at 601 Pin Oak Drive in the City of Erie, when his wife heard a loud bang outside and asked him to investigate. N.T., 10/11/21, at 15-16, 25, 27. Mr. DiVecchio went out of his front door and saw that a white SUV had struck his wife’s car that was parked in their driveway, causing significant damage to the rear of Mrs. DiVecchio’s car. Id. at 16. In addition, the white SUV had pushed Mrs. DiVecchio’s car into the frame of the garage of their house; the building was also damaged, with bricks having been dislodged. Id. at 17-18, 26. Mr. DiVecchio asked the driver of the white SUV if he was okay, and the driver never responded or provided Mr. DiVecchio with any of his information. Id. at 17-19, 23. Mr. DiVecchio testified that his wife’s car was totaled as a result of the crash and that the damage to his house cost in excess of $5,000 to repair. Id. at 19-20. The DiVecchios’ neighbor from the across the street, Suzanne Ulrich, testified that she witnessed the collision from her porch. Id. at 28-30. Ms. -6- J-S29035-22 Ulrich stated that she saw the white SUV drive “kind of fast” along Woodbine Terrace to the ‘T’ intersection with Pin Oak Drive and, instead of making a left or right on that road, continued straight into the DiVecchios’ driveway and into Mrs. DiVecchio’s car. Id. at 29-32. Ms. Ulrich said that the white SUV did not appear to make any effort to stop. Id. at 30-31. Ryan Ulrich, who resided in the same house as his mother, testified that he came outside after learning of the accident. Id. 35-36. Mr. Ulrich stated that he watched the driver of the white SUV get out after the crash, stumble around as if impaired, look at the damage to the front of the SUV, and then reenter the SUV and back it out onto the street. Id. at 37. Within a minute, the SUV drove off from the scene. Id. Mr. Ulrich described the vehicle as having its front end “pretty smashed up” with several flat tires and leaking fluids. Id. at 37-38. Patrolman Anthony Fatica of the City of Erie Police Department testified that he responded to the scene of the crash. Id. at 43-44. Patrolman Fatica said that the damage to Mrs. DiVecchio’s car was severe, and the car had to be towed from the scene while the damage to the garage was significant enough that he felt compelled to call out a city engineer to check on the structural integrity of the building. Id. at 45-46. Patrolman Joshua Allison testified that he was driving along Pine Avenue on his way to assist Patrolman Fatica when he saw a white SUV with only one operational light and which appeared, from the distinctive metal-on-asphalt sound, to be driving on its wheel rims. Id. at 50-51, 57. Patrolman Allison, -7- J-S29035-22 who was aware that a white SUV was involved in the Pin Oak Drive crash, conducted a traffic stop and approached the SUV. Id. at 51-52. Patrolman Allison identified the driver as Appellant and detected a strong smell of burnt marijuana emanating from the vehicle. Id. at 52-53, 56. Appellant also appeared to be disoriented and he admitted that he “smokes weed.” Id. at 53-54. Patrolman Allison placed Appellant under arrest for suspicion of DUI. Id. at 54. Patrolman Joshua Martin testified that he transported Appellant after his arrest to the hospital for a chemical test of his blood. Id. at 60-62. Patrolman Martin read Appellant the prescribed warnings from the Department of Transportation DL-26 form, and Appellant agreed to submit to a blood test. Id. at 62-63. Patrolman Martin stated that the results of the blood test revealed the presence of detectable amounts of Delta-9-THC, one of the active ingredients of marijuana, as well as two THC metabolites. Id. at 65-70, 74- 75. The parties stipulated to the admissibility of the lab report. Id. at 70-71, Commonwealth Ex. B. Appellant testified in his defense at trial. Appellant stated that he lives in Michigan and was not familiar with the roads where the crash occurred. Id. at 76-78. Appellant “believed [he] might have hit a patch of something,” leading to the accident. Id. at 77. Appellant stated that he exited his vehicle after the crash to make sure no one was hurt, spoke to Mr. DiVecchio, and asked him to call 911. Id. at 77-79. Appellant said that he also asked Mr. -8- J-S29035-22 DiVecchio to “take pictures [of his car, driver’s license, and other documents to] make sure you know who I am.” Id. at 77, 80. Appellant said that he was concerned that the air was leaking out of his tires, and he thus asked Mr. DiVecchio if he had an air pump. Id. at 77, 79. When Mr. DiVecchio responded that he did not have an air pump, Appellant stated that he informed Mr. DiVecchio he was leaving to fill up his tires and then he would “hurry back” to the scene of the collision before the police leave. Id. at 77, 79-81. Appellant was arrested while he was driving around looking for a business with an air pump. Id. at 77-78. Appellant admitted that he had consumed marijuana in the past and it was likely still in his blood system, but he said that he had last “smoked weeks ago,” he was not in possession of any marijuana at the time of the accident, and he “was not high at the time.” Id. at 78, 81, 85-87. Appellant also testified that he “ha[s] a [medical marijuana] card,” but he was unsure whether he had mentioned this fact to the officers who arrested him. Id. at 78, 81. Appellant did not provide any further information regarding his medical marijuana card or submit his card into evidence at trial. Upon review, we agree with counsel that the Commonwealth clearly met its burden of proving beyond a reasonable doubt that Appellant was guilty of DUI—controlled substance and accidents involving damage to attended vehicle or property. Under the DUI statute, An individual may not drive, operate or be in actual physical control of the movement of a vehicle [if t]here is in the individual’s blood any amount of a[] Schedule I controlled substance, as -9- J-S29035-22 defined in [] The Controlled Substance, Drug, Device and Cosmetic Act [(“CSA”).] 75 Pa.C.S. § 3802(d)(1)(i). Therefore, “for the Commonwealth to meet its burden of proof [under this statute], it needed to prove: (1) that Appellant was in actual physical control or operated the motor vehicle and (2) that he had a schedule I controlled substance in his blood.” Commonwealth v. May, 271 A.3d 475, 480 (Pa. Super. 2022). There is no requirement that the Commonwealth establish that the driver was impaired while driving. Id. Furthermore, the Commonwealth need not prove that there was any specific amount of a Schedule I drug in the driver’s system. Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011). Marijuana is a Schedule I controlled substance under the CSA. 35 P.S. § 780-104(1)(iv); see also Commonwealth v. Watts, ___ A.3d ___, 2022 PA Super 164, at 5 (Pa. Super. 2022). Here, the testimony established that Patrolman Allison witnessed Appellant operating his white SUV on March 16, 2020 and conducted the traffic stop that led to his arrest. Furthermore, a consensual blood test performed after the arrest showed detectable levels of marijuana, a Schedule I controlled substance, in Appellant’s system. Appellant admitted during his testimony both his operation of a vehicle and the presence of marijuana in his blood. Furthermore, even to the extent Appellant held a valid medical marijuana card, this would not operate as a defense to the crime of DUI— controlled substance. Even after the General Assembly’s enactment of the - 10 - J-S29035-22 Medical Marijuana Act (“MMA”),5 an individual who operates or is in physical control of a motor vehicle while at the same having marijuana in the blood stream may be found guilty of DUI—controlled substance; there is no exception to the DUI statute for individuals who possess or consume marijuana in accordance with the MMA or any other state’s medical marijuana program. See Watts, 2022 PA Super 164, at 5-6; Commonwealth v. Dabney, 274 A.3d 1283, 1291-92 (Pa. Super. 2022); see also 75 Pa.C.S. § 3810 (“The fact that a person charged with violating [the DUI statute] is or has been legally entitled to use alcohol or controlled substances is not a defense to [that] charge . . .”). “Consequently, it is illegal to drive with any amount of marijuana, medical or otherwise, in one’s system.” Watts, 2022 PA Super 164, at *6-7 (rejecting as wholly frivolous argument that driver cannot be held criminally liable under Section 3802(d)(1)(i) where he ingested marijuana while holding a valid medical marijuana card). With respect to the offense of accidents involving damage to attended vehicle or property, Section 3743 of the Vehicle Code states: The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). ____________________________________________ 5 35 P.S. §§ 10231.101-10231.2110. - 11 - J-S29035-22 75 Pa.C.S. § 3743(a). Section 3744 provides in relevant part that “[t]he driver of any vehicle involved in an accident resulting in . . . damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving.” 75 Pa.C.S. § 3744(a). Section 3743 contains a mens rea element, and therefore the Commonwealth must prove that “the circumstances of the accident indicate that the defendant reasonably should have known that he or she was involved in an accident involving damage” to a vehicle or other property. Commonwealth v. Woosnam, 819 A.2d 1198, 1205 (Pa. Super. 2003); see also Commonwealth v. Kauffman, 470 A.2d 634, 639-40 (Pa. Super. 1983). However, the duty of the driver to stop and discharge their obligation under Section 3744 arises whenever they are involved in an accident, regardless of whether the driver “caused” the accident. Commonwealth v. Satterfield, 255 A.3d 438, 448-49 (Pa. 2021) (discussing obligations to stop under Sections 3742, 3743, and 3745). A vehicle or property is unattended within the meaning of the Vehicle Code if it is “lacking a guard, escort, caretaker or other watcher.” Commonwealth v. Odom, 204 A.3d 432, 435 (Pa. Super. 2019) (quoting Commonwealth v. Cornell, 607 A.2d 801, 803 (Pa. Super. 1992)). “To ‘attend’ is to ‘look after[,] take care of[, or] watch over the working of.’” Id. (quoting Cornell, 607 A.2d at 803). This Court has held that a vehicle need not be driven or occupied to be “attended” within the meaning of Section - 12 - J-S29035-22 3743, but the driver must be “looking after it or watching over it” at the time of the accident. See Cornell, 607 A.2d at 803 (parked, unoccupied truck in driveway was not attended as driver was in nearby residence at time of collision). In the case of an accident involving damage to a building, this Court has determined that a building is “unattended” property under Section 3743 where neither the owner nor some other person responsible to watch over the building is present at the time of the collision. See Odom, 204 A.3d at 436 (at the time appellant crashed vehicle into 24-hour, coin-operated laundromat, the building was not “attended” under Section 3743 as the only occupants of the building were three customers of the establishment and neither the owner nor any employee of the business was present). The evidence presented by the Commonwealth established that Appellant was involved in an accident in the DiVecchios’ driveway and that this accident caused damage to “other property”—the exterior of the DiVecchios’ house—and that this property was “attended” as the DiVecchios were present in their home at the time of the accident. See 75 Pa.C.S. § 3743(a); Odom, 204 A.3d at 436. It is beyond peradventure that Appellant knew or should have known that the accident caused damage to the house, as, by his own admission, he exited his vehicle and examined the scene to ensure that no one was hurt. Furthermore, while Appellant fulfilled his duty to “immediately stop . . . at the scene of the accident,” the Commonwealth demonstrated that he did not “remain at the scene of the accident until he ha[d] fulfilled” his duty to provide his “name, address and the registration - 13 - J-S29035-22 number of the vehicle he is driving” to the DiVecchios.6 75 Pa.C.S. §§ 3743(a), 3744(a). Therefore, the Commonwealth put forth sufficient evidence to show that Appellant violated Section 3743 when he was involved in an accident involving damage to attended property, he knew or had reason to know of the extent of the damage that resulted from the accident, and he left the scene without complying with his duty to give information under Section 3744. Based on the foregoing, we agree with counsel that the issue concerning the sufficiency of the evidence of Appellant’s DUI—controlled substance and accidents involving damage to attended vehicle or property convictions is wholly frivolous. In addition, we have reviewed the certified record and have discovered no additional non-frivolous issues.7 Therefore, we grant counsel’s application to withdraw and affirm the judgment of sentence. ____________________________________________ 6 Although Appellant testified that he offered to let Mr. DiVecchio take photographs of his “driver’s license and things like that,” N.T., 10/11/21, at 80, Mr. DiVecchio’s testimony that Appellant never spoke to him and never offered any information or documents to him was sufficient for the Commonwealth to meet its burden to show that Appellant failed to comply with his duty to give information. Id. at 18-19, 23. 7 We note that sufficient evidence was presented to support Appellant’s summary conviction for accidents involving damage to unattended vehicle or property under Section 3745 of the Vehicle Code, 75 Pa.C.S. § 3745(a), because Appellant left the scene of the accident without providing the DiVecchios with his name, address, registration, and insurance information and Mrs. DiVecchio’s unoccupied, parked car was an unattended vehicle under our caselaw. See Cornell, 607 A.2d at 803. Furthermore, although our Supreme Court has held that the unit of prosecution for the related hit-and-run offenses set forth in Sections 3742, (Footnote Continued Next Page) - 14 - J-S29035-22 Judgment of sentence affirmed. Application to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 ____________________________________________ 3743, and 3745 is the act of leaving the scene of the accident without fulfilling one’s statutory duties and therefore an individual can only be sentenced for a single violation per accident, Satterfield, 255 A.3d at 447-51, there is no issue here concerning the legality of Appellant’s sentence as the trial court imposed no further punishment for the summary Section 3745 conviction. We additionally note that Appellant would not have been able to raise an issue with respect to the validity of his second hit-and-run conviction on appeal as he did not preserve that issue prior to the verdict. See id. at 442 n.4 (validity of second and third Section 3742 convictions could not be addressed by Supreme Court because it was not preserved at the trial court level); Commonwealth v. Hill, 238 A.3d 399, 408-09 (Pa. 2020) (appellant waived any complaint regarding second DUI conviction for one incident as that issue “should have been presented, at the latest, when the trial court reached its verdict”); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (while “this Court will overlook certain procedural deficiencies in appellant court fillings to ensure that Anders counsel has not overlooked non- frivolous issues,” we are not permitted “to address issues that were not properly preserved in the trial court”). - 15 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484692/	2022 IL App (1st) 221582 SECOND DIVISION November 17, 2022 No. 1-22-1582 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ ILLINOIS ROAD AND TRANSPORTATION ) BUILDERS ASSOCIATION, FEDERATION OF ) WOMEN CONTRACTORS, ILLINOIS ) ASSOCIATION OF AGGREGATE PRODUCERS, ) ASSOCIATED GENERAL CONTRACTORS OF ) ILLINOIS, ILLINOIS ASPHALT PAVEMENT ) ASSOCIATION, ILLINOIS READY MIXED ) Appeal from the CONCRETE ASSOCIATION, GREAT LAKES ) Circuit Court of CONSTRUCTION ASSOCIATION, AMERICAN ) Cook County COUNCIL OF ENGINEERING COMPANIES ) (ILLINOIS CHAPTER), CHICAGOLAND ) ASSOCIATED GENERAL CONTRACTORS, ) 18 CH 02992 UNDERGROUND CONTRACTORS ASSOCIATION ) OF ILLINOIS, and ILLINOIS CONCRETE PIPE ) ASSOCIATION, ) Honorable ) Alison C. Conlon, Plaintiffs-Appellants, ) Judge Presiding ) v. ) ) THE COUNTY OF COOK, a Body Politic and Corporate, ) ) Defendant-Appellee. ) _____________________________________________________________________________ JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion. OPINION ¶1 In 2016, Illinois voters approved the “Safe Roads Amendment” to the Illinois Constitution, codified in Article IX, section 11. See Ill. Const. 1970, art. IX, § 11. Broadly speaking, the Amendment mandates that, when the government collects revenue from No. 1-22-1582 transportation-related fees and taxes, it may only spend that revenue for transportation-related purposes. ¶2 Plaintiffs sued Cook County, claiming that the County was violating the Amendment by spending transportation-generated revenue for non-transportation purposes. See Illinois Road and Transportation Builders Association v. County of Cook, 2022 IL 127126, ¶¶ 4-5. Cook County’s principal response was that the Amendment did not apply to home-rule units of local government such as Cook, an argument that persuaded the circuit and appellate courts but not our supreme court. Id. ¶ 60. The supreme court held that the Amendment governed the spending of home-rule units like Cook County, too, and remanded the cause to the circuit court for further proceedings. Id. ¶ 62. ¶3 Back in the circuit court two months later—July 2022—plaintiffs moved for a preliminary injunction against the County, claiming that, in its upcoming budget for Fiscal Year 2023 (which begins on December 1, 2022), the County planned “to continue its longstanding practice of depositing revenues generated by the Cook County Transportation Taxes into the County’s Public Safety Fund.” The County had not yet passed budget legislation for Fiscal Year 2023, but plaintiffs pointed to the County’s budget forecast documents to show that it intended to continue spending money in the same way it did before the supreme court’s decision. ¶4 Plaintiffs sought an order “preliminarily enjoining the County from diverting revenue generated by the following taxes and fees to the Public Safety Fund or to any other non- transportation purpose in its Fiscal Year 2023 Budget: (i) the Cook County Home Rule County Use Tax; (ii) the Cook County Retail Sale of Gasoline and Diesel Fuel Tax; (iii) the Cook County New Motor Vehicle and Trailer Excise Tax; (iv) the Cook County Home Rule Use Tax -2- No. 1-22-1582 for Non-Retailer Transfers of Motor Vehicles; (v) the Cook County Wheel Tax on Motor Vehicles; and (vi) the Cook County Parking Lot and Garage Operations Tax.” ¶5 The County raised several arguments in response. As to plaintiffs’ likelihood of success on the merits, among other things, the County argued that “the Fiscal Year 2023 budget is being developed in light of the Supreme Court’s recent ruling,” and the County had “no intention of adopting a Fiscal Year 2023 budget that does not comply with the law.” The County repeatedly pointed out that the budget process was “ongoing.” ¶6 As to the issue of irreparable harm, the County more or less returned to this same theme, that the budget had not yet been implemented, so the motion was based on speculation: “Plaintiffs’ conjecture as to what the County may do in the future is insufficient to demonstrate a risk of irreparable harm.” ¶7 In reply, plaintiffs argued that the County’s preliminary budgeting documents were premised on an “unreasonable” interpretation of the Amendment. While recognizing that they were concerned with “preliminary” budgeting, they claimed an injunction was necessary because the County had shown no intention of complying with the Amendment. ¶8 The circuit court held a hearing. The parties presented testimony about the County’s budgeting process and whether its preliminary budget documents complied with constitutional requirements. We need not delve deeply into that testimony, as we resolve this appeal on a more fundamental ground. Suffice it to say that the parties each presented opinion witnesses who had very different ideas about whether the County’s budget plans would comply with the Amendment. ¶9 The court denied the motion. On the likelihood of success on the merits, the court found that plaintiffs had failed to show that the County “will use Transportation Tax Revenues in FY23 -3- No. 1-22-1582 in ways that violate the Amendment.” As to risk of irreparable harm, the court found that any harm was “speculative” in light of plaintiffs’ failure to prove the County would spend the money inappropriately. ¶ 10 The day after the circuit court denied the motion for preliminary injunction—October 20, 2022—plaintiffs filed their notice of appeal. Briefing was expedited under Illinois Supreme Court Rule 307(c) (eff. Nov. 1, 2017) and concluded on November 16. ¶ 11 It bears noting that, during all this time from July to October 2022, and even by the time briefing before this court had concluded on November 16, the County had not yet enacted its budget ordinance for Fiscal Year 2023, which begins on December 1, 2022. ¶ 12 Given the circumstances, we have endeavored to release this opinion in as expedited a manner as possible. ¶ 13 One of the principal arguments of the County in opposition to plaintiffs’ motion is that plaintiffs are complaining about legislation that has not yet become law. It is on that point that we decide this appeal. ¶ 14 In their motion for preliminary injunction, plaintiffs predict that, based on budget forecasting documents for FY23 produced by the County, “the County will continue to divert revenues generated from the Cook County Transportation Taxes to purposes other than transportation, as it did in Fiscal Years 2017- 2022.” Based on that prediction, plaintiffs pray for an order enjoining the County “from diverting revenue generated by the [certain enumerated] taxes and fees to the Public Safety Fund or to any other non-transportation purpose in its Fiscal Year 2023 Budget *.” ¶ 15 There are two interrelated problems with the relief plaintiffs request. The first is that a court cannot and should not review the constitutionality of pending legislation. There is no such -4- No. 1-22-1582 thing as an unconstitutional bill—only an unconstitutional law. Until that legislation carries the force of law, the constitutionality of that legislation is not ripe for adjudication. See Smart Growth Sugar Grove, LLC v. Village of Sugar Grove, 375 Ill. App. 3d 780, 789 (2007); State ex rel. Althouse v. City of Madison, 55 N.W.2d 449, 456 (Wis. 1977) (“A court cannot deal with the question of constitutionality until a law has been duly enacted and some person has been deprived of his constitutional rights by its operation.” (Internal quotation marks omitted.)); Zukerberg v. District of Columbia Board of Elections & Ethics, 999 F. Supp. 2d 79, 86 (D.D.C. 2013) (no matter how likely bill’s passage, “[t]he full legislative process must still be completed,” resulting in enacted law, before question of constitutionality is ripe for review). ¶ 16 And for good reason: A piece of legislation is subject to change throughout the legislative process. It can be amended within the legislative body. It might pass and it might fail to pass. And if it passes, in many cases, the chief executive may veto, amendatorily veto, or line-item veto that legislation. The legislative body may then accept or override any veto. ¶ 17 Indeed, here, it was not certain, in September and October 2022, that the Cook County Board of Commissioners would adopt a budget ordinance precisely in line with the budget recommendations submitted by the County Board President and her various departments—or that it would adopt a budget ordinance at all. Nor, for that matter, was it certain that the County Board President would approve in full any such ordinance, as the president has the authority to approve, veto, or line-item veto any appropriation ordinance presented to her. See 55 ILCS 5/2- 6008 (West 2022). And the County Board may then either acquiesce in that veto or override it by super-majority vote. Id. ¶ 18 None of this legislative action sets anything in stone until the legislative process, including any relevant executive action, is complete—and only then if that completed process -5- No. 1-22-1582 results in an enacted law. Only an enacted statute (at the state level) or ordinance (at the local level) has the force of law, binding the government and affecting the rights of citizens. See Growth Sugar Grove, 375 Ill. App. 3d at 789. Only then may a court intervene to determine the constitutionality of that legislative act. Id. ¶ 19 Imagine were it otherwise. There are, for example, typically thousands of bills pending before the Illinois General Assembly at any given time at various stages of the process; at the moment of this writing, there are over four thousand senate bills and nearly six thousand house bills pending. See https://www.ilga.gov/legislation/default.asp. (site last visited 11/10/22). Under plaintiff’s theory, we could review the constitutionality of any of those bills pre-enactment, regardless of whether they had just been introduced or were sitting on the governor’s desk, regardless of whether amendments had been filed or would have been filed to substantively alter those bills. It is for good reason that the ripeness doctrine forbids the judiciary from meddling in pre-enactment legislation. ¶ 20 Plaintiffs, who directly addressed the ripeness question, at our request, in their reply brief, would have us view their legal maneuver differently. They claim that they are not seeking a pre-enactment adjudication of an ordinance’s constitutionality but, rather, simply an order that the County comply with the Amendment when adopting that ordinance. ¶ 21 But on closer scrutiny, that is saying the same thing a different way. After all, as the arguments have played out, both below and on appeal, plaintiffs have not limited their request to ordering the County to “comply with the Amendment” or “not violate the constitution.” Their argument is that the way in which the County is preparing its budget documents—which the County insists is compliant—is not, in fact, compliant with the Amendment. They are asking a court, in other words, to agree with them that the current manner in which the County is -6- No. 1-22-1582 preparing its budget will result in an appropriations ordinance that violates the Amendment, thus prompting the need for preliminary injunctive relief to ensure that the County enacts a constitutional version. To pretend that a court could grant such relief without substantively considering the constitutionality of the County’s unenacted plan for budgeting is folly. ¶ 22 Indeed, that is precisely what happened below. The circuit court heard opinion testimony from both sides and determined that the County’s spending plan likely would satisfy the Amendment if enacted into law, and thus plaintiffs had not shown a likelihood of success on the ultimate merits. The circuit court prejudged the constitutionality of a future law, at least on a preliminary basis. ¶ 23 As one commentator wrote a decade ago about the United States Supreme Court: “[T]he Supreme Court will not consider whether potential legislative or executive action violates the Constitution when such action is proposed. * So, if a legislative coalition wishes to enact a law that might plausibly be struck down * it must form its own estimation of whether the proposal is constitutional but cannot know for certain how the Court will ultimately view the law.” Note, Advisory Opinions and the Influence of the Supreme Court over American Policymaking, 124 Harv. L.Rev. 2064, 2064 (2011), quoted in Zukerberg, 999 F. Supp. 2d at 86. ¶ 24 Though ripeness principles do not always translate one-for-one from federal court to Illinois law, this sentiment is directly in line with Illinois law. If we accepted plaintiffs’ invitation to order the County, pre-enactment, to adopt an appropriations ordinance that complies with the constitution, with specificity on what that ordinance should and should not contain to accomplish that result, we would be rendering an advisory opinion on the substantive content of future legislation. See, e.g., Smart Growth Sugar Grove, 375 Ill. App. 3d at 789 (validity of -7- No. 1-22-1582 village’s comprehensive zoning plan, which was not ordinance and lacked force of law, was not ripe for review and “would require us to provide the sort of advisory opinion or legal advice about future events that we may not provide”); State ex rel. Wagner v. Evnen, 948 N.W.2d 244, 252 (Neb. 2020) (“[a]n opinion on the substantive challenge [to legislative measure] based on the contingent future event of the measure’s passage would be merely advisory.” (Internal quotation marks omitted.)). ¶ 25 Related to the ripeness problem is the flagrant separation-of-powers concern that plaintiffs’ motion raises. Even if we accepted plaintiffs’ argument that they are not seeking a predetermination of constitutionality but, rather, simply an order that the County do or not do something in its FY23 appropriations ordinance so that it satisfies the constitution, the court is being asked to meddle into the legislature’s exclusive domain of drafting and enacting laws, a line the judiciary cannot cross. As our supreme court has noted in reviewing previous action of Cook County government, “ ‘[t]he legislative department determines what the law shall be, * and the judicial department construes and applies the law.’ ” People ex rel. Hansen v. Phelan, 158 Ill. 2d 445, 451 (1994) (quoting Fergus v. Marks, 321 Ill. 510, 513 (1926)). “In keeping with our constitutional mandate, the judiciary will not arrogate to ourselves the legislative function.” Id. at 451-52. ¶ 26 If we granted plaintiffs relief here, there would be no principled limitation to that unprecedented step. Take again those thousands of bills pending before the Illinois House and Senate currently, this time seen through plaintiff’s view of their requested relief. For any one of those bills, at any stage of the process, no matter how likely to pass, no matter the odds that the legislature itself might amend them, the judiciary could be called on to order the legislature to enact that bill in such a way that it “does not discriminate on the basis of race,” “does not -8- No. 1-22-1582 suppress free speech,” “does not establish a government religion,” or, perhaps more broadly yet, “does not violate the Constitution in any way”—along with suggestions on how the legislature should avoid those constitutional pitfalls. It is impossible to view that as anything but judges telling legislators how to write their laws. See Althouse, 55 N.W.2d at 456 (“no court has jurisdiction to enjoin the legislative process at any point,” and “no court has heretofore attempted to interfere with the right of the legislature to enact and put in force a law.” (Internal quotation marks omitted.)). ¶ 27 We recognize, of course, that it is very likely that the County will, in fact, adopt an appropriations ordinance for FY23, for the County could not operate without one. And it is quite likely, as plaintiffs insist in their Reply, that this ordinance will be written much in the way the County told the circuit court it planned to adopt it. But none of that makes a difference. It is still not ripe for our review until it has the force of law. See Zukerberg, 999 F. Supp. 2d at 86 (“just because [challenged legislation]’s passage is likely or even ‘inevitable’ does not mean it is ripe for review. *** The full legislative process must still be completed.”). Our pre-enactment review would be nothing but an advisory opinion. And anything we said about that unenacted legislation would be a gross encroachment on the legislature’s exclusive prerogative to enact laws. ¶ 28 We express no opinion whatsoever on the merits of the arguments raised by the parties about what the Amendment does or does not require of the County’s future appropriations ordinance for FY23. That question, at the moment, is beside the point. Plaintiffs’ motion for preliminary injunction, filed as it was before any ordinance was adopted, was premature and thus should have been rejected out of hand. As the circuit court denied that motion, we affirm that judgment, albeit on a different ground. ¶ 29 Affirmed. -9- No. 1-22-1582 Illinois Road & Transportation Builders Ass’n v. County of Cook, 2022 IL App (1st) 221582 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH- 2992; the Hon. Alison C. Conlon, Judge, presiding. Attorneys John M. Fitzgerald, Michael J. Grant, Amanda N. Catalano, Tae for Y. Kim, of Tabet DiVito & Rothstein LLC, of Chicago, for Appellant: appellants. Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Amy for Crawford, Jonathon D. Byrer, Assistant State’s Attorneys, of Appellee: counsel); Kenneth S. Ulrich, David E. Morrison, Rachel C. Steiner, W. Kyle Walther, Stacey E. Petrek, of Goldberg Kohn Ltd., of Chicago, Special Assistant State’s Attorneys, for appellee. - 10 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484693/	J-S17029-22 2022 PA Super 193 IN THE INTEREST OF: J.C. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.C. : : : : : : No. 2114 EDA 2021 Appeal from the Order Entered August 19, 2021 In the Court of Common Pleas of Monroe County Juvenile Division at No(s): CP-45-JV-0000171-2019 BEFORE: BOWES, J., LAZARUS, J., and STABILE, J. OPINION BY LAZARUS, J.: FILED NOVEMBER 17, 2022 J.C. appeals from the dispositional order, entered in the Court of Common Pleas of Monroe County, after J.C. made an admission to the crime of corruption of minors (COM)1 and was placed on one year of probation. Because a “child,” as defined by the Juvenile Act,2 is incapable of committing a crime that applies only to adult perpetrators, we are constrained to vacate and reverse. On August 17, 2019, Officer John P. Bohman, of the Pocono Mountain Regional Police Department, executed an affidavit of probable cause seeking ____________________________________________ 1 18 Pa.C.S.A. § 6301(a)(1)(i). 2 See 42 Pa.C.S.A. §§ 6301, et seq. J-S17029-22 an arrest warrant for then-fifteen-year-old J.C. (born 4/04).3 The affidavit alleged that J.C. had committed the delinquent acts of aggravated indecent assault without consent,4 indecent assault without consent of other,5 and open lewdness.6 The allegations stemmed from accusations made by A.A., a 14- year-old fellow high school classmate of J.C.’s. A.A. alleged that on May 8, 2019, J.C. touched her breasts and digitally penetrated her vagina without her consent while the two were riding on an after-school bus. Alleged video surveillance from the bus, on the date in question, was erased by the school district during a software update.7 A.A. reported the incident to the principal of her high school, who then contacted the school’s dean of students (Dean) and directed the Dean to meet with A.A. N.T. Suppression Hearing, 6/12/20, at 12-13. The Dean met with A.A., who detailed the events that occurred on the school bus, telling him that J.C. had “touched her in inappropriate and unwanted ways.” Id. at 13, 23. ____________________________________________ 3 For confidentiality reasons, we do not provide the exact birthdate of a minor. See Superior Court Internal Operating Procedure 424(A) (confidentiality issues regarding identification of minors in circulating Court decisions). 4 18 Pa.C.S. § 3125(A)(1). 5 Id. at § 3126(A)(1). 6 Id. at § 5901. 7 The Dean of Students at J.C. and A.A.’s high school testified he viewed the video footage from the bus on the day of the alleged incident. N.T. Suppression Hearing, 6/12/20, at 23. -2- J-S17029-22 The Dean then met8 with J.C., in the presence of the school’s assistant principal, to determine whether J.C.’s conduct violated school policy. Id. at 13-16. In addition to giving an oral recitation of what occurred between him and A.A. on the bus, J.C. also gave a written statement wherein he admitted to the alleged acts, but claimed that A.C. gave her consent. Id. at 15-16. Prior to giving his statements, J.C.’s parents were not notified and J.C. was not administered his Miranda9 rights. Following his investigation, the Dean concluded that a possible crime had been committed and contacted the school’s resource officer to report the alleged incident. Id. at 20-21. On January 2, 2020, the Monroe County District Attorney’s Office filed a petition alleging J.C.’s delinquency for the above-stated offenses. On February 18, 2020, J.C. filed a motion to suppress his oral and written statements, claiming he had been subjected to a custodial interrogation without first being advised of his Miranda rights or given an opportunity to speak with his parents. Following a hearing, the trial judge denied the suppression motion finding: (1) the school officials alone initiated the investigation of J.C.; (2) the purpose of questioning J.C. was primarily to determine whether a violation of school policy had occurred; and (3) the police ____________________________________________ 8 The meeting took place in the assistant principal’s office. Id. at 17. However, at the conclusion of the meeting, J.C. completed a Major Behavioral Referral (Form), at the behest of the Dean, in the Dean’s office. The Form, signed by a school district official and the student, details the infraction and is entered into the school’s disciplinary system. Carbon copies are mailed to the student’s family. Id. at 31-34. 9 Miranda v. Arizona, 384 U.S. 436 (1966). -3- J-S17029-22 neither participated in, coerced, dominated, or directed the school officials’ actions. See Order Denying Suppression Motion, 9/22/20, at 2. On July 1, 2021,10 J.C. filed a motion for dismissal, claiming that the Commonwealth’s failure to provide the video surveillance was a Brady11 violation warranting dismissal of his case, with prejudice. On July 7, 2021, J.C. executed a four-page written “admission colloquy form,” admitting to COM, a first-degree misdemeanor. See Pa.R.J.C.P. 407. After an adjudicatory hearing, during which the court conducted an oral colloquy, the court accepted J.C.’s admission,12 finding that it was voluntarily ____________________________________________ 10 Several continuances were granted, thus delaying J.C.’s adjudication. In particular, J.C. requested continuances due to the resurgence of COVID-19 in New York City, where he and his parents reside, his counsel’s inability to schedule interviews due to “interstate travel protocols and . . . counsel’s personal concerns about being at higher risk from COVID-19 due to being a sufferer of asthma,” and J.C.’s mother’s contraction of COVID-19. Motion for Continuance, 10/29/20, at ¶¶ 3-4. See also id., 11/30/20, at ¶ 4 (defense requesting continuance due to J.C. contracting COVID-19); id., 4/28/21, at ¶ 3 (continuance requested due to counsel contracting COVID-19). See also Commonwealth’s Motion to Continue, 2/22/21 at ¶ 4 (Commonwealth noting it was unable to contact A.A. or her family, who were necessary witnesses at adjudicatory hearing). 11 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). 12 Pursuant to Pennsylvania Rule of Juvenile Court Procedure: (a) Before the court can accept an admission, the court shall determine that the admission is knowingly, intelligently, and voluntarily made. (Footnote Continued Next Page) -4- J-S17029-22 made. See N.T. Adjudicatory Hearing, 7/7/21, at 18-28. In exchange for J.C.’s admission, the Commonwealth agreed to nolle prosse all other charges. The juvenile court ordered a Social Study Report be prepared pursuant to Pa.R.J.C.P. 513(A). See Pa.R.J.C.P. 120 (defining social study as “pre- dispositional report, which summarizes important information concerning the juvenile to aid the court in determining the disposition”). On August 19, 2021, following a dispositional hearing, J.C. was adjudicated delinquent and ordered to serve one year of probation13 and complete the following: (1) perform 50 hours of community service; (2) provide a DNA sample and fingerprints; and ____________________________________________ (b) As a part of this determination, the court shall ensure: (i) an attorney has reviewed and completed the admission colloquy with the juvenile pursuant to paragraph C; and (ii) there is a factual basis for the admission. Pa.R.J.C.P. 407(1)(a-b) (emphasis added). Here, the court stated the following as the factual basis for J.C.’s admission: “this juvenile[, J.C.,] and another juvenile[, A.A.,] were on a bus and there was sexual contact, which the victim[, A.A.,] indicated [] was unwanted.” N.T. Adjudicatory Hearing, 7/7/21, at 28 (emphasis added). We note that the juvenile was never initially alleged to have been delinquent of COM, but, rather, was alleged to have been delinquent of the above-enumerated offenses. See supra at 2. However, the Commonwealth later stated on the record that it was not moving on those initial offenses, but was amending the delinquency petition to include COM. See N.T. Adjudicatory Hearing, 7/7/21, at 30-31. 13J.C.’s probation was transferred to Kings County, New York, where his parents reside. -5- J-S17029-22 (3) undergo a Sexual Offender Evaluation. The court further denied J.C.’s motion to dismiss.14 On August 30, 2021, J.C. filed a post-dispositional motion objecting to the Sexual Offender Evaluation he was ordered to complete, the DNA sample he was required to produce, and alleging a Brady violation due to the failure to preserve the school bus surveillance video. See Pa.R.J.C.P. 620. The motion was denied on September 17, 2021, following a hearing. J.C. filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. J.C. presents the following issues for our consideration: (1) Whether the [j]uvenile [c]ourt abused its discretion in denying [J.C.’s] motion to suppress statement, where [J.C.] was a minor questioned by a school official who[,] while acting as an agent of the police, failed to administer Miranda warnings and contact [J.C.’s] parents prior to conducting a coercive custodial interrogation, in violation of [J.C.’s] constitutional rights against self[-]incrimination and to have counsel present during questioning, respectively[,] under the Fifth and Sixth Amendments to the United States Constitution, and Article [I], Section 9[,] of the Pennsylvania State Constitution[.15] ____________________________________________ 14 In his post-dispositional motion, J.C. states that he withdrew his motion to dismiss. See Post-Dispositional Motion, 8/30/21, at ¶ 9. 15 We note that because the filing of post-dispositional motions in juvenile matters is optional, J.C. has not waived his claim regarding the failure to suppress his pre-adjudication statement under Miranda, where he filed a pre- adjudicatory suppression motion and also included it in his Pa.R.A.P. 1925(b) statement. See Pa.R.J.C.P. 620, Comment (“When properly raised before or during a hearing, a claim will be deemed preserved for appeal and the party (Footnote Continued Next Page) -6- J-S17029-22 (2) Whether the [j]uvenile [c]ourt abused its discretion in denying [J.C.’s] post[-]dispositional motion to vacate his guilty plea to [COM], which was a manifest injustice, where the Commonwealth failed to preserve video of the alleged incident, thereby prejudicing [J.C.’s] right to due process[.] (3) Whether the [j]uvenile [c]ourt abused its discretion in ordering that [J.C.] undergo a sexual evaluation, where the juvenile was not adjudicated delinquent for [a] sexually[-] related felony or misdemeanor offense[.] (4) Whether the [j]uvenile [c]ourt abused its discretion in ordering that a DNA sample be drawn from [J.C.] by law enforcement, where [J.C.] was not convicted of a felony offense, or the misdemeanor offenses of luring a child into a motor vehicle, 18 Pa.C.S.A. [§] 2910, or indecent assault, 18 Pa.C.S.A. [§] 3125[.] Juvenile’s Brief, at 5 (bold and italics added). Before we review J.C.’s claims, we sua sponte raise the issue of the legality of his disposition based on whether the offense for which he was adjudicated delinquent is a delinquent act within the jurisdiction of the juvenile court. See Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001) (challenge to legality of sentence is non-waivable that court can raise and address sua sponte); see also In re J.A., 107 A.3d 799, 809 n.11 (Pa. Super. 2015) (questions of jurisdiction may be raised sua sponte) (citation omitted). ____________________________________________ need not file a post-dispositional motion solely for the purpose of preservation.”); see, e.g., Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issues not raised in Rule 1925(b) statement will be deemed waived). However, in light of our disposition, discussed infra, we need not address this claim. -7- J-S17029-22 Our legislature has created a separate legal system for the adjudication of juvenile offenders. In re Huff, 582 A.2d 1093, 1098 (Pa. Super. 1990); see also 42 Pa.C.S § 6301(b)(2) (purpose of Juvenile Act is “to provide for children committing delinquent acts programs of supervision, care and rehabilitation[,] which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community”) (emphasis added). The Juvenile Act (Act) grants jurisdiction to the juvenile court over proceedings in which a child is alleged to be delinquent or dependent. Id. at § 6303. See Commonwealth v. J.H.B., 760 A.2d 27, 30 (Pa. Super. 2000) (“The Juvenile Act . . . ‘encompasses the entire statutory scope of authority and discretion of the juvenile court to exercise jurisdiction over children as defined by the act.’”). In order to adjudicate a child delinquent, the juvenile court16 must (1) determine that the juvenile has committed a delinquent act and (2) determine that the juvenile requires treatment, supervision, or rehabilitation. See In the Interest of M.W., 39 A.3d 958 (Pa. 2012). A determination that a child has committed a delinquent act does not, on its own, warrant an adjudication of delinquency. See id. The Act defines a “Child” as “[a]n individual who”: ____________________________________________ 16 Notably, the Juvenile Court loses jurisdiction over an individual when they attain the age of majority. See Commonwealth v. Taylor, 230 A.2d 1050, 1060 (Pa. 2020), citing In re Jones, 246 A.2d 356, 363 n.5 (Pa. 1968). -8- J-S17029-22 (1) is under the age of 18 years; (2) is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years; or (3) is under the age of 21 years and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is: (i) completing secondary education or an equivalent credential; (ii) enrolled in an institution which provides postsecondary or vocational education; (iii) participating in a program actively designed to promote or remove barriers to employment; (iv) employed for at least 80 hours per month; or (v) incapable of doing any of the activities described in subparagraph (i), (ii), (iii) or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child. Id. at § 6302 (emphasis added). Additionally, the Act defines a “Delinquent Act” as: (1) [A]n act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or an act which constitutes indirect criminal contempt under Ch. 62A (relating to protection of victims of sexual violence or intimidation) with respect to sexual violence or 23 Pa.C.S. Ch. 61 (relating to protection from abuse) or the failure of a child to comply with a lawful sentence imposed for a summary offense, in which event notice of the fact shall be certified to the court. (2) The term shall not include: (i) The crime of murder. (ii) Any of the following prohibited conduct where the child was 15 years of age or older at the time of the alleged -9- J-S17029-22 conduct and a deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used during the commission of the offense which, if committed by an adult, would be classified as: (A) Rape as defined in 18 Pa.C.S. § 3121 (relating to rape). (B) Involuntary deviate sexual intercourse as defined in 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse). (C) Aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault). (D) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery). (E) Robbery of motor vehicle as defined in 18 Pa.C.S. § 3702 (relating to robbery of motor vehicle). (F) Aggravated indecent assault as defined in 18 Pa.C.S. § 3125 (relating to aggravated indecent assault). (G) Kidnapping as defined in 18 Pa.C.S. § 2901 (relating to kidnapping). (H) Voluntary manslaughter. (I) An attempt, conspiracy or solicitation to commit murder or any of these crimes as provided in 18 Pa.C.S. § 901 (relating to criminal attempt), 902 (relating to criminal solicitation) and 903 (relating to criminal conspiracy). (iii) Any of the following prohibited conduct where the child was 15 years of age or older at the time of the alleged conduct and has been previously adjudicated delinquent of any of the following prohibited conduct which, if committed by an adult, would be classified as: (A) Rape as defined in 18 Pa.C.S. § 3121. (B) Involuntary deviate sexual intercourse as defined in 18 Pa.C.S. § 3123. - 10 - J-S17029-22 (C) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii). (D) Robbery of motor vehicle as defined in 18 Pa.C.S. § 3702. (E) Aggravated indecent assault as defined in 18 Pa.C.S. § 3125. (F) Kidnapping as defined in 18 Pa.C.S. § 2901. (G) Voluntary manslaughter. (H) An attempt, conspiracy or solicitation to commit murder or any of these crimes as provided in 18 Pa.C.S. § 901, 902 and 903. (iv) Summary offenses. (v) A crime committed by a child who has been found guilty in a criminal proceeding for [something] other than a summary offense. 42 Pa.C.S. § 6302 (emphasis added). See Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. 2007) (enumerated section 6302 crimes deemed so heinous that they are not considered delinquent acts under statute and are appropriately filed with criminal court where exclusive jurisdiction vests and is presumptively proper). Instantly, J.C. entered an admission to COM, in violation of 18 Pa.C.S. § 6301(a)(1)(i), “an act designated a crime under the laws of this Commonwealth.” 42 Pa.C.S. § 6302(1). In order to sustain a misdemeanor conviction for COM, the Commonwealth must prove: (a) Offense defined. (1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or - 11 - J-S17029-22 encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree. 18 Pa.C.S. § 6301(a)(1)(i) (emphasis added). Statutes like section 6301 are designed to cover a broad range of conduct in order to safeguard the welfare and security of our children, “plac[ing] the guardianship of their morality upon adults.” Commonwealth v. Decker, 689 A.2d 99, 101 (Pa. Super. 1997) (emphasis added) (citation omitted); Commonwealth v. Collin, 335 A.2d 383, 386 (Pa. Super. 1975) (same). Section 6301, by its plain language, seeks to prevent prohibited actions between minors and individuals 18 years or older, otherwise defined as an adult. See id. at 386 (“any depraved adult who participates in the corruption of children must do so at his own risk”) (emphasis added) (citation omitted); see also Commonwealth v. Meszaros, 168 A.2d 781, 782 (Pa. Super. 1961)17 (stating COM’s predecessor statute, 18 Pa.C.S. § 4532, “forbids any act by an adult which tends to or actually does corrupt the morals of a child”) (emphasis added); Commonwealth v Blauvelt, 140 A.2d 463, 467 (Pa. Super. 1958) ( “[t]he terms of the proscription are clear[—]no adult may with impunity engage in conduct with a minor which has the effect of corrupting the morals of the child”) (emphasis added). Therefore, by ____________________________________________ 17 In Meszaros, supra, our Court noted that the reputation of the minor, like consent, is irrelevant with regard to a COM charge, where the statute “has . . . removed children from the area of responsibility for their own fault.” Id. - 12 - J-S17029-22 definition, a “Child” under the Act is incapable of committing the crime of COM where the statute requires that the perpetrator be at least 18 years old. Here, the Monroe County Juvenile Court Docket and “Juvenile Information” lists J.C.’s date of birth as April 2004. Thus, the record supports the fact that J.C. was 15 years old at the time he committed the alleged offense and, by definition, a “child” under the Act. Because J.C. was still a minor at the time of the alleged incident, the first prong of the M.W. test— commission of a delinquent act (an essential element of the crime)—could never have been met. See Commonwealth v. Iafrate, 594 A.2d 293 (Pa. 1991) (holding that, for purposes of the Act, birthday occurs on anniversary of date of birth). In In the Interest of R.A., 761 A.2d 1220 (Pa. Super. 2000), our Court noted the difference between juveniles charged with committing delinquent acts and adults charged with committing crimes, stating: It is true that juvenile courts concern themselves with acts which would be considered criminal if they were committed by adults. Our Legislature, however, has seen fit through the Juvenile Act to authorize separate non-criminal proceedings to adjudicate these matters, precisely because the perpetrators are not adults. As noted above, these proceedings are materially different from criminal proceedings in many respects. Moreover, if the Legislature sees fit to extend Section 4954 to juvenile proceedings, it is certainly free to do so. At present, however, we are constrained by the plain language of the statute itself to limit [s]ection 4954 to criminal matters. Id. at 1225 (emphasis added). As it is clear that juvenile proceedings are reserved for individuals who are “not adults,” id., it logically follows that - 13 - J-S17029-22 crimes that can only be committed by adults do not fall within the class of offenses subject to a juvenile adjudication under the Act. Simply put, where a crime under the law of this Commonwealth requires the perpetrator be an adult, such offenses cannot be deemed delinquent acts within the jurisdiction of the juvenile court. See Pa.R.J.C.P. 120 (defining “adult” as “any person, other than a juvenile, eighteen years or older”), but see id. (defining “minor” as ”any person, other than a juvenile, under the age of eighteen”).18 In the instant case, the juvenile court undeniably had jurisdiction over J.C. where the affidavit of probable cause and adjudicatory petition alleged that, as a juvenile, he committed aggravated indecent assault without consent, indecent assault without consent of other, and open lewdness—all delinquent acts under the Act. However, once the Commonwealth agreed to nolle prosse all of those offenses in exchange for J.C.’s execution of an “admission colloquy form,” admitting to COM, the juvenile court was no longer ____________________________________________ 18 At first blush, this issue may appear to involve the sufficiency of the evidence to prove COM—specifically, the following element: “whoever, being of the age of 18 years and upwards.” 18 Pa.C.S. § 6301(a)(1)(i). However, because of the fact that a juvenile can never be “of the age of 18 years and upwards,” it is a legal impossibility. Thus, this is a legality of disposition issue, not merely one of evidentiary sufficiency. See In re D.S., 903 A.2d 582, 586 (where juvenile court lacked subject matter jurisdiction, all juvenile proceedings that took place so far were legally invalid); see also Commonwealth v. Prinkey, 277 A.3d 554, 563-64 (Pa. 2022) (legality of sentence claim is characterized as one where “the result would be that the trial court lacked the authority to impose the sentence at issue[; c]onversely, if the challenge is not to the existence of certain authority but to the exercise of that authority,” then challenge goes to discretionary aspects of sentence, not legality). - 14 - J-S17029-22 vested with subject matter jurisdiction to adjudicate that offense under the Act. Thus, my learned colleague is incorrect in her statement that “none of the components of J.C.’s disposition exceeds the juvenile court’s authority,” Concurring Opinion, -----, at 10 n.5, where the essence of the juvenile court’s authority stems from its ability to adjudicate a child delinquent when it finds that the “acts ascribed to the child were committed by him.” See 42 Pa.C.S. § 6341(a). Where J.C. was incapable of committing the acts ascribed to him— namely, being of the age of 18 years and upwards—the court exceeded its jurisdictional authority. See also id. at § 6341(b) (court can only find child delinquent where “court finds on proof beyond reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent”). Moreover, this is not an instance where jurisdiction properly vests in the criminal court, which would be the case for those “heinous” crimes excluded from the list of delinquent acts in section 6302.19 Ramos, supra; In re D.S., supra; Commonwealth v. Potts, 673 A.3d 956, 958 (Pa. Super. 1996)(“[W]hile the prosecution of juvenile offenders is generally within the exclusive jurisdiction of the juvenile court,” juvenile court does not have ____________________________________________ 19 Notably, even in those rare cases where jurisdiction vests with the criminal court, if the juvenile proves that he or she “is amenable to treatment, supervision, or rehabilitation,” the case may be transferred to the juvenile court. Commonwealth v. Leatherbury, 568 A.3d 1313, 1315 (Pa. Super. 1990). Here, again, we are presented with the anomaly that neither the juvenile court nor the criminal court has jurisdiction to adjudicate or prosecute a juvenile of COM. - 15 - J-S17029-22 exclusive jurisdiction in certain cases, such as when juvenile charged with murder); see 42 Pa.C.S. § 6322. The instant case presents a unique and rare situation because a juvenile can never be adjudicated delinquent for a crime under the Crimes Code, notwithstanding one excluded by 6302, which, by its very definition, can only apply to adult perpetrators. Cf. Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000) (“As amended in 1995, the Juvenile Act vests original jurisdiction in the criminal courts for specified violent felonies, e.g., rape, aggravated assault and robbery committed by minors aged fifteen or older who either used a deadly weapon in the commission of the offense or were previously adjudicated delinquent for such crimes.”) (emphasis added); see id. at 220 (amendments provide mechanism for minor to prove to court that juvenile does not belong in criminal court). This case involves more than the trial court’s inability to “accept[ J.]C.’s admission to [COM].” See Concurring Opinion, --- , at 11. Specifically, it involves the inherent authority of the court to adjudicate J.C. delinquent of COM. As such, McIntyre is not dispositive. Unlike McIntyre, this is not a situation where a conviction was based on an unconstitutional statute. See id. at 6109 (finding unconstitutional statute void ab initio). Herein, the juvenile court implicitly lacked the jurisdiction to adjudicate any juvenile of COM because the offense simply cannot be classified as a delinquent act under the juvenile court’s jurisdiction. See In Interest of J.F., 714 A.2d 467, 470 - 16 - J-S17029-22 (Pa. Super. 1998) (“Any right to treatment as a juvenile is derived from statutory law and is defined by the legislature.”). Thus, because it is a legal impossibility for a “child” to commit the crime of COM, we conclude that the court illegally adjudicated J.C. delinquent of COM and entered a disposition on that adjudication. See Commonwealth v. Lee, 260 A.3d 208, 211 (Pa. Super. 2021) (“If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.”) (citation omitted); see generally Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022) (recognizing four broad types of legality of sentence challenges, including those where court lacks jurisdiction). Accordingly, we vacate and reverse. See Commonwealth v. Pinko, 811 A.2d 576, (Pa. Super. 2002); Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000) (issue of whether trial court possessed authority to impose particular sentence implicates legality of sentence).20 Dispositional order vacated. Adjudication of delinquency reversed. Appellant discharged. Jurisdiction relinquished.21 ____________________________________________ 20 We make no pronouncement as to whether J.C. can be subject to further action in the Juvenile Court or if this was the functional equivalent of a guilty plea. 21 Having determined J.C.’s disposition is illegal, we need not reach his appellate issues regarding his suppression motion, post-dispositional motion, or the court’s order requiring J.C. to undergo a sexual evaluation and submit a DNA sample. - 17 - J-S17029-22 Stabile, J., joins this Opinion. Bowes, J., files a Concurring Opinion. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 - 18 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484694/	J-S17029-22 2022 PA Super 193 IN THE INTEREST OF: J.C. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.C. : : : : : : No. 2114 EDA 2021 Appeal from the Order Entered August 19, 2021 In the Court of Common Pleas of Monroe County Juvenile Division at No(s): CP-45-JV-0000171-2019 BEFORE: BOWES, J., LAZARUS, J., and STABILE, J. CONCURRING OPINION BY BOWES, J.: FILED NOVEMBER 17, 2022 I agree with my learned colleagues’ decision to vacate the dispositional order and reverse the adjudication of delinquency. I write separately to emphasize that this case does not concern the juvenile court’s subject matter jurisdiction, which I believe the majority infers by discussing situations where the Juvenile Act expressly vested original jurisdiction in criminal courts. As the majority highlights, there are specific instances where the legislature placed original jurisdiction in the criminal court. However, this is not one of those cases. Rather, this appeal implicates the narrow question concerning a court’s authority to render a given decision in exercising its subject matter jurisdiction. Specifically, the issue is whether the juvenile court had the J-S17029-22 authority to accept J.C.’s admission1 to corruption of minors when the offense applies specifically to actors “the age of eighteen years and upwards.”2 See 18 Pa.C.S. 6301(a)(1)(i). More importantly, presuming that the juvenile court did, in fact, lack the authority to accept J.C.’s admission, may we grant relief sua sponte?3 For the reasons explained, infra, I believe we can address the dispositive issue sua sponte because J.C.’s admission to the commission of corruption of minors is void ab initio insofar as the juvenile court was not empowered to ____________________________________________ 1 An admission is the juvenile court corollary to a guilty plea and therefore cannot be accepted unless the court confirms “that the admission is knowingly, intelligently and voluntarily made.” Pa.R.J.C.P. 407(A)(1)(a); see also Rule 407 comment(“The admission colloquy is similar to a guilty plea colloquy in criminal court; however, the juvenile court judge has special responsibilities under the Juvenile Act in providing a balanced attention to the protection of the community, the imposition of accountability for delinquent acts committed, and the development of competencies to enable juveniles to become responsible and productive members of the community.”). 2 As the majority aptly observes, the Commonwealth’s delinquency petition alleged that J.C. committed aggravated indecent assault, indecent assault, and open lewdness, but the Commonwealth subsequently agreed to nolle prosse those charges in return for the juvenile’s admission to corruption of minors, which was designated amended count one in the delinquency petition. See N.T. Adjudicatory Hearing, 7/7/21, at 31. 3 Neither J.C., the Commonwealth, nor the juvenile court recognized that, based upon the elements of corruption of minors, a juvenile can never be adjudicated delinquent for that offense. The Majority characterized this situation as a “legal impossibility,” and differentiated it from the issue of evidentiary insufficiency. See Majority Opinion at 14, n.18. In my view, legal impossibility and insufficient evidence are coterminous concepts insofar as both principles concern the Commonwealth’s impossible burden of proving the elements of corruption of minors. Neither implicates subject matter jurisdiction. -2- J-S17029-22 accept an admission to an offense that is impossible for a child to commit. See e.g., Commonwealth v. McIntyre, 232 A.3d 609, 616 (Pa. 2020) (issue implicates legality “given that a trial court is not empowered . . . to sentence an individual for a non-existent criminal offense.”). Accordingly, I respectfully concur. First, I observe that the juvenile court’s subject matter jurisdiction over the delinquency proceedings is unassailable. The traditional concept of subject matter jurisdiction, “[a]lso termed jurisdiction of the subject matter” concerns the court’s authority to consider cases of a given nature and grant the type of relief requested. See Black’s Law Dictionary 857, 1413 (7th ed. 1999) (emphasis omitted). The Courts of Common Pleas have unlimited original jurisdiction except where a statute or rule has vested exclusive original jurisdiction in another Pennsylvania court. See 42 Pa.C.S. § 931(a); see also Const. art. V, § 5 (“There shall be one court of common pleas for each judicial district (a) having such divisions and . . . (b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.”). It is beyond cavil that “[t]his general grant of authority extends to juvenile delinquency matters, among many others.” Pennsylvania Juvenile Delinquency Benchbook (2018), at 3.4. The Juvenile Act applies exclusively to, inter alia, “[p]roceedings in which a child is alleged to be delinquent or dependent.” The act defines a delinquent child as “[a] child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, -3- J-S17029-22 supervision or rehabilitation.” 42 Pa.C.S. at § 6302. In this situation, a delinquent act “means an act designated a crime under the law of this Commonwealth,” other than murder. Id. (emphasis added). As the majority observes, since the enactment of the 1995 amendments to the Juvenile Act, the definition has not included enumerated violent offenses committed by a fifteen-year-old child (1) with a deadly weapon or (2) who has been previously adjudicated delinquent of an enumerated offense.4 Id. Thus, in these specified situations, “the Juvenile Act vests original jurisdiction in the criminal courts . . . .” Commonwealth. v. D.S., 903 A.2d 582, 584 (Pa.Super. 2006)(quoting Commonwealth v. Cotto, 753 A.2d 217, 219 (2000)). This principle is also ensconced in the Juvenile Act’s provisions regarding the transfer of matters to criminal courts for prosecution. (e) Murder and other excluded acts.—Where the petition alleges conduct which if proven would constitute murder, or any of the offenses excluded by paragraph (2)(ii) or (iii) of the definition of “delinquent act” in section 6302 (relating to ____________________________________________ 4As the High Court explained in Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000)), Prior to the amendments, those serious felonies initially came within the jurisdiction of the juvenile courts, subject to certification and transfer to adult court. The 1995 amendments reflect a legislative judgment that the most serious violent felonies should be treated in the same manner as murder charges, i.e., as adult crimes in adult court, at least in the first instance. Thus, the 1995 amendments explicitly excluded the enumerated offenses from the jurisdiction of the juvenile courts specifically because of the violence innate in the crimes. -4- J-S17029-22 definitions), the court shall require the offense to be prosecuted under the criminal law and procedures[.] 42 Pa.C.S. § 6355(e) (emphasis in original). Our High Court explained that “the Legislature has deemed [these] crimes so heinous” that it removed the offenses from the definition of delinquent act and conferred presumptive jurisdiction to the criminal court. Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa.Super. 2007). Accordingly, where an offense is excluded from the definition of a delinquent act, the charges may be transferred or filed directly in criminal court. See Cotto, supra at 219-20. Instantly, the Commonwealth’s delinquency petition alleged that fifteen year-old J.C. committed several delinquent acts, i.e. a “crime[s ]under the law of this Commonwealth” that are not specifically excluded from the statutory definition of delinquent act due to their heinous nature. Hence, it is beyond argument that the juvenile court had subject matter jurisdiction to confront the Commonwealth’s delinquency petition, rule on the merits of the matters at hand, and, if the allegations are proven beyond a reasonable doubt, adjudicate J.C. delinquent and craft an appropriate disposition best suited for the child’s treatment and consistent with the public interest. Clearly, there is no jurisdictional issue in this case. By invoking the legal framework addressed in Cotto, supra, Ramos, supra, and D.S., supra, the majority intimates that the juvenile court lacked subject matter jurisdiction in this case. Our High Court in Cotto upheld the constitutionality of the Juvenile Act’s provisions permitting the criminal -5- J-S17029-22 prosecution of a juvenile who was fifteen years old when he committed two armed robberies. In upholding the criminal court’s express jurisdiction in this situation, the Supreme Court reasoned, The fact that the legislature chose in the past to presumptively extend the benefits of the juvenile system to older juveniles charged with armed robbery and other serious violent offenses does not act as a constitutional restraint upon it to make a different judgment in response to changing societal conditions. It is no less the legislature's prerogative now to limit those benefits than it was to extend them in the first place. Id. at 224. Hence, the High Court recognize that the legislature carved explicit exceptions that removed specific violent offense from the jurisdiction of the juvenile courts. Similarly, in Ramos, supra at 1258, this Court observed that a criminal court had exclusive and presumptively proper jurisdiction over a seventeen- year-old’s prosecution for armed robbery because the offense was expressly “excluded from the Juvenile Act’s definition of a delinquent [act.]” We reasoned, “despite the fact that Appellant was seventeen at the time he committed his offenses, because he committed the predicate offense of robbery while possessing a deadly weapon, his crimes were not considered delinquent acts.” Id. Thus, “[the a]ppellant’s charges were directly filed with the criminal court where original exclusive jurisdiction vests and is presumptively proper.” Id. Finally, in D.S., we applied the express legislative exception to the definition of delinquent act to reverse a trial court’s refusal to transfer a -6- J-S17029-22 fifteen-year-old to criminal court for the prosecution of aggravated assault and robbery with a deadly weapon. Again, we reiterated, “[a]s amended in 1995, the Juvenile Act vests original jurisdiction in the criminal courts for specified violent felonies...committed by minors aged fifteen or older who use a deadly weapon in the commission.” D.S., supra at 584 (quoting Cotto, supra at 217). Hence, we concluded, “Because the offenses do not qualify as “delinquent acts,” [the] offenses must be prosecuted under the criminal law and procedures.” Id. at 586. While the majority acknowledges that corruption of minors is not one of the enumerated violent offenses that the legislature decided should be prosecuted in a criminal court, it relies upon legal authority that discusses that precise situation and implies that because it is impossible for a juvenile to commit corruption of minors, the juvenile court lacked subject matter jurisdiction in this case. See e.g., Majority Opinion at 13-14 (“[I]t logically follows that crimes that can only be committed by adults do not fall within the class of offenses subject to a juvenile adjudications under the [Juvenile] Act.”); Majority Opinion at 14, n.18 (relying upon In re D.S., supra, for the proposition “where juvenile court lacked subject matter jurisdiction, all juvenile proceedings that took place so far were legally invalid”); Majority Opinion at 16 (“The instant case presents a unique and rare situation because a juvenile can never be adjudicated delinquent for a crime under the Crimes Code, notwithstanding one excluded by 6302, which, by its very definition, -7- J-S17029-22 can only apply to adult perpetrators.”). This rationale blurs the juvenile court’s subject matter jurisdiction with its legal authority to accept J.C.’s admission to an offense that was impossible for the juvenile to commit. The majority’s reliance upon In re R.A., is equally unavailing. That case concerns whether a juvenile court had statutory authority to issue a protective order pursuant to 18 Pa.C.S. § 4954, when that provision of the Pennsylvania Crimes Code related to “Any court with jurisdiction over any criminal matter[.]” Recognizing the obvious differences between juvenile courts and criminal courts, we concluded, “the Legislature expressly limited the power to issue protective orders under § 4954 to courts with jurisdiction over criminal matters [and] because the juvenile court did not have jurisdiction over a criminal matter at the time that it issued the protective order, it lacked statutory authority to issue the order.” Id. at 1224. I do not share my colleagues’ view that this relatively straight-forward principle bears upon the juvenile court’s statutory authority over the juvenile petition in the case at bar. Thus, while it was patent legal error for the court to accept J.C.’s admission to an offense that was impossible for a juvenile to commit, the fact that J.C. admitted to the offense did not divest the juvenile court of subject matter jurisdiction. Regardless of the elements of the offense, corruption of minors is “an act designated a crime under the law of this Commonwealth” and because the offense was not specifically excised from the definition of a -8- J-S17029-22 delinquent act, jurisdiction does not rest in the criminal court. 42 Pa.C.S. § 6303 (defining delinquent act). Thus, to the extent that the import of the majority’s rationale sounds in subject matter jurisdiction, we cannot simply renounce the juvenile court’s jurisdiction over the juvenile delinquency proceeding because the offense that J.C. eventually admitted to committing included an element that is impossible to prove in a juvenile court. As the juvenile court’s subject matter jurisdiction over the delinquency proceedings is irrefutable, I next address whether we can raise the juvenile court error under the rubric of an “illegal sentence” when juvenile court’s do not impose sentences or punishments. Juvenile delinquency involves a two- step process: (1) whether the juvenile committed a delinquent act and is need of treatment, supervision or rehabilitation; and (2) the appropriate disposition to serve those needs. See 42 Pa.C.S. § 6341(b) (Finding of delinquency); 42 Pa.C.S § 6352(a) (Disposition of delinquent child) (“If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest and best suited to the child's treatment, supervision, rehabilitation and welfare[.]”). Thus, while it is well ensconced that this Court will address an illegal sentence sua sponte, it is less obvious whether this principle applies to juvenile dispositions, which are designed to balance the protection of public’s interest with the treatment, supervision, and rehabilitation of the -9- J-S17029-22 juvenile. Hence, this dynamic presents an ill-fitting analogy comparing the delinquency adjudication to an illegal sentence.5 Nevertheless, in light of our Supreme Court’s decision in McIntyre, supra, I agree with the majority’s ultimate conclusion that we may address the underlying issue sua sponte, albeit for reasons that do not interweave principles of subject matter jurisdiction. I summarize the High Court’s holding in McIntyre, as follows. McIntyre was convicted of failing to register as a sex offender under Megan’s Law III, which was subsequently deemed unconstitutional in its entirety because the legislature utilized an unconstitutional process to enacted it. McIntyre filed a PCRA petition raising unrelated claims of error, which was denied on the merits. He appealed to this Court, where he asserted for the first time that his conviction and sentence could not stand on an unconstitutional statute. We affirmed the denial of PCRA relief, finding the novel issue waived pursuant to Pa.R.A.P. 302 because McIntyre failed to present the claim to the PCRA court. Interpreting McIntyre’s claim as falling under the classification of an illegal sentence, our Supreme Court reversed our determination, found the statute void ab initio, and granted relief. Critically, in deeming the issue non- ____________________________________________ 5 An apt sentencing analogy would involve the legality of the disposition, i.e., whether the juvenile court exceeded its statutory authority in imposing probation, community service, the submission of DNA samples and fingerprints, and the directive to undergo a sexual offender evaluation. Instantly, none of the components of J.C.’s disposition exceeds the juvenile court’s authority. - 10 - J-S17029-22 waivable, the McIntyre Court reasoned, “there was no validly-enacted criminal statute on which the Commonwealth could base Appellant's conviction.” McIntyre, supra at 619. Phrased differently, the Supreme Court concluded that the “illegality” arose from the trial court proceeding on an inherently defective statute. Just as our High Court determined that the trial court in McIntyre lacked authority to impose a sentence, the juvenile court lacked the statutory authority to accept J.C.’s admission to committing corruption of minors because it was legally impossible for a juvenile to commit that offense. Thus, in the same manner that the Supreme Court deemed McIntyre’s conviction and sentence void ab initio in correcting the predicate error despite waiver under Rule 903, I believe that the juvenile court’s acceptance of J.C.’s admission to corruption of minors was inherently defective and facially invalid insofar as the offense cannot be committed by a minor. Thus, we may address the juvenile court’s error sua sponte and grant relief. See e.g., McIntyre, supra at 616 (issue concerns legality “given that a trial court is not empowered . . . to sentence an individual for a non-existent criminal offense.”) Accordingly, while I disagree with the portion of the majority’s rationale that sounds in subject matter jurisdiction, for the reasons explained above, I concur with the decision to address the trial court error sua sponte, vacate the dispositional order, and reverse the adjudication of delinquency. - 11 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484697/	J-S32018-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DWAYNE WRIGHT : : Appellant : No. 493 MDA 2022 Appeal from the PCRA Order Entered March 21, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004113-2018 BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 17, 2022 Appellant, Dwayne Wright, appeals from the March 21, 2022 order denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm. The PCRA court summarized the facts and procedural history of Appellant’s case, as follows: On June 12, 2018, Officers Jacob Bingham and Timothy Sinnot[] of the Lancaster City Bureau of Police (“LCBP”) were on patrol when they stopped a vehicle with an expired registration. The vehicle, a 2001 Ford Focus, was registered to Bruce Dates, who Officer Bigham [sic] later learned lived in Alabama. Officer Bingham approached the vehicle and spoke with the driver, [Appellant] Dwayne Wright, who provided Officer Bingham with photo identification. Officer Bingham ran [Appellant’s] identification and discovered that [Appellant’s] license was suspended. During the vehicle stop, Dispatch also informed Officer Bingham that [Appellant] had an outstanding warrant for a state parole violation. At that point, Officer Bingham and Officer Sinnot removed [Appellant] from his vehicle, placed him under arrest, and searched [Appellant’s] person. J-S32018-22 After [Appellant] was secured in the police cruiser, Officer Bingham conducted an inventory search of the Ford Focus and located a black jacket on the front passenger’s seat. ln the pocket of the black jacket, Officer Bingham found a clear plastic corner tie baggie containing cocaine. After finding the cocaine, Officers Bingham and Sinnot decided to obtain a warrant before searching the rest of the vehicle. Officer Bingham drove the vehicle to the police station and the [o]fficers obtained a search warrant for controlled substances. When Officers Bingham and Sinnot executed the search warrant, they found a bag in the trunk containing powder cocaine, crack cocaine, and a firearm. The [o]fficers then applied for a second search warrant for firearms, weapons, and ammunition. When executing the second search warrant, the officers seized approximately 50 grams of cocaine, marijuana and related paraphernalia, two pistols, ammunition for both pistols, and cash totaling approximately $1,579. [Appellant] was subsequently charged with two counts of firearms not to be carried without a license, two counts of possession with intent to deliver controlled substances, one count of person not to possess firearms, receiving stolen property, possession of drug paraphernalia, and driving while operating privileges are suspended or revoked. On September 5, 2018, [Appellant], through his attorney, Edwin Pfursich, Esq., filed a Motion to Suppress the physical evidence seized from the vehicle. In his Motion, [Appellant] argued that Officer Bingham’s initial inventory search was conducted in violation of Pennsylvania Constitution Article I, Sections 8 and 9, as well as the United States Constitution Amendments 4, 5, and 6, and that all evidence discovered during that search and the subsequent searches should be suppressed. [The trial court] held a hearing on [Appellant’s] Motion on November 15, 2018, during which the facts set forth above were established. Following the hearing, both [Appellant] and the Commonwealth submitted supporting briefs. After considering the factual record established during the hearing and the arguments of counsel, [the court] determined that although Officer Bingham’s inventory search was improper under 75 Pa.C.S.[] § 6309.2—which governs the proper procedures for immobilization, towing, storage, and impoundment of vehicles driven without a license or proper registration—the inventory search and all subsequent searches were nonetheless valid pursuant to the inevitable discovery doctrine. Consequently, -2- J-S32018-22 on February 27, 2019, [the court] denied [Appellant’s] Motion to Suppress. [Appellant] was thereafter found guilty on all counts at a stipulated bench trial. [The court] ordered a pre-sentence investigation and, after receiving the report, sentenced [Appellant] to seven and a half to twenty years[’] imprisonment. [Appellant] subsequently filed a Notice of Appeal challenging, among other things, [the] denial of his Motion to Suppress. On October 26, 2020, the Superior Court affirmed [the trial court’s] decision to deny [Appellant’s] Motion to Suppress[,] and on May 12, 2021, the Pennsylvania Supreme Court denied [Appellant’s] Petition for Allowance of Appeal. [See Commonwealth v. Wright, 241 A.3d 461 (Pa. Super. 2020) (unpublished memorandum), appeal denied, 253 A.3d 222 (Pa. 2021).] On July 17, 2021, [Appellant] filed the instant[,] pro se PCRA Petition. On August 10, 2021, [the court] appointed Christopher P. Lyden, Esq.[,] to represent [Appellant] and granted Attorney Lyden 60 days to file an amended petition. On September 23, 2021, Attorney Lyden filed a Motion to Extend Time to File Amended Petition. On September 27, 2021, [the PCRA court] granted Attorney Lyden 60 additional days to file an amended petition. On December 7, 2021, [Appellant], through Attorney Lyden, filed the instant[,] Amended PCRA Petition (hereinafter “Amended Petition”)[,] in which [Appellant] argued that Attorney Pfursich was ineffective for failing to call a key witness—[Appellant’s] mother, Jacklyn Draughn—during the November 15, 2018[] suppression hearing. [Appellant] contended that had Officers Bingham and Sinnot simply immobilized the vehicle without executing an unconstitutional, warrantless search, Ms. Draughn and Mr. Dates—the owner of the Ford Focus—were available to take the steps necessary to take possession of the vehicle before it was towed such that the vehicle would not have needed to be searched, negating the applicability of the inevitable discovery doctrine. In support of his argument, [Appellant] averred that although Ms. Draughn was present at the time of his arrest and approached Officers Bingham and Sinnot, the Officers refused to turn the Ford Focus over to her and instead drove the vehicle from the scene. [Appellant] also asserted that Ms. Draughn later went to the police station and was again denied access to the Ford Focus. Notably, although [Appellant] requested an evidentiary -3- J-S32018-22 hearing, he failed to include[,] as part of his Amended Petition[,] the witness certification required by 42 Pa.C.S.[] § 9545(d)(1). On December 8, 2021, [the court] issued an Order directing the Commonwealth to file a response to the Amended Petition and the Commonwealth filed a response on December 28, 2021. On February 1, 2022, [the court] issued a Notice of Intent to Dismiss the Amended Petition without a hearing, explaining that [Appellant] had failed to comply with 42 Pa.C.S.[] § 9545(d)(1), that [Appellant] had previously litigated the claims set forth in his Amended Petition on direct appeal, that there were no genuine issues concerning any material fact, and that no purpose would be served by further proceedings. [The PCRA court] granted [Appellant] until February 21, 2022, to respond to the Notice. In [Appellant’s] February 9, 2022[] Response, he included a witness certification (hereinafter “Certification”) for Ms. Draughn, signed by Attorney Lyden, setting forth Ms. Draughn’s personal information and the content of her proposed testimony. According to the Certification, Ms. Draughn would have testified to the following at a PCRA hearing: She was present during the arrest of [Appellant] and during the subsequent search of the vehicle. She resided in Lancaster City at the time of this incident. She asked to have the vehicle turned over to her, but the officers refused. She saw an officer drive the vehicle off from the scene of the arrest. She went to the police station and asked to have the vehicle turned over to her, but again was denied. The police delivered the keys of the vehicle to Ms. Draughn’s residence the following Sunday. Mr. Bruce Dates, the owner of the vehicle, is her brother. She had the ability to communicate with Mr. Dates and, with his cooperation, do what was necessary to clear the registration and receive possession of the vehicle. [Appellant’s] Response to Pa.R.Crim.P. 907 Notice, Certification, Feb. 9, 2022. After reviewing [Appellant’s] response—including the attached Certification—in light of relevant case and statutory law, [the court] again found that no purpose would be served by holding a hearing and that [Appellant’s] claim had been previously litigated. Consequently, [the PCRA court] issued an Order dismissing [Appellant’s] Amended Petition on March 21, 2022. On March 22, -4- J-S32018-22 2022, [Appellant] filed a counseled Notice of Appeal to the Superior Court from [the] March 21st Order. [Appellant] filed his [Pa.R.A.P. 1925(b)] Concise Statement of Errors [Complained of on Appeal] on March 29, 2022, to which the Commonwealth responded on April 11, 2022. PCRA Court Opinion (PCO), 6/21/22, at 1-6 (footnotes and citations to the record omitted). The PCRA court filed its Rule 1925(a) opinion on June 21, 2022. Herein, Appellant states one issue for our review: “Did the PCRA court err by concluding that Appellant’s claim raised in his PCRA petition was meritless and previously litigated?” Appellant’s Brief at 4 (unnecessary capitalization omitted). Initially, it is well-settle that, [o]n appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. We apply a de novo standard of review to the PCRA court’s legal conclusions. Commonwealth v. Wharton, 263 A.3d 561, 567 (Pa. 2021) (cleaned up). In assessing Appellant’s issue, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have examined the well-reasoned opinion of the Honorable Jeffery D. Wright of the Court of Common Pleas of Lancaster County. We conclude that Judge Wright’s comprehensive opinion accurately disposes of the issue presented by Appellant. See PCO at 7-13. Accordingly, we adopt Judge Wright’s opinion -5- J-S32018-22 as our own and affirm the order denying Appellant’s PCRA petition for the reasons set forth therein.1 ____________________________________________ 1 On November 2, 2022, Appellant filed a motion to proceed pro se, stating that he wishes to raise ineffective assistance of counsel claims against his current attorney, Christopher P. Lyden, Esq., under our Supreme Court’s holding in Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (holding “that a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal”) (emphasis added). We grant Appellant’s motion to proceed pro se only to the extent that we will consider his pro se claims of ineffectiveness of PCRA counsel in accordance with Bradley. In his motion, Appellant first alleges that Attorney Lyden was ineffective for failing “to comply with the requirements set forth in 42 Pa.C.S.[] § 9545(d)(1) by not attaching proper certifications for proposed PCRA hearing witnesses.” Motion to Proceed Pro Se, 11/2/22, at 2 ¶ i(a) (unnumbered). However, Appellant cannot prove this claim has arguable merit. See Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (“It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s error.”) (citations omitted). While Attorney Lyden did not attach proper certifications to his initial, amended petition filed on Appellant’s behalf, he attached a witness certification for Ms. Draughn to his response to the court’s Rule 907 notice. The court reviewed and considered that witness certification, but still determined no evidentiary hearing was warranted. See PCO at 6. Thus, Appellant is incorrect that Attorney Lyden failed to satisfy section 9545(d)(1) and, therefore, his first ineffectiveness claim fails. Likewise, his other two ineffectiveness claims also fail, as they are mere boilerplate assertions that are not specific enough to indicate they have any arguable merit. See Motion to Proceed Pro Se at 2 ¶ i(b), (c) (unnumbered) (alleging PCRA counsel “failed to properly inform Appellant of any and all decisions or circumstances with respect to which the client’s informed consent [was required,]” and that “[c]ounsel was ineffective for failing to place the Commonwealth[’s] case under the adversarial process as guaranteed by Commonwealth v. Crispell, 193 A.3d 919 (Pa. 2017)”). Finally, we note that Appellant’s Motion to Proceed Pro Se also raises claims that the PCRA judge should recuse from this case. (Footnote Continued Next Page) -6- J-S32018-22 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 ____________________________________________ However, Appellant cites no legal authority permitting him to raise this claim pro se when he is still represented by Attorney Lyden. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (“In this Commonwealth, hybrid representation is not permitted. Accordingly, this Court will not accept a pro se motion while an appellant is represented by counsel….”) (internal citation omitted). Therefore, we deny his Motion to Proceed Pro Se regarding this claim. -7- Circulated 11/07/2022 12:43 PM COURT OF COMMON PLEAS OF LANGASTER COUNTY,PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA V. 4113-2018 DWAYNE WRIGHT ca ca PA. R.A. P. 1925 OPINION BY: WRIGHT, J. June _ j..• , 2l)22 Dwayne Wright ("Petitioner") has filed an appeal to the Superior Court of Pennsylvania from this Court's Order enteredon March 21, 2422 ,dismissing without a hearing his Amended Petition for Post Conviction Collateral Relief. This Opinion is written pursuant to Rule 1925( a) of the Pennsylvania Rules of Appellate Procedure, and, for the reasons stated herein,Petitioner' sAppeal should be dismissed_ BACKGROUND On June 12, 2018 ,Officers Jacob Bingham and Timothy Sinnott of the Lancaster City Bureau of Police (" LCBP") were on patrol when they stopped avehicle with an expired registrat ion. (Notes of Testimony,Suppression Hearing,Nov. 15 ,2018, at fi [hereinafter " N.T, at — p]). The vehicle.a2001 Ford Focus,was registered to Bruce Dates,who Officer Blgham later learned lived in Alabama. (N.T. at 5). Officer Bingham approached the vehicle and spoke with the driver,Petitioner Dwayne Wright, who 'The factual recitation included below was lamely lifted from the Opinion Iauthored in r+espanse to 8 direct appeal that Petitioner filed with the Superior Court on September 4, 2019.The Superior court denied said appeal on October 25, 2020. 1 provided Officer Bingham with photo identification. (N.T. at 6). Officer Bingham ran Petitioner's identification and discovered that Petitioner's license was suspended. (N.T. at 6--7). During the vehicle stop, Dispatch also informed Officer Bingham that Petitioner had an outstanding warrant for astate parole violation. (N.T. at 8). At that point, Officer Bingham and Officer Sin not removed Petitioner from his vehicle, placed him under arrest, and searched Petitioner's person. (N.T. at 8). After Petitioner was secured in the police cruiser, Officer gingham conducted an inventory search of the Ford Focus and located ablack jack.et on the front passenger's seat. (N.T. at 9-10). In the pocket of the black jack.et, Officer Bingham found aclear plastic comer tie baggie containing cocaine. (N.T. at 12-13). After finding the cocaine, Officers Bingham and Sinnot decided th obtain awarrant before searching the rest of the vehicle. (N.T. at 13). Officer Bingham drove the vehicle to the police station and the Officers obtained asearch warrant for controlled substances. (N.T. at 15). When Officers Bingham and Sinnot executed the search warrant, they found a bag Inthe trunk. containing powder cocaine, crack cocaine, and afirearm. The Officers then applied for asecond search warrant for firearms, weapons, and ammunition. When executing the second search warrant, the officers seized approximately 50 grams of cocaine, marijuana and related paraphernalia, two pistols, ammunition for both pistols, and cash totaling approximately $ 1,579. Petitioner was subsequently charged with two counts of firearms not to be carried without alicense, two counts of possession with intent to deliver controlled substances, 2 one count of person not to possess firearms, receiving stolen property, possession of drug paraphernalia, and driving while operating privileges are suspended or revoked. 2 On September 5 2018, Petitioner, through his attorney, Edwin Pfursich, Esq., filed aMotion to Suppress the physical evidence seized from the vehicle. In his Motion, Petitioner argued that Officer Bingham's initial inventory search was conducted n violation of Pennsylvania Constitution Article I, Sections 8and 9, as well as the United States Constitution Amendments 4, 5, and 6, and that all evidence discovered during that search and the subsequent searches should be suppressed. Iheld ahearing on Petitioner's Motion on November 15, 2018, during which the facts set forth above were established. Following the hearing, both Petitioner and the Commonwealth submitted supporting briefs. After considering the factual record established during the hearing and the arguments of counsel, Idetermined that although Officer Bingham's inventory search was improper under 75 Pa C.S.A. § 6309.2-which governs the proper procedures for immobilization, towing, storage, and impoundment of vehicles driven without alicense or proper registration-the inventory search and all subsequent searches were nonetheless valid pursuant to the inevitable discovery doctrine. Consequently, on February 27, 2019, 1 denied Petitioner's Motion 10 Suppress. Petitioner was thereafter found guilty on all counts at astipulated bench trial . I ordered apre-sentence investigation and, after receiving the report, sentenced Petitioner to seven and a half to twenty years imprisonment. Petitioner subsequently filed aNotice of Appeal challenging, among other things, my denial of his Motion to 2 18 Pa.CSA§ 6106(a)(1); 18 Pa.CS.A. § 6105(a)(1); 18 Pa.CS.A. § 3925(a); 35 P § 780- 111(a)(30). (32); 75 Pa .C.S A. § 1543(a). 3 Suppress.3 On October 26, 2020, the Superior Court affinned my decision to deny Petitioner's Motion to Suppress and on May 12, 2021, the Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal. On July 17, 2021, Petitioner filed the instant prose PCRA Petition. On August 10, 2021, 1appointed Christopher P. Lyden, Esq. to represent Petrtioner and granted Attorney Lyden 60 days to file an amended petition. On September 23, 2021, Attorney 3 The complex procedural history preceding Petitioner's direct appeal of my ruling on his Motion to Suppress, aptly summarized by the Superior Court, is as follows: [Petitioner] filed aNotice of Appeal cn July 11, 2019, and the trial court directed [Petitioner] to file a Pa-R.A.P. 1925(b) concise statement of errors complained of on appeal. On July 22, 2019, [Petitioner] filed acounseled Post-Sentence Motion, indicating his intention to discontinue the appeal, and challenging the legality of the sentences imposed for his fireanns not th be carried without a license convictions. Specifically, [Petitioner] argued that the firearms not to be carved without a license offenses, which were graded as felonies of the third degree, cany astatutory maximum sentence of 7years; however, the trial court imposed concurrent terms of 5to 10years n prison. [Petitioner] also acknowledged that modification of these individual sentences would not alter the aggregate sentence, as they were ordered th run concurrently with all other sentences. Only July 29, 2019, the trial court entered an Order modifying the sentences for firearms not to be carried without alicense to concurrent terms of T/Z th 7years in prison. On September 3• 2019, [Petitioner], through new counsel, filed a Petition for relief pursuant to the Post Conviction Relief Act ("PCRA") . . , . Therein, [Petitioner] alleged that because trial counsel did not withdraw the July 11, 2019, Notice of Appeal, the Post-Sentence Motion, filed while the appeal was still pending, was a legal nullity. [Petitioner] therefore averred that he was denied effective assistance of counsel, and sought reinstatement of his direct appeal rights, nunc pro tune. On the same date, the PCRA court granted [Petitioner's] PCRA Petition, restored his direct appeal rights, and directed him th file anotice of appeal within 30 days. Commonwealth V. Wright, 1468 MDA 2019, 2020 WL 6268281, at 2 (Pa. Super., Oct. 26, 2020) (nonprecedentlal). 4 Lyden filed aMotion to Extend Time to File Amended Petition- On September 27, 2021, 1 granted Attorney Lyden 60 additional days to file an amended petition. On December 7, 2021, Petitioner, through Attorney Lyden, filed the instant Amended PCRA Petition {hereinafter "Amended Petition") in which Petitioner argued that Attorney Pfursich was ineffective for failing to call akey witness- Petitioner's mother, Jacklyn Draughn-during the November 15, 2018, suppression hearing. Petitioner contended that had Officers Bingham and S1nnot simply immobilized the vehicle without executing an unconstitutional, warrantless search, W. Draughn and Mr. Dates-the owner of the Ford Focus-were available th take the steps necessary to take possession of the vehicle before ii was towed such that the vehicle would not have needed to be searched, negating the applicability of the inevitable discovery doctrine. In support of his argument, Petitioner averred that although Nis. Draughn was present at the time of his arrest and approached Officers Binnham and Sinnot, the Officers refused to turn the Ford Focus over to her and instead drove the vehicle from the scene. Petitioner also asserted that Ms. Draughn later went to the police station and was again denied access to the Ford Focus. Notably, although Petitioner requested an evidentiary hearing, he failed to include as part of his Amended Petition the witness certification required by 42 Pa. C.S.A. § 9545(d)(1). On December $ 2021, 1issued an Order directing the Commonwealth to file a response to the Amended Petition and the Commonwealth filed a response cn December 28, 2021. On February 1, 2022, 1issued aNotice of Intent to Dismiss the Amended Petition without ahearing, explaining that Petitioner had failed to comply with 42 Pa C.S.A. § 9545(d)(1), that Petitioner had previously litigated the claims set forth in 5 his Amended Petition cn direct appeal, that there were no genuine issues concerning any material fact, and that no purpose would be served by further proceedings. I granted Petitioner until February 21, 2022, to respond to the Notice. In Petitioner's February 9, 2022, Response, he included awitness certification (hereinafter "Certification") for Ms. Draughn, signed by Attorney Lyden, setting forth Ms. Oraughn's personal information and the content of her proposed testimony. According to the Certification, Ms. Draughn would have testified to the following at aPCRA hearing: She was present during the arrest of [Petitioner] and during the subsequent search of the vehicle. She resided in Lancaster City at the time of this incident. She asked to have the vehicle turned over to her, but the officers refused. She saw an officer drive the vehicle off from the scene of the arrest. She went to the police station and asked to have the vehicle turned over to her, but again was denied. The police delivered the keys of the vehicle to Ms. Draughn's residence the following Sunday. W. Bruce Dates, the owner of the vehicle, is her brother. She had the ability th communicate with Mr. Oates and, with his cooperation, do what was necessary to clear the registration and receive possession of the vehicle. Petitioner's Response to Pa.R.Crim.P. 907 Notice, Certification, Feb. 9, 2022. After reviewing Petitioner's response-including the attached Certificaf1 on-; c light of relevant case and statutory law, Iagain found that no purpose would be served by holding ahearing and that Petitioner's claim had been previously litigated. Consequently, Iissued an Order dlsmIssing Petitioner's Amended Petition on March 21, 2022, On March 22, 2022, Petitioner filed acounseled Notice of Appeal to the Superior Court from my March 21 st Order. Petitioner filed his Concise Statement of Errors cn March 29, 2022, th which the Commonwealth responded on April 11, 2022. 6 DISCUSSION In his Statement of Errors, Petitioner argues that Ierred in denying his Amended Petition on the ground that his claim had been previously litigated. According to Petitioner, Ms. Draughn's testimony was necessary to prove that the contraband found in the Ford Focus would not have been inevitably discovered. Consequently, Petitioner claims that Attorney Pfursich was ineffective for failing to introduce her testimony at the suppression hearing and seeks to distinguish his allegation of ineffective representation from the claim he already litigated on direct appeal.- After reviewing the basic statutory requirements for post conviction relief, I will address Petitioner's argument that his claim has not been previously litigated while also outlining why, even if it had not been previously litigated, Petitioner's claim is merilless. The Post Conviction Relief Act provides for an action by which an individual convicted of acrime they did not commit or serving an illegal sentence may obtain collateral relief. 42 Pa. C.S.A. § 9542. Ordinarily, a PCRA Petition must be filed within one year of the date that the judgment becomes final. kI § 9545(b)(1). For purposes of the PCRA, 'bjudgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court • Petitioner also claims that Ierred by denying his Amended Petition for failing to comply with the certification requirements of 42 Pa. C.S.A § 9545. However, my final Order dismissing the instant Petition was not based on Petitioner's failure to submit the witness certification required by Section 9545. In fact, Petitioner did submit awftness certification 1n his response to my 907 Notice of Intent to Dismiss, which I considered when determining the ultimate viability of Petitioner's Amended Petition. 7 of Pennsylvania, or at the expiration of time for seeking the review." kIat § 9545(b)(3). The instant Petition was timely filed. 5 To be eligible for relief under the PCRA. Petitioner must also plead and prove all of the elements of the statute by apreponderance of the evidence. kI § 9543(a). First. Petitioner must have "been convicted of acrime under the laws of this Commonwealth," and must be imprisoned, on probation, or on parole at the time that relief is requested. kI § 9543(a)(1 )( kiii). Petitioner was sentenced on July 10, 2019, and is still serving his sentence. Accordingly, this element is established. Second, Petitioner must prove that his sentence or conviction was the result of one or more errors enumerated n the statute. kI § 9543(a)(2). A Petitioner may bring aPCRA claim alleging, among other violations, "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." k..§ 9543{a)(3)(1i). Here, Petitioner claims that Attorney Pfursich was ineffective for failing to call Ms. Draughn during the November 15, 2018, suppression hearing. Third ; Petitioner must show that the issue has not been previously litigated or waived. . k § 9543(a). (b). Case law makes it clear that "[a] petitioner cannot obtain PCRA relief by advancing variations of claims previously litigated and then alleging ineffective assistance of prior counsel for not presenting these theories." Commonwealth v Carpenter. 725 A.2d 154, 162 (Pa. 1999). In his direct appeal to the Superior Court, Petitioner argued that Ierred `1ndenying his Motion to Suppress on the 5 Petitioner's judgment of sentence became final on June 4, 2021, when the Supreme Court denied his Petition for Allowance of Review. He filed his original prose PCRA Petition on July 14, 2021. s basis of the doctrine of inevitable discovery. At issue n Petitioner's Motion to Suppress, and on appeal to the Superior Court, were the requirements set forth in 75 Pa. C.S.A. § 6309.2, which governs the proper procedures for immobilization, towing, storage, and 'impoundment of vehicles driven without alicense or proper registration. Section 6309.2(a)(2) provides.- If a motor vehicle _ for which there is no valid registration or for which the registration is suspended, as verified by an appropriate law enforcement officer, is operated on ahighway or trafficway of this Commonwealth, the law enforcement officer shall immobilize the motor vehicle _ or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storying agent _. and the appropriate judicial authority shall be so notffied. 75 Pa. C.S.A.§ 6309.2(a)(2). In ruling cn Petitioner's Motion to Suppress, Iheld that Officers Bingham and Slnnot had grounds only to immobilize the Ford Focus- not to tow and impound the vehicle- because the vehicle posed no risk to public safety. Consequently, as established by Pennsylvania precedent, the inventory search performed on the Ford Focus was improper. See Commonwealth v Lagenella. 83 A.3d 94 (Pa. 2013). 1ultimately determined, however, that none of the physical evidence seized during any of the searches needed to be suppressed because the evidence was admissible under the doctrine of inevitable discovery. The Superior Court came to the same conclusion, as set forth below: Next, we turn to the legality of the inventory search performed by Officer Bingham while [Petitioner] was detained hthe police cruiser and the vehicle was at the scene. We first note that [Petitioner] does not contest the validity of the initial traffic stop. Rather, [Petitioner] challenges the search of the vehicle after it was immobilized. 9 •. .Mhe suppression court concluded that the evidence seized from the vehicle was admissible under the doctrine of inevitable discovery. The doctrine of inevitable discovery provides that evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. Implicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality. If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictlons that would have been obtained without the police misconduct. Thus, evidence that ultimately or inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions. Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (citations, quotation marks, and brackets omitted). Recovery of a vehicle, whether 1t is immobilized or impounded, requires the owner to produce avalid proof of registration. See id. §6309.2(b)(1)(i), {d){1)(i). Here, the record refiects that [Mr.] Dates did not appear before an appropriate judicial authority with the necessary paperwork within 24 hours of the vehicle's immobilization, al which time the police could tow the vehicle, and conduct an inventory search. See Lanqella, 83 A.3d at 105 (Pa. 2013) (stating that "only upon the vehicle operator's failure to obtain acertificate of release within 24 hours will the judicial authority notify law enforcement, who, at that time, shall arrange for the towing and storage of the vehicle), 106 (stating that "a warrantless inventory search of a vehicle is permissible only when the police have lawfully owed and stored, or impounded the vehicle.") Accordingly, we affirm the suppression court's denial of Wright's Motion to Suppress, based on the doctrine of inevitable discovery. 10 Wriqht, 2020 W L6268281, at 7 As stated by the Superior Court, Pennsylvania law provides that to prevent towing, storage, and the eventual inventory search of avehicle immobilized for lack of a valid registration, the owner of the vehicle must appear before the appropriate judicial authority within 24 hours and must furnish the necessary papeiwork. 75 Pa. C.S.A. § 6309.2(b)(2) (emphasis supplied). The Superior Court conclusively determined that because Mr. Dates did not in fact appear before the appropriate judicial authority within 24 hours, the inevitable discovery doctrine applied and cured any issue of admissibility of the evidence uncovered during the various searches of the Ford Focus. Thus, any argument that the doctrine of inevitable discovery is somehow inapplicable to Petitioner's underlying case- even an argument that is cloaked in aclaim of ineffective assistance of counsel- has been previously litigated. Even assuming, arguendo, that Petitioner had not previously litigated his claim, his argument that Attorney Pfursich was ineffective in failing to call Ms. Draughn during the suppression hearing is baseless. To prevail cn aclaim of ineffective assistance of counsel, apetlt'loner must show by apreponderance of the evidence that "(1) the underlying claim Isof arguable merit; (2) the particular course of conduct pursued by counsel had no reasonable basis designed in effectuate [the petitioner's] interests; and (3) but for counsel's ineffectiveness, there is areasonable probability that the outcome of the proceedings would have been different." Commonwealth v. Lambert, 797 A.2d 232, 243 (Pa. 2001); Commonwealth v. Chmiel, 30 A.3d 111, 1127 (Pa. 2011); see Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); see also Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must satisfy all three elements of the test; failure b meet any single prong of the 11 test is fatal b the ineffectiveness claim. Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011) (citing Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000)). Further, acourt is not required b analyze the elements of an ineffectiveness claim in any particular order, but, if aclaim fails b meet an element of the test, the court may proceed to analyze that element first. Commonwealth v Hannibal, 156 A.3d 197,207 {Pa. 2016). Petitioner's claim of ineffective assistance fails on the first prong. Arguable merit is present ' when the factual statements are accurate and 'could establish cause for relief."' Commonwealth v. Barnett, 121 A.3d 534,540 (Pa. Super. 2015) (quoting Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013). In the Certification attached b Petitioner's Response to my 907 Notice, Petitioner provides that, Ifcalled, Ms. Draughn would have testified to the following facts: she was present during Petitioner's arrest and the search of the Ford Focus; she asked to have the vehicle turned over to her but the Officers refused; she went b the police station and again, b rD avail, asked for the vehicle to be turned over to her, Mr. Dates, the owner of the vehicle, Is her brother; and she had the ability to communicate with Mr. Dates, and with his cooperation, to do what was necessary b clear the registration and receive possession of the vehicle. Ms. Draughn's testimony that she was able b "do what was necessary to clear the registration and receive possession of the vehicle" simply misses the statutory mark of what was required to avoid an inventory search of the vehicle. Mr. Dates himself- not Ms. Draughn with Mr. Dates' cooperation-would have had to appear before the appropriate judicial authority with the proper documentation within 24 hours of Petitioner's arrest to recover the vehicle and b prevent an inventory search. Nothing set forth h Ms. Draugh's proposed testimony n any way changes the analysis of the applicability of the inevitable discovery doctrine. This simple fact stands: Mr. Dates did not appear b do what was necessary to recover the vehicle and Ms. 12 Draughn's testimony in no way suggests that he had the ability or intention b do so. Thus, Attorney Pfursich cannot be found ineffective for failing to call Ms. Draughn as a suppression hearing witness. CONCLUSION For these reasons, Petitioner's claim was previously litigated before the Superior Court and is also meritless. Petitioner is not entitled to post conviction relief and his appeal should be dismissed. Accordingly, Ienter the following: 13 COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA V. 4113-2018 DWAYNE WRIGHT ORDER .a" AND NOW. this L1 day of June, 2022, the Court hereby submits this Opinion pursuant to Rule 1025(x) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: 1 JEFFERY*0.WRIGHT JUDG Copies to: Andrew J. Gonzalez, Esq., ADA Christopher Lyden, Esq.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493859/	MEMORANDUM OPINION DENYING MOTION FOR AUTHORITY TO KEEP 2001 INCOME TAX REFUND KAREN S. JENNEMANN, Bankruptcy Judge. In 2005, Husam Zayed, the Chapter 13 debtor, received a refund associated with his 2004 federal income tax return in the amount of $3,197.72. In his Motion for Authority to Keep 2004 Income Tax Refund (Doc. No. 32), the debtor now asks to keep these funds contrary to the requirement contained in the Order Confirming Chapter 13 Plan (Doc. No. 27). Typically, as is the case here, Chapter 13 debtors are required in the order confirming their plans to turnover all federal income tax refunds received during a Chapter 13 case. The Chapter 13 trustee opposes the debtor’s request, asserting that the debtor has been less than candid in disclosing additional and substantial income he has earned during this case. This income, if timely disclosed, would have significantly increased distributions to the debtor’s creditors. The Court agrees that the debtor has failed to demonstrate the candor needed to justify any exception that would allow him to retain his tax refund. The debtor filed this Chapter 13 case on February 13, 2003. At that time, he had recently started a new job and was in the probationary period. His Schedule I, listing his current income, appropriately included only the income he earned during these early weeks on the job. He listed monthly income of $3,167.25. However, the very next month, March 2003, the debtor was released from probation and hired on a permanent basis. Upon being promoted to a permanent employee, the debtor received a sizable increase in his income, from an annual amount of $38,000 to approximately $47,000 per year. As such, the debtor received a $9,000 per year increase in his income within 30 days of filing his original Schedule I. The debtor has never disclosed this extra income to the Chapter 13 trustee or his creditors. For example, the debtor’s 2003 tax return indicates that he earned $47,216 in 2003. (Debtor’s Ex. No. 8.) In 2004, the debtor earned $47,898. (Debtor’s Ex. No. 9.) None of the excess income was turned over to the trustee or paid to his creditors. The debtor did, very reluctantly and belatedly,1 turn over his 2003 tax refund in the amount of $1,987. (Trustee’s Ex. No. 5.) Before doing so, however, the debtor, similar to his current effort, attempted to persuade the Chapter 13 trustee to allow 110him to keep his 2003 tax refund. To support his argument, the debtor, on December 3, 2004, signed and filed Amended Schedules I and J, supposedly listing his revised income and expenses (Doc. No. 29). The debtor’s amended schedules were false, insofar as he failed to reflect his correct and substantially increased income. Rather, he listed his income in the same amount listed on his original Schedule I (Doc. No. 1) as that earned during the first three weeks of his case, the much lesser amount of $3,167.25 per month. The debt- or claimed increased expenses while failing to disclose increased income. Now, the debtor seeks to keep his 2004 tax refund due to the substantial damage to his home suffered as a result of hurricanes passing through the Orlando area. The debtor estimates that the damages totaled at least $55,000. Initially, the Court finds that the debtor’s estimate is overstated. The estimate contains some noticeable duplications. The damage estimate also includes some expenses, such as food costs, that the debtor would have had to pay, regardless of any hurricane damage. There is no dispute, however, that the debtor’s home encountered substantial hurricane damage. Indeed, the debtor received compensation from his insurance company, in the amount of $45,281.44,2 to pay for these losses. (Debtor’s Ex. No. 1.) The debtor contends that he needs his 2004 tax refund to pay for additional, uncompensated losses. Specifically, in 2004, the debtor was entitled to receive a tax refund of $4,288. (Debtor’s Ex. No. 9.) The Internal Revenue Service retained approximately $1,100 of that amount. (Debtor’s Ex. No. 10.) The debtor actually received a refund of $3,197.72. This is the amount the debtor wants to keep. The Chapter 13 trustee believes these funds should be turned over to pay the debtor’s unsecured creditors. The total amount due by the debtor to his unsecured creditors is approximately $12,000. Although his confirmed Chapter 13 Plan provides for a payment of approximately ten percent to these unsecured creditors, this additional $3,100 would go a long way to paying a substantial portion of the unsecured debts. Further, the Order Confirming Chapter 13 Plan (Doc. No. 27), entered by the Court on October 15, 2003, provides, “All future refunds from the Internal Revenue Service shall be turned over to the Chapter 13 Standing Trustee for distribution to the unsecured creditors.” The debtor did not object to this language in the order. The debtor did not appeal the order, which long ago became final. Pursuant to Section 1327(a) of the Bankruptcy Code,3 which provides that “the provisions of a confirmed plan bind the debtor,” the debtor is bound by the terms of the confirmation order, including the requirement to turnover his tax refunds for administration in this case. “Confirmation of a Chapter 13 plan by a bankruptcy court of competent jurisdiction, in accordance with the procedural requirements of notice and hearing of confirmation ‘is given the same effect as any district court’s final judgment on the merits.’ ” Universal Am. Mort. Co. v. Bateman (In re Bateman), 331 F.3d 821, 829-30 (11th Cir.2003) (citing In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 (11th Cir.1990)) (citing Stoll v. Gottlieb, 305 U.S. 165, 170-71, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938)). Thus, Bankruptcy Code Section 1327 gives res judicata effect to a con111firmed Chapter 13 plan. Bateman, 331 F.3d at 829-30; In re Starling, 251 B.R. 908 (Bankr.S.D.Fla.2000) (“The binding effect of confirmation of the plan is essential in serving the objective of the confirmation process, which is to achieve finality.”) (citations omitted). Here, the debtor would like to reap the benefits of a Chapter 13 case without being burdened with the attendant responsibilities. He would like to extend payments to his secured creditors over 36 months, pay his unsecured creditors about ten percent of the amount due them, and receive a discharge for the balance due. He would like to receive these benefits without reporting his additional income, which increased almost immediately after he filed this case. The debtor could have disclosed this additional income at his confirmation hearing, held on September 16, 2003, yet again, he did not. He could have filed a truthful Amended Schedule I on December 3, 2004, when he was trying to persuade the Chapter 13 trustee to allow him to keep his 2003 federal tax refund. He did not. The debtor simply is not candid in the information he supplies to the Chapter 13 trustee or to the Court. Nevertheless, the debtor now wants the Court to believe that he needs to keep his 2004 refund to pay for un-reimbursed hurricane damage. First, the Court does not accept the debtor’s estimate of the outstanding damages. As stated above, the damages are overstated due to overt duplication of some expenses and an attempt to claim amounts, such as food costs, that cannot be considered a part of the hurricane loss. However, even assuming some part of the damages listed by the debtor was not paid by his insurance company, the Court would find that his excess income, previously unreported to the Court, the trustee, or his creditors is more than ample to cover any shortfall. For three years, the debtor has earned an extra $9,000 per year which was not paid to his creditors or to the Chapter 13 trustee. The debtor cannot expect this Court to allow him to keep his 2004 refund of $3,197, when the debtor has kept $27,000 in prior income without disclosure. Even after accounting for federal taxes and other employer deductions, the debtor certainly has received undisclosed income that greatly exceeds the amount of the tax refund he hopes to keep. The debtor is not credible, simply wants to avoid the burdens of this Chapter 13 case, and has failed to demonstrate any legitimate reason to keep his 2004 refund. Accordingly, the debtor’s Motion for Authority to Keep 2004 Income Tax Refund is denied. The debtor is directed to turnover $3,197.72 to the Chapter 13 trustee within 30 days of the entry of this order. Failure to timely comply with this directive will result in the dismissal of this case without further notice or hearing. A separate order consistent with this Memorandum Opinion shall be entered. . The debtor received his 2003 refund in April 2004. He did not turn it over to the Chapter 13 trustee until December 2004, or later. . The debtor’s wife also received additional insurance compensation of $6,000. . Unless otherwise stated, all references to the Bankruptcy Code refer to Title 11 of the United States Code.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493860/	OPINION LARRY LESSEN, Bankruptcy Judge. The issue before the Court is whether a tenant farmer’s payment of his cash rent with a NSF check constitutes a nondis-chargeable debt pursuant to 11 U.S.C. § 523(a)(4). The Debtor, Bradley Hermes, and his family have been farming 700 acres of land owned by the Plaintiff, William Moore, since 1994. The Debtor’s father was the original tenant, but the Debtor has been farming it for the last few years. There was a written lease at one point, but over the years it has evolved into an oral lease. The Debtor would plant the crop, harvest it, and sell it. The Bank of Modesto, which had a lien on the crops, would receive the crop proceeds. The cash rent was usually paid at the end of the crop year. The Plaintiff never had a written security agreement, never filed a UCC financing statement, and never asserted a landlord’s lien on the crops. The Debtor farmed the Plaintiffs land in 2002. The cash rent of $72,500 was paid in February of 2003 from the proceeds of a one-month loan from the Bank of Modesto. The Debtor needed the short-term loan from the Bank because he was applying for a five-year FSA operating loan and the FSA loan was not ready. On February 28, 2003, the Debtor and his wife signed an FSA — guaranteed loan agreement which was to be administered by the Bank of Modesto. The agreement provided for a loan in the maximum amount of $190,000 “as needed for 2003-2007 farm and crop operating expenses”. The loan provided that the loan balance had to be reduced to $100 before an advance for a subsequent year could be made. 372The Debtor also farmed the same ground in 2003. The Debtor wrote a check for the rent at the end of December, but it did not clear the Bank until January. The Debtor did not have sufficient funds in the Bank to cover the check when he wrote it, but an advance on the line of credit covered the check. The Debtor continued to farm the ground in 2004, and he expected the same process to be followed for the payment of his rent. In October, 2004, the Debtor harvested his crop. He received about $190,000 from the grain company. The grain checks were made out to the Debtor and the Bank of Modesto. The Bank used the proceeds to pay off two loans of the Debtor that did not mature until February 1, 2005 — one for $11,000 and one for $31,000. The Bank applied $144,000 to the operating loan. The operating loan carried a balance of almost $30,000 at the end of 2004. On December 30, 2004, the Debtor wrote two checks totaling $83,000 payable to the Plaintiff for the 2004 cash rent. The Debt- or expected his line of credit to cover the checks. However, the checks were presented and dishonored twice. Although the line of credit had not been revoked, the Bank informed the Debtor that it wanted the loan balance paid down to $100 before more money was advanced. The Debtor sold some grain in February, 2005, and paid down the loan balance. He then wrote two more checks to the Plaintiff for a total of $87,000. The Debtor added $4,000 to the previous amount for the inconvenience caused by the overdraft. These checks were presented twice and dishonored twice. The Debtor then learned from the Bank that he had to reapply for the operating loan. This was a surprise to the Debtor because he thought his loan was guaranteed through 2007. The Debtor knew that it was a 45-day process to reapply for the operating loan and that the Plaintiff could not wait that long to lease the farmland. The Debtor tried to get a short-term bridge loan, but the Bank would not cooperate with him. The Debtor did not reapply for the operating loan. The Debtor wrote another series of checks for the cash rent in March, 2005. The Plaintiff did not present these checks to the Bank because he learned from the Bank that they would not be honored. The Plaintiff leased the farmland to another individual for the 2005 crop year. The Debtor filed his petition pursuant to Chapter 7 of the Bankruptcy Code on April 27, 2005. The Plaintiff was listed in Schedule F as an unsecured creditor holding a claim of $87,000. The Plaintiff filed a timely complaint to determine the dis-chargeability of his debt on July 30, 2005. The Plaintiff alleges that the $87,000 debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(4), which excepts from discharge debts “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Count I alleges that the debt is nondischargeable because it is a “debt for fraud or defalcation or both while acting in a fiduciary capacity.” Count II alleges that the debt “arose when Defendant unlawfully took from Plaintiff certain crops and or cash proceeds associated with same which belonged to the Plaintiff.” In order to prevail on Count I, the Plaintiff must prove that (1) a fiduciary relationship existed between him and the Debtor, and (2) fraud or defalcation was committed by the Debtor in the course of that relationship. In re Monroe, 304 B.R. 349 (Bankr.N.D.Ill.2004). The issue of whether a debtor is a fiduciary under this section is a question of federal law. In re 373Frain, 230 F.3d 1014 (7th Cir.2000). The broad, traditional definitions of a fiduciary — as a relationship involving confidence, trust and good faith — is inapplicable in the dischargeability context. In re Cantrell, 329 F.3d 1119 (9th Cir.2003). Instead, for purposes of § 523(a)(4), a fiduciary relationship requires an express or technical trust. In re Cochrane, 124 F.3d 978 (8th Cir.1997). A landlord-tenant relationship is not ordinarily a fiduciary one. In re Caulfield, 192 B.R. 808, 818 (Bankr.E.D.N.Y.1996). The Plaintiff did not introduce any testimony or evidence at trial to establish that the Debtor acted as a fiduciary at the time the debt was incurred. The evidence established that the Debtor was simply a tenant on farmland owned by the Plaintiff. Therefore, the Plaintiffs claim of fraud or defalcation while acting in a fiduciary capacity must fail. A claim for either larceny or embezzlement under § 523(a)(4) does not require a fiduciary relationship with a debtor. Larceny requires a showing that the debtor wrongfully took property with fraudulent intent to convert it to his own use without the owner’s consent. Matter of Rose, 934 F.2d 901 (7th Cir.1991). Embezzlement is defined as the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come. Matter of Weber, 892 F.2d 534 (7th Cir.1989). In order to prove embezzlement, the creditor must show that the property was rightfully in the possession of a non-owner and that the non-owner appropriated the property to a use other than which it was entrusted. In re Hayden, 248 B.R. 519 (Bankr.N.D.Tex.2000). In addition, embezzlement requires fraud in fact. U.S. Life Title Ins. Co. of New York v. Dohm, 19 B.R. 134 (N.D.Ill.1982). Larceny and embezzlement differ only in the manner in which possession of the funds is acquired. Hayden, supra. Both larceny and embezzlement require that the Debtor take property belonging to the creditor. In re Kelly, 155 B.R. 75 (Bankr.S.D.N.Y.1993) (creditor alleging larceny must show that the debtor wrongfully took property from its owner); In re Contella, 166 B.R. 26, 30 (Bankr. W.D.N.Y.1994) (embezzlement involves the appropriation of property belonging to another person or entity). In this case, the Plaintiff has failed to show that the Debtor wrongfully took any property which the Plaintiff owned. The Plaintiff did not own the crops. The Plaintiff may have been entitled to a landlord’s lien on the crops pursuant to 735 ILCS 5/9-316, but the Plaintiff never asserted his landlord’s lien. When the crops were sold, the grain check was made out to the Debtor and the Bank of Modesto, the creditor claiming a priority security interest in the crops. The Bank applied the crop proceeds to the loans the Debtor had with the Bank. The Debtor did nothing wrong or improper. There was no evidence that the money from the crops went anywhere but to the Bank of Modesto. The Plaintiffs entire argument is predicated on 720 ILCS 5/17-1, which provides that a person commits a deceptive practice when with intent to defraud he issues a check knowing that it will not be paid. Plaintiffs reliance on this statute is “misplaced as no criminal conviction was ever obtained against” the Debtor. In re Fogel, No.87-90132, Adv. No. 87-9066 (Bankr.C.D.Ill.1988) (Fines, J.). Moreover, the Debtor overcame any presumption of fraud with his testimony that he thought the checks would be covered by his line of credit. Finally, as the Plaintiff elected to proceed under § 523(a)(4), a *374debt incurred through fraud is only non-dischargeable when there is a fiduciary relationship, and the Court has previously determined that there was no fiduciary relationship in this case. For the foregoing reasons, the Plaintiffs Complaint to Determine Dischargeability of Debt is denied. This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493861/	DECISION ROBERT E. GRANT, Bankruptcy Judge. The debtors in this chapter 13 case filed their proposed plan on October 14, 2005. By an order issued November 7, 2005, the 375court ordered that any objections to confirmation had to be filed by December 13, 2005. DaimlerChrysler, acting through its counsel Dennis Ostrowski, filed a timely objection to confirmation on November 22, 2005. Other timely objections were filed by the trustee and Capital One Auto Finance. By a notice issued on December 28, 2005, the court scheduled a hearing for January 11, 2006, at 10:30 a.m., at which it would consider confirmation of the proposed plan and all of the objections thereto. Although served with a copy of this notice, DaimlerChrysler did not attend that hearing. As a result, by an order issued on January 17, 2006, its objection was overruled. That order also scheduled the remaining two objections for a pre-trial conference on February 7. Rather than seek leave to appeal the court’s order, see, Fed. R. Bankr.P. Rule 8003, ask the court to reconsider that order or somehow seek relief from it, see, Fed. R. Bankr.P. Rules 9023, 9024, on January 27, 2006, Mr. Ostrowski simply filed an amended objection to confirmation. He then sent local counsel to the February 7 pre-trial which the court had scheduled with regard to the other two objections to confirmation. On its own motion, the court ordered DaimlerChrysler to show cause why the amended objection should not be stricken given that its previous one had been overruled by the court’s order of January 17. Counsel filed a timely response to the order to show cause and the matter is before the court to consider that response. In his response counsel makes three main points. Although he acknowledges that his office received the court’s order scheduling the hearing of January 11, whatever procedures his office may have put in place to process the court’s electronic orders and notices must not have worked correctly because he did not become aware of that order until it was too late to attend the hearing. Counsel also points out that the amended objection is different from the one he originally filed. The original objection complained about the debtors’ valuation of the creditor’s collateral, the rate of interest it would receive upon its secured claim and the lack of insurance for the collateral. The amended objection complains only about valuation and interest rate. Finally, counsel points to the Federal Rules of Bankruptcy Procedure and the Local Rules of this court to suggest that the amended objection is entirely proper. The Supreme Court has made it clear that internal office problems will not excuse an attorney’s failure to comply with a filing deadline, Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 394-96, 113 S.Ct. 1489, 1498-99, 123 L.Ed.2d 74 (1993), and that same kind of excuse should not justify the failure to attend a scheduled hearing. As for the suggestion that the amended objection is different, because it raises only two of the three complaints contained in the original objection, the court cannot see why this would matter. Whatever objections counsel may have had to the proposed plan were waived or abandoned when counsel failed to appear for the hearing the court had scheduled to consider them. In re Wolf, 162 B.R. 98, 104 (Bankr.D.N.J.1993); In re Parker, 49 B.R. 61, 62 (Bankr.E.D.Va.1985). The court’s order overruling the original objection constitutes an adjudication on the merits. See e.g., Fed. R.Civ.P. Rule 41(b); Fed. R. Bankr.P. Rules 9014, 7041. Consequently, any issues concerning the proper valuation of DaimlerChrysler’s collateral and the rate of interest it should receive have already been determined adversely to the creditor and the principles of res judicata prevent it from resurrecting them through the sim-376pie expedient of filing an amended objection. Counsel’s reliance upon Rule 3015(f) of the Federal Rules of Bankruptcy Procedure is unavailing. In relevant part that rule simply states the common sense principle that “an objection to confirmation of a plan shall be filed and served ... before confirmation of the plan.” Nothing about the rule suggests that it was designed to exempt confirmation issues from the operation of res judicata or the equally fundamental concept that the court should only have to rule on an issue once. Yet, that is exactly how counsel seems to be interpreting the rule. Taking his argument to its logical conclusion, no matter how many times the court ruled upon a particular objection to confirmation, so long as the objection was re-filed before the order confirming the plan was actually entered, the court would be required to consider it all over again, just as though nothing had ever happened. Such an interpretation would make the entire confirmation process completely unworkable and involve the court in a potentially endless cycle of repetitive hearings, which would only end when one side or the other gave up in exhaustion or frustration. Counsel’s reliance on Local Bankruptcy Rule B-9014-1 is also untenable. The response suggests that all counsel was trying to do with the amended objection was to comply with the provisions of that local rule requiring objections to some things to be filed and served no later than seven days prior to a scheduled hearing. Since the amended objection was filed more than seven days before the pre-trial conference the court had scheduled with regard to the other confirmation objections, counsel seems to believe that the amended objection is entirely proper. The argument conveniently ignores the first words of the local rule — “Except as otherwise ordered by the court ...” N.D. Ind. L.B.R. B-9014-l(b). Here the court had ordered otherwise. Its order of November 7, 2005 specifically required any objections to confirmation to be filed on or before December 13, 2005. Consequently, Local Bankruptcy Rule B-9014-l(b) does not authorize the amended objection. Whatever objections DaimlerChrysler might have had to confirmation of debtors’ proposed plan were fully disposed of by the court’s order of January 17, which was issued following the hearing at which those objections were scheduled to be considered. Consequently, the amended objection, filed on January 27, 2006, is not properly before the court and should be stricken. An order doing so will be entered.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493862/	AMENDED MEMORANDUM OPINION AND ORDER REGARDING IMPAIRMENT UNDER 11 U.S.C. § 1124 SIDNEY B. BROOKS, Bankruptcy Judge. On November 16, 2005, this Court conducted a hearing on the Adequacy of the Amended Disclosure Statement filed by G.L. Bryan Investments, Inc. (“Debtor”) on October 5, 2005 (Docket # 98) and the Objection thereto filed by AET Environmental and Arthur Clark (“Objecting Creditors”) on November 9, 2005 (Docket # 105).1 At the conclusion of the hearing the Court ordered the parties to submit legal briefs on the disputed issue of creditor impairment under the Plan. On February 8, 2006, this Court conducted a hearing on the Second Amended Disclosure Statement and Plan. Two days prior to the hearing, Debtor filed its Third Amended 388Disclosure Statement. At the hearing, the Court took argument with respect to the issue of Impairment. Thereafter, on February 24, 2006, the Debtor filed its Fourth Amended Disclosure Statement and Plan. The Court, has reviewed the pleadings, the various versions of the Plan and Disclosure Statement, relevant case law on the issue of impairment under 11 U.S.C. § 1124, and the Court’s file in this matter, and enters the following findings, conclusions, and Order. The issue presented — when is a creditor class impaired under a debtor’s plan — is noteworthy here because (1) despite expectations, there is a dearth of case law on the subject in this Circuit and (2) the circumstances and motivation of the Debtor, here, to create an “unimpaired” class is very different from most cases and likely dis-positive of plan confirmation and feasibility in this case. 1. Background The Objecting Creditors claim to hold over $591,000.00 of the Debtor’s approximately $601,177.00 unsecured debt. This claim arises from a judgment entered in state court (“State Court Judgment”) in favor of Objecting Creditors and against Debtor. Pursuant to the State Court Judgment, interest is to accrue thereon at the rate of 8% per annum, compounded annually. The existence of the State Court Judgment was a catalyst to the Debtor’s bankruptcy filing. On December 5, 2005, the Debtor filed its Second Amended Disclosure Statement and Second Amended Plan of Reorganization. Under the Second Amended Disclosure Statement and Plan, the Debt- or contends that Objecting Creditors are unimpaired under the Plan and therefore not entitled to vote on the Plan. The Second Amended Disclosure Statement and Plan provide that the claims of the unsecured creditors, of which the Objecting Creditors will be paid at 100% of the principal amount of the State Court Judgment, plus 4.3% interest, which is the federal judgment rate of interest. The payment of these amounts will be deferred, however. The Second Amended Plan provides that the unsecured creditors will receive payments from the cash flow of the Debtor in five annual pro rata distributions. Each annual distribution will be seventy-five percent (75%) of available cash as defined in the Second Amended Plan, with the first such distribution to be made on the one-year anniversary of the effective date and continuing annually thereafter for four (4) additional annual until paid in full. Notwithstanding such payment scheme, upon the sale of the Debtor’s primary asset, an office building, and the pro rata distribution of the sales proceeds of such sale to unsecured creditors (after payment of then outstanding priority and administrative claims, if any), in the event that the sale proceeds equals or exceeds the amount then owing to the Class 3 unsecured creditors, no further payments will be made under the Second Amended Plan. In addition to the pro rata payments of the available cash, the unsecured creditors, under the Second Amended Plan, will receive pro rata distributions of the net proceeds of accounts receivable collected by the Debt- or and these funds shall be accumulated and paid quarterly. The most recent iteration of the Plan and Disclosure Statement — the Fourth Amended Plan and Disclosure Statement — does not assure that the Class 3 claims will be paid in full in the five (5) year period.2 389II. Issues There are two issues before the Court: A. Whether the unsecured creditors— in particular, the Objecting Creditors — are impaired under the Fourth Amended Plan because they are not receiving immediate payment of the amounts due. B. Whether the unsecured creditors— in particular, the Objecting Creditors — are impaired under the Fourth Amended Plan because the interest rate under which they are to be paid, pursuant to the Fourth Amended Plan, is reduced from the State Court Judgment amount. The Court concludes that the Objecting Creditors are impaired under the Fourth Amended Plan because (a) they are receiving deferred payments over time and (b) the interest to which they would receive under the State Court Judgment is reduced from 8% per annum to 4.3% per annum. Bottom line: if the Debtor intends to reduce the interest rate and/or pay the unsecured creditors over time — a time period which, under the Fourth Amended Plan and Disclosure Statement, may be five years or some other undetermined span — , the unsecured creditors are impaired creditors under the Bankruptcy Code. III. Discussion Pursuant to 11 U.S.C. § 1124: Except as provided in section 1123(a)(4) of this title, a class of claims or interest is impaired under a plan unless, with respect to each claim or interest of such class, the plan— (1) leaves unaltered the legal, equitable, and contractual rights to which such claim or interest entitles the holder of such claim or interest; (2) notwithstanding any contractual provision or applicable law that entitles the holder of such claim or interest to demand or receive accelerated payment of such claim or interest after the occurrence of a default— (A) cures any such default that occurred before or after the commencement of the case under this title, other than a default of a kind specified in section 365(b)(2) of this title; (B) reinstates the maturity of such claim or interest as such maturity existed before such default; (C) compensates the holder of such claims or interest of any damages incurred as a result of any reasonable reliance by such holder on such contractual provision or such applicable law; and (D) does not otherwise alter the legal, equitable, or contractual rights to which such claim or interest entitles the holder of such claim or interest.3 390In most of the published case law, questions of impairment arise where a debtor is establishing, or creating, an “impaired” class in order to secure an assenting class of impaired claims for confirmation purposes.4 Here, the Debtor already has two impaired classes and treats the unsecured creditors as unimpaired. This, of course, precludes the unsecured class — of which the Objecting Creditors’ claim dominates — from voting on the plan. In effect, this is the converse of most situations and most published law on this subject. Nevertheless, in this case, it does appear that the Debtor is manufacturing an unimpaired class in order to forestall the dominate creditor — the Objecting Creditors— from vetoing confirmation. “Generally, a class is impaired when the legal, equitable and contractual rights out of which [a creditor’s] claim arises are altered in any way.”5 Here, the legal rights of the Objecting Creditors are altered in two important respects: (1) payments are deferred to the Objecting Creditors6 and (2) interest on the State Court Judgment is substantially reduced.7 391Moreover, with respect to the deferral of payments, the Fourth Amended Plan seems to suggest that payments may be deferred beyond the five (5) years originally proposed. This further impairs this class. Consequently, the Objecting Creditors are impaired and are entitled to vote on Debtor’s Second Amended Plan. IV. Order IT IS THEREFORE ORDERED that the Objecting Creditors are impaired and entitled to vote on Debtor’s Fourth Amended Plan. . The United States Trustee also objected to the Amended Disclosure Statement on November 9, 2005 (Docket # 103), but the Objection did not focus on the issue of impairment. . The Fourth Amended Disclosure Statement provides that: In the event that Class 3 is not paid in full, with interest, in five years, payments shall 389continue until paid in full. Fourth Amended Disclosure Statement at 20. . As counsel for the Debtor noted during argument on this issue on February 8, 2006, 11 U.S.C. § 1124 was amended in 1994. Counsel for the Debtor, in his argument, asserted that most, if not all, of the case law cited by the Objecting Creditors predated the enactment of the revised 11 U.S.C. § 1124 and, therefore, was not persuasive on the issues before the Court. In particular, 11 U.S.C. § 1124(3) was removed. Section 1124(3) provided that a class of claims paid in full in cash on the effective date was considered unimpaired. The Court does not believe that the key cases cited by the Objecting Creditors are overturned by the 1994 amendments. The House Report explained the changes as follows: The principal change in this section is set forth in subsection (d) and relates to the award of postpetition interest. In a recent Bankruptcy Court decision in In re New Valley Corp., 168 B.R. 73 (Bankr.D.N.J. 1994), unsecured creditors were denied the 390right to receive postpetition interest on their allowed claims even though the debtor was liquidation and reorganization solvent. The New Valley decision applied section 1124(3) of the Bankruptcy Code literally by asserting, in a decision granting a declaratory judgment, that a class that is paid the allowed amount of its claims in cash on the effective date of a plan is unimpaired under section 1124(3), therefore is not entitled to vote, and is not entitled to receive pospetition interest. The Court left open whether the good faith plan proposal requirement of section 1129(a)(3) would require the payment of or provision for postpetition interest. In order to preclude this unfair result in the future, the Committee finds it appropriate to delete section 1124(3) from the Bankruptcy Code. As a result of this change, if a plan proposed to pay a class of claims in cash the full allowed amount of the claims, the class would be impaired entitling creditors to vote for or against the plan of reorganization. If creditors vote for the plan of reorganization, it can be confirmed over the vote of a dissenting class of creditors only if it complies with the "fair and equitable” test under section 1129(b)(2) of the Bankruptcy Code and it can be confirmed over the vote of dissenting individual creditors only if it complies with the "best interest of creditors” test under section 1129(a)(7) of the Bankruptcy Code. The words "fair and equitable” are terms of art that have a well established meaning under the case law of the Bankruptcy Act as well as under the Bankruptcy Code. Specifically, courts have held that where an estate is solvent, in order for a plan to be fair and equitable, unsecured and undersecured creditors’ claims must be paid in full, including postpetition interest, before equity holders may participate in any recovery, (citations omitted). With respect to section 1124(1) and (2), subsection (d) would not change the beneficial 1984 amendment to section 1129(a)(7) of the Bankruptcy Code with excluded from application of the best interest of creditors test classes that are unimpaired under section 1124. H.R. Rep 103-834, 103rd Cong., 2d Sess 25-26 (Oct. 4, 1994); 140 Cong. Rec. H10768 (Oct. 4, 1994). . See, e.g., In re Dean, 166 B.R. 949 (Bankr.D.N.M.1994). . Id. at 954, n. 3 (emphases added). . See, e.g., In re Grandfather Mountain Ltd., 207 B.R. 475, 485 (Bankr.M.D.N.C.1996) (deferred payments to creditors considered an alteration of legal rights). . See, In re Valley View Shopping Center, 260 B.R. 10, 32-33 (Bankr.D.Kan.2001) (unsecured creditors were impaired under a plan event though the claims were paid in full, without interest, 90 days after the effective date of the plan). Debtor seems to also rely on Solow v. PPI Enterprises, Inc. (In re PPI Enterprises, Inc.), 324 F.3d 197 (3d Cir.2003) for the proposition that a claim can be capped and paid over time. In that case, the alteration of rights to a landlord was by way of the Code — in particular, 11 U.S.C. § 502(b)(6). Alteration of rights by way of the Bankruptcy Code or other statute is not an impairment. 7 *391Collier on Bankruptcy ¶ 1124.02[6], at 1124-8 (Alan N. Resnick and Henry J. Sommer ed., 15th ed. Rev.2003). Here, the alteration of the claim is by way of the Debtor's Fourth Amended Plan, not the Bankruptcy Code or some other relevant statute.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493866/	MEMORANDUM OF DECISION ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. Raymond R. Richardson (“the debtor”) and Virginia M. Richardson (together “the debtors”) filed a Chapter 7 bankruptcy petition on May 27, 2004, and Thomas C. Boscarino (“the trustee”) was appointed trustee of the debtors’ estate. Scott Werner (“the plaintiff’), on August 19, 2004, filed a complaint against the debtors, requesting that they be denied a discharge pursuant to Bankruptcy Code § 727(a)(3) (failure to keep records) or § 727(a)(4) (false oath). The court held a hearing on the complaint on January 11, 2006, after which the parties filed memoranda of law in support of their positions. II. BACKGROUND The debtors prepetition and presently own and operate a jewelry business in West Hartford, Connecticut. In addition to selling jewelry from inventory, the debt691ors sell items held on consignment from clients. At the meetings of creditors held pursuant to Bankruptcy Code § 341(a), the debtor provided copies of his inventory as of the petition date and explained how he updated the inventory monthly, indicating any purchases and sales. The debtor testified that he had continued to update such records post-petition at the request of the trustee, who had given him permission to continue to operate the business.1 The debtor also provided copies of the signed consignment receipts provided to consignors and of the consignment control sheets, kept in a binder, identifying the items on consignment from each customer. The debtor testified that all sales are recorded in a sales journal. The trustee, on August 13, 2004, after examining the debtors and inspecting their premises, filed a “Trustee’s Report of No Distribution,” which stated: “that I have made a diligent inquiry into the financial affairs of the debtor(s) and the location of the property belonging to the estate; and that there is no property available for distribution from the estate over and above that exempted by law.” (Exh. B.) The plaintiff testified that he was also in the jewelry business and over a period of about twelve years had provided numerous items to the debtors to be sold under a consignment arrangement. In 2001, the plaintiff and the debtor entered into an agreement whereby, in addition to continuing to sell the plaintiffs goods on consignment, the debtors would sublet a retail store from the plaintiff and share any net profits from the business. The relationship deteriorated and the plaintiff subsequently brought an action against the debtor in state court to recover unpaid rent, the value of missing consigned merchandise, and the plaintiffs share of any net profits. The state court, on February 18, 2004 entered a judgment in favor of the plaintiff for $16,076 plus costs, and ordered the debtor to provide an accounting to determine net profits. In addition, the plaintiff, the holder of two junior mortgages on the debtors’ home, held unsecured claims arising from the deficiency when a senior mortgagee foreclosed on the home. III. DISCUSSION Bankruptcy Code § 727(a) provides, in relevant part: (a) The court shall grant the debtor a discharge, unless- (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case; (4) the debtor knowingly and fraudulently, in or in connection with the case- (A) made a false oath or account; (B) presented or used a false claim; (C) gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or (D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs.... Because denial of discharge is an “extreme penalty,” the provisions of § 727 are “con692strued strictly against those who object to the debtor’s discharge and liberally in favor of the bankrupt.” State Bank of India v. Chalasani (In re Chalasani), 92 F.3d 1300, 1310 (2d Cir.1996) (citation and quotation marks omitted). “At the trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the objection.” Fed. R. Bankr.P. 4005. A. § 727(a)(4) The plaintiff alleges in the complaint that the debtors’ signatures on the petition constitutes a false oath because the debtors owned one or more motor vehicles not scheduled therein. The debt- or acknowledged that he had inadvertently failed to schedule a 1989 Chrysler, in poor condition, not running and valued at no more than $250, but that he voluntarily disclosed it to the trustee at the meetings of creditors.2 The plaintiff has produced no evidence to support a contention that the omission was knowing. Accordingly, the court finds that the debtors’ omission was inadvertent, not knowing and fraudulent, and does not support a denial of discharge pursuant to § 727(a)(4). The complaint further alleges that the debtors failed to schedule one or more bank accounts. The debtor testified that, as of the petition date, the debtors maintained only the two checking accounts listed in their schedules, and that their only other account was one they opened post-petition to handle their post-petition transactions. The plaintiff has failed to provide any evidence of the existence of any undisclosed bank account. B. § 727(a)(3) “The party objecting to discharge has the burden of proof to show that the debtor has failed to keep and maintain adequate books and records, and that such failure renders it impossible to discern the debtor’s true financial condition and identify material business transactions.” State Bank of India v. Sethi (In re Sethi), 250 B.R. 831, 838 (Bankr.E.D.N.Y.2000) (citations omitted). “The standard for evaluating the adequacy of a debtor’s record keeping enunciated by the Second Circuit in Underhill is applicable today ....” Id. “The law is not unqualified in imposing a requirement to keep books or records, and it does not require that if they are kept they shall be kept in any special form of accounts. It is a question in each instance of reasonableness in the particular circumstances.” In re Underhill, 82 F.2d 258, 260 (2d Cir.1936), cert. denied, 299 U.S. 546, 57 S.Ct. 9, 81 L.Ed. 402 (1936) (applying the corresponding provision under the former Bankruptcy Act). “Although the plaintiff has the burden of proving the inadequacy of the debtor’s records, it is the debtor who has the obligation of producing financial records in the first place from which the debtor’s financial condition may be ascertained.” Sethi, 250 B.R. at 838. At the hearing and at the meetings of creditors, the debtor provided copies of his inventory as of the petition date and explained how he updated the inventory monthly, indicating any purchases and sales. The debtor also provided copies of the signed consignment receipts provided to consignors and of the lists, kept in a binder, of items on *693consignment from each customer. The debtor testified that all sales are recorded in a sales journal. The debtor testified that he had provided this information to the trustee who later verified such when the trustee visited the debtors’ store. The plaintiff refers to certain state and local disclosures required in order to assist police in identifying persons who may seek to sell stolen goods to retailers, such as the debtors. Such reports, intended to identify non-business sellers of possible stolen goods, provide no essential financial information that is not included elsewhere in the records provided by the debtors. The complaint alleges that “the defendants have willfully and intentionally failed to disclose transactions in the purchase and sale of one or more Rolex watches and bulk gold.” (Complaint ¶ 9.) The only such transactions to which the plaintiff provided any evidence were the debtor’s purchase of a Rolex watch for $1,800 and his sale of some scrap gold for $1,350, both of which occurred two months post-petition on July 27, 2004, and neither of which, the debtor testified, involved any property of the estate. At the hearing, the plaintiff also questioned whether the debtors had kept records of the pre-petition sale of a diamond. The debtor testified that he had brokered that sale; that the diamond came into the store and was sold on the same day; and that the transaction was duly recorded in the sales journal with the diamond having been purchased for $5,000 and sold for $6,000. An error in spelling the seller’s name, acknowledged by the debtor, does not affect the adequacy of the debtors’ records in ascertaining the debtors’ financial condition or make it impossible to identify the transaction at issue. The plaintiff further contends that the debtors “were unable to produce any consignment contracts ... and in fact admit that no such consignment contracts exist.” (Complaint ¶ 7.) The debtors make no such admission. At the hearing, the debtors put into evidence copies of the signed “receipts” signed by the debtor and noting the items received as on consignment; the listings by consignor of all items held on consignment; and the testimony of a longtime consignor as to the terms of the consignment agreements. Further, the plaintiff himself had, for years, had consigned jewelry to the debtors under the same arrangement.3 The court concludes that the debtors have satisfied their initial burden of producing their financial records, and that the plaintiff has not satisfied his burden of proving the debtors’ records are insufficient, making it impossible to determine their financial condition or to identify their material business transactions. IV. CONCLUSION In accordance with the forgoing discussion, the court concludes that the plaintiff has not met his burden of proof. Judgment will enter that the objection to discharge be denied and the discharge of both debtors in this case enter. . Sales were of consigned goods (not property of the estate) or from inventory exempted by the debtors in Schedule C of their petition pursuant to Bankruptcy Code § 522(d)(5). . Another vehicle referred to by the plaintiff, a 1993 Dodge with a blown engine, was given to the debtor post-petition by his brother. . The plaintiff's argument concerning whether consignors were required to file financing statements is inapposite to the issue in the present proceeding — whether the debtors’ records are adequate to determine their financial situation.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493867/	MEMORANDUM OF DECISION ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. The question for decision in this proceeding is whether the court should grant the Chapter 7 trustee’s “Motion to Approve Settlement,” originally filed on January 7, 2005, and renewed by a pleading filed on December 11, 2005 (together “the settlement motion”). Marguerite Reeves (“Reeves”), a creditor and the debtor’s former wife, appeared and filed an objection to the settlement motion. At the hearing, held on February 10, 2006, the trustee presented the testimony of Gerald E. Ross, Esq. (“Ross”), in favor of the settlement motion and Reeves submitted the testimony of Michael Ambler, Esq. (“Ambler”), in opposition. II. A. The following factual background is not in issue. Lawrence Anthony Joseph (“the debtor”) filed a pro se Chapter 7 petition on March 11, 2004. John J. O’Neil, Jr., Esq. (“the trustee”) became trustee of the debtor’s estate. From 1986 through September, 1993, the debtor had been a general partner at Milbank, Tweed, Hadley & McCloy LLP (“Milbank”), a New York law firm. In April, 1997, Milbank started an arbitration proceeding against the debtor in New York to collect loans made to the debtor. The debtor, represented by Ross, filed a counterclaim against Milbank arising from his contention of constructive expulsion as a partner, despite his having resigned to take a position with another law firm. Leaving aside relatively minor cross-awards, the arbitrator on August 7, 2002 awarded Milbank $428,811.64 plus interest for the loans, and awarded the debtor $1,139,288.69 on his counterclaim. On February 14, 2003, in a “Supplemental Opinion,” the arbitrator awarded the debtor interest of 16.1% per year on the counterclaim, compounded annually from September 30, 1993 (thereby adding $3.7 million to the award). Both sides moved in the New York Supreme Court for confirmation of awards in favor of each, and in opposition to awards made against each. That court, in a judgment dated December 2, 2003, confirmed the $428,811.64 award to Milbank, but vacated the interest, and confirmed the $1,139,288.69 award to the debtor, but vacated the 16.1% compound interest, concluding that the arbitrator did not have the power so to amend the August 7, 2000 award. Both sides then requested reargument, but reargument was stayed when the debtor filed his Chapter 7 petition. Both parties also filed notices of appeal to the Appellate Division of the New York Supreme Court (“the Appellate Division”), which were pending on the petition date. B. Taking into account all of the awards Milbank and the debtor owed each other, as of the petition date, Milbank owed the debtor a net amount of about $519,000 (“the Milbank award”). The Milbank award is security for the following liens (with filing dates, where applicable): 6961. Ross’ attorney charging lien of $727,000; 2. Internal Revenue Service liens for $683,441.26 for back taxes filed 1997-2002; 3. Phillips, Nizer LLP lien for $100,000, filed June 8, 2000; 4. Salans lien for $150,000, filed September 18, 2002; 5. Linda R. Jones lien for $350,000, filed September 22, 2003; 6. Citibank, N.A. lien for $341,600, filed on October 22, 2003; 7. Reeves lien for $255,000, filed January 20, 2004.1 This court, on August 31, 2005, entered a judgment, after a contested hearing, fixing the amount of Ross’ attorney’s charging lien at $727,000 as a first lien secured by the Milbank award, and authorized Ross to credit bid up to said amount on the trustee’s proposed sale of the Milbank award. C. The settlement with Milbank proposed by the trustee contains the following elements: Milbank will pay $475,000 to the debtor’s estate; Ross has agreed to carve out $50,000 from his lien for the benefit of the estate, and to accept the $425,000 balance of the settlement in satisfaction of his lien; all appeals will be withdrawn; and the trustee, Ross and Milbank will exchange mutual releases. On June 13, 2005, the trustee filed a pleading which, in effect, was an attempt to solicit from the estate creditors (i.e. the holders of liens on the Milbank award) offers that exceeded the settlement proposed in the settlement motion. No such offer was received and the trustee then renewed the settlement motion. Reeves’ objection to the settlement motion contends that accepting $475,000 for the $519,000 Milbank award is unreasonable because “the Milbank award[] may have a gross value of $4.8 million” and “the proposed compromise would extinguish the arbitration award with little or no payment made to any lienholders.” (Obj. at 2,7.)2 Reeves urges the court to accept the following proposal to which Ambler testified. Ambler stated at the hearing that he is a retired tax attorney whose family seeks to assist Reeves in collecting monies due her from the debtor. He testified that he would personally fund the cost up to $100,000 of pursuing the pending appeal to the Appellate Division, with reimbursement of such money to be given priority over all liens, except for the Ross lien to the extent of $425,000. He testified that he was unwilling, at this time, to commit to funding the expense of any appeal from Appellate Division to the New York Court of Appeals or of relitigating the issues in the Supreme Court if the matter were remanded. III. DISCUSSION Fed. R. Bankr.P.9019(a) provides, in pertinent part: “On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement.” “In undertaking an examination of 697the settlement, ... this responsibility of the bankruptcy judge ... is not to decide the numerous questions of law and fact raised by appellants but rather to canvass the issues and see whether the settlement falls below the lowest point in the range of reasonableness.” In re W.T. Grant Company, 699 F.2d 599, 608 (2d Cir.1983) (citation and internal quotation marks omitted). Courts look to several factors which shed light on whether the compromise remains above the lowest point in the range of reasonableness. In determining whether a settlement is “fair and equitable,” i.e., within the range of reasonableness, Courts should balance: a) the likelihood of success compared to the present and future benefits offered by the settlement; b) the prospect of complex and protracted litigation [and the cost thereof] if settlement is not approved; e)the proportion of [affected creditors] who do not object or who affirmatively support the proposed settlement; d) the competency and experience of counsel who support settlement; e) the relative benefits to be received by individuals or groups [affected by the settlement]; f) the nature and breadth of releases to be obtained ...; g) the extent to which settlement is the product of arm’s length bargaining. In re Drexel Burnham Lambert Group, Inc., 134 B.R. 493, 497 (Bankr.S.D.N.Y.1991) (citations omitted). Ross, who has represented the debtor in the underlying litigation since its inception in 1997, testified as to the prior proceedings therein and presented his assessment of the risks of pursuing an appeal in lieu of the settlement. Ross noted that the judgment in favor of Milbank on the notes was not appealable; that there were no colorable grounds for such an appeal and that the time for doing so had already expired. Ross also pointed out (as did Milbank’s counsel in his opening statement) that Mil-bank’s appeal is not limited to the question of interest, but also concerns whether the arbitrator’s award should be overturned in its entirety, noting that there is a significant body of case law to the effect that an arbitrator may not ignore the express provisions of the Milbank partnership agreement prohibiting such payments.3 If the Appellate Division were to agree, only Mil-bank’s judgment against the debtor would remain and no estate creditors, secured or unsecured, would receive any distribution. Reeves submitted no testimony or other evidence to counter that received from Ross. The events giving rise to the underlying litigation took place more than 13 years ago and the litigation thus far has been ongoing since 1997. In light of such history and the parties involved, the prospect of a speedy resolution of the issues at the Appellate Division appears highly unlikely. If the Appellate Division were to decide all issues in favor of the trustee, Milbank has represented it would seek further review by the Court of Appeals; if the Appellate Division were to decide that the arbitrator had the jurisdiction to award interest, the *698case would be remanded to the trial court for consideration of an appropriate interest rate; and if the Appellate Division were to decide that the arbitrator lacked the jurisdiction to subsequently amend his decision to include interest, neither Ross nor any of the other lienors would receive anything without seeking further review by the Court of Appeals. The court concludes that pursuit of an appeal to the Appellate Division is unlikely to resolve matters at that level, and would likely lead to further proceedings, for which the estate lacks the necessary financing. The court is mindful that, under the proposed settlement, the claims of lien-holders other than Ross are left unsecured and that the $50,000 carve out to the estate will be its only asset. However, under the alternative proposed by Reeves, the estate would have to recover at least $827,000 (Ross’ $727,000 lien plus Ambler’s $100,000) before any other lienor could receive any distribution. Furthermore, the next lien in order of priority would be that of the Internal Revenue Service (which has not objected to the proposed settlement) in the amount of $683,441.26, bringing to $1,510,441.26 the net recovery necessary before any other lienors could be paid. IV. CONCLUSION Having surveyed the procedural and substantive issues involved and reviewed the New York state court rulings, the court finds that the proposed settlement does not fall below the lowest point in the range of reasonableness. The court concludes that the trustee’s motion to approve the settlement be granted. It is SO ORDERED. . Based upon a record search made by Ross in states of New York, Connecticut and Florida. The debtor, in Schedule D of his petition (Creditors Holding Secured Claims) lists Ross’ lien for $718,214.25; the I.R.S. lien for $686,441.26; Phillips, Nizer LLP lien for $100,000; Salans lien for $149,987; Jones lien for $350,000; Citibank lien for $449,600; and Reeves lien for $364,012.58. Ross testified that the liens of Citibank, N.A. and Phillips, Nizer LLP may be subordinate to that of Reeves. . Salans and Citibank, N.A. filed papers supporting the Reeves objection. . Ross testified that the partnership agreement expressly provided that a former partner who resigns is not entitled to an accounting; that, in lieu of an accounting, the agreement provided for a series of payments based upon the former partner's “inventory” of outstanding legal work that remained with Milbank; that such payments were reduced based upon the former partner’s income from subsequent employment; and that the application of such offset would likely eliminate any payments from Milbank under the agreement.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493868/	CARL L. BUCKI, Bankruptcy Judge. In this chapter 7 proceeding, the case trustee seeks a turnover of one-half of the funds that were on deposit in a joint bank account under the names of the debtor and his father. In response, the father con711tends that he established the account in joint name for purposes of convenience only, and that he should be deemed to hold exclusive ownership of the funds on deposit. Thomas A. Carella filed a petition for relief under chapter 7 of the Bankruptcy Code on January 25, 2005. On that date, HSBC Bank USA held the sum of $16,540.94 on deposit in a joint bank account in the names of the debtor and of his father, Thomas J. Carella. The debtor claimed an exemption for this entire amount, but in response to the trustee’s objection, this court limited that claim to the otherwise unused portion of the debt- or’s exemption for cash in the amount of $2,500. See New York Debtor and Creditor Law § 283(2) (McKinney 2001). Asserting rights to one-half of the joint account, the trustee then moved for an order directing the debtor to turn over the nonexempt component of those funds. The debtor and his father responded that the son’s name was placed on the account for reasons of convenience only, and that true ownership remains with the father. I do not need to recite the procedural history of the present dispute. Rather, it suffices to note that this matter was duly presented for consideration at a hearing with participation by the respective counsel for the trustee, the debtor, and the debtor’s father. The court has heard oral argument and has allowed to both sides an opportunity to present post-hearing memo-randa. All parties accept the application of the law of New York, in as much as the funds were deposited at a branch within that state. New York Banking Law § 675(b) states that in the absence of fraud or undue influence, the making of a deposit into a joint bank account shall constitute “prima facie evidence ... of the intention of both depositors or shareholders to create a joint tenancy and to vest title to such deposit or shares, and additions and accruals thereon, in such survivor.” Thus, the statute creates a presumption of joint ownership. That presumption, however, is re-buttable. Although the burden of proof falls upon the party who contests joint ownership, a challenger may overcome the presumption through “direct proof or substantial circumstantial proof, clear and convincing and sufficient to support an inference that the joint account had been opened in that form as a matter of convenience only.” Matter of Coddington, 56 A.D.2d 697, 698, 391 N.Y.S.2d 760 (3rd Dept.1977); accord, Kolodziejczyk v. Wing, 261 A.D.2d 927, 689 N.Y.S.2d 825 (4th Dept.1999); Viggiano v. Viggiano, 136 A.D.2d 630, 523 N.Y.S.2d 874 (2nd Dept.1988); Phelps v. Kramer, 102 A.D.2d 908, 477 N.Y.S.2d 743 (3rd Dept.1984); Brezinski v. Brezinski, 94 A.D.2d 969, 463 N.Y.S.2d 975 (4th Dept.1983); Radano v. Blum, 89 A.D.2d 858, 453 N.Y.S.2d 38 (2nd Dept.1982). In the present instance, the debt- or’s father had maintained an account in his own name at HSBC Bank USA for many years. In April of 2004, however, the father learned that he would soon undergo heart bypass surgery. In anticipation of that event, the debtor and his father went together to the bank, where the father transferred his funds into a joint account providing rights of survivorship. Father and son testified that the senior Mr. Carella funded the entire account, nearly all of which represented either the father’s monthly Social Security benefits or proceeds from a sale of the father’s home. To the Internal Revenue Service, the bank continued to report interest as income of the father. The son stated that even after the change of account designation, he always understood that the funds belonged to his father. The son never attempted either to withdraw or to deposit 712funds into the account, and at the time of trial, he could not recall the account balance. The debtor is an only child. At the trial, the father represented that he feared death as a consequence of his cardiac surgery, and that a purpose for changing the account was to assure an orderly transfer of assets upon death. The father stated that he intended to retain control of the account, and that he gave instructions that the son was to access the funds only upon the father’s direction. Fortunately, after an extended rehabilitation, the father recovered. Even during the period of recuperation, the father continued to manage his financial affairs, and arranged to leave his nursing home to handle any necessary banking transactions. The debtor and his father contend that the facts show an intent for the father to retain control of the account, and that this control indicates a retention of ownership by the father. In contrast, the trustee views the father’s exercise of control as evidence that he opened the joint account for reasons other than convenience. Instead, the trustee argues that the account served as a testamentary substitute and that its creation established a gift causa mortis. If treated as a gift, the debtor’s moiety would arguably become an asset of the bankruptcy estate. A joint account may fulfill the requirement of “convenience” in many different ways. Some depositors may seek the convenience of a second party to handle transactions, or the convenience of a “stand-by” arrangement in the event of an unforeseen calamity. But other depositors may also seek the convenience of a testamentary declaration without the formality of a will execution. In all instances, the key issue is whether a party truly intends to transfer ownership, or merely seeks a short-hand method to accomplish some other legitimate purpose. Here, the father intended to retain an account that he wished to earmark for a testamentary disposition to his son. Perhaps he might more effectively have accomplished this purpose through use of a will or trust. Nonetheless, through clear and convincing evidence of control, the father has demonstrated that he created the joint account for his own convenience and without any transfer of ownership. Thus, in my view, he has overcome the presumption of joint ownership. My decision essentially follows the precedent of Wacikowski v. Wacikowski, 93 A.D.2d 885, 461 N.Y.S.2d 888 (2nd Dept.1983). In that case, a mother had deposited her funds into an account opened jointly in her name and in the name of her son. As in the present instance, the evidence showed that the mother had exercised exclusive control over the account and that the son had never made any deposits or withdrawals. Based on this proof, the Appellate Division held that the mother had successfully rebutted the presumption of a joint tenancy under Banking Law § 675. Further, the court noted that “[i]n many cases involving joint bank accounts, a donor depositor like plaintiff will intend to transfer to her donee, in this case her son, only the right of survivorship, without necessarily transferring a present beneficial interest in the funds in the account.” Id. at 885, 461 N.Y.S.2d 888. Similarly, the senior Mr. Carella will retain ownership of the joint account, despite its use in the present instance to serve as a testamentary substitute. The trustee argues that in most bankruptcy cases, the estate has no allies with knowledge of the facts and circumstances as they existed pre-petition. Indeed, for this reason, the trustee must rely upon the presumption of joint tenancy. But here, where the clear and convincing weight of evidence shows that the joint designation *713fulfills a need of convenience, true ownership remains in the party who provided the source of funds. For the reasons stated herein, this court will deny the trustee’s motion for a turnover of bank deposits in the joint names of Thomas A. Carella and his father, Thomas J. Carella. So ordered.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493869/	OPINION 1 MARY F. WALRATH, Bankruptcy Judge. Before the Court is the Motion of Stan-field Capital Partners, LLC for Entry of an Order Disqualifying Milbank, Tweed, Hadley & McCloy as Counsel to the Informal Committee of First Lien Lenders Pursuant to Rule 1.7 of the Delaware Lawyers’ Rules of Professional Conduct. For the reasons set forth below, the Court will grant the relief requested. I. BACKGROUND Stanfield Capital Partners, LLC (“Stanfield”) holds pre-petition secured debt of Meridian Automotive Systems-Composite Operations, Inc., and its affiliates (the “Debtors”). Some of the debt is secured by a first lien on the Debtors’ assets; some is secured by a second lien. In October, 2004, Stanfield hired Milbank, Tweed, Hadley & McCloy LLP (“Milbank”) to analyze the credit agreements related to that debt, as well as the intercreditor agreement between the first and second lenders (collectively, the “Credit Documents”). The analysis was for the purpose of identifying provisions that might affect the second lien lenders’ plan to provide additional financing to the Debtors secured by first-priority liens in accounts receivable. Stanfield paid Mil-bank $24,840 for its services and related expenses. In April 2005, in anticipation of filing bankruptcy, the Debtors obtained a commitment for a debtor-in-possession credit facility that would pay off the first lien debt in full (the “Take-Out Facility”). Although the agent for the first lien lenders had obtained counsel in anticipation of the Debtors’ bankruptcy, an informal committee of holders of only first lien debt (the “FLC”) was formed because some of the first lien lenders, including Stanfield, also owned second lien debt. The FLC retained Milbank on April 22, 2005, to advise it with respect to intercreditor issues that 744might arise if the Take-Out Facility was not approved by the Court. The Debtors filed these bankruptcy cases on April 26, 2005. The Court entered orders approving the Take-Out Facility on an interim basis on April 27 and May 27, 2005. The Debtors were unable to meet the conditions necessary to obtain final approval, however, and were forced to seek alternative financing that would leave intact (and prime) both tranches of pre-petition secured indebtedness (the “Priming Facility”). On June 30, 2005, the Court entered an order approving the Priming Facility (the “Final DIP Order”). Milbank continued to represent the FLC on the intercreditor issues after entry of the Final DIP Order. On February 13, 2006, Stanfield filed the instant motion to disqualify Milbank from further representation of the FLC. Milbank filed an objection to the motion, under seal, on March 3. On March 7, the Court held an evidentiary hearing but reserved ruling on the motion pending the parties’ stipulation to trial exhibits and submission of supplemental briefs. The Court has reviewed those briefs and the trial record. This matter is ripe for decision. II. JURISDICTION Stanfield’s motion to disqualify Mil-bank is a core proceeding over which the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A). See, e.g., Century Indem. Co. v. Congoleum Corp. (In re Congoleum Corp.), 426 F.3d 675, 686 (3d Cir.2005) (“[O]ne of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it.”); In re Johore Inv. Co., 157 B.R. 671, 674 (D.Haw.1985) (“[A] motion to disqualify counsel of a major secured creditor is a matter integrally tied to the administration of the estate, and disposing of such a motion is clearly a necessary function of the bankruptcy judge in presiding over the orderly administration of the estate.”) III. DISCUSSION The Model Rules of Professional Conduct of the American Bar Association (the “Model Rules”) govern the practice of law before this Court.2 Del. Bankr.L.R. 1001-1(b) (adopting the Local Rules of Civil Practice and Procedure of the United States District Court for the District of Delaware); D. Del. L.R. 83.6(d)(2) (incorporating the Model Rules). For conduct inconsistent with the Model Rules, an attorney “may ... be reprimanded or subjected to other such disciplinary action as the circumstances may warrant.” D. Del. L.R. 83(6)(d)(1). A. Rule 1.7 — Concurrent Conflict of Interest Stanfield argues that Milbank’s representation of the FLC is prohibited by Model Rule 1.7(a), which provides that “a lawyer shall not represent a client if the representation of ... [that] client will be directly adverse to another client.” According to Stanfield, Milbank continues to represent it because Stanfield never terminated Milbank’s engagement and Mil-bank never withdrew from the representation. Consequently, Stanfield argues, Mil-bank’s representation of the FLC, whose interests are directly adverse to those of Stanfield, creates a concurrent conflict of interest prohibited by Model Rule 1.7. Milbank argues that Stanfield terminated Milbank’s engagement and, therefore, Model Rule 1.7 is inapposite. In an e-mail exchange in early March, 2005, Stephen Blauner, the Milbank partner responsible 745for Stanfield, asked Christopher Pucillo, the fund manager in charge of Stanfield’s Meridian investments, whether Stanfield planned to utilize Milbank for the Debtors’ impending bankruptcy cases. Blauner stated that he would be leaving Milbank to pursue other opportunities in June, 2005, but that he “would be happy to hand off’ the matter to another Milbank attorney. Pucillo responded, “The consensus was that [Milbank] was going to be too busy .... so we really just decided to move on.” He said the decision had been made without him but he did not disagree. He also stated he would only “push back” if he “knew [he] could have [Blauner] working on it.” (Ex. M-13.) Pucillo testified that the “we” to whom he referred was not Stanfield, but rather the second lien lenders in general, whose agent had already obtained other counsel for these cases. Pucillo testified further that he did not intend to terminate Mil-bank’s engagement. Pucillo’s testimony is not credible. If Pucillo had intended to utilize Milbank’s services, he naturally would have said so in response to Blauner’s open-ended inquiry. Further, Pucillo made clear in his e-mail that he was not interested in retaining Milbank unless Blauner was there. Blauner understood this to mean that Stanfield had decided not to utilize Milbank in the Debtors’ cases. (TR. at 284.) Therefore, the Court finds that Stanfield terminated the attorney-client relationship with Milbank almost two months before Milbank undertook the FLC representation. Consequently, the Court concludes that Model Rule 1.7 is not implicated. B. Rule. 1.9 — Duties to Former Clients In the alternative, Stanfield argues that Milbank violated a duty owed to it as a former client under Model Rule 1.9(a). That Rule provides: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. Model R. Prof'l Conduct 1.9(a). Stanfield argues that the intercreditor issues for which it retained Milbank are the same as those arising in these cases since the collapse of the Take-Out Facility. Accordingly, Stanfield contends that Mil-bank needed its written consent to the FLC representation, which Milbank neither sought nor obtained. Milbank concedes that the interests of Stanfield and the FLC are materially adverse and that it never sought Stanfield’s consent to the FLC representation. It denies, however, that the Stanfield and FLC representations concern the same or substantially related matters. Further, even if the matters are related, Milbank argues that Stanfield consented to its representation of the FLC. 1. Same or Substantially Related Matter The Model Rules do not define what constitutes a “matter” for conflict-of-interest purposes. Comment 2 to Model Rule 1.9, however, provides: The scope of a “matter” ... depends on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited.... The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be 746justly regarded as a changing of sides in the matter in question. Model R. Prof'l Conduct 1.9, cmt. [2]. According to Stanfield, the Debtors’ pre-petition debt structure was the “matter” for which it and the FLC hired Milbank. Because each client’s ultimate purpose was to maximize its position vis-a-vis the other tranche of lien creditors, Stanfield believes Milbank has a conflict. According to Milbank, the Stanfield representation concerned a discrete refinancing transaction (the accounts receivable facility) that was mooted by the Debtors’ bankruptcy filing. The FLC representation, on the other hand, concerns inter-creditor issues arising within the bankruptcy cases and is totally independent of Stanfield’s pre-bankruptcy refinancing plans, according to Milbank. Although the Credit Documents are common to both representations, Milbank insists the representations are factually distinct and that it did not “change sides.” The Court disagrees. While Stanfield’s immediate objective in hiring Milbank was to implement the proposed receivables facility, its ultimate objective was to protect its second-lien position. Indeed, Blauner believed he “was representing Stanfield in connection with Meridian." (TR. at 282 (emphasis added).) This is probably why he felt he “had to ask” Pucillo about Stanfield’s plans when Milbank started to get calls from other parties in the case. (Ex. M-18.) Moreover, the work done by Milbank for Stanfield reflects the broad scope of the engagement. In its memorandum outlining the steps necessary to implement the proposed receivables facility, Milbank acknowledged that many of the concepts were “also relevant to any liquidity facility that might be considered for Meridian.” (Ex. M-4 (emphasis added).) This would include the Priming Facility under which the Debtors are currently operating. Furthermore, Milbank reviewed all the Credit Documents and produced a chart which identified questions that Stanfield, as a second lien creditor, should explore. (Ex. M-5.) Milbank also provided answers (i.e., legal advice) to those questions, explaining how Stanfield could protect its position. Milbank described this work as “a matrix containing our analysis of the various in-tercreditor issues arising in respect of the first- and second-lien loan positions for Meridian.” (Ex. M-5 (emphasis added).) The legal advice which Milbank is now providing to the FLC concerns the same intercreditor issues, only this time Milbank is advising the first lien creditors how to protect themselves from the second lien creditors, including Stanfield. Milbank obviously cannot advise each tranche of secured debt holders as to its rights vis-á-vis the other under the Credit Documents without “changing sides in the matter in question.” See, e.g., Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537, 543 (2d Cir.1994) (affirming judgment against Milbank for breach of duty to former client where Milbank “pursue[d] on behalf of [its subsequent client] an amendment to the same transaction that it had previously negotiated on behalf of [the former client.]”). Accordingly, the Court concludes that the FLC and Stanfield representations concerned the “same matter” under Model Rule 1.9(a). Milbank resists this conclusion and draws the Court’s attention to cases discussing the “substantially related” prong of Model Rule 1.9(a). See, e.g., Integrated Health Servs., of Cliff Manor, Inc. v. THCI, Co., 327 B.R. 200, 206-07 (D.Del.2005); Satellite Fin. Planning Corp. v. First Nat’l Bank of Wilmington, 652 F.Supp. 1281, 1283 (D.Del.1987). According to Milbank, the sole purpose of Model Rule 1.9 is to protect client confidences. Milbank alleges that it did not obtain any 747confidential information from Stanfield. Therefore, Milbank argues Model Rule 1.9(a) is not implicated. Preliminarily, Milbank is mistaken about the relevant legal standard. Matters are “substantially related” under Model Rule 1.9(a) “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Model R. Prof'l Conduct 1.9, cmt. [3] (emphasis added). Thus, while the risk of a breach of client confidences is a sufficient condition for “relatedness,” it is not a necessary one. Accord Del-Chapel Assocs. v. Ruger, C.A. No. 16942, 2000 WL 488562, at 5 (Apr. 17, 2000) (“[Disqualification may be proper even if access to the former client’s confidential information is not a concern.”) This makes sense in light of the three distinct purposes of Model Rule 1.9: First, it is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide completely in their attorneys. Second, the rule is important for the maintenance of public confidence in the integrity of the bar. Finally, and importantly, a client has a right to expect the loyalty of his attorney in the matter for which he is retained. In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 162 (3d Cir.1984) (emphasis added). Representing an adverse party in the same transaction or legal dispute frustrates the former client’s expectation when seeking legal representation that “his attorney will never be found helping the other side.” ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 1157 (1970). See also Corn Derivatives, 748 F.2d at 161 (recognizing a “duty of continuing loyalty” to former clients). This is so whether or not the attorney also violates the duty of confidentiality in the process. The Court finds that Milbank’s representation of Stanfield and the FLC with respect to the same loan documents raises duty-of-loyalty concerns that are alone sufficient to support a violation of Model Rule 1.9. Even if confidentiality concerns were a necessary rather than sufficient condition for relatedness, however, Mil-bank’s belief that it does not possess confidential information about Stanfield is also mistaken. Milbank insists that the only information it received from Stanfield was the content of the Credit Documents, which were not proprietary to Stanfield and, in fact, were already accessible by the FLC. This misses the point. The duty of confidentiality “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Model R. Prof'l Conduct 1.6, cmt. [3] (emphasis added). Milbank’s own legal conclusions about the Credit Documents and advice to Stanfield are particularly confidential. Knowledge of this confidential information could3 materially advance the FLC’s position by giving it a head start in assessing the intercreditor issues arising under the Credit Documents and revealing precisely what Stanfield perceived to be the 748strengths and weaknesses of its own position. See Webb v. E.I. DuPont de Nemours & Co., 811 F.Supp. 158, 162 (D.Del.1992) (“Adverse use of confidential information is not limited to disclosure. It includes knowing ... what lines of attack to abandon and what lines to pursue, what settlements to accept and what offers to reject, and innumerable other uses.”). This is particularly relevant here because the parties are currently embroiled in intense negotiations about the Debtors’ plan of reorganization. Accordingly, the Court concludes that, even if the Stanfield and FLC matters are not “the same,” they are “substantially related” under Model Rule 1.9(a). 2. Informed Consent, Confirmed in Writing To represent the FLC, Milbank needed Stanfield’s informed consent, confirmed in writing. Model R. Prof'l Conduct 1.9(a). Under the Model Rules, “informed consent” denotes “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Model R. Profl Conduct 1.0(e). The lawyer “need not inform [the] client ... of facts or implications already known to the client.” Id., cmt. [6]. a. Express Consent Milbank argues that Stanfield affirmatively consented to the FLC representation, in writing, through Pucillo’s March 4, 2005, e-mail to Blauner. (Ex. M-13.) Pucillo has substantial experience in bankruptcy matters. Accordingly, Milbank argues, Pucillo “understood the implications” of being told by Blauner that Milbank was getting calls about the Debtors’ cases. According to Milbank, Pucillo’s response that Stanfield had “decided to move on” amounted to consent to Milbank’s retention by another in these cases. The Court disagrees. Pucillo’s statement merely terminated the attorney-client relationship. Blauner testified that was his understanding of the e-mail exchange. (See TR. at 284-85.) Although termination of the attorney-client relationship meant Milbank was free to represent other creditors in these cases, it did not mean Milbank was free to advise other parties to the Credit Documents, who are directly adverse to Stanfield, on intercreditor issues. Moreover, even if Pucillo had intended to consent to other representations, such consent was not effective because Blauner’s reference to “calls” was not adequate to inform Pucillo that the FLC was among Milbank’s potential suitors. See Model R. Prof'l Conduct 1.7, cmt. [22] (“If ... consent [to a future conflict] is general and open-ended, then the consent will ordinarily be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.”). Indeed, at the time of the March e-mail exchange, Blauner was in no position to inform Pucillo of this possibility because the FLC had not yet been formed. b. Implied Consent Milbank argues that, even if Stan-field did not affirmatively consent to Mil-bank’s representation of the FLC, it implicitly consented by failing to bring the conflict to Milbank’s attention within a reasonable time. While “[o]btaining informed consent will usually require an affirmative response by the client,” consent “may be inferred ... from the conduct of a client ... who has reasonably adequate information about the matter.” Model R. Prof'l Conduct 1.0(e), cmt. [7]. This argument is unconvincing. Mil-bank was already representing the FLC 749when Stanfield received notice of the engagement. Thus, Milbank had already violated Model Rule 1.9 by the time Stan-field could have raised the issue. See, e.g., Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 273 (D.Del.1980) (“[T]he duty is upon the attorney to ferret out ... conflicts, and not upon the client to divulge them.”). Furthermore, Stanfield did bring the conflict to Milbank’s attention within a reasonable time. On June 24, 2005, Pucillo and Andrew Siegel, Stanfield’s general counsel, phoned Warren Cooke, co-chair of Milbank’s Risk Management Committee, and voiced their concern that the FLC representation was inappropriate. (See Ex. M-43.) Based on his own review of Milbank’s files and billing records, Cooke took the untenable position that the FLC and Stanfield matters were “basically unrelated” and that Milbank did not need Stanfield’s consent to the representation. Milbank does not contend that it would have taken a different position if Stanfield had raised the issue earlier. Consequently, Stanfield’s delay of two months in raising the conflict was immaterial. It was also understandable. Approval of the Take-Out Facility would have mooted any conflicts by eliminating the first lien debt. Thus, the conflict had not fully ripened until the Take-Out Facility collapsed and the Priming Facility was proposed. It was not unreasonable for Stanfield to wait until that time to raise the issue with Milbank. Milbank argues further that the Final DIP Order was a “writing” which confirmed such implied consent because it authorized the payment of Milbank’s fees for representing the FLC to which Stanfield did not object. The Final DIP Order requires that the Debtors pay, as adequate protection for the FLC members, (1) up to $250,000 of Milbank’s reasonable fees and expenses incurred prior to the Final DIP Order, and (2) “the reasonable fees and expenses of ... one law firm (if any) as counsel” for the FLC with respect to “in-tercreditor issues.” Milbank’s assertion that the Final DIP Order constitutes written evidence of Stan-field’s consent is unconvincing. The Court’s Final DIP Order does not qualify as a “confirmatory writing” under Model Rule 1.9 because it was neither “given by” Stanfield nor “transmitted by” Milbank. See Model R. Profl Conduct 1.0(b). Significantly, nothing in the Final DIP Order mentions Milbank’s conflict of interest or Stanfield’s consent thereto. In fact, the Court was unaware of the conflict until Stanfield filed its disqualification motion in February, 2006. Accordingly, the Court finds that Stanfield did not consent to Milbank’s representation of the FLC. Because that representation was adverse to Stanfield in a matter in which Milbank had represented Stanfield, the Court concludes that Mil-bank violated Model Rule 1.9. C. Waiver Milbank argues, nonetheless, that Stanfield waived any right to seek disqualification by waiting to file its motion eight months after learning that Milbank refused to withdraw. See, e.g., Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983) (holding that waiver is appropriate where a former client has a valid ground for disqualification but “knowingly refrains from asserting it promptly”). Milbank insists this delay was purely tactical, designed to deprive the FLC of its counsel of choice at a crucial point in these cases. The Court is more concerned with Milbank’s conduct than Stanfield’s alleged motive in bringing this motion. The Court’s “supervision of the ethical conduct of attorneys practicing before it is designed to protect the public interest and 750not merely the interest of the particular moving party.” INA Underwriters Ins. v. Nalibotsky, 594 F.Supp. 1199, 1203 (E.D.Pa.1984). Moreover, “[r]ules governing professional conduct are often viewed as even more necessary and applicable in bankruptcy cases than in other contexts.” Congoleum, 426 F.3d at 686. The rules are so important that courts may act sua sponte to enforce them. O’Connor v. Jones, 946 F.2d 1395, 1399 (8th Cir.1991). Consequently, the Court would not find a waiver by Stanfield unless it is clearly warranted by the facts. In this case it is not. Stanfield complained to Milbank of its representation of the FLC beginning in June. When its efforts did not result in Milbank withdrawing, Stanfield hired counsel who made similar efforts to resolve the issue. Only when those efforts were unsuccessful did Stanfield file the instant Motion. Given Stanfield’s continued insistence that there was a conflict, Milbank could not have believed that Stanfield waived the conflict. D. Disqualification Milbank argues that it should not be disqualified because, in arriving at the conclusion that the FLC representation was appropriate, Cooke relied in good faith on the opinion of Blauner, the former chair of Milbank’s Risk Management Committee and an expert on legal ethics in the state of New York. The Court is not convinced. Blauner’s “opinion” on which Milbank relied was but one of several hypotheticals that he posited in his “Conflicts Kindergarten” presentation to the Risk Management Committee prior to his departure. It borrowed some facts from the Stanfield and FLC representations, but differed in two important respects. First, it did not take into account that “intercreditor issues” were a common thread between the two representations. Second, it posited that Milbank had obtained a written waiver from Stan-field. Had Cooke investigated the facts adequately, e.g. by consulting with Blauner and the attorneys working on the FLC matter, he would have discovered these discrepancies. Milbank argues finally that the prejudice to the FLC if it is deprived of its counsel of choice outweighs any prejudice to Stanfield if the representation were to continue. The Court acknowledges that Milbank’s disqualification may adversely affect the FLC. However, parties do not have an absolute right to retain particular counsel. The plaintiffs’ interest in retaining counsel of its choice and the lack of prejudice to IBM resulting from [counsel’s] violation of professional ethics are not the only factors to be considered in this disqualification proceeding. An attorney who fails to observe his obligation of undivided loyalty to his client injures his profession and demeans it in the eyes of the public. The maintenance of the integrity of the legal profession and its high standing in the community are important additional factors to be considered in determining the appropriate sanction for a ... violation [of the Model Rules]. The maintenance of public confidence in the propriety of the conduct of those associated with the administration of justice is so important a consideration that we have held that a court may disqualify an attorney for failing to avoid even the appearance of impropriety. Indeed, the courts have gone so far as to suggest that doubts as to the existence of an asserted conflict of interest should be resolved in favor of disqualification. IBM Corp. v. Levin, 579 F.2d 271, 283 (3d Cir.1978) (citations omitted). The Court has no difficulty concluding that, on balance, Milbank’s violation of Model Rule 1.9 and dogged refusal to ac*751knowledge the same warrant disqualification from further representation of the FLC in these cases. IV. CONCLUSION For the foregoing reasons, the Court will grant Stanfield’s motion to disqualify Milbank from further representation of the FLC. An appropriate order is attached. ORDER AND NOW, this 17th day of April, 2006, upon the Motion of Stanfield Capital Partners, LLC for Entry of an Order Disqualifying Milbank, Tweed, Hadley & McCloy (“Milbank”) as Counsel to the Informal Committee of First Lien Lenders (the “FLC”), and after considering arguments in opposition thereto, and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that the Motion is GRANTED and Milbank shall be disqualified from further representation of the FLC in the above-captioned bankruptcy cases. . This Opinion constitutes the findings of fact and conclusions of law of the Court pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure, which is made applicable to contested matters by Rule 9014 of the Federal Rules of Bankruptcy Procedure. . Stanfield styles its motion as one arising under Delaware state law, a harmless error given Delaware’s adoption of the relevant Model Rules. . Although none of the attorneys who worked on the Stanfield matter appear to be involved in the FLC representation, the conflict of one attorney is imputed to the firm. Model R. Profl Conduct 1.10.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493870/	MEMORANDUM AND ORDER SUSTAINING EDUCATIONAL CREDIT MANAGEMENT CORPORATION’S OBJECTION TO CONFIRMATION FRANK J. OTTE, Bankruptcy Judge. This matter is before the Court on the Objection to Confirmation, filed by Educational Credit Management Corporation (“ECMC”), assignee of the United States Department of Education pursuant to Fed. R.Bankr.Pro. 3015. The Debtor is indebted to ECMC pursuant to various student loan notes, pursuant to which the Debtor financed her post-secondary education at IUPUI. The Loans are for an educational loan made, insured or guaranteed by a governmental unit and as such are non-dischargeable obligations under sections 523(a)(8) and 1328(a)(2) of the United States Bankruptcy Code, Title 11 United States Code, section 101 et seq. (the “Bankruptcy Code”). The Debtor filed her petition under chapter 13 of the Bankruptcy Code on October 14, 2005. The Debtor has filed various chapter 13 plans, the latest of which (the “Plan”) provides that after payment of approximately $20,600 of the Loans the “[bjalance of student loan will be discharged upon completion of plan payments.” See Plan, § 8 (the “Illegal Plan Provision”). To the extent the Illegal Plan Provision attempts to direct the application of trustee payments first towards ECMC’s principal claim and then to the remainder of the Loans, the Illegal Plan Provision violates 34 C.F.R. § 682.404(f), which requires ECMC to apply payments made on the Loans “first to the collection costs ... then to other incidental charges, such as late charges, then to accrued interest and *897then to principal.” See generally Kielisch v. Educational Credit Mgmt. Corp., 258 F.3d 315, 320-321 (4th Cir.2001). To the extent the Illegal Plan Provision seeks to discharge the Loans (or any portion thereof) in the absence of a judgment of this Court in a ripe adversary proceeding, such provision violates section 1328(a)(2), which provides that a chapter 13 discharge granted under section 1328 of the Bankruptcy Code does not provide a discharge “for any debt ... of the kind specified in paragraph (5), (8), or (9) of section 523(a) of this title.” The Loans constitute a debt of the kind specified in paragraph (8) of the Bankruptcy Code. Thus, the Plan does not comply with the provisions of chapter 13 of the Bankruptcy Code. Under section 1325(a)(1), this Court will not confirm the Plan unless “the plan complies with the provisions of this chapter and with other applicable provisions of this title.” Because of the Illegal Plan Provision, the Plan fails to comply with the provisions of the Bankruptcy Code, which prohibits confirmation of the Plan. The Seventh Circuit recently summarized its disdain for these sorts of provisions: A number of student loan debtors have circumvented this process by inserting undue hardship findings or student loan or loan interest discharge provisions in their proposed plans. See, e.g., In re Banks, 299 F.3d 296 (4th Cir.2002); In re Ruehle, 307 B.R. 28 (6th Cir. BAP 2004). Apparently, the hope is that an unsuspecting bankruptcy court will confirm the plan and that the lender will not recognize the discharge by declaration ploy in time to object to confirmation or to file an appeal. The result is contrary to the express language of the Bankruptcy Code and Rules: The debt- or obtains a discharge of his student loan debt without filing an adversary proceeding to establish undue hardship. In re Hanson, 397 F.3d 482, 484-485 (7th Cir.2005). THEREFORE, THIS COURT ORDERS AS FOLLOWS: 1. ECMC’s Objection to Confirmation is sustained in all respects. 2. The Illegal Plan Provision is hereby stricken from the Plan and the Debtor shall not submit a subsequent chapter 13 plan that includes the Illegal Plan Provision.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493871/	OPINION AND ORDER RE MOTIONS TO DISMISS S. MARTIN TEEL, JR., Bankruptcy Judge. Seeking to avoid and recover various payments the debtors had made, the plaintiff, Sam J. Alberts, Trustee for the DCHC Liquidating Trust, commenced this adversary proceeding against Arthur J. Gallagher & Co. (“AJG”).1 He later amended 94the complaint to add various insurance companies as defendants. Three of those added defendants (the “Added Defendants”) seek dismissal based on the statute of limitations found in 11 U.S.C. § 546(a)(1)(A) which the court finds applicable and which bars the amended complaint unless it relates back to the filing of the original complaint.2 The relation-back issue turns on the proper construction of Rule 15(c)(3)(B) of the Federal Rules of Civil Procedure. I In both the original complaint and the amended complaint, Alberts pursues three counts: preferential transfers recoverable under 11 U.S.C. §§ 547 and 550; fraudulent conveyances recoverable under 11 U.S.C. §§ 544, 548, and 550; and unauthorized postpetition payments (payments that cleared postpetition even if transmitted by prepetition check) recoverable under 11 U.S.C. §§ 549 and 550. The critical element of each count for purposes of addressing the applicability of Rule 15(c)(3)(B) is § 550. If Alberts demonstrates that a transfer of any amount of dollars included in the payments that are the subject of this proceeding is avoidable under § 544, 547, 548, or 549, Alberts cannot make a recovery in that amount from a defendant unless he demonstrates the applicability of 11 U.S.C. § 550(a). In relevant part, § 550(a) provides: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, ... 547, 548, [or] 549 ... of this title, the trustee may recover, for the benefit of the estate, the property transferred or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. When Alberts filed his original complaint, he believed that AJG was the “initial transferee” of each transfer. To the extent that AJG was not the “initial transferee” and instead was a mere conduit, Al-berts now asserts that he made a mistake within the meaning of Rule 15(c)(3)(B) in naming AJG as the sole defendant in the original complaint. The pertinent facts are these. Prior to the commencement of this adversary proceeding, Alberts’ financial advisor, Neil H. Demchick, reviewed and analyzed information provided by the debtors relating to payments made by the debtors during the preference period of 11 U.S.C. § 547(b)(4). In particular, Demchick reviewed the information relating to the transfers that are the subject of this adversary proceeding. From his review of the records furnished, Demchick concluded that AJG was the sole transferee of the transfers. The information did not indicate that AJG was a mere conduit with respect to the transfers or that any of the transfers were intended for any of the Added Defendants or any other company. On November 16, 2004, Alberts timely filed his original complaint, naming AJG as the sole defendant, which sought to avoid and recover pursuant to 11 U.S.C. §§ 544, 547, 548, 549, and 550, certain payments that the debtors made to 95AJG. On January 28, 2005, AJG filed an answer raising as a defense that it was not the “initial transferee” of the payments as required by 11 U.S.C. § 550(a) for the payments to be recovered from it. A recipient of a payment is not an “initial transferee” of the payment within the meaning of § 550(a)(1) if the recipient was serving as a mere conduit. See Christy v. Alexander & Alexander of New York, Inc. (In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey), 130 F.3d 52, 59 (2d Cir.1997) (broker was mere conduit for payments made to insurance companies). To the extent of any dollars transferred as to which AJG was a mere conduit for an Added Defendant (for example, passing along insurance premiums less AJG’s commission as an insurance broker), and thus not the “initial transferee,” Alberts made a mistake in suing AJG instead of the Added Defendant to which AJG passed on those dollars as the true “initial transferee.” However, to the extent that AJG was not a mere conduit as to any particular transfer (for example, to the extent AJG as an insurance broker retained a commission out of insurance premiums) and thus was the “initial transferee” of that transfer, Al-berts made no mistake in suing AJG instead of the Added Defendants.3 On March 10, 2005, Alberts filed a motion to enlarge the time period for service of the summons and complaint under F.R. Civ. P. 4(m). On March 15, 2005, the court entered a bridge order enlarging the time period for serving the summons and complaint under Rule 4(m), and on April 13, 2005, the court entered a further order that extended the time period under Rule 4(m) from 120 days to 210 days with respect to this adversary proceeding, among others. On March 15, 2005, Alberts filed the amended complaint adding the Additional Defendants. On March 24, 2005, Alberts served a summons and the amended complaint on the Added Defendants. The amended complaint retains AJG as a defendant and does not substitute the Added Defendants in place of AJG. However, Alberts points to his right to recover from the Added Defendants as the initial transferees to the extent that they (as opposed to AJG) are the initial transferees of the payments. II Section 546(a)(1) of the Bankruptcy Code (11 U.S.C.), as relevant to this case, provides that § 550 complaints must be filed within (A) two years after the entry of the order for relief, in this case by November 20, 2004, or (B) within one year after the appointment of the first trustee under § 1104. Alberts argues that his claims against the Added Defendants are not time-barred because either Alberts, a plan-appointed trustee, enjoys the extended limitations period provided for under § 546(a)(1)(B), which did not expire until April 5, 2005, or alternatively, the amendment relates back to the date of the filing of the original complaint pursuant to Federal Rule of Civil Procedure 15(c). The court will first address why § 546(a)(1)(B) does not extend the limitations period for Alberts, as a plan trustee, to file avoidance 96actions in this bankruptcy case, and will then address the applicability to the amended complaint of Rule 15(c)(3) relation-back. A. Alberts, as liquidating trustee, is not a “trustee” within the meaning of 11 U.S.C. § 546(a). Pursuant to the plan, Alberts assumed the duties of Trustee for the DCHC Liquidating Trust on April 5, 2004. Alberts argues that the limitations period for the trust to file § 550 actions in this bankruptcy case did not expire, pursuant to § 546(a)(1)(B), until one year after Alberts’ appointment as plan trustee. The court rejects this argument as contrary to the plain language of the Bankruptcy Code. Alberts is a plan trustee and was appointed pursuant to § 1123. He was not appointed or elected under 11 U.S.C. § 1104 as would be required to render applicable the one-year extension of the limitations period provided for under § 546(a)(1)(B).4 Accordingly, Alberts, as a liquidating trustee, is not entitled to invoke the extended limitations period provided for under § 546(a)(1)(B).5 B. Pursuant to Rule 15(c)(3), the amended complaint relates back to the date of filing of the original complaint, except to the extent that AJG was an initial transferee. In the alternative, Alberts argues that the amended complaint is not time-barred because it relates back to the date of the filing of the original complaint. Rule 15(c) provides, in pertinent part: (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when ... (2) 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, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party 97will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Thus, an amended complaint seeking to add an additional defendant will be permitted to relate back if it (1) arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; (2) the added parties received notice of the action within the time period provided for under Rule 4(m) such that the parties will not be prejudiced in maintaining a defense; and (3) the added parties knew or should have known that they were proper parties but for the plaintiffs mistake. 1. The claim asserted in the amended complaint arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original complaint. The claims asserted against the Added Defendants “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” The amended complaint seeks recovery of the same payments sought to be recovered under the original complaint on the same three legal theories as the original complaint. Thus, the court finds that the requirement of Rule 15(c)(2) has been satisfied. 2. The Added Defendants received notice of the institution of the action within the time period provided for under Rule 4(m) such that they will not be prejudiced in maintaining a defense on the merits. According to the Added Defendants, they were served the summons and the amended complaint by first class mail on March 24, 2005, 128 days after the filing of the original complaint. Relying on Rule 15(c)(3), the Added Defendants contend that 15(c)(3) relation-back does not apply because Alberts failed to give the Added Defendants notice of the institution of the action such that they would not be prejudiced in maintaining a defense on the merits within 120 days of filing the original complaint.6 Rather than expressly requiring that parties added pursuant to an amendment receive notice within 120 days .of the filing of the original complaint, however, Rule 15(c)(3) instead requires that the added party be provided such notice “within the period provided by Rule 4(m) for service of the summons and the complaint.” Although Rule 4(m) provides that service of the summons and complaint is to be made upon a defendant within 120 days after the filing of the complaint, that time limitation is subject to adjustment by the court. On March 15, 2005, a bridge order was entered in the main bankruptcy case in which this adversary proceeding is being pursued (DE No. 2486), followed by a final order on 98April 13, 2005 (DE No. 2516), enlarging the time period under Federal Rule 4(m) and Bankruptcy Rule 7004 to effect service of process in this adversary proceeding. That extended deadline governs the Rule 15(c)(3) analysis currently before the court. See Fed.R.Civ.P. 15 advisory committee notes (1991)(“In allowing a name-correcting amendment within the time allowed by Rule 4(m), this rule allows not only the 120 days specified in that rule, but also any additional time resulting from any extension ordered by the court pursuant to that rule .... ”). Accordingly, and because the Added Defendants were expressly notified by service of the summons and the amended, complaint of the institution of the suit within the time period allotted under Federal Rule 4(m) as extended by the court, the court rejects the Added Defendants’ argument that they did not receive notice within the time period provided by Rule 4(m) for service of the summons and the complaint such that they would be prejudiced in maintaining a defense on the merits. 3. Alberts’ failure to name the Added Defendants was a mistake within the meaning of Rule 15(c)(3), except to the extent that AJG was the initial transferee. The critical question raised by the Added Defendants’ motions to dismiss is whether Alberts’ failure to name the Added Defendants constitutes a mistake within the meaning of Rule 15(c)(3)(B), as required for the amendment to relate back to the date of the filing of the original complaint. Alberts bears the burden of proof to demonstrate that his amended complaint meets the requirements of Fed. R.Civ.P. 15(c)(3). Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996). For reasons explained in more detail below, the court concludes that Al-berts’ failure to name the Added Defendants in the original complaint constitutes a mistake within the meaning of Rule 15(c), except to the extent that he proves not to have been mistaken that AJG was the initial transferee. (a) The fact that AJG remains named as a defendant in the amended complaint does not preclude the amended complaint from relating back to the original complaint. The Added Defendants urge that there can be no relation-back under Rule 15 unless the new defendants substitute an existing defendant. Similarly, the Added Defendants take the position that for Rule 15(c) relation-back to apply, any alleged mistake must run to the entirety of the claim originally asserted against AJG and result in AJG’s absolute displacement from this adversary proceeding. The Added Defendants further reason that because it is undisputed that AJG was the initial transferee with respect to certain portions of the alleged preferential or fraudulent transfer attributable to brokerage commissions, AJG was a proper defendant in this action at least to that extent, and Rule 15(c)(3) is therefore unavailable to save any of Alberts’ untimely claims against the Added Defendants, not just unavailable to save Alberts’ claims relating to transfers for which AJG was the initial transferee. Some courts have, indeed, held that an amendment seeking to add an additional defendant can only relate back under Rule 15(c)(3) if the new defendant replaces an existing defendant. This is the law in the Sixth Circuit,7 has been construed to be 99the law in the Fourth Circuit,8 and has been applied by some in the Third Circuit.9 Notwithstanding the narrow reading of Rule 15(c)(3) adopted in some circuits, the plain language of Rule 15(c)(3) does not purport to limit the applicability of relation-back to circumstances in which the correction of a mistake regarding the proper identity of a party results in the substitution of one defendant for another. Instead, the rule sets forth the circumstances under which an “amendment [that] changes the party or the naming of the party against whom a claim is asserted” will relate back. In the instant case, Al-berts seeks to change the party against whom his claim is asserted to the extent the existing defendant, AJG, asserts, and the court finds, that AJG was not the initial transferee of the subject payments. Although Alberts continues to pursue the entire $1,015,873.29 claim against AJG, it is evident that Alberts is pursuing his claims against the Added Defendants and AJG in the alternative. Only after the court determines which party was the initial transferee with respect to any given portion of the alleged transfer will Alberts be in a position to ascertain which party or parties are, in fact, the proper defendants in this action. Alberts should not be prevented from pursuing his claims in the alternative against both parties pending the court’s resolution of that question. However, to the extent that AJG was the initial transferee of the dollars transferred, Rule 15(c)(3) may not be employed by Alberts to pursue the Added Defendants under 11 U.S.C. § 550(a)(2) as subsequent (“immediate or mediate”) transferees from AJG of the same dollars for which AJG was the initial transferee. As to such transfers, Alberts did not make a mistake in suing AJG as liable. In this adversary proceeding, as is common when a mere conduit defense is raised in a § 550 action, the defense is partial (for example, not extending to any commissions AJG retained as an insurance broker), goes to only a portion of the subject payment, and does not erase the possibility that AJG was the proper defendant to this adversary proceeding in the first instance. It is likely AJG’s burden — not Alberts’ — to demonstrate the applicability of the mere conduit defense, and the court may yet find that AJG was, in fact, the initial transferee with respect to all of the subject payments, notwithstanding AJG’s assertion of a mere conduit defense. Indeed, whether AJG asserts the defense with respect to some or all of the payments, under both scenarios it could turn out that Alberts has made no mistake at all in his naming of AJG as the sole initial transfer100ee for the entire alleged preferential payment. A reading of Rule 15(c)(3) that would preclude relation-back on the mere basis that the existing defendant may still be liable under what now present themselves as alternate theories as to who was the initial transferee would render Rule 15(c)(3) uniformly unavailable in cases such as this. Mere conduit defenses such as that raised by AJG typically alter liability based on the happenstance of the legal obligation governing the initial recipient’s subsequent transfer of the subject funds to third parties, of which the bankruptcy trustee commonly has no direct knowledge. It is on that basis alone that § 550 liability, in instances such as this, then becomes splintered among several parties notwithstanding that the subject transfer was made to only one individual. The mere conduit defense thus leaves plaintiffs unusually vulnerable to mistakes arising from their lack of knowledge that anyone other than the initial recipient of a transfer is a potential target of the § 550 recovery action. Even upon discovering that subsequent payments made by an initial recipient of a transfer to a third party could alter the identity of the “initial transferee,” a § 550-action plaintiff will typically still need to look to the bankruptcy court to resolve the legal question of who is, in fact, the “initial transferee.” A rule that would categorically exclude mistakes of this nature from the definition of Rule 15(c)(3) — mistakes that have no underlying strategic explanation, typically involve information peculiarly within the control of the existing defendant (the initial recipient of the transfer) and the defendants sought to be added, and whose significance cannot be fully appreciated until the bankruptcy court rules on questions of fact and law — would be too narrow. Furthermore, notwithstanding that Al-berts seeks to recover the entire sum of $1,015,873.29 through the vehicle of a single adversary proceeding, the claims being pursued within this adversary proceeding are legally divisible to the extent different parties may be found to be “initial transferees” liable for the return of different portions of the alleged transfer. Indeed, each and every dollar that was transferred from the debtor to a third party gives rise to a separate § 550 claim. That Alberts has elected to pursue recovery of the transfers in a single action does not alter the fact that his right to avoid such transfers runs to each dollar individually, not to any particular sum in the aggregate. That the original complaint may have named AJG as the proper defendant as the “initial transferee” of a divisible portion of a transfer should not preclude Alberts from showing that he was entirely mistaken with respect to the proper identity of the “initial transferee” as concerns other divisible portions of that transfer. In effect, Alberts is substituting the Added Defendants as the defendants to the extent that AJG is determined not to be the “initial transferee.” Moreover, this judicial circuit has not expressly, or otherwise, adopted a rule requiring that an added defendant replace a previously named defendant in order for Rule 15(c)(3) relation-back to apply. See Hall v. CNN America, Inc., 1996 WL 653839 at 5 (D.D.C., November 7, 1996)(unreported opinion) (amended complaint adding defendant and alleging that added defendant was jointly and severally liable with originally named defendants in wrongful death action related back under Rule 15(c)). But see Nichols v. Greater Southeast Community Hosp., 2005 WL 975643 (D.D.C., April 22, 2005)(“an amendment relates back if it arises from the original occurrence and the substituted 101party received notice of the action within the relevant time period.”)(emphasis added). Because this court is not bound to follow the narrow reading of Rule 15(c)(3) adopted by courts in other judicial circuits, and because drawing a dispositive distinction between joinder and substitution in determining what constitutes a mistake is inconsistent with the plain language of the rule, the court rejects the argument that Alberts’ failure to dismiss the claims against AJG when adding new defendants in the amended complaint renders Rule 15(c) relation-back per se inapplicable. (b) D.C. Circuit precedent does not preclude relation-back of an amendment that seeks to add a defendant of whose connection to the alleged conduct the plaintiff was previously entirely unaware. The Added Defendants are correct that in Rendall-Speranza v. Nassim, 107 F.3d 913 (D.C.Cir.1997), the Court of Appeals narrowly interpreted the word “mistake” as used in Rule 15(c)(3)(B). However, as discussed later, the precise narrow interpretation was that a Rule 15(c)(3)(B) mistake does not exist when a plaintiff was fully aware of the added defendant’s identity during the limitations period. That narrow interpretation does not preclude relation-back where a plaintiff is altogether unaware of an added defendant’s possible existence during the limitations period. See Arthur v. Maersk, Inc., 434 F.3d 196, 209 (3d Cir. Jan.13, 2006) (a Rule 15(c)(3)(B) mistake existed when “[t]he reason that these claims were not brought against the United States, the only potentially liable party, was that [the plaintiff] did not recognize the agency relationship between the companies [who were the original defendants] and the Navy.”);10 Sparshott v. Feld Entertainment, Inc., 89 F.Supp.2d 1 (D.D.C.2000). Here, to the extent that AJG was a mere conduit, the Added Defendants who received the transfers were the initial transferees and hence the only appropriate defendants to sue, but Alberts’ lack of knowledge led to his mistake in not suing them, thus making Rule 15(c)(3)(B) applicable. In addressing what constitutes a Rule 15(c) mistake permitting relation-back in the context of a § 550 action where a mere conduit defense has been asserted, the court agrees with the approach adopted by the court in Randall’s Island Family Golf Centers v. Acushnet Co. (In re Randall’s Island Family Golf Centers), 2002 WL 31496229 (Bankr.S.D.N.Y.2002) (unpublished). In that case, the debtors filed a preference action against their insurance agent to recover an alleged preference payment made within the 90 days prior to the petition date. Id. at 1. The insurance agent represented fifteen separate insurers, and in its answer to the complaint, the defendant insurance agent asserted that it was a mere conduit for the alleged preference payment because the payment was an insurance premium due and owing to one of those fifteen insurers. Id. 102The amendment to add the insurer was sought after the two-year limitations period had expired, and the claim against the new party was time-barred unless the amendment was found to relate back to the original complaint. Id. The court held that the debtors’ original misidentification of the initial transferee of the preference payment sought to be recovered constituted a mistake within the meaning of Rule 15(c)(3) and the claim against the insurance company therefore related back to the date of the original complaint. In so holding, the Randall’s Island court distinguished cases such as the one before it from cases in which “the plaintiff knows everything he needs to know to name the new party at the time of the pleading, and cannot point to any subsequent factual discovery — except, perhaps for the new party’s deeper pockets — to satisfactorily explain the earlier omission.” Id. at 3. The Randall’s Island court ultimately found that there was no basis upon which to conclude that the debtors knew that the insurance company was the initial transferee of the alleged preferential payment but nonetheless chose to sue the insurance agent. Id. at 5. Instead, the court found that the debtors intended to sue the initial transferee, who they mistakenly believed to be the insurance agent, and added the insurance company when they discovered the misidentification. Id. This, according to the Randall’s Island court, constituted a mistake within the meaning of Rule 15(c)(3). Randall’s Island is not at odds with the precedent in this circuit, which has yet to squarely address this issue, and offers a well-reasoned approach to the difficult question of how to treat a misidenti-fication with respect to the “initial transferee” in a § 550 action.11 The facts of Rendall-Speranza are distinguishable from the case at bar in that the Added Defendants in this case were not known to Alberts until shortly before he amended his complaint, whereas the plaintiff in Rendall-Speranza was well aware at the outset of commencing his action that IFC, the defendant it attempted to add later, had a relationship to the transaction at issue.12 The Rendall-Speranza court held that Rule 15(c) relation-back did not apply, reasoning that the plaintiffs proposed interpretation of a mistake in identity did “not serve the evident purpose of the rule, which is to avoid the harsh consequences of a mistake that is neither prejudicial nor a surprise to the misnamed party.” Id. at 918. The court 103relied upon the Advisory Committee Notes (1991), which state that “Rule 15(c) deals with ‘the problem of a misnamed defendant,’ ” and further observed that “[n]oth-ing in the Rule or in the Notes indicates that the provision applies to a plaintiff who was fully aware of the potential defendant’s identity but not of its responsibility for the harm alleged.” The court thus held that “the plaintiffs attempt belatedly to name the IFC as a defendant because she had earlier failed to appreciate that the IFC might be liable is not an amendment based upon ‘a mistake of identity’ so as to relate back to the date of the original complaint.” Id. at 919. Here, Alberts did not simply fail to identify a theory of liability upon which a party known to him could also be named as a defendant. Rather, only upon revelations made by AJG in its answer to the complaint did Alberts become aware that a conduit relationship might exist between AJG and the Added Defendants that would make those Added Defendants the actual “initial transferees” of the dollars transferred within the meaning of § 550(a)(1). Similarly, Grigsby v. Johnson, 1996 WL 444052 (D.D.C. May 14, 1996), another opinion relied upon by the Added Defendants, is distinguishable and must be read in the context in which that case was decided.13 To the extent the opinion expressed an even narrower interpretation of Rule 15 than Rendall-Speranza, that view was dicta and does not withstand scrutiny.14 The court similarly finds distinguishable, if they have not been overruled by the Court of Appeals in Arthur v. Maersk, Inc., two decisions in the Third Circuit 104which the Added Defendants contend support their position, Mailey v. SEPTA, 204 F.R.D. 273 (E.D.Pa.2001),15 and Hechinger, 297 B.R. at 394-95.16 To the extent, however, that AJG was the initial transferee, Alberts made no mistake in suing AJG. With regard to such dollars, as in Rendallr-Speranza, Alberts cannot be permitted to add as defendants the Added Defendants as there was no mistake in suing AJG regarding those dollars transferred to AJG as to which it was in fact the initial transferee. His pursuit of the Added Defendants to the extent they were the initial transferees is, in contrast, permitted by Rule 15(c)(3). 4. The Added Defendants knew or should have known, within the time period provided for under Rule 4(m) that, but for Alberts’ mistake, they would have been named as defendants. In addition to requiring that the name-changing amendment be the result of a mistake in identity, Rule 15(c)(3)(B) further requires that, within the time period provided for under Rule 4(m) for service of the summons and complaint, that defendants added through the late-filed amendment knew or should have known that, but for that mistake concerning the identity of the proper party, the action would have been brought against them within the limitations period. When the Added Defendants were served with the amended complaint — which the court has determined happened well within the period allotted under Rule 4(m) as extended by the court — the Added Defendants were put on express notice that they were now named as defendants in this action. Because the Added Defendants received such notice through actual service of the amended complaint, not through constructive or less direct means, there can be no doubt that at that juncture they knew Alberts was pursuing his claims against them. If not already apparent that the 105late-filed amendment was the product of Alberts’ prior mistake in identifying the initial transferee, upon reasonable inquiry the Added Defendants could easily have ascertained that they were added as defendants only after AJG asserted its mere conduit defense, which then put Alberts on notice that he had made a mistake, and caused him to amend his complaint.17 Ill The Added Defendants complain that the amended complaint fails to give them fair notice of the claims brought against them, and that the amended complaint should be dismissed accordingly. In assessing the requirements of “fair notice” under Rule 8(a) in the context of a § 550 action, the Added Defendants have asked the court to rely, inter alia, upon the standard articulated in TWA Inc. v. Marsh USA Inc. (In re TWA Inc.), 305 B.R. 228, 232 (Bankr.D.Del.2004), which states that the complaint must provide defendants with “(a)n identification of the nature and amount of each antecedent debt and (b) an identification of each alleged preference transfer by (i) date, (ii) name of debtor/transferor, (iii) name of transferee and (iv) the amount of the transfer.” Under this standard, which the court adopts as a reasonable formulation of what must be alleged to satisfy the fair notice requirement of Rule 8(a) in a § 550 action, the amended complaint fails to give the Added Defendants fair notice. Although attached to the amended complaint is a list of checks and invoices identifying payments made to Arthur J. Gallagher & Co., and it can be reasonably inferred from the amended complaint that the Added Defendants are alleged to have benefitted, whether directly or indirectly, from these identified payments, nowhere in the complaint has Alberts identified any transactions (by date or otherwise) linking each of the Added Defendants to particular identified payments. There is likewise no indication of the specific amounts Alberts seeks to avoid and recover with respect to each Added Defendant. Just as TWA articulates a useful standard for evaluating the adequacy of notice provided in a preference action complaint, it likewise offers a fair approach of relaxing the level of detail required to be pled when the plaintiff was not in a position to ascertain (and thus allege) certain facts without the benefit of discovery.18 Alberts is in the midst of taking discovery and 106should shortly be in a position more fully to comply with the spirit of Rule 8. The court will require Alberts to file, within 35 days after entry of this opinion, a second amended complaint that complies with the notice requirements of Rule 8, and which will be permitted to relate back to the filing of the original complaint. IV For all of the reasons stated above, it is ORDERED that the motions to dismiss (Docket Entry Nos. 26, 29, and 30) are DENIED, but Alberts shall file an amended complaint within 35 days after entry of this order that more fully complies with the spirit of F.R. Civ. P. 8, and the claims against the Added Defendants are limited to those transfers of dollars for which they were the “initial transferees.” . With exceptions of no relevance here, the confirmed plan in the jointly administered bankruptcy cases in which this adversary proceeding is pursued vested Alberts with the right to pursue claims that a trustee could pursue under sections 542 through 553 of the Bankruptcy Code (11 U.S.C.). . The added defendants seeking dismissal are Gallagher Healthcare Insurance Services, Inc., Safety National Casualty Corporation, and Fireman's Fund Insurance Co. The term "Added Defendants" as used in the balance of this opinion refers only to them as the other additional defendants have not sought dismissal. . To the extent that Alberts now seeks recovery under § 550(a)(2) from an Added Defendant of a transfer for which AJG was the "initial transferee” on the basis that the Added Defendant was "[an] immediate or mediate transferee of such initial transferee [meaning AJG],” Alberts made no mistake in suing only AJG in the original complaint because AJG would, as the "initial transferee,” indeed be liable. . An appointment under 11 U.S.C. §§ 702, 1163, 1202, or 1303 would also satisfy § 546(a)(1)(B), but they were inapplicable to this case. The only provision specified in § 546(a)(1)(B) which could have resulted in the appointment or election of a trustee in this non-railroad chapter 11 case was § 1104. The court never entered the order required by that provision to trigger the appointment or election of a trustee. Moreover, § 1104(a) requires that the order for appointment of a trustee be made before confirmation of a plan: Alberts’ position as trustee of the DCHC Liquidating Trust arose at the earliest upon confirmation of the plan. Finally, the confirmation of the plan terminated the estate, vesting the claims here in the DCHC Liquidating Trust, so there is no bankruptcy estate for a trustee of the type specified by § 546(a)(1)(B) to administer, with Alberts’ compensation not limited by, and not requiring court allowance under, 11 U.S.C. § 326. . See Barr v. Charterhouse Group Int’l, Inc. (In re Everfresh Beverages, Inc.), 238 B.R. 558, 573 (Bankr.S.D.N.Y.1999) (liquidating trustee appointed pursuant to plan under § 1123 not entitled to the one-year extension of the limitations period provided for under § 546(a)(1)(B)). See also Liquidation Estate of DeLaurentiis Entertainment Group v. Technicolor, Inc. (In re DeLaurentiis Entertainment Group, Inc.), 87 F.3d 1061, 1064 (9th Cir. 1996) (holding that an estate representative is not a trustee within the meaning of § 546(a)); Starzynski v. Sequoia Forest Industries, 72 F.3d 816, 821 (10th Cir.1995) (no statutory basis for concluding that plan-appointed liquidating agent is a trustee within the meaning of § 546(a)). . Prior to December 1, 1991, Rule 15(c)(3) provided that "[a]n amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided hy law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have know that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996)(applying the pre-amendment version of Rule 15(c)). The court is mindful of this amendment, and took it into account when determining the relevance of cases decided under the pre-amendment rule. . See Leitch v. Lievense Ins. Agency, Inc. (In re Kent Holland Die Casting & Plating, Inc.), 928 F.2d 1448, 1449 (6th Cir. 1991) (chapter 7 trustee could not amend avoidance action to 99join insurance company as a defendant to his complaint, originally brought only against the insurance agent, because Sixth Circuit precedent “holds that an amendment which adds a new party creates a new cause of action and there is no relation-back to the original filing for purposes of limitations.”); Smart v. Ellis Trucking Co., 580 F.2d 215, 218 (6th Cir. 1978) (“amendments which add a party to the original suit cannot relate back for limitations purposes.”). . See Miracle of Life, LLC v. North American Van Lines, Inc., 368 F.Supp.2d 499 (D.S.C. 2005) (observing that the plain language of Rule 15(c)(3) only contemplates relation-back when a new party is substituted for an existing party, and finding that to be the clear precedent in the Fourth Circuit); Onan v. County of Roanoke, 52 F.3d 321 (4th Cir. 1995) (unpublished) ("Rule 15(c)(3) permits a plaintiff to name a new defendant in place of an old one, but does not permit a plaintiff to name a new defendant in addition to the existing ones.”)(emphasis in original). . See, e.g., Hechinger Liquidation Trust v. Cooper Bussmann, Inc. (In re Hechinger Investment Co. of Delaware), 297 B.R. 390 (Bankr. D.Del.2003). . The court observed (434 F.3d at 208) (citations omitted): It is of no consequence that [the plaintiff’s] mistake resulted from lack of knowledge, rather than mere misnomer. Although a majority of courts have held that only a "misnomer or misidentification” of an existing party can constitute a "mistake concerning the identity of the proper party” under Rule 15(c), there is no linguistic basis for this distinction. A "mistake” is no less a "mistake" when it flows from lack of knowledge as opposed to inaccurate description. Both errors render the plaintiff unable to identify the potentially liable party and unable to name that party in the original complaint. . Although a different conclusion was reached by the court in Leitch v. Lievense Casualty & Surety Co. (In re Kent Holland Die Casting & Plating, Inc.), 126 B.R. 733 (W.D.Mich.1990), aff'd, 928 F.2d 1448 (6th Cir.1991), that case was decided under Sixth Circuit precedent that categorically rejects any finding of mistake where the added defendants do not displace the original defendant. As discussed above, this court is not bound by such a requirement and therefore finds the case inapposite. . In Rendall-Speranza v. Nassim, an employee of the International Finance Corporation (‘'IFC”) sued a co-worker for battery and emotional distress and later sought to amend the complaint to add the IFC as a defendant. The amendment was sought only after the IFC filed an amicus curiae brief in which it stated that the defendant’s alleged conduct was appropriate under IFC policy because it was committed in the course of preventing the plaintiff from stealing IFC files. Rendall-Speranza, 107 F.3d at 915. According to the plaintiff, it was only after this revelation that she first had reason to believe the IFC might also be liable for the battery. Id. at 917. Thus, notwithstanding that the statute of limitations had already run, the plaintiff argued that the amended complaint related back under Rule 15(c) to the filing of the original complaint because the plaintiff's failure to name the IFC as a defendant in the original complaint was due to "a mistake concerning the identity of the proper party.” Id. at 917. . In Grigsby, a clerical worker filed a lawsuit against her employer claiming she was subject to sexual harassment in the workplace. Id. at 1. The plaintiff subsequently amended her complaint to add her supervisor as a defendant in his individual capacity. Id. The court held that the failure to name the plaintiff's supervisor as a defendant within the limitations period was not a mistake and the amended complaint could therefore not relate back. As in Rendall-Speranza, the plaintiff in Grigsby was aware of the added defendant's role in the alleged misconduct, and the court’s holding relied in large part on its determination that the plaintiff's “decision not to name [her supervisor] must be viewed as a matter of choice not mistake.” Grigsby, 1996 WL 444052, at 6 (D.D.C.). Grigsby, like Rendall-Speranza, is thus distinguishable from the case at bar because here there is no indication that Alberts was previously aware that post-transfer transactions between AJG and third parties gave rise to the possibility that someone other than the original recipient of the transfer might be the initial transferee. . In dicta, the Grigsby opinion cites to Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d Cir.1995), for the proposition that "[e]ven where the plaintiff fails to originally name a defendant because he lacks knowledge of their identity, it is not for purposes of Rule 15(c)(3)(B) a mistake entitled to relation back.” Grigsby, 1996 WL 444052, at *5 (D.D.C.). At first glance, such a proposition would appear to bar relation-back in a situation such as this where the plaintiff concedes that his failure to name the additional defendants resulted entirely from his lack of knowledge. Yet in Barrow, the authority relied upon by Grigsby, the lack of knowledge at issue concerned the plaintiff’s lack of knowledge as to the specific identity of the ten officer defendants more generally identified in the complaint with the placeholder “John Doe.” As is standard in John Doe cases, the plaintiff understood the need to ascertain the perpetrators’ identities and he simply lost the race against time by failing to do so before the statute of limitations expired. See also Donald v. Cook County Sheriff s Dept., 95 F.3d 548 (7th Cir.1996) (John Doe case); Worthington v. Wilson, 8 F.3d 1253 (7th Cir.1993) (John Doe case). The lack of knowledge alleged by the trustee in this case is more fundamental in nature, and goes to the very existence of additional parties coming within the orbit of this § 550 action. Without any knowledge concerning post-transfer transactions between AJG and third parties, Alberts had no basis upon which to believe any party other than AJG was the initial transferee. . The court in Mailey precluded relation-back notwithstanding the plaintiff's complete lack of prior knowledge that the construction companies sought to be added were working in the area where the alleged injury took place. It held that the failure timely to name the companies as defendants was not a mistake and the amendment would not relate back because "Rule 15(c)(3) is not intended to provide a way to avoid the consequences of the statute of limitations by allowing a plaintiff to bootstrap a time-barred claim against a new, unrelated party to a timely claim brought against the original defendants.” Id. at 275 (emphasis added). Here, however, the Added Defendants are related: they are sued as initial recipients of transfers to the extent that AJG was a mere conduit. The court in Mailey recognized that an amendment will be permitted to relate back if an "identity of interest” test, linking the originally named party to the party sought to be joined, is satisfied, as in the case of suing an employee instead of his employer or vice versa. Here there is such a link: AJG transmitted the payments to the Added Defendants who are the true initial transferees to the extent that AJG was a mere conduit. . In Hechinger, the court followed Mailey’s "separate, unrelated party” holding, and can be distinguished in that regard just like Mai-ley. It further ruled that Rule 15(c)(3) did not apply because the originally named defendant was the proper defendant with respect to at least part of the alleged preferential payment. To the extent that its rationale was that Rule 15(c)(3) only applies when there is a substitution of parties, this decision has already explained earlier why that rationale is invalid. Implicit if not explicit in much of the court's opinion, moreover, is that the plaintiff was aware of the added defendants' potential liability, but whether by choice or through inadvertence, failed to name those parties as defendants, and such failure—even if unintentional—did not constitute a mistake. The question of what happens when, as here, a plaintiff seeks to add defendants of whose identity and possible involvement he was entirely unaware, was not before the court. . In their reply, the Added Defendants argue that Alberts has improperly used his opposition brief to augment deficiencies in his amended complaint in defending against a Rule 12(b)(6) motion to dismiss. To the extent the court is asked to review the adequacy of the amended complaint under Rule 8 (an issue addressed in Part III below) the court will restrict its analysis to the allegations found within the four corners of the amended complaint. Yet to the extent Alberts' opposition urges that the amended complaint relates back under Rule 15(c)(3), an argument that seeks not to augment allegations in the original or amended complaint but rather to clarify the circumstances under which the pleadings were filed, his opposition is more properly understood as setting forth the mistake that gave rise to his adding the Additional Defendants, which should have been obvious upon considering § 550(a)'s requirement of '‘initial transferee” status for AJG to be liable for any particular part of the transfer sought to be avoided. . As in TWA, the defendants are unlikely to suffer prejudice from an amendment that is made after the expiration of the limitations period, especially when the defendants are large sophisticated creditors who are unlikely to have lost or discarded records relating to the transactions as a result of delay, and where the filing of a Chapter 11 case likely put creditors generally on notice that they could eventually be the target of § 550 actions.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493873/	MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS COUNTS I THROUGH VII OF THE AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION JOEL B. ROSENTHAL, Bankruptcy Judge. Before the Court is the Defendants’ Motion to Dismiss Counts I through VII of the Amended Complaint for Lack of Subject Matter Jurisdiction [# 34] and the Trustee’s Opposition thereto [# 39]. The Motion to Dismiss seeks a dismissal of all counts on the grounds that the Amended Complaint is, at its essence, an impermissible attempt to have this Court exercise jurisdiction over assets of a partnership in which the Debtor is a partner. The Trustee argues that as the assignee of the Debtor’s partnership interest, and because cause exists, he has the right to seek a winding up of the partnership business and ultimately a sale of its assets. FACTS The relevant facts are largely undisputed. On or about July 19, 1988 the Debtor, 126along with Marlene Markarian and Defendants Mark J. Aaronson, Leon Hovsepian1 and Sara Hovsepian formed LeMar Crossing Unlimited (the “Partnership”), a Massachusetts partnership, to own, develop, lease and operate property, including real property. At the same time the LeMar Crossing Trust, of which Defendant Aar-onson is the trustee (the “LeMar Trustee”), was established to hold certain property. Under the Declaration of Trust, the LeMar Trustee is to “hold any and all property which may be transferred to the Trustee hereunder for the sole benefit of the Partnership.” “Article First” of the Declaration of Trust, a copy of which is attached to the Amended Complaint (emphasis added). “Article Third” of the same document provides in part that “The TRUSTEE hereunder shall hold the principal of the Trust and receive the income therefrom or [sic] for the benefit of the Partners and shall pay over the principal and income pursuant to the directions of the Partners at least annually,” (Emphasis added). Currently the LeMar Trustee holds legal title to real estate located at 246 Boston Turnpike, Shrewsbury, Massachusetts, a commercial mixed-use property which is the Trust’s primary, and perhaps only, asset. Originally the Debtor and Ms. Markari-an collectively owned a one-third interest in the Partnership as tenants in common. Ms. Markian’s interest has been transferred to the Chapter 7 Trustee in settlement of an adversary proceeding brought against her by the Chapter 7 Trustee. The collective Partnership interest now held by the Chapter 7 Trustee, however, has been reduced to approximately 10% as a result of offsets to the Debtor/Markarian capital account. On February 27, 2001 the Debtor filed a voluntary petition pursuant to Chapter 7 of the United States Bankruptcy Code and shortly thereafter the Chapter 7 Trustee was appointed. The Partnership Agreement provides in pertinent part: Except as otherwise expressly provided in this Partnership Agreement, dissolution of the Partnership shall be subject to the provisions of Chapter 108A of the Massachusetts General Laws, as now constituted or hereafter amended or substituted. Unless otherwise required by law or by court order and subject to the provisions of ARTICLE XIV of this Partnership Agreement, the Partnership business shall not terminate upon the occurrence of any event causing dissolution of the Partnership. Any successor by operation of law to a surviving Partner’s interest, including by way of example and not by way of limitation, a guardian, a receiver, or a trustee in bankruptcy, shall be deemed an assignee having the rights which an assignee of such Partner’s interest would have under the provisions of the said Chapter 108A of the Massachusetts General Laws. In June 2005 the Chapter 7 Trustee filed the instant adversary proceeding. The Defendants moved to dismiss those counts in the original complaint that sought a declaration that the Partnership was dissolved by the Debtor’s bankruptcy (Count I), an accounting pursuant to M.G.L.c. 108A, §§21 and 22 (Count II),2 and an 127order permitting the Chapter 7 Trustee to sell the Partnership’s assets (Count VI) on the grounds that this Court lacked subject matter jurisdiction. After a hearing the Court dismissed Counts I and II without prejudice and dismissed Count VI. The Chapter 7 Trustee was also given 30 days within which to file an amended complaint. It is that Amended Complaint which the Defendants seek to have dismissed. DISCUSSION When ruling on a motion to dismiss for lack of subject matter jurisdiction, a court must construe the complaint liberally, taking all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiff. “Dismissal can be justified only if it clearly appears that no colorable hook exists upon which subject matter jurisdiction may be hung.” Royal v. Leading Edge Products, 833 F.2d 1, 1 (1st Cir.1987). Because federal courts, including this court, are courts of limited jurisdiction, subject matter jurisdiction may not be presumed to exist. Rather the plaintiff must demonstrate its existence. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). The quantum of proof required is a preponderance of the evidence. In re Geauga Trenching Corp., 110 B.R. 638, 642 (Bankr.E.D.N.Y.1990). Bankruptcy Court Jurisdiction Bankruptcy court subject matter jurisdiction emanates from the district court’s jurisdiction under 28 U.S.C. § 1334 which endows the district court with original and exclusive jurisdiction for cases that are “under title 11,” that is, the actual bankruptcy case commenced by the filing of a petition under one of the applicable chapters of the Bankruptcy Code, and original but not exclusive jurisdiction for civil proceedings “arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(a) and (b). The district courts may refer bankruptcy cases as well as civil proceedings which arise in or under the Bankruptcy Code and those related to bankruptcy cases to the bankruptcy courts. 28 U.S.C. § 157(a). In Massachusetts, the district court has referred the broadest possible universe of cases which a bankruptcy court could hear, namely all cases over which the district court may exercise jurisdiction under either § 1334(a) or (b). LR, D. Mass 201. Because the adversary proceeding is not the same as the bankruptcy case, the Court must determine whether the adversary proceeding, which is a civil proceeding, “arises under” the Bankruptcy Code, “arises in” a case under the Bankruptcy Code, or is “related to” the bankruptcy case; if the adversary proceeding falls within none of the aforementioned categories, then this Court has no jurisdiction. Proceedings “arise under” title 11 if they involve a “cause of action created or determined by a statutory provision of title 11.” Wood v. Wood (In re Wood), 825 F.2d 90, 96 (5th Cir.1987). In contrast, proceedings “arising in” a bankruptcy case “are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy.” Id. at 97. Together, proceedings that “arise in” and “arise under” title 11 constitute the bankruptcy court’s “core” jurisdiction. See 28 U.S.C. § 157(b); Id., at 96-97. Concerto Software, Inc. v. Vitaquest Intern., Inc., 290 B.R. 448, 452 (D.Me.2003). A bankruptcy court has jurisdiction over a non-core proceeding provided the proceeding is “related to” a bankruptcy case. The breadth of the bankruptcy 128court’s related to jurisdiction is great but it is not unlimited. “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991) (quoting Pacor v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). Proceedings which are outside the boundaries of § 1334(a) or (b), that is, proceedings which do not fall even within the “related to” jurisdiction, are outside of the subject matter jurisdiction of a bankruptcy court. In an adversary proceeding, the court must determine whether it has jurisdiction, with respect “to each cause of action or right of recovery pled. This is the only interpretation which would adequately heed the constitutional concerns in Marathon.” Ralls v. Docktor Pet Centers, Inc., 177 B.R. 420, 425 (D.Mass.1995). Although “[t]he distinction between ‘core’ and ‘non-core’ matters does not affect the Court’s subject matter jurisdiction to hear a matter,” Treadway v. United Bank & Trust Co. (In re Treadway), 117 B.R. 76, 81 (Bankr.D.Vt.1990), the difference is critical in determining whether a bankruptcy court may enter final orders. In core matters it has this authority; in non-core matters it may only do so with the consent of the parties. 28 U.S.C. § 157. It is axiomatic that the mere bankruptcy of a partner does not bring the partnership’s assets within the jurisdiction of the bankruptcy court. A debtor’s interest in a partnership is an asset of the debtor’s estate under 11 U.S.C § 541; the assets of the partnership are not. In re Olszewski, 124 B.R. 743, 746-47 (Bankr. S.D.Ohio 1991); Normandin v. Normandin (In re Normandin), 106 B.R. 14 (Bankr.D.Mass.1989). Before a partner is entitled to receive his share of the partnership’s property, or his right to the profits of the partnership, if any, the partnership’s creditors are entitled to payment. Consequently, a trustee of a partner’s estate cannot rely upon 11 U.S.C. § 363(f) to sell partnership property. Olszewski, 124 B.R. at 746-47. Despite the general rule that the simple act of a partner’s filing of bankruptcy does not confer jurisdiction over the partnership’s assets does not mean that a bankrupt partner’s estate includes only his personal property interest in the partnership. It includes certain rights given to him by law and/or contract, including the rights to seek an accounting, and to request a judicially supervised wind-up and termination of the partnership. In re Smith, 185 B.R. 285, 291 (Bankr.S.D.Ill., 1995) (“limited partner’s right to obtain dissolution of the partnership [is] a right which belongs to the individual partner and not to the partnership”). Massachusetts law provides that one of those rights is the right of any partner to seek a windup of the partnership for cause. M.G.L. c. 108A, § 37.3 “When a limited partner is a debtor in bankruptcy, these rights [given to partners by agreement or law] are legal or equitable interests of the debtor within the ambit of 11 U.S.C. § 541(a)(1) and become property of the bankruptcy estate.” In re Smith, 185 B.R. 285, 290—91 (Bankr.S.D.Ill.1995). 129With the foregoing general principles in mind, the Court now turns to examine the Amended Complaint. The Amended Complaint The overarching problem with the Amended Complaint is that it confuses dissolution of a partnership with its termination and subsequent wind up of the partnership business. They are not the same. “Dissolution” is a term of art under the Uniform Partnership Act meant to describe a change in the ownership relationships of the partnership. Specifically, it is defined as “the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” G.L. c. 108A, § 29. On dissolution, the partnership is not terminated, but rather continues until the winding up of partnership affairs is completed. G.L. c. 108A, § 30. “Winding up” is similarly a term of art under the Uniform Partnership Act, although it is not defined in the statute itself. Federal cases provide some guidance, stating that, “ ‘winding up’ ... describes the process that occurs during the period following dissolution and preceding termination, during the course of which work in process is completed, partnership assets are sold, creditors are paid, and the business of the partnership is brought to an orderly close.” Adams v. United States, 218 F.3d 383, 388 (5th Cir.2000). Anastos v. Sable, 443 Mass. 146, 151-52, 819 N.E.2d 587, 591-92 (Mass.2004). Without a termination of the partnership, the Chapter 7 Trustee cannot reach the Partnership’s assets. He only holds the Debtor’s interest in the Partnership. As with the original complaint, the title given to each of the eight counts of the Amended Complaint does not always parallel the relief requested in each count’s prayer for relief; the allegations which the Chapter 7 Trustee asserts with respect to specific counts also suggest that the relief he is seeking may not be adequately reflected by the caption he has given each count. As a result it is necessary to examine the Amended Complaint in some detail. Count LDeclaratory Judgment This Count seeks a declaratory judgment that the dissolution of the partnership was not wrongful or otherwise in contravention of the Partnership Agreement. This statement is correct as a matter of law. The Partnership was dissolved by the bankruptcy of one of the partners. M.G.L. c. 108A, § 31. The Count also contains a prayer that the Court declare that the Defendants have failed or refused to wind up the Partnership affairs within a reasonable period of time following dissolution and order them to do so. This statement presumes that the remaining partners were obligated to wind-up the Partnership’s affairs. Because termination of a partnership is different from it’s dissolution, termination is not a necessary consequence of dissolution. M.G.L. c. 108A, § 29 provides: The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business. Moreover the Partnership Agreement, a copy of which is appended to the Amended Complaint, provides that the Partnership shall not terminate upon dissolution. See Partnership Agreement at Article XVI. Although Katz’s bankruptcy dissolved the Partnership, it did not terminate the Partnership or its business. The Partnership is not under any obligation to terminate 130itself and wind-up its business just because it was dissolved. In Count I’s prayer for relief, the Chapter 7 Trustee also asks that the Court order the immediate wind-up of the Partnership. Count I fails to even cite M.G.L. c. 108A, § 37, which as the Court noted previously, permits any partner, or his legal representative such as a bankruptcy trustee, to seek a court order for the winding up of a partnership business upon cause shown. Up to and including paragraphs 1 through 27 of the complaint (that is, through the end of Count I), the Chapter 7 Trustee does not even allege anything that rises to the level of cause. Finally the Chapter 7 Trustee seeks costs and attorneys’ fees to which he is not entitled. Because prayers of relief in Count I are premised on the incorrect assumption that dissolution of the partnership leads to the termination and wind up of the partnership’s business, and because this Court lacks jurisdiction over the Partnership’s assets if the only basis for such jurisdiction is the mere filing of the Debtor’s bankruptcy, Count I will be DISMISSED. Count II: M.G.L. c. 108A, § 27 In this Count, the Chapter 7 Trustee states he is entitled to a formal accounting from the last accounting forward. This statement is correct. M.G.L. c. 108A, § 27 provides: (1) A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assign-ee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled. (2) In case of a dissolution of the partnership, the assignee is entitled to receive his assignor’s interest and may require an account from the date only of the last account agreed to by all the partners. This section gives the Chapter 7 Trustee the right to an accounting from the date of the last accounting to the present.4 At oral argument, the Defendants’ counsel argues that there has never been an accounting and that the Chapter 7 Trustee has refused her offer to inspect the Partnership’s books. That may be but her argument is not competent evidence and therefore is not entitled to any weight. Despite its caption, the requests in Count II go beyond a request for an accounting. The Chapter 7 Trustee asks for the right to sell the Debtor’s Partnership interest, and costs and attorneys fees and finally, in the prayer for relief “requests the court to enter an order dissolving the partnership.... ” Because the Debtor’s interest in the Partnership is an estate asset, the Chapter 7 Trustee may move to sell the estate’s 10% interest in the Partnership in a private or public sale. Yet, as set forth above, he is not entitled to sell the Partnership’s assets: the simple act of the Debtor’s filing bankruptcy does not give this Court jurisdiction of the Partnership’s assets. Consequently so much of 131Count II as seeks relief beyond the request for an accounting will be DISMISSED. To the extent that Count II seeks an accounting pursuant to state law, a right which is an intangible asset of the Debtor’s estate and over which this Court has jurisdiction, the motion will be DENIED. Count III: Winding up of the Partnership This Count contains what really is the crux of the Amended Complaint and possibly provide a basis for termination and wind-up of the Partnership. The Chapter 7 Trustee alleges that the Defendants did not obtain the consent of all partners in determining whether or not to make distributions and to lease properties or enter contracts. He also alleges the LeMar Trustee has not paid over the Trust’s income at least annually as required by the trust documents. If the chapter 7 trustee can establish cause, he will be entitled to an order to wind up the Partnership. M.G.L. c. 108A, § 37. The Defendants argue that a bankrupt partner cannot seek a wind-up under § 37. The statute prohibits the bankrupt from supervising the wind up; it does not preclude a bankruptcy trustee from seeking a wind-up and termination of a partnership. Normandin, 106 B.R. at 16 (“A partner who has filed a bankruptcy petition is also denied the right to participate in the wind up process. Mass.Gen.L. ch. 108A, § 37.”). “In giving a partner’s bankruptcy filing the automatic effect of partnership dissolution, and in denying the debtor partner the right to control the wind up process, the drafters of the Uniform Partnership Act clearly contemplated that its provisions and not those of bankruptcy law would control the wind up process. There is nothing in § 363 which expresses a contrary intent on the part of Congress.” Id. The Defendants also argue that the Chapter 7 Trustee cannot seek a wind up of the Partnership even if he could prove cause because “winding up does not necessarily mean that the assets Partnership must be liquidated” and further alleges that because the Partnership Agreement provides for the continuation of the Partnership if it is dissolved, “any order to wind up would not include the sale and termination of the Partnership business.” The Defendants’ arguments are incorrect. Dissolution, winding up of partnership business, and termination of the partnership are separate events. “The order of events is: (1) dissolution; (2) winding up; and (3) termination. Termination extinguishes their (the partners) authority. It is the ultimate result of the winding up and occurs at the conclusion of the winding up.” In re Luster, Friedman and Co., 8 B.R. 183, 185 (Bankr.N.D.Ill.1981). See also Anastos, 443 Mass, at 151-52, 819 N.E.2d at 591-92 (“ ‘winding up’ ... describes the process that occurs during the period following dissolution and preceding termination during the course of which work in process is completed, partnership assets are sold, creditors are paid, and the business of the partnership is brought to an orderly close.”) (internal quotations omitted). What the Partnership Agreement provides for in this case is the dissolution does not set off the chain of events leading to the ultimate termination of the Partnership. There is nothing in the Partnership Agreement to prevent the Chapter 7 Trustee from asserting his right as as-signee of the Debtor’s partnership rights to seek a winding up of the Partnership under M.G.L. c. 108A, § 37. Having determined that the Chapter 7 Trustee has the right to seek a winding up of the Partnership and, if he proves “cause” may obtain an order for winding up the business of the Partnership 132does not lead to the conclusion that the Chapter 7 Trustee is the appropriate party to oversee the winding up of the Partnership. He is not as the statute makes clear: “Unless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs....” Nor does it follow that this Court is the most appropriate forum in which to conduct such proceedings. Nevertheless, to the extent that Count III seeks the wind up for cause of the Partnership and the right to seek such a remedy is an asset of the Debtor’s estate, this Court has at least “related to” jurisdiction. Therefore the Motion to Dismiss will be DENIED. Count IV: M.G.L. c. 108A, § 28 The Chapter 7 Trustee seeks to use his strong arm powers under section 544 of the Bankruptcy Code in concert with M.G.L. c. 108A, § 28 to obtain accountings for the Partnership and the Trust, have a receiver appointed for the Partnership, and have the Court issue a charging order to sell the Partnership’s assets. The Chapter 7 Trustee’s strong arm powers are determined with reference to state law. See 4 COLLIER ¶¶ 544.05, 544.06, 544.08. In this instance the Chapter 7 Trustee alleges M.G.L. c. 108A, § 28 permits him to reach the Partnership assets. That section provides: (1)On due application to the superior court by any judgment creditor of a partner, such court may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require. (2) The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution: (a) With separate property, by any one or more of the partners, or (b) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold. (3) Nothing in this chapter shall be held to deprive a partner of his right, if any, under the exemption laws, as regards his interest in the partnership. This section permits a partner’s judgment creditor to charge the partner’s interest in the partnership, nothing more. It gives the Chapter 7 Trustee what he already has: the right to ultimately sell the Debtor’s 10% interest in the Partnership. It does not give him access to the Partnership’s assets. The Trustee also asks for the appointment of a receiver over the partnership assets. Section 105(a) of the Bankruptcy Code prohibits the appointment of a receiver “in a case under this title.” Although the use of the foregoing phrase suggests that the prohibition applies only the actual bankruptcy case itself and not civil proceeding such as the instant adversary proceeding, the Court is aware of only one reported decision in which a bankruptcy court where appointed a receiver over non-debtor partnership assets. The facts of that case, In re Schlein, 178 B.R. 82 (Bankr.E.D.Pa.1995), are quite distinguishable from those before this Court. In Schlein all of the interested parties agreed that a receiver should be appointed to wind up the affairs of the partnership 133and settle the accounts; the only issue was whether the bankruptcy or state court would control that appointment. The court was certain that the accounting would end up in bankruptcy court even if a state court receiver were appointed. Therefore the court appointed a receiver to avoid duplicative actions. This Court agrees with other courts which have examined Schlein and refused to follow its lead. In re Clayton, 1996 WL 537852, 3 (Bankr.E.D.Pa.)(“Appointing a receiver of an independent, healthy entity such as Penntech, over its vociferous objection, is another matter. We believe that such an action would be akin to our placing Penntech in an involuntary bankruptcy case without allowing it to raise the defenses or according to it the protections set forth in 11 U.S.C. § 303. We would therefore be most reluctant to taken any such actions in any circumstances.”). Assuming that this Court has jurisdiction to appoint a receiver in an adversary proceeding, a view which if correct certainly strains at the outer boundaries of bankruptcy court jurisdiction, appointing a receiver to wind up a non-debtor partnership directly contradicts M.G.L. c. 108A, § 37 which denies a debtor-partner the right to supervise the wind-up. There is nothing in the Bankruptcy Code to suggest that Congress intended this result. In this Count the Chapter 7 Trustee is also seeking an accounting for both the Partnership and the Trust. As noted earlier, he is entitled to an accounting of the Partnership. He may also be entitled to an accounting from the Lemar Trustee. Although generally only “a beneficiary or one suing on his behalf can maintain a suit against the trustee to enforce the trust or to enjoin or obtain redress for a breach of trust.” Restatement (Second) of Trust, § 200, the Declaration of Trust is inconsistent in declaring both the Partnership as the sole beneficiary and the partners as its beneficiaries. On the current record the Court cannot say that there are no set of facts the Chapter 7 Trustee can prove which would entitle him to this relief. Moreover that certain facts which will deny the Chapter 7 Trustee’s the right to a Partnership accounting ultimately may come to light is not relevant at this stage of the proceedings. Nor will Court prejudge whether the Trustee is likely to establish cause thereby triggering the wind up of the Partnership and all rights to an accounting that flow from that process. Nevertheless this Count is essentially one to reach Partnership assets using the Chapter 7 Trustee’s strong arm powers and the appointment of a receiver. Because he cannot use his strong arm powers to reach these assets and because the Court will not appoint a receiver even if it has the power to do so, Count IV will be DISMISSED. Count V: Breach of Fiduciary Duties This Count alleges that the Defendants breached their fiduciary duties by failing to wind up the Partnership and by failing to obtain proper consents for certain actions. The former is not a breach of fiduciary duties as there is no obligation to follow the dissolution of the Partnership with its wind up; the failure to obtain consents, however, may be just such a breach. Therefore the Motion to Dismiss will be DENIED with respect to Count V. Count VI: Breach of Partnership Agreement This Count is virtually identical to Count V except that this Count sounds in breach of contract while Count V is breach of fiduciary duty. For the reasons stated above, the Motion to Dismiss will be DENIED with respect to Count VI. Count VII: Sale of Partnership assets pursuant to 11 U.S.C. § 105(a) In this Count the Chapter 7 Trustee seeks permission to sell the Part134nership’s assets and alleges that the sale of the Partnership’s assets would yield the bankruptcy estate more than sale of only the Debtor’s interest in the Partnership. Even assuming that the Debtor’s 10% interest in the sale proceeds would yield significantly more than a sale of his Partnership interest, he cannot reach the Partnership’s assets in this manner. Section 105(a) does not provide a basis for jurisdiction where none otherwise exists. Therefore Count VII will be DISMISSED. Abstention The crux of the Amended Complaint involves the Chapter 7 Trustee’s attempts to reach and sell the Partnership assets, a result which he cannot achieve directly in the Debtor’s bankruptcy. Seeking to accomplish indirectly what he cannot do directly, the Chapter 7 Trustee seeks a court-ordered wind up of the Partnership and the appointment of a receiver to wind up and account for the Partnership assets. These kinds of actions are better suited for state court. In re Clayter, 174 B.R. 134, 141 (Bankr.D.Kan.1994). Moreover, assuming that the Court has jurisdiction to appoint a receiver, the Court will not do so in this case and thus, even if the Chapter 7 Trustee establishes cause to wind up the Partnership, who will supervise the wind up since state law is clear: it cannot be a debtor. Because of these facts the Court should consider whether to exercise its power to abstain. In this case the interest of justice, and respect for State law, mandate in favor of abstention. Therefore the Court will enter an order abstaining pursuant to 28 U.S.C. § 1334(c)(1). . Mr. Hovsepian and his wife owned their partnership interest as joint tenants with rights of survivorship. He is deceased and by agreement of the parties he, or more precisely his estate, will be dismissed from this proceeding. . Count II was styled as a count for dissolution and its prayer for relief asked for an order dissolving the Partnership. The allegations within that Count, however, spoke to the Defendants’ failure to give the Chapter 7 trustee an accounting and that the Partnership *127had undertaken acts without the consent required under the Partnership Agreement. . Section 37 provides: Unless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, that any partner, his legal representative, or his assignee, upon cause shown, may obtain winding up by the court. . M.G.L. c. 108A, § 19 also gives him the right of inspection. The partnership books shall be kept, subject to any agreement between the partners, at the principal place of business of the partnership, and every partner shall at all limes have access to and may inspect and copy any of them.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493874/	MEMORANDUM MARCIA PHILLIPS PARSONS, Bankruptcy Judge. In Speaker Motor Sales Co. v. Eisen, 393 F.3d 659 (6th Cir.2004), the Sixth Circuit Court of Appeals held that 11 U.S.C. § 726(b)1 mandated the disgorgement of a retainer paid to a chapter 11 debtor’s attorney when necessary to achieve a pro rata distribution among other administrative claimants in a case converted from chapter 11 to chapter 7. Not addressed in that case is the effect, if any, of an attorney’s lien on a retainer under state law. This court concludes that because an attorney with a lien is not similarly situated with other administrative claimants, disgorgement is not required by 11 U.S.C. § 726(b). I. The facts of this case are not in dispute. The debtor filed for relief under chapter 11 on December 30, 1993. An order was entered on January 28, 1994, approving the application of Fred M. Leonard as attorney for the debtor. The disclosure of compensation statement filed by Mr. Leonard on January 10, 1994, pursuant to Federal Rule of Bankruptcy Procedure 2016(b), indicated that the debtor had paid him a retainer of $15,000. On April 28, 1994, Mr. Leonard filed an application for interim compensation and expenses in the amount of $33,952.73. By order entered June 1, 1994, Mr. Leonard was awarded fees in the amount of $15,000, to be paid from the retainer held in escrow by Mr. Leonard, and expenses of $697.73, to be paid by the debtor from its operating account. The order reserved for future consideration the balance of the fee request. Subsequently, on September 16, 1994, this bankruptcy case was converted from chapter 11 to chapter 7. On September 29, 1994, Mr. Leonard filed a “Final Application For Compensation And Reimbursement of Expenses,” seeking approval of the balance carried forward from his previous application, $18,255, plus additional compensation of $16,365 and reimbursement of expenses in the amount of $538.18. By order entered October 31, 1994, Mr. Leonard’s application was approved although no further amounts were actually paid to him. On January 19, 2006, N. David Roberts, Jr., the chapter 7 trustee in this case, filed 224the motion for disgorgement that is presently before the court. The trustee states in the motion that claims filed in this case exceed $1.5 million, that the dividend distribution will not reach beyond the administrative claims, that he has $20,224.68 on hand to pay administrative claims, that chapter 7 administrative claims to date total $16,650.29, and that chapter 11 administrative claims total $97,857.08. The chapter 11 administrative claims amount includes all of the fees and expenses awarded to Mr. Leonard, totaling $50,855.91, of which $15,697.78 has been paid. The trustee indicates in the motion that with the funds on hand, he will first pay in full the chapter 7 administrative claims, leaving a balance of $3,574.39 to be distributed among the chapter 11 administrative claimants. The trustee requests in the motion that the court enter an order directing Mr. Leonard to disgorge the interim compensation paid to him so that this amount can be added to the $3,574.39 balance and the total distributed pro rata among all chapter 11 administrative claimants. If such a distribution were to occur, Mr. Leonard would be entitled to a distribution of only $10,067.08. Therefore, according to the trustee, Mr. Leonard should be required to disgorge the sum of $5,630.65. The trustee’s motion is premised on § 726(b) of the Bankruptcy Code and its interpretation by the Sixth Circuit Court of Appeals in Speaker Motors, a case with facts similar to those of the present case. In Speaker Motors, the chapter 11 debtor’s attorney had been paid a $10,000 retainer. Upon conversion of the case to chapter 7, the court approved the attorney’s final fee application in the amount of $17,343.10 and permitted him to apply to that amount the retainer held by him. When it was subsequently determined that the estate’s assets were insufficient to cover administrative claims, the bankruptcy court divided the assets pro rata among the five administrative claimants and ordered the debtor’s attorney to disgorge $9,026.59 of the original $10,000 retainer since his pro rata share was only $973.41. The bankruptcy court’s ruling was based on “the plain language of 11 U.S.C. § 726(b) [which] mandates disgorgement when necessary to achieve pro rata distribution among similarly situated claimants.” Speaker Motor Sales Co., 393 F.3d at 661 (discussing the bankruptcy court’s decision). This ruling was affirmed by both the district court and the Sixth Circuit Court of Appeals. In re Specker Motor Sales Co., 289 B.R. 870 (Bankr.W.D.Mich.2003); Specker Motor Sales Co. v. Eisen, 300 B.R. 687 (W.D.Mich.2003). III. In the present case, Mr. Leonard opposes the trustee’s motion and asserts two arguments as to why the motion should be denied. The first contention is that the ruling in Speaker Motors only involved the disgorgement of interim compensation. According to Mr. Leonard, the fee awarded to him was final, noting that his applications were properly noticed, there were no objections thereto, either by the chapter 7 trustee or the United States trustee, and there were no appeals of the orders awarding fees to him. Mr. Leonard’s recitation of the record is not entirely correct. While it is true that there were no previous objections to his fees or appeal of the fee orders, the order permitting Mr. Leonard to apply the retainer to the fees accrued to date was expressly an award of “interim compensation,” in response to Mr. Leonard’s “Application For Interim Compensation And Reimbursement Of Expenses.” The second, i.e., final fee application, only sought approval of the additional fees that had accrued since the date of the first application 225and the balance of the fees not approved in the first fee order. There was no request in the final application that the court give “final” approval to the $15,000 in interim fees previously awarded, nor does the order approving the application reference the earlier, awarded fees. The court relays this information primarily to clarify the record since it appears to be of little consequence with respect to the disgorgement issue whether it was the initial order or subsequent, so-called “final” order that authorized Mr. Leonard to apply the retainer held by him in his trust account to the fees allowed by the court.2 Regardless of the appellation, both awards were interim allowances pursuant to 11 U.S.C. § 3313 and thus subject to subsequent review. As explained by the court in Matter of Lockwood Corp., addressing the same argument by debtor’s counsel in the same context: Creel & Atwood’s argument overlooks the fact that if the funds it received were not allowed pursuant to section 331, Creel & Atwood would have had no statutory authority to receive payment on its claim prior to confirmation. Section 330 states, in pertinent part, “[ajfter notice to the parties in interest and the United States Trustee and a hearing, ... the court may award to a trustee, an examiner, a professional person ... reasonable compensation” 11 U.S.C. 330(a)(1)(A) (emphasis supplied). In a Chapter 11 case, the payment of section 507(a)(1) administrative claims, which includes professional fees, would occur no sooner than the effective date of the plan. 11 U.S.C. § 1129(a)(9)(A) or if converted to Chapter 7 at distribution pursuant to section 726. However, section 331 states in pertinent part “[ajfter notice and a hearing, the court may allow and distribute to such applicant such compensation or reimbursement.” 11 U.S.C. § 331 (emphasis supplied). No plan was confirmed in the Chapter 11 case (thus no effective date for the plan) nor has the Chapter 7 Trustee initiated distribution pursuant to section 726. Thus the only Code provision that would have allowed Creel & Atwood to apply for and receive compensation and reimbursement is section 331. Therefore, Creel & Atwood’s compensation was an award of interim compensation pursuant to section 331 and thus is subject to disgorgement. Matter of Lockwood Corp., 216 B.R. 628, 637 (Bankr.D.Neb.1997) (emphasis in original). This argument was similarly rejected in In re Metropolitan Electric Supply Corp., wherein fees had been awarded in an “final” order granting chapter 11 counsel’s 226final fee application filed shortly after conversion of the case from chapter 11 to 7. The applications and resulting Orders of March 1993 are “final” only in the sense that they represent the last interim request of the Chapter 11 professionals. The denomination of those applications as “final” means, in this case, nothing more than that the probable intent of the applicants was to file no further requests for compensation arising out of the Chapter 11. These requests were made after the conversion of the case to one under Chapter 7, however, and the professionals involved knew, or should have know, of the requirements of § 726(b). Shaia v. Durrette, Irvin, Lemons & Bradshaw, P.C. (In re Metropolitan Elec. Supply Corp.), 185 B.R. 505, 510-11 (Bankr. E.D.Va.1995) (footnotes omitted). Cf. In re Lochmiller Indus., Inc., 178 B.R. 241, 245, n. 18 (Bankr.S.D.Cal.1995) (concluding that even final orders for compensation under 11 U.S.C. § 330 are interlocutory and subject to review and modification while the case is pending). This court likewise finds without merit Mr. Leonard’s assertion that disgorgement is not required because his fees were awarded pursuant to a “final” order. The second contention raised by Mr. Leonard in defense to the trustee’s disgorgement motion is not so easily dismissed. According to Mr. Leonard, Speaker Motors may be distinguished from the present case because Tennessee law provides an attorney a lien on a retainer paid by a client, citing, inter alia, Starks v. Browning, 20 S.W.3d 645 (Tenn.App.1999) and Mt. Pleasant Health Care Acquirors, Inc. v. Hidden Acres Assocs. (In re Hidden Acres Assocs.), 165 B.R. 842 (Bankr. M.D.Tenn.1993). As such, the argument goes, a chapter 11 debtor’s attorney is a secured creditor to the extent of the retainer and therefore, is not similarly situated with other administrative claimants within the purview of § 726(b). The issue of whether disgorgement is required if the attorney has a lien under state law was not raised or addressed in Specker Motors. See In re U.S. Flow Corp., 332 B.R. 792, 795 (Bankr.W.D.Mich. 2005) (recognizing that “[n]one of the three [Specker Motors] courts, each which rendered written opinions, addressed issues relating to state law attorneys’ liens”). Nor, to this court’s knowledge, has a court within the Sixth Circuit addressed the issue in light of the Specker Motors decision. However, courts from other circuits have found the argument meritorious and have uniformly concluded that a state law lien trumps, or more accurately, prevents § 726(b) from coming into play. See In re Printcrafters, Inc., 233 B.R. 113, 120 (D.Col.1999) (because under Colorado law a law firm had lien on prepetition retainer paid to it, the firm was not required to share the retainer with other administrative claimants); In re Pannebaker Custom Cabinet Corp., 198 B.R. 453, 460 (Bankr. M.D.Pa.1996) (unless excessive or unreasonable, retainer not subject to disgorgement to achieve parity among administrative claimants due to attorney’s superior priority as secured creditor); In re Printing Dimensions, Inc., 153 B.R. 715, 719 (Bankr.D.Md.1993) (counsel not required to share prepetition retainer pro rata with other administrative claimants where retainer is treated as security or held in trust); In re North Bay Tractor, Inc., 191 B.R. 186, 187-88 (Bankr.N.D.Cal.1996) (attorney’s interest in retainer “is in the nature of a security interest, assuring the attorney of a minimum fee in the case” and to require attorney to disgorge the retainer so that other claimants of equal priority receive equal dividends would “undermine the purpose of retainers”); Matter of K & R Mining, Inc., 105 B.R. 394, 397 (Bankr. 227N.D.Ohio 1989) (rejecting under Ohio law the assertion that debtor’s attorney was required to turn over his retainer to be shared pro rata by all administrative claimants); In re Burnside Steel Foundry Co., 90 B.R. 942, 944 (Bankr.N.D.Ill.1988) (noting that retainer paid to chapter 11 debtor’s attorney enables the attorney “to avoid the subordination of the Chapter 11 expenses of administration to those incurred in administering the Chapter 7 estate mandated by § 726(b)”); In re Kinderhaus Corp., 58 B.R. 94, 97 (Bankr. D.Minn.1986) (“A prepetition retainer held in trust by a debtor’s attorney ... is not ordinarily available as a source of payment for other administrative expense claims under 11 U.S.C. § 503(b) ....”); cf. In re Cottrell Intern., LLC, 2000 WL 1180282, 4 (Bankr.D.Col. July 19, 2000) (permitting postpetition retainer to debtor’s attorney to stand as security for payment of fees allowed by the court, but noting that under 11 U.S.C. § 328 an order allowing employment on terms such as the payment of a retainer remains reviewable by the court and may be modified (with the result of possible disgorgement) if, within the language of the statute, “the terms and conditions prove to have been improvident ...”). In this regard, the chapter 7 trustee does not challenge Mr. Leonard’s claim that he has, under Tennessee law, a lien on the retainer paid to him. As stated by the Tennessee Court of Appeals in Starks v. Browning: Most jurisdictions recognize some form of attorney’s lien to secure a lawyer’s claim for fees should a client fail to compensate the lawyer for the services rendered. While a lawyer’s right to compensation remains based on contract, attorney’s liens provide security for these contractual rights. Two types of attorney’s liens exist today either by the common law or by statute. The first type of lien is a retaining lien. A retaining lien is a pos-sessory lien ... that permits a lawyer to retain a client’s books, papers, securities, or money coming into his or her possession during the course of the representation until the attorney and client have settled their fee dispute or until the client has otherwise posted appropriate security for the outstanding fee.... The second type of lien, a charging lien, is based on a lawyer’s equitable right to have the fees and costs due for the lawyer’s services in a particular action secured by the judgment or recovery in that action. Starks v. Browning, 20 S.W.3d at 650 (internal citations omitted). See also In re Hidden Acres Assocs., 165 B.R. at 844 (“Tennessee law clearly provides for a retaining lien on a client’s papers.”). As stated by the court in Panne-baker Custom Cabinet Corp.: A prepetition security retainer is a traditional, valid and proper means for an attorney for a Chapter 11 debtor-in-possession to secure some assurance of future payment for valuable services rendered during the course of a bankruptcy case. Such funds are delivered essentially to serve as collateral security for subsequent payment of allowed fees, thus transforming the attorney into a secured creditor with a possessory perfected security interest in such monies to the extent that the retainer covers fees which are ultimately approved by the Court for services performed. In re Pannebaker Custom Cabinet Corp., 198 B.R. at 460 (quoting In re Baltic Assocs., L.P., 1994 WL 791634 (Bankr. E.D.Pa. Mar.16, 1994)). 228This court concludes that because Mr. Leonard held a lien on the retainer paid to him by the debtor, disgorgement is not required by § 726(b). The sole issue in Specker Motors was one of statutory construction: whether disgorgement under § 726(b) was mandatory, or discretionary as the Bankruptcy Appellate Panel had previously held in In re Unitcast Inc., 219 B.R. 741 (6th Cir. BAP 1998). Specker Motor Sales Co., 393 F.3d at 662. See also In re U.S. Flow Corp., 332 B.R. at 795 (“Specker was very narrowly decided.”); C.R. Bowles, Your Retainer: Pocket Aces or a 7-2 Off Suit?, 24 Am. Bankr.Inst. J. 28, 76 (May 2005) (author noting that only issue raised by the parties in Specker Motors was mandatory/discretionary distinction). Since § 726(b) uses the word “shall,” the Sixth Circuit Court of Appeals concluded that the pro rata distribution requirement was mandatory. Specker Motor Sales Co., 393 F.3d at 662. The court noted that the attorney opposing disgorgement, Donald Bays, had raised a number of public policy arguments against disgorgement, all of which the court rejected in light of the statute’s unambiguity. Id. at 664. The Specker Motors court also indicated that, contrary to Bays’ assertions, the court’s holding in this regard was consistent with the policy of the Bankruptcy Code. “Equality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debtor’s property.” Begier v. Internal Revenue Service, 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). Equality of distribution would be vitiated if one equally situated administrative claimant-Bays-received more than his pro rata share. Id. Thus, it is clear from the foregoing that § 726(b)’s distribution scheme from which the disgorgement issue arose applies only to “creditors of equal priority” or “equally situated administrative claimant[s].” An attorney with a lien on a retainer paid to him is not “equally situated” with other administrative claimants that advance services or credit to the debtor on an unsecured basis. As such, § 726(b) is inapplicable to the case at hand. The logic of this result was succinctly explained in Burnside Steel Foundry Co.: [T]he typical retainer paid to a debtor’s attorney in a Chapter 11 case is intended to secure future payment of attorney’s fees awarded by the Court. In the event the Court orders such an award, and the debtor does not have the cash to pay the award, the retainer insures payment. If the case fails and is converted to Chapter 7, the retainer enables the debtor’s attorney to avoid the subordination of the Chapter 11 expenses of administration to those incurred in administering the Chapter 7 estate mandated by § 726(b) of the Bankruptcy Code. The reason why this result obtains is simple.... There is nothing theoretically different between the attorney who receives a retainer against future fees and a landlord who takes a cash security deposit to secure the payment of future rents. The reason that the retainer succeeds in avoiding the subordination requirements of § 726(b) is that § 726 only affects distribution priorities among holders of unsecured claims, and an attorney with a retainer is, to the extent of the retainer, the holder of a secured claim. In re Burnside Steel Foundry Co., 90 B.R. at 944. As a final note, this court observes that although, as previously mentioned, no court has addressed Specker Motors as it relates to state law attorneys’ liens, one *229court has considered whether Speaker Motors applies in the context of carve-out professional fees. See In re U.S. Flow Corp., 332 B.R. at 792. To clarify, the issue in US Flow was whether, in a case converted from chapter 11 to 7, court-appointed professionals in the chapter 11 case must disgorge, in order to achieve parity among all administrative claimants, carve-out funds approved by the court pursuant to a DIP financing order. Citing, inter alia, the narrowness of the Speaker Motors decision, the US Flow court concluded that disgorgement of carve-out funds was not required since the lien position of the lenders who consented to the carve-out was valid and unassailable. Id. at 795-797. While admittedly not entirely on point with the present case, this court reads the US Flow decision as consistent with the ruling herein. Although not expressed by the U.S. Flow court in these words, the carve-out was, in effect, an assignment of the secured lenders’ lien position to the extent of the carve-out, rendering the professionals secured creditors, with a greater priority in the carve-out funds than other administrative claimants. Because the professionals were not equally situated with the other administrative claimants, § 726(b) and Speaker Motors had no applicability. III. Based on all of the foregoing, the court will enter an order denying the chapter 7 trustee’s motion for disgorgement. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A); Matter of Lockwood Corp., 216 B.R. at 632. . The text of 11 U.S.C. § 726 pertinent to this discussion reads as follows: (a) Except as provided in section 510 of this title, property of the estate shall be distributed — ■ (b) Payment on claims of a kind specified in paragraph (1), (2), (3), (4), (5), (6), (7), or (8) of section 507(a) of this title, or in paragraph (2), (3), (4), or (5) of subsection (a) of this section, shall be made pro rata among claims of the kind specified in each such particular paragraph, except that in a case that has been converted to this chapter under section 1112, 1208, or 1307 of this title, a claim allowed under section 503(b) of this title incurred under this chapter after such conversion has priority over a claim allowed under section 503(b) of this title incurred under any other chapter of this title or under this chapter before such conversion and over any expenses of a custodian superseded under section 543 of this title. . Like Mr. Leonard, the attorney in Specker Motors had submitted his final request for fees and that request had been approved by the court. The Sixth Circuit noted in Specker Motors that the bankruptcy court had permitted the debtor's attorney to keep the $10,000 as “interim compensation,” although from a reading of the opinion it appears that the retention was in connection with the attorney's “final” fee application. Specker Motor Sales Co., 393 F.3d at 661. . This section provides: A trustee, an examiner, a debtor's attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. 11 U.S.C. § 331.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493875/	MEMORANDUM OPINION JACQUELINE P. COX, Bankruptcy Judge. This Chapter 11 case is before the Court on an adversary proceeding brought by National Steel Creditor Trust to avoid, as preferences, pre-petition payments made by debtor National Steel Company to BSI Alloys, Inc. The defendant answered the complaint and asserted two affirmative defenses to the claims: a new value defense under 11 U.S.C. § 547(c)(4) and an ordinary course defense under 11 U.S.C. § 547(c)(2). The Trust’s motion for partial summary judgment as to the second, third and fourth transfers followed. BSI has also filed a motion for summary judgment. The crux of this matter is whether BSI can avail itself of the ordinary course defense. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bankruptcy Rule 7056. To resist, the non-moving party must present sufficient evidence to show that there is a genuine issue for trial or show that it is entitled to judgment as a matter of law on the basis of uncontested facts. For more than two years prior to the preference period of December 6, 2001, to March 5, 2002, BSI sold High Carbon Fer-romanganese (HCFeMn) to National Steel Corporation (“NSC”) for use in the manufacture of steel. The sales were made on “Prox 25” payment terms. “Prox 25” required NSC to pay an invoice on the 25th day of the month following the month of 232the invoice date (or the next business day after the 25th day of the month if the 25th day fell on a Saturday, Sunday or holiday). The parties had annual contracts covering the purchase of ferroalloys. During the preference period the payment terms were changed pursuant to the their annual contracting procedures to “net 30,” which required payment within 30 days of the invoice date. During the preference period NSC paid BSI $943,581.33 split into four transfers. On the bankruptcy-filing date, BSI had outstanding unpaid invoices for nine other pre-petition transfers. The Second Transfer Summary judgment is not being sought for the first transfer. The second transfer of $341,486.70 covered six invoices issued between December 5, 2001, and December 27, 2001. The “Prox 25” terms applied. Payment was due on the 25th day of the following month, January 25, 2002. However, the payment was made by a check dated February 4, 2002; BSI received the check on February 5, 2002. During the 22 months prior to the preference period, each payment covered all invoices issued during the prior month. Stipulation of Facts ¶ 14. According to NSC’s 7056-1 Statement of Facts at ¶ 51 and BSI’s 7056 — 2 Statement of Facts ¶ 51, the second transfer did not pay BSI invoices dated in the immediately preceding month but paid invoices from December 2001, the month two months prior. NSC argues that because the second transfer covered invoices from two months prior, not one month prior, it was not ordinary. BSI argues that a better explanation is that every invoice payment throughout the entire prepetition period was received by the 10th day of the third month following the invoice date. The second transfer did deviate from NSC’s normal course by paying for invoices from two months prior rather than invoices from the preceding month. Examination of Exhibit C to the Stipulation of Facts reveals that in the pre-preference period invoices were paid between 32 and 68 days for an average of 45.65 days; in the preference period invoices were paid between 35 and 62 days for an average of 46.65 days. The Third and Fourth Transfers The third and fourth transfers were made pursuant to “net 30” terms first agreed upon during the preference period; payments were due no later than the 30th day after the date of the invoice. The third transfer of $196,751 covered three invoices: as to invoice 8116414 dated January 3, 2002, payment was sent on February 14, 2002; as to invoice 8116591 dated January 10, 2002, payment was sent on February 14, 2002; as to invoice 8116858 dated January 15, 2002, payment was sent on February 14, 2002. These February 14, 2002, payments were received by BSI on February 20, 2002. Stipulation of Facts ¶ 21. The fourth transfer of $99,068 covered two invoices: as to invoice 8117113 dated January 17, 2002, payment was sent on February 22, 2002; as to invoice 8117288 dated January 22, 2002, payment was sent on February 22, 2002. These February 22, 2002, payments were received by BSI on February 26, 2002. Stipulation of Facts ¶ 25. DISCUSSION AND ANALYSIS A. Prima Facie Case of Preferential Transfer Pursuant to § 547(b) of the Bankruptcy Code a debtor may avoid a prepetition transfer of an interest of the debtor in property if it is 1) to or for the benefit of a creditor 2332) for or on account of an antecedent debt owed by the debtor before such transfer was made 3) made while the debtor was insolvent 4) made A) on or within 90 days before the date of the filing of the petition; or B) between 90 days and a year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and 5) that enables such creditor to receive more than such creditor would receive if A) the case were a case under Chapter 7 of this title; B) the transfer had not been made; and C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). BSI was the debtor’s creditor at the time of the receipt of the transfers. Stipulation of Facts ¶ 30. The second, third and fourth transfers were made within 90 days of the filing of the petition. Stipulation of Facts ¶ 21. The transfers were made on account of debts owed prior to the transfers. Stipulation of Facts ¶ 32. According to NSC’s confirmed Chapter 11 plan, unsecured creditors holding allowed claims expect to receive a 1— 1.5% dividend. NSC’s 7056 — 1 Statement of Fact ¶ 85; BSI 7056 — 2 Statement of Facts ¶ 85. BSI’s receipt of the transfers enabled it to receive more than it would have received if these cases had been administered under Chapter 7 and BSI had not received the transfers. B. The Ordinary Course Affirmative Defense Section 547(c)(2) provides an ordinary course exception to avoidable preference liability where a transfer is A) a payment of a debt incurred by the debtor in the ordinary course of business B) made in the ordinary course of business or financial affairs of the debtor and the transferee and C) made according to ordinary business terms. 11 U.S.C. § 547(c)(2). This provision is designed to “leave undisturbed normal commercial and financial relationships and protect recurring, customary credit transactions which are incurred and paid in the ordinary course of business of both the debtor and the debtor’s transferee.” In re Armstrong, 231 B.R. 723, 729 (Bankr. E.D.Ark.1999). BSI and NSC have stipulated that the requirements of § 547(c)(2)(A) and § 547(c)(2)(C) of the Bankruptcy Code have been met. Stipulation of Facts ¶¶ 28—29. The remaining issue is whether the transfers were “made in the ordinary course of business or financial affairs of the debtor and the transferee.” 11 U.S.C. § 547(c)(2)(B). NSC argues that because the second transfer was late, it was presumptively non-ordinary as held by the Seventh Circuit in In re Xonics Imaging Inc., 837 F.2d 763, 767 (7th Cir.1988). “The conduct of a debtor, after becoming insolvent, in failing to make payments within the time required by his contract with the creditor is presumptively non-ordinary.” Id. Later Seventh Circuit decisions held that certain late payments can sometimes be the basis for an ordinary course defense and that such defenses must be analyzed by a multi-factor standard. First the Seventh Circuit ruled in In re Tolona Pizza Products Corporation, 3 F.3d 1029 (7th Cir.1993), that normally a late payment will not be in the ordinary course of the debtor’s and creditor’s business. However, it also explained that a “late” pay234ment is not late if the parties have established a practice that deviates from the strict terms of their written contract. If late payments are generally made and accepted, this pattern of conduct represents the ordinary course of the parties’ conduct. Tolona, 3 F.3d at 1032. Then in 2003 the Seventh Circuit ruled in Kleven v. Household Bank F.S.B., 334 F.3d 638 (7th Cir. 2003), that ordinary course defenses must be tested according to the following factors: 1) the length of time the parties were engaged in the transaction at issue, 2) whether the amount or form of tender differed from past practice, 3) whether the debtor or creditor engaged in any unusual collection or payment activity, and 4) whether the creditor took advantage of the debtor’s deteriorating financial condition. See id. at 642. The Eleven Court did not cite its Xonics ruling when it referred to its prior rulings on this issue. Subsequent courts have further outlined what is potentially ordinary activity for a creditor: POTENTIALLY ORDINARY CREDITOR ACTIVITY creditor question When will payment due according to existing terms be received? — even if this question concerning payment had never been previously asked. creditor communication There is increased concern about receipt of payment due according to existing terms — even if such a concern had never been previously expressed. creditor frequency There are repeated requests for payment or expressions of concern about payment due according to existing terms — even if there had never been such repeated requests. identity of creditor contact There is contact by senior management or a creditor representative with increased authority involving credit decisions concerning payment due according to existing terms — even if there was never contact by such senior management or a creditor representative. POTENTIALLY NOT ORDINARY CREDITOR ACTIVITY If payment for an antecedent debt is not received according to its terms and any one, some or all of the following activities are present, the payment may not be in the ordinary course of the parties’ business: 1. creditor change from prior or existing credit terms. 2. creditor change from prior or existing credit limits. 3. creditor change from prior or existing sales of goods and services. 4. creditor change from prior or existing shipment of goods and services. 5. creditor change from the existing required amounts of payments to be made. 6. creditor change from the existing required timing of payments to be made. 7. creditor changes in future credit terms, limits, sales, shipments, the amount of payments required or the timing of payments. Roberds, Inc. v. Broyhill Furniture (In re Roberds Inc.), 315 B.R. 443, 458-59 (Bankr.S.D.Ohio 2004). C. Application of the Multi-Factor Tests BSI supplied ferroalloys to NSC for more than ten years prior to the petition date; for more than two years prior to 235the preference period, it was sold pursuant to “Prox 25” terms. Stipulation of Facts ¶¶ 10, 12. Except for a May 2000 payment, in the twenty-two months prior to the preference period, NSC made one payment each month to BSI, and each monthly payment paid all BSI invoices in the month prior to the date of the check. Stipulation of Facts ¶ 14. This information concerning when payments were received over the course of the entire relationship is more instructive in this matter. What matters most is a comparison of how long it took NSC to pay invoices in the pre-preference period to how long it took in the preference period. The amount and form of tender varied from the pre-preference period to the preference period in one limited regard: the February 4, 2002, check covered invoices from December 2001 (two months prior) rather than one month prior. In actuality this meant that the check may have been ten days late. In effect it was not later than other habitually “late” payments because of the overnight mode of delivery the debtor used for the second transfer (and only the second transfer). The same range-of-days evidence also tends to show that the debtor did not engage in unusual payment activity other than the overnight mode of delivery on one occasion. BSI did not engage in any unusual payment activity at all. It did not sue, declare the contract in default, refuse to deliver or demand prepayment; this is proof that it did not engage in unusual collection activity. NSC’s director of corporate accounting, Robert Foley, acknowledged at a deposition that the second transfer was late but that he did not know why. Robert Foley Dep., page 41, lines 6-16. This does not show that nonordinary conduct by BSI caused this slightly late payment. BSI did not take advantage of NSC’s deteriorating credit condition to protect itself. Plaintiff has neither alleged nor offered evidence of such. In fact, when the petition was filed, BSI held nine unpaid invoices. In conclusion, the ordinary course defense applies to the second transfer primarily because it took as long for BSI to obtain payments pre-preference—45.65 days—as it did to receive payment during the preference period—46.65 days. The single fact that the debtor unilaterally switched the mode of delivery from regular mail to overnight mail is not sufficient to alter the applicability of the affirmative defense. The next issue is whether the parties’ conduct regarding the third and fourth transfers was ordinary as to those payments. Viewing them separately from the second transfer which was governed by “Prox 25” terms, the pattern, the ordinary course, continues to be one of ordinary lateness, i.e., their ordinary course was for those payments to arrive a few days late. No significant change in collection practices by the creditor or payment practices by the debtor occurred during the period of time that the third and fourth transfers occurred. The change to “net 30” did not significantly impact NSC’s actual payment conduct. Thus, should the imposition of “net 30” terms during the preference period make the third and fourth transfers not ordinary? That a new term governed the parties’ relationship during the preference period is an appropriate component of an ordinary course analysis. The more determinative component is an analysis of whether this actually impacted the parties’ credit and payment practices. Roberds, Inc. v. Broyhill Furniture (In re Roberds Inc.), 315 B.R. 443, 459 (Bankr.S.D.Ohio 2004). The Roberds Court also addressed 236whether communications and activities can be “ordinary” in the course of a debt- or/creditor relationship if the communications and activities had never previously occurred in the parties’ history. It stated: Since every business relationship must begin with an initial transaction between the parties, and § 547(c)(2) contains no exclusion for first time transactions, it would unnecessarily restrict the meaning and intent of the statute to exclude a first time transaction from the benefit of the defense, even though, obviously, the transaction could not have previously occurred. Roberds, 315 B.R. at 457. In Gosch v. Burns (In re Finn), 909 F.2d 903, 908 (6th Cir.1990), the Six Circuit said: We hold that, as a general rule, subject to the individual factfinding powers of the district court in a specific inquiry, a transaction can be in the ordinary course of financial affairs even if it is the first such transaction undertaken by the customer. This rule holds where the transaction would not be out of the ordinary for a person in the borrower’s position. These cases address parties’ initial transactions and indicate that they can be considered as ordinary course. It should follow that where a term is introduced for the first time, as “net 30” was here, it too qualifies for ordinary course status subject to the multi-factor standard, even though it was a term not pursued before. The contractual change in payment terms during January 2002 creates an important issue, especially when one considers the weight placed herein on the fact that the regularity and timing of the debt- or’s preference-period payments was so nearly identical to those during the pre-preference period. Was this regularity and consistency during the preference period the product of the stricter payment terms, or would they have been regular and consistent anyway? In other words, was the regularity and consistency incidental to the contractual change in payment terms? The mere fact that this change occurred is not sufficient to support a reasonable inference that it was not incidental, i.e., that it induced conduct on the debtor’s part. In any event, the defendant has noted the lack of evidence indicating that the term change induced specific conduct. The combination of NSC’s established payment practices, the use of the mail to deliver checks, and BSI’s understanding that “net 30” included some slippage to account for time to issue the check and time to mail the check, see Stipulation of Facts ¶¶ 24—25; Foley Dep. 48: 6 —19, 49: 14—17, shows that the parties did not contemplate a strict, literal interpretation and use of “net 30.” NSC’s director of corporate accounting, Mr. Foley, said on page 49 of his deposition that the way NSC used “net 30,” regular payments could slip beyond 30 days. The parties understood that check arrival would not necessarily occur by the thirtieth day because NSC cuts checks only on four specific days each month. One of those days could coincide with the thirtieth day. Additionally, a fact-specific analysis of the parties’ course of conduct regarding the ferroalloys contracts reveals that although BSI got NSC to agree to change the payment term form “Prox 25” to “net 30,” there was no real, material change in payment practices. That the payment ranges pre-preference and during the preference period are virtually identical indicate that there was no change in NSC’s payment behavior. Thus, although the third and fourth transfers were contractually late according to the new terms of “net 30,” they were contractually timely under the long-established terms of “prox 25,” as the 237debtor mailed the third and fourth transfers eleven days and three days prior to February 25, 2002, respectively. In addition, the payment-term change during the preference period was negotiated bilaterally. It was not unilaterally imposed by BSI. Stipulation of Facts ¶ 22; Baldridge Affidavit ¶¶ 5—9. The new term increased the price discount from 2% to 2.5% to ameliorate any effect of shortening the payment terms to “net 30.” On balance, then, this change also benefitted the debtor as it got an increased discount for payments made a few days sooner. The change to “net 30” was a change from prior or existing payment requirements, but what Roberds condemned was a creditor-imposed change, while the change in this case received input and approval from the debtor. NSC asserts that BSI demanded that NSC indicate on its purchase orders that it would be able to pay for its order, and after BSI warned NSC that if payments slipped, BSI would require payment by wire transfer. Though BSI attempted to obtain these terms, the debtor would not agree, and these terms did not become part of the parties’ contract. Supp. Aff. of Richard Baldridge ¶¶ 9, 10, & 11. Since annual renegotiation of the contract was ordinary, the creditor’s noneoer-cive attempt to resolve issues pertaining to wire — transfer payments and solvency representations was also ordinary in this situation. “These suggested guidelines may be conceptually considered the difference between a creditor asking and a creditor acting; in essence, a legal application of the adage— ‘it can’t hurt to ask.’ ” In re Roberds, 315 B.R. 443, 458 (Bankr. S.D.Ohio 2004). Hechinger Inc. Co. Of Delaware v. Universal Forest Products, Inc. (In re Hechinger Inv. Co. of Delaware), 326 B.R. 282 (Bankr.D.Del.2005), affirmed, 339 B.R. 332 (D.Del.2006), was different in that the court found a creditor’s unilateral change of credit terms to be unqualified for the ordinary course exception. There the terms were changed from net 30 (with a 1% discount for 10 days and 7—day mail float) to net 8 (with a 1% discount for 7 days with remittance by wire). Id. at 287. Debtor’s previous unlimited open line of credit was then closely monitored. Id. The change in that case was a significant departure from the way the parties had done business throughout their 15 — year relationship, and the changes occurred shortly before the preference period, including a requirement that the debtor make lump-sum payments of $500,000 or $1 million. Id. at 292. In contrast to the bilateral negotiation here, the debtor’s vice president testified that he was never told of a $500,000 credit limit and that the credit limit would not have been workable due to the volume of business between the parties. Id. at 287. The changes required larger and more frequent payments. The creditor’s efforts did not foster the goal of protecting recurring, customary credit transactions incurred and paid in the ordinary course of business of the debtor and transferee. Instead of protecting recurring transactions, that creditor materially changed the way those parties conducted business. In the case at bar the amount and form of the payments did not change in any material regard. BSI did not engage in any unusual collection activity. It requested payment by wire transfer, which NSC rejected. It did not refuse to ship during the preference period; in fact BSI made nine shipments which remained unpaid when the bankruptcy petition was filed. BSI did not declare NSC in breach of the contract, and it did not sue NSC. The ordinary course defense should protect the kind of regularly occurring, consistent conduct that BSI and NSC exhibited. The Court concludes that the third and four transfers qualify under the affirma*238tive defense because, in spite of the new term, payments made during the preference period were within the same range of days as the pre-preference payments, differing by one day. It was customary for the parties to renegotiate the contract terms each year. Stipulation of Facts ¶ 22. Essentially, nothing changed. Creditors should not be punished for dealing with troubled companies; thus, preferences should “leave undisturbed normal financial relations, because they do not detract from the general policy of the preference section to discourage unusual action by either the debtor or creditors during the debtor’s slide in to bankruptcy.” In re Tennessee Valley Steel Corp., 203 B.R. 949, 952 (Bankr.E.D.Tenn.1996). NEW VALUE DEFENSE The parties have stipulated that the new value defense would apply under various scenarios regarding three of the four transfers asserted as being new value. Stipulation of Facts ¶¶ 34 — 39. The remaining contested new value issue is whether the goods related to invoice 8118517 were provided subsequent to the second transfer. The evidence, to date, does not establish that this shipment was received after the second transfer on February 5, 2002. However, because BSI has prevailed herein on its ordinary course defense, it does not need to establish the new value defense, which reduces preference liability. There is no liability to reduce. CLAIMS UNDER § 502(D) AND § 550 Once a transfer is avoided under section 547, the trustee may recover the property transferred for the benefit of the estate, or if the court so orders, the value of such property from the transferee. 11 U.S.C. § 550. Section 502(d) of the Bankruptcy Code provides that unless an entity or transferee receiving a payment that is a voidable preference under section 547 has paid the amount for which such entity or transferee is liable under section 550 of the Bankruptcy Code, any claim of such entity or transferee will be disallowed. Having found that BSI has no preference liability to NSC, the relief requested in Counts II and III of the Complaint to disallow BSI’s claim under section 502(d) is DENIED. ORDER The Plaintiffs Motion for Partial Summary Judgment is DENIED. The March 30, 2006 10:00 a.m. Status Hearing herein is stricken.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484700/	J-S32041-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS ENRIQUE PACHECO : : Appellant : No. 594 MDA 2022 Appeal from the Judgment of Sentence Entered March 18, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001211-2021 BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 17, 2022 Luis Enrique Pacheco appeals from the judgment of sentence, entered in the Court of Common Pleas of Berks County, after a jury convicted him of one count of possession of a Schedule I controlled substance.1 After our review, we affirm. On March 17, 2022, the trial court, applying a sentencing enhancement, sentenced Pacheco to 16 to 36 months’ incarceration in county prison. 2 The ____________________________________________ 135 P.S. § 780-113(a)(16). The controlled substance is identified as MDMB- 4en-PINACA, a synthetic cannabinoid. See Information, 4/22/21. 2 Pacheco had a prior record score of 5. Due to his prior drug convictions, he was subject to sentencing enhancement, bringing his maximum sentence to three years. See N.T. Sentencing Hearing, 3/17/22, at 3; Sentence Guideline Form, 4/4/22; see also 35 P.S. § 780-113(b) (“[I]f the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both.”) (emphasis added). J-S32041-22 next day, the court amended the sentencing order, committing Pacheco to a state correctional facility. See Order, 3/18/22. Pacheco filed a timely post- sentence motion on March 28, 2022, which the trial court denied on March 29, 2022. Pacheco filed this timely appeal.3 Both Pacheco and the trial court complied with Pa.R.A.P. 1925. On appeal, Pacheco raises one issue: Whether the trial court sentenced Pacheco to an illegal sentence under 42 Pa.C.S. § 9762(i) when the court sentenced him to 16 to 36 months’ incarceration in a state correctional institution on the charge of possession of a controlled substance[,] when the grading of such a charge is an ungraded misdemeanor? Appellant’s Brief, at 4. A claim challenging the legality of a sentence is a question of law; therefore, our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Kline, 166 A.3d 337, 340-41 (Pa. Super. ____________________________________________ 3 Counsel for Pacheco filed a notice of appeal on April 14, 2022, from the “Judgment of Sentence entered on this matter March 17, 2022, and the subsequent denial of the Post-Sentence Motion entered on this matter on March 29, 2022.” Notice of Appeal, 4/14/22. Counsel erroneously stated the appeal was from the March 17, 2022 judgment of sentence and the March 29, 2022 order denying post-sentence motions, rather than from the March 18, 2022 amended judgment of sentence. Where the sentencing court amends the judgment of sentence during the period it maintains jurisdiction pursuant to 42 Pa.C.S. § 5505, the direct appeal lies from the amended judgment of sentence. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa. Super. 2010); see also Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (“In a criminal action, appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions.”) (citation omitted). -2- J-S32041-22 2017). If no statutory authorization exists for a particular sentence, that sentence is illegal and must be vacated. Id. Pacheco argues that the court’s order requiring him to serve his sentence in a state institution is illegal because his conviction was for a single count of possession, an ungraded misdemeanor. He contends the court is prohibited, under 42 Pa.C.S. § 9762(i), from committing him to a state prison because neither “the aggregate sentence consists of a conviction for an offense graded as a misdemeanor of the second degree or higher,” nor has “the Secretary of Corrections or the secretary’s designee [] consented to the commitment.” Id. Section 9762(b) provides, in relevant part: (b) Sentences or terms of incarceration imposed after a certain date.--All persons sentenced three or more years after the effective date of this subsection [] to total or partial confinement shall be committed as follows: (1) Maximum terms of five or more years shall be committed to the Department of Corrections for confinement. (2) Maximum terms of two years or more but less than five years shall be committed to the Department of Corrections for confinement, except upon a finding of all of the following: (i) The chief administrator of the county prison, or the administrator's designee, has certified that the county prison is available for the commitment of persons sentenced to maximum terms of two or more years but less than five years. (ii) The attorney for the Commonwealth has consented to the confinement of the person in the county prison. -3- J-S32041-22 (iii) The sentencing court has approved the confinement of the person in the county prison within the jurisdiction of the court. (3) Maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court. 42 Pa.C.S. § 9762(b) (emphasis added; footnote omitted). Thus, a sentence with a maximum term between two and five years must be served in state prison, unless each of the conditions in subsection (b)(2)(i)-(iii) is met. At the sentencing hearing, the assistant district attorney recommended “16 months to 36 months in the Berks County Prison.” N.T. Sentencing, 3/17/22, at 3. The court stated, however, that “the warden of our [county] prison has not certified the availability for state sentences.” Id. at 7. Because Berks County Prison was not certified “for the commitment of persons sentenced to maximum terms of two or more years but less than five years[,]” subsection (b)(2)(i) was not met. Accordingly, the court did not have the authority to order Pacheco’s sentence be served in county prison. Nevertheless, Pacheco argues that section 9762(i) prohibits the court from sentencing an individual convicted of an ungraded misdemeanor to state prison. Section 9762(i) states: (i) Prohibition.-- Notwithstanding any other provision of law, no person sentenced to total or partial confinement after the effective date of this subsection shall be committed to the Department of Corrections unless: (1) the aggregate sentence consists of a conviction for an offense graded as a misdemeanor of the second degree or higher; or -4- J-S32041-22 (2) the Secretary of Corrections or the secretary’s designee has consented to the commitment. 42 Pa.C.S. § 9762(i). The Commonwealth argues that while section 9762(i)(1) does, in fact, prohibit a state sentence for an ungraded misdemeanor, the three-year maximum sentence permitted by 35 P.S. § 780-113(b), which applied to Pacheco in light of his prior convictions, is “specifically applicable to these sentencing proceedings pursuant to [section] 9762(j).” Commonwealth’s Brief, at 4. The Commonwealth contends that Pacheco’s enhanced sentence “was consistent with a first-degree misdemeanor,” and, therefore, the court’s order requiring he serve that sentence in state prison was not illegal. Id. at 7. We agree. Section 9762(j) states: “18 Pa.C.S. § 106(b)(8) and (9) (relating to classes of offenses) applies to subsection (i).” 42 Pa.C.S. § 9762(j). Specifically, subsections 106(b)(8) and (b)(9) of the Crimes Code classify a crime as a “misdemeanor of the third degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than one year[,]” 18 Pa.C.S. § 106(b)(8), or if it is declared a misdemeanor “without specification of degree[.]” Id. at § 106(b)(9). In other words, a person convicted of a third-degree misdemeanor cannot be sentenced to a state institution. However, pursuant to section 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic -5- J-S32041-22 Act, Pacheco’s sentence was properly enhanced to a first-degree misdemeanor. Section 780-113(b) provides: (b) Any person who violates any of the provisions of clauses (1) through (11), (13) and (15) through (20) or (37) of subsection (a) shall be guilty of a misdemeanor, and except for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($5,000), or both, and for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding five thousand dollars ($5,000), or both; but, if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both. 35 P.S. § 780-113(b) (emphasis added). Notably, in Commonwealth v Cousins, 212 A.3d 34 (Pa. 2019), our Supreme Court held that convictions under 35 P.S. §§ 780-113(a)(31) and (32) (possession of paraphernalia and possession of small amount of marijuana) were properly used to enhance maximum sentences under section 780-113(b)). The Court stated: “[U]pon review of the Act, we conclude that 35 P.S. § 780-113(b) is not ambiguous. Indeed, in referring to a “violation of this act under this section,” the legislature clearly evidenced an intent that any violation under the entirety of 35 P.S. § 780-113, and not only those violations specified in § 780-113(b), would support an enhanced sentence.” Id. at 39-40 (emphasis added). Here, Pacheco had multiple prior convictions for simple possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of a small amount of marijuana. Thus, Pacheco was subject -6- J-S32041-22 to the enhanced sentencing provision of 35 P.S. § 780-113(b), elevating his crime to a first-degree misdemeanor. See 18 Pa.C.S. § 108(6) (“A crime is a misdemeanor of the first degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than five years.”) (emphasis added). Accordingly, the court’s order requiring Pacheco serve his sentence in state prison was not illegal. Kline, supra. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 -7- J-S32041-22 -8-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484707/	J-A18037-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 441 SMITHFIELD STREET, LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : 441 SMITHFIELD PITTSBURGH, LLC : : Appellant : No. 1366 WDA 2021 Appeal from the Order Entered October 22, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-20-006100 BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 17, 2022 441 Smithfield Pittsburgh, LLC (“Davio’s”) appeals from the order denying its petition to open a default judgment. We affirm. In April 2018, Davio’s and 441 Smithfield Street, LLC (“Landlord”) entered into a commercial lease agreement (“Lease”). Pursuant to the Lease, Davio’s agreed to rent certain property in Pittsburgh from Landlord that was intended to be a restaurant. Davio’s has 11 other restaurant locations nationwide, including its flagship restaurant in Boston (“Davio’s Boston”). The Lease required Landlord to perform construction to the property prior to Davio’s occupancy. Landlord was to complete construction and turn over the property to Davio’s by December 1, 2019. The parties subsequently entered into an amendment to the Lease, on October 11, 2018, extending the deadline to turn over the property to December 31, 2020. J-A18037-22 Landlord began construction on the property in September 2018, but the work was suspended in March 2020 after the Pennsylvania Governor issued an emergency order closing all non-life-sustaining businesses, including construction businesses, due to the COVID-19 pandemic. As a result, Landlord was prohibited from performing construction on the property. Landlord notified Davio’s in writing on March 20, 2020 that it was extending the delivery date of the property. Landlord extended the date pursuant to a clause in the Lease that permitted extensions in response to “governmental restrictions,” such as the Governor’s order. Davio’s did not respond to this notification. Landlord sent Davio’s a second letter, on March 30, 2020, indicating that it would treat Davio’s silence as acceptance of the extended delivery date. Landlord also stated that it would provide a new delivery date when the emergency order allowed construction to resume. Approximately a month and a half later, on May 8, 2020, Landlord advised Davio’s that the amended emergency order now permitted construction to resume and the new delivery date would be February 15, 2021. According to Landlord, Davio’s representative, Paul Carter, phoned Landlord and stated that Davio’s refused to accept the revised delivery date and demanded that the rent terms of the Lease be renegotiated. Landlord considered Carter’s statements a refusal to perform and thus, a breach of the Lease. Davio’s, however, contends that Carter had no authority to renegotiate the Lease and was never instructed to request changes to the Lease. -2- J-A18037-22 Landlord informed Davio’s in writing, on May 13, 2020, that it was in breach. According to Landlord, Davio’s principal, Steve DeFillippo, responded by contacting Landlord and stating that Davio’s would not proceed under the terms of the Lease. DeFillippo denies that he repudiated the Lease but rather stated that he did not know if he would be able to stay in the restaurant business given the uncertainty of the pandemic. Landlord filed a complaint against Davio’s on May 26, 2020, alleging, inter alia, breach of contract. Landlord served Davio’s registered agent for service of legal process, Corporation Service Company (“CSC”), in Harrisburg, Pennsylvania. CSC accepted service. Davio’s filed no responsive pleading. Landlord served CSC on July 1, 2020, with a ten-day notice of default. Davio’s again did not respond. As a result, the Prothonotary entered a default judgment against Davio’s, on July 13, 2020. Eighteen days later, on July 31, 2020, Davio’s filed a petition to open the default judgment. Davio’s admitted that Landlord had served the complaint on CSC on June 4, 2020, but stated it did not receive actual notice of the lawsuit until July 29, 2020. Davio’s contended that on June 10, 2020, CSC had forwarded the complaint to Davio’s flagship restaurant, Davio’s Boston. However, FedEx returned the package as undeliverable, on June 26, 2020, because Davio’s Boston was closed due to the pandemic, and after late March 2020, no one was going into the restaurant for any purpose. CSC re- sent the package a second time to Davio’s Boston on June 29, 2020, but again, it was returned as undeliverable, on July 30, 2020. DeFillippo contends that -3- J-A18037-22 he first learned of this lawsuit on July 29, 2020, via an email from Landlord’s attorney, and filed the petition to open two days later. Landlord filed a response to the petition to open, and the court issued a rule to show cause providing the parties with 60 days to conduct discovery on the petition. On October 22, 2021, the court denied the petition. This appeal followed. Davio’s raises the following issues for our review: 1. Whether the trial court abused its discretion or committed an error of law when it failed to utilize equitable principles, based on considerations of what would be in the best interests of justice, when it failed to grant Davio’s [] Petition to Open Judgment, where the record is clear that: (1) through no fault of its own, Davio’s [] did not receive timely notice of the underlying lawsuit; (2) Davio’s [] immediately filed the Petition upon discovering that it was in default; (3) where the Pennsylvania Courts, through administrative orders, admonished parties not to attempt to use the pandemic to gain an unfair advantage in litigation; and (4) Davio’s [] asserted meritorious defenses to the underlying action when its business operations were shut down for several months by the worldwide COVID-19 pandemic? 2. Whether the trial court abused its discretion or committed an error of law in refusing to grant Davio’s [] Petition to Open Judgment, where: (1) the Petition to Open was promptly filed; (2) the Petition established that Davio’s [] had a reasonable excuse for not timely filing an answer to the Complaint; and (3) the Petition established that Davio’s [] had a meritorious defense to the claims set forth in the Complaint? Davio’s’ Br. at 2-3. Davio’s’ issues are interrelated and we will address them together. Davio’s does not dispute that Landlord served the complaint on CSC, its registered agent for service of process. Davio’s’ Br. at 17. However, it argues -4- J-A18037-22 that its failure to timely respond to the complaint was the direct result of the massive disruptions caused by the pandemic-related government shutdowns. Id. at 24. Davio’s maintains it did not respond because its flagship restaurant, Davio’s Boston, was closed and was not receiving mail due to the pandemic. Id. at 33. Davio’s suggests that even if it could be said that Davio’s was somehow negligent, such negligence is excusable because it was an oversight and not a deliberate decision not to defend the lawsuit. Id. at 39. Davio’s also argues that it set forth a meritorious defense to the complaint. It notes that Landlord’s entire theory for default against Davio’s is based on the concept of anticipatory repudiation of the Lease, but Davio’s specifically denied in its answer that it had repudiated the Lease. Id. at 41. Moreover, Davio’s maintains that even if it could be said that the Lease was repudiated, the pandemic caused DeFillippo’s restaurant business to be shutdown, which impacted his ability to comply with the terms of the Lease. Id. at 25, 43. According to Davio’s, the trial court should have found that the equities weighed in favor of opening the default judgment. Id. at 26, 30. We review an order ruling on a petition to open a default judgment for “manifest abuse of discretion or error of law.” Smith v. Morrell Beer Distribs., Inc., 29 A.3d 23, 25 (Pa.Super. 2011) (citation omitted). A default judgment may be opened when the moving party has: “(1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint.” Myers v. -5- J-A18037-22 Wells Fargo Bank, N.A., 986 A.2d 171, 175-76 (Pa.Super. 2009). The failure to satisfy any one prong of this test will result in denial of the petition to open. U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 (Pa.Super. 2017). The court found that Davio’s promptly petitioned to open the default judgment but had failed to adequately allege a meritorious defense or a reasonable excuse. The court determined that Davio’s baldly asserted that the pandemic rendered performance of the Lease impossible or impractical, but it failed to show precise, specific, and clear facts as to how the pandemic did so. Trial Court Opinion, filed 12/14/21, at 2-3. The court also rejected Davio’s’ argument that it should be excused for not responding to the complaint because the address that it had provided to its agent was closed for business during the pandemic. The court reasoned that “[t]o the extent that [Davio’s] did not bother to pick up its mail at its closed restaurant and/or to the extent that [it] failed to give its own agent a workable address, [Davio’s] is directly to blame for not learning of the lawsuit in time to respond.” Id. at 3. We discern no abuse of discretion. Davio’s failed to offer a reasonable excuse for its inaction. Although Davio’s designated CSC as its registered agent for service of legal process in Pennsylvania, it failed to provide CSC with an alternative mailing address to forward legal claims after Davio’s Boston’s closure. Indeed, the relevant events here occurred almost three months after Davio’s Boston closed. Davio’s is a corporate entity, not a layperson, and should have had in place the means to monitor its legal claims. See Kelly v. -6- J-A18037-22 Siuma, 34 A.3d 86, 94 (Pa.Super. 2011); Myers, 986 A.2d at 177. Davio’s should have been aware in that time that Davio’s Boston’s closure meant that it was not receiving mail there and it should have put an alternative way to receive mail in its place. Davio’s relies on Campbell v. Heilman Homes, Inc., 335 A.2d 371 (Pa.Super. 1975), for the proposition that a default judgment may be opened where the failure to answer was due to an oversight or an unintentional omission to act. See Davio’s’ Br. at 33. In Campbell, the plaintiffs purchased a mobile home from the defendant and later claimed it was defective. The plaintiffs properly served the complaint upon defendant’s employee. However, the employee failed to follow the company’s procedures and never relayed the complaint to the main office. The employee was not reporting for work as scheduled, leading to his ultimate discharge. It was not until his replacement examined the files in the sales office and found the complaint that it was forwarded to defendant’s main office. In reversing the trial court’s denial of the petition to open, the Court noted that although service was procedurally proper, defendant’s failure to respond to the complaint was an unintentional omission, not unlike a clerical error, due to the inattentiveness of an employee. Campbell, 335 A.2d at 373. Here, Davio’s’ failure to arrange proper procedures to monitor its legal claims did not amount to a mere clerical error by a negligent employee. Rather, here, Davio’s as a whole failed to put in place adequate systems for it to receive notifications from its registered agent for service of process. While -7- J-A18037-22 we recognize the challenges the restaurant industry faced during the pandemic shutdown, we cannot say the trial court abused its discretion in determining that Davio’s, a sophisticated business, bears fault for failing to provide CSC with a workable address. Since we find that Davio’s’ arguments regarding the “reasonable excuse” prong fails, we do not address its arguments regarding the “meritorious defense” prong. See Myers, 986 A.2d at 178. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 -8-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484702/	J-A17044-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN JONES : : Appellant : No. 2278 EDA 2021 Appeal from the PCRA Order Entered November 5, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006302-2016, CP-51-CR-0006303-2016 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN JONES : : Appellant : No. 2279 EDA 2021 Appeal from the PCRA Order Entered November 5, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006302-2016, CP-51-CR-0006303-2016 BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED NOVEMBER 17, 2022 Appellant, John Jones, appeals from the order of the Court of Common Pleas of Philadelphia that dismissed his first petition filed under the Post ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A17044-22 Conviction Relief Act (“PCRA”).1 He challenges the denial of his claims requesting the recusal of the PCRA judge, asserting that his trial counsel provided ineffective assistance, and alleging the existence of newly discovered evidence. Upon review, we affirm. On direct review, we previously adopted the trial court’s following summary of the facts of the case: On October 24, 2011, [Appellant’s] brother, Shaquille Jones, was murdered on the 2600 block of Silver Street in Philadelphia. While Shaquille Jones’s murder was under investigation by the police, [Appellant] believed that a group of men from Hollywood Street in Philadelphia were responsible. [Appellant] vowed to kill his brother’s murderers once he was released from prison for an unrelated conviction. On the evening of March 8, 2016, Rasheen Jay Holden, Dionte Jones (also known as “D”), Don Smith (also known as “Pookie”), and Phillip Miller, were outside drinking and playing spades on the 2400 block of North Hollywood Street in Philadelphia. While they were playing, [Appellant] walked up to the group and said, “Give that shit up. Don’t run, D.” Dionte Jones ran off, and [Appellant] began to fire shots at him. In the meantime, the other men also attempted to flee. While Miller was trying to escape, [Appellant] began to fire shots at him. Miller was struck two times in the back. Philadelphia Police Officer Carlos Rodriguez responded to the scene and found Miller on the ground. Miller was put into Officer Rodriguez’s vehicle and transported to Temple University Hospital, where he was pronounced dead. The next day, on March 9, 2016, a memorial was held for Miller at a speakeasy on 28th and Huntingdon Streets in Philadelphia. During the evening, Eric Bright, Jeffrey Best, and three women, left the speakeasy to go outside and drink. In the meantime, someone called [Appellant] and told him that Bright was standing ____________________________________________ 1 42 Pa.C.S. §§ 9541-9546. -2- J-A17044-22 outside on 28th and Huntingdon. [Appellant] subsequently drove to the location, and upon spotting Bright, ran up to the group with a gun in his hand. [Appellant] told everyone to not move and put his hands in Bright’s pockets. He then began to fire multiple shots at Bright. While [Appellant] was shooting, the rest of the group ran for safety. When the shots stopped, Best returned to the scene, and found Bright lying on the ground showing little signs of life. Philadelphia Police Officers, who were in the area, heard the gunshots and responded to the scene. Upon arriving, they found Bright lying in between two parked cars and suffering from multiple gunshot wounds. Bright was shot seven times: twice in the back, and once in the chest, face, left arm, left palm, and right ring finger. The officers put Bright into their vehicle and transported him to Temple University Hospital, where he was pronounced dead. Philadelphia Police Detectives then conducted investigation of the two shootings. During the course of the investigations, Aikeem Corley positively identified [Appellant] as Phillip Miller’s shooter. Further, Jeffrey Best positively identified [Appellant] as Eric Bright’s shooter. Additionally, police recovered a Smith and Wesson nine-millimeter semiautomatic in an unrelated incident approximately five months after the shootings. Ballistics confirmed that the weapon was used in both murders. Commonwealth v. Jones, 2018 WL 4907581, 1 (Pa. Super., filed Oct. 10, 2018) (unpublished memorandum), quoting Trial Court Opinion, 1/3/18, 2-4 (citation to notes of testimony and exhibits omitted; formatting in brackets). At a non-jury trial, held on April 24-27, 2017, several police officers and detectives, the Philadelphia Deputy Chief Medical Examiner, and eyewitnesses to the shootings testified. Appellant did not take the stand or present evidence on his own behalf. On both docket numbers, the court found Appellant guilty of two counts each of first-degree murder and carrying a firearm on public streets or public property in Philadelphia, and one count of carrying a firearm -3- J-A17044-22 without a license.2 The court imposed an aggregate sentence of life imprisonment without parole.3 After the denial of a post-sentence motion, Appellant filed a direct appeal in which he challenged the weight and sufficiency of the evidence.4 Jones, 2018 WL 4907581 at 2. On October 10, 2018, our Court affirmed the judgments of sentence. Commonwealth v. Jones, 200 A.3d 544 (Pa. Super. 2018) (table). Appellant sought further review. On March 12, 2019, our Supreme Court denied allocatur. Commonwealth v. Jones, 204 A.3d 359 (Pa. 2019) (table). On November 18, 2019, Appellant filed a pro se PCRA petition. Counsel was appointed and filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), that addressed the claims presented in the pro se petition.5 Appellant subsequently filed a counseled ____________________________________________ 2 18 Pa.C.S. § 2502(a), 18 Pa.C.S. § 6108, and 18 Pa.C.S. § 6106(a)(1), respectively. 3 The aggregate term included concurrent imprisonment terms of life imprisonment without the possibility of parole for each murder conviction, one to two years of imprisonment for each conviction for carrying firearms on public streets or public property in Philadelphia, and one and one-half to three years of imprisonment for carrying a firearm without a license. 4 Our Court reinstated Appellant’s direct appeal rights after an initial appeal was dismissed due to Appellant’s failure to file a docketing statement pursuant to Pa.R.A.P. 3517. 5 The no-merit letter appears to only have been included in the lower court’s docket at CP-51-CR-0006302-2016, however, a “condensed” identification of the docket numbers for both cases on appeal appears on the letter. No-Merit Letter, 4/21/20, 1 (“CP-51-CR-6302/3-2016”). The PCRA court advises in its opinion that it found that the no-merit letter was inadequate and that it (Footnote Continued Next Page) -4- J-A17044-22 motion requesting the recusal of the PCRA judge who originally sat as the trial judge and an amended PCRA petition in which counsel raised the ineffective assistance of counsel and newly discovered evidence claims that are presented in this appeal. Amended PCRA Petition, 11/14/20, ¶ 12(a)-(b). The PCRA court denied the recusal motion. Order, 11/20/20. After the Commonwealth filed a responsive brief, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Rule 907 Notice, 9/8/21. Appellant filed a response to the Rule 907 dismissal notice challenging the adequacy of his jury trial waiver colloquy to advance his ineffective assistance of counsel claim. Response to Rule 907 Notice, 10/29/21, ¶¶ 4-6. The PCRA court dismissed the petition on November 5, 2021. Order, 11/5/21. Appellant timely filed notices of appeal and voluntarily filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).6 Notices of Appeal, 11/5/21; Rule 1925(b) Statement, 11/17/21. ____________________________________________ ordered counsel to either file a supplemental Finley letter or an amended petition. PCRA Court Opinion, 2/1/22, 2. 6 Appellant’s counsel filed two notices of appeal and each notice of appeal listed both trial court docket numbers. The notices, while identical in content, were distinct filings that were docketed at different times. See Notice of Appeal for 2278 EDA 2021, 1 (time-stamped as electronically filed at 11:24:40 p.m); Notice of Appeal for 2279 EDA 2021, 11/5/21, 1 (time-stamped as electronically filed at 11:22:18 p.m.). The notices comply with Pa.R.A.P. 341, which “requires that when a single order resolves issues arising on more than one docket, separate notices of appeal must be filed from that order at each docket.” Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021). See also Commonwealth v. Johnson, 236 A.3d 1141, 1145-48 (Pa. Super. 2020) (en banc) (finding a single defendant appealing from multiple dockets (Footnote Continued Next Page) -5- J-A17044-22 Appellant presents the following issues for our review: 1. Did the PCRA [court] err by denying [Appellant’s] claim that [the PCRA court judge], as the waiver court judge, should have recused himself from reviewing [Appellant’s] PCRA petition? 2. Did the PCRA court err when it denied [Appellant’s] claim that trial counsel was ineffective for coercing him into a bench trial by claiming the Commonwealth would withdraw its pursuit of the death penalty in exchange for said waiver? 3. Did the PCRA court err when it denied [Appellant’s] newly discovered evidence claim regarding lead Detective Nathaniel Williams’ qualifying misconduct[?] Appellant’s Brief at 7 (answers of the lower court omitted; formatting in brackets).7 “We review a ruling by the PCRA court to determine whether it is supported by the record and is free of legal error. Our standard of review of ____________________________________________ may include multiple docket numbers on each notice of appeal, but still must file separate notices of appeal for each docket); Pa.R.A.P. 105(a) (the Rules of Appellate Procedure are to be liberally construed to effectuate, inter alia, justice). 7 After Appellant voluntarily filed a Rule 1925(b) statement, the court issued an order directing him to file a Rule 1925(b) statement. Order, 11/10/21, 1. He then filed a second Rule 1925(b) statement. In his first Rule 1925(b) statement, he only identified his ineffective assistance and newly discovered evidence claims. Rule 1925(b) Statement, 11/9/21, 1. In the second statement, he identified those claims along with his recusal claim. Rule 1925(b) Statement, 11/17/21, 1. The trial court’s opinion only addresses the ineffective assistance of counsel and newly discovered evidence claims. PCRA Court Opinion, 2/1/22, 4-9. Because the court ordered Appellant to file a Rule 1925(b) statement after he already voluntarily filed one, and the second statement was filed within the time period set forth by the court’s Rule 1925 order, we will decline to find that Appellant waived his recusal claim by not including it in his first Rule 1925(b) statement. -6- J-A17044-22 a PCRA court’s legal conclusions is de novo.” Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (citations omitted). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted). In his first issue, Appellant claims that the PCRA court erred by denying his recusal motion. Appellant’s Brief at 11-13. He acknowledges that it is preferable for the same judge who presided at trial to also preside over PCRA proceedings, that the standard for recusal provides that judges should recuse themselves if they doubt their ability to preside impartially or where their impartiality can be reasonably questioned, and that the burden of persuasion for recusal rested with him as the moving party. Id. at 11-12. He argues that recusal was appropriate because he was convicted after a non-jury trial and the two homicide verdicts “evidence the [c]ourt’s belief in [his] criminal culpability.” Id. at 13. As further support for recusal, he cites that the lower court indicated that his sentence was “well deserved” and “appropriate under all circumstances,” and that the murders in this case were “a great loss to the [victims’] families” and a “senseless crime.” Id., citing N.T. 4/27/17, 140- 141. When a motion for recusal is denied, an appellate court’s function is to determine whether the judge abused his or her discretion in denying recusal. Reilly by Reilly v. Southeastern PA. Transp. Auth., 489 A.2d 1291, 1300 (Pa. 1985). In filing a motion for recusal, the moving party must allege facts -7- J-A17044-22 tending to show bias, interest, or other disqualifying factors. Id. A party moving for recusal need not demonstrate actual prejudice, but rather an appearance of impropriety or factors or circumstances that reasonably question a jurist’s impartiality. In re Lokuta, 11 A.3d 427, 435-36 (Pa. 2011). On appeal following the denial of a recusal motion, we place the burden on the party requesting recusal to establish that the judge abused his or her discretion. See Commonwealth v. White, 734 A.2d 374, 384 (Pa. 1999) (“It is Appellant’s burden to establish that [the judge] abused his discretion by denying her recusal motion.”). We presume that judges are fair and competent. Commonwealth v. Shannon, 184 A.3d 1010, 1018 (Pa. Super. 2018) (citation omitted). As acknowledged by Appellant, our Supreme Court has expressed a strong preference for a trial judge to preside over a petitioner’s post-conviction review proceedings to promote judicial efficiency. See, e.g., Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998) (“Generally, it is deemed preferable for the same judge who presided at trial to preside over the post-conviction proceedings since familiarity with the case will likely assist the proper administration of justice.”). That preference, however, yields to the decisions of the sitting jurist on matters of disqualification. See Pa.R.Crim.P. 903(C) (“The trial judge, if available, shall proceed with and dispose of the [post-conviction review] petition in accordance with these rules, unless the judge determines, in the interests of justice, that he or she should be disqualified.”). -8- J-A17044-22 In this instance, we cannot find that the PCRA court abused its discretion by denying Appellant’s recusal motion. The arguments made in favor of the motion below mirror the arguments in Appellant’s appellate claim: that the trial court was supposedly biased against Appellant by virtue of the verdicts reached by the court and the court’s comments at sentencing concerning the appropriateness of the sentence imposed, the fact that the court felt that the sentence was “well-deserved,” the characterization of the crime committed as “senseless,” and the court’s indication that the murders resulted in “a great loss to the [victims’] families.” Recusal Motion, 9/3/20, ¶ 10. We are unable to infer that the verdicts by themselves were any proof of bias. See Abu-Jamal, 720 A.2d at 90 (“Adverse rulings alone do not, however, establish the requisite bias warranting recusal, especially where the rulings are legally proper.”). Moreover, we cannot consider that the court’s statements at sentencing were improper and evidence of bias because – even though Appellant was subject to mandatory life imprisonment terms – the court was required by the Sentencing Code to consider the need for crafting a sentence that was consistent with, inter alia, the protection of the public and the gravity of the offenses as they related to the impact on the life of the victims and on the community. Because the cited comments at sentencing reflected the court’s consideration of the mandatory sentencing factors under 42 Pa.C.S. § 9721(b), we do not find that they provided any basis for recusal. See, e.g., Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (judge’s statement at sentencing that a twenty-year imprisonment sentence -9- J-A17044-22 was insufficient reflected careful consideration of the sentencing factors set forth in 42 Pa.C.S. § 9721(b), as required by statute and case law, and did not furnish a basis for a recusal claim on PCRA review). Having reviewed the record in this case, we are unpersuaded that Appellant’s recusal claim revealed any proof of bias on the part of the lower court or hinted at an appearance of impropriety. Given the stated preference for trial judges sitting as post-conviction review jurists and our presumption that judges are fair and competent, we are unable to conclude that the denial of Appellant’s recusal claim was an abuse of discretion. In his second issue, Appellant claims that his trial counsel provided ineffective assistance by “coercing him into a bench trial by claiming [that] the Commonwealth would withdraw its pursuit of the death penalty in exchange for” a waiver of his right to a jury trial. Appellant’s Brief at 10, 13- 15. As to a claim asserting ineffective assistance of counsel, we are guided by a well-settled set of precepts: We presume counsel’s effectiveness, and an appellant bears the burden of proving otherwise. To establish ineffectiveness of counsel, a PCRA petitioner must plead and prove: his underlying legal claim has arguable merit; counsel’s actions lacked any reasonable basis; and counsel’s actions prejudiced him. Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. Arguable merit exists when the factual statements are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination. - 10 - J-A17044-22 Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa. Super. 2019) (internal citations and quotation marks omitted). “[W]hen a defendant claims that his jury waiver was not knowing and voluntary due to his counsel’s ineffectiveness, to prove actual prejudice the defendant must demonstrate a reasonable probability that the result of the waiver proceeding would have been different absent counsel’s ineffectiveness.” Commonwealth v. Mallory, 941 A.2d 686, 702 (Pa. 2008). When a defendant choses to waive the right to a trial by a jury, Pa.R.Crim.P 620 provides, as follows, that a colloquy shall appear of record: In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant’s attorney as a witness. Pa.R.Crim.P. 620. The essential elements of a jury waiver “are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Commonwealth v. Williams, 312 A.2d 597, 600 (Pa. 1973). “[T]he use of a written jury trial waiver form has been deemed sufficient in the absence of an oral jury trial waiver colloquy.” Commonwealth v. Michaud, 70 A.3d 862, 870 (Pa. Super. 2013), citing Williams, 312 A.2d at 599-600. - 11 - J-A17044-22 When a presumptively-valid waiver is collaterally attacked under the guise of ineffectiveness of counsel, it must be analyzed like any other ineffectiveness claim … [T]he analysis must focus on the totality of relevant circumstances. Those circumstances include the defendant’s knowledge of and experience with jury trials, his explicit written waiver (if any), and the content of relevant off- the-record discussions counsel had with his client. Mallory, 941 A.2d at 698. On PCRA review, Appellant asserted that his counsel coerced him into waiving his jury trial rights by improperly telling him that the Commonwealth would forgo a pursuit of a capital sentence if he entered a jury trial waiver: He was informed by trial counsel that this was a death penalty case. It was for this reason, and this reason only, that he waived his right to a jury trial, believing that, by waiving his right to a jury trial, he would no longer be eligible for the death penalty if convicted. Based on the transcripts, it appears there was discussion between the Commonwealth and defense counsel about a possible waiver, but there is nothing in the record to indicate or suggest why the Defendant waived his right to a jury trial, in a double murder case, before [the trial judge]. The undersigned can think of no reason for why the Defendant, before th[e trial c]ourt, would waive his waive his right to a jury trial, in a double murder case, without consideration for said waiver. Amended PCRA Petition, 11/14/20, ¶ 12(a) (emphasis in original; formatting in brackets; record citation omitted). The PCRA court denied this claim for lack of merit because it was contradicted by the statements made under oath by Appellant in his jury waiver colloquy, and Appellant made no proffer to support his assertion of coercion. PCRA Court Opinion, 2/1/22, 5-7. Here, the certified record includes separate written jury trial waiver colloquies for each of Appellant’s underlying cases. Each addressed all the - 12 - J-A17044-22 essential elements for a jury trial waiver that were addressed in Williams. Notably, Appellant agreed in the written jury trial waiver colloquies that the maximum sentence for his murder charges was life imprisonment. Written Jury Trial Waiver Colloquies, 4/24/17, ¶ 38. The trial court also conducted an oral jury trial waiver colloquy in which Appellant confirmed that his waiver of his jury trial rights was not the product of threats, coercion, or promises. PCRA Court Opinion, 2/1/22, 7. The Commonwealth included the following pertinent section of the oral colloquy in its motion to dismiss the PCRA petition: THE COURT: Understanding all of those things; how a jury trial would work; how a judge trial would work; is it still your decision to adhere to your decision to have a judge trial? THE DEFENDANT: Yes. That is what I want. THE COURT: Has anyone promised you anything or anybody threaten you in any way or used any kind of force against you to get you to give up your right to a jury trial? THE DEFENDANT: No, sir. THE COURT: You’re doing it of your own free will? THE DEFENDANT: Yes, sir. Commonwealth Motion to Dismiss, 8/16/21, 5, quoting N.T. 4/24/17, 15-16. A criminal defendant should not be permitted to extricate himself from an otherwise valid jury trial waiver premised upon a sentencing issue unless he can prove that his jury waiver was part of an explicit agreement for a sentencing concession. See, e.g., Commonwealth v. Houck, 948 A.2d 780, - 13 - J-A17044-22 788 (Pa. 2008) (“[I]f a defendant seeks to invalidate an otherwise valid jury waiver based on a trial court’s recitation of his or her potential sentence, the defendant should be required to demonstrate that his or her understanding of the length of the potential sentence was a material factor in making the decision to waive a jury trial.”). In this instance, the oral and written jury waiver colloquies show that Appellant waived his jury trial rights without any agreement as to a potential sentence and that he entered that waiver with the knowledge that the Commonwealth was only seeking life imprisonment sentences for his murder charges. Appellant could not prevail on the instant claim in the absence of an additional proffer of evidence concerning the prior advice of his counsel because he could not obtain post-conviction relief by merely claiming that he lied during his jury waiver colloquy. See Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa. Super. 1994) (relying, in the context of a claim of ineffectiveness in connection with an alleged jury waiver based on coercion, on caselaw addressing claims of coerced guilty pleas and maintaining that a defendant cannot prevail by claiming that he lied previously while under oath during a guilty plea colloquy). The PCRA court properly appreciated that Appellant could only succeed on his claim by proffering independent corroboration that his trial counsel had improperly induced his jury trial waiver. PCRA Court Opinion, 2/1/22, 6-7, citing Commonwealth v. Carey, 340 A.2d 509, 511 (Pa. Super. 1975) (“Since it is rather common for a disappointed defendant to claim that he was induced to waive a constitutional - 14 - J-A17044-22 right because of some promise by his counsel … it has been held that ordinarily no relief will be granted unless the defendant’s testimony is ‘corroborated by some other source which is accepted as truthful.’”) (citations omitted). In the absence of a proffer of extrinsic evidence concerning the advice of his prior counsel, Appellant was bound by the statements he made during his jury trial waiver colloquies.8 Accordingly, the PCRA court properly denied the instant claim as meritless. In his last issue, Appellant asserts that the PCRA court erred by denying him relief on his claim of newly discovered evidence of misconduct by the lead detective in his cases, Nathaniel Williams. Appellant’s Brief at 15-19. He does not address the nature of the evidence supporting the claim other than to refer to “Police Misconduct Disclosure Notices” about Detective Williams and another detective (Philip Nordo) that he notes are “referenced but not attached.”9 Id. at 15. He asserts that Detective Williams’ “position as lead detective on both cases and trial testimony raises significant issues given his now known history of misconduct,” and that, if that “history [had] been known ____________________________________________ 8 While it was not acknowledged by Appellant in any of his filings, we note that Appellant’s ability to proffer additional evidence in support of the instant claim was obviously affected by the untimely passing of his trial counsel prior to the filing of his amended PCRA petition. PCRA Court Opinion, 2/1/22, 7 n.1 (acknowledging that trial counsel passed away on April 15, 2020). 9 Appellant referred to a disclosure of “qualifying misconduct” by Detective Williams in his amended PCRA petition, but never appended a copy of that disclosure to his petition. Amended PCRA Petition, 11/14/20, 12(b). - 15 - J-A17044-22 at the time of trial,” he would not have opted for a non-jury trial and would have been acquitted by a jury. Id. at 19. In the absence of any discussion of the nature of the “newly discovered evidence” at the focus of Appellant’s claim in his appellate brief or his amended PCRA petition, the PCRA court has offered us the following summary of the “evidence:” From October to November of 2017, Detective Nathaniel Williams is alleged to have used his authority as a police officer to access a police database in order to investigate a woman who had accused his cousin of stalking and harassment. He is also alleged to have then lied to his superior officers about his actions. See Commonwealth v. Nathaniel Williams, MC-51-CR-0030428- 2019, Trial Court Opinion of Crystal Bryant-Powell, J., filed October 18, 2021, at pp. 2-5. Detective Williams was arrested in November of 2019, on charges of tampering with public records, obstruction of the administration of law, unsworn falsification to authorities, and tampering with evidence. See Docket No. MC- 51-CR-0030428-2019. On September 11, 2020, the case was dismissed for lack of evidence. Id. The Commonwealth refiled the original complaint, which was again dismissed for lack of evidence. Id. The Commonwealth appealed and the case is currently pending in the Superior Court. See Docket No. 980 EDA 2021. PCRA Court Opinion, 2/1/22, 8-9.10 After-discovered evidence is a recognized ground for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi). To prevail on a claim of after- discovered evidence, a PCRA petitioner must demonstrate that the evidence: “(1) could not have been obtained prior to the conclusion of the trial by the ____________________________________________ 10As of the drafting of this memorandum, the Commonwealth’s appeal from the dismissal of the charges against Williams remains pending. - 16 - J-A17044-22 exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.” Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). Failure to satisfy one prong of this four-part test is fatal to the claim. See Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015) (“As this test is conjunctive, failure to establish one prong obviates the need to analyze the remaining ones.”). The PCRA court’s denial of this claim is two-fold. First, the court advises that, because the alleged misconduct at the focus of the “evidence” did not take place until six months after Appellant’s trial, the “evidence” at issue could not be considered after-discovered evidence for purposes of a claim under 42 Pa.C.S. § 9543(a)(2)(vi). PCRA Court Opinion, 2/1/22, 8. Second, the court noted that, even if the “evidence” of alleged misconduct by Detective Williams were available at trial, it would not have likely compelled a different trial verdict because the evidence “had no nexus to [Appellant’s] case, and little probative value regarding Detective Williams’s work as a homicide detective generally.” Id. The Commonwealth separately argues that any evidence of misconduct by Detective Williams would not have affected the trial verdicts because Detective Williams did not participate in the interviews of any of the eyewitnesses regarding the murder of victim Miller, and “there was ample untainted evidence to find [Appellant] guilty of murdering victim Bright.” Appellee’s Brief at 19-21. - 17 - J-A17044-22 We discern multiple reasons for denying the after-discovered evidence claim as meritless. As an initial matter, the presently-dismissed criminal charges against Detective Williams could not constitute evidence for purposes or an after-discovered evidence claim because criminal indictments or criminal charges are based upon allegations, not proven facts. See Commonwealth v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004) (stating “[a]llegations are not evidence”); see also Commonwealth v. Griffin, 137 A.3d 605, 609-10 (Pa. Super. 2016) (explaining that, allegations or accusations contained in a criminal indictment, or criminal charges, are not evidence), appeal denied, 157 A.3d 476 (Pa. 2016); Commonwealth v. Shelley, 2022 WL 1087379, 7 (Pa. Super., filed Apr. 12, 2022) (rejecting an after-discovered evidence claim based on the criminal charges against Detective Williams and noting that “neither the criminal indictment nor criminal charges constitutes evidence for purposes of an after-discovered evidence claim”) (unpublished memorandum cited for persuasive value). Next, even if the criminal allegations against Detective Williams could be considered evidence, this claim would fail because the evidence, which was not alleged to have stemmed from misconduct in Appellant’s case, would be solely used to impeach the credibility of the detective with respect to his accounts of the interviews he conducted and the witness statements he - 18 - J-A17044-22 recorded.11 See Commonwealth v. Johnson, 179 A.3d 1105, 1123 (Pa. Super. 2018) (holding that the criminal conviction of a police detective, who was involved in the questioning of a witness that identified the petitioner as the perpetrator of a fatal shooting, did not constitute after-discovered evidence because evidence of the conviction would only be used for impeachment purposes and there was no evidence that the police detective committed misconduct in the petitioner’s case), appeal denied, 197 A.3d 1174 (Pa. 2018); see also Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (holding that, “new evidence” of the filing of criminal charges against a police detective in an unrelated matter does not satisfy the after-discovered evidence test because the “new evidence” would be used solely for impeachment purposes and would not likely result in a different verdict); Griffin, 137 A.3d at 610 (stating that, even if the allegations contained in an indictment or criminal complaint were “evidence,” a petitioner would still not satisfy the after-discovered evidence test because the alleged evidence would be used solely for impeachment purposes); Shelley, 2022 WL ____________________________________________ 11 With respect to the case of victim Bright, Detective Williams interviewed and took a statement from Jeffrey Best. N.T. 4/25/17, 16-40, 45-73; N.T. 4/27/17, 7-8; Commonwealth Exhibit 271 (Jeffrey Best Statement, 5/11/16). With respect to the case of victim Miller, Detective Williams interviewed and took a statement from Zsahniah Jones, and attempted to interview Nasir Brown Simpson, the person who had been caught with the gun used in the murders. N.T. N.T. 4/26/17, 9-36; N.T. 4/27/17, 9-16, 67-70, 85-86; Commonwealth Exhibit 51 (Zsahniah Jones Statement, 5/13/16). Detective Williams also testified that he received a letter from Reginald Hutson and spoke to him about inculpatory statements made by Appellant, though he did not conduct a formal interview of Mr. Hutson. N.T. 4/26/17, 80-83; N.T. 4/27/17, 17-18, 30. - 19 - J-A17044-22 1087379 at 8 (denying an after-discovered evidence claim based on the criminal charges against Detective Williams on the grounds that the “evidence” would be used only to impeach the credibility of Detective Williams and another detective to demonstrate that the detectives falsified police statements implicating Shelley as the perpetrator of a fatal shooting) (unpublished memorandum cited for persuasive value). Lastly, the PCRA court could not have erred by concluding that the allegations of misconduct involving Detective Williams likely would not have resulted in a different verdict if a new trial were granted. Here, the focus of Appellant’s claim was alleged conduct by the detective that supposedly took place six to seven months following Appellant’s trial and had no apparent connection to the investigation of Appellant. PCRA Court Opinion, 2/1/22, 8- 9. The allegations involved supposed efforts of the detective to investigate a woman who had made accusations of stalking and harassment against the detective’s cousin and that the detective then lied to his superior officers about his actions. Id. Even if the underlying allegations of misconduct were accepted as true, they suggested that the detective embarked on a retaliatory investigation and then was dishonest about his efforts to engage in that investigation. The instant case has no apparent connections with the basis of the allegations at the focus of the claim: the detective was not alleged to have engaged in a retaliatory investigation of Appellant and the misconduct allegations were based on events that took place months after Appellant’s trial. Thus, Appellant could not establish a nexus between his case and the - 20 - J-A17044-22 purported after-discovered evidence and thus could not establish the likelihood of a different outcome in his case. See Foreman, 55 A.3d at 537- 38 (Pa. Super. 2012) (Foreman’s “new evidence” regarding criminal charges against a detective who testified at his criminal trial did not justify a new trial; Foreman failed to show any nexus between his case and the detective’s alleged misconduct in an incident which occurred more than two years after Foreman’s conviction and the evidence would be used solely to impeach the detective); Commonwealth v. Soto, 983 A.2d 212, 215-216 (Pa. Super. 2009) (holding that the discovery of a series of thefts committed by a police chemist following appellants’ convictions failed to provide a basis for awarding new trials on narcotics charges where appellants failed to show to show that the evidence of the chemist’s improper activities would have compelled different results at their trials, and noting that the assertions that the chemist likely stole drugs years before or that she added weight to the contraband in evidence was conjecture). For these reasons, we cannot conclude the PCRA court erred or abused its discretion in denying relief on Appellant’s after-discovered evidence claim. Order affirmed. - 21 - J-A17044-22 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 - 22 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484705/	J-S32020-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RACHIEM GODFREY : : Appellant : No. 228 MDA 2022 Appeal from the PCRA Order Entered February 1, 2022 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001154-2008 BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 17, 2022 Appellant, Rachiem Godfrey, appeals from the post-conviction court’s February 1, 2022 order dismissing, as untimely, his serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. The Commonwealth aptly sets forth the background of this matter as follows: On March 2, 2009, a Lebanon County jury … found [Appellant] guilty of persons not to possess firearms, firearms not to be carried without a license, possession of a firearm with an altered manufacturer’s number, resisting arrest, and disorderly conduct. [The trial court] sentenced him to an aggregate term of twelve and one-half to twenty-five years’ imprisonment. This Court affirmed his judgment of sentence on July 26, 2011. Commonwealth v. Godfrey, 32 A.3d 281 (Pa. Super. 2011) … (unpublished memorandum). He did not seek allowance of appeal in the Pennsylvania Supreme Court. On July 13, 2012, [Appellant] filed a petition pursuant to the [PCRA]…. It was denied as meritless. This Court affirmed, and J-S32020-22 he did not seek further review. Commonwealth v. Godfrey, 82 A.3d 1073 (Pa. Super. 2013) … (unpublished memorandum). Between 2014 and 2020, [Appellant] filed five more PCRA petitions, all of which were denied or, in one instance, withdrawn. He filed the instant petition — his seventh — pro se on November 12, 2021. Counsel … was appointed and filed an amended petition, claiming [Appellant’s] sentence is illegal because the court failed to hold an ability-to-pay hearing before imposing fines and costs at his 2009 sentencing proceeding. Relatedly, he also claimed that the Department of Corrections improperly deducted $1,893.65 in illegal fines and costs from him during his imprisonment. On February 1, 2022, … the PCRA [c]ourt denied his petition without a hearing.[1, 2] Commonwealth’s Brief at 2-3 (some citations and footnote omitted). On February 7, 2022, Appellant filed a timely notice of appeal. On February 16, 2022, the PCRA court instructed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days, warning that any issue not properly included in a timely-filed concise statement would be deemed waived. Appellant made no filing. On ____________________________________________ 1 In its February 1, 2022 order dismissing Appellant’s petition, the PCRA court determined that Appellant had “fail[ed] to raise any claim that would defeat the untimeliness of his [petition].” Order, 2/1/22, at 1 (unpaginated). 2 Based upon our review of the record, it does not appear that the PCRA court issued Appellant notice of its intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907. See Pa.R.Crim.P. 907(1) (“If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.”). However, Appellant has not objected to this lack of notice, and therefore such issue is waived. See Commonwealth v. Wooden, 215 A.3d 997, 1001 (Pa. Super. 2019) (noting that “an appellant’s failure to challenge the absence of a Rule 907 notice constitutes waiver”) (citation omitted). -2- J-S32020-22 April 19, 2022, the PCRA court issued a Rule 1925(a) statement, noting that Appellant never filed a concise statement and that, therefore, all his issues were waived. Thereafter, on April 26, 2022, Appellant filed a concise statement, claiming that the trial court committed an error of law and/or abused its discretion in dismissing his petition.3 On appeal, Appellant raises one issue for our review: Did the [PCRA c]ourt commit revers[i]ble error when it denied [Appellant’s] PCRA application for consideration of ability to pay costs and fines? Appellant’s Brief at 2. Initially, we must ascertain whether Appellant’s failure to timely file his Rule 1925(b) concise statement has waived his issue for our review. “This Court has held that both the complete failure to file the 1925(b) statement … and the untimely filing of a 1925(b) statement is per se ineffectiveness because it is without reasonable basis designed to effectuate the client’s interest and waives all issues on appeal.” Commonwealth v. Sanchez- Frometa, 256 A.3d 440, 442-43 (Pa. Super. 2021) (cleaned up). “While these circumstances often require a remand, where the trial court addresses ____________________________________________ 3The late filing of the concise statement is not the only instance of Appellant’s counsel’s untimeliness in this matter. Because counsel failed to file a brief on behalf of Appellant, despite being so ordered, this Court had to remand the case on June 22, 2022, for the PCRA court to determine whether counsel had abandoned Appellant. Shortly thereafter, on July 11, 2022, counsel filed Appellant’s brief. We admonish Appellant’s counsel for his lack of diligence in handling this matter. -3- J-S32020-22 the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits.” Id. at 443 (cleaned up). Here, we determine that Appellant’s counsel was per se ineffective in failing to file a timely concise statement. Though the PCRA court’s Rule 1925(a) opinion only mentioned Appellant’s failure to comply with Rule 1925(b) and found waiver on that basis, the PCRA court stated in its February 1, 2022 order that Appellant had “fail[ed] to raise any claim that would defeat the untimeliness of his [petition].” Order, 2/1/22, at 1 (unpaginated). As such, because we can glean from the record why the trial court dismissed Appellant’s petition in the first place, we need not remand this case for the preparation of a supplemental Rule 1925(a) opinion. Accordingly, we proceed to review Appellant’s issue. This Court’s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of Appellant’s petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes -4- J-S32020-22 final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies: (b) Time for filing petition.-- (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) 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; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that any petition attempting to invoke one of these exceptions “be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Here, Appellant’s judgment of sentence became final on August 25, 2011, when his time to file a petition for allowance of appeal with our Supreme Court expired. See Pa.R.A.P. 1113(a) (“[A] petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court -5- J-S32020-22 sought to be reviewed.”). Thus, he had until August 25, 2012, to file a timely petition. Consequently, his petition filed on November 12, 2021, is facially untimely and, for this Court to have jurisdiction to review the merits thereof, Appellant must prove that he meets one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). Appellant does not present an argument that he meets a timeliness exception in his brief, thus waiving any such claim for our review. Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (“Failure to present or develop an argument in support of a claim causes it to be waived.”) (citation omitted).4 Accordingly, no relief is due, and we affirm the PCRA court’s order dismissing his petition. ____________________________________________ 4 In addition, as the Commonwealth discerns, Appellant also did not properly plead an exception to the PCRA’s time-bar below. The Commonwealth explains: Although [Appellant] made a passing reference to Section 9545(b)(1)(iii) in the introductory paragraph [of his amended petition] — stating that he “respectfully files the following [a]mended [p]etition for [p]ost-[c]onviction [r]elief pursuant to 42 Pa.C.S. § 9545(b)(1)(iii)[]” — that was insufficient to constitute proper pleading. He did not identify the specific constitutional right he was supposedly asserting, nor did he cite any relevant legal authority in support of his claim. He also did not identify any facts or develop any argument to explain how he could possibly have proved the constitutional[-] right exception applied to his case. Commonwealth’s Brief at 8; see also Appellant’s PCRA Petition, 11/12/21, at 3 (claiming that Appellant meets the timeliness exceptions under Section 9545(b)(1)(ii) and (iii), but failing to provide relevant information in support of establishing such exceptions). Moreover, as the Commonwealth correctly (Footnote Continued Next Page) -6- J-S32020-22 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 ____________________________________________ observes, to the extent Appellant alleges that his sentence is illegal, such a claim is still subject to the PCRA’s time-bar. See Commonwealth’s Brief at 8- 9; see also Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en banc) (“[C]hallenges to the legality of the sentence are never waived. This means that a court may entertain a challenge to the legality of the sentence so long as the court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition.”) (citation omitted). -7-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484706/	J-A18043-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY FITZGERALD : : Appellant : No. 1534 WDA 2021 Appeal from the PCRA Order Entered December 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015801-2010 BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 17, 2022 Anthony Fitzgerald appeals pro se from the order denying his third Post Conviction Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541- 9546. We affirm. In May 2011, a jury convicted Fitzgerald of third-degree murder, and the trial court found him guilty of possession of firearm prohibited. The court sentenced him on September 26, 2011, to an aggregate term of 20 to 40 years’ incarceration. Fitzgerald filed a post-sentence motion, which was denied. Fitzgerald appealed, and we affirmed his judgment of sentence. Commonwealth v. Fitzgerald, No. 1744 WDA 2011, 2013 WL 11259299, unpublished memorandum at 1 (Pa.Super. filed July 5, 2013). The Pennsylvania Supreme Court denied Fitzgerald’s petition for allowance of appeal on November 6, 2013. Fitzgerald thereafter filed two PCRA petitions, neither of which resulted in relief. J-A18043-22 Fitzgerald filed the instant PCRA petition, pro se, on October 5, 2021. The PCRA court issued a notice of intent to dismiss the petition and thereafter, dismissed the petition as untimely. This appeal followed. Fitzgerald raises the following issues: 1. Whether there was [an] abuse of discretion for the common pleas court to dismiss[] the PCRA petition[?] 2. And why did not the counsel on appeal want to argue. . . ineffective assistance of trial counsel? 3. Was counsel very much ineffective assistance of counsel in many area’s [sic][?] Fitzgerald’s Br. at vii. On appeal from the denial or grant of relief under the PCRA, our review is limited to determining “whether the PCRA court’s ruling is supported by the record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018) (citation omitted). “Under the PCRA, any petition for relief, including second and subsequent petitions, must be filed within one year of the date on which the judgment of sentence becomes final.” Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019). For purposes of the PCRA, “a judgment 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.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s time limit is jurisdictional, and the court may not -2- J-A18043-22 ignore it to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Courts may consider a PCRA petition filed more than one year after a judgment of sentence has become final only if the petitioner pleads and proves one of the following three statutory exceptions: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) 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; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke an exception “shall be filed within one year of the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Here, Fitzgerald’s judgment of sentence became final on February 4, 2014, when his time to appeal to the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.1. Therefore, Fitzgerald had one year from that date, or until February 4, 2015, to timely file a PCRA petition. Since Fitzgerald filed the current PCRA petition on October 5, 2021, -3- J-A18043-22 it is facially untimely, and Fitzgerald bore the burden of pleading and proving at least one of the time-bar exceptions. Preliminary, Fitzgerald’s brief is in clear violation of Pennsylvania Rule of Appellate Procedure 2119(a), as the argument section does not correspond to the enumerated issues.1 Further, the brief consists of rambling statements that are intermixed among the various issues he has presented. “Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005). “[I]t is an appellant’s duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (internal citation omitted). If a deficient brief impedes this Court’s ability to address any issue on review, “an issue that is not properly briefed in this manner is considered waived.” Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). Fitzgerald makes no cogent argument regarding any of the statutory exceptions to the time-bar. He vaguely mentions the unknown facts exception ____________________________________________ 1 See Pa.R.A.P. 2119(a) (stating that in an appellate brief, “[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part -- in distinctive type or in type distinctively displayed -- the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent”). -4- J-A18043-22 in his reply brief,2 when he states that a witness, “Ms. Byrd,” recanted her testimony in an email sent to him on September 21, 2013. See Fitzgerald’s Reply Br. at 8-9. However, Fitzgerald fails to develop or support this argument. It is therefore waived. See Commonwealth v. Thomas, 215 A.3d 36, 51 (Pa. 2019). Even if Fitzgerald had properly pleaded the unknown facts exception, which he did not, he fails to explain how his receipt of an email in 2013 renders his current PCRA petition, filed in 2021, timely. Nor does he allege that he was somehow not aware of this email despite the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). As Fitzgerald failed to plead and prove an exception to the PCRA’s time-bar, the PCRA court was without jurisdiction to entertain his substantive claims and properly dismissed his petition as untimely. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2022 ____________________________________________ 2 Fitzgerald did not address the timeliness of his PCRA petition in his initial brief. However, this Court granted his request to file a reply brief, wherein he asserted that his petition was timely, evidently in response to the Commonwealth’s argument that Fitzgerald’s PCRA petition was untimely and not subject to any time-bar exception. See Fitzgerald’s Reply Br. at 2-4. -5-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484714/	USCA4 Appeal: 22-1675 Doc: 17 Filed: 11/16/2022 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-1675 THOMAS F. SWEENEY, Plaintiff - Appellant. v. PETE BUTTIGIEG, Secretary of the Department of Transportation, In his official capacity only, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:21-cv-00204-CMH-JFA) Submitted: October 21, 2022 Decided: November 16, 2022 Before DIAZ, HARRIS, and QUATTLEBAUM, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas F. Sweeney, Appellant Pro Se. Peter B. Baumhart, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1675 Doc: 17 Filed: 11/16/2022 Pg: 2 of 2 PER CURIAM: Thomas F. Sweeney appeals the district court’s order granting Defendant’s motion to dismiss Sweeney’s employment discrimination complaint. Defendant has moved to dismiss the appeal, arguing that Sweeney did not timely file his notice of appeal. Under Fed. R. App. P. 4(a)(7)(A), a district court order is entered when the “judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a).” See Hughes v. Halifax Cnty. Sch. Bd., 823 F.2d 832, 835 (4th Cir. 1987). Here, the district court entered its memorandum opinion and order in the docket on April 19, 2022. As a result, Sweeney had until June 21, 2022, to file a notice of appeal. See Fed. R. App. P. 4(a)(1)(B); Fed. R. App. P. 26(a)(1)(C), (6)(B). We therefore conclude that Sweeney’s notice of appeal, filed on June 21, was timely, and we deny Defendant’s motion to dismiss the appeal. Nonetheless, we have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Sweeney v. Buttigieg, No. 1:21-cv-00204-CMH-JFA (E.D. Va. filed Apr. 18, 2022 & entered Apr. 19, 2022). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484711/	USCA4 Appeal: 22-6615 Doc: 13 Filed: 11/16/2022 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-6615 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARQUITA LEIGH MEREDITH, a/k/a Baby Girl, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Senior District Judge. (4:19-cr-00061-RBS-RJK- 1) Submitted: October 24, 2022 Decided: November 16, 2022 Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges. Affirmed by unpublished per curiam opinion. Marquita Leigh Meredith, Appellant Pro Se. Brian James Samuels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6615 Doc: 13 Filed: 11/16/2022 Pg: 2 of 2 PER CURIAM: In March 2021, the district court denied Marquita Leigh Meredith’s motion for compassionate release for failure to exhaust her administrative remedies. In light of our decision in United States v. Muhammad, 16 F.4th 126, 129-30 (4th Cir. 2021), we vacated that judgment and remanded for further proceedings, see United States v. Meredith, No. 21- 6763, 2021 WL 5851066 (4th Cir. Dec. 9, 2021). On remand, the court ruled that Meredith failed to the satisfy the “extraordinary and compelling reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i) and further found, in the alternative, that the 18 U.S.C. § 3553(a) factors did not weigh in favor of a sentence reduction. The court thus denied Meredith’s motion for compassionate release. We review a district court’s denial of a motion for compassionate release for abuse of discretion. United States v. Kibble, 992 F.3d 326, 329 (4th Cir.), cert. denied, 142 S. Ct. 383 (2021). Upon review, we discern no abuse of discretion in the district court’s alternate ruling that the totality of the circumstances in this case, evaluated in light of the pertinent 18 U.S.C. § 3553(a) sentencing factors, did not warrant the grant of compassionate release or a sentence reduction. See United States v. High, 997 F.3d 181, 187 (4th Cir. 2021). Accordingly, we affirm the district court’s order. United States v. Meredith, No. 4:19-cr- 00061-RBS-RJK-1 (E.D. Va. May 13, 2022). We grant Meredith’s motion to supplement her informal brief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484708/	NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 21-3016 ____________ MARSHA M. BLISS-MILLER, Appellant v. LABORERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 158; ROBERT SLICK, Business Agent of Laborers Local Union 158 ____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:17-cv-01837) Magistrate Judge: Hon. Karoline Mehalchick ____________ Submitted Under Third Circuit LAR 34.1(a) November 14, 2022 Before: HARDIMAN, RESTREPO and PORTER, Circuit Judges. (Filed: November 17, 2022) ____________ OPINION* ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge. Marsha Bliss-Miller appeals the District Court’s judgment for Laborers International Union of North America Local 158 and Robert Slick following a bench trial. We will affirm, essentially for the reasons stated by the District Court. I Local 158 operates a hiring hall that refers work to its members in eastern Pennsylvania. Robert Slick, business agent of Local 158, maintained the hiring list. When Local 158 had no members available to fulfill a work request, it referred work to “travelers” (non-Local 158 union members). Appellant Marsha Bliss-Miller was a traveler because she was not a member of Local 158. When union jobs were plentiful in the pipeline industry in eastern Pennsylvania in 2011 and 2012, Bliss-Miller received two job referrals from Local 158. Following those jobs, she did not receive a referral from Local 158 for 11 months. Her last referral was in August 2013. Bliss-Miller later filed a sex discrimination charge with the Equal Employment Opportunity Commission. Bliss-Miller claimed that two similarly qualified male travelers, William Hardy and Andrew Hillard, were referred work from Local 158 through Slick during the same time that Slick told Bliss-Miller no work was available. The EEOC dismissed her charge. Bliss-Miller then sued Local 158 and Slick in the District Court, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation under Title VII and 42 U.S.C. § 1981. She also sought punitive damages under § 1981. After a bench trial, the District Court found that Bliss- 2 Miller failed to establish discrimination or retaliation and entered judgment in favor of Local 158 and Slick.1 Bliss-Miller v. Laborers Int’l Union of N. Am. Loc. 158, 2021 WL 4459127, at 8 (M.D. Pa. Sept. 29, 2021). Bliss-Miller appeals. II2 We review the District Court’s findings of fact for clear error and conclusions of law de novo. EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 273 (3d Cir. 2010). The parties err to the extent they frame the issues as reviewable under the substantial evidence and abuse of discretion standards. A To state a prima facie claim for sex discrimination, Bliss-Miller needed to show that she suffered an adverse employment action under circumstances suggesting discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The District Court held that Bliss-Miller failed to state a prima facie claim because she could not establish such circumstances—namely, that a person outside her protected class with similar qualifications was referred for work. Bliss-Miller, 2021 WL 4459127, at 5. On appeal, Bliss-Miller argues that evidence at trial “clearly established” that similarly qualified male travelers received work from Slick while Slick told Bliss-Miller 1 The parties consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c). 2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. 3 no work was available. Bliss-Miller Br. 10, 13. Bliss-Miller cites Hardy’s testimony that Slick referred him jobs in 2013, 2014, and 2015. But Hardy’s trial testimony contradicted his deposition, in which he denied that Slick referred him work during the relevant time period. Cross-examination revealed Hardy received referrals through his stepfather and his own connections—not Local 158—for work. The District Court credited the cross- examination, as well as Slick’s testimony, and found that Hardy acquired referrals independent of Local 158. Bliss-Miller, 2021 WL 4459127, at 3. Similarly, the District Court found that Bliss-Miller’s other comparator, Hillard, was not referred work from Local 158 during the relevant time period. Bliss-Miller, 2021 WL 4459127, at 3. The record reveals no clear error in the District Court’s credibility determinations and subsequent findings of fact.3 Given that Bliss-Miller’s male comparators received referrals for work independent from Local 158, the District Court did not err in finding no circumstances suggesting discrimination. Even if Bliss-Miller had established a prima facie case of discrimination, there were legitimate non-discriminatory reasons why she did not receive referrals. The record reveals a declining number of union jobs in the pipeline industry as of 2013 and that Local 158 members were considered for work assignments ahead of “travelers” like Bliss-Miller. There was also no pretext because Bliss-Miller did not demonstrate evidence of an alternative motive or discrimination. See Fuentes v. Perskie, 32 F.3d 759, 3 We review credibility determinations for clear error. Bliss-Miller errs to the extent she argues for the more deferential standard we apply when reviewing summary judgments. See Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455, 468 (3d Cir. 2013). 4 764 (3d Cir. 1994). Therefore, we affirm the District Court’s judgment for Local 158 and Slick on Bliss-Miller’s sex discrimination claim. B Bliss-Miller also claims the District Court erred in finding that she failed to establish a prima facie case of retaliation. The District Court held that Bliss-Miller failed to demonstrate a causal link between her complaints to Slick and her lack of job referrals. Bliss-Miller, 2021 WL 4459127, at *7. We agree with the District Court’s determination. Bliss-Miller provided no evidence that Local 158’s or Slick’s actions were motivated by anything other than a “travelers list” system and a lack of employment opportunities. And even if Bliss-Miller had established a prima facie case of retaliation, as discussed above, the District Court correctly found that there were legitimate nondiscriminatory reasons why Bliss-Miller did not receive referrals, and that there was no pretext. Finally, Bliss-Miller’s claim under 42 U.S.C. § 1981 fails because no racial discrimination was argued. See Georgia v. Rachel, 384 U.S. 780, 791 (1966) (describing § 1981 as “intended to protect a limited category of rights, specifically defined in terms of racial equality”). For the reasons stated, we will affirm. 5	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484715/	USCA4 Appeal: 22-1670 Doc: 13 Filed: 11/16/2022 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-1670 JIMMY-JOE COOLEY, Plaintiff - Appellant, v. GARY L. MARTIN, JR., Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:21-cv-02739-MGL) Submitted: October 28, 2022 Decided: November 16, 2022 Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jimmy-Joe Cooley, Appellant Pro Se. H. Thomas Morgan, Jr., Camden, South Carolina, Austin Tyler Reed, SMITH ROBINSON HOLLER DUBOSE & MORGAN, LLC, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1670 Doc: 13 Filed: 11/16/2022 Pg: 2 of 2 PER CURIAM: Jimmy-Joe Cooley appeals the district court’s order denying relief on his 42 U.S.C. § 1983 complaint. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that relief be denied and advised Cooley that failure to file timely, specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Cooley did not file objections. The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Cooley has waived appellate review by failing to file objections to the magistrate judge’s recommendation after receiving proper notice. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484724/	Filed 11/17/22 P. v. Stewart CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B314146 Plaintiff and Respondent, Los Angeles County Super. Ct. No. A364692 v. CARLETHA ANN STEWART, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Mark K. Hanasono, Judge. Affirmed. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION In 1980, defendant and appellant Carletha Stewart planned the robbery of a Bob’s Big Boy Restaurant that resulted in the execution-style murder of four people in the restaurant’s walk-in freezer. Stewart pled guilty to numerous crimes, including four counts of first degree murder. In 2019, Stewart filed a petition for recall and resentencing under former Penal Code section 1170.95.1 After conducting an evidentiary hearing, the trial court denied her petition, concluding beyond a reasonable doubt she was a major participant in the robbery underlying her murder convictions who acted with reckless indifference to human life. On appeal, Stewart argues the trial court’s determination is unsupported by substantial evidence. We affirm. PROCEDURAL BACKGROUND In 1983, Stewart pled guilty to four counts of first degree murder (§ 187, subd. (a)), eight counts of robbery (§ 211), seven counts of assault with a deadly weapon (§ 245, subd. (a)), and one count of conspiracy to commit robbery (§ 182). The trial court sentenced her to 25 years to life in state prison. In 2019, Stewart filed a petition for resentencing under section 1172.6. The trial court appointed counsel on Stewart’s behalf, issued an order to show cause, and ordered an evidentiary hearing. After conducting the evidentiary hearing, the trial court 1 All undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number. 2 issued a written order denying relief, concluding the prosecution had proven beyond a reasonable doubt Stewart was a major participant in the robbery who acted with reckless indifference to human life. Stewart timely appealed. FACTUAL BACKGROUND2 A. After being fired from a Bob’s Big Boy Restaurant, Stewart threatened to cool off the manager “in the freezer” In 1980, Stewart worked as a waitress at a Bob’s Big Boy Restaurant on La Cienega in Los Angeles (“the restaurant”). She was fired and subsequently attempted to sue the restaurant. Later that year, Stewart came to the restaurant to try to get her job back. Rodell Mitchell was a night manager who had previously supervised Stewart. He told her he would not rehire her. Stewart sat at the counter and joked with her friend, another waitress, Brenda Givens. Mitchell believed Stewart was trying to aggravate him. He told her she had to leave because she was distracting Givens from her work, and she could only stay if she was a customer. Stewart went behind the counter, where only employees were supposed to go. When she retrieved crackers, Mitchell asked her to stop and said she had to pay for them. She replied he would have to make her. Mitchell said he would throw her out. Stewart replied in a “joking sense” that she would “take 2 The following information is taken from the preliminary hearing of Stewart and one of her accomplices, Ricky Sanders, as well as from Stewart’s guilty plea and sentencing hearing. 3 [him] in the freezer and cool [him] off.” He remembered the incident only because he later learned people were killed in the freezer. B. Stewart attempted to recruit others to rob the restaurant In August 1980, Stewart, Bruce Woods, and a person identified as “Connie” were driving in a car. Stewart said “she had it set up” to rob the restaurant and asked if Woods and Connie would like to help. It sounded to Woods like Stewart “had the whole thing planned.” She needed someone to “take down Bob’s.” She did not want to rob it herself because the employees knew her, but she said she would tell them where everything in the restaurant was. Woods and Connie declined to help. C. Stewart warned Givens not to go to work to avoid getting hurt during a robbery, then attempted to rob the restaurant with Freeman and Sanders In September 1980, Givens (Stewart’s friend who worked at the restaurant) went to the county jail to visit her boyfriend. She saw Stewart there. Stewart said she was glad to see Givens. When Givens asked why, Stewart said, “Because they are going to rob Bob’s tonight and I don’t want you hurt.” Givens did not inquire further. Givens went to work and told her coworkers, including her manager Mitchell, what Stewart told her about the robbery. She told Mitchell someone might be hurt. Andre Gilchrist went to Stewart’s house that night and discussed robbing the restaurant with Stewart. Gilchrist had known Stewart for many years, and they had previously been in a relationship. When Gilchrist arrived at Stewart’s house, Stewart asked him if he would tell anyone what she told him, and he said 4 he would not. Stewart told him that Franklin Freeman (Stewart’s cousin) and Ricky Sanders (Stewart’s boyfriend) were going to rob the restaurant that night at closing time. She “told them what time to go,” where the money was kept, and that there were two safes in the restaurant. She said that she told Freeman and Sanders about the “inside workings” of the restaurant. Stewart tried to call Freeman, but she could not reach him. Stewart then drove herself and Gilchrist to the restaurant. On the way there, Gilchrist got “the shakes.” They noticed that the streets near the restaurant were blocked by the police. An unrelated murder had occurred in the area. They arrived at the restaurant and sat inside, drinking coffee. Gilchrist thought the robbery was not going to occur until later in the evening, after they left. Stewart asked the waitresses who was working, how many managers were there, and who would be there during closing. They had been at the restaurant for about 45 minutes when Stewart got up and said she was going to call Freeman. Stewart wondered about Freeman and Sanders’s whereabouts. She worried they had been caught. Mitchell, the restaurant’s manager, saw her get up to use the phone multiple times. Givens was also working at the restaurant that night. At some point, police came into the restaurant to inquire about the unrelated murder that was being investigated nearby. Mitchell informed them of Stewart’s statements to Givens, but the police did not act on his complaint because of their other investigation. Gilchrist and Stewart left when the restaurant was being closed, around 1:30 a.m. Twenty minutes after they left, Stewart 5 called Givens at the restaurant and asked her when she was going to leave. Givens said she did not know. After the restaurant had closed, Stewart came back and repeatedly asked to come inside. She made these requests in a joking manner and tugged at the door. She asked if she could take Givens home with her, and Mitchell advised Givens against it. Stewart finally left. Because the restaurant employees were afraid there would be a robbery and worried about getting hurt, they left in one big group. Later, at Stewart’s house, Gilchrist saw Stewart go outside to talk with Freeman and Sanders, who sat in the front seats of a car. Two shotguns were in the front, next to Freeman and Sanders. Gilchrist was still at Stewart’s house when Stewart received a call. After the call, she told Gilchrist that Freeman and Sanders did not commit the robbery because the manager did not go outside. She said the robbery would instead be done Saturday night. Freeman and Sanders were going to go to the restaurant, wait until the manager came out, and push him back inside. D. In December 1980, Freeman and Sanders implemented Stewart’s plan to rob the restaurant and killed four people On December 14, 1980, around 2:00 a.m., as the restaurant was closing and customers were leaving, Freeman and Sanders rushed the door and pushed their way inside. They said that this was a “jack or a stick up.” Both of the men had short-barreled shotguns. At least one shotgun had a “sawed-off” barrel. Freeman and Sanders had purchased shotguns in November, including a sawed-off shotgun. Freeman or Sanders struck the cashier, Ahmed Mashuk, in the head with a shotgun, and Mashuk fell down. They repeatedly 6 kicked him until he was unconscious. Freeman and Sanders ordered the 11 people in the restaurant (employees and patrons) to the back. They moved the victims about 25 feet to a hallway. Some of the victims were told to lie on the floor. They were on the floor for about four minutes. Freeman or Sanders said: “Cooperate, please cooperate. We do not want to hurt you. Just lay down on the floor.” Freeman and Sanders directed the victims to go in the restaurant’s walk-in freezer. One of the robbers told the manager to open the safe. The manager complied, retrieving about $500 from the safe. He was then also ordered into the freezer. Freeman and Sanders ordered the 11 individuals in the freezer to provide their valuables. A bucket was passed around, and the valuables were collected. A few of the victims started getting “more and more scared”, but none of the victims resisted or failed to cooperate. Mashuk was “pulled” and “kicked” into the freezer. He was unconscious, lying in the freezer with his feet outside the door. Freeman and Sanders ordered him to move, but he could not. One of them pointed their gun at Mashuk and said, “Someone move him or he’ll get it first.” Soon after collecting the valuables, Freeman and Sanders started shooting without warning. They fired the shotguns from a few feet away. One witness estimated 12 to 20 shots were fired. Approximately 15 to 20 minutes elapsed between when Freeman and Sanders arrived and the shots were fired. Four people died from gunshot wounds: David Burrell, Dita Agtani, Ahmad Mashuk, and Cesario Luna. Many more were severely injured. Dionne Irvin was struck by shotgun pellets in her back, neck, and arm. At the time of trial, she was no longer 7 able to bend her wrist or use her fingers correctly on the arm that was shot. Evelyn Jackson was shot in the back of the head. She spent two months in the hospital and at the time of trial still suffered from double vision, other vision issues, problems with her neck, and weakness on the right side of her body. Tammy Rogoway was shot and lost feeling in her legs. At the time of trial, Rogoway still had over 100 shotgun pellets lodged into her back, and could not feel the right side of her body. Michael Mallory lost his right eye from a gunshot pellet. When Stewart pleaded guilty to four counts of murder, she admitted that “in truth and fact [she was] the driver of the getaway car on the date of December 14, 1980, at Bob’s Big Boy Restaurant at 2:00 a.m., knowing that there was a robbery to take place by at least Ricardo Rene Sanders.” DISCUSSION I. Governing Law The Legislature enacted Senate Bill 1437 (SB 1437) “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) SB 1437 also added section 1170.95 to the Penal Code which, as mentioned above, was later renumbered to section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This section permits individuals who were convicted of felony murder 8 or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).) A petition for relief under section 1172.6 must include a declaration by the petitioner that he or she is eligible for relief based on all the requirements of subdivision (a), the superior court case number and year of the petitioner’s conviction, and a request for appointment of counsel, should the petitioner seek appointment. (§ 1172.6, subd. (b)(1).) Subdivision (c) of section 1172.6 provides: “Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor’s response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” “If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater 9 than the initial sentence.’ ([§ 1172.6], subd. (d)(1).)” (Lewis, supra, 11 Cal.5th at p. 960.) At the hearing, the parties may rely on the record of conviction or present “new or additional evidence” to support their positions, and “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) II. Analysis As Stewart acknowledges, “[o]nce the section [1172.6] proceedings have progressed to a hearing pursuant to section 1172.6, subdivision (d)(3), the appellate courts have agreed that the trial court’s factual findings at that hearing should be reviewed for substantial evidence. [Citations].” Despite acknowledging this consensus, Stewart “believes the correct standard is independent review.” We disagree with Stewart and decline her invitation to depart from the well-established substantial evidence standard. (See, e.g., People v. Owens (2022) 78 Cal.App.5th 1015, 1022; People v. Clements (2022) 75 Cal.App.5th 276, 298.) Alternatively, Stewart contends the trial court’s finding that she was a major participant who acted with reckless indifference to human life is unsupported by substantial evidence. For reasons discussed in greater detail below, we disagree. In assessing Stewart’s argument, we review the record in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. 10 Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is evidence that is “‘reasonable in nature, credible, and of solid value.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim, we “presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) In People v. Banks (2015) 61 Cal.4th 788, our Supreme Court provided a non-exhaustive list of factors relevant to determining whether an individual was a “major participant” in an underlying felony, including: (1) the defendant’s role in planning the criminal enterprise that led to death; (2) the defendant’s role in supplying or using lethal weapons; (3) the defendant’s awareness of the dangers posed by the nature of the crime, the weapons used, or the past experience with the other participants; (4) whether the defendant was present at the scene of the killing; (5) whether the defendant’s actions or inactions played a particular role in the death; and (6) what the defendant did after lethal force was used. (Id. at p. 803.) “No one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.) In determining whether a defendant was a major participant in an offense, the finder of fact must consider the totality of the circumstances. (Id. at p. 802.) In People v. Clark (2016) 63 Cal.4th 522, (Clark), the Supreme Court expounded upon the meaning of “reckless indifference to human life,” and set forth a non-exclusive list of relevant factors, including: (1) the defendant’s knowledge of 11 weapons used in the crime; (2) how those weapons were used; (3) the number of weapons used; (4) the defendant’s proximity to the crime; (5) the defendant’s opportunity to stop the killing or aid the victim; (6) the duration of the crime; (7) the defendant’s knowledge of the killer’s propensity to kill; and (8) the defendant’s efforts, if any, to minimize the possibility of violence during the crime. (Id. at pp. 616-623.) Like the Banks factors listed above, “‘[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.’” (Id. at p. 618.) “We analyze the totality of the circumstances to determine whether [Stewart] acted with reckless indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) We begin by analyzing whether substantial evidence supports the trial court’s finding that Stewart was a major participant in the robbery. We conclude the answer is yes. As the trial court explained, in addition to being the getaway driver, Stewart was integrally involved in the planning of the takeover robbery of the restaurant. She told friends she had “set up” the robbery and tried to recruit them to participate in the conspiracy. In the months leading up to the robbery, she provided her co- conspirators with knowledge about the restaurant’s workings and layout. She and her co-conspirators also attempted a similar robbery at the same restaurant two months before the robbery that gave rise to her murder convictions. When the robbery did occur, Stewart acted as the getaway driver as her co-conspirators, armed with shotguns, entered the restaurant and relied on her information to control the victims and seek out the restaurant’s safe. Based on these facts, the trial court could reasonably conclude Stewart was a major participant in the robberies. 12 The trial court’s finding that Stewart acted with reckless indifference to human life is likewise supported by substantial evidence. As the trial court noted, the robbery Stewart planned was especially dangerous. Freeman and Sanders each had shotguns, and Stewart knew they would be armed. Stewart’s plan contemplated that the gunmen would enter the restaurant right before it closed, with patrons and employees still present. The plan entailed the gunmen holding the victims at gunpoint for several minutes as they collected the victims’ valuables and opened the safe. It is notable that Stewart warned off one of her friends who worked at the restaurant because she did not want that friend to be put in harm’s way when the robbery occurred. This warning shows Stewart knew the robbery victims might get hurt. Stewart also threatened a manager at the restaurant whom she disliked, saying she would cool him off “in the freezer,” providing evidence that she may have known her co-conspirators would hold and possibly harm the robbery victims in the freezer. And lastly, the robbery itself was unnecessarily violent from beginning to end. It started with the gunmen beating the cashier unconscious without warning and ended with them shooting the victims in the freezer. The trial court could reasonably infer that Stewart, as one of the robbery’s principal planners, knew the gunmen were going to carry out the robbery in an unnecessarily violent manner. Stewart additionally argues principles of res judicata and collateral estoppel bar the prosecution from relitigating her intent to have the murders committed. This argument is inapposite. The trial court did not deny Stewart relief based on a finding of intent to kill. Indeed, the court expressly declined to decide whether Stewart harbored an intent to kill, instead 13 denying relief based on its conclusion that she was a major participant who acted with reckless indifference to human life. We therefore need not address this argument further. DISPOSITION The order denying Stewart’s section 1172.6 petition is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS CURREY, J. We concur: MANELLA, P.J. COLLINS, J. 14	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484723/	Filed 11/17/22 Santiago v. Lamont Elementary School Dist. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT MARY SANTIAGO, F081465 Plaintiff and Appellant, (Super. Ct. No. BCV-17-100875) v. LAMONT ELEMENTARY SCHOOL OPINION DISTRICT, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge. Law Offices of Parnell Fox and Parnell Fox for Plaintiff and Appellant. Herr Pedersen & Berglund, Leonard C. Herr and Caren L. Curtiss for Defendant and Respondent. -ooOoo- Mary Santiago (plaintiff) was employed as a receptionist by the Lamont Elementary School District (defendant) for 19 years. She had tardiness and attendance issues throughout her career, especially during her last three years on the job. Aside from occasional warnings, defendant was generally tolerant of those issues until plaintiff was discovered to have secretly recorded a meeting with defendant’s assistant superintendent. She was placed on administrative leave pending a formal investigation and was ultimately fired for cause. The stated grounds for dismissal included “chronic attendance and punctuality deficiencies” and “insubordination” in connection with the recorded meeting. Plaintiff sued defendant for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). In addition to other related FEHA claims dependent upon the existence of a disability, she also pleaded a whistleblower claim under Labor Code section 1102.5. Plaintiff alleged her firing was in retaliation for “refusing to cooperate in covering up a $300,000 misappropriation of funds,” and for having discovered and reported that the assistant superintendent lied about his credentials in his employment contract with the school district. The Labor Code claim was summarily adjudicated in defendant’s favor prior to trial. Defendant successfully moved in limine to exclude any evidence concerning the whistleblower allegations during trial, leaving plaintiff to rely solely upon her disability contentions. A jury found plaintiff did not have a physical or mental disability that limited her ability to perform the essential functions of her job. This finding was dispositive of all remaining causes of action, and judgment was entered for defendant. Plaintiff now seeks reversal and a new trial on the ground of insufficient evidence. In essence, she claims the existence of a qualifying disability was proven as a matter of law. The evidence showed plaintiff was treated for multiple ailments during the relevant time period: allergic rhinitis, chronic fatigue syndrome, depression, fibromyalgia, gastroesophageal reflux disease, reactive airway disease, and type 2 diabetes. However, plaintiff failed to develop or substantiate the argument that those conditions had a limiting effect on her job performance. For example, during opening statements plaintiff’s counsel attributed her persistent tardiness to “taking medication that took time to [take] effect to stop her from vomiting so she [could] go to work.” But no 2. evidence of such vomiting was ever presented or even alleged by any witnesses, including plaintiff herself. She only briefly testified that a later start time would have enabled her “to take my medication early in the morning and allow to effect [sic] so that way I could make it to work on time.” She never explained what the medication was, the symptoms it controlled, or how long it took to take effect. The existence of a qualifying disability was closely tied to the issue of plaintiff’s credibility, which was called into question in several ways. Further supporting the jury’s verdict was plaintiff’s admission, under oath, that her health problems “didn’t affect my ability to do my job.” We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was hired by defendant as a permanent full-time receptionist in November 1995. She and her coworkers in the small office of the rural school district were frequently asked to perform tasks outside of their job classification. Over time, plaintiff’s job duties consisted of not only greeting visitors and answering phones, but also secretarial work, data entry and analysis, preparation of reports, and interpreter/translation services (she was bilingual in Spanish and English). Plaintiff’s “frequent tardies” were documented as early as 1996. In her 2003 and 2010 performance evaluations, plaintiff’s attendance was rated below average. Her attendance rating improved to average in 2011, but she was “counseled that there was concern over her attendance and the fact she was not contacting the office when she was late or not showing up at all.”1 Ricardo Robles was hired as defendant’s superintendent in 2011. Jose Cantu became the assistant superintendent on July 1, 2012, the first day of the 2012–2013 school year. Robles and Cantu thereafter shared the responsibility of overseeing plaintiff’s job duties. 1The information in this paragraph is provided for general background purposes. At trial, plaintiff successfully moved to exclude any evidence of her attendance record prior to 2012. 3. From at least July 2012 onward, plaintiff was better about calling the office when running late. The record on appeal contains over 60 e-mails memorializing phone conversations between plaintiff and the employee who documented late arrivals. The employee testified to typing the e-mails and sending them to Cantu (and usually the rest of the office) immediately upon hanging up with plaintiff. The correspondence thus reflected the time plaintiff had called in and the explanation she provided for being late. During the last four months of 2012, plaintiff was late for work at least 18 times. Her daily start time was 7:30 a.m., but she typically waited until between 7:45–8:00 a.m. before calling to advise that she was behind schedule. In most instances, plaintiff merely claimed to be “running late.” The e-mails show only two full-day absences between August 2012 and the end of the calendar year. Both absences were generically attributed to being “sick.”2 On January 2, 2013, plaintiff was absent from work. The record suggests Cantu was not expecting plaintiff to be out and questioned her about it. On January 3, 2013, at 1:45 a.m., plaintiff sent Cantu the following message: “Happy New Year! [¶] I will be out of the office this week on vacation. [¶] My doctor’s appointment was a personal appointment, not sure why I would need to bring in a doctor’s note on my release since I was not under doctor’s care. [¶] Please clarify the request for a doctor’s note.” Cantu replied to plaintiff’s message at 7:22 a.m.: “Good Morning, [¶] I’m concerned about your attendance …. Your health is your business, however if your health is the major issue which seems to be impeding your attendance, we can ask for a doctor’s note. If it was personal, personal days are available but you may be out of those too. This was my first attempt to get at my continued concerns about your attendance and tardiness. My concerns have escalated now that you want to take vacation. [¶] I look forward to meeting with you upon your return.” 2In deposition testimony, plaintiff estimated she had more than 50 absences during the 2011–2012 school year. There is no indication of how many of those absences may have been for health reasons. Plaintiff’s official attendance records for the 2011–2012 and 2012–2013 school years are not part of the record on appeal. 4. Superintendent Robles was copied on Cantu’s message to plaintiff. Several hours later, plaintiff wrote back: “Good Afternoon Mr. Cantu, [¶] In response to your request I’ve scheduled an appointment with my primary doctor. I have an appointment on Tuesday [1/8/13] at 4pm and will need to leave the office at 3:15pm. I will have them fax you a copy of the doctor’s note as per your request of the outcome of my appointment addressing your concerns.” On January 8, 2013, Cantu e-mailed plaintiff with a request for her “Attendance History 2012–2013 Card and accompanying Absence Request Forms for the last month.” Later that afternoon, plaintiff obtained a note from her primary care physician, Rosemarie Dellica, M.D. (Dr. Dellica). The note did not specifically address plaintiff’s absences or tardiness. It read: “To whom it may concern: “[Plaintiff] has been under my care since 10/2/2012. She has been treated for the following medical conditions: “— Chronic fatigue syndrome “— Fibromyalgia “— Depression anxiety “— Reactive airway disease and allergic rhinitis “— Diabetes mellitus type 2 “— Gastroesophageal reflux disease”3 3Plaintiff’s attorney has frequently characterized these ailments as “serious medical conditions.” We refrain from using the term “medical condition” because of its unique definition under the FEHA. “FEHA defines ‘medical condition’ as either ‘[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of cancer’ or a genetic characteristic. [Citations].” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584.) Although plaintiff once alleged her doctors had “flagged [her] as a high risk for stomach cancer,” her causes of action were based on the existence of a physical and/or mental disability as defined by Government Code section 12926, subdivisions (j) and (m). She did not allege or attempt to prove the existence of a “medical condition” within the meaning of section 12926, subdivision (i). (See Soria, at p. 584 [“Under FEHA medical condition and physical disability are separate bases for improper discrimination, each with its own statutory definition”].) 5. On January 28, 2013, Cantu sent a group message to six employees, including plaintiff, regarding the “need to be better organized in terms of when we can expect folks to be at their respective desks” to ensure the constant presence of someone to answer phones and cover the front counter. The employees were asked to provide their regular work hours and break times. Plaintiff wrote back confirming her schedule of 7:30 a.m. to 4:00 p.m., with a morning break at 9:30 a.m.; a 30-minute lunch from 11:30 a.m. to 12:00 p.m.; and another break at 2:30 p.m. Plaintiff was significantly late for work approximately 40 times during the 2013 calendar year. As before, she often waited until she was already 15 to 30 minutes behind schedule before calling in to the office. Many of her excuses were distinctly nonmedical in nature. Examples included “fog,” “received a phone call that her sister-in-law is not doing too well,” “a small emergency at her daughter’s apartment,” “needs a ride,” “carless [and] trying to get a ride,” “board meeting finished late last night,” “personal business came up,” “couldn’t find the keys to the car,” “[car] battery is dead,” “son had a flat [tire].” There were a dozen occasions when no explanation was given. The relatively few health-related excuses were vague and/or had no clear relationship to the afflictions listed on Dr. Dellica’s earlier note, e.g., “woke up with a headache,” “feeling sick,” “lower back is bothering her,” “needs to go buy pills for her ear infection,” “not feeling well.” Plaintiff accounted for her late arrivals, early departures, and absences by using quarter hour (.25) increments of sick leave and vacation time. She occasionally used “personal emergency” time, which the record indicates was essentially sick leave for reasons unrelated to illness (“P.E.” hours were apparently deducted from an employee’s available amount of sick leave). Plaintiff typically provided one of four generic explanations on her time card, which the payroll clerk would later transcribe on her official attendance record: “ill,” “sick,” “personal,” or “vacation.” However, plaintiff would give the reason of being “ill” even when the corresponding event had nothing to 6. do with her health. For example, she wrote “ill” as the reason for being 30 minutes late after previously claiming to have been helping her son jump-start his car. The same was true of 1.25 hours of sick leave used for what she had previously said was “car trouble.” Likewise for 1.75 hours of leave used because of an early departure originally attributed to her daughter having been in a “car wreck.” The 2013–2014 school year began with plaintiff being absent for 10 straight days (not including the Independence Day holiday). She used 32 hours of vacation between July 1 and July 5, 2013. On Monday, July 8, plaintiff called the office at 8:05 a.m. to say she would be out and “might not be in tomorrow” because she was “packing her stuff [and] moving out of her apartment.” This event coincided with a period of separation from her husband. On Tuesday, July 9, plaintiff called in around 2:00 p.m. to advise she would be “out for the rest of the week as per the doctor.” On the same day, she obtained a note from Dr. Dellica that said, “Excuse from work from 7/9/13 until 7/12/13 due to medical reasons. Return to work on 7/15/13.” The following Monday, July 15, 2013, plaintiff called the office at 8:08 a.m. to say she was not coming in. She claimed to have previously requested “to have last Friday and this Monday off,” and explained that she had gone out of town to attend a wedding. Three days later, on July 18, plaintiff used 4.5 hours of sick leave for an unspecified reason. On July 19, she used 2.5 hours of sick leave to attend a “Cardiologist appointment.” On July 24, plaintiff called in to say she was “taking a personal day.” However, according to her official attendance record for that date, she reported only 1.5 hours on her time card and designated it as sick leave. On July 29, plaintiff e-mailed a message to the entire office: “I apologize for the short notice, I was informed yesterday morning that my brother in law passed away and his services are this morning. I will be leaving at 9:30 am and be returning sometime after lunch.” On August 1, 2013, plaintiff used one hour of sick leave to attend a doctor’s appointment. The next week she arrived late to work “due to illness” and used another 7. 2.5 hours of sick leave. On August 20, Cantu sent plaintiff the following e-mail: “I would like to meet with you [today]. Please bring any time slips for off duty time taken since July l, 2013 and your Time Card.” The record does not reveal what was discussed at the meeting. Plaintiff subsequently went on vacation from August 22 through 27. On August 28, she took a sick day. Plaintiff’s attendance worsened in September 2013. On September 4, she blamed a late arrival on “feeling sick” but later covered the time with one hour of personal leave. She was late the next day because her “car wouldn’t start.” On September 6, she used 30 minutes of sick leave. There was another three-day sequence of late arrivals the following week (9/10, 9/11, 9/12). The first excuse was that her son’s car “needed a jump”; the second was waking up “with a huge headache”; the third is unspecified in the record. On September 20, 2013, plaintiff arrived 30 minutes late for an unspecified reason. On September 23, plaintiff left work at 8:26 a.m. due to an alleged “double ear infection” and did not return. She called in late at 7:45 a.m. the next day but did not report the tardiness on her time card. She was late again the following day, citing the need “to go buy pills for her ear infection,” and used 2.25 hours of sick leave. On September 30 plaintiff reportedly attended morning and afternoon doctor’s appointments, for which she had provided advance notice the previous week, but her attendance record showed only 15 minutes of sick leave for that day. The trend continued. Plaintiff used 15 minutes of sick leave on October 2, 2013. On Friday, October 4, she did not arrive until 8:45 a.m. due to alleged car trouble. The following Monday she used three hours of sick leave, but the appellate record does not explain why. On October 8, 2013, plaintiff e-mailed her superiors and colleagues to advise she would be leaving at 10:30 a.m. the next day to attend “multiple appointments.” She used five hours of sick leave on October 9 and was evidently 30 minutes late on October 10 8. (the attendance record indicates .5 hours of sick leave used). On the latter date, plaintiff exchanged personal e-mails with a friend regarding “a pain in the pit of [her] stomach” and plans to see her “gastro doctor” at 9:00 a.m. the next day. Plaintiff referenced a diagnosis of hiatal hernia and expressed concern she might have an ulcer. The messages also discussed plaintiff’s relationship problems with a man she had been seeing. The friend wrote, “[M]aybe some of your stomache problem [sic] are because of him.” Plaintiff replied, “I know they are, I was so stressed out because of all his stupid little games.” On October 11, 2013, plaintiff called the office at 10:00 a.m. to advise she had just seen her doctor, needed to “get blood work done,” and would “be in right after.” At 2:28 p.m., plaintiff called back to explain she had returned to the doctor’s office and would not be coming to work. She used eight hours of sick leave to cover the absence, which at that point exceeded her total amount of available sick leave for the year. On October 16, 2013, plaintiff used a vacation day for the unverified purpose of attending medical appointments. Later in the month, she used a total of 2.75 vacation hours to cover late arrivals and early departures on four separate days (1.75 hours were attributed to her daughter’s “car wreck”). On October 27, Cantu e-mailed plaintiff with instructions to update her time card. On November 1, 2013, plaintiff used four hours of vacation for reasons not specified in the record. Cantu e-mailed plaintiff the same day regarding two issues: “a new schedule for front counter coverage” and the submission of her time card. Part of the message said, “I will expect the card every last day of the month, every month. Be sure to attach all of the necessary documents for absences incurred since the last time I initialed and reviewed your card.” On November 4, 2013, Cantu sent an e-mail to all personnel announcing a reassignment of duties among various employees. The next morning, November 5, plaintiff sent him a private response: “I apologize to inconvenience the district, but 9. unfortunately I cannot attend Board meetings. I need to cut back on any extra work and relieve some of the stress as a result from my doctor visit yesterday afternoon. [¶] I will be following up with my primary doctor. They have flagged me as a high risk for stomach cancer unless I become proactive in lowering the stress level and continue medication to heal the erosion in the esophagus. [¶] Again, I apologize for the inconvenience but I must do what I must to take care of my health.” Cantu wrote back: “I appreciate your concerns about your health. … Can we talk about adjusting your work hours on Board Meeting days so that you report later in the day and attend the meeting? That would allow you some time to rest in the morning and not have to work a 12 or 13 hour day.”4 As indicated by her official attendance record, plaintiff was subsequently late for work (or possibly left early) on November 6, 8, 12, and 14. Those incidents corresponded to her use of an additional 1.75 vacation hours. On November 20, 2013, Superintendent Robles met with plaintiff and issued a verbal warning regarding her tardiness and absenteeism. Two days later, plaintiff e-mailed Cantu to advise she would be leaving work an hour early on December 4, 2013, for a doctor’s appointment. He wrote back, “No problem. Hope everything turns out ok. Very proud of the way you finished the week!” Plaintiff replied, “Going for a second opinion. Prior doctor for the last 10 years has not been proactive.” On December 6, 2013, Cantu e-mailed plaintiff the following message: “Thank you for all the work you have done this week and the change I’ve witnessed in the last two weeks. … Your dedication, effort, and time management have gotten my attention 4Plaintiff hadpreviously complained about tasks related to monthly meetings of defendant’s Board of Trustees (school board), i.e., its governing body. She estimated that for over seven years it was her responsibility to prepare the “board packets,” i.e., binders of informational materials distributed to school board members in advance of the meetings. In an e- mail to Superintendent Robles dated May 23, 2013, plaintiff wrote, “I am going home on stress. I need to meet with you tomorrow morning to discuss and turn in paperwork on concerns that I have regarding board packet and the stress that this has created.” 10. and the attention of our Superintendent.” Plaintiff subsequently missed four hours of work on December 9, and missed additional time on December 12, for reasons not explained by the record.5 On December 10, 2013, a holiday schedule was distributed to the entire office. It listed the planned absences of all employees for Monday, December 23, 2013, through Monday, January 6, 2014. Plaintiff was one of several people scheduled to be on vacation from January 2–3. With regard to January 6, it was noted “[Plaintiff] will have surgery this day and will be out of the office for 2–4 weeks, depending on recovery.” On January 6, 2014, plaintiff underwent surgery to repair a hiatal hernia. Approximately three days later, while plaintiff was out on her scheduled leave, Superintendent Robles mailed a letter to her home. The pertinent contents were as follows: “Re: Written Warning “On November 20, 2013 a meeting was held to discuss your attendance and punctuality issues along with a discussion involving the reassignment of duties to and from your desk. As part of that meeting you were given a verbal warning regarding excessive use of sick leave and excessive tardies. At the time of the meeting you had already used all available and accumulated sick leave for the 2013–2014 school year. “ln December 2013, your pattern of tardiness and absenteeism did not change. The following are documented examples of your conduct in the month of December: “December 4, 2013—Departure from work due to Dr. Appt. at 3:00 p.m. “December 9, 2013—Report to work at 11:30 a.m. “December 12, 2013—Report to work at 7:45 a.m. “December 30, 2013—All day absence “The 13.75 hours that you were away from your post will be removed from your, pre-December, 2013, existing Vacation Leave balance 5Plaintiff wasreportedly 15 minutes late on December 12, 2013, but the official attendance record shows her use of 6.75 hours of vacation time for that day. 11. of 29.88 hours. Once an employee’s personal time has been used, the employee’s salary is adversely effected [sic]. “This letter serves as a Written Warning regarding your excessive and repeated absence and tardiness issues. The District is following a progressive discipline model which means that if your conduct continues, the next steps will be a Written Reprimand followed by a Suspension Without Pay or Demotion. The Lamont Elementary School District expects all employees to report to work punctually and to not exceed their allotted sick leave in a given year. At this time you are directed to report to work at 7:30 a.m. and to leave at 4:30 p.m.. Any appointments with physicians will require a note verifying the date and time that you were in the physician’s office.”6 On January 13, 2014, Cantu e-mailed plaintiff the following message: “Happy New Year and Welcome Back. If you are reading this, you are likely back in the office having recovered from your surgery. Glad to hear that you recovered quickly. At your earliest convenience please complete the paperwork for your time away from the office and complete your time card for December through present date.” On January 21, 2014, plaintiff met with Dr. Dellica and obtained from her the following note: “To whom it may concern: [Plaintiff] was seen on 12/30/2013 for medical treatment.” As far as the record shows, plaintiff did not obtain corroborating documentation for December 4, 9, and 12, 2013. In a note dated January 23, 2014, plaintiff’s surgeon authorized her return to work on February 17, 2014. However, plaintiff subsequently asked Dr. Dellica to vouch for an extension of her leave of absence. Dr. Dellica’s note, dated February 14, 2014, said, “Excuse from work from 2/18/14 until 3/09/14 due to medical reasons. [¶] Return to work on 3/10/14.” Plaintiff returned to work on March 10, 2014. That afternoon, Cantu sent her an e- mail about meeting “to discuss your job duties going forward.” The meeting was held in Cantu’s office the following day. According to both parties, the purpose and substance of the meeting concerned a reallocation of job duties among and between plaintiff and 6Attrial, plaintiff erroneously testified this letter instructed her “to report to work immediately.” 12. certain other employees. Cantu later sent an e-mail to all personnel detailing the change in job duties for plaintiff and two of her coworkers. Plaintiff’s responsibilities now consisted of “Front Desk Receptionist duties,” “School records,” “School Messenger,” “Translation Services,” “Expulsions and Suspensions,” “Worker’s Compensation Forms and Reports,” “Use of Facilities,” and “Substitute Teacher Contacts.” Among other changes, preparation of the “School Board Packet” was reassigned to an administrative secretary. (See fn. 4, ante.) On March 11, 2014, following her meeting with Cantu, plaintiff contacted Jesus (Jesse) Atondo. Atondo was a member of the school board and a longtime personal friend of plaintiff. While venting to Atondo about her revised job duties, plaintiff disclosed that she had made an audio recording of the meeting with Cantu. Despite their friendship, Atondo reported the existence of the recording to Superintendent Robles and the school board. He prepared and signed the following statement: “To the Superintendent of the Lamont Elementary School District: “On Tuesday, March 11, 2014 employee [plaintiff] brought to my attention an audio recording of her superior Jose Cantu. In the recording that I observed in my office …, [plaintiff] played back to me an exchange Cantu had with her early in the afternoon. In the audio being played from her cell phone, the conversation consisted of her job performance and her job duties she was being assigned. [¶] Questions or concerns on this issue, please feel free to contact me directly.” Superintendent Robles consulted with defendant’s legal counsel about the audio recording. Atondo pushed for a formal investigation into the matter, viewing it as an unlawful “violation of trust.” When Cantu learned of the recording, he contacted the Kern County Sheriff’s Office. Plaintiff, meanwhile, was apparently unaware of these developments.7 7Penal Code section 632 prohibits the intentional recording of a “confidential communication” without the consent of all involved parties. Although defendant maintains plaintiff violated this statute, the record contains no evidence of plaintiff ever being charged with a crime. We express no opinions regarding defendant’s allegations of criminal behavior. 13. On April 2, 2014, Cantu included plaintiff on an e-mail to several employees regarding the importance of keeping breaks within “the assigned time periods.” Although nobody was singled out in the message, it touched upon another of plaintiff’s recurring issues with “punctuality.” According to the testimony of a colleague in whom she had confided, plaintiff had a history of taking excessively long breaks and lunches to spend time with her romantic partner. Between April 11 and 15, 2014, plaintiff used 20 hours of bereavement leave attributed to the death of her sister-in-law. She also used 16 hours of personal leave on April 24 and 25. On May 9, 2014, plaintiff obtained a note from Dr. Dellica excusing her from one day of work “due to medical reasons.” On June 3, 2014, defendant’s business director e-mailed plaintiff this message: “You left work today (6/3) at 11:30 a.m. for lunch and did not return—no notice (verbal or written) was provided regarding your intent not to return. [¶] Please see me regarding your absence.” Plaintiff later used 3.5 hours of sick leave to account for her time away. On June 12, the business director sent another e-mail: “We have verbally discussed your lunch hour schedule and the importance of strict adherence. It is not being practiced. … You are expected back at your desk promptly at noon. … Those who relieve you at the desk have their own personal matters that they attend to during their duty free lunch, which begins at noon. You’re [sic] inability to return at noon impacts them directly. In order for all of us to work effectively and harmoniously, we must strictly adhere to our lunch schedule, and the same holds true for your morning and afternoon breaks.” On June 18, 2014, plaintiff was placed on administrative leave pending further investigation into her recording of the meeting with Cantu. In August 2014, she was served with a “Statement of Charges and Recommendation For Dismissal,” which included notice of a Skelly hearing.8 Among other allegations, plaintiff’s “attendance and 8“In [Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194], the California Supreme Court held that in order to satisfy due process, an agency considering disciplinary action against a public employee must accord the employee certain ‘preremoval safeguards,’ including ‘notice of 14. punctuality” were described as unsatisfactory “[s]ince at least August 12, 2012.” She was accused of secretly recording the meeting with Cantu on March 11, 2014, which was alleged to constitute insubordination and a violation of defendant’s policies and/or procedures. On August 26, 2014, plaintiff attended the Skelly hearing and reportedly asked for a continuance. The continued hearing was set for the following month, but plaintiff failed to appear. In November 2014, plaintiff retained legal counsel and the Skelly hearing was continued again at her attorney’s request. In December 2014, plaintiff’s attorney referred her to a psychologist, Edwyn Ortiz-Nance, Psy.D (Dr. Ortiz-Nance). The Skelly hearing was finally held on March 13, 2015, and the outcome was adverse to plaintiff. She pursued an administrative appeal. The school board conducted a de novo hearing and unanimously sustained the charges against her. Plaintiff’s employment was terminated effective April 30, 2015. In April 2017, plaintiff sued defendant, Robles, and Cantu. Six causes of action were alleged against defendant under the FEHA: (1) disability discrimination; (2) disability harassment; (3) failure to engage in the interactive process; (4) failure to accommodate a disability; (5) retaliation; and (6) failure to prevent discrimination, harassment, and retaliation. A seventh cause of action alleged retaliation by defendant in violation of Labor Code section 1102.5 (the whistleblower claim). (See Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 [Labor Code “Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities”].) the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.’ [Citation.] The Supreme Court’s directive gave rise to an administrative procedure known as a Skelly hearing, in which an employee has the opportunity to respond to the charges upon which the proposed discipline is based.” (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280.) 15. In April 2018, defendant prevailed on a motion for summary adjudication of the whistleblower claim. This outcome resulted from a procedural misstep, i.e., plaintiff’s failure to comply with the prelitigation notice requirements of the Government Claims Act (Gov. Code, § 810 et seq.). The remaining causes of action were tried to a jury in February 2020. As indicated by an exhibit list filed at the time of trial, plaintiff had intended to proffer evidence related to her whistleblower allegations. However, defendant prevailed on motions in limine to exclude all such evidence. Those rulings are not challenged in this appeal. During trial, plaintiff attempted to prove that the assertedly secret nature of her audio recording was both untrue and a pretextual basis for her firing. Plaintiff testified Cantu appeared to be recording the meeting on his own device, and he had known and consented to what she was doing. She explained, “I recorded the meeting because I thought I was being recorded, and I wanted to make sure that I had a copy of the same recording.” Plaintiff also testified to deleting the recording before becoming aware of the controversy over her actions. She allegedly “saw no need [to preserve] it” after Cantu sent the e-mail “identifying all of the details that surrounded that meeting.” Cantu denied recording the meeting himself or consenting to being recorded by plaintiff. He testified to a lack of knowledge of the recording’s existence prior to Atondo coming forward with the information. Atondo also refuted plaintiff’s version of events. He testified: “She showed up at my office excited that she had tape recorded Mr. Cantu. She admitted to me that she secretly taped Mr. Jose Cantu and she had it on her audio phone and she replayed it.” To prove she was disabled, plaintiff elicited testimony from Drs. Dellica and Ortiz-Nance. Plaintiff also testified on her own behalf. Further details are provided in the Discussion, post. 16. The defense showed that plaintiff had an active social life throughout 2013. She enjoyed spending nights in bars, dancing, and participating in “karaoke music.” She admitted to doing this “[o]nce or twice a week,” including worknights, and staying out until 11:00 p.m. while still maintaining a daily routine of getting up at 5:30 a.m. Defense counsel asked, “Did you ever find it is a little difficult the older you get to stay out till 11 o’clock at night going and doing karaoke and dancing and whatever and having to get up at 5:30 the next morning?” She replied, “No. Actually, it was a stress reliever.” Both sides called plaintiff as a witness. On direct examination by the defense, she was asked, “[I]t is true, is it not, that you never had a disability that affected your ability to do your job while you worked [for defendant]?” When plaintiff disagreed with the statement, the defense impeached her with prior deposition testimony. Plaintiff had been asked in deposition whether she had “a disability that affected your ability to perform the core functions of your job?” Her response was, “I had a disability, but it didn’t affect my ability to do my job.” On cross-examination, plaintiff’s counsel attempted to qualify the admission. After reciting the deposition testimony, counsel asked, “What did you interpret core functions of your job to mean?” Plaintiff answered, “My original position of district receptionist.” The next question was, “Did you feel that your job, as it evolved over time into a much larger position, did you have difficulty performing those duties without accommodation?” Plaintiff answered, “Yes, I did.” No further explanation was provided. The defense moved for a nonsuit as to the lone cause of action against Robles and Cantu (disability harassment). While the motion was pending, plaintiff agreed to dismiss the claim in exchange for a waiver of fees and costs. The settlement did not affect the causes of action against defendant. 17. The parties devised a special verdict form consisting of 27 questions.9 The first three questions were presented as potentially dispositive issues. The first question addressed an undisputed issue: whether defendant was plaintiff’s employer. The second and third questions read as follows: “2. Did [plaintiff] have a physical or mental disability that limited her ability to perform her essential job duties? [¶] … [¶] If your answer to this question is yes, then answer the next question. If you answered no, answer no further questions, and have the presiding juror sign and date this form. “3. Did [defendant] know that [plaintiff] had [a] physical or mental disability that limited her ability to perform her essential job duties? [¶] … [¶] If your answer to this question is yes, then answer the next question. If you answered no, answer no further questions, and have the presiding juror sign and date this form.” The jury’s deliberations were relatively brief—approximately one hour by defendant’s estimate (which plaintiff does not dispute). By a vote of 11 to 1, the jurors answered “No” to the second question. In other words, the jury found plaintiff did not have “a physical or mental disability that limited her ability to perform her essential job duties.” Judgment was subsequently entered in favor of defendant. Plaintiff moved for a new trial, arguing the “uncontroverted evidence proves she established she had a disability that limited her ability to perform the essential functions of her job.” There are no transcripts of any hearings on the new trial motion in the record. Although somewhat unclear, it appears the motion was denied by operation of law. (See Code Civ. Proc., § 660, subd. (c).) 9In her opening brief, plaintiff alleges “[p]reparation of the special verdict form was contested.” However, as she generally concedes, the only dispute was over the inclusion or omission of “the titles of the causes of action.” Defendant alleges, and the record arguably indicates, the substantive content was drafted by plaintiff’s counsel. In any event, plaintiff’s briefing makes clear that she is not alleging error in relation to the verdict form. 18. DISCUSSION I. Overview Definitions The “FEHA defines ‘disability’ as a physical or mental condition that ‘limits a major life activity,’ such as working. [Citation.] ‘Limits’ is synonymous with making the achievement of a major life activity ‘difficult.’” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 733, citing Gov. Code, § 12926, subds. (j), (m)(1)(B)(ii).) Working constitutes a major life activity “regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.” (Gov. Code, § 12926.1, subd. (c).) “‘Essential functions,’” which is a term relevant to disability claims under the FEHA, “means the fundamental job duties of the employment position the individual with a disability holds or desires.” (Id., § 12926, subd. (f).) “As disjunctively defined by FEHA, a person is ‘physically disabled’ if, among other things, the individual (1) has a physiological condition that both (a) affects a specific bodily system and (b) limits a major life activity; (2) has a ‘record or history of’ such a physiological condition; or (3) is ‘regarded or treated by’ the individual’s employer as having, or having had, any condition that makes achievement of a major life activity difficult, or as having, or having had, a physiological condition that is not presently disabling, but that may become so.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46.) “A qualifying ‘“[m]ental disability”’ under FEHA includes ‘any mental or psychological disorder …, such as … emotional or mental illness’ that ‘limits a major life activity.’” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 83–84, quoting Gov. Code, § 12926, subd. (j)(1).) Here again, the statutory definition broadly encompasses both actual disability and “[b]eing regarded or treated by the employer … as having, or having had, any mental condition that makes achievement of a 19. major life activity difficult.” (Gov. Code, § 12926, subd. (j)(4).) Also included is any mental or psychological disorder “that requires special education or related services.” (Id., subd. (j)(2).) II. Plaintiff’s Theories of Liability A. First Cause of Action The FEHA prohibits employment discrimination on the basis of a physical or mental disability. (Gov. Code, § 12940, subd. (a).) To prevail on a disability discrimination claim, a plaintiff must establish “that ‘“he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations[;] and (3) was subjected to an adverse employment action because of the disability or perceived disability.”’” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.) If any one of these elements is missing, the claim fails. (Ibid.; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1006.) B. Second Cause of Action The FEHA also prohibits harassment of an employee because of a physical or mental disability. (Gov. Code, § 12940, subd. (j)(1).) Whereas discrimination “refers to bias in the exercise of official actions on behalf of the employer,” harassment involves “bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) Disability harassment claims require a showing “‘“that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].”’” (Cornell v. Berkeley Tennis Club, supra, 18 Cal.App.5th at p. 927.) C. Third and Fourth Causes of Action “In addition to setting forth a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an 20. employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 241, citing Gov. Code, § 12940, subds. (a), (m).) “Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself” (Moore, at p. 241), hence plaintiff’s fourth cause of action. “Similar reasoning applies to violations of [Government Code] section 12940, subdivision (n), for an employer’s failure to engage in a good faith interactive process to determine an effective accommodation, once one is requested” (Moore, at p. 242), i.e., plaintiff’s third cause of action. “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Ibid.) D. Fifth Cause of Action “Government Code section 12940, subdivision (h) makes it an unlawful employment practice for an employer to retaliate against an employee because that employee opposed any practice forbidden by FEHA or because the employee filed a complaint, testified, or assisted in any proceeding under FEHA.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 722.) “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The pleadings alleged plaintiff engaged in a protected activity by complaining to defendant “about Cantu’s illegal hiring and the discrimination, harassment and retaliation suffered by her ….” After defendant succeeded in excluding the evidence of “Cantu’s illegal hiring,” the fifth cause of action became redundant. It was barely mentioned in plaintiff’s opening statement and omitted entirely from her closing argument. As 21. conveyed to jurors through the jury instructions, the theory was defendant “retaliated against her for being a disabled person.” E. Sixth Cause of Action Plaintiff’s sixth cause of action, labeled as “Failure to Prevent & Investigate Discrimination, Harassment, and Retaliation …,” was derivative of her first, second, and fifth causes of action. (See Gov. Code, § 12940, subds. (j)(1), (k); Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 [“the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred”].) III. Jury Instructions and Verdict Form CACI No. 2540 sets forth the elements of a disability discrimination claim under the FEHA. The instruction is replete with bracketed components, and the Directions for Use are detailed. The parties used CACI No. 2540 as a template to create the following jury instruction: “[Plaintiff] claims that [defendant] discriminated against her based on her physical or mental disability. To establish this claim, [plaintiff] must prove all of the following: “1. That [defendant] was an employer; “2. That [plaintiff] was an employee of [defendant]; “3. That [defendant] knew that [plaintiff] had a physical or mental disability that limited her ability to perform her essential job duties; “4. That [plaintiff] was able to perform the essential job duties with reasonable accommodation for her physical or mental disability; “5. That [defendant] disciplined [plaintiff], denied her an available job position for which she was qualified, or terminated her employment; “6. That [plaintiff]’s physical or mental disability was a substantial motivating reason for [defendant]’s discipline, denial of an available job position, or decision to terminate her employment; “7. That [plaintiff] was harmed; and 22. “8. That [defendant]’s conduct was a substantial factor in causing [plaintiff]’s harm.” The wording of both the parties’ instruction and the standard version of CACI No. 2540 assumes the employee is disabled for purposes of the FEHA. The focus, therefore, is on the employer’s knowledge of the disability and whether the employee was otherwise capable of performing the essential functions of her job. (See Green v. State of California (2007) 42 Cal.4th 254, 262 [“the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation”].) However, the Directions for Use accompanying CACI No. 2540 advise, “If the existence of a qualifying disability is disputed, additional instructions defining ‘physical disability,’ ‘mental disability,’ and ‘medical condition’ may be required. (See Gov. Code, § 12926(i), (j), (m).)” The jury below was not instructed on the FEHA’s definitions of physical and mental disability (or medical condition). As explained in footnote 3, ante, the existence of a “medical condition” was not at issue. Whether plaintiff had a qualifying disability was very much in dispute at trial. The defense argued, “The big issue in this case, with regard to what [plaintiff] has to prove, is she had a physical, mental disability that affected her ability to perform the essential job requirements, that affected her ability to do her job. There is no evidence. There is no evidence that she had a disability that affected her ability to do her job. No doctor said that. And, in fact, [plaintiff] said just the opposite.…” In the respondent’s brief, defendant argues plaintiff is now seeking “to hold the jurors accountable for not knowing the definition of a disability as defined by FEHA.” Defendant further argues the jurors’ presumptive reliance on their lay understanding of what it means to be physically or mentally disabled was plaintiff’s own fault. The same argument is made with regard to the wording of the dispositive question on the special verdict form. We agree that if any errors occurred in this regard, they do not inure to plaintiff’s benefit on appeal. (See Davis v. Harano (2022) 79 Cal.App.5th 688, 692 [if counsel’s “jury instructions and verdict form led the jury astray, … [counsel] invited the 23. error, if error there was”]; Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 543–544 [discussing how “such errors may be forfeited, waived, or found to be invited error or the subject of estoppel”]; Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1039 [“If appellant claimed, for the first time on appeal, that the special verdict form or its questions were defective, the issue would be deemed waived”].) “In a civil case, the parties must propose complete and comprehensive instructions in accord with their theories. If they do not, the court has no duty to instruct on its own motion.” (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 162; accord, Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131; Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526 [“nor is it obligated to modify proposed instructions to make them complete or correct”].) “‘[T]he exception is a complete failure to instruct on material issues and controlling legal principles which may amount to reversible error.’” (Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 28.) Plaintiff emphasizes she is neither alleging instructional error nor claiming the verdict form was defective. She argues the jurors’ adverse finding, made despite the allegedly conclusive nature of her evidence, shows “an additional jury instruction providing a hyper-technical definition of disability … would not have assisted the jury.” In other words, she contends any error in failing to instruct on the FEHA’s definitions of physical and mental disability was harmless. Given plaintiff’s position, we need not determine whether a prejudicial instructional error occurred. As we explain, the jury acted within its authority by finding in favor of defendant. To be clear: the issue is not whether the evidence showed plaintiff had a disability within the meaning of Government Code section 12926, subdivision (j) and/or (m). The dispositive inquiry, as narrowed by the parties’ verdict form, is whether the evidence could only have been interpreted as showing plaintiff had an actual “physical or mental disability that limited her ability to perform her essential job duties.” 24. IV. Standard of Review Plaintiff frames the issue as a typical sufficiency-of-the-evidence challenge. Such claims involve “‘a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below.’” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) “Substantial evidence is evidence of ponderable legal significance, reasonable, credible and of solid value.” (Ibid.) Plaintiff further notes “the daunting burden placed on one who challenges the sufficiency of the evidence to support a trial court finding.” (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328–329; accord, Multani v. Knight (2018) 23 Cal.App.5th 837, 857.) The standard of review is more stringent than discussed in either party’s briefing. When a jury determines “that the party with the burden of proof failed to carry that burden and that party appeals, it is somewhat misleading to characterize the failure-of- proof issue as whether substantial evidence supports the judgment. This is because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279.) “Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the [jury] makes specific findings of fact in favor of the losing plaintiff, we presume [it] found the plaintiff’s evidence lacks sufficient weight and credibility to carry the burden of proof.” (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486, italics added (Bookout); accord, Estes v. Eaton Corporation (2020) 51 Cal.App.5th 636, 651; Fuller v. Department of Transportation, supra, 38 Cal.App.5th at p. 1039.) “Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the 25. appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’” (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 279, italics added; accord, Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) “We apply the usual rule on appeal that the trier of fact is not required to believe the testimony of any witness, even if uncontradicted.” (Bookout, supra, 186 Cal.App.4th at p. 1487.) “All legitimate and reasonable inferences are indulged in order to uphold the verdict if possible.” (Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1678.) V. Evidence of Physical Disability A. Dr. Dellica’s Testimony Dr. Dellica testified to being plaintiff’s primary care physician from October 2012 through the time of trial. Her area of expertise is internal medicine. Although she confirmed five office visits with plaintiff between January 2013 and May 2014, Dr. Dellica had scant recollection of any information related to those visits. For example, in May 2014 she wrote a note excusing plaintiff from work for “medical reasons.” When asked “what those medical reasons were,” her only explanation was, “[my records show] a visit at that time. I had an office visit for her at that time.” Dr. Dellica authenticated the handwritten note dated January 8, 2013, listing the conditions of “[c]hronic fatigue syndrome, fibromyalgia, depression, reactive airway disease, allergic rhinitis, diabetes type two, [and] gastroesophageal reflux disease.” On the same date, she referred plaintiff to an unidentified specialist for further evaluation/treatment of fibromyalgia, chronic fatigue syndrome, and allergic rhinitis. Plaintiff’s counsel asked, “[W]hat symptoms was [plaintiff] having to make you conclude she was suffering from all of those [health] conditions.” The witness answered, “Chest fatigue, musculoskeletal pain.” 26. No further testimony was provided to explain how any of the conditions listed on the note manifest themselves—in general or as specifically experienced by plaintiff—or how they may have affected plaintiff’s job performance. Dr. Dellica was never asked to assess plaintiff’s ability to perform the essential functions of her job, and she had no opinions to offer on the subject. No testimony was provided regarding any medications plaintiff may have been taking while under her care. Dr. Dellica was briefly questioned about plaintiff’s hiatal hernia surgery. When asked to explain “what a hiatal hernia is,” she replied, “Hiatal hernia is part of the stomach protrudes through the esophagus. And—” Plaintiff’s counsel interrupted the response to ask, “Is it painful?” Dr. Dellica replied, “Yes.” She was unable to provide any details about the surgical procedure, and the unidentified surgeon did not testify. On cross-examination, Dr. Dellica was asked about a statement plaintiff had made in deposition: “[DEFENDANT’S COUNSEL:] Q. [Plaintiff] said you told her she had a disability. Do you remember ever telling her she had a disability? “[DR. DELLICA:] A. It depends on how you say a disability. If a sickness or illness is a disability, like it depends on how you perceive disability. “Q. Sure. But as you sit here today, do you remember ever telling her she had a disability? “A. I can’t remember.” B. Analysis Plaintiff argues Dr. Dellica “provided substantial and uncontroverted testimony confirming her diagnoses of chronic fatigue syndrome, fibromyalgia, depression, reactive airway disease, allergic rhinitis, type two diabetes type [sic], and gastroesophageal reflux disease.” We address the listed conditions seriatim. Aside from reading the words from her handwritten note, Dr. Dellica gave no testimony regarding “chronic fatigue syndrome.” In her reply brief, plaintiff argues the 27. condition “is self-explanatory—a person frequently feels tired.” Assuming this is true, there was no evidence plaintiff experienced, or complained of, tiredness at work. Nor did plaintiff allege tiredness was the reason for her persistent tardiness. The record indicates Dr. Dellica relied on plaintiff’s own self-reporting of her symptoms. If the jury doubted plaintiff’s credibility, it was within its authority to reject the diagnosis of chronic fatigue syndrome. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 [“‘expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary’”]; Lauderdale Associates v. Department of Health Services (1998) 67 Cal.App.4th 117, 127 [“the trier of fact is the exclusive judge of credibility and may reject expert testimony in favor of nonexpert testimony or other evidence”].) Even assuming the jury accepted the diagnosis, the evidence did not compel a finding the condition limited plaintiff’s ability to perform the essential functions of her job. Jurors likely questioned why and how, if plaintiff was chronically fatigued, she often went out dancing on weeknights and—according to her own testimony—routinely woke up at 5:30 a.m. despite not having to be at work until 7:30 a.m. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 [jurors are generally free to reject uncontradicted expert testimony “in toto” and draw their own inferences from “the other evidence in the case”].) Dr. Dellica’s testimony did connect the diagnosis of chronic fatigue syndrome to plaintiff’s evidently self-reported symptoms of chest fatigue and musculoskeletal pain. However, “[p]ain alone does not always constitute or establish a disability. [Citations.] An assessment must be made to determine how, if at all, the pain affects the specific employee.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 348; see id. at p. 349 [employee’s diagnosis of carpal tunnel syndrome “does not mean he had a physical disability”]; Leatherbury v. C&H Sugar Co., Inc. (N.D.Cal. 2012) 911 F.Supp.2d 872, 880 [“Although pain can be a disability under FEHA, it must actually limit the employee’s ability to work”].) No such assessment was made in this case, and plaintiff 28. herself did not allege that pain limited her ability to perform the essential functions of her job. Next on the list is fibromyalgia. The record is devoid of any evidence regarding what this is or how it affected plaintiff. As such, the jurors may have justifiably ignored the diagnosis and/or rejected it based on their lay understanding of the term. (See Revels v. Berryhill (9th Cir. 2017) 874 F.3d 648, 656 [noting “‘[t]here used to be considerable skepticism that fibromyalgia was a real disease,’” even “‘within much of the medical community’”].) To the extent jurors understood and accepted the diagnosis, they may have known “[t]he condition is diagnosed ‘entirely on the basis of the patients’ reports of pain and other symptoms.’” (Ibid.) The probative value of the evidence would have thus turned on the jury’s assessment of plaintiff’s credibility. With regard to depression and anxiety, those conditions are generally viewed as mental disabilities. (See Jadwin v. County of Kern (E.D.Cal. 2009) 610 F.Supp.2d 1129, 1176–1177.) Although she listed them in her note of January 8, 2013, Dr. Dellica testified she was unqualified to opine about any psychological or emotional causes of plaintiff’s health problems. Her testimony also failed to identify any symptoms of plaintiff’s depression and anxiety. Those conditions were the focus of Dr. Ortiz-Nance’s testimony, which we address in the final section of the opinion. Next is “reactive airway disease and allergic rhinitis.” As defendant observes, Dr. Dellica did not explain what those terms mean, “what body parts were affected, how [the conditions] were or were not controlled through the use of medication, or how they may have affected [plaintiff] in general, particularly her ability to do her job.” Assuming the jury’s familiarity with these afflictions, there was no evidence of plaintiff experiencing allergy- or asthma-like symptoms that limited her ability to perform the essential functions of her job. Dr. Dellica did reference plaintiff’s self-reported symptoms of chest fatigue and musculoskeletal pain, but general allegations of pain do 29. not conclusively prove the existence of a physical disability. (Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at pp. 348–349.) Moving on to diabetes, this affliction is statutorily recognized as being within the FEHA’s definition of a physical disability. (Gov. Code, § 12926.1, subd. (c).) However, Dr. Dellica’s diagnosis of “diabetes type two” did not irrefutably show plaintiff had a qualifying disability within the parameters narrowed by the parties’ verdict form. (See Holtzclaw v. Certainteed Corp. (E.D.Cal. 2011) 795 F.Supp.2d 996, 1017 [rejecting the proposition that “any diabetic person could meet the burden of establishing a disability by virtue of diagnosis alone”].) There was no evidence to suggest plaintiff’s diabetes impacted her ability to perform the essential functions of her job. Lastly, Dr. Dellica’s note referred to gastroesophageal reflux disease (GERD). There was no testimony about this disease or its associated symptoms. Assuming some jurors were familiar with GERD from their own life experience, there was no evidence of how the condition affected, or even potentially affected, plaintiff’s ability to perform the essential functions of her job. In her reply brief, plaintiff focuses on the January 2014 surgery. She argues “Dr. Dellica explained in great detail the hiatal hernia and need for surgery.” The statement is not accurate. Dr. Dellica merely testified, “Hiatal hernia is part of the stomach protrudes through the esophagus,” and she responded affirmatively when asked if the condition is painful. Evidence of a painful condition does not necessarily establish a qualifying disability. (Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at pp. 348–349.) Plaintiff’s counsel attempted to show the hiatal hernia and surgery were somehow related to plaintiff’s GERD, but the effort failed. The relevant exchange occurred on direct examination: “[PLAINTIFF’S COUNSEL:] Q. And you had—was she having surgery for any other parts of her body during the time she was having this hiatal hernia surgery? 30. “[DR. DELLICA:] A. Can you say it again? “Q. Yes. I’m not good with medical terms. But was she having some sort of band put around her esophagus to keep acid from going up her throat? “A. It’s the surgeon’s procedure. So I’m not—it is not my expertise. “Q. Did the surgeon and your office have communications about her surgery? “A. Whatever I have, that’s all the communication. “Q. That’s fine. Dr. Dellica, do you still treat [plaintiff] for those same conditions? “A. Yes. “Q. The conditions that are in the January 8, 2013, doctor’s note? “A. Yes.” Plaintiff has repeatedly alleged her surgery involved “placing a band around her esophagus to keep acid from going up her throat.” However, her attorney’s questions are not evidence. (People v. Flinner (2020) 10 Cal.5th 686, 717; Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 998.) The jury was instructed on this principle pursuant to CACI No. 5002. Counsel’s assertion may very well be true, but it is not supported by actual evidence. Furthermore, Dr. Dellica did not testify the surgery was medically necessary. The only evidence on that point was Cantu’s testimony before the school board, which was admitted at trial, wherein he claimed plaintiff had previously “shared with [him] that she might have elective surgery.” (Italics added.) The fact plaintiff had surgery does not conclusively prove she had a qualifying disability. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249 [“Plaintiff might have been hospitalized for reasons other than disability—for example, he might have had minor elective surgery, or he might have sought preventive treatment for some other condition that was not disabling”].) 31. If plaintiff is now claiming she was temporarily disabled based on a physical condition attributable to the surgery itself, that was not the theory advanced at trial and it may be treated as forfeited on appeal. (Cf. Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 318 [“The jury’s verdict cannot be upheld based on legal or factual theories that were not advanced below”].) We are disinclined to consider it given plaintiff’s failure to request an instruction on the legal definition of “disability” and her trial strategy of pursuing a haphazard shotgun approach to the issue. (See Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 878–880.) She relied on a list of sundry health conditions without ever articulating how any of the conditions rendered her physically disabled. Dr. Dellica’s note of January 8, 2013, was the linchpin of the physical disability theory. Hiatal hernia was not among the listed maladies. The surgical recovery period in 2014 was discussed at trial, but the notion of plaintiff’s temporary postsurgical condition being a disability in and of itself was only subtly implied, if at all. “Having failed to tender [the alternative] theory with reasonable clarity to the jury, [she] waived the theory and may not try the case anew.” (Richmond v. Dart Industries, Inc., supra, 196 Cal.App.3d at p. 880.) Forfeiture aside, the evidence of plaintiff’s surgical recovery did not conclusively establish a qualifying disability. There was no evidence of what the procedure entailed or the expected recovery time for the average patient. Plaintiff erroneously contends “Dr. Dellica testified the hiatal hernia surgery required [her] to miss work for two months.” Conspicuously absent from this assertion is a supporting record citation. Dr. Dellica gave no such testimony. The evidence showed plaintiff requested a two- to four-week leave of absence to recover from her surgery. This did not irrefutably prove the time off was medically necessary. Superintendent Robles testified, “When she notified us that she was going to have surgery we said fine. That’s how—I mean, there wasn’t a stamp or an approval or 32. anything, like, statement. We just, you know, accepted the notice, and we noted that she’ll be gone. And that’s what we did.” Plaintiff produced a document from her surgeon’s office dated January 23, 2014. The preprinted form had a checked box next to a line reading, “Released for regular work _______.” In the blank space was a handwritten date: “2/17/14.” Nobody from the surgeon’s office testified about the note, and the jury could reasonably infer the surgeon’s reliance on plaintiff’s self-reporting of her postsurgical symptoms. The same is true of Dr. Dellica’s note dated February 14, 2014, which said, “Excuse from work from 2/18/14 until 3/09/14 due to medical reasons. [¶] Return to work on 3/10/14.” Most of Dr. Dellica’s notes used the phrase “for medical reasons,” but the “reasons” were not explained in her testimony. However, she did say, “Whatever I write, the patient asks for it, I give it to them. That is my standard of practice.” This testimony, along with her excusing plaintiff from work in July 2013, during the same week plaintiff was moving out of her apartment and traveling out of town for a wedding, may have diminished the probative value of her notes in the eyes of the jury. Jurors may have also questioned why plaintiff asked Dr. Dellica to vouch for the extension of her postsurgical leave instead of obtaining a note from the surgeon’s office. Plaintiff testified, “I was having trouble walking and I couldn’t straighten up after the surgery. I was in a lot of pain, and I was on a liquid diet. I couldn’t eat solid foods for over four weeks.” Like much of her other testimony, the statements were uncorroborated and the jury was free to disbelieve them. (See Evid. Code, § 780, subd. (f) [in determining a witness’s credibility, the jury may consider his or her interest in the outcome of the case]; Young v. Tassop (1941) 47 Cal.App.2d 557, 562 [“One matter discrediting the testimony of a witness is that, if the jury find a witness wilfully false in one material part of his testimony, on which he is contradicted, they may disbelieve his testimony in other respects, though not contradicted”].) We presume the jury concluded 33. plaintiff’s testimony lacked “sufficient weight and credibility to carry the burden of proof.” (Bookout, supra, 186 Cal.App.4th at p. 1486.) C. Plaintiff’s Testimony In arguing for reversal, plaintiff additionally relies on her own testimony and prior statements. As discussed, the jury was free to disbelieve all or part of her testimony. For our purposes, the most relevant evidence was plaintiff’s deposition testimony: “I had a disability, but it didn’t affect my ability to do my job.” (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926 [“‘[T]he appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.’ [Citation.] All conflicts, therefore, must be resolved in favor of the respondent”].) Plaintiff’s quoted testimony “has the conclusive effect of a judicial admission that [her] physical condition did not render difficult the achievement of [the relevant] major life activity,” i.e., working. (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at pp. 47–48.) “A judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. [Citations.] This principle has particular force when the admission hurts the conceder’s case. An express concession against one’s interest is regarded as highly competent, credible evidence.” (Id. at p. 48.) The jury was not obligated to credit plaintiff’s belated attempt to qualify the admission at trial. (See, e.g., Enis v. Specialty Auto Sales (1978) 83 Cal.App.3d 928, 940 [defendant’s testimony “was self-serving in nature and the jury was at liberty to disbelieve it”].) VI Evidence of Mental Disability Dr. Ortiz-Nance is a psychologist to whom plaintiff was referred in December 2014, approximately six months into the period of involuntary administrative leave from her job. Plaintiff was initially seen by an intern who administered a standardized psychological examination (the “MMPI-2”) and concluded plaintiff had “persistent depressive disorder with anxious distress” (the depression diagnosis) and “PTSD.” After three sessions with the intern, plaintiff began seeing Dr. Ortiz-Nance on a weekly basis. 34. Dr. Ortiz-Nance testified to agreeing with the depression diagnosis based on the MMPI-2 test results and his own “behavioral observation in the office.” He described the condition as “a type of low grade depression” that psychologists “don’t tend to start looking at diagnosing … unless they can verify [the patient has been experiencing symptoms] for at least a year.” According to the testimony, symptoms can include lethargy, lack of motivation, and feeling “like you don’t have the energy to sometime get out of bed [sic].” Plaintiff’s opening statement at trial, her closing and rebuttal arguments, and her examination of Dr. Ortiz-Nance indicate the main reason for having him testify was to support a claim of emotional distress damages. In her appellate briefing, plaintiff contends the quoted testimony about the depression diagnosis proved she had a mental disability. Although not expressly argued, she implies the testimony explained her chronic tardiness in the mornings. When cross-examined by the defense, Dr. Ortiz-Nance conceded the MMPI-2 is supposed to be administered by a licensed psychologist. His intern was not licensed when she evaluated plaintiff, and she initially failed to administer all of the test questions. Although the expert testified these irregularities did not affect his opinions, the jury may have found them significant. Without belaboring the point, “The jury is not required to accept an expert’s opinion. The final resolution of the facts at issue resides with the jury alone.” (People v. Sanchez (2016) 63 Cal.4th 665, 675.) The jury could have discredited Dr. Ortiz-Nance’s testimony based on the defense’s cross-examination or simply because of “[h]is demeanor while testifying and the manner in which he testifie[d].” (Evid. Code, § 780, subd. (a).) And, of course, it could have determined the testimony was less convincing than plaintiff’s admission that her alleged disabilities “didn’t affect my ability to do my job.” The expert’s testimony did not conclusively prove the existence of a qualifying mental disability. 35. DISPOSITION The judgment is affirmed. The parties shall bear their own costs on appeal. (See Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 950–951.) PEÑA, J. WE CONCUR: HILL, P. J. DETJEN, J. 36.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484722/	Filed 11/17/22 Santiago v. Lamont Elementary School Dist. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT MARY SANTIAGO, F082144 Plaintiff and Respondent, (Super. Ct. No. BCV-17-100875) v. LAMONT ELEMENTARY SCHOOL OPINION DISTRICT, Defendant and Appellant. APPEAL from an order of the Superior Court of Kern County. Stephen D. Schuett, Judge. Herr Pedersen & Berglund, Leonard C. Herr, Ronald S. Statler and Caren L. Curtiss for Defendant and Appellant. Law Offices of Parnell Fox and Parnell Fox for Plaintiff and Respondent. -ooOoo- Lamont Elementary School District (defendant) appeals from an order granting a motion filed by Mary Santiago (plaintiff) to strike a posttrial memorandum of costs. Plaintiff’s motion was untimely, but the trial court excused the mistake pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)). Defendant argues the granting of relief under section 473(b) was an abuse of discretion. Based on the alleged error, defendant contends the matter “should be remanded for entry of costs in [its] favor.” Defendant does not address the merits of plaintiff’s motion to strike. Even before the section 473(b) issue arose, plaintiff had argued defendant’s costs were not recoverable unless the trial court made certain findings. In the order from which the appeal is taken, the trial court expressly found against defendant on the relevant issues. Defendant only challenges the section 473(b) ruling, and its arguments are not persuasive. The order will be affirmed. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff sued defendant for unlawful employment practices. The pleadings alleged six causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). A seventh cause of action alleged retaliation in violation of Labor Code section 1102.5. The Labor Code claim was summarily adjudicated in defendant’s favor. A jury trial on the FEHA claims resulted in a complete defense verdict. On February 28, 2020, defendant submitted a proposed judgment for the trial court’s signature. It stated, in relevant part, “Costs, if any, to be determined per Code.” Plaintiff objected to this language and attempted to file her own proposed judgment, which the court rejected. On March 3, 2020, plaintiff filed an amended statement of objections to the proposed judgment. She argued that “[t]he sentence ‘Costs, if any, to be determined per Code’ [should be deleted] because the ‘Code’ does not provide costs to a prevailing employer. A prevailing employer is only entitled to costs if it is determined that the unsuccessful employee pursued a FEHA action that is objectively frivolous. [Citation to Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.] Defendant has made no showing Plaintiff brought or pursued a frivolous action.” Two weeks later, defendant filed a response arguing its “entitlement to costs, if any, as to [the seventh] 2. cause of action, will be determined pursuant to the provisions of Code of Civil Procedure section 998 and judicial interpretation thereof.” On April 27, 2020, the trial judge signed the judgment. On April 29, a court clerk e-mailed a copy of the signed judgment to both parties. The message said, “Good morning counsel: [¶] Please see attached Judgment on Special Verdict.” The same day, defendant filed a notice of entry of judgment and a memorandum of costs totaling $20,417.67. Both documents were contemporaneously served upon plaintiff’s counsel by mail. However, as discussed post, plaintiff’s counsel did not learn of their existence until several weeks later. On May 13, 2020, plaintiff filed a notice of intention to move for a new trial. The notice included these statements: “The Court Clerk provided a copy of a file-stamped judgment to the parties by email on April 29, 2020. Plaintiff was uncertain whether the Court Clerk’s email triggered the 15-day deadline to file a notice of intention to move for new trial and, thus, out of an abundance of caution, Plaintiff serves her notice forthwith and on the following grounds ….”1 On May 19, 2020, plaintiff’s counsel attempted to electronically file a notice of entry of judgment. She received a rejection message with the following explanation: “Duplicate filing—Notice of Entry of Judgment was filed on April 29, 2020.” Next, according to a sworn declaration in the record, plaintiff’s counsel “checked the Court’s online document system, [and,] seeing no other entry of judgment on file and having received nothing from defense counsel, believed the Court Clerk’s email dated April 29, 2020 must have been the ‘entry’ referenced in the Rejection Notice.” 1A party’s notice of the intention to move for a new trial must be filed either “(1) After the decision is rendered and before the entry of judgment” or “(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to [Code of Civil Procedure section] 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest ….” (Code Civ. Proc., § 659, subd. (a).) 3. Six weeks later, on Thursday, July 2, 2020, the defense contacted plaintiff’s counsel by e-mail to propose settling the case before the hearing on the motion for new trial. The message read, in pertinent part: “My client has costs in excess of $20,000. If the motion for new trial is not granted, then I think costs will be pursued against your client. (A copy of the cost bill is attached.)” Plaintiff’s counsel responded the same day: “Thank you for reaching out but your cost bill was never served on me. Your email of today is the first time I am seeing it. I also never received your notice of entry of judgment until seeing it attached to your opposition papers.[2] Do you have a postal log proving these items were mailed to me? [¶] I will file a motion to tax to oppose the memo of cost with a declaration that the memo was not served. [¶] Are there any other documents your office served only by mail since the trial? [¶] Thank you.” The attorneys exchanged additional correspondence over the next 24 hours. Plaintiff’s counsel tried “to get to the bottom” of her nonreceipt of the mailed documents, and she also requested a stipulation to allow the filing of a motion to tax costs on or before July 17, 2020. Defense counsel responded, “I will check with my client and get back to you about extending the time to file a motion to tax.” Defendant evidently refused to stipulate. On Monday, July 6, 2020, plaintiff filed a motion to strike the entire cost bill or, in the alternative, to tax costs in the amount of $3,363.90. Plaintiff further requested the untimeliness of her motion be excused pursuant to section 473(b). The motion was supported by a declaration explaining the circumstances summarized above. On July 20, 2020, plaintiff’s counsel filed a supplemental declaration. Defendant’s opposition papers were filed two days later. On August 4, 2020, the motion was heard and taken under submission. Read together, the moving papers and hearing transcript generally explain what happened to the mail-served documents. Plaintiff’s counsel worked from home. She also 2Defendant’s opposition to the motion for new trial was filed June 5, 2020. The notice of entry of judgment was attached as an exhibit to a supporting declaration. 4. rented out a room to a third party, and his mail was delivered to the same address. Plaintiff’s “office assistant” was a family member who also lived in the home. The office assistant was the person who usually retrieved and distributed the incoming mail. In her declaration of July 6, 2020, plaintiff’s counsel denied ever receiving the mail-served documents. In her supplemental declaration of Monday, July 20, 2020, she attested that on Friday, July 17, 2020, she learned the documents had been in her tenant’s possession. The tenant had reportedly “explained that the envelope somehow got mixed with his mail and he just noticed it while in the process of moving to a new location.” At the motion hearing, the tenant was described as “a young kid.” The tenant had allegedly said “he did not check any of his mail because he doesn’t get a lot of mail.” Upon receiving the unopened envelope from her tenant, counsel promptly updated opposing counsel and the trial court.3 On September 15, 2020, the trial court issued a written decision granting plaintiff’s motion in full. With regard to section 473(b), the court found “defendants [sic] can show no prejudice. Additionally, under the circumstances described by plaintiff’s counsel the Court [finds] her actions were the result of mistake and inadvertence.” As for the issue of costs, the trial court relied on Williams v. Chino Valley Independent Fire Dist., supra, 61 Cal.4th 97 (Williams), i.e., the case plaintiff had cited in her objection to the proposed judgment back in February 2020. The trial court found plaintiff’s FEHA claims were not “objectively without foundation when brought nor did 3At the motion hearing, plaintiff’s counsel said the tenant “did not even return it to me until July the 2nd,” which conflicted with her supplemental declaration (“On July 17, 2020, I received an unopened envelope from my tenant”). The discrepancy is noted in defendant’s reply brief. However, as explained above, July 2, 2020, was the date plaintiff’s counsel first received a copy of the cost bill as an attachment to defense counsel’s e-mail. Viewing the record in the light most favorable to the ruling, we assume plaintiff’s counsel momentarily transposed the dates in her mind and simply misspoke. We extend the benefit of the doubt to defendant for similar mistakes in its own briefing. For example, on page 12 of the opening brief, the filing date of plaintiff’s motion is erroneously listed as “June 6, 2020” (the correct filing date was 7/6/20). Defendant also makes two erroneous references to the “unidentified tenant” in its reply brief. The tenant’s full name was disclosed in plaintiff’s counsel’s supplemental declaration. 5. she continue to litigate it without any basis for going forward.” Acknowledging it had previously “indicated it believed the case to be weak,” the trial court nevertheless concluded “the evidence presented by plaintiff was sufficient to preclude [a] finding that it was frivolous, unreasonable, or groundless.” Although the seventh cause of action was not a FEHA claim, it was deemed “factually intertwined with and dependent upon her FEHA claims [such] that the rationale of Williams militates against awarding defendants [sic] costs related to the one non-FEHA cause of action.” 4 The order granting plaintiff’s motion was filed in November 2020. Defendant filed a timely notice of appeal. DISCUSSION I. Legal Overview “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal ….” (Cal. Rules of Court, rule 3.1700(a)(1).) “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Id., rule 3.1700(b)(1).) These deadlines are not jurisdictional. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) The relevant deadlines are automatically extended by up to five calendar days depending on the method of service (and longer for out-of-state mailing). (Cal. Rules of 4InWilliams, the California Supreme Court held that a prevailing defendant in a FEHA action “should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams, supra, 61 Cal.4th at p. 115.) In 2018, this holding was incorporated into the text of Government Code section 12965. (See Stats. 2018, ch. 955, § 5.) The statute now provides “that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (c)(6).) 6. Court, rule 3.1700(b)(1); see Code Civ. Proc., § 1013, subd. (a).) The parties may stipulate to further extensions of time. (Cal. Rules of Court, rule 3.1700(b)(3).) “In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” (Ibid.) Plaintiff admits her motion was untimely, and defendant concedes the trial court had authority to excuse the mistake upon a proper showing of grounds for relief under section 473(b). “Preliminarily, we note that there are two types of relief set forth in section 473, subdivision (b): discretionary and mandatory.” (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192.) Mandatory relief is limited to “the relatively narrow category of default judgments and dismissals.” (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 296.) “Under the discretionary provision, ‘the court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’” (Lee, supra, at p. 1192, quoting Code Civ. Proc., § 473, subd. (b).) “[T]he failure of counsel to meet a procedural deadline [is] a proper subject for section 473 relief.” (Lee, at p. 1193.) “In determining whether the attorney’s mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care … is not therefore excusable.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) “Relevant factors in assessing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) Diligence is determined by how counsel reacted 7. after discovering the problem. (See Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [“Unexplained delays of more than three months in seeking relief from default after knowledge of its entry generally result in denial of relief”].) A section 473(b) motion “is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) The trial court’s granting of relief “implies it believed counsel’s explanation,” and such credibility determinations are binding on the appellate court. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492; accord, Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.) Moreover, defendant’s briefing concedes the truth of plaintiff’s counsel’s explanations for the untimely motion. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits. [Citation.] The additional, more specific purposes of section 473(b)’s provision for relief based on attorney fault is to ‘relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.’” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) “Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.) “In such cases, the law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’” (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) Here, the trial court found defendant was not prejudiced by its consideration of plaintiff’s untimely motion. Despite plaintiff arguing this finding was correct, defendant 8. offers no discussion of prejudice in its briefing. We thus presume the trial court had broad discretion to grant relief under section 473(b). (See Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258; Mink v. Superior Court, supra, 2 Cal.App.4th at p. 1343; see also Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11 [“It is not our responsibility to develop an appellant’s argument”].) II. Analysis A. Mishandling of Incoming Mail Defendant’s reply brief rhetorically asks, “What policy, procedure or practice was in place to ensure legal mail was safeguarded after it was received? Were there practices and procedures in place to safeguard legal mail? If there were reasonable safeguards in place, why weren’t they followed? And, if there weren’t any safeguards in place, why not?” There is precedent for excusing the mishandling of documents by nonattorneys. In Gorman v. California Transit Co. (1926) 199 Cal. 246 (Gorman), “the summons and complaint in said action were served upon the secretary of [the defendant] corporation …, who at once delivered the same to [the manager] in charge of the traffic department of the defendant, with the direction that said summons and complaint, together with the file relating to the accident, be delivered to … the president of the corporation, immediately upon his return from Los Angeles, where he then was and from which he was expected to return within a few days.” (Id. at p. 247.) The documents were left on the president’s desk but later “inadvertently taken [from there] by one of the employees of the corporation,” who brought them back to the traffic department and “returned [the items] to the compartment in which such files were ordinarily kept.” Consequently, the manager forgot about the documents and “the matter was not called to the attention of the president upon his return, nor in fact until some days after the default of the corporation had been taken.” (Ibid.) 9. The Gorman court affirmed an order granting discretionary relief from default under former section 473.5 It held the circumstance of “said papers [being] mistakenly removed from [the president’s] desk by another employee …,” along with the other “intervening facts,” provided “a sufficient basis to justify the conclusion of the trial court.” (Gorman, supra, 199 Cal. at p. 249.) “[T]he inadvertence or neglect in question was not the result of mere forgetfulness on the part of the person or official charged with the duty of responding to the legal process in due time, but that such inadvertence or neglect was based upon other circumstances which would suffice to render the same excusable.” (Id. at p. 248, italics added.) In Pearson v. Continental Airlines (1970) 11 Cal.App.3d 613, “an assistant secretary” of the corporate defendant received legal papers served upon his employer and “gave the documents to [a person] on his clerical staff—he could not recall her identity.” (Id. at p. 617.) The established procedure was for the clerical staff to forward such material to the company’s insurance department, which inexplicably did not occur and ultimately resulted in the entry of a default. When the error was discovered, defense counsel “requested a stipulation to set aside the default for the reason that the matter had just gotten into the hands of an attorney.” Opposing counsel “refused to enter into the stipulation requested but did say that he would discuss a settlement of the case.” (Ibid.) The granting of relief under former section 473 was affirmed on appeal. While the exact reason for the mistake could not be determined, it was held to be “fairly inferable” the unidentified clerk had either misunderstood the assistant secretary’s directive or “failed to follow customary procedures.” (Pearson, at p. 618.) Determining whether the mishandling of legal documents is excusable under a given set of facts is “primarily for the trial court’s discretion.” (Pearson v. Continental Airlines, supra, 11 Cal.App.3d at p. 616, citing Gorman, supra, 199 Cal. at pp. 248–249 5Prior to 1989, all relief under Code of Civil Procedure section 473 was discretionary. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.) 10. and Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 527.) Here, plaintiff’s counsel worked from home and had an office assistant whose responsibilities included retrieving and delivering the incoming mail. Through no apparent fault of counsel, the assistant mishandled an important package. We see no error in the trial court’s discretionary refusal to hold this mistake against the attorney’s innocent client. B. Failure to Investigate To recap the timeline, a court clerk e-mailed a copy of the signed judgment on April 29, 2020. That same day, presumably after its receipt of the e-mail, defendant filed and served a notice of entry of judgment (notice of entry) by United States Postal Service mail. The notice of entry triggered the 15-day deadline for filing a memorandum of costs. Although defendant could have waited to file its cost bill, or refrained from filing one at all, it chose to contemporaneously file and serve it along with the notice of entry. Pursuant to the California Rules of Court and Code of Civil Procedure, any motion to strike or tax the cost bill was due on or about May 19, 2020. Coincidentally, on the very same date, plaintiff’s counsel attempted to electronically file her own notice of entry. As first explained in the notice of intention to move for a new trial, filed May 13, 2020, plaintiff’s counsel had only received a copy of the judgment via e-mail from the court clerk and was unsure if it constituted a notice of entry of judgment. On May 20, 2020, counsel received notice that her electronic filing of the previous day was rejected because a notice of entry had already been filed on April 29, 2020. Defendant claims the rejection notice of May 20, 2020, informed plaintiff’s counsel of “facts … that could have justified relief under … section 473(b).” But what defendant is really arguing is the rejection notice triggered a duty to investigate the possibility that a memorandum of costs had been filed and the time to oppose it had expired. Defendant further contends it was unreasonable for plaintiff’s counsel to believe the clerk’s e-mail might qualify as a notice of entry. 11. Defendant faults plaintiff’s counsel for “fail[ing] to even try and figure out what the status of the judgment was on May 20, 2020, when she found out somebody had filed a notice of entry of judgment.” However, plaintiff’s counsel did investigate the situation by checking the court’s online register of actions. Seeing no relevant information on the register of actions, and presumably being aware the Code of Civil Procedure authorizes a notice of entry by the clerk of court (id., § 664.5), counsel’s supposition regarding the clerk’s e-mail did not exceed all bounds of reason.6 Furthermore, the fact a notice of entry had been filed did not necessarily mean a memorandum of costs had been filed. The filing and service of the notice of entry on April 29, 2020, gave defendant until approximately May 19, 2020, to file its memorandum of costs. (See Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, 356–357 [holding the five-day extension under Code Civ. Proc., § 1013, subd. (a), applies to the deadline for filing a memorandum of costs].) The closer issue—which the parties fail to address in their briefs—is whether there was cause for alarm on or about June 5, 2020, when defendant electronically filed and served its opposition to the motion for new trial. A copy of the notice of entry and the proof of service by mail were included in the opposition papers. In her e-mail exchange with the defense on July 2, 2020, plaintiff’s counsel acknowledged having previously seen the notice of entry while reviewing the opposition. If we assume diligence is assessed based on when an attorney knew or should have known of the need for relief under section 473(b), there was arguably a four-week delay (6/5/20–7/6/20). But again, learning a notice of entry had been served by surface mail on April 29, 2020, did not necessarily mean a cost bill had been filed. Plaintiff’s counsel had stated her position at trial, and again when the proposed judgment was filed, that the Williams case barred defendant from recovering any costs unless the trial court made certain 6At the motion hearing, plaintiff’s counsel speculated the register of actions had not yet been updated “because of the Covid.” She was referring, of course, to the Covid-19 pandemic and the substantial, statewide disruptions to court operations during the relevant time period. 12. specific findings. Believing strongly in the merits of her argument, counsel may have assumed defendant weighed the chances of success (which in counsel’s mind were low) against the expense of litigating the issue and had chosen not to pursue costs. Could plaintiff’s attorney have done more to investigate the possibility a memorandum of costs was filed but not received by her office? Yes. Was counsel’s failure to take further investigatory action so objectively unreasonable as to preclude relief under section 473(b)? Reasonable minds could reach different conclusions. “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.) Accordingly, we defer to the trial court’s broad discretion to excuse counsel’s mistakes. (See Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 [“Numerous courts have found no abuse of discretion in granting relief where the section 473 motions at issue were filed seven to 10 weeks after entry of judgment”]; Huh v. Wang, supra, 158 Cal.App.4th at p. 1420 [“Whether a party has acted diligently is a factual question for the trial court”].) DISPOSITION The challenged order is affirmed. Plaintiff is awarded her costs on appeal. PEÑA, J. WE CONCUR: HILL, P. J. DETJEN, J. 13.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484726/	Filed 11/17/22 P. v. Myles CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E076505 v. (Super.Ct.No. FSB10937) JOHN MYLES, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland and Julie L. Garland, Assistant Attorneys General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent. 1 In 2001, a jury convicted John Myles of first degree murder and found true the robbery-murder special circumstance, which authorizes a sentence of life without the possibility of parole for “a major participant” in a felony murder who acted with “reckless indifference to human life.” (Pen. Code, § 190.2, subds. (a)(17) & (d), unlabeled statutory citations refer to this code.) In 2019, Myles filed a petition to vacate 1 his murder conviction under new section 1172.6 (formerly section 1170.95). The trial judge summarily denied the petition on the ground the special circumstance finding rendered Myles categorically ineligible for resentencing because it demonstrated the jury found he was “a major participant” in the underlying robbery and acted “with reckless indifference to human life.” (§ 190.2, subd. (d).) On appeal, Myles argued the special circumstance finding did not render him ineligible as a matter of law because it predated the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified what “major participant” and “reckless indifference to human life” mean for purposes of section 190.2, subdivision (d). In our original opinion, we disagreed and affirmed the summary denial of his petition on that basis. 1 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no change in text.(Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer to the statute. 2 The California Supreme Court subsequently granted review of our opinion and deferred action pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong), and it has now transferred the matter back to us with directions to vacate our original opinion and reconsider Myles’s appeal taking Strong into consideration. Having done so, we conclude Myles has demonstrated a prima facie case for relief. We therefore reverse and remand for further proceedings. I FACTS On April 20, 1996, Myles took an accomplice, Tony Rogers, with him to rob a restaurant. Myles ordered Rogers to hold a gun on employees in the kitchen, and to shoot anyone who tried to leave. Meanwhile, Myles robbed the patrons and took money from the cash register. When one of the patrons tried to take Rogers’s gun, Rogers shot him several times, killing him. (People v. Myles (2012) 53 Cal.4th 1181, 1189-1190 (Myles).) A jury convicted Myles of first degree murder (§ 187, subd. (a)) and found true the special circumstance allegation that the murder was committed while Myles was engaged 2 in the commission of robbery (§ 190.2, subd. (a)(17)(A)). The trial judge sentenced 2The jury also convicted Myles of two counts of second degree robbery (§ 211) and one count of unlawful possession of a firearm (former § 12021, subd. (a)(1) (now § 29800, subd. (a)(1); Stats.2010, ch. 711)). It found true the allegation that Myles personally used a handgun. (§ 12022.5, subd. (a).) (Myles, supra, 53 Cal.4th at p. 1186.) 3 Myles to death on two counts, and a total determinate term of 11 years four months on the remaining counts. In 2015 and 2016, the California Supreme Court decided Banks and Clark, respectively, which discuss when section 190.2 authorizes a special circumstance life without parole sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that participation in an armed robbery, on its own, is insufficient to support a finding that the defendant acted with reckless indifference to human life. Instead, the fact finder must consider “the defendant’s personal role in the crimes leading to the victim’s death and weigh the defendant’s individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime.” (Banks, at p. 801.) “The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,” thereby “demonstrating reckless indifference to the significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided a nonexhaustive list of factors to consider when determining whether the defendant was a major participant in the underlying felony, and Clark provided a similar list for determining whether the defendant acted with reckless indifference to human life. (Banks, at p. 803; Clark, at pp. 619-623.) In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which, among other things, amended the definition of felony murder in section 189 and created a procedure for vacating murder convictions predating the 4 amendment that could not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.) Following this procedure, Myles filed a petition for resentencing, and the trial judge appointed him counsel. The judge hearing the petition was the same judge who presided over Myles’s trial. After briefing from both parties, the judge concluded based on his own recollection of the facts from the trial that he was “satisfied that [] Myles was both a major participant and was acting with reckless disregard for human life.” In addition, he concluded the robbery-murder special circumstance rendered Myles ineligible for relief as a matter of law and denied the petition on both grounds. Myles timely appealed. II ANALYSIS Myles argues the trial court erred by performing inappropriate factfinding and in concluding the special circumstance renders him ineligible as a matter of law. Senate Bill 1437 narrowed the felony-murder rule and eliminated the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 849.) As relevant here, Senate Bill 1437 amended the felony-murder rule to provide that “[a] participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless 5 indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e), emphasis added.) Senate Bill 1437 also created a procedure for offenders previously convicted of murder to seek retroactive relief if they could no longer be convicted of murder under the new law’s changes to the definition of murder. (Stats. 2018, ch. 1015, § 4.) Under section 1172.6, such offenders may petition to have their convictions vacated and are entitled to relief if (1) the complaint or information filed against them allowed the prosecution to proceed under the felony-murder rule or natural and probable consequences doctrine, (2) they were “convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder,” and (3) they “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189.” (§ 1172.6, subd. (a).) Faced with such a petition, the judge must determine whether the petitioner has made a prima facie showing that they qualify for resentencing. (§ 1172.6, subd. (c).) When conducting a prima facie review, “ ‘ “the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.) We review this purely legal decision de novo. (People v. Drayton (2020) 47 Cal.App.5th 965, 981, disapproved on other grounds in Lewis, at p. 963.) 6 After issuing a show cause order, the judge must hold “a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced.” (§ 1172.6, subds. (c), (d)(1).) At the hearing, the People bear the burden “to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) In Strong, our Supreme Court held that a true finding on a robbery-murder special circumstance that predates Banks and Clark does not render a section 1172.6 petitioner ineligible for relief as a matter of law because the finding was made “under outdated legal standards.” (Strong, supra, 13 Cal.5th at p. 720.) In addition, Strong also held that a court’s postconviction determination that substantial evidence supports the finding under Banks and Clark also does not render the petitioner ineligible as a matter of law because the determination “would not involve a determination beyond a reasonable doubt that [the current legal standards] were met.” (Strong, at p. 720.) Having reconsidered this case under these principles, we conclude Myles has established a prima facie case for relief because his special circumstance finding predates Banks and Clark. The trial judge also erred in concluding “[t]he issue then is whether or not there is sufficient evidence for the Court to find that [] Myles was a major participant in the underlying felony, the robbery, and that he was acting with reckless disregard for human life.” The court’s job was to assess whether Myles’s petition made a prima facie 7 case for eligibility, not analyze the sufficiency of the evidence supporting previous factual findings or make factual findings of its own. III DISPOSITION We reverse the order denying Myles’s petition and remand for further proceedings. NOT TO BE PUBLISHED IN OFFICIAL REPORTS SLOUGH Acting P. J. We concur: FIELDS J. RAPHAEL J. 8	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484729/	Filed 11/17/22 P. v. Cortez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B315406 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104924) v. JUAN ALEJANDRO CORTEZ, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. Reversed. Richard B. Lennon and Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION Defendant and appellant Juan Cortez appeals from the trial court’s denial of his petition to vacate his murder conviction pursuant to former section Penal Code section 1170.951 (now § 1172.6)2. Although the court found that defendant was eligible for relief under section 1172.6, rather than vacate defendant’s murder conviction, it redesignated his first degree murder conviction as one for second degree murder and resentenced him accordingly. We reverse and remand for resentencing. II. BACKGROUND A jury convicted defendant and codefendant Michael Castiblanco3 of first degree murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). At trial, the Los Angeles County District Attorney (District Attorney) argued to the jury that defendant was guilty as an aider and abettor or co- conspirator either under the felony murder rule or the natural and probable consequences doctrine. The jury found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and the allegation that a principal was 1 All further statutory references are to the Penal Code. 2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). We will refer to filings under section 1170.95 as having been filed under section 1172.6. 3 Castiblanco is not a party to this appeal. 2 armed with a firearm during the commission of the offenses (§ 12022, subd. (a)(1)). The trial court sentenced defendant to a term of life in prison without the possibility of parole for his murder conviction plus one year for the firearm enhancement. Sentence on the robbery conviction was stayed under section 654. (People v. Castiblanco et al. (Jan. 24, 2019, B284319) [nonpub. opn.].) On direct appeal, a prior panel of this division reversed the jury’s special circumstance finding, holding there was insufficient evidence that defendant’s participation in the robbery demonstrated a reckless indifference to human life. The panel otherwise affirmed defendant’s judgment and remanded the matter for resentencing. (People v. Castiblanco et al., supra, B284319.) On April 19, 2019, prior to the resentencing hearing pursuant to the remittitur, Castiblanco filed a section 1172.6 petition for resentencing. On October 3, 2019, pursuant to the remittitur, the trial court resentenced defendant on his count 1 murder conviction to 25 years to life plus one year for the firearm enhancement. The court did not make any changes to the sentence for defendant’s count 2 second degree robbery conviction. On December 3, 2019, Castiblanco filed a supplemental section 1172.6 petition for resentencing. On January 7, 2020, the District Attorney filed an opposition to the petition.4 On February 27, 2020, Castiblanco filed a reply. On May 15, 2020, defendant filed a section 1172.6 petition. 4 The District Attorney’s treated Castiblanco’s petition as if it was also filed by Cortez. 3 On March 1, 2021, the trial court held a hearing and found that defendant had demonstrated a prima facie case for relief and issued an order to show cause. The court set the matter for a hearing on April 23, 2021. On April 23, 2021, the District Attorney filed a supplemental brief informing the trial court that he no longer opposed defendant’s section 1172.6 petition. The District Attorney requested that defendant be resentenced to the upper term of five years for the underlying target offense of second degree robbery on count 1 pursuant to section 1172.6, subdivision (e); plus one year for the firearm enhancement; plus one year for the second degree robbery conviction in count 2. At the April 23, 2021, hearing, the trial court rejected the District Attorney’s concession, and instead proceeded on the District Attorney’s original opposition to defendant’s section 1172.6 petition. The court heard the parties’ arguments on the order to show cause, allowed the parties to file additional supplemental briefs, and took the matter under submission. On June 11, 2021, defendant filed a supplemental brief. On August 10, 2021, the trial court issued a memorandum of decision. It found “[t]he target offense against [defendant] is murder, not first[ ]degree murder, just murder.” The court further found that defendant was guilty of second degree murder beyond a reasonable doubt. Accordingly, it denied defendant’s petition to vacate his murder conviction and set the matter for resentencing on the target offense of second degree murder. On September 1, 2021, the trial court “reduce[d]” defendant’s first degree murder conviction on count 1 to second degree murder. The court sentenced defendant to an aggregate term of 21 years to life comprised of 15 years to life plus a 4 consecutive one-year term for the firearm enhancement on count 1 and a consecutive five-year term for second degree robbery on count 2.5 III. DISCUSSION “Senate Bill [No.] 1437 [(Senate Bill 1437)] was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds . . . section 1170.95 [now section 1172.6], which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts . . . .’ (§ 1170.95, subd. (a) [now § 1172.6, subd. (a)].) “An offender may file a petition under section 1170.95 [now § 1172.6] where all three of the following conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable 5 The court did not impose or stay the one-year firearm enhancement on count 2. 5 consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)–(3) [now § 1172.6, subd. (a)(1)–(3)].)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) When a petitioner makes a prima facie showing that he is entitled to section 1172.6 relief, the trial court is required to issue an order to show cause. (§ 1172.6, subd. (c).) Within 60 days of issuing the order to show cause, the court is required to hold a hearing to determine whether to vacate the petitioner’s murder conviction. (§ 1172.6, subd. (d)(1).) “The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the murder . . . conviction vacated and to be resentenced. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (§ 1172.6, subd. (d)(2), italics added; People v. Ramirez (2019) 41 Cal.App.5th 923, 932 (Ramirez) [when there is a prior court of appeal finding that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life, subdivision (d)(2) requires a trial court to proceed directly to resentencing].) Under section 1172.6, subdivision (e), a “petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is 6 entitled to relief pursuant to this section, murder . . . was charged generically, and the target offense was not charged.”6 Subdivision (e) permits a petitioner to “be resentenced for a ‘target offense’ or an ‘underlying felony’ that was not originally charged.” (People v. Silva (2021) 72 Cal.App.5th 505, 517.) In its prior opinion in this case, the panel found there was insufficient evidence that defendant’s participation in the robbery demonstrated a reckless indifference to human life. (People v. Castiblanco et al., supra, B284319.) That finding required the trial court to vacate defendant’s murder conviction and resentence him on the underlying felony of robbery. (§ 1172.6, subd. (d)(2); Ramirez, supra, 41 Cal.App.5th at p. 932.) Instead, the court held a hearing pursuant to section 1172.6, subdivision (d)(3) and resentenced defendant to second degree murder. Defendant contends the court erred. The Attorney General concedes that the information charged defendant generically with murder and that the trial court erred. We agree with the parties and reverse the court’s order redesignating count 1 as a second degree murder conviction and remand the matter for the court to redesignate count 1 as a conviction for the underlying offense of second degree robbery and resentence defendant accordingly. (§ 1172.6, subd. (e).) 6 “Generic murder” refers to a murder charge that does not specify a degree. (See People v. Jones (2014) 230 Cal.App.4th 373, 377.) 7 IV. DISPOSITION The trial court’s order redesignating defendant’s count 1 conviction as a second degree murder conviction is reversed. The matter is remanded for the court to redesignate defendant’s count 1 conviction as a conviction for the underlying offense of second degree robbery and to resentence defendant on his robbery convictions and the firearm enhancements. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KIM, J. We concur: RUBIN, P. J. MOOR, J. 8	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484727/	Filed 11/17/22 P. v. Johnson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A162177 v. JONATHAN JOHNSON, (Alameda County Super. Ct. No. 170674) Defendant and Appellant. In 2014, defendant Jonathan Johnson entered a no contest plea to second degree murder and admitted an enhancement allegation of personal use of a firearm. In 2019, defendant petitioned for resentencing under former Penal Code section 1170.95 (now § 1172.6).1 After an evidentiary hearing, the trial court denied the petition, finding the prosecution proved beyond a reasonable doubt that defendant was not entitled to relief because he was the actual killer. Defendant appeals from the order denying his petition, raising claims of evidentiary error. He also contends the prosecution failed to present The Legislature renumbered Penal Code section 1170.95 as section 1 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10; People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) Further undesignated statutory references are to the Penal Code. 1 sufficient admissible evidence to support a finding that he was the actual killer. After the trial court denied defendant’s petition, the Legislature amended the law governing evidentiary hearings. (Stats. 2021, ch. 551, § 2; see People v. Basler (2022) 80 Cal.App.5th 46, 55–56 (Basler) [describing changes to former section 1170.95].) The parties do not dispute that the new law applies retroactively to defendant’s case and that the trial court here considered hearsay evidence—including the out-of-court statements of nontestifying coparticipants identifying defendant as the shooter—that would not be admissible under the new law. We conclude the trial court’s consideration of this hearsay evidence was prejudicial and, therefore, reverse the order denying the petition. But we reject defendant’s claim that, putting aside the nontestifying coparticipants’ hearsay statements, the record lacks sufficient evidence as a matter of law to support a finding he was the actual killer. Accordingly, we will remand the matter for the trial court to conduct another evidentiary hearing in accordance with the evidentiary standards of section 1172.6. FACTUAL AND PROCEDURAL BACKGROUND Underlying Murder Conviction The Shooting On May 20, 2011, defendant, then 17 years old, and three other teenagers were walking around the Fruitvale neighborhood of Oakland looking for someone wearing a gold chain, so they could steal it. The group spotted Antonio Torres wearing a gold chain; he was working as a gardener in the front yard of a residence. Torres died from a gunshot wound. 2 Defendant’s Statements to the Police On August 29, 2011, defendant was interviewed by the police.2 He admitted he was present at the shooting of Torres. He identified his companions that day as David Hall, James Allen, and Y.W.3 Defendant said Y.W. had a revolver, and the plan was that Y.W. would snatch the gold necklace. Defendant told the police that Allen and Y.W. went through a gate to enter a yard and steal the victim’s necklace while he and Hall remained outside the gate. He said Allen snatched the chain and then the victim started coming after Y.W., who got stuck in the gate. According to defendant, the victim was about to hit Y.W., but Y.W. “did something to him,” and “[a]ll [defendant] heard was, ‘pow, pow, pow.’ ” Police Report Oakland Police Sergeant Mike Gantt documented his investigation of the Torres shooting in a report dated October 13, 2011. Gantt reported the following facts. On May 24, 2011, Gantt received information that defendant told his ex-girlfriend he did the shooting. On August 29, Gantt interviewed defendant at the police department. Defendant said he used to hang out with Hall, Allen, Y.W., and “Gregory,” but he did not hang out with that group 2The following is based on a transcript of the interview included in the appellate record; the transcription begins at some point after the interview started. The appellate record also includes a police report (summarized below) that describes statements by defendant not reflected in the interview transcript. 3 At the time, Hall was 19 years old, and Allen and Y.W. were minors. Allen later entered a plea of no contest to voluntary manslaughter for his part in the killing and was sentenced to 12 years in state prison. Y.W. was found guilty of murder in juvenile court and committed to the Department of Juvenile Justice. 3 anymore because they “ ‘rob houses and beat on people.’ ” Defendant reported that, a few months earlier, he saw Hall, Allen and Y.W. running down the street and they told him “they just ‘hit someone’ for a gold chain on 34th Avenue.” Gantt showed defendant surveillance video taken on 34th Avenue the day Torres was killed. Defendant identified the first male who ran by as Hall, followed by Allen, himself and, last, Y.W. He said Y.W. had a gun. Defendant “stated that he was like a lookout while [Allen] and [Y.W.] walked into the front yard” of the residence where Torres was shot. Defendant told Gantt that “a guy he knows as Gregory” said he drove by after the robbery and took the victim’s iPod. Defendant was taken into custody. On September 7, 2011, Allen and Y.W. were arrested, and Gantt interviewed each of them early the next day. Allen stated that, in May, he was with Y.W., defendant, and Hall at the Fruitvale BART station. Defendant had a black revolver and said they could rob somebody. They saw the victim doing gardening; he was wearing a gold chain, and he had an iPhone and was wearing earplugs. Allen told Gantt that defendant “asked, ‘Y’all want to get him?’ ” Defendant entered the yard first. Allen walked up behind the victim and snatched the chain off his neck. Allen reported that the victim “came at [defendant] with some bolt cutters and [defendant] shot him.” In a separate interview, Y.W. admitted he was with Allen, defendant, and Hall, and they robbed a Hispanic man. Y.W. said the victim turned around and he had big scissors; defendant tried to run, but his jacket got caught in the gate, and defendant shot the victim. Y.W. said defendant gave him the gun as they ran away and Y.W. threw it in some bushes. On September 8, Hall was arrested, and Gantt interviewed him. Hall told Gantt that, on the day of the shooting, he was walking with Allen, 4 defendant, and Y.W. Y.W. “said they wanted to rob a Mexican guy the[y] saw for his gold chain.” Hall reported that he said no and started walking away. Seconds later, he heard gunshots. He said defendant had a revolver and told him the victim “was coming at him with some gardening tools and ‘it was either him or me.’ ” Charges and Preliminary Hearing Defendant was charged with the murder of Torres (§ 187, subd. (a)) with the special circumstance allegation that Torres was killed in the commission of a robbery (§ 190.2, subd. (a)(17)(A)). It was further alleged that defendant personally used a firearm (§§ 12022.53, subd. (b); 12022.5, subd. (a)) and discharged a firearm (§ 12022.53, subd. (c)), causing great bodily injury and death (§§ 12022.53, subd. (d); 12022.7, subd. (a)). At the preliminary hearing, coparticipant David Hall was the only witness. He testified that he made a deal with the District Attorney’s Office to testify in exchange for probation and up to a year in county jail. Without the plea bargain, Hall understood he faced a charge of murder and a possible sentence of 25 years to life in prison. Hall testified that, on May 20, 2011, Hall was with defendant, Allen, and Y.W.4 Defendant had a revolver that day; he lifted his shirt up to show Hall the gun. Defendant was “talking about hitting a lick,” which Hall understood to mean robbing someone. Allen and Y.W. also talked about robbing someone. The group took a bus to the Fruitvale BART station and walked toward East 34th Avenue. Allen said something about “looking for Mexicans with gold chains.” Hall understood the plan was to take the gold chains to a pawn shop. 4Hall identified defendant as his friend, Allen as his brother, and Y.W. as someone who “just came with my brother.” 5 Hall testified that, as the group walked on East 34th Avenue toward Foothill, he noticed a man working on his garden who had an iPod and a gold chain. Defendant pointed the man out. According to Hall, there was no discussion about what would happen; no one said who was going to take the chain or who would be the lookout. Allen, Y.W., and defendant all entered the front yard through a gate, and Hall remained on the sidewalk. Allen “went and snatched . . . the chain.” Hall did not see the shooting, but he heard two or more gunshots and started running. Everyone ran, and they ended up at the house of a friend of Hall’s a few blocks away. At the house, Allen showed Hall the gold chain, and defendant described what happened. Hall testified, “[Defendant] said his sweater got stuck, and the guy was going to throw a garden tool at him. [‘]So it was either him or me.[’]” Hall testified defendant “said he had shot him or something like that.” On cross-examination, Hall testified he did not see defendant go in the gate; that was just what defendant told him later.5 Hall testified the victim was facing the trees, and Allen grabbed the chain from behind, so it did not appear the victim knew that Allen was behind him. Hall did not see the victim turn around after Allen snatched the chain. He saw Allen run from the front yard through the gate, but he did not see Y.W. come out of the gate. Hall started running when he heard the gunshots, and he was ahead of his three companions. When they reached his friend’s house, Hall did not see the gun, and he did not know what happened to it. Surveillance footage recorded 5 On redirect, however, Hall testified he saw defendant “inside the fence” slightly more than an arm’s length away from the victim. 6 near the crime scene showed the four teenagers running.6 Hall identified himself as the first person to run by, but he could not identify the order of the others. Defense counsel stipulated that Torres died on May 20, 2011, of one or more gunshot wounds. Defense counsel also noted in his argument that Torres was shot in the back. Defendant was held to answer on the murder charge with the robbery felony-murder special circumstance and firearm enhancement allegations. Plea and Sentence In April 2014, the defendant reached a negotiated disposition and entered a plea of no contest to second degree murder and admitted personal use of a firearm under section 12022.5, subdivision (a). Defense counsel stipulated to a factual basis for the plea based on the police report. The trial court accepted defendant’s plea and admission; the court found a factual basis for the plea citing the police report, documents in the file, and the preliminary hearing. Pursuant to the plea agreement, defendant was sentenced to 19 years to life in prison (15 years to life for the murder conviction, plus four years for the firearm enhancement). Petition For Resentencing Petition and Briefing In June 2019, defendant filed a petition for resentencing under former section 1170.95. In October 2020, the trial court found defendant made a 6Hall testified that the surveillance video was taken around two blocks from where they saw the victim. Other evidence shows the video was recorded perhaps a block’s length or less from where Torres was killed. 7 prima facie case, and counsel agreed to scheduling the evidentiary hearing beyond the 60-day time limit. The parties’ briefing on the petition included extensive exhibits. Defendant submitted Hall’s plea agreement, excerpts of defendant’s August 2011 interview with the police, Hall’s juvenile court records, Allen’s juvenile court records, an aerial photograph of the crime scene neighborhood and still photographs of surveillance video taken near the shooting, and his own mental health and school records. The prosecution submitted Gantt’s police report from October 2011, the preliminary hearing transcript, and the probation report prepared for defendant’s sentencing. Defendant also submitted a declaration from his prior defense counsel, who represented defendant at the time he reached a plea agreement with the district attorney in April 2014.7 Evidentiary Hearing At the hearing to determine whether defendant was entitled to relief, the prosecution had the burden to prove, beyond a reasonable doubt, that 7 Defendant’s prior defense counsel stated that, by defendant’s admission that he acted as lookout in the robbery, he could have been convicted of first degree murder under a robbery felony murder theory as an aider and abettor and therefore faced a prison term of 25 years to life. (And defendant faced additional exposure if he were found guilty of the discharge of a firearm and robbery felony murder special circumstance allegations.) Originally, the district attorney offered a plea to first degree murder and a sentence of 25 years to life in exchange for dismissal of the enhancement allegations; prior defense counsel countered that defendant would plead to second degree murder and 15 years to life; the prosecutor “wanted something in between” and offered second degree murder plus a firearm enhancement for a prison term of 19 years to life. Prior defense counsel stated that he advised defendant to accept the offer because defendant would “obtain[] a sentence with a parole eligibility date 6 years sooner than what he was facing as an aider and abettor.” 8 defendant was ineligible for resentencing because he was guilty of murder under current law. (§ 1172.6, subd. (d)(3); see former § 1170.95, subd. (d)(3), added by Stats. 2018, ch. 1015, § 4.) The evidentiary hearing was held February 4, 2021. The parties agreed the court could decide the matter based on the exhibits attached to the briefing, with minor exceptions.8 In addition, the trial court noted it “reviewed the Court’s own file, and in particular the thing that caught my attention was the sentencing transcript in Mr. Johnson’s case from May 21st of 2014.” The prosecutor argued defendant was ineligible for resentencing because he was the actual killer. He said the evidence showed “three fairly consistent stories” from Hall, Allen, and Y.W, who all “put the gun . . . in Mr. Johnson’s hand,” and “one barely inconsistent story.” Defense counsel argued there was insufficient evidence to establish defendant was the shooter beyond a reasonable doubt. He stated Hall was untrustworthy because he was only willing to cooperate with the prosecution 8 At the start of the hearing, the trial court stated its understanding was that the parties “agreed to submit . . . for the evidentiary showing in this hearing” “all exhibits that were attached to all of [the] briefing.” Defense counsel responded that there was no agreement the probation report could be considered, noting it contained details “that I’m not sure where they came from.” Defense counsel also stated that counsel had agreed the reference in the police report to “a rumor about what Mr. Johnson may have said to a girlfriend about this incident” was “not admissible and should not be considered by the Court.” The court said it would “set that aside,” referring to the alleged statement defendant made to his ex-girlfriend. The court also said it did not read the facts of the offense summarized in the probation report, as it had already read about the incident “in several other places.” The prosecutor objected to the declaration from prior defense counsel discussing the negotiation of the plea agreement. He argued it was irrelevant, but the court found some relevance and admitted the declaration. 9 “in return for a very sweet agreement” under which he was convicted of being an accessory after the fact. He suggested Hall, Allen, and Y.W. may all have decided to tell the police defendant was the shooter (instead of Y.W. as defendant claimed) in retaliation for defendant identifying them to the police. Defense counsel also argued the surveillance video taken a block away from the shooting showed Y.W. was the last person running from the scene and it was “logical to assume from the account we are all given, that the last person to leave the yard through the gate was the shooter.” Trial Court Ruling The trial court denied the petition, finding the prosecution proved beyond a reasonable doubt that defendant was the actual killer and, therefore, was not entitled to relief. Explaining its decision, the court first observed, “there’s four people who are involved in this crime; three give a story that’s consistent when it comes to who the shooter is. One does not.” It acknowledged defense counsel made good points about Hall’s credibility issues, but it found “the impeachment as to Mr. Johnson is eve[n] stronger,” citing defendant’s shifting story to the police. The court found Hall’s testimony credible and it credited Allen’s and Y.W.’s statements to the police that defendant was the shooter. The court also relied on defendant’s change of plea and statement at sentencing. The court noted defendant “admitted the personal use of the firearm; and the only way that the firearm was used in this case, based on the evidence that I’ve seen, was to shoot and kill the victim.” The court continued, “[W]hen Mr. Johnson [wa]s given the opportunity to speak to the victim’s family [at sentencing], this is what he said: ‘If I could go back in time, I would because I made a bad decision. There’s not a day that goes by 10 that I’m not haunted by that fateful evening on May 20th. I would like the Court and the Torres family to know it was never my intentions to hurt anybody. I do not have a murderous heart. I hope and pray that the Torres family will be confident. I know it is never easy to cope with when a loved one is gone, especially sooner than expected. I pray that you guys will hold up and be strong. And I know it has been really emotional on both sides, and in that, we all tend to make mistakes, some greater than others, but it is important that we learn from them and do things better. And mistakes, they affect not only you, but I’ve learned it also affects the people around you. I made a big mistake, one that is going to haunt me for the rest of my life. I’m going to continue to better myself from this experience, and I hope one day the Torres family can forgive me.’ ” The trial court explained, “[W]hen I read that statement to the family, I think it was very appropriate, very mature on Mr. Johnson’s part, but it clearly was an acceptance of responsibility for the murder, in my view. It’s not the statement someone would make who simply hung outside and whose only involvement was to alert the others that the police were coming if he saw them. That’s the statement of a person who feels deeply and truly and sincerely sorry that he killed somebody, and it’s consistent with his no contest plea to second-degree murder. It’s consistent with his admission of personal use of a firearm in this event. It’s consistent with the statements of the other three people. In short, it’s consistent with almost all of the evidence in the case.” DISCUSSION Defendant contends (1) his plea was not an admission he was the actual killer, (2) the trial court erred in relying on hearsay contained in the police report and probation report, (3) the trial court’s reliance on the 11 coparticipants’ statements to police violated Crawford,9 (4) the trial court denied defendant due process when it considered his statement at his sentencing hearing as evidence of guilt (when the parties had not referred to his statement in their arguments), and (5) there is insufficient admissible evidence in the record to support a finding that he was the actual killer. A. Defendant’s Admission of Use of a Firearm In his opening brief, defendant asserts his plea to second degree murder with a firearm-use enhancement was not an admission that he was the actual killer. We have no quarrel with the proposition that admitting firearm use within the meaning of section 12022.5, subdivision (a), is not tantamount to admitting that one is an actual killer. But it does not appear the trial court here treated defendant’s plea as an admission that he was the actual killer. After stating that it relied on the accounts of Hall, Allen, and Y.W. that defendant was the shooter, the court referred to defendant’s plea by observing, “[H]e admitted the personal use of the firearm; and the only way that the firearm was used in this case, based on the evidence that I’ve seen, was to shoot and kill the victim.” We do not understand this to mean the court believed the plea established defendant admitted he was the actual killer.10 Rather, we agree with the Attorney General that the trial court’s 9 Crawford v. Washington (2004) 541 U.S. 36 (Crawford). 10 If the trial court thought defendant previously admitted in court that he was the shooter, it undoubtedly would have led with that finding, but instead the court began by highlighting the fact that, among the four teenaged boys present at the shooting, three identified defendant as the shooter and only one (defendant) identified another person as the shooter. (The court stated, “So to hit what I would describe to you as the highlighted points, there’s four people who are involved in this crime; three give a story that’s consistent when it comes to who the shooter is. One does not.”) Our conclusion that the trial court merely treated defendant’s firearm-use admission as “some evidence” (and not a definitive admission that he was the 12 reasoning shows it considered the fact that defendant admitted a firearm-use enhancement as “simply some evidence” relevant to making its factual finding that defendant was the shooter. Defendant raises a slightly different argument in his reply brief, claiming it was error for the trial court to consider his plea and firearm-use admission at all in deciding the petition. We do not address arguments raised for the first time in a reply brief, “absent a showing why the argument could not have been made earlier” (People v. Newton (2007) 155 Cal.App.4th 1000, 1005), and defendant has not made such a showing. In any event, he offers no authority for the proposition that in an evidentiary hearing to determine whether a petitioner is eligible for resentencing under section 1172.6, the trial court is prohibited from considering the fact the petitioner admitted an enhancement allegation in the underlying criminal case. We therefore reject defendant’s first argument. B. The Trial Court’s Consideration of the Police and Probation Reports Defendant contends the trial court should not have considered hearsay evidence contained in the police report and probation report. The Attorney General argues the court’s consideration of inadmissible hearsay evidence was harmless. shooter) is further supported by the trial court’s evidentiary ruling that defendant’s prior counsel’s declaration was relevant as it related to defendant’s no contest plea and his admission of personal use of a firearm. (See fn. 7.) The declaration offered a reason defendant might have admitted to the firearm enhancement even if he did not use a firearm during the robbery because the sentence agreed to was still lower than what he faced if convicted of first degree felony murder as a (non-shooting) aider and abettor. 13 1. Subsequent Change to the Petitioning Procedure When the evidentiary hearing was held in this case, former section 1170.95, subdivision (d)(3) (former § 1170.95(d)(3)), allowed trial courts to consider “the record of conviction” in deciding whether a petitioner was entitled to relief under the statute.11 Regarding the procedural rules governing evidentiary hearings under former section 1170.95(d)(3), a Court of Appeal observed, “ ‘[T]he Legislature gave the superior court unfettered discretion to consider ‘evidence’ without any restriction at the subdivision (d)(3) hearing to determine the petitioner’s eligibility for resentencing.” (People v. Williams (2020) 57 Cal.App.5th 652, 661, italics added [holding that, under former section 1170.95(d)(3), a trial court was permitted to consider hearsay evidence so long as there was substantial basis for believing the hearsay information was reliable].) Effective January 1, 2022, however, Senate Bill No. 775 (2021-2022 Reg. Sess.) (S.B. 775) deleted reference to “the record of conviction,” and the following language was added: “The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.” (Former § 1170.95(d)(3), as amended by Stats. 2021, ch. 551, § 2, italics added.) 11 From 2019 through 2021, former section 1170.95(d)(3) provided that, “[a]t the hearing to determine whether the petitioner is entitled to relief,” the parties “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Former § 1170.95, subd. (d)(3), added by Stats. 2018, ch. 1015, § 4.) 14 The revisions to former section 1170.95 made by S.B. 775 apply retroactively to cases that are not yet final. (Basler, supra, 80 Cal.App.5th at p. 56.) 2. Forfeiture The Attorney General does not dispute that the new law applies retroactively to defendant’s case, which is not yet final. But he argues defendant forfeited any challenge to the trial court’s use of hearsay evidence described in the police and probation reports because defense counsel failed to object at the evidentiary hearing. We will not deem defendant’s contention forfeited, however, because the law on permissible evidence in an evidentiary hearing under section 1172.6 has changed since the evidentiary hearing in this case, and defense counsel could not have anticipated the change. (People v. Black (2007) 41 Cal.4th 799, 810 [“We long have applied the rule that although challenges to procedures or to the admission of evidence normally are forfeited unless timely raised in the trial court, ‘this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change’ ”].)12 3. Prejudice Defendant argues reversal and remand for a new evidentiary hearing is required because the trial court expressly relied on hearsay evidence that is now inadmissible (see § 1172.6, subd. (d)(3)). The Attorney General responds that any reliance by the trial court on inadmissible hearsay evidence— including Allen’s and Y.W.’s statements to the police described in the police report—was harmless. The Attorney General argues there was 12Because we do not deem the issue forfeited, we need not consider defendant’s argument that any failure to preserve the issue for appeal was the result of ineffective assistance of counsel. 15 overwhelming evidence that defendant was the actual killer, citing (1) Hall’s preliminary hearing testimony that defendant showed him a gun before the robbery and defendant told him he shot the victim after the robbery; (2) defendant’s admissions to the police that he and his companions discussed stealing a chain and that he acted as a lookout; and (3) defendant’s statement of regret at sentencing, which the trial court described as “the statement of a person who feels deeply and truly and sincerely sorry that he killed somebody.” We generally review claims of evidentiary error under the Watson standard; thus, we ask whether it is reasonably probable the outcome would have been more favorable to the defendant absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable probability “in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) It has been said that a reasonable probability is shown when an evidentiary error “ ‘undermines confidence in the outcome of the trial.’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 668.) Appellate review under Watson “focuses not on what a reasonable jury [or trial court acting as fact finder] could do, but what such a jury [or trial court] is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177.) 16 Here, before the court heard argument at the evidentiary hearing, and in the course of discussing the scope of the evidence that would be considered at the hearing, the trial court stated that, as to “the factual aspects of the offense,” the items it had “relied on the most were” Hall’s preliminary hearing testimony, Gantt’s interview with defendant, and the police report summarizing what defendant, Hall, Allen, and Y.W. told the police. After hearing argument from the parties, and when the court announced its ruling, the first point it made was that four individuals were involved in the crime and three of them gave a consistent story about who the shooter was. The court recognized there were reasons to question Hall’s credibility but found there was “stronger” “impeachment” as to defendant. In weighing the competing credibility of Hall and defendant, the court noted, “There is also the matter of both James Allen and [Y.W.], also indicating that Mr. Johnson is the shooter.” We conclude there is a reasonable chance, more than an abstract possibility, that the outcome would have been more favorable to defendant had the trial court not considered Allen’s and Y.W.’s inadmissible hearsay statements. Unquestionably, the trial court relied on their statements in reaching its finding that defendant was the shooter. Without their statements, it was Hall’s testimony against defendant’s statements to law enforcement. No physical or other witness evidence placed the gun with defendant. The trial court noted defense counsel “ma[d]e some certainly good points about [Hall’s] credibility issues,” but it found defendant less credible because he lied to the police about his involvement in the robbery. That defendant initially lied to the police is certainly relevant to his credibility, but it does not necessarily show he was the shooter given that there were four individuals at the crime scene who could have been the shooter. And 17 defendant’s apology at sentencing was not an express admission that he was the shooter and was viewed as inculpatory by the trial court in light of “the statements of the other three people.” (Italics added.) On this record, we think it is reasonably probable that Allen’s and Y.W.’s hearsay statements corroborating Hall’s testimony and expressly identifying defendant as the shooter could have been the evidence that tipped the scale for the trial court to credit Hall’s version of events over defendant’s and thus determine that defendant was the shooter beyond a reasonable doubt. It merits a remand for the trial court to determine whether defendant is entitled to relief under section 1172.6 in a new evidentiary hearing.13 13 The Attorney General also argues the trial court’s consideration of hearsay evidence was harmless because there was overwhelming admissible evidence that defendant was guilty of murder as a major participant in the underlying robbery who acted with reckless indifference to human life. (See Strong, supra, 13 Cal.5th at p. 708 [“Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2’ ”].) We reject this argument because the Attorney General cannot now rely on a theory of murder liability the prosecution did not argue below, and we do not address it on the merits. At the evidentiary hearing, defendant was entitled to resentencing unless the prosecution could prove to the trial court beyond a reasonable doubt that defendant is guilty of murder under current law. (§ 1172.6, subd. (d)(3); Strong, supra, 13 Cal.5th at p. 709.) The prosecution in this case never argued defendant was guilty of murder under the theory he was a major participant who acted with reckless indifference to human life, and the trial court did not find defendant guilty of murder under this theory. A determination by a reviewing court that there may be substantial evidence to support this theory of murder liability would not satisfy the statutory requirement of a finding of guilt beyond a reasonable doubt and, therefore, would not be sufficient to deny defendant’s petition. (See Strong, at p. 720 [“a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing,” and an 18 Accordingly, we reverse the order denying defendant’s petition and remand for a new evidentiary hearing at which the parties may present evidence in accordance with section 1172.6. (See People v. Cooper (2022) 77 Cal.App.5th 393, 418 [where the trial court erred in the evidentiary hearing on a petition under former section 1170.95, the appellate court concluded it was “appropriate to remand the matter for a new hearing on whether [the petitioner] is entitled to relief”].) C. The Court’s Consideration of Defendant’s Sentencing Statement Defendant also argues the trial court demonstrated bias or appearance of bias by considering defendant’s statement made at the sentencing hearing when the parties did not offer the statement as evidence or argue about its significance, and that the remedy for this alleged bias is remand to a different judge to conduct the new evidentiary hearing. We disagree with defendant’s claim that the trial court exhibited bias. It does not appear to us that the court departed from its role as neutral factfinder. The court did not “persist[] in making discourteous and disparaging remarks to a defendant’s counsel” (People v. Mahoney (1927) 201 Cal. 618, 627) or make remarks that “give the appearance the court held preconceived ideas” that raise doubts about the fairness and impartiality of the proceeding” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 455, disapproved of on another point by People v. Freeman (2010) 47 Cal.4th 993) as in the cases cited by defendant. Instead, it “after-the-fact” court review does “not involve a determination beyond a reasonable doubt”].) Consequently, the Attorney General’s claim for the first time on appeal that defendant could have been found guilty of murder under an unargued, alternative theory would not show harmlessness even if true. 19 appears the court conducted the hearing under the law that it believed was applicable at the time.14 D. Sufficiency of the Evidence Finally, defendant contends there is insufficient admissible evidence to support a finding he was the actual killer and, therefore, he is entitled to resentencing as a matter of law. Defendant argues this court should conduct our review without giving deference to the trial court’s credibility findings because the court relied on documentary evidence and not live testimony. This argument was rejected by the Fourth District Court of Appeal in People v. Clements (2022) 75 Cal.App.5th 276, 301. The Clements court reasoned that a ruling after an evidentiary hearing on a petition for resentencing is predominantly a factual determination, and where a determination is a question of fact, there is “ ‘no reason to withhold the deference generally afforded to such factual findings.’ ” (Ibid., quoting People v. Perez (2018) 4 Cal.5th 1055, 1066.) Division Four of our court recently followed Clements in People v. Sifuentes (2022) 83 Cal.App.5th 217, 232-233.) We agree with Clements and Sifuentes and reject defendant’s argument. Accordingly, we review defendant’s claim under a substantial evidence standard. (Clements, supra, 75 Cal.App.5th at p. 298 [reviewing trial court’s ruling on a petition under former section 1170.95 by “ ‘ “examin[ing] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt” ’ ”].) Because we are reversing the court’s order, we need not consider 14 defendant’s Crawford/Sixth Amendment and due process claims. 20 In this case, defendant does not dispute that Hall’s preliminary hearing testimony is admissible evidence. Nor does he challenge the trial court’s consideration of his own statements to the police as reflected in the interview transcript he submitted in support of his petition. Defendant’s statements show he was with Hall, Allen, and Y.W. on the day of the killing and their plan was to steal a gold necklace. Hall’s testimony supports findings that defendant had a gun earlier that day, that he talked about robbing someone, and that he entered the front yard and was near the victim before the shooting. Hall’s testimony further establishes that defendant admitted he shot Torres soon after the killing. This is substantial evidence supporting a determination defendant was the actual killer. On remand, however, it will be up to the prosecution to prove beyond a reasonable doubt that defendant is not entitled to relief under section 1172.6. DISPOSITION The order of February 4, 2021, denying defendant’s petition for resentencing under former section 1170.95 is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing in accordance with section 1172.6. 21 _________________________ Miller, J. WE CONCUR: _________________________ Stewart, Acting P.J. _________________________ Van Aken, J.* A162177, People v. Johnson *Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 22	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484730/	Filed 11/17/22 P. v. Bathum CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B306784 Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA451669 v. CHRISTOPHER J. BATHUM, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Richard D. Miggins for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Defendant and appellant Christopher Bathum owned a drug rehabilitation therapy network and held himself out as a therapist or counselor. A jury convicted him of multiple crimes against a number of the network’s female clients, including rape, sexual penetration with a foreign object, forcible oral copulation, sexual exploitation, furnishing methamphetamine, and furnishing heroin. He was sentenced to a total of 52 years and 8 months in state prison. Bathum contends his convictions should be reversed for many reasons. Among other things, he argues his convictions are not supported by substantial evidence; the trial court erred by denying his post-trial motions for relief based on an alleged Brady violation; defense counsel was ineffective in several respects; certain evidence should have been excluded at trial; and the trial court made several errors when instructing the jury.1 As discussed below, we conclude Bathum’s contentions are all meritless. Accordingly, we affirm the judgment. PROCEDURAL BACKGROUND In June 2017, the Los Angeles District Attorney filed an amended information charging Bathum with 50 crimes, as summarized in the chart below. 1 Due to the number and nature of the convictions, and the numerous assertions of error, this opinion is lengthy, and unavoidably contains sexually explicit references. 2 COUNT CRIME STATUTE VICTIM 1, 6 Rape Pen. Code2, Hayley G. § 261, subd. (a)(2) 10 Rape by use of § 261, subd. Stephanie J. drugs (a)(3) 2, 5, 17, Sexual § 289, subd. Hayley G. (Counts 20 penetration by (a)(1)(A) 2, 5) foreign object Amanda J. (Count 17) Dana R. (Count 20) 3, 4 Forcible oral Former Hayley G. (Counts copulation § 288a, subd. 3,4) (c)(2)(A) 7-9, 11- Sexual Bus. & Prof. Hayley G. (Counts 14, 16, exploitation Code, § 729, 7-9) 18-19, subd. (a) Stephanie J. 22, 23, (Counts 11-14, 16) 27, 29, Amanda J. 32-42, (Counts 18-19) 49, 50 Alexxis A. (Count 22) Brittni J. (Counts 23, 49) Amanda S. (Count 27) 2 All undesignated statutory references are to the Penal Code, with the exception of Business and Professions Code section 729, which is frequently referred to as “section 729.” 3 COUNT CRIME STATUTE VICTIM Brittney D. (Count 29) Jennifer I. (Counts 32-42) Ruah D. (Count 50) 15, 21, Furnishing Health & Saf. Not specified in 26, 28, methamphetamine Code, § 11379, information 31, 43- subd. (a) 46, 48 24, 25, Furnishing heroin Health & Saf. Not specified in 30, 47 Code, § 11352, information subd. (a) The trial court dismissed counts 7 and 8 as barred by the statute of limitations before trial. Counts 41 and 42 were dismissed at the close of evidence as being outside the time alleged. The jury deadlocked on counts 10, 17, and 20. It found Bathum not guilty on counts 13, 14, 23, 29, 35 through 40, 44, and 50. It convicted him on all the other counts. On counts 9, 11, 12, 16, 18, 19, 22, 27, 32 through 34, and 49, the jury found true the allegation he committed the offense of sexual exploitation against more than one victim.3 3 In the criminal justice system, people against whom crimes have been committed, including crimes of a sexual nature, are referred to as “victims.” We understand and respect that some of those people may prefer other, more empowering descriptors, particularly when referring to themselves. 4 Bathum’s sentence of 52 years and 8 months in state prison was calculated as follows: on counts 1 through 6, a high term of 8 years on each count, to be served consecutively; on count 11 (selected as the base count), a term of 16 months, to be served consecutively; on counts 18, 22, 27, 32, and 49, a term of 8 months (one-third the mid-term) on each count, to be served consecutively; on counts 9, 12, 16, 19, 33, and 34, a high term of 3 years on each count, to be served concurrently; on counts 15, 21, 26, 28, 31, 43, 45, 46, and 48, a high term of 4 years on each count, to be served concurrently; and on counts 24, 25, 30, and 47, a high term of 5 years on each count, to be served concurrently. Bathum timely appealed. FACTUAL BACKGROUND Bathum owned the multi-facility drug rehabilitation networks known as Community Recovery of Los Angeles (CRLA) and Community Recovery of Colorado (CRCO). Although not a licensed physician or psychotherapist, he led meetings with staff on client treatment teams and facilitated a weekly trauma therapy group, which clients were required to attend. He also led family constellation groups, where clients role-played to address issues in their familial relationships. In both groups, clients shared intimate details about their lives, such as their experiences with family, abuse, loss, and neglect. No other counselors or therapists assisted him in these sessions. Bathum told clients he was a licensed or certified hypnotherapist and led hypnotherapy groups. In addition, Bathum facilitated weekly, spirituality-based sessions in a sweat lodge, which was a tent covered in blankets. During those sessions, Bathum led chants and prayers with a group of nine to ten clients. The tent was dark inside, and water was poured over 5 hot coals placed in a hole in the center of the tent to create a hot, steamy environment. Bathum’s convictions arose out of his interactions with 13 different clients between 2012 and 2016. Relevant portions of their testimony at trial are summarized below. A. Hayley G. – Counts 1 through 6 and 9 Hayley G. checked into CRLA in September 2012 when she was addicted to Xanax. She met Bathum on her second day of treatment. Sometime before February 2014, while still a CRLA client, Hayley became Bathum’s personal assistant. Her duties included helping with paperwork, driving him to different CRLA facilities, and assisting him with renovation projects. Hayley was involved in three incidents relevant to this appeal. The first occurred in February 2014, at a CRLA facility called Adams House. After running a group session and a staff meeting, Bathum told her that he wanted to show her the house next door because he intended to purchase it. He planned to have an office and open more therapy rooms there. About an hour before taking her into the house, Bathum gave Hayley Xanax, which she consumed. Hayley and Bathum were alone in the house. After giving her a tour, Bathum led Hayley into a room. He sat down on the ground in the middle of the room and told her to sit with him. She complied, and Bathum began rubbing her shoulders. He took off his shirt and, upon his request, Hayley massaged his back, shoulders, and neck while he laid on his stomach. After she massaged Bathum for a while, Hayley recalled her shirt came off, and Bathum took her bra off. He laid her down onto her stomach, massaged her back, and touched her breasts. 6 Subsequently, Hayley testified Bathum grabbed her and flipped her over onto her back. He then forced her to perform oral sex on him, digitally penetrated her, and had sexual intercourse with her. The details of her testimony relating to his use of force in accomplishing these sexual acts are discussed in section I.B below. The second incident occurred either soon before or soon after the incident above, while Hayley and Bathum were driving through traffic on the freeway. While Hayley was driving, Bathum crawled from the front passenger seat into the backseat behind Hayley and began massaging her shoulders and temples. He then reached into her shirt, touched and stroked her breasts, and massaged and pinched her nipples under her bra. After touching her on her abdomen, Bathum touched Hayley on her vagina over her pants and unbuttoned her pants. He placed his hands into her pants, under her underwear, and stuck his fingers into her vagina. The third incident occurred in March 2014, when Bathum asked Hayley to meet him at another home he intended to purchase, which later became the CRLA facility known as Summer Hill. She agreed and drove herself to the property. Kirsten Wallace, one of Bathum’s assistants, and a real estate agent were also going to meet them there. Bathum was alone at the property when she arrived, and he showed her around the house. Eventually, Bathum showed Hayley one of the bedrooms, which had a bed inside. As they entered the room, Bathum undid his belt and removed his clothes from the waist down. He then grabbed Hayley by the arm and pushed her backwards onto the bed. She landed on her back, with her feet and legs dangling off the edge of 7 the bed. After removing Hayley’s pants and underwear, Bathum performed oral sex on her, digitally penetrated her, and had sexual intercourse with her. Again, the details of her testimony on his use of force to accomplish these sexual acts are discussed in section I.B below. B. Alexxis A. – Count 22 When Alexxis checked into CRLA at the end of August of 2014, she was addicted to opioids and heroin. She met Bathum in her first week of treatment while attending a group session in the sweat lodge. While a CLRA client, Alexxis resided at a facility known as Lechuza. On at least three occasions, Bathum contacted her and asked her to meet him at the Summer Hill facility. He also invited her to his home more than once. In these meetings, they often discussed intimate details about her past. On one occasion, Alexxis was alone with Bathum in his office at his home. At first, they were sitting next to each other on different chairs and looking at photographs on his computer. Afterwards, Bathum offered to lead Alexxis through a guided meditation. Bathum asked Alexxis to move from her chair and sit on his chair between his legs. When she did, Bathum began whispering in her ear and massaging her arms. He continued to whisper while moving his hands up her arms, and then to her chest area. Bathum moved his hands from her chest to her breasts and touched and rubbed them under her shirt and bra. Alexxis ended the encounter by “mumbl[ing] something about going back outside and shimm[ying] away and off his lap.” 8 C. Dana R. – Count 20 When Dana checked into CRCO in March 2015, she was addicted to heroin, methamphetamine, and Xanax. Five-and-a- half months after checking into CRCO, she was transferred to CRLA. On an unspecified date, Bathum drove Dana and two of her friends, Melissa and Brittni J., to the Malibu Riviera Motel and rented a room. When the four of them entered the room, Dana saw Bathum holding a prescription pill bottle with his name on it containing methamphetamine. Bathum offered her some of the methamphetamine, and all four of them used it by injection. Later that night, Bathum left the room while the women remained. The next night, Bathum returned to the motel. Brittni and Dana left the room and purchased heroin using money Bathum had given to them. When they returned, Melissa injected Bathum with the heroin. Shortly thereafter, Dana saw him displaying symptoms of overdosing. Brittni called 911. Dana hid behind the dumpster at the motel when the paramedics arrived. She saw them take Bathum away. D. Brittni J. – Counts 24, 25, 26, and 49 Brittni checked into CRLA in April 2015. She was addicted to heroin and pain pills. After being a CRLA patient “for a little while[,]” Brittni was formally introduced to Bathum at a family day event. Around September 2015, Bathum invited Brittni and her friend, Amanda S., to hang out with him at the Anza Hotel in Woodland Hills. The two of them drove to the hotel in Amanda’s car and met him in a room. 9 Upon entering the room, Brittni and Amanda sat on the bed with Bathum and “talked for a minute.” At that point, he took a bag of crystal methamphetamine out of his pocket and asked if they wanted to get high. Although Brittni had not seen crystal methamphetamine before, she testified either Bathum or Amanda told her that the substance he had was crystal methamphetamine. Bathum placed the methamphetamine into a glass pipe and smoked it. He then passed it to Amanda, who smoked it, and passed it to Brittni. Brittni then smoked from the pipe. After they passed the pipe around a couple times, Bathum told Brittni and Amanda that he wanted to do a meditation with them. Per his instruction, Brittni and Amanda laid down on the bed with him. Bathum was in the center between them, while Brittni was on his left side and Amanda was on his right side. Bathum told Brittni to close her eyes while listening to his words. As Bathum was talking, Brittni felt him touching her leg with his hand. He proceeded to touch her on the stomach. Subsequently, he lifted her shirt up and groped her breasts under her bra. At that point, Brittni opened her eyes and saw Bathum “doing the same thing to Amanda.” Bathum then placed his hands down Brittni’s pants and started rubbing her vagina over her underwear. Shortly thereafter, he went under her underwear and stuck his fingers into her vagina. While Bathum was touching her, Brittni saw him touching Amanda on her vagina. At some point, the incident ended. Bathum provided Brittni and Amanda with additional crystal methamphetamine, and both of them returned to the CRLA facility where they were residing. 10 Around Thanksgiving 2015, Bathum invited Brittni to the Four Seasons Hotel to hang out. When she arrived at the hotel room, she saw three other women whom she recognized. One of them was Brittney D. Brittni observed black tar heroin, crystal methamphetamine, needles, a glass pipe, and aluminum foil on a table. She injected and smoked the methamphetamine, as well the heroin. Brittni testified that later, on an unspecified date, Bathum arranged for her, Melissa, and Dana R. to go to the Malibu Riviera Motel. When they arrived, Bathum was already there, and had booked a room. After the three of them entered the motel room, Bathum took a medicine bottle containing crystal methamphetamine and a plastic bag containing black tar heroin out of his jacket pocket. Using needles, aluminum foil, and a pipe provided by Bathum, Brittni smoked and injected the methamphetamine and the heroin. That night, while Brittni was sitting on the bed, Bathum took off her underwear and put his mouth on her vagina. Either that same night or the night after, as noted above, Bathum overdosed on heroin Brittni had purchased with Dana R. E. Amanda S. – Counts 27 and 28 Amanda S. checked into CRLA in May 2015. She was addicted to heroin and had done methamphetamine in the past. About six months after checking in, she and Brittni J. told Bathum they had been craving drugs and wanting to use them. A week later, he invited the two of them to the Anza Hotel. They accepted his invitation and drove to the hotel in Amanda’s car. Ten minutes after arriving to the hotel room Bathum had booked, Bathum opened a drawer on the nightstand to the left of the bed. Inside, Amanda saw a pill bottle containing 11 methamphetamine and “a meth pipe.” Bathum loaded the pipe with the methamphetamine and smoked it. He passed the pipe to Amanda and Brittni, who both smoked from the pipe. After they smoked, the three of them sat on the bed while talking about hypnosis and whether it really works. Bathum attempted to hypnotize Amanda and Brittni. During the hypnosis session, Amanda and Brittni were laying on their backs. Bathum held their hands while talking. About five minutes into the session, Amanda felt his hand caressing her vagina on the outside of her pants. Bathum touched her in this manner “for a minute or two.” As he did so, her eyes were closed. Bathum then placed his hand inside Amanda’s pants. She opened her eyes, looked over to her left, and saw his other hand was in Brittni’s pants. Bathum touched Amanda’s vagina with his finger under her underwear. F. Amy W. – Counts 47 and 48 Amy checked into CRLA in February 2015 and was a CRLA client for approximately 10 months. She was addicted to heroin and methamphetamine. In June 2015, Amy sent Bathum a text message asking if he wanted to get high with her one last time, as she planned to check into a sober living facility unaffiliated with CRLA. He responded he would be at work until noon, and told Amy to meet at his house around that time. Amy met Bathum at the guesthouse next to his home. After they sat down in the living room and talked for a bit, Bathum took out a bag with three orange medication bottles inside. One contained cocaine, another contained methamphetamine, and the third contained heroin. Bathum and Amy each snorted a line of 12 cocaine. They also smoked the methamphetamine and heroin off of tinfoil. G. Brittney D. – Count 30 Brittney D. checked into CRCO on November 2, 2015. She was addicted to opioids, Percocet, and heroin and had “dabbled with” methamphetamine in the past. Twenty days into her treatment, Bathum contacted Brittney’s girlfriend at the time, who was a nurse on staff at CRCO, and offered to pay her $500 to meet him at the Four Seasons Hotel in Los Angeles. Subsequently, Brittney and her girlfriend drove to the hotel with another client. They arrived at the hotel on the night before Thanksgiving 2015. When they walked into the hotel room, Brittney D. saw black tar heroin and methamphetamine on the table. At Bathum’s request, she injected him with methamphetamine. He told Brittney she could use as much of the drugs as she wanted. Shortly thereafter, she injected herself with heroin. H. Amanda J. – Counts 18 and 19 Amanda J. was a patient at CRLA from October 2015 to January 2016. She was addicted to alcohol. On December 30, 2015, Amanda was working on a project when a CRLA site manager informed her that Bathum was going to purchase new reading glasses for her at Costco. She was instructed to get into a van with a few other clients who were going to go to an A.A. meeting, and to tell those clients she was meeting her mother at Costco to purchase reading glasses. At the time, her glasses were not broken or giving her any issues. The van dropped Amanda off at Costco, where Bathum was pacing near the store entrance. After walking around inside the 13 store, he led her toward the exit. Amanda followed him, and they left the store. Outside, he said, “‘Let’s get in my car.’” Although she initially expressed feeling uncomfortable, she ultimately complied because she “realized [she was] not really getting out of this.” In the car, Bathum stated they were going to the Four Seasons Hotel, where he had gotten a room. When they entered the hotel room, Bathum started taking his clothes off. Upon his request, Amanda did the same and laid down on her back. At that point, Bathum placed his mouth on her vagina. Then, he put his fingers inside her vagina. When she told him “that’s enough[,]” Bathum asked her to perform oral sex on him. She agreed and did so briefly. After the incident ended, Bathum drove her back to CRLA. I. Mollie W. – Count 31 Mollie checked into CRLA at the end of 2015. She was addicted to heroin and methamphetamine. In December 2015, Mollie went to the Anza Hotel in Calabasas. When she got to the hotel room, she saw one or two other people there, including Amanda S. Bathum arrived shortly afterwards. He took an orange pill bottle with no labeling on it out from his jacket pocket and placed it on the dresser. The bottle contained methamphetamine. Subsequently, everyone in the room, including Mollie, smoked the methamphetamine using a pipe. She also injected Bathum with methamphetamine. 14 J. Jennifer I. – Counts 32 through 34 and 434 Jennifer I. became a CRLA client in November 2013. She was addicted to a variety of drugs, including benzodiazepines, Xanax, Subutex, opiates, Dilaudid, and heroin. She also used cocaine “here and there.” Jennifer met Bathum during her first week of treatment, and became his personal assistant about 60 days into treatment. Between March 1 and April 30, 2014, while she was his assistant and a CRLA client, Jennifer and Bathum were involved in three incidents. In the first incident, the two of them were driving to Bathum’s home when they pulled over to the side of a road in Agoura Hills. Jennifer had previously told him she had been a dancer at a club. In the car, Bathum told Jennifer that he never had a lap dance or been to a club before, and asked her to give him a lap dance. She agreed and performed a lap dance on him as he sat in the passenger seat. As she did so, Bathum touched her breasts over and under her clothes. During the second incident, Bathum attempted to hypnotize Jennifer while they were pulled over by the side of the road. Jennifer was sitting in the driver seat, and Bathum got into the backseat. After telling her to close her eyes and relax, he reached around her seat and groped her breasts over and under her clothes. The third incident arose when Bathum told Jennifer and her sister Stephanie J., who was also a CRLA client, to meet him 4 Jennifer I. died shortly after testifying at the preliminary hearing. Her preliminary hearing testimony was read into the record at trial. 15 at the W Hotel. She and Stephanie drove to the hotel in her car. Bathum paid for a room in cash, and the three of them went to the room. There, Jennifer told him that she wanted heroin. He gave her money to purchase the drugs and left the hotel. She and Stephanie then left the hotel, purchased heroin and cocaine, and came back. Bathum returned to the hotel room with a bag of methamphetamine. The three of them smoked and snorted the methamphetamine. Stephanie injected Bathum with heroin. Later that night, Jennifer and Stephanie took turns having sexual intercourse with Bathum. K. Stephanie J. – Counts 11, 12, 15, and 16 Stephanie was a CRLA client in 2013. She was addicted to heroin. Stephanie and Bathum were involved in three incidents relevant to this appeal. The first incident occurred during a group session in the sweat lodge. At the time, she “was wearing [her] bathing suit and something over it, probably a dress.” When she went inside, Bathum asked Stephanie to sit next to him, and she agreed. During the session, Bathum was sitting to Stephanie’s left. While the tent’s door was closed, she felt Bathum’s hand rubbing the inside of her left thigh. He then used his fingers to trace the bottom rim of her bathing suit near her vagina. At that point, his fingers were “within an inch” of her vagina. She left the tent the next time the door opened. The second incident arose when Bathum drove Stephanie and her sister, Jennifer I., to the W Hotel in Hollywood. After drinking at the hotel together for a couple of hours, Bathum stated he needed to go home and check on his family, but that he 16 would return with methamphetamine. They told him that if he was going to bring methamphetamine, they wanted heroin as well. Because he did not know where to find any heroin, he gave them money to purchase some. Stephanie and Jennifer picked up the heroin, brought it back to the hotel, and used it intravenously. Subsequently, Bathum returned to the hotel room with a “plastic baggie” containing methamphetamine. Stephanie and Jennifer used the methamphetamine intravenously, and Stephanie injected Bathum with heroin. Stephanie testified that, later that night, “there [was] sex[ ] . . . between [her] and [Bathum.]” She also testified “there [was] sex between [Jennifer] and [Bathum.]” The third incident took place at the Summer Hill facility during a family day event. Bathum asked Stephanie to meet him in his office. After they entered his office, he locked the door behind him. He led her through a small door behind his desk, into a space resembling an attic or closet with a mattress pad inside. Bathum shut the small door and laid down on the mattress pad. He told Stephanie to lay down with him and pulled her down by her hand. They laid down together for about three hours, during which he dozed off several times. Eventually, Bathum began to touch Stephanie. He started by “petting [her] head.” Subsequently, he used one of his hands to push her head down toward his penis. When her head was close to his penis, he unzipped his pants and pulled down his pants and underwear. At that point, Stephanie “went with it” and performed oral sex on him. 17 L. Erika B. – Count 45 Erika checked into CRLA in November or December 2013. She was addicted to heroin and methamphetamine. In July 2014, Erika relapsed on heroin she had found in a book amongst her belongings. A couple weeks later, she told Bathum that she wanted to leave CRLA because, despite being in treatment for six months, she had relapsed and still wanted to get high all the time. Bathum asked whether she would stay if she could get high with him once a month in secret. Erika responded, “‘Maybe.’” Two days later, Bathum picked Erika up from her CRLA residence and took her to his house, where they went to his office. Bathum opened a drawer and removed an Altoid container containing what appeared to be three grams of crystal methamphetamine. Erika placed the methamphetamine on a piece of aluminum foil, heated it up with a lighter, and took turns inhaling the vapor using a straw with Bathum. M. Ruah A. – Count 46 Ruah A. checked into CRCO in December 2014. She was seeking treatment for depression and anxiety and had not done drugs before. Five months later, Ruah was transferred to CRLA. Ruah developed a strong relationship with Bathum. She felt comfortable around him and opened up to him about a variety of personal matters, including her history of trauma and abuse. Although Ruah left CRLA after a couple of months, she returned two months later due to pressure from her parents. She began living at a CRLA sober living facility in August 2015. While she was living at the sober living facility, Ruah told Bathum she was going through a lot of stress in her life. In 18 response, Bathum invited Ruah to his home and offered to conduct a hypnotherapy session with her. When she got to his home, the two of them sat in his office and talked. Bathum told Ruah she was emotionally unstable, and that he wanted to do a hypnotherapy session with her. Further, he stated that “if [she] did . . . crystal, it would make [her] more open to . . . [her] feelings and [her] spirituality[.]” At that point, Ruah saw Bathum had made lines of crystal methamphetamine under his keyboard. They each snorted one of the lines using a hollowed-out Bic pen. He then unsuccessfully attempted to hypnotize her. DISCUSSION I. Sufficiency of Evidence – Bathum’s Use of Force to Accomplish Sexual Acts with Hayley G. A. Governing Principles and Standard of Review 1. Use of Force to Accomplish Sexual Acts For a defendant to be convicted of rape under section 261, subdivision (a)(2), forcible sexual penetration under section 289, subdivision (a)(1)(A), or forcible oral copulation under former section 288a subdivision (c)(2)(A), the prosecution must prove the defendant accomplished the relevant sexual act or acts “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury” on the victim or another person. (§ 261, subd. (a)(2); § 289, subd. (a)(1)(A); former § 288a, subd. (c)(2)(A).) In People v. Griffin (2004) 33 Cal.4th 1015 (Griffin), our Supreme Court “examined the force necessary for forcible rape under section 261, subdivision (a)(2), rejecting the argument that the offense requires the use of physical force substantially 19 different from or substantially greater than that necessary to accomplish an act of consensual sexual intercourse.” (People v. McCann (2019) 41 Cal.App.5th 149, 155-156, citing Griffin, supra, at pp. 1018-1019.) The Supreme Court noted that “it has long been recognized that ‘in order to establish force within the meaning of [the rape statute], the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. [Citation.]” (Griffin, supra, at pp. 1023-1024.) After examining the rape statute’s evolution and legislative history, as well as the then-existing case law on the issue, the Supreme Court held: “The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction. [Citation.] Nor has the rape law ever sought to quantify the amount of force necessary to establish the crime of forcible rape . . . .” (Id. at pp. 1027-1028, italics in original.) Accordingly, when evaluating whether the defendant has used “force” within the meaning of section 261, subdivision (a)(2), 20 “[t]he question for the jury [is] . . . simply whether [the] defendant used forced to accomplish intercourse with [the victim] against [his or her] will, not whether the force [the defendant] used overcame [the victim’s] physical strength or ability to resist [the defendant].” (Griffin, supra, 33 Cal.4th at p. 1028.) Applying Griffin, California appellate courts have held that the force required for sexual penetration under section 289, subdivision (a), and for oral copulation under former section 288a, is force which is sufficient to overcome the victim’s will. (See People v. McCann, supra, 41 Cal.App.5th at p. 156 [applying Griffin to section 289]; People v. Guido (2005) 125 Cal.App.4th 566, 575-576 [applying Griffin to former section 288a].) 2. Appellate Review of Sufficiency of Evidence Underlying a Conviction “‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs the evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).) “It is well settled that ‘unless the testimony is physically impossible or inherently improbable, 21 testimony of a single witness is sufficient to support a conviction.’ [Citation.]” (People v. Ghobrial (2018) 5 Cal.5th 250, 281.) Thus, “[o]ur power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.] The test on appeal is not whether we believe the evidence at trial established the defendant’s guilt beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) “Given this deferential standard of review, a ‘defendant bears an enormous burden in claiming . . . insufficient evidence’ to support a conviction. [Citation.]” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.) B. Analysis Bathum contends his convictions on counts 1 through 6 must be reversed because there was insufficient evidence showing he accomplished the sexual acts with Hayley G. at Adams House and Summer Hill by way of force. In support of his position, Bathum asserts Hayley never objected—verbally or physically—to any of the acts, that he did not attack or strike Hayley, and that he did not physically restrain her or manipulate any parts of her body against her will to accomplish the acts. We disagree with Bathum’s argument. Applying the legal principles and deferential standard of review set forth above, we conclude the record contains substantial evidence from which a reasonable trier of fact could find that, beyond a reasonable doubt, he accomplished the relevant sexual acts by way of force. With respect to the Adams House incident, Hayley testified that after massaging her back and breasts while she was laying 22 on her stomach, Bathum grabbed her and flipped her over onto her back. According to Hayley, he placed one of his hands on the back of the upper part of her neck, pushed her head down toward his groin, and “shoved his penis in[to] her mouth.” Bathum placed his other hand on her shoulder, and then her neck. With both hands tightly gripped on the back of her neck, Bathum controlled where her neck was going. Hayley testified she did not move her head to Bathum’s penis on her own, that he had “directed [her] to do” what she was doing , and that she felt she did not have control over the movement of her head. While his penis was in her mouth, she squirmed, moving her hips and upper body around, but was unable to break free. Hayley testified Bathum then flipped over, placed his forearm in a 90-degree bend, pressed it against her upper chest just below her neck and collarbone, and pushed her back to the ground, applying sufficient pressure to cause her pain and make it difficult for her to breathe. Feeling all of Bathum’s weight on her, and the pressure on her chest from his arm, Hayley felt “nailed to the floor.” Bathum took off her clothing from the waist down. He kept his arm across her chest, although he did move it slightly lower, as he performed oral sex on her. After Bathum penetrated her vagina with his fingers, she was “slightly crying” and told Bathum: “‘I’m not feeling good. I don’t know what to do. I can’t – I’m not feeling good.’” Although Hayley was sure he had heard her, he did not respond and instead put his penis in her vagina. She testified that she squirmed throughout the time he was having intercourse with her, moving her hips and upper body to “tell him [her]self that ‘this isn’t right,’ [and] to try to . . . break from it.” Nonetheless, 23 she was unable to break free from Bathum because he “had tight grips on [her].” Hayley testified Bathum was more aggressive during the Summer Hill incident, and that he took control right as they entered the bedroom in the house. Bathum grabbed Hayley by the arm and pushed her backwards onto the bed. When he took her clothes off from the waist-down, Hayley said, “‘I don’t want to do this[,]’” because Kirsten and the real estate agent could arrive at any minute. Using one of his hands, he alternated between holding her down by the chest and touching her breasts while he had oral sex with her. As he did so, Hayley was wiggling and crying to herself. After digitally penetrating her, Bathum again placed his forearm, bent in a 90-degree angle, across her chest beneath the collarbone and had sexual intercourse with her. He placed his other arm on her lower back and used it to lift her and “grab[ ] [her] towards him[ ]” in a “forceful” manner. While Bathum was having intercourse with her, Hayley was squirming and crying softly to herself with a blank facial expression and tears coming down her face. Viewing the evidence above in the light most favorable to the judgment, we conclude a rational trier of fact could find that, beyond a reasonable doubt, Bathum accomplished the sexual acts underlying counts 1 through 6 through the use of “force sufficient to overcome [Hayley’s] will.” (Griffin, supra, 33 Cal.4th at p. 1027.) Accordingly, the record contains substantial evidence to support a finding that Bathum used “force” as required under section 261, subdivision (a)(2), section 289, subdivision (a)(1)(A), and former section 288a, subdivision (c)(2)(A). 24 II. Sufficiency of Evidence – Actual and Reasonable Belief Hayley G. Consented to Sexual Acts A. Governing Principles In People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), our Supreme Court “held that a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. [Citation.]” (People v. Williams (1992) 4 Cal.4th 354, 360.) “The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse.” (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn omitted.) “In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances.” (Id. at p. 361.) To obtain a Mayberry instruction, the defendant must show there is “substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (People v. Williams, supra, 4 Cal.4th at p. 362.) Once the defendant has done so, and the trial court has given a Mayberry instruction, the prosecution bears the burden of proving the defendant did not actually and reasonably believe the victim consented. (CALCRIM. Nos. 1000, 1015, 1045.) B. Analysis Bathum contends his convictions on counts 1 through 6 must be reversed because there was insufficient evidence showing he did not actually and reasonably believe Hayley consented to the sexual acts during the Adams House and 25 Summer Hill incidents. In support of his position, he largely reiterates she did not object—physically or verbally—to any of the acts during either incident. We are not persuaded by Bathum’s argument. Viewed in the light most favorable to the judgment, the evidence discussed in section I.B above demonstrates that during both incidents: (1) Bathum ignored Hayley’s verbal statements indicating she did not want to engage in sexual activities with him; (2) she was squirming around and moving her body in an effort to break free from Bathum; (3) Bathum held her down by placing his forearm bent in a 90-degree angle across her chest, just beneath her collarbone; and (4) Hayley was crying as he engaged in the sexual acts with her. In addition, during the Adams Hill incident, Bathum used his hand to push her head down toward his penis, shoved his penis into her mouth, and tightly gripped her neck while controlling where it went. Further, during the Summer Hill incident, Bathum used his hand to hold Hayley down by the chest while he orally copulated her. Under these circumstances, we conclude that the record contains substantial evidence from which a rational trier of fact could conclude that, beyond a reasonable doubt, Bathum did not actually or reasonably believe Hayley consented to the sexual acts underlying his convictions on counts 1 through 6. III. Sufficiency of Evidence – Sexual Exploitation Under Business and Professions Code Section 729 A. Governing Statutory Authority Business and Professions Code section 729, subdivision (a) provides, in relevant part: “[A]ny person holding himself or herself out to be a physician and surgeon, psychotherapist, or 26 alcohol and drug abuse counselor, who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client, . . . is guilty of sexual exploitation by a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor.” B. Sufficiency of Evidence Showing Bathum had Sexual Intercourse with Stephanie J. at the W Hotel Bathum contends count 12 must be reversed because the evidence did not demonstrate he engaged in “sexual intercourse” or “sexual contact” with Stephanie within the meaning of section 729 while they were at the W Hotel. He notes that although Stephanie testified “she and [Bathum] had ‘sex[,]’” she did not “testify about what ‘sex’ entailed[.]” Accordingly, he suggests that, in the context of Stephanie’s testimony, “‘sex’ could have been sucking [Bathum’s] toes or whipping him.” He therefore contends Stephanie’s “vague and non-specific[ ]” testimony is “fatal to [his] conviction[.]” Bathum correctly observes that Stephanie did not expressly specify what “sex” entailed when testifying about the incident at the W Hotel. Nevertheless, we conclude his argument is unavailing. As the Attorney General points out, the record contains substantial evidence to support a finding that, beyond a reasonable doubt, he and Stephanie engaged in sexual intercourse during that incident. Stephanie’s testimony regarding a prior incident at a hotel by Venice Beach5 sheds light on what she meant when she 5 Count 10, on which the jury deadlocked, was predicated on this incident. 27 testified “there [was] sex . . . between [her] and [Bathum]” at the W Hotel. Stephanie testified that, while at the Venice Beach hotel with Bathum and Jennifer I., she passed out during the evening, as she had consumed a substantial amount of alcohol earlier that afternoon. Throughout the night, she was in and out of consciousness, and could only recall “snapshots” of what happened. At some point during the night, while Stephanie was laying on her back, she “felt [Bathum] on top of [her] having sex with [her] body[,]” and that he was “[m]oving back and forth like they do when they are having sex.” She testified she felt “[h]is penis go in and out of [her]” while he was “thrusting” with his body. Stephanie’s testimony about the W Hotel incident is further clarified by Jennifer I.’s testimony about the same incident. Jennifer testified she and Stephanie “took turns having sex with [Bathum] in t[he] same bed” in the hotel room. Immediately thereafter, Jennifer clarified that by “sex” she meant that “[Bathum’s] penis would go in [her] vagina.” In sum, on the record before us, viewed in the light most favorable to the judgment, we conclude there is substantial evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, Bathum had “sexual intercourse” with Stephanie as required to sustain a conviction under section 729. (See Bus. & Prof. Code, § 729, subd. (a).) C. Sufficiency of Evidence Showing Bathum had “Sexual Contact” with Stephanie J. in the Sweat Lodge As noted above, in order to prove guilt under section 729, the prosecution must show the defendant “engage[d] in an act of sexual intercourse, sodomy, oral copulation, or sexual contact 28 with a patient or client[.]” (Bus. & Prof. Code, § 729, subd. (a).) For purposes of section 729, subdivision (a), “‘[s]exual contact’ means sexual intercourse or the touching of an intimate part of a patient for the purpose of sexual arousal, gratification, or abuse.” (Id., subd. (c)(3).) Moreover, for purposes of section 729, the words “‘[i]ntimate part’ and ‘touching’ have the same meanings as defined in Section 243.4 of the Penal Code.” (Id., subd. (c)(4).) Section 243.4, subdivision (g)(1) defines “‘[i]ntimate part’” as “the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” Bathum contends his conviction on count 11 is unsupported by the evidence because the prosecution did not show he had “sexual contact” with Stephanie in the sweat lodge. He asserts he only rubbed her thigh and did not touch her vagina during the incident. Thus, he argues that because Stephanie’s thigh is not an “intimate part” of her body for purposes of section 729, his conviction on count 11 must be reversed. In response, the Attorney General argues Bathum’s conviction on count 11 must be affirmed because the evidence shows he touched Stephanie on the groin, and therefore establishes he engaged in an act of “sexual contact” with her within the meaning of section 729, subdivision (c)(3). This issue turns on the meaning of the word “groin.” As the Attorney General points out, neither the Legislature nor other California appellate courts have defined the word “groin” for purposes of section 729 or any other related statutes. Thus, we apply the well-settled principle that, when interpreting a statute, “‘“‘[w]e begin by examining the statute’s words, giving them a plain and commonsense meaning.’”’ [Citation.]” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; see also MacIsaac v. Waste 29 Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083 (MacIsaac) [“We give the words of the statute ‘a plain and commonsense meaning’ unless the statute specifically defines the words to give them a special meaning. [Citations.]”].) “‘When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.’ [Citation.]” (T-Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334, 352 (T-Mobile).) Merriam-Webster’s online dictionary defines “groin” as “the fold or depression marking the juncture of the lower abdomen and the inner part of the thigh[.]” (Merriam-Webster.com Dictionary (2022) [as of Oct. 24, 2022], archived at .) Similarly, another online dictionary defines “groin” as: “1. Anatomy. [T]he fold or hollow on either side of the front of the body where the thigh joins the abdomen. [¶] 2. [T]he general region of this fold or hollow.” (Collins English Dictionary - Complete & Unabridged 2012 Digital Edition (2022) [as of Oct. 24, 2022], archived at .) Stedman’s Medical Dictionary likewise defines “groin” as: “1. Topographic area of the inferior abdomen related to the inguinal canal, lateral to the pubic region. [¶] . . . [¶] 2. Sometimes used to indicate only the crease in the junction of the thigh with the trunk.” (Stedman’s Medical Dict. (online ed. 2014).) Applying these definitions alongside the deferential standard of review governing the sufficiency of the evidence underlying a criminal conviction, we conclude the record contains sufficient evidence to support a finding that Bathum touched 30 Stephanie on her groin in the sweat lodge. Stephanie testified Bathum began by touching her on the inside of her left thigh, and then traced along the bottom rim of her bathing suit near her vagina with his fingers. As he did so, his fingers were “within an inch” of her vagina. Based on this testimony, a rational trier of fact could find that, beyond a reasonable doubt, Bathum engaged in an act of “sexual contact” with Stephanie in the sweat lodge as required under section 729. D. Whether Bathum had “Sexual Contact” with Stephanie J. in His Office Bathum contends there is insufficient evidence showing he engaged in “sexual contact” with Stephanie J. within the meaning of section 729 when she performed oral sex on him in his office. In support of his position, he emphasizes that pursuant to section 729, subdivision (c)(3), “‘[s]exual contact’ means sexual intercourse or the touching of an intimate part of a patient[.]” (Bus. & Prof. Code, § 729, subd. (c)(3), italics added.) Relying on that statutory language and Roy v. Superior Court (2011) 198 Cal.App.4th 1337 (Roy), Bathum contends a defendant may only be convicted of violating section 729 when “the touching of an intimate part of the patient’s body, not the body of the doctor[,]” has been shown. Consequently, he asserts that because “[n]either [his] penis nor Stephanie’s mouth is an intimate part of Stephanie’s body[,]” his conviction on count 16 must be reversed. Bathum’s argument fails because count 16 was not based on the theory that he had “sexual contact” with Stephanie as defined by section 729, subdivision (c)(3). Instead, at trial, the prosecution’s comments during closing argument reflect count 16 was predicated on Bathum engaging in an act of oral copulation with Stephanie. Under the plain language of section 729, 31 subdivision (a), acts of “oral copulation” are separate and distinct from acts of “sexual contact[.]” (See Bus. & Prof. Code, § 729, subd. (a).) As Bathum observes, section 729 restricts liability based on acts of “sexual contact” to situations where the defendant touches an intimate part of the victim. (See id., subd. (c)(3).) The statute, however, does not contain similar language indicating a defendant is liable for sexual exploitation based on acts of “oral copulation” only where the defendant has orally copulated the victim, and not the other way around. (See, generally, Bus. & Prof. Code, § 729.) Roy, supra, 198 Cal.App.4th 1337, is inapplicable. There, the appellate court was tasked with “ascertain[ing] what the Legislature meant by the term ‘sexual relations[ ]’” in Business and Professions Code section 726. (Roy, supra, at pp. 1349.) At the time, that statute read, in relevant part: “The commission of any act of sexual abuse, misconduct, or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action for any person licensed under this division . . . .” (Former Bus. & Prof. Code, § 726, italics added.) Ultimately, the appellate court “reject[ed] the idea that [the petitioner] was exempt from discipline under [Business and Professions Code] section 726 unless he was the giver and not merely the recipient of sexually intimate contact with his patient.” (Roy, supra, 198 Cal.App.4th at p. 1353.) In so doing, the appellate court explained: “Because the Legislature retained the broad, general term ‘sexual relations’ as a ground for disciplinary action in [Business and Professions Code] section 726, while employing the narrower and more strictly defined term ‘sexual contact’ as a predicate for criminal liability upon the same class of practitioners, we must presume it intended the 32 terms to mean two different things. [¶] Acceptance of [the petitioner’s] claim that a unilateral, unreciprocated sexual fondling of a physician by a patient does not fall within the definition of ‘sexual relations’ would compel the conclusion that the Legislature meant ‘sexual relations’ and ‘sexual contact’ to have the same meaning, despite the Legislature’s use of two different terms within the same statutory framework. Such a hypothesis is contrary to the settled rule that ‘[w]hen the Legislature uses different words as part of the same statutory scheme, those words are presumed to have different meanings.’ [Citation.]” (Id. at p. 1352, italics in original.) In short, the appellate court in Roy looked to section 729’s definition of “sexual contact” for guidance when interpreting the term “sexual relations” in Business and Professions Code section 726. (See Roy, supra, 198 Cal.App.4th at pp. 1351-1353.) The court did not interpret the meaning of “oral copulation” under section 729. (See ibid.) Nor did it hold or otherwise suggest criminal liability for “oral copulation” under section 729 arises only where the defendant copulates the victim. (See ibid.) Accordingly, for the reasons discussed above, we conclude the record contains substantial evidence from which a rational trier of fact could find that, beyond a reasonable doubt, Bathum engaged in a prohibited act of “oral copulation” with Stephanie J. in his office at Summer Hill. (Bus. & Prof. Code, § 729, subd. (a).) E. Whether Bathum had “Sexual Contact” with Amanda J. at the Four Seasons Hotel Counts 18 and 19 pertained to an encounter at the Four Seasons Hotel, during which Bathum and Amanda J. performed oral sex on each other, and Bathum digitally penetrated Amanda. Bathum argues that because the prosecution did not identify the 33 specific acts on which counts 18 and 19 were based, and only referred to the incident as a whole in arguing his guilt on those counts, “[i]t is possible [Amanda’s] oral copulation of [Bathum] could have been the sex act the jury found supported both counts.” Reiterating that a patient’s oral copulation of a defendant is not a “qualifying act[ ]” giving rise to liability under section 729, he contends his convictions on counts 18 and 19 must be reversed. Bathum’s argument is without merit. As discussed in section III.D above, Bathum has not shown that a defendant may be convicted of sexual exploitation under section 729 based on an act of “oral copulation” only where the defendant orally copulates the patient, and not the other way around. F. Sufficiency of Evidence Showing Bathum Held Himself Out as a Psychotherapist or Drug/Alcohol Abuse Counselor Bathum contends all of his convictions for sexual exploitation must be reversed because the evidence did not show he held himself out to be a therapist or counselor within the meaning of section 729, subdivision (a). In support of his position, he asserts no witness testified he put up any signs indicating he was a therapist or counselor, that he was listed as a therapist or counselor on any CRLA rosters, that he had business cards indicating he was a therapist or counselor, or that any other therapists or counselors testified he held such a position. He also notes several witnesses did not believe he was a therapist or counselor. And, while he acknowledges multiple witnesses did believe he was a therapist or counselor, he contends “[n]one of [their] beliefs or assumptions establish [the disputed] element.” 34 Bathum’s argument is unavailing. As discussed below, the record contains ample evidence from which a rational trier of fact could find, beyond a reasonable doubt, Bathum held himself out as a psychotherapist and/or drug and alcohol abuse counselor. We begin our analysis by noting the Legislature did not define the phrase “holding [one]self . . . out” for purposes of section 729. (See Bus. & Prof. Code, § 729.) Thus, we again turn to the dictionary to “ascertain the ordinary, usual meaning of [the phrase]” (T-Mobile, supra, 3 Cal.App.5th at p. 352) in order to “give the words of the statute ‘a plain and commonsense meaning[.]’” (MacIsaac, supra, 134 Cal.App.4th at p. 1083.) Merriam-Webster’s online dictionary defines the phrase “hold out” as “to represent to be[.]” ((Merriam-Webster.com Dictionary (2022) [As of Oct. 24, 2022], archived at .) Similarly, Black’s Law Dictionary defines the phrase “hold out” as follows: “To represent (something) as true . . . ; esp., to represent (oneself or another) as having a certain legal status[.]” (Black’s Law Dictionary (11th ed. Online 2019).) Applying these definitions alongside the deferential standard of review governing the sufficiency of the evidence underlying a criminal conviction, we conclude the record contains substantial evidence to support a finding that Bathum held himself out as a psychotherapist and/or a drug and alcohol abuse treatment counselor. First, numerous witnesses, including eight former CRLA clients6 and Samantha Wood, a former CRLA therapist, testified Bathum led trauma therapy groups. No other 6 The former clients were Stephanie J., Amanda J., Amanda S., Jennifer I., Brittni J., Mollie W., Amy W., and Erika B. 35 therapists or counselors assisted him in doing so. He facilitated discussions by asking clients to share intimate details about their past and their relationships with their parents. In so doing, he sought to expose how those relationships related to the clients’ struggles with addiction. Clients responded to his questions by sharing deeply personal information, including their experiences with loss, abuse, and their relationships with their parents. Bathum asked clients to explore and process their feelings on his selected topics. Bathum also led family constellation groups. Wood testified that in those groups, clients would select other participants to represent their family members, and would role-play with them to address issues giving rise to trauma in their relationships with those family members. Similar to the trauma group, clients shared highly personal and intimate details about their pasts and their familial relationships during family constellation groups. Wood testified Bathum provided clients psychoeducation7 and emotional support during the groups he facilitated. According to Wood, those services are typically provided by a therapist or a counselor. She also testified that, given the delicate nature of the topics and issues discussed in trauma and family constellation groups, individuals leading those groups should be licensed or pre-licensed mental health professionals. Bathum’s interactions with clients were not limited to group sessions. Stephanie J. testified that Bathum held individual sessions with clients. Erika B. testified he offered to do 7 According to Woods, “psychoeducation” involves “educating somebody about psychological principles[ ]” in various different ways. For example, an individual providing psychoeducation may explain the grieving process. 36 one-on-one therapy with her to help her work through issues relating to her relationship with her father. Hayley testified Bathum told her he was a therapist, hypnotherapist, and a psychiatrist. In a conversation wherein Hayley was exploring issues underlying her addiction, Bathum told her she had multiple personalities and was struggling with depression. Wood testified Bathum occasionally followed up with clients individually and/or with their families in a separate room after facilitating family constellation groups. She also testified that in addition to providing group therapy, Bathum also provided family therapy. Similarly, Ruah’s mother testified Bathum led family therapy sessions, in which he talked about how the brain worked and how drugs affected the brain. He also advised her on how to communicate with her children and navigate her relationships with them. Besides leading sessions with clients and their families, Bathum also spoke at family day events on weekends. Amanda J.’s mother testified she first saw Bathum at a family day, where he was giving a lecture to clients and their parents on “sobriety, getting clean, being clean, what it takes to stay clean, [and] the effects of alcohol and the effects of drug use.” He also spoke about “different therapies[,] . . . different . . . attitudes[,] . . . different ways of staying sober[,] and different effects of not staying sober.” Based on his lecture, Amanda J.’s mother testified Bathum “seemed like an expert” and her impression of him was that “he was one of the lead therapists” at CRLA. Amanda J.’s mother was not the only witness who testified she had the impression that Bathum was a therapist or counselor. Ruah’s mother also testified she had the impression Bathum was “[a] great family therapist” based on his sessions 37 with her and her family. Similarly, Hayley, Stephanie, Amanda J., Amy, and Erika B. testified they had the impression that Bathum was a therapist or counselor of some sort based on their interactions with him, the type of information he shared, and the manner in which he shared that information. On this record, viewed in the light most favorable to the judgment, we conclude a rational trier of fact could find, beyond a reasonable doubt, Bathum represented himself to be a therapist or counselor at CRLA. Accordingly, substantial evidence supports the jury’s finding he held himself out as a therapist or drug or alcohol abuse counselor under section 729, subdivision (a). IV. Whether Bathum’s Convictions on Count 18 or 19 Must Be Reversed—or One of His Sentences on Those Counts Must be Stricken—Because They Were Based on a Single Incident Bathum contends either count 18 or count 19, which were based on the encounter between Bathum and Amanda J. at the Four Seasons Hotel, must be reversed because acts committed in a “single sexual encounter can yield only a single conviction[ ]” for sexual exploitation. In support, he argues People v. Harrison (1989) 48 Cal.3d 321 (Harrison), where our Supreme Court held multiple acts of forcible penetration occurring in a single assault can give rise to multiple convictions under section 289 (Harrison, supra, at p. 334), is inapplicable because sexual exploitation “is not a violent crime.” In the alternative, citing section 654, Bathum contends “only a single punishment may be imposed for 38 what amounted to an indivisible course of conduct with a single intent and objective.”8 In response, the Attorney General contends both of Bathum’s arguments may be deemed forfeited as conclusory. In addition, the Attorney General argues Bathum’s arguments are meritless because they were rejected in People v. Scott (1994) 9 Cal.4th 331 (Scott) and People v. Bright (1991) 227 Cal.App.3d 105, which was cited with approval in Scott. At the outset, we note Bathum’s primary argument is unsupported by citation to pertinent legal authority, and his alternative argument consists of a single, conclusory sentence in a footnote. Accordingly, both arguments have been forfeited. (People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5.) In any event, as discussed below, we conclude the arguments are meritless. A. Convictions on Counts 18 and 19 Bathum primarily argues sexual acts committed in a single incident may give rise to only one conviction for sexual exploitation under Business and Professions Code section 729 because Harrison does not apply to non-violent sex crimes. In Scott, however, our Supreme Court applied Harrison’s principles to conclude a defendant who fondles a victim multiple times in a 8 For the first time in his reply brief, Bathum also argues that under the plain language of Business and Professions Code section 729, subdivision (b)(2), a defendant may sustain only one conviction and one sentence for committing multiple acts of sexual exploitation with a single victim. We need not address this contention because it was not raised in his opening brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) In any event, as discussed in section XI, we conclude it is meritless. 39 single incident may sustain multiple convictions under section 288. (Scott, supra, 9 Cal.4th at pp. 344-348.) That statute prohibits the commission of lewd and lascivious acts with a child under the age of 14, and does not require those acts to be accompanied by violence for purposes of conviction. (§ 288, subd. (a).) Similarly, Business and Professions Code section 729 prohibits sexual acts between a person who holds himself out as a psychotherapist or drug and alcohol abuse counselor with a patient, even where those acts are unaccompanied by violence. (Bus. & Prof. Code, § 729, subd. (a).) Under these circumstances, we conclude Bathum has not shown Harrison should not apply here, and reject his contention that a defendant who engages in multiple acts in violation Business and Professions Code section 729 during a single incident may sustain only one conviction under the statute. B. Separate Sentences on Counts 18 and 19 At the time Bathum was sentenced, section 654, subdivision (a) provided: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 “‘applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction.’ [Citation.] Generally, whether a course of conduct is a divisible transaction depends on the intent and objective of the actor: ‘If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 (Alvarez).) 40 “However, the rule is different in sex crime cases. Even where the defendant has but one objective—sexual gratification— section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished. [Citations.] [¶] But, section 654 does not apply to sexual misconduct that is ‘preparatory’ in the general sense that it is designed to sexually arouse the perpetrator or the victim. [Citation.]” (Alvarez, supra, 178 Cal.App.4th at p. 1006.) As discussed above, Amanda J. testified that at the Four Seasons Hotel, Bathum first performed oral sex on her. Afterwards, he digitally penetrated her. Then, upon his request, Amanda performed oral sex on him. Her testimony establishes these activities were performed for purposes of accomplishing Bathum’s sexual arousal. Nothing in her testimony indicates the earlier acts were “merely incidental to or facilitative of the later acts[,]” because each of those acts could have been accomplished independently (i.e., without being preceded by any of the other acts that took place). (People v. Madera (1991) 231 Cal.App.3d 845, 855; see also People v. Bright, supra, 227 Cal.App.3d at p. 110.) Thus, we conclude Bathum has not shown he should have only been sentenced to a single punishment on counts 18 and 19. V. Sufficiency of Evidence – Whether Substances Furnished were Methamphetamine and Heroin A. Governing Principles To prove a defendant is guilty of furnishing a controlled substance under Health and Safety Code sections 11352 and/or 11379, the prosecution must prove: (1) the defendant furnished a controlled substance; (2) the defendant knew of its presence; and 41 (3) the defendant knew of the substance’s nature or character as a controlled substance. (CALCRIM No. 2300.) B. Analysis Bathum contends each of his convictions for furnishing a controlled substance must be reversed because there was insufficient evidence demonstrating he had, in fact, provided the alleged recipients with methamphetamine and heroin. He argues “[t]he testimony established, at best, [he] provided substances that ‘looked like’ and ‘acted like’ meth/heroin. It did not establish [he] actually provided those drugs.” We begin our analysis by noting “the nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.]” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) To ascertain whether sufficient circumstantial evidence was presented in this case, People v. Winston (1956) 46 Cal.2d 151 (Winston) and People v. Chrisman (1967) 256 Cal.App.2d 425 (Chrisman), are instructive. In Winston, the defendant was convicted of three counts of furnishing marijuana to a minor in violation of former Health and Safety Code section 11714, among other offenses. (Winston, supra, 46 Cal.2d at p. 153.) On appeal, he challenged his convictions on those counts by arguing there was insufficient evidence showing “the cigarettes [he had provided and] smoked by the two minor[s] . . . contained marijuana[.]” (Id. at p. 154.) While he “conced[ed] that the prosecution need not physically produce the narcotic, he insist[ed] that to prove a substance is a narcotic, there must not only be testimony of the user but also that of a medical doctor or expert. [Citations.]” (Id. at p. 155.) The appellate court rejected the defendant’s contention, reasoning “neither case [cited by the defendant held] that such 42 expert evidence is required for a conviction if the users demonstrate a knowledge of the narcotic as such.” (Winston, supra, 46 Cal.2d at p. 155.) Subsequently, the appellate court observed: “Both [minors] testified that they had frequently smoked marijuana; they described the appearance of a marijuana cigarette, having tucked in ends; they related the custom of smoking such a cigarette in chain fashion in a group, each person taking one or two puffs and inhaling, then passing it to another; and they told of their ‘high’ feeling after about 15 minutes, their feeling of freedom from their cares, lasting about three to four hours, then their feeling of ‘coming down,’ that is, their feeling of depression, at which time they became hungry.” (Id. at p. 156.) Relying largely on their testimony, the court “conclude[d] that the fact that the cigarettes smoked by the [minors] were marijuana cigarettes was amply proved.” (Id. at p. 157.) The defendant in Chrisman was convicted of two counts of furnishing heroin in violation of former Health and Safety Code section 11501, among other offenses. (Chrisman, supra, 256 Cal.App.2d at p. 428.) His convictions on those counts were largely based on the testimony of Joy Anne Osborne, the alleged recipient of the heroin. (See id. at pp. 430-431.) Osborne testified she had been addicted to heroin for over three months as of September 1965, and she had met the defendant, who developed an addiction to heroin a month after she had started using, through other addicts. (Chrisman, supra, 256 Cal.App.2d at p. 430.) According to Osborne, the defendant purchased heroin in San Francisco, and they used it together. (Id. at p. 431.) She “described the place, the person from whom, and the manner in which the heroin was obtained[,]”as well the balloons in which it was packaged. (Ibid., italics omitted) Osborne 43 testified she and the defendant would have an injection of heroin before returning to Santa Clara. (Ibid.) She described and identified the paraphernalia the defendant used for heating and injecting the heroin, as well as the manner in which it was used. (Ibid.) After deciding she “wanted to kick the habit[,]” Osborne checked into a hospital and experienced withdrawal symptoms. (Ibid.) On appeal, the defendant argued his convictions on the furnishing counts were supported by insufficient evidence “because there was no evidence that the substance supplied by him to the alleged recipient was in fact a narcotic[.]” (Chrisman, supra, 256 Cal.App.2d at p. 428.) He contended “the testimony of a user alone, without expert testimony, can never be sufficient to identify the nature of the substance.” (Id. at p. 432.) Relying principally on Winston, supra, 46 Cal.2d at pp. 155- 156, the appellate court rejected the defendant’s argument. (Chrisman, supra, 256 Cal.App.2d at pp. 432-433.) Subsequently, it held Osborne’s testimony, along with testimony showing the defendant was addicted to heroin and that paraphernalia found in his car had traces of heroin, was sufficient to establish the substance the defendant had given her was heroin. (Id. at p. 434.) Applying Winston and Chrisman here, along with the deferential standard of review governing the sufficiency of the evidence underlying a criminal conviction, we conclude the record contains substantial evidence to support the jury’s finding that, beyond a reasonable doubt, Bathum furnished methamphetamine and heroin to the persons alleged. Bathum was convicted of furnishing methamphetamine to nine former CRLA clients: Stephanie J., Dana R., Brittni J., Amanda S., Mollie W., Jennifer I., Erika B., Ruah A., and Amy 44 W. With the exception of Brittni and Ruah, all of these former clients testified they were familiar with the drug, and had previously seen or used it on multiple occasions. Indeed, Dana, Erika, Amy, and Mollie were addicted to methamphetamine when they checked into CRLA. Amy and Mollie used methamphetamine daily before checking into CRLA. Brittni testified she had not seen methamphetamine prior to the incident at the Anza Hotel, which was the first time she ever smoked it. At the time, either Bathum or Amanda told her that the drug he had brought was methamphetamine. After that incident, she ingested methamphetamine ten more times. All of the witnesses above testified to the appearance of the methamphetamine given to them by Bathum. They described the substance as rocky, crystal, and/or glassy shards, which were either clear, off-white, or cloudy in color. Those who had prior experience with methamphetamine testified the appearance of the methamphetamine from Bathum was consistent with their past observations of methamphetamine. Similarly, Brittni and Ruah testified the appearance of the methamphetamine initially provided by Bathum was consistent with their subsequent observations of methamphetamine. As discussed in the Background section above, all nine of these witnesses described in detail how the methamphetamine was packaged or presented, how they used it, and how Bathum ingested it with them. The seven witnesses who had previous experience with methamphetamine testified they experienced a distinctive high upon ingesting methamphetamine in the past, and that the feelings and sensations they felt when ingesting the methamphetamine provided by Bathum was consistent with their prior experiences. Similarly, Brittni and Ruah testified they felt a 45 distinctive high after using methamphetamine for the first time with Bathum, and they got the same high when using methamphetamine on subsequent occasions. Dana testified Bathum gave her and another former client crystal methamphetamine while in Joshua Tree. After purchasing syringes at a drug store, the three of them injected themselves with the methamphetamine while in Bathum’s car. The next morning, Dana tested positive for methamphetamine on a urine test. Bathum was convicted of furnishing heroin to Brittni J., Brittney D., and Amy W. All three of them were addicted to heroin and using it daily before checking into CRLA. Brittni and Brittney identified the heroin provided by Bathum as “black tar heroin.” All three witnesses described his heroin as a gooey, sticky, black or dark brown substance, which smelled like vinegar. While Brittni’s first experience with black tar heroin was with Bathum at the Four Seasons Hotel, Brittney and Amy testified they had seen black tar heroin in the past, and the heroin Bathum provided had the same smell, texture, and appearance as the heroin they saw before. Brittni testified the heroin she later saw at the Malibu Riviera Motel had the same appearance, texture, and smell as the heroin at the Four Seasons Hotel. Brittney and Amy testified that when they used the heroin provided by Bathum, they experienced the same high they felt when using heroin in the past. Brittni testified that when she used black tar heroin for the first time at the Four Seasons Hotel, she felt a similar but more extreme version of the high she experienced when using a different form of heroin in the past. 46 She felt the same type of high when she used black tar heroin at the Malibu Riveria Hotel. The testimony of these CRLA clients was supported by the testimony of Deputy Sheriff Anthony Meyers and Criminalist Aaron Lewis concerning substances recovered from Bathum’s vehicle in June 2016. Deputy Meyers testified that on June 28, 2016, he observed a vehicle pulled over in an area alongside a road commonly used for narcotics activity. When he pulled over behind the vehicle and approached it on the driver’s side, he saw Bathum holding a glass pipe used for smoking narcotics in his hand. As Deputy Meyers got closer, Bathum saw him and quickly reached his hands under the seat. At that point, Deputy Meyers directed Bathum to exit the vehicle, detained him, and searched him. From Bathum’s jacket pocket, Deputy Meyers retrieved two plastic bags. One bag contained a crystalline substance he recognized as methamphetamine. Inside the car, he found a small brown bag containing heroin and additional narcotic paraphernalia commonly used to ingest heroin, among other drugs. Under the seat on the floor, he found a warm glass methamphetamine pipe with a burnt, crystalline substance inside. He booked all the items above into evidence. Criminalist Aaron Lewis examined items booked into evidence by Detective Meyers. After conducting various tests on those items, Lewis confirmed: (1) the crystalline substance in the plastic bag from Bathum’s jacket contained methamphetamine; and (2) one of the other substances Detective Meyers found contained heroin. In sum, viewing the evidence above in the light most favorable to the judgment, we conclude a rational trier of fact 47 could find, beyond a reasonable doubt, the substances furnished by Bathum were, in fact, methamphetamine and heroin. (See Winston, supra, 46 Cal.2d at pp. 156-157; see also Chrisman, supra, 256 Cal.App.2d at p. 434.) Accordingly, we reject Bathum’s challenge to the sufficiency of the evidence underlying his convictions for furnishing controlled substances. VI. Whether the Trial Court Erred by Denying Bathum’s Post-Trial Motions for Relief based on the Prosecution’s Failure to Disclose the Hayley G. Video A. Relevant Background On February 26, 2019, a year after the verdicts were read in this case, Bathum “move[d] for an order dismissing all the charges/vacating the judgment in this action because of outrageous government conduct . . . . In the alternative, [Bathum] request[ed] a new trial on all counts on which [he] was convicted.” Bathum argued he was entitled to the relief sought because the prosecution intentionally suppressed evidence favorable to him prior to trial, in violation of its obligations under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady). The evidence at issue is a 14-second video clip of Hayley G. recorded by Cliff Brodsky, Bathum’s former business associate, at a law firm in January 2015.9 The video begins with Brodsky and 9 A copy of the video was not included in the record on appeal. In his opening brief, however, Bathum states the video is on Youtube and provided the address of the website where it may be viewed. The Attorney General agrees the video is available at the address provided. Under these circumstances, on our own 48 Hayley next to one another. Brodsky says, “I’m here with Hayley.” Hayley smiles briefly and says “Hello.” Brodsky then states, “Now Hayley was a client over at Chris Bathum’s place[,]” and asks her if she would “mind saying on camera that [she was] drugged and raped.” In response, Hayley makes the following statement with what appears to be a slight smile: “I was drugged and raped by Chris Bathum.” ( [as of Oct. 13, 2022].) According to Bathum’s motion, defense counsel first became aware of the video in July 2018. In opposition, the prosecution contended Bathum was not entitled to the relief sought. Among other things, the prosecution argued “there was no Brady violation because it is not reasonably probable that the jury would have acquitted [Bathum] had [the video] been considered at trial.” The trial court held a hearing on Bathum’s motion over the course of several days. Relevant portions of the witness testimony presented at the hearing are summarized below. Brodsky testified he recorded the video on January 12, 2015, when he brought Hayley with him to a law firm. She had told him shortly beforehand that Bathum drugged and raped her. Thus, while they were sitting in the law firm and “killing time,” Brodsky “‘said, ‘Hey, remember that thing you just told me, tell the world what you just told me a second ago, that you were motion, we hereby take judicial notice of the video available at the link Bathum has provided. (Evid. Code, § 452, subd. (h); see also Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37, fn. 2 [taking judicial notice under Evidence Code section 452 sua sponte].) 49 drugged and raped by Chris Bathum’ to remind her what she just said . . . .” Brodsky testified that on July 20, 2016, he attended a meeting with Detective Jeffrey Jackson and Deputy District Attorney (DDA) Shaun Gipson. He brought with him a box “full of thousands of pages of stuff and a . . . bag full of stuff.” He also brought his laptop containing the Hayley G. video and other digital media he wanted to share, as well as a thumb drive containing copies of the digital media. Brodsky testified some of these materials related to Bathum’s involvement in sex crimes, and some related to his involvement in fraud crimes.10 Brodsky testified that during the meeting, he played videos of a woman named Rebecca M. detailing her allegations against Bathum. He then tried to show the Hayley G. video on his computer, but it did not work. Subsequently, he posted the video on social media. DDA Gipson testified he was assigned to the fraud case relating to Community Recovery, and attended a meeting with Brodsky in July 2016. Detective Christopher Luistro from the California Department of Insurance was also present, along with 10 In addition to the case underlying this appeal, in Los Angeles Superior Court Case No. BA451664, Bathum was charged with numerous violations of section 550, subdivision (a)(1) [insurance fraud committed by fraudulent claim], section 487, subdivision (a) [grand theft], section 530.5, subdivision (c)(3) [fraudulent possession of personal identifying information], and section 186.10, subdivision (a) [money laundering]. Those charges arose out of his alleged involvement in a $176 million fraud scheme. Pursuant to a plea agreement entered in that case, the trial court sentenced him to 20 years of imprisonment, to be served concurrently with his sentence in the present case. 50 Detectives Jackson and Denise Escobedo-Fuchs from the Los Angeles Sheriff’s Department. The purpose of the meeting was to gain information regarding the cases of fraud and sexual assault involving Community Recovery. DDA Gipson testified he did not view the Hayley G. video at the meeting. He recalled Brodsky played a video of a woman named Rebecca M. claiming she had been assaulted at Community Recovery. Brodsky tried to play another video, but was unable to do so due to technical difficulties. DDA Gipson testified Brodsky turned over a red flash drive, as well as a box containing a binder, a brown wallet, and a lot of papers at the meeting. Brodsky represented to DDA Gipson that everything he had was related to the insurance fraud case against Bathum. Consequently, Detective Luistro took the box and the flash drive. The box was not returned to the district attorney’s office until the latter half of 2018. DDA Gipson testified he did not learn of the Hayley G. video until August 2018, after talking to Detective Jackson about it and receiving a copy from his supervisor. Subsequently, he spoke with Detective Luistro’s supervisor, Sergeant Jeff Gomez. Sergeant Gomez told DDA Gipson he had received a flash drive from Detective Luistro. Sergeant Gomez then returned the flash drive to DDA Gipson, who believed it to be the flash drive previously included amongst Brodsky’s materials. The Hayley G. video was on the flash drive, among many other files. Detective Jackson testified he had reached out to Brodsky before the July 20, 2016 meeting at DDA Gipson’s recommendation. Brodsky told Detective Jackson he had a video of Hayley claiming she had been raped by Bathum, and that he wanted to show it to him. 51 According to Detective Jackson, Brodsky brought a box containing numerous documents to the meeting. Brodsky indicated to him all of the documents related to the insurance fraud case against Bathum, which DDA Gipson and Detective Luistro were working on. Detective Jackson did not recall Brodsky taking any thumb drives out of the box. He did, however, testify that there was a flash drive in Brodsky’s laptop, which Brodsky eventually put on the center of the table. Although Brodsky showed a brief video of Rebecca M. during the meeting, he did not show the Hayley G. video, as he could not find it on his laptop. Detective Luistro took the box and all of its contents, save for a few documents kept by Detective Jackson. Sometime after the meeting, Detective Jackson saw the Hayley G. video on social media. Detective Escobedo-Fuchs testified she attended a meeting with Brodsky on July 20, 2016. She did not recall Brodsky showing her any videos during the meeting, although Brodsky did “attempt[ ] to look for something on . . . a laptop computer, but was frustrated.” In ruling on Bathum’s motions, the trial court first observed “the defense has raised . . . three different motions . . . . There’s a motion to dismiss for outrageous government conduct. There’s a Brady violation motion, and then there’s a motion for a new trial based upon newly-discovered evidence.” The trial court then noted the motions were “all based upon the same set of facts[ ]” (i.e., the suppression of the Hayley G. video). Subsequently, the trial court acknowledged defense counsel’s point that Hayley’s demeanor in the video, where she was smiling, differed from her demeanor at trial, where she 52 presented herself as “somewhat pitiful[,]” as she was “crying[ ] and . . . appeared to be traumatized[.]” The court determined, however, the differences in her demeanor only provided slight impeachment value. In so doing, it noted Hayley testified in court for three days, and was subject to “a grueling, difficult cross- examination[ ]” by defense counsel. Specifically, the trial court observed defense counsel was given “great leeway in questioning” Hayley, as he was allowed to question her on “all sorts of matters[,]” including her lifestyle choices, her drug usage, and her attempt to extort money from defense counsel and Bathum by contacting defense counsel and asking for money to lie on the stand. Under those circumstances, the trial court found the brief video, in which Hayley made an inculpatory statement consistent with her testimony, would not have led the jury to discredit her. Accordingly, the trial court found the Hayley G. video was not material and would not have resulted in a different outcome had it been presented to the jurors at trial. It therefore denied Bathum’s post-trial motions to dismiss and for a new trial. B. Motions for Relief Based on Alleged Brady Violation and Newly-Discovered Evidence 1. Governing Principles and Standards of Review a. Brady violations “Although the term ‘Brady violation’ is often broadly used to refer to any failure on the part of the prosecution to disclose favorable information to the defense, a true violation occurs only if three components coexist: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been 53 suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” (People v. Uribe (2008) 162 Cal.App.4th 1457, 1474 (Uribe), citing Strickler v. Greene (1999) 527 U.S. 263, 281-282 [119 S.Ct. 1936, 144 L.Ed.2d 286] and Banks v. Dretke (2004) 540 U.S. 668, 691 [124 S.Ct. 1256, 157 L.Ed.2d 1166].) “Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.’” [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) To do so, a defendant must “‘show[ ] that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation.]” (Uribe, supra, 162 Cal.App.4th at p. 1473, quoting Kyles v. Whitley (1995) 514 U.S. 419, 435 [115 S.Ct. 1555, 131 L.Ed.2d 490].) “We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence. [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.) b. Motion for New Trial Based on Discovery of New Evidence “A defendant may seek a new trial ‘[w]hen new evidence is discovered material to the defendant, and which he could not, 54 with reasonable diligence, have discovered and produced at the trial. . . .’ [Citation.] ‘The standard of review of an order denying a motion for a new trial based on newly discovered evidence was established . . . in 1887: “To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulatively merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at trial; and 5. That these facts be shown by the best evidence of which the case admits.’ . . . [¶] ‘Applications on this ground are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion . . . .’” [Citations.]’ [Citation.] ‘“In determining whether there has been a proper exercise of discretion on such [a] motion, each case must be judged from its own factual background. [Citation.]” [Citation.]’ [Citation.]” (People v. Cua (2011) 191 Cal.App.4th 582, 608.) 2. Analysis Bathum contends his motion for post-trial relief based on the alleged Brady violation should have been granted because the three-part test set forth in section VI.B.1.a above has been satisfied. He argues: (1) “[t]he video revealed Hayley’s true self – not the weeping victim, but the smirking, ‘I’m going to get money from you,’ self-interested Bathum-Slayer[,]” and therefore could have “impeached [her] to a greater degree[ ]”; (2) the video was suppressed because the police received it but the prosecution did not disclose it to him; and (3) he was prejudiced because “[t]he government’s case absolutely and exclusively hinged on Hayley’s testimony for the six most serious counts[,]” and at least one juror 55 could have rejected her testimony after evaluating her credibility based on her demeanor in the video. The parties do not seem to dispute the first and second elements of the applicable three-part test have been satisfied. We note the Attorney General asserts the video was inculpatory, and that the prosecution’s failure to disclose it to defense counsel was accidental. The Attorney General does not, however, appear to dispute the video could have been used to impeach Hayley, or that it was suppressed in this case. Resolution of the Brady issue therefore turns on whether Bathum has shown the third element has been satisfied, i.e., whether the video “‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation.]” (Uribe, supra, 162 Cal.App.4th at p. 1473.) On the record before us, we conclude he has not. As noted above, Brady requires the prosecution to disclose “evidence reflecting on the credibility of a material witness. [Citations.]” (People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.) However, “where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material. [Citations.]” (United States v. Avellino (2d Cir. 1998) 136 F.3d 249, 257; see also Tankleff v. Senkowski (2d Cir. 1998) 135 F.3d 235, 251 [“When a witness’s credibility has already been substantially called into question in the same respects by other evidence, additional impeachment evidence will generally be immaterial and will not provide the basis for a Brady claim. [Citations.]”].) 56 Applying these principles, we conclude there was no reasonable probability the video would have led to a different result at trial. As the trial court correctly observed, the video is only 14 seconds long, and Hayley’s inculpatory statement therein is wholly consistent with her testimony at trial, where she testified Bathum gave her Xanax prior to raping her at Adams House. The record reflects Hayley was extensively cross- examined by defense counsel. In addition to minutely scrutinizing her testimony from her direct examination, defense counsel questioned her on a variety of topics, including: (1) her illegal attempt to extort money from Bathum by contacting defense counsel and asking him to relay to Bathum that, if he paid her money, she would not testify against him; (2) her continuation of her relationship with Bathum even after he had engaged in the alleged sexual acts with her; (3) her receipt of gifts, such as a new car, privileges, money, and special treatment from Bathum while at CRLA; (4) her delay in reporting the alleged crimes to Detective Jackson; and (5) discrepancies between her trial testimony and her preliminary hearing testimony. Further, defense counsel sought to discredit Hayley based on differences in her demeanor at trial and her demeanor in a prior interaction. He noted that on direct examination, he “notice[d] . . . [she was] overcome by emotion several times[.]” Immediately thereafter, defense counsel pointed out that when she was on the phone with him seeking payment in exchange for her silence at trial, she was not crying. Despite defense counsel’s rigorous attacks on Hayley’s credibility, the jury still believed her testimony regarding the incidents underlying counts 1 through 6 and 9. On this record, we are not convinced the video would have swayed the jury to 57 discredit her testimony and acquit him on any of those counts. Thus, Bathum has not shown his convictions should be reversed based on the alleged Brady violation, as he has not “‘show[n] a “reasonable probability of a different result.”’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at p. 1043.) For the same reasons, he has not shown the trial court abused its discretion by denying his motion for a new trial based on newly-discovered evidence. (People v. Cua, supra, 191 Cal.App.4th at p. 608.) C. Motion to Dismiss Based on Outrageous Government Conduct 1. Governing Principles and Standard of Review Federal and California courts have “recognized the possibility government conduct could be so outrageous that due process would bar the government from seeking a conviction. [Citations.]” (People v. Guillen (2014) 227 Cal.App.4th 934, 1005 (Guillen); see also id. at pp. 1002-1006 [summarizing federal and California authorities].) “Where defendant’s right to counsel is not implicated, however, dismissal for outrageous government conduct is warranted only where the conduct impairs a defendant’s constitutional right to a fair retrial. [Citations.]” (People v. Fultz (2021) 69 Cal.App.5th 395, 432.) “‘The determination of whether the government engaged in outrageous conduct in violation of the defendant’s due process rights is a mixed question. The first step involves the consideration and weighing of the evidence and assessing the credibility of the witnesses to determine factually whether, and to what extent, governmental misconduct occurred. This factual determination is clearly one that is subject to a deferential 58 standard of review. But the second step—whether the governmental conduct constitutes outrageous conduct in the constitutional sense of violating the defendant’s due process rights—involves the application of law to the established facts and is primarily a legal question. . . . ’ [Citations.]” (Guillen, supra, 227 Cal.App.4th at pp. 1006-1007.) 2. Analysis Bathum contends his convictions must be reversed because the investigating government officials engaged in outrageous conduct by knowingly and intentionally keeping the Hayley G. video from defense counsel. The Attorney General responds: “His claim is meritless since the record abundantly supports the trial court’s conclusion that the video had trivial impeachment value at most, and the failure to provide it to the defense was simply an understandable accident.” We agree with the Attorney General. As discussed in section VI.A above, the testimony at the hearing on Bathum’s post-trial motions for relief shows: (1) the government officials investigating the fraud case against Bathum were different from those simultaneously investigating the sex crimes case against him; (2) Brodsky did not play the Hayley G. video at the July 2016 meeting; (3) Brodsky turned over a box of materials and a flash drive containing a copy of the video at the meeting; (4) except for a few documents kept by Detective Jackson, Detective Luistro from the California Department of Insurance took the box and the flash drive based on Brodsky’s representation that his materials largely related to alleged insurance fraud; (5) Detective Luistro had the flash drive and did not return it until sometime after August 2018; (6) although Brodsky told Detective Jackson about the video prior to the July 59 2016 meeting, Detective Jackson did not view it until he found it on social media, after the meeting took place; and (7) DDA Gipson was unaware of the video and did not see it until August 2018. This evidence adequately shows the prosecution’s failure to disclose the video to defense counsel prior to trial was inadvertent and was not—as Bathum contends—the product of a malicious conspiracy by government officials. Accordingly, the record contains substantial evidence demonstrating no outrageous government conduct occurred in this case. (See Guillen, supra, 227 Cal.App.4th at p. 1006.) We therefore conclude the trial court correctly denied Bathum’s motion to dismiss based on outrageous government conduct. VII. Instructional Error – Omission of Unanimity Instruction on Furnishing Counts A. Governing Principles “Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, ‘either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.’ [Citations.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114, italics in original.) “The prosecution can make each election by ‘tying each specific count to specific criminal acts elicited from the victims’ testimony’—typically in opening statement and/or closing argument [Citations.] Such an 60 election removes the need for a unanimity instruction. [Citation.]” (People v. Brown (2017) 11 Cal.App.5th 332, 341.) B. Analysis Bathum contends he was “deprived of his constitutional right to a unanimous jury verdict[ ]” because “[t]he prosecutor adduced evidence of multiple discreet [sic] acts of furnishing [drugs] by [Bathum], occurring at different places and at different times,” but “did not elect which act was the basis for each individual charge[ ]” and “[t]he trial court did not instruct on unanimity.” Accordingly, he argues “[r]eversal is required [o]n [c]ounts 15, 24, 25, 26, 28, 31, 43, and 48.” In the heading on this issue, he also asserts defense counsel was ineffective by failing to request a unanimity instruction. Bathum’s arguments are without merit. The record reflects that during closing argument, the prosecution methodically identified the specific act underlying each and every count charging Bathum with furnishing a controlled substance. In so doing, the prosecution even specified some acts of furnishing occurred outside of Los Angeles County, and did not form the basis of the charges. Accordingly, the trial court was not required to issue a unanimity instruction. We therefore reject Bathum’s claim of instructional error. (See People v. Mayer (2003) 108 Cal.App.4th 403, 418 [no unanimity instruction required where prosecution set forth factual basis of the charges in opening statement].) For the same reasons, we conclude Bathum has not shown defense counsel’s failure to request a unanimity instruction constituted deficient performance resulting in prejudice, and likewise reject his perfunctory assertion of ineffective assistance of counsel. (See 61 People v. Terrell (1999) 69 Cal.App.4th 1246, 1252 [setting forth defendant’s burden of proving ineffective assistance of counsel].) VIII. Ineffective Assistance of Counsel – Concession that Bathum Held Himself out as a Psychotherapist and/or Drug/Alcohol Abuse Counselor A. Relevant Background Prior to trial, defense counsel successfully moved to exclude the portion of a book written by Bathum in which he referenced his work as a therapist. In arguing the evidence would be “fairly cumulative[,]” defense counsel stated: “Virtually every woman that testified at the preliminary hearing testified . . . Bathum ran group counseling[ ] [and] did individual counseling. I don’t think there’s any question that . . . Bathum held himself out as a therapist. I don’t think that is really going to be much of an issue at trial. [¶] The issue might be, you know, whether a certain person was a client at the time a sexual exploitation act occurred. That might be an issue. But with respect to whether he was a therapist or held himself out as a therapist for purposes of the sexual exploitation counts, there is hardly an argument about that.” Later, he reiterated: “[W]ith respect to whether [Bathum] was a therapist or not or he held himself out as such, I don’t know how much of an argument there really is on that, and the evidence on that is legion so the defense isn’t planting a flag on that.” During closing argument, while going over the elements of sexual exploitation under Business and Professions Code section 729, defense counsel stated: “First of all, number one, ‘the defendant held himself out to be a drug abuse counselor.’ You know, I’m not going to stake my flag on trying to say he wasn’t 62 holding himself out as [a] drug abuse counselor. The evidence is what it is. Okay?” B. Governing Principles “‘The burden of proving ineffective assistance of counsel is on the defendant.’ [Citation.]” (People v. Terrell, supra, 69 Cal.App.4th at p. 1252.) “To establish constitutionally inadequate representation, a defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.) “A defense counsel is not required to make futile motions or to indulge in idle acts to appear competent. [Citations.]” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091- 1092.) “Reversal of convictions on the ground of inadequate counsel is mandated only if the record affirmatively reveals no rational tactical purpose for his or her act or omission. [Citations.]” (People v. Terrell, supra, 69 Cal.App.4th at p. 1253.) B. Analysis Bathum contends defense counsel was ineffective by conceding he held himself out as a therapist within the meaning of Business and Professions Code section 729. In support of his position, he asserts: (1) the evidence did not show he held himself out as a therapist or counselor; (2) defense counsel cross- examined Wood, a former CRLA therapist, about whether Bathum “profess[ed] he was a therapist”; and (3) in closing 63 argument, defense counsel asked the jury the question whether Bathum had held himself out as a therapist or counselor. Bathum’s argument is unavailing for two reasons. First, as the Attorney General observes, the record indicates defense counsel’s concession was a reasonable tactical decision, and did not constitute deficient performance. On this point, the record reflects that prior to trial, defense counsel was well aware numerous witnesses were going to testify to facts showing Bathum held himself out as a therapist or drug and alcohol abuse counselor. With that in mind, he successfully moved to exclude a portion of Bathum’s book. Moreover, as defense counsel correctly predicted, the prosecution presented a wealth of evidence at trial showing Bathum held himself out as a therapist or counselor at CRLA. (Section III.F, ante.) We agree with the Attorney General that, by acknowledging that evidence in closing argument and stating he was not going to “stake [his] flag” on disputing that element, it appears defense counsel was reasonably attempting to maintain credibility with the jury in order to raise other defenses to the charges. (See People v. Gurule (2002) 28 Cal.4th 557, 597 [“Counsel may have concluded that honesty and candor with the jurors was necessary so as not to lose credibility with them”].) For these reasons, we conclude Bathum has not shown counsel’s performance was deficient based on the concession at issue. (See People v. Jones (2003) 29 Cal.4th 1229, 1254 [rejecting claim for ineffective assistance of counsel where record reflected defense counsel’s failure to call a witness at trial rested on “several sound tactical grounds[ ]”].) In addition, Bathum cannot show defense counsel’s concession resulted in prejudice. As discussed above, the 64 prosecution adduced testimony from multiple witnesses, including several former CRLA clients and their family members, as well as a former CRLA therapist, demonstrating Bathum held himself out as a therapist or counselor. (Section III.F, ante.) On this record, we conclude that even if counsel had argued the prosecution failed to carry its burden on that element, there is no reasonable probability the result would have been more favorable to Bathum. (See People v. Mitcham, supra, 1 Cal.4th at p. 1058.) IX. Ineffective Assistance of Counsel – Failure to Challenge Deputy Meyers’ Testimony Regarding Nature of Substances Recovered from Bathum’s Car As discussed in section V.B above, Deputy Meyers testified: (1) he came upon Bathum’s car parked alongside a road known for drug activity in June 2016; (2) he detained Bathum and conducted a search for narcotics after seeing Bathum holding a glass pipe; (3) in Bathum’s jacket, he found a plastic bag containing a crystalline substance he recognized to be methamphetamine; and (4) in Bathum’s car, he found a brown paper bag containing heroin and other drug paraphernalia. Bathum contends defense counsel’s performance was deficient because he failed to challenge Deputy Meyers’ testimony regarding the nature of the substances recovered from Bathum’s vehicle. Noting the prosecution “did not seek to ascertain Meyer’s [sic] history with identifying drugs, his training, his study, his prior experience[,] or how he made his determinations[,]” Bathum asserts Deputy Meyers’ testimony was nothing more than “unsupported conclusions about the true nature of the narcotics” he found. Bathum’s argument is without merit. As discussed above, and as Bathum concedes in his reply brief, Criminalist Lewis 65 tested the substances found by Deputy Meyers and confirmed they contained methamphetamine and heroin. (Section V.B, ante.) On this record, we conclude Bathum cannot demonstrate deficient performance or prejudice based on defense counsel’s failure to object to Deputy Meyers’ testimony. X. Admission of Testimony Regarding Several Witnesses’ Feelings about their Experiences A. Relevant Background Bathum takes issue with several incidents at trial where the prosecution asked Hayley G., Amanda J., Stephanie J., and Ruah D. about how they felt during or after certain experiences. We summarize those portions of the record here. 1. Hayley G. Within a week of the alleged sexual assault at Adams House, Hayley told Josh Geiger, her case manager, that Bathum “had been inappropriate with [her].” Soon thereafter, she was called into a meeting in Bathum’s office, where both Geiger and Bathum were present. During the meeting, Geiger told Bathum what Hayley had shared with him. In response, Bathum “laughed it off and told [Hayley] that [they] could go ahead and have fun with it and make it . . . a rumor.” He also told Hayley “to . . . pretty much forget about . . . what happen[ed] between [them]” and that “he could make this . . . disappear and go away.” Referring to Bathum’s statements, the prosecution asked Hayley, without objection by defense counsel: “And how did you feel about that?” She testified: “Um, that I couldn’t take this anywhere else, like I . . . had to shut up, and I . . . couldn’t talk. I shouldn’t open my mouth anymore.” The prosecution 66 subsequently asked, again without any objection: “How did you feel about CRLA at that time?” Hayley testified she felt “defeated[,]” as she felt Geiger had “stabb[ed] [her] in the back[,]” and that she felt “cornered.” After Hayley related the details of the Summer Hill incident, the prosecution asked, without any objection: “Hayley, how did you feel . . . at that point about what just happened to you in that room?” She responded: “Um, I . . . didn’t want to talk to anybody. I didn’t want to be there.” At the close of her direct examination, the prosecution asked: “Hayley, as you are sitting here today . . . is there any one thing that stands out most in your mind about what happened to you with [the] defendant?” Over defense counsel’s objections based on vagueness and relevance, Hayley testified: “My trust was broken. . . . . I haven’t really trusted anybody since.” Lastly, on redirect examination, the prosecution asked: “Can you tell us why it is that you are sitting here testifying today? Why are you here?” Without any objection, Hayley responded she “didn’t want other girls who were trying to get treatment and had trauma from their past to go through what [she] went through.” As she explained what she meant, defense counsel objected to her testimony as constituting an improper narrative, which the trial court overruled. Hayley concluded: “I had a lot of doors slammed in my face for a long time. You know, I didn’t trust [Detective] Jackson at first. He called me a lot, and I didn’t trust him, but I just wanted this to stop happening.” 2. Amanda J. After Amanda J. testified about the Four Seasons Hotel incident, the prosecution asked, without objection by defense counsel: “Can you . . . reach inside yourself and tell us what it is 67 that you were feeling at that point? Emotionally, physically, what were you feeling?” Amanda responded: “Scared, humiliated, disgusting, surreal, almost like it wasn’t even real, shocked, really vulnerable and – really vulnerable.” Following the incident, Amanda told her mother what happened. Shortly thereafter, she contacted Amy W., her case manager, and “came up with a plan to get [her] exited[ ]” from CRLA. Amy agreed to tell Bathum and another staff member that Amanda “was talking negatively about Bathum to other clients.” Amy did so, and Amanda was exited from CRLA the next day. She was about a week shy of completing a 90-day treatment program. At that point, the prosecution asked: “How did you feel then about the fact that you are now making this plan and ultimately getting exited and not finishing that 90[-]day[ ] [program]?” Defense counsel objected to the question based on relevance, which the trial court overruled. Amanda stated: “I felt good about it because at the time what happened was so disgusting that I had to get out of there, and . . . I knew there were other options for me to continue care.” 3. Stephanie J. Stephanie J. and Jennifer I. were exited from CRLA the day after they did drugs and had sex with Bathum at the W Hotel. Two days later, Bathum got them a room at the Good Nite Inn. Between the W Hotel incident and their stay at the Good Nite Inn, Stephanie and Jennifer used heroin they had purchased with money provided by Bathum. They stayed at the Good Nite Inn for nine or ten days. Stephanie testified Bathum came to their room “almost daily[ ]” and had sex with her four or five times. 68 The prosecution asked: “How did you feel about what was going on [during] those nine or ten days you are at the Good Nite Inn?” Over defense counsel’s objection based on relevance, she answered: “I’d overdosed after being there for a couple days, using really heavy all of the time. I was just completely devastated. . . . [A]ny little . . . glimmer of hope I had remaining was gone.” When asked “[w]hat was driving [her] to be doing what [she was] doing[,]” Stephanie answered: “Guilt and shame and just I couldn’t believe that I had taken this time away from my kids and my family in Ohio and come out [to CRLA] and just how incredibly insane the whole story is. . . . I was just really disappointed and, kind of, lost faith in humanity . . . .” After their stay at the Good Nite Inn, Jennifer and Stephanie returned to Ohio. Less than a month later, however, Stephanie returned to CRLA at Bathum’s request. Soon after completing detoxification, the incident where she gave Bathum oral sex at Summer Hill occurred. After she described the incident, the prosecution asked, without any objection: “How do you feel, then, about what happened to you in this closet just a week after you got back [from Ohio]?” She answered: “I just felt so naive and stupid. Like, . . . I knew that bad things had happened to me [at CRLA] before, and I felt lack of options, so I just decided to do this, but I immediately regretted it.” At the close of her testimony on further redirect examination, the prosecution asked Stephanie: “As you are sitting here today, . . . is there any one particular thing that stands out most in your mind with regard to what had transpired with your experience with CRLA and [the] defendant?” Without any objection, she responded: “It was just a horrible experience from beginning to end.” 69 4. Ruah A. Two months after the incident where Ruah and Bathum snorted methamphetamine in his office, she moved into his home and lived with him full-time for about five months. During her stay, Bathum gave her various drugs to ingest either daily or every other day, including crack and heroin. At the end of her direct examination, the prosecution asked: “What is the one thing that stands out to you the most about the drugs that were furnished to you by [Bathum] at CRLA?” Without any objection, she answered: “It, pretty much, ruined my life. There is nothing more than that I can say. And he did a number on my brainwork . . . .” B. Governing Principles 1. Evidentiary Principles Pursuant to Evidence Code section 210: “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Even relevant evidence, however, may be excluded under Evidence Code section 352, which states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” In addition, Evidence Code section 780 provides, in relevant part: “Except as otherwise provided by statute, the . . . jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the 70 truthfulness of his testimony at the hearing[.]” Further, “a trial court has discretion, within the strictures of Evidence Code section 352, to permit the prosecution to introduce evidence supporting a witness’s credibility even on direct examination, so long as the prosecution reasonably expects the defense to attack the witness’s credibility during cross-examination. [Citation.]” (People v. Merriman (2014) 60 Cal.4th 1, 86.) 2. Prosecutorial Misconduct “‘A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.]” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 306.) C. Analysis Bathum contends the prosecution’s questions above and the witness’s responses thereto were irrelevant and “unduly prejudicial, evoking an emotional bias against [him].” Therefore, he seems to argue that the trial court prejudicially erred by failing to exclude the testimony under Evidence Code section 352, that the prosecution engaged in misconduct by eliciting the testimony, and that defense counsel was ineffective by failing to object to all of the questions and testimony. As an initial matter, we note defense counsel did not raise any objections under Evidence Code section 352, and therefore 71 any contention of error based on the trial court’s failure to exclude the evidence under that statute has been forfeited. (People v. Williams (1997) 16 Cal.4th 153, 206.) Likewise, Bathum forfeited his contention of prosecutorial misconduct, as counsel did not object to any of the prosecutor’s questions on that basis. (People v. Silveria and Travis, supra, 10 Cal.5th at p. 306.) In any event, as discussed below, we conclude that even if counsel had made timely objections on those grounds at trial, Bathum’s contentions are meritless. During his opening statement, defense counsel indicated he intended to pursue several strategies as part of Bathum’s defense. With respect to the charges relating to forcible sexual acts, counsel asserted the evidence would show the victims consented to the underlying acts. Counsel also stated the evidence would show that, rather than preying upon the former CRLA clients who were going to testify, Bathum was the actual victim in this case. Specifically, he stated the evidence would show that once the alleged victims learned Bathum was addicted to drugs, they sought him out, seduced him, and manipulated him to get drugs and money from him. To accomplish these objectives, defense counsel indicated he intended to undermine the witnesses’ credibility by questioning them on their financial motivations, their attempts to extort money from Bathum, when and how they reported the alleged crimes to authorities, and their imperfect recollection of the details surrounding the relevant events. Given these comments, the prosecution was entitled to ask the witnesses about their feelings regarding their experiences at CRLA to preemptively counter the defense’s effort to present Bathum as the victim of their nefarious objectives. (See People v. Merriman, supra, 60 Cal.4th at p. 86 [prosecution 72 was “entitled to present evidence of the witnesses’ reluctance to testify to preemptively counter” defense’s challenges to their credibility].) The witnesses’ responses to the prosecution’s questions were relevant to several key issues at trial. Hayley’s feelings of being betrayed by Geiger when he shared with Bathum her disclosure of inappropriate conduct, as well as the deep feelings of distrust she developed due to her experiences at CRLA, shed light on why she did not report the alleged sexual assaults earlier, and why she did not initially respond to Detective Jackson’s inquiries. That testimony, along with her explanation of her reasons for testifying, undercut defense counsel’s theory that she was testifying against Bathum because he had refused her request for money. Further, her testimony regarding her negative feelings following the Summer Hill incident refuted the defense’s theory that she consented to the sexual acts that took place there. Therefore, her testimony above was relevant, as it bolstered her credibility and disproved one of Bathum’s defenses. Similarly, the strong negative feelings Stephanie, Amanda, and Ruah experienced relating to their involvement in sexual acts with Bathum and/or their drug use while at CRLA refuted the defense’s theory that they sought Bathum out to seduce, manipulate, or otherwise take advantage of him to get drugs and money. Therefore, their testimony was relevant because it tended to disprove one of Bathum’s overarching theories of the case. The prosecution’s questions about the witnesses’ feelings, and the witnesses’ responses to those questions, were fairly brief. Except for Hayley’s explanation of her reasons for testifying, each of the witness’s answers was, at most, a few sentences. And, despite being the longest response, Hayley’s explanation only 73 spanned about one page of reporter’s transcript. The testimony at issue was adduced at the end of each the witnesses’ testimony on direct or redirect examination, after they had already testified at length and in detail about the events underlying the charges against Bathum. Under these circumstances, it would have been well within the trial court’s discretion to find the probative value of the testimony was not substantially outweighed by the risk of undue prejudice. Therefore, we conclude the trial court did not err by failing to exclude the evidence under Evidence Code section 352, that the prosecution did not engage in misconduct by presenting the evidence, and that defense counsel’s failure to object to the evidence did not constitute deficient performance resulting in prejudice. Further, even assuming, arguendo, the trial court erred by admitting the testimony discussed above, we would find no prejudice under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) or People v. Watson (1956) 46 Cal.2d 818, 836-838 (Watson). Here, the evidence of Bathum’s guilt was overwhelming. Each of the alleged victims testified in substantial detail about his crimes. In addition to corroborating one another, their testimony was also corroborated by other evidence, including the testimony of other witnesses, such as family members and law enforcement. Under these circumstances, we conclude the asserted error would have been harmless beyond a reasonable doubt, and it is not reasonably probable that the trial court’s exclusion of the testimony at issue would have resulted in a more favorable outcome for Bathum. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at pp. 835-836.) 74 XI. Whether Multiple Convictions and Multiple Punishments are Permissible Under Business and Professions Code Section 729, Subdivision (b)(3) Bathum contends “[a]ll convictions and each sentence for violation of [Business and Professions Code] section 729, save one, must be stricken[ ]” because under section 729, subdivision (b)(3), he “may suffer but a single conviction[ ] and a single sentence[ ]” for engaging in acts of sexual exploitation with multiple victims. As discussed below, we are not convinced by his argument. A. Relevant Statutory Provisions As noted above, Business and Professions Code section 729, subdivision (a) provides, in relevant part: “[A]ny person holding himself . . . out to be a . . . psychotherapist[ ] or alcohol and drug abuse counselor, who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client, . . . is guilty of sexual exploitation . . . .” Section 729, subdivision (b) states: “Sexual exploitation . . . is a public offense: “(1) An act in violation of subdivision (a) shall be punishable by imprisonment in a county jail for a period of not more than six months, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. “(2) Multiple acts in violation of subdivision (a) with a single victim, when the offender has no prior conviction for sexual exploitation, shall be punishable by imprisonment in county jail for a period of not more than six months, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. 75 “(3) An act or acts in violation of subdivision (a) with two or more victims shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000); or the act or acts shall be punishable by imprisonment in a county jail for a period of not more than one year, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. “(4) Two or more acts in violation of subdivision (a) with a single victim, when the offender has at least one prior conviction for sexual exploitation, shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000); or the act or acts shall be punishable by imprisonment in a county jail for a period of not more than one year, or a fine not exceeding one thousand dollars ($1,000), or both that imprisonment and fine. “(5) An act or acts in violation of subdivision (a) with two or more victims, and the offender has at least one prior conviction for sexual exploitation, shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000).” B. Analysis “The proper interpretation of a statute is a question of law we review de novo. [Citations.] ‘“‘“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning.”’”’ [Citation.] 76 ‘“[W]e look to the ‘entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 961.) Interpretations leading to absurd results are to be avoided. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Applying these well-settled principles, we reject Bathum’s contention that a defendant who violates section 729 with multiple victims may suffer only one conviction and one sentence. Section 729, subdivision (a) sets forth the elements of sexual exploitation. Thereafter, and of particular relevance here, subdivision (b) provides the offense may be punishable as a misdemeanor or felony, depending on whether certain facts have been proven alongside the elements described in subdivision (a). (See Bus. & Prof. Code, § 729, subd. (b); see also Applied Materials v. Workers’ Comp. Appeals Bd. (2021) 64 Cal.App.5th 1042, 1075-1076.) Subdivision (b)(1) specifies the sentence for a first-time offender who commits a single act of sexual exploitation with one person. (Bus. & Prof. Code, § 729, subd. (b)(1).) Subdivision (b)(2) and (b)(3), respectively, set forth the sentences for first-time section 729 offenders who have either committed multiple acts of sexual exploitation with a single victim (id. subd. (b)(2)), or who have committed “[a]n act or acts” of sexual exploitation with two or more victims (id., subd. (b)(3)). Subdivision (b)(4) and (b)(5), respectively, specify the sentences for those who have sustained at least one prior sexual exploitation conviction, and who have either engaged in multiple acts of sexual exploitation with a single victim (id., subd. (b)(4)), 77 or who have committed “[a]n act or acts” of sexual exploitation with two or more victims (id., subd. (b)(5)). Accordingly, based on its plain language, subdivision (b)’s purpose is to provide for punishments of varying severity based on the number of violations committed, the number of people involved in those violations, and whether the defendant has prior convictions under the statute. (See Bus. & Prof. Code, § 729, subd. (b).) Nothing in section 729 states or otherwise suggests that a defendant who violates the statute with multiple victims may be subjected to only a single conviction and required to serve a single sentence.11 (See id., § 729.) We therefore conclude Bathum’s “interpretation [of section 729] is not supported by [its] plain language . . . , and we are not persuaded to engraft the limitation he seeks onto the words of the Legislature.” (People v. DeSimone (1998) 62 Cal.App.4th 693, 698.) Moreover, we note Bathum’s interpretation of section 729 would lead to absurd results. As the Attorney General points out, were we to accept his contention, once a defendant commits a single violation of the statute, he could then commit further violations against numerous other victims with impunity. This would undermine section 729’s overarching purpose of deterring sexual exploitation by the persons identified in section 729, subdivision (a), and protecting potential victims. Consequently, for this additional reason, Bathum’s argument is unavailing. 11 Nor does section 729 contain any language permitting only one conviction and one sentence for a defendant who commits multiple acts with a single victim. (See Bus. & Prof. Code, § 729.) Consequently, we also reject Bathum’s challenge to his convictions on counts 18 and 19 mentioned in footnote 8, ante. 78 XII. Admission of Testimony on Certain Topics by Amy W., Mollie W., Erika B., and Erika L. A. Relevant Background As discussed below, Bathum challenges the admissibility of certain testimony of Mollie W., Erika B., Erika L.,12 and Amy W., which did not pertain to the incidents in which he gave them drugs. We summarize the disputed testimony here. Amy W. testified she attended several group sessions at CRLA, including a trauma group facilitated by Bathum. Amy recalled that, during group sessions, Bathum asked clients to share information about their parents and their relationships with them. She did not remember other therapists or counselors being present at the groups led by Bathum. Although she was not aware whether Bathum had any credentials to lead those groups, she had the impression he had “some type of clinical therapist- type credentials[.]” When asked why she believed he had those credentials, she explained Bathum used clinical vocabulary while speaking “about therapy-type issues[,]” which made him sound “educated and intelligent and like he knew what he was talking about.” Similarly, Mollie and Erika B. both testified they participated in a trauma group facilitated by Bathum, where he asked them and other participants to share personal information, such as the nature of their relationships with their parents. Mollie testified Bathum asked follow-up questions, gave participants feedback and advice, and sympathized with them. She did not believe he had any credentials based on his role in 12 Erika L.’s testimony formed the basis of count 44, on which Bathum was found not guilty. 79 the group. Erika B., however, testified Bathum “acted like a therapist” based on his behavior during the group. Erika B. testified Bathum pulled her aside after one of the trauma group sessions. He told her he felt drawn to her case because of her relationship with her father and offered to provide her one-on-one therapy to help her work through her issues. She declined Bathum’s offer “because [she] didn’t get a good vibe.” Erika L. testified she had contact with Bathum multiple times between 2015 and 2016. Over a relevance objection by defense counsel, she testified their interactions became sexual in nature on three occasions. First, while in a hotel room one night, Bathum asked her to get onto the bed and sit in front of him while he tried to hypnotize her. As he did so, he said, “‘You are going to surrender to me. You are going to be comfortable[.]’” Ultimately, Bathum did not hypnotize her, and nothing more came out of the incident. Second, while sitting in Bathum’s car together, he kissed her hand and said, “‘Is it okay if I do something like that?’” She testified she “didn’t want him to do that.” Lastly, over defense counsel’s objection and motion to strike, Erika L. testified that during a conversation over Facebook Messenger, Bathum told her “how he was really horny and watching a bunch of porn that morning[.]” B. Analysis Bathum appears to contend his convictions must be reversed because the trial court erred by failing to exclude the testimony above under Evidence Code section 352. He argues the evidence was irrelevant, cumulative, and overly prejudicial, as it “had nothing to do with the [drug furnishing] charges[ ]” relating 80 to those witnesses, and distracted the jury from the issues pertaining to Bathum’s guilt of those crimes. We reject Bathum’s argument. Again, we note defense counsel did not object to any of the testimony above under Evidence Code section 352. Consequently, his contentions have been forfeited. (People v. Williams, supra, 16 Cal.4th at p. 206.) In any event, we conclude that even if counsel raised timely objections under the statute, it would have been well within the trial court’s discretion to conclude the evidence’s probative value was not substantially outweighed by any risk of undue prejudice. At the outset, we note the disputed evidence was relevant to several issues at trial. (See Evid. Code, § 210.) As noted above, in defense of the charges against Bathum, defense counsel primarily sought to undermine the alleged victims’ credibility and portray him as the victim of manipulation and seduction by those former CRLA clients. The testimony of the three witnesses above countered those efforts. Specifically, through testifying to Bathum’s role in facilitating the trauma group, Amy, Erika B., and Mollie corroborated the testimony of the alleged victims of sexual exploitation, who each provided nearly identical accounts of his role in the group. Further, because their testimony was consistent with that of several other witnesses, Amy, Erika B., and Mollie also boosted their own credibility. Similarly, Erika L.’s testimony regarding Bathum’s attempts to hypnotize her was consistent with the testimony by Brittni J., Amanda S., Jennifer I., and Ruah D., who each related Bathum also tried to hypnotize them. Her testimony therefore bolstered their credibility. Bathum argues that despite being relevant, the testimony was unduly prejudicial and ran the risk of confusing the jury, because a victim may only testify to facts relating to the crimes in 81 which they were involved. We reject his contention for two reasons. First, Bathum has not cited—and we could not locate— any section of the Evidence Code or other pertinent legal authority supportive of his asserted rule. Second, his argument is inconsistent with the broad definition of relevance in Evidence Code section 210. Under that statute, evidence is relevant so long as it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210, italics added.) Accordingly, we conclude that, even if proper and timely objections had been made, it would have been well within the trial court’s discretion to find the probative value of the testimony above was not substantially outweighed by the risk of undue prejudice. Therefore, the trial court did not err by failing to exclude the disputed evidence under Evidence Code section 352. Further, even assuming, arguendo, the trial court erred by admitting the testimony at issue, we would find no prejudice under Chapman, supra, 386 U.S. at p. 24, or Watson, supra, 46 Cal.2d at pp. 836-838. As previously discussed, the evidence of Bathum’s guilt was overwhelming. Consequently, the asserted error would have been harmless beyond a reasonable doubt, and it is not reasonably probable that the trial court’s exclusion of the testimony at issue would have resulted in a more favorable outcome for Bathum. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at pp. 835-836.) XIII. Instructional Error – CALCRIM. No. 375 A. Relevant Background Ruah D. testified Bathum “offered [her] money to give Dana [R.] a hotshot.” Although she did not know what a “hotshot” 82 was, she testified Bathum explained the term to her as follows: “When you put too much heroin in a shot and give it to somebody, or it’s bad heroin to kill somebody.” The trial court instructed the jury on the principles relating to uncharged offenses or acts pursuant to CALCRIM No. 375. In so doing, the court stated, in relevant part: “The People presented evidence that the defendant committed other offenses or other behavior that were not charged in this case. You may consider this evidence only if the People have proved by the preponderance of the evidence that the defendant, in fact, committed the uncharged offenses or act. . . . . If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offense or act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: The defendant was the person who committed the offenses alleged in this case; Or the defendant actively acted with the intent required to prove the offenses in this case; Or the defendant had a motive to commit the offenses alleged in this case; Or the defendant acted with the required knowledge to prove the offenses alleged when he allegedly acted in this case; Or the defendant had a plan or scheme to commit the offenses alleged in this case[.]” During closing argument, the prosecution asserted Bathum attempted to silence witnesses who tried to speak out against him, and thereby exhibited consciousness of guilt. In so doing, the 83 prosecution referred to Ruah’s testimony that he offered her money to give a hotshot to Dana. B. Analysis Bathum contends the trial court erred in giving CALCRIM No. 375, and therefore violated his right to a fair trial and due process, by: (1) failing to specify the uncharged offense at issue was murder-for-hire and instructing the jury of its elements; and (2) by “fail[ing] to tailor [the instruction] by deleting reference to theories of relevance for which the evidence wasn’t admitted.” He further asserts that, to the extent these claims have been forfeited, defense counsel was ineffective by failing to request those modifications to the instructions. At the outset, we note Bathum’s instructional error claim has been forfeited, as defense counsel did not ask the trial court to modify CALCRIM No. 375. (See People v. Orloff (2016) 2 Cal.App.5th 947, 958.) Even if counsel had done so, however, Bathum’s argument fails. As the Attorney General points out, our Supreme Court rejected a similar argument in People v. Letner and Tobin, supra, 50 Cal.4th 99. There, the defendants argued the trial court’s instruction under CALJIC No. 2.50, which is nearly identical to CALCRIM No. 375, “was erroneous because it failed to identify precisely which other-crimes evidence had been admitted.” (People v. Letner and Tobin, supra, at p. 190.) In holding their contention was misplaced, the court explained: “We have held that in order to avoid confusion in a case in which evidence of a defendant’s criminal activity includes not only convictions admitted to impeach the defendant’s own testimony, but also other-crimes evidence admitted under section 1101, subdivision (b) of the Evidence Code, the trial court must specify which evidence is referred to in the CALJIC No. 2.50 instruction 84 given to the jury. [Citations.] There was no possibility of such confusion in the present case, because no criminal impeachment evidence was offered. Therefore, the trial court’s instruction remained ‘properly neutral and objective’ by not referring to particular crimes.” (Ibid.) Here, as in People v. Letner and Tobin, “no criminal impeachment evidence was offered[,]” because Bathum did not testify at trial. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 190.) Thus, we likewise conclude he has not shown reversible error based on the trial court’s “fail[ure] to identify precisely which other-crimes evidence had been admitted.” (Ibid.) In any event, any error by the trial court in failing to specify the uncharged offense referenced in the instruction and/or in failing to tailor the instruction for the applicable purposes for which it may be considered was harmless. As discussed above, the evidence of Bathum’s guilt was overwhelming. Therefore, we conclude “it is not reasonably probable that a result more favorable to [Bathum] would have been reached absent the alleged instructional error.” (People v. San Nicolas (2004) 34 Cal.4th 614, 669, citing Watson, supra, 46 Cal.2d at pp. 836-837.) In sum, for the reasons discussed above, we reject Bathum’s claims of instructional error and ineffective assistance of counsel based on the administration of CALCRIM No. 375. XIV. Instructional Error – CALCRIM. No. 3181 A. Relevant Background In giving CALCRIM No. 3181, the trial court stated, in relevant part: “If you find the defendant guilty of two or more sex offenses as charged in the counts alleging sex crime violations, you must then decide whether the People have proved the 85 additional allegation that those crimes were committed against more than one victim.” B. Analysis Bathum contends the trial court erred in giving CALCRIM No. 3181 because “it failed to clarify [the instruction] only applied to [Business and Professions Code] section 729 sex crimes violations.” He therefore argues that, due to the “misleading” instruction, the jury may have improperly considered the forcible sex acts involving Hayley, which did not form the basis of the sexual exploitation charges, in deciding whether he violated section 729 with more than one victim. Thus, he contends the “[t]rue findings on each multiple victim allegation [accompanying his sexual exploitation convictions] must be stricken.” In addition, he argues that to the extent his claim of instructional error has been forfeited, defense counsel was ineffective in failing to seek clarification of the instruction. Bathum’s contention is meritless. As the Attorney General correctly points out, defense counsel did not request clarification of the instruction at trial. Therefore, Bathum has forfeited his claim of instructional error. (See Covarrubias, supra, 1 Cal.5th at pp. 876-877.) In any event, any vagueness in the instruction was harmless. Again, as the Attorney General observes, the jury found Bathum guilty of 10 counts of sexual exploitation relating to 7 victims, of which Hayley was only one. Under these circumstances, we conclude the jury’s true findings on the multiple-victim allegations were proper. Accordingly, we reject Bathum’s claim of instructional error and ineffective assistance of counsel based on the trial court’s administration of CALCRIM No. 3181. 86 XV. Whether Certain Technical Errors in the Record Must be Corrected Lastly, Bathum asks that a few technical errors in the record be corrected. First, he notes the verdict forms relating to counts 9, 11, 12, 16, 18, 19, 22, 27, 32, 33, 34, and 49 erroneously identify Business and Professions Code section 729, subdivision (a)(3), which does not exist, as the statute under which the jury found the multiple victims allegations to be true. He asserts these forms should be corrected to reflect the jury’s findings were made under section 729, subdivision (b)(3). Next, Bathum claims the trial court misspoke in summarizing his sentence on some of the sexual exploitation counts. He points out that in volume 15 of the reporter’s transcript at pages 11116-11117, the court stated: “[S]o the court’s sentence will be 16 months as the base term on count 11, then eight months each of one[-]third the mid[-]term for counts 18, 22, 27, 32, and 49. That would be a total of 56 months, which would be four years, eight months on those counts. [¶] All . . . the remaining counts [under Business and Professions Code section 729] that the court has not enumerated, would be high term [of] three years on each count, as the court has previously indicated, consecutive.” (Italics added.) He notes, however, that on pages 11113-11114, the court previously stated Bathum’s sentences on “[c]ounts 9, 12, 16, 19, 33, and 34 will be the high term of three years but concurrent with the sentence.” (Italics added.) Asserting one may only calculate his total sentence to be 52 years and 8 months if his sentences on counts 9, 12, 16, 19, 33, and 34 are served concurrently with his other sentences, he contends the court’s remarks on page 11117 should be corrected to be consistent with its comments on pages 11113 and 11114. 87 The Attorney General does not object to Bathum’s requests for corrections to the record, and we see no reason to deny them. Accordingly, we hereby order the trial court to correct the record as Bathum has requested. (Cal. Rules of Court, Rule 8.841(b)(1).) DISPOSITION The judgment is affirmed. Upon issuance of the remittitur, the trial court is instructed to correct the technical errors in the record identified in section XV this opinion. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS CURREY, J. We concur: COLLINS, Acting P.J. STONE, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution. 88	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484725/	Filed 11/17/22 P. v. Razon CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E079106 v. (Super.Ct.No. ICR17621) DWAYNE BERNARD RAZON, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. 1 Defendant and appellant Dwayne Bernard Razon appeals the Riverside County Superior Court’s denial of his petition for resentencing made pursuant to section 1172.6 of the Penal Code.1 We affirm. BACKGROUND In 1995, a jury found defendant guilty of several offenses, including second degree murder in violation of section 187. In 1996, the trial court sentenced him to a prison term of 15 years to life. Defendant appealed his conviction to this court. (People v. Razon (Feb. 26, 1998, E018625) [nonpub. opn.].) He raised several arguments, including insufficiency of the evidence to support the jury’s conclusion that he committed provocative act murder. We corrected an error in the abstract of judgment and affirmed the judgment in all other respects. On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018, ch. 1015.) That measure amended sections 188 (defining malice) and 189 (defining degrees of murder) to limit the reach of the felony-murder rule in cases of first and second degree murder and eliminated the natural and probable consequences liability for murder. (Stats. 2018, ch. 1015.) The bill also added section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. 1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code. 2 In December 2020, defendant’s section 1172.6 handwritten petition to the trial court was summarily denied without prejudice. Defendant then filed a form petition in February 2021. The court appointed counsel for him and ordered the People to show cause why the petition should not be granted. The People responded that defendant was not eligible for relief because (i) the jury had not been given instructions on the felony- murder rule or the natural and probable consequences doctrine, and (ii) the jury found defendant guilty of provocative act murder. At the May 2021 hearing, the trial court, relying on People v. Johnson, found defendant was ineligible for relief found because Senate Bill No. 1437 does not apply to provocative act murder. (People v. Johnson (2020) 57 Cal.App.5th 257, review denied Feb. 17, 2021, S266188.) Defendant appealed. On appeal, defendant’s appointed appellate counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436, that is, the brief set forth statements of the case and facts but did not present any issues for adjudication. Defendant did not respond to our invitation to submit a personal supplemental brief. We affirmed the trial court’s denial of the petition after we conducted an independent review and found no arguable issues. (People v. Razon (Aug. 26, 2021, E077085) [nonpub. opn.].) In January 2022, defendant filed another section 1172.6 petition. The trial court appointed counsel for defendant and set the matter for a status hearing. At the hearing, the People argued defendant’s eligibility for relief under section 1172.6 had already been 3 fully litigated in May 2021, and the trial court’s dismissal at that time was affirmed by this court. Defendant’s counsel submitted the matter, and the court denied the petition with prejudice. Defendant appealed. DISCUSSION Defendant’s appointed appellate counsel has filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. She suggests this court is required to independently review the record on appeal pursuant to People v. Wende, supra, 25 Cal.3d 436. Counsel presents four potentially arguable issues: (i) what procedures are appointed counsel and the Court of Appeal required to follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit; (ii) whether defendant is entitled to notice of those procedures; (iii) whether the trial court erred when it denied defendant’s petition for relief under section 1172.6; and, (iv) whether the trial court’s denial of appellant’s petition constituted prejudicial error. We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Although we are not required to independently review the record for potential errors in a postjudgment appeal, we exercised our discretion to do so in keeping with our opinion in People v. Griffin (Nov. 14, 2022, E079269) ___ Cal.App.5th ___ [2022 Cal.App. LEXIS 936]. We found no arguable issues. 4 DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: McKINSTER J. FIELDS J. 5	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484718/	NOT RECOMMENDED FOR PUBLICATION File Name: 22a0462n.06 Case No. 22-3194 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Nov 17, 2022 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF JASON JARVIS, ) OHIO Defendant-Appellant. ) OPINION ) Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges. THAPAR, Circuit Judge. Jason Jarvis pled guilty for his role in a drug-trafficking conspiracy. He challenges his sentence and his trial counsel’s effectiveness. We affirm his sentence and decline to consider his ineffective-assistance claim. I. A police officer pulled Jarvis and his then-girlfriend over for driving without a rearview mirror. The officer ordered Jarvis out of the car and patted him down. Feeling something that resembled a bag of marijuana, the officer reached into Jarvis’s pocket and found methamphetamine. The police arrested Jarvis and seized his girlfriend’s cellphone. The district court suppressed the methamphetamine, holding that the officer did not have reasonable suspicion to reach into Jarvis’s pocket. But the government still had enough evidence to support a conspiracy charge. Numerous Facebook and text messages showed that Jarvis was deeply involved in the Case No. 22-3194, United States v. Jarvis drug conspiracy. So he pled guilty, and the district court sentenced Jarvis to 120 months’ imprisonment. II. Jarvis first challenges his sentence. Before imposing sentence, the district court reviewed Jarvis’s multiple prior offenses. A state conviction for driving with a suspended license put him in a higher criminal history category and increased his recommended sentence by more than a year. See U.S.S.G. ch. 5 pt. A. He claims that the district court should not have considered the suspended license conviction because he wasn’t represented by counsel in that case. Jarvis is right that generally a district court may not consider a previous uncounseled conviction during sentencing. United States v. Logan, 250 F.3d 350, 377 (6th Cir. 2001), superseded on other grounds by rule, Fed. R. Evid. 408. But there’s an exception if the defendant waived his right to counsel in the earlier case. Id. And that’s what Jarvis did. The sentencing order from the prior conviction notes that Jarvis “was advised of . . . [and] knowingly waived” his right to counsel. R. 510, Pg. ID 2896. Based on that order, the district court concluded that Jarvis had waived his right to counsel in the earlier proceeding. Jarvis contends that his sentencing order is insufficient proof of waiver because he didn’t sign the order. But the state court apparently “never includes a defendant’s signature” on its sentencing orders. R. 560, Pg. ID 3170. And Jarvis didn’t contest that practice. Indeed, he produced no evidence showing the state court should have required Jarvis to sign his sentencing order. So the district court found that the form showed Jarvis waived his right to counsel. Because the district court is best positioned to make that fact-bound determination, we review for abuse of discretion. See United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008). Given the clear statement of waiver in the sentencing order and the state court’s unchallenged practice, the district -2- Case No. 22-3194, United States v. Jarvis court did not abuse its discretion by concluding that Jarvis waived his right to counsel in the state proceeding. III. Jarvis also argues that his trial counsel was ineffective for failing to investigate whether the evidence from his then-girlfriend’s phone could be suppressed. This is an unusual claim to bring at this stage. Jarvis did not raise this claim below, so he failed to develop a record explaining his counsel’s choices. That leaves us guessing about important questions: Did Jarvis have standing to challenge the seizure of his girlfriend’s phone? What evidence came from the phone? How much did Jarvis’s trial counsel know about the phone? Because we can only speculate, we leave Jarvis’s ineffective assistance claim for post-conviction proceedings, where he can more fully develop a factual record. See United States v. Bradley, 400 F.3d 459, 461–62 (6th Cir. 2005). In short, there is inadequate evidence for us to consider Jarvis’s ineffective-assistance claim. * * * We affirm the district court’s sentence and leave Jarvis’s ineffective-assistance claim for post-conviction proceedings. -3-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484717/	USCA4 Appeal: 21-2320 Doc: 22 Filed: 11/16/2022 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-2320 STATE FARM LIFE INSURANCE COMPANY, Plaintiff , v. ABIGAIL ROGERS; WILFRED ROGERS, Defendants - Appellants, v. JOSEPH KIMPSON, Defendant - Appellee, PALMER MEMORIAL CHAPEL, INC.; AMERICAN FUNERAL FINANCIAL, LLC, Defendants. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:20-cv-02627-JFA) Submitted: October 4, 2022 Decided: November 16, 2022 Before THACKER, HARRIS and HEYTENS, Circuit Judges. USCA4 Appeal: 21-2320 Doc: 22 Filed: 11/16/2022 Pg: 2 of 5 Affirmed by unpublished per curiam opinion. ON BRIEF: Thomas E. Lydon, MCANGUS, GOUDELOCK & COURIE, LLC, Columbia, South Carolina, for Appellants. Spencer Andrew Syrett, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 USCA4 Appeal: 21-2320 Doc: 22 Filed: 11/16/2022 Pg: 3 of 5 PER CURIAM: In March of 1990, Shellie Rogers-Kimpson (“Shellie”) purchased a life insurance policy (“Policy”) through State Farm Life Insurance Company (“State Farm”) naming her children from a previous marriage -- Abigail Rogers and Wilfred Rogers (“Appellants”) -- the primary and successor beneficiaries. On June 14, 1991, Shellie and Joseph Kimpson (Appellee) executed an Antenuptial Agreement (“Agreement”) designating marital and separate property. Per the Agreement, the Policy was identified as Shellie’s separate property. On June 26, 1991, following Shellie’s marriage to Appellee, Shellie signed two documents in connection with the Policy including a change of beneficiary form designating Appellee as her primary beneficiary. On May 14, 2020, Shellie died. On July 15, 2020, State Farm filed an interpleader action in the District of South Carolina to ensure the proceeds of the Policy were distributed appropriately. Through Consent Order, State Farm received permission to deposit the life insurance funds with the court. State Farm was subsequently dismissed, and the parties filed cross-motions for summary judgment. Appellants argued that designation of Appellee as the beneficiary of Shellie’s Policy constituted a violation of -- or failed amendment to -- the Agreement, as the Policy had been designated Shellie’s separate property. Appellee argued that an insurance policy is a contract between the insured and the insurer and that designating a beneficiary does not constitute a transfer in ownership of the policy. The district court granted summary judgment to Appellee, and simultaneously denied Appellant’s summary judgment motion. We affirm. 3 USCA4 Appeal: 21-2320 Doc: 22 Filed: 11/16/2022 Pg: 4 of 5 We review the district court’s grant of summary judgment de novo. Nautilus Ins. Co., v. GC & P Dev. LLC, 848 F. App’x 130, 131 (4th Cir. 2021). Where both parties move for summary judgment, we review each motion separately resolving “all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion.” Defenders of Wildlife v. North Carolina Dep’t of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Rossignol v. Voorhaar, 316 F.3d, 516, 523 (4th Cir. 2003)). Here, the district court did not err in granting summary judgment to Appellee. First, Shellie did not transfer ownership of the Policy to Appellee by simply designating him as the beneficiary. Thus, there was no modification of the Agreement, nor any transfer pursuant to -- or in violation of -- the Agreement. Appellee was properly designated as the beneficiary of Shellie’s Policy and Appellee is entitled to its proceeds. Second, even assuming Shellie transferred ownership of her policy to Appellee, the Agreement permitted such transfer. The Agreement clearly states, “[n]othing herein shall be construed as preventing either of the parties from giving any of his or her property or estate to the other by deed, gift, will or otherwise.” J.A. 57, ¶ 4 . Thus, in changing her beneficiary designation, Shellie was not modifying the Agreement -- she was complying with it. She “otherwise” gave “her property . . . to the other.” J.A. 57. Therefore, we affirm the district court’s grant of summary judgment to Appellee concomitantly affirming denial of Appellants’ summary judgment motion. Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 4 USCA4 Appeal: 21-2320 Doc: 22 Filed: 11/16/2022 Pg: 5 of 5 AFFIRMED 5	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484719/	NOT RECOMMENDED FOR PUBLICATION File Name: 22a0463n.06 Case No. 22-5178 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 17, 2022 ) JEREMIAH ALLSOPP, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF MATTHEW HARE; COFFEE COUNTY, ) TENNESSEE TENNESSEE, ) Defendants-Appellees. ) OPINION ) Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges. THAPAR, Circuit Judge. Pretrial detainee Jeremiah Allsopp brought an excessive-force claim against Officer Matthew Hare. A jury found for Hare. Allsopp appeals, challenging the jury’s verdict and an evidentiary ruling by the district court. We affirm. I. Even before the incident at issue here, Allsopp was on the Coffee County Jail guards’ radar. The guards previously found scissors hidden in Allsopp’s laundry. And just before the incident, through the jail intercom, the guards overheard Allsopp and his cellmate concoct a story that they hoped would get them moved into private cells. So when Allsopp called the guards to diffuse a supposed disagreement he was having with his cellmate, the guards were suspicious. Despite their suspicions, the guards proceeded as if a real fight could break out between the cellmates. The guards used the intercom to order the cellmates to step away from each other. Allsopp became Case No. 22-5178, Allsopp v. Hare irate, cursing at the guards and stepping out of his cell to raise his middle finger at the guard tower. Fearing violence, Officer Hare’s supervisor directed him to secure Allsopp in his cell or on the ground if necessary. Officer Hare came down from the guard tower to Allsopp’s “pod”—a common room with large steel tables surrounded by cells. Allsopp had removed his shirt, which Officer Hare testified is a typical practice for inmates getting ready to fight. As Officer Hare approached, Allsopp clenched his fists and became even more agitated, pointing his finger in Officer Hare’s face, cursing at him, and threatening that he would “have something coming” if he dared touch Allsopp. R. 138, Pg. ID 1807. Though Officer Hare could’ve secured Allsopp right there, he feared that he might injure Allsopp or himself on the pod’s steel tables. Officer Hare asked Allsopp to return to his cell instead. At first, Allsopp didn’t comply. He eventually gave in and started towards his cell. But after a few steps, Allsopp suddenly raised his arm—palm away from Officer Hare—as if to reach for a weapon or to make good on his threats. Because Officer Hare hadn’t searched Allsopp, he assumed that Allsopp was reaching for a weapon or preparing to hit him. So Officer Hare wrestled Allsopp to the ground. Fortunately for the detainee, Allsopp’s arm and Officer Hare’s body took the brunt of the impact. Indeed, Officer Hare protected Allsopp’s head from hitting the ground. But Allsopp felt his neck “pop” during the takedown. R. 137, Pg. ID 1623, 1657. As a result, Allsopp “experienced a lot of pain” and could hardly turn his head or move his shoulder after the incident. R. 137, Pg. ID 1624. Despite this, Allsopp refused medical treatment. Officer Hare’s supervisor observed the entire interaction from the guard tower. The supervisor considered Officer Hare’s actions appropriate and even necessary under established -2- Case No. 22-5178, Allsopp v. Hare procedure. Allsopp thought otherwise and sued Officer Hare for excessive force. Following trial, a jury concluded that Officer Hare was not liable for Allsopp’s injuries. Shortly thereafter, the district court denied Allsopp’s renewed motion for judgment as a matter of law. Allsopp appealed. II. Allsopp first argues that he was entitled to judgment as a matter of law. In doing so, he shoulders a heavy burden. Allsopp must demonstrate that, viewing all evidence in the light most favorable to Officer Hare, the jury could come to just one conclusion: Officer Hare used unreasonable force. Coley v. Lucas Cnty., 799 F.3d 530, 538 (6th Cir. 2015) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)); Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010). Ample evidence supported the jury’s verdict. Allsopp’s past concealment of a weapon, his threatening behavior, and his sudden move as if for a weapon all provided reasonable grounds for Officer Hare’s use of force. Moreover, Officer Hare followed the prison’s policies and his supervisor’s directions and took extra measures to avoid harming Allsopp. He performed the takedown away from the pod’s tables, prevented Allsopp’s head from hitting the floor, and absorbed the brunt of the fall by placing himself between Allsopp and the ground. Likely owing to these preventative measures, Allsopp concedes that he was not seriously injured. For these reasons, there was ample evidence for the jury to conclude that Officer Hare’s use of force was reasonable. Allsopp offers two counterarguments. First, Allsopp argues Officer Hare’s use of force was disproportionate because Allsopp was merely disrespectful, not threatening. But that argument directly contradicts Officer Hare’s testimony. At trial, Officer Hare testified that he used force because Allsopp’s threatening behavior left him with no other option. When there is conflicting testimony, we must accept the -3- Case No. 22-5178, Allsopp v. Hare testimony that is most favorable to the winner at trial. See Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 879 (6th Cir. 2001). Here, that means crediting Officer Hare’s testimony. And that testimony supports the jury’s verdict. Second, Allsopp argues that Officer Hare waited too long before taking Allsopp to the ground. This too conflicts with Officer Hare’s testimony that, for the safety of both men, Officer Hare waited to take Allsopp to the ground until he was clear of the tables. Officer Hare’s version of events—which, again, we must credit—supports the jury’s finding. For these reasons, the jury was entitled to find that Officer Hare used force in an objectively reasonable manner. III. Allsopp also asks for a new trial because he contends the district court improperly excluded evidence of Officer Hare’s past uses of physical force against other inmates. But the district court’s evidentiary ruling was not an abuse of discretion. Federal Rule of Evidence 404 prohibits evidence of past acts if it is meant to show that a person acted similarly on this occasion. In other words, a plaintiff may not ask the jury to infer that the defendant violated the law on this occasion because he “is the sort of person who” breaks the law. Bard v. Brown Cnty., 970 F.3d 738, 757 n.12 (6th Cir. 2020) (citation omitted). But that’s exactly what Allsopp wanted the jury to do. At trial, Allsopp wanted to show “that Hare has a pattern of using physical force when faced with verbal disrespect.” Appellant Br. 43. Essentially, Allsopp wanted to present evidence allowing the jury to infer that because Officer Hare allegedly used physical force on other inmates without justification in the past, he likely did the same in this instance. But Rule 404 stands in his way. -4- Case No. 22-5178, Allsopp v. Hare Before the district court, Allsopp argued that Officer Hare’s past conduct wasn’t character evidence but evidence of Officer Hare’s motive. To be sure, Rule 404 permits evidence of past wrongs to be admitted to prove motive. Fed. R. Evid. 404(b)(2). But Allsopp’s proposed evidence would not have done that. One of Allsopp’s cited cases provides a good example of admissible motive evidence and illustrates why Allsopp’s evidence instead constituted inadmissible character evidence. See United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005). In Garcia-Meza, the prosecution introduced evidence that the defendant had assaulted his wife out of jealousy before she was murdered. Id. at 368. On one hand, this evidence could have supplied a motive for the murder: jealousy. On the other hand, such evidence might have been used to show that because the defendant had attacked his wife before, he would have been likely to attack her again. But the kind of evidence offered in that case reduced the risk that the jury would use the evidence to determine motive. The prosecution didn’t just introduce evidence that the assaults occurred; it showed the jury why the defendant previously assaulted his wife and argued that same motive could also explain the murder. Id. That’s not what Allsopp wanted to do. Allsopp sought to introduce evidence of Officer Hare’s past uses of force against other inmates to show he was more likely to use force on this occasion. That inference is flatly prohibited by Rule 404. Allsopp also sought to introduce the evidence of past incidents to show his entitlement to punitive damages. But the jury found that Officer Hare was not liable for excessive force, so punitive damages were not on the table. Thus, any error in excluding the evidence relevant to punitive damages was harmless. See A.K. ex rel Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625, 629 (6th Cir. 2020). Although the district court excluded evidence of Officer Hare’s alleged past wrongs, the court admitted some character evidence in another form: Officer Hare’s supervisor testified that -5- Case No. 22-5178, Allsopp v. Hare Hare was a “fine officer.” R. 137, Pg. ID 1705. Allsopp contends that he was entitled to counter that opinion on cross-examination with evidence of Officer Hare’s past uses of force. The district court did not allow unbounded cross-examination, but it did permit questioning about past conduct that affected the supervisor’s opinion of Officer Hare. See Fed. R. Evid. 405(a) (giving the court discretion to “allow an inquiry into relevant specific instances of the person’s conduct”). It limited the inquiry to incidents that the supervisor knew about. And the supervisor did not know about the incidents Allsopp wanted to introduce. But the limits the district court imposed aren’t unreasonable just because those limits kept out evidence Allsopp wanted to introduce. District courts possess significant discretion when it comes to proof of past conduct. See United States v. Frost, 914 F.2d 756, 772 (6th Cir. 1990) (discussing Michelson v. United States, 335 U.S. 469, 480 (1948)). And the limits the court imposed here were well within that discretion. * * * We affirm. -6-	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484720/	NOT RECOMMENDED FOR PUBLICATION File Name: 22a0464n.06 Case No. 22-5022 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 17, 2022 ) ANDREW LOVINGOOD, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN MONROE COUNTY, TENNESSEE, ) DISTRICT OF TENNESSEE Defendant, ) ) OPINION ) DERRICK GRAVES; BILL JOHNSON, ) Defendants-Appellees. ) Before: SUTTON, Chief Judge; STRANCH and DAVIS, Circuit Judges. DAVIS, Circuit Judge. Plaintiff Andrew Lovingood appeals the district court’s sua sponte dismissal of his action based on a failure to prosecute. For the reasons stated below, we REVERSE and REMAND for further proceedings. I. Andrew Lovingood sued Monroe County, Tennessee, and two police officers, Bill Johnson and Derrick Graves, following a traffic stop. Lovingood alleges that the officers tased and physically assaulted him during and after the stop in violation of his Fourth Amendment constitutional rights. Each of the parties except for Johnson filed motions for summary judgment. After having missed the response deadline for the county’s motion, Lovingood requested an extension of time and subsequently requested leave to file a response. The court denied both Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. requests, but ultimately considered Lovingood’s untimely response. The district court denied Lovingood’s and Graves’s motions for summary judgment and granted summary judgment to the county, dismissing Lovingood’s claims against the county with prejudice. The court scheduled trial for March 16, 2021, on the remaining claims, but the parties had concerns arising from the severity of the COVID-19 pandemic and Plaintiff’s counsel had a conflicting jury trial date that was set prior to the filing of this case. Accordingly, the parties jointly moved for a continuance and the court reset the date to August 24, 2021. The court listed various requirements in its scheduling order for the August 24 trial date, including a date for the pretrial conference, a deadline for the parties to file a proposed joint final pretrial order, and instructions regarding the substance and format of the parties’ witness lists and joint final pretrial order. For example, the amended scheduling order provided: For each defendant, each plaintiff shall concisely state each legal theory relied upon and the factual allegations the plaintiff expects to prove in support of each. Vague, conclusory, and general claims and allegations are unacceptable. A plaintiff is expected to know the claims and be able to state precisely and succinctly the issues to be tried. Each claim must be set out in a separately numbered and labeled paragraph. The scheduling order included similar language for defendants and required that the parties file witness lists in accordance with Rule 26(a)(3). It additionally provided the following warning in bold font: Failure to file an agreed pretrial order or to notify the undersigned’s office that one cannot be agreed upon as required herein may be deemed a failure to prosecute the action and the action dismissed. The parties filed an agreed upon final pretrial order which set forth the facts of the case but did not state plaintiff’s legal theories or claims as required by the scheduling order. Lovingood’s attorney also listed several categories of damages in the pretrial order, including medical expenses, “loss of deprivation of constitutional rights,” and compensatory, punitive, and nominal damages. And, he -2- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. submitted a list of 80 witnesses, but he also failed to identify the names of several witnesses and did not provide contact information for any. On August 17, 2021, the district court held the first pretrial conference, during which the parties jointly requested a continuance because an essential witness was hospitalized due to COVID-19. During the conference, Plaintiff’s counsel informed the court that he had confirmed with Lovingood the previous week that he was available to move forward with the trial but that he had been unable to reach Lovingood since that time. Plaintiff’s counsel explained that Lovingood lives in his parents’ home, his father had recently died from COVID-19, and his mother was diagnosed with COVID-19—which Plaintiff’s counsel speculated may have affected Lovingood’s mental health and fear of COVID-19 exposure. Both attorneys for defendants agreed that Lovingood has mental health conditions independent of his fear of COVID-19. Before deciding the parties’ joint motion, the court expressed its frustration with the pace of the case; the judge noted that he did not “think anybody want[ed] to try th[e] case.” He further explained that the case was also partly complicated by Plaintiff’s witness list, which included 80 entries for a four-day trial. The judge then asked Plaintiff’s counsel whether he had deposed the listed witnesses. Plaintiff’s counsel responded that he had not, and that the final witness list was not due until that day—the date of the August 17 conference. Plaintiff’s counsel went on to explain that he and defense counsel had been actively discussing anticipated exhibits and witnesses. Plaintiff’s counsel was able to narrow the witness list based on those discussions and knew who he planned to call. He also acknowledged that although he had listed several types of damages in the pretrial order, this was a nominal damages case. The district court ultimately continued the trial date to January 11, 2022, and issued a new scheduling order that rescheduled the pretrial conference to December 9, 2021, set the final witness list deadline for January 4, 2022, and -3- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. included the same dismissal warning set forth above. The court also set out in bold and italics the requirement for Plaintiff that “[e]ach claim must be set out in a separately numbered and labeled paragraph” and added to the order that “simply reciting the facts of the case is not the same as stating the legal theory.” The parties again filed their witness and exhibit lists before the December 9 pretrial conference. Plaintiff’s counsel’s second-filed witness list was identical to the first. Neither party submitted an agreed pretrial order or notified the court that no agreement could be reached by the time of the pretrial conference. Plaintiff’s counsel explained that the parties had agreed the night before the conference to proceed with a bench trial instead of a jury trial and sought the court’s guidance on how to revise the pretrial order accordingly. Otherwise, he explained that the parties were prepared to file the pretrial order that same day. According to Plaintiff’s counsel, he had not filed a final witness list because he needed to reduce the list based on his discussions with defense counsel regarding proceeding with a bench trial and narrowing the exhibit list. Throughout the December 9 conference, the court reflected on several issues that it apparently had highlighted at the August 17 pretrial conference: • “[W]e talked about this some in August that you have to identify your actual claims and you can’t, you can’t put in your final pretrial order just your facts, but your theories.” • “[W]e talked about this in August like you can’t do it this way. You got to. . . limit your witnesses to the ones you’re going to actually call.” • “I was very clear in August that failure to comply with the Court’s order will result in a, a dismissal of the actions, and I either have to say it and mean it or don’t say it.” Toward the conclusion of the December 9 conference, the court asked Plaintiff’s counsel why the case should not be dismissed for failure to prosecute. He responded that “it’s not my case. It’s the claim of my client, Mr. Lovingood, and he’s the one that suffered injury at the hands of the -4- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. officers.” The court interrupted Plaintiff’s counsel to ask whether he intended to “pawn it off” on Lovingood. Plaintiff’s counsel responded that he was not but was instead stressing that dismissal would bar Lovingood of his claims with prejudice. Plaintiff’s counsel further explained that though he had not yet filed the final witness list, he had narrowed it to seven individuals. He also reiterated that his client suffered from mental health conditions, had just lost his father, and was dealing with his mother’s illness, which Plaintiff’s counsel believed may have caused the lag in communication between himself and Lovingood. The district court dismissed Lovingood’s case with prejudice at the conclusion of the hearing and entered an order to that effect the following day. II. Pursuant to Fed. R. Civ. P. 41(b), district courts may dismiss an action sua sponte for failure “to prosecute or to comply with these rules or a court order.” See also Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980). “This court applies an abuse of discretion standard when reviewing the district court’s dismissal of an action for failure to prosecute.” Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993). The court takes four factors into consideration when assessing the appropriateness of dismissals for failure to prosecute: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action.” Mulbah v. Detroit Bd. Of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Importantly, we recognize that the Supreme Court has afforded “no merit to the contention that dismissal of [a plaintiff’s] claim because of his counsel’s unexcused conduct imposes an unjust -5- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. penalty on the client.” Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962). “However, recognizing that the sanction of dismissal with prejudice deprives a plaintiff of his day in court due to the inept actions of his counsel, this [c]ourt has expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party’s attorney.” Mulbah, 261 F.3d at 590. (citation and quotation marks omitted). Accordingly, we have “applied the four-factor test more stringently in cases where the conduct of a plaintiff’s attorney is the reason for dismissal,” and “we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Id. at 591 (citation and quotation marks omitted); see also Carter, 636 F.2d at 161 (“Dismissal is usually inappropriate where the neglect is solely the fault of the attorney.”). In Harmon v. CSX Transp., Inc., 110 F.3d 364 (6th Cir. 1997), we explained the more stringent application of the four-factor test relevant for cases where, as here, the dismissal hinges on the plaintiff’s attorney’s conduct rather than the plaintiff’s own actions: With regard to the first factor, this court has stated that dismissal of an action for an attorney’s failure to comply should only be ordered where there is a clear record of delay or contumacious conduct. Similarly, with regard to the third factor, the court has explained that where a plaintiff has not been given notice that dismissal is contemplated, a district court should impose a penalty short of dismissal unless the derelict party has engaged in bad faith or contumacious conduct. Finally, with regard to the fourth factor, although it is clear that the failure of the district court to impose or make explicit its consideration of lesser sanctions is not fatal, this court recently stated that, in the absence of such consideration, and in the absence of contumacious conduct, an alternate sanction that would protect the integrity of pretrial procedures should be utilized rather than dismissal with prejudice. Id. at 367-68 (citations and quotation marks omitted). For instance, in Carter, the attorneys on both sides failed to meet the court’s scheduling order requirements, even though the order warned that noncompliance could result in dismissal. 636 F.2d at 160. Although the plaintiff’s attorney’s efforts were “wholly insufficient,” this conduct alone did not warrant dismissal. Id. We described the attorney’s conduct as follows: -6- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. He failed to engage in discovery, to discuss settlement, and to file appropriate pre- trial orders in a timely fashion as ordered by the court. He did not move for a continuance. His disregard for the schedule established by the court could only have left him unprepared for trial. He did not file a Rule 60(b)(1) motion for post- judgment relief on the grounds of excusable neglect. Id. But, noting that the plaintiff himself was blameless, we found that the district court abused its discretion in dismissing the case based on the attorney’s conduct. Id. We explained that despite his dilatory efforts, the attorney had at least filed documents indicating his views and prosecution of the case. Id. Considering that neither party filed timely pretrial orders, conferred prior to the conference, or engaged in discovery, and the defendants had not moved for dismissal based on plaintiff counsel’s noncompliance, we observed that the attorneys on both sides “seem[ed] equally dilatory.” Id. We further noted that the lower court had not found that the defendant was prejudiced or that the plaintiff could not make the case ready for trial. Id. We reached the same conclusion in Stough v. Mayville Cmty. Schs., where the plaintiff’s counsel failed to respond to motions for summary judgment twice, even after the first time resulted in the court granting the defendant’s motion for partial summary judgment on the merits and ordering plaintiff’s counsel to show cause as to why he should not be sanctioned. 138 F.3d 612, 613 (6th Cir. 1998). The plaintiff’s counsel, who was not retained until after the motion had been filed, responded to the court’s show cause order and the judge refrained from sanctioning him. Id. After the defendant filed a second motion for summary judgment, the plaintiff’s counsel called the court to advise that he intended to file a response. Id. Plaintiff’s counsel subsequently exchanged voicemails with the judge’s law clerk regarding the status of the tardy filing, but after having not received plaintiff’s counsel’s response, the district court dismissed the action without notice that the court was contemplating dismissal. Id. at 613-14. Two business days later, plaintiff’s counsel filed a motion for relief from judgment and responded to the motion for summary judgment and -7- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. the court’s show cause order.1 In finding that the district court abused its discretion, we acknowledged that “a pattern of this type of behavior may be sanctionable,” but we did not find that the court’s harshest sanction of dismissal was warranted, especially where the district court judge had not made a specific finding of bad faith or prejudice. Id. at 615. By contrast, we have found dismissal appropriate where the district court did not order dismissal until almost a year after the defendant served plaintiff’s counsel with its original discovery requests and had not received a complete response. See Harmon, 110 F.3d at 368. The plaintiff’s counsel in Harmon did not respond to the defendant’s requests for supplemental discovery, so the defendant followed up via letter. Id. at 365. The plaintiff’s counsel responded with a request for an extension, to which the defendant agreed. Id. However, the plaintiff’s counsel still missed the extended deadline. Id. The defendant sent another letter stating that it would file a motion to compel if necessary, and after silence from the plaintiff’s counsel, the defendant filed the motion. Id. The court granted the defendant’s motion to compel and ordered the plaintiff to respond to the discovery by a certain date. Id. at 366. The plaintiff’s counsel did not comply. Id. Based on this, the defendant filed a motion to dismiss, and the plaintiff’s counsel failed to respond. Id. The district court then dismissed the case for failure to comply with the court’s orders and failure to prosecute. Id. In finding that the district court did not abuse its discretion, we explained that “[the] record [was] more than adequate to establish that [plaintiff’s] counsel was stubbornly disobedient and willfully contemptuous.” Id. at 368. We noted the prejudice the defendant faced, as it never received complete discovery, and wasted time, money, and effort in pursuit of the plaintiff’s cooperation. Id. We also found that the defendant’s motion 1 The opinion summarily states that the attorney responded to an order to show cause issued by the court but does not describe the nature of the order nor when it was issued. -8- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. to dismiss provided adequate notice that the court was contemplating dismissal. Id. Finally, that the district court had not considered alternative sanctions was not dispositive, considering the plaintiff’s counsel’s contumacious conduct. Id. at 369. Similarly, dismissal was appropriate in United States v. Reyes, 307 F.3d 451, 456 (6th Cir. 2002), where “counsel was dilatory in providing initial discovery three months after it was due, failing to provide further requested discovery, and failing to respond to the United States’ motion to strike, even after the district court sua sponte granted an extension of time.” In that case, the district court “took the unusual step” of calling the plaintiff’s counsel to remind him that he missed a deadline and allowing him additional time. Id. at 457. The plaintiff’s counsel still failed to respond. Id. In holding that the district court had not abused its discretion, we found that this conduct was contumacious, the motion to strike provided adequate warning, and the government was prejudiced because the plaintiff’s counsel’s actions prevented it from complying with the court’s discovery deadline. Id. Based on the weight of the first three factors, the court’s failure to consider lesser sanctions was acceptable. Id. III. Here, we find that the district court went too far in dismissing Lovingood’s case with prejudice. The district court principally based its dismissal on Plaintiff’s counsel’s purportedly unexplained failure to file a sufficient witness list and agreed proposed pretrial order that properly set forth the parties’ legal theories in compliance with the scheduling order, even after the court informed Plaintiff’s counsel that the first filings were deficient. The dismissal order notes that “[u]pon inquiry by the [c]ourt as to why this action should not be dismissed for failure to prosecute and failure to comply with the [c]ourt’s order, Plaintiff’s counsel stated that this was not his case— rather, it was Mr. Lovingood’s case.” The district court also noted that Plaintiff listed extensive -9- Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. damages in the pretrial order, but subsequently acknowledged that this was a nominal damages case. Finally, the dismissal order mentioned Plaintiff’s counsel’s failure to timely respond to Monroe County’s motion for summary judgment. In the district court’s view, Plaintiff’s counsel’s failure to comply with the court’s schedules and failure to provide a justification for his shortcomings at the December 9 pretrial conference constituted contumacious conduct sufficient to warrant dismissal. We do not share this view. First, the record does not support a finding of contumacious conduct. In their briefing, Graves and Johnson point to criminal proceedings and other litigation arising from the same incident that gave rise to the present lawsuit. They argue that this amounts to bad faith because Lovingood has been “toying” with them and the county but “has not offered an iota of proof” to support his claims. However, this argument holds no merit in the face of the district court’s denial of Lovingood and Graves’s summary judgment motions and Johnson’s failure to file one. We have been presented with no reason to doubt the district court’s finding that genuine issues of material fact remained in this case; nor are those rulings currently before us. Further, while Plaintiff’s counsel did not fully comply with the court’s scheduling order, his conduct did not rise to the level of neglect displayed in Carter. See 636 F.2d at 160. In that case, the attorney failed to engage in discovery and settlement discussions and missed the deadline for pretrial orders. Id. at 160-61. We found that attorney’s conduct to be “wholly insufficient,” and it still did not rise to a level of misconduct sufficient to warrant dismissal of the entire action absent sufficient blame attributable to the plaintiff. Id. at 161; see also Prime Finish, LLC v. ITW Deltar IPAC, 608 F. App’x 310, 312, 315 (6th Cir. 2015) (reversing dismissal where intervenor failed to comply with several court orders requiring status report including a related order to show cause). Here, we cannot say that Plaintiff’s counsel’s conduct was wholly insufficient. He actively - 10 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. participated in settlement negotiations, worked with defense counsel to discuss exhibits and witness lists, communicated with his client at least to some extent prior to the scheduled hearings, and appeared at all the hearings. Though he submitted the same insufficient witness list twice, he correctly pointed out at the December 9 conference that the deadline to file the final witness list had not passed. Plaintiff’s counsel explained that he had narrowed the list from eighty individuals to seven based on his discussions with defense counsel and the parties’ stipulation to proceed with a bench trial as opposed to a jury trial. He also clarified that the parties did not anticipate making any changes to the pretrial order that they previously agreed upon, beyond anything the court required as a result of the parties’ recent stipulation. The district court rejected this explanation, reminding Plaintiff’s counsel that the court discussed the proper format of the pretrial order with the parties at the August 17 conference. However, as Plaintiff argues, the district court made no such statement regarding the format and substance of the pretrial order. Rather, the court only instructed Plaintiff’s counsel to narrow his witness list—which Plaintiff’s counsel informed the court that he did and indicated that he would be ready to file the final list by the impending deadline. Moreover, Lovingood’s counsel’s conduct is distinguishable from that of the attorneys in Harmon and Reyes, where we found that dismissal was warranted. In Harmon, the attorney repeatedly ignored the defense counsel’s persistent pursuit of information through discovery requests, follow-up letters, a motion to compel, and a motion to dismiss following the plaintiff’s counsel’s non-responsiveness. 110 F.3d at 366–68. That attorney also ignored the court’s order compelling him to produce information that the defendant had so tenaciously requested. Id. Similarly, the plaintiff’s counsel in Reyes missed the discovery deadline by three months and failed to respond to the government’s motion to strike even after the district court extended the deadline - 11 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. on its own accord and afforded the plaintiff’s counsel the benefit of a telephone call to remind him of the deadline. 307 F.3d at 457. By contrast, the defendants here have not mentioned any unanswered requests by Plaintiff’s counsel and have not denied that the parties engaged in settlement negotiations and discussions in preparation for trial after the parties could not reach a resolution. See Kemp v. Robinson, 262 F. App’x 687, 691-92 (6th Cir. 2007) (finding dismissal improper where docket reflected nearly three years of inactivity, but parties were working diligently toward settlement off the record). And while the district court pointed out a section of the pretrial order that fell short of the court’s requirement in the scheduling order, this error is not comparable to the attorney in Harmon who utterly failed to comply with the court’s order. We find our decision in Stough to be more instructive with respect to whether Plaintiff’s counsel’s conduct here was so contumacious as to justify dismissal with prejudice as the first sanction. The plaintiff’s counsel in Stough missed the response deadline for two motions for summary judgment even after the court ordered him to show cause after missing the first. 138 F.3d at 613. That attorney failed to respond to the second motion even after the court’s law clerk took his call regarding the tardy filing and exchanged voicemails with him regarding the outstanding response. Id. at 613-14. Still, we found that the court abused its discretion in dismissing the action. Id. at 616. In the instant case, Plaintiff’s counsel filed an untimely response to a now-dismissed party’s motion for summary judgment and filed the same insufficient witness list twice, which could signal a pattern of sanctionable behavior. His pretrial order also fell short of the court’s requirements. However, just as we acknowledged in Stough that “a pattern of this type of behavior may be sanctionable,” we reiterate here that not all sanctionable conduct warrants dismissal with prejudice. Id. at 615. While the district court’s frustration is understandable, the dismissal order did not explain how Plaintiff’s counsel’s conduct amounted to bad faith, and absent - 12 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. such explanation, a pattern of conduct that seemingly amounts to mistakes is not enough. See Mulbah, 261 F.3d at 590, 594 (reversing dismissal where counsel filed amended complaint seemingly to restart the clock after failing to timely serve original complaint, filed untimely response to motion to dismiss, failed to respond to discovery objections, and showed up to oral argument unprepared because he inadvertently brought wrong case file). And to the extent the court detected bad faith because it understood Plaintiff’s counsel to be placing the blame on his client, the record does not support this view of the facts. Indeed, as soon as the court suggested at the December 9 hearing that Plaintiff’s counsel was trying to “pawn it off on” his client, Plaintiff’s counsel clarified that he was not trying to place any blame on Lovingood but was instead pleading the court to consider the prejudicial effect of dismissal on his client. The second factor does not require much analysis, as the district court did not make a finding of prejudice. Graves and Johnson argue that they were prejudiced because they have had to spend money defending Lovingood’s frivolous claims. But as we discussed above, the district court has already established that Lovingood’s claims were not frivolous. Regarding the third and fourth factors, Graves and Johnson argue that Lovingood was adequately warned by the Federal Rules of Civil Procedure and the court’s scheduling orders and that the court should not be required to “perform mental gymnastics” to determine which sanction would be sufficient. The district court also emphasized the dismissal warning in its scheduling order and stated that less dramatic sanctions would not be sufficient. We do not agree. Lovingood accurately maintains that the court did not give him sufficient notice that further noncompliance would result in dismissal, and its failure to consider alternative sanctions in this case was an abuse of discretion. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988) (“In the Sixth Circuit, we have frequently reversed district courts for dismissing cases because litigants - 13 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. failed to appear or to comply with pretrial orders when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal.” (emphasis added)). The district judge stated at the December 9 conference that he “was very clear in August that failure to comply with the [c]ourt’s order will result in a . . . dismissal of the actions, and [the court] either ha[d] to say it and mean it or don’t say it.” However, the transcript of the proceeding supports Plaintiff’s argument that the court gave no such warning or even mentioned dismissal at the hearing in August. The only time the district court asked Plaintiff’s counsel to show cause as to why the case should not be dismissed was at the December 9 hearing—the same hearing at which the court dismissed the case. Hence, the court’s inquiry can hardly be considered a warning. Plaintiff’s counsel explained that the case should not be dismissed based on the court’s dissatisfaction with Plaintiff’s counsel because his client is the one who suffered an injury. And to the extent that the court was referencing its warning in the scheduling order, our precedent suggests that such a boilerplate warning is not enough absent separate notice that dismissal was contemplated. See Vinci v. Consol. Rail Corp., 927 F.2d 287, 288 (6th Cir. 1991) (“Although we do not mean to suggest that [the explicit dismissal warning contained in the scheduling order] should be construed as a hollow warning, we do not construe it to be, under the circumstances of this case, the kind of warning we envisioned in Harris when we spoke of notice that ‘further non-compliance would result in dismissal.’” (emphasis omitted)). As we explained in Mulbah, “[t]he question of adequate notice is also intertwined with the issue of alternative sanctions.” 261 F.3d at 593. It is true here that the district court included the dismissal warning in both of its scheduling orders and bolded and italicized one sentence in its five-page amended scheduling order further instructing Plaintiff’s counsel on its requirements for setting forth Plaintiff’s legal theories in the pretrial order. However, we are not satisfied that - 14 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. Lovingood’s counsel had adequate notice that the court was contemplating its harshest sanction. See id. at 593-94 (reversing dismissal even where dismissal warning was contained in scheduling order and the defendants’ motion to dismiss for failure to prosecute put the plaintiff on notice regarding the possibility of dismissal). This case is not like Reyes, 307 F.3d at 456-57, where the government moved to strike the plaintiff’s claim after he failed to engage in discovery, and the plaintiff did not respond even after the court took the unusual step of calling the plaintiff to notify him that he missed the deadline to respond and extended the deadline sua sponte. Nor is it like Harmon, 110 F.3d at 366, where the court issued an order compelling the plaintiff to produce information and the defendant filed a motion to dismiss for failure to prosecute, which together amounted to sufficient notice to the plaintiff. Here, the district court did not indicate during the August 17 pretrial conference that dismissal was contemplated, and it did not issue any orders that would have suggested dismissal. Moreover, neither Graves nor Johnson filed any motions that would have put Lovingood’s counsel on notice. Rather, as Plaintiff’s counsel explained, the parties engaged in settlement negotiations and discussions in preparation for trial after they could not reach a resolution. The circumstances of this case suggest that the parties were trying to move this case along to trial. Accordingly, we find that the district court abused its discretion in dismissing Lovingood’s claims with prejudice. IV. Notably, Graves and Johnson dedicate a considerable amount of their briefing to grounds not considered by the district court. They argue that it was Lovingood, rather than his attorney, whose conduct warranted the dismissal of his claims with prejudice. However, the court’s dismissal order makes no mention of Lovingood’s conduct but instead hinges the dismissal on his counsel’s conduct alone. The court need not address this point, as we are satisfied that “[o]n - 15 - Case No. 22-5022, Lovingood v. Monroe County, Tenn., et al. remand, the district court can consider appropriate sanctions both for [Lovingood’s conduct] and for any other dilatory conduct it may find.” Stough, 138 F.3d at 616. V. For the reasons set forth above, we REVERSE and REMAND the judgment of the district court. - 16 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484716/	USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 1 of 69 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1854 DAMIEN DONOVAN WILLIAMS, a/k/a Damian Donavan Williams, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: December 7, 2021 Decided: November 16, 2022 Before RUSHING, Circuit Judge, and MOTZ and FLOYD, Senior Circuit Judges. Petition for review granted, vacated, and remanded by published opinion. Senior Judge Floyd wrote the opinion in which Senior Judge Motz joined. Judge Rushing wrote a separate dissenting opinion. ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Lindsay Colbert Dunn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Brian Boynton, Acting Assistant Attorney General, John S. Hogan, Assistant Director, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 2 of 69 FLOYD, Senior Circuit Judge: In 2006, the Department of Homeland Security (DHS) deported Petitioner Damien Donovan Williams, a permanent resident of the United States since he was six years old, because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with the police an aggravated felony. Because of that designation, Williams was not allowed back into the United States, not even to visit. He would spend the next eleven years in Jamaica, working mostly for room and board, his U.S.-citizen mother, siblings, girlfriend, and children affording only a handful of trips to see him. In 2018, the Supreme Court ruled that the type of offense Williams committed no longer qualified as an aggravated felony. Learning of that decision in 2019, Williams moved the BIA to reconsider its original removal order and to equitably toll the usual thirty-day deadline for filing such motions in view of the legal change. The BIA declined. It did not dispute that Williams is entitled to be readmitted into the country, but it rejected Williams’s request to toll the limitations period, believing him insufficiently diligent in discovering his rights. We cannot agree with that result. We hold that we have jurisdiction to review the BIA’s decision and that we must review it de novo. And we vacate the Board’s diligence determination, remanding to the BIA to consider the second prong of the equitable-tolling inquiry—whether the change in the law constituted an extraordinary circumstance—as well as the merits of Williams’s claim. 2 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 3 of 69 I. A. Under the Immigration and Nationality Act (INA), noncitizens 1 who commit certain crimes become removable from the United States. 8 U.S.C. § 1227(a)(2)(A). When noncitizens are permanent residents, however, they may ask the Attorney General to cancel their removal to avoid causing “exceptional and extremely unusual hardship” to their families—but only if they did not commit an aggravated felony. Id. § 1229b(a)(3), (b)(1)(D). Noncitizens who did, even permanent residents, face swift and enduring consequences. They receive only abbreviated judicial review, with the courts entertaining only legal and constitutional—but not factual—challenges to “the final order of removal.” Id. § 1252(a)(2)(C)–(D). And they can never return to the United States. They become, in the immigration parlance, permanently “inadmissible.” Id. § 1182(a)(9)(A)(ii). When the DHS brought removal proceedings against Williams in 2005, the INA defined “aggravated felony” to include all “crime[s] of violence” specified in 18 U.S.C. § 16 punishable by imprisonment of at least one year. Section 16, in turn, defined crimes of violence in two ways: “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” and a felony 1 We use “noncitizen” in place of the statutory “alien,” which has been recognized as an “archaic and dehumanizing” term. Maria Sacchetti, ICE, CBP to Stop Using ‘Illegal Alien’ and ‘Assimilation’ Under New Biden Administration Order, Wash. Post (Apr. 19, 2021), https://www.washingtonpost.com/immigration/illegal-alien-assimilation/2021/04/19/9a2f 878e9ebc-11eb-b7a8-014b14aeb9e4_story.html; see also, e.g., Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020). 3 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 4 of 69 “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of” the offense. 18 U.S.C. § 16(a)–(b). In the years following Williams’s removal, the Supreme Court and the BIA twice refashioned § 16’s definitions. First, in 2010, the Court held that “physical force” must mean “violent force”—“force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 139–40 (2010). And applying Johnson, the BIA determined that offenses which by their terms encompass the “slightest touching of another” no longer qualify as crimes of violence under § 16(a). In re Velasquez, 25 I. & N. Dec. 278, 282–83 (BIA 2010). 2 Second, in 2018, the Court struck § 16(b) as unconstitutionally vague on its face. Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). Taken together, these decisions permit the DHS to remove noncitizens for committing an aggravated felony only upon proof of violent force. Noncitizens so removed may ask the agency to reopen or reconsider the order. A motion to reopen recites “new facts” not previously available, while a motion to reconsider 2 In determining whether an offense qualifies as a crime of violence, courts apply a categorical approach, meaning they “consider only the elements of the statute of conviction rather than the defendant’s conduct underlying offense.” Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). Occasionally, courts consider statutes “divisible” because they “set forth multiple crimes, with varying elements—and some of the crimes set forth therein would pass the categorical inquiry if examined on their own.” Bah v. Barr, 950 F.3d 203, 206 (4th Cir. 2020) (citation omitted). In such cases, courts modify the categorical approach “to determine what crime, with what elements, a defendant was convicted of.” Id. at 207 (citation omitted). Either way, courts “focus on the elements, rather than the facts, of a crime” because “Congress predicated deportation on convictions, not conduct.” Id. at 206–07 (citations omitted). Thus, the BIA’s ruling: Offenses that encompass mere offensive touching categorically cannot satisfy §16(a)’s definition of a crime of violence and, correspondingly, cannot confer a basis for removal. 4 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 5 of 69 specifies “errors of law or fact in the previous order.” 8 U.S.C. § 1229a(c)(6)(C), (7)(B). Noncitizens may file one of each. They have thirty days to request reconsideration and ninety to move to reopen. Id. § 1229a(c)(6)(B), (7)(C). If the BIA declines, noncitizens may petition the appropriate court of appeals. But courts will not review the underlying removal order by that same petition; noncitizens must file “separate petitions” laying out errors in those separate decisions. Stone v. INS, 514 U.S. 386, 395 (1995). B. Damien Donovan Williams is a native and citizen of Jamaica. He moved to the United States in July 1987, when he was just six years old, and became a permanent resident in October of that same year. His mother, three of his four siblings, his long-term girlfriend (now wife), and his four children are all U.S. citizens. In February 2003, Williams was convicted of assault and battery of a police officer, obstructing justice, disorderly conduct, and failure to appear under Virginia law. See Va. Code Ann. §§ 18.2-57(C), 18.2-460, 18.2-415, 19.2-128. The three substantive offenses arose out of a single incident, when Williams resisted an officer’s spraying him with mace after he was already in handcuffs. Williams then failed to appear because of conflicting court dates: he was in one courtroom when he was called in another. In September 2005, the DHS initiated removal proceedings, contending Williams was removable for having committed both an aggravated felony—the assault and battery on the police officer—and two crimes involving moral turpitude (CIMTs)—the same assault and battery and the failure to appear. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (listing 5 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 6 of 69 aggravated felony and multiple CIMTs as separate grounds for removability). Williams had trouble retaining a pro bono attorney, even with the four continuances the immigration judge (IJ) allowed. But during the fifth hearing, an attorney sitting in the courtroom agreed to take on his case. With this attorney’s help, Williams denied removability and asked the IJ to terminate the proceedings. The IJ agreed Williams’s conviction did not rise to an aggravated felony but still ruled him removable for committing two CIMTs. Williams then requested cancellation of removal. The government maintained that Williams committed an aggravated felony, rendering him ineligible, but did not otherwise oppose his request. After a hearing, the IJ issued a short oral decision allowing Williams to stay. The government appealed to the BIA, arguing once more that Williams’s assault on the officer amounted to an aggravated felony, and this time, the agency agreed. It determined the assault qualified as a crime of violence under both §§ 16(a) and (b). Williams never appealed the IJ’s CIMT decision—it did not affect his ability to request cancellation of removal—but he did file a motion to reconsider the BIA’s aggravated- felony ruling, which the BIA denied. Williams’s attorney then ended his representation, leaving Williams to petition this Court pro se. We denied the petition, Williams v. Gonzales, 234 F. App’x 113 (4th Cir. 2007), and the DHS deported Williams to Jamaica. As discussed, in the ensuing years, the Court decided Johnson and Dimaya, and the BIA applied Johnson to battery offenses that include the mere touching of another— indeed, the very offense of which Williams was convicted, Va. Code Ann. § 18.2-57. But Williams remained unaware. As he would later explain in an affidavit to the BIA, he worked as a groundskeeper in exchange for room and board and served as a maintenance 6 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 7 of 69 man on weekends, earning only about $20 per job. He had no access to the Internet. And his only pro bono lawyer had long cut all ties. Williams’s family, themselves earning only about $20,000 per year, barely managed to visit him in Jamaica and did not have the funds to repeatedly hire attorneys to check whether the law had changed. In 2019, Williams was finally able to marry his girlfriend, Lawaren Person. The same year, unfortunately, the lung disease Person had previously kept in check aggravated significantly, and Person’s doctors advised her against spending time in polluted countries like Jamaica. Out of desperation, Person consulted an immigration attorney in April 2019 to determine if any avenues had opened up to allow her husband back in. The attorney requested Williams’s file from the DHS under the Freedom of Information Act, which arrived towards the end of June 2019. Quickly appreciating the upshot of Johnson and Dimaya, she filed for reconsideration just one month later, in July 2019. She asked the BIA to either equitably toll the time and number limitations on Williams’s motion or to reconsider sua sponte. In support of the application, Williams attached declarations from himself and Person explaining why his living conditions in Jamaica and her scarce wages in the United States had precluded them from retaining an attorney until 2019. The government did not oppose Williams’s motion, but the BIA still denied his request. It did not dispute that Williams’s conviction no longer qualified as a crime of violence but declined to equitably toll the statutory limits, faulting Williams for failing to explain why he “had not regularly sought out pro bono counsel prior to April 2019 to stay informed on the status of the law” and why Person did not “assist him from the United States.” A.R. 5. The Board also declined to reconsider sua sponte, again citing Williams’s 7 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 8 of 69 nondiligence in ferreting out U.S. immigration law. Williams timely petitions for review of both rulings. 3 II. Before we can delve into the substance of the BIA’s equitable-tolling decision, we must determine how much of it we have jurisdiction to review, what standard of review we should employ, and whether the statutory deadline for a motion to reconsider can be equitably tolled at all. We take these in turn, beginning here with jurisdiction. As discussed, § 1252(a)(2)(C) prohibits courts of appeals to “review any final order of removal against an alien who is removable by reason of having committed” certain specified crimes, including aggravated felonies and multiple CIMTs. 8 U.S.C. § 1252(a)(2)(C). Both parties agree that if § 1252(a)(2)(C) applies, § 1252(a)(2)(D) nonetheless permits us to review “constitutional claims or questions of law.” Id. § 1252(a)(2)(D). The parties also agree that questions of law include whether “the Board incorrectly applied the equitable tolling due diligence standard to the ‘undisputed’ (or established) facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). But Williams resists this threshold determination. He argues § 1252(a)(2)(C) does not apply at all, that we have authority to review the BIA’s factual errors, as well. 3 In 2020, the Department of Justice amended 8 C.F.R. § 1003.2(a) to prohibit the BIA from reconsidering final orders of removal sua sponte except to correct ministerial errors, see Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,591 (Dec. 16, 2020), but a federal court has since enjoined the implementation of the amendment nationwide, see Centro Legal de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919, 928–29, 980 (N.D. Cal. 2021). 8 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 9 of 69 The only factual ruling in play concerns the BIA’s determination that Williams’s 2019 attorney offered her services pro bono. Williams contends the BIA reasoned from that (incorrect) conclusion that he could have found pro bono representation at any time, enabling him to monitor the immigration law through the years. And because he did not, he must not have acted diligently. But the fact was Person had to pay the attorney for her work. And that undercuts the BIA’s diligence ruling: That Person spent money out of her impossibly tight budget demonstrates just how difficult it is to find a pro bono immigration attorney, even from inside the United States. This one factual issue may be modest in scope, but it breeds critical jurisdictional consequences for our future cases. In the end, we agree with Williams that the INA never meant to bar judicial review of collateral facts far removed from the underlying “final order of removal.” 8 U.S.C. § 1252(a)(2)(C). A. In the deportation context, a “final order of removal” refers to an order “concluding that the alien is deportable or ordering deportation.” Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). That order becomes “final, and reviewable, when issued.” Stone, 514 U.S. at 405. And its “finality is not affected by the subsequent filing of a motion to reconsider.” Id. That is why, when we review the BIA’s refusal to reconsider its removal decision, “the merits of the underlying” decision “are not before us.” Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006). To reach those merits, a noncitizen must file a “separate petition[ ] for review.” Stone, 514 U.S. at 395. These are nonnegotiable, “jurisdictional” constraints. Yurova v. Lynch, 606 F. App’x 82, 83 (4th Cir. 9 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 10 of 69 2015) (citation omitted). But they also reflect common sense. It is “axiomatic” that before the BIA can reconsider a removal order, “there must first be an order of removal” to be reconsidered—especially where, as here, Williams was actually “removed pursuant to a valid order” twelve years ago. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2284, 2287– 88 (2021) (quoting In re I-S-, 24 I. & N. Dec. 432, 433 (BIA 2008)). Still, it would blink reality to decline to review a factual challenge to the BIA’s removal order only to then review “that same” challenge “dressed as a motion to reconsider.” Jean, 435 F.3d at 481. And were we asked to decide factual questions that “affect the validity of the final order of removal”—such as, for example, whether and how Williams resisted arrest—we would certainly lack jurisdiction under § 1252(a)(2)(C). Nasrallah, 140 S. Ct. at 1691. But that is not what Williams asks us to do. He asks only that we correct the BIA’s misconception that he successfully retained pro bono counsel when he finally moved for reconsideration. That conclusion was “adjunct” in every sense to the agency’s prior “substantive” determination that Williams committed an aggravated felony and was therefore removable. Kucana v. Holder, 558 U.S. 233, 248 (2010); Guzman Chavez, 141 S. Ct. at 2287 (distinguishing “withholding-only proceedings” from “removal orders” because the two proceedings “address two distinct questions”). And indeed, we have already recognized our jurisdiction to consider such collateral factual matters, albeit without expressly tracing the source of that authority. Just two terms ago, we agreed to review the BIA’s refusal to reconsider a final order removing a criminal noncitizen on grounds that the noncitizen’s “new arguments were waived” and “that his request to present the additional evidence . . . was untimely.” Cucalon v. Barr, 958 F.3d 245, 253–54 (4th 10 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 11 of 69 Cir. 2020). We did not once mention § 1252(a)(2)(C)’s jurisdictional bar in examining the BIA’s reconsideration decision, even as elsewhere in the opinion we painstakingly explained that “we lack jurisdiction to review an order of removal based on an alien’s conviction of an aggravated felony.” Id. at 249 (emphasis added). The Supreme Court confronted a similar challenge in Nasrallah and came to a similar conclusion. Nasrallah asked whether courts of appeals can review factual rulings underpinning Convention Against Torture (CAT) orders for criminal noncitizens or whether CAT orders merge into final orders of removal so that § 1252(a)(2)(C)’s limitations apply to CAT determinations, too. 140 S. Ct. at 1688. The Court held review appropriate, in part because, unlike the facts underlying the order of removal, factual “issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings” in any Article III court. Id. at 1693. And yet those issues, which “may range from the noncitizen’s past experiences in the designated country of removal, to the noncitizen’s credibility, to the political or other current conditions in that country,” may be “critical to determining” the whole course of the noncitizen’s future. Id. Congress, the Court reasoned, could not have intended to strip courts of jurisdiction over these collateral rulings when it barred “further relitigation of the underlying factual bases for those criminal convictions.” Id. And a jurisdictional bar would be doubly inappropriate here, where Williams’s argument on the merits “would itself be reviewable.” Kucana, 558 U.S. at 250. Williams argues that, as a matter of law, he can no longer be classed an aggravated felon after Johnson and Dimaya. Not only does § 1252(a)(2)(D) give us jurisdiction to review that 11 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 12 of 69 “question of law,” see Guevara-Solorzano v. Sessions, 891 F.3d 125, 131 (4th Cir. 2018), but the government does not even dispute that Williams would succeed on it. And yet, the government’s rule would leave us powerless to meaningfully review the BIA’s threshold, procedural determination that cut short Williams’s only hope of reuniting with his family. That cannot be what Congress had in mind when drafting § 1252(a)(2)(C). B. Longstanding exercise of judicial review of the Board’s reconsideration decisions, the history of the relevant statutory provisions, the presumption favoring judicial review, and separation-of-powers concerns all reinforce this conclusion. Motions to reconsider and reopen have long been understood to provide “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana, 558 U.S. at 242 (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)). And federal-court review of these administrative decisions dates to at least 1916. Id. For the first eight of those decades, no statutory authority governed judicial review—Attorney General regulations first addressed reopening and reconsideration requests in 1941 and then again in 1958, when the BIA was established, but they, of course, said nothing of our jurisdiction to review them. See id. at 249 (citing New Regulations Governing the Arrest and Deportation of Aliens, 6 Fed. Reg. 68, 71–72 (Jan. 4, 1941); Miscellaneous Amendments to Chapter, 23 Fed. Reg. 9115, 9118–19 (Nov. 26, 1958)). It was not until 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), that motions to reopen and reconsider took on a statutory 12 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 13 of 69 dimension. See 8 U.S.C. § 1229a(c)(6) (largely codifying the 1958 regulations). “In the same legislation, Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States,” including by passing § 1252(a)(2)(C). Kucana, 558 U.S. at 249 (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 475 (1999)). But it said nothing about extending § 1252(a)(2)(C) to our review of reopening and reconsideration motions, even though it could have easily “so specified together with its codification of directions on filing [those] motions.” Id. at 250. Instead, “Congress left the matter where it was”: The BIA has discretion to grant or deny such motions, and we “retain jurisdiction to review” all aspects of the BIA’s decisions except where our review clearly conflicts with § 1252(a)(2)(C)’s core statutory aims. Id.; accord Mata v. Lynch, 576 U.S. 143, 148 (2015) (explaining that federal courts “have reviewed [reopening and reconsideration] decisions for nearly a hundred years” without express statutory directive and that IIRIRA “left that authority in place” (citing Kucana, 558 U.S. at 242–51)). 4 4 To be sure, in addition to our traditional authority, Mata also cited § 1252(b)(6), which consolidates “any review sought of a motion to reopen or reconsider” with “the review of the [underlying] order.” 576 U.S. at 147–48 (cleaned up) (quoting 8 U.S.C. § 1252(b)(6)). But Mata cited the provision to illustrate only that Congress “expressly contemplate[d]” our jurisdiction to review BIA denials to reopen or reconsider—and left it unchanged—not to suggest that our only jurisdictional basis to review those denials flows from our authority to review final removal orders. Id. at 147. For if Mata believed that, it would not have reviewed the BIA’s denial to equitably toll the limitations on a motion to reopen—removal orders, after all, do not implicate equitable tolling. See also Nasrallah, 140 S. Ct. at 1691 (rejecting the government’s argument that CAT rulings merge into final removal orders because § 1252(b)(9) consolidates “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” with “judicial review of a final order” and holding instead that § 1252(b)(9) “simply establish[es] that a (Continued) 13 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 14 of 69 Any lingering doubt over our authority to review factual challenges to the BIA’s denials to reopen or reconsider cannot survive the “familiar principle of statutory construction: the presumption favoring judicial review of administrative action.” Kucana, 558 U.S. at 251. Because courts had already been consistently applying that presumption when Congress passed IIRIRA in 1996, e.g., Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986), we can assume Congress “legislate[d] with knowledge of” that presumption. Kucana, 558 U.S. at 252 (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)). So the statutory question becomes not whether IIRIRA created jurisdiction, but whether IIRIRA “clear[ly] and convincing[ly] . . . dislodge[d]” it. Id. (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)). Because IIRIRA did no such thing, we continue to exercise our jurisdiction as we always have, reviewing even the factual challenges to BIA refusals to reopen and reconsider. Foundational separation-of-powers considerations point us in the same direction. Congress well knew how to expressly delegate final authority over motions to reopen or reconsider to the Department of Justice. Where it has not done so, courts should not “place in executive hands authority to remove cases from the Judiciary’s domain.” Id. at 237; accord Costello v. INS, 376 U.S. 120, 127–28 (1964) (advising caution “before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme”); INS v. St. Cyr, 533 U.S. 289, 320 (2001) (recognizing “the longstanding principle of construing any CAT order may be reviewed together with the final order of removal” (quoting 8 U.S.C. § 1252(b)(9))). 14 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 15 of 69 lingering ambiguities in deportation statutes in favor of the alien” (quoting INS v. Cardoza- Fonseca, 480 U.S. 421, 449 (1987))). 5 C. We are not alone in so understanding federal-court jurisdiction over the BIA’s reopening and reconsideration decisions. The Ninth Circuit, for example, has accepted jurisdiction to review the agency’s factfinding where the Board “did not rely on [a noncitizen’s] conviction of a crime involving moral turpitude” but on its determination that the noncitizen had “not demonstrated a change in country conditions material to his claim for relief.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). The Fifth Circuit has gone even further, claiming jurisdiction to resolve “any factual questions necessary” to resolve questions of law. Diaz v. Sessions, 894 F.3d 222, 224–25, 227 & n.4 (5th Cir. 2018) (invoking §1252(a)(2)(D)’s command that “nothing shall preclude” judicial review of legal claims). And like this Court in Cucalon, the Eleventh Circuit has assumed authority to review collateral factual questions on petitions from motions to reopen and reconsider without any reference to the criminal-noncitizen bar. See Abakporo v. U.S. Att’y Gen., No. 20-12750, 2021 WL 3598346, at 5–6 (11th Cir. Aug. 13, 2021); Israel v. U.S. 5 We have previously suggested in a nonpublished, nonprecedential decision that final orders of removal subsume motions to reopen and reconsider, implicating the § 1252(a)(2)(C) bar. Rangolan v. Mukasey, 302 F. App’x 133, 136 (4th Cir. 2008). We reached that conclusion because we read § 1252(a)(1)—which confirms federal-court jurisdiction over “final orders of removal”—as providing “our only basis” to review such motions. Id. We now believe that a too-narrow interpretation after Mata and Kucana. 15 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 16 of 69 Att’y Gen., 861 F. App’x 371, 374 (11th Cir. 2021), cert. denied sub nom. Israel v. Garland, No. 21-6352, 2022 WL 89583 (U.S. Jan. 10, 2022). In the obverse, the Second Circuit has declined jurisdiction where the “orders are sufficiently connected that permitting review of a motion to reopen when § 1252(a)(2)(C) bars review of the final order of removal would provide an improper backdoor method of challenging a removal order.” Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2004), as amended (Feb. 1, 2005); see also Santos-Salazar v. U.S. Dep’t of Just., 400 F.3d 99, 103 (2d Cir. 2005) (declining to review the Board’s denial of reconsideration, where petitioner asked the court to “revoke the final Order of deportation”). The through-line in these decisions demonstrates that courts of appeals look to the reasons the BIA gave when fixing the bounds of their jurisdiction. Where the Board finds the substance of a removal order makes reopening or reconsideration imprudent, the courts decline jurisdiction to avoid creating a “loophole” that “would thwart the clear intent of Congress that the courts not review” factual predicates to the agency’s decisions to remove criminal noncitizens. Jean, 435 F.3d at 481 (quoting Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001)). But where the BIA declines to reopen or reconsider in view of collateral issues, the courts have appropriately claimed jurisdiction to review. Our own analysis of the neighboring § 1252(a)(2)(B), which strips federal courts of jurisdiction to review the agency’s discretionary decisions, further counsels jurisdiction over the factual question here. In that context, we “examine the basis for the BIA’s decision” to determine our jurisdiction because § 1252(a)(2)(B) “divests courts of jurisdiction only over BIA decisions that address the merits of an alien’s request for relief 16 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 17 of 69 pursuant to those sections.” Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir. 2005) (quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)). In Obioha, for example, the Board declined to remand because a noncitizen “failed to seek cancellation of removal” before the IJ “when she had the opportunity to do so” and “failed to present the elements of prima facie eligibility for cancellation of removal in her motion” to remand. Id. at 407. We deemed those “procedural failure[s]” “unrelated to the merits of a discretionary decision on cancellation of removal” and proceeded to review. Id. We have upheld that approach since. E.g., Jean, 435 F.3d at 481; Sorcia v. Holder, 643 F.3d 117, 126 (4th Cir. 2011); Agidi v. Garland, No. 20-2116, 2021 WL 5003416, at 1 (4th Cir. Oct. 28, 2021). The same principle holds true here. Williams asked us to consider a factual challenge “unrelated to the merits” of the final removal order, Obioha, 431 F.3d at 407— or, put in Nasrallah’s words, a challenge that cannot “affect the validity of the final order of removal,” 140 S. Ct. at 1691. We hold we have jurisdiction to resolve it. 6 6 Williams offers yet another jurisdictional basis. He proposes we begin by reviewing the agency’s original determinations that Williams committed the aggravated felony and the two CIMTs. This Court has authority to do so, Williams asserts, because it always has jurisdiction “to determine whether a petitioner actually has triggered the statute’s jurisdiction stripping provision.” Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir. 2010); see also, e.g., Guevara-Solorzano, 891 F.3d at 131. If we agree he did not commit those crimes, Williams continues, § 1252(a)(2)(C) never comes into play at all. That analysis would be relatively straightforward as to Williams’s aggravated-felony conviction—as discussed, not even the government disputes that Johnson and Dimaya compel that result. But the two CIMTs present a higher and perhaps insurmountable hurdle, for Williams never appealed the IJ’s CIMT finding to the BIA. An argument can be made that we may consider an unexhausted claim for the limited purpose of determining our jurisdiction, but such a restricted approach would likely run afoul of the law-of-the-case doctrine. And our unpublished decisions have already declined to do so, albeit without considering this nuanced argument. E.g., Obomighie v. Holder, 480 F. App’x 225, 227 (4th Cir. 2012). Because we find jurisdiction for other reasons, we do not reach this question. 17 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 18 of 69 III. Also at the threshold, we must grapple with the standard of review. Both parties agree, as they must, that the ultimate “decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2. Federal courts of appeals have correspondingly “employed a deferential, abuse-of-discretion standard.” Kucana, 558 U.S. at 242, 250; see also Jean, 435 F.3d at 483; Lawrence v. Lynch, 826 F.3d 198, 203 (4th Cir. 2016). And yet, argues Williams, the Supreme Court recently held that the specific question before us today—whether a petitioner exercised sufficient diligence to warrant equitable tolling—constitutes a “question of law.” Guerrero-Lasprilla, 140 S. Ct. at 1068. Williams accordingly asks us to review that narrow, subsidiary question de novo. We agree with Williams, though not for the reasons he offers. A. The question presented in Guerrero-Lasprilla asked whether the term “questions of law” in § 1252(a)(2)(C) “includes the application of a legal standard to undisputed or established facts.” 140 S. Ct. at 1067. The Court held it does, that all mixed questions of law and fact present questions of law for purposes of the jurisdictional bar. Id. Williams takes from that conclusion that equitable-tolling determinations require de novo review. But the Court predicated its decision on § 1252(a)(2)(C)’s “basic purpose of providing an adequate substitute for habeas review” as well as on the “traditional understandings and basic principles: that executive determinations generally are subject to judicial review.” Id. at 1069, 1073 (citation omitted). The Court was also troubled that “interpreting the 18 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 19 of 69 Limited Review Provision to exclude mixed questions would effectively foreclose judicial review of the Board’s determinations so long as it announced the correct legal standard.” Id. at 1070. Those are uniquely jurisdictional concerns—much the same we just considered in Part II. They have to do with whether, not how, federal courts may review agency decisions. And the Court expressly declined to answer what its § 1252(a)(2)(C) holding means for “the proper standard for appellate review of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts.” Id. at 1069. Admittedly, there is some tension in characterizing a question as legal when determining jurisdiction but as factual or discretionary when choosing the standard of review. But our own precedent, too, has drawn this distinction. Cruz-Quintanilla v. Whitaker, for example, concluded that government acquiescence in torture is a legal question when determining the standard of review but a factual one for purposes of federal- court jurisdiction. 914 F.3d 884, 889 (4th Cir. 2019) (citing Saintha v. Mukasey, 516 F.3d 243, 247–50 (4th Cir. 2008)). We reasoned the different outcomes possible because the two inquiries pursue different aims: The standard of review concerns competency and expertise, it asks, in essence, how prudent it would be to defer to the decisionmaker below, but § 1252(a)(2)(C) speaks to “the division of authority between the Executive and the judiciary.” Id. at 891. Guerrero-Lasprilla, of course, has overruled Cruz-Quintanilla’s jurisdictional holding, as the ultimate question of whether a government acquiesces to torture involves “applying the law to decided facts.” Id. at 890 (citation omitted). But its animating principle remains: A jurisdictional ruling does not mechanically translate into the standard of review; we must determine for ourselves which standard governs. 19 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 20 of 69 We begin with the common-sense principle that the Board’s decision to decline reconsideration, discretionary as it is at day’s end, usually builds upon a variety of subsidiary legal and factual conclusions. The Board may, for example, deny the motion because a noncitizen brings no new law to its attention. Or it may disagree with the noncitizen’s interpretation of the new law, concluding he nonetheless lacks a legal path to relief. In still other cases, the Board may forego any determination as to the noncitizen’s substantive entitlement to relief and decline to reconsider on procedural grounds. See INS v. Abudu, 485 U.S. 94, 104 (1988) (surveying the different reasons the BIA may decline to reopen). The route the Board chooses, in turn, frames our review: Did the Board “distort[ ] or disregard[ ] important aspects of the applicant’s claim”? Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). Did it “make rulings that are based ‘on an inaccurate perception of the record’”? Id. (quoting Jian Tao Lin v. Holder, 611 F.3d 228, 237 (4th Cir. 2010)). Did it act “contrary to the law”? Id. All of these are ways to assess whether, overall, the Board abused its discretion. But courts must separate out the subsidiary factual or legal or mixed factual and legal determinations to understand why the Board denied the motion. And they must apply the usual standards to review those subsidiary determinations: de novo for law, Guerrero-Lasprilla, 140 S. Ct. at 1069, substantial evidence for fact, Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019), and, as the Court has recently clarified, either de novo or substantial evidence for mixed questions, depending on “whether answering [them] entails primarily legal or factual work,” U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (explaining that “[m]ixed 20 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 21 of 69 questions are not all alike,” some turn on “developing auxiliary legal principles of use in other cases,” while others “immerse courts in case-specific factual issues”). The government asks us to short-circuit this common-sense approach and consider only whether the Board abused its discretion overall. That may be appropriate where the Board “leap[s] over” substantive and procedural questions “and simply determine[s]” it will deny relief as a matter of “discretion” even if a noncitizen proves his legal claim. Abudu, 485 U.S. at 105 (allowing the agency to do so where “the ultimate grant of relief is discretionary”). But that is not what the Board did here. And we “may uphold agency action only on the grounds the agency invoked when it took the action.” Michigan v. EPA, 576 U.S. 743, 758 (2015) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)). Undaunted, the government holds out Jean, 435 F.3d at 482–83, Lawrence, 826 F.3d at 203, and an older Supreme Court case, INS v. Doherty, 502 U.S. 314, 323 (1992), as mandating abuse-of-discretion review for all reconsideration decisions. But none of these cases supports the government’s position in the way it claims. In Jean, the Board denied a noncitizen’s request to reconsider its previous refusal to cancel removal because it could “find no new legal argument” in Jean’s motion. 435 F.3d at 483 (citation omitted). We affirmed under abuse of discretion, and rightly so. There was nothing legal or factual about the Board’s conclusion; we needed to ascertain only that “the BIA supplied a rational explanation” for its denial. Id. But we clarified that “our review [was] limited to the motion to reconsider” as Jean never petitioned for review of the Board’s original ruling that she was not entitled to cancellation of removal. Id. at 482. Had Jean done so, we would have focused on the specific reason the BIA gave for its decision—“that Jean was 21 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 22 of 69 statutorily precluded from demonstrating good moral character”—and we would have reviewed it de novo. Id. Even though “cancellation of removal” ultimately calls for “a discretionary form of relief,” we explained, whether Jean was statutorily precluded from that relief was a “legal,” “not a discretionary decision.”. Id. The same goes for Lawrence. Although we noted that we review the ultimate denial to reopen “for abuse of discretion,” Lawrence’s specific challenge was narrower: He maintained “the Board applied a heightened diligence standard that required absolute diligence rather than reasonable diligence and therefore committed an error of law.” 826 F.3d at 203–04. Correspondingly, we analyzed whether the Board “set forth the correct standard.” Id. at 204. We held that it did, because the Board understood “due diligence” as “we define” that term—not because the Board gave its own legal interpretation of the term to which we deferred. Id. (emphasis added) (citation omitted). Our review of the narrow legal question was thus de novo—in deed, if not by express terms. Finally, the government ignores the critical context behind Doherty’s pronouncement that “the abuse-of-discretion standard applies to motions to reopen regardless of the underlying basis of the alien’s request for relief.” 502 U.S. at 323 (cleaned up) (citation omitted). It reads “regardless of the underlying basis” as setting the abuse-of- discretion standard for all motions to reopen no matter why the BIA denied them. But Doherty (and Abudu, where the phrase originated) held only that the same standard applies “regardless” of whether a noncitizen asks to reopen to consider his “claims for asylum [or his] claims for withholding of deportation,” because the two involve substantially the same inquiries. See id. at 324; Abudu, 485 U.S. at 99 n.3. Neither case said anything about 22 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 23 of 69 applying the same standard “regardless” of whether the BIA issued a decision rooted in fact, discretion, or law. Quite the opposite, the Court declined to espouse a standard for reviewing a denial to reopen on grounds that “the movant has not established a prima facie case for the underlying substantive relief sought.” 485 U.S. at 104; see also 502 U.S. at 323. If anything, those cases reinforce our conclusion that the proper standard depends on the discrete question we must review, not some broader conclusions the BIA could have but did not, in fact, draw. None of this is novel or controversial. We have repeatedly held across immigration decisions—yes, even where the BIA had discretion to ultimately withhold relief—that “we review legal questions de novo” and factual decisions for “substantial evidence.” Diaz de Gomez v. Wilkinson, 987 F.3d 359, 363 (4th Cir. 2021) (asylum); see also, e.g., Gonzalez Galvan v. Garland, 6 F.4th 552, 561 (4th Cir. 2021) (cancellation of removal); Gonzalez v. Garland, 16 F.4th 131, 145 (4th Cir. 2021) (motions to remand). That makes good sense: A self-contained factual finding is either supported by the record or not; a legal conclusion is either right or wrong. And that is why the abuse-of-discretion standard itself directs courts to reverse where an agency “distorts” the record or acts “contrary to law.” Lawrence, 826 F.3d at 203 (cleaned up) (citations omitted). Unsurprisingly, our sister circuits likewise parse out the predicate questions that form the building blocks for BIA decisions. The Third and the Fifth Circuits have both recently confirmed that although they “appl[y] a highly deferential abuse-of-discretion standard” to the BIA’s day-end “denial of a motion to reopen,” as part of that analysis, they “review[ ] legal conclusions de novo and factual findings for substantial evidence.” 23 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 24 of 69 Guerrero-Lasprilla v. Barr, 822 F. App’x 254, 257 (5th Cir. 2020) (asking whether the BIA “err[ed]” in holding the noncitizen could have filed earlier); see Darby v. U.S. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021) (setting forth the same standard); Liang v. U.S. Att’y Gen., 15 F.4th 623, 626–30 (3d Cir. 2021) (Jordan and Ambro, JJ., concurring) (clarifying that the court applied de novo review to the specific question that needed resolving— whether the maltreatment a noncitizen alleged amounted to past persecution—even where the BIA’s denial of asylum was discretionary overall). The Sixth Circuit offers more of the same. In Singh v. Rosen, for example, the court acknowledged Congress left cancellation of removal to agency discretion but reasoned that the underlying question of whether removal would pose “exceptional and extremely unusual hardship” to a noncitizen’s family involves “applying the law to a set of facts” and so requires de novo review when the court “expound[s] on the law.” 984 F.3d 1142, 1152–54 (6th Cir. 2021) (quoting U.S. Bank, 138 S. Ct. at 967), reh’g denied (Feb. 11, 2021). We see no reasoned principle by which to single out BIA denials to reopen or reconsider from scores of other discretionary agency decisions. See Abudu, 485 U.S. at 105 (observing that the BIA has discretion to deny relief in swaths of cases, including “asylum, suspension of deportation, and adjustment of status”). Consequently, we worry that applying abuse of discretion indiscriminately to all subsidiary questions here would reverberate across and likely jeopardize decades of that settled jurisprudence. We decline to do so and instead confirm the staple principle that appellate courts must match the standard of review to the specific rationale the BIA gave for its decision. 24 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 25 of 69 B. That part was straightforward. The harder question is how exactly to characterize BIA tolling determinations. In the past, we have given conflicting answers to this question. In some cases, “where the relevant facts [were] undisputed and the district court denied equitable tolling as a matter of law, we review[ed] the district court’s decision de novo.” Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (en banc). But in “other circumstances,” we suggested “abuse of discretion” may be more appropriate. Id. Rouse itself applied abuse of discretion to the district court’s determination that, “accepting all of the facts Rouse pled about his health to be true, his medical condition did not amount to an extraordinary circumstance beyond his control that prevented him from filing.” Id. at 248 & n.10. But if Rouse was meant to signal some broader shift to a more deferential standard, our follow-on cases have not embraced it. While they continue to dutifully recite Rouse’s mantra that our Court “typically” reviews “equitable tolling arguments only for abuse of discretion,” they go on to consider anew whether the “facts demonstrate a failure to bring a timely claim.” Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (cleaned up) (citing Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003)); accord Ott v. Md. Dep’t of Pub. Safety & Corr. Servs., 909 F.3d 655, 658 (4th Cir. 2018); Warfaa v. Ali, 1 F.4th 289, 293 (4th Cir. 2021). That later approach seems right to us. Consider first Guerrero-Lasprilla. The Court, as noted above, expressly reserved the question of the “proper standard” of review. 140 S. Ct. at 1069. But it prescribed that the answer must “turn on practical considerations, such as whether the question primarily requires courts to expound on the law . . . or rather immerses courts in case-specific factual 25 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 26 of 69 issues,” because diligence for equitable-tolling purposes presents a “mixed question of law and fact.” Id. (cleaned up) (quoting U.S. Bank, 138 S. Ct. at 966–67). What the Court squarely did not contemplate was putting equitable tolling to agency discretion. See Singh, 984 F.3d at 1150, 1154 (reading Guerrero-Lasprilla as setting to one side “mixed question[s] about whether the facts found by the immigration judge [satisfy] the legal test,” where courts must choose between de novo and some version of substantial-evidence review, and to the other side “discretionary question[s],” which call for the abuse-of- discretion standard); Mejia-Espinoza v. U.S. Att’y Gen., 846 F. App’x 140, 143 n.5 (3d Cir. 2021) (distinguishing “a mixed question of law and fact” considered in Guerrero-Lasprilla from a “discretionary determination” (citation omitted)); cf. In re EuroGas, Inc., 755 F. App’x 825, 831 (10th Cir. 2019) (legal, factual, mixed, and discretionary decisions pose “distinct” questions and require courts to “apply[ ] the appropriate standard of review to each”). Consider also what courts (and agencies) mean when they speak of diligence for equitable-tolling purposes. They do not contemplate diligence in “general[ ],” quotidian terms but prescribe a “precise and elevated standard” an applicant must satisfy. Gonzalez Galvan, 6 F.4th at 560. The applicant must demonstrate, based on the totality of the circumstances, that he made a “reasonable” effort to pursue his claims in the face of extraordinary obstacles standing in his way. Holland v. Florida, 560 U.S. 631, 653 (2010). And if the applicant meets that standard, we are told he is “entitled to equitable tolling.” Id. at 649 (emphasis added) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also, e.g., Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016). 26 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 27 of 69 That simply does not look like a determination left to agency discretion. See 8 U.S.C. § 1231(b)(2)(C) (the agency “may disregard” a noncitizen’s country of choice if “the Attorney General decides that removing the alien to the country is prejudicial to the United States”); id. § 1158(a)(1) (any noncitizen present in the United States “may apply for asylum”); id. § 1255 (“the Attorney General may adjust the status of the alien” under certain conditions); cf. 17 U.S.C. § 505 (“the court in its discretion may allow the recovery of full costs”); Gall v. United States, 552 U.S. 38, 46 (2007) (because Sentencing Guidelines are no longer mandatory, the district court has discretion in how to apply them). A noncitizen’s entitlement to equitable tolling, in short, implicates a “matter of right,” not “grace.” St. Cyr, 533 U.S. at 308. When it comes to reviewing the BIA’s equitable-tolling rulings, then, our only choice should be between de novo and substantial evidence, depending on whether we think our review “entails primarily legal or factual work.” U.S. Bank, 138 S. Ct. at 967. 7 Those inquiries are not always “easy to separate,” Wainwright v. Witt, 469 U.S. 412, 429 (1985), but, on balance, we think de novo is a better fit. We begin with how U.S. Bank itself characterizes legal decisionmaking: as “elaborating on a broad legal standard” and 7 Although Pennington, Maypa, Ott, and Warfaa all declared this Court should analyze equitable tolling de novo because the question requires us to map facts onto a legal standard, such general pronouncements appear wanting after U.S. Bank—all mixed questions involve applying “a legal test” to “the historical facts.” U.S. Bank, 138 S. Ct. at 966. We must instead decide whether equitable tolling (and diligence in particular) calls for primarily legal or factual determinations. Id. at 967. Because we have “never squarely addressed th[at] issue”—not even in Ott or Warfaa, decided post-U.S. Bank—we do so here. Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993); see also Fernandez v. Keisler, 502 F.3d 337, 343 n.2 (4th Cir. 2007). 27 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 28 of 69 “developing auxiliary legal principles of use in other cases.” 138 S. Ct. at 967. Because equitable tolling was originally a concept fashioned by judges, see, e.g., Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 558 (1974), our cases continue to “provide legal interpretations” of the doctrine. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1200 (2021) (concluding that copyright’s fair-use questions should be reviewed de novo after U.S. Bank because the Court’s interpretations of that judge-made doctrine “still provide . . . general guidance for future cases”). In this very case, the parties quarrel over when we should start the diligence clock; they question the scope of the obligation a noncitizen’s family has to research the law or hire a lawyer on the noncitizen’s behalf; they argue over what level of vigilance we can fairly expect from a noncitizen who has lived in another country for over a decade before the United States finally changed the law. “This type of work is legal work.” Id. (“developing auxiliary legal principles” includes deciding that “the scope of fair use is narrower with respect to unpublished works” and that “wholesale copying aimed at creating a market substitute is presumptively unfair” (citations omitted)). And to the extent our work involves incidental factual determinations, we are asked to do no more here than in any other case that tasks courts with determining whether a person acted reasonably in view of the totality of the circumstances—decisions courts have historically made de novo. E.g., United States v. Arvizu, 534 U.S. 266, 275 (2002) (whether police had “reasonable suspicion” to effectuate a stop); Elder v. Holloway, 510 U.S. 510, 513, 516 (1994) (whether an officer’s conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known” (citation omitted)); Johnson v. Am. United Life Ins. Co., 716 F.3d 813, 823 (4th Cir. 2013) (“whether a 28 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 29 of 69 reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct” (citation omitted)); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir. 2013) (whether “a reasonable person” would find supervisor behavior “objectively offensive” so as to amount to battery); United States v. Jones, 678 F.3d 293, 299 (4th Cir. 2012) (whether “all the circumstances surrounding [a police] encounter” “would have communicated to a reasonable person that the person was not free” to leave (citation omitted)); Foretich v. Cap. Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir. 1994) (“whether a defamation plaintiff is a limited-purpose public figure” (citations omitted)). Also relevant is that the decision to deny equitable tolling was made by the BIA, not the IJ. U.S. Bank explained that the appropriate standard of review “reflects which ‘judicial actor is better positioned’ to make the decision.” 138 S. Ct. at 967 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)); see also, e.g., Buford v. United States, 532 U.S. 59, 64 (2001) (rejecting de novo review where “the district court is in a better position than the appellate court to decide whether a particular set of individual circumstances” meets the legal test); Wainwright, 469 U.S. at 429 (juror bias presents a factual issue because the court’s “predominant function in” resolving it “involves credibility findings whose basis cannot be easily discerned from an appellate record”). The BIA held no hearing, took no evidence, made no credibility determinations below. It merely read Williams’s motion and the written declarations attached. We can conduct this analysis just as well. Indeed, even where the BIA reviews an IJ’s equitable-tolling determination, it does so “de novo,” In re Lugo-Resendez, 2017 WL 8787197, at 3 (BIA 2017), in keeping with 29 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 30 of 69 the agency’s “analytical approach to deciding cases,” which “focuses on the qualities of adjudication that best suit the different decisionmakers,” Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002). 8 We see no reason to abandon that approach at the courts of appeals, to conceptualize as factual the same question the BIA deemed legal below. We are finally comforted by the fact that the Supreme Court and other circuits appear to approach equitable tolling as a matter of law. In Holland, the Court held the district court’s “conclusion was incorrect” because the facts before it readily established reasonable diligence. 560 U.S. at 653. Nowhere did the Court refer—much less defer— to the lower courts’ rationales. See id. The Court simply determined for itself that Holland acted with diligence. See id. at 671 (Scalia, J., dissenting) (lamenting the Court’s reach because the court of appeals had no opportunity to pass on the question). More recently, Menominee Indian Tribe denied equitable tolling because the “Tribe offere[d] no circumstances” that were “both extraordinary and beyond its control.” 577 U.S. at 257 8 Following Lugo-Resendez, we would likely reverse the BIA even under the abuse-of- discretion standard. There, the BIA held “equitable tolling of the reopening deadline [was] appropriate” even though a noncitizen did not discover a change in the law until two years after the Supreme Court promulgated its decision (as compared to Williams’s one) and then waited an additional two months to ask to reopen after his discovery (again, as compared to Williams’s one). 2017 WL 8787197, at 3. And still the BIA excused the delay— thirteen years overall—because the noncitizen “was unaware that the law affecting his removability could change,” “no one in his family has attended law school or become an attorney, he was unable to follow legal developments in the United States” after he was removed to Mexico, and he could not “afford to regularly consult with an attorney.” Id. Without explanation, the BIA reached the opposite result here. That falls far short of the kind of “reasoned decisionmaking” an agency must engage in. Judulang v. Holder, 565 U.S. 42, 53 (2011). 30 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 31 of 69 (emphasis omitted). Once again, the Court said nothing about deferring to a lower court’s determination on this question. See id. Several circuit courts have followed that same path. See Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006) (holding “the BIA erred” in determining the motion to reopen time-barred); Fernandez Taveras v. U.S. Att’y Gen., 842 F. App’x 762, 763 n.1 (3d Cir. 2021) (applying “the equitable tolling standard ‘to undisputed or established facts’” “de novo” (quoting Nkomo v. U.S. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021))), cert. denied sub nom. Taveras v. Garland, 142 S. Ct. 771 (2022); Zaldivar Anzardo v. U.S. Att’y Gen., 835 F. App’x 422, 426 (11th Cir. 2020) (characterizing “equitable tolling” as a “question[ ] of law”); Guerrero-Lasprilla, 822 F. App’x at 256 (concluding the “BIA did not err” in denying equitable tolling because “an uncertain legal landscape” did not constitute “an extraordinary circumstance” (quoting Menominee Indian Tribe, 557 U.S. at 258)). And we ourselves have required de novo review for analogous questions, including whether maltreatment an immigrant suffers amounts to torture, whether a government’s response to that torture constitutes acquiescence, whether an immigrant will experience extreme hardship upon being deported, and whether an immigrant entered into a marriage in good faith. See Cruz-Quintanilla, 914 F.3d at 890; Upatcha v. Sessions, 849 F.3d 181, 186 (4th Cir. 2017); Gonzales Galvan, 6 F.4th at 561. Those questions appear to us indistinguishable in any material respect from the BIA’s equitable-tolling determination below. 9 9 The government protests Upatcha and Cruz-Quintanilla concerned the standard of review the BIA applies to the IJ’s decisions, not the standard by which appellate courts review the BIA. But as we already explained, we find it difficult to understand why the same question would be legal before the BIA but factual or discretionary before the courts of appeals. 31 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 32 of 69 We thus hold that the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo. And as always, we review the lone subsidiary, factual issue—whether Williams’s attorney represented him pro bono—for substantial evidence. IV. The last preliminary question we must decide is whether the statutory time and number limitations on motions for reconsideration can be tolled at all. In Holland, the Court held that “AEDPA’s statutory limitations period can be tolled for equitable reasons.” 560 U.S. at 645. Without setting forth any rigid factors, the Court observed that the provision “is not jurisdictional,” it “does not contain language that is ‘unusually emphatic,’” does not provide a “particularly long” limitations period, and that equitable tolling would not “undermine[ ] AEDPA’s basic purposes.” Id. at 645, 647–48 (citations omitted). Those are equally true of § 1229a(c)(6). Nothing in the INA “set[s] forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Id. at 645 (citation omitted). The language is not emphatic—§ 1229a(c)(6) states just once that noncitizens must file within thirty days of the final removal order. The time to file is much shorter than AEDPA’s one-year period. And, as this very case illustrates, there are good reasons to equitably toll both the time and number limitations to accommodate changes in the U.S. immigration law that would allow noncitizens to reunite with their families. Even more to the point, this Court has already permitted the BIA to equitably toll the ninety-day deadline to file a motion to reopen. See Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013). The statutory text addressing motions to reopen and reconsider is 32 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 33 of 69 functionally identical. Compare 8 U.S.C. § 1229a(c)(6)(B) (the motion to reconsider “must be filed within 30 days of the date of entry of a final administrative order of removal”), with id. § 1229a(c)(7)(C)(i) (“the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal”). And the government agrees we should treat them the same. See Resp. Br. 17 n.2. So do other circuits. See Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020); Gonzales-Alarcon v. Macias, 884 F.3d 1266, 1270 (10th Cir. 2018); see also Lugo-Resendez v. Lynch, 831 F.3d 337, 343 (5th Cir. 2016) (tolling numeric limitations); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (same); Zhao, 452 F.3d at 159–60 (same). We join in this understanding and hold the statutory time and number limitations for motions to reconsider subject to equitable tolling. V. With those background principles in mind, we turn, finally, to the merits of Williams’s claim. Noncitizens seeking equitable tolling must demonstrate they “ha[ve] been pursuing [their] rights diligently” but “extraordinary circumstances beyond [their] control made it impossible to file within the statutory deadline.” Lawrence, 826 F.3d at 204 (citations omitted). That is a high bar, to be sure, making tolling available “‘only sparingly,’ not in ‘a garden variety claim of excusable neglect.’” Kuusk, 732 F.3d at 306 (quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)). But it is not “insurmountable.” Warfaa, 1 F.4th at 294. A noncitizen needs to act only with “reasonable,” “not maximum feasible diligence.” Holland, 560 U.S. at 653 (citations omitted). We readily conclude that Williams has done just that. 33 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 34 of 69 As our starting point, we consider the proper point in time from which to measure Williams’s diligence. In 2010, the Supreme Court held that “violent force” means “force capable of causing physical pain or injury.” Johnson, 559 U.S. at 139–40. Applying Johnson that same year, the BIA ruled that a Va. Code Ann. § 18.2-57 conviction no longer qualified as an aggravated felony under § 16(a) because it comprised the “slightest touching of another.” Velasquez, 25 I. & N. Dec. at 281 (citation omitted). But the agency had found Williams committed an aggravated felony under both §§ 16(a) and (b). So it was not until 2018, when the Court struck § 16(b) as unconstitutionally vague, that Williams became entitled to relief. See Dimaya, 138 S. Ct. at 1223. In denying equitable tolling below, however, the BIA alluded multiple times to Williams’s obligation to “regularly [seek] out pro bono counsel.” A.R. 5; see also id. (faulting Williams for failing to seek “assistance from pro bono counsel prior to, or soon after” Dimaya (emphasis added)). The BIA thus appeared to base its diligence ruling at least in part on Williams’s conduct before 2018. With that we cannot agree—before 2018, Williams had no “rights” to pursue. See Holland, 560 U.S. at 649 (clarifying that equitable tolling asks whether a petitioner “has been pursuing his rights diligently” (emphasis added) (citation omitted)). The government protests we cannot avoid Lawrence, which observed that a noncitizen must “demonstrate that he acted with due diligence during the entire period he [seeks] to toll.” 826 F.3d at 205 (cleaned up) (discussing Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008)). But the government places more weight on that quotation than it can bear: The same paragraph that cited Rashid considered only whether Lawrence showed diligence “during the two years after” the Supreme Court changed immigration law and “the year- 34 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 35 of 69 and-a-half after he contacted” the lawyer about that legal change. Id. at 204–05. Nowhere did we discuss Lawrence’s conduct before the Supreme Court’s ruling—that is, before Lawrence became entitled to cancellation of removal—or intimate we would do so in future cases. Unscrupulous reliance on Rashid is all the more unconvincing because Rashid did not deal with a change in the law but with ineffective assistance of counsel. That type of claim lends itself to a different analysis: Although in some cases, it will be truly beyond a noncitizen’s ken to understand counsel’s inadequacy, in most circumstances, courts are right to ask whether a noncitizen at least “follow[ed] up with his attorney after the DHS decision” or tried to “obtain new counsel” because doing so might have helped uncover the inadequacy early on. Rashid, 533 F.3d at 133. Yet visiting additional attorneys before 2018 would not have helped Williams. In 2006, he argued three times to the IJ and the BIA that his conviction should not be classified as an aggravated felony because “use of force is not an element” of Va. Code Ann. § 18.2-57. A.R. 320 (original proceedings before the IJ); see also id. at 97 (defending the IJ’s ruling that the Virginia statute “did not comport with the requirements under federal law defining a crime of violence” on government’s appeal to the BIA); id. at 80 (reasoning that “use of force must be an element of the crime and the Virginia Statute text is unambiguous that force is not listed as an element” on first motion for reconsideration to the BIA). That is the exact argument the Supreme Court would finally accept in 2010. But in 2006, the BIA turned Williams down twice. As did this Court. See Williams, 234 F. App’x at 114 (denying his petition). 35 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 36 of 69 In the end, even Rashid acknowledged the diligence inquiry centers on when a noncitizen “knew or should have known” of his rights. 533 F.3d at 132. That is a functional test. We do not ask, in a vacuum, whether Williams should have contacted X number of attorneys over the twelve years he spent in Jamaica, but whether he “reasonably should have” discovered Dimaya before 2019. Zhao, 452 F.3d at 158, 159; accord Holland, 560 U.S. at 649. Taking stock of the totality of the circumstances Williams presented, the answer to that question is no. The Board opined Williams could have discovered his eligibility sooner had he “regularly” sought the advice of a pro bono attorney. A.R. 5. Because Williams learned of Dimaya only a year after the Court issued the decision, the Board must have required Williams to consult with an attorney more “regularly” than that. But recall that, even when Williams lived in the United States, he had trouble securing a pro bono attorney—and the IJ recognized as much, granting him four requests for continuance. And Person ultimately felt compelled to spend the little money she had to pay an attorney—we agree here with Williams that substantial evidence does not support the BIA’s conclusion that the attorney acted pro bono, see id. at 9 (showing she checked “no” next to acting “pro bono” when entering her appearance). Expecting Williams to have secured a pro bono attorney so often as to discover Dimaya before 2019 is not reasonable. Nor is expecting him to “maintain[ ] contact with” the attorney who represented him in 2006—an alternative the BIA advised. Id. at 5. That attorney ended his representation in 2007, before Williams could even petition this Court to review the BIA’s original removal decision. Williams had no reason to think he would renew his representation after Williams was deported. 36 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 37 of 69 Accepting the difficulties of finding pro bono representation, the government suggests Williams could have hired an attorney. But again, by the time Dimaya came out in 2018, Williams had been in Jamaica for eleven years. So, to successfully discover Dimaya sooner than 2019, Williams would had to have hired an attorney more than once per year throughout those years. Yet Williams makes only a few dollars a week after room and board. He has no access to the Internet. The government’s suggestion simply cannot be squared with the realities of Williams’s life. And not even the BIA demanded that. The BIA did, however, fault Williams’s wife for failing to “stay informed on the status of the law,” “even considering [the] family’s low income.” Id. For one, the BIA cited no law (and we find none) that would allow us to impute her conduct to Williams. For another, the BIA misunderstood the nature of the relationship between them. The pair has two children together, ages twenty and seventeen, but Person has two other children, ages sixteen and fourteen, who are “stepchildren” to Williams. Id. at 24, 27. The couple thus did not have the continuous relationship the BIA presumed. And in any event, Person is not an attorney. She does not know how to conduct legal research. And she makes only $20,000 per year, which goes to support her four children, to manage her lung disease, and to make occasional trips to Jamaica so that Williams’s children can see their father. We cannot agree it was reasonable for Person to stay abreast of immigration law for eleven years—and do so with such frequency that she would have discovered Dimaya before 2019. The government finally asks us not to consider the meeting with the attorney in 2019 at all, calling it a fortuitous happenstance. Person, the government suggests, retained the 37 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 38 of 69 attorney because she thought Williams might be able to return to the United States now that they were married rather than as part of some periodic check on the status of immigration law. But a noncitizen can certainly hire an attorney to both check on how his legal status has changed following a marriage and how the legal landscape itself has changed. We decline to trample on attorney-client privilege by scrutinizing what was said in the meeting and what possible grounds for cancellation of removal Person advanced. Nor do we find anything nefarious in that Person sought out counsel after her lungs deteriorated. Finally obtaining “good legal advice” upon a change in personal circumstances “does not mean [Williams] was dilatory for failing to obtain such advice sooner”; “there is a difference between diligence and desperation.” Gordillo v. Holder, 640 F.3d 700, 706 (6th Cir. 2011). On top of that, Williams has been exceedingly diligent after he learned of Dimaya. His attorney filed for reconsideration just one month after receiving Williams’s records from the DHS under the Freedom of Information Act. Even though diligence after discovery is not determinative, as Williams would have us hold, it still demonstrates Williams did not sleep on his rights. Compare Sun v. Mukasey, 555 F.3d 802, 806 (9th Cir. 2009) (granting petition largely because the applicant “acted with admirable diligence after retaining new counsel,” even where years went by after initial ineffective assistance of counsel), with Wang v. Bd. of Immigr. Appeals, 508 F.3d 710, 715 (2d Cir. 2007) (faulting an immigrant for waiting several months to file a motion to reconsider after he found out about a change in the law). At bottom, Williams’s rights hinged on complicated, multistep decisions handed down by the Supreme Court, not “garden variety” attorney 38 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 39 of 69 negligence Williams could have easily discovered on his own. See Holland, 560 U.S. at 652 (citation omitted). Still, he discovered his rights just one year after the Court enunciated them. Giving “due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system,” Lugo-Resendez, 831 F.3d at 345, we hold Williams could not “reasonably have been expected to have filed earlier.” Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (Posner, J.); accord Sun, 555 F.3d at 806 (two- year delay did not evidence “lack of due diligence” under the circumstances). We accordingly vacate the BIA’s diligence ruling. * * * Because the BIA determined Williams not diligent, it did not consider whether Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable tolling. In previous cases, the BIA has held that Supreme Court decisions that significantly change the legal landscape meet this bar. See Lugo-Resendez, 2017 WL 8787197, at 1, 3 (discussing Lopez v. Gonzalez, 549 U.S. 47 (2006), which held that the noncitizen’s drug offense no longer qualified as an aggravated felony); In re G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999) (characterizing “a fundamental change in the principles of the law” as an “exceptional” circumstance warranting sua sponte reopening); see also Lona, 958 F.3d at 1230 (“The BIA may equitably toll this statutory filing deadline, including in cases where the petitioner seeks excusal from untimeliness based on a change in the law that invalidates the original basis for removal.”). Still, the “ordinary” rule demands we remand to the BIA to decide this issue in the first instance, INS v. Orlando Ventura, 537 U.S. 12, 39 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 40 of 69 18 (2002), and the parties do not oppose that course. We thus remand to the BIA to decide whether the legal changes in Johnson and Dimaya constitute extraordinary circumstances and whether, on the whole, Williams’s request to reconsider merits a favorable exercise of discretion. But we caution, as other courts have done before us, that denial of equitable tolling here would create a “particularly serious” concern, as it would preclude Williams from seeking cancellation of removal “when it is evident that the basis for his removal is now invalid.” Lugo-Resendez, 831 F.3d at 345. 10 VI. For the foregoing reasons, we GRANT the petition, VACATE the judgment of the BIA, and REMAND the case for further proceedings consistent with this opinion. 10 In alternative, Williams asks that we hold the BIA legally erred in declining to reconsider sua sponte under 8 C.F.R. § 1003.2(a). The government objects we have no jurisdiction to review committed to agency discretion by law because “there are no meaningful standards for courts to apply in review.” Mosere v. Mukasey, 552 F.3d 397, 401 (4th Cir. 2009). But whether Mosere applies to legal errors “underlying” the BIA’s exercise of “its sua sponte power” is a question we expressly left open in Lawrence, 826 F.3d at 207 n.5, in 2016. Because we agree with Williams on equitable tolling, we do not decide this question. We note, however, that at least seven of our sister circuits recognize jurisdiction to review such legal errors. See Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. U.S. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir. 2018); Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019); Bonilla v. Lynch, 840 F.3d 575, 586–88 (9th Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020). 40 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 41 of 69 RUSHING, Circuit Judge, dissenting: The majority tasks itself with deciding three threshold questions of law in this case: (1) whether the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) applies to a petition seeking review of a Board of Immigration Appeals decision denying reconsideration of a prior removal order; (2) under what standard we review a Board decision denying equitable tolling of the limits on motions to reconsider for lack of diligence; and (3) “whether the statutory deadline for a motion to reconsider can be equitably tolled at all.” Supra, at 8. Only the last question is actually open in our Circuit. Prior decisions have conclusively answered the jurisdictional question and set the standard of review. Yet the majority purports to resolve these questions anew in contradiction of our precedent as well as that of the Supreme Court and our sister courts of appeals. I respectfully dissent. By way of background, federal law allows a noncitizen to file one motion to reconsider within 30 days of a final order of removal. 8 U.S.C. § 1229a(c)(6). Petitioner filed his second motion to reconsider 12 years and 10 months after the Board issued his final order of removal. He asked the Board to equitably toll the time and number limitations, which required him to show that he had been diligently pursuing his rights. Petitioner admitted that he did “not do anything for the previous twelve years or so” since he was removed. A.R. 25. But he stated that his wife contacted an attorney once, in April 2019. As a result, Petitioner learned that his assault conviction no longer qualified as an aggravated felony due to intervening Board and judicial decisions and that he might be eligible to apply for cancellation of removal. After this discovery, Petitioner claimed, he diligently sought relief. The Board denied Petitioner’s request for equitable tolling and so 41 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 42 of 69 necessarily denied his motion to reconsider as time- and number-barred. It also denied sua sponte reopening. See 8 C.F.R. § 1003.2(a) (2020). Petitioner asks us to vacate the Board’s decisions based on our own reassessment of his diligence, including what he claims is a factual misstatement by the Board. But Petitioner recognizes that 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review questions of fact because, in addition to his assault conviction, he was also removable for having committed multiple “crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii). To avoid this jurisdictional limitation, Petitioner urges us to reverse the 2006 moral turpitude ruling against him, despite his failure to exhaust his challenge to that ruling before the Board. Acknowledging the “perhaps insurmountable hurdle” erected by Petitioner’s failure to exhaust, the majority declines to resolve his argument. Supra, at 17 n.6. Instead, the majority issues a sweeping ruling neither advanced nor briefed by either party: It holds that Section 1252(a)(2)(C)’s jurisdictional bar does not apply to petitions for review of the Board’s denial of reconsideration or reopening because those decisions are not “final order[s] of removal.” Undoubtedly, no party made this argument because our Court has already held the opposite, as have all the other courts of appeals to consider the question. By changing course, the majority today creates a lopsided 1-to-10 circuit split. The majority then reviews the Board’s equitable tolling determination de novo. But our cases have consistently reviewed the Board’s equitable tolling decisions—including its due diligence assessments—under a more deferential abuse-of-discretion standard. 42 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 43 of 69 Applying the correct standard here, the Board did not abuse its discretion in denying reconsideration based on the arguments and evidence Petitioner presented to the Board. And, as we have also held in previous decisions, we lack jurisdiction to review the Board’s denial of sua sponte reopening. Accordingly, I would deny the petition for review in part and dismiss in part. I. The Immigration and Nationality Act (INA) provides for judicial review of “a final order of removal” against a noncitizen. 8 U.S.C. § 1252(a). Section 1252(a)(2)(C), however, forbids any court from reviewing “any final order of removal against an alien who is removable by reason of having committed” certain crimes, including aggravated felonies and crimes involving moral turpitude. Subparagraph (D) explains that courts nevertheless retain jurisdiction to consider “constitutional claims or questions of law” in such instances. Id. at § 1252(a)(2)(D). Practically speaking, then, subparagraph (C) forbids “appeals of factual determinations.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1073 (2020). We have jurisdiction to review so-called “mixed questions” of law and fact. Id. at 1069. Everyone agrees that applying the legal standard for equitable tolling to undisputed or established facts is a such a question. And everyone agrees that subparagraph (C) denies us jurisdiction to review questions of fact in a petition from the Board’s final order of removal against a criminal noncitizen. But the majority contends that subparagraph (C) does not apply to petitions from the Board’s decision declining to reconsider its removal order against the same criminal noncitizen because the decision denying reconsideration is 43 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 44 of 69 not itself a “final order of removal” within the meaning of the INA. Precedent from all corners refutes that conclusion. And even if it were an open question, the majority’s analysis is incorrect. A. It is well settled that Board decisions denying reopening or reconsideration are treated as final orders of removal in Section 1252(a), including for purposes of subparagraph (C)’s jurisdictional bar. The Supreme Court’s decisions compel this conclusion. Our Court has so held. And our sister circuits have “uniformly” agreed. Musangu v. Holder, 517 Fed. App. 166, 168 (4th Cir. 2013). The Supreme Court has long held that “jurisdiction to review ‘final order[s] of removal’” in Section 1252(a)(1) “encompasses review of decisions refusing to reopen or reconsider such orders.” Reyes Mata v. Lynch, 576 U.S. 143, 147 (2015). When the Board issues a deportation order and then later denies a motion to reconsider that order, “two separate final orders” exist that a court of appeals has jurisdiction to review. Stone v. INS, 514 U.S. 386, 395 (1995). Accordingly, “this Court and our sister circuits have traditionally interpreted ‘final order of deportation’ . . . to include a BIA order denying a motion to reopen” or reconsider. Stewart v. INS, 181 F.3d 587, 593 (4th Cir. 1999). This understanding of “final order of removal” in Section 1252(a)’s jurisdictional grant applies equally to the same phrase in subparagraph (C)’s jurisdictional restriction. Indeed, that is the entire premise of the Supreme Court’s decision in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020). The petitioners in that case were removed from the country after committing drug crimes specified in subparagraph (C). After the time for seeking 44 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 45 of 69 reconsideration or reopening had passed, the petitioners asked the Board to reopen their removal proceedings because intervening judicial and Board decisions had rendered them eligible for discretionary relief. The Board denied the petitioners’ requests for equitable tolling, concluding that they had failed to demonstrate due diligence. Id. at 1067. As the Supreme Court explained, “in this kind of immigration case (involving aliens who are removable for having committed certain crimes), a court of appeals may consider only ‘constitutional claims or questions of law.’” Id. at 1068 (quoting 8 U.S.C. § 1252(a)(2)(D)). In other words, subparagraph (C) prevented review of factual questions even though the petitioners sought review of the denial of their motions to reopen instead of their original removal orders. As the Court confirmed, in those cases, the statute “still forbid[s] appeals of factual determinations.” Id. at 1073. We have reached the same conclusion expressly in a similar case. Much like this case, the petitioner in Lawrence v. Lynch moved to reopen his removal proceedings out of time in order to seek cancellation of removal after an intervening judicial decision. 826 F.3d 198, 202 (4th Cir. 2016). The Board denied equitable tolling, concluding that the petitioner failed to show due diligence. Id. In assessing our jurisdiction over the petition, we noted that—just as in this case—even if the petitioner’s crimes no longer constituted aggravated felonies, he remained removable based on his crimes involving moral turpitude. Id. at 203. “The jurisdictional bar of § 1252(a)(2)(C),” we explained, “therefore precludes our exercising jurisdiction over anything but ‘constitutional claims or questions of law.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)). It made no difference that the petition sought review of the Board’s denial of reopening based on equitable tolling rather than the Board’s 45 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 46 of 69 original removal order from years earlier. Subparagraph (C) applied because the petitioner was “removable by reason of having committed” crimes involving moral turpitude. 8 U.S.C. § 1252(a)(2)(C). That decision squarely applies here. The majority ignores this aspect of Lawrence and instead claims support from a decision interpreting a different statutory provision. In Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir. 2005), we interpreted Section 1252(a)(2)(B)(i) “to preclude review only where the basis for the [Board’s] discretionary decision addresses the merits of an enumerated provision” in that statute. But see Patel v. Garland, 142 S. Ct. 1614, 1622 (2022) (explaining this provision encompasses judgments “of whatever kind,” “not just discretionary judgments,” and any judgment “relating to the granting of relief”). The majority extends a version of that reasoning to subparagraph (C), holding that we have jurisdiction to consider “a factual challenge unrelated to the merits of the final removal order.” Supra, at 17 (internal quotation marks omitted). But this analysis begins from the erroneous premise that “final order[s] of removal” does not encompass decisions denying reconsideration, a matter Obioha had “no need to consider.” Rangolan v. Mukasey, 302 Fed. App. 133, 136, 137 n.2 (4th Cir. 2008) (noting that “our decision in the case at hand”— that subparagraph (C) “necessarily restricts our review of a denial of a criminal alien’s motion to reopen removal proceedings to constitutional and legal questions”—“does not in any way conflict with our recent holding in Obioha”). As the Supreme Court has explained, “[s]ubparagraph (B) bars review of only one facet of the removal process (consideration of discretionary relief) whereas subparagraph (C) prohibits review of the entire proceeding (removal based on a criminal offense).” Patel, 142 S. Ct. at 1625–1626. 46 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 47 of 69 The majority’s effort to curtail subparagraph (C) to forbid review only of factual challenges related to the merits of the original removal order cannot be reconciled with Lawrence or Guerrero-Lasprilla. In Lawrence, we held that subparagraph (C) precluded our review of “the Board’s factual determination[s]” regarding “due diligence” made “in conducting the equitable tolling inquiry.” 826 F.3d at 203 (internal quotation marks omitted). We could hardly have been clearer that subparagraph (C) includes all factual challenges, whether related to the original removal order or, as in that case, not related. 1 Likewise in Guerrero-Lasprilla. The petitioners there also sought review of the Board’s equitable tolling decisions, but the Supreme Court stated that subparagraph (C) prevented review of factual claims without considering it relevant that facts concerning due diligence are unrelated to the merits of the original removal order. Guerrero-Lasprilla, 140 S. Ct. at 1067–1068, 1073. Every other circuit to consider this question has applied subparagraph (C) to petitions for review of Board decisions denying reconsideration or reopening. See, e.g., Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006); Durant v. INS, 393 F.3d 113, 115–116 (2d Cir. 2004), as amended (Feb. 1, 2005) (Sotomayor, J.); Cruz v. Att’y Gen., 452 F.3d 1 Cucalon v. Barr, 958 F.3d 245 (4th Cir. 2020), on which the majority relies, see supra, at 10–11, also does not support their reformulation. That case concerned whether a certain Virginia crime was an aggravated felony—a legal question that we recognized as falling within subparagraph (D)’s jurisdictional grant. See Cucalon, 958 F.3d at 249. In his motion to reconsider, the petitioner raised additional legal arguments in support of his claim. We agreed with the Board that those new arguments were waived and that, in any event, they would not change our legal conclusion that the Virginia statute was divisible. Id. at 254. We did not at all suggest that we could review the Board’s factual findings on reconsideration because they were “collateral factual matters.” Supra, at 10. 47 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 48 of 69 240, 246–247 (3d Cir. 2006); Assaad v. Ashcroft, 378 F.3d 471, 474–475 (5th Cir. 2004); Pepaj v. Mukasey, 509 F.3d 725, 726, 728 (6th Cir. 2007); Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004); Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Sarmadi v. INS, 121 F.3d 1319, 1321–1322 (9th Cir. 1997); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1261–1262 (11th Cir. 2003). Until today, our Court has acknowledged, and followed, this uniform line of authority. See Musangu, 517 Fed. App. at 168 (“Circuit courts have uniformly held that the prohibition against reviewing final orders of removal when the alien is removable for having been convicted of an aggravated felony or other criminal offense extends to denial of motions to reopen.”); Rangolan, 302 Fed. App. at 136–137 (observing that the “courts of appeals that have considered this jurisdictional issue have reached the identical conclusion” that subparagraph (C) “restricts our review of a denial of a criminal alien’s motion to reopen removal proceedings to constitutional and legal questions”). No other circuit has embraced the majority’s view. None of the decisions the majority cites from other circuits holds that subparagraph (C) does not apply to petitions from the denial of reconsideration or reopening or to “collateral” factual questions raised in those petitions. Supra, at 10, 15–16. In Agonafer v. Sessions, the Ninth Circuit recognized that subparagraph (C) applied to a petition from the denial of reopening but discussed two exceptions to the jurisdictional bar: the subparagraph (D) exception for constitutional claims and questions of law and an exception created by caselaw in that circuit for “a denial of CAT relief on the merits.” 859 F.3d 1198, 1202 (9th Cir. 2017) (internal quotation marks omitted). Even further afield, the Fifth Circuit in Diaz v. Sessions 48 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 49 of 69 confronted a constitutional claim of ineffective assistance of counsel and determined that subparagraph (D) gave it jurisdiction over that claim, including “factual disputes that are necessary” to review the constitutional claim, but no others. 894 F.3d 222, 227 (5th Cir. 2018). And in Durant v. INS, the Second Circuit squarely held that “when an alien has been ordered removed because of a conviction for one of the offenses specified in § 1252(a)(2)(C), the jurisdictional bar imposed by this section also applies to an order denying a motion to reopen removal proceedings.” 393 F.3d at 114. Nothing about that decision hinged on whether the reasons for the Board’s denial of reopening were related to the original removal order. To the contrary, the court “held that orders denying motions to reopen removal proceedings were ‘sufficiently connected’ to final orders of removal that the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applied” categorically to orders denying motions to reopen or reconsider. Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) (Sotomayor, J.) (quoting Durant, 393 F.3d at 115). We are indeed “alone” in holding to the contrary. Supra, at 15. B. Even if the applicability of subparagraph (C)’s jurisdictional bar were an open question in this Circuit, the answer would be the same. As a reminder, the statute provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain specified crimes. 8 U.S.C. § 1252(a)(2)(C). In the INA, “jurisdiction to review ‘final orders[s] of removal’ . . . encompasses review of decisions refusing to reopen or reconsider such orders.” Reyes 49 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 50 of 69 Mata, 576 U.S. at 147 (quoting 8 U.S.C. § 1252(a)(1)). As it is for the grant of jurisdiction over “final order[s] of removal” in Section 1252(a)(1), so it is for the limit on jurisdiction over “final order[s] of removal” in subparagraph (C). See Guerrero-Lasprilla, 140 S. Ct. at 1068. “‘[I]t is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.’” Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018) (quoting Taniguichi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 571 (2012)). That “natural presumption” is warranted here, where the phrase is repeated within the same statutory subsection and in both instances describes the object of judicial review. Env’t Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (internal quotation marks omitted). This cohesive understanding of the jurisdictional statute makes sense given the close connection between an original removal order and a subsequent motion to reopen or reconsider. After all, both motions seek to undo the prior removal order. See 8 U.S.C. § 1229a(c)(6) & (7); Dada v. Mukasey, 554 U.S. 1, 12 (2008) (“A motion to reopen . . . asks the Board to change its decision . . . .” (internal quotation marks omitted)). Unlike a CAT order, which “does not affect the validity of a final order of removal,” Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020), the very purpose of a motion to reopen or reconsider is to invalidate a prior removal order. The majority’s conclusion that Board decisions denying reopening or reconsideration are excluded from the phrase “final order[s] of removal” in Section 1252 not only contradicts Reyes Mata and Stone, see supra, at 44, it also creates uncertainty throughout the jurisdictional statute. For example, the majority assures us that courts have 50 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 51 of 69 jurisdiction to review petitions from decisions denying reopening or reconsideration even without the affirmative grant of jurisdiction in Section 1252(a)(1). See supra, at 14–15 & n.5. But excluding those decisions from the scope of that section has additional consequences. Section 1252(a)(1) not only grants jurisdiction, it also restricts judicial review of “a final order of removal” to “chapter 158 of Title 28, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title.” 8 U.S.C. § 1252(a)(1). Under the majority’s approach, those limitations apparently would not apply to judicial review of decisions denying reopening or reconsideration. Similarly, a petition for judicial review of “an order of removal under subsection (a)(1)” must be filed within 30 days of “the final order of removal.” 8 U.S.C. § 1252(b)(1). If decisions denying reopening or reconsideration are not among these final orders of removal, then this “jurisdictional” filing deadline does not apply to petitions seeking review of those decisions. Stone, 514 U.S. at 405. The Supreme Court and our precedent, however, foreclose that interpretation. See id. at 405–406 (explaining that a noncitizen may seek judicial review of the denial of reconsideration within the statutory time limit); see, e.g., Tebonou v. Garland, 847 Fed. App. 190, 191 (4th Cir. 2021) (dismissing petition for review of order denying motion to reopen as untimely); Mota-Braga v. Barr, 831 Fed. App. 629, 629 (4th Cir. 2020) (same); Mburu v. Barr, 812 Fed. App. 166, 166–167 (4th Cir. 2020) (same); Martinez-Saenz v. Sessions, 720 Fed. App. 171, 172 (4th Cir. 2018) (same); Paglinawan v. Holder, 564 Fed. App. 736, 737 (4th Cir. 2014) (same as to order denying motions to reopen and reconsider). 51 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 52 of 69 The majority invokes the “presumption favoring judicial review of administrative action,” supra, at 14 (internal quotation marks omitted), but that presumption has no place here. “Because ‘executive determinations generally are subject to judicial review,’ we presume that review is available when a statute is silent.” Patel, 142 S. Ct. at 1627 (quoting Guerrero-Lasprilla, 140 S. Ct. at 1069). Section 1252(a)(2)(C), however, is not silent. It expressly strips courts of jurisdiction to review any final order of removal against a criminal noncitizen, and “evidence ‘drawn from the statutory scheme as a whole’” demonstrates that restriction includes orders denying reopening or reconsideration of a prior removal order. Id. at 1627 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)). Finally, the majority asserts that this issue concerns the separation of powers between the three branches of our federal government. It does, but not in the way the majority believes. The majority quotes Kucana v. Holder, expressing concern about courts “‘plac[ing] in executive hands authority to remove cases from the Judiciary’s domain.’” Supra, at 14 (quoting 558 U.S. 233, 237 (2010)). In Kucana, the Supreme Court addressed whether the prohibition on judicial review of discretionary action in Section 1252(a)(2)(B)(ii) applied “not only to Attorney General determinations made discretionary by statute, but also to determinations declared discretionary by the Attorney General himself through regulation.” 558 U.S. at 237. Nothing about the issue before us, however, 52 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 53 of 69 implicates the Executive in constraining judicial review. 2 Instead, we confront a situation where Congress has by statute reduced our jurisdiction over certain immigration matters. “A statute affecting federal jurisdiction ‘must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes.’” Id. at 252 (quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968)); see also Stone, 514 U.S. at 405. It is the majority who transgresses the separation of powers by expanding its own jurisdiction contrary to Congress’s direction. II. Next, the majority questions which standard governs our review of the Board’s decision denying equitable tolling on a motion to reopen or reconsider. A petitioner seeking equitable tolling must prove that “(1) the Government’s wrongful conduct prevented the petitioner from filing a timely motion; or (2) extraordinary circumstances beyond the petitioner’s control made it impossible to file within the statutory deadline.” Kuusk v. Holder, 732 F.3d 302, 307 (4th Cir. 2013). A petitioner who relies on “extraordinary circumstances”—as Petitioner did here—“must also show that ‘he has been pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Our Court has consistently reviewed the Board’s due diligence and equitable tolling determinations under a deferential abuse-of-discretion standard. Because no decision of 2 Kucana’s discussion about what Congress “specified” and “left . . . where it was” in enacting IIRIRA, supra, at 13 (internal quotation marks omitted), addresses decisions left to Board discretion by statute versus regulation; it does not address Section 1252(a)(2)(C). 53 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 54 of 69 the Supreme Court or en banc opinion of this Court has disturbed that precedent, this panel is bound by it. And even if our precedent were in doubt, abuse of discretion is an appropriate standard for judicial review of this fact-specific agency determination. A. We review the denial of a motion to reopen or reconsider for abuse of discretion. See 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section.”); Cucalon v. Barr, 958 F.3d 245, 253–254 (4th Cir. 2020) (motion to reconsider); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009) (motion to reopen). In applying this standard, the Board’s decision receives “extreme deference” and should be reversed “only if the decision is arbitrary, capricious, or contrary to law.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009) (internal quotation marks omitted); see also Cucalon, 958 F.3d at 254 (same); Mosere, 552 F.3d at 400 (same); Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006) (“In applying this standard, we must affirm the BIA’s denial [of reconsideration] unless it lacked a rational explanation, departed from established policies, or rested on an impermissible basis.” (internal quotation marks omitted)). “It need only be reasoned, not convincing.” Lawrence, 826 F.3d at 203 (internal quotation marks omitted). Yet the Board abuses its discretion if it “fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). We have applied this abuse-of-discretion standard to Board decisions denying equitable tolling. Indeed, this Court has consistently reviewed the Board’s equitable tolling 54 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 55 of 69 decisions—including its due diligence assessments—for abuse of discretion. See Kuusk, 732 F.3d at 307 (“We therefore hold that the BIA did not abuse its discretion in determining that equitable tolling was not warranted here.”); see also, e.g., Lawrence, 826 F.3d at 203– 206 (reviewing Board’s diligence assessment for abuse of discretion); Singh v. Garland, No. 21-1662, 2022 WL 500505, at 1 (4th Cir. Feb. 18, 2022) (“We conclude that the Board did not abuse its discretion in determining that equitable tolling was unwarranted . . . .”); Chen v. Barr, 776 Fed. App. 801, 801–802 (4th Cir. 2019) (“We conclude that the Board did not abuse its discretion in denying Chen equitable tolling on the basis that he was not reasonably diligent . . . .”); Kinyanjui v. Sessions, 698 Fed. App. 753, 754 (4th Cir. 2017) (reviewing denial of equitable tolling for abuse of discretion); Onema v. Holder, 517 Fed. App. 139, 139 n. (4th Cir. 2013) (“[W]e . . . find no abuse of discretion in [the Board’s] alternate finding that Onema was not entitled to equitable tolling on the ground that he failed to demonstrate that he acted with due diligence.”); Urga v. Holder, 461 Fed. App. 319, 319 (4th Cir. 2012) (“[W]e conclude that the Board did not abuse its discretion in finding that Urga was not sufficiently diligent to support equitable tolling . . . .”); Perdomo v. Ashcroft, 112 Fed. App. 889, 890 (4th Cir. 2004) (“The Board did not abuse its discretion in holding that . . . Perdomo did not establish the due diligence necessary to invoke” equitable tolling.). A published decision of a panel of this Court “becomes the law of the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of this court or a superseding contrary decision of the Supreme Court.” Indus. TurnAround Corp. v. NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (internal quotation marks omitted). Petitioner 55 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 56 of 69 contends that Guerrero-Lasprilla requires this Court to review the Board’s equitable tolling decisions de novo. But, as the majority correctly recognizes, Guerrero-Lasprilla decided a jurisdictional question and expressly declined to address “the proper standard for appellate review.” Guerrero-Lasprilla, 140 S. Ct. at 1069; see id. (“[T]hese cases present no such question involving the standard of review.”); see also supra, at 18–19. Nor does Petitioner or the majority identify any other Supreme Court decision that “clearly undermine[s]” our precedent applying abuse-of-discretion review. United States v. Williams, 155 F.3d 418, 421 (4th Cir. 1998). Our decisions in Lawrence and Kuusk, therefore, remain “the law in this Circuit, and we are bound to follow [them] here.” Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). Yet the majority does not follow our precedent. It claims that our cases have produced “conflicting answers,” but in support the majority cites only decisions outside the immigration context, where we reviewed de novo a district court’s denial of equitable tolling as a matter of law. Supra, at 25. 3 When reviewing the Board’s denial of equitable tolling in the context of a motion to reopen or reconsider, however, our cases have not wavered from applying abuse-of-discretion review in all circumstances. The majority attempts to distinguish Lawrence, but that decision straightforwardly reviewed the Board’s 3 Even those cases limited de novo review to circumstances “where the relevant facts are undisputed and the district court denied equitable tolling as a matter of law,” applying abuse-of-discretion review in “all” other circumstances. Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (internal quotation marks omitted); see Warfaa v. Ali, 1 F.4th 289, 293–294 (4th Cir. 2021). The majority apparently rejects even that nuance, as it seems to require de novo review of “the BIA’s decision to deny equitable tolling” in every case, without concern for whether that decision rested on factual or legal determinations. Supra, at 32. 56 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 57 of 69 equitable-tolling diligence determination for abuse of discretion. The Court first rejected the petitioner’s claim that the Board articulated or applied an improperly heightened diligence standard. 826 F.3d at 204–206; see id. at 203 (explaining that, under abuse-of- discretion review, the Board should be reversed if its decision is “contrary to law” (internal quotation marks omitted)). The Court then dispensed with the petitioner’s procedural assignments of error, concluding that the Board did not “‘disregard[] important aspects of [his] claim’” or fail to provide “a sufficiently ‘reasoned explanation for its decision.’” Id. at 206 (quoting Tassi, 660 F.3d at 719). That is abuse-of-discretion review, plain and simple. Because our precedent demands that we review the Board’s denial of equitable tolling in this context only for abuse of discretion, that ends the matter. Petitioner may seek en banc review to overrule this Court’s prior decisions, but this panel is not at liberty to fashion a standard of review different from that dictated by our precedent. B. Even if our precedent were not crystal clear, a deferential standard is appropriate for reviewing the Board’s equitable-tolling due-diligence determinations. 4 For starters, our only guidance from positive law suggests abuse-of-discretion review. Federal regulation provides that “[t]he decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a); see Kucana, 558 U.S. at 242 (“Mindful of the Board’s ‘broad discretion’ in such matters, however, courts have employed a 4 In his brief, the Attorney General advocates abuse-of-discretion review; he does not request any other deferential standard, such as substantial evidence or clear error. 57 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 58 of 69 deferential, abuse-of-discretion standard of review.” (quoting INS v. Doherty, 502 U.S. 314, 323 (1992))). Of course, the Board’s decision whether to reopen or reconsider will be based on its resolution of the ground presented for that action. Here, the Board denied relief because Petitioner failed to demonstrate sufficient diligence to warrant equitable tolling of the limits on motions to reconsider. That issue too may be composed of subsidiary questions, which are each reviewed according to their kind. For example, the Board “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law,” such as applying the wrong legal standard for diligence. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). And, if the Board’s factfinding were reviewable in this case, it would be an abuse of discretion to base its ruling on a factual determination unsupported by substantial evidence. See id.; 8 U.S.C. § 1252(b)(4)(B). But what about the Board’s decision whether the historical facts found satisfy the legal test for due diligence? This is a “mixed question of law and fact.” Guerrero-Lasprilla, 140 S. Ct. at 1069. Some mixed questions “call[] for review de novo” while others “call[] for deferential review.” Id.; see U.S. Bank N.A. v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (“Mixed questions are not all alike.”). The majority, however, takes abuse-of- discretion review off the table from the very beginning of its analysis by setting up a false dichotomy between de novo and substantial evidence review on the one hand and leaving the matter entirely to agency discretion on the other. See supra, at 25–27. But agency discretion is not absolute. In the context of Board reopening and reconsideration decisions, abuse-of-discretion review is deferential yet retains substantive and procedural elements: 58 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 59 of 69 The Board’s decision must not be “arbitrary, capricious, or contrary to law,” Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008), may not rest on an impermissible basis, Jean, 435 F.3d at 483, must “offer a reasoned explanation,” and must not “distort[] or disregard[] important aspects of the applicant’s claim,” Tassi, 660 F.3d at 719. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 814 (4th Cir. 1991), as amended (Jan. 7, 1992) (“‘Abuse of discretion’ is a legal term of art; it is not a wooden term but one of flexibility, dependent on the type of case in which it is to be applied and the posture of the case when it arises.”). If the Board applies the correct law and observes these bounds on its decisionmaking, then its choice within the resulting range of permissible decisions will not be disturbed. See generally Harry T. Edwards & Linda A. Elliott, Federal Standards of Review 83–85 (3d ed. 2018) (discussing abuse-of-discretion review of mixed questions), 259–260 (discussing arbitrary and capricious review). There is no reason abuse-of- discretion review should not be among the “deferential” standards considered for deciding this mixed question of law and fact. Guerrero-Lasprilla, 140 S. Ct. at 1069. To determine the proper standard for this mixed question we ask “[w]hat is the nature of the mixed question here” and which decisionmaker “is better suited to resolve it?” Vill. at Lakeridge, 138 S. Ct. at 966. Mixed questions that “require courts to expound on the law” typically receive de novo review, while mixed questions that “immerse courts in case-specific factual issues” warrant deferential review. Id. at 967. For example, the Supreme Court held that a bankruptcy court’s decision that a transaction was at arm’s length when considering the facts “as a whole” was a case-specific mixed question warranting clear-error review. Id. at 968. The Supreme Court applied the same deferential 59 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 60 of 69 standard to a district court’s conclusion that a country qualified as a child’s habitual residence under a “totality-of-the-circumstances” test. Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020); see also Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021) (reviewing these cases and concluding that whether removal would pose an “exceptional and extremely unusual hardship” to a noncitizen’s family is “equally fact-bound” and so warrants “deference to the Board”). 5 The legal standard for due diligence in equitable tolling is “reasonable diligence.” Lawrence, 826 F.3d at 204. “The inquiry is ‘fact-intensive and case-specific,’ requiring a court to ‘assess[] the reasonableness of petitioner’s actions in the context of his or her particular circumstances.’” Id. (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)); see Guerrero-Lasprilla, 140 S. Ct. at 1074 (Thomas, J., dissenting) (“To determine whether a litigant has exercised due diligence, judges must conduct what this Court has characterized as an ‘equitable, often fact-intensive’ inquiry, considering ‘in detail’ the unique facts of each case to decide whether a litigant’s efforts were reasonable in light of his circumstances.” (quoting Holland, 560 U.S. at 653–654)). Each diligence conclusion turns on special facts that resist generalization: what actions did the noncitizen take to pursue his rights; how frequently and over what timeframe did he act; what claims does he seek to raise; what did he know or should he have known and when; what obstacles did he face; and so forth. In other words, the decisionmaker “takes a raft of case-specific historical facts, considers them as a whole, [and] balances them one against another” to determine 5 The majority incorrectly reports that the Singh court “require[d] de novo review” for this question. Supra, at 24. 60 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 61 of 69 whether a particular person made reasonably diligent efforts to pursue certain of his rights in the particular circumstances he faced. Vill. at Lakeridge, 138 S. Ct. at 968. 6 This is factual work. On the other side of the coin, “a fact-intensive mixed question like due diligence . . . requires ‘[p]recious little’ ‘legal work.’” Guerrero-Lasprilla, 140 S. Ct. at 1076 (Thomas, J., dissenting) (quoting Vill. at Lakeridge, 138 S. Ct. at 968). The majority’s own examples of the “legal work” to be done in deciding due diligence illustrate the point. Supra, at 28 (internal quotation marks omitted). For example, “what level of vigilance we can fairly expect from a noncitizen who has lived in another country for over a decade before the United States finally changed the law,” supra, at 28, is not “a generally recurring, purely legal matter” or “readily resolved by reference to general legal principles and standards alone,” Buford v. United States, 532 U.S. 59, 65 (2001). Rather it “grows out of, and is bounded by, case-specific detailed factual circumstances.” Id. Moreover, the fact-bound nature of the diligence decision means even de novo review “will not much clarify legal principles or provide guidance to other courts” assessing diligence in other circumstances. Vill. at Lakeridge, 138 S. Ct. at 968; see also Buford, 532 U.S. at 65–66; Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (“As a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules.” (internal quotation marks omitted)). 6 The majority offers examples of what it considers analogous determinations about reasonableness in other contexts that receive de novo review. See supra, at 28–29. Many of those examples arise “[i]n the constitutional realm,” where, the Supreme Court tells us, “the calculus changes.” Vill. at Lakeridge, 138 S. Ct. at 967 n.4. 61 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 62 of 69 All of this indicates that the agency is “better suited” than the courts of appeals to resolve the mixed question of due diligence for equitable tolling of the limits on motions to reopen and reconsider. Vill. at Lakeridge, 138 S. Ct. at 966. The Board also “sees many more” requests for tolling of the limits on motions to reopen and reconsider “than does an appellate judge,” giving it experience that aids its decisionmaking. Buford, 532 U.S. at 64. And as part of the executive agency charged with interpreting and applying our Nation’s immigration laws, the Board possesses expertise and special familiarity with the immigration context in which these claims arise and the general circumstances of removed noncitizens. The majority counters that the Board itself reviews de novo equitable-tolling determinations made by immigration judges and “analogous questions.” Supra, at 29–31 & n.9. With respect for my colleagues in the majority, it is not “difficult to understand” why we have required the Board to review such questions de novo even though that standard does not govern our own review of the Board’s work. Supra, at 31 n.9. By regulation, the Board is authorized to review “questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). As we have explained, this includes, “in cases involving mixed questions of law and fact, the application of the governing legal standard to the facts found by the immigration judge.” Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 889 (4th Cir. 2019); see Upatcha v. Sessions, 849 F.3d 181, 184 (4th Cir. 2017). The only category excluded from this list is “purely factual finding[s].” Cruz-Quintanilla, 914 F.3d at 889; see 8 C.F.R. § 1003.1(d)(3)(i). To state the obvious, that regulation does not control our 62 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 63 of 69 review of Board decisions. 7 Nor is there any conflict between conceptualizing due diligence for equitable tolling as a “question of law, discretion,” “judgment,” or “other issue” before the Board and a mixed question of law and fact on judicial review. Given all this, the question of a noncitizen’s due diligence for equitably tolling the limits on motions to reopen or reconsider Board removal orders is a mixed question calling for deferential judicial review. It is unsurprising, then, that other courts of appeals continue to review due diligence and equitable tolling under a deferential abuse-of-discretion standard, even after Guerrero-Lasprilla. For example, in Flores-Moreno v. Barr, 971 F.3d 541 (5th Cir. 2020), the Fifth Circuit determined that it possessed jurisdiction to review the Board’s equitable tolling decision as a mixed question of fact and law, id. at 544, and then reviewed the Board’s tolling and due diligence determinations only for abuse of discretion. See id. at 545 (“[T]he BIA did not abuse its discretion holding that Flores-Moreno failed to pursue his rights diligently . . . .”). Other circuits have continued to do the same. See, e.g., Diarrassouba v. Garland, No. 20-1105, 2022 WL 2517330, at 1 (2d Cir. July 7, 2022) (“The BIA did not abuse its discretion in determining that Diarrassouba did not demonstrate due diligence as required for equitable tolling.”); Zhou v. U.S. Att’y Gen., No. 21-1453, 2022 WL 212311, at 4 (3d Cir. Jan. 25, 2022) (“[W]e find no abuse of discretion in the BIA’s conclusion that Zhou failed to show due diligence.”); Njai v. Garland, No. 21-3764, 2022 WL 2903443, at 6 (6th Cir. July 22, 2022) (“[T]he BIA did not abuse its 7 As we explained in Cruz-Quintanilla, the standard of review there concerned “the division of labor within the agency itself.” 914 F.3d at 891. Here, however, the standard of review implicates “the division of authority between the Executive and the judiciary.” Id. 63 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 64 of 69 discretion when it declined Njai’s equitable tolling argument . . . .”); Hernandez-Alvarez v. Barr, 982 F.3d 1088, 1096 (7th Cir. 2020) (“We thus cannot conclude that the Board abused its discretion in determining that equitable tolling was not warranted” for petitioner’s motion to reconsider.); Tenorio v. Garland, No. 019-71321, 2022 WL 501567, at 1 (9th Cir. Feb. 18, 2022) (“[I]t was not an abuse of discretion for the IJ and the BIA to deny equitable tolling” on petitioner’s motion to reopen.); Berdiev v. Garland, 13 F.4th 1125, 1134 (10th Cir. 2021) (“[T]he BIA . . . did not abuse its discretion in determining that Berdiev was not entitled to equitable tolling due to a lack of due diligence.”); Tejada- Palacios v. Att’y Gen., No. 21-11717, 2022 WL 168802, at 2 (11th Cir. Jan. 19, 2022) (“[T]he BIA did not abuse its discretion by concluding that equitable tolling was not warranted because Tejada-Palacios had not pursued his rights diligently.”). Until today, so did our Court. See supra, at 54–55. Finding that precedent amply supported—not to mention binding—I would adhere to it. III. We turn now to the merits of Petitioner’s claim. We can assume that the Board may equitably toll the statutory time and number limits on motions to reconsider. See 8 U.S.C. § 1229a(c)(6). The parties agree that tolling is permissible, and we have held that the filing deadline for motions to reopen is subject to equitable tolling. See Kuusk, 732 F.3d at 305; 8 U.S.C. § 1229a(c)(7)(C)(i). Even assuming tolling is available, however, the Board did not abuse its discretion in denying it here. Petitioner was deported to Jamaica in 2007. In his 2019 motion to reconsider, Petitioner stated that he did “not do anything for the previous twelve years or so” to 64 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 65 of 69 discover any change in the law, pursue his rights, or attempt to regain admission to the United States. A.R. 25. Petitioner explained that he and his wife, who lived in the United States, lived under “crushing poverty” and “could not on their own retain an attorney or be apprised of the latest changes in Supreme Court interpretations.” A.R. 18–19. In April 2019, however, Petitioner’s wife consulted an attorney and, as a result, Petitioner learned of intervening changes in the law—including the Supreme Court’s April 2018 decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018)—that meant his assault conviction no longer qualified as an aggravated felony. Counsel received Petitioner’s immigration records in June 2019 and filed the motion to reconsider on his behalf in July 2019. The Board denied equitable tolling because Petitioner did “not demonstrate[] that he acted with due diligence in pursuing his latest motion to reconsider.” A.R. 4. “Assuming” Petitioner had no claim for reconsideration until Dimaya, the Board concluded that “the circumstances presented by [Petitioner] do not show he pursued his motion with due diligence after the Supreme Court’s holding in Sessions v. Dimaya.” A.R. 4–5. 8 The Board recounted Petitioner’s argument that he and his wife were too poor to afford internet service or legal counsel and that he acted with diligence after he learned of Dimaya in April 2019. But the Board observed that Petitioner did “not explain[], even considering his family’s low income, why they had not sought” pro bono counsel before April 2019. A.R. 5. The Board noted that Petitioner’s “prior counsels were pro bono” and “no explanation 8 Petitioner does not argue that the Board measured diligence from the wrong starting point in its analysis of his motion to reconsider. He does claim that the Board misidentified the date from which to measure diligence as part of denying sua sponte reopening, but as explained below, we lack jurisdiction to consider that claim. 65 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 66 of 69 [is] given why he could not have maintained contact with counsel regarding the status of the law affecting his removal,” especially considering the record evidence “that his wife could assist him from the United States in maintaining contact with counsel.” A.R. 5. The Board therefore concluded that Petitioner had not shown that “he acted with the reasonable diligence that would ordinarily be expected from a person in his situation.” A.R. 5. Before this Court, Petitioner principally contends that he took action after he learned of Dimaya (by “happenstance,” as he calls it, Reply Br. 17) and it was unreasonable to expect him to make any effort to stay abreast of developments in the law. In other words, Petitioner disagrees with the very existence of the requirement to “show that ‘he has been pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland, 560 U.S. at 649); see Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227–229 & n.7 (2012) (reasoning that an “actual-notice rule departs from usual equitable-tolling principles”). Petitioner observes that his prior pro bono counsel was not obligated to continue the attorney-client relationship after he was deported. But that mischaracterizes the Board’s opinion, which noted that Petitioner gave “no explanation” why he could not contact his prior counsel to seek information. A.R. 5. Petitioner also argues that the attorney his wife contacted in April 2019 was retained, not pro bono as the Board stated, therefore it was improper for the Board to fault him for not seeking pro bono counsel before April 2019. The attorney’s status is a factual dispute we lack jurisdiction to consider. See 8 U.S.C. § 1252(a)(2)(C). But regardless of whether that attorney received payment, it was not improper for the Board to consider, as part of its diligence assessment, that Petitioner did not seek the advice of any counsel before April 2019. 66 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 67 of 69 Ultimately, the Board set forth and applied the correct standard, conducted an individualized inquiry that acknowledged Petitioner’s evidence and considered his particular circumstances, and provided a reasoned explanation based on that evidence. Petitioner disagrees with the Board’s conclusion, but he has failed to show that its decision was “arbitrary, capricious, or contrary to law.” Lawrence, 826 F.3d at 203 (quoting Sadhvani, 596 F.3d at 182); see Cucalon, 958 F.3d at 254. In a footnote, the majority claims it would vacate the Board’s decision even under the abuse-of-discretion standard because the Board found equitable tolling warranted in a different case presenting somewhat similar facts and the agency did not supply “‘reasoned decisionmaking’” for “reach[ing] the opposite result here.” Supra, at 30 n.8 (quoting Judulang v. Holder, 565 U.S. 42, 53 (2011)). In that case, the Board found a deported noncitizen reasonably diligent where he “made repeated efforts over the course of approximately 3 years” after removal to “learn whether his proceedings could be reopened,” but “abandoned these efforts” after he was told “on multiple occasions that there was nothing that could be done.” In re: Sergio Lugo-Resendez, 2017 WL 8787197, at 3 (BIA 2017). When the noncitizen later learned that the law affecting his case had changed, he took “immediate[]” action. Id. Whatever the factual similarities and differences between that case and this one, the majority’s reliance on Judulang is out of place. In Judulang, the Supreme Court considered whether a certain Board policy was arbitrary or capricious under the Administrative Procedure Act. See 565 U.S. at 52 (citing 5 U.S.C. § 706(2)(A)). Like other agencies, the Board must engage in “reasoned decisionmaking” when it creates a binding rule or policy. Id. at 53. The Board’s 67 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 68 of 69 unpublished decision in Lugo-Resendez did not establish such a rule or policy. And reaching a different result based on different facts is not an abuse of discretion. Accordingly, I would deny the petition for review of the Board’s decision denying reconsideration. IV. Lastly, Petitioner contends that the Board erred by declining to reopen his case sua sponte. Like every other circuit to have considered the issue, we have held that we lack jurisdiction to review the Board’s denial of sua sponte reopening “because there are no meaningful standards for courts to apply in review.” Mosere, 552 F.3d at 400 (collecting cases); see 5 U.S.C. § 701(a)(2); Tamenut v. Mukasey, 521 F.3d 1000, 1003–1005 (8th Cir. 2008) (en banc). Petitioner argues we should recognize an exception to this settled rule for reviewing alleged legal errors. The majority does not resolve Petitioner’s argument but notes that seven other circuits exercise jurisdiction to review some legal errors. Supra, at 40 n.10. These circuits primarily have recognized a basis for jurisdiction when the Board denies sua sponte reopening because it believes that some legal barrier prevents the exercise of its discretionary authority. See Thompson v. Barr, 959 F.3d 476, 483–484 (1st Cir. 2020); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. Att’y Gen., 642 F.3d 155, 161–163 (3d Cir. 2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir. 2018); Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d 1295, 1299–1300 (10th Cir. 2020); but see Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019) (claiming jurisdiction “to recognize and address constitutional transgressions and 68 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 69 of 69 other legal errors that the Board may have committed in disposing of” a motion to reopen sua sponte). 9 Petitioner’s alleged legal errors do not fall within this narrow category, so “[e]ven if we were to adopt such an exception . . . , it would not apply here.” Lawrence, 826 F.3d at 207 n.5. Petitioner claims the Board committed two reviewable legal errors. First, citing Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002), the Board explained “that an alien’s diligence in seeking to reopen proceedings is an appropriate consideration when determining whether to grant sua sponte reopening.” A.R. 5. Petitioner argues that Matter of G-C-L- does not stand for that proposition. Second, Petitioner argues the Board misidentified the date from which it should measure his diligence. The Board, however, did not treat Matter of G-C-L- or the operative date for evaluating Petitioner’s diligence as legal barriers to exercising its discretion to reopen Petitioner’s removal proceedings sua sponte. Rather, the Board recognized its authority to sua sponte reopen Petitioner’s case but declined to do so because Petitioner did not satisfactorily explain his lack of diligence. 10 Thus, even assuming we have limited jurisdiction to correct certain legal errors, I would dismiss this claim for lack of jurisdiction. 9 Three circuits have rejected similar arguments in whole or in part. See Rais v. Holder, 768 F.3d 453, 464 (6th Cir. 2014); Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020); Butka v. Att’y Gen., 827 F.3d 1278, 1286 & n.7 (11th Cir. 2016); Lenis v. Att’y Gen., 525 F.3d 1291, 1292–1294 (11th Cir. 2008). 10 Indeed, Petitioner’s arguments about whether and how the Board may consider diligence in deciding whether to reopen sua sponte appear to raise exactly the sort of questions we lack any meaningful standard to evaluate. No statute or regulation “sets forth [any] factors for the BIA to consider in deciding whether to reopen sua sponte, places [any] constraints on the BIA’s discretion, [or] specifies [any] standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. 69	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484721/	USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 1 of 11 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 20-12309 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENT ALLEN CRAWFORD, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:19-cr-00118-WTM-CLR-1 ____________________ Before WILSON, NEWSOM, and ANDERSON, Circuit Judges PER CURIAM: USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 2 of 11 2 Opinion of the Court 20-12309 Kent Crawford appeals his enhanced sentence of 120 months’ imprisonment under the career-offender guideline, U.S.S.G. § 4B1.1, for 1 count of mailing a threatening communica- tion in violation of 18 U.S.C. § 876(c). On appeal, Crawford argues that the district court erred in sentencing him as a career offender after determining that his present and prior convictions all were “crimes of violence” under U.S.S.G. § 4B1.2(a) because, he argues, there are open questions about whether they categorically qualify under the elements clause, and, if not, whether the statutes are di- visible and subject to the modified categorical approach. I. We review de novo whether a defendant’s prior conviction qualifies as a “crime of violence under the Sentencing Guidelines. United States v. Dixon, 874 F.3d 678, 680 (11th Cir. 2017). How- ever, when a party fails to make specific objections at sentencing after being given an opportunity to do so by the district court, chal- lenges to the sentence on appeal will be reviewed only for plain error. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). “To preserve an issue for appeal, one must raise an objec- tion that is sufficient to apprise the trial court and opposing party of the particular grounds upon which appellate relief will later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (quotation marks and citation omitted). The particular ground upon which appellate relief is sought must be the same as the what the party argued at the district court. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005); see also United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019) (noting that plain error was the appropriate standard where a defendant argued before the district court that he was entitled to an “innocent tran- sitory possession” defense but argued on appeal that the term USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 3 of 11 20-12309 Opinion of the Court 3 “unlawful possession” was unconstitutionally vague). A defendant does not preserve an issue for appeal if the factual predicates of the objection are included in the sentencing record but were presented to the sentencing court under a different legal theory. Straub, 508 F.3d at 1011. “The objection must be raised in such clear and sim- ple language that the trial court may not misunderstand it.” Id. (quotation marks and citation omitted). To show plain error, the defendant must show that (1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial pro- ceedings. Ramirez-Flores, 743 F.3d at 822. “An error is ‘plain’ if controlling precedent from the Supreme Court or the Eleventh Circuit establishes that an error has occurred.” Id. (citation omit- ted). “When the explicit language of a statute or rule does not spe- cifically resolve an issue, there can be no plain error where there is not precedent from the Supreme Court or this Court directly re- solving it.” United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted). Section 4B1.1 of the Sentencing Guidelines provides that (a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defend- ant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is ei- ther a crime of violence or a controlled substance of- fense; and (3) the defendant has at least two prior fel- ony convictions of either a crime of violence or a con- trolled substance offense. U.S.S.G. § 4B1.1(a). USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 4 of 11 4 Opinion of the Court 20-12309 Section 4B1.2(a) of the Sentencing Guidelines defines a “crime of violence” as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that– (1) has an element the use, attempted use, or threat- ened use of physical force against the person of an- other, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, ar- son, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). U.S.S.G. § 4B1.2(a)(1)-(2). The definition of “violent felony” under the ACCA is nearly identical to the definition of “crime of violence” under the Guidelines, and, thus, decisions about one have been ap- plied to the other. United States v. Matchett, 802 F.3d 1185, 1193-94 (11th Cir. 2015). A “crime of violence” requires a higher mens rea than accidental or negligence conduct. See Leocal v. Ash- croft, 543 U.S. 1, 11 (2004) (holding that driving under the influence was not a “crime of violence” under 18 U.S.C.§ 16(b)); see also Bor- den v. United States, 141 S. Ct. 1817, 1821-22 (2021) (holding that a criminal offense with a mens rea of recklessness cannot qualify as a “violent felony” under the ACCA). In resolving whether a prior conviction triggers a guideline enhancement, we generally apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02 (1990) Ramirez-Flores, 743 F.3d at 820. If the statute of conviction “sweeps more broadly” than the generic offense, a conviction can- not categorically count as a crime of violence. Id. However, if a USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 5 of 11 20-12309 Opinion of the Court 5 statute is “divisible,” in that it sets out one or more elements of the offense in the alternative, we must apply the modified categorical approach. Descamps v. United States, 570 U.S. 254, 260 (2013). If at least one of the alternative elements matches the generic defini- tion, we then may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element formed the basis of the defendant’s prior conviction.” Id. at 262. The modified approach, thus, allows us to “identify, from among several alternatives, the crime of conviction” so that we can then compare it to the generic offense. Id. at 264. Section 876(c) of Title 18 of the U.S. Code prohibits know- ingly depositing, or causing to be delivered, “any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another.” 18 U.S.C. § 876(c). Likewise, under 18 U.S.C. § 844(e), it is unlawful to use “the mail, telephone, telegraph, or other instru- ment of interstate . . . commerce [to] willfully make[] any threat . . . to kill, injury, or intimidate any individual or unlawfully to dam- age or destroy any building, vehicle, or other real or personal prop- erty by means of fire or an explosive.” 18 U.S.C. § 844(e). Finally, 18 U.S.C. § 115(a) provides that it is illegal to . . . threaten[] to assault, kidnap, or murder . . . a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C. § 1114], with intent to impede, intimidate, or interfere with such official, judge or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 6 of 11 6 Opinion of the Court 20-12309 enforcement officer on account of the performance of official duties. 18 U.S.C. 115(a)(1)(B). We have held that a conviction under § 115(a)(1)(B) consti- tutes a crime of violence under § 4B1.2(a). United States v. Bonner, 85 F.3d 522, 527 (11th Cir. 1996). 1 In Bonner, the defendant made 20 anonymous phone calls to an Assistant U.S. Attorney, threaten- ing, among other things, to “destroy” him and “cut [him] open.” Id. at 523. We held that the threatened use of violence under § 115(a)(1)(B) was enough to make a conviction under that statute a “crime of violence” under § 4B1.2. Id. at 527. We apply plain-error review because Crawford did not raise his current arguments before the district court. Straub, 508 F.3d at 1011. More specifically, Crawford’s objection to the PSI and before the sentencing court relied on a vague argument about unconstitu- tional vagueness under Johnson2 and another vague argument about “terrorist threats” not being per se violent crimes, relying upon a 2017 Nebraska district court. However, his brief on appeal now relies upon entirely different grounds. He now relies on the modified categorical approach and argues that his instant crime of conviction and his two predicate offenses are all categorically broader than the generic offense, and, thus, are not “crimes of vio- lence.” Because Crawford did not raise those specific and discrete legal arguments before the district court in challenging his 1 18 U.S.C. § 115(a)(1)(B) has not been changed in relevant part since Bonner was decided in 1996. Compare 18 U.S.C. § 115(a)(1)(B) (2021) and 18 U.S.C. § 115(a)(1)(B) (1996). 2 Johnson v. United States, 576 U.S. 591 (2015). USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 7 of 11 20-12309 Opinion of the Court 7 career-offender status, plain-error review applies. Ramirez-Flores, 743 F.3d at 821; Rodriguez, 398 F.3d at 1298. In Part II, we address Crawford’s challenge to the first pred- icate crime relied upon by the district court. In Part III, we address his challenge to the second predicate crime relied upon by the dis- trict court. Finally, in Part IV, we address his challenge to the dis- trict court’s conclusion that his instant conviction qualifies as a crime of violence. II. The first predicate crime relied upon by the district court as qualifying as a crime of violence was a 2008 federal conviction for threats in violation of 18 U.S.C. § 844(e). As set out in paragraph 30 of the PSI (and not objected to), Crawford, in telephone calls received by the receptionist at the Savannah office of the FBI, threatened to kill the receptionist and everyone else at the FBI, threatening to destroy the building by fire or explosives and “blow all you sons of bitches up.” In the district court, the PSI, the Gov- ernment, and the district court appeared to rely upon the elements clause of § 4B1.2(a)(1) as the reason this first predicate crime quali- fied as a crime of violence. Crawford’s only objections were the two vague arguments noted above, which did not challenge the facts set out in the PSI indicating that Crawford’s threats targeted not only the FBI building but also its occupants. Thus, Crawford did not preserve for appeal the argument that he makes for the first time on appeal. That is, Crawford did not preserve the argument that the 2008 first predicate crime involved only a threat to destroy the FBI building with explosives, and thus would not qualify as a crime of violence under the elements clause of § 4B1.2(a)(1) USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 8 of 11 8 Opinion of the Court 20-12309 because that clause is limited to threats of physical force against persons. 3 Although the Government’s brief on appeal defends the crimes-of-violence status of the 2008 conviction on the basis that it qualifies under the enumerated clause (4B1.12(a)(1)) as a use of ex- plosive material, we conclude that the district court did not plainly err in holding that this first predicate crime qualifies as a crime of violence under the elements clause. The unobjected-to facts before the district court clearly indicated that Crawford’s threats targeted not only the FBI building but also its occupants. Thus, there was no plain error and the district court’s holding stands—i.e. that the 2008 predicate crime qualifies as a crime of violence under the ele- ments clause. 4 3 Indeed, to support Crawford’s new argument on appeal, he attaches to his brief on appeal Shepard documents for the 2008 conviction which he suggests support his new argument. He suggests that those documents show that the 2008 conviction only involved a threat to the FBI building. He argues that these documents support his argument that, applying the modified cate- gorical approach, the 2008 conviction would not qualify as a crime of violence under the elements clause. However, Crawford’s brief on appeal concedes that these Shepard documents were “not part of the record” in the district court. Appellant’s brief at 6. 4 In the district court, the Government argued that this 2008 predicate crime qualified as a crime of violence under the elements clause of § 4B1.2(a)(1), and the district court so held. The fact that the Government on appeal defends the district court on a different ground does not preclude our affirming the judgment of the district court on the original, elements clause, ground. Davila v. Gladden, 777 F.3d 1198, 1210 n.8 (11th Cir. 2015) (stating we may affirm on any adequate grounds). USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 9 of 11 20-12309 Opinion of the Court 9 In light of our holding on the basis of the elements clause, we need not definitively resolve Crawford’s challenge to the Gov- ernment’s argument on appeal that this 2008 predicate crime would in any event qualify under the enumerated clause—i.e. § 4B1.2(a)(2) (“the use . . . of . . . explosive material”). However, we note that a holding that the 2008 crime qualifies under the enumer- ated clause probably would not rise to the level of plain error. In his reply brief, Crawford argues that a threat to blow up a building “is not the type of ‘use’ contemplated by the enumerated crimes clause.” Reply Brief at 25. Crawford argues that § 4B1.2(a)(2) en- compasses only the “active employment of explosives,” id. at 27, not merely the threat thereof. And it is true that an unpublished Tenth Circuit case has so held in the context of similar language in the ACCA. See United States v. Wilfong, 733 F. App’x 920, 927-29 (10th Cir. 2018). However, Crawford does not cite, and our re- search does not reveal, any Eleventh Circuit or Supreme Court case so holding. And it may not be plain or obvious that Craw- ford’s telephone threat to blow up the FBI building could never fall within the compass of the “use . . . of . . . explosive material” lan- guage of § 4B1.2(a)(2). 5 5 Crawford also argues that the Government cannot rely on the enu- merated clause because it did not raise that ground in the district court. We disagree. The Government had no occasion to resort to the enumerated clause in the district court because the facts set out in the PSI (paragraph 30) indicated that this 2008 predicate crime targeted not only the FBI building, but also the receptionist and other occupants, and thus readily fell under the ele- ments clause. Crawford did not object to those facts as set out in the PSI, and did not fairly raise the issue—asserted now for the first time on appeal—that the 2008 predicate crime targeted only the building and not any persons, and thus could not qualify under the elements clause. The Government’s reliance USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 10 of 11 10 Opinion of the Court 20-12309 In sum, we affirm the district court’s holding that the 2008 predicate crime qualifies as a crime of violence. III. We turn next to Crawford’s challenge to the second predi- cate crime. It was a 2009 federal conviction for threats to a federal official in violation of 18 U.S.C. § 115(a). According to paragraph 31 of the PSI, Crawford made several telephone calls in 2009 threat- ening to kill a federal probation officer, an agent of the FBI, and an assistant United States attorney. Again, there was no objection to these facts. These facts would seem to fall comfortably within the language of the elements clause of § 4B1.2(a)(1). See Bonner, 85 F.3d at 527. And Crawford cites no binding Eleventh Circuit or Supreme Court case suggesting otherwise. We readily conclude that there is certainly no plain error. IV. Finally, we address Crawford’s argument that his instant conviction for mailing a threatening communication to an assistant United States attorney—i.e. a threat to kill him— in violation of 18 U.S.C § 876(c) is not a crime of violence. Again, the facts to which Crawford pled would seem to fall comfortably within the § on appeal on the enumerated clause is merely in response to Crawford’s new argument on appeal that the 2008 predicate crime involves only a threat against the FBI building and thus would not qualify as a crime of violence un- der the elements clause. In any event, as we discussed above with respect to the elements clause, it may not be plain or obvious—on the basis of the record facts appropriately considered on appeal—that Crawford was not actually con- victed of threatening to blow up an occupied FBI building so that the crime would qualify under the elements clause. USCA11 Case: 20-12309 Date Filed: 11/17/2022 Page: 11 of 11 20-12309 Opinion of the Court 11 4B1.2(a)(1) elements clause. No binding precedent suggests other- wise. We readily conclude that there is certainly no plain error. Crawford did not meet his burden of showing that the dis- trict court committed a plain error in finding that his instant con- viction and two predicate offenses were “crimes of violence” under the Sentencing Guidelines. AFFIRMED.	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484732/	Filed 11/17/22 Loudon v. DHSE CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN CLAYTON LOUDON, B322559 Plaintiff and Respondent, (Riverside County Super. Ct. No. v. PSC1703855) DHSE, INC. et al., ORDER MODIFYING OPINION Defendants and Appellants. (NO CHANGE IN THE APPELLATE JUDGMENT) THE COURT: It is ordered that the opinion filed herein on November 16, 2022 be modified as follows: At the top of page 2, counsel listing for Plaintiff and Respondent is changed from “GrahamHollis APC, Graham S.P. Hollis, Vilmarie Cordero, Nathan Reese; Irvine Law Group and Rod Bidgoli for Plaintiff and Respondent.” to: GrahamHollis APC, Graham S.P. Hollis, Vilmarie Cordero, Nathan Reese; Irvine Law Group, Rod Bidgoli; Irvine Bidgoli, P.C. and Rod Bidgoli for Plaintiff and Respondent. ____________________ There is no change in the appellate judgment. ____________________________________________________________ PERLUSS, P. J. SEGAL, J. FEUER, J. 2 Filed 11/16/22 Loudon v. DHSE CA2/7 (unmodified opinion) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN CLAYTON LOUDON, B322559 1 Plaintiff and Respondent, (Riverside County Super. Ct. No. v. PSC1703855) DHSE, INC. et al., Defendants and Appellants. APPEAL from an order of the Superior Court of Riverside County, Sharon J. Waters, Judge. Dismissed. The Law Offices of Timothy D. Murphy and Timothy D. Murphy for Defendants and Appellants. 1 The California Supreme Court transferred this case from Division Two of the Fourth Appellate District to Division Seven of the Second Appellate District on August 24, 2022. The previously assigned appeal number was E075714. GrahamHollis APC, Graham S.P. Hollis, Vilmarie Cordero, Nathan Reese; Irvine Law Group and Rod Bidgoli for Plaintiff and Respondent. __________________________ After the trial court approved the parties’ agreement to settle Clayton Loudon’s claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2699 et seq.) and entered judgment in the case, his joint employers DHSE, Inc., PSTPS, Inc., DHSL, LLC, DHSO, Inc., AACAL, Inc., ERS, LLC and Michael Bickford (collectively DHSE) moved to vacate the judgment. The court granted DHSE’s motion and vacated the judgment based on excusable neglect. Although no subsequent judgment or other final disposition has been entered in the case, DHSE appealed the order approving the PAGA settlement agreement. Concurrently with its opening brief, 10 months after the order approving the PAGA settlement, DHSE also filed a petition for writ of mandate seeking review of that order. We dismiss the appeal as taken from a nonappealable order. In a separate order we summarily deny the writ petition. FACTUAL AND PROCEDURAL BACKGROUND 1. Loudon’s Action, the PAGA Settlement, and the Order Approving the Settlement and Entering Judgment Loudon worked for DHSE as a nonexempt employee. Loudon alleged in his complaint that DHSE failed to pay him overtime compensation, did not adequately provide off-duty meal and rest periods and deducted various sums from his paycheck without written authorization. Loudon asserted individual claims for various Labor Code violations and unfair business practices and a representative claim for civil penalties pursuant to PAGA. 2 Following a full day of mediation the parties settled all claims alleged in Loudon’s complaint. After several months of further negotiation, the parties in August 2019 executed an Individual Settlement Agreement and Mutual Release of Claims and a Private Attorneys General Act Settlement Agreement and Limited Release of Claims. The PAGA settlement agreement required DHSE to prepare a joint motion for court approval of the settlement. DHSE never prepared the joint motion. Instead, on January 2, 2020 DHSE filed an opposition to a motion to approve the settlement, even though no such motion was pending. At a January 15, 2020 status conference counsel for DHSE explained he “prepared that opposition anticipating that the motion would be forthcoming immediately . . . but no motion came.” Counsel agreed, absent a motion to approve the PAGA settlement agreement, there was nothing for the trial court to address. Approximately six months later Loudon filed a motion to approve the PAGA settlement, arguing the agreement reflected a compromise of disputed claims and an award of attorney fees that were fair and reasonable. DHSE opposed the motion, asserting the PAGA settlement agreement was illegal because it failed to allocate between “recoverable penalties and unrecoverable wages”; the complaint lacked specific joint employer allegations; Loudon lacked standing to represent other “aggrieved employees” post-termination; the civil penalties were unjust and confiscatory; and the attorney fees were excessive. Loudon filed a reply urging approval of the agreement. Following a hearing on July 1, 2020 the trial court granted Loudon’s motion, finding the PAGA settlement to be fair, reasonable and adequate with respect to the underlying purposes of the PAGA statute. On July 16, 2020 the trial court issued an 3 order granting Loudon’s motion to approve the PAGA settlement and entered judgment resolving both the PAGA and individual claims in the case. The court reserved jurisdiction over the action and the parties “for the purposes of: (a) supervising the implementation, enforcement, construction, and interpretation of the PAGA Settlement and the Court’s Order Approving the PAGA Settlement; and (b) supervising distribution of amounts paid under this Settlement.” 2. DHSE’s Motion To Vacate the Judgment and the Order Vacating Judgment On July 28, 2020 DHSE filed a notice of intent to move for an order vacating the judgment. DHSE contended it had been unaware a judgment had been entered and stated its preference that the case be dismissed with prejudice. At the hearing on the motion to vacate, counsel for DHSE conceded he had previously indicated entry of a judgment was acceptable, but claimed he had not consulted with his client and was unaware of the negative financial impact a judgment would have. Loudon opposed the motion, pointing to DHSE’s delays throughout the case. The trial court acknowledged Loudon’s concern and assured him, “[a]t any time defendants failed to make the payment, there is obviously your right to come in and obtain a judgment pursuant to settlement.” After taking the matter under submission, on September 3, 2020 the trial court granted DHSE’s motion to vacate the judgment based on excusable neglect, ruling, “The order approving the PAGA settlement entered on July 16[,] 2020 stands. Because the PAGA settlement calls for a series of payments to be made by defendants—dismissal at this time is not appropriate. Rather—dismissal should be entered only after 4 defendants have fully complied with the settlement.” The court further ruled, “If defendants fail to make any payment in a timely fashion[] as called for in the Order Approving PAGA Settlement, plaintiff may seek entry of judgment pursuant to CCP Section 664.6 or pursue any other remedies available to 2 him.” 3. DHSE’s Appeal and Petition for Writ of Mandate On September 11, 2020 DHSE filed its notice of appeal from the trial court’s “order approving settlement in the action captioned above, in favor of plaintiff CLAYTON LOUDON as an individual and as a PAGA representative” including “the court’s order dated July 1, 2020 approving settlement and the court’s order dated July 16, 2020 approving settlement.” DHSE attached to the notice the order entered by the court on July 16, 2020. On its civil case information statement DHSE stated it was appealing the July 16, 2020 order pursuant to Code of Civil Procedure section 904.1, subdivision (a)(1), as a “final order 3 disposing all issues.” In its opening brief DHSE asserted this court has jurisdiction to hear its appeal because the trial court’s order approving the PAGA settlement was a final order fully disposing of all issues in the case. DHSE argued the substance of an order 2 On September 30, 2022 at this court’s request, the parties filed a joint status report indicating further proceedings in the trial court had been stayed and DHSE has made partial payments under the terms of the settlement agreements. No judgment or other final disposition has been entered. 3 The civil case information statement erroneously stated the date of entry of the order as July 17, 2020. 5 should prevail over its title, citing Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200 (Viejo Bancorp), and contended, “[d]espite vacating its previously entered formal judgment, the trial court intended that its modifying order should have an identical immediate effect.” Loudon did not address the issue of jurisdiction in his respondent’s brief. On May 27, 2021, concurrently with its opening brief, 4 DHSE filed a petition for writ of mandate. DHSE argued writ review of the trial court’s order was appropriate because it had no adequate remedy at law if this court did not consider its appeal of the July 16, 2020 order approving the PAGA settlement. DHSE contended its petition was timely because its notice of appeal informed Loudon of the issues raised in the petition, its petition was filed within one year of entry of the challenged order, and Loudon has not been prejudiced by any delay. While the writ petition was still pending in the Fourth Appellate District, Division Two, the court requested informal briefing addressing whether an order to show cause should issue. Loudon’s response did not discuss the criteria for determining whether the issues merited consideration by way of writ petition. DHSE’s response reiterated and expanded on the arguments in its petition urging the court to grant writ relief. DISCUSSION 1. DHSE’s Purported Appeal Is from a Nonappealable Order “[A] reviewing court lacks jurisdiction on direct appeal in the absence of an appealable order or judgment.” (Walker v. 4 DHSE, Inc. v. Superior Court, B322569. The previously assigned writ number prior to transfer to this court was E077127. 6 Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21; accord, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; see Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“[e]xistence of an appealable judgment is a jurisdictional prerequisite to an appeal”].) “The right to appeal is wholly statutory. [Citation.] Code of Civil Procedure section 904.1 lists appealable judgments and orders.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) 5 Code of Civil Procedure section 904.1, subdivision (a)(1), authorizes an appeal “[f]rom a judgment, except an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or a judgment of contempt . . . .” Although the trial court’s order of July 16, 2020 is most definitely not a judgment—DHSE successfully moved to vacate the judgment actually entered on that date—DHSE nonetheless contends its appeal of that order falls within section 904.1, subdivision (a)(1), because it is a “final order . . . approving full settlement of all claims and issues in the case amounting to final disposition of them . . . such that the order approving settlement is a final judgment of the action having immediate adverse monetary [e]ffect on the defendants.” As discussed, DHSE contends that the trial court intended its September 3, 2020 order vacating the judgment to have the same effect as a judgment. DHSE is incorrect. A prejudgment order approving a PAGA settlement is not an appealable order. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 71 & fn. 6.) That order is properly reviewed on appeal only after a timely notice of appeal 5 Subsequent statutory references are to this code. 7 following entry of judgment. (Ibid.) And the trial court here, when vacating the judgment it had previously entered, expressly recognized this by preserving its jurisdiction to enter a judgment if one was necessary to enforce the settlement or, alternatively, to dismiss the case if DHSE complied with the settlement and the matter was finally concluded. Until one of those occurrences, the case remained unresolved. DHSE urges us to consider the substance of the July 16, 2020 order, not its title, in determining whether it is equivalent to a final judgment appealable pursuant to section 904.1, subdivision (a)(1). (See Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101 [“‘determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable . . . [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative’”].) “‘As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’” (Id. at pp. 1101-1102.) Using this standard, DHSE maintains the July 16, 2020 order approving the PAGA settlement agreement should be considered a final judgment because no additional adjudication was necessary in the trial court. Yet, in addition to the fact the trial court anticipated further action may be necessary to enforce the settlement and expressly retained jurisdiction for that purpose in its September 3, 2020 order, DHSE in its opening brief 8 explained it was “determined to oppose and to rescind the agreement.” Expanding on this point in its reply brief, DHSE asserted, even “[u]pon filing of the motion [to approve the settlement,] there still was nothing before the court for the defendants to rescind because without the court’s approval there was not yet an agreement.” Thus, DHSE understood approval of the settlement agreement was just a step in a process—a prerequisite to its attempt to rescind that agreement—not the endpoint for proceedings in the trial court. (Cf. Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 [trial court has inherent power to reevaluate its own interim rulings]; Darling, Hall & Rae v. 6 Kritt (1999) 75 Cal.App.4th 1148, 1155-1157 [same].) DHSE’s reliance on Viejo Bancorp, supra, 217 Cal.App.3d 200, to support its argument for appealability is misplaced. In Viejo Bancorp one of the parties to a settlement agreement moved to enforce the agreement under section 664.6 in a second case between the same parties. Before holding the order enforcing the settlement agreement was void because a motion to enforce under section 664.6 could not be brought in an action other than the one in which the settlement had been made (Viejo Bancorp, at p. 206), the court of appeal held the order was appealable even though not a “judgment” because it was “clear the trial court intended to effect a final judgment in the old action,” but could not because it was no longer pending. (Id. at p. 205.) That conclusion was fully consistent with the language of section 664.6, subdivision (a), which authorizes the court to 6 Notwithstanding its stated intent to seek rescission of the PAGA settlement agreement, DHSE did not move to rescind the agreement in the trial court before filing its notice of appeal. 9 “enter judgment pursuant to the terms of the settlement.” Here, in contrast, there was no order akin to a judgment enforcing the parties’ settlement, only an order approving settlement and reserving jurisdiction to enter a dismissal if DHSE fully complied with the settlement’s terms or a judgment in favor of Loudon if it did not. We, of course, have discretion to treat DHSE’s purported appeal as a petition for writ of mandate and consider the merits of its challenge to the PAGA settlement on the appellate briefing. (See Olson v. Cory (1983) 35 Cal.3d 390, 401; Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 660; Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 465.) DHSE has not made such a request, apparently content to rely on its separately filed writ petition, and does not address the factors used by the courts of appeal when deciding whether to do so. (See, e.g., Curtis, at p. 465 [discussing the five factors generally considered in deciding whether to treat an improper appeal as a writ petition].) We decline to exercise our discretion sua sponte, particularly since the nonappealability of the July 16, 2020 order after the court vacated the judgment at DHSE’s request should have been apparent. (See Olson, at p. 401 [the power to treat a defective appeal as a petition for writ of mandate “should not [be] exercise[d] . . . except under unusual circumstances”]; see also Oak Springs Villas Homeowners Assn. v. Advanced Truss Systems, Inc. (2012) 206 Cal.App.4th 1304, 1309 [declining to treat an improper direct appeal as a petition for writ of mandate “as there is no unusual circumstance or peculiarity that would justify exercising our discretion”].) 10 2. DHSE’s Petition for Writ of Mandate Is Untimely In a separate order we deny DHSE’s petition for writ of mandate, filed concurrently with its opening brief in this appeal. The petition is untimely, and DHSE failed to establish 7 circumstances warranting writ review. “As a general rule, a petition for writ of mandate should be filed within the 60-day period applicable to appeals.” (Davis v. Superior Court (2020) 50 Cal.App.5th 607, 614; Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 310; Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701.) “An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent ‘extraordinary circumstances’ justifying the delay.” (Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499; accord, Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 821 [“an appellate court may consider a writ petition at any time despite the 60-day rule if it considers the circumstances extraordinary,” italics omitted].) 7 DHSE will have the right to appeal the order approving the PAGA settlement agreement after the trial court enters a judgment or order dismissing the case. (See Moniz v. Adecco USA, Inc., supra, 72 Cal.App.5th at p. 71; Uribe v. Crown Building Maintenance Co. (2021) 70 Cal.App.5th 986, 990-991.) In addition, DHSE has not demonstrated irreparable injury absent immediate writ review (see Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 299), not least because it waited 10 months to file the petition. 11 Under the general rule the last day for DHSE to timely file a writ petition challenging the July 16, 2020 order was Monday, September 14, 2020—the first court day after DHSE filed its notice of appeal. Although DHSE contends filing its notice of appeal advised Loudon of the issues that would be raised in a writ petition within the requisite 60 days, no authority supports DHSE’s argument filing a notice of appeal satisfied the 60-day rule or justified the delay of an additional eight months before actually filing its petition. DHSE’s alternative argument that it had one year to file a writ petition because PAGA claims are subject to a one-year statute of limitations borders the frivolous. DHSE purports to find support for its novel theory in Kao v. Department of Corrections & Rehabilitation (2016) 244 Cal.App.4th 1326, in which an inmate filed a petition for writ of mandate in superior court to compel the California Department of Corrections and Rehabilitation to process his disciplinary appeal. (Id. at p. 1331.) The court of appeal reversed the superior court’s order sustaining a demurrer to the petition based on the 60-day rule, holding the three-year statute of limitations of section 388, subdivision (a), for a liability (or obligation) created by statute applied to Kao’s petition. (Id. at p. 1334.) The court explained the 60-day rule did not govern the time for commencing a civil action. “Rather, it is a judicially created rule used presumptively by appellate courts to assess the timeliness of nonstatutory writ petitions seeking discretionary review of trial court decisions” (id. at p. 1333), and did not apply to an inmate’s petition that sought “to compel the Department to act and did not seek discretionary review of a decision by the Department.” (Ibid.) 12 Unlike Kao, DHSE did not seek to commence a civil action. It filed a nonstatutory writ petition seeking discretionary review of the trial court’s prejudgment order approving the parties’ PAGA settlement agreement, precisely the type of order to which the 60-day rule applies. DISPOSITION The appeal is dismissed. The parties are to bear their own costs. PERLUSS, P. J. We concur: SEGAL, J. FEUER, J. 13	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484733/	Filed 11/17/22 Bushansky v. Alliance Fiber Optic Products CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT STEPHEN BUSHANSKY, H047100 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 16CV294245) v. ALLIANCE FIBER OPTIC PRODUCTS, INC. et al., Defendants and Respondents; ERIC ALAN ISAACSON, Intervenor and Appellant. BAHMAN KHAKI, H047101 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 16CV294833) v. ORDER MODIFYING OPINION AND DENYING REHEARING ALLIANCE FIBER OPTIC PRODUCTS, INC. et al., NO CHANGE IN JUDGMENT Defendants and Respondents; ERIC ALAN ISAACSON, Intervenor and Appellant. BY THE COURT: 1 The opinion filed herein on October 19, 2022 shall be modified as follows: 1. The sentence commencing at the bottom of page 4 with “Four” and ending at the top of page 5 with “Alliance Stock” shall be modified. At the end of the modified sentence a footnote 2 shall be added. Subsequent footnotes shall be renumbered. As modified, the sentence, along with the footnote, shall read: Four days after the public announcement, Chang sold all of the undisclosed Alliance stock from his wife’s and brother’s accounts.2 2. In the Schedule 14D-9, Alliance disclosed that Chang had 1,274,640 outstanding shares, as a result of which he would be due $23,580,840 if he were to tender all of his outstanding shares pursuant to the offer. 2. The first full sentence on page 5, commencing with “By selling” and ending with “windfall” is modified by replacing “his” with “the” so the sentence reads: By selling the stock after the public announcement of the merger, he gained a substantial windfall. 3. On page 15, footnote 10, line 18, the parenthetical “(Volcano)” shall be added to the final citation after “749-750” so the citation reads: (In re Volcano Corporation Stockholder Litigation (Del. Ch. 2016) 143 A.3d 727, 747, 749-750 (Volcano).) 4. On page 19, first full paragraph, line 6, the word “and” shall be added between “to the Securities and Exchange Commission,” and “to the investing public” so the sentence reads: Chang’s insider trading was, of course, material to his fitness as a fiduciary, to his disclosure obligations to the Securities and Exchange Commission, and to the investing public with whom he surreptitiously traded his own shares to his personal profit, based on insider information. 5. On page 19, first full paragraph, line 12 the word “is” shall be changed to “was” so the sentence reads: But Isaacson has identified no authority that would compel his conclusion that Chang’s insider trading as Alliance sought to be acquired was material to shareholders deciding whether to accept Corning’s share price. 2 6. On page 24, the first sentence of the first full paragraph the words “Chang was subject to a derivative claim” shall be replaced with “Chang’s insider trading subjected him to a derivative claim” so the sentence reads: In the trial court, Isaacson argued only that Chang’s insider trading subjected him to a derivative claim for misuse of confidential corporate information by a fiduciary, and conceded that, because it was a derivative claim, it was “likely” extinguished by the merger. 7. On page 25, line 20, the words “arising out of Chang’s insider trading” shall be added immediately after “he identified no direct claims” so the sentence reads: In the trial court, Isaacson obliquely conceded that any derivative claims arising out of Chang’s insider trading were “likely” released, and he identified no direct claims arising out of Chang’s insider trading. 8. On page 29, line 6, the word “vote” shall be changed to “tender” so the sentence reads: The final approval ruling does not rest on any express, necessary, or implicit ultimate determination that the shareholder tender was fully informed or that Chang’s insider trading was immaterial to shareholders evaluating the tender offer. 9. On page 29, first full paragraph, line 5, the word “vote” shall be changed to “tender” so the sentence reads: Reasoning that a shareholder tender is either “fully informed” or “uninformed,” Isaacson asserts that the trial court decided that Chang’s insider trading was not a material fact that needed to be disclosed to shareholders. 10. On page 29, the last sentence of the first full paragraph the words “We reject the binary” are replaced with “In the settlement approval context, we reject the binary” so the sentence reads: In the settlement approval context, we reject the binary strictures of his premise and his interpretation of the trial court’s fee award. 11. At the end of the first full paragraph on page 29, after the sentence ending “court’s fee award” add as footnote 18 the following footnote: 18 We acknowledge that, in the context of determining the substantive standard of scrutiny governing judicial review of a merger, a tender offer is either “fully informed” so as to trigger the protections of the business judgment rule, or it is 3 not. (See, e.g., Volcano, supra, 143 A.3d at pp. 747, 749-750.) But to transpose that binary structure to the settlement approval context is to require a disclosure settlement to be perfect. Our refusal to do so does not limit the trial court’s obligation to ensure that the settlement is fair, considering among other things the value provided by the disclosures that have been obtained and the value of the released claims. We merely decline Isaacson’s request to adopt a bright-line rule for which he has not cited supporting authority. There is no change in the judgment. Appellant’s petition for rehearing is denied. 4 Dated: ___________________________ LIE, J. ________________________________ GREENWOOD, P.J. ________________________________ GROVER, J. Bushansky v. Alliance Fiber Optic Products H047100 Khaki v. Alliance Fiber Optic Products H047101 Filed 10/19/22 Bushansky v. Alliance Fiber Optic Products CA6 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT STEPHEN BUSHANSKY, H047100 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 16CV294245) v. ALLIANCE FIBER OPTIC PRODUCTS, INC. et al., Defendants and Respondents; ERIC ALAN ISAACSON, Intervenor and Appellant. BAHMAN KHAKI, H047101 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 16CV294833) v. ALLIANCE FIBER OPTIC PRODUCTS, INC. et al., Defendants and Respondents; ERIC ALAN ISAACSON, Intervenor and Appellant. Intervenor Eric Alan Isaacson appeals from judgments entered in two shareholder class actions arising from Corning Incorporated’s acquisition of Alliance Fiber Optic Products, Inc. Isaacson contends the trial court erroneously granted final approval of the negotiated settlement: in Isaacson’s view, the court underestimated the materiality of insider trading by Alliance’s chief executive officer—discovered only after the acquisition—both to Alliance shareholders deciding whether to accept Corning’s tender offer and to the strength of shareholder claims released through the settlement. Finding no abuse of discretion, we affirm. I. BACKGROUND Alliance was a publicly traded Delaware corporation with its principal place of business in Sunnyvale, California. Alliance designed, manufactured and marketed a broad range of high-performance fiber optic components and integrated modules for the optical network equipment market. By at least mid-2015, Alliance’s earnings were trending downward. By at least late 2014, Alliance had attracted interest as an acquisition target. Four parties—Corning, Party A, Party B, and Party C— indicated interest in acquiring Alliance in late 2014 and early 2015. By May 2015, Parties A, B, and C had indicated to Alliance that they were no longer interested. Negotiations with Corning stalled in June 2015, with Corning’s bid at around $21 per share and Alliance’s counterproposal at around $22 per share, when Corning walked away based on its financial due diligence findings. Alliance made further overtures to Parties B and C, but in December 2015 and January 2016 was informed that each party, respectively, was not interested in a transaction. Corning, however, returned to negotiations with a valuation at between $17.25 and $18.50 per share. While negotiations resumed with Corning, Alliance’s financial advisor secured a meeting with a new interested party, Party D. Alliance ultimately negotiated a deal with Corning, without meeting Party D. 2 Peter C. Chang was Alliance’s president and chief executive officer and the chair of its board of directors. According to the allegations a criminal complaint filed in the Northern District of California on September 14, 2017, which we incorporate below, Chang engaged in insider trading and fraud in connection with a tender offer between October 2015 and April 2016.1 During that time period, Chang controlled brokerage accounts held in the names of his wife and brother and used those accounts to trade Alliance stock based on material nonpublic information. On September 30, 2015, the accounts held more than 183,000 shares of Alliance stock valued at more than $3 million. At that time, Chang had material information about Alliance’s quarterly earnings that would not be made public until October 28, 2015. Between September 30, 2015, and October 28, 2015, Chang sold more than 150,000 shares of Alliance stock from the two accounts. On October 28, 2015, Alliance announced that its quarterly revenues were down 28 percent from the previous quarter. On October 29, 2015, Alliance’s stock price decreased to $13.50 per share, 23 percent lower than the prior day’s close. Chang avoided substantial losses by selling Alliance stock in advance of the earnings announcement. On December 16, 2015, Chang received an offer from Corning to acquire Alliance in the range of $17.25 to $18.25 per share in cash. On January 11, 2016, Chang participated in an Alliance board meeting in which the Board agreed to enter an exclusivity agreement with Corning based on its revised indication of interest at $20.50 per share. On January 13, 2016, Chang signed an exclusivity agreement with Corning and participated in discussions with Corning about the due diligence process and 1 On June 14, 2018, the federal court entered judgment against Chang pursuant to a guilty plea to three counts of securities fraud based on insider trading and one count of fraud in connection with a tender offer on the basis of a superseding information filed in the criminal proceedings. The superseding information was not presented to the trial court. Accordingly, we draw our summary of Chang’s alleged illicit conduct from the original criminal complaint. 3 transaction timeline. Shortly after the events concerning the proposed transaction with Corning took place, Chang began purchasing tens of thousands of Alliance shares. By the end of January 2016, Chang held over 300,000 Alliance shares valued at more than $4.5 million in the brokerage accounts. Alliance’s year-end earnings announcement was scheduled for February 19, 2016. In the 10 days prior, Chang sold 129,000 Alliance shares for proceeds of over $1.9 million. After the close of market on February 18, 2016, Alliance released an earnings report that reflected a continued downward trend in revenues. On February 19, 2016, Alliance’s stock price decreased to $12.03 per share, 16 percent lower than the prior day’s close. Chang again avoided substantial losses by selling Alliance stock in advance of the earnings announcement. After the earnings announcement, communications between Corning and Alliance about the possible transaction continued. Over the course of March 2016, the negotiations with Corning progressed to a transaction at $18.50 per share, based in part on Alliance’s determination that it would be highly unlikely for another bidder to emerge with an equal or greater valuation. With at least one exception, Chang steadily increased his holdings of Alliance stock as the negotiations, in which he was involved, progressed. Chang did, however, sell 3,000 shares of Alliance stock while negotiations were suspended for Corning to review Alliance’s financial results, at a time that coincided with a meeting between Alliance and Corning representatives to discuss Alliance’s preliminary financial results for the first quarter of 2016. Ultimately, Chang held over 300,000 shares of Alliance stock by April 2016. It was on April 7, 2016, that Corning and Alliance publicly announced that they had entered into a merger agreement. Pursuant to the agreement, on that day Corning commenced a tender offer to purchase all of the outstanding Alliance shares at a price of $18.50 per share in an all-cash transaction valued at approximately $305 million. Four 4 days after the public announcement, Chang sold all of his Alliance stock. By selling his stock after the public announcement of the merger, he gained a substantial windfall. On April 21, 2016, Corning filed with the Securities and Exchange Commission a Tender Offer Statement on Schedule TO and a Solicitation/Recommendation Statement on Schedule 14D-9 relating to the tender offer. On April 22, 2016, Stephen Bushansky filed a shareholder class action challenging the merger in Santa Clara County Superior Court. Three additional shareholder class actions followed, the last of which was filed by Bahman Khaki on May 6, 2016. In Bushansky’s operative First Amended Complaint, which was filed on April 29, 2016, Bushansky alleged that Alliance’s directors negotiated an inadequate tender offer price. Specifically, Bushansky alleged that Alliance’s directors breached their fiduciary duties of care, loyalty, independence, candor, fair dealing, and good faith because, with a financial interest in securing a merger, they failed to take reasonable steps to ensure that stockholders received fair value for their shares and failed to provide shareholders with sufficient information about the tender offer to make an informed decision about the proposed transaction. Bushansky’s underlying theories included: (1) the directors failed to conduct a genuine auction or pre-signing market check, including by failing to meet with Party D; (2) the tender offer price failed to adequately compensate Alliance’s stockholders for the benefits Corning would receive from the merger, as Corning was attempting “to capitalize on the rapidly growing data center and telecommunications industry[;]” (3) the merger was “timed in an effort to curb any future increase in the share price of Alliance common stock, thus ensuring that Corning can effectuate its takeover on the cheap[;]” (4) the directors agreed to unfair deal protection devices the decreased the possibility that any other bidder would top Corning’s bid, including a no-solicitation provision, the extension of matching rights to Corning, a provision that required Alliance to pay Corning a termination fee if it decided to pursue a different offer, and a provision that precluded Alliance from waiving any material 5 provision of any confidentiality agreements; (5) the directors had a financial conflict of interest because it would allow them to liquidate their Alliance holdings and their stock options and restricted stock units would be paid out upon the consummation of the merger, meaning that the directors were interested in a deal at any price rather than securing a deal at the best price; and (6) the disclosures failed to disclose material facts, including among other things whether the confidentiality agreements between Alliance and Parties A, B, and C contained standstill provisions that prevented those companies from making a topping bid for the company.2 Bushansky alleged that Corning and a subsidiary aided and abetted the breach of fiduciary duties. Khaki pled substantially similar claims. Between May 4, 2016, and May 25, 2016, Defendants3 produced to plaintiffs’ counsel confidential and non-public documents relating to the proposed transaction. These included minutes from Alliance board meetings, presentations Alliance’s financial 2 A standstill agreement is a feature of some non-disclosure agreements entered prior to merger negotiations, which prevents the parties from negotiating during a determinate time-period. (See In re Appraisal of Columbia Pipeline Group, Inc. (Del. Ch. Aug. 12, 2019) 2019 WL 3778370, 7 (Columbia Pipeline); see also Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222, 247, fn. 11 [although an unpublished California appellate opinion may not be cited or relied upon pursuant to California Rules of Court, rule 8.1115, citing unpublished opinions from other jurisdictions does not violate this rule].) The intended benefit of a standstill provision is to motivate the potential bidder to make its highest and best offer before the standstill goes into effect— enabling the target company to conduct a prompt market check before signing a merger agreement—because there will be no subsequent opportunity for the potential bidder to increase its offer. (Columbia Pipeline, supra, 2019 WL 3778370, at p. 36.) But, because the potential buyer is precluded by the standstill agreement from increasing its bid, such a provision could limit the effectiveness of the market check the target company undertakes after signing a merger agreement and before closing. (Ibid.) 3 The defendants named by Bushansky and Khaki are Alliance, Chang, Gwong- Yih Lee, James C. Yeh, Richard B. Black, Ray Sun, Corning, and Apricot Merger Company. Each of these defendants, save Apricot Merger Company, joined in Defendants’ appellate brief. 6 advisor gave to Alliance’s board, presentations made by Alliance’s management, and financial projections prepared by Alliance’s management. On May 10, 2016, Plaintiffs initiated settlement negotiations by sending a demand letter to Defendants in an effort to resolve the actions through a settlement. On May 26, 2016, the parties reached a settlement agreement in principle, which they memorialized in a Memorandum of Understanding (MOU). Pursuant to the MOU, Alliance was required to waive a standstill agreement with Party B and make supplemental disclosures, including the existence of the standstill agreement and waiver thereof, through an amendment to the Schedule 14D-9 in exchange for a dismissal of the pending actions with prejudice and a release of claims. This means that Party B was permitted to make a confidential offer to acquire Alliance in the short period of time remaining before the tender offer closed, an option that would otherwise not have been available to it because of the standstill agreement,4 and the shareholders were alerted to the pertinent negotiating dynamics, to the extent that informed their consideration of the tender offer. The MOU also provided for confirmatory discovery. In accordance with the MOU, Alliance filed with the SEC Amendment No. 5 to its Schedule 14D-9 the following day. The deadline for Alliance’s shareholders to decide whether to tender their shares was June 3, 2016. Corning’s tender offer was successful. On June 6, 2016, Alliance became an indirect wholly owned subsidiary of Corning. After completing confirmatory discovery, the parties executed a settlement agreement in August 2017. Pursuant to the settlement agreement, Alliance: (1) had made supplemental disclosures; (2) had waived a standstill provision in an agreement 4 The confidentiality agreements Alliance entered with other parties did not have standstill agreements that remained in effect at the time of the settlement, so the other parties were not foreclosed from submitting confidential offers to acquire Alliance during the tender offer period. 7 with a specific third party; and (3) would be responsible for the costs of disseminating notice to the settlement class for the purposes of securing settlement. In exchange, Plaintiffs and the putative settlement class would be subject to a release of claims. Further, Plaintiffs agreed to cap their anticipated request for attorneys’ fees and litigation expenses at $2 million. Defendants retained the right to oppose the fee request. Plaintiffs filed their initial motion for preliminary approval of the proposed class action settlement on August 28, 2017. The trial court directed Plaintiffs to provide additional information bearing on the value of the consideration exchanged in the settlement, including the value of the supplemental disclosures, the value of the standstill waiver, and the potential value of the claims Plaintiffs were releasing, accounting for the risks presented by continued litigation. After Plaintiffs and Alliance filed belated supplemental submissions, the trial court denied Plaintiffs’ preliminary approval motion without prejudice. The court reasoned that: (1) a standstill waiver could have some value depending on the deal size, the likelihood of a topping bid, and the likely change in the value of the merger if a topping bid occurred, but the parties had failed to assess the relevant factors or otherwise provide contextual indicia that the standstill waiver generated value in this case; (2) disclosure of the standstill waiver could have some value, but the value could not be evaluated without the same contextual information regarding the value of the standstill waiver; (3) Plaintiffs had not shown that any of the remaining disclosures were valuable to shareholders; and (4) Plaintiffs needed to, but, in light of the foregoing, did not, demonstrate that the settlement “provided real value to shareholders” to “justify the broad release associated with the settlement.” 8 Plaintiffs filed a renewed preliminary approval motion on November 13, 2018.5 On December 7, 2018, the court directed supplemental briefing. Plaintiffs made a supplemental filing on January 8, 2019. The trial court granted preliminary approval of the proposed settlement on January 29, 2019. First, the court reasoned that Plaintiffs had provided an analysis sufficient to “support the conclusion that the standstill waiver provided some value to shareholders.” Plaintiffs provided information about the history of the discussions between Alliance and Party B and Party B’s general area of business. While the court was concerned by a lack of information regarding whether Party B had conducted sufficient due diligence to enable it to make a topping bid in an eight-day window, the court noted that the record supported the proposition that Party B had engaged in serious negotiations with Alliance before walking away when Alliance’s share prices increased in 2015. Because the tender offer was 15 percent below Alliance’s 52-week high value,6 the court reasoned that there was some “uncertain” likelihood that Party B would have submitted a topping bid at the time of the waiver, even accounting for the termination fee. Further, Plaintiffs “submitted a valuation . . . based on [a non-scientific] methodology used by Vice Chancellor Laster in [two Delaware cases,]” which the court found “helpful.” The court found Plaintiffs’ conclusion that there was a 4.6 percent likelihood of a topping bid as a result of the waiver to be “probably too high given that the standstill waiver here impacted a single party” but was satisfied that the analysis and citations 5 Two other plaintiffs who joined the initial preliminary approval efforts dismissed their actions after the court denied preliminary approval. 6 Bushansky alleged that $18.50 tender offer price reflected a “discount of nearly 14.9% to the Company’s 52-week high of $22.35 per share on July 23, 2015.” But, as noted above, the share price had dropped to $12.03 per share on February 19, 2016. Alliance’s asking price came down along with its share price. Although negotiations stalled with Corning’s bid at $21 per share in June 2015, Alliance accepted a bid from Corning at $18.50 per share in April 2016. 9 supported the conclusion that the standstill waiver provided “some value to shareholders.” Second, the court preliminarily concluded that disclosure of the standstill provided “material value” to shareholders. The court was preliminarily satisfied, in light of the “challenges to achieving a financial recovery . . . , which are described in plaintiffs’ motion, and the impossibility of rewriting the history of the negotiations leading up to Corning’s offer,” that ensuring that the shareholder tender was “fully informed was probably the most important outcome this action could achieve,” such that informing shareholders about the standstill provided material value under persuasive Delaware authorities. Third, although the release was not “narrow,” Plaintiffs conducted an adequate investigation to enable them to determine that “shareholders do not likely possess any meritorious claims connected to the transaction, other [than] those addressed by the settlement. Significantly, the fact that no additional lawsuits have been filed since this case was settled over two years ago bolsters this conclusion and distinguishes the circumstances here from those present in the typical disclosure settlement.” After notice was given to the class, Plaintiffs moved for final approval of the proposed settlement and for an award of $500,000 in fees and expenses. Isaacson filed an objection to the final approval motion.7 Isaacson argued that the settlement provided no substantial benefit to the class: (1) the standstill waiver was, “at best, a minor benefit[;]” and (2) because the standstill provision was waived, disclosure of the standstill provision provided no additional benefit to stockholders. Further, Isaacson asserted that Plaintiffs did not conduct an adequate investigation, such that they did not secure adequate assurance that the broad release would not extend to unintended, Isaacson and Defendants separately opposed the request for attorneys’ fees and 7 expenses. 10 and valuable, claims. In particular, Isaacson contended that Plaintiffs had failed to uncover claims related to Chang’s insider trading, which Isaacson contended were apparently within the scope of the release. Bushansky, Khaki, and Defendants replied to Isaacson’s objection. Nevertheless, on the eve of the final approval hearing, Khaki withdrew his support for the settlement. On the same day, Isaacson filed a motion to intervene. The express purpose for the motion was to preserve Isaacson’s appellate rights. Following the final approval hearing, the court entered a written order granting the final approval motion on May 2, 2019. As to Isaacson’s arguments, the court explained that: (1) it remained persuaded that the standstill waiver and disclosure had material value, albeit less value than argued by Bushansky; and (2) it was not persuaded that Bushansky’s investigation failed to uncover potentially viable claims related to the merger or that any such claims exist because (a) Isaacson appeared to agree that claims arising from Chang’s insider trading were derivative claims extinguished by the merger; (b) Bushansky was unlikely to have been able to uncover claims of insider trading through a reasonable investigation when the settlement was negotiated given Chang’s efforts to conceal his misconduct; and (c) there were no lawsuits filed relating to Chang’s insider trading, and no opt outs from the settlement to preserve the right to pursue such claims, in the years following the revelation of Chang’s misconduct. The trial court awarded Bushansky $238,916.50 of his requested $500,000 in fees, with $1,000 of the reduced amount to be paid to Bushansky as an incentive award. In arriving at the fee award, the court fixed a reasonable lodestar and declined to apply any multiplier, explaining that the claims were straightforward and the litigation involved limited time and risk. On May 2, 2019, the court entered judgment in both the Bushansky and Khaki actions pursuant to its order finally approving the settlement. 11 On June 14, 2019, the court granted Isaacson’s motion to intervene “for the sole purpose of preserving Isaacson’s standing to appeal.”8 Isaacson timely appealed in both the Bushansky and Khaki actions. This court ordered the appeals considered together for purposes of record preparation, briefing, oral argument, and disposition. II. DISCUSSION A. Legal Principles and Standard of Review The requirement for court approval of a class action settlement (Cal. Rules of Court, rule 3.769) is intended for “ ‘ “the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties.” [Citation.]’ ” (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) Approval requires the court’s determination that “ ‘ “the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” ’ [Citation.]” (Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 820 (Carter).) A settlement is subject to a rebuttable presumption of fairness “ ‘where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.’ [Citation.]” (Carter, supra, 224 Cal.App.4th at p. 820.) Moreover, “[d]ue regard should be given to what is otherwise a private consensual agreement between the parties. . . . ‘Ultimately, the [trial] court’s determination is nothing more than “an amalgam of delicate balancing, gross approximations and rough justice.” [Citation.]’ [Citation.]” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801 (Dunk).) 8 We decline Respondents’ invitation to dismiss Isaacson’s appeal for lack of standing. (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267, 273 (Hernandez) [an unnamed class objector may challenge the judgment on appeal by intervening in the action or filing a motion to set aside the class judgment].) 12 But the trial court must nonetheless assess the proposed settlement on its substantive merits, particularly where class certification has been deferred to the settlement stage. (Carter, supra, 224 Cal.App.4th at p. 820.) “ ‘ “The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.” ’ ” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130 (Kullar).) Relevant considerations include “ ‘[1] the strength of plaintiffs’ case, [2] the risk, expense, complexity and likely duration of further litigation, [3] the risk of maintaining class action status through trial, [4] the amount offered in settlement, [5] the extent of discovery completed and the stage of the proceedings, [6] the experience and views of counsel, . . . and [7] the reaction of the class members to the proposed settlement.’ ” (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146 (7-Eleven).) The trial court, however, does not “ ‘ “try out or attempt to decide the merits of the controversy.” ’ ” (Ibid.) It is sufficient that the settlement be “within the ‘ballpark’ of reasonableness.” (Kullar, supra, at 168 Cal.App.4th at p. 133.) Because “ ‘ “so many imponderables enter into the evaluation of a settlement,” ’ ” we review the trial court’s approval of the class action settlement for clear abuse of discretion. (Carter, supra, 224 Cal.App.4th at p. 819; see also Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235 (Wershba), disapproved on other grounds by Hernandez, supra, 4 Cal.5th at pp. 269-270.) A trial court judgment is generally presumed to be correct; the burden is on appellant to demonstrate reversible error based on the record presented on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) “ ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.’ ” (Id. at p. 609.) We neither reweigh the relevant factors nor substitute our judgment for that of the trial court. (Wershba, supra, 91 Cal.App.4th at pp. 244-245; Kullar, supra, 168 Cal.App.4th at pp. 127-128.) Moreover, like the trial court, we “ ‘ “need not and 13 should not reach any dispositive conclusions on the admittedly unsettled legal issue.” ’ ” (7-Eleven, supra, 85 Cal.App.4th at p. 1146.) B. The Trial Court’s Exercise of Discretion Well before Isaacson’s objection, the trial court signaled its concerns about the value to shareholders of the disclosure-only settlement.9 After requiring several iterations of supplemental briefing and evidence, however, the trial court independently satisfied itself that the settlement was fair to the class. (See Kullar, supra, 168 Cal.App.4th at p. 129.) At the heart of the trial court’s analysis were its determinations that a monetary recovery was improbable; the merger and the negotiations leading up to it could not be unwound; Chang’s insider trading was not reasonably discoverable before the tender offer closed; and the settlement provided “material value” to class members by compelling disclosure of the standstill agreement prohibiting Party B from increasing its offer during the standstill period, and “some value” to class members by compelling 9 In its first order requiring supplemental briefing, the trial court directed the parties to address In re Trulia, Inc. Stockholder Litigation (Del. Ch. 2016) 129 A.3d 884 (Trulia). Remarking on “the proliferation of disclosure settlements,” the Delaware Court of Chancery characterized these as “the most common method for quickly resolving stockholder lawsuits that are filed routinely in response to the announcement of virtually every transaction involving the acquisition of a public corporation.” (Id. at p. 887, fn. omitted.) The corporation agreed to give stockholders “some additional information that theoretically would allow the stockholders to be better informed in exercising their franchise rights. In exchange, plaintiffs dropped their motion to preliminarily enjoin the transaction and agreed to provide a release of claims on behalf of a proposed class.” (Ibid.) And “[t]he only money that would change hands is the payment of a fee to plaintiffs’ counsel.” (Ibid.) The court noted “concerns” that such disclosure settlements “rarely yield genuine benefits for stockholders” who might lose “potentially valuable claims that have not been investigated with rigor.” (Ibid.) The trial court thus recognized its special responsibility to carefully evaluate disclosure settlements, consistent with its obligations under Kullar. But the concerns noted in Trulia do not necessarily render a particular settlement unfair, any more than structural incentives for “professional objectors” to oppose a settlement to extract a fee render a particular objection unfounded. (See, generally, Hernandez, supra, 4 Cal.5th at pp. 272-273 [discussing policy concerns presented by “professional objectors”].) 14 Alliance’s waiver of the prohibition. We discern no abuse of discretion in its evaluation on either side of the Kullar balancing. 1. The Value of the Release of Class Claims Through its preliminary and final approval orders, the court focused on “challenges to achieving a financial recovery” and “the impossibility of rewriting the history of the negotiations leading up to Corning’s offer.” The challenges contemplated by the court included (1) the likely application of the business judgment rule,10 rather than enhanced scrutiny, to examine the directors’ actions in connection with the merger; and (2) the likelihood that, even under enhanced scrutiny, case-specific facts supported the reasonableness of the transaction, making the chances of securing damages “slim”: (a) the Board engaged an experienced, qualified, and unconflicted financial advisor to assist with the transaction; (b) Alliance’s revenues and share price were declining, such that the transaction achieved shareholder value that could otherwise have taken several 10 “ ‘The business judgment rule is a “ ‘ “presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” ’ [Citation.] It ‘posits a powerful presumption in favor of actions taken by the directors in that a decision made by a loyal and informed board will not be overturned by the courts unless it cannot be “attributed to any rational business purpose.” ’ [Citation.]” (Central Laborers’ Pension Fund v. McAfee, Inc. (2017) 17 Cal.App.5th 292, 314, quoting Unocal Corp. v. Mesa Petroleum Co. (Del. 1985) 493 A.2d 946, 954 & Cede & Co. v. Technicolor, Inc. (Del. 1993) 634 A.2d 345, 360, decision modified on reargument by Cede & Co. v. Technicolor, Inc (Del. 1994) 636 A.2d 956, 957.) The directors’ actions in connection with a merger or acquisition that will result in a change of control are typically subject to “enhanced scrutiny,” an intermediate standard of review, in determining whether the directors have met their duty to shareholders. (Omnicare, Inc. v. NCS Healthcare, Inc. (Del. 2003) 818 A.2d 914, 928.) But when the majority of shareholders accept a tender offer, the acceptance has a “cleansing effect”—unless the stockholders were “interested, coerced, or not fully informed”—by which “the business judgment rule irrebuttably applies.” (In re Volcano Corporation Stockholder Litigation (Del. Ch. 2016) 143 A.3d 727, 747, 749-750.) 15 years to recover; and (c) after the tender offer and the standstill waiver were announced, clearing the way for any interested party to come forward with a superior offer, none did. Accordingly, the trial court fulfilled its proper role in evaluating a range of potential risks and weaknesses in the plaintiffs’ claims, rather than purporting to render a judgment based on a final determination of one potential weakness and disregard for the others. (See Kullar, supra, 168 Cal.App.4th at p. 130.) Although we cannot say with certainty which considerations the trial court deemed weightiest, it is incumbent on Isaacson, as the appellant, to affirmatively demonstrate an abuse of discretion. (See Jameson, supra, 5 Cal.5th at pp. 608-609.) 2. The Value of the Settlement Consideration The trial court found that the standstill waiver and disclosure provided some material value to the class. The court did not precisely quantify the value of the standstill disclosure and waiver but determined that it was sufficient to justify the release considering the objectives of the litigation and the value of the release. The court acted within its discretion in determining that the standstill waiver and disclosure provided some material value to the class. Moreover, consistent with our conclusion that Isaacson has not shown that the court abused its discretion in assessing the strengths and weaknesses of the released claims, the court acted within its discretion in determining that this material value was sufficient to justify final approval. As Isaacson concedes, the settlement consideration has some value. The trial court acted within its discretion in this case in determining, based on its independent analysis of the settlement approval record, that the standstill waiver had “some value” and the standstill disclosure had “material value.” A standstill waiver that permits a previously restrained party to submit a topping bid may benefit shareholders to the extent that it increases the likelihood that a topping bid will actually be submitted, such that an increased transaction price will be obtained. (See Columbia Pipeline, supra, 2019 WL 3778370, at pp. 7, 36; In re Compellent 16 Technologies, Inc. Shareholder Litigation (Del. Ch. Dec. 9, 2011) 2011 WL 6382523, 19-20.) Here, the trial court scrutinized the relevant contextual circumstances in determining that the standstill waiver in this case had “some value,” and only “some value.” Similarly, disclosure settlements that cause the disclosure of material information, information that significantly alters the total mix of information made available, may provide a meaningful benefit to stockholders. (Trulia, supra, 129 A.3d at p. 899.) Here, the trial court independently evaluated the disclosures Bushansky obtained and determined that the disclosure of the standstill agreement pertaining to Party B was material, such that the disclosure of the same provided “material value” to shareholders. Accordingly, the trial court fulfilled its obligations in independently evaluating the reasonableness of the settlement. (See Kullar, supra, 168 Cal.App.4th at pp. 129-130.) None of the challenges Isaacson raises indicates that the trial court abused its discretion in conducting the required analysis. Rather, Isaacson suggests that we reweigh the factors on which the trial court relied, on the theory that it erred as a matter of law in assessing the significance of Chang’s insider trading to both the value of the class claims and the value of the settlement disclosures. Isaacson’s arguments misapprehend our deferential review and misconstrue the trial court’s order. C. Chang’s Insider Trading Isaacson’s fundamental contention is that Chang’s undisclosed insider trading compelled rejection of the settlement because of its impact on both sides of the Kullar balancing. Isaacson’s arguments all begin with a common premise—that the trial court was required to treat Chang’s insider trading as material to shareholders evaluating Corning’s tender offer. According to Isaacson, the failure to disclose Chang’s insider trading increased the value of the plaintiffs’ actual or potential claims, in that the omission of information material to shareholders evaluating the offer would disentitle the board of directors from deference to its business judgment and potentially gave rise to 17 other claims. Isaacson further considers Alliance’s failure to disclose Chang’s insider trading to render meaningless its disclosure and waiver of its standstill agreement with Party B, because shareholders were not “fully informed.” But because Isaacson does not demonstrate that Chang’s undisclosed insider trading necessarily altered the balance of relevant factors before the trial court, he demonstrates no abuse of discretion on this record. (See Jameson, supra, 5 Cal.5th at pp. 608-609.) 1. Materiality to the Value of the Released Claims Bushansky’s core claims were that Alliance’s former directors breached their fiduciary duties the shareholders in connection with the Corning transaction, including breach of their duty of candor. Isaacson contends that the post-settlement revelation of Chang’s insider trading strengthened these claims. Isaacson reasons that Chang’s insider trading would have been material to a stockholder deciding whether to tender, such that (1) Chang’s nondisclosure gave rise to a distinct direct theory for breach of the duty of candor; and (2) Chang’s nondisclosure meant that the merger transaction would not be scrutinized using the business judgment rule, but under enhanced scrutiny. Isaacson contends that the court erred in approving the settlement because it did not appreciate these implications. To the contrary, we are not persuaded that the revelation of Chang’s insider trading required the trial court to alter its discretionary determination that none of the released claims were likely to yield damages, such that the best result Bushansky could achieve through this action were the disclosures reasonably obtainable before the tender offer closed. As a threshold matter, trial courts in their fairness inquiry do not decide contested issues as to the merits of the class action. (See Kullar, supra, 168 Cal.App.4th at pp. 129-130; 7-Eleven, supra, 85 Cal.App.4th at p. 1146.) Rather, trial courts consider the range of potential outcomes on such issues in the course of the broader fairness analysis. (See Kullar, supra, 168 Cal.App.4th at pp. 129-130; 7-Eleven, supra, 85 Cal.App.4th at p. 1146.) Accordingly, the proper course was for the trial court to 18 consider the impact of Chang’s insider trading had on the range of potential litigation outcomes, without deciding ultimate issues of fact or law, such as whether Chang’s insider trading was material to evaluating the merger. The trial court considered Isaacson’s objection and determined that the objection did not “materially impact” its analysis of the settlement. We understand this to mean that the court considered the insider trading in its evaluation of the settlement and determined that the associated potential did not warrant rejecting the settlement.11 We discern no abuse of discretion in this determination. Isaacson has not shown that Chang’s insider trading would necessarily be material to shareholders evaluating Corning’s tender offer, such that the trial court was required to treat the insider trading as material to shareholders in conducting its analysis. Materiality is measured by the function to be served or the harm to be avoided. Chang’s insider trading was, of course, material to his fitness as a fiduciary, to his disclosure obligations to the Securities and Exchange Commission, to the investing public with whom he surreptitiously traded his own shares to his personal profit, based on insider information. (See United States v. O’Hagan (1997) 521 U.S. 642,659 [noting the “inhibiting impact on market participation of trading on misappropriated information”]; United States v. Goffer (2d Cir. 2013) 721 F.3d 113, 132 [insider trading defendant’s “corrosive influence on the integrity of the financial markets and on the expectation of trust and confidence”]; see also 15 U.S.C. §§ 78c(15), 78p.) But Isaacson has identified no authority that would compel his conclusion that Chang’s insider trading as Alliance sought to be acquired is material to shareholders deciding whether to accept Corning’s share price. 11 We do not adopt Isaacson’s characterization of the order as conclusively determining that Chang’s insider trading was not material, or that the former Alliance directors would therefore have been entitled to application of the business judgment rule: this was not the trial court’s role. (7-Eleven, supra, 85 Cal.App.4th at p. 1146.) 19 On appeal, Isaacson cites Morrison v. Berry (Del. 2018) 191 A.3d 268 (Morrison). In Morrison, the Delaware Supreme Court explained that “ ‘[a]n omitted fact is material if there is a substantial likelihood that a reasonable investor would consider it important in deciding how to vote.’ Framed differently, an omitted fact is material if there is ‘a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” (Id. at pp. 282-283, fns. omitted.) Morrison, however, involved the failure to disclose a founding shareholder’s request that the company be sold to one particular private equity buyer, his warning that he would sell his shares if the company was not sold “ ‘ “at this time,” ’ ” and his rationale for both: the Delaware Supreme Court held that reasonable shareholders would consider the information important in deciding whether to tender their shares or seek appraisal. (Id. at pp. 286-287.) After appellate briefing closed, Isaacson directed our attention to Goldstein v. Denner (Del. Ch. May 26, 2022) 2022 WL 1671006 (Goldstein I), where the Delaware Court of Chancery found that the specific character of one director’s insider trading in connection with a tender offer and another director’s abetting of those machinations rendered the transaction subject to enhanced scrutiny. In Goldstein I, Sanofi S.A. approached two of the company’s directors, Denner and Posner, with an interest in buying the company for around $90 per share, more than $30 dollars per share above the price at which it was then trading. (Id. at p. 1.) The two directors delayed reporting to the rest of the board Sanofi’s initial overture. In the interim, Denner caused a hedge fund he controlled to octuple its holdings of the company’s stock, in violation of the company’s insider trading policy. (Ibid.) Denner and Posner then stalled Sanofi, including by failing to report Sanofi’s repeated overtures, until nearly six months had passed from the hedge fund’s purchase of company stock to skirt “[s]ection 16(b) of the Securities Exchange Act of 1934, which requires that an insider disgorge short-swing profits from any sale that takes place less than six months after the purchase.” (Ibid.) 20 After the necessary time had elapsed, and “[w]ithout authorization from the Board, Denner invited Sanofi to make a preemptive bid that could result in a single-bidder process.” (Id. at 35.) Denner accelerated the Sanofi transaction to consummation at a transaction price nearly a third below the company’s internal valuation of $150 per share under its long-range plan, when “[n]othing about the Company’s trajectory warranted Denner’s volte face” and in fact “the Company’s standalone prospects had continued to improve.” (Id. at 1, 35) The Court of Chancery found that this insider trading was an undisclosed material fact, because Denner “played a central role in the Transaction” and the insider trading at issue “shed[] light on [his] financial interests and motivations” in negotiating the timing and terms of the deal. (Id. at pp. 23-24, 30.) Here, however, it is not obvious what information shareholders would glean from Chang’s insider trading or how that information would in turn be material to their consideration of the tender offer. As alleged in the criminal complaint, Chang sold shares when he had advance knowledge of information that would soon lower the share price, and bought shares when he had advance knowledge of information that would soon raise the share price. Isaacson has not established that it was unreasonable for the trial court to anticipate that Chang’s insider trading might be construed differently than the information in Morrison and Goldstein I—i.e., not as information going to the objective merits of selling the company or conflicts of interest in the negotiation process, but merely as information that one shareholder had leveraged the delay between negotiation of a tender offer and the eventual public disclosure that would predictably increase the share price. Accordingly, we are unable to fault the trial court to the extent, in addressing settlement approval, it considered it at least uncertain whether Chang’s insider trading would have been material to reasonable shareholders evaluating the tender offer. For the first time on appeal, Isaacson offers a single conclusory argument that shareholders would have considered material “Chang’s decision to sell [3,000 of 300,000 shares] when it looked like Corning might walk away, rather than hold out for an 21 offer from Party B,” because it would have suggested that Chang considered a topping bid unlikely. In deciding whether this one transaction would be material to shareholders considering the Corning tender, however, the trial court was entitled to consider not just the fact and timing of Chang’s trades but also the low volume of the transaction in comparison to the total holdings Chang had amassed in anticipation of sale. Although the trial court did not expressly analyze the asserted materiality of Chang’s insider trading in its written opinion, we do not believe this fact has special significance; Isaacson never articulated a specific argument for the trial court to address.12 We understand the trial court to reasonably have considered it possible that Chang’s insider trading, in a trial of plaintiffs’ claims, would be deemed immaterial to shareholders in deciding whether to tender their shares. (See Kullar, supra, 168 Cal.App.4th at pp. 129-130; 7-Eleven, supra, 85 Cal.App.4th at p. 1146; Morrison, supra, 191 A.3d at pp. 282-283, 286-287.) Because the trial court was not required to treat Chang’s insider trading as material to shareholders evaluating the merger, we reject Isaacson’s contention that the trial court committed legal error by not doing so. Although Isaacson’s appellate briefing drew attention to Chang’s insider trading, it did not reach the central issue presented by his appeal—whether the trial court’s evaluation of the value of the released claims in comparison to the benefits secured through settlement constituted an abuse of discretion. We are reviewing a trial court’s “ballpark” determination that a monetary recovery was improbable based on a combination of several considerations. Isaacson has not demonstrated that the trial court’s conclusion was wrong on the record then before it. Assuming that breach of 12 In his written objection, Isaacson presumed that Chang’s insider trading was undisclosed material information and argued that it would prevent Defendants from invoking the business judgment rule. Isaacson did not explain the basis for his presumption that Chang’s insider trading would be material to consideration of Corning’s tender offer. 22 fiduciary duty claims relating to the merger would be subject to enhanced scrutiny because Chang’s undisclosed insider trading would have been material to shareholders (see Goldstein I, supra, 2022 WL 1671006, at pp. 23-24, 30), Isaacson did not identify a theory by which, in this case, those claims would probably lead to monetary damages relating to the merger.13 At most, Isaacson argues that, as a general matter of litigation tactics, Bushansky might have been able to extract a better settlement had he pushed defendants to test his claims—and those theories identified by Isaacson—and survived a motion to dismiss. But it is the potential strength or weakness of the released claims on their merits—not the marginal gains attributable to litigation tactics—that the trial court had to gauge. It is Isaacson’s burden to demonstrate that the trial court abused its discretion, including by developing a reasoned argument supported by legal authority in support of his position. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565; Lee v. Kim (2019) 41 Cal.App.5th 705, 721; see also Jameson, supra, 5 Cal.5th at p. 609.) Isaacson has not satisfied his burden. Again for the first time on appeal, Isaacson argued that, as a result of Chang’s insider trading, stockholders could have a direct claim against Corning for unjust enrichment because Corning secured what Isaacson characterizes as “an award of $792,141.50 from Chang’s breaches of duty to [Alliance] stockholders.” Isaacson forfeited his argument that shareholders had a valuable claim for unjust enrichment against Corning as a result of Chang’s insider trading, because the parties had no opportunity to contest it and the trial court had no opportunity to consider it in evaluating the settlement. (See Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 (Quiles); see 13 In Goldstein I, the plaintiff offered a concrete theory of damages. The damages were the difference between the company’s internal valuation of its future share price, about $150 per share, and the actual sale price. (Goldstein I, supra, 2022 WL 1671006, at p. 56.) 23 also In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 510.)14 Even if not forfeited, Isaacson’s theory of liability is unsupported by the record before the trial court. The criminal judgment required Chang to pay $782,141.50 to Corning in “restitution.” Nothing in the record before the trial court disclosed the basis for the award of restitution, let alone that the restitution to Corning was compensation for injuries suffered by Alliance’s shareholders. Accordingly, Isaacson’s contention that Corning received a windfall as a result of the restitution award is without support. Isaacson has not shown that the trial court had any reason to treat the potential claim as likely to generate monetary value in its settlement approval analysis, much less that the trial court abused its discretion by failing to do so. In the trial court, Isaacson argued only that Chang was subject to a derivative claim for misuse of confidential corporate information by a fiduciary, and conceded that, because it was a derivative claim, it was “likely” extinguished by the merger. Faced with this argument, the trial court unsurprisingly wrote that Isaacson “appear[ed] to agree with plaintiffs that any claims arising from Chang’s insider trading were derivative claims extinguished by the merger.” After the close of briefing, however, Isaacson directed our attention to Goldstein v. Denner (Del. Ch. June 2, 2022) 2022 WL 1797224 (Goldstein II). There, following a line of authority flowing from Parnes v. Bally Entertainment Corp. (Del. 1999) 722 A.2d 14 Defendants request judicial notice under Evidence Code section 459 of the superseding information and a sentencing memorandum in Chang’s federal criminal proceeding, to establish that the order for restitution was to reimburse Corning for expenses Corning incurred complying with the criminal investigation, rather than for Chang’s breaches of fiduciary duty vis-à-vis Alliance shareholders. We deny the request to judicially notice matters not before the trial court, given the absence of exceptional circumstances warranting such a measure. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Moreover, we further observe that judicial notice does not extend to the truth of hearsay statements within judicially noticeable documents. (See In re Vicks (2013) 56 Cal.4th 274, 314.) 24 1243, the Delaware Court of Chancery ruled that a shareholder had standing to raise a derivative claim for disgorgement of the profits a director obtained through insider trading in connection with a tender offer, on the ground that the insider trading could have tainted the sale process. (See Goldstein II, 2022 WL 1797224, at pp. 4, 10-12.) A plaintiff shareholder who has pled a viable underlying derivative claim, the value of which is material in the context of the merger, may “challenge[] a merger based on a board’s alleged failure to obtain value for an underlying derivative claim that existed prior to and independent from the merger.” (Id. at p. 10.) Moreover, a shareholder may also “assert a direct claim challenging a merger if the facts giving rise to what otherwise would constitute a derivative claim led either to the price or the process being unfair.” (Id. at p. 11.) A plaintiff who thus directly attacks the fairness or validity of a merger is not alleging an injury to the corporation but to its shareholders “ ‘and may pursue such a claim even after the merger at issue has been consummated.’ [Citation.]” (Id. at p. 10.) Accordingly, at oral argument, Isaacson contended that Goldstein II supports the theory that shareholders here retained a valuable claim for disgorgement of the profits obtained through insider trading against Chang even after the consummation of the merger. Because this argument was not before the trial court, however, it would be inappropriate for us to consider it in our deferential review for abuse of discretion. In the trial court, Isaacson obliquely conceded that any derivative claims arising out of Chang’s insider trading were “likely” released, and he identified no direct claims. Even as recently as his appellate reply brief, Isaacson stopped short of taking the position that shareholders could pursue a post-merger disgorgement claim, asserting instead that the record was “too sparse”—given plaintiffs’ failure to investigate—to assess whether the value of a disgorgement claim was material in the context of the merger.15 If Isaacson 15 In Morris v. Spectra Energy Partners (DE) GP, LP (Del. 2021) 246 A.3d 121, 136 (Morris), the court explained that “a $10 million derivative claim could not 25 believed that the record before the trial court did not support approval of the settlement because Bushansky, post-merger, may have been able to pursue directly what otherwise would have been a derivative claim for insider trading, Isaacson needed to make, and could have made, that point in the trial court. (See Quiles, supra, 28 Cal.App.5th at p. 1013.) In reviewing for abuse of discretion, however, we cannot expect the trial court to expressly address a claim Isaacson himself only articulated for the first time at oral argument on appeal. Isaacson did surmise in the trial court that Bushansky “may well have missed other issues” if he “missed Chang’s insider trading” due to an inadequate investigation. But as the trial court noted, the failure of any entity other than the plaintiffs involved in these proceedings to raise any claim in the three years since the merger made unlikely the existence of potentially valuable claims other than those considered in the litigation to that point.16 None of Isaacson’s arguments to the trial court pointed to the disgorgement theory Isaacson articulated at oral argument, the materiality of that claim in the context of reasonably be expected to be material to a $1 billion merger value. The same derivative claim would be material to a $20 million merger.” Here, the transaction price was about $305 million. Consistent with Morris, if the insider trading claim against Chang were valued at less than one percent of this sum, a trial court might legitimately assess as low the likelihood of the claim being deemed material to the transaction price. Isaacson has not argued that the disgorgement claim could be so valuable as to be material to the transaction price in this case. We note that the criminal complaint alleges that Chang profited in an amount exceeding $800,000 by trading on his insider knowledge of the anticipated merger and avoided losses of $980,000 by trading on his insider knowledge of Alliance’s anticipated earnings reports. 16 Addressing the contention that Bushansky’s investigation may have missed meaningful claims, the trial court wrote that it was “not persuaded that plaintiffs’ investigation failed to uncover potentially viable claims related to the merger or that any such claims exist now.” We understand the reference to “viable” claims in the context of the court’s order and the court’s limited role at final approval. (See Kullar, supra, 168 Cal.App.4th at p. 133.) That is, we understand the reference to “viable” claims to mean claims that had a probability, through continued litigation, of generating a monetary recovery. 26 the merger, or its effect on the fairness of the merger price or process. (See Goldstein II, supra, 2022 WL 1797224, at pp. 10-11.) In his appellate briefing, Isaacson argued there must be some other remedy available to shareholders, even if he was unable to identify it. For support, Isaacson cited only the general proposition that “ ‘equity will not suffer a wrong without a remedy.’ ” (Shawe v. Elting (Del. 2017) 157 A.3d 152, 159, fn. omitted.) Isaacson has identified no principled basis by which we should now explore the potential for distinct equitable claims that had no meaningful exposition in the trial court and have been raised only in passing on appeal. Chang’s criminal conviction and sentence tend to undermine Isaacson’s suggestion that this particular wrong has gone unremedied, and Isaacson has not articulated a theory by which Alliance shareholders could probably have achieved a monetary recovery in the civil action. 2. Materiality to the Settlement Consideration Isaacson contends that the trial court incorrectly determined that shareholders were “fully informed” at the time of the tender, when in fact shareholders were unaware of Chang’s insider trading. This line of argument is undermined by our determination above that the trial court was entitled to consider the potential risk that Chang’s insider trading might not be found to be material to consideration of the tender offer. It also misconstrues the trial court’s order. The subsequent revelation of Chang’s insider trading, which the trial court determined could not have been reasonably uncovered before the tender offer closed, did not render the consideration Bushansky obtained during the tender offer period worthless. Initially, we reject Isaacson’s unsupported contention that a disclosure settlement may only provide a benefit to the class if a court determines that the result of the disclosures is that the shareholders were fully informed—meaning, at least, that no piece of material information was omitted from the disclosures. While the goal of a plaintiff negotiating a disclosure settlement is undoubtedly to ensure that all material information is disclosed, settlements are not required to be perfect as a condition of approval. Rather, 27 they are required to be fair. (See Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 799, 803 (Clark) [“ ‘the operative word is “settlement” ’ ”]; Kullar, supra, 168 Cal.App.4th at pp. 129-130, 133.) We acknowledge the possibility that errors may reduce the value of the disclosures that are obtained and may increase the value of the release. But trial courts are well equipped to weigh the benefits of any disclosures secured through a settlement in light of all of the circumstances. (See Dunk, 48 Cal.App.4th at p. 1801 [trial court’s determination is an “ ‘ “amalgam of delicate balancing, gross approximations, and rough justice” ’ ”].) Indeed, that is precisely how the Delaware Court of Chancery analyzed materiality in Trulia. (Trulia, supra, 129 A.3d at pp. 899-907.) We further reject Isaacson’s contention that the trial court’s determination that the settlement consideration was sufficient to justify the release of claims rested on the premise that the shareholders were, in hindsight, fully informed. In making this argument, Isaacson selectively excerpts from the trial court’s analysis of preliminary approval—prior to learning of Chang’s insider trading—and Bushansky’s request for attorney’s fees. At preliminary approval, the court reasoned that the likely impediments to monetary recovery meant that “ensuring that the shareholder vote on the merger was fully informed was probably the most important outcome this action could achieve.” Thus, the limited non-monetary consideration provided by the settlement was, in context, a fair return for the released claims. At final approval, the court “st[ood] by” that analysis, explaining that although the value of the standstill waiver and disclosure was less than what Bushansky contended, their value was sufficient to support the settlement. That a “fully informed” shareholder decision was the most important potential benefit to be gained by litigation of the class action does not demonstrate that the trial court must therefore have deemed settlement to have met that objective. Rather, it reflects that the settlement sufficiently furthered that 28 objective, to the extent practicable in context, so as to render the settlement consideration a fair exchange for the release of claims. Thus, the final approval order rests on the determination that the standstill disclosure had material value, the standstill waiver had some value, and the release did not sacrifice any claims that were likely to yield anything other than disclosures—which could only assist the class in the time before the tender offer closed. The final approval ruling does not rest on any express, necessary, or implicit ultimate determination that the shareholder vote was fully informed or that Chang’s insider trading was immaterial to shareholders evaluating the tender offer. In granting Bushansky’s request for fees, the court determined that “an award under the substantial benefit doctrine [was] appropriate.” The court reasoned that the “standstill waiver and associated disclosure prevented the merger from proceeding based on an uninformed shareholder vote, protecting an essential shareholder right.” Reasoning that a shareholder vote is either “fully informed” or “uninformed,” Isaacson asserts that the trial court decided that Chang’s insider trading was not a material fact that needed to be disclosed to shareholders. We reject the binary strictures of his premise and his interpretation of the trial court’s fee award. In reply, Isaacson contends that the standstill waiver and disclosure did not provide sufficient value to support the settlement. As to the standstill waiver, Isaacson offers only a superficial argument to the effect that one standstill waiver is categorically insufficient to justify a settlement, even if two standstill waivers may be. But there was only one standstill agreement to waive, and the trial court duly considered that there was only one waiver in assessing the value to the class. As to disclosure of the standstill agreement, Isaacson does not contend that it had no value, only that its value was insufficient relative to the release of the claims in this case. Isaacson’s invitation to reweigh factors legitimately considered by the trial court exceeds the scope of our deferential review. (Wershba, supra, 91 Cal.App.4th at pp. 244-245; Kullar, supra, 168 Cal.App.4th at pp. 127-128.) 29 At bottom, the trial court concluded that the value produced by the settlement, though limited, was sufficient to support the settlement because the consideration constituted a fair exchange for the release of claims in all of the circumstances. Isaacson has not shown that the trial court abused its discretion in making that determination. III. DISPOSITION The judgments are affirmed. 30 ____________________________ LIE, J. WE CONCUR: ____________________________ GREENWOOD, P.J. _____________________________ GROVER, J. Bushansky v. Alliance Fiber Optic Products H047100 Khaki v. Alliance Fiber Optic Products H047101	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484728/	Filed 11/17/22 P. v. Garcia CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B311562 Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA442346 v. JOSUE GARCIA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed in part, reversed in part, and remanded with directions. Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION A jury convicted Josue Garcia of one count of first degree murder (Pen. Code,1 § 187, subd. (a); count 1), four counts of willful, deliberate and premeditated attempted murder (§ 664/187; counts 2–5), one count of criminal threats (§ 422, subd. (a); count 6), and one count of shooting at an occupied vehicle (§ 246; count 7). The jury also found true gang and gang- related firearm allegations. (§ 186.22, subd. (b)(1); § 12022.53, subd. (e).) We reverse the gang and gang-related firearm allegations and vacate Garcia’s sentence. On remand, the People may retry the allegations under the amendments to section 186.22. We otherwise affirm the judgment. PROCEDURAL BACKGROUND Garcia and his codefendant Luis Ramos were charged by an amended information dated August 19, 2019. In count 1, the amended information charged Garcia and Ramos with the murder of Edwin Jurado (§ 187, subd. (a)). In counts 2 through 5, the amended information charged Garcia and Ramos with the attempted premeditated murder of Jose Delgado, Pablo Delgado, Sr., Pablo Delgado, Jr., and Christian Diaz (§ 664/187, subd. (a)). As to these five counts, the amended information included a gang/gun special allegation (§ 12022.53, subds. (d), (e)(1)). In count 6, the amended information charged Garcia with making criminal threats (§ 422, subd. (a)) against Alexious Buck. In count 7, Garcia was charged with shooting at an occupied vehicle (§246) 1 All undesignated statutory references are to the Penal Code. 2 with additional special gun use allegations, including one pursuant to section 12022.53, subdivision (d) that Garcia personally discharged a firearm into an occupied vehicle causing great bodily injury. The amended information further alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C) as to counts 1–5 and 7; § 186.22, subd. (b)(1)(B) as to count 6). For count 7, it was also alleged that the gang activity was carried out with the intent to promote, further, and assist in criminal conduct by a gang (§ 186.22, subd. (b)(4)). The jury returned verdicts convicting Garcia of all counts and finding true all alleged enhancements. On count 1, Garcia was sentenced to 50 years to life, comprising 25 years to life for first degree murder plus 25 years to life for principal firearm use with a gang allegation (§ 12022.53, subds. (d) & (e)(1)). On counts 2 through 5, Garcia was sentenced to 40 years to life for each count, comprising 15 years to life for the attempted premeditated murder plus 25 years to life for personal/principal firearm use with gang allegation (§ 12022.53, subds. (d) & (e)(1)). The court ordered the term for counts 3 through 5 to run concurrent to each other, and consecutive to count 2. On count 6, Garcia was sentenced to seven years, consisting of two years calculated as the mid-term for the section 422 offense plus five years for the gang enhancement. Finally, on count 7, the court imposed a 25 years to life sentence and stayed the sentence pursuant to section 654. Garcia was given 1,927 days of actual credit. 3 Garcia timely appealed.2 FACTUAL BACKGROUND 1. The Murder and Attempted Murder Counts In the early morning hours of September 28, 2013, Edwin Jurado was at a nightclub in Los Angeles, El Cafetal. Jurado was drunk and became involved in a dispute with approximately six members of the Park View clique of the MS-133 gang. After Jurado struck one of the female gang members, a security guard detained Jurado and walked the gang members out of the club. As they left the club, one of the gang members said that they planned “to pop the guy out.” Jurado was a member of the rival 18th Street gang. The MS-13 gang members headed from the club to a nearby apartment or “trap house” where they sold drugs, kept guns, and socialized. There, they discussed the incident at the club and decided to “go give a lesson to somebody that had disrespected them.” Among those at the apartment were Garcia (also called Hyper); Ramos, a senior member of the Park View clique; Ramos’ girlfriend, Dina Padilla; and Carlos Gonzalez (also called Husky), another member of the Park View clique. Garcia, Ramos, and Gonzalez each took a gun from a stash spot in the bathroom of the apartment before leaving. Garcia took a .38 revolver, Ramos took a semi-automatic gun, and Gonzalez took a small handgun. Shortly after 2:00 a.m., they and other MS-13 members drove to 2Ramos’ conviction was affirmed by this court in People v. Ramos (May 14, 2021, B304855) [nonpub. opn.].) 3 MS-13 refers to La Mara Salvatrucha gang. 4 the area of the nightclub. They parked in an area without surveillance cameras and waited for Jurado to approach. Before leaving the apartment, Ramos had instructed Padilla to remain behind with two other women, including a Park View clique member called La Morena. However, La Morena persuaded Padilla to drive her back to El Cafetal. They found Jurado walking nearby and La Morena jumped out of the car and struck Jurado, knocking him to the ground. Ramos instructed the driver of their car to drop them off a block away and Garcia, Ramos, and Gonzalez ran to where La Morena and Jurado were. Garcia, Ramos, and other MS-13 gang members started to hit and kick Jurado. Jurado was also shot three times. Pablo Delgado, Jr. was driving his father, Jose Delgado, his uncle, Pablo Delgado, Sr., and his uncle’s friend, Christian Diaz, home after a Dodgers game when they witnessed the attack and saw that the victim was not defending himself. They decided to help the victim and stopped their car nearby. Diaz jumped out of the car and immediately saw an armed man approaching. Jose Delgado, who was sitting in the front passenger seat, attempted to get out as well but Garcia kicked the door closed. Garcia then fired into the car from the passenger side of the vehicle. Delgado, Jr. and Gonzalez heard two or three shots. Padilla heard more than five but less than 10 shots before she fled the scene. One bullet went through the open front passenger-side window of Delgado, Jr.’s car and shattered the driver’s side window, while another struck the frame of the front passenger side door. Another bullet struck Diaz in the arm. Delgado, Jr. sped away before realizing that Diaz was no longer in the car. Diaz ran to a nearby metro station and was assisted by the security guards there. 5 Garcia, Ramos, and Gonzalez then ran back to their car. They drove past Jurado’s body to confirm that he was dead before returning to the apartment. Jurado’s cause of death was multiple gunshot wounds to the abdomen and chest. The two bullets recovered from Jurado’s body were .38 or .357 caliber and were fired from the same weapon as another .38 or .357 caliber bullet recovered from the scene. 2. The Criminal Threats Count On July 3, 2014, Alexious Buck noticed Garcia and another Hispanic man entering the gate to her sister’s apartment complex. When Buck asked if they needed anything, the men swore at her and grew belligerent. The men left but returned five minutes later with a gun. Garcia put the gun to Buck’s head and the other man asked if she was ready to die. After Buck told them, “Do what you have to do,” the men called her a racial slur and walked away. Buck called the police and reported where she observed the two men heading. She also informed them that she had seen the two men throw hand signs that made her believe they were part of a gang. Police apprehended Garcia inside a nearby apartment building. DISCUSSION Garcia contends that his attempted murder convictions must be overturned on two grounds. First, Garcia argues that the evidence is insufficient to support four convictions of willful, deliberate, and premeditated attempted murder. He asserts that the evidence supports that he fired only three bullets at the car driven by Delgado, Jr. and, therefore, there is insufficient evidence to support a determination that he intended to kill all four passengers. Garcia also argues that the attack on the car 6 was a “rash impulse hastily executed” and that the evidence does not support that his actions were premeditated and deliberate. Second, Garcia contends that the prosecutor misstated the law or made appeals to the passion and prejudice of the jury on five separate occasions during closing argument, and that, independently or cumulatively, these arguments resulted in prejudice, requiring reversal of the attempted murder convictions. We conclude that the evidence was sufficient to support four convictions for attempted murder and that the attempted murders were willful, deliberate, and premeditated. We further hold that any prosecutorial errors, together or singly, were not prejudicial and do not require the reversal of the attempted murder convictions. Garcia also contends, and the Attorney General agrees, that the amendments made to section 186.22 pursuant to Assembly Bill No. 333 (AB 333) are retroactive and that the proof of the gang allegations offered at trial does not satisfy the requirements of section 186.22 as amended. The Attorney General also concedes that the gang-related firearm allegations found true must be vacated for insufficient evidence. We accept these concessions and reverse these true findings. They may be retried on remand. Finally, Garcia contends that the failure to bifurcate the gang allegations pursuant to newly enacted section 1109, which was added pursuant to AB 333, requires that we reverse the judgment in its entirety. The Attorney General argues that section 1109 does not apply retroactively and that the failure to bifurcate the gang allegations was harmless in this case. Even assuming retroactivity, we conclude that it is not reasonably 7 probable that Garcia was prejudiced by any failure to bifurcate the gang allegations. 1. Sufficiency of the Evidence Supporting the Attempted Murder Convictions 1.1. Standard of Review In assessing the sufficiency of the evidence to support a conviction, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see also Jackson v. Virginia (1979) 443 U.S. 307; People v. Perez 8 (1992) 2 Cal.4th 1117, 1124; People v. Snow (2003) 30 Cal.4th 43, 66.) 1.2. Sufficient evidence supports Garcia’s conviction for four counts of attempted murder. Garcia contends that evidence was insufficient to support his conviction for four counts of attempted murder where the physical evidence supports that only three bullets were fired at the Delgados and Diaz. We conclude that the evidence was sufficient to support all four convictions. “[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.] . . . Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]” ’ [Citation.]” (Ibid.) “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘ “in a manner that could have inflicted a mortal wound had the bullet been on target” ’ is sufficient to support an inference of intent to kill. [Citation.]” (Id. at p. 742.) 9 In Smith, the defendant shot into a vehicle containing his ex-girlfriend, who sat in the driver’s seat, and her baby, who was in a car seat directly behind her. (Smith, supra, 37 Cal.4th at p. 742.) The trajectory of the bullet showed “that it was fired from a position directly behind the car.” (Id. at p. 743.) Though it “missed both the baby and the mother by a matter of inches[,] it shattered the rear windshield, passed through the mother’s headrest, and lodged in the driver’s side door.” (Ibid.) The Supreme Court observed that, “in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposefully shot into the vehicle with ‘a deliberate intent to unlawfully take away [the baby’s] life’ [citation] or knowledge that his act of shooting into the vehicle would, ‘ “ ‘to a substantial certainty,’ ” ’ result in the baby’s death. [Citation.]” (Ibid.) It concluded that these requirements were met, as the defendant’s “very act of discharging a firearm into the car from close range and narrowly missing both mother and baby could itself support such an inference.” (Id. at p. 744.) Our high court further rejected the defendant’s contention that a single bullet could not support two convictions for attempted murder because this was not a “kill zone” case.4 The court explained that the “ ‘kill zone’ theory does not preclude a 4“[A] shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim.” (Smith, supra, 37 Cal.4th at pp. 745–746.) The kill zone theory is discussed in more depth infra in Section 2.3. 10 conclusion that defendant’s act of firing a single bullet at [his ex- girlfriend] and her baby, both of whom were in his direct line of fire, can support two convictions of attempted murder under the totality of the circumstances shown by the evidence.” (Smith, supra, 37 Cal.4th at p. 745.) The court concluded that a kill zone rationale did not control in this case and that the defendant’s arguments relied on “the incorrect assumption that a shooter who fires a single bullet at two victims who are both, one behind the other, directly in his line of fire, cannot, as a matter of law, be found to have acted with express malice toward both victims.” (Id. at p. 746.) More recently, in People v. Canizales (2019) 7 Cal.5th 591 (Canizales), the Supreme Court discussed Smith, stating the defendant there “was properly convicted of two counts of attempted murder for having fired at close range a single bullet at a former girlfriend seated in the front seat of her car and the infant who was in a car seat immediately behind her, both of whom were in his direct line of fire.” (Id. at p. 603.) The court reiterated the sufficiency of the evidence in Smith to establish an intent to kill: “evidence that the defendant discharged a lethal firearm at two victims who were seated directly in his line of fire supported an inference that he acted with intent to kill both victims.” (Id. at p. 608.) Turning to the facts present here, there is evidence that Garcia discharged a lethal firearm at two victims in the same direct line of fire, as well as firing at least two additional shots. The evidence supports that Garcia, who was armed with a revolver, approached the passenger side of the car and kicked the front passenger door closed when Jose Delgado tried to exit the vehicle, indicating that he was in very close range when he 11 opened fire. Padilla heard more than five but less than 10 shots, whereas Delgado, Jr. and Gonzalez heard three shots. Garcia shot through the open passenger side window, shattering the driver side window, while both Delgado, Jr. and his father were seated in the front row of the car. Garcia fired another shot that hit the front passenger door frame. Garcia also fired a shot that struck Diaz, who had exited the vehicle. Even assuming that certain of the shots that Padilla heard were fired at Jurado and not at the Delgados and Diaz, the evidence supports a reasonable inference that Garcia intended to kill all four passengers of the car with the three bullets fired. Garcia fired at close range at two people in the same line of fire and fired at least two other bullets at or near the car, including the one that hit Diaz. This case is therefore distinguishable from those cases in which defendants were convicted of multiple counts of attempted murder based on shots fired in the general vicinity of certain of the alleged attempted murder victims. In People v. Perez (2010) 50 Cal.4th 222, the defendant fired a shot from a slowly moving vehicle approximately 60 feet away, striking an officer. (Id. at p. 226.) Six other officers and one carjacking victim were also in the parking lot where the shooting took place. The carjacking victim was standing next to the officer who was shot, while the six other officers stood between two and 15 feet away from the injured officer. (Id. at p. 227.) The Supreme Court concluded that the evidence was “sufficient to support defendant’s conviction of one count of premeditated attempted murder of a peace officer,” but was “insufficient to sustain defendant’s convictions of the remaining seven counts of attempted murder.” (Id. at p. 230.) Unlike in Smith, where the single bullet was fired at close range 12 and both the mother and child were in the direct line of fire, “the evidence [was] insufficient to establish that defendant acted with the intent to kill two or more individuals by firing the single shot at the group of seven officers and a civilian.” (Id. at p. 233.) In People v. Virgo (2013) 222 Cal.App.4th 788, the defendant was a parolee at large who engaged in a shootout with officers who surrounded the house where he was staying. (Id. at pp. 792–796.) The defendant was convicted of 10 counts of attempted murder, one for each of the officers outside his home. (Id. at p. 797.) The court observed that, “to affirm each of defendant’s 10 convictions of attempted murder, we search the record for substantial evidence indicating defendant committed a direct but ineffectual act toward killing each officer. We look to see if he fired at each of the 10 victims in a manner that could have killed them had defendant’s aim been more on target.” (Id. at p. 799.) The court concluded that evidence was only sufficient to support five convictions for attempted murder. The defendant fired four to seven shots at one group of four officers taking cover behind a car, which was sufficient to convict the defendant of attempting to murder each of those officers. (Ibid.) Another group of three officers who had taken cover at the northwest corner of the house testified that only one bullet had been shot in their direction, which was sufficient to support only one conviction for attempted murder. (Ibid.) There was no evidence that the remaining three officers had been fired at. (Id. at p. 800.) There was no evidence in Perez or Virgo that two individuals were in the same direct line of fire of any of the defendants’ shots. Moreover, unlike in those cases, Garcia did not fire at a dispersed group of individuals. Rather, the four passengers were clustered in or just outside of the car, and two of 13 the passengers were in the same direct line of fire. Based on our review of the record in its entirety, we conclude that a rational trier of fact could have concluded beyond a reasonable doubt that Garcia harbored an intent to kill each of the four passengers. 1.3. Sufficient evidence supports that the attempted murders were willful, deliberate and premeditated. Garcia also contends that there is insufficient evidence to support that the attempted murders were willful, deliberate, and premeditated, citing testimony from Diaz and Delgado, Jr. supporting that the events transpired quickly. Garcia therefore contends that there was insufficient time to form a preconceived design to attempt to kill the people in the car. We hold that the evidence was sufficient to support the jury’s conclusion. “[U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement.” (People v. Mejia (2012) 211 Cal.App.4th 586, 605; see § 664, subd. (a); People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“attempted murder is not a lesser included offense of attempted premeditated murder, but premeditation constitutes a penalty provision that prescribes an increase in punishment”].) “ ‘In this context, “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118.) “ ‘ “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be 14 arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812.) “In People v. Anderson [(1968) 70 Cal.2d 15, 26] (Anderson), [the Supreme Court] identified ‘three basic categories’ of evidence [it] has generally found sufficient to sustain a finding of premeditation and deliberation: (1) planning activity, or ‘facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing’; (2) motive, or ‘facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim’; and (3) manner of killing, or ‘facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s life in a particular way for a “reason”. . . .’ [Citation.]” (People v. Morales (2020) 10 Cal.5th 76, 88–89.) The Anderson factors also apply to whether an attempted murder was deliberate and premeditated. (People v. Lenart (2004) 32 Cal.4th 1107, 1127–1128.) “In the years since Anderson, ‘ “[the Supreme Court] ha[s] emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight.” ’ [Citation.]” (Morales, at p. 89.) Further, “the Supreme Court has described the various Anderson categories in the disjunctive, inserting an ‘or’ in the series . . . .” (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1113.) Applying these standards and viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence of all three Anderson factors. Contrary to Garcia’s 15 contention, the record provides a reasonable inference of motive as to the attempted murders. A car unknown to the MS-13 gang members arrived at the scene and an individual got out. The jury could have reasonably inferred that Garcia believed that other members of the 18th Street gang had arrived to assist Jurado, and that his desire for retribution against Jurado would extend to other members of MS-13’s rival gang. Alternatively, the jury could have inferred that Garcia wanted to eliminate any potential witnesses to the murder of Jurado. (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 518 [jury could “have found a ‘ “plausible motive” ’ for [victim’s] murder in defendant’s need to eliminate a witness to his crimes”].) The fact that Garcia was armed with a gun reflects evidence of planning activity. (See, e.g., People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [gang member armed himself before attending party, showing a “willingness to take immediate lethal action” if need arose].) Even if the planning related to Jurado in the first instance, the jury could reasonably infer that Garcia was prepared to use the gun against any rival gang members or potential witnesses he and the other MS-13 members encountered while retaliating against Jurado. Finally, although the incident arose unexpectedly, the manner of the attempted killing is indicative of premeditation and deliberation. Garcia did not shoot blindly from a distance. Rather, the evidence supports that Garcia ran over to the car and kicked one of the doors closed to prevent a passenger from getting out before firing multiple shots at the passengers of the vehicle from close range. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 849 [premeditation established in gang context even though time between seeing victim and actual shooting was brief]; People 16 v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [manner of killing supported premeditation and deliberation where shooter’s “car was only about five feet from the victim when the shooting started” and he fired multiple shots].) In sum, our review of the three Anderson factors— planning, motive, and manner of killing—supports that there is sufficient evidence that the attempted murders were willful, deliberate, and premeditated. 2. Prosecutorial Misconduct 2.1. Standard of Review “We review claims of prosecutorial misconduct pursuant to a settled standard. ‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ [Citations.] In addition, ‘ “a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” ’ [Citation.] Objection may be excused if it would have been futile or an 17 admonition would not have cured the harm.” (People v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes).) “It is considered misconduct to misstate the law to the jury, and bad faith is not required. [Citation.] But a prosecutor is allowed to vigorously argue the case and is afforded ‘significant leeway’ in discussing the facts and the law in closing argument. [Citations.]” (People v. Azcona (2020) 58 Cal.App.5th 504, 516 (Azcona).) Prosecutors also have wide latitude to comment on the state of the evidence and draw reasonable inferences or deductions. (People v. Martinez (2010) 47 Cal.4th 911, 957.) “ ‘Whether the inferences the prosecutor draws are reasonable is for the jury to decide.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 337.) “ ‘[W]e “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667.) 2.2. Yellow Light Analogy Garcia contends that the prosecutor misstated the law of willful and deliberate premeditation by analogizing the required process to the decision of whether to go through a yellow light. He asserts that the prosecutor’s arguments improperly minimized the required elements of premeditation and deliberation and reduced the prosecution’s burden of proof. He argues that his attempted murder convictions “must therefore be reduced to second degree attempted murder.”5 We conclude that there was 5The offense of “second degree attempted murder” does not exist; unlike murder, attempted murder is not divided into degrees. (See People v. Favor (2012) 54 Cal.4th 868, 876.) We understand Garcia’s 18 no misconduct. Even if we assumed error, Garcia has failed to demonstrate prejudice resulting from the prosecutor’s analogy. 2.2.1. Additional Facts The court instructed the jury on deliberate and willful premeditation in connection with both murder and attempted murder. With respect to attempted murder, the court instructed the jury: “The defendant acted willfully if he intended to kill when he acted. [¶] The defendant deliberated if he carefully weighed the consequences for and against his choice, and knowing the consequences, decided to kill. [¶] The defendant acted with premeditation if he decided to kill before completing the acts of attempted murder. [¶] The attempted murder was done willfully and with deliberation and premeditation if either the defendant or a co-participant or both of them acted with that state of mind. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. [¶] The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. [¶] The test is the extent of reflection, not the length of time. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If argument to be that his convictions must be reduced to attempted unpremeditated murder. 19 the People have not met this burden, you must find this allegation has not been proved.” The court also instructed the jury: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” During her closing argument, the prosecutor discussed the facts of the case at length before turning to the law, including the difference between first degree murder and second degree murder and the requirement that first degree murder must be willful, deliberate, and premediated. The prosecutor went on to state: “So let’s put that into some context. This analogy is a good—sums up how quickly somebody can reach premeditation and deliberation. When you are driving down the street and you are going— approaching a traffic light and that light turns yellow, you have to make a very quick decision. Are you going to gun it and get through that intersection? Or are you going to brake and stop for what will become the red light? It is a split-second decision. But that thoughtfulness and quick, rapid decision is sufficient for premeditation and deliberation.” The prosecutor also showed the jury a slide listing other factors that might go into a decision to go through a yellow light, including: “How fast am I going? [¶] Can I stop in time or is it safer to pass through the intersection? [¶] Is the street wet? [¶] Is cross traffic starting to cross? [¶] Are pedestrians entering the crosswalk?” The slide further stated: “That split second decision involved: [¶] DELIBERATION – Is it safer to enter or to stop? [¶] PREMEDITATION – Weighing beforehand.” The prosecutor did not read the contents of the slide out loud. Defense counsel made no objections. 20 2.2.2. Analysis Notwithstanding the lack of objections, Garcia argues that we should address his contention that prosecutorial error requires that the finding of premeditation be reversed as to his attempted murder convictions.6 If we find the issue was waived by failure to object, he contends that he received ineffective assistance of counsel. We conclude that the issue was waived, as Garcia has failed to establish that an objection or admonition would have been futile. (Dykes, supra, 46 Cal.4th at p. 760.) However, we exercise our discretion to address the claim on the merits to eliminate the need to address Garcia’s alternative ineffective assistance of counsel claim. (See In re Victor L. (2010) 182 Cal.App.4th 902, 928.) Garcia argues that the prosecutor misstated the law because her “oral argument made no mention of taking multiple factors into account, instead contending that it was simply a matter of ‘gunning’ the car, or stopping.” Garcia concedes that the prosecutor’s PowerPoint included several additional factors that one might consider, but argues that the prosecutor failed to mention them or put them into context. Garcia also argues that the prosecutor’s argument was misleading because it failed “to acknowledge the very significant difference between deciding whether to stop at a yellow light and making a willful, deliberate and premeditated decision to kill.” We disagree. The context of the slide accompanying the prosecutor’s argument concerning the yellow light analogy was clear. Even if her oral argument understated the necessary level 6Garcia does not argue that the first degree murder conviction should be reversed. 21 of deliberation, the prosecutor’s overall presentation of the analogy (i.e., also taking into account the contents of the slide) conveyed a decision-making process reflecting premeditation and deliberation consistent with the court’s instruction. The prosecutor’s overall presentation of the analogy was very similar to yellow light analogies that have been found proper. In People v. Avila (2009) 46 Cal.4th 680, 715 (Avila), the Supreme Court rejected the defendant’s contention that the prosecutor had argued “that ‘the “cold, calculated” judgment of murder is the equivalent of deciding whether to stop at a yellow light or proceed through the intersection.’ Rather, the prosecutor used the example of assessing one’s distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a ‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ He then immediately said, ‘Deciding to and moving forward with the decision to kill is similar, but I’m not going to say in any way it’s the same. There’s great dire consequences that have a difference here.’ ” The court therefore concluded that the prosecutor had not engaged in any misconduct. (Ibid.) In People v. Son (2020) 56 Cal.App.5th 689, 698 (Son), the prosecutor stated during closing argument: “ ‘Rarely do people who kill have a good enough reason for what they did. This [i.e., premeditation] isn’t my motive or what I think would be a good idea. It’s simply a consideration of consequences and actions. And that the decision to kill is made during the course of killing, if not wholly before. [¶] Some examples of this are the difference between shooting someone a single time and pulling the trigger a 22 second time. [¶] The decision a person makes when approaching a yellow light as it may be likely to phase red. A weighing of consequences. Am I going to make it? Am I going to be involved in an accident? Am I going to get a ticket? I look to the left. I look to the right. And I go for it.’ ” The court in Son found no error in the yellow-light example provided. The court explained that, “[a]t least in the way the prosecutor framed it, if someone were to go through the decision- making process the prosecutor described, the decision to proceed through the intersection would be premeditated.” (Son, supra, 56 Cal.App.5th at p. 699.) The court rejected defendant’s contention, based on Avila, “that it is improper to analogize premeditation to a yellow light unless it is accompanied by the caveat that going through a yellow light is less serious than murder.” (Id. at p. 699.) The court in Son explained that “[t]he only thing the Avila court said was that the prosecutor did not argue that going through a yellow light is the ‘equivalent’ of murder,” and noted that “[t]he prosecutor in our case did not draw such an equivalence either. It was obviously an analogy.” (Id. at pp. 699–700.) In Azcona, supra, 58 Cal.App.5th 504, 516, the prosecutor similarly argued: “ ‘Everybody here has traveled into an intersection . . . where the light turns yellow. Okay? When you travel into that intersection and that light turns yellow and you’re going to make a decision to go through that light, [. . .] what are the two things you look for? Cars and cops. That’s what you’re going to look for. And then if you decide to go through, you’ve looked, you’ve thought about it. Are there cars? Are there cops? Happens to everybody. Common sense. [¶] So when you do that, you have deliberate[d], you thought about it before you’ve 23 done it. What are the consequences? I could hit a car, a cop could catch me. You’ve deliberated it. And then when you went through the light, you premeditated before you went ahead and went through that light. You deliberated and premeditated it. It’s as simple as that.” The court found “no fault with the analogies used here” and noted that “the Supreme Court found nothing wrong with essentially the same yellow light analogy in [Avila].” (Ibid.) The defendant, like the defendant in Son, argued that “the prosecutor’s argument here trivialized the concept of premeditated murder compared to Avila, where the prosecutor expressly acknowledged that ‘ “[d]eciding to and moving forward with the decision to kill” ’ was not the same, since it involves ‘ “great dire consequences.” ’ ” (Ibid.) The court found “no suggestion that the decision to kill someone is no more consequential than deciding to drive through a yellow light . . . Rather, the prosecutor’s point was that the time required for premeditation is no greater than the time needed to make those other (far less consequential) decisions.” (Id. at p. 517.) Like the courts in Son and Azcona, we reject the contention that the prosecutor acted improperly by failing to expressly state that going through a yellow light is less serious than premeditated and deliberate murder. The prosecutor did not suggest that two acts were equivalent; rather, she made clear that the yellow light example was an “analogy” intended to “sum[ ] up how quickly somebody can reach premeditation and deliberation.” Thus, as in the above cases, the yellow light analogy was used to illustrate how a premeditated and deliberate decision to kill could happen quickly, but that premeditation and deliberation nevertheless require at least some degree of weighing the consequences. This analogy accurately reflects the 24 law in that a defendant can quickly make a deliberate, premeditated decision to kill. (People v. Solomon, supra, 49 Cal.4th at p. 812 [“ ‘ “Premeditation and deliberation can occur in a brief interval” ’ ”].) We therefore conclude that it was not reasonably probable that the jury was misled by this argument. Even if we assumed error, Garcia has failed to show prejudice. He has not shown there is a reasonable probability that the result of the proceeding would have been more favorable to him but for counsel’s failure to object. The jury was correctly instructed on the concept of premeditation and deliberation in connection with both murder and attempted murder. The jury was also instructed that, if the attorneys’ comments on the law conflicted with the trial court’s instructions, they must follow the law as the trial court explained it to them. “ ‘When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” [Citation.]’ ” (People v. Centeno, supra, 60 Cal.4th at p. 676.) 2.3. Kill Zone Garcia contends that the prosecutor’s invocation of the kill zone theory in her closing argument constituted a misstatement of law and improperly circumvented the requirement that the jury find intent as to each of the four alleged murder victims. Although we agree that the prosecutor made a minor misstatement of law and that the kill zone theory is inapplicable under the facts of this case, we conclude that it is not reasonably 25 probable that any error committed by the prosecutor was prejudicial. 2.3.1. Additional Facts With respect to attempted murder, the court instructed the jury, in relevant part: “The defendant is charged in counts two through five with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that, number one, the defendant took at least one direct but ineffective step toward killing another person; and number two, the defendant intended to kill that person.” During her closing argument, the prosecutor argued with respect to attempted murder: “When Hyper opened fire on that car and shot at that car at least three times, does it matter which of the victims he intended to strike? [¶] Why is he shooting at an occupied car with one of those windows down? Obviously to try to strike and shoot the occupants of that car. [¶] Does it matter if he wanted to hit the front passenger or if he wanted to hit the driver or if he wanted to hit the rear passenger? No, because his intent is to the entire car. So everyone in that car is part of his intent to kill. [¶] Kind of like if you decide you want to kill this pilot of this plane and you put a bomb on the plane that he is flying; you’ve also basically — your intent to kill is going to transfer to all of the passengers on that plane.” Defense counsel did not object. 2.3.2. Analysis Despite the absence of an objection, we again elect to address Garcia’s claim on the merits to eliminate the need to address his alternative argument premised on ineffective assistance of counsel. 26 “[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.” (Canizales, supra, 7 Cal.5th at p. 607.) In other words, “[w]hen the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim . . . evidence of a primary target is required.” (Id. at p. 608.) The court properly declined to instruct the jury on the kill zone theory, as there was no evidence to support that Garcia had a primary target in Delgado, Jr.’s car. (See also People v. Cardenas (2020) 53 Cal.App.5th 102, 113 [“[T]he Supreme Court has repeatedly explained that a kill zone instruction is never required.”].) The court also fully instructed the jury concerning the elements of attempted murder, including that an element of that crime is that the defendant harbored the specific intent to unlawfully kill another human being. The jury was not instructed that it could find Garcia guilty of the attempted murder of one person based on a finding that he intended to kill a different 27 person. The instructions given by the court were correct and unambiguous. Although the jury was instructed with the correct law, Garcia argues that he was prejudiced by the prosecutor’s purported misstatement of the law regarding the kill zone theory. As a preliminary matter, only the analogy to a bomb on a plane— the final sentence of the portion of the prosecutor’s argument identified by Garcia—appears to invoke the kill zone theory, though the prosecutor never refers to the theory by name. In the preceding sentences, the prosecutor appears to assert that, by firing repeatedly at the car at close range, Garcia demonstrated an intent to kill everyone in the car and did not need to have the intent to kill a specific individual among them. Separate and apart from the kill zone theory, our Supreme Court has recognized that “a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person.” (People v. Stone (2009) 46 Cal.4th 131, 140 (Stone).)7 The court explained that where a defendant sprays bullets at an occupied house, “simply to kill everyone who happened to be present, without any primary target,” the defendant may be convicted of attempted murder. (Ibid.) The 7 Garcia argues that that the kill zone theory does not depend on the defendant intending to kill an identifiable primary target, citing Stone. However, in Canizales, the Supreme Court rejected this precise argument and explained that the court in Stone “was not referring to the kill zone theory” when it made the observation that a specific target is not required to convict a defendant of attempted murder. (Canizales, supra, 7 Cal.5th at p. 608; see also People v. McCloud (2012) 211 Cal.App.4th 788, 802, fn. 6 [the kill zone theory and the Stone theory “are mutually exclusive”].) 28 Supreme Court observed “difficulties can arise . . . regarding how many attempted murder convictions are permissible” in such circumstances and cited Smith as an example of a case addressing how many convictions a shooting can support. (Ibid.) As discussed above, the evidence supports that Garcia fired at least three shots at the car at close range, including at two individuals in the same direct line of fire. Thus, under Stone and Smith, there was sufficient evidence of intent to kill all four individuals. We find no misstatement of law with respect to this portion of the argument. Turning to the prosecutor’s reference to the kill zone theory, the plane bombing example is consistent with the description of the theory in Canizales. The example identified a primary target (the pilot), the type and extent of force the defendant used (a bomb) support an inference is that the defendant intended to create a zone of fatal harm, and the alleged attempted murder victims (the passengers of the plane) were within that zone of harm. (See Canizales, supra, 7 Cal.5th at p. 607.) However, the prosecutor incorrectly characterized the defendant’s intent to kill the pilot as “transfer[ring]” to the passengers. “[T]he doctrine of transferred intent does not apply to attempted murder.” (People v. Bland (2002) 28 Cal.4th 313, 331.) A “defendant may be convicted of the attempted murders of any within the kill zone, although on a concurrent, not transferred, intent theory.” (Ibid.) In evaluating the degree of prejudice arising from a prosecutor’s misstatements of the law, courts may look to (1) whether the misstatements were fleeting or pervasive (People v. Cortez (2016) 63 Cal.4th 101, 133–134; People v. Otero (2012) 210 Cal.App.4th 865, 873); (2) whether the evidence of the 29 defendant’s guilt on the issue affected by the misstatement was close or overwhelming (People v. Fayed (2020) 9 Cal.5th 147, 205; Otero, at pp. 873–874; People v. Bryden (1998) 63 Cal.App.4th 159, 182); (3) whether other jury instructions obviated the effect of the error (Otero, at p. 873); and (4) whether the jury made other findings that necessarily indicate that the error had no effect (People v. Forrest (2017) 7 Cal.App.5th 1074, 1086). Here, the prosecutor’s misstatement of law was fleeting. Moreover, although the prosecutor used the term “transfer,” her example was in every other way consistent with a theory of concurrent intent. She did not argue, for example, that shooting a bullet with the intent to kill Person A and accidentally missing and shooting Person B is sufficient to support an intent to kill Person B. Moreover, to the extent that the prosecutor’s argument suggested that intent to kill could be transferred, it was not supported by the court’s instructions, which we presume the jury followed. Thus, even though Garcia’s guilt as to all four counts of attempted murder was not overwhelming,8 it is not reasonably 8 Garcia cites the jury’s request for a readback of Padilla’s testimony concerning the shooting at the car driven by Delgado, Jr. as supporting that the kill zone argument was prejudicial. Although a jury’s questions during deliberations can be instructive in assessing prejudice, a request for readback is not dispositive. (Canizales, supra, 7 Cal.5th at p. 617.) The request for readback here does support that the jury was focused on the issue of attempted murder. However, the readback request here is not as instructive on the jury’s mindset as the request in Canizales. There, the jury asked for testimony from one of the alleged murder victims “to the effect that ‘[t]hey weren’t shooting at me.’ ” (Ibid.) The alleged murder victim had testified, “ ‘To be honest, I don’t feel he was shooting at me . . . . But he was shooting our way.’ ” (Ibid.) Thus, both the request and the testimony read back to the jury went directly to the issue of whether the defendant had intent 30 probable that a result more favorable to Garcia would have been reached without the the prosecutor’s passing reference to a transfer of intent. Although Garcia frames his argument as being based on the prosecutor’s misstatement of the law, Garcia’s argument also seems to be that the prosecutor argued the kill zone theory in a case where it does not fit the facts, thus potentially misleading the jury. We agree that the analogy is an uneasy fit. The theory set forth in Stone and the kill zone theory are similar only in that both permit a fact finder to infer an intent to kill individuals who were not necessarily individually targeted by the defendant, based on the force used by the defendant. (See Canizales, supra, 7 Cal.5th at pp. 608–609.) Other than this high-level similarity, the plane bombing analogy is not pertinent. As we have stated, there was no evidence of a primary target in this case. Moreover, a revolver certainly does not have the same force or destructive power as a bomb. (Cf. People v. Perez, supra, 50 Cal.4th at p. 232 [kill-zone theory was inapplicable because shooting a single bullet was “not the equivalent of using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon”].) After Canizales, where a trial court has instructed the jury on the kill zone theory in the absence of the necessary evidentiary support, appellate courts have generally found to kill that specific victim. Although we agree that the request here may suggest that the jury did not find the evidence supporting the four counts of attempted murder to be overwhelming, it does not compel the conclusion that there was a reasonable probability of a more favorable result in the absence of the argument. 31 prejudicial error. (See, e.g., In re Lisea (2022) 73 Cal.App.5th 1041, 1056.) However, there is a significant difference between a court instructing a jury on a theory of law that does not fit the facts of the case and a prosecutor briefly arguing such a theory in her closing argument. “[A]lthough pertinent to the prejudice calculation, the arguments of counsel ‘are not to be judged as having the same force as an instruction from the court.’ ” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 586 (conc. opn. of Arabian, J.), quoting Boyde v. California (1990) 494 U.S. 370, 384–385.) The prosecutor here raised a hypothetical crime that she asserted was “kind of like” the circumstances present in this case. Unlike principles of law presented by the court, “[t]he jury was free to accept or reject that argument.” (People v. Dennis (1998) 17 Cal.4th 468, 548.) In light of the prosecutor’s wide latitude to comment on the state of the evidence (People v. Martinez, supra, 47 Cal.4th at p. 957), and to “ ‘ “vigorously argue [her] case” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819), and given the brevity of the prosecutor’s argument concerning the kill zone theory, we are not persuaded that the prosecutor committed prejudicial error in arguing the analogy. The circumstances present here are also distinguishable from those present in People v. Anzalone (2006) 141 Cal.App.4th 380, a case where, as here, the court did not instruct the jury on the kill zone theory but the prosecutor raised the theory in closing argument. In Anzalone, the defendant was prevented from stealing a car by the owner of the car, Che Love, and Love’s three friends. The defendant returned to the scene in his own car and fired a shot at Love, which hit Love’s car just above his head, and a second shot at the trunk of Love’s car, behind which Love’s friends were taking cover. (Id. at p. 384.) The prosecutor argued 32 that the evidence supported four convictions for attempted murder even though only two bullets were fired, stating: “Here is the way the law says it is. Something called the zone of danger. Anytime someone is within the zone of danger, whether it be one, two, three or twenty people, somebody indiscriminately shoots towards a crowd of people, everything in that zone of danger qualifies.” (Id. at p. 391.) The court in Anzalone concluded that the prosecutor’s argument concerning zone of danger was erroneous and misleading, as the prosecutor “did not explain what constitutes a ‘zone of danger’ or how such a zone relates to the element of intent” and “did not tell the jury that the zone is defined by the nature and the scope of the attack and that the attack must reasonably allow the inference that defendant intended to kill some primary victim by killing everyone in that primary victim’s vicinity.” (Id. at p. 392.) Although “the trial court did not err in the manner in which it instructed the jury concerning attempted murder,” the court of appeal concluded that “the prosecutor committed error when he misstated the law relevant to the definition of attempted murder.” (Id. at p. 393.) The court of appeal concluded that defense counsel had provided ineffective assistance when he failed to object to the prosecutor’s argument concerning the kill zone theory. (Id. at p. 395.) Although inapposite, the hypothetical presented by the prosecutor in this case was largely a correct statement of the kill zone theory. In contrast, in a case with closer facts than those present here, the prosecutor in Anzalone suggested that the law provides that anyone within a vague zone of danger is an attempted murder victim, regardless of how many bullets are fired. Further, the prosecutor here did not purport to be 33 instructing the jury on a new point of law when she raised the bombing analogy. In conclusion, viewing the challenged comments in the context of the prosecutor’s entire argument and the court’s instructions, we find no reasonable likelihood the jury construed or applied the prosecution’s challenged remarks in an objectionable fashion, and therefore reject Garcia’s claim of prosecutorial misconduct. We are also not persuaded that the prosecutor’s brief misstatement of law violated defendant’s federal constitutional right to due process, which would require us to determine whether the claimed error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) 2.4. Greenlighting Garcia contends that the prosecutor’s assertion in closing argument that Garcia and Ramos would “green light” Gonzalez— i.e., target him to be beaten or killed (See, e.g., People v. Arauz (2012) 210 Cal.App.4th 1394, 1399, fn. 2; People v. Sisneros (2009) 174 Cal.App.4th 142, 148)— for testifying against them was prejudicial and that defense counsel’s failure to request an admonition should be excused because it would have been futile. We conclude that an admonition would not have been futile. Even if we reached the merits, we would conclude that it is not reasonably probable that Garcia would have obtained a better outcome without the prosecutor’s reference to green lighting. 2.4.1. Additional Facts As discussed above, Gonzalez participated in the murder of Jurado and the attempted murders of the Delgados and Diaz. In the months after the murder and attempted murder, Gonzalez 34 spent more time with the Park View clique and learned about more things they had done. He decided to leave the city to get away from MS-13 and then left the state. In 2016, officers investigating the incident outside El Cafetal located Gonzalez in Utah. He decided to cooperate with officers and ultimately reached a plea agreement with the Los Angeles District Attorney’s Office. Pursuant to this agreement, in exchange for his truthful testimony in this and another case, Gonzalez’s sentence will be reduced from 25 years to life (second degree murder plus a ten-year gang enhancement) to 13 years determinate (manslaughter plus a 10 year gang enhancement). At trial, Gonzalez testified that he believed his life and the lives of his family were in danger because of his decision to testify. He stated that MS-13 often retaliates against family members and will kill a person who testifies against the gang if possible. Los Angeles Police Department Officer Tomas Perez, a gang expert, similarly testified that MS-13 harbors the view that people who cooperate with law enforcement will be retaliated against. He stated that the mindset of “snitches get stitches” is “how MS-13 perceives people who cooperate with the court system and police.” The court instructed the jury that it could not rely on evidence of gang activity to establish that Garcia “is a person of bad character or that he has a disposition to commit crimes.” The court also instructed the jury that the attorney’s statements were not evidence. In her closing argument, when discussing the risks Gonzalez took in testifying against members of MS-13, the prosecutor stated: “That still remains to be seen how [the plea agreement] will pan out for him; he had to come in here under 35 oath in a courtroom in front of you jurors and answer my questions under oath. And then he had to face these two defendants, these two MS-13 gang members. He has to face them and you better believe they are looking at him and green lighting him.” Defense counsel objected to the reference to greenlighting and the objection was sustained, but no admonition was requested. 2.4.2. Analysis As discussed above, a defendant may not complain on appeal of prosecutorial misconduct unless the defendant made a timely objection and requested that the jury be admonished to disregard the impropriety. This requirement is excused only if an objection would have been futile or an admonition would not have cured the harm. (Dykes, supra, 46 Cal.4th at p. 760.) Garcia argues that an admonition would have been futile because “the damage was done when the prosecutor accused [Garcia] and his co-defendant of plotting retaliation against Husky Gonzalez for his testimony against them” and that “no admonition ‘would have unrung this particular bell,’ ” citing People v. Johnson (1981) 121 Cal.App.3d 94, 104. “The ritual incantation that an exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462.) A defendant must identify evidence in the record to support the assertion that an admonition is futile. (Id. at p. 463.) Garcia has failed to do so. The circumstances in People v. Johnson, supra, 121 Cal.App.3d 94 are also distinguishable. There, the prosecutor claimed that the victim would have denied making an extortion demand to the defendant through his friend, despite there being no evidence that she would have done so, and stated that he had personally investigated the matter and believed that the 36 defendant’s friend had told “an outright lie.” (Id. at p. 102.) The court concluded that the prosecutor had not merely offered an interpretation of the testimony, but had instead asserted that he had direct, personal knowledge based on their conversation that the defendant’s friend was lying. (Id. at pp. 102–103.) Here, the prosecutor did not represent to the jury that she personally believed that Gonzalez was telling the truth, or that she knew, based on her own investigation, that the defendants had put a green light on Gonzalez. Based on Gonzalez’s and Officer Perez’s testimony, the prosecutor could properly raise the inference that the defendants or other members of MS-13 might seek to injure or kill Gonzalez for his cooperation with law enforcement. Although it may have been improper for the prosecutor to suggest that the defendants had or definitely would do so, we are not persuaded that an instruction could not have ameliorated any harm arising from this statement. Thus, the claim of prosecutorial misconduct as to this statement was not preserved. Even if we addressed this issue, we would not find it to be prejudicial. This assertion was made in the context of discussing Gonzalez’s credibility and the prosecutor made no further reference to green lighting in her closing argument, which comprises over 60 pages in the reporter’s transcript. The court also instructed the jury that the attorney’s statements were not evidence and that it could not rely on evidence of gang activity to establish that Garcia has a predisposition to commit crime. In light of these instructions, it was not reasonably probable that the jury would convict Garcia based on his membership in a gang known to violently retaliate against those who testify against it, 37 rather than a determination that he was guilty of the charged offenses. 2.5. Comment on Buck’s 911 Call Garcia contends that the prosecutor’s argument asking why Buck should not have called the police after she was threatened was improper because “[t]here was no suggestion that Ms. Buck did anything wrong by calling, or had no right to call the police” and that “the jurors would have taken this argument as urging them to take action against the defendants as a general way to fight back against community gang violence.” We find no error. 2.5.1. Additional Facts In her closing argument, while summarizing the evidence supporting the charge of a criminal threat against Buck, the prosecutor argued: “And she called 911 because why should the community have to put up with that kind of behavior? Everyone just get[s] bullied again and again and let it go? And it’s—” Defense counsel objected and the trial court overruled the objection. 2.5.2. Analysis “It is improper for the prosecutor to appeal to the passion and prejudice of the jury in closing argument during the guilt phase of trial.” (People v. Simington (1993) 19 Cal.App.4th 1374, 1378; see People v. Seumanu (2015) 61 Cal.4th 1293, 1342.) The prosecutor’s statements did not run afoul of this rule. The jurors could reasonably infer from the evidence that, when Garcia put a gun to Buck’s head, he was attempting to intimidate her and discourage her from interfering and speaking out. To the extent the prosecutor was also urging the jurors to 38 take a stand against gang members who would seek to intimidate victims from reporting misconduct, “the prosecutor’s comments were tantamount to comparing the jury to ‘ “the conscience of the community,” ’ a practice [the Supreme Court] ha[s] routinely upheld as proper.” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789.) Indeed, the prosecutor’s comments here appear less direct than those of the prosecutor in Holmes, who “urge[d] the jury to solve the social problems of gangs and violence by returning convictions,” which the Supreme Court found to be acceptable. (Ibid.) Even if the prosecutor’s arguments could be interpreted as an improper appeal for sympathy or juror action, there is no reasonable probability that a result more favorable to Garcia would have been reached if the court had sustained the objection and admonished the jury. Substantial evidence supports that Garcia threatened Buck with a gun. 2.6. Headline Finally, Garcia contends the prosecutor’s use of a headline referencing violence in America in her closing slides and her allusion to the impact of violence on the community generally were improper appeals to the passion and prejudice of the jury. We disagree and find no error. 2.6.1. Additional Facts As the prosecutor drew near the end of her argument, she reviewed the evidence of gang membership and gang violence relevant to the gang allegations. She then argued: “Just to bring this to a close, [the co-prosecutor] and I are prosecutors here in the State of California, and specifically here in Los Angeles. We work for the Los Angeles County District Attorney’s Office. And 39 this is a community. Lots of communities that are tired of gun violence, tired of gang violence. I was looking at news headlines recently and I saw this headline (indicating). What a sad state. What a sad view of our community. And so, having heard the evidence in this case and having heard the law that applies, we are asking you to find the defendants—hold them accountable and find them guilty. Thank you all for your time.” The court dismissed the jurors for a 15-minute break. After the jury left the courtroom, defense counsel objected to a slide the prosecutor displayed during the closing portion of her argument that included a headline reading, “Niger’s Government Asked the U.S. to Arm Its Drones. People Aren’t Sure They Like the Idea. I Know America, You Can Be Shot in Broad Daylight.” During an extended colloquy with counsel, the court repeatedly questioned the relevance of the headline to the case as it did not relate to MS-13 in particular or gang violence generally. Despite impassioned argument from counsel, the court overruled defendant’s objections. After the jury returned to the courtroom, and at defendant’s request, the prosecutor displayed the slide briefly while the court admonished the jury as follows: “There is a particular slide; it was utilized during the prosecutor’s argument. It is irrelevant to the issues in this case, and I am instructing you to disregard the information from that slide.” The court then directed the prosecutor to take the slide off the screen, which she did. 2.6.2. Analysis We conclude that the prosecutor did not improperly appeal to the passion and prejudice of the jury. First, as discussed above, to the extent that the article and the prosecutor’s accompanying argument was a call to the jury to 40 act as the conscience of the community, the Supreme Court has upheld such arguments as proper. (People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 789.) “ ‘It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.) The prosecutor’s comment about communities being tired of gun violence and gang violence relates to the widely acknowledged gang violence problem in Los Angeles, something surely within the general knowledge or common experience of jurors residing in this city. Second, with respect to the headline, the jury was instructed to disregard the offending slide because it was irrelevant. We presume the jury followed these instructions. (See, e.g., Avila, supra, 46 Cal.4th at p. 719.) Third, the prosecutor’s reference to the impact of violence on the community and her display of the headline were brief and unlikely to have influenced the jury to a significant degree. The transcript suggests that the comments and display of the headline lasted less than 30 seconds. Additionally, the statements about community violence were de minimis. The prosecutor’s lengthy closing argument focused on the evidence and the charges. The portion to which defendant objects comprises approximately one–half of one page in the transcript. (See People v. Anderson (2018) 5 Cal.5th 372, 415 [noting that “[t]o the extent the prosecutor’s language, ‘I believe with all my heart,’ could be viewed as invoking his personal prestige or depth of experience, the brief remark could not have been prejudicial”].) Finally, even if the prosecutor’s brief commentary was improper, there is no reasonable likelihood that the result would 41 have been different. (People v. Ayala (2000) 24 Cal.4th 243, 288.) Substantial evidence supports the jury’s verdicts and it is unlikely that the jurors would have focused on the headline, given that even the court struggled to understand the connection between the headline (relating to the use of armed drones in Niger) and the case before it. Further, as discussed above, the jury was instructed that the attorney’s statements were not evidence. We presume the jury heeded this admonition. (People v. Morales (2021) 5 Cal.4th 34, 47.) 2.7. Cumulative Effect “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Garcia argues that the cumulative prejudicial effect of the errors he has raised on appeal require reversal of the attempted murder convictions and special allegations. We conclude that any errors that did occur, whether viewed singly or in combination, are insufficient to warrant reversal of Garcia’s convictions. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056; People v. Pride (1992) 3 Cal.4th 195, 269.) 3. AB 333’s amendments to section 186.22 apply retroactively and require reversal of the gang and gang-related firearm enhancements. Effective January 1, 2022, AB 333 “amends section 186.22 to require proof of additional elements to establish a gang enhancement.” (People v. Lopez (2021) 73 Cal.App.5th 327, 343.) Specifically, AB 333 narrows the definition of “ ‘ “criminal street gang” ’ ” to “ ‘an[y] ongoing organization, association, or group of three or more persons, whether formal or informal, having as one 42 of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.’ [Citation.]” (Lopez, at p. 344.) AB 333 also “redefines ‘pattern of criminal gang activity’ to require that the last of the predicate offenses ‘occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed,’ and that the predicate offenses ‘were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.’ [Citation.]” (People v. Lopez, supra, 73 Cal.App.5th at p. 345.) “In addition, the currently charged offense cannot be used as a predicate offense under the amendments” made by AB 333. (Ibid.) Garcia contends, and the Attorney General agrees, that AB 333’s amendments to section 186.22 are retroactive to non-final judgments. The Attorney General also concedes that the proof offered at trial does not satisfy the requirements of AB 333. The prosecution relied on Gonzalez’s conviction for his participation in Jurado’s murder, one of the currently charged crimes, as a predicate offense to establish a pattern of criminal activity. Under section 186.22, subdivision (e)(2), that conviction can no longer be used as a predicate offense for proof of the “pattern of gang activity” required for a true finding on the enhancement. The Attorney General agrees with Garcia that there was no evidence that the prosecution’s other predicate offense commonly benefited a criminal street gang in a way that was more than reputational. Finally, the Attorney General concedes that the 43 gang-related firearm allegations found true in connection with the gang enhancements must also be vacated for insufficient evidence. (§ 12022.53, subd. (e)(1).) We accept these concessions. “We therefore conclude that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.” (People v. Lopez, supra, 73 Cal.App.5th at p. 346.) We also vacate the section 12022.53, subdivision (e) gang-related firearm enhancements. The allegations underlying those enhancements may be retried on remand. (See People v. Sek (2022) 74 Cal.App.5th 657, 669.)9 4. Garcia was not prejudiced by any failure to bifurcate the gang allegations. AB 333 also added section 1109, which requires that, if requested by the defense, a gang enhancement charged under section 186.22, subdivision (d) must be tried separately and only after a defendant’s guilt of the underlying offense has been established. Garcia contends that newly enacted section 1109 should be also applied retroactively and requires that we reverse the judgment in its entirety. The Attorney General argues that, in In re Estrada (1965) 63 Cal.2d 740, the California Supreme 9 Garcia also argued that the jury verdict and the abstract of judgment incorrectly listed the gang enhancement alleged in connection with the criminal threats charge as being pursuant to section 186.22, subdivision (b)(1)(C), rather than subdivision (b)(1)(B). Although the court correctly imposed the lesser five year sentence pursuant to subdivision (b)(1)(B), Garcia asked that the abstract of judgment be corrected to reflect an enhancement pursuant to subdivision (b)(1)(B). Because the gang enhancements must be vacated, this request is moot. 44 Court held that, absent evidence to the contrary, the Legislature intends amendments to statutes that reduce criminal punishment to apply to all cases not yet final on the amendments’ operative date. Because section 1109 governs only trial procedure and does not alter the substantive requirements of the gang enhancement, the Attorney General argues that it does not implicate the presumption of retroactivity set forth in Estrada and applies prospectively only. “The question of whether section 1109 applies retroactively is the subject of a split of authority among the Courts of Appeal.” (People v. Tran (2022) 13 Cal.5th 1169, 1239.) This Division is among those that have held that section 1109 applies prospectively only. (See People v. Perez (2022) 78 Cal.App.5th 192, 207.) However, the Supreme Court expressly declined to resolve the split of authority in Tran because “any asserted error in failing to bifurcate was harmless.” (Tran, at p. 1239.) We need not address the retroactivity of section 1109 here because, even assuming it applies retroactively, it is not reasonably probable that Garcia was prejudiced by any failure to bifurcate the gang allegations. (See People v. Tran, supra, 13 Cal.5th at p. 1240 [applying the People v. Watson (1956) 46 Cal.2d 818 standard for state-law error].) Gang evidence in this case was highly relevant to the issues of motive and intent. “[N]othing in Assembly Bill [No.] 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges.” (People v. Ramos (2022) 77 Cal.App.5th 1116, 1132.) Much of the gang evidence would have been properly admitted, even in a bifurcated proceeding, given its relevance to the substantive charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050 [gang 45 evidence often relevant to and admissible regarding the charged offense]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167– 1168 [gang evidence is relevant and admissible when the motive is gang related; evidence related to gang membership not insulated from general rules applicable to relevant evidence].) In addition, the jury was instructed as to the limited purposes for which it could consider the gang evidence, and we presume the jury followed that instruction. (People v. Franklin (2016) 248 Cal.App.4th 938, 953.) We conclude the failure to bifurcate the gang allegations was not prejudicial and does not require reversal of the judgment in its entirety. We also conclude that the failure to bifurcate did not violate Garcia’s federal constitutional right to due process, which would require us to determine whether the claimed error was harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18. Accordingly, any error in failing to bifurcate the allegations was harmless. 46 DISPOSITION The true findings on the gang and gang-related firearm allegations under section 186.22 and section 12022.53, subdivision (e), are reversed and Garcia’s sentence is vacated. The matter is remanded to provide the People an opportunity to retry the allegations under the law as amended by Assembly Bill No. 333. At the conclusion of any retrial on remand, or if the People elect not to retry the allegations, the court shall resentence Garcia in a manner consistent with this opinion. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS LAVIN, J. WE CONCUR: EDMON, P. J. EGERTON, J. 47	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484731/	Filed 11/17/22 Medical Staff of St. Mary etc. v. St. Mary Medical Center CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN MEDICAL STAFF OF ST. MARY B316601 MEDICAL CENTER, (Los Angeles County Plaintiff and Appellant, Super. Ct. No. 20STCP01915) v. ST. MARY MEDICAL CENTER, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff. Affirmed. Theodora Oringher, Anthony F. Witteman, Adam G. Wentland, and Michelle Monroe for Plaintiff and Appellant. Jamie Ostroff and Charlotte M. Tsui for California Medical Association as Amicus Curiae on behalf of Plaintiff and Appellant. Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld, Joanna S. McCallum, and Craig S. Rutenberg for Respondent. ArentFox Schiff, Lowell C. Brown, Annie Chang Lee, and Man Him Joshua Chiu for California Hospital Association as Amicus Curiae on behalf of Defendant and Respondent. ___________________________ INTRODUCTION “Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to patients at the hospital.” (El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 983.) This appeal arises from a dispute between these two structural elements of St. Mary Medical Center (the Hospital) and the scope of each element’s respective authority. After new leadership at the Hospital declined to make changes to the peer review process and solicited proposals for new exclusive contracts for several departments, the Hospital’s medical staff (the Medical Staff) filed a petition for writ of mandate to prevent the Hospital from allegedly violating the independence and bylaws of the Medical Staff. The trial court ruled the Medical Staff failed to exhaust its administrative remedies for certain aspects of the dispute and failed to identify a ministerial duty to support the relief sought. The Medical Staff does not effectively challenge the trial court’s finding it failed to exhaust its administrative remedies, which proves fatal to all but one of the Medical Staff’s arguments 2 on appeal. Because the Medical Staff also failed to identify a ministerial duty to support its remaining challenge to the trial court’s ruling, we affirm. FACTUAL AND PROCEDURAL BACKGROUND A. A Dual Management Structure Governs St. Mary Medical Center Dignity Health owns and operates the Hospital. The Dignity Health Board is the governing board of the Hospital and has final authority over, and responsibility for, the operations of the Hospital. (See Cal. Code Regs., tit. 22, § 70035.) The Dignity Health Board created a Hospital Community Board (HCB) with “final authority to approve all hospital policies and procedures for hospital services . . . where such approval is required of a governing body by law, regulation or accrediting body.” The HCB’s authority, however, is actually not so “final.” The Dignity Health Board may exercise the HCB’s approval rights by giving notice to the HCB, and “in such case, the referenced policies and procedures shall be deemed approved by the [HCB].”1 The bylaws of the HCB make the HCB responsible for matters concerning the Medical Staff to the extent the Dignity Health Board delegates such authority to the HCB. The HCB bylaws provide the Medical Staff “shall develop and adopt Medical Staff Bylaws and review its Medical Staff Bylaws 1 The Medical Staff argued in the trial court that the Hospital’s “governing body” was the HCB. The trial court disagreed and found the Dignity Health Board was the Hospital’s governing body. The Medical Staff does not challenge that finding. 3 periodically. The Medical Staff shall submit its approved Medical Staff Bylaws and any needed and approved revisions to the [HCB] (or the body otherwise designated by the Dignity Health Board for approval), which approval shall not be unreasonably withheld . . . . The Dignity Health Board may, by notice to the [HCB], elect to exercise the approval rights of the [HCB] under this Section.” The medical staff of a hospital “is a separate legal entity from the hospital” (Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 1114) and is “responsible for the adequacy and quality of the medical care rendered to patients in the hospital” (Mileikowsky v. West Hills Hosp. (2009) 45 Cal.4th 1259, 1267). Business & Professions Code section 2282.5 (section 2282.5), subdivision (a), provides the medical staff’s “right of self- governance” includes establishing standards for medical staff membership and privileges; establishing standards to oversee and manage quality assurance; and initiating, developing, and adopting medical staff bylaws, rules, regulations, and amendments, “subject to the approval of the hospital governing board, which approval shall not be unreasonably withheld.” (See Cal. Code Regs., tit. 22, § 70703, subd. (b).) California law further requires medical staff bylaws to “provide formal procedures for the evaluation of staff applications and credentials, appointments, reappointments, assignment of clinical privileges, appeals mechanisms and such other subjects or conditions which the medical staff and governing body deem appropriate.” (Mileikowsky, at p. 1267; see Cal. Code Regs., tit. 22, §§ 70701, 70703.) The bylaws the Medical Staff adopted permit only members of the Medical Staff (or practitioners granted a temporary 4 appointment) to provide medical services to patients at the Hospital. In general, the Hospital enters into exclusive contracts with physician groups for services that require around-the-clock physician availability. The contracts are exclusive in the sense that only physicians affiliated with the contracted group may provide services to patients as members of the Medical Staff. Section 4.8.4 of the Medical Staff’s bylaws provides that the expiration or termination of an exclusive contract “will result in the automatic termination of [an affiliated practitioner’s] membership and privileges,” unless otherwise stated in the contract. The bylaws give the Medical Staff authority to “review and make recommendations to the [HCB] regarding quality of care issues related to medical service arrangements for physician and/or professional services, prior to any decision being made” to execute, renew, modify, or terminate a medical service contract in a particular department. The Medical Executive Committee, which is comprised of members of the Medical Staff, represents the Medical Staff in dealings with the HCB. Section 10.4 of the Medical Staff’s bylaws creates a dispute resolution mechanism for “[a]ll disputes between the Governing Board/Administration and the Medical Staff . . . relating to the Medical Staff’s rights of self-governance as set forth in [section] 2282.5.” Under section 10.4 the parties must resolve disputes through an ad hoc dispute resolution committee, and neither party may initiate any legal action related to the dispute until the committee completes its efforts to resolve the dispute. 5 B. The Hospital’s Chief Executive Officer Creates a Physician Advisory Council and Invites Proposals for New Contracts in the Anesthesiology, Radiology, and Emergency Departments Carolyn Caldwell became the chief executive officer of the Hospital in June 2017. In December 2018 leaders of the Medical Staff, including Chief of Staff Dr. Douglas McFarland and Vice Chairperson Dr. Laura Russell, met with Caldwell to discuss changes to the Hospital’s peer review process. According to Dr. McFarland, Caldwell refused to make the requested changes, and two weeks later, Caldwell created a new entity, the Physician Advisory Council, to advise the Hospital on matters such as “physician engagement, quality measures, performance expectations, and strategic goals to address the growing health care needs in the community.” Caldwell characterized the Physician Advisory Council as “an administrative, not Medical Staff, committee.” The Medical Staff asserted, however, that its bylaws gave the Medical Executive Committee exclusive authority to represent the Medical Staff on such matters and that the Physician Advisory Council “was not an authorized committee of the Medical Staff.” According to Caldwell, she is authorized on behalf of the Hospital to approve exclusive contracts with groups of physicians. Exclusive contracts in the anesthesiology, radiology, and emergency departments were scheduled to expire in 2019 and 2020. Because the Hospital had not considered alternative providers of anesthesiology services since 2011, Caldwell informed the existing anesthesiology group and Dr. McFarland that the Hospital would issue a request for proposal (RFP) and consider proposals from the existing group and any other 6 anesthesiology practice. Ending the Hospital’s relationship with the existing anesthesiology group would effectively terminate the privileges of that group’s members, including Dr. Russell, under the terms of section 4.8.4 of the Medical Staff bylaws. On February 5, 2019 Caldwell informed the Medical Executive Committee of the RFP for anesthesiology services and invited members of the Medical Executive Committee to attend a presentation from five contenders for the contract. The same day, Dr. McFarland sent a letter to the HCB on behalf of the Medical Executive Committee asking for a dispute resolution committee to address: (1) the administration’s refusal to discuss the Hospital’s “sources of clinical services”; (2) the administration’s retaliation against Medical Staff leaders’ “advocacy for improved patient protection and peer review policies”; and (3) the administration’s interference with the Medical Staff’s right to select its leadership by terminating existing contracts. The Medical Executive Committee asked the Hospital to renew the existing contracts until the parties could resolve the dispute, and Dr. McFarland informed the HCB that the Medical Executive Committee had voted to suspend enforcement of section 4.8.4 of the Medical Staff bylaws. The HCB denied the request for a dispute resolution committee because, according to the HCB, the dispute concerned “group physician contracts,” not the Medical Staff’s rights to self- governance under section 2282.5. The HCB, however, invoked a meet-and-confer process established by the organization that accredited the Hospital. An interdisciplinary panel considered presentations from five anesthesiology groups at a meeting attended by a Medical Executive Committee officer. On February 21, 2019 the Medical 7 Executive Committee recommended to the HCB that the Hospital continue the existing contracts with the anesthesiology, radiology, and emergency services groups. Several days later the Medical Executive Committee met with the HCB and representatives from the administration to attempt to resolve the dispute concerning the contracts. According to Caldwell, the Hospital considered the Medical Executive Committee’s recommendation to maintain the existing providers, but a consensus of the interdisciplinary panel decided to award the anesthesiology contract to a new group that “could meet the Hospital’s needs better than the existing group.” Although the expiration of the previous group’s contract initially ended Dr. Russell’s privileges at the Hospital, the new anesthesiology group offered positions to all physicians affiliated with the prior anesthesiology group, including Dr. Russell, and she eventually rejoined the Hospital as an anesthesiologist with the new group. The Hospital had not conducted an RFP for the radiology services contract for over 65 years, and the existing contract was scheduled to expire in October 2019. In July 2019 Caldwell informed the Medical Staff that she intended to issue an RFP for radiology, and in August 2019 a panel including a representative from the Medical Executive Committee reviewed proposals from three radiology groups. Caldwell asked the Medical Executive Committee for its recommendation by the middle of August, but because the Medical Executive Committee was “dark” in August and could not vote on a recommendation, the Medical Executive Committee referred Caldwell to its February 2019 recommendation to retain the existing provider. The panel selected a new group, and all but one of the physicians affiliated 8 with the previous contractor became affiliated with the new contractor and retained their clinical privileges. The Hospital’s emergency services contract was scheduled to expire in June 2020, and the Hospital had not conducted an RFP proposal for that contract since 2009. In February 2020 Caldwell informed the head of the existing group that she intended to initiate an RFP. In March 2020 three groups, including the existing emergency services group, made presentations to a panel that included members of the Medical Executive Committee. Based on feedback from the panelists, the Hospital awarded the emergency services contract to a new group. Dr. McFarland, who had been affiliated with the former emergency services provider, did not join the new group, but 21 of the former provider’s 27 physicians did. C. The Medical Staff Proposes Amendments to Its Bylaws In April 2019, after the Hospital awarded the anesthesiology contract to a new group, the Medical Executive Committee proposed 22 amendments to the Medical Staff bylaws. Two of the amendments would have changed section 4.8.4 dealing with exclusive contracts to allow practitioners whose group contract expired or was terminated to apply for Hospital privileges and to allow officers of the Medical Staff to serve in an administrative capacity for up to one year if the contract for the group to which they belonged expired or was terminated. Caldwell concluded many of the proposed amendments were “vague or unclear,” and the Hospital and the Medical Executive Committee agreed to form a committee to resolve their differences. According to Caldwell, counsel for the Hospital and 9 the Medical Executive Committee met and conferred and resolved disputes regarding 10 of the 22 amendments, but Dr. McFarland nevertheless submitted all 22 of the original proposed amendments to the Medical Staff, which apparently approved them. On July 25, 2019 the Medical Staff submitted the 22 proposed amendments to the HCB for approval. As stated, the Medical Staff bylaws provide that amendments submitted to the HCB are “deemed approved” if the HCB does not act on them within 60 days and that the HCB may not unreasonably withhold its approval. Also on July 25, 2019 the Dignity Health Board notified the Medical Executive Committee that it had rescinded the authority of the HCB to approve the proposed amendments and had appointed a subcommittee that included two HCB members to consider them. On September 19, 2019 the Dignity Health Board sent a letter to the Medical Executive Committee stating the Board had approved five of the proposed amendments, sent seven of them back for clarification or additional information, and rejected 10 of them. The letter explained why the Board did not approve the 10 rejected proposals. According to the chief executive officer of Dignity Health, each of the rejected amendments “in one way or another compromised the authority and responsibility vested in the Dignity Health Board as the governing body, licensee, owner and operator of the Hospital.” In December 2019 the Medical Staff requested an ad hoc dispute resolution committee pursuant to section 10.4 of the Medical Staff bylaws to resolve issues involving 19 of the proposed amendments. The committee met on June 16, 2020 and agreed on a process to review each disputed amendment. At the 10 end of the meeting the committee agreed to reconvene shortly, but that same day the Medical Staff filed this action in superior court. D. The Medical Staff Files a Petition for Writ of Mandate Seeking Mandamus, Injunctive, and Declaratory Relief The Medical Staff filed a petition for writ of mandate against the Hospital seeking a writ of mandate under Code of Civil Procedure section 1085, injunctive relief, and declaratory relief. The Medical Staff alleged, among other things, the Hospital “terminated” the emergency services contract “as a vehicle for further eroding the ability of the physicians at [the Hospital] to provide independent, patient-centered, quality healthcare to their patients and further eliminating from Medical Staff leadership positions physicians who advocate against the Hospital on issues relating to patient care and Medical Staff self- governance.” The Medical Staff claimed section 2282.5 gave it authority for “‘front line’ oversight of the quality of health care delivered in the Hospital.” Specifically, the Medical Staff alleged the Hospital failed to give appropriate weight to the Medical Staff’s recommendations on group contracts, improperly usurped the HCB’s authority to approve amendments to the Medical Staff’s bylaws and blocked reasonable changes to the bylaws, eroded the Medical Staff’s authority by creating the Physician Advisory Council, and violated the terms of a 2018 agreement between the Hospital and the California Attorney General. According to the Medical Staff, that agreement required the Hospital to maintain “privileges for current medical staff at [the Hospital] who are in good standing 11 as of the closing date” and to retain the “medical staff officers, committee chairs, [and] independence of the medical staff . . . for the remainder of their tenure at [the Hospital].” The Medical Staff claimed the agreement also required the Dignity Health Board to consult with the HCB “prior to making changes to medical services . . . at least sixty days prior to the effective date of such changes . . . .” The Medical Staff also alleged it had exhausted its administrative remedies because further attempts to meet and confer with the Hospital about these disputes were futile. In its first cause of action for a writ of mandate, the Medical Staff alleged the Hospital had a “clear ministerial duty to comply with the [Medical Staff] Bylaws, which require [the Hospital] to consult meaningfully with, and to obtain the informed advice of, the [Medical Executive Committee], giving its findings on quality of care ‘great weight’ in its decision to terminate the existing [emergency room (ER)] Group and 40-year old relationship, initiating an RFP process, and selecting a new ER group.” The Medical Staff alleged the following actions were violations of that ministerial duty: (1) “the Hospital’s announced termination of the ER Group”; (2) “the initiation of the RFP process, and selection of the new ER Group without meaningful prior consultation with, and advice of, the [Medical Executive Committee]”; (3) Caldwell’s “unilateral creation” of the Physician Advisory Council; (4) the Hospital’s “unilateral elimination of the [HCB’s] sole authority for approving Bylaw amendments”; and (5) the Hospital’s “wholesale disregard” of the Medical Staff’s bylaws, even though the Hospital had “agreed to be bound” by them. 12 The Medical Staff asked the court to issue a writ of mandate ordering the Hospital to (1) “Restore the [HCB’s] sole role in approving Bylaw amendments”; (2) “Maintain the existing make-up of the Medical Staff and its [Medical Executive Committee]”; (3) Disband the Physician Advisory Council; (4) “Solicit and obtain the meaningful consultation and advice of the [Medical Executive Committee] before terminating any additional exclusive contracts and give the [Medical Executive Committee]’s review and recommendation great weight in making such a decision”; (5) “Solicit and obtain the meaningful review and recommendation of the [Medical Executive Committee] before initiating any future RFP process”; and (6) “Comply with all requirements of the Medical Staff Bylaws pertaining to the Medical Staff’s rights and duties for oversight of the quality of patient care at the Hospital and for the Medical Staff’s self-governance.” In its second cause of action for injunctive relief, the Medical Staff sought an injunction under sections 526 and 527 of the Code of Civil Procedure to restrain conduct that allegedly violated the Hospital’s ministerial duties. The Medical Staff alleged it was likely to prevail on the merits because the Hospital had a ministerial duty, as alleged in the first cause of action, and the Hospital’s conduct as alleged violated that duty. The Medical Staff also alleged it would suffer irreparable harm if the court did not issue a preliminary injunction because the Hospital would “continue to pursue its ‘campaign to neuter the Medical Staff by undermining its independence through . . . the elimination of key members.’” The Medical Staff sought a preliminary and permanent injunction to restrain the Hospital from (1) “Violating the terms of [the Medical Staff’s] Bylaws in their entirety and as 13 deemed approved”; (2) “Violating the terms of the Agreement with the [Attorney General]”; (3) “Preventing the [HCB] from carrying out its Bylaw amendment function”; (4) “Terminating and/or entering into any contract for professional services without first obtaining the review and recommendation of the [Medical Executive Committee] and giving great weight to that recommendation”; and (5) “Maintaining the current make-up of the Medical Staff and its [Medical Executive Committee].” The Medical Staff’s third cause of action for declaratory relief alleged there was an actual and present controversy regarding whether the proposed amendments to the bylaws must be “deemed approved” by the HCB pursuant to the Medical Staff’s bylaws. The Medical Staff sought a judicial declaration that (1) the HCB did not act on the proposed amendments to the bylaws within 60 days; (2) the proposed amendments were “deemed ‘approved’” by operation of the bylaws; and (3) even if the 60-day period did not lapse, the HCB “was required to consent to the Bylaw changes because withholding consent would have been unreasonable.” The Hospital opposed the petition for writ of mandate and argued the Medical Staff did not identify any ministerial duties that would support a writ of mandate. The Hospital argued that it did not have a ministerial duty to approve the proposed amendments to the Medical Staff’s bylaws or to follow the Medical Staff’s recommendations on exclusive contracts, that the Medical Staff lacked standing to enforce the Hospital’s obligations to the Attorney General, that the Medical Staff did not submit any evidence the Physician Advisory Council exercised the authority of the Medical Staff, and that the Medical Staff failed to exhaust its administrative remedies. The Hospital 14 also argued the Medical Staff’s causes of action for injunctive and declaratory relief were “untethered to a cognizable claim” and lacked merit. The Medical Staff’s reply brief relied heavily on section 2282.5, subdivision (c), which states: “With respect to any dispute arising under this section, the medical staff and the hospital governing board shall meet and confer in good faith to resolve the dispute. Whenever any person or entity has engaged in or is about to engage in any acts or practices that hinder, restrict, or otherwise obstruct the ability of the medical staff to exercise its rights, obligations, or responsibilities under this section, the superior court of any county, on application of the medical staff, and after determining that reasonable efforts, including reasonable administrative remedies provided in the medical staff bylaws, rules, or regulations, have failed to resolve the dispute, may issue an injunction, writ of mandate, or other appropriate order.” The Medical Staff argued: “Whether labeled an ‘injunction,’ ‘writ of mandate,’ or ‘declaratory relief,’ certainly the Court has the power to issue some sort of edict to protect and enforce the Medical Staff’s rights in section 2282.5.” In the context of section 2282.5, the Medical Staff identified its rights to select and remove medical staff officers (§ 2282.5, subd. (a)(3)) and to initiate, develop, and adopt medical staff bylaws, rules, regulations, and amendments, subject to the approval of the hospital governing board, approval of which the hospital could not unreasonably withhold (id., subd. (a)(6)). The Medical Staff argued the Hospital violated these and other rights under section 2282.5 and suggested section 2282.5 authorized a writ of mandate to remedy such violations even in the absence of a ministerial duty. 15 The Medical Staff argued in the alternative the Hospital had ministerial duties “not to withhold approval of the proposed bylaw amendments” and to comply with the Medical Staff’s bylaws. The Medical Staff argued its bylaws required the Hospital, among other things, to acknowledge only the HCB had authority to approve or reject proposed amendments to the Medical Staff bylaws, approve the proposed amendments, meaningfully consult with the Medical Staff about contracting decisions, and disband the Physician Advisory Council. The Medical Staff reiterated its assertion the Hospital violated the terms of an agreement with the Attorney General and argued it was “at least a third party beneficiary” of that agreement. Finally, the Medical Staff argued it made reasonable efforts under section 2282.5 to resolve its disputes with the Hospital, including by engaging in “extensive meet and confer efforts” and attempting to invoke the ad hoc dispute resolution committee. The Medical Staff contended the Dignity Health Board “dragged out the [dispute resolution process] until June 2020—long enough to accomplish its goal of unilaterally terminating the Anesthesiology, Radiology, Emergency Services, and other longstanding hospital groups.” The Medical Staff also argued that it exhausted its administrative remedies under the bylaws and that additional meet-and-confer efforts would have been futile. The Medical Staff based its request for injunctive and declaratory relief on section 2282.5. 16 E. The Trial Court Denies the Medical Staff’s Petition for Writ of Mandate and Related Requests for Injunctive and Declaratory Relief The trial court denied the Medical Staff’s petition for writ of mandate and related requests for injunctive and declaratory relief. The court, after observing the Medical Staff had identified section 2282.5 as “authority for a writ of mandate” for the first time in its reply brief, went on to address the merits of the Medical Staff’s assertion section 2282.5 supplanted the requirements for a writ of mandate under Code of Civil Procedure section 1085. The court stated that the Medical Staff had not cited any authority for the proposition Code of Civil Procedure section 1085 did not apply to the Medical Staff’s “self-governance claim” and that the Medical Staff’s “reliance on alleged violations of [section 2282.5] without regard to the requirements of [Code of Civil Procedure section 1085] does not entitle it to writ relief.” Thus, the court concluded, the Medical Staff had to show a “clear and present duty” that is “‘unqualifiedly required.’” The court found, however, the Medical Staff had not shown there was any such duty. The court first ruled the Hospital did not have a ministerial duty to approve or comply with the proposed amendments to the Medical Staff bylaws. The court concluded that the relevant provisions of the bylaws of the Medical Staff, the HCB, and the Hospital gave the Hospital discretion to accept or reject the proposed amendments and that the Medical Staff did not allege the Hospital acted arbitrarily or capriciously in exercising that discretion. The court also ruled the Medical Staff’s failure to show the Hospital had a ministerial duty to approve or comply with the proposed amendments precluded the Medical Staff’s request for an order requiring the 17 Hospital to maintain the composition of the Medical Staff before the Hospital entered into exclusive contracts with new provider groups. The court also denied mandamus relief based on the proposed amendments to the Medical Staff’s bylaws because the court found the Medical Staff failed to exhaust its administrative remedies to resolve the dispute over the bylaws. The court stated the Medical Staff “commenced the internal administrative remedy but provide[d] no evidence it completed the [ad hoc dispute resolution committee] process as to [the Medical Staff’s] proposed Bylaw amendments.” Regarding the Medical Staff’s request for an order requiring the Hospital to disband the Physician Advisory Council, the trial court stated the Medical Staff identified no legal authority supporting such relief, “pursuant to a non-discretionary ministerial duty or otherwise.” The court also found the Medical Staff failed to show the Hospital gave the Physician Advisory Council authority to represent the Medical Staff, which the Medical Staff claimed would violate its bylaws. Regarding the Medical Staff’s request for an order directing the Hospital to “obtain the meaningful consultation and advice” from the Medical Staff in connection with the RFP process and in selecting providers, the court stated the Medical Staff had expanded its claim by arguing in its brief in support of the petition the Hospital “ignore[d],” as opposed to merely failed to consider, the Medical Staff’s unanimous recommendations. The court found the Hospital did not have a ministerial duty “to accept (as opposed to consider)” the Medical Staff’s recommendations. The court also found the Medical Staff’s bylaws gave the Medical Staff a right to review and make 18 recommendations about “medical service arrangements,” but not the RFP process. The court denied the Medical Staff’s request for relief based on the Hospital’s agreement with the Attorney General because the claim arose from an alleged breach of contract, which does not support relief in mandamus. The court also found it was unlikely the Medical Staff was a third party beneficiary of that agreement because “it does not appear [the Hospital] or the Attorney General intended to benefit [the Medical Staff] as opposed to the public generally.” The court transferred the Medical Staff’s remaining claim not based on Code of Civil Procedure section 1085, which requested a declaration “‘the [HCB] was required to consent to the Bylaw changes because withholding consent would have been unreasonable,’” to the supervising judge of the civil department for assignment to an individual calendar courtroom. The Medical Staff dismissed its remaining cause of action for declaratory relief without prejudice, and the trial court entered judgment for the Hospital. The Medical Staff timely appealed. DISCUSSION The Medical Staff states it never contended section 2282.5 supplanted Code of Civil Procedure section 1085’s requirements for a writ of mandate. Therefore, we assume the Medical Staff agrees with the trial court’s conclusion (and governing law) that to obtain a writ of mandate the Medical Staff had to comply with the requirements of Code of Civil Procedure section 1085, including that it had no adequate alternative remedy and that 19 the Hospital had a clear and present ministerial duty. The Medical Staff failed to satisfy these requirements.2 A. Applicable Law and Standard of Review Traditional mandamus is available “to enforce a nondiscretionary duty to act on the part of a court, an administrative agency, or officers of a corporate or administrative agency.” (Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93 Cal.App.4th 607, 618; see Code Civ. Proc., § 1085, subd. (a) [a writ of mandate may compel “a corporation, board, or person” to perform “an act which the law specially enjoins”]; Pacifica Firefighters Assn. v. City of Pacifica (2022) 76 Cal.App.5th 758, 765 [mandamus may be “‘sought to enforce a nondiscretionary duty to act on the part of . . . officers of a corporate or administrative agency’”].) “To obtain relief, a petitioner must demonstrate (1) no ‘plain, speedy, and adequate’ alternative remedy exists [citation]; (2) ‘a clear, present, . . . ministerial duty on the part of the respondent’; and (3) a correlative ‘clear, present, and beneficial right in the petitioner to the performance of that duty.’” (People v. Picklesimer (2010) 48 Cal.4th 330, 340; accord, Rutgard v. City of Los Angeles (2020) 52 Cal.App.5th 815, 824.) A petitioner seeking traditional mandamus “‘“must first invoke and exhaust the remedies provided by that organization applicable to his grievance.”’” (Eight Unnamed Physicians v. 2 The Medical Staff also argues the trial court erred in relying on the Medical Staff’s failure to make this argument in its petition or its opening brief in the trial court. As discussed, however, the trial court rejected the Medical Staff’s argument under section 2282.5 on the merits. 20 Medical Executive Com. (2007) 150 Cal.App.4th 503, 511; see Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, supra, 93 Cal.App.4th at pp. 619-620.) The exhaustion requirement “‘speaks to whether there exists an adequate legal remedy. If an administrative remedy is available and has not yet been exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary relief.’” (Eight Unnamed Physicians, at p. 511; see City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 235; Unnamed Physician, p. 620.) “‘[A]n administrative remedy is exhausted only upon “termination of all available, nonduplicative administrative review procedures.”’” (Trejo v. County of Los Angeles (2020) 50 Cal.App.5th 129, 148; see City of Oakland, at p. 235.) A ministerial act is an act that must be performed “‘“in a prescribed manner in obedience to the mandate of legal authority and without regard to [one’s] own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.”’” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279; see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1082.) “Mandate will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.” (Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, supra, 93 Cal.App.4th at p. 618.) “When an appellate court reviews a trial court’s judgment on a petition for a traditional writ of mandate, it applies the substantial evidence test to the trial court’s findings of fact and independently reviews the trial court’s conclusions on questions of law.” (California Public Records Research, Inc. v. County of 21 Stanislaus (2016) 246 Cal.App.4th 1432, 1443; accord, CV Amalgamated LLC v. City of Chula Vista, supra, 82 Cal.App.5th at p. 280; Trejo v. County of Los Angeles, supra, 50 Cal.App.5th at p. 140.) “Whether there is a ‘“plain, speedy and adequate remedy, in the ordinary course of law”’ . . . usually is regarded as a question of fact that requires an evaluation of the circumstances of each particular case.” (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 414.) We review de novo whether the respondent had a ministerial duty capable of direct enforcement because that determination requires interpretation of the legal authority for the duty. (See CV Amalgamated LLC, at p. 280; Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 754-755.) B. The Medical Staff Had an Alternative Remedy for the Dispute over the Contested Bylaw Amendments 1. The Medical Staff Does Not Challenge the Trial Court’s Finding the Medical Staff Failed To Exhaust Its Administrative Remedies As stated, the trial court found the Medical Staff did not exhaust its administrative remedies regarding the dispute over the proposed amendments to the Medical Staff bylaws. The trial court also found the dispute resolution process established by section 10.4 of the Medical Staff bylaws “provided [the Medical Staff] with a plain, speedy and adequate remedy as to [the Hospital’s] rejection of [the Medical Staff’s] proposed bylaws.” In its opening brief, the Medical Staff does not argue substantial evidence did not support those findings. The Hospital appropriately contends the trial court’s findings are “binding” 22 and provide a basis to affirm the trial court’s rulings on the proposed amendments. In its reply brief, the Medical Staff asserts it argued in the trial court and in its opening brief on appeal it took “reasonable efforts to avail itself of the administrative remedies offered in the [Medical Staff] Bylaws and why those efforts were futile.” What the Medical Staff argued in the trial court is not relevant to the arguments the Medical Staff makes on appeal (except to show the argument is preserved), and nowhere in its opening brief did the Medical Staff argue substantial evidence did not support the trial court’s finding the Medical Staff failed to exhaust its administrative remedies regarding the proposed amendments. In the statement of facts section of its opening brief,3 the Medical Staff asserts Dr. McFarland wrote to the HCB “requesting that the present dispute be resolved by resorting to the dispute resolution process contained in the Medical Staff’s Bylaws.” The letter the Medical Staff cites, however, concerned the dispute over the clinical services contracts, not the proposed bylaw amendments. The Medical Staff did not address in its opening brief or in its reply brief the facts underlying the trial court’s finding the Medical Staff failed to exhaust its administrative remedies regarding the dispute over the proposed bylaw amendments. In particular, the trial court cited a declaration from a member of the HCB, who was also a member of the dispute resolution committee convened to address the bylaw amendment dispute, who said the committee’s work had 3 The Medical Staff’s reply brief cites page 161 of its opening brief. There is no such page. We assume the Medical Staff intended to cite page 16. 23 just begun on the day the Medical Staff filed its petition for writ of mandate.4 To the extent the Medical Staff does not challenge the trial court’s findings that the Medical Staff did not exhaust its administrative remedies and that the Medical Staff’s bylaws provided a plain, speedy, and adequate alternative remedy, the Medical Staff has failed to demonstrate the trial court erred in denying the petition for writ of mandate based on the proposed amendments to the bylaws. (See City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th 1359, 1388-1389 [appellant conceded the trial court’s factual findings by failing to challenge them on appeal].) To the extent the Medical Staff challenged those findings on appeal for the first time in its reply brief, the Medical Staff has forfeited the argument. (See Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428 [appellant who challenged factual findings for the first time in its reply brief forfeited the argument substantial evidence did not support the findings].) And even if the Medical Staff did not forfeit the argument by failing to raise it in its opening brief on appeal, the Medical Staff failed to “set forth, 4 Thus, the Medical Staff also failed to comply with the dispute resolution procedure of its bylaws, which is a prerequisite to relief under section 2282.5. As stated, that statute authorizes a trial court to issue an injunction, writ of mandate, or other appropriate order only “after determining that reasonable efforts, including reasonable administrative remedies provided in the medical staff bylaws, rules, or regulations, have failed to resolve the dispute.” (§ 2282.5, subd. (c).) As discussed, section 10.4 of the Medical Staff bylaws precludes a party from initiating any legal action until a dispute resolution committee convened to resolve the dispute “has completed its efforts to resolve the dispute.” 24 discuss, and analyze all the evidence on that point, both favorable and unfavorable” (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218) or “explain why the evidence cited by the trial court does not support its findings” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 515), thus again forfeiting the argument. (See Sanchez v. Martinez (2020) 54 Cal.App.5th 535, 548 [“An appellant ‘who cites and discusses only evidence in [his] favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment.’”]; Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited.”].)5 2. Most of the Medical Staff’s Claims and Arguments on Appeal Arise from the Contested Amendments The Medical Staff’s claims that the Hospital violated section 2282.5 by “divesting the HCB of its sole authority to 5 At oral argument counsel for the Medical Staff asserted the ad hoc dispute resolution committee procedure set forth in the Medical Staff bylaws was not an adequate remedy because the committee’s decisions are nonbinding. (See Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, supra, 93 Cal.App.4th at p. 620 [exhaustion doctrine “‘is inapplicable where “the administrative remedy is inadequate [citation]; where it is unavailable [citation]; or where it would be futile to pursue such remedy”’”].) The Medical Staff forfeited this argument by not making it in its opening brief (or even in its reply brief). (See Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982.) 25 approve proposed bylaw amendments,” that the proposed bylaw amendments were “deemed approved,” and that the Hospital unreasonably withheld its approval of the amendments, all stem from the Medical Staff’s dispute over the proposed amendments to its bylaws. Because the Medical Staff did not exhaust its administrative remedies regarding the bylaw amendments, the Medical Staff had an adequate legal remedy and was not entitled to mandamus relief on these claims. (See Eight Unnamed Physicians v. Medical Executive Com., supra, 150 Cal.App.4th at p. 511.) Three of the Medical Staff’s four remaining arguments on appeal also arise from or relate to the dispute over the bylaw amendments and similarly fail for failure to exhaust administrative remedies. First, the Medical Staff claims the Hospital violated section 2282.5 by improperly terminating the clinical services contracts, which caused the removal of Medical Staff officers. The Medical Staff’s argument on appeal (as it was in the trial court) is not that the Hospital did not have authority to allow the existing contracts to expire or to contract with other groups, but that the Hospital refused “to allow the Bylaw amendment that would have resolved the dispute” by protecting the staff privileges of existing officers.6 That’s a claim based on the proposed bylaw amendments. 6 To the extent the Medical Staff contends the termination of group contracts violated the Hospital’s agreement with the Attorney General, the Medical Staff has not shown such a claim is redressable through mandamus. The Medical Staff does not address this aspect of the trial court’s ruling and argues only (and unconvincingly) it is a third party beneficiary of that agreement. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“the burden is on an appellant to demonstrate . . . that the trial court 26 Second, the Medical Staff argues the trial court erred in ruling the Hospital did not have a ministerial duty to accept the Medical Staff’s recommendations on clinical services contracts. In the trial court the Medical Staff claimed its bylaws required the Hospital to solicit and obtain (and accept) the Medical Staff’s recommendations on exclusive service contracts and RFPs. On appeal, however, the Medical Staff argues the trial court’s ruling in this regard “ignored the ministerial duties imposed by [section] 2282.5, one of which required [the Hospital] not to unreasonably withhold its consent to the Medical Staff’s Bylaw amendments.” That, too, is an issue about the contested bylaw amendments. The Medical Staff otherwise assigns no error to the trial court’s ruling regarding the Hospital’s duty to solicit and obtain the recommendation of the Medical Staff on exclusive contracts and RFPs. Finally, the Medical Staff argues the trial court erred in rejecting its contention the Hospital breached the terms of the Medical Staff bylaws, which the Medical Staff asserts create a binding contract. In the trial court, the Medical Staff made this argument in connection with its claim the Hospital violated the Medical Staff’s bylaws by removing the HCB’s authority to approve the proposed amendments. Again, that’s a claim about the proposed bylaw amendments. Because these three arguments arise from or relate to the dispute over the proposed amendments to the Medical Staff’s bylaws, and the Medical Staff failed to exhaust its administrative remedies to resolve that dispute, the Medical Staff did not satisfy the requirements of Code of Civil Procedure section 1085 for committed an error that justifies reversal”]; Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 464 [same].) 27 obtaining mandamus relief. (See City of Oakland v. Oakland Police & Fire Retirement System, supra, 224 Cal.App.4th at p. 235; Eight Unnamed Physicians v. Medical Executive Com., supra, 150 Cal.App.4th at p. 511; Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, supra, 93 Cal.App.4th at p. 620.) Therefore, the trial court did not err in denying the Medical Staff’s petition for a writ of mandate for claims based on the proposed bylaw amendments.7 C. The Medical Staff Bylaws Do Not Create a Ministerial Duty Prohibiting the Hospital from Establishing the Physician Advisory Council That leaves the Medical Staff’s fourth remaining argument, which is that the Medical Staff bylaws, in particular section 10.1.1, gave it the “legal authority” to disband the Physician Advisory Council and that the trial court erred in requiring the Medical Staff to show “a complete overlap” between the Medical Staff’s authority and the authority of the Physician Advisory Council. But because the Medical Staff cited only sections 10.3.1 and 10.3.2 in the trial court, it forfeited any argument under section 10.1.1. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 697, fn. 12.) 7 At oral argument counsel for the Medical Staff conceded that all but two of the Medical Staff’s claims were related to the contested bylaws. One of those claims is the one concerning the Hospital’s acceptance of Medical Staff recommendations on clinical services contracts. As discussed, however, that claim is related to the contested bylaws, which counsel for the Medical Staff subsequently acknowledged at oral argument. The other claim is the one concerning the Physician Advisory Council, which we address next. 28 In any event, section 10.1.1 does not create a ministerial duty on the part of the Hospital to disband the Physician Advisory Council. Section 10.1.1 states: “The Medical Executive Committee . . . shall be the standing committee of the Medical Staff. Unless otherwise specified, the Chairperson and members of all committees shall be appointed by the Chief of Staff and may be removed by the Chief of Staff subject to consultation with and approval by the Medical Executive Committee. These committees are advisory to the Medical Executive Committee and shall make their recommendations to the Medical Executive Committee. They shall have only the power specifically granted to them by the Medical Executive Committee and shall be responsible to the Medical Executive Committee.” This provision arguably makes the Medical Executive Committee the only entity that can represent the Medical Staff at large, but it does not say the Medical Executive Committee is the only entity that may give the Hospital feedback on matters concerning the Medical Staff. Therefore, section 10.1.1 does not establish a ministerial duty preventing the Hospital from creating a committee like the Physician Advisory Council. To the extent the Physician Advisory Council initiated changes to the Medical Staff’s “rules and policies,” section 13.1.6 of the Medical Staff’s bylaws arguably precludes such changes.8 But the Medical Staff did not present evidence documenting any work the Physician Advisory Council actually did, nor did the Medical Staff cite section 13.1.6 as the source of a ministerial duty. The Medical Staff has not shown the trial court committed any error in analyzing the 8 Section 13.1.6 states: “The mechanisms described [in the bylaws] shall be the sole methods for the initiation, adoption, amendment, or repeal of the Medical Staff rules and policies.” 29 comparative authorities of the Medical Staff and the Physician Advisory Council. DISPOSITION The judgment is affirmed. The Hospital is to recover its costs on appeal. SEGAL, J. We concur: PERLUSS, P. J. FEUER, J. 30	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484735/	NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 2022 IL App (3d) 190425 Order filed November 17, 2022 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2022 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0425 v. ) Circuit No. 17-CF-75 ) LOUIS A. MOREZ, ) Honorable ) Thomas W. Cunnington, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________ JUSTICE HETTEL delivered the judgment of the court. Justice Peterson concurred in the judgment. Justice McDade concurred in part and dissented in part. ____________________________________________________________________________ ORDER ¶1 Held: (1) Trial court did not abuse its discretion in denying defense counsel’s request for a continuance made on the day of trial in response to the State’s motion for use immunity for a witness that was disclosed to defendant two years before trial; (2) Trial court properly denied defendant’s motion to suppress the results of his blood alcohol concentration test; (3) The evidence was sufficient to prove defendant guilty of operating a snowmobile while under the influence of alcohol beyond a reasonable doubt; (4) Defendant’s 10-year sentence was not excessive; and (5) Trial court erred in ordering defendant to serve his sentence at 85% rather than 50%. ¶2 Following a bench trial, defendant Louis A. Morez was convicted of operating a snowmobile while under the influence of alcohol, resulting in the death of a person, under sections 40/5-7(a)(2) and 40/5-7(e) of the Snowmobile Registration and Safety Act (Snowmobile Act) (625 ILCS 40/5-7(a)(2) (West 2016); id. § 5-7(e)) and sentenced to 10 years in prison. On appeal, he claims that: (1) the trial court erred in denying his request for a continuance; (2) the trial court erred in failing to suppress the results of his blood test; (3) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (4) his sentence was excessive; and (5) the trial court erred in ordering him to serve 85% of his sentence in violation of the truth-in-sentencing statute (730 ILCS 5/3-6-3(a)(2.1) (West 2018)). We affirm in part, reverse in part, and correct the mittimus to reflect the appropriate sentencing credit. ¶3 I. BACKGROUND ¶4 On December 18, 2016, around 8 p.m., defendant, Louis A. Morez, and his friend, Brian Johnson, rode their snowmobiles to a local bar. On the way home, Johnson hit a dip in the trail and his girlfriend, Kristin Argue, who was riding on the back of his sled, fell off. Defendant, following behind Johnson, struck Kristin with his snowmobile, causing her death. A few hours after the accident, officers escorted defendant to the hospital where he signed a warning to motorist form and consented to blood and urine tests. The blood test revealed a blood alcohol concentration (BAC) level of 0.229, and his urine tested positive for cocaine and tetrahydrocannabinol (THC). Defendant was charged with eight counts of operating a snowmobile while under the influence. ¶5 Prior to trial, defendant filed a motion to suppress the blood and urine tests. At the hearing, defendant’s wife, Tonia Morez, testified that defendant came home that evening and told her there had been a snowmobile accident and that one of the guys told him that he ran over Johnson’s girlfriend. Defendant was in shock, but he was not intoxicated. He drank three-fourths of a bottle 2 of Jägermeister in less than 45 minutes, and then Tonia told him to go to bed. Manteno police officers arrived about an hour later and told Louis that they were “holding him” until the Kankakee County sheriffs’ deputies got there. They did not ask any questions. ¶6 An hour later, three deputies arrived and informed defendant that they wanted him to go to the hospital to get his blood drawn. Defendant responded, “I’m not going anywhere.” Tonia testified that some of the officers were standing over defendant yelling at him. They escorted defendant to the hospital around 11:30 p.m. ¶7 Defendant testified that he was in shock after the accident. He went home and told Tonia what had happened and drank more than half a bottle of Jägermeister in less than 20 minutes. Later that night, Tonia woke him up and told him that Manteno police officers wanted to talk to him. Shortly afterwards, two county deputies showed up and told him that he was going to the hospital for blood and urine samples. Defendant kept saying, “no, I’m not,” but the officers said that he was going “no matter what.” Defendant considered the officers’ words to be a threat. ¶8 The officers drove defendant to Riverside Hospital, where he consented to the blood and urine tests. Defendant testified that he gave consent at the hospital. Once he arrived at the hospital, officers gave him papers, and he signed them without reading them. Although he was never placed in handcuffs, he believed he was being arrested when the officers escorted him to Riverside Hospital. Defendant admitted that he was intoxicated when he arrived at the hospital, and he admitted to using cocaine and smoking marijuana a few days before the accident. ¶9 Emergency room nurse Angie Kimps drew defendant’s blood that evening. Kimps specifically asked defendant if he would be willing to submit to blood and urine testing, and he consented. Kimps testified that she told defendant that if he did not consent, she could not draw 3 his blood. When she asked if she could draw his blood, defendant said, “yes.” He never claimed that authorities forced him to go to the hospital against his will. ¶ 10 Manteno police officer Brian Lockwood and his partner arrived at defendant’s house at 10:50 p.m. in response to reports of a snowmobile accident. Defendant was asleep when they arrived. Tonia woke him up, and “he was staggering” as he walked out into the living room. Lockwood asked defendant if he was involved in a snowmobile accident. Defendant said his friend hit a culvert, and his girlfriend was hurt “really bad.” Without provocation, defendant said he was going to jail and was going to have a bad Christmas. Defendant also mentioned that he had been recently laid off. When the deputies arrived, defendant agreed to let them examine the snowmobile. No one was yelling at defendant or threatening him. Defendant was very cooperative. When the deputies left, Lockwood stayed behind and talked to Tonia. She did not mention that defendant had been drinking after he came home. ¶ 11 Deputy Zachary Richmond testified that he went to defendant’s home on the night of the accident and spoke to defendant. Defendant appeared to be intoxicated. He slurred his words and told Richmond that he had been drinking. Richmond asked defendant to go to the hospital for blood and urine testing. He denied telling defendant that he had to go even if by force. He stated that he never handcuffed defendant. At no point did he arrest him or threaten him. He testified that defendant willing went to the hospital. At the hospital, defendant never refused to provide a sample. He cooperated fully. Deputy Richmond testified that he read the warning to motorist to defendant “word for word,” and defendant signed it. Richmond then identified the warning to motorist form as People’s Exhibit No. 2 and verified his signature and defendant’s signature at the bottom of the page. 4 ¶ 12 At the conclusion of the suppression hearing, the trial court denied defendant’s motion. The court found that defendant voluntarily consented at the hospital to the blood and urine tests. The court also found that Tonia was not credible and that defendant did not show that he was so incapacitated that he was unable to consent to the test. ¶ 13 The case was set for trial on three separate occasions: March 12, 2018; September 10, 2018; and January 7, 2019. Each date was continued at defendant’s request. On March 7, 2019, the parties appeared before the court and stated that they were ready for trial and that there were no pretrial issues pending. Trial was scheduled for Monday, March 11. On Friday, March 8, the State filed a motion asking the court to grant use immunity to co-defendant Johnson. Defense counsel immediately filed a motion to strike the State’s motion, stating that due to the untimeliness of the motion, counsel did not have the “ability to conduct sufficient legal research into the issues brought by the State.” ¶ 14 On March 11, before trial commenced, the court held a hearing on the parties’ motions. The State argued that there was no surprise or prejudice to defendant because Johnson was listed as witness in its initial discovery report filed on March 16, 2017. The prosecutor stated that the use immunity motion was a preemptive measure in case Johnson invoked his fifth amendment right and that it did not plan to call Johnson as a witness until Wednesday, March 13. Defense counsel argued that it was not foreseeable that Johnson would testify without use immunity and that a successful motion would deny defendant a fair trial and “drastically alter [his] trial strategy.” The court granted the State’s request for immunity and denied defense counsel’s motion to strike. ¶ 15 In response, defense counsel moved for a continuance instanter. Counsel argued that two days was not enough time to prepare for Johnson’s testimony because he would be seeking electronic evidence, specifically Facebook posts, which would require subpoenas. The court 5 denied counsel’s request. The court noted that there had been a number of continuances granted to defendant in this case, that Johnson had been disclosed as a potential witness in the State’s initial disclosure report, and that counsel had a few days to prepare before Johnson would be called to testify. In denying the continuance, the court stated: “Because of the age of this case and because of the number of continuances that have been granted in this case for a number of reasons, I don’t feel a motion to continue—an oral motion to continue at this point is—is what we should be doing with this case. I—I don’t think there is enough surprise here even though—[defense counsel], I understand what you’re saying, that you weren’t anticipating that without a deal that he would be testifying. Nevertheless, he was disclosed as a witness and anything that—due diligence coming up, [d]efense has had plenty of time to—to look at that.” ¶ 16 At the bench trial, Johnson testified that on December 18, 2016, around 6 p.m., defendant showed up at his house on a snowmobile. They discussed going snowmobiling, and defendant told Johnson that he was “fucked up.” Defendant had on his helmet, and Johnson was not close enough to tell if defendant had alcohol on his breath. They rode to the Manteno Sportsmen’s Club and stayed for about half an hour. He could not remember how much alcohol was consumed at the club but testified that he may have had one beer. He did not see defendant have any drinks at the bar. Everyone left the club and decided to go to Edwin’s bar. Johnson rode back to his house and picked up his girlfriend, Kristin, and met up with the group at Edwin’s. They ordered pizza and drank a few beers. Johnson testified that defendant had a beer and was sitting at the bar with his head down, “slouched down, tired basically.” At one point, defendant looked like he was passed out. Johnson tried to talk to him, and defendant told him again that he was “fucked up.” 6 ¶ 17 The group was at Edwin’s for about an hour and left around 9 p.m. Kristin climbed onto the back of Johnson’s snowmobile, and defendant followed. On the way back to his house, Johnson hit a bump, and Kristin fell off the back. He stopped and turned around and saw defendant driving his snowmobile right behind her. Then he saw Kristin’s helmet rolling into the field. He ran to her and rolled her over. Her eyes were open, but they looked lifeless. Defendant rode back to Johnson and asked him what happened, and Johnson told defendant that he ran over Kristin. Defendant was in shock and began to panic. ¶ 18 Neither Johnson nor defendant had their phones, so Johnson gave defendant his keys and told him to go to his house and call 9-1-1. Johnson loaded Kristin onto his snowmobile and drove back to his house. When he arrived, defendant helped him carry Kristin to the porch. Defendant told Johnson he was sorry but that he had to go, and he left. Johnson’s 15-year-old daughter, Haley, called 9-1-1. When the police arrived, Johnson told them that defendant hit Kristin with his snowmobile and that defendant was “hammered.” Johnson testified that he believed defendant was drunk by the time he left Edwin’s bar. ¶ 19 On cross-examination, Johnson admitted that he did not remember defendant having anything to drink at the Sportsmen’s Club but stated that he was not paying attention to what defendant was doing. Defense counsel also introduced a Facebook post from Johnson dated December 22, 2016. Johnson agreed that the post stated, “despite what you all may have heard or will hear[,] we were not out drinking and partying so let’s keep the story straight.” ¶ 20 Wheaton Gustafson, the bartender at the Sportsmen’s Club, testified that defendant and Johnson came in around 7 p.m. He served them a shot of whiskey and a beer, but they did not finish the beer. Gustafson did not believe defendant was intoxicated when he saw him. 7 ¶ 21 Brianna Jajuli and Haley both testified that on the evening of the accident, they were outside Johnson’s house waiting for Johnson and Kristin to return when a man rode up on a snowmobile, stumbled up the steps, and tried to unlock the door. He could not open the door. Brianna said the man walked up to the car and told her there had been an accident. He asked her to call 9-1-1. His speech was slurred, but she did not smell any alcohol on his breath. Haley said the man seemed panicked. She assumed he was drunk because he was stumbling. Haley also told the detective who arrived later that the man appeared to be drunk. ¶ 22 Officer Lockwood testified that defendant was sleeping when they arrived at his house an hour after the accident. He woke up and came out of the bedroom staggering. He was unsteady as he tried to put on his clothes. When defendant spoke, his speech was slurred. He voluntarily stated that he was going to jail. Lockwood did not see any alcohol or glasses that he believed had alcohol in them around the house. ¶ 23 Deputy Richmond interviewed defendant at his home that evening. He noticed that defendant had slurred speech and glossy eyes, but he did not see any alcohol in the house. Defendant told him that he and Johnson had been out on the snowmobiles and that he had been drinking. He asked defendant if he would agree to a blood test, and defendant said “yes.” He then took defendant to the hospital and read defendant the warning to motorist. Defendant consented and signed the form. ¶ 24 Emergency room nurse Kimps testified that she collected the blood and urine samples. She asked defendant if he was willing to submit to the tests, and he said “yes.” ¶ 25 State Police forensic scientist Laura Le Donne analyzed defendant’s blood and his BAC level was 0.229. Forensic scientist Henry Rentas analyzed defendant’s urine and detected cocaine and THC. He admitted that cocaine and THC can be detected for several days after consumption. 8 ¶ 26 Defendant testified on his own behalf. He stated that he rode his snowmobile to the Sportsmen’s Club and had one beer at 11 a.m. He left the Sportsmen’s Club and returned home around noon, where he had another beer. Around 2:30 p.m. he headed to his brother-in-law’s house on his snowmobile where he consumed another beer. He left around 4 p.m. and went to Johnson’s house and drank another beer around 5:30 p.m. He testified that he never told Johnson he was “fucked up.” Defendant and Johnson then rode to Wesley Swisher’s house, and they all rode back to the Sportsmen’s Club. There, defendant drank one shot of whiskey and a beer. After the Sportsmen’s Club, they rode to Edwin’s bar, arriving around 7:30. They stayed for about an hour and ordered pizza, and defendant consumed another beer. Defendant denied that he put his head down on the bar, rested his head on the bar, or passed out at the bar. He also denied that he told Johnson he was “fucked up.” He testified that he was not intoxicated when he left Edwin’s. ¶ 27 The group left the bar around 8:30 p.m., riding their snowmobiles into white-out conditions and blowing wind. Defendant was following Johnson’s snowmobile and then noticed Johnson’s brake lights. Defendant passed Johnson and then turned around. When he got back to Johnson, he noticed Kristin lying on the ground. Johnson told defendant that he hit Kristin. Defendant denied hitting anything. Defendant grabbed his phone to call 9-1-1, but it was frozen. Johnson gave him his house keys and told him to go call 9-1-1. At Johnson’s house, defendant told the people in the car to call 9-1-1. He saw Johnson coming with Kristin on the snowmobile. He was in shock and did not know what to do. He went home and told his wife there had been an accident. He testified that he then grabbed a bottle of Jägermeister and “slammed it.” He drank three-fourths of the bottle and went to bed. On cross-examination, defendant admitted that he had alcohol, cocaine, and cannabis in his system on the night he struck Kristin with his snowmobile. 9 ¶ 28 Defendant’s wife, Tonia, testified that she called defendant around 8:30 p.m. to make sure he was okay because it was cold outside. He did not sound intoxicated when they spoke. Around 9:30 p.m., defendant returned home and was upset, but did not appear intoxicated. He was walking fine and seemed “perfectly normal.” He told her there had been an accident, that Kristin fell off Johnson’s snowmobile, and Johnson said defendant ran over her. Defendant told Tonia that he had no idea he hit Kristin. Defendant then consumed three-fourths of a bottle of Jägermeister in 10 to 15 minutes, and she told defendant to go to bed. Around 10:30 p.m., the police arrived and asked to talk to defendant. By that time, defendant was intoxicated. On cross-examination, she said she did not tell officers that defendant had consumed Jägermeister because they did not ask. ¶ 29 Bradley O’Keefe, defendant’s brother-in-law, and his wife, Hope O’Keefe, both testified that defendant came to their house around 2:30 p.m. on December 18, 2016, to watch a football game. He had one beer. He did not smell of alcohol, talked normally, and was not intoxicated. ¶ 30 Swisher testified that when defendant arrived at his house that day, he was not intoxicated. He did not notice any unusual speech or the smell of alcohol on defendant’s breath. They rode to the Sportsmen’s Club for a beer and a shot. Then they rode to Johnson’s house to pick up Kristin and rode to Edwin’s bar. Swisher said defendant was not drunk when they left Edwin’s bar. If defendant seemed drunk to Swisher, he would not have let him get on the snowmobile. Kaydee Doyle, Swisher’s girlfriend, also testified that defendant was not intoxicated when they left Edwin’s bar but admitted that she was not paying close attention to defendant at the bar. ¶ 31 Dr. James O’Donnell, an expert in pharmacology, testified that according to State police reports, defendant’s BAC was 0.229 grams per deciliter at 12:18 a.m., three hours after the accident. Based on the timeline and the number of drinks defendant reported, he calculated that defendant’s assumed BAC would have been 0.03 grams per deciliter at the time of the accident. 10 Dr. O’Donnell based his calculation primarily on toxicology reports, defendant’s medical and psychiatric records, and information provided by defendant over the phone. ¶ 32 The trial court found defendant guilty of three counts in the indictment and merged them into count IV, operating a snowmobile while under the influence of alcohol resulting in the death of another person (625 ILCS 40/5-7(a)(2) (West 2016); id. § 5-7(e)). At sentencing, the State argued in aggravation that defendant should be sentenced to the maximum 14-year term based on his three prior convictions for driving under the influence (DUI). The defense presented several character witnesses who all testified that defendant had rehabilitative potential and was remorseful. Defendant testified and asked for forgiveness. The trial court noted defendant’s potential for rehabilitation, his active involvement in AA meetings and his commitment to change since the accident. However, the court explained that, given defendant’s prior DUI convictions, his rehabilitative potential was speculative. The trial court sentenced defendant to 10 years in prison and denied defendant’s motion to reconsider. ¶ 33 II. ANALYSIS ¶ 34 A. Request for a Continuance ¶ 35 Defendant claims that the trial court erred in denying defense counsel’s request for a continuance to prepare for the cross-examination of co-defendant Johnson. ¶ 36 The decision to grant or deny a continuance is a matter within the sound discretion of the trial court. People v. Merritt, 2017 IL App (2d) 150219, ¶ 22. We will not interfere with the court’s decision absent an abuse of discretion. Id. An abuse of discretion occurs when the court’s decision is arbitrary or unreasonable. Id. No “mechanical tests” exist for determining when a denial of a continuance is so arbitrary or unreasonable as to violate due process. Unger v. Sarafite, 376 U.S. 575, 589-90 (1964). The court must analyze the circumstances present in a case, which include the 11 reasons presented for the request and the trial court’s reasons for denying the continuance. Id. In determining whether a continuance is appropriate, courts should consider: (1) the defendant’s age; (2) the interests of justice; (3) docket management; (4) judicial economy; and (5) inconvenience to the parties. Merritt, 2017 IL App (2d) 150219, ¶ 22. Other factors to consider in criminal cases include: (1) the defendant’s right to a speedy, fair, and impartial trial; (2) case history and complexity; (3) the seriousness of the charges; and (4) whether the interest of justice so demands. See People v. Walker, 232 Ill. 2d 113, 125 (2009); 725 ILCS 5/114-4 (West 2020). If the denial of a continuance hinders the accused in preparation of his defense, thereby prejudicing his rights, the conviction will be reversed. People v. Lewis, 165 Ill. 2d 305, 327 (1995). ¶ 37 Defendant contends that in denying his motion, the trial court abused its discretion because it made no comment regarding the interest of justice, the severity of the case, docket management, inconvenience to the parties, or how much time counsel was requesting. He also alleges that he was prejudiced based on counsel’s inadequate performance because counsel did not have the benefit of sufficient research. We disagree. ¶ 38 First, the record does not support defendant’s claim that the trial court failed to consider the necessary factors. At the hearing on the State’s motion and defense counsel’s accompanying continuance request, a lengthy discussion ensued between the parties and the court. The trial court noted the number of continuances granted at defendant’s request, and the two-year period in which Johnson had been disclosed as a potential witness. The court also acknowledged the untimeliness of the State’s use immunity motion and balanced the potential unfairness to defendant against his lack of due diligence in preparing for Johnson’s testimony and the lack of surprise to defendant given the State’s initial disclosure in March 2017. In consideration of the circumstances, the court also recognized that defendant had time to prepare for Johnson’s testimony, which was scheduled 12 for the end of trial. Thus, the record demonstrates that the trial court considered the relevant factors prior to denying defense counsel’s motion to continue, including the facts and circumstances of the case, the interests of justice, the case history, inconvenience to the parties, and defendant’s diligence in preparing for trial. ¶ 39 Granting a continuance rests within the trial court’s discretion. In this case, the trial court weighed the factors and denied the continuance, concluding that defendant’s rights were not infringed upon by a late notice by the State of its intent to grant use immunity to a witness that had been disclosed two years earlier and was scheduled to testify at the end of trial. Given the court’s consideration of the circumstances of the case, including defendant’s lack of diligence, we cannot say that the denial was so arbitrary as to violate due process. ¶ 40 Defendant relies on People v. Walker, 232 Ill. 2d 113 (2009), and maintains that it was an abuse of discretion for the trial court to deny the counsel’s request without considering the length of continuance counsel sought or the potential inconvenience to the parties. ¶ 41 In Walker, defendant was charged with the June 1992 murders of two individuals and assigned a public defender on July 9, 1992. Defense counsel requested one continuance in August 1993, which the circuit court granted. Walker, 232 Ill. 2d at 116. On the morning of trial, the assistance public defender requested another continuance, candidly admitting, “I am not ready to go to trial today.” Without conducting a hearing or providing any substantive discussion on the record, the trial court denied her request. The court stated that counsel’s reasons for the request were “irrelevant,” and the matter proceeded to a bench trial. Id. at 117-18. ¶ 42 On review, our supreme court held that the trial court abused its discretion in denying defense counsel’s motion to continue by failing to consider the interests of justice, the severity of the charges, the complexity of the case, docket management, judicial economy, inconvenience to 13 the parties, or the length of the requested continuance. Id. at 127. In concluding that an abuse of discretion occurred, the court emphasized that the circuit court failed to engage in any thoughtful consideration before “mechanically” denying counsel’s request: “We hold that the record clearly establishes that the circuit court completely failed to exercise discretion in ruling on defense counsel’s request for a continuance of defendant’s trial, as it is devoid of evidence showing that the circuit court considered any of the relevant factors in denying the continuance.” Id. at 126. The court reprimanded the circuit court, finding that it “completely abdicated its responsibility to conduct an informed deliberation of defense counsel’s motion and, instead, immediately and reflexively denied the continuance request on the sole basis that the case had been set for trial.” Id. at 129. The Walker court then held that “in a request for a continuance in a criminal trial is not only a circuit court’s discretion as to whether to grant that request, but also a defendant’s constitutional right to a fair, procedurally sound trial, which necessitates the making of a sufficient record to establish that a defendant has been afforded a fair process.” Id. ¶ 43 Walker is distinguishable from this case. Here, there is no indication that the trial court abdicated its responsibility to conduct an informed deliberation of the continuance motion. Between the State’s motion requesting use immunity and defenses counsel’s request for a continuance, the trial court thoroughly discussed the relevant factors with the parties before deciding to deny the continuance motion. Defense counsel was given the opportunity to fully explain his reasoning for requesting a continuance, which included his contention that he was not prepared to cross-examine Johnson. The trial court further inquired as to whether Johnson had been previously disclosed and the State responded that Johnson had been listed as a witness in its initial disclosure. The court then denied defendant’s motion, finding that defendant received 14 sufficient notice and that the case had been set for trial numerous times. In this case, unlike the court in Walker, the trial court engaged in thoughtful consideration of the specific facts and circumstances and established a sufficient record from which we can determine that defendant was afforded a fair process. ¶ 44 We further find no merit to defendant’s argument that defense counsel’s performance was inadequate because he did not have enough time to prepare. Although Johnson might not have been willing to testify, nothing in the record indicates that Johnson would not testify without use immunity. Johnson was disclosed on the State’s initial list of witnesses and counsel had two years prior to trial to investigate his involvement, conduct interviews, and prepare a defense strategy. See Merritt, 2017 IL App (2d) 150219, ¶ 32 (trial court did not abuse its discretion in denying the continuance motion because defendant was not diligent in pursuing his claim). In addition, defense counsel’s trial examination of Johnson was not inadequate; it was thorough and exhaustive. During Johnson’s cross-examination, counsel used the Facebook post to discredit Johnson and bolster defendant’s theory that he had not been out drinking and partying. Defense counsel also extensively cross-examined Johnson about being granted use immunity and whether the State made any promises in exchange for his testimony. In closing arguments, counsel further argued that Johnson’s testimony should not be believed. He noted that Johnson was granted use immunity, that he was a co-defendant in this trial, that he had a civil suit filed against him because of the accident, and that he was trying to shift the blame for Kristin’s death to defendant. Thus, a review of the record demonstrates that defense counsel’s trial performance regarding Johnson was not inadequate. ¶ 45 B. Suppression of Defendant’s BAC 15 ¶ 46 Defendant maintains that the trial court erred in denying his motion to suppress the results of his blood test performed at the hospital. He claims that due to the custodial nature in which he was taken to the hospital and his level of intoxication, his consent at the hospital was not voluntary. Defendant admits that he failed to raise this issue in his posttrial motion but urges us to consider it on constitutional grounds or ineffective assistance of counsel grounds. ¶ 47 In this case, defendant properly preserved his claim of constitutional error by filing a motion to suppress. See People v. Cregan, 2014 IL 113600, ¶ 16 (“a criminal defendant properly preserves a constitutional error by objecting to that error at trial, even if his defense attorney fails to include that error in a motion for a new trial”). The Illinois Supreme Court has recognized that constitutional issues that have been raised at trial and that may be raised in a postconviction petition are not subject to forfeiture. People v. Enoch, 122 Ill. 2d 176, 190 (1988). Defendant’s motion to suppress asserted a violation of his fourth amendment right to be free from unreasonable searches and seizures. Accordingly, we will review the merits of defendant’s claim under the constitutional issue exception to forfeiture. ¶ 48 Where a defendant files a motion to quash his arrest and suppress evidence, claiming there was an illegal search or seizure, he or she has the burden of demonstrating a fourth amendment violation. People v. Daniel, 2013 IL App (1st) 111876, ¶ 34. Once the defendant properly raises the suppression issue, the burden shifts to the State to prove that the challenged evidence is admissible. People v. Ortiz, 317 Ill. App. 3d 212, 222 (2000). A trial court’s findings of fact on a motion to suppress will not be disturbed unless they are against the manifest weight of the evidence. People v. Wells, 273 Ill. App. 3d 349, 351 (1995). ¶ 49 The fourth amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend IV. 16 “[A] warrantless search of the person is reasonable only if it falls within a recognized exception.” Missouri v. McNeely, 569 U.S. 141, 148 (2013). One exception to the warrant requirement is voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). “Consent to a blood test need only be voluntary in order to provide a valid basis for an exception to the warrant requirement.” People v. Harris, 2015 IL App (4th) 140696, ¶ 49. Consent, however, must be received voluntarily and not obtained through implied threats or covert force. People v Anthony, 198 Ill. 2d 194, 202 (2001). ¶ 50 A court must look at the totality of the circumstances in determining whether consent was voluntarily given. Id. Consent is involuntary if “[the defendant’s] will has been overborne and his capacity for self-determination critically impaired.” Schneckloth, 412 U.S. at 225 “[C]ustody alone does not render consent involuntary.” People v. Alvarado, 268 Ill. App. 3d 459, 464 (1994). Factors to consider include the length of detention and whether defendant was advised of his constitutional rights. People v. Brown, 169 Ill. 2d 132, 144 (1996). Additional factors include: (1) whether police used force; (2) whether police used custody to make repeated requests for consent; and (3) whether police used custody as leverage to obtain consent. Harris, 2015 IL App (4th) 140696, ¶ 49. ¶ 51 Here, the trial court’s finding that defendant’s consent was voluntary was not against the manifest weight of the evidence. Deputy Richmond testified that defendant agreed, without force, to submit to a blood test at his home, without the use of police force. When defendant arrived at the hospital, he again consented to blood and urine testing. Deputy Richmond read the consent form to defendant, and defendant signed the form voluntarily. The emergency room nurse further testified that defendant said, “yes,” when she asked for permission to draw his blood. He did not indicate that police had forced him to submit to the BAC test or used leverage to coerce his 17 participation. In addition, defendant admitted during the suppression hearing that he provided consent to Nurse Kimps and that he voluntarily signed the consent form at the hospital. ¶ 52 Although defendant and his wife testified that several officers were present in their home and that defendant was forced to go to the hospital, other evidence contradicted their statements and challenged their credibility. Officer Lockwood and Deputy Richmond both testified that no one threatened defendant, placed hands on him, or restrained him in any way. Deputy Richmond also testified that as soon as they arrived at the hospital, he advised defendant of his rights and defendant voluntarily signed the warning to motorist form in which he consented to the BAC test. Proof of defendant’s consent was further corroborated by the admission of the signed consent form at trial. See Harris, 2015 IL App (4th) 140696, ¶ 51 (warnings on the signed form clearly indicated a choice between consenting to testing and withdrawing consent to testing). ¶ 53 Finally, while defendant argues on appeal that he was too intoxicated to voluntarily give consent, no testimony was provided by defendant or any other witness that he was unable to understand the procedures at the hospital or the officers’ questions when they arrived at his home. As the trial court noted in denying the suppression motion, “[n]either the defendant nor his wife nor the police officers nor the nurse testified that defendant was so intoxicated or drugged to the extent that his capacity to make decisions was critically impaired.” ¶ 54 Based on the totality of the circumstances, the trial court’s finding that defendant gave his consent voluntarily was not against the manifest weight of the evidence. Defendant’s motion to suppress the blood test was properly denied. ¶ 55 C. Sufficiency of the Evidence ¶ 56 Next, defendant claims that we should reverse his conviction for operating a snowmobile while under the influence of alcohol pursuant to sections 40/5-7(a)(2) and 40/5-7(e) of the 18 Snowmobile Act (625 ILCS 40/5-7(a)(2) (West 2016); id. § 5-7(e)) because the State failed to prove that he was under the influence of alcohol while operating a snowmobile beyond a reasonable doubt. ¶ 57 A reviewing court will not overturn the fact finder’s verdict unless it is so unreasonable, improbable, and unsatisfactory as to leave reasonable doubt regarding the defendant’s guilt. People v. Brown, 169 Ill. 2d 132, 152 (1996). It is not the function of the reviewing court to retry a defendant when presented with a challenge to the sufficiency of the evidence. People v. Collins, 106 Ill. 2d 237, 261 (1985). It is the responsibility of the trier of fact to determine the credibility of witnesses, weigh their testimony, resolve conflicts in the evidence, and draw reasonable inferences from the evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000). The testimony of even a single witness is sufficient to convict if the testimony is positive and credible, even where it is contradicted by the defendant. People v. Gray, 2017 IL 120958, ¶ 36. “A conviction will not be reversed simply because the evidence is contradictory or because the defendant claims that a witness was not credible.” Id. To prove guilt beyond a reasonable doubt does not mean that the trier of fact must disregard the inferences that normal flow from the evidence before it. People v. Patterson, 217 Ill. 2d 407, 435 (2005). ¶ 58 Defendant was convicted of count IV of the indictment as charged under sections 40/5- 7(a)(2) and 40/5-7(e) of the Snowmobile Act. To prove a violation of those statutory provisions, the State must show that: (1) the defendant was operating a snowmobile; (2) the defendant was under the influence of alcohol; and (3) the defendant’s operation of a snowmobile while under the influence of alcohol caused a person’s death. 625 ILCS 40/5-7(a)(2) (West 2016); id. 5-7(e). “A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his 19 mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.” Illinois Pattern Jury Instructions, Criminal, No. 23.29 (approved July 18, 2014). ¶ 59 At trial, numerous witnesses testified that they observed defendant drinking prior to the accident and witnessed behavior that led them to believe he was under the influence of alcohol at the time of the accident. Johnson told officers that defendant was “hammered” when he hit Kristin. He testified that when he told defendant he struck Kristin, defendant was in disbelief. He was not even aware that he hit her. Tonia also testified that defendant was not aware that he hit Kristin until Johnson told him. Johnson, Haley, and Brianna also testified that defendant exhibited physical characteristics of intoxication immediately before and after the accident. He was falling asleep at the bar, he staggered when he walked, his speech was slurred, and he was unable to unlock the door to Johnson’s house. Defendant’s testimony supported their observations. He testified that he drank six beers that day, consuming at least two beers and a shot of whiskey shortly before 8:30 p.m. He also admitted that he had alcohol, cannabis, and cocaine in his system when he struck Kristin while driving his snowmobile behind Johnson. He further testified that he did not realize he hit Kristen with his snowmobile even though he struck her with enough force to remove her helmet. Based on this evidence, a rational trier of fact could have found defendant was operating his snowmobile while under the influence of alcohol when he caused Kristin’s death. The evidence was sufficient to find guilt beyond a reasonable doubt on count IV. ¶ 60 Defendant attempts to discredit Johnson’s testimony, arguing that he was a biased witness whose testimony was contradicted by other witnesses. For instance, defendant notes that the bartender at the Sportsmen’s Club testified that defendant was not intoxicated prior to the accident, defendant’s wife testified that he did not seem intoxicated prior to the accident, and Swisher and Doyle testified that he did not appear drunk when they left Edwin’s bar. However, some of these 20 same witnesses testified that defendant had been drinking prior to the accident, and they all spent much less time with defendant before the accident than Johnson. Defendant’s wife was not traveling with the snowmobile group that day, and Doyle testified that she did not pay attention to defendant when they were at Edwin’s bar. ¶ 61 Moreover, defendant’s claim that Johnson’s biased testimony resulted in an unreliable verdict is unavailing where, as here, the record reveals that the potential for bias was revealed and discussed at trial. See, e.g., People v. Kliner, 185 Ill. 2d 81, 134-35 (1998) (admission of testimony subject to harmless error analysis and was not reversible where trier of fact was advised of potential bias against defendant through other witnesses and information provided at trial). Johnson testified that the State granted him use immunity. He also testified that he had not been promised anything in exchange for his testimony and that no promises were made that the State would be more lenient in its case against him. Defense counsel also cross-examined Johnson vigorously, asking him numerous questions about the State’s grant of use immunity and questioning whether any deals had been made in exchange for his testimony. In addition, defense counsel asked Johnson about his pending felony charges for possession of a controlled substance and confirmed that the administrator of Kristin’s estate had filed a civil claim against him. ¶ 62 Further, contradictory testimony does not necessarily destroy the credibility of a witness. See People v. Gray, 2017 IL 120958, ¶ 47 (trier of fact charged with deciding how flaws in a witness’s testimony affect his or her credibility as a whole and minor discrepancies affect only its weight). Although Johnson’s testimony regarding the amount of alcohol he consumed that day varied slightly, there is nothing in the record to indicate that Johnson was a biased witness or that any inconsistencies in his testimony were so significant that they rendered his account of defendant’s drinking and behavior that day incredible. After hearing Johnson’s testimony and 21 weighing the discrepancies, the trier of fact determined that Johnson’s testimony was credible. It is well-settled that the trier of fact is in the best position to determine credibility and weigh witness bias, and it is not our place to second guess those determinations without an obvious reason to do so. Based on Johnson’s testimony and the testimony of other witnesses, it was reasonable for the trial court to conclude that defendant was under the influence of alcohol when he struck Kristin with his snowmobile. ¶ 63 Defendant also argues that his alcohol level at the time of the blood test was not indicative of his alcohol level at the time the accident happened. He claims that the three-hour delay between the incident and the test and his continued consumption of alcohol when he returned home after the accident resulted in a BAC test result that was not probative of his intoxication when he hit Kristin. He also claims that his own expert testified that defendant’s extrapolated BAC level at the time of the accident was 0.03 grams per deciliter. Therefore, the results of his blood test hours later provide little evidence that he was under the influence of alcohol when he struck Kristin. Again, it was the trier of fact’s job to weigh Dr. O’Donnell’s testimony against the testimony of the other witnesses and the blood test. Regardless of Dr. O’Donnell’s extrapolation, additional evidence existed from which a reasonable trier of fact could infer that defendant was under the influence of alcohol at the time of the accident. ¶ 64 Here, none of the issues raised by defendant create a reasonable doubt. Evidence at trial established that defendant was drinking prior to the accident, that he did not realize he hit Kristin, that he was exhibiting characteristics of being under the influence of alcohol shortly before and immediately after the accident, that he had alcohol in his system after the accident and that his BAC level was 0.229 based on a blood test conducted three hours after the accident. Reviewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have 22 found defendant guilty of operating a snowmobile while under the influence of alcohol resulting in the death of a person beyond a reasonable doubt. ¶ 65 D. Excessive Sentence ¶ 66 Defendant also argues that his 10-year term of imprisonment is excessive. He contends that his lack of recent criminal history, his remorse, and his potential for rehabilitation should have resulted in a more lenient sentence. ¶ 67 In sentencing a defendant, the trial court must balance the punitive and rehabilitative purposes of punishment, which “requires careful consideration of all factors in aggravation and mitigation, including, inter alia, the defendant’s age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education, as well as the nature and circumstances of the crime and of defendant’s conduct in the commission of it.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). ¶ 68 The trial court has broad discretion in imposing sentence, and its sentencing decision is entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). This is because “the trial court is generally in a better position than the reviewing court to determine the appropriate sentence.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). The sentencing court has the opportunity to weigh the factors in aggravation and mitigation. Id. Accordingly, we must not substitute our judgment for that of the trial court merely because we would have weighed the factors differently. Id. ¶ 69 We will not alter a defendant’s sentence on review absent an abuse of discretion by the trial court. Id. at 209-10. A sentence is an abuse of discretion if it is “greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.” Id. at 210. 23 ¶ 70 Defendant acknowledges that his offense was serious but claims that a sentence reduction is appropriate because the trial court failed to give adequate weight to the mitigating factors such as his lack of recent criminal history, his remorse, and his rehabilitative potential. Defendant, however, fails to cite any portion of the record indicating that the trial court did not adequately consider these factors. The trial court found that defendant’s criminal history was a prominent aggravating factor in fashioning an appropriate sentence given that he committed three prior offenses for driving under the influence and that the current offense resulted in Kristin’s death. The record also shows that the trial court took defendant’s expressed remorse into consideration, as well as his potential to be rehabilitated, and determined the appropriate weight to attribute to the aggravating and mitigating evidence. See People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993) (trial court has discretion to decide weight accorded to mitigating evidence). ¶ 71 Under section 40/5-7(e) of the Snowmobile Act, defendant’s potential sentence ranged from 3 to 14 years. See 625 ILCS 40/5-7(e) (West 2016) (causing another person’s death while operating a snowmobile under the influence of alcohol is a Class 2 felony subject to a term of 3 to 14 years in prison). Defendant’s sentence fell within the prescribed statutory range and was not an abuse of discretion merely because the trial court found the factors in aggravation outweighed those in mitigation. See People v. Hampton, 2021 IL App (5th) 170341, ¶ 136 (“sentence that falls within the statutorily prescribed range is presumed to be appropriate”). ¶ 72 E. Application of Truth-In-Sentencing Statute ¶ 73 Last, defendant argues that the trial court erred in ordering him to serve his sentence at 85%, rather than 50%. The State confesses error, and we agree. ¶ 74 Except as otherwise provided by statute, “a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 24 ILCS 5/3-6-3(a)(2.1) (West 2018). Section 5/3-6-3(a)(2.1) of the truth-in-sentencing statute provides that for all offenses that are not explicitly listed or otherwise expressly enumerated within the statute, the defendant shall receive the opportunity to accrue day-for-day credit against his or her sentence. Id. Operating a snowmobile while under the influence of alcohol or other drugs or intoxicating compounds pursuant to section 40/5-7 of the Snowmobile Act (625 ILCS 40/5-7 (West 2016)) is not one of the excluded offenses listed in section 5/3-6-3(a)(2.1) or expressly enumerated elsewhere in the truth-in-sentencing statute. See, e.g., 730 ILCS 5/3-6-3 (West 2018); id. § 3-6-3(a)(2.1). Accordingly, defendant is eligible for day-for-day credit, and the trial court committed plain error in ordering him to serve 85 percent of his sentence. See People v Loggins, 2019 IL App (1st) 160482, ¶ 127 (misapplication of truth-in-sentencing statute amounted to plain error because it affected the defendant’s fundamental right to liberty). We therefore correct defendant’s mittimus to reflect that he is eligible to receive day-for-day credit and qualifies for opportunity for release after serving 50% of his sentence. See Ill. S. Ct. R. 615(b)(1) (eff. Jan. 1, 1967); Loggins, 2019 IL App (1st) 160482, ¶ 128 (reviewing court may correct mittimus without ordering remand). ¶ 75 III. CONCLUSION ¶ 76 We affirm defendant’s conviction and sentence. We reverse the circuit court’s order requiring defendant to serve his sentence at 85%, rather than 50%, and we correct the mittimus accordingly. ¶ 77 Affirmed in part and reverse in part; mittimus corrected. ¶ 78 JUSTICE McDADE, concurring in part and dissenting in part: ¶ 79 The majority has set out in the first paragraph of the Order its finding on each of the issues raised by defendant in this case, affirming all except the trial court’s erroneous designation of the 25 sentencing credit for which defendant was eligible. For the reasons that follow, I disagree with the findings enumerated (1), (3), and (5), and respectfully dissent from them. ¶ 80 The trial in this case was scheduled to begin on Monday, March 11, 2019. This was the fourth trial date and each prior setting had been continued at defendant’s request. On Thursday, March 7, the parties appeared and both defendant and the State advised the court they were ready for trial. The State did not request use immunity for its most damning witness, Brian Johnson, at that time. Had it done so, the decision on whether it would be granted might have been made Friday, giving the defense attorney at least the weekend to adjust. But it did not. Instead, on Friday, March 8, the State filed a motion requesting use immunity for Johnson. The earliest defense counsel’s objection arguing untimeliness could be heard was the morning trial was scheduled to begin. After hearing arguments, the trial court allowed the use immunity. Defense counsel then moved for a continuance asserting he was no longer prepared to cross-examine Johnson. The trial court denied counsel the continuance. I would find this decision to be an abuse of the trial court’s discretion, vacate defendant’s conviction, and remand for a new trial. ¶ 81 At the beginning of the court day on March 11, Johnson and Morez were co-defendants; both had been criminally charged in connection with the death of Kristin Argue. Johnson was also the only witness claiming, on a persuasive basis, that defendant was intoxicated at the time of the accident. 1 Every other person who had significant contact with defendant during that afternoon and evening, as well as defendant’s wife who spoke with him by phone and defendant himself, 1 Johnson’s daughter, Hayley, age 15, and her friend, Brianna, both testified that defendant appeared drunk to them. Collectively they attributed that conclusion to his inability to open Johnson’s front door, stumbling, appearing panicked, and slurring his request that they call 911. Neither smelled alcohol on or about him. Their other observations are equally attributable to his having just learned that he had struck Kristin with his snowmobile and she was badly injured and the fact that it was so cold that his cellphone would not work, Sheriff Officer Bertrand’s camera would not operate, and Johnson had to kick open his door because he did not have his keys and he could not feel his hands. 26 said he was not intoxicated at any time prior to the accident or at the time it occurred. The State’s entire case depended on who won the credibility contest between defendant and Johnson. ¶ 82 The extension of use immunity gave Johnson a giant boost toward winning that contest. He had been officially and functionally acquitted of any wrongdoing to which he testified. In several significant and relevant respects, the Brian Johnson previously disclosed as a witness by the State and the Brian Johnson who testified at trial were two different people. Defense counsel’s preparation for Johnson, fellow offender and co-defendant, would be worthless as to Johnson, innocent bystander. First, there was now no possibility that Johnson could refuse to testify, eliminating the opportunity to highlight his reluctance to submit his credibility to the scrutiny of the fact-finder. Second, defense counsel had been stripped of the opportunity to make Johnson appear evasive and shifty and untruthful on cross-examination or to maneuver him into exercising his fifth amendment right not to incriminate himself. Rather than having to weigh the potential impact of each answer to assess whether to answer or assert his fifth amendment rights, Johnson could now answer promptly without any vacillation or appearance of equivocation, and with apparent complete candor. He could testify with the ease and confidence of a person unconcerned about any possible negative ramifications of his own culpability because that was who he had been allowed to become by virtue of the use immunity. The impact would be even more damaging if this had been a jury trial; still, the “trial court” is a human being and is fully capable of being impressed by a candid and forthcoming witness with nothing to lose and therefore nothing to hide. ¶ 83 Johnson’s gift of use immunity represented a seismic change in his vulnerability and believability on cross examination and would require a corresponding change of tactics by defense counsel in approaching the newly exculpated witness. 27 ¶ 84 The State sandbagged the defense. The trial court decided defendant’s attorney could find time in already-planned court days to work out a major course-correction for cross-examining the State’s most important witness and denied the requested continuance. I would find that decision was error, was an abuse of the court’s discretion, and denied defendant a fair trial. As a consequence, I would further find that defendant’s conviction and sentence must be vacated and the matter remanded for further proceedings. 28	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484738/	NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 2022 IL App (3d) 210219-U Order filed November 17, 2022 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2022 In re B.J., ) Appeal from the Circuit Court ) of the 9th Judicial Circuit, a Minor ) Fulton County, Illinois. ) (The People of the State of Illinois, ) ) Petitioner-Appellee, ) Appeal No. 3-21-0219 ) Circuit No. 20-JA-62 v. ) ) Trevor J., ) Honorable ) Andrew J. Doyle, Respondent-Appellant). ) Judge, Presiding. ____________________________________________________________________________ JUSTICE PETERSON delivered the judgment of the court. Justices Hauptman and Hettel concurred in the judgment. ____________________________________________________________________________ ORDER ¶1 Held: The trial court did not err when it determined that a second adjudicatory hearing was unnecessary given that the court had already adjudicated the minor neglected at the first adjudicatory hearing. ¶2 Respondent, Trevor J., appeals the trial court’s decision not to hold a second adjudicatory hearing to determine whether respondent’s minor child was neglected. He argues that his due process rights were violated when the trial court found that the minor’s mother’s admission at the prior adjudication hearing and the resulting adjudication of neglect rendered the second hearing unnecessary. We affirm. ¶3 I. BACKGROUND ¶4 B.J. was born on March 4, 2020. On September 22, 2020, the State filed a neglect petition alleging injurious environment where substance abuse had not been adequately addressed against respondent (count I) and B.J.’s mother (count II). On October 8, 2020, B.J.’s mother denied the allegations of the petition and the matter was continued to October 22, 2020, for respondent to admit or deny the allegations. An adjudication hearing was set for November 5, 2020. On October 22, 2020, respondent denied the allegations and the adjudication hearing on count I was set for December 17, 2020. On November 5, 2020, the Honorable Niegel D. Graham accepted B.J.’s mother’s stipulation and admission to her substance abuse. The trial court found the minor was neglected and set a date for her dispositional hearing. Respondent did not attend the adjudicatory hearing. ¶5 On December 22, 2020, the State amended the petition to add count III, which alleged that respondent did not have a suitable or stable residence and count IV, which alleged respondent engaged in acts of domestic violence. Respondent denied the allegations. On February 18, 2021, an adjudicatory hearing commenced before the Honorable Andrew J. Doyle. Following the testimony of two witnesses, a recess was taken. Upon return, the trial court explained it had reviewed the court file because the judge had not handled the prior proceedings. The trial court found that respondent’s adjudicatory hearing was an error. The trial court stated that mother’s admission in November of 2020 was sufficient to find the minor neglected and terminated the hearing. Neither respondent nor respondent’s attorney, nor the State objected to the trial court ending the adjudicatory hearing. The trial court proceeded to set a date for respondent’s 2 dispositional hearing. Prior to adjourning, the trial court asked if anyone had any questions and stated “[o]ne last shot at the bite at the apple, anybody?” In a written order entered on March 18, 2021, the trial court stated “[n]o further hearings are necessary to establish neglect of the minor insomuch as the minor was previously found neglected.” ¶6 On April 8, 2021, respondent’s counsel informed the court respondent wanted a continuance to hire private counsel. Respondent spoke with two attorneys, discussed payment, and would be able to hire an attorney by the next court date. On April 22, 2021, respondent requested more time to hire an attorney, and told the court that he spoke with an attorney who told him that two weeks was insufficient time to take his case and prepare for a hearing. A recess was taken for respondent to speak with respondent’s counsel. After the recess, the guardian ad litem informed the court he had spoken to the attorney respondent referenced. The attorney indicated he may have received a call from respondent but had not returned the call, and thus, did not speak to respondent. The attorney further indicated that he would not have taken respondent’s case as he was planning on retiring. The court denied respondent’s motion to continue. Respondent indicated he was going to file an appeal and left the hearing. As respondent’s attorney was still present, respondent’s dispositional hearing continued. After the hearing, the trial court found respondent to be unfit and unwilling to care for the minor. ¶7 II. ANALYSIS ¶8 On appeal, respondent contends his due process rights were violated when the trial court terminated his adjudication hearing and found the minor’s mother’s admission to the petition was sufficient to adjudicate the minor neglected. The State asserts respondent forfeited this issue by failing to object and raise the issue in a posttrial motion. Despite this, respondent contends that the 3 error is reviewable under the plain error doctrine. Due process violations are a question of law that are reviewed de novo. In re. S.P., 2019 IL App (3d) 180476, ¶ 27. ¶9 Generally, absent plain error, the failure to object and raise an issue in a written posttrial motion results in forfeiture of the issue on appeal. Ill. S. Ct. R. 615(a) (eff. Aug. 27, 1999). The plain-error doctrine allows a reviewing court to consider unpreserved error if a clear or obvious error occurred and the evidence is closely balanced or where the error affects the respondent’s substantial rights. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). Respondent avers the trial court’s decision to terminate his adjudication hearing was so serious that it affected the fairness of the hearing and challenged the integrity of the judicial process. We disagree. ¶ 10 Respondent argues the trial court erred when it refused to complete a second adjudicatory hearing to determine if the minor was neglected. Upon review, we find it was unnecessary to hold a second adjudicatory hearing given that the court previously adjudicated the minor neglected at the first adjudicatory hearing based on the minor’s mother’s admissions. ¶ 11 The purpose of an adjudicatory hearing is “to determine whether the allegations of a petition * * * that a minor under 18 years of age is * * * neglected * * * are supported by a preponderance of the evidence.” In re Arthur H., 212 Ill. 2d 441, 465 (2004) (citing 705 ILCS 405/1-3(1) (West 2000)). Neglect based on an injurious environment may be found where a parent has breached his or her duty to ensure a safe and nurturing shelter for the minor. In re N.B., 191 Ill. 2d 338, 346 (2000). Critically, the court at the adjudicatory hearing is to “focus solely upon whether the child has been neglected” and not necessarily “who may be responsible for the child’s neglect.” In re Arthur H., 212 Ill. 2d at 465-66. In other words, the only question to be resolved at an adjudicatory hearing is whether or not a child is neglected; not whether either parent is neglectful. 4 ¶ 12 Here, the minor’s mother admitted to the allegations of ongoing substance abuse issues at the first adjudicatory hearing. That is all that is required for the court to find the minor neglected and for the cause to advance to a dispositional hearing. As noted above, the focus of the adjudicatory hearing is on whether the minor is neglected, not whether respondent is neglectful. Individualized hearings to determine the blame of each parent’s conduct is not required. This is true because even if the trial court held a second adjudicatory hearing, the prior adjudication of neglect would remain in force regardless of the outcome of the second hearing. 1 Consequently, we find the trial court was not required to hold a second adjudicatory hearing. Therefore, we hold the trial court did not err. ¶ 13 Respondent claims that refusing to hold a second adjudicatory hearing deprived him of the opportunity to challenge the State’s allegations. We note, however, that respondent had the opportunity to attend the first adjudicatory hearing, but he did not. Respondent also makes no argument on appeal that the trial court erred when it found the minor neglected at the first adjudicatory hearing. Additionally, respondent had the opportunity to challenge the State’s evidence regarding his acts or omissions at the dispositional hearing. The purpose of a dispositional hearing is for the trial court to determine whether it is consistent with the health, safety, and best interests of the minor and the public that the minor be made a ward of the court. 705 ILCS 405/2- 22 (West 2020). At the dispositional hearing, the court also determines what services should be provided to all parties and what will be required of the parents. Id. The court considers “[a]ll evidence helpful in determining these questions” at the dispositional hearing. Id. Respondent had 1 For example, the State could have withdrawn the counts alleging respondent’s conduct at any time. The case would still have necessarily proceeded to the dispositional hearing regarding all parties. 5 the opportunity to litigate his actions or inactions regarding B.J. at the dispositional hearing. Despite this, respondent left and refused to participate at the dispositional hearing. ¶ 14 In sum, the court did not err in accepting the adjudication of neglect previously entered by the court and declining to conduct a second adjudicatory hearing. Having found no error, there can be no plain error. Finally, we note that respondent does not challenge the trial court’s determination that he is unfit in this appeal. Consequently, any challenge to that decision is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). ¶ 15 III. CONCLUSION ¶ 16 The judgment of the circuit court of Fulton County is affirmed. ¶ 17 Affirmed. 6	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484740/	IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: APPLICATION OF JOSH SHAPIRO, : No. 115 MM 2022 ATTORNEY GENERAL OF THE : COMMONWEALTH OF PENNSYLVANIA, : REQUESTING AN ORDER DIRECTING : THAT A SUCCESSOR MULTICOUNTY : INVESTIGATING GRAND JURY HAVING : STATEWIDE JURISDICTION BE : CONVENED : ORDER AND NOW, this 17th day of November, 2022, upon consideration of the Application of Josh Shapiro, Attorney General of the Commonwealth of Pennsylvania, and as it appears that granting the Application is appropriate under the Investigating Grand Jury Act, 42 Pa.C.S. §§4541 et seq., it is hereby ORDERED as follows: 1. The Attorney General’s Application requesting that an additional multicounty investigating grand jury having statewide jurisdiction (“Fiftieth Statewide Investigating Grand Jury”) be convened is hereby GRANTED. 2. The Honorable Lillian H. Ransom, First Judicial District, Philadelphia County, Pennsylvania, is hereby designated as Supervising Judge of the Fiftieth Statewide Investigating Grand Jury. All applications and motions relating to the work of the Fiftieth Statewide Investigating Grand Jury—including motions for disclosure of grand jury transcripts and evidence—shall be presented to the Supervising Judge. With respect to investigations, presentments, reports, and all other proper activities of the Fiftieth Statewide Investigating Grand Jury, Judge Ransom, as Supervising Judge, shall have jurisdiction over all counties throughout the Commonwealth of Pennsylvania. Judge Ransom may temporarily designate another jurist who has been appointed by this Court as the Supervising Judge of a multicounty investigating grand jury having statewide jurisdiction to serve as Acting Supervising Judge of the Fiftieth Statewide Investigating Grand Jury when Judge Ransom is absent or otherwise unavailable. 3. Montgomery County is designated as the location for the Fiftieth Statewide Investigating Grand Jury proceedings. 4. The Court Administrator of Pennsylvania is directed to draw six counties at random from the Eastern District of Pennsylvania pursuant to the provisions of Rule 241(A)(1) and 241(C)(2) of the Pennsylvania Rules of Criminal Procedure, and these six counties, plus Montgomery, shall together supply jurors for the Fiftieth Statewide Investigating Grand Jury. 5. The Court Administrator of Pennsylvania is directed to obtain the names and addresses of persons residing in the aforesaid counties who are eligible by law to serve as grand jurors pursuant to the provisions of Rule 241(A)(2) of the Pennsylvania Rules of Criminal Procedure. 6. The total of such names of prospective jurors to be collected shall be 200, of which 50 shall be selected at random and summoned by the Court Administrator of Pennsylvania to Montgomery County. The Supervising Judge shall impanel the Fiftieth Statewide Investigating Grand Jury from this panel of 50 prospective jurors. If it becomes necessary, additional prospective jurors shall be summoned by the Supervising Judge from among the remaining 150 prospective jurors. 7. The Fiftieth Statewide Investigating Grand Jury will remain in session for not more than 18 months following the date that it is impaneled by the Supervising Judge. [115 MM 2022] - 2 8. The Attorney General of the Commonwealth of Pennsylvania, or his designee in charge of the Fiftieth Statewide Investigating Grand Jury, may apply, if necessary, to the Supervising Judge for an extension of the term of the Fiftieth Statewide Investigating Grand Jury for an additional period of up to six months, if, at the end of its original term, the Investigating Grand Jury determines by majority vote that it has not completed its business. The Fiftieth Statewide Investigating Grand Jury’s term, including any extension thereof, shall not exceed 24 months from the date it was originally impaneled by the Supervising Judge. 9. The Supervising Judge shall maintain control of transcripts and evidence, as provided by Rule 229 of the Pennsylvania Rules of Criminal Procedure. The Supervising Judge shall determine the manner and location with respect to storage of transcripts. The Supervising Judge shall control disclosure of matters occurring before the Fiftieth Statewide Investigating Grand Jury, as provided by 42 Pa.C.S. §4549. 10. The Supervising Judge shall have the same duties and powers relating to maintaining grand jury secrecy with respect to each expired multicounty investigating grand jury having statewide jurisdiction that had convened in Montgomery County or any other county identified in Rule 241(C)(2) of the Pennsylvania Rules of Criminal Procedure. ______________________________ DEBRA TODD Chief Justice of Pennsylvania [115 MM 2022] - 3	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484745/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED _____________ November 17, 2022 No. 21-0873 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK _____________ SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, V. MICAH A. MCCLAIN, Defendant Below, Petitioner. ________________________________________________ Certified Questions from the Circuit Court of Monongalia County The Honorable Cindy S. Scott, Judge Criminal Action No. 21-F-76 CERTIFIED QUESTIONS ANSWERED ________________________________________________ Submitted: October 18, 2022 Filed: November 17, 2022 J. Michael Benninger, Esq. Patrick Morrisey, Esq. Benninger Law, PLLC Attorney General Morgantown, West Virginia Karen C. Villanueva-Matkovich, Esq. Deputy Attorney General Bader C. Giggenbach, Esq. Charleston, West Virginia Giggenbach Legal, PLLC Attorneys for the Respondent Morgantown, West Virginia Attorneys for the Petitioners Perri DeChristopher, Esq. Prosecuting Attorney Robert J. Zak Jr., Esq. Assistant Prosecuting Attorney Monongalia County Prosecuting Attorney’s Office Attorneys for Amicus Curiae, Monongalia County Prosecuting Attorney JUSTICE BUNN delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996). 2. “When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under . . . the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. . . .” Syllabus point 3, in part, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993). 3. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975). 4. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus point 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). i 5. “[W]ords and terms used in a legislative enactment will be given their common, ordinary and accepted meaning.” Syllabus point 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984). 6. In the context of West Virginia Code § 17C-4-1 (eff. 2018), the phrase “involved in a crash” is unambiguous. 7. To be criminally responsible pursuant to West Virginia Code §§ 17C- 4-1(a) and (d) (eff. 2018), it is not a requirement that a defendant’s vehicle make direct physical contact with the other vehicle or person whose death was proximately caused by the crash. 8. The determination of whether a defendant is “involved in a crash” pursuant to West Virginia Code § 17C-4-1 (eff. 2018) is a question of fact. ii BUNN, Justice: The Circuit Court of Monongalia County certified four questions to this Court seeking clarification as to the application of West Virginia Code § 17C-4-1 (eff. 2018), pertaining to vehicle crashes involving death or personal injuries and the duties and obligations of an individual involved in the crash (commonly referred to as the hit-and-run statute). 1 After exercising our authority to reformulate the certified questions, we answer them as follows: 1. Does the Legislature’s 2010 amendment of West Virginia Code § 17C-4-1, replacing the word “accident” with “crash,” create ambiguity in the statute? Answer: No. 2. To be criminally responsible for a violation of West Virginia Code §§ 17C-4-1(a) and (d), must a defendant’s vehicle have made direct physical contact with the other vehicle or person whose death was proximately caused by the crash? Answer: No. 3. Is the determination of whether a defendant was “involved in a crash” as contemplated by West Virginia Code §§ 17C-4- 1(a) and (d) a question of fact? Answer: Yes. 1 This Court acknowledges the participation in this case of the Monongalia County Prosecuting Attorney, who filed an amicus curiae brief in support of the State of West Virginia. We have considered the arguments presented by this Amicus Curiae in deciding these issues. 1 I. FACTUAL AND PROCEDURAL HISTORY This matter arises out of events that occurred on September 5, 2019, when Petitioner Micah McClain was driving a 2012 Peterbilt tractor transporting a bulldozer on a lowboy trailer for his employer. Shortly after 12:00 p.m., he was driving in the eastbound lane of County Route 7, the Mason Dixon Highway, in Monongalia County, West Virginia. 2 An escort vehicle, driven by another employee, drove ahead of Mr. McClain. Directly behind Mr. McClain, Allison Lippert was driving a personal vehicle, and behind her, Stephanie Eddy was also driving a personal vehicle. At the same time, Nicholas Ali was driving a 2018 Peterbilt triaxle dump truck loaded with hot asphalt in the westbound lane of County Route 7. At approximately 12:16 p.m., Mr. Ali passed the escort vehicle.3 As Mr. Ali’s triaxle dump truck passed Mr. McClain’s lowboy trailer, the front left tire of Mr. Ali’s dump truck and the blade of the bulldozer Mr. McClain was hauling made contact. 4 Mr. Ali instantly lost control of the dump truck, crossed the center line, and collided with Ms. Lippert’s vehicle in the eastbound lane. Mr. Ali’s dump truck then rolled over and landed on top of Ms. Eddy’s vehicle. The hot asphalt poured into Ms. Eddy’s 2 County Route 7 in Monongalia County, West Virginia, is a narrow, two- lane road. 3 Mr. McClain asserts that the driver of the escort vehicle “immediately radioed [Mr.] McClain to warn him of the fast-approaching, oncoming triaxle dump truck.” 4 Mr. Ali and Mr. McClain disagree about who is at fault for the contact; however, it is undisputed that they made contact. 2 vehicle, and she was trapped. First responders were unable to rescue Ms. Eddy and she died on scene. 5 After the bulldozer on Mr. McClain’s lowboy trailer and Mr. Ali’s dump truck made contact, Mr. McClain did not stop or park his vehicle; instead, he continued to his intended destination approximately four miles away. 6 Forty to fifty minutes later, Mr. McClain returned to the scene of the incident with his employer supervisors. Subsequently, on February 26, 2021, a Monongalia County Grand Jury indicted Mr. McClain on one count of leaving the scene of an accident resulting in death in violation of West Virginia Code §§ 17C-4-1(a) and (d). 7 The indictment alleged that Mr. McClain unlawfully, intentionally, and feloniously drove a vehicle involved in a crash resulting in the death of Ms. Eddy; failed to immediately stop and remain at the scene of a crash in which he was involved, or as close to the scene as possible; and failed to immediately return and remain at the scene until he had fully complied with the notification and assistance requirements of West Virginia Code § 17C-4-3. Finally, the indictment asserted that the crash proximately caused the death of Ms. Eddy and that Mr. McClain knew or had reason to believe that another person suffered physical injury in said crash. 5 According to Mr. McClain, Ms. Lippert sustained only minor physical injuries. 6 The parties dispute whether Mr. McClain could have safely pulled over and parked closer to the scene of crash. 7 See infra for the text of West Virginia Code § 17C-4-1 (eff. 2018). 3 In March 2021, Mr. McClain filed an omnibus pre-trial motion requesting, among other relief, dismissal of the indictment. Mr. McClain argued that West Virginia Code § 17C-4-1(a) was unconstitutionally vague and ambiguous, and in July 2021, filed a supplemental memorandum of law in support of his argument. On the same day, Mr. McClain filed another motion to dismiss the indictment arguing that because his vehicle did not directly make contact with Ms. Eddy’s vehicle, he was not “involved in a crash.” On July 19, 2021, Mr. McClain filed a motion to certify questions to this Court indicating that the “dispositive question of law presented” is “whether the Legislature’s amendment to W. Va. Code § 17C-4-1 in 2010 by substituting the word ‘crash’ for the word ‘accident’ creates an ambiguity as applied to the undisputed facts of this case[.]” The motion further asserted that neither Mr. McClain’s tractor nor the lowboy trailer collided with Ms. Eddy’s vehicle, and therefore, neither Mr. McClain’s tractor nor the trailer was a “‘vehicle involved in a crash resulting in injury to or death of [Ms. Eddy].’” The State responded in opposition. The circuit court held a hearing on August 31, 2021, and granted Mr. McClain’s motion to certify certain questions to this Court. By order entered on October 18, 2021, 8 the circuit court certified the following questions: 1. Does the Legislature’s 2010 amendment of West Virginia Code § 17C-4-1, replacing the word “accident” with “crash” create ambiguity in the interpretation of the statute? 8 The circuit court filed an amended certification of questions to this Court on October 26, 2021, correcting a date in the previous order. 4 2. In applying the rule of lenity, does the operative phrase “vehicle involved in a crash” in West Virginia Code §[§] 17C- 4-1(a) and (d) [2018], mean that a vehicle must make direct physical contact with or collide with a person or vehicle being driven or occupied by a person resulting in his or her injury or death? 3. Does the phrase “involved in a crash” as contemplated in West Virginia Code §[§] 17C-4-1(a) [and] (d), include a driver who makes contact with a single vehicle and that vehicle makes contact with other vehicles in an unbroken chain resulting in an injury or death to persons in other vehicles? 4. If ambiguity does not exist, should the Court allow the word “crash” as used in West Virginia Code § 17C-4-1, to be given its common, ordinary and accepted meaning? Further, is it a question of fact as to whether or not the driver of any vehicle was involved in a “crash” as contemplated in West Virginia Code §[§] 17C-4-1(a) [and] (d)? The circuit court answered the first two questions in the negative and the last two questions in the affirmative. We accepted the four certified questions and placed this matter on the docket for argument pursuant to Rule 20 of the West Virginia Rules of Appellate Procedure. 9 9 At the time the circuit court certified the questions to this Court, there was also a related civil action (No. 20-C-50) pending before a different circuit court judge in Monongalia County. The court in the related civil action also certified two of the four questions to this Court. We consolidated those matters. However, prior to oral argument, Mr. McClain filed an unopposed motion to dismiss the certified questions relating to the civil matter. By order entered on August 18, 2022, we granted the motion. 5 II. STANDARD OF REVIEW This matter involves questions of law certified by a circuit court. We have established that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996). With this standard in mind, we proceed to answer the certified questions before us. III. DISCUSSION Prior to addressing the issues raised, we recognize our authority to reformulate the questions herein certified. When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under . . . the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. ... Syl. pt. 3, in part, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993). See also W. Va. Code § 51-1A-4 (“The Supreme Court of Appeals of West Virginia may reformulate a question certified to it.”). Consistent with our authority to do so, we reformulate the questions to be resolved as follows: 1. Does the Legislature’s 2010 amendment of West Virginia Code § 17C-4-1, replacing the word “accident” with “crash,” create ambiguity in the statute? 6 2. To be criminally responsible for a violation of West Virginia Code §§ 17C-4-1(a) and (d), must a defendant’s vehicle have made direct physical contact with the other vehicle or person whose death was proximately caused by the crash? 3. Is the determination of whether a defendant was “involved in a crash” as contemplated by West Virginia Code §§ 17C-4- 1(a) and (d) a question of fact? We will address each of these questions in turn. We will briefly recount the historical background regarding the statute at issue. Prior to 2010, West Virginia Code § 17C-4-1 (eff. 1999), in relevant part, provided that (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and shall remain at the scene of the accident until he or she has complied with the requirements of section three of this article: Provided, That the driver may leave the scene of the accident as may reasonably be necessary for the purpose of rendering assistance to an injured person as required by said section three. Every such stop shall be made without obstructing traffic more than is necessary. (b) Any person violating the provisions of subsection (a) of this section after being involved in an accident resulting in the death of any person is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a correctional facility for not more than three years or fined not more than five thousand dollars, or both. (Emphasis added). In 2005, a twenty-one-year-old woman named Erin Keener was killed after being hit by a car in an alley. The driver did not stop or return to the scene. 7 In response to the incident involving Ms. Keener, in 2010 the Legislature amended West Virginia Code § 17C-4-1, and the statute became known as “Erin’s Law.” Important to this matter, the Legislature replaced the word “accident” with “crash” throughout the code section. See W. Va. Code § 17C-4-1 (eff. 2010). Additional amendments to West Virginia Code § 17C-4-1 (eff. 2018) were made in 2018, and it currently provides, in relevant part, as follows: (a) The driver of any vehicle involved in a crash resulting in the injury to or death of any person shall immediately stop the vehicle at the scene of the crash or as close to the scene as possible and return to and remain at the scene of the crash until he or she has complied with the requirements of § 17C-4-3[10] of this code: Provided, That the driver may leave the scene of the crash as may reasonably be necessary for the purpose of rendering assistance to any person injured in the crash, as required by § 17C-4-3 of this code. .... (d) Notwithstanding the provisions of § 17C-4-1(b) or § 17C-4-1(c) of this code, any driver who is involved in a crash that proximately causes the death of another person who intentionally violates § 17C-4-1(a) of this code when he or she knows or has reason to believe that another person has suffered physical injury in said crash is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned: Provided, That any death underlying a prosecution under this subsection must occur within one year of the crash. (Emphasis added). 10 West Virginia Code § 17C-4-3 sets forth the specific information and reasonable assistance the driver is required to provide. 8 Turning to the certified questions before us, we first consider whether the Legislature’s amendment to the statutory language changing “accident” to “crash” creates ambiguity in West Virginia Code § 17C-4-1.11 Stated differently, this Court is tasked with determining whether the term “crash” is ambiguous. We begin our analysis of this question with a review of this Court’s rules of statutory interpretation. In deciding the meaning of a statutory provision, “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 11 Mr. McClain’s brief initially advances a void for vagueness argument and focuses on several phrases from the statute. Mr. McClain asserts that the phrases “involved in a crash” and “as close to the scene as possible” are void under the vagueness doctrine. He further contends that the Legislature “did not set the boundaries, in place or time, as to where a motorist must stop.” However, as noted in the facts herein, Mr. McClain filed a motion to certify questions and a reply in support. In neither his motion to certify nor his reply in support did Mr. McClain ask the circuit court to certify questions regarding the void for vagueness doctrine. Furthermore, the circuit court certified questions only involving ambiguity. As courts have explained, “[a]rguments involving statutory ambiguity and unconstitutional vagueness are related but not identical. . . . Although each raises the issue of a lack of clarity and uncertainty, ‘not every ambiguity, uncertainty or imprecision of language in a statutory pattern’ rises to the level of being unconstitutionally void for vagueness.” State v. Aboda, 8 A.3d 719, 722 (Me. 2010) (quoting State v. Denis, 304 A.2d 377, 380 (Me. 1973)). See also State v. Thongsavanh, 915 A.2d 421, 430 (Me. 2007) (stating that a “statute is not vague simply because we have been called upon to exercise our function of interpreting its plain meaning”). As such, we decline to address the issue of vagueness and focus solely on the issues raised in the questions certified to this Court. Cf. Pajak v. Under Armour, Inc., 246 W. Va. 387, n.4, 873 S.E.2d 918, 922 n.4 (2022) (declining the invitation by a party to answer questions that a federal district court previously refused to certify to this Court); Williamson v. Greene, 200 W. Va. 421, 428 n.12, 490 S.E.2d 23, 30 n.12 (1997) (declining to answer a certified question where a party failed to address the issue raised). To the extent Mr. McClain is arguing that the phrase “involved in a crash” is so ambiguous it is unconstitutionally vague, this claim is meritless. As explained herein, the phrase is unambiguous. 9 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). We have stated that “[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). See also State v. Scruggs, 242 W. Va. 499, 502, 836 S.E.2d 466, 469 (2019) (“‘[W]e look first to the statute’s language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.’ Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).”). “[A] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” State v. Fuller, 239 W. Va. 203, 207, 800 S.E.2d 241, 245 (2017) (quotations and citation omitted). In other words, “[a] statute is ambiguous when the statute’s language connotes doubtfulness, doubleness of meaning[,] or indistinctness or uncertainty of an expression.” Id. at 208, 800 S.E.2d at 246 (quotations and citation omitted). While Mr. McClain asserts that the word “crash” is ambiguous, he fails to set forth specifically what the doubleness or multiple interpretations of “crash” could be. 12 12 To the extent Mr. McClain argues that the language is ambiguous because one interpretation requires direct contact with the victim and one does not, we find this argument unavailing. As discussed in greater detail below, the plain language of the statute does not require direct physical contact with the victim. 10 Instead, he argues that without “any expression of legislative intent [for the amendment in wording], legislatively created definition, judicial definition, or definition in Black’s Law Dictionary as to the word ‘crash,’ reasonable minds are left to doubt . . . its meaning, interpretation, and application in relation to [West Virginia Code] § 17C-4-1(a).” We disagree. In 2010, the Legislature exercised its authority to define a crime 13 when it modified and reenacted West Virginia Code § 17C-4-1 by amending the language of the statute, specifically changing the phrase “involved in an accident” to “involved in a crash.” While the Legislature did not define “crash,” this lack of definition does not render the statute ambiguous. See State v. Sulick, 232 W. Va. 717, 724, 753 S.E.2d 875, 882 (2012) (“[W]e note that there are instances, such as the present one, where the language used by the Legislature may be plain but where it has failed to define a certain word or phrase.”). We have held that in the absence of any definition, “words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning.” Syl. pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984). See also State v. 13 This Court has held that “[t]he Legislature has power to create and define crimes and fix their punishment[.]” Syl. Pt. 2, in part, State v. Woodward, 68 W. Va. 66, 69 S.E. 385 (1910).” We have “consistently held that subject to certain constitutional limitations there exists in the Legislature the broad right to define crimes and their punishment.” State v. Butler, 239 W. Va. 168, 173, 799 S.E.2d 718, 723 (2017). Accord State ex rel. Cogar v. Kidd, 160 W. Va. 371, 234 S.E.2d 899 (1977); State ex rel. Heck’s v. Gates, 149 W. Va. 421, 141 S.E.2d 369 (1965); State v. Painter, 135 W. Va. 106, 63 S.E.2d 86 (1950). 11 Soustek, 233 W. Va. 422, 426, 758 S.E.2d 775, 779 (2014) (“In determining what undefined words and terms in a statute mean, undefined words and terms are given their common, ordinary and accepted meaning.” (quotations and citation omitted). Applying these principles to West Virginia Code § 17C-4-1, we look to the common, ordinary meaning of the term “crash.” According to Merriam-Webster’s Dictionary, the term “crash” is defined as “a breaking to pieces by or as if by collision.”14 Merriam Webster Online, https://www.merriam-webster.com/dictionary/crash (last visited Nov. 16, 2022). The New Oxford American Dictionary ascribes similar meaning, defining “crash” as “a violent collision, typically one of vehicle with another or with an obstacle.” New Oxford American Dictionary 404 (3rd ed. 2010). To the extent that Mr. McClain is also arguing that the phrase “involved in a crash” is ambiguous, that argument is also meritless. Again, that the word “involved” is not defined in the statute does not necessarily make the statute ambiguous. According to Merriam-Webster’s Dictionary, the term “involved” means “having a part in something” or “included in something.” Merriam Webster Online, https://www.merriam- webster.com/dictionary/involved (last visited Nov. 16, 2022). Likewise, the New Oxford American Dictionary defines “involved” as “connected or concerned with . . . 14 The term “crash” is used as a noun in the statute, and we consider the definition as a noun. 12 something[.]” New Oxford American Dictionary 915. The statutory language is plain, and there is no doubtfulness, doubleness of meaning, indistinctness, or uncertainty in the wording “involved in a crash.”15 Therefore, we hold that in the context of West Virginia Code § 17C-4-1 (eff. 2018), the phrase “involved in a crash” is unambiguous. 16 15 Cf. Clancy v. State, 313 P.3d 226, 231 (Nev. 2013) (“Although the constitutionality of the phrase ‘involved in an accident’ as used in [the hit-and-run statute] has never been addressed in Nevada, a number of other jurisdictions have determined that very similar language is not vague or ambiguous. In State v. Carpenter, 334 N.W.2d 137 (Iowa 1983), the Iowa Supreme Court held that such language was not vague or ambiguous because such terms were easily defined by reference to their common dictionary definitions. Id. at 139-40. The Texas Court of Appeals has held the same. Sheldon v. State, 100 S.W.3d 497, 500-01 (Tex. Ct. App. 2003).”). 16 Mr. McClain also relies on a Florida case, Gaulden v. State, 195 So. 3d 1123 (Fla. 2016), to support his position that the change in statutory language created ambiguity. In Gaulden, the court considered a certified question asking if a vehicle is “involved in a crash” for purposes of holding a driver criminally responsible for leaving the scene, when a passenger separates from a moving vehicle and collides with the roadway or adjacent pavement, but the vehicle has no physical contact either with the passenger, after the passenger’s exit, or with any other vehicle, person, or object. Id. at 1125. In answering the question in the negative, the court stated that [i]n order to uphold Gaulden’s conviction under this statute, the district court panel in Gaulden [I] expanded the interpretation of the statutory phrase “any vehicle involved in a crash” to include a passenger separating from a vehicle and colliding with the pavement. This holding is inconsistent with the Legislature’s decision to narrow the statute by replacing accident with crash in [the statute]. To the degree that this alteration of the statute creates ambiguity as to the statute’s applicability, this Court is required under the rule of lenity to construe it in favor of the accused. Id. at 1128. However, we are not persuaded by Gaulden. First, there is little to no analysis of ambiguity in Gaulden. Second, the court was asked to consider a narrow question— whether the statutory language applied when a person jumped from a moving vehicle. Gaulden is factually distinguishable from the issues currently before this Court. 13 Next, we consider the second reformulated certified question asking whether a defendant’s vehicle is required to make direct physical contact with the other vehicle or person whose death was proximately caused by the crash in order to be held criminally responsible for violating West Virginia Code §§ 17C-4-1(a) and (d). Mr. McClain contends that direct physical contact is required. We disagree. Again, the statutory language at issue is plain and unambiguous. There is nothing in the language of the hit-and-run statute indicating that direct physical contact with a victim is required to establish criminal liability. 17 The plain language of the statute 17 Mr. McClain asserts that our hit-and-run statute should be read in pari materia with West Virginia Code § 33-6-31(e)(3), the Uninsured Motorist Statute (UM Statute) which requires physical contact. However, the in pari materia rule of statutory construction applies . . . only when the particular statute is ambiguous: “‘The rule that statutes which relate to the same subject should be read and construed together is a rule of statutory construction and does not apply to a statutory provision which is clear and unambiguous.’” Syl. pt. 4, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984), quoting Syl. pt. 1, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Kimes v. Bechtold, 176 W. Va. 182, 185, 342 S.E.2d 147, 150 (1986). Because we find that West Virginia Code § 17C-4-1 is plain and unambiguous, we decline Mr. McClain’s invitation to look beyond the words of the statute at issue in this case. However, even if we read the criminal hit-and-run statute in pari materia with the UM statute, Mr. McClain’s argument still fails. We have held that “[i]n order to satisfy the ‘physical contact’ requirement set forth in W. Va. Code § 33-6-31(e)(iii), it is necessary to establish a close and substantial physical nexus between an unidentified hit-and-run vehicle and the insured vehicle.” Syl. pt. 2, in part, State Farm Mut. Auto. Ins. Co. v. Norman, 191 W. Va. 498, 446 S.E.2d 720 (1994). We further explained that “the physical contact requirement 14 requires only that the individual be a driver of a vehicle involved in a crash,18 not that the driver of a vehicle crash into a specific victim. As we have consistently reiterated, [i]t is imperative to remember that “it is not for this Court arbitrarily to read into a statute that which it does not requires there to be actual physical contact—either direct or indirect[.]” Id. at 507, 446 S.E.2d at 729 (emphasis added). Similarly, Mr. McClain contends that the rule of lenity is triggered. We have stated that “[i]t is generally recognized that in construing an ambiguous criminal statute, the rule of lenity applies which requires that ‘penal statutes must be strictly construed against the State and in favor of the defendant.’ Syl. pt. 3, State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970).” State ex rel. Morgan v. Trent, 195 W. Va. 257, 262, 465 S.E.2d 257, 262 (1995). Again, though, we do not find the subject statute to be ambiguous, and so the rule of lenity is inapplicable. 18 Moreover, for a jury to convict under the hit-and-run statute when a death is involved, subsection (d), which provides that any driver who is involved in a crash that proximately causes the death of another person, must be satisfied. See W. Va. Code § 17C- 4-1(d). In the criminal context, proximate cause has been defined as a cause: (1) which, in a natural and continuous sequence and unbroken by any new and independent cause, produces an injury; (2) without which the injury would not have occurred; and (3) from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed. State v. Bethea, 605 S.E.2d 173, 178 (N.C. App. 2004). For example, Georgia has a similar hit-and-run statute which requires a driver of “any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person” to stop and provide certain information and necessary aid. Ga. Code § 40- 6-270. The accident must be the “proximate cause of death or a serious injury[.]” Id. In discussing this section, the Supreme Court of Georgia has stated that “if the jury in a criminal trial were to determine that [a driver] caused an accident that was a substantial contributing cause of [the victim’s] death, then the causation element of hit and run . . . , as set forth in OCGA §§ 40-6-270 (b) . . ., has been met irrespective of whether [the victim’s] failure to wear a seatbelt was also a contributing factor or even another proximate cause of [the] death.” State v. Mondor, 830 S.E.2d 206, 216 (Ga. 2019). The plain statutory language regarding proximate causation also supports the position that direct physical contact with a victim is not a requirement. 15 say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Syl. Pt. 11, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013). State v. Butler, 239 W. Va. 168, 178, 799 S.E.2d 718, 728 (2017). Furthermore, this Court “‘cannot rewrite a statute so as to provide relief . . . nor can we interpret the statute in a manner inconsistent with the plain meaning of the words.’ VanKirk v. Young, 180 W. Va. 18, 20, 375 S.E.2d 196, 198 (1988).” McVey v. Pritt, 218 W. Va. 537, 540-41, 625 S.E.2d 299, 302-03 (2005). As we observed in State v. Richards, 206 W. Va. 573, 577, 526 S.E.2d 539, 543 (1999), courts must presume that a legislature says in a statute what it means and means in a statute what it says there . . . it is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled or rewritten[.] . . . See also Syl. pt. 3, in part, West Virginia Health Care Cost Review Auth. v. Boone Mem. Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996) (“If the language of an enactment is clear and within the constitutional authority of the lawmaking body which passed it, courts must read the relevant law according to its unvarnished meaning, without any judicial embroidery.”). (internal citations and quotations omitted). Mr. McClain’s argument runs afoul of the Legislature’s clear intention to hold those involved in vehicle crashes responsible for providing certain information and rendering aid, if necessary. Therefore, we now hold that to be criminally responsible pursuant to West Virginia Code §§ 17C-4-1(a) and (d) (eff. 2018), it is not a requirement that a defendant’s 16 vehicle make direct physical contact with the other vehicle or person whose death was proximately caused by the crash. 19 Lastly, we examine the third reformulated certified question inquiring if the determination of whether a defendant was “involved in a crash” as contemplated by West Virginia Code §§ 17C-4-1(a) and (d) is a question of fact. We answer the question in the affirmative. 19 This position is consistent with other jurisdictions. For example, in State v. Korovkin, 47 P.3d 1131 (Ariz. Ct. App. 2002), the court examined a situation where a defendant was convicted under Arizona’s hit-and-run statute. Id. at 1132. The defendant raced his vehicle against a friend’s vehicle. Id. During the race, the friend’s vehicle collided with another vehicle, killing the driver of the other vehicle. Id. The defendant did not have any contact with the victim. Id. On appeal, the defendant argued that there was insufficient evidence to convict him of leaving the scene of an accident because he did not directly collide with the victim. Id. at 1134. The court found that while the defendant framed his assignment of error as a sufficiency of the evidence issue, he was essentially asserting a question of law: “can [a driver] be criminally liable as a principal for leaving the scene of an accident when the car he was driving was not physically part of the collision” Id. at 1135. Considering the common, ordinary definition of “involve,” the court concluded that “a driver who races another driver who collides with a third vehicle actively participates in the immediate chain of events culminating in the collision and, by any measure, has been a participant and is implicated and entangled in the accident, notwithstanding any absence of actual physical contact with the struck vehicle.” Id. Accord State v. Sene, 128 A.3d 175, 179 (N.J. Super. App. Div. 2015) (“Coupling those words in the phrase ‘involved in an accident’ does not suggest that defendant’s vehicle needed to come into contact with the victim. Instead, the plain reading of those words means that a driver whose actions contribute to an accident, and who knows of the causal relationship, must not leave the scene of the accident.”). While these cases address statutes using “accident” as opposed to a “crash,” the analysis focused on the word “involve.” As such, we find them persuasive. 17 The plain language of the statute requires, among other elements not relevant to the issue before us, that to convict a defendant pursuant to the hit-and-run statute, the State must prove that the defendant drove a vehicle that was involved in a crash. 20 See W. Va. Code § 17C-4-1(a). Consequently, the determination of whether an individual was “involved in a crash” is an essential element of the crime of leaving the scene of a crash. 21 As we have previously stated, “[i]t is a foundation of criminal law that ‘[t]he State must prove all the elements of a crime beyond a reasonable doubt.’ State v. Less, 170 W. Va. 259, 264, 294 S.E.2d 62, 66 (1981)[.]” State v. Joseph, 214 W. Va. 525, 529, 590 S.E.2d 718, 722 (2003). In other words, in a criminal proceeding, it is the jury’s province to determine whether an element of a crime is satisfied. See State v. Easton, 203 W. Va. 20 West Virginia Code § 17C-4-1(a) sets forth additional elements that the State must prove. See W. Va. Code § 17C-4-1(a). Further, West Virginia Code §§ 17C-4- 1(b), (c), and (d) provide for elements of knowledge and proximate cause, depending on the circumstances, that must also be proven to convict under the hit-and-run statute. See W. Va. Code §§ 17C-4-1(b), (c), and (d). 21 See e.g., State v. Montoya Guzman, 96 P.3d 1173, 1178 (N.M. Ct. App. 2004) (“In order to convict Defendant of accidents involving death or personal injuries, the State was required to prove that Defendant (1) operated a motor vehicle; (2) was involved in an accident which caused great bodily harm or death of the victim; (3) failed to stop and/or failed to remain at the scene of the accident; and (4) failed to render reasonable aid to the victim. NMSA 1978, § 66-7-201 (1989); NMSA 1978, § 66-7-203 (1978).”); Gillie v. State, 181 S.W.3d 768, 770-71 (Tex. App. 2005) (“The elements of the offense charged are: (1) an operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4) resulting in damage to a vehicle; (5) fails to stop or provide the required information. See TEX. TRANSP. CODE ANN. §§ 550.022(c), 550.023 (Vernon 1999); Steen v. State, 640 S.W.2d 912, 915 (Tex.Crim.App.1982); St. Clair v. State, 26 S.W.3d 89, 98-99 (Tex. App.- Waco 2000, pet. Ref’d).”). 18 631, 638, 510 S.E.2d 465, 472 (1998) (“‘“The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.” Point 2, Syllabus, State v. Bailey, 151 W. Va. 796[, 155 S.E.2d 850 (1967)].’ Syl. pt. 3, State v. Knotts, 156 W. Va. 748, 197 S.E.2d 93 (1973).”). See also Bellamy v. Edwards, 354 S.E.2d 434, 438 (Ga. App. 1987) (“The jury was clearly authorized to find that appellant was ‘involved’ in the collision at issue.”); Clarke v. Galdamez, 789 S.E.2d 106, 109 (Va. 2016) (“To convict a defendant of a violation of [the hit-and-run] statute the jury or fact-finder must find: (1) that the defendant was the driver of a vehicle that he knew was involved in an accident[.]”). Therefore, we hold that the determination of whether a defendant is “involved in a crash” pursuant to West Virginia Code § 17C-4-1 (eff. 2018) is a question of fact. IV. CONCLUSION For the reasons explained herein, we answer questions one and two, as reformulated, in the negative and question three, as reformulated, in the affirmative. We remand this case to the Circuit Court of Monongalia County for further proceedings consistent with this opinion. Certified Questions Answered. 19	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484749/	FILED STATE OF WEST VIRGINIA November 17, 2022 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION, Petitioner, vs. No. 22-0268 HONORABLE TIMOTHY L. SWEENEY, JUDGE OF THE CIRCUIT COURT OF RITCHIE COUNTY, AND L.M., BY AND THROUGH HIS PARENTS AND LEGAL GUARDIANS, HEATHER M. AND TODD M., Respondents. MEMORANDUM DECISION The petitioner, the West Virginia Secondary School Activities Commission (“WVSSAC”), seeks a writ of prohibition to prevent the enforcement of an order entered March 7, 2022, by the Circuit Court of Ritchie County granting the respondent, student L.M.,1 a preliminary injunction to prevent the WVSSAC from enforcing its Semester and Season Rule and thereby allowing L.M. to play high school baseball during his fifth year of high school. 2 As set forth below, upon consideration of the standard for the issuance of a writ of prohibition, the Court finds that the WVSSAC is entitled to the prohibitory relief it seeks, as moulded, and determines that a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 1 In cases involving sensitive facts such as the instant proceeding, we use initials, rather than the parties’ full names. See generally W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children); In re K.L., 241 W. Va. 546, 548 n.1, 826 S.E.2d 671, 673 n.1 (2019) (using initials to refer to child parties). 2 Stephen F. Gandee represents the West Virginia Secondary School Activities Commission, and Frank E. Simmerman, Jr.; Chad L. Taylor; and Frank E. Simmerman, III, represent student L.M., and his parents, Heather M. and Todd M. (collectively, “L.M.” or “the student”). 1 This case began in March of 2020, when L.M. was a junior at Williamstown High School (“WHS”), in Wood County, West Virginia. L.M. was on the roster to play baseball for WHS during the 2019-2020 school year. On March 2, 2020, the high school baseball season began, but on March 13, 2020, Governor Jim Justice closed all West Virginia schools, and, by extension, cancelled all West Virginia spring school sports, because of the COVID-19 global pandemic. High school baseball games were scheduled to begin on or after March 18, 2020, but were cancelled due to the statewide school closure. Therefore, L.M. did not play any high school baseball games during the spring 2020 semester. Shortly thereafter, L.M. requested to be academically reclassified so that he could repeat his junior year of high school, 3 and, ostensibly would have two more years to play high school baseball but for the WVSSAC’s Semester and Season Rule. The Semester and Season Rule provides: “A student may have the privilege to participate in the interscholastic program for four consecutive years (eight consecutive semesters or equivalent) after entering the 9th grade.” W. Va. C.S.R. § 127-2-5.1 (eff. 2020).4 L.M.’s reclassification request was granted, 5 and, by being reclassified, L.M. attended high school for five years (ten consecutive semesters). After his reclassification, L.M. requested a waiver of the WVSSAC’s Semester and Season Rule to permit him to play high school baseball during his senior (fifth) year of high school. The WVSSAC provides the following guidance regarding Semester and Season Rule waiver requests: The Board of Directors [of the WVSSAC] is authorized to grant a waiver to the Semester and Season Rule when it feels the rule fails to accomplish the purpose for which it is intended and when the rule causes 3 The request to be reclassified was not based on poor academic performance. According to the record, L.M. had a 4.0 grade point average at the time. Rather, L.M. claimed that he wanted to repeat his junior year of high school because the pandemic- related school closure deprived him of the opportunity to be a high school student, attend school in person, take college admissions tests, and visit colleges. 4 Because the events giving rise to the instant proceeding occurred in 2020, the version of the WVSSAC’s Semester and Season Rule in effect at the relevant time applies to the facts of this case. 5 L.M.’s academic reclassification request was approved by his school and/or the board of education for the school’s county; the WVSSAC has indicated that it does not handle requests for academic reclassification. 2 extreme and undue hardship upon the student. Waivers may be granted in the following circumstances: The Board of Directors is authorized to consider cases in which a student entering 9th grade did not stay in continuous enrollment because of personal illness, or no school was available, or because of other undue hardship reasons ascertained through investigation. The Board of Directors may provide release from the continuous enrollment restriction provided no participation has occurred during the semester(s) in question. In no event may a student be allowed to participate for more than four seasons in any one sport in grades 9-12. W. Va. C.S.R. §§ 127-2-5.7.a-c (eff. 2020).6 By letter dated August 27, 2021, the WVSSAC Board of Directors denied L.M.’s request for a waiver of the Semester and Season Rule. L.M. then appealed to the WVSSAC’s Board of Review (“Board of Review”), which, by order entered December 8, 2021, also denied the requested waiver. In January 2022, L.M., by and through his parents, filed the underlying civil action seeking injunctive relief in the Circuit Court of Ritchie County. 7 By order entered March 7, 2022, the circuit court granted L.M. a preliminary injunction preventing the WVSSAC from enforcing the Semester and Season Rule against him, and permitting him to play high school baseball during the spring 2022 semester. The WVSSAC then filed this petition for a writ of prohibition to prevent the circuit court from enforcing its order allowing L.M. to play high school baseball during the spring 2022 semester. Before reaching the merits of the errors asserted by the WVSSAC and the standard under which we consider whether prohibitory relief is warranted in this case, we must first consider whether this Court has jurisdiction to entertain this proceeding. See generally Syl. pt. 1, in part, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995) (“[T]his Court has a responsibility sua sponte to examine the basis of its own jurisdiction.”). The 6 See note 4, supra. 7 L.M.’s reason for filing his request for a preliminary injunction in the Circuit Court of Ritchie County is not apparent from the record. As stated above, L.M. attended high school in Wood County and sought to play baseball for WHS. However, the WVSSAC did not object to the case proceeding in the Ritchie County Circuit Court. 3 question of this Court’s jurisdiction in this case concerns mootness, which is a jurisdictional consideration. See N. Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971) (per curiam) (observing that “[m]ootness is a jurisdictional question” (citations omitted)). The instant controversy regarding L.M.’s eligibility as a student athlete in the spring of 2022 is now technically moot since L.M. was permitted, by the circuit court’s preliminary injunction, to play high school baseball during the spring 2022 semester, and now, at the time of deciding this matter, the 2022-2023 school year is well underway. See State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 155, 697 S.E.2d 740, 747 (2010) (“Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” (internal quotations and citations omitted)). Nevertheless, this Court may consider technically moot issues under certain enumerated circumstances: Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided. Syl. pt. 1, Israel by Israel v. W. Va. Secondary Schs. Activities Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989). Here, the issue of a student’s eligibility to participate in a WVSSAC sanctioned activity is capable of repetition and is of a fleeting nature such that judicial consideration of the matter may not be possible while the matter is ripe due to the finite duration of the school academic year. Accordingly, we find that this Court may consider this case on its merits even though it is technically moot. Our analysis of the merits of this case is guided by the standard for issuing a writ of prohibition, which provides as follows: In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not 4 correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). See also Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.”). The WVSSAC contends in its petition for writ of prohibition that the circuit court erred by granting L.M. a preliminary injunction. In rendering its ruling, the circuit court found that the WVSSAC had “acted in an arbitrary in [sic] capricious manner in denying the [S]emester and [S]eason waiver request” and that it was “troubled by the nature of the WVSSAC’s administrative process/findings in this manner,” which the court opined had not resulted in a “fair administrative process.” We find that the WVSSAC is entitled to a writ of prohibition on the first basis for the circuit court’s preliminary injunction because the circuit court erred as a matter of law by reviewing the manner in which the WVSSAC had applied its eligibility rules. See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. In so ruling, the circuit court did not find that the Semester and Season Rule, itself, was arbitrary and capricious, nor did L.M. challenge the validity of the rule. Rather, the circuit court assessed the manner in which the WVSSAC had applied the rule to declare L.M. ineligible for the 2022 high school baseball season. We have repeatedly held that the manner in which the WVSSAC applies its rules is not subject to judicial review: Decisions properly within the purview of the legislative grant of authority to the West Virginia Secondary Schools Activities Commission under West Virginia Code § 18-2-25 (2008), such as the application of WVSSAC Rules and the review of calls or rulings made by game officials, are not subject to judicial review. 5 Syl. pt. 3, State ex rel. W. Va. Secondary Sch. Activity Comm’n v. Webster, 228 W. Va. 75, 717 S.E.2d 859 (2011). 8 Therefore, the circuit court invaded the WVSSAC’s authority to determine how the Semester and Season Rule should be applied to determine whether an individual student is eligible to participate in a sanctioned activity and whether a waiver of the Rule is warranted. This invasion of the WVSSAC’s authority was clear error. In granting L.M. a preliminary injunction, the circuit court also questioned the propriety of the WVSSAC’s administrative process by which the WVSSAC’s Board of Review upheld the denial of L.M.’s requested waiver of the Semester and Season Rule. L.M. alleged that the Board of Review had improperly considered extraneous evidence that had not been officially submitted as part of the administrative proceedings, and, upon a review of the administrative record, the circuit court found the administrative process had not been fair. While, “[a]s a general rule[,] courts should not interfere with the internal affairs of school activities commissions or associations,” 9 the statute governing the WVSSAC requires it to “provide a proper review procedure,” 10 which includes that “a fair hearing be had.” 11 Accord Syl. pt. 1, State ex rel. Wilson v. Truby, 167 W. Va. 179, 281 S.E.2d 231 (1981) (“‘An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs.’ Syl. pt. 1, Trimboli v. Board of Education, [163 W. Va. 1,] 254 S.E.2d 561 (W. Va. 1979); Syl. pt. 1, Powell v. Brown, [160 W. Va. 723,] 238 S.E.2d 220 (W. Va. 1977).”). Although it appears that the circuit court was provided with the entire administrative record from the underlying WVSSAC proceeding, the parties did not provide that record to this Court. The portion of the appendix record in this case 8 See also Syl. pt. 4, State ex rel. W. Va. Secondary Sch. Activities Comm’n v. Oakley, 152 W. Va. 533, 164 S.E.2d 775 (1968) (“In the absence of statutory power or of circumstances such as fraud, a court has no jurisdiction to determine a controversy regarding the eligibility of an athlete suspended from competition under rules promulgated by an association to which the secondary school in which he was a student at the time of suspension voluntarily belonged.”). Cf. Mayo v. W. Va. Secondary Schs. Activities Comm’n, 223 W. Va. 88, 95 n.17, 672 S.E.2d 224, 231 n.17 (2008) (“[A]n SSAC rule is subject to challenge, like all properly promulgated legislative rules, on grounds that it exceeds constitutional or statutory authority and for being arbitrary or capricious.” (citations omitted)). 9 Syl. pt. 2, Oakley, 152 W. Va. 533, 164 S.E.2d 775. State ex rel. W. Va. Secondary Sch. Activities Comm’n v. Hummel, 234 W. Va. 10 731, 738, 769 S.E.2d 881, 888 (2015). 11 Oakley, 152 W. Va. at 539, 164 S.E.2d at 779 (citation omitted). 6 pertaining to the administrative proceeding contains only the Board of Review’s final order denying L.M. a waiver of the Semester and Season Rule and finding him ineligible to play high school baseball during the spring 2022 semester. The record before this Court does not contain a transcript of the Board of Review hearing or any of the evidence that L.M. alleges was improperly considered by the Board. “If . . . an aggrieved party wishes to challenge a lower court’s ruling . . . through a petition for a writ of prohibition to this Court, a record must be made to permit this Court to consider the sufficiency of the grounds asserted for the [relief sought].” Bluestone, 226 W. Va. at 154 n.3, 697 S.E.2d at 746 n.3 (citation omitted). See also Syl. pt. 2, Conservative Life Ins. Co. v. Alexander, 114 W. Va. 451, 172 S.E. 520 (1933) (“Upon an application for a writ of prohibition, facts not negatived by the record, will be presumed in aid of the inferior court.”). Due to the lack of a sufficient record of the Board of Review’s proceedings, we are unable to determine whether the circuit court erred in concluding that L.M. did not receive a fair hearing before the Board of Review or whether the WVSSAC is entitled to relief from the circuit court’s order on this basis. For the foregoing reasons, we conclude that the circuit court exceeded its jurisdiction by conducting a judicial review of the WVSSAC’s application of its Semester and Season Rule, but that the record before this Court is insufficient to permit our review of the circuit court’s finding that the WVSSAC’s administrative proceedings were improperly conducted. Therefore, the writ of prohibition requested by the WVSSAC to prohibit the enforcement of the circuit court’s March 7, 2022 order is hereby granted as moulded. Writ Granted as Moulded. ISSUED: November 17, 2022 CONCURRED IN BY: Chief Justice John A. Hutchison Justice Elizabeth D. Walker Justice Tim Armstead Justice C. Haley Bunn Judge James W. Courrier, Jr., sitting by temporary assignment DISQUALIFIED: Justice William R. Wooton 7	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484741/	11/17/2022 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 18, 2022 Session IN RE TRUST OF KATHERINE D. GRAHAM Appeal from the Probate Court for Davidson County No. 20P-1787 David Randall Kennedy, Judge ___________________________________ No. M2021-00967-COA-R3-CV ___________________________________ Decedent created a trust and named one of the beneficiaries and Appellee, a third-party bank, as co-trustees. The trust beneficiaries petitioned for Appellee’s removal and for the substitution of another beneficiary as co-trustee. The petitioners also sought an order directing Appellee to reimburse the trust for fees paid to Appellee as co-trustee. The trial court held that Appellee administered the trust diligently and without any malfeasance, misfeasance, or non-feasance. As such, the trial court implicitly found that Appellee was entitled to its fees. The trial court further found that it would violate a material purpose of the trust to appoint, as co-trustee, another related beneficiary. Ultimately, the trial court declined to remove Appellee and to substitute another beneficiary as co-trustee. Appellant is the only petitioner/beneficiary to appeal. Although we conclude that the trial court erred in its material purpose finding, for reasons discussed below, we affirm the trial court’s decision not to remove Appellee as co-trustee. Further, we affirm the trial court’s denial of the petitioners’ request that Appellee reimburse the trust for its fees. Appellee’s motion for appellate attorney’s fees is denied. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed and Remanded KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined. John Thomas Ferguson, Chesterfield, Virginia, appellant, pro se. Paul A. Gontarek, Nashville, Tennessee, for the appellee, Truxton Trust Company. OPINION I. Background On August 24, 2019, Katherine Dinkins Graham (“Decedent”) died testate. Before her death, Decedent executed a Last Will and Testament (the “Will”) and a Second Codicil. The Will appointed Appellant John Thomas Ferguson, Decedent’s nephew, and Charles G. Cornelius, an attorney, as co-executors of Decedent’s Estate. The Will provided for a number of specific bequests before leaving the residuary estate to the Katherine D. Graham Trust (the “Trust”). In pertinent part, the Trust provided for the following: (1) the net income from the Trust would be distributed to Janice Dinkins Ferguson, Decedent’s sister, during her lifetime; (2) after Mrs. Ferguson’s death, the net income would be paid in equal shares to Janice Ferguson Hadden, Decedent’s niece, and Mr. Ferguson;1 and (3) at the death of Ms. Hadden and Mr. Ferguson, the Trust assets would be distributed to their children, Decedent’s grandnieces.2 In Item IV A of the Will, Decedent appointed Mrs. Ferguson and Mr. Cornelius as co-trustees of the Trust. Item VII C of the Will provided that, in the event Mrs. Ferguson or Mr. Cornelius could not serve as co-trustee, Ms. Hadden would be appointed; if Ms. Hadden could not serve, Mr. Ferguson would be appointed. In Item III of the Second Codicil, Decedent specifically amended Item IV A of the Will. In this amendment, she removed Mr. Cornelius as co-trustee of the Trust and substituted Appellee Truxton Trust Company (“Truxton”) as co-trustee with Mrs. Ferguson. Decedent did not amend Item VII C of the Will, which appointed successor co-trustees. In the Second Codicil, Decedent also removed Mr. Cornelius as co-executor and substituted Truxton to serve as co-executor of her Estate, along with Mr. Ferguson. After Decedent’s death, Truxton’s and Mr. Ferguson’s relationship quickly soured. As discussed further, infra, Mr. Ferguson was hostile and verbally abusive towards Truxton employees and other professionals working with him to administer Decedent’s Estate. Mr. Ferguson emailed Truxton employees, cursing them and threatening litigation if Truxton did not comply with his demands. Despite being co-executor of the Estate, Mr. Ferguson refused to cooperate with Truxton in the administration of the Estate.3 Giving rise to the immediate appeal, on October 14, 2020, Mrs. Ferguson, Ms. Hadden, and Mr. Ferguson (together, the “Petitioners”), as qualified beneficiaries of the Trust, filed a petition to modify the Trust in the Seventh Circuit Court for Davidson County, Tennessee, Probate Division (the “trial court”). On November 25, 2020, the Petitioners 1 Ms. Hadden and Mr. Ferguson are the children of Mrs. Ferguson. 2 Ms. Hadden has one daughter, and Mr. Ferguson has three daughters. 3 As mentioned in Truxton’s appellate brief, by order of March 22, 2022, the trial court removed Mr. Ferguson as co-executor of the Estate. Mr. Ferguson filed a separate appeal of his removal, and that appeal is currently pending in this Court. -2- filed an amended petition to remove co-trustee. On December 9, 2020, the Petitioners filed a second amended petition to remove co-trustee (the “Second Amended Petition”), by which they sought Truxton’s removal as co-trustee on the ground that Truxton had committed serious breaches of trust and fiduciary duty. The Petitioners sought Truxton’s removal under Tennessee Code Annotated section 35-15-706(b)(1), (2), (3), and (4), discussed further infra. In the Second Amended Petition, the Petitioners requested an award of their court costs, litigation expenses, and reasonable attorney’s fees. The Petitioners also requested that the trial court “order Truxton to repay any funds from the Trust that have been used in this litigation or that were disbursed without the approval of Janice Dinkins Ferguson, Co-Trustee, including, without limitation, all fees paid by Truxton to itself from the Trust.” On January 11, 2021, Truxton filed its Answer to the Second Amended Petition, denying all alleged claims and requesting dismissal with prejudice. On May 6, 2021, the trial court began the trial in this matter. Following testimony from Mrs. Ferguson, Ms. Hadden, and Mr. Ferguson, the Petitioners rested their case-in- chief, and the trial was adjourned until May 17, 2021. When the trial resumed, Truxton called two witnesses, Spence Dabbs and Derrick Jones, senior employees of Truxton. Although there was a court reporter present for the first day of trial, there was no court reporter present for the second day. Accordingly, the trial court approved a statement of the evidence for the second day of trial.4 By order of July 23, 2021, the trial court dismissed the Second Amended Petition with prejudice. In pertinent part, the trial court found that: (1) Mr. Ferguson repeatedly obstructed the efficient administration of Decedent’s Estate and the Trust; (2) Mr. Ferguson repeatedly harassed and threatened Truxton’s employees and other professionals involved in the administration of the Estate and the Trust; (3) there was no evidence that Truxton committed a breach of trust, failed to cooperate in the administration of the Trust, or that Truxton was unfit, unwilling, or persistently failed to administer the Trust in accordance with its terms; (4) Truxton performed admirably during difficult circumstances; (5) Truxton committed no acts of malfeasance, misfeasance, or non-feasance with respect to its administration of the Trust; (6) if Ms. Hadden was permitted to serve as co-trustee, Mr. Ferguson would “likely continue his pattern of controlling behavior and exert pressure on both Mrs. Ferguson and Ms. Hadden so as to eviscerate any semblance of independence on their part”; (7) it would violate a material purpose of the Trust to remove and replace Truxton with a related individual trustee; (8) Decedent intended that an independent co- trustee serve with Mrs. Ferguson; and (9) a corporate successor co-trustee should be appointed to replace Truxton. Mr. Ferguson is the only Petitioner to appeal. 4 When a transcript of proceedings is unavailable, a statement of the evidence may be filed in its place. See Tenn. R. App. P. 24(c). -3- II. Issues Mr. Ferguson raises several issues, as stated in his brief: 1. Whether the Probate Court erred in construing the last will and testament of Katherine Dinkins Graham and a residuary trust, the Katherine D. Graham Trust (the “Trust”), created pursuant thereto when it ruled that the appointment of Truxton Trust Company (“Truxton”) as a co-trustee was a material purpose of the Trust. 2. Whether the Probate Court abused its discretion by denying the petition to remove Truxton as a co-trustee of the Trust. 3. Whether the Probate Court abused its discretion when it refused to appoint Janice Ferguson Hadden to serve as successor co-trustee of the Trust, ignoring the clearly expressed intent of the settlor. 4. Whether the Probate Court abused its discretion when it refused to require Truxton to repay to the Trust the unauthorized fees that it has paid itself as co-trustee. 5. Whether the Probate Court abused its discretion when it refused to award the petitioners their attorneys’ fees and costs. As Appellee, Truxton raises one additional issue: 1. Whether the attorneys’ fees and expenses incurred by Truxton in this appeal should be awarded against the Appellant and/or the Trust pursuant to Tenn. Code Ann. § 35-15-1004(a). III. Standard of Review We review a non-jury case “de novo upon the record with a presumption of correctness as to the findings of fact, unless the preponderance of the evidence is otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P. 13(d)). The trial court’s conclusions of law are reviewed de novo and “are accorded no presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008). Furthermore, as we have noted many times, because “trial courts are able to observe witnesses as they testify and to assess their demeanor, . . . trial judges [are best suited] to evaluate witness credibility.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (citing State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991)); see also Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733 (Tenn. 2002) (“As this Court has repeatedly emphasized, a -4- reviewing court must give ‘considerable deference’ to the trial judge with regard to oral, in-court testimony as it is the trial judge who has viewed the witnesses and heard the testimony.”). As such, “appellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.” Wells, 9 S.W.3d at 783 (internal citations omitted). Moreover, while we are cognizant of the fact that Mr. Ferguson is representing himself in this appeal,5 it is well-settled that “pro se litigants are held to the same procedural and substantive standards to which lawyers must adhere.” Brown v. Christian Bros. Univ., 428 S.W.3d 38, 46 (Tenn. Ct. App. 2013). This Court has held that “[p]arties who choose to represent themselves are entitled to fair and equal treatment by the courts.” Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000) (citing Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)). Nevertheless, “courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995)). With the foregoing in mind, we turn to address the substantive issues. IV. Analysis A. Removal of Truxton Mr. Ferguson argues that the trial court erred when it declined to remove Truxton and substitute Ms. Hadden as co-trustee. Tennessee Code Annotated section 35-15-706(b) provides four enumerated factors under which a court may remove a trustee. Tenn. Code Ann. § 35-15-706(b) (“The court may remove a trustee if . . . .”) (emphasis added). As this Court has explained, “may” is a permissive term that is “generally regarded as directory or discretionary.” In re Estate of Edmonds, No. W2018-01783-COA-R3-CV, 2019 WL 2304053, at 6 (Tenn. Ct. App. May 30, 2019) (quoting Baker v. Seal, 694 S.W.2d 948, 951 (Tenn. Ct. App. 1984)). “Given the permissive language used in [section 35-15-706], it appears that the trial court retains discretion with regard to its removal decisions.” In re Estate of Edmonds, 2019 WL 2304053, at 6. Accordingly, we review the trial court’s decision not to remove Truxton as co-trustee under an abuse of discretion standard. “‘An abuse of discretion occurs when the trial court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.’” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (quoting Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013)). Because the Petitioners alleged that Truxton’s removal was permitted under all four factors, we address each in turn below. 5 Although pro se, at oral argument, Mr. Ferguson explained that he is a retired attorney. We also note that the Petitioners were represented by counsel at trial. -5- 1. Section 35-15-706(b)(1)-(3) Under the first three factors, a court may remove a trustee if: (1) The trustee has committed a serious breach of trust; (2) Lack of cooperation among co-trustees substantially impairs the administration of the trust; (3) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; Tenn. Code Ann. § 35-15-706(b)(1)-(3). Concerning these provisions, the trial court found: 12. The Petitioners have presented no evidence to show that Truxton has committed any breach of trust, has failed to cooperate in the administration of the Trust, or that Truxton is unfit, unwilling, or has persistently failed to administer the Trust in accordance with its terms. To the contrary, the evidence presented demonstrates that Truxton has worked diligently to fulfill its fiduciary duties in the midst of a difficult situation brought about by Mr. Ferguson, and given the circumstances, Truxton has performed admirably. 13. The Court expressly finds that Truxton has committed no acts of malfeasance, misfeasance, or non-feasance with respect to its administration of the Trust. On appeal, Mr. Ferguson alleges that Truxton: (1) acted “a number of times and in a number of respects without seeking or obtaining the agreement of” Mrs. Ferguson; (2) “unilaterally and without the knowledge of [Mrs. Ferguson] establish[ed] an account for the Trust with itself under its sole control”; (3) transferred assets of the Estate into the Trust account; (4) paid itself fees as co-trustee;6 (5) failed to cooperate with Mrs. Ferguson; and (6) persistently failed to administer the Trust effectively. We note that Mr. Ferguson makes these allegations in his appellate brief without providing citations to the record to support them.7 See Tenn. R. App. P. 27(a)(7)(A) (providing that an appellant’s brief shall contain 6 We address Truxton’s fees, infra at IV B. 7 Mr. Ferguson’s “argument” regarding Tennessee Code Annotated section 35-15-706(b)(3) not only fails to provide record citations but also fails to make any substantive argument. Mr. Ferguson’s entire discussion in this portion of his brief is: -6- an argument setting forth, in pertinent part, the contentions of the appellant with respect to the issues presented and “appropriate references to the record”). From our review, the record does not support Mr. Ferguson’s allegations. Indeed, the Petitioners failed to present any evidence that Truxton committed a serious breach of trust, that a lack of cooperation between Mrs. Ferguson and Truxton substantially impaired the administration of the Trust, or that Truxton was unfit, unwilling, or persistently failed to administer the Trust effectively such that Truxton’s removal best served the interests of the beneficiaries. Tenn. Code Ann. § 35-15-706(b)(1)-(3). To the contrary, the record shows that, although the Petitioners did not want Truxton to serve as co-trustee, Truxton fulfilled its fiduciary duties and administered the Trust effectively, despite a lack of communication from Mrs. Ferguson and abusive communications from Mr. Ferguson, discussed further infra. Turning to the record, Mr. Dabbs, a licensed attorney who helped administer the Trust, testified concerning the Trust’s formation, administration, and Truxton’s communications with Mrs. Ferguson regarding same. The record shows that, on July 26, 2020, Mr. Ferguson, as co-executor of the Estate, emailed Mr. Dabbs stating, in pertinent part, that, as executors of the Estate, they should transfer the remaining cash and all non- cash assets of the Estate to the Trust before July 31, 2020.8 Although Mrs. Ferguson testified that she “was not informed that this [T]rust was being funded,” Mr. Dabbs testified that he called Mrs. Ferguson on July 31, 2020 to inform her of the partial funding. Mr. Dabbs further testified that Mrs. Ferguson did not object to the funding, and that she thanked Truxton for its work. Given the trial court’s finding that Truxton “committed no acts of malfeasance, misfeasance, or non-feasance with respect to its administration of the Trust,” it is apparent from the final order that the trial court implicitly credited Mr. Dabbs’ testimony over that of Mrs. Ferguson. See Magness v. Couser, No. M2019-01138-COA- R3-CV, 2020 WL 1983797, at 3 (Tenn. Ct. App. Apr. 27, 2020) (quoting Williams v. City of Burns, 465 S.W.3d 96, 120 (Tenn. 2015)) (“This Court is ‘required to defer to the trial court’s credibility findings, including those that are implicit in its holdings.’”); see also Wells, 9 S.W.3d at 783 (stating that “appellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary”). TUTC Section 35-15-706(b)(3) provides for the removal of a trustee who persistently fails to administer the trust effectively. In the case at bar, Truxton’s persistent failure to administer the Trust to best serve the interests of the beneficiaries is grounds for its removal under TUTC Section 35-15-706(b)(3). Such a “skeletal argument” could result in Mr. Ferguson’s waiver of this issue. Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.”). However, for completeness, we review, infra, whether the trial abused its discretion when it declined to remove Truxton under Tennessee Code Annotated section 35-15-706(b)(3). 8 This email was entered into evidence as trial exhibit number 5. -7- There is nothing in the record that would lead us to disturb the trial court’s credibility finding. Concerning the Trust’s administration, Mr. Dabbs testified that Truxton sent Mrs. Ferguson monthly statements of the Trust’s assets and activities. In her testimony, Mrs. Ferguson acknowledged receipt of the monthly statements and conceded that she reviewed the statements each month. Mr. Jones, the Senior Managing Director for Truxton and Truxton’s Chief Fiduciary Officer, testified that Mrs. Ferguson never responded to these monthly updates. Similarly, Mr. Dabbs testified that he could not recall any instance where Mrs. Ferguson questioned or complained of the activities undertaken by Truxton as co- trustee, although he noted instances where Truxton attempted to contact Mrs. Ferguson and received no response from her. In her testimony, Mrs. Ferguson admitted that there were occasions where she “did not acknowledge [Truxton’s] communication because [she] did not agree with it.” However, Mrs. Ferguson also testified that she never complained to any representative of Truxton concerning the manner in which Truxton administered or invested Trust assets.9 Regardless, despite Mrs. Ferguson’s testimony, the record shows that, since the Trust’s partial funding in July 2020, Truxton’s investment decisions have resulted in approximately a $200,000.00 net gain to the Trust’s assets. Such results do not evidence malfeasance, misfeasance, or non-feasance on Truxton’s part. Finally, Mr. Dabbs testified that: (1) Truxton had not engaged in any actions that would rise to the level of a breach of trust in its administration of the Trust; (2) Truxton had acted at all times in good faith and for the benefit of the Trust; and (3) Mr. Dabbs and his colleagues had cooperated and attempted to work with both Mr. Ferguson, as co- executor of the Estate, and Mrs. Ferguson, as co-trustee, of the Trust. Similarly, Mr. Jones testified that, in his opinion, Truxton’s actions in no way rose to the level of “serious breach of trust.” In view of the trial court’s credibility finding, and from the entire record, the evidence does not preponderate against the trial court’s substantive finding that Truxton committed no acts of malfeasance, misfeasance, or non-feasance. Accordingly, we affirm the trial court’s conclusion that Truxton’s removal was not warranted under Tennessee Code Annotated section 35-15-706(b)(1)-(3). 2. Section 35-15-706(b)(4) Turning to the final factor, a court may remove a trustee if: (4) There has been a substantial change of circumstances or removal is 9 We note that Mrs. Ferguson testified that she wrote a letter to “Mr. Stumb,” the Chairman of Truxton’s Board of Directors, and, although she did not “specifically register a complaint,” she asked Truxton to resign because she “felt that [her] best interests were not being served.” Mrs. Ferguson testified that she wrote this letter prior to the Trust’s funding. It is perplexing to this Court why Mrs. Ferguson’s believed her best interests were not being served when the Trust had yet to be funded. Regardless, the letter was not presented as evidence to the trial court and is not part of the appellate record. -8- requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available. Tenn. Code Ann. § 35-15-706(b)(4). As the Tennessee Supreme Court has explained, when construing a statute, “[o]ur analysis naturally begins with the words used in the statute,” Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366 (Tenn. 2014) (citing Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 420 (Tenn. 2013)), and we must interpret those words under their “natural and ordinary meaning in the context in which they appear and in light of the statute’s general purpose.” Id. (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)). Given the Tennessee Legislature’s use of the conjunctive, “and,” under the plain language of the statute, the trial court had the discretion, but was not required, to remove Truxton if all of the qualified beneficiaries requested Truxton’s removal and the trial court found each of the following: (1) that Truxton’s removal best served the interests of all of the beneficiaries; (2) that Truxton’s removal was not inconsistent with a material purpose of the trust; and (3) that a suitable successor co-trustee was available. Tenn. Code Ann. § 35-15-706(b)(4). It is undisputed that all of the qualified beneficiaries requested Truxton’s removal. Accordingly, we review the remaining elements below. We begin our review with the trial court’s finding that Truxton’s removal as co- trustee and the appointment of a related individual co-trustee would violate a material purpose of the Trust. In making this finding, the trial court reasoned: 20. The provisions of the Decedent’s Will and Second Codicil demonstrate that the Decedent intended that an independent co-trustee would serve with Mrs. Ferguson. The Decedent could have appointed Mr. Ferguson or Ms. Hadden to serve with their mother as a co-trustee, but twice she declined to do so, first in her original Will when she appointed an independent attorney, Charles G. Cornelius, to serve with Mrs. Ferguson, and then again in her Second Codicil, in which she appointed Truxton to serve as a co-trustee with Mrs. Ferguson in place of Mr. Cornelius. We do not interpret such a material purpose from the plain language of Decedent’s Will and Second Codicil. As discussed, supra, in Item IV A of the Will, Decedent appointed Mrs. Ferguson and Mr. Cornelius as co-trustees of the Trust. Item VII C of the Will named successor co-trustees in the event Mrs. Ferguson or Mr. Cornelius could not serve. Specifically, Item VII C stated: In the event that my sister [Mrs. Ferguson] or CHARLES G. CORNELIUS shall at any time be unable to serve as a Co-Trustee, then I appoint my niece, JANICE FERGUSON HADDEN, as a Co-Trustee, without bond. If for any -9- reason JANICE FERGUSON HADDEN is unable to serve as a Co-Trustee of any Trust at any time, then I appoint JOHN THOMAS FERGUSON, as substitute Co-Trustee, also without bond. In any other cases where a substitute Co-Trustee is needed, I direct that the existing Co-Trustee shall seek a qualified replacement Co-Trustee and obtain the approval of a Court of competent jurisdiction for such replacement. I waive bond for all substitute and successor Trustees or Co-Trustees. Importantly, when Decedent changed portions of her Will by way of the Second Codicil, she declined to delete or change Item VII C, discussed above. Concerning the Trust, the only provision Decedent altered in the Second Codicil was Item IV A, wherein she removed Mr. Cornelius as a co-trustee and substituted Truxton in his place. On this Court’s reading, with Truxton’s substitution for Mr. Cornelius in Item VII C, the Will then read: “In the event that my sister or [Truxton] shall at any time be unable to serve as a Co- Trustee, then I appoint my niece, Janice Ferguson Hadden, as a Co-Trustee[.]” Truxton appears to agree with our interpretation. At oral argument, when asked “If Truxton couldn’t serve, does it name a successor trustee?” Truxton’s attorney responded, “That’s where Ms. Hadden comes in. So, Ms. Hadden is specifically named in the instrument to serve as a successor if for some reason Truxton . . . is unable to serve further as co-trustee.” By Truxton’s own admission, Ms. Hadden was named to serve as a successor trustee if either a related co-trustee, i.e., Mrs. Ferguson, or an independent co-trustee, i.e., Truxton, could not serve. Indeed, it appears that Decedent intended for Ms. Hadden to serve as successor co-trustee, regardless of whether she replaced a related or independent co-trustee. As such, it was not a material purpose of the Trust that one co-trustee be an independent third-party, and the trial court’s conclusion otherwise was error. See Tenn. Code Ann. § 35-15-706(b)(4). Our conclusion concerning the trial court’s material purpose finding is not dispositive of the issue before us. As discussed, supra, a court must find all three elements in (b)(4) before it has the discretion to remove a trustee under this section. We recall the remaining elements: (1) that Truxton’s removal would best serve the interests of all of the beneficiaries; and (2) that a suitable successor co-trustee was available. Tenn. Code Ann. § 35-15-706(b)(4). We consider these remaining elements together. As an initial matter, we note that, in the Second Amended Petition, the Petitioners did not specifically request that Ms. Hadden replace Truxton as co-trustee. However, in reviewing the transcript of the evidence from the first day of trial as well as Mr. Ferguson’s appellate brief, it appears that this was the Petitioners’ intent. It is clear that the trial court was concerned with Mr. Ferguson’s influence over Ms. Hadden should the trial court appoint her co-trustee. In its final order, the trial court specifically noted that it had “an opportunity to observe [the Petitioners’] respective personalities and demeanors.” Based on these observations, as well as the evidence concerning Mr. Ferguson’s past interactions with Truxton, the trial court opined that, “if Ms. Hadden were permitted to serve as a co- - 10 - trustee of the Trust with Mrs. Ferguson, Mr. Ferguson would most likely continue his pattern of controlling behavior and exert pressure on both Mrs. Ferguson and Ms. Hadden so as to eviscerate any semblance of independence on their part.” Implicit in this finding is the trial court’s conclusion that Truxton’s removal, and Ms. Hadden’s appointment, would not best serve the interests of all of the beneficiaries; consequently, the trial court also implicitly concluded that Ms. Hadden was not a suitable successor co-trustee. See Tenn. Code Ann. § 35-15-706(b)(4); Hollingsworth v. Hollingsworth, No. 02A01-9103- CV-00043, 1991 WL 220613, at 2 (Tenn. Ct. App. Oct. 31, 1991) (holding that certain findings of fact are implicit in the trial court’s rulings and are to be reviewed with a presumption of correctness). As discussed, supra, this Court gives trial courts “considerable deference” concerning in-court testimony, where it is the trial judge who has observed witnesses as they testify and has assessed their demeanor. See Wells, 9 S.W.3d at 783 (citing Pruett, 788 S.W.2d at 561; Bowman, 836 S.W.2d at 566); see also Richards, 70 S.W.3d at 733. This Court “will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.” Wells, 9 S.W.3d at 783 (internal citations omitted). Here, there is evidence to support the trial court’s concern regarding Mr. Ferguson’s pattern of controlling and obstructive behavior. As discussed, supra, the record includes multiple emails from Mr. Ferguson to Truxton employees and to a real estate agent who was engaged to help sell real property belonging to the Estate. In these emails, Mr. Ferguson is condescending, harassing, and controlling. For example, in one June 29, 2020 email to Truxton employees concerning the sale of real property, Mr. Ferguson wrote, in part: I will update you on the repairs when practically possible. Please do not interfere in the work that is being done to get the sale closed. If you need some more chardonnay or some more legos to build models with your kids, let me know. On review of the other emails surrounding this exchange, it is clear that Truxton employees were working diligently with the real estate agent to timely close the sale, but it was Mr. Ferguson who was disruptive and uncooperative. Nevertheless, Mr. Ferguson instructed Truxton, co-executor of the Estate, not to interfere in the sale, exemplifying his need to dominate and control those around him. This is merely one example of Mr. Ferguson’s problematic behavior; several other emails Mr. Ferguson sent contain expletives that we will not repeat here. Unfortunately, it appears that Mr. Ferguson directed his ire at both related and unrelated parties. Mr. Jones testified concerning a conversation he had with Ms. Hadden during the process of selling Decedent’s condominium. Mr. Jones testified that Mr. Ferguson loudly berated both his mother and his sister to the point that the real estate agent left the condominium because she was uncomfortable with the situation. Mr. Jones - 11 - testified that the interaction was so distressing he felt the need to follow up with Ms. Hadden to ensure that she was okay. Mr. Jones also testified to a conversation he had with Mrs. Ferguson wherein Mrs. Ferguson wished Truxton “good luck” in dealing with Mr. Ferguson because they were “going to need it.” In her testimony, Ms. Hadden acknowledged that her brother is “hardheaded.” Based on our review, Mr. Ferguson’s behavior exemplified in the record is abusive and controlling. The evidence preponderates in favor of the trial court’s concern that, should Truxton be removed and Ms. Hadden substituted as co-trustee, Mr. Ferguson would likely exert pressure on both Ms. Hadden and Mrs. Ferguson to meet his demands, thus dismantling the required independence or impartiality of the co-trustees. See Tenn. Code Ann. § 35-15-803 (“If a trust has two (2) or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests.”). Even more troubling is the evidence in the record showing that Mr. Ferguson has a history of making poor financial decisions, that he has made certain self-serving financial decisions, and that he has not always been honest or transparent concerning financial matters related to the Estate’s administration. In short, Truxton’s removal and Ms. Hadden’s appointment would likely lead to Mr. Ferguson’s improper administration of the Trust, which would best serve the interest of only one beneficiary, Mr. Ferguson. Tenn. Code Ann. § 35-15-706(b)(4). Given the “particular family dynamics involved in this case,” the trial court found that the only suitable successor co-trustee would be an unrelated corporate trustee. Based on the record and for the reasons discussed above we agree. The trial court held that it would remove Truxton under Tennessee Code Annotated section 35-15-706(b)(4) if the Petitioners first identified “a suitable Tennessee corporate fiduciary to serve with Mrs. Ferguson as a successor co-trustee of the Trust[.]” The Petitioners declined to seek an alternate corporate co-trustee, and instead appealed the trial court’s decision not to appoint Ms. Hadden. For the many reasons discussed, supra, we cannot conclude that the trial court abused its discretion in declining to remove Truxton and appoint Ms. Hadden co- trustee of the Trust under Tennessee Code Annotated section 35-15-706(b)(4). B. Truxton’s Fees as Co-Trustee Mr. Ferguson next argues that the trial court abused its discretion when it denied the Petitioners’ request that Truxton repay to the Trust all of the fees that it previously paid itself as co-trustee. The trial court’s denial of such request is implicit in its findings that Truxton “has worked diligently to fulfill its fiduciary duties” and has “committed no acts of malfeasance, misfeasance, or non-feasance with respect to its administration of the Trust.” In short, the trial court implicitly found that Truxton was entitled to the fees it paid itself for the work performed as co-trustee. Having affirmed the trial court’s holding that Truxton administered the Trust diligently and in keeping with its fiduciary duties, we agree that Truxton was due compensation for its services. - 12 - The terms of the Trust did not specify an amount for the co-trustees’ compensation. Rather, Item VII A of the Will provided: My Trustees shall pay all expenses of the Trust[] including legal compensation to themselves and shall render annual reports of income, expenses, and investments to those persons entitled to the income therefrom. Tennessee Code Annotated section 35-15-708(a) provides that, “[i]f the terms of a trust do not specify a trustee’s . . . compensation, and if the settlor, if living, or otherwise a majority of the qualified beneficiaries . . . have not otherwise agreed, a trustee . . . is entitled to compensation that is reasonable under the circumstances.” Tenn. Code Ann. § 35-15- 708(a). There is no evidence to show that the beneficiaries agreed to a specific amount of compensation for Truxton and informed Truxton of that amount. Tenn. Code Ann. § 35- 15-708(a). Accordingly, Truxton was entitled to “compensation that [was] reasonable under the circumstances.” Tenn. Code Ann. § 35-15-708(a). The only evidence concerning Truxton’s fees is Mr. Ferguson’s testimony that Truxton paid itself around $2,000.00 per month. In his appellate brief, Mr. Ferguson asserts that Truxton paid itself approximately $70,000.00 by the time of trial. There is no document in the record showing the fee schedule for Truxton’s administration of the Trust, and it does not appear from the statement of the evidence that either of the Truxton employees testified to a specific amount of fees. Although each of the Petitioners testified that Truxton’s fees were unreasonable, they presented no evidence, other than their opinions, as to why Truxton’s fees were unreasonable. Mr. Ferguson testified, and he alleges in his appellate brief, that Truxton’s fees were higher than Truist’s or UBS’ fees, but there is no evidence in the record concerning Truist’s or UBS’ fee schedules. Mr. Jones testified that Truxton’s fees have remained the same since Decedent first opened her account with Truxton in 2004, and that, prior to moving her account to Truxton, Decedent paid higher fees at SunTrust.10 We deduce from this testimony that Decedent was likely aware of—and consented to— Truxton’s fees when she chose it to serve as co-trustee. Further, Mr. Jones testified that Truxton recently conducted a market survey for its trust services and found that its fees for investment and trustee services were in the middle third of its competitors. Given the foregoing, it does not appear that Truxton’s fees, whatever the specific amount, were unreasonable. Accordingly, we affirm the trial court’s denial of the Petitioners’ request that Truxton reimburse to the Trust the amounts it paid itself as co-trustee. 10 We note that, in December 2019, SunTrust merged with BB&T to form Truist Bank. See Kevin Payne & Mitch Strohm, SunTrust Bank, Now Truist, Review, FORBES (Nov. 11, 2021, 10:13 AM), https://www.forbes.com/advisor/banking/suntrust-bank-now-truist-review/. - 13 - C. Attorneys’ Fees 1. The Petitioners’ Fees at Trial Mr. Ferguson’s final argument is that the trial court abused its discretion when it refused to award the Petitioners their attorney’s fees and costs. In its final order, the trial court stated: With respect to attorneys’ fees, the parties may file motions in accordance with the local rules and applicable law requesting that such fees be charged to the Trust. Any such motions will be reviewed in accordance with the local rules and other applicable law. On review of the record, it appears that the Petitioners failed to file a motion requesting attorney’s fees and costs, and Mr. Ferguson does not reference any such motion in his appellate brief. Rather, he simply argues that the trial court abused its discretion when it “refuse[d] to award attorneys’ fees and costs to the Petitioners.” Because Mr. Ferguson failed to raise this issue with the trial court, it is waived on appeal. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (“It has long been the general rule that questions not raised in the trial court will not be entertained on appeal. . . .”). 2. Truxton’s Fees on Appeal As Appellee, Truxton asks this Court to award it attorney’s fees and expenses incurred in defending this appeal. In Tennessee, “litigants are responsible for their own attorney’s fees absent a statute or agreement between the parties providing otherwise.” Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005) (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). Truxton asks that we award it attorney’s fees under Tennessee Code Annotated section 35-15-1004(a), which provides: In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy. Tenn. Code Ann. § 35-15-1004(a). An award of appellate attorney’s fees under this section lies within this Court’s discretion. In re Estate of Goza, 397 S.W.3d 564, 571 (Tenn. Ct. App. 2012) (citing Fickle v. Fickle, 287 S.W.3d 723, 737 (Tenn. Ct. App. 2008)). In our discretion, we decline to award Truxton its attorney’s fees on appeal. - 14 - V. Conclusion For the foregoing reasons, we affirm the trial court’s final order. The case is remanded for such further proceedings as are necessary and consistent with this opinion. Costs of the appeal are assessed to the Appellant, John Thomas Ferguson, for all of which execution may issue if necessary. s/ Kenny Armstrong KENNY ARMSTRONG, JUDGE - 15 -	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484739/	NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 2022 IL App (3d) 180602-U Order filed November 17, 2022 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2022 STEVEN ALAN CREIGHTON, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Petitioner-Appellee, ) Peoria County, Illinois. ) v. ) ) THE PEOPLE OF THE STATE OF ILLINOIS; ) THE ILLINOIS STATE POLICE; and THE ) OFFICE OF THE ILLINOIS ATTORNEY ) Appeal No. 3-18-0602 GENERAL, ) Circuit No. 18-MR-162 ) Respondents ) ) (The Illinois State Police and The Office of the ) Illinois Attorney General, ) The Honorable ) Katherine S. Gorman, Respondents-Appellants). ) Judge, presiding. ____________________________________________________________________________ JUSTICE DAUGHERITY delivered the judgment of the court. Justices Hauptman and Hettel concurred in the judgment. ____________________________________________________________________________ ORDER ¶1 Held: The circuit court’s order finding that the registration requirement under the Illinois Sex Offender Registration Act (730 ILCS 150/1 et. seq. (West 2018)) was unconstitutional as applied to the petitioner was insufficient to comply with the procedural requirements of Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006) for such a finding. ¶2 Petitioner, Steven Alan Creighton, filed a petition for the removal of his name from the Illinois Sex Offender Registry. The circuit court granted the petition, finding the mandate for Creighton to register as a sexual predator in Illinois under the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2018)) was unconstitutional as applied to Creighton. The State appealed, arguing this court should vacate the circuit court’s order because: (1) the circuit court’s order failed to comply with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006); and (b) the circuit court failed to conduct an evidentiary hearing and make factual findings in relation to Creighton’s as-applied constitutional challenge. We vacate the circuit court’s orders at issue and remand for further proceedings. ¶3 I. BACKGROUND ¶4 On September 21, 2000, in the State of Louisiana, Creighton pled no contest to the charge of “indecent behavior with a juvenile,” with the victim purportedly being his minor daughter. Creighton was sentenced to five years of unsupervised probation and a five-year suspended sentence. A few weeks later, after moving to Illinois, Creighton registered with the Illinois State Police (ISP) in conformity with the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2000)). ¶5 On April 3, 2018, Creighton filed a “Petition for Removal of Sexual Predator Designation” and filed an amended petition the same day, naming the State of Illinois as the respondent. In the amended petition, Creighton alleged that: he was born on February 7, 1953; he was registered as a “sexual predator” in Illinois due to his conviction in Louisiana on September 21, 2000, for “Indecent Behavior with a Juvenile”; on or about October 30, 2000, he established residency in Illinois and registered on the Illinois sex offender registry as required pursuant to SORA (730 ILCS 150/3 (West 2018)); he was deemed a sexual “predator” in Illinois and was 2 required to remain on the Illinois sex offender registry for the duration of his natural life (730 ILCS 150/7 (West 2018)) 1; on July 2, 2001, he relocated to Florida and registered there as a sexual “offender”; in 2001 Creighton moved to Thailand, where he has since continuously resided, is married, has a newborn daughter and two other minor children, and owns a restaurant business; he has not had any legal issues since residing in Thailand; in October 2017, Creighton’s mother became ill and Creighton and two of his minor children flew from Thailand to Chicago, Illinois, to be with her; Creighton and his minor children were scheduled to return home to Thailand on November 7, 2017; on November 6, 2017, the United States Department of Homeland Security informed the Thai Immigration Bureau that Creighton was scheduled to arrive in Thailand the following day and that Creighton was a registered sex offender in the United States based on his 2000 conviction for “Aggravated Criminal Sexual Abuse/Victim<13, or a substantially similar Louisiana state offense”; upon arriving in Thailand, Creighton and his two minor children were apprehended by Thailand immigration officials and immediately returned to the United States; Creighton has no business or personal ties to, or within, the United States, other than his ailing and elderly Mother; due to his categorization in Illinois as a “sexual predator,” he is prohibited from returning to Thailand and cannot be reunited with his spouse, children, and residence, and cannot resume his restaurant business; and Creighton was “situated outside of the United States” and did not intend to, or have any reason to, return to the United States or the State of Illinois. ¶6 In the amended petition, Creighton argued that his continued placement on the Illinois sex offender registry was unconstitutional in violation of the Eighth Amendment of the United 1 Under SORA, “sexual predators are subject to a lifetime registration term while sex offenders must register for 10 years.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 209 (2009) (citing 730 ILCS 150/7 (West 2004)). 3 States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as applied to him. Creighton contended that his continued placement on the Illinois sex offender registry, among other punitive effects, precluded him from entering Thailand, where “he [had] lived without incident for over 16 years.” Creighton requested the circuit court order that his name be removed from the Illinois sex offender registry. ¶7 On June 15, 2018, a hearing took place on Creighton’s amended petition. An attorney from the Office of the Attorney General (OAG) indicated to the circuit court that the Illinois State Police (ISP) was the proper respondent in this matter and that she would be entering a limited appearance to argue that service had not been effectuated on the ISP. Creighton did not appear at the hearing but was represented by two attorneys (hereinafter “Creighton’s counsel”). Creighton’s counsel indicated that Creighton was seeking to have SORA declared unconstitutional as it applied to him “under this particular circumstance,” noting that Creighton was “last a resident of the State of Illinois approximately 17 or 18 years ago for a very brief period” and that Louisiana had designated Creighton to be sexual “offender” while the State of Illinois deemed him to be a sexual “predator.” Creighton’s counsel also noted that in Florida Creighton had been categorized as a sexual offender. ¶8 The circuit court asked whether Creighton’s designation as a “sexual predator” had been a mistake. Creighton’s counsel stated: “[t]he conviction of aggravated criminal sexual abuse is a predatory lifetime registration scheme violation. And what differentiates * aggravated versus non-aggravated is simply the fact that one of the subsections in the aggravated statute is if the victim is a family member. * I’m not sure any 4 formal investigation was ever made when they designated him * in Illinois. * I believe that the victim in this case was, in fact, Mr. Creighton’s daughter, and that’s where we get to the aggravated aspect of the conviction and its equivalent in Illinois.” ¶9 Creighton’s counsel argued that Creighton was essentially displaced in that he was unable to return to his home in Thailand where he had a young family and a business. Creighton’s counsel also indicated that Creighton was waiting outside the United States to return to Thailand and, if Creighton returned to Thailand, he would not be coming back to Illinois or the United States. Creighton’s counsel contended that in Louisiana Creighton had a 10-year “registration requirement” that would have already expired. Creighton’s counsel also noted that Creighton’s conviction was classified in Illinois as “aggravated criminal sexual abuse,” which was a Class 2 felony punishable by three to seven years of imprisonment. Creighton’s counsel indicated that in Louisiana “it was up to seven years as well,” but Creighton had only been sentenced to five years of unsupervised probation, which Creighton had “successfully completed.” Creighton’s counsel argued, “this kind of sentence in relation to the statutory penalties” showed that Creighton was not considered to be dangerous. Creighton’s counsel also noted that Creighton had no other criminal offenses (other than minor traffic tickets) and that Creighton had essentially a zero risk of recidivism because “17 years have gone by.” Creighton’s counsel contended that SORA’s requirement of lifetime registration (for “sexual predators”) was grossly disproportionate to Creighton’s crime and, as applied to Creighton, violated the Illinois Constitution’s proportionate penalties clause and the United States Constitution’s Eighth Amendment. ¶ 10 First, the circuit court noted that Creighton was now 65 years old. The circuit court then asked whether the victim of the underlying crime was Creighton’s daughter or stepdaughter. 5 Creighton’s counsel stated, “I don't want to go to reopening the case, Judge.” Creighton’s counsel then indicated that there was “a lot of paperwork that the whole thing never happened” and that it had been “drummed up,” noting there were “affidavits to that effect.” It appears from the record that Creighton’s counsel showed the circuit court some paperwork but did not present any evidence. In relation to the underlying conviction, Creighton’s counsel contended that “there was no penetration” and the underlying conduct was something “along the lines of when the little girl was taking a bath * there was some form of improper touching with a bar of soap.” Creighton’s counsel further contended that the victim’s mother (Creighton’s former wife) “ruined” Creighton’s life and there was “all sorts of communications that it was done to try and basically ruin him for financial reasons.” No evidence was introduced by Creighton’s counsel in support of those contentions. ¶ 11 The circuit court noted the amount of time that had elapsed since the offense and that Creighton would have only had to register for 10 years in Louisiana “and that would have been the end of it.” The circuit court indicated that Creighton was “now in no man’s land.” The circuit court further stated: “[t]his appears to the Court to be to—as it’s applied to Mr. Creighton hugely inequitable given his conviction, the punishment in Louisiana, and he has not re- offended, more serious crimes would allow for him to perhaps cut through this bureaucratic red tape and accomplish what he’s trying to accomplish, and if he is going to register if he comes back to Illinois, I just don’t see where there’s really any harm in allowing this gentleman, who appears to have paid his dues and has done what he’s supposed to do right on down the line, why this still should be interfering with his life to the extent that it is. So I’m going to grant the relief 6 requested, and I would like you to include in the Order that if he does come back to Illinois, he will re-register and we can sort it out from there.” ¶ 12 The attorney for the OAG asked whether Creighton would be required to register as a “sexual predator” if he returned to Illinois. The Circuit Court stated, “I’m not going to say one way or the other” and indicated Creighton would have to “let them know what occurred in Louisiana” and then he would be “designated according to the statute.” ¶ 13 The circuit court granted Creighton’s amended petition. In its written order, the circuit court indicated: (1) Creighton “ha[d] been duly punished and fulfilled his societal requirements”; (2) Creighton “ha[d] suffered hugely inequitable consequences by Illinois maintaining his name on [its] Sex Offender Registry”; (3) given Creighton’s age (65 years old) and lack of subsequent criminal behavior in any jurisdiction, “he [was] not likely to reoffend”; (4) the People of the State of Illinois were not jeopardized by the circuit court granting the relief requested; and (5) Illinois’ “continuing registration” of Creighton was “interfering with him having contact with his family and with his livelihood.” The circuit court ordered that Creighton “shall be removed from the Illinois Sex Offender Registration” and that “the State of Illinois shall effect th[e] order instanter.” The circuit court also indicated in the order that if Creighton relocated to Illinois, he “must report to local police authority for purposes of registering and comply with all applicable statutes and regulations.” ¶ 14 After more than 30 days, on or about July 30, 2018, Creighton’s counsel contacted the ISP to request that Creighton’s name be removed from the registry. In light of the ISP’s failure/refusal to do so, on August 24, 2018, Creighton’s counsel filed a verified petition for rule to show cause against the ISP. On August 28, 2018, the circuit court issued a rule to show cause against the ISP and set a hearing date of September 24, 2018. 7 ¶ 15 On September 21, 2018, the ISP and the OAG filed a petition to quash service and for relief from the court’s order of June 15, 2018, for lack of personal jurisdiction. At the hearing on September 24, 2018, the attorney for the OAG argued the circuit court did not have jurisdiction over the ISP and that the ISP would have to be made a defendant, noting the ISP could then conduct discovery regarding Creighton’s underlying conviction. The OAG’s attorney argued that without jurisdiction over the ISP, the circuit court did not have the authority to order the ISP to remove Creighton from the registry. The same day, Creighton filed a second amended petition for removal of sexual predator designation, which contained the same substantive allegations as the prior amended petition but additionally named the ISP and OAG as respondents. The ISP and OAG were served with the second amended petition the following day. ¶ 16 On September 26, 2018, the ISP and the OAG filed a motion to dismiss Creighton’s second amended petition, arguing that Creighton’s claim was barred by sovereign immunity, Creighton lacked standing to bring the petition because he had not suffered an injury as the result of his registration on the Illinois Sex Offender Registry, and SORA’s lifetime registration requirement was not unconstitutional as applied to Creighton. The State respondents additionally argued, in the alternative, that an as-applied constitutional challenge required an evidentiary hearing and findings of fact and, therefore, requested the opportunity to conduct discovery and an evidentiary hearing. The State respondents also argued that the OAG should be dismissed because it was not a proper party. ¶ 17 At a hearing on September 28, 2018, the State respondents argued, among other things, there had been no evidence presented to support the claims Creighton had asserted in his second amended petition and there had been no discovery. The circuit court acknowledged that there was “no mechanism contained within the statute to have [Creighton’s] name removed” from the 8 registry. The circuit court additionally noted that, in pursuing this action, the Peoria County State’s Attorney Office had been served with the initial amended petition and Creighton’s counsel was advised that an attorney with the OAG would be their representative and Creighton’s counsel had sent the amended petition to that attorney. The circuit court indicated that on June 15, 2018, “by way of proffer and exhibits, the Court had decided to proceed [despite the ISP not being a party at that time] and had ultimately determined that [Creighton] had suffered disproportionate consequences as a result of the commission of the crime back in Louisiana, his contact with the State of Illinois and then being designated a predator when * the crime had not been committed in Illinois.” The circuit court indicated that it had found that Creighton was not likely to reoffend based upon Creighton not having any further criminal behavior and that Creighton had an ongoing obligation to register if he came back to Illinois. The circuit court indicated that the reason Creighton needed to be removed from the Illinois registry was because “he is caught in a bureaucratic black hole that is disproportionate to the crime that he committed” and, as applied to Creighton’s specific circumstances, “it was unconstitutional.” ¶ 18 Furthermore, the circuit court found “the [OAG] most certainly had notice” of the hearing of June 15, 2018, and the ISP had now been served with a summons (and second amended petition). The circuit court also noted that an attorney from the OAG was present at the hearing on June 15, 2018, and had requested that certain language be included in the order. The circuit court stated, “this is just a bureaucratic black hole that he has been sucked into, and the Court is attempting to correct this unconstitutional wrong in a very, very limited fashion.” The circuit court denied the motion to dismiss in part, indicating its order of June 15, 2018, remained in effect, and granted the motion in part in that it dismissed the OAG as a party. The circuit court 9 ordered the ISP to remove Creighton from the Sex Offender Registry on or before October 12, 2018. ¶ 19 The ISP and OAG appealed the orders of June 15, and September 28, 2018, wherein the circuit court, among other things, ordered the ISP to remove Creighton’s name from the Sex Offender Registry. ¶ 20 II. ANALYSIS ¶ 21 On appeal, the ISP and OAG (the State respondents) argue that this court should vacate the orders at issue, wherein the circuit court ordered that Creighton be removed from the Illinois Sex Offender Registry, and remand this matter for further proceedings because: (1) the orders failed to comply with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006); and (b) the circuit court failed to conduct an evidentiary hearing and make factual findings in relation to Creighton’s as-applied constitutional challenge to SORA (730 ILCS 150/1 et. seq. (West 2018)). ¶ 22 Creighton argues that this court should affirm the trial court’s orders, arguing there was a “more than sufficient record made” and there was compliance with Rule 18. He contends that it is apparent from the circuit court’s order of June 15, 2018, the continuing registration requirement of SORA “is the particular issue that is unconstitutional as applied to him.” Creighton also contends that the record before the trial court was “sufficiently clear and undisputed such that there was no need for an evidentiary hearing in this matter.” He additionally argues that, even if he had been able to “present before the trial court,” the testimony and evidence would have had “specifically mirrored the uncontested statements presented and established to the trial court.” Creighton claims the record, therefore, was sufficient to support the trial court’s finding that “the statute” was unconstitutional as applied to him. 10 ¶ 23 In Illinois, convicted sex offenders and sexual predators are subject to the registration requirement of SORA. 730 ILCS 150/3 (West 2018). Under SORA, sex offenders and sexual predators include those individuals that have been convicted of certain sex offenses under the laws of other states. Id. § 2. Pursuant to SORA, a “sexual predator shall register for the period of his or her natural life.” Id. § 7. Creighton does not dispute his designation as a “sexual predator” or allege facts indicating that the designation was erroneous. Rather, as discussed above, Creighton challenged the requirement that he be required to register as a sex offender for life, contending that the mandate is unconstitutional as applied to him in violation of the prohibition against cruel and unusual punishment and the proportionate penalties clause of the Illinois Constitution. ¶ 24 “Statutes carry a strong presumption of constitutionality.” Vasquez Gonzalez v. Union Health Service, Inc., 2018 IL 123025, ¶ 19. “Constitutional challenges carry the heavy burden of successfully rebutting the strong judicial presumption that statutes are constitutional.” People v. Patterson, 2014 IL 115102, ¶ 90. To overcome the presumption of a statute’s constitutionality, the challenging party must clearly establish that it violates the constitution. People v. Rizzo, 2016 IL 118599, ¶ 23. “Courts have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute’s validity.” Id. The determination of a statute’s constitutionality is a matter of law that is reviewed de novo. Id. ¶ 25 In this case, Creighton raised an as-applied constitutional challenge. An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. Id. A court cannot make an as-applied determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. Id. ¶ 26 (citing People v. Mosley, 2015 IL 115872, ¶ 47). “By definition, an as-applied constitutional 11 challenge is dependent on the particular circumstances and facts of the individual defendant or petitioner.” People v. Thompson, 2015 IL 118151, ¶ 37. ¶ 26 First, we agree with the State respondents that the circuit court’s order failed to comply with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006). Our supreme court has “formulated a set of requirements circuit courts must follow before declaring a statute unconstitutional,” which are set forth in Rule 18. Vasquez Gonzalez, 2018 IL 123025, ¶ 20. Rule 18 ensures that courts do not “ ‘ “lightly or cavalierly declare unconstitutional that which the representatives of the people have seen fit to enact.” ’ ” Id. ¶ 20 (quoting People v. Cornelius, 213 Ill. 2d 178, 190 (2004) (quoting People v. Conlan, 189 Ill. 2d 286, 291-292 (2000))). ¶ 27 Illinois Supreme Court Rule 18 provides: “A court shall not find unconstitutional a statute, ordinance, regulation or other law, unless: (a) the court makes the finding in a written order or opinion, or in an oral statement on the record that is transcribed; (b) such order or opinion clearly identifies what portion(s) of the statute, ordinance, regulation or other law is being held unconstitutional; (c) such order or opinion clearly sets forth the specific ground(s) for the finding of unconstitutionality, including: (1) the constitutional provision(s) upon which the finding of unconstitutionality is based; (2) whether the statute, ordinance, regulation or other law is being found unconstitutional on its face, as applied to the case sub judice, or both; 12 (3) that the statute, ordinance, regulation or other law being held unconstitutional cannot reasonably be construed in a manner that would preserve its validity; (4) that the finding of unconstitutionality is necessary to the decision or judgment rendered, and that such decision or judgment cannot rest upon an alternative ground; and (5) that the notice required by Rule 19[2] has been served, and that those served with such notice have been given adequate time and opportunity under the circumstances to defend the statute, ordinance, regulation or other law challenged.” Ill. S. Ct. R. 18 (eff. Sept. 1, 2006). ¶ 28 The circuit court orders at issue failed to, among other things, clearly identify the portion(s) of SORA that were being held unconstitutional as applied to Creighton. See Ill. S. Ct. R. 18(b) (eff. Sept. 1, 2006). The circuit court’s orders also failed to clearly set forth the constitutional provision(s) upon which the finding of unconstitutionality was based and failed to clearly set forth that the finding of unconstitutionality was necessary to its decision and that such decision could not rest upon an alternative ground. See Ill. S. Ct. R. 18(c) (Sept. 1, 2006). Any circuit court judgment that fails to comply with Rule 18 may be summarily vacated and remanded. Vasquez Gonzalez, 2018 IL 123025, ¶ 22. 2 Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006) provides: “(a) Notice Required. In any cause or proceeding in which the constitutionality * of a statute, ordinance, administrative regulation, or other law affecting the public interest is raised, and to which action or proceeding the State or the political subdivision, agency, or officer affected is not already a party, the litigant raising the constitutional or preemption issue shall serve an appropriate notice thereof on the Attorney General, State’s Attorney, municipal counsel or agency attorney, as the case may be. 13 ¶ 29 Additionally, as argued by the State respondents, no evidentiary hearing took place in regard to Creighton’s as-applied constitutional challenge so the circuit court could not properly conclude SORA was unconstitutional as applied to Creighton. Our supreme court has stated: “[B]ecause as-applied constitutional challenges are necessarily dependent on the specific facts and circumstances of the case, a court is not capable of making an as-applied determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. Absent a sufficient evidentiary record, any finding that a statute is unconstitutional as applied is premature.” Id. ¶ 24. ¶ 30 In this case, there was no evidentiary hearing and no evidence presented. The only indication of Creighton’s specific circumstances and the circumstances of the underlying offense was made by way of the unverified allegations of the second amended petition and the assertions of Creighton’s counsel. Thus, the circuit court’s finding of unconstitutionality as applied to Creighton was premature. See id. ¶ 31 We, therefore, vacate the circuit court’s order of June 15, 2018, partially vacate its order of September 28, 2018 (excepting from vacatur the portion of that order dismissing the Attorney General as a party), and remand for further proceedings. We note the State respondents have not raised an issue regarding, and we do not address, the merits of the circuit court’s finding of unconstitutionality. See Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011) (“[a]ppeals from final judgments of circuit courts shall be taken directly to the Supreme Court * in cases in which a statute of the United States or of this state has been held invalid”); People v. Fuller, 187 Ill. 2d 1, 9-10 (1999) (a direct appeal to the Illinois Supreme Court is permitted when a law is held unconstitutional as applied). 14 ¶ 32 For purposes of remand, we note the following as indicated by our supreme court: “[O]ne who challenges the constitutionality of a statutorily mandated ‘penalty’ has the burden of clearly establishing that the challenged provision is in excess of the general constitutional limitations on the legislature’s authority.” (Emphases in original.) Rizzo, 2016 IL 118599, ¶ 48 (citing People v. Sharpe, 216 Ill. 2d 481, 487 (2005)). “The challenger cannot shift the burden of proof and research to the circuit court.” Id. “For its part, a circuit court contemplating the invalidation of a law enacted by the representatives of the people should proceed with the utmost caution before following an attorney’s ill-defined path to a finding of unconstitutionality.” Id. “Rule 18 requires the court to set forth specific grounds for the finding of unconstitutionality.” Id. “At a minimum, that should include an adequate discussion of relevant case law and should sufficiently differentiate the various constitutional bases that might bear upon its finding.” Id. ¶ 33 III. CONCLUSION ¶ 34 The judgment of the circuit court of Peoria County is vacated in accordance with this order and this cause is remanded for further proceedings. ¶ 35 Vacated and remanded. 15	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484734/	NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 2022 IL App (3d) 200466-U Order filed November 17, 2022 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2022 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Iroquois County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0466 v. ) Circuit No. 19-CF-14 ) ANGEL J. SCHOEBERL, ) Honorable ) Michael C. Sabol, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________ PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices Daugherity and Peterson concurred in the judgment. ____________________________________________________________________________ ORDER ¶1 Held: Defendant’s convictions for theft and aggravated possession of a stolen firearm do not violate the one-act, one-crime rule. ¶2 Defendant, Angel J. Schoeberl, appeals his convictions for theft and aggravated possession of a stolen firearm. He argues that the convictions violate the one-act, one-crime rule because they are based on the same physical act of stealing firearms. We affirm. ¶3 I. BACKGROUND ¶4 The State charged defendant with two counts each of residential burglary (720 ILCS 5/19- 3(a) (West 2018)), theft (id. § 16-1(a)(1)(A)), unlawful possession of a weapon by a felon (UPWF) (id. § 24-1.1(a)), and aggravated possession of a stolen firearm (id. § 24-3.9(a)(1)). As relevant here, one theft charge alleged that defendant “knowingly exerted unauthorized control over the property of Michael and Lisa McCann, being a Ruger LC9 pistol, .22 caliber bolt action rifle and jewelry, having a total value in excess of $500, intending to deprive Michael and Lisa * permanently of the use of the property.” The relevant charge of aggravated possession of a stolen firearm alleged that defendant “knowingly possessed firearms, a Ruger LC9 pistol and .22 caliber bolt action rifle with knowledge that they had been stolen and without being entitled to the possession of those firearms.” ¶5 Following a bench trial, the court found defendant guilty of both counts of residential burglary and theft, as well as one count of aggravated possession of a stolen firearm related to the Ruger LC9 pistol and .22-caliber bolt action rifle. The court found defendant not guilty of the remaining charges. In its ruling regarding the theft charge at issue in this case, the court stated that there was no question “the McCann’s were the victim of the thefts being guns, jewelry and other personal property in excess of $500.” It further found that “Mr. McCann was very specific about the items that were taken, rings, earrings, personal items, a pocket watch was taken and more importantly for one of the charges he was very specific about 2 guns that were taken, a 9 millimeter Ruger pistol that was in his night stand the night before and 22 rifle that he knows for a fact was there the night before.” ¶6 The court sentenced defendant to 15 years’ imprisonment each on the residential burglary and aggravated possession of a stolen firearm charges and 5 years’ imprisonment each on the theft 2 charges with all sentences to run concurrently. Defendant filed a motion to reconsider sentence arguing the sentence was excessive, the theft charges should merge into the residential burglary charges and aggravated possession of a stolen firearm 1 should merge into a residential burglary charge. The court denied the motion. Defendant appeals. ¶7 II. ANALYSIS ¶8 Defendant argues that the same act that constituted theft constituted the aggravated possession of a stolen firearm such that these convictions violate the one-act, one-crime rule and one conviction must be vacated. He argues that he simultaneously committed theft and aggravated possession of a stolen firearm when he stole the two firearms. ¶9 Defendant “did not raise this issue below, but violation of one-act, one-crime principles ‘affects the integrity of the judicial process’ and is appropriate for plain error review under doctrine’s substantial rights prong.” People v. Brown, 2018 IL App (3d) 150070-B, ¶ 12 (quoting In re Samantha V., 234 Ill. 2d 359, 378 (2009)). The first step in applying the plain error doctrine is to determine if an error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). ¶ 10 “[A] criminal defendant may not be convicted of multiple offenses when those offenses are all based on precisely the same physical act.” People v. Coats, 2018 IL 121926, ¶ 11. In determining whether there is a violation of this rule, the court first “ascertains whether the defendant’s conduct consisted of a single physical act or separate acts.” Id. ¶ 12. If the court determines defendant committed multiple acts, it must then determine “whether any of the offenses are lesser-included offenses.” Id. An “act” is defined as “any overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977). “A person can be 1 The motion itself argued that UPWF should merge into a residential burglary charge but after the court noted during the hearing that defendant was acquitted of UPWF, defense counsel clarified that the motion should have referenced aggravated possession of a stolen firearm rather than UPWF. 3 guilty of two offenses when a common act is part of both offenses or part of one offense and the only act of the other offense.” People v. Lobdell, 121 Ill. App. 3d 248, 252 (1983). ¶ 11 Here, we conclude that there was more than one physical act. Specifically, while both offenses included the possession and/or control of the same two firearms, the theft charge also included the control over multiple items of jewelry. As such, the possession and/or control over the firearms is a part of the theft offense at issue here and the only act of the aggravated possession of a stolen firearm offense. Thus, under Lobdell, defendant can be guilty of both offenses as there is more than one act. See id. ¶ 12 We now must decide whether theft or aggravated possession of a firearm is a lesser included offense of the other. In making this determination, we apply the abstract elements approach. Coats, 2018 IL 121926, ¶ 30. Under this approach, we compare the statutory elements of the two offenses and “[i]f all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second. * In other words, it must be impossible to commit the greater offense without necessarily committing the lesser offense.” People v. Miller, 238 Ill. 2d 161, 166 (2010). ¶ 13 A person commits theft, as charged in this case, when he knowingly “[o]btains or exerts unauthorized control over property of the owner” and “[i]ntends to deprive the owner permanently of the use or benefit of the property.” 720 ILCS 5/16-1(a)(1)(A) (West 2018). A person commits aggravated possession of a stolen firearm, as charged in this case, when he “[n]ot being entitled to the possession of not less than 2 and not more than 5 firearms, possesses those firearms at the same 4 time or within a one-year period, knowing the firearms to have been stolen or converted.” Id. § 24- 3.9(a)(1). ¶ 14 Defendant does not argue that either offense is a lesser included offense of the other. Regardless, a review of the above elements clearly shows that neither is a lesser included offense. Specifically, theft contains the element that the offender must intend to permanently deprive the owner of the property and aggravated possession of a stolen firearm does not. Additionally, aggravated possession of a stolen firearm requires possession of at least two firearms and theft does not. Thus, both offenses can be committed without necessarily committing the other and neither is a lesser included offense of the other. Based on the foregoing, we conclude that defendant’s convictions for theft and aggravated possession of a stolen firearm do not violate the one-act, one-crime rule. ¶ 15 III. CONCLUSION ¶ 16 The judgment of the circuit court of Iroquois County is affirmed. ¶ 17 Affirmed. 5	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484747/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term _____________ No. 20-0744 _____________ STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, V. A.B., Defendant Below, Petitioner. ________________________________________________ Appeal from the Circuit Court of Raleigh County The Honorable Robert A. Burnside, Jr., Judge Criminal Action No. 16-F-429 AFFIRMED ________________________________________________ Submitted: September 14, 2022 Filed: November 17, 2022 Matthew Brummond, Esq. Patrick Morrissey, Esq. Public Defender Services Attorney General Appellate Advocacy Division Andrea Nease Proper, Esq. Charleston, West Virginia Lara K. Bissett, Esq. Attorney for the Petitioner Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent JUSTICE BUNN delivered the Opinion of the Court. CHIEF JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file dissenting opinions. SYLLABUS BY THE COURT 1. “A claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), presents mixed questions of law and fact. Consequently, the circuit court’s factual findings should be reviewed under a clearly erroneous standard, and questions of law are subject to a de novo review.” Syllabus point 7, State v. Black, 227 W. Va. 297, 708 S.E.2d 491 (2010). 2. “Where a constitutional right to counsel exists under W. Va. Const. art. III, § 14, there is a correlative right to representation that is free from conflicts of interest.” Syllabus point 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988). 3. “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). i 4. When constitutional claims of ineffective assistance of counsel based upon successive representation are raised, the individual claiming ineffective assistance of counsel must demonstrate actual prejudice—that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different—pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 5. “There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.” Syllabus point 2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). ii Bunn, Justice: Petitioner A.B. 1 appeals the September 22, 2020 order of the Circuit Court of Raleigh County resentencing her, for the purpose of appeal, to an aggregate term of incarceration of five to twenty-five years for her convictions of one count of child neglect resulting in death and two counts of gross child neglect creating a risk of substantial injury or death. On appeal, A.B. advances two grounds for reversal of her convictions. Her primary contention is that the circuit court violated her Sixth Amendment right to conflict- free counsel. A.B. next claims that the State violated Brady v. Maryland 2 and State v. Youngblood 3 by failing to disclose certain records involving a central witness. For the reasons set forth below, we affirm. 1 Consistent with our long-standing practice in cases involving infants or sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children). 2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 3 State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). 1 I. FACTUAL AND PROCEDURAL HISTORY This case involves a tragic incident that occurred on November 7, 2015. After drinking heavily, A.B. fell asleep and rolled over on her five-month-old daughter, G.B., who died by asphyxiation. In September 2016, a Raleigh County grand jury indicted A.B. on three counts: (1) child neglect resulting in the death of G.B. in violation of West Virginia Code § 61-8D-4a; (2) child neglect with risk of serious bodily injury or death of D.B., age four, in violation of West Virginia Code § 61-8D-4(c); and (3) child neglect with risk of serious bodily injury or death of J.B., age two, in violation of West Virginia Code § 61- 8D-4(c). 4 The State agreed to provide open file discovery that “shall remain continuous and shall occur within the time frames prescribed” by the orders and rules of the circuit court. In October 2016, A.B. filed an omnibus discovery motion requesting, among other items, all documents and tangible objects in the “possession, custody, and control[,] of the State, and which are material to the preparation of his [sic] defense or are intended for use by the State as evidence in chief at the trial, or were obtained from or belonged to the defendant.” This request included (1) all documents relating to any criminal conviction of any State witness; (2) any exculpatory and/or impeachment material; (3) any juvenile and 4 D.B. and J.B. are siblings of G.B. 2 criminal records of any State witness; and (4) any medical/psychiatric condition of any State witness. Throughout the proceedings, several attorneys represented A.B.5 On February 10, 2020, fourteen days before her trial, A.B.’s then-current counsel, Sarah Smith, from the Public Defender Corporation (“PDC”), filed a motion to withdraw as counsel.6 In the one-paragraph motion, Ms. Smith asserted that she discovered only days earlier that a State witness, K.S., had previously been the subject of a juvenile petition and had been represented by another lawyer who worked in the same PDC office. 7 It appears from the record that A.B. was originally represented by the Public 5 Defender Corporation (“PDC”). At that time, Sarah Smith was employed with the PDC and represented A.B. Ms. Smith eventually left the PDC to work for Robert Dunlap of Robert Dunlap & Associates. At some point during the proceedings, in 2017, A.B. changed her representation to Robert Dunlap & Associates with Mr. Dunlap and Ms. Smith. Ms. Smith subsequently left Mr. Dunlap’s office to return to her previous employment at the PDC. Mr. Dunlap filed a motion to withdraw as counsel and in June 2019 the circuit court held a hearing on the motion. During the hearing, Mr. Dunlap explained that when his office began its representation of A.B., she initially met with and established a relationship and level of comfort with Ms. Smith and that Ms. Smith had returned to her previous employment at the PDC. A.B. did not form the same bond with Mr. Dunlap. The circuit court granted Mr. Dunlap’s motion to withdraw, and A.B. then returned to the PDC for representation. While the motion was based on two juvenile witnesses, K.S. and M.S., in 6 the proceeding below, the State did not call M.S. as a witness. A.B. does not allege any error relating to M.S. in this appeal. Rule 1.10 of the West Virginia Rule of Professional Conduct sets forth the 7 general rule regarding imputation of conflicts of interest and Rule 1.11 of the West Virginia Rules of Professional Conduct describes special conflicts of interest rules for former and current government officers and employees. 3 At a pretrial hearing on February 19, 2020, the court heard arguments on Ms. Smith’s motion to withdraw. Ms. Smith advised the court that a few weeks prior, she received a witness list from the State and upon cross-referencing that witness list with the PDC’s client files, she discovered that K.S. had been a client on an unrelated matter. 8 Ms. Smith further indicated that she reviewed K.S.’s files and gained information that she would not have had but for K.S.’s representation by her office. 9 Without disclosing the exact information, Ms. Smith represented to the court she would have an obligation to use that information she learned when she cross-examined K.S. and an “adult guardian.” She vaguely stated that the records “would call into question” K.S.’s conduct and “that sort of thing.” The State objected to Ms. Smith’s motion to withdraw asserting that Ms. Smith had the full name of K.S. as a potential witness since at least 2015, including when she returned to the PDC in April 2019, and should have recognized the potential conflict 8 It appears from the record before us that at the time Ms. Smith determined K.S. had been a client of the PDC, the matters involving K.S. were concluded and not currently pending. From at least September 2016 to July 2017, it appears that A.B. was represented by the PDC. Then, A.B. hired Dunlap & Associates as her counsel from July 2017 to June 2019 when Mr. Dunlap withdrew as counsel. It was during this time that the PDC represented K.S. in her juvenile proceeding. In particular, the proceeding was initiated in November 2017 and was dismissed in February 2019, almost a year before Ms. Smith filed her motion to withdraw. There was no overlap in the PDC’s representation of A.B. and K.S. Ms. Smith informed the court that she spoke to the Office of Disciplinary 9 Counsel and had been “advised that concurrent representation is not possible.” (Emphasis added). 4 earlier. After hearing the respective arguments of counsel and reviewing the State’s records regarding K.S.’s juvenile proceedings, 10 the circuit court denied Ms. Smith’s motion to withdraw. The court conditioned its denial by stating that if Ms. Smith discovered any other reason for her withdrawal, she would have the opportunity to supplement her motion. At the conclusion of the pretrial hearing, the State asked the court to require Ms. Smith to submit any intended cross-examination of K.S. to an in camera review, for confidentiality purposes, before she questioned K.S. in the jury’s presence. The court responded that it assumed this issue “would be taken up . . . during trial when we reach that point[.]” Ms. Smith consented to the proposed process. A.B.’s trial commenced on February 24, 2020. The State presented testimony from several witnesses, including emergency responders, investigating law enforcement officers, medical providers, medical experts, and family members who lived in the same home as A.B. at the time of the incident. Relevant to this appeal is the following testimony. First, K.S., who provided approximately two-and-a-half pages of testimony, stated that she was G.B.’s cousin. K.S. and A.B. resided in the same house but on different floors. On November 7, 2015, when she was twelve years old, K.S. walked into A.B.’s living space and found A.B. lying on top of G.B. Because K.S. was unable to free the infant or awaken A.B., K.S. called for her grandmother’s assistance. 10 Ms. Smith did not produce any records during the hearing, either in camera or under seal. 5 Before Ms. Smith cross-examined K.S., the circuit court held an in camera hearing regarding the matters Ms. Smith intended to explore during cross-examination, including truancy, marijuana and alcohol use, and certain psychological records. Ms. Smith, who had the records due to the PDC’s previous representation of K.S., acknowledged that the juvenile proceedings were initiated in 2017 and that the records did not disclose exactly when the marijuana and alcohol use began. She indicated that this information was relevant because if K.S. abused these substances at the time of the incident, she may have misremembered the events. The State submitted that to establish a foundation Ms. Smith need only ask K.S. one question in camera: “‘Were you under the influence of alcohol or drugs at the time of [G.B.]’s death?’” The court asked Ms. Smith if she had any objection to the “proposed limitation on the scope of cross-examination and the use of these records” to which Ms. Smith replied that she did not. Ms. Smith asked K.S. the following question: “[K.S.], on November 7th of 2015, had you used any alcohol or drugs?” K.S. replied, “No.” Ms. Smith further clarified the question by asking if K.S. had used any alcohol or drugs on the day in question or the day prior. K.S. again replied “No.” Based on K.S.’s response, Ms. Smith stated that she did not believe K.S.’s truancy-related issues, her psychological report, or her use of marijuana or alcohol would be admissible. Following the conclusion of the in camera hearing, Ms. Smith confirmed, in the jury’s presence, that she would not cross-examine K.S. 6 Next, the grandmother to both G.B. and K.S., (“Grandmother”) 11 provided approximately fourteen pages of direct and redirect testimony regarding how she found G.B. in A.B.’s room, the deplorable condition of the room, and A.B.’s altered state of mind on the day G.B. died.12 On November 7, 2015, K.S. came downstairs and told her that A.B. “was on the baby and the baby wasn’t moving.” Grandmother “ran up[stairs] [] to see what was going on and found [A.B.] on the baby and pulled the baby out[.]” She then brought G.B. downstairs where Grandmother’s husband began giving the infant CPR while K.S. called 911. Grandmother returned upstairs and found A.B. unresponsive. She described the condition of the room as “horrible;” there was “trash and junk everywhere.” Grandmother noticed empty alcohol bottles in the room. When the emergency responders arrived, A.B. was not coherent and she never expressed any concern regarding the welfare of G.B. Following Grandmother’s testimony, several law enforcement officers testified. Corporal Timothy Hughes (“Cpl. Hughes”) testified as follows. When he arrived at Raleigh General Hospital, Cpl. Hughes made several general observations regarding A.B.: (1) a “strong odor of alcohol” came from A.B.’s hospital room and (2) she “seemed incoherent and disoriented.” Continuing his investigation, Cpl. Hughes went to Grandmother’s home to view the scene of the incident. He went upstairs and saw the 11 For clarity, we refer to her as “Grandmother” because she shares the same initials as G.B. 12 Grandmother had allowed her daughter-in-law, A.B.; her son, A.B.’s husband; and their three children to live in her home on and off for three years. 7 “debris and trash[.]” Corporal Hughes could not see the bottom of the floor, “[i]t was just filled with trash and soiled clothing and rotting food and milk containers and soda cans[;]” “[i]t was generally unlivable.” By the bed, Cpl. Hughes found “molded food and trash and alcohol bottles and cigarette butts.” Sergeant Morgan Bragg also investigated G.B.’s death and took approximately 130 photographs during his investigation, many of which were admitted into evidence during trial. These pictures captured the appalling living conditions in A.B.’s room, including a bottle of vodka that A.B. admitted to drinking on the day G.B. asphyxiated. He described the significant number and types of alcohol bottles recovered from A.B.’s room. Furthermore, several emergency response providers offered the following testimony. Anthony Wilcox stated that upon his arrival he noticed that rigor mortis had already set in on G.B. and that in his experience, rigor mortis generally takes several hours after death before setting in. A second emergency provider, Richard Garten (“Mr. Garten”), medically assessed A.B. His primary impression was “[a]lcohol abuse” and secondary impression was “slurred speech.” Mr. Garten noticed “a lot of different sizes of different types of alcohol [bottles].” A.B. admitted to him “that she had been drinking numerous alcoholic beverages starting [in the] morning and even stated she had a drink just five minutes prior to EMS arrival for her.” She did not show any signs of distress other than her intoxication. 8 Finally, various medical professionals testified on behalf of the State. On November 7, 2015, Hannibal Mahdi, M.D. (“Dr. Mahdi”) provided medical care and treatment to A.B. at Raleigh General Hospital. After examining A.B., Dr. Mahdi diagnosed A.B. with “alcoholic intoxication.” She completed a drug screen, which was negative, but A.B.’s alcohol level was 0.289, which Dr. Mahdi described as “high.” 13 Dr. Mahdi completed a thorough examination to rule out any other medical issue relating to A.B.’s altered mental state. Can Metin Savasman, M.D. performed the autopsy of G.B. and stated that her cause of death was “asphyxia due to having been overlain during sleep.” John Patrick Fernald, M.D. (“Dr. Fernald”) offered expert testimony regarding the dangers of an intoxicated adult sleeping in bed with an infant. He further discussed A.B.’s living conditions and the harm that can come to a child living in those circumstances. Specifically, Dr. Fernald stated that “[t]hese [were] the worst living conditions for a child I have witnessed in 19 years of practicing medicine, including several years overseas in third world countries.” A.B.’s only witness during trial was her husband. He testified that he was not certain if A.B. had been drinking on the day in question, but that they both had been 13 For reference, pursuant to this State’s motor vehicle laws, an “impaired state” is defined as, among others, “hav[ing] an alcohol concentration in his or her blood of eight hundredths of one percent or more [0.08%], by weight.” W. Va. Code § 17C-5-2. 9 drinking together the day before. Her husband indicated that A.B. was not an everyday drinker. However, the State’s extensive cross-examination demonstrated a string of inconsistent statements. The jury convicted A.B. on all three counts. The circuit court held a sentencing hearing on July 16, 2020 and sentenced A.B. to consecutive terms of not less than three nor more than fifteen years in prison for child neglect resulting in the death of G.B.; not less than one nor more than five years in prison for child neglect with risk of serious bodily injury or death regarding D.B.; and not less than one nor more than five years in prison for child neglect with risk of serious bodily injury or death regarding J.B. On September 22, 2020, the circuit court entered an order resentencing A.B. for purposes of appeal. This appeal followed. On appeal, A.B. filed her brief alleging a violation of her Sixth Amendment right to conflict-free counsel and the State responded. We heard oral arguments on January 12, 2022. Subsequently, this Court directed the parties to provide supplemental briefing to address any potential Brady violations as defined by Syllabus point 2 of State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). Following the filing of the supplemental briefs, and the presentation of supplemental oral argument, this case was submitted for decision. 10 II. STANDARD OF REVIEW A.B. first claims that she was denied her Sixth Amendment right to conflict- free counsel when the circuit court denied her counsel’s motion to withdraw due to a conflict of interest. In State ex rel. Blake v. Hatcher, 218 W. Va. 407, 624 S.E.2d 844 (2005), we stated that: the United States Supreme Court found the trial court should be afforded considerable latitude in making its determination to disqualify a criminal defense attorney due to a conflict of interest. Wheat [v. United States], 486 U.S. [153,] at 1630-64, 108 S. Ct. [1692,] at 1699-1700 [100 L.Ed.2d 140 (1988)]. Recognizing the trial court’s need for latitude, several courts have applied an abuse of discretion standard when reviewing decisions on disqualification motions. We agree that this is the appropriate standard of review. Blake, 218 W. Va. at 417-18, 624 S.E.2d at 854-55 (citations omitted). Accord State v. Rogers, 231 W. Va. 205, 214, 744 S.E.2d 315, 324 (2013) (per curiam). Additionally, while A.B. is challenging the circuit court’s decision denying her counsel’s motion to withdraw, she is essentially claiming that due to the circuit court’s decision, she received ineffective assistance of counsel due to a conflict of interest. 14 We have stated that 14 “Conflict-of-interest claims involving attorneys in criminal cases are a species of ineffective assistance of counsel under the Sixth Amendment.” Galloway v. State, 298 So. 3d 966, 974-75 (Miss. 2020). We have repeatedly warned that “it is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied.” Syl. pt. 10, in part, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). However, under the specific facts of this matter, we will review A.B.’s assignment of error. See State v. Rogers, 231 W. Va. 205, 212, 744 S.E.2d 315, 322 (2013) (per curiam) (reviewing a claim on direct 11 [a]n ineffective assistance of counsel claim presents a mixed question of law and fact; we review the circuit court’s findings of historical fact for clear error and its legal conclusions de novo. This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court’s findings of underlying predicate facts more deferentially. State ex rel. Daniel v. Legursky, 195 W. Va. 314, 320, 465 S.E.2d 416, 422 (1995). Next, A.B. asserts that the State withheld certain documents relating to a witness in violation of Brady and Youngblood. This Court has established that “[a] claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), presents mixed questions of law and fact. Consequently, the circuit court’s factual findings should be reviewed under a clearly erroneous standard, and questions of law are subject to a de novo review.” Syl. pt. 7, State v. Black, 227 W. Va. 297, 708 S.E.2d 491 (2010). With these standards in mind, we now consider the parties’ arguments. III. DISCUSSION We will address A.B.’s two assignments of error in turn. appeal that a circuit court violated a petitioner’s due process rights when it refused to grant his trial counsel’s motion to withdraw based on a conflict of interest). Accord State v. Kirk N., 214 W. Va. 730, 736, 591 S.E.2d 288, 294 (2003). 12 A. Conflict-free Counsel A.B. contends that the circuit court violated her Sixth Amendment right to conflict-free counsel when her attorney was unable to both zealously advocate for her and protect the confidences of the State’s witness, K.S. On the other hand, the State maintains that no actual conflict existed that adversely affected Ms. Smith’s representation of A.B. We find no error. This Court has reiterated that “[t]he Sixth Amendment to the United States Constitution and article III, § 14 of the West Virginia Constitution guarantee a criminal defendant the right to the assistance of counsel.” State ex rel. Yurish v. Faircloth, 243 W. Va. 537, 543, 847 S.E.2d 810, 816 (2020). This right to counsel includes “the right to effective assistance of counsel.” Syl. pt. 1, in part, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988). See also Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). We have further held that “[w]here a constitutional right to counsel exists under W. Va. Const. art. III, § 14, there is a correlative right to representation that is free from conflicts of interest.” Syl. pt. 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599. Conflict of interest claims involving attorneys in criminal matters are a type of ineffective assistance of counsel pursuant to the Sixth Amendment. We note that federal courts have employed different tests for Sixth Amendment violations and assessing their prejudicial impact, depending on the type of Sixth Amendment violation alleged. 13 Ineffective assistance of counsel claims are generally analyzed under the Strickland standard. 15 Pursuant to Strickland, a petitioner must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. See generally Strickland, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. This Court has previously adopted the Strickland test when considering ineffective assistance of counsel claims: In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). But when a petitioner alleges ineffective assistance based on a conflict of interest, a less demanding standard may apply, making it easier to show ineffective assistance of counsel. The United States Supreme Court has carved out at least two 15 The United States Supreme Court has stated that “breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance to counsel.” Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 89 L. Ed. 2d 123 (1986). On appeal, A.B. asserts that the circuit court forced her trial counsel, Ms. Smith, to violate Rules 1.7 (Conflict of Interest; Current Clients), 1.9 (Duties to Former Clients), and 1.10 (Imputation of Conflicts of Interest: General Rule) of the West Virginia Rules of Professional Conduct when it denied Ms. Smith’s motion to withdraw as counsel. For the reasons stated herein, we need not reach a conclusion as to whether any of these Rules were violated. 14 exceptions to Strickland. First, in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), the Supreme Court established a very narrow exception that “whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” 435 U.S. at 488, 98 S. Ct. at 1181 (emphasis added). Two years later, the Supreme Court created another limited exception to the general Strickland standard for ineffective assistance of counsel claims in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In Sullivan, the Supreme Court distinguished Holloway and found that “[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry [to determine if a conflict of interest exists].” Id. at 347, 100 S. Ct. at 1717. Furthermore, Sullivan found that prejudice will not be presumed, and the automatic reversal rule will not apply; rather, “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348, 100 S. Ct. at 1718. Importantly, although Sullivan did not involve jointly represented co-defendants, it did include multiple concurrent representation of a single attorney of co-defendants in separate trials. Id. at 340, 100 S. Ct. at 1713-14. As the United States Court of Appeals for the Tenth Circuit explained, [r]ead together, these cases establish a bifurcated standard for addressing conflict of interest claims in the multiple representation context. First, if the defendant objects to the alleged conflict prior to trial, prejudice is presumed if the trial court failed to inquire into the nature and scope of the conflict 15 and required the defendant to proceed with the same attorney. In such instances, reversal is automatic. . . . But if the defendant does not object to the alleged conflict at trial, he must demonstrate on appeal that an actual conflict adversely affected his representation. Only if the defendant’s demonstration is sufficient is prejudice presumed. . . . If the defendant’s demonstration is insufficient, then traditional Strickland review will apply[.] United States v. Williamson, 859 F.3d 843, 853 (emphasis added). The import from both Holloway and Sullivan is that both involve joint or multiple concurrent representation and were concerned with the potential inherent dangers of such representation and the difficulty in determining prejudice in those circumstances. Following Sullivan, the Supreme Court elaborated on its previous exceptions to the general Strickland standard in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). In Mickens, the question presented was “what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Mickens, 535 U.S. at 164, 122 S. Ct. at 1239. Even though the case involved successive representation, 16 the parties “presented and argued [to the Supreme Court] on the assumption that (absent some exception for failure to inquire) Sullivan would be 16 Mr. Mickens’ counsel had been representing the victim in the matter on assault and concealed weapons charges at the time of the murder. Mickens v. Taylor, 535 U.S. 162, 164, 122 S. Ct. 1237, 1240, 152 L. Ed. 2d 291 (2002). Upon the victims’ murder, the pending charges against him were dismissed. Id. at 164-65, 122 S. Ct. at 1240. Days later, the same counsel was appointed to Mr. Mickens. Id. at 165, 122 S. Ct. at 1240. 16 applicable—requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcome of trial.” Id. at 174, 122 S. Ct. at 1245. The Supreme Court stated that this “assumption was not unreasonable in light of the holdings of Courts of Appeals, which have applied Sullivan unblinkingly to all kinds of alleged attorney ethical conflicts[.]” Id. at 174-75, 122 S. Ct. at 1245 (quotations and citations omitted). The types of conflicts that the lower courts had “unblinkingly” applied Sullivan to included not only alleged obligations to former clients, but also circumstances where the “representation of the defendant somehow implicates counsel’s personal or financial interests . . . or fear of antagonizing the trial judge[.]” Id. at 174-75, 122 S. Ct. at 1245 (internal quotations and citations omitted). In Mickens, the Supreme Court cautioned “[i]t must be said, however, that the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application.” Id. at 175, 122 S. Ct. at 1245 (emphasis added). Significantly, [b]oth Sullivan itself, . . . and Holloway, . . . stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. . . . [T]he Federal Rules of Criminal Procedure treat concurrent representation and prior representation differently, requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single attorney (Rule 44(c)), but not when counsel previously represented another defendant in a substantially related matter, even where the trial court is aware of the prior representation. 17 Id. (internal citations omitted) (emphasis added). The Mickens Court left open the question of whether Holloway or Sullivan would apply to instances of successive representation as follows: This is not to suggest that one ethical duty is more or less important than another. The purpose of our Holloway and Sullivan exceptions from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel. . . . In resolving this case on the grounds on which it was presented to us, we do not rule upon the need for the Sullivan prophylaxis in cases of successive representation. Whether Sullivan should be extended to such cases remains, as far as the jurisprudence of this Court is concerned, an open question. Id. at 176, 122 S. Ct. at 1246 (emphasis added) (citations omitted). In the case sub judice, while both parties apply the Sullivan test,17 we find that this analysis is not appropriate under the facts of this case which involve successive, rather than joint or multiple concurrent representation. 18 A.B. and K.S. were not jointly 17 We recognize that like the matter before us, despite the representation being successive rather than concurrent, the parties and the Supreme Court in Mickens utilized the Sullivan framework. We decline to follow suit here as it is important to clarify our law following Mickens. 18 The United States Court of Appeals for the Sixth Circuit explained the difference between joint and multiple representation in McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004). The court defined “joint and dual representation” as “simultaneous representation occurring in the same proceeding, while multiple representation refers to simultaneous representation in separate proceedings.” Id. at 701. The Sixth Circuit further defined successive representation in Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011) as a situation “where defense counsel has previously represented a co-defendant or trial 18 represented by the PDC (or the same attorney) in the same proceeding nor does the record demonstrate that the PDC represented A.B. and K.S. at the same time in separate proceedings; rather Ms. Smith represented A.B. during this criminal proceeding, and a different attorney from the PDC represented K.S. in an earlier, unrelated juvenile proceeding. 19 Consequently, this matter involves successive representation. As discussed above, the Supreme Court has not definitively held that the Holloway or Sullivan test is applicable to instances of successive representation. Further, while we have addressed ineffective assistance of counsel claims in the context of a conflict of interest, we have not directly addressed how Mickens affects our law. 20 As such, we examine other jurisdictions and lower federal courts for guidance post-Mickens. witness,” while concurrent representation “occurs where a single attorney simultaneously represents two or more codefendants.” Id. at 315. 19 See, supra, note 8 for a discussion of the relevant timeframes. 20 Shortly after Sullivan was decided we acknowledged it and held that “[i]n a case of joint representation, once an actual conflict is found which affects the adequacy of representation, ineffective assistance of counsel is deemed to occur and the defendant need not demonstrate prejudice.” Syl. pt. 4, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988) (emphasis added). As Cole concerned matters of joint representation, it is not applicable to the case before us, and nothing in this opinion should be construed as modifying Cole. Subsequently, in State ex rel. Blake v. Hatcher, 218 W. Va. 407, 413-14, 624 S.E.2d 844, 850-51 (2005), this Court explained that “[w]here representation is affected by an actual conflict of interest, the defendant can not be said to have received effective assistance of counsel as required by the Sixth Amendment.” Importantly, while this Court created several syllabus points in Blake, this principle was not one. See Syl. pt. 1, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (“Signed opinions containing original syllabus points have the highest precedential value because the Court uses original syllabus 19 The Supreme Court of Kentucky reviews successive conflicts of interest under the Strickland standard. See Steward v. Commonwealth, 397 S.W.3d 881, 883 (Ky. 2012). See also Jones v. Commonwealth, 641 S.W.3d 162, 167 (Ky. 2022) (“We review successive conflicts of interest under the Strickland standard.”). The Steward Court explained that while the United States Supreme Court in Mickens “recogniz[ed] the high probability of prejudice arising from joint representation cases, [it] acknowledged that not all attorney conflicts present comparable difficulties.” Steward, 397 S.W.3d at 883 n.4 (internal quotations and citations omitted). The court went on to state that “whether Sullivan, as opposed to Strickland, should be applied to successive representation cases remains, as far as the jurisprudence of the Supreme Court is concerned, an open question. . . . However, . . . the Sixth Circuit has stated that the rule pronounced in Sullivan is inapplicable to cases of successive representations.” Id. (internal quotations and citations points to announce new points of law or to change established patterns of practice by the Court.”). Moreover, the central issue in Blake was whether the State has standing to move to disqualify criminal defense counsel due to a conflict of interest arising from counsel’s present or former representation of a State witness. Id. at 417-18, 624 S.E.2d at 854-55. While we have addressed conflict of interest matters subsequent to Blake, and on occasion have utilized the Sullivan standard for successive representation, a full Mickens analysis was not conducted. See, e.g., Daniel C. v. Ames, No. 20-0754, 2022 WL 123711, at 2-4 (W. Va. Jan. 12, 2022) (memorandum decision) (finding that the petitioner failed to satisfy either prong of the Sullivan test in a successive representation conflict of interest case); Bennett v. Ballard, No. 16-0535, 2017 WL 3821805, at 7-8 (W. Va. Sept. 1, 2017) (memorandum decision) (same); Rogers, 231 W. Va. 205, 744 S.E.2d 315 (finding no actual conflict existed when a public defender represented the petitioner in a criminal proceeding and another public defender from the same office had previously represented a State witness in the petitioner’s current criminal proceeding). 20 omitted). Finding the guidance of the Sixth Circuit to be persuasive, the Steward Court applied Strickland to the successive representation issue. Id. Several other courts have also applied Strickland to successive representation matters. See, e.g., Weaver v. Wingard, 163 F. App’x 399, 401 (6th Cir. 2006)) (“[W]e must determine whether this case is one of concurrent representation and thus the Sullivan standard controls or whether it is one of successive representation and the Strickland standard applies. . . . [The] representations . . . were successive representations and the appropriate standard to review these relationships is the Strickland standard.”); Montoya v. Lytle, 53 F. App’x 496, 498 (10th Cir. 2002) (“The Supreme Court, however, has never extended the [Sullivan] standard to cases involving successive, rather than multiple, representation. . . . There is, therefore, no ‘clearly established federal law, as determined by the Supreme Court of the United States’ mandating reversal of a conviction on a mere showing of a conflict of interest involving successive representation that adversely affected the attorney’s representation of his client. . . . Instead, Montoya must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (internal quotations and citations omitted)”); State v. Alvarado, 481 P.3d 737, 748-49 (Idaho 2021) (“An attorney actively representing conflicting interests in concurrent representations poses such a circumstance where ineffective assistance is so likely that prejudice may be presumed. However, the same cannot be said for successive representation, especially where the interests involved are unrelated to the former client’s case. While successive representation, like in the case at bar, may suggest an apparent 21 conflict of interest, at most it amounts to a cosmetic crack in the exterior of the trial proceedings; the overall foundation—and our confidence in the outcome—remains firm nonetheless. For these reasons, we hold that claims of conflict of interest relating to successive representation require a showing of actual prejudice.” (citation omitted)). 21 We are persuaded by the warning given in Mickens regarding the application of Holloway or Sullivan in cases of successive representation and the cases that heeded the warning. As the Supreme Court cautioned, “[b]oth Sullivan itself, . . . and Holloway, . . . stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice.” Mickens, 535 U.S. at 175, 122 S. Ct. at 1245 (emphasis added) (citations omitted). In cases of joint or multiple concurrent representation, requiring a showing of prejudice creates a significant danger to a defendant because the “evil is in what the attorney finds himself compelled to refrain from doing, not only at trial, but also as to possible pretrial plea negotiations and in the sentencing process. Accordingly, it would be difficult, if not impossible, to determine the prejudicial impact on 21 We acknowledge that courts have approached the issue of successive representation following Mickens in various ways. See e.g., Galloway, 298 So. 3d at 974- 75 (“Conflict-of-interest claims . . . are evaluated under one of two separate standards: the Strickland standard or the standard from Cuyler [v. Sullivan], 446 U.S. 335, 100 S. Ct. 1708 [64 L.Ed.2d 333 (1980)]. . . .”); State v. Phillips, 711 S.E.2d 122, 137 (N.C. 2011) (“When issues involving successive or simultaneous representation of clients in related matters have arisen before this Court, we have applied the Sullivan analysis rather than the Strickland framework to resolve resulting claims of ineffective assistance of counsel.”). However, for the reasons stated herein, we are persuaded by the Supreme Court’s cautionary language in Mickens. 22 the defendant in such cases.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). This danger of speculating prejudice is not as inherent in successive representation matters. 22 Without deciding whether Holloway or Sullivan applies exclusively to joint or multiple concurrent representation conflicts, we hold that when constitutional claims of ineffective assistance of counsel based upon successive representation are raised, the individual claiming ineffective assistance of counsel must demonstrate actual prejudice— that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different—pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 22 Similar to its federal counterpart discussed in Mickens, 535 U.S. at 175, 122 S. Ct. at 1245, Rule 44(c) of the West Virginia Rules of Criminal Procedure provides extra protection to defendants regarding the potential dangers of joint representation by requiring the lower court to specifically address each defendant about such representation: (c) Joint Representation.—Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel. W. Va. R. Crim. P. 44. 23 We now apply the analysis under Strickland’s second prong to determine whether A.B. has demonstrated that she was prejudiced or that the outcome of her trial would have been different but for the trial court’s refusal to relieve Ms. Smith from her representation. A.B. effectively contends that K.S.’s testimony would have been nullified if her counsel had been allowed to conduct a thorough cross-examination of K.S. Thus, under Strickland, there is no prejudice if there was sufficient evidence for the jury to convict A.B. without K.S.’s testimony. K.S.’s testimony consisted of a mere two-and-a-half pages. While K.S. testified that she was the individual who first found the infant G.B. under A.B. and could not wake A.B., the State presented copious other evidence to support the jury’s verdict. The State’s witnesses provided testimony amounting to almost 200 pages of additional direct and redirect testimony that included Grandmother also finding G.B. under A.B. shortly after K.S., as well as, the testimony of Grandmother, emergency responders, and medical professionals regarding the mental status and intoxication of A.B. and the living conditions to which A.B. had subjected her children, including the numerous empty alcohol bottles. Simply put, there was overwhelming evidence, other than K.S.’s brief testimony, that demonstrated A.B.’s guilt to all three counts. See State ex rel. Shelton v. Painter, 221 W. Va. 578, 586, 655 S.E.2d 794, 802 (2007) (per curiam) (“Insofar as the guilty phase of the trial is concerned, we agree with the trial court’s finding that ‘. . . even if counsel’s performance was deficient, then counsel’s deficient performance DID NOT adversely affect the outcome of the trial as there was overwhelming evidence of the Petitioner’s 24 [appellant’s] guilt.’” (alteration in original)). Given that A.B. cannot demonstrate that the outcome of the case would have changed, we find no error. B. Exculpatory Brady Evidence In her supplemental brief, A.B. asserted that the State failed to turn over certain juvenile records of K.S. in violation of Brady. The State disputes that it failed to turn over any such material. We find no merit in A.B.’s contention that a Brady violation occurred. As a general matter, “‘[a] Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.’” State v. Morris, 227 W. Va. 76, 84, 705 S.E.2d 583, 591 (2010) (per curiam) (quoting Youngblood v. West Virginia, 547 U.S. 867, 869-70, 126 S. Ct. 2188, 2190, 165 L. Ed. 2d 269 (2006)). We have explained the requirements that must be satisfied for establishing a Brady violation as follows: There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial. Syl. pt. 2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). “This test is applied in a conjunctive manner, meaning that all three elements must be satisfied[.]” State ex rel. Hubley v. Pszczolkowski, No. 19-0211, 2020 WL 7214158, at *10 (W. Va. Dec. 7, 2020) 25 (memorandum decision). See also Skinner v. Switzer, 562 U.S. 521, 536, 131 S. Ct. 1289, 1300, 179 L. Ed. 2d 233 (2011) (“To establish that a Brady violation undermines a conviction, a convicted defendant must make each of three showings[.]”). We need not determine whether the first two components are satisfied because A.B. cannot meet the third requirement regarding materiality of the evidence at issue. 23 The evidence at issue—juvenile records of K.S.— were not a material element of the evidence, the absence of which prejudiced A.B. Regarding the third component, this Court previously observed in Youngblood, that “‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A [“]reasonable probability[”] is a probability sufficient to undermine the confidence in the outcome.’” State v. Fortner, 182 W. Va. 345, 353, 387 S.E.2d 812, 820 (1989) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)). 221 W. Va. at 32, 650 S.E.2d at 131. The petitioner must show that the “favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1558, 131 L. Ed. 2d 490 (1995); see also Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 23 To be clear, this Court is not making a finding that the first two Brady/Youngblood factors were met. The State disputes that it failed to turn over any such material. In fact, during the trial, there was a discussion concerning the psychology records that defense counsel already possessed and then the State indicated that it had never seen those records. 26 766, 31 L. Ed. 2d 104 (1972) (holding that reversal is not required where undisclosed evidence was possibly useful to the defense but not likely to have changed the verdict). Additionally, the withheld evidence “must be evaluated in the context of the entire record.” United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976). Again, the State presented extensive evidence during the trial from several witnesses regarding all three counts. The witnesses described the circumstances surrounding G.B. being found, suffocated, under A.B. and A.B.’s intoxication. K.S.’s grandmother, who lived in the same house, provided similar testimony in even greater detail. Five witnesses testified as to A.B.’s intoxication on November 7, 2015, including the emergency room doctor who treated A.B. and found her blood alcohol content was .289. Moreover, witnesses described the deplorable living conditions in the home and the harm that can come to a child living in those circumstances. Examining K.S.’s juvenile records within the totality of the evidence, 24 we do not find that the result of A.B.’s trial would have been different if the records had been disclosed to the defense. Even if A.B. had the records to cross-examine K.S., and that cross- examination caused the jury to the doubt the reliability of K.S.’s testimony, such doubt would not have affected the jury’s verdict because of the overwhelming evidence of A.B.’s 24 K.S.’s alleged juvenile records at issue were at least two years after G.B.’s death. 27 guilt as to all three counts. Given the evidence supporting A.B.’s guilt from witnesses other than K.S., the juvenile records would not have been sufficient to place the whole case in “such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1558. Consequently, we find that the third component of the Brady/Youngblood analysis has not been satisfied and that the decision of the lower court should be affirmed. IV. CONCLUSION For the reasons set forth above, we affirm. Affirmed. 28	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484742/	FILED November 17, 2022 released at 3:00 p.m. No. 22-616—State of West Virginia, et al., v. Travis Beaver, et al. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Hutchison, Chief Justice, dissenting: This Court has the “responsibility and authority to ensure that the fundamental right of education is protected[.]” Kanawha Cnty. Pub. Libr. Bd. v. Bd. of Educ. of Cnty. of Kanawha, 231 W. Va. 386, 402, 745 S.E.2d 424, 440 (2013). Because the Court’s opinion finding the Hope Scholarship Act constitutional is contrary to the mandates of the West Virginia Constitution and the decisions of this Court which have jealously guarded the right to a free public education, I must respectfully dissent. A. The Hope Scholarship Program. The Hope Scholarship Act creates one of the most expansive school voucher programs in the United States. As the circuit court correctly found, “[t]here is no limitation on eligibility based on geography, family income, school performance, of the particular educational needs of the student, and no cap or limit on the number of vouchers that can be given out.” Under the program, a student receives a payment of public money to subsidize private school tuition or pay for other private education or homeschooling expenditures. The Legislature funds this program through general revenue. W. Va. Code § 18-9A-25 (2021). The State Treasurer transfers the funds to the Department of Education (the “Department”), id. § 18-31-6, that in turn transfers the fund to a newly created Hope Scholarship Board. Id. § 18-9A-25. The Department transfers to the Hope Scholarship Board an amount “equal to 100 percent of the prior year’s statewide average net state aid 1 share allotted per pupil based on net enrollment adjusted for state aid purposes[.]” W. Va. Code § 18-9A-25; id. § 18-31-6(b).1 The Hope Scholarship Board then places the money in accounts for parents referred to as Education Savings Accounts or ESAs. Id. § 18-31-5. To be eligible for the program during its first three years of operation, applicants must be enrolled in a public school for forty-five days at the time of application and remain so enrolled until an award letter is issued by the Hope Scholarship Board; have been enrolled in a public school for the previous year; or be eligible for enrollment in a kindergarten program. Id. § 18-31-2(5). If, on July 1, 2026, the program’s participation rate is less than five percent of public-school enrollment for the previous school year, then any West Virginia child of public-school age becomes eligible for the program. Id. § 18-31-2(5)(B). B. Education is an essential right and an indispensable duty of State Government. Education serves two vital and interrelated interests. First, as a personal matter, education is indispensable to our youth succeeding in an ever developing and more complex world. “Education is the foundation for success at any level. For a citizen to succeed in life, a good education is vital.” Jennifer M. Emswiler, Leadership of West Virginia’s Education System Enhanced with West Virginia Lawyers, W. Va. Law., Aug. 2002, at 18, 21. “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he or [she] is denied the opportunity of an education.” Brown v. Bd. of Ed., 347 U.S. 483, 493 (1954). In fact, “[t]his Court has 1 That formula currently provides Hope Scholarship applicants $4,300. 2 unquestionably found that education is a fundamental right[.]” Kanawha Cnty. Pub. Libr. Bd., 231 W. Va. at 402, 745 S.E.2d at 440; Randolph Cnty. Bd. of Ed. v. Adams, 196 W. Va. 9, 17 n.10, 467 S.E.2d 150, 158 n.10 (1995) (noting “the vast body of case law in this jurisdiction that not only emphasizes the fact that education is important, but is a fundamental right in this jurisdiction.”). Second, while individual students have a compelling interest in being educated, there is an equally compelling societal interest in having an educated citizenry. “[Education] is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.” Brown, 347 U.S. at 493. “Every man in a county, a town, a city, or a State is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to supply[.]” Kelly v. City of Pittsburgh, 104 U.S. 78, 82 (1881). Rightly, “Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.” Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring). Consequently, “[p]roviding public schools ranks at the very apex of the function of a State.” Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). The founders of West Virginia also recognized that “[e]ducation is the cornerstone of our society.” Cobb v. West Virginia Hum. Rts. Comm’n, 217 W. Va. 761, 3 775, 619 S.E.2d 274, 288 (2005). “The framers of our [West Virginia] Constitution lived among the ruins of a system that virtually ignored public education and its significance to a free people.” Adams, 196 W. Va. at 15, 467 S.E.2d at 156. As we have explained: “Virginia’s failure to provide a system of free public education had long rankled the western counties, and when the convention met in 1861 to create West Virginia’s first constitution, the framers gave high priority to public education (1863 Const. Art. X). The 1872 convention delegates, for all their conservative leanings, actually strengthened the education article. ‘Article XII . . . and Article X, § 5. . . give a constitutionally preferred status to public education in this State.’” Robert M. Bastress, The West Virginia Constitution— A Reference Guide 271 (1995), quoting West Va. Educ. Ass’n v. Legislature, 179 W. Va. 381, 382, 369 S.E.2d 454, 455 (1988). Id., 467 S.E.2d at 156. Thus, “[o]ur Constitution manifests, throughout, the people’s clear mandate to the Legislature, that public education is a prime function of our State government.” Pauley v. Kelly, 162 W. Va. 672, 719, 255 S.E.2d 859, 884 (1979). The West Virginia Constitution provides, for example, “[t]he Legislature shall provide, by general law, for a thorough and efficient system of free schools.” W. Va. Const. Art. XII, § 1. It also provides, “[t]he power of taxation of the Legislature shall extend to provisions for the payment of the state debt, and interest thereon, the support of free schools . . . .” Id. Art. X, § 5. “The provisions of Article XII, Section 1 et seq., as well as Article X, Section 5 of the West Virginia Constitution, when construed in the light of our prior cases, gives a constitutionally preferred status to public education in this State.” Syl. Pt. 1, State ex rel. 4 Bd. of Ed. v. Rockefeller, 167 W. Va. 72, 281 S.E.2d 131 (1981). The majority opinion denies public education the preferred status to which it is entitled under our Constitution. Such a denial requires my dissent. 2 C. West Virginia Constitution Articl e XII, § 1: A mandate with a restriction. “Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Constitution, the Legislature may enact any measure not interdicted by that organic law or the Constitution of the United States.” Syl. Pt. 1, State ex rel. Metz v. Bailey, 152 W. Va. 53, 159 S.E.2d 673 (1968). “[W]e exercise due restraint and will find a statute unconstitutional only when the negation of legislative power appears to us beyond a reasonable doubt.” State ex rel. Cities of Charleston, Huntington & its Cntys. of Ohio & Kanawha v. West Virginia Econ. Dev. Auth., 214 W. Va. 277, 295, 588 S.E.2d 655, 673 (2003). Nevertheless, because the West Virginia Constitution expressly confers upon this Court the power of judicial review, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 217 n.13, 470 S.E.2d 162, 171 n.13 (1996) (quoting W. Va. Const. Art. VIII, § 3), this Court necessarily “is the final arbiter of the state constitution[.]” 16 Am. Jur. 2d Constitutional Law § 111 (2020). And, it is “well established that it is the duty of a court to declare a statute invalid if its unconstitutionality is clear.” State ex rel. State Bldg. Comm’n v. Bailey, 151 W. Va. 79, 92, 150 S.E.2d 449, 456 (1966). Because the West Virginia Constitution limits the Legislature to providing 2 I do agree with the majority that there is standing in this case and that the claims raised by the Respondent’s are ripe. 5 education through a system of free schools and because the Hope Scholarship Act does not otherwise meet the onerous burden of strict scrutiny review, I would have affirmed the circuit court. 3 The Florida Supreme Court has found a voucher program similar to the Hope Scholarship program to be unconstitutional. I would follow the compelling and lucid reasoning of the Florida Supreme Court which demonstrates the clear unconstitutionality of the Hope Scholarship. In Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), the Florida Legislature passed the Opportunity Scholarship Program or the OSP. Under the OSP, a student attending a public school that failed to meet certain state minimum standards was afforded the option of either transferring to a higher performing public school or using a scholarship provided by the state to attend a participating private school. Id. at 397, 400. A group of plaintiffs sued contenting that the OSP violated, among other provisions, Florida Constitution Article IX, § 1(a), which provides, in pertinent part, The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education[.] Because these two issues are dispositive of this case, I do not venture an opinion 3 on any other issues addressed in the majority opinion. 6 The Florida Supreme Court found that the OSP violated the Florida Constitution as “the OSP is in direct conflict with the mandate in article IX, section 1(a) that it is the state’s ‘paramount duty’ to make adequate provision for education and that the manner in which this mandate must be carried out is ‘by law for a uniform, efficient, safe, secure, and high quality system of free public schools.’” Bush, 919 So.2d at 405. The Florida Supreme Court concluded that Article XI, § 1(a) is a “Mandate with a Restriction.” Bush, 919 So.2d 406. “Article IX, section 1(a) is a limitation on the Legislature’s power because it provides both a mandate to provide for children’s education and a restriction on the execution of that mandate.” Id. “The second sentence of article IX, section 1(a) provides that it is the ‘paramount duty of the state to make adequate provision for the education of all children residing within its borders.’” Id. at 407. “The third sentence of article IX, section 1(a) provides a restriction on the exercise of this mandate by specifying that the adequate provision required in the second sentence ‘shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools.’” Id. (emphasis in original). “The OSP violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.” Id. Like Florida’s Constitution, the West Virginia Constitution imposes upon the State the duty to provide a high-quality system of free public schools. See, e.g., Syl. Pt. 5, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The Thorough and Efficient 7 Clause contained in Article XII, Section 1 of the West Virginia Constitution requires the Legislature to develop a high quality State-wide education system.”); see also State ex rel. Trent v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953) (“[U]nder Section 1 of Article XII of the West Virginia Constitution, there is an absolute and mandatory duty on the part of the Legislature to ‘provide, by general law, for a thorough and efficient system of free schools[.]’”). And, like Article IX, § 1(a) of the Florida Constitution, Article XIII, § 1 of the West Virginia Constitution proscribes the means by which a through and efficient education is accomplished—through a “system of free schools.”4 The Florida Supreme Court also concluded that application of canons of statutory construction also lead ineluctably to this same result. “The principle of construction, ‘expressio unius est exclusion alterius,’ or ‘the expression of one thing implies the exclusion of another,’ leads us to the same conclusion.” Bush, 919 So.2d at 407. 4 The majority cites to Herold v. McQueen, 71 W. Va. 43, 75 S.E. 313 (1912), and Leonhart v. Board of Education of Charleston Independent School District, 114 W. Va. 9, 170 S.E. 418 (1933). In both of these cases, though, the Legislature was acting in furtherance of the mandate of Article XIII, § 1 to provide for a system of free schools. For example, at issue in Herold, was whether the Legislature could provide for the construction of a county high school. And at issue in Leonhart was the Legislature’s creation of a county unit plan of school organization. In both of these cases, the Legislature was acting within the scope of Article XII, § 1 to provide for a thorough and efficient system of free schools. All these cases stand for is the proposition that within the scope of Article XII, § 1 the Legislature’s power is almost plenary. Since the Hope Scholarship Act (or any similar plan to divert public monies to privately owned schools) is not within the purview of Article XII, § 1, they provide little support for the majority’s opinion. 8 [W]here the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. Id. (quoting Weinberger v. Bd. of Pub. Instruction, 112 So. 253, 256 (Fla. 1927) (citations omitted)). West Virginia, like Florida, adheres to the interpretive canon of expressio unius est exclusio alterius. 5 See Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984) (“In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies.”). While the majority opinion attempts to minimize this venerable doctrine, expressio unius “is a well-accepted canon of statutory construction.” State ex rel. Riffle v. Ranson, 195 W. Va. 121, 128, 464 S.E.2d 763, 770 (1995); see also Lane v. Bd. of Ed. of Lincoln Cnty., 147 W. Va. 737, 745, 131 S.E.2d 165, 170 (1963) (noting “the well established principle which governs the interpretation of written instruments, including . . . constitutions, [is] that the express mention of one thing implies the exclusion of another, The majority does cite to a concurring opinion from a previous member of this 5 Court questioning expressio unius. State v. Euman, 210 W. Va. 519, 524, 558 S.E.2d 319, 324 (2001) (McGraw, C.J., concurring). A concurring opinion is not binding precedent. Maryland v. Wilson, 519 U.S. 408, 413 (1997). 9 expressio unius est exclusio alterius[.]”); State ex rel. Downey v. Sims, 125 W. Va. 627, 633, 26 S.E.2d 161, 163 (1943) (“The principle of construction here applied is so ancient that its beginning cannot be found and is supported by cases which are simply overwhelming in number.”); Julian v. DeVincent, 155 W. Va. 320, 326, 184 S.E.2d 535, 538 (1971) (Calhoun, J., dissenting) (“This Court has consistently recognized and applied the legal principle that, in the construction of statutory language, the express mention of one thing implies the exclusion of another.”). Expressio unius applies to constitutional construction. “This Court has said that this applicable principle of construction is of ancient origin and extends to all instruments requiring judicial construction, contracts, deeds, statutes and constitutions.” Harbert v. Harrison Cnty. Ct., 129 W. Va. 54, 64, 39 S.E.2d 177, 186 (1946); see also Downey, 125 W. Va. at 633, 26 S.E.2d at 163 (“Expressio unius est exclusio alterius. This classic maxim applies to all instruments requiring construction by courts—simple contracts, deeds, wills, statutes and constitutions.”). Thus, under expressio unius, when a statute or the constitution “specifically provides that a thing is to be done in a particular manner, [this] normally implies that it shall not be done in any other manner.” Riffle, 195 W. Va. at 128, 464 S.E.2d at 770; see also Syl. Pt. 1, in part, State ex rel. Battle v. Hereford, 148 W. Va. 97, 133 S.E.2d 86 (1963) (“A statute which provides for a thing to be done in a particular manner . . . implies that it shall not be done otherwise[.]”); Dunham v. Morton, 115 W. Va. 310, 313, 175 S.E. 787, 788 (1934) (“The constitutional specification of the one method of selection of county commissioners operates to the exclusion of all other 10 methods.”); State v. Gilman, 33 W. Va. 146, 150, 10 S.E. 283, 285 (1889) (“By [the West Virginia Constitution’s] granting an express authority to the legislature to regulate or prohibit the sale [of alcoholic beverages], there is an implied inhibition to the exercise of any authority in respect to that subject which is not embraced in the grant. This rule is simply an application of the old maxim, expressio unius est exclusio alterius[.]”). Consequently, the West Virginia Constitution provides that the Legislature’s obligation to provide a through and efficient education is limited to doing so only by a system of free schools, not through subsidizing private educational systems. 6 As such, the Hope Scholarship Act and its subsidization of private education is prohibited by the West Virginia Constitution. I would, therefore, have affirmed the circuit court. D. Strict Scrutiny. Even if the Legislature has the constitutional power to enact a voucher program, we must review whether the Legislature’s enactment of the Hope Scholarship Program is consonant with other constitutional limitations. And such a review establishes that the Hope Scholarship does not pass constitutional muster. 6 I am not unaware of Gissy v. Board of Education of Freeman’s Creek District, 105 W. Va. 429, 143 S.E. 111 (1928), where this Court approved of legislation requiring a board of education to pay tuition of students attending a parochial high school. In the odd facts of that case, though, the board did not maintain a high school nor assist in the maintenance of a county high school. 11 “Both the State Constitution and this Court have established that education is a fundamental right.” Meadows on Behalf of Pro. Emps. of W. Va. Educ. Ass’n v. Hey, 184 W. Va. 75, 77, 399 S.E.2d 657, 659 (1990); see, e.g., Syl. Pt. 3, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979) (“The mandatory requirements of ‘a thorough and efficient system of free schools’ found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State.”); Kanawha Cnty. Pub. Libr. Bd., 231 W. Va. at 402, 745 S.E.2d at 440 (“This Court has unquestionably found that education is a fundamental right[.]”). “[I]f the State takes some action which denies or infringes upon a person’s fundamental right to an education, then strict scrutiny will apply[.]” Syl. Pt. 2, in part, Cathe A. v. Doddridge Cnty. Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997) (citation omitted). West Virginia’s strict scrutiny test is the same strict scrutiny test applied by the United States Supreme Court. Phillip Leon M. v. Greenbrier Cnty. Bd. of Educ., 199 W. Va. 400, 404 n.7, 484 S.E.2d 909, 913 n.7 (1996), holding modified on other grounds by Cathe A. v. Doddridge Cnty. Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997). 7 Strict scrutiny “is the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 509 (1997); see also Miller v. Johnson, 515 U.S. 900, 7 I hasten to point out that the United States Supreme Court has specifically rejected any federal constitutional right to an education. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”). 12 920 (1995) (characterizing strict scrutiny as “our most rigorous and exacting standard of constitutional review.”). 8 For a statute to be constitutional “[u]nder strict scrutiny, the 8 The majority in Syllabus Point 7 holds that a facial challenge to a statute’s constitutionality is the most difficult challenge to mount successfully. It goes on that “[t]he challenger must establish that no set of circumstances exists under which the legislation would be valid; the fact that the legislation might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” I question this new Syllabus Point. The “no set of circumstances” test was articulated in the United States Supreme Court in United States v. Salerno, 481 U.S. 739, 745 (1987): “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Such language was first introduced into West Virginia law (although not carried into a Syllabus Point) by Tony P. Sellitti Construction Co. v. Caryl, 185 W. Va. 584, 592, 408 S.E.2d 336, 344 (1991) (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991), in turn quoting Salerno). “The Tenth Circuit and leading commentators contend that the formulation in United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987), is neither normatively desirable nor—more importantly for the Court’s purposes—descriptively accurate.” United States v. Streett, 434 F. Supp. 3d 1125, 1169 n.18 (D.N.M. 2020). Indeed, “[i]f the standard in United States v. Salerno were taken seriously, virtually no statute would ever be invalidated.” Id. Thus, the no set of circumstances language in Salerno has generated considerable controversy in the Supreme Court and the lower courts. See, e.g., United States v. Frandsen, 212 F.3d 1231, 1235 n.3 (11th Cir. 2000) (“‘[T]he Salerno rule,’ has been subject to a heated debate in the Supreme Court, where it has not been consistently followed.”); Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Env’t Control, 317 F.3d 357, 373 n.4 (4th Cir. 2002) (King, J., dissenting) (“[T]he Salerno doctrine is an embattled one at best, and its continuing viability is the subject of intense debate.”); Almerico v. Denney, 378 F. Supp. 3d 920, 924 (D. Idaho 2019) (“Salerno’s ‘no set of circumstances’ test is the subject of considerable controversy. As Plaintiffs are quick to point out . . . a faction of Justices on the Court has regularly called into question the wisdom of Salerno.”). For example, in City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (plurality opinion), the Court plurality asserted that “[t]o the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself.” But see id. at 80 (Scalia, J., dissenting). I agree, therefore, with the conclusion reached by the Tenth Circuit in Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012): 13 government must adopt ‘the least restrictive means of achieving a compelling state interest[.]’” Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021) Salerno’s language . . . is accurately understood not as setting forth a test for facial challenges, but rather as describing the result of a facial challenge in which a statute fails to satisfy the appropriate constitutional standard. In other words, where a statute fails the relevant constitutional test (such as strict scrutiny . . .), it can no longer be constitutionally applied to anyone—and thus there is “no set of circumstances” in which the statute would be valid. The relevant constitutional test, however, remains the proper inquiry. Id. at 1127; see also Rothe Dev. Corp. v. Dep’t of Defense, 413 F.3d 1327, 1337–38 (Fed. Cir. 2005) (“Because, as we held before and hold again today, the strict scrutiny doctrine sets forth the test for determining facial unconstitutionality in this case, Salerno is of limited relevance here, at most describing a conclusion that could result from the application of the strict scrutiny test.”). Of course, given the heated dispute in the Supreme Court and lower federal courts concerning Salerno, I would go even further and find that, consistent with our sister state courts, Salerno has no vitality outside a facial challenge based on the federal constitution. See Utah Pub. Emps. Ass’n v. State, 131 P.3d 208, 214 (Utah 2006) (citing Morales) (“When state courts interpret their own state law, the United States Supreme Court has not required adherence to Salerno. . . . The Court explained that because state courts are not bound by federal law when assessing the constitutionality of state law under state constitutions, they need not follow the narrow interpretation of facial challenges found in Salerno.”); Commonwealth v. Ickes, 873 A.2d 698, 702 (Pa. 2005) (“The Salerno test, however, is based on dicta and is not controlling for state courts.”); Robinson v. City of Seattle, 10 P.3d 452, 459 (Wash. Ct. App. 2000) (“We thus reject the Salerno ‘no set of circumstances’ test as inappropriate for a taxpayer challenge under the state constitution.”). Accordingly, Salerno is inapplicable in state constitutional challenges to state legislation. Rather than applying the “no set of circumstances” language, I would instead “apply the test dictated by the nature of the challenge.” Robinson, 10 P.3d at 459; see also Utah Pub. Emps. Ass’n, 131 P.3d at 214 (“The Morales Court also suggested, by referencing scholarly articles on the matter, that in state law cases in state courts, a more appropriate threshold for determining the validity of facial challenges may simply exist in establishing the substantive merits of the case—the unconstitutionality of the legislation.”). And in this case that test is strict scrutiny review. 14 (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)). Under strict scrutiny, the statute’s proponents shoulder the burden to prove the statute meets strict scrutiny’s exacting criteria. Republican Party of Minnesota v. White, 536 U.S. 765, 774–75 (2002). Under strict scrutiny, there is a strong presumption against an act’s constitutionality. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973) (“[S]trict scrutiny means that the State’s system is not entitled to the usual presumption of validity[.]”); Bartnicki v. Vopper, 532 U.S. 514, 536 (2001) (Breyer, J., concurring) (observing that strict scrutiny comes with a “strong presumption against constitutionality”). “Only rarely are statutes sustained in the face of strict scrutiny.” Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984). Public schools in West Virginia are funded by way of the Public School Support Plan or, as it is usually termed, the School Aid Formula. See W. Va. Code § 18- 9A-1, et seq. Because net enrollment of students 9 is the primary basis for the State’s allocation of funding to public schools under the School Aid Formula, a decline in enrollment necessarily results in a diminution of funding to schools. There is no doubt that the Hope Scholarship will affect the amount of funding that will flow to at least certain schools in West Virginia absent some future legislative action. See State’s Opening Br. at Net enrollment is “the number of pupils enrolled in special education programs, 9 kindergarten programs, and grades one to 12, inclusive, of the public schools of the county.” W. Va. Code § 18-9A-2(i). The enrollment figures for one year are used in the School Aid Formula calculation for the following year. 15 26 (“Some districts will lose money if students leave their public schools and the Legislature does not change the current funding structure.”).10 The majority, however, (consistent with the State’s argument in its Brief before this Court) ignores whether the resulting aid decrease in the State Aid Formula by virtue of the Hope Scholarship Program satisfies the strict scrutiny test—a undertaking that would likely result in Hope’s invalidation. Vieth v. Jubelirer, 541 U.S. 267, 294 (2004) (“As is well known, strict scrutiny readily, and almost always, results in invalidation.”). Rather, it concludes that strict scrutiny review is unnecessary because any diminishment in funding under the Hope Scholarship Program does not rise to the level of a constitutional violation and, thus, does not infringe on the right to a thorough and efficient public education. I disagree with the premise and the conclusion. Such a drop in funding necessarily constitutes a constitutional violation. “[T]here can be no doubt that public education is among the state’s most basic sovereign powers. Laws that divert limited educational funds from this core function are an obvious interference with the effective exercise of that power.” Wells v. One2One Learning Found., 141 P.3d 225, 239 (Cal. 2006), as modified (Oct. 25, 2006). If a student leaves a public school with the aid of a Hope Scholarship, that school will suffer a drop in 10 At oral argument before this Court, the State did not contest that absent some future act by the Legislature, in two years there would be a decrease in funds available to many public-school children. 16 funding under the School Aid Formula. To my mind, that constitutes an infringement on a free public education to other students in the losing school. The majority responds that there is no cause for concern because the Legislature may alter the School Aid Formula at some point in the future to address the loss of funding due to the Hope Scholarship Program enticing students out of public schools. 11 But the constitutional validity of the Hope Scholarship Program cannot depend on what the Legislature might do to amend another code provision in the future. “The constitutional validity of the statute is to be judged as of the date of its enactment.” Gottlieb v. White, 69 F.2d 792, 794 (1st Cir. 1934); see also Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 75 S.E.2d 161, 163 (Ga. 1953) (“The time with reference to which the constitutionality of an act is to be determined is the date of its passage by the enacting body[.]”). “We must test this statute by determining whether it now impairs appellants’ constitutional rights, not by . . . what may result from future revision.” Moore v. Ward, 377 S.W.2d 881, 885 (Ky. 1964). The Hope Scholarship Act is unconstitutional here and now and claims that it can somehow be amended into constitutionality by some future actions of the Legislature are untenable. See, e.g., In re R. A. S., 290 S.E.2d 34, 35 (Ga. 1982) (“[O]nce a statute is declared unconstitutional and void, it cannot be saved by a subsequent statutory amendment, as there is, in legal contemplation, nothing to amend.”); Opinion of 11 That the Legislature may subsequently fix the underfunding of schools brought on by the Hope Scholarship Program is of little comfort to the students who have attended those underfunded schools and who will have had an education that does not meet constitutional minimums. 17 the Justices, 78 So. 2d 1, 2 (Ala. 1955) (“If the original act is unconstitutional and void, the amending act is likewise void.”); Syl. Pt. 1, State v. Long, 61 So. 154 (La. 1913) (“Where an act of the Legislature has been declared unconstitutional, the Legislature cannot thereafter give it life by passing an amendment thereto. When the act has been held unconstitutional, it is thereafter nonexistent, and, as an amendment presupposes an act upon which to rest, there being no act, there can be no valid amendment of the act.”). For all the reasons I have set forth, I respectfully dissent. 18	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484744/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED September 2022 Term November 17, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 21-0696 STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. WILLIAM T. WILFONG, Defendant Below, Petitioner. Appeal from the Circuit Court of Randolph County The Honorable David H. Wilmoth, Judge Case No. 20-M-2 AFFIRMED Submitted: November 1, 2022 Filed: November 17, 2022 Morris C. Davis, Esq. Patrick Morrisey, Esq. The Nestor Law Office Attorney General Elkins, West Virginia Michael R. Williams, Esq. Counsel for the Petitioner Senior Deputy Solicitor General Lara K. Bissett, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent JUSTICE WALKER delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “The constitutionality of a statute is a question of law which this Court reviews de novo.” Syllabus Point 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008). 2. “‘When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.’ Syl. Pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967).” Syllabus Point 3, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). 3. “‘A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.’ Syl. pt. 1, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974).” Syllabus Point 1, State v. Blair, 190 W. Va. 425, 438 S.E.2d 605 (1993). 4. “‘There is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general i language.’ Syl. pt. 1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970).” Syllabus Point 2, State v. Blair, 190 W. Va. 425, 438 S.E.2d 605 (1993). 5. “Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied.” Syllabus Point 3, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974). ii WALKER, Justice: Petitioner William T. Wilfong was charged with possession of a firearm by a prohibited person under West Virginia Code § 61-7-7(a)(3) (2016). After the Circuit Court of Randolph County rejected his argument that the statute was unconstitutionally vague, it accepted his conditional guilty plea. Under the plea agreement, Mr. Wilfong reserved the right to appeal the issue and now contends that West Virginia Code § 61-7- 7(a)(3)—which makes it unlawful for any person who “[i]s an unlawful user of . . . any controlled substance” to possess a firearm—is so ambiguous that it is unconstitutionally vague on its face. But because Mr. Wilfong does not argue, and has not shown, that this statute is vague as applied to his conduct of possessing a firearm while regularly using marijuana, his facial challenge cannot succeed. So, we affirm Mr. Wilfong’s conviction. I. FACTUAL AND PROCEDURAL BACKGROUND On November 8, 2019, Deputy E. B. Carr of the Randolph County Sheriff’s Department responded to a report of a suspicious vehicle. When Deputy Carr approached the vehicle, Mr. Wilfong identified himself. Deputy Carr told Mr. Wilfong that he was parked on property that was posted with no trespassing signs. Deputy Carr ran Mr. Wilfong’s driver’s license through Randolph County E-911 communications and learned that the license was suspended. A warrant check showed that Mr. Wilfong had an active arrest warrant through the Elkins Municipal Court for a failure to appear offense. 1 Deputy Carr placed Mr. Wilfong under arrest and searched his vehicle incident to the arrest. He found a Remington Model 597 firearm and a magazine for that firearm that contained ten rounds of ammunition. Deputy Carr also found a digital scale with what he believed had marijuana residue on it. A criminal history check revealed that Mr. Wilfong had a conviction for possession of a controlled substance with a disposition date of May 28, 2019. When Deputy Carr drove him to the regional jail, Mr. Wilfong said he “only uses marijuana” and smokes it on a “normal” basis. Mr. Wilfong also told Deputy Carr that the last time he smoked marijuana was a week before his arrest. Mr. Wilfong was charged with violating West Virginia Code § 61-7-7(a)(3) which provides, in relevant part, that an individual who “[i]s an unlawful user of . . . any controlled substance” is prohibited from possessing a firearm. Mr. Wilfong filed a motion with the circuit court seeking to have the statute declared unconstitutional on the ground that it was facially void for vagueness. He claimed that the statute did not give guidance as to what it means to be “an unlawful user,” or how long someone is considered “an unlawful user,” after using a controlled substance. The circuit court denied the motion. Mr. Wilfong pleaded guilty to one misdemeanor count of being a prohibited person in possession of a firearm in violation of West Virginia Code § 61-7-7(a)(3) and reserved the right to appeal the constitutionality of that statute. The circuit court accepted his conditional guilty plea in March 2021. In its August 2, 2021, sentencing order, the 2 circuit court sentenced Mr. Wilfong to one year in the regional jail; it suspended that sentence for one year of supervised probation. II. STANDARD OF REVIEW Mr. Wilfong argues that West Virginia Code § 61-7-7(a)(3) is unconstitutionally vague on its face because it does not define “unlawful user” of a controlled substance. “The constitutionality of a statute is a question of law which this Court reviews de novo.” 1 When we evaluate his challenge to the statute, we keep in mind the importance of judicial restraint because we presume that a statute is constitutional: “When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.”[2] With this standard of review and presumption in mind, we proceed to address the parties’ arguments. 3 1 Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008). 2 Syl. Pt. 3, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011) (quoting Syl. Pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967)). 3 Mr. Wilfong does not argue that because the conduct prohibited by West Virginia Code § 61-7-7(a)(3) may impact rights protected by the Second Amendment of the United States Constitution, the State has the burden of establishing that the statute “is consistent with this Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n (continued . . .) 3 III. ANALYSIS In this appeal, the Court is tasked with determining whether West Virginia Code § 61-7-7(a)(3) should be declared unconstitutionally vague and, therefore, void. The statute provides, in relevant part, that “no person shall possess a firearm . . . who . . . [i]s an unlawful user of . . . any controlled substance[.]” 4 “Claims of unconstitutional vagueness in criminal statutes are grounded in the constitutional due process clauses, U.S. Const. amend. XIV, Sec. 1, and W.Va. Const. art. III, Sec. 10.”5 When applying the void-for-vagueness doctrine, we have instructed that “[a] criminal statute must be set out with sufficient definiteness to give a person of ordinary v. Bruen, 142 S. Ct. 2111, 2126 (2022). Indeed, the parties filed their briefs before the United States Supreme Court issued Bruen. But we note that in Bruen, the Supreme Court expressly reaffirmed the holdings of Second Amendment cases, which define the right to bear arms as belonging to “law-abiding, responsible citizens.” Id. at 2122. For this reason, we examine West Virginia Code § 61-7-7(a)(3)’s prohibition as presumptively lawful and falling within the exceptions to the protected right to bear arms. See, e.g., United States v. Daniels, No. 1:22-CR-58-LG-RHWR-1, 2022 WL 2654232, at 4 (S.D. Miss. July 8, 2022) (holding 18 U.S.C. § 922(g)(3)—which provides, in relevant part, that “[i]t shall be unlawful for any person . . . who is an unlawful user or addicted to any controlled substance” to possess a firearm—passes constitutional muster under the legal framework articulated in Bruen); United States v. Seiwert, No. 20 CR 443, 2022 WL 4534605, at 2 (N.D. Ill. Sept. 28, 2022) (holding § 922(g)(3) is consistent with this Nation’s historical tradition of firearm regulation). 4 W. Va. Code § 61-7-7(a)(3). 5 State v. Bull, 204 W. Va. 255, 261, 512 S.E.2d 177, 183 (1998). 4 intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.” 6 We also recognize that “[t]here is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language.”[7] Mr. Wilfong argues that West Virginia Code § 61-7-7(a)(3) is so ambiguous it is unconstitutionally vague on its face because it does not define “unlawful user.” He contends that the statute does not provide sufficient guidance to either a potential defendant or a finder of fact as to how long one remains an “unlawful user” after the unlawful use of a controlled substance. And Mr. Wilfong asks whether one forfeits his Second Amendment rights if he uses marijuana the week, the month, or the year before? The State responds that because Mr. Wilfong cannot show that the statute is vague as applied to his particular conduct, he lacks standing to raise a facial challenge. 8 6 Syl. Pt. 1, State v. Blair, 190 W. Va. 425, 438 S.E.2d 605 (1993) (quoting Syl. Pt. 1, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974)). 7 Syl. Pt. 2, Blair, 190 W. Va. at 426, 438 S.E.2d at 606 (quoting Syl. Pt. 1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970)). 8 State ex rel. Appleby v. Recht, 213 W. Va. 503, 519, 583 S.E.2d 800, 816 (2002); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19 (2010) (holding one (continued . . .) 5 The State notes that when Mr. Wilfong pleaded guilty, he admitted to all of the facts alleged in the criminal complaint. 9 So, the State contends that Mr. Wilfong’s regular use of marijuana would lead an ordinary person to understand that he was an “unlawful user” of controlled substances who was prohibited from possessing a firearm. This case presents an issue of first impression for this Court. We look to federal court cases for guidance because they have examined the issue and recognized possible constitutional vagueness concerns with 18 United States Code § 922(g)(3) (2022), 10 which contains nearly identical language to West Virginia Code § 61-7-7(a)(3). 11 “‘who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’”) (quoting Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). 9 See Syl. Pt. 3, State ex rel. Combs v. Boles, 151 W. Va. 194, 151 S.E.2d 115 (1966) (“A plea of guilty is an admission of whatever is well charged in the indictment and the acceptance thereof by the court effects a conviction for that offense.”); see also McCarthy v. U.S., 394 U.S. 459, 466 (1969) (“a guilty plea is an admission of all the elements of a formal criminal charge”); see also State v. Liebnitz, 603 N.W. 2d 208, 214 (Wis. 1999) (recognizing the well-established rule that what is admitted by a guilty plea is all the material facts alleged in the charging document). 10 Section 922(g)(3) provides, in relevant part, that “[i]t shall be unlawful for any person . . . who is an unlawful user or addicted to any controlled substance” to possess a firearm. 11 See, e.g., United States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003) (“The term ‘unlawful user’ is not otherwise defined in [§ 922(g)(3)], but courts generally agree the law runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and regular drug use.”), judgment vacated, 543 U.S. 1099 (2005), opinion reinstated, 414 F.3d 942 (8th Cir. 2005)); United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (upholding district court’s determination that the government (continued . . .) 6 Even so, federal courts have consistently rejected facial due process challenges to § 922(g)(3) where the defendant engaged in conduct that was clearly prohibited by the statute. For example, in United States v. Purdy, 12 the court rejected a facial void-for- vagueness challenge to the term “unlawful user” where the evidence showed that the defendant smoked methamphetamine and marijuana regularly and contemporaneously with his possession of a firearm.13 The Purdy court reasoned that the defendant was put on notice that he fell within the statutory definition of an unlawful drug user; it went on to hold that “to sustain a conviction under § 922(g)(3), the government must prove . . . that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.”14 In United States v. Bramer, 15 the Eighth Circuit Court of Appeals addressed a case procedurally and factually similar to the case before us and rejected a facial challenge to § 922(g)(3) when the defendant did not show that the term “unlawful user” must establish “a pattern of use and recency of use” as a reasonable application of § 922(g)(3)). 12 264 F.3d 809 (9th Cir. 2001). 13 Id. at 812. 14 Id. at 812-13. 15 832 F.3d 908 (8th Cir. 2016). 7 was vague “as applied to his particular conduct.” 16 What made Bramer’s conduct “clearly prohibited” was that he had pleaded guilty to “knowingly posses[sing] firearms . . . while being an unlawful user of marijuana.”17 The court noted that while it was “plausible” that the term “unlawful user” of a controlled substance “could be unconstitutionally vague under some circumstances, Bramer does not argue, and has not shown, that” the term was vague as applied to his particular conduct of possessing firearms while regularly using marijuana. 18 When reaching its conclusion, the court relied on void-for-vagueness case law holding generally that a defendant who engages in conduct that is clearly prohibited by a statute lacks standing to complain of the vagueness of the law as applied to the conduct of others. 19 16 Id. at 909. 17 Id. Bramer, 832 F.3d at 909-10; see also United States v. Edwards, 182 F.3d 333, 18 336 (5th Cir. 1999) (rejecting a void-for-vagueness challenge and affirming conviction under § 922(g)(3) where defendant admitted to using marijuana on a daily basis for the past two to three years). Bramer, 832 F.3d at 909 (citing United States v. Cook, 782 F.3d 983, 987 (8th 19 Cir. 2015) cert. denied, 136 S.Ct. 262 (2015)); see also United States v. Stupka, 418 F.Supp.3d 402 (N.D. Iowa 2019) (finding defendant could not raise vagueness challenge to § 922(g)(3) without demonstrating that the statute was vague as applied to her particular conduct); Holder, 561 U.S. at 18-19. 8 Turning to West Virginia Code § 61-7-7(a)(3), the Legislature chose to criminalize firearm possession by a person who “is an unlawful user” 20 of a controlled substance, and we recognize that “[t]he use of the present tense was not idle. Quite simply, [the Legislature] intended the statute to cover unlawful drug use at or about the time of the possession of the firearm, with that drug use not remote in time or an isolated occurrence.” 21 This reading not only provides adequate notice to a potential defendant and a trier of fact, “it preserves the legislative intent that those who could reasonably be considered to be ‘unlawful users’—those who use with regularity and in a time period reasonably contemporaneous with the possession of a firearm—be subject to criminal sanction.” 22 So, a plain reading of West Virginia Code § 61-7-7(a)(3) shows that it requires a temporal nexus between regular drug use and possession of a firearm to support a conviction. In Flinn, we held that, “[c]riminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for 20 W. Va. Code § 61-7-7(a)(3) (emphasis added). 21 United States v. Augustin, 376 F.3d 135, 138 (3d Cir. 2004). In Augustin, the court found that “to be an unlawful user [under § 922(g)(3)], one needed to have engaged in regular use over a period of time proximate to or contemporaneous with the possession of the firearm.” 376 F.3d at 139. State v. Garcia, 424 P.3d 171, 185 (Utah 2017). In Garcia, the court examined 22 Utah Code § 76-10-503(1)(b)(iii), (3) (2021), which contains nearly identical language to West Virginia Code § 61-7-7(a)(3). 9 certainty and definiteness by construing the statute in light of the conduct to which it is applied.” 23 For this reason, Mr. Wilfong’s facial attack to West Virginia Code § 61-7- 7(a)(3) lacks merit because he ignores his conduct in this case. When he was arrested in November 2019, Mr. Wilfong admitted that he “uses marijuana” and smokes it on a “normal” basis; he told the deputy that he smoked marijuana the week before and the deputy found a firearm and digital scale with what he believed had marijuana residue on it in Mr. Wilfong’s vehicle. Mr. Wilfong was convicted of possession of a controlled substance earlier that year. These facts show that Mr. Wilfong’s regular use of marijuana over an extended period of time put him on notice that he qualified as an “unlawful user” of a controlled substance, who was prohibited from possessing a firearm under West Virginia Code § 61-7-7(a)(3). Even though West Virginia Code § 61-7-7(a)(3) is “couched in general language[,]” 24 it does not violate the due process clauses as applied to Mr. Wilfong’s conduct. So, he lacks standing to assert the claim that the statute is unconstitutionally vague on its face. 25 23 Syl. Pt. 3, Flinn, 158 W. Va. at 111, 208 S.E.2d at 539. While the right to possess a firearm is addressed in the Federal and State Constitutions, possession of a firearm by certain individuals, such as felons, is outside those constitutional protections. Stupka, 418 F.Supp.3d at 412 (citing McDonald v. City of Chicago, Ill., 561 U.S. 742, 786 (2010)). So, this case does not involve the type of fundamental constitutional rights that typically lead to a facial vagueness review. See Bruen, 142 S. Ct. at 2122 (defining the Second Amendment right to bear arms as belonging to “law-abiding, responsible citizens.”). 24 Syl. Pt. 2, in part, Blair, 190 W. Va. at 426, 438 S.E.2d at 606. 25 Recht, 213 W. Va. at 519, 583 S.E.2d at 816. 10 This case demonstrates that a defendant cannot prevail in his void-due-to- vagueness constitutional challenge by raising hypothetical scenarios that illustrate a statute could prove difficult to apply. “Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” 26 And when a statutory term is the primary source of vagueness, the remedy is typically a limiting instruction, not a finding of facial invalidity. 27 IV. CONCLUSION We conclude that the facts concerning Mr. Wilfong’s marijuana use were sufficient to put him on notice that his conduct was criminal under West Virginia Code § 61-7-7(a)(3), so he cannot present a facial void-for-vagueness challenge to the statute. We affirm the August 2, 2021, sentencing order of the Circuit Court of Randolph County. Affirmed. 26 United States v. Williams, 553 U.S. 285, 306 (2008). 27 See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (“The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined”; a limiting instruction “could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented.”). 11	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484748/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED _______________ November 17, 2022 released at 3:00 p.m. No. 22-0027 EDYTHE NASH GAISER, CLERK _______________ SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES; BILL CROUCH, SECRETARY; AND KANAWHA COUNTY CHILD PROTECTIVE SERVICES DIVISION, Petitioners, V. THE HONORABLE LOUIS H. BLOOM, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, AND JENNIFER R. VICTOR AND JENNIFER N. TAYLOR, GUARDIANS AD LITEM FOR THE CIRCUIT COURT OF KANAWHA COUNTY, Respondents. _____________________________________________ Petition for a Writ of Prohibition WRIT GRANTED _____________________________________________ Submitted: September 13, 2022 Filed: November 17, 2022 Patrick Morrisey, Esq. Jennifer R. Victor, Esq. Attorney General Victor & Victor, LLP Steven R. Compton, Esq. Charleston, West Virginia Deputy Attorney General Director, Health and Human Jennifer N. Taylor, Esq. Resources Division Charleston, West Virginia Charleston, West Virginia Attorneys for the Respondents, Guardians ad Litem Lou Ann S. Cyrus, Esq. Emily L. Lilly, Esq. Shuman McCuskey Slicer PLLC Charleston, West Virginia Attorneys for the Petitioners JUSTICE BUNN delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 2. “‘Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made.’ Syl. pt. 1, State ex rel. Buxton v. O’Brien, 97 W. Va. 343, i 125 S.E. 154 (1924).” Syllabus point 2, State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640 (1989). 3. “‘Mandamus will not issue to compel a party to perform an act which he has already begun to do, and it is apparent that he will in good faith perform.’ Point 2, syllabus, State ex rel. Hall v. County Court of Mercer County, 100 W. Va. 11[, 129 S.E. 712 (1925)].” Syllabus point 1, State ex rel. Nelson v. Ritchie, 154 W. Va. 644, 177 S.E.2d 791 (1970). 4. “Stipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed.” Syllabus point 1, Butler v. Smith’s Transfer Corp., 147 W. Va. 402, 128 S.E.2d 32 (1962). 5. “A circuit court is afforded wide discretion in determining whether or not a party should be relieved of a stipulation, and such decision should not be set aside absent an abuse of discretion.” Syllabus point 6, West Virginia Department of Transportation v. Veach, 239 W. Va. 1, 799 S.E.2d 78 (2017). ii BUNN, Justice: Petitioners, the West Virginia Department of Health and Human Resources; its Secretary, Bill Crouch; and Kanawha County Child Protective Services Division (collectively, “DHHR”), request this Court to issue a writ prohibiting the respondent, the Honorable Louis H. Bloom, Judge of the Circuit Court of Kanawha County, from enforcing various mandamus orders it issued against the DHHR. By “Agreed Order” entered on March 29, 2018, the circuit court established the underlying mandamus proceeding initiated by the additional respondents, Kanawha County Guardians ad Litem Jennifer R. Victor and Jennifer N. Taylor (collectively, “the GALs”), to compel the DHHR to address and remedy the limited issues of employee staffing, retention, and training in the Kanawha County Child Protective Services Division Office (“Kanawha County CPS Office”). Thereafter, the circuit court granted the GALs’ request to expand the scope of the initial writ of mandamus and, by orders entered December 16, 2021, January 13, 2022, January 20, 2022, and January 25, 2022,1 added issues, over the DHHR’s objections, pertaining to the staffing of Child Protective Services offices, adoption units, and foster care units statewide and imposed limitations on the housing of children in DHHR custody at its offices and in hotels. 1 The circuit court’s January 25, 2022 order amended its January 13, 2022 order. 1 For the reasons set forth below, we find that the DHHR is entitled to a writ of prohibition in this case. The parties agree that the DHHR undertook significant efforts to correct the staffing issues in the Kanawha County CPS Office after the initiation of the 2018 mandamus proceeding and it continues to work towards improving these conditions. Consequently, the DHHR has performed, and continues to perform, the nondiscretionary duty the GALs originally sought to compel. Additionally, the circuit court erred by expanding the scope of the mandamus proceeding to include statewide staffing issues and child housing concerns. The parties originally agreed to the scope of the mandamus proceeding; the circuit court ratified that agreement by order entered March 29, 2018; and the circuit court exceeded the scope of that agreed order in its December 2021 and January 2022 orders. I. FACTUAL AND PROCEDURAL HISTORY This case began in 2017 when one of the GALs, Ms. Victor, filed a “Petition for Contempt” in an abuse and neglect case, in which she served as the children’s guardian ad litem, alleging that [t]he DHHR should be held in contempt for its persistent failure to: (1) manage its child abuse and neglect cases as required by this [c]ourt and the relevant rules and code provisions; (2) file reports and permanency plans in a timely fashion; (3) submit discovery in a timely fashion; and (4) achieve permanency in a timely fashion for the children in its custody in child abuse and neglect cases. 2 Ms. Victor claimed that the DHHR’s delays in submitting documentation hampered her ability to adequately prepare for hearings in several abuse and neglect cases in which she served as guardian ad litem, and similarly adversely affected counsel for the respondent parents in that action. Finally, Ms. Victor opined that “[i]nadequate staffing levels, high turnover, heavy caseloads, state budget delays, drastic increases in the number of referrals and petitions, and the opioid abuse epidemic have wreaked havoc upon the limited resources of the DHHR,” and “[i]t appears that a lot of the problems identified . . . could be ameliorated by hiring and maintaining an adequate workforce for Kanawha County Child Protective Services (‘CPS’).” In support of this statement, Ms. Victor averred that, at the time of her contempt petition, and “[u]pon information and belief, there are more than twenty vacancies in the Kanawha County office.” In June 2017, the circuit court issued a “Rule to Show Cause Order”; then the DHHR filed responsive pleadings; and the GALs filed an amended contempt petition. 2 During a December 2017 review hearing, the parties agreed to transfer the contempt motion in the abuse and neglect proceeding to a separate mandamus action before the circuit court. The parties’ agreement was memorialized by a “Stipulation Agreement,” which the circuit court approved and incorporated into an “Agreed Order,” both of which were entered and filed on March 29, 2018. Despite agreement as to many issues as reflected in the “Agreed During the course of the underlying proceedings, the circuit court appointed 2 Ms. Taylor as a guardian ad litem to assist Ms. Victor in pursuing this relief against the DHHR. 3 Order” and the “Stipulation Agreement,” the GALs and the DHHR could not reach an agreement as to the specific scope of the mandamus proceeding. The circuit court decided this issue, noting that “[t]he [c]ourt ruled upon the one unresolved issue, namely, that the agreement would apply only to the DHHR’s Kanawha County Division of Child Protective Services, and would not apply statewide.” The parties’ stipulation, which was signed after this hearing and the circuit court’s announcement of the limitation of the scope of the mandamus action, identifies specific shortcomings in the Kanawha County CPS Office and suggested proposals to remedy those issues. 3 On April 25, 2018, the GALs filed a “Petition for Writ of Mandamus,” limiting the scope of the proceeding to issues concerning staffing the Kanawha County CPS Office, and specifying, in pertinent part that The Petitioners maintained that the Department failed to fully staff, train and operate the Kanawha County Child Protective Services Division, as required by applicable state and federal laws, rules and regulations, and all internal policies and procedures of the Department. The KC CPS Division failed to meet timelines and deadlines established by statute, rule, regulation, policy or procedure, and the children charged to the care and custody of the Department in abuse and neglect proceedings ultimately suffered from delayed proceedings, multiple placements and lack of permanency. As a result of various hearings and meetings, the Petitioners and the Department entered into a stipulation and agreement in which the Department acknowledged that the KC CPS office was not fully or effectively staffed, resulting in the 3 The parties’ “Stipulation Agreement” will be discussed in greater detail, infra. 4 failures noted by the Petitioners and negatively affecting the children charged to the care of the Department. Over the next two years, the circuit court held periodic review hearings in accordance with an agreed-upon schedule set forth in the parties’ “Stipulation Agreement.” During these review hearings, the circuit court frequently commended the DHHR for the efforts it had undertaken to remedy the Kanawha County CPS Office staffing issues. The DHHR periodically moved to dismiss the ongoing mandamus proceedings claiming that it had remedied the conditions that had led to the petition’s filing. In January 2020, the GALs moved to amend their petition for writ of mandamus to expand the scope of the staffing issue from Kanawha County, as previously determined by the circuit court and agreed to by the parties, to the staffing of DHHR offices for Child Protective Services statewide, and also to include the additional issues of the staffing of adoption and foster care units. By order entered December 16, 2021, the circuit court granted the GALs’ motion to amend the mandamus proceeding on both bases, ruling as follows: After the parties presented evidence at the September 29, 2021, evidentiary hearing, the Petitioners orally renewed their motion for leave to file an Amended Petition for Writ of Mandamus, to broaden their claims to apply to CPS offices statewide, and to encompass the adoption and foster care units within the Department. The [c]ourt heard the arguments of Petitioners in favor of broadening the focus of this mandamus action and of Respondents’ counsel’s opposition to same. The evidence presented by the Petitioners established that, while the Department has made significant efforts since 5 the filing of the original pleadings in this matter, many unresolved issues remain in the Child Protective [S]ervices offices, not only in Kanawha County, but throughout the State of West Virginia. .... The evidence presented by Petitioners is sufficient to establish a basis for permitting Petitioners to amend their Petition for Writ of Mandamus to encompass the adoption and foster care units of the Department and to broaden the focus of this action to include the entire state of West Virginia. Accordingly, the Petitioners’ Motion for Leave to file the Amended Writ of Mandamus should be granted. .... The Petitioners’ Motion for Leave to file their Amended Writ of Mandamus against the West Virginia Department of Health and Human Resources and others shall be, and it is hereby, GRANTED. .... The Petitioners’ Amended Petition for Writ of Mandamus shall include all West Virginia Department of Health and Human Resources Child Protective Service staffing issues statewide. The Petitioners’ Amended Petition for Writ of Mandamus shall also include the issues involving the adoption and foster care units within the Bureau for Social Services, permanency placements for children in the care of the Department, and other abuse and neglect proceeding issues raised by the Petitioners. (Emphasis in original). Following the September 2021 hearing referenced by the circuit court, but before this order was entered, the GALs raised additional concerns regarding the DHHR’s 6 housing of children in its offices and in hotels pending placement. Housing children in this manner was not at issue in the original abuse and neglect case that prompted the GALs to file contempt and mandamus proceedings, but the housing issue later arose in a different abuse and neglect case in November 2021. After holding emergency proceedings on these new allegations, the circuit court, by order entered January 13, 2022, again expanded the scope of the mandamus proceeding to include issues regarding the DHHR’s housing of children in its custody: On November 17, 2021, the [c]ourt held a placement review hearing in [another abuse and neglect case]. During the hearing, the [c]ourt became aware that the West Virginia Department of Health and Human Resources (“DHHR”) has a practice of housing children who are in DHHR custody in Child Protective Services (“CPS”) offices throughout the State of West Virginia. The [c]ourt found such placement in DHHR offices to be inappropriate and harmful to such children’s best interests. On November 19, 2021, the [c]ourt entered an Order reflecting its findings from the November 17, 2021, hearing. The [c]ourt ordered, in relevant part, “[t]he DHHR shall not house any child who is in its care, temporarily or permanently, at any local DHHR office.” The [c]ourt restated its finding that the “placement lacks the necessary sleeping, hygiene, and educational facilities for any child’s care, and poses a safety hazard for both children and DHHR personnel.” The November 19, 2021, Order was mailed directly to the West Virginia Department of Health and Human Resources, Child Protective Services Division. On November 30, 2021, the instant Petitioners, Jennifer R. Victor and Jennifer N. Taylor, filed a Motion for Emergency Hearing in the instant mandamus action. The Petitioners sought a hearing on the issue of children being housed in CPS offices. The Respondents filed a Response in Opposition to Petitioners’ Motion for Emergency Hearing, arguing that the issue of children being housed in CPS offices falls outside the scope of the instant mandamus action. The [c]ourt FINDS the issue of children being housed in CPS offices to be within the scope of 7 the instant mandamus action, as this action encompasses several varying issues regarding the statewide treatment and placement of children in DHHR custody. .... During the hearing, the [c]ourt heard a great deal of testimony regarding the care children receive while housed in CPS offices. . . . [T]he [c]ourt ORDERS that no child in DHHR custody be housed in a CPS office for any measure of time. The [c]ourt ORDERS that this prohibition be applied to all children in DHHR custody throughout the State of West Virginia. Also presented during the hearing was the DHHR’s practice of housing children in hotels or motels for extended periods of time. Many of the same concerns and problems are present when children are housed in hotels. . . . While not as severely lacking as a CPS office, a hotel is clearly inadequate long-term housing for a child. The [c]ourt thus ORDERS that the DHHR be prohibited from housing a child in a hotel or motel for a period exceeding two nights. The [c]ourt ORDERS that this prohibition be applied to all children in DHHR custody throughout the State of West Virginia. (Footnote omitted; emphasis in original). The DHHR seeks relief in prohibition from this Court to prevent the enforcement of the circuit court’s orders continuing the initial mandamus proceeding and expanding its scope. II. STANDARD FOR ISSUANCE OF WRIT 8 The sole issue in this case is whether the DHHR is entitled to a writ of prohibition to prevent the circuit court from enforcing its orders granting 4 mandamus relief to the GALs. “‘Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.’ Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).” Syl. Pt. 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984). Syl. pt. 1, State ex rel. Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998). Accord W. Va. Code § 53-1-1 (“The writ of prohibition shall lie as a matter of right in all cases of 4 The appendix record and its supplements do not contain an order specifically granting the GALs relief in mandamus in accordance with the circuit court’s “Agreed Order,” the parties’ “Stipulation Agreement,” and the GALs’ “Petition for Writ of Mandamus.” However, both the parties and the circuit court have proceeded as if the circuit court granted mandamus relief to the GALs, and the circuit court issued a “Rule to Show Cause” on May 11, 2018, finding that the elements for the issuance of a writ of mandamus to compel the DHHR to remedy the Kanawha County CPS Office staffing issues had been satisfied. In this order, the circuit court specifically found that The verified Petition for Writ of Mandamus contains sufficient averments to state a prima facie case to issue a writ of mandamus against the Respondents. The Writ contains detailed averments that demonstrate that the Respondents, individually or jointly, failed to fully staff, train and operate the Kanawha County Child Protective Services Division, as required by applicable state and federal laws, rules and regulations, and all internal policies and procedures of the Department; failed to meet timelines and deadlines established by statutes, rules, regulations, policies or procedures; and that the children charged to the care and custody of the Department in abuse and neglect proceedings ultimately suffered from delayed proceedings, multiple placements and lack of permanency. 9 usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.”). Whether a writ of prohibition should issue in a particular case is governed by the following standard: In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). We now consider the DHHR’s request for prohibitory relief under this standard. III. DISCUSSION 10 The DHHR’s argument that it is entitled to prohibition relief can be distilled into two main points. First, the DHHR contends that the circuit court erred by continuing the original, agreed-to mandamus action after it had taken steps to correct the employee staffing matters in its Kanawha County CPS Office. The DHHR argues that mandamus is not appropriate where, as here, a state actor has taken measures to remediate the complained of inaction. Second, the DHHR takes issue with the expansion of the original, agreed-to mandamus action to add statewide CPS staffing issues, including in the adoption and foster care units, and to impose limitations on the DHHR’s housing of children in its custody. The parties initially agreed that the mandamus proceeding would address only the CPS staffing issues in the Kanawha County CPS Office so the expansion of the mandamus action exceeded the scope of the parties’ “Stipulation Agreement” and the circuit court’s “Agreed Order.” The GALs dispute that the DHHR has sufficiently addressed the Kanawha County staffing issues that it was initially tasked with remedying or that the circuit court erred by expanding the scope of the mandamus proceeding to encompass additional staffing and child housing issues. “The . . . challenges presented in this case are before this Court as petitions for writs of prohibition [in this Court] and mandamus [in the circuit court]. These extraordinary forms of relief are designed to remedy miscarriages of justice and have consistently been used sparingly and under limited circumstances.” State ex rel. Cooper v. Tennant, 229 W. Va. 585, 593, 730 S.E.2d 368, 376 (2012). Although the DHHR’s request 11 for a writ of prohibition seeks extraordinary relief that should be sparingly granted, we find that the DHHR has established its entitlement to such a writ in this case. A. Original Mandamus Proceeding The parameters of the original mandamus proceeding were established by the circuit court’s “Agreed Order,” entered March 29, 2018, which also incorporated the parties’ “Stipulation Agreement,” filed March 29, 2018, and the GALs’ “Petition for Writ of Mandamus,” filed April 25, 2018. Each of these documents specifically limited the mandamus proceeding to the staffing issues of the Kanawha County CPS Office, rather than the more expansive, statewide scope advocated by the GALs. In its order, the circuit court specifically outlined this limitation that “the [parties’] agreement [to file a separate mandamus action in lieu of proceeding in contempt in the underlying abuse and neglect case] would apply only to the DHHR’s Kanawha County Division of Child Protective Services, and would not apply statewide.” (Emphasis added). Consistent with this memorialization of their agreement, the parties’ “Stipulation Agreement” explained the scope of the relief sought in the mandamus proceeding, in pertinent part, as follows: Jennifer R. Victor and Jennifer N. Taylor, Co- Guardians ad Litem, and the West Virginia Department of Health and Human Resources, by and through its Secretary, Bill Crouch, do hereby stipulate and agree as follows: 1. The West Virginia Department of Health and Human Resources (“the Department”) acknowledges that there 12 is an ongoing systemic problem at the Department with maintaining adequate staffing, retention and training of Child Protective Services (“CPS”) employees in its Kanawha County office, as reflected by the 2016 Legislative Audit, the allegations in the petition and amended petition filed by the Co-Guardians ad Litem, the testimony of witnesses obtained at the hearings in this matter and the exhibits tendered by both parties. 2. The Co-Guardians ad Litem acknowledge that the Department has identified numerous creative solutions that address the staffing and training problems at the Kanawha County Child Protective Services offices, some of which have been implemented, some of which have been proposed and some of which are pending. 3. The Department shall strive to staff the Kanawha County CPS offices at 95% capacity by December 18, 2018. The failure of the Department to reach its goal shall not automatically result in the Department being in contempt of court, but shall require a closer examination of the solutions being implemented by the Department. When the staffing level at the Kanawha County CPS office falls to 80% capacity or less, the Department shall take immediate action to recruit new employees through postings, job fairs, transfers or other methods identified and used by the Department. 4. The Department agrees that in developing corrective solutions to the training issues and problems identified in this action, the Department will specifically focus on correcting the recurrent and continuing issue of CPS employees failing to have backup or substitute case workers who have a working knowledge of a case when the assigned caseworker is ill or on vacation and cannot appear in court. 5. The Department agrees to include in its training sessions for new CPS caseworkers in Kanawha County outreach sessions with judges, prosecutors, guardians ad litem and defense counsel so as to promote an understanding of the responsibilities of each of the 13 stakeholders and improve the working relationship with CPS caseworkers. 6. The Department shall specifically focus on updating its standard operating procedures, tickler system, employee manuals, flow charts and other training documents or programs to emphasize that CPS caseworkers must provide all court summaries, placement plans, discovery and other such reports to the Co-Guardians ad Litem, counsel of record and appointed CASA workers, as required by the Rules of Procedure for Child Abuse and Neglect Cases. 7. The parties stipulate and agree that it is in the best interests of all children who are served by the Department and CPS that this action continue as a separate mandamus action, subject to the jurisdiction and venue of the Circuit Court of Kanawha County, West Virginia, and specifically subject to the jurisdiction of the Honorable Louis H. Bloom. 8. This action shall be transferred to a separate mandamus action and shall remain within the jurisdiction of the Honorable Louis H. Bloom for approximately one (1) year from and after December 18, 2017, or until dismissed by the [c]ourt, whichever last occurs. All pleadings, orders and exhibits pertaining to the contempt portion of the proceedings styled In the Interests of B.W. and G.W. shall be transferred to the mandamus action, together with the transcripts of all hearings conducted in response to the original contempt motion or amended motion. 9. The Department agrees to submit to the [c]ourt and to the Co-Guardians ad Litem monthly reports reflecting the status of CPS employees in Kanawha County, including, but not limited to, the number of positions available, the number of positions filled, the number of vacancies, the number of trainees and the number of employees who have left the employ of the Department. 14 10. The Department and the Co-Guardians ad Litem shall appear at quarterly review hearings to review the progress made by the Department in correcting the problems and issues raised by the Co-Guardians ad Litem. The Department shall submit to the [c]ourt a quarterly report that describes the status of the employees at the Kanawha County CPS office, the efforts the Department has made regarding filling the vacancies at CPS, the success of the job fairs, training sessions and other programs implemented by the Department; the methods used to safeguard against the issues and problems noted in the original and amended petitions; and such other information required by the [c]ourt. 11. The Department shall appear at the review hearings through Cabinet Secretary Bill Crouch or through the Commissioner for the Bureau for Children and Families, Linda Watts, or both if so desired[.] Both the GALs and Secretary Crouch signed this “Stipulation Agreement.” Finally, the GALs’ “Petition for Writ of Mandamus” also confined the proceeding to ameliorating the staffing issues identified in the Kanawha County CPS Office and alleged that: [T]he Department failed to fully staff, train and operate the Kanawha County Child Protective Services Division, as required by applicable state and federal laws, rules and regulations, and all internal policies and procedures of the Department. The KC CPS Division failed to meet timelines and deadlines established by statute, rule, regulation, policy or procedure, and the children charged to the care and custody of the Department in abuse and neglect proceedings ultimately suffered from delayed proceedings, multiple placements and lack of permanency. 15 The question posed by the DHHR to this Court is, then, has the DHHR sufficiently addressed the staffing issues that were identified at the outset of the mandamus proceeding, by the parties and the circuit court, such that the GALs are no longer entitled to mandamus relief. We begin with a review of the standard for issuing a writ of mandamus. The parties do not dispute that “[m]andamus is a proper proceeding by which to compel a public officer to perform a mandatory, nondiscretionary legal duty[,]” 5 and, indeed agreed that relief in mandamus was appropriate to compel the DHHR to address the Kanawha County CPS Office staffing issues. At the time of the original petition, the parties agreed that the criteria for the issuance of a writ of mandamus had been satisfied: A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).6 Syl. pt. 3, Delardas v. Cnty. Ct. of Monongalia Cnty., 155 W. Va. 776, 186 5 S.E.2d 847 (1972). Accord Syl. pt. 4, State ex rel. Withers v. Bd. of Educ. of Mason Cnty., 153 6 W. Va. 867, 172 S.E.2d 796 (1970) (“‘To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.’ Point 4 Syllabus, State ex rel. Zagula v. Grossi, 149 W. Va. 11[, 138 S.E.2d 356 (1964)].”). 16 However, we also have recognized some limits to the availability of mandamus relief. “Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made.” Syl. pt. 1, State ex rel. Buxton v. O’Brien, 97 W. Va. 343, 125 S.E. 154 (1924). Syl. pt. 2, State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640 (1989). Likewise, “[m]andamus will not issue to compel a party to perform an act which he has already begun to do, and it is apparent that he will in good faith perform.” Point 2, syllabus, State ex rel. Hall v. County Court of Mercer County, 100 W. Va. 11[, 129 S.E. 712 (1925)]. Syl. pt. 1, State ex rel. Nelson v. Ritchie, 154 W. Va. 644, 177 S.E.2d 791 (1970). “A writ of mandamus [also] will not be issued to compel the performance of an act which the defendant has not refused to perform.” Id. at 651, 177 S.E.2d at 795 (citations omitted). And while [t]he purpose of mandamus is to compel one to perform a legal duty imposed by law, . . . such duty must be one which he is capable of performing. Mandamus will not be granted where compliance with the mandate of the writ is impossible. . . . Impossibility of performance means that which cannot be done. . . . On the other hand, the writ will not be denied merely because of difficulty of performance of the duties prescribed by statute. State ex rel. Bd. of Educ. of Kanawha Cnty. v. Johnson, 156 W. Va. 39, 43, 190 S.E.2d 483, 486 (1972) (citations omitted). 17 Applying these principles to the case before us, we find that the DHHR has fulfilled its mandatory duty to address the staffing issues in the Kanawha County CPS Office. In fact, the circuit court has repeatedly acknowledged the DHHR’s progress in this regard. For example, in its order entered December 19, 2018, regarding the September 5, 2018 review hearing, 7 the circuit court recounted the following efforts the DHHR had made to address and remedy the Kanawha County CPS Office’s staffing issues: 1. Kanawha County Child Protective Services (“CPS”) increased its staffing levels to 52 CPS workers for the 61 positions available, leaving only 9 vacancies. 2. The training regimen was streamlined to require nine weeks instead of three months. 3. Kanawha County CPS hired four support workers to assist licensed CPS workers. 4. Numerous job fairs were scheduled to develop new hires, including additional outreach to West Virginia colleges and universities. 5. Kanawha County CPS developed a tracking system which showed that CPS workers were missing fewer hearings and submitting their reports in a timelier fashion. 6. Associate General Counsel assigned to the Bureau for Children and Families Cammie Chapman was working with staff to improve their [c]ourt reports. 7. The DHHR implemented pay raises, including an across- the-board pay increase of $2160; a two percent increase for CPS trainees, workers, and supervisors; and several retention initiatives. The retention initiatives included a five percent pay increase after two years of employment, a five percent pay increase after five years of employment, 7 This hearing was held approximately six months after the circuit court’s entry of its “Agreed Order” and the parties’ filing of their “Stipulation Agreement.” 18 and a $1500 hiring incentive for new employees who stayed for a year. 8. The DHHR developed and implemented use of a checklist to help CPS workers prepare for hearings throughout the entire timeline of a CPS case. A copy of the checklist was admitted into evidence as Exhibit One. 9. The DHHR was developing an initiative to recruit CPS workers earlier in their college careers by providing opportunities to participate in career fairs and internships. 10. The DHHR and the co-guardians ad litem participated in two productive meetings to develop recruitment and retention strategies on July 11, 2018, and August 4, 2018. The Division of Personnel also participated in the meeting held August 4, 2018. 11. Commissioner Watts was reviewing options to finalize cases more quickly to reduce the workload of DHHR personnel. The court additionally commented that, “[on] the basis of the evidence and arguments presented, the [c]ourt noted that a lot of progress had been made in hiring individuals to fill the vacancies in the Kanawha County CPS Division.” 19 The circuit court again lauded the DHHR’s efforts to correcting the Kanawha County CPS Office staffing issues in its orders entered May 8, 2019;8 December 4, 2019; 9 and May 26, 2020.10 8 The circuit court’s May 8, 2019 order pertained to the December 19, 2018 review hearing and noted the actions undertaken by the DHHR included actions to improve recruitment, retention, and management; increasing its annual budget; implementing pay raises; and continuing to address personnel issues and performance in the Kanawha County CPS Office, as well as related matters stemming from the “opioid-epidemic” and its demands on the DHHR’s resources. 9 In its December 4, 2019 order for the April 12, 2019 review hearing, the circuit court recounted these undertakings by the DHHR: implementation of salary initiatives and pay increases; efforts to improve employee job satisfaction; utilization of crisis teams to fully staff the Kanawha County CPS Office; development of training programs concerning court proceedings; hiring a national consultant to assist in the DHHR’s achievement of its personnel training goals. 10 The circuit court further detailed the DHHR’s progress in its January 29, 2020 review hearing order entered May 26, 2020, and observed that the DHHR efforts include “conducting exit interviews to help identify the reasons employees choose to leave”; giving CPS employees a raise above the raise given to all state employees; requesting legislation to increase the number of CPS positions statewide; and expediting travel reimbursement for CPS workers. 20 In addition to reiterating the DHHR’s efforts, the circuit court also specifically recognized, in its May 8, 2019 order, that “Secretary Crouch and Commissioner Watts shall be commended for the progress made by the DHHR in this matter.” The circuit court, in its December 16, 2021 order, more extensively applauded the DHHR’s efforts: The [c]ourt specifically finds that the evidence presented by the parties established that the Department, Secretary Crouch, and Commissioner Pack[11] are committed to addressing the challenges presented by West Virginia Department of Health and Human Resources staffing issues. The evidence further established that the Department has made good faith efforts to address the issues affecting the children of this State as raised in the mandamus action. The Department has promoted legislation that allowed for staff raises and special appointment incentives; increased its efforts to recruit and train staff; created significant opportunities for career advancement for its caseworkers; responded to recommendations from the Legislative Auditor and the Foster Care Ombudsman; and contracted for outside studies, all with the goal of improving the services provided through the Child Protective Services offices throughout the state. (Footnote added). While we recognize that the DHHR’s amelioration of the Kanawha County CPS Office’s staffing issues has not completely eradicated the problems identified, progress towards that end is required by our mandamus standards, but perfection is not. See generally Syl. pt. 1, Nelson, 154 W. Va. 644, 177 S.E.2d 791. And, throughout the underlying mandamus proceedings, as repeatedly acknowledged in the circuit court’s 11 Former Commissioner Watts retired in 2021. 21 orders, the DHHR has demonstrated consistent, concerted efforts to remedy the Kanawha County CPS Office’s staffing issues. Furthermore, while we hesitate to declare the DHHR’s achievement of its percentage staffing goals to be impossible, it appears that, despite numerous pay raises, salary incentives, trainings, job fairs, and the like, the DHHR has been unable to maintain staffing numbers to meet the percentages it agreed to strive to achieve in the parties’ “Stipulation Agreement.” Therefore, upon these particular facts, we find that the DHHR has addressed the Kanawha County staffing issues that led to the circuit court’s entry of its “Agreed Order” and the granting of the original writ of mandamus, and the record reveals that the DHHR continues to make progress towards the achievement of its staffing goals such that a writ of mandamus no longer is necessary to compel the DHHR to perform its mandatory duties. Thus, the circuit court clearly erred when it refused to grant the DHHR relief from the original mandamus action after its good faith efforts to fix the Kanawha County staffing issues became apparent. See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. The DHHR is entitled to a writ of prohibition to prevent the circuit court from continuing to enforce the original writ of mandamus concerning staffing issues in the Kanawha County CPS Office. B. Expansion of Original Mandamus Proceeding Upon the institution of the original mandamus proceeding in the circuit court in 2018, the parties, assisted by the circuit court, defined the parameters of the proceeding to apply only to the staffing issues in the Kanawha County CPS Office. As explained above, the DHHR has been working towards remedying those conditions during the pendency of 22 the case, and the circuit court has acknowledged its progress. Nevertheless, more recently, the GALs identified certain other issues they would like the DHHR to remediate, and the circuit court approved the expansion of the scope of the original mandamus proceeding to include issues pertaining to statewide staffing in CPS offices, as well as in the adoption and foster care units, and the housing of children in DHHR custody in its offices and hotels. Specifically, in its December 16, 2021 order, the circuit court declared that [t]he evidence presented by Petitioners is sufficient to establish a basis for permitting Petitioners to amend their Petition for Writ of Mandamus to encompass the adoption and foster care units of the Department and to broaden the focus of this action to include the entire state of West Virginia. Accordingly, the Petitioners’ Motion for Leave to file the Amended Writ of Mandamus should be granted. Similarly, in its January 13, 2022 order, 12 the circuit court announced further that “[t]he [c]ourt FINDS the issue of children being housed in CPS offices to be within the scope of 12 While the circuit court entered two other orders amending both the GALs’ writ of mandamus (January 20, 2022) and its prior order from the January 6, 2022 hearing (January 25, 2022), we find that the circuit court lacked the authority to do so because this Court had stayed the circuit court mandamus proceedings before the circuit court entered those orders. On January 19, 2022, we granted the DHHR’s motion for a stay of the underlying mandamus proceedings pending in the circuit court, ruling that, “[u]pon consideration of the motions, the Court is of the opinion to and does grant the motion for stay of circuit court proceedings. It is ORDERED that all proceedings in Kanawha County Circuit Court Civil Action No. 18-P-142 are stayed pending resolution of the petition for writ of prohibition.” (Emphasis in original). This Court has the authority to grant a stay of proceedings in a circuit court when, as here, a party requests this Court to issue a writ of prohibition to restrain the circuit court from acting further in a given matter. See W. Va. R. App. P. 16(j) (“If the Supreme Court determines to issue a rule to show cause, the Clerk shall so notify the parties. Unless otherwise provided, the issuance of a rule to show cause in prohibition stays all further proceedings in the underlying action for which an award of a writ of prohibition is sought.” (emphasis added)). When this Court grants a stay of proceedings, the circuit court no longer 23 the instant mandamus action, as this action encompasses several varying issues regarding the statewide treatment and placement of children in DHHR custody.” (Emphasis in original). And, as a corollary to this ruling, the circuit court also determined that its inclusion of housing issues within the mandamus proceeding further prescribed the location of facilities and duration of time at those facilities it deemed acceptable for accommodating children in the DHHR’s custody: [T]he [c]ourt ORDERS that no child in DHHR custody be housed in a CPS office for any measure of time. The [c]ourt ORDERS that this prohibition be applied to all children in DHHR custody throughout the State of West Virginia. .... The [c]ourt . . . ORDERS that the DHHR be prohibited from housing a child in a hotel or motel for a period exceeding two nights. The [c]ourt ORDERS that this prohibition be applied to all children in DHHR custody throughout the State of West Virginia. has the authority to preside over the matter unless it receives permission to proceed from this Court. See Syl. pt. 3, Fenton v. Miller, 182 W. Va. 731, 391 S.E.2d 744 (1990) (“Once this Court takes jurisdiction of a matter pending before a circuit court, the circuit court is without jurisdiction to enter further orders in the matter except by specific leave of this Court.”). A stay operates as “‘[a] suspension of the case or some designated proceedings within it. It is a kind of injunction with which a court freezes its proceedings at a particular point. . . .’ Black’s Law Dictionary 1267 (5th ed. 1979).” State ex rel. Dye v. Bordenkircher, 168 W. Va. 374, 378, 284 S.E.2d 863, 866 (1981). “In this case, we took jurisdiction of the matter pending[,] and the circuit court had no jurisdiction to enter any further orders absent specific leave of this Court or ancillary jurisdiction.” Hanson v. Bd. of Educ. of the Cnty. of Mineral, 198 W. Va. 6, 9, 479 S.E.2d 305, 308 (1996). Here, the circuit court neither asked this Court’s permission to enter the referenced orders to memorialize its prior oral rulings nor did we grant such permission. Therefore, we will not consider either the January 20, 2022 or the January 25, 2022 orders entered by the circuit court in the underlying mandamus proceeding because the circuit court entered both orders after our stay of those proceedings when the circuit court lacked such authority. 24 (Emphasis in original). Before this Court, the DHHR seeks relief in prohibition from the circuit court’s expansion of the original mandamus proceeding. The original mandamus proceeding began when the circuit court narrowly defined the scope of the mandamus in its “Agreed Order” and the parties agreed to adopt that limitation in their “Stipulation Agreement.” The parties’ stipulation and agreement as to the scope of the action are at the center of this issue. A stipulation is an agreement . . . made by the parties in a legal action with regard to a matter related to the case . . . . In essence, a stipulation is a contract, or at least akin to one, and is entitled to all the sanctity of a conventional contract. It creates a new, superseding liability that is substituted for the original one, and is not merely a unilateral description of one side’s position. [Additionally,] [a] stipulation is a statement . . . that both parties agree [is] true. Thus, a trial judge does not accept or deny one party’s offer to stipulate; rather, a stipulation must be reached between the parties . . . . The essence of a stipulation is an agreement between the parties . . . with respect to business before a court. A court may adopt and incorporate a proposed stipulation into a court order. 83 C.J.S. Stipulations § 1 (2022) (internal quotations, citations, and footnotes omitted). “Trial courts look favorably upon stipulations the effect of which is generally to simplify litigation. For this reason they are . . . looked upon in order to carry out their actual purpose.” Gilkerson v. Baltimore & Ohio R.R. Co., 132 W. Va. 133, 140, 51 S.E.2d 767, 770 (1948). Stipulations are so favored in the law that the West Virginia Trial Court 25 Rules specifically provide for their entry. See W. Va. Trial Ct. R. 23.05 (“Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.”). Thus, “[s]tipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed.” Syl. pt. 1, Butler v. Smith’s Transfer Corp., 147 W. Va. 402, 128 S.E.2d 32 (1962). Accord Syl. pt. 2, in part, McCoy v. McCoy, 74 W. Va. 64, 81 S.E. 562 (1914) (“[A]greements made in open court by the parties to the cause and acted upon by the court are binding and a decree founded therein will not be reversed.”). But see Syl. pt. 9, Wade v. McDougle, 59 W. Va. 113, 52 S.E. 1026 (1906) (“A person is not bound by an admission in an offer to compromise not accepted by the other party.”). “Because stipulations fairly entered into often operate to settle controversies or expedite judicial proceedings, they are favored. They are therefore generally controlling and conclusive . . . .” Fairmont Tool, Inc. v. Davis, ___ W. Va. ___, ___, 868 S.E.2d 737, 750 (2021) (citations omitted). Despite the conclusiveness of a stipulation, a circuit court nevertheless has the discretion to set aside such an agreement should the circumstances so warrant. “A circuit court is afforded wide discretion in determining whether or not a party should be relieved of a stipulation, and such decision should not be set aside absent an abuse of discretion.” Syl. pt. 6, W. Va. Dep’t of Transp. v. Veach, 239 W. Va. 1, 799 S.E.2d 78 (2017). But relief from a stipulation is limited to certain, discrete circumstances since “a stipulation is an enforceable contract, and, like a contract, relief from a stipulation is usually 26 available only in cases of fraud, mistake, improvidence or material change in circumstances, where in equity and good conscience the stipulation ought not to stand.” 13 Fairmont Tool, ___ W. Va. at ___, 868 S.E.2d at 750 (internal quotations and citations omitted). See also Syl., Cole v. State Comp. Comm’r, 114 W. Va. 633, 173 S.E. 263 (1934) (“A stipulation of counsel may be set aside, upon the request of one of the parties, on the ground of improvidence provided both parties can be restored to the same condition as when the agreement was made.”). Thus, “[t]o be relieved from a stipulation, the party seeking relief must ordinarily act diligently, show good cause and provide fair notice. Generally, relief will only be afforded if enforcement of the stipulation will result in a manifest injustice upon one of the parties.” Veach, 239 W. Va. at 8, 799 S.E.2d at 85 (citation omitted). The underlying mandamus proceeding originated from the GALs’ “Petition for Contempt” against the DHHR in an abuse and neglect case that sought to hold the DHHR accountable for alleged staffing deficiencies in its Kanawha County CPS Office. However, by the time the parties had agreed to convert the contempt litigation into a new, 13 When a court is tasked with reviewing the terms of a stipulation, ordinary contract principles typically apply. See generally Syl. pt. 2, State ex rel. Scott v. Taylor, 152 W. Va. 151, 160 S.E.2d 146 (1968) (“The same rules for ascertaining the intent of the parties apply to a stipulation entered into by the plaintiffs and defendants as are applicable to other written instruments and if the language thereof is clear and unambiguous resort cannot be had to the rules of interpretation and construction but effect must be given to the intent of the parties as clearly expressed therein.”). Cf. Syl. pt. 1, id. (“Where the language of a stipulation, entered into by the parties to a civil action seeking damages for personal injury, is clear and unambiguous the Court must apply such language so as to consummate the express intention of the parties.”). 27 independent proceeding in mandamus, the relief sought by the GALs in their “Amended Petition for Contempt” had grown to encompass CPS staffing issues statewide. In their amended request for relief, the GALs alleged that “[t]he DHHR’s failures and deficiencies occur throughout the entire state” and “[a]ny corrective action by the DHHR must be addressed throughout the entire state, inasmuch as the DHHR is a state agency.” When the parties could not reach an agreement as to the parameters of the original writ of mandamus, the circuit court, in its “Agreed Order,” precisely and narrowly tailored the matter to pertain only to the staffing issues in the Kanawha County CPS Office: “the [parties’] agreement [to file a separate mandamus action in lieu of proceeding in contempt in the underlying abuse and neglect case] would apply only to the DHHR’s Kanawha County Division of Child Protective Services, and would not apply statewide.” (Emphasis added). The parties then memorialized this limitation in their “Stipulation Agreement,” and the GALs further acknowledged this restriction in their “Petition for Writ of Mandamus.” Since that time, though, the GALs have persisted in their attempts to expand the scope of the issues to be included within their request for mandamus relief, and the circuit court has repeatedly acquiesced to their demands—despite the fact that the circuit court, itself, first established the limits of the case, and the GALs, as well as the DHHR, agreed to comply with that decision. Moreover, the GALs, in their requests to expand the mandamus’ scope, have not asserted that the parties’ “Stipulation Agreement” should be 28 set aside nor has the circuit court determined that the parties should be relieved of their agreement. Absent a challenge to the validity of the parties’ “Stipulation Agreement,” it must be enforced pursuant to our caselaw holding stipulations to be valid and enforceable agreements. See Syl. pt. 1, Butler, 147 W. Va. 402, 128 S.E.2d 32; Syl. pt. 2, in part, McCoy, 74 W. Va. 64, 81 S.E. 562. Because the parties agreed to limit the scope of the original mandamus proceeding, as reflected in both their “Stipulation Agreement” and the circuit court’s “Agreed Order” incorporating this agreement, the scope of the mandamus proceeding was established and could not be altered without invalidating the parties’ stipulation. When the circuit court then added numerous other issues to the original mandamus proceeding, it abused its discretion by altering the parties’ agreement when neither the GALs nor the DHHR had claimed that justice required their stipulation to be set aside. See Syl. pt. 6, Veach, 239 W. Va. 1, 799 S.E.2d 78; id. at 8, 799 S.E.2d at 85. Because the circuit court clearly erred in modifying the terms of the parties’ “Stipulation Agreement,” which it had previously approved in its “Agreed Order,” and when the parties had not asked to be relieved from their agreement due to allegations of its infirmity, the DHHR is entitled to a writ of prohibition to prevent the circuit court from expanding the scope of the original mandamus proceeding through the inclusion of additional issues not agreed upon by the parties at the time of its inception. See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. In closing, we would be remiss if we did not acknowledge our deep concern regarding the GALs’ allegations of systemic staffing issues in CPS offices statewide, as 29 well as in the adoption and foster care units, and the delays in the achievement of permanency for children involved in abuse and neglect cases caused by these deficiencies. We are also troubled by the finite housing options the DHHR apparently has at its disposal to accommodate children in emergency situations. However, where the scope of the original mandamus proceeding was rigidly defined by the agreement of the parties, and that agreement was accepted by the circuit court, the addition and consideration of these other issues extraneous to this agreement is not proper within the confines of this case. This Opinion should not be read to suggest that further litigation to address these issues is foreclosed. 14 Based on the foregoing, we direct that Case Number 18-P-142 be dismissed from the docket of the Circuit Court of Kanawha County. IV. CONCLUSION As set forth above, the DHHR is entitled to a writ of prohibition in this case to prevent the circuit court from continuing to enforce its March 29, 2018 “Agreed Order” that awarded a writ of mandamus to the GALs because the DHHR has done that which the GALs sought to compel—made good faith efforts to remedy the staffing issues in its Kanawha County CPS Office. The DHHR is also entitled to a writ of prohibition to prevent the circuit court from enforcing its subsequent orders entered in December 2021 and 14 See Jonathan R. by Dixon v. Justice, 41 F.4th 316 (4th Cir. 2022) (concerning ongoing federal court litigation regarding alleged deficiencies in the West Virginia child welfare system). 30 January 2022 that expanded the scope of the agreed upon mandamus to include statewide staffing issues in CPS offices, adoption units, and foster care units and imposed limitations on the DHHR’s housing of children in its custody. Writ Granted. 31	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493878/	RULING ON OBJECTION TO TRUSTEE’S NOTICE OF PROPOSED SALE ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. Presently before the court are the Chapter 7 trustee’s pleading entitled “Trustee’s Notice of Intent to Sell Real Property Known as 123R Case Street, Granby, Connecticut at Private Sale Pursuant to 11 USC § 363 and Opportunity to Make Better and Higher Offer” (“the notice”), and an objection filed by an adjacent landowner. A hearing on the notice and objection was held on February 8, 2006. II. BACKGROUND Kurt Claywell (“the debtor”) filed a petition under Chapter 7 on September 20, 2005. Anthony S. Novak (“the trustee”), Chapter 7 trustee in the debtor’s bankruptcy case, on January 4, 2006, filed the following notice: Please take notice that Anthony S. Novak, Trustee of the above-captioned estate, intends to sell at a private sale pursuant to 11 USC § 363 to The Pleasant Valley Company, LLC, the estate’s interest in the real property located at 123R Case Street, Granby, Connecticut which consists of a one-half interest in 114+/acres of undeveloped land (the “Property”) for the sum of $670,000.00. The record owner of said Property is Kurt Claywell and Cheryl Claywell. Being the same parcel of land granted to Kurt C. Claywell and Cheryl Jones (now Cheryl Claywell) in a Warranty Deed dated August 11, 2002 and filed in Vol. 268 at Pg. 82 of the Barkhamsted land records (the Property is located in both the Towns of Granby and Barkhamsted) There are certain mandatory conditions to this sale including approval of this sale by the Connecticut Superior Court ... as said Property is the subject of disputed ownership pending in the Connecticut Superior Court, Family Division. In addition, said sale requires the purchaser to obtain the one-half interest of Cheryl Claywell.... Consequently, Cheryl Claywell, the estranged wife of the Debtor, must also consent to the sale since there has been a claim made in the Superior Court, Family Division that she may have a one-half interest in the Property, and may also claim an interest in the entire ownership in the Property pursuant to the Superior court dissolution proceedings. The sale for $670,000.00 is contingent upon the entire parcel being sold free of the interests of both Cheryl Claywell and Kurt Claywell, as one entire parcel. There has been no allocation to date as to the proper ownership of the 114 acre parcel. It is anticipated that all claims to the Property including the ownership claims of Cheryl Claywell will transfer to the proceeds of sale. The Trustee intends to sell said asset, without representations or warranties of any kind, express or implied, including, without limitation, representations of marketability and/or fitness for any particular purpose. Any person wishing to make a higher bid -or better offer on said asset or objecting to said private sale should notify the Trustee, Anthony S. Novak, at Chorches & Novak, P.C., 1331 Silas De-ane Highway, Wethersfield, CT 06109 and the Clerk of the United States 398Bankruptcy Court, in writing, 450 Main Street, Hartford, CT 06103, no later than 5:00 p.m. on the 25th day of January, 2006. A hearing shall be scheduled on any such objection to any such private sale on the 28th day of January, 2006 at 11:00 a.m. at the United States Bankruptcy Court, 450 Main Street, Hartford, CT 06103. If no objections are filed with the Clerk of the Court, and served upon the Trustee, by 5:00 p.m. on the 25th day of January, 2006, the Trustee shall proceed with the private sale. Objections not timely filed and served shall be deemed waived. In addition to the contingencies stated in the notice, the trustee advised at the hearing that the property is also the subject of an adversary proceeding in this court, commenced on November 15, 2005 by the trustee against Cheryl Claywell, seeking to recover, as fraudulent, the debtor’s transfer to her, in August, 2002, of a one-half interest in the property. Jeffrey L. Battison (“Battison”), a neighboring landowner who holds a right of first refusal for the property, notified the trustee on January 20, 2006 of his intention to purchase the property by exercising such right. Battison, on February 2, 2006, filed an objection to the proposed sale on the grounds that it would impair the right of first refusal to which he is entitled in accordance with the terms of an “Easement, Restrictive Covenant and Agreements Between Jeffrey L. Battison and Kurt Claywell and Cheryl Jones,” recorded in the land records on August 19, 2002. III. DISCUSSION The trustee may give notice of a proposed sale of estate propeity, providing an opportunity for objections, and a hearing if there are objections. See Fed. R. Bankr.P. 6004. In the absence of an objection, a court order approving the sale is not normally entered. See 3 Collier on Bankruptcy ¶ 363.02[1] (15th ed. rev.2005). Once an objection has been filed, the trustee may not proceed with the sale without court approval. See, e.g. In re Stroud Ford, Inc., 205 B.R. 722, 726 (Bankr. M.D.Pa.1996) (if an objection is filed, the trustee does not have the authority to proceed with the sale until the court has ruled). Furthermore, “even though court review is not required, neither is it prohibited: a bankruptcy judge may choose to review the propriety of any disposition of assets under Section 363(b), even in the absence of an objection.” In re Telesphere Communications, Inc., 179 B.R. 544, 552 n. 8 (Bankr.N.D.Ill.1994). The trustee acknowledged, in the notice and in his statement at the hearing, that the debtor’s estate does not hold clear title to the property at the present time. “A bankruptcy court may not allow the sale of property as ‘property of the estate’ without first determining whether the debtor in fact owned the property.” Warnick v. Yassian (In re Rodeo Canon Development Corp.), 362 F.3d 603, 608-09 (9th Cir.2004) (subsequently withdrawn based on stipulation of parties regarding facts). In as much as the trustee concedes that the debtor’s estate does not hold title to the property the trustee proposes to sell, the court cannot, at the present time, enter any order of sale. IV. CONCLUSION In accordance with the forgoing discussion, the court concludes that the trustee may not sell the property until the issues 399concerning its ownership have been further resolved. It is SO ORDERED.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493879/	MEMORANDUM OPINION THOMAS H. FULTON, Bankruptcy Judge. THIS CORE PROCEEDING1 comes before the Court on Defendant State of Georgia Department of Early Care and Learning’s (“Defendant”) Motion for Summary Judgment and Plaintiff/Chapter 11 Debtor Kids World of America, Inc.’s (“Plaintiff’) Response. The Plaintiff, a child care provider, filed a Complaint for Turnover of Funds, seeking money allegedly owed to it pursuant to an asserted contract with the Défendant. The Defendant filed the present Summary Judgment motion claiming the Plaintiffs lawsuit is barred by the doctrine of sovereign immunity established by the Eleventh Amendment or that it was entitled to a judgment as a matter of law because it did not enter into a written contract with Plaintiff for the 2005-2006 fiscal year. Oral arguments were held on the Summary Judgment motion on April 21, 2006. Following the oral arguments, the Plaintiff was permitted to file additional exhibits for consideration by the Court. The Defendant was then permitted to file a response, to which the Plaintiff could file a reply. Upon the filing of the reply, this matter was deemed submitted. Findings of Fact The Defendant is a state agency created under applicable Georgia law that runs Bright from the Start, which provides funding for child care and education services to day care providers throughout the state. In order to receive such funding, a child care provider must submit an application to the Defendant, which Bright from the Start may or may not accept, and only then enter into a valid contract for funding. As noted, the Plaintiff is a child care provider with locations in Georgia that applied for and was granted a contract with the Defendant for a Bright from the Start contract for the fiscal year running from July 1, 2004-June 30, 2005. Providers who have been granted contracts for previous years must resubmit an application to the Defendant for each year they wish to continue to receive funding through the Bright from the Start program. These “Continuation Programs” may be pre-approved if the programs are in “good standing.” Under the terms of the Bright from the Start application, programs in “good standing” are those that “have maintained full classes, met all program and reporting requirements, met child care licensing regulations, met federal nutrition program rules where applicable, have no unresolved audit or reconciliation issues and are not on probation.” If providers are in “good standing,” then they may be “pre-approved for the same number of classes at the same location(s) as the current year.” Providers who wish to add additional classes “must complete an expansion application by the due date but are still pre-approved for the same 593number of classes at the same location(s) as the current year.” On the first page of the application under the heading “Special Note: Funding for New and Expansion Classes ”, it specifically states “[i]n past years, providers have operated partially or fully funded private classes in an effort to receive funding from the Department. Providers are strongly advised that operating private classes or funding classes at provider expense does not guarantee Department funding.” All applicants must submit their applications in February for the fiscal year commencing the coming July. In February 2005, the Plaintiff applied to Bright from the Start for a “continuation” contract and also applied for funding for additional, or expansion, classes. At or around the time Plaintiff submitted its 2005-2006 application, it was audited by the Defendant (“2005 Audit”). The Plaintiff had undergone a previous audit by the Defendant for the 2002-2003 fiscal year (“2003 Audit”). The 2003 Audit began in April 2003 and concluded in October 2003. Following the successful completion of the audit, the Defendant funded the Plaintiffs 2003-2004 contract and retroactively paid the Plaintiff for services from the beginning of 2003 fiscal year. The 2005 Audit began in approximately February 2005 and continued through October 2005. Throughout the audit process the Plaintiff was in contact with the auditors regarding documentation and paper work that was required to complete the audit. Numerous emails were exchanged between Ms. Ruth Coon, a representative of the Plaintiff, and Ms. Daphne Haley, Director of the Pre-K Division of Bright from the Start. One such email is dated June 30, 2005, the last day of the 2004-2005 fiscal year. This email from Ms. Coon to Ms. Haley inquires as to whether Ms. Haley had received certain audit information that Ms. Coon had sent and asks if additional information needs to be forwarded. In the email Ms. Coon also states, “I know that the ’06 contract can’t be approved until we get the audit resolved, but I need to start hiring teachers and setting up classrooms. Are you comfortable saying that our contract (with the additional class in Douglasville) will be renewed at the successful outcome of the audit?” In Ms. Haley’s reply, which occurred less then an hour after she received the email, she asks for proof that the withholding taxes were paid, but does not address the question of whether the Plaintiffs contract will be renewed. On July 25, 2005 (“July 25 letter”), Tanya R. Astin, the Audit Coordinator, sent a letter to Ms. Coon confirming that audit information had been received and requested additional clarification regarding certain expenditures. The letter ended with the statement, “[y]our contract will be held and your organization may be ineligible to participate as a GA Pre-K program provider for fiscal year 2006.” (emphasis in original). The Plaintiff continued to provide childcare and educational services to children in Georgia for the fiscal year 2005-2006. The 2005 audit was completed in October 2005. The Plaintiff now seeks reimbursement for classes it provided to students beginning July 1, 2005, which, it contends, was done under the auspices of the Bright from the Start program. The Defendant responds that it does not have a valid contract with the Plaintiff for the 2005-2006 fiscal year because the Plaintiff was being audited and, thus, could not qualify as a continuation contract. Further, the application package clearly states that additional classes are not automatically approved, and any additional classes must be specifically approved. The Plaintiff counters (1) that it successfully passed the audit, (2) that the Defendant knew it was providing services as a Bright from the Start provider, (3) that it had undergone a similar 594audit in 2003, and, (4) that upon completion of the 2003 Audit, it was reimbursed for classes it provided during the pendency of its audit. Conclusions of Law Summary Judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56; Fed. R. Bankr.P. 7056. All evidence, facts, and any inferences are drawn in the light most favorable to the nonmoving party. Shah v. Deaconess Hospital, 355 F.3d 496, 498 (6th Cir.2004). The Georgia Constitution waives sovereign immunity for written contracts only. GA Const. Art. 1 § 2 ¶ IX. The Defendant therefore claims the present suit is barred by sovereign immunity grounds because there is no written contract. This argument raises two related but independent inquiries: (1) Is there a written contract? and (2) Does sovereign immunity bar a suit in this particular case? As these questions stand alone, each will be examined separately. Under applicable Georgia law a “written contract” may be both a formal written contract, or may consist of “multiple signed contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract” and, when taken together, “include all of the necessary terms of a contract.” Board of Regents of the University System of Georgia v. Tyson, 261 Ga. 368, 404 S.E.2d 557 (1991), citing Baker v. Jellibeans, 252 Ga. 458, 459, 314 S.E.2d 874 (1984), finding that a “Consent to Care” form signed by a patient upon admission to a state hospital was not sufficient to qualify as a written contract to defeat sovereign immunity; Board of Regents of the University System of Georgia v. Doe, 2006 Ga.App. Lexis 368 (2006), citing Baker v. Jellibeans, 252 Ga. 458, 459, 314 S.E.2d 874 (1984), finding a contract where the parties reached an agreement that included salary information, benefits, decided on a start date and all other necessary and typical terms of a contract. The parties agree that there is no signed formal contract for the 2005-2006 school year. The parties disagree, however, as to whether there are “multiple signed contemporaneous agreements” between them that “demonstrate their intent to enter into a binding contract” and that such writings contain all the “necessary terms of a contract.” The Plaintiff contends that the application submitted in approximately February of 2005, the letter dated July 25, 2005, and the emails sent during the course of the audit are sufficient when taken together, to prove the existence of a binding contract between the two parties. Under the applicable standard, the Plaintiff must show first that there are multiple signed contemporaneous agreements and then must demonstrate how such agreements evince an intent to enter into a binding agreement. Based upon the applicable standard and a thorough examination of the documentation submitted, the Court cannot find a valid, binding written contract. To begin, the documents relied upon by the Plaintiff must be contemporaneous. The Plaintiffs documentation is spread out over a six month period of time. The documentation was not part of an ongoing discussion or negotiation as to details of the contract but instead centers upon an ongoing audit. Any mention of a contract for the 2005-2006 fiscal year is a side-note and not the focus of the correspondence. The subject of both the emails and the July 25 letter is the ongoing audit, and the possibility of a 2005-2006 contract is mentioned only briefly. The Court cannot find 595that these correspondence show an agreement as to the existence of a contract for the 2005-2006 fiscal year. The documentation submitted by the Plaintiff additionally does not demonstrate an intent on behalf of both parties to form a valid, binding contract for 2005-2006. The application submitted by the Plaintiff clearly shows that the Plaintiff wished to continue and expand upon the previous contract that it had with the Defendant. The Plaintiff cannot produce, however, a writing from the Defendant that shows a similar intent. The application packet itself states that continuation providers are pre-approved if they are in good standing and clearly states that providers subject to an audit are not in good standing. The wording in the application packet shows that the Defendant was not committing to a contract with a provider, such as Plaintiff, that was subject to an audit. The Plaintiff therefore had notice well before the fiscal year began on July 1, 2005, that the Defendant was not automatically continuing contracts with providers subject to an audit. Therefore, the application shows that the Plaintiff wished to enter a contract but also demonstrates that the Defendant did not intend to enter into a contract with the Plaintiff at that time. Similarly, the emails exchanged between Ms. Coon and Ms. Hadley do not show a mutual intent to enter into a binding contract. These emails show that the Plaintiff wished to continue its contract, but it does not demonstrate a similar intention by the Defendant. Silence on the part of the Defendant in response to the Plaintiffs request to enter a contract does not fulfill the applicable standard for a written corn tract. The standard specifically calls for a demonstration of both parties intent to form a binding contract through written documentation. The emails only show that the Defendant was aware that the Plaintiff wished to continue its contract. That is not sufficient to meet the requirements for a written contract. Finally, the Plaintiff attempts to rely on the wording of the July 25 letter that the Plaintiffs contract is held pending resolution of the audit. The Plaintiff claims that because the letter states that the contract as opposed to the application is held proves that on July 25, 2005, the Plaintiffs acknowledged that a contract existed. The Court is not persuaded by this argument. To begin, this letter alone would be insufficient under the standard, which requires “multiple signed contemporaneous agreements.” This letter was not a part of an ongoing discussion between the parties about whether a contract existed. Instead, this letter, as with all other correspondence from the Defendant, concerns information required for the audit. The final paragraph states that the Plaintiffs contract is “held” pending resolution of the audit, and, upon a plain reading, only shows that the Defendant had not yet decided if it was going to extend a contract to the Plaintiff for the 2005-2006 school year. Once again, this does not show an intent by the Defendant to form a contract for the 2005-2006 fiscal year. This Court finds, considering a totality of the particular facts and circumstances, that there was neither a valid written contract nor a contract by multiple contemporaneous signed writings. With this inquiry complete, the Court must then look to see if sovereign immunity bars Plaintiffs asserted contract action against the Defendant. As stated above, the Georgia Constitution waives sovereign immunity for written contracts only. GA Const. Art. 1 § 2 ¶ IX. While sovereign immunity would normally provide the state of Georgia with an absolute defense, the Supreme Court in its recent decision in Central Virginia Community College v. Katz (In re Wallace’s Bookstores, Inc.), — U.S.-, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006) (“Hood 596II”), seemingly abrogates sovereign immunity in the bankruptcy court regarding such matters. Therefore, while this Court does find that there is no written contract between the parties, the inquiry is not yet complete. Considering a totality of the particular facts and circumstances, the Court is therefore not satisfied at this time that there are no possible alternative methods of recovery that are available to the Plaintiff. This remaining matter must, therefore, proceed to a trial on the merits to determine if there are any alternative theories on which the Plaintiff could succeed (e.g. quantum meruit/or unjust enrichment). IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Summary Judgment is granted in part as to whether a written contract exists. The Case will, however, proceed to trial on the merits to determine if the Plaintiff can prevail on an alternative theory. . See 28 U.S.C. §§ 157(b)(2)(A) and (E).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493880/	OPINION JO ANN C. STEVENSON, Chief Judge. This matter comes before the court upon the Trustee’s Objection to Claim No. 473. In making its decision the court has relied upon all pleadings filed by the parties, oral arguments, all evidence and testimony properly admitted, and the Affidavit of Daniel Broucek. In the early 1990s Daniel Broucek (“Broucek”) became involved in the electronic discount card business. After pouring the majority of his time and money into this business for several months, it failed to produce much income. In order to continue working on this venture and keep his head above water, Broucek decided to fabricate a phoney business venture to lure in “investors.” Existing only in his mind, never as a legal corporate entity, and born solely as a device to produce income for himself, Broucek started Pupler Distributing Company (“Pupler”) in early 1993. Announcing that he had a business opportunity that would yield a high rate of return on a short term loan, it was not long before a number of people were interested in investing in the fictitious company. Broucek initially believed that before the loans came due, his electronic discount card business would start turning a profit and the investors would be repaid. But in reality, Broucek’s discount card business did not take off and he needed more money to pay the initial investors. By telling the same, or largely the same story, and guaranteeing the same rate of return, Broucek obtained more money from new investors, paid the first investors, and thus, a Ponzi scheme was born. Just as growth for the sake of growth is the ideology of a cancer cell, so too is it the principle of greed. Broucek’s Ponzi scheme quickly grew to proportions that even he never anticipated. “Investors” were lining up around the block and before Broucek knew it, his investment scheme had metastasized throughout the West Michigan community, spreading to hundreds of people and consuming millions of dollars. As the Ponzi scheme was spiraling out of control, Broucek knew that with each transaction he lost money and that his obligation to creditors increased. The deeper his involvement, the more difficult it was to stop because the amount of debt increased and became harder and harder to repay. To keep the Ponzi scheme from collapsing, Broucek kept very careful records. As he became more and more involved with the operation, and as loan transactions increased, more of Broucek’s time was consumed with inputting and maintaining the accounting data. By 2001, the record keeping had become his full-time job. Initially, interest rates offered by Pupler were in the range of 45-46% annually. Proving the old adage: “He who is greedy 626is always in want,1” several investors became immune to this exorbitant rate of return, demanding even higher rates. In later years, interest rates to some investors skyrocketed to as much as 450% on an annualized basis. Additionally, some of the original investors requested commissions or finder’s fees for referring other investors to Pupler. Typically commissions paid to these investors equaled one-fourth of the interest paid to the investors they found. Amazingly, considering the large amounts of money involved, not one investor asked Broucek to produce any evidence of the “business” before or after turning over their money. No one requested documentation regarding the business, the shipping transactions, the sales contracts, nothing. This also astounded Broucek. When I operated Pupler Distributing, I lived in fear that some creditor, or some third-person, would discover that the enterprise was a fraud. I figured that sooner or later someone was going to ask me for some type of documentation regarding these transactions, such as shipping documents for the alleged sales or contact information for the buyers and sellers ... If someone had probed more deeply ... I would have been unable to give them what they asked for. There was nothing to give them. Affidavit of Daniel Broucek, Pg. 17, ¶ 65. In order to pay the investors of the Ponzi scheme, Pupler maintained an account with Bank One N.A. (“the Bank”) at its Breton Meadows Branch (“Breton Branch”). All funds transferred to and from Pupler flowed through this account. Six investors2 had accounts at the 44th Street Branch of Bank One (“44th Street Branch”). These investors would provide Broucek with money to invest in the form of official checks,3 which he would deposit at the Breton Branch. Broucek would then issue checks of principal and interest to these investors from the Breton Branch Pupler account. These checks were given to Paolo Scalici, the “manager” of these investors’ loans. Scalici took the checks to the 44th Street Branch and deposited them into each investor’s account. The Bank accepted these deposits and credited the investors’ accounts in full. The Bank then electronically debited the investors’ accounts and issued official checks payable to Broucek. These official checks were given to Mr. Scalici who presumably took them to Broucek who endorsed them with a deposit stamp and deposited them in the Breton Branch. There, the official checks were honored, and the investors would start the cycle again.4 This arrangement worked well for Brou-cek and the investors for several months, until the Ponzi scheme collapsed. On No627vember 7, 2002, Ronald Philpot, Corporate Security for the Bank contacted the FBI regarding the Bank’s concerns about the Pupler account. Broucek filed bankruptcy on November 14, 2002. The United States filed a Complaint for Forfeiture In Rem (“Civil Forfeiture Action”) against the Pu-pler account in the United States District Court for the Western District of Michigan on November 20, 2002. The Complaint alleged that the Pupler account contained proceeds from mail and wire fraud in violation of 18 U.S.C. § 1341 and § 1343. Based upon a warrant issued by the United States District Court, the FBI obtained a check from the Bank in the amount of $6,072,802.69 which represented the balance of the Pupler account on the date of its seizure by the FBI. This amount also included the Bank’s overdraft losses that totaled $678,295.81. On January 31, 2003, the Bank filed a Verified Claim in the Civil Forfeiture Action. On June 4, 2003, the United States District Court entered an Order of Dismissal in the Civil Forfeiture Action in which the Pupler bank account was released to Thomas A. Bruinsma, Chapter 7 Trustee. After the FBI seized Broucek’s bank accounts, several state court actions were filed against the Bank by various investors who alleged that the Bank engaged in wrongdoing when its officers, employees, and agents encouraged the investors to loan money to Broucek and then assisted in the loan transactions. The Bank filed a claim in the Bankruptcy Court against the Debtor on June 25, 2003 asserting an approximate secured amount of $1,500,000.00 and an unliquidat-ed unsecured amount not to exceed $1,500,000.00. It predicated this claim in part upon M.C.L.A. § 440.4210, § 440.4207 and § 440.4208 which are the security interest and the warranty provisions of Article 4 of the UCC. The Bank has never brought legal action against the investors to recover the overdraft amounts. The Trustee filed an Objection to the Bank’s claim on February 1, 2005. The Bank filed a Reply to the Trustee’s Objection and reduced the amount of its secured claim and transfer warranty claims to $678,295.81. This claim was based upon the damages arising from the failure of checks issued by the Debtor to clear following their deposit. The Bank also added a new unsecured claim for attorney’s fees and other costs incurred in the state court actions totaling $309,987.68.5 The Bank argues that Broucek is liable for the overdraft charges pursuant to the Account Rules and Regulations (“Account Agreement”) and also under the UCC because each time he endorsed an investor’s check for deposit he represented and warranted that the check was not subject to any claim or defense in recoupment. MCLA § 440.3416 and § 440.4207. The Bank relied upon these representations and warranties, processed the checks, and paid certified funds into the Pupler bank account. The Bank further argues that a breach of warranty occurred because Broucek was operating a criminal enterprise. The investors loaned money under false and fraudulent circumstances thereby having a defense to the instruments and/or a claim for recoupment. However, as we are about to discuss, the investors did not issue the instruments in question, the Bank did. Although the in628vestors may have a defense to the instruments and possibly a claim for recoupment, the Bank does not. The Overdraft Losses Warranty Claims MCLA § 440.3305(1)(a)(ii) defines a defense and claim in recoupment as the right to enforce the obligation of a party to pay an instrument that is subject to the defense of the illegality which under other law would nullify the obligation of the obli-gor. Under Michigan law, “all contracts which are founded on an act prohibited by statute are void.” Krause v. Boraks, 341 Mich. 149, 155, 67 N.W.2d 202 (1954). MCLA § 440.3416 states in pertinent part: (1) A person who transfers an instrument for consideration warrants to the transferee and, if the transfer is by endorsement, to any subsequent transferee all of the following: (a) That the warrantor is a person entitled to enforce the instrument. (b) That all signatures on the instrument are authentic and authorized. (c) That the instrument has not been altered. (d) That the instrument is not subject to a defense or claim in recoupment of any party which can be asserted against the warrantor. Similarly, MCLA § 440.4207 states: (1) A customer or collecting bank that transfers an item and receives settlement or other consideration warrants to the transferee and to any subsequent collecting bank all of the following: (a) That the warrantor is a person entitled to enforce the item. (b) That all signatures on the item are authentic and authorized. (c) That the item has not been altered. (d) That the item is not subject to a defense or claim in recoupment (section 3305(1)) of any party that can be asserted against the warrantor. MCLA § 440.3103(h) defines a “party” as a “party to an instrument.” Therefore, the relevant warranty provided in MCLA § 440.3416(1)(d) and § 440.4207(1)(d) is that the transferred instrument is not subject to a defense or claim in recoupment from a person or entity who is a party to the check. The Bank asserts that Broucek breached this warranty when he endorsed and deposited the checks issued by the investors. However, the investors never issued checks to the Debtor. They only issued certified funds. These certified funds were provided by the 44th Street Branch of the Bank. This made the 44th Street Branch the drawer of the funds. The funds were then deposited at the Bank’s Breton Branch. This made the Breton Branch the transferee. The issuer of the funds was Integrated Payment Systems, Inc. (“IPSI”) and the payor was Citibank. Accordingly, when Broucek deposited the official checks, he warranted to the Breton Branch of the Bank that the official check was not subject to the defense or claim of recoupment by the 44th Street Branch of the Bank, IPSI or Citibank. None of these parties had a defense or claim in recoupment because none of these parties lent money to Broucek. Accordingly, the warranty was not breached.6 629 Secured Claim The legal basis for the Bank’s secured claim is MCLA § 440.4210 which states: (1) A collecting bank has a security interest in an item and any accompanying documents or the proceeds of any of the following: (a) In case of an item deposited in an account to the extent to which credit given for the item has been withdrawn or applied. (b) In case of an item for which it has given credit available for withdrawal as of right, to the extent of the credit given whether or not the credit is drawn upon and whether or not there is a right of charge-back. (c) If it makes an advance on or against the item. In other words, the Bank argues that as a result of the credit (“the issuance of certified funds”) granted by the Bank to the individual investors when they deposited the Pupler checks, the Bank holds a security interest in the certified funds to protect it in the event the original deposit is dishonored. The security interest attaches to the total amount of certified funds that can be traced back to the Pu-pler bank account, which equals at least $678,295.81. MCLA § 440.4105(e) defines “collecting bank” as a “bank handling an item for collection except the payor bank.” A pay- or bank is defined as “a bank that is the drawee on a draft.” MCLA § 440.4105(c). The Bank was the drawer of the official checks because it caused the official checks to be issued. With respect to the Pupler checks however, the Bank was the payor bank because those checks were drawn from the Bank, thus making the Bank both the drawee of the checks and the payor bank. Broucek or Pupler was the issuer of the checks and the investors were the transferees. MCLA § 440.4215 states that an item is finally paid by a payor bank when the bank has settled the item without having the right to revoke the settlement. Issuing official checks is a final payment. When the Bank made final settlement on the Pupler checks by issuing certified funds, it became the payor bank. White & Summers, Uniform Commercial Code 302 (4th Ed.1995)(the exchange of an official check should be deemed to be final payment since a bank incurs direct liability on official checks and teller’s checks to the same extent as it does on cashier’s checks and certified checks). The Bank also argues that pursuant to MCLA § 440.4107 a branch or separate office of a bank is a separate bank. If true, the Breton Branch would be the drawee bank of the Pupler checks while the 44th Street Branch would be the collecting bank. MCLA § 440.4107 states: A branch or separate office of a bank is a separate bank for the purpose of computing the time within which and determining the place at or to which action may be taken or notices or orders shall be given under this article and under article 3. Comment 3 to this section states in pertinent part: Warranties by one branch to another branch under Sections 4-207 and 4-208 (each considered a separate bank) do not make sense. Consequently, we find that other than for notice purposes, the separate branches of the Bank are not considered separate banks. In addition, all Bank branches have full access to all depositor account information regardless of the branch in which a depositor opened his account. We therefore find no basis for 630treating the separate branches as separate banks. This may seem like a harsh outcome for the Bank, especially when it could be argued that the Bank was as much a victim of Broucek’s Ponzi scheme as anyone else. But just as any investor could have avoided victimization by stepping back from the torrent of greed engulfing West Michigan and asking a few questions, so too could the Bank have averted its dilemma by exercising the caution called for in its own Account Agreement. By waiting the required number of days for the Pupler checks to clear before issuing certified funds, the Bank could have been left with far fewer overdraft losses. Account Agreement The Account Agreement states: Non-Sufficient Funds (NSF) The Bank will not be liable for failure to pay or honor any item or withdrawal request unless it is drawn or requested against available funds credited to the Account at the opening of business on the day the item is presented for payment or the request is received. If the Bank pays an item or honors your request that overdraws your Account, you agree to pay the amount of the overdraft together with any fee and accrued interest immediately upon demand at the Bank’s offices, whether or not you signed or requested the withdrawal or participated in the transaction creating the overdraft or received any benefit from the withdrawal creating the overdraft. The Bank may assess a fee for any item or withdrawal request that is returned due to insufficient funds or if paid causing your Account to be overdrawn and may assess an additional fee for overdraft balances that are not promptly repaid and/or charge interest for any overdraft on your account ... you agree to pay all costs and expenses, including attorney’s fees, incurred by the Bank in the collection of any overdraft. According to this section of the-Agreement, the Bank can only be faulted for dishonoring an item if there is money in the account to cover it. In other words, the Bank is required by the Account Agreement to pay any item presented so long as there is money in the account. If the Bank pays an item without money available, the account holder is liable for the return of the funds advanced by the Bank plus any costs and fees. In this case the accounts of the investors showed a false positive balance. This was because the Bank was crediting the investors accounts in full for checks that had not yet cleared, and then debiting the investors accounts for the amount it was issuing in certified funds. When the Ponzi scheme collapsed, the Bank found itself holding bank accounts that had been fully credited for checks that were suddenly worthless due to the seizure of the Pupler bank account by the FBI. It was also left holding the bag on the other end, because it had issued certified funds which it had no right to revoke or recover. These funds were sitting in the same bank account that was in the possession of the FBI. We are not forgetful that the primary cause of the Bank’s dilemma is the criminal enterprise conceived by Daniel Brou-cek. However, the Bank must take its share of responsibility. If the Bank had waited the requisite number of days as enumerated in the Account Agreement that it drafted, the balances would have been closer to the actual amount of money in the accounts. Presumably, the Bank would have stopped honoring checks long before it did. Likewise, had it not issued certified funds for deposits that had not yet cleared, it would still have that money 631in its coffers or at the very least an argument under the UCC. The Claim for Attorneys’ Fees and Other Costs Through January 31, 2006, the Bank incurred $60,788.78 in attorney’s fees and expenses involving legal- proceedings due to Broucek’s Ponzi scheme. Specifically, the Bank incurred attorney’s fees and costs in defending several state court actions brought by various investors, in the Civil Forfeiture Action in the United States District Court, as well as in the bankruptcy court proceedings. Of this total amount, $58,738.65 in fees were incurred after the bankruptcy filing while $2,050.13 were incurred prior to the filing. The Bank argues that it is entitled to indemnification by Broucek for all its attorney’s fees and costs as outlined in the Account Agreement accepted by Broucek when he opened the bank account. The relevant section of the Account Agreement states: All expenses incurred by the Bank as a result of any legal proceeding affecting your Account including, but not limited to, court costs and attorney fees, may be charged against your Account or billed to you separately. Certain investors brought suit against the Bank in state court asserting liability by the Bank due to the negligence and wrongful conduct of its officers, agents and employees who encouraged loaning money and then assisted in the loan transactions. This has nothing to do with the Pupler bank account itself and therefore we find it falls outside the purview of what was contemplated in this section of the Account Agreement. In addition, post-petition attorney’s fees are allowed only if 1) there is a contractual or statutory basis for assessing fees against a debtor, and 2) the creditor’s claim is sufficiently over-secured to cover its attorney’s fees. 11 U.S.C. § 506(b). The Bank does not hold a secured claim. Consequently, it has no collateral. Therefore it can not have a secured claim with collateral having value sufficient to cover its attorney’s fees. However, to the extent the Bank has a pre-petition claim for fees and costs that are not related to its defense of claims by investors in state court, these are allowable pursuant to 11 U.S.C. § 502(b) as an unsecured claim. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED as follows: 1. The Trustee’s Objection to Claim No. 473 is sustained in part; 2. The Bank One secured claim for the amount of the overdraft charges is disallowed; 3. The Bank One claim for attorney’s fees and costs related to the state court actions is disallowed; 4. The Bank One unsecured claim in the amount of $2,050.13 for attorney’s fees and costs is allowed; IT IS FURTHER ORDERED that a copy of this Opinion and Order shall be served pursuant to Administrative Order 2004-06 (Mandatory Electronic Filing) upon Michael S. McElwee, Esq., Thomas A. Bruinsma, Geoffrey A. Field, Esq. and Bank One, N.A. . Horace (Ancient Roman Poet, 65 B.C. — 8 B.C.) . The court entered a Stipulated Protective Order on November 29, 2005 to protect customer information relating to Claim No. 473. As such, the names of the lenders and specific account information have been omitted. . Official checks are largely the same as certified checks, teller's checks, or cashier's checks in that they are certified funds. .This is a faithful narrative of how five of the six investors conducted business with Pupler. As for the sixth investor, funds were transferred from the investor's account electronically before the Pupler checks cleared, instead of cashiers checks being issued and transported by Scalici between the branches. . The Bank has since reduced this part of its claim to $60,490.48 for a total claim of $738,786.29. . The same result applies to the sixth lender who was allowed to transfer funds electronically. The analysis differs because in that case there was no instrument. Therefore, there was no transfer of an item and Broucek did not breach any transfer warranties.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493882/	FINDINGS OF FACT AND CONCLUSIONS OF LAW KATHY A. SURRATT-STATES, Bankruptcy Judge. The matter before the Court is Plaintiffs’ Complaint and Defendant’s Answer to Complaint and Amended Answer to Complaint. Plaintiff filed a Memorandum of Law on June 24, 2005. Defendant filed Defendant’s Brief in Opposition to Complaint on July 27, 2005. The Court then took the matter under submission. The Court upon consideration of the record as a whole makes the following FINDINGS OF FACT: On October 11, 2001, Steven W. Miller and B. Eileen Miller (hereinafter “Millers”) executed and delivered to Ag Services of America, Inc. (hereinafter “Ag Services”) a promissory note in the principal amount of $450,000.00 and executed and delivered to Ag Services security agreements which granted a security interest in farm equipment, farm products (which include harvested or un-harvested crops) and certain titled vehicles.1 Pursuant to the terms of the promissory note, the full balance of any unpaid principal and interest was to be paid in full on January 15, 2003. The promissory note also included a choice of law provision indicating that 766the contract was to be construed under Iowa law. The pre-maturity interest rate as provided in the note was 6.25% (2% in excess of 4.25%, the prime rate as published in the Wall Street Journal-Midwest Edition for January 15, 2003). The promissory note provided for default and post-maturity interest at a rate of 21% per annum compounded annually on any principal or interest which was unpaid at the note’s maturity or upon acceleration of the note, and also provided for costs and reasonable attorney’s fees. The Millers failed to pay the balance due on the note on or before the date of maturity, January 15, 2003. However, the Millers were engaged in negotiations with Ag Services for an extension of the note on January 15, 2003. Nevertheless, Ag Services charged the Millers interest on the unpaid principal and interest at the default interest rate of twenty one percent on January 15, 2003. Ag Services faded to provide notice to the Millers of the increased interest rate. The value of the Millers’ collateral exceeded the debt owed to Ag Services and Ag Services was at all times a fully secured creditor. Ag Services also charged the Millers attorney’s fees and costs that were not itemized. The Millers filed for relief under Chapter 11 of the Bankruptcy Code on June 27, 2003. The total balance of the Millers’ indebtedness to Ag Services as of June 27, 2003, was $150,117.45. Plaintiffs Fourth Amended Plan of Reorganization (hereinafter “Fourth Amended Plan”) was confirmed by this Court on April 26, 2004. The Fourth Amended Plan provided for 100% payment to Ag Services. The Millers paid Ag Services a total of $326,-307.602 between the date of acceleration of the note on January 15, 2003, and January 31, 2004, which constituted full payment to Ag Services under the terms of the note. The Fourth Amended Plan provided a reservation of rights that permitted the Millers to object to the default penalty interest paid to Ag Services before December 31, 2004. This adversary proceeding was filed on December 23, 2004. The Court after weighing the merits of each argument reaches a decision below. JURISDICTION AND VENUE The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 151, 157, and 1334 (2004), and Local Rule 81-9.01(B) of the United States District Court for the Eastern District of Missouri. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) (2004). Venue is proper under 28 U.S.C. § 1409(a) (2004). CONCLUSIONS OF LAW The Bankruptcy Code provides, “[t]o the extent that an allowed secured claim is secured by the property the value of which... is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” 11 U.S.C. § 506(b) (2004) (emphasis added). Section 506(b) permits oversecured creditors to recover “preconfirmation interest on... arrearages.” Rake v. Wade, 508 U.S. 464, 471, 113 S.Ct. 2187, 2191, 124 L.Ed.2d 424, 433 (1993); see also In re White, 260 B.R. 870, 879 (8th Cir. BAP 2001) (oversecured creditors are entitled to postpetition interest). 767The “rate of interest to be paid is the contract rate.” In re Johnston, 44 B.R. 667, 669 (Bankr.W.D.Mo.1984). State law governs the contract rate of interest of such agreements and default interest is generally allowed unless it is imposed in derogation of state law. See generally, 4 Lawrence P. King, Collier on Bankruptcy P506.04[2][b][ii] (15th rev. ed.2000). Here, the parties agree that Ag Services is an oversecured party for purposes of Section 506(b). The parties also agree that Ag Services is entitled to postpetition interest under the promissory note. However, there is a dispute as to whether Ag Services is entitled to default interest under the promissory note. Further complicating this issue is the presence of a choice of law clause in favor of Iowa law, which raises a conflict of laws issue that must be interpreted under Missouri conflict of laws rules since the contract was executed within the State of Missouri. “A fundamental principle of conflicts is that a forum state will always apply forum procedure, but it will choose the applicable substantive law according to its own conflicts of law doctrines.” Ernst v. Ford Motor Co., 813 S.W.2d 910, 921 (Mo.Ct.App.1991). Missouri courts generally construe contract actions under Section 187 of the Restatement (Second) of Conflict of Laws (1971). Id. The law of the State chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties. Restatement (Second) of Conflict of Laws § 187(2)(b) (1971). Application of Section 187(2)(b) requires three separate inquiries. First, a court must decide which state’s law applies in default under Section 188 in the absence of an effective choice of law provision. Second, a court must decide whether the default state has a materially greater interest in the outcome of the particular issue than the state chosen under the contract. Finally, a court must decide whether application of the law of the state chosen under the contract is contrary to a fundamental policy of the default state. Baxter Int’l, Inc. v. Morris, 976 F.2d 1189, 1196 (8th Cir.1992) Missouri contract law applies in default under Section 188 in the absence of an effective choice of law provision. Under the Restatement (Second) of Conflict of Laws § 188, [in] the absence of an effective choice of law by the parties, the contacts to be taken into account.. .include: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) of Conflict of Laws § 188(2) (1971). Here, Missouri is the place of contracting, negotiation, performance, and loci of the subject matter of the contract. The Millers are domiciled and have their residence within Missouri. The Millers’ farm768ing activities are also conducted within Missouri. Therefore, the contacts concerning this transaction weigh heavily in favor of Missouri under Section 188, so Missouri law applies. Missouri also has a materially greater interest in the outcome of the particular issue in this case. “The local law of the state selected by application of § 188(2) determines whether the default state has the most significant relationship to the transaction.” Ernst v. Ford Motor Co., 813 S.W.2d at 921. Here, Missouri has a greater interest in the transaction before the Court as discussed above. As discussed in more detail below, Missouri has laws to protect its residents from default interest in contracts whereas Iowa has no analogous laws. Therefore, Missouri has a materially greater interest in the outcome of the particular issue in this case. Application of Iowa law in this case violates a fundamental policy under Missouri law. Under Missouri law, “a choice of law provision will be honored unless to do so would violate a fundamental public policy of the state.” Electrical and Magneto Service Co. v. AMBAC Int’l Corp., 941 F.2d 660, 664 (8th Cir.1991). “[A] fundamental policy may be embodied in a statute which.. .is designed to protect a person against the oppressive use of superior bargaining power.” Id. at 663 (citing Restatement (Second) of Conflicts § 187 comment g). Under Missouri law, “[njotwith-standing the provisions of any other law to the contrary, it is lawful for the parties to agree in writing to any rate of interest, fees, and other terms and conditions in connection with any: (3) [r]eal estate loan other than real estate loans of less than five thousand dollars secured by real estate used for an agricultural activity.” Rev. Stat. Mo. § 408.035(3) (2004). However, a default interest provision must comport with Mo. Code Regs. Ann. tit. 4, § 140-6.050 (2004)3 to be valid. Killion v. Bank Midwest, 886 S.W.2d 29, 33 (Mo.Ct. App.1994) (court held that state regulation limiting default interest provisions to debt- or company’s business profitability in a contract was consistent with Section 408.035(3) and therefore valid). In Interstate Agri Services, Inc. v. Bank Midwest, 982 S.W.2d 796 (Mo.Ct.App. 1998), a bank issued promissory notes to a group of plaintiffs that included a default interest rate provision. Upon default, the bank exercised that provision against several plaintiffs. The Court reasoned that the Missouri statutes provide a remedy for a party who has paid interest exceeding that imposed under Missouri law, which indicates some intent on the part of the Missouri legislature to curb default interest in contracts. Under Iowa law, “[t]he following persons may agree in writing to pay any rate of interest, and a person so agreeing in writing shall not plead or interpose the claim or defense of usury in any action or proceeding, and the person agreeing to receive the interest is not subject to any penalty or forfeiture for agreeing to receive or for receiving the interest: (5)[a] person borrowing money or obtaining credit.. .for agricultural purposes...” Iowa Code § 535.2.a.5 (2004). The term “ ‘agricultural purposes’ means a purpose related to the production, harvest, exhibition, marketing, transportation, processing or manufacture of agricultural products by 769a person who cultivates, plants, propagates or nurtures the agricultural products.” Iowa Code § 535.18 (2004). A lender and borrower may contract as to any rate of interest and may also contract under a default rate that exceeds the original contract rate upon default. Federal Land Bank v. Wilmarth, 218 Iowa 339, 252 N.W. 507, 510 (Iowa 1934); see also Weinrich v. Hawley 236 Iowa 652, 19 N.W.2d 665, 669 (Iowa 1945) (penalty interest was allowed on a note that had reached maturity). Here, the default interest provision is not related to the profitability of the Millers’ business, which is required under Missouri law. The default interest rate is therefore invalid under Missouri law since it contravenes Mo. Code Regs. Ann. tit. 4, § 140-6.050. However, the outcome is different under Iowa law since the Millers received the loan from Ag Services to engage in the agricultural purpose of producing farm products. Ag Services would therefore be entitled to default interest on its loan under Iowa law. Consequently, Iowa contract law impairs a fundamental right protected under Missouri contract law. Therefore, the choice of law provision in the promissory note is unenforceable under Missouri law and the pre-default rate of interest will stand. The remaining issue is whether attorney’s fees are allowed under Section 506(b). Under Section 506(b), “[r]ecovery of fees, costs, and charges...is allowed only if they are reasonable and provided for in the agreement under which the claim arose.” U.S. v. Ron Pair Enterprises, 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290, 298 (1989). “To recover attorneys’ fees under section 506(b), then, a creditor must establish: (1) that it is oversecured in excess of the fees requested; (2) that the fees are reasonable; and (3) that the agreement giving rise to the claim provides for attorney’s fees.” In re Schriock Construction, Inc., 104 F.3d 200, 201 (8th Cir.1997) (citing In re Foertsch, 167 B.R. 555, 562 (Bankr.D.N.D.1994)). Here there is no dispute between the Millers and Ag Services that the latter is an oversecured creditor. There is also no dispute that the agreement provides for attorney’s fees. However, Ag Services failed to provide sufficient evidence to the Court to substantiate its claim to legal fees. Consequently, there is no basis for the Court to inquire into the reasonableness of Ag Services’ attorney’s fees. Thus, Ag Services has failed to demonstrate that it is entitled to attorney’s fees at this point. Therefore, the Court concludes that Plaintiffs are entitled to a refund of the difference between the original interest and default interest and of the unitemized attorney’s fees and costs. By separate order, judgment will be in favor of Plaintiffs. ORDER The matter before the Court is the Plaintiffs’ Complaint and Defendant’s Answer to Complaint and Amended Answer to Complaint. For the reasons set forth in this Court’s Findings of Fact and Conclusions of Law entered separately, IT IS ORDERED THAT the relief requested in Plaintiffs’ Complaint is GRANTED and judgment is entered in favor of Plaintiffs Steven W. Miller and B. Eileen Miller and against Defendant Rebo Ag Services; and Plaintiffs are entitled to a refund of the difference between the original interest and default interest paid to Defendant; and Plaintiffs are entitled to a refund of the unitemized attorney’s fees and costs paid by Plaintiffs to Defendant; and this is the final judgment and order of the Bankruptcy Court in this Case. . Ex. 1. . This amount included: the balance due on the note as of January 31, 2003 of $278,471.12; an advance of $8,013.00 made on November 26, 2003; and post maturity interest plus unitemized and unstated attorney’s fees and costs totaling $39,823.48. . "(1) [a] bank may contract to receive additional interest on any loan for business purposes contingent only upon profitability and successful operation of the business receiving the proceeds of the loan. In no event shall the repayment of interest be subject to any contingency.” Mo. Code Regs. Ann. tit. 4, § 140-6.050 (2004).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493883/	MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER STEPHEN D. GERLING, Chief Judge. Before the Court is a motion filed on October 21, 2004, by New York State Mortgage Loan Enforcement and Administration Corporation (“MLC”), as agent for the New York State Urban Development Corporation (“UDC”), doing business as Empire State Development Corporation (“ESDC”)1 and New York State Project Finance Agency (“PFA”) (collectively the “UDC”), seeking relief from the automatic stay pursuant to § 362(d) of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1330 (“Code”). Opposition to the motion was filed on behalf of State Street Associates, L.P. (“SSA”) and State Street Houses, Inc. (“SSH”) (collectively, the “Debtors”) on November 18, 2004. The motion was heard at the Court’s regular motion term in Utica, New York, on November 23, 2004. Following oral 34argument, the Court indicated that it would schedule an evidentiary hearing on the motion. Originally scheduled for February 23, 2005, the evidentiary hearing was adjourned to March 17, 2005, on consent of the parties. Ultimately, after a further consensual adjournment, two days of evidentiary hearings were held on May 12, 2005 and June 2, 2005.2 In order to allow both parties the opportunity to obtain transcripts of the hearings and to provide the Court with post-hearing memoranda of law, the matter was taken under submission by the Court on July 21, 2005. JURISDICTIONAL STATEMENT The Court has core jurisdiction over the parties and subject matter of this contested matter pursuant to 28 U.S.C. §§ 1334, 157(a), (b)(1) and (b)(2)(A), (G) and (O). FACTS On July 21, 1971, SSH borrowed $8,105,000 from UDC to construct and operate Kennedy Plaza Apartments (“Kennedy Plaza”), a 303 unit subsidized rental apartment complex located in Utica, New York.3 See UDC’s Exhibit 1. SSH is a New York corporation, which holds legal title to Kennedy Plaza. SSA is a New York limited partnership and owner of the equitable interest in Kennedy Plaza. Mathematical Bridge Corporation is a New York corporation and the managing general partner of SSA. Mathematical Bridge Corp. provides accounting, tax and legal services to SSA and manages Kennedy Plaza. Lanny Horwitz (“Horwitz”) is the sole shareholder and president of SSH and Mathematical Bridge Corp., as well as the sole director of both corporations. Horwitz is one of five employees of Mathematical Bridge Corp. and is the only one residing in Florida. On January 3, 1972, the Debtors, UDC and the United States Department of Housing and Urban Development (“HUD”) entered into an Interest Reduction Contract (“IRC”) under Section 236 of the National Housing Act. See Debtors’ Exhibit C. HUD is authorized by statute “to make interest reduction payments with respect to a rental or cooperative housing project owned by a private non-profit corporation or other private non-profit entity ... which is financed under a state or local program providing assistance through loans, loan insurance or tax abatements.” Id. The IRC provided for a cap of $396,697 in interest reduction payments per year for a period not to exceed 50 years. Id. at 3. For purposes of reflecting subsequent increases in UDC’s loans to the Debtors, on August 1, 1975, the terms of the IRC were amended to provide for a new cap of $479,109. See Debtors’ Exhibit D. The IRC was again amended on March 1, 1988, to reflect a cap of $538,381, in conjunction with the increased debt to UDC of $9,613,693 of which $9,343,779 was “attributable to the subsidized dwelling units.” See Debtors’ Exhibit E. Those payments equal approximately $45,000 per month ($538,381 h- 12 = $44,865). White testified that between October 1981 and April 2005, HUD has paid approximately $12 million to UDC in connection with Kennedy Plaza. See May 12th Tr. at 47 and Ds’ Exhibits A and B. According to Horwitz, the monthly debt service is actually approximately $60,000, resulting in a short35fall of approximately $15,000 per month. See Transcript of June 2, 2005 Hearing (“June 2 Tr.”) at 51. The Debtors have not paid UDC since January 2002, according to White.4 See May 12th Tr. at 27. In 1983 UDC and SSA, along with two other similarly damaged UDC financed parties, commenced an action against Dow Chemical (“Dow”) for structural damage that occurred to the apartment complex as a result of the failure of a mortar additive, manufactured by Dow and known commercially as “Sarabond,” which was used in the construction of the complex. On July 31, 1985, the Debtors authorized UDC to direct and manage the Dow litigation on their behalf by means of the execution of Powers of Attorney (“POA”). See Exhibit B, attached to UDC’s Exhibit 33D. Under the terms of a Loan Restructuring Agreement (“LRA”), dated July 31, 1985, the Debtors assigned to UDC any settlement or award (“Settlement Proceeds”) they might receive in the Dow litigation in exchange for UDC granting the Debtors a ten year forbearance period. See UDC’s Exhibit 3. Acting under the POAs, UDC finalized a settlement with Dow in April 1991 in the amount of $20,000,000 (“Sarabond Settlement”). Following receipt of the funds on behalf of the various plaintiffs whose mortgages were held by UDC, including the Debtors, a dispute arose over the distribution of the proceeds. In July 1992 the Debtors and UDC entered into a settlement agreement (“Settlement Agreement”), which provided that the Debtors would receive $7,056,000 as their share of the Sarabond Settlement. In the interim, an Amended LRA, made effective July 31, 1991, provided for an additional five year forbearance period.5 See UDC’s Exhibit 6. The Amended LRA also provided that [a]ny award ... as a result of the [Dow] Litigation, or any portion of a settlement, or any portion of a settlement of the [Dow] Litigation ... shall be assigned to UDC and allocated and distributed ... in the following order of priority: (a) To accrued interest on the HUD Flexible Subsidy Loan,6 then to the payment of the Two Million, One Hundred Seventy-three Thousand, Eight Hundred Nine ($2,173,809) Dollars principal thereof .... See id. at Section 10 (amending Section 5.02 of the original LRA). On July 16, 2002, SSH filed a voluntary chapter 11 petition in the United States Bankruptcy Court for the Southern District of Florida following receipt of two default notices from UDC. See In re State Street Houses, Inc., 305 B.R. 726, 731-32 (Bankr.S.D.Fla.2002), aff'd, 305 B.R. 738 (S.D.Fla.2003), aff'd, 356 F.3d 1345 (11th Cir.2004). The case was dismissed on December 3, 2002 based on a finding of bad faith.7 Id. 36On May 28, 2003, UDC commenced an action against the Debtors in New York State Supreme Court, Oneida County (“New York State Court”), seeking to foreclose its mortgage lien on Kennedy Plaza based on alleged defaults in the Debtors’ monthly payments.8 On May 20, 2004, the New York State Court issued an order appointing a temporary receiver. In response to the New York State Court’s order, the Debtors filed voluntary petitions pursuant to chapter 11 of the Code on May 21, 2004 in the Northern District of New York, and this Court signed an order on May 25, 2004, providing for joint administration of the two cases. According to the Debtors’ schedules, UDC holds a secured claim for accrued interest of $2,947,247.24, which Debtors identify as “disputed.” See Schedule D, filed June 14, 2004. UDC’s proof of claim estimates a claim of $3,265,101.70 in interest arrears. See UDC’s Exhibits 10 and 11. Debtors also list UDC with a secured claim of $9,614,440.91 in connection with “consolidated mortgages” on Kennedy Plaza, which Debtors identify as “disputed.” See Schedule D. UDC’s proof of claim, filed on September 30, 2004, estimates a claim of $9,612,532.48 in principal being owed.9 See UDC’s Exhibits 10 and 11. According to the Debtors’ schedules, HUD holds an unsecured claim of $2,543,357, labeled as “contingent” and “disputed.” See Schedule F, filed June 14, 2004. The parties have agreed that the market value of Kennedy Plaza is $7,135,000 pursuant to an appraisal performed by GAR Associates, Inc., dated July 6, 2004. See UDC’s Exhibit 13. After obtaining several extensions of the exclusivity period for filing a chapter 11 plan and disclosure statement, the Debtors filed both on May 27, 2005. See UDC’s Exhibit 32 and Debtors’ Exhibit I. According to the Disclosure Statement, the Plan proposes the continued operation of Kennedy Plaza while pursuing the litigation currently pending in the Bankruptcy Court (Adv.Pro.04-80217) and in Florida State Court (collectively, the “UDC Litigation”). The litigation pending in this Court seeks the immediate turnover of $2,173,809, currently held by UDC following the Sarabond Settlement. The Debtors also seek an accounting of the balance of the “Settlement Proceeds” in the amount of $7,056,000. The litigation pending in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County Florida (Florida State Court) seeks recovery of monies allegedly owed by the UDC to the Debtors pursuant to Florida Statute, § 772.11 (“Civil Theft Action”).10 Ac37cording to the Debtors’ Disclosure Statement, the City of Utica, which is described as holding a statutory lien against the Debtors for prepetition water and sewer charges in the approximate amount of $30,000, “will be paid in full with interest upon completion of the UDC Litigation and/or the decoupling and refinancing of the Project.” See Debtors’ Disclosure Statement (UDC’s Exhibit 32) at 13. The same provision is made for paying general unsecured claims, which are estimated to total approximately $3,533,765.44. Id. With respect to the claim of the UDC, the Debtors indicate in their Disclosure Statement that [i]n the event the Debtors are successful in the UDC Litigation and/or the pending rent increase application, the Debtors anticipate that they will be able to make the requisite debt service payments to satisfy the UDC claim as determined in accordance with the UDC Litigation or the claim shall be paid at the time the Project is decoupled and refinanced. The decoupled interest reduction payment will support a new mortgage in excess of $6,000,000.00. Id. According to Horwitz, the Debtors hope to be able to reduce, if not eradicate, the UDC secured debt by means of the UDC Litigation. See Horwitz Deposition at 137 and June 2nd Tr. at 13.11 Horwitz testified at his deposition that he estimated that it would take approximately 24 months to complete the litigation in Florida. Id. at 167. It was his testimony that the Debtors are in the process of having special counsel appointed to reactivate and prosecute the Florida Civil Theft Action,12 which was halted upon the filing of a “Suggestion of Bankruptcy” in September 2004. See June 2nd Tr. at 14. He estimated that damages in the Civil Theft Action could run in the range of $12 million, calculated by combining the $2,173,809 in Settlement Proceeds originally earmarked for HUD, plus an interest calculation, times three. Id. at 21. At the time that the litigation was halted, UDC had filed a motion to dismiss the action.13 See UDC’s Exhibit 33-A. According to Horwitz, the Debtors’ Plan depends on the outcome of both lawsuits, particularly the turnover proceeding pending in this Court. See June 2nd Tr. at 26. He explained that if successful in the adversary proceeding, there would be a reduction in any damage award in the Florida Civil Theft Action. Id. at 20. He also testified that if successful in the Florida Civil Theft Action, the Debtors would be entitled to a treble award of damages. See id. The Debtors’ Plan also contemplates receiving a rent increase from the Division of Housing and Community Renewal (“DCHR”). Id. at 12. Horwitz testified that the last rent increase occurred in 381991. He also acknowledged that it is a very long process to complete. Id. at 17. Indeed, he indicated that they are reviewing a budget rent determination prepared by Conn & Co., P.C., accountants in Atlanta, for submission to the DHCR for the years 2006 and 2007. Id. at 25. Finally, Horwitz testified that the Debtors are proposing to obtain $6 million in refinancing, but that in order to do that, it must reduce UDC’s claim below $6 million. This would require resolution of the UDC litigation in favor of the Debtors and a reduction or elimination of the debt owed to UDC. Id. at 89-91. Only then would they be in a position to “decouple” the interest reduction payment from the underlying debt and obtain new financing.14 See id. at 122 and Horwitz Deposition at 137. Horwitz acknowledged that unless the Debtors were able to pay off the UDC debt, they would need the consent of UDC to decouple. With respect to how long the “decoupling” process might take, White testified that “[a] project that’s current on its payments typically takes a year. A distressed project such as this one will take longer.” June 2nd Tr. at 134. Furthermore, White testified that based on his experience with several decouplings, he did not believe the Debtors would be able to decouple without first rehabilitating Kennedy Plaza. Id. at 136. M. Scott Allen (“Allen”), who had performed the appraisal on Kennedy Plaza for GAR Associates, testified that the “as is” value he placed on Kennedy Plaza at $7,135,000 was as of the date of his inspection on July 6, 2004 and represented the price a developer would be willing to pay for the property based on the ability ultimately to decouple the project, which would require that renovations first take place. See May 12th Tr. at 70 and 72. ARGUMENTS Pursuant to Code § 362(d)(1), UDC contends that cause exists to lift the automatic stay because (a) the Debtors have acted in bad faith in commencing the bankruptcy case and (b) UDC’s interests are not adequately protected. In response to the latter argument, the Debtors direct the Court’s attention to the fact that UDC is receiving monthly payments of approximately $45,000 from HUD, which provides UDC with adequate protection. However, it is UDC’s position that while it has been receiving monthly payments from HUD, the Debtors’ cash flow is insufficient to make either the balance of the monthly payments to UDC of approximately $15,000 or the payments in lieu of taxes to the City of Utica. In this regard, UDC directs the Court’s attention to the fact that according to the operating reports of the Debtors for May 2005, the Debtors had $50,699.07 in cash on hand and $37,202.61 in accounts payable and, on an accrual basis, had lost $237,319.95 year-to-date. See Docket No. 241. In addition, UDC points out that there is no equity cushion, and no payments of principal have been made by the Debtors over the last thirty years. In addition, UDC contends that the Debtors have made little or no capital improvements to Kennedy Plaza. UDC contends that there also is a basis for granting relief from the automatic stay pursuant to Code § 362(d)(2). Neither party disputes the Debtors’ lack of equity in Kennedy Plaza. With respect to whether the property is necessary for the Debtors’ reorganization, UDC relies on the Su39preme Court’s decision in United Sav. Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363 (5th Cir.1987), rev’d, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) in which the Supreme Court held that it is a debtor’s burden to establish that the property in question is “essential for an effective reorganization that is in prospect.” Id. at 376 (emphasis in original). In other words, “there must be ‘a reasonable possibility of a successful reorganization within a reasonable time.’ ” Id., quoting the en banc court in the case, 808 F.2d at 370-71, and nn. 12-13. In response, the Debtors contend that “[i]n determining if there exists a ‘reasonable possibility’ of reorganization, the debtor need not prove that the proposed plan is confirmable, that is, acceptable to its creditors.” In re White Plains Development Corp., 140 B.R. 948, 951 (Bankr. S.D.N.Y.1992). It is the Debtors’ position that given the fact that UDC/MLC failed to use the Settlement Proceeds “for the purpose for which [they were] assigned, there is a high likelihood that the Debtors will prevail on their turnover claim .... ” Debtors Memorandum of Law at 16. This position, according to the Debtors, is given additional weight by what the Debtors deem the “clear evidence that HUD has no interest in the money retained by UDC/ MLC” based on HUD’s proof of claim which asserts an unsecured claim.15 DISCUSSION Whether to grant relief from the automatic stay is a matter of the Court’s discretion. See Sonnax Industries, Inc. v. Tri Component Products Corp. (In re Sonnax Industries, Inc.), 907 F.2d 1280, 1286 (2d Cir.1990). UDC has the initial burden pursuant to Code § 362(d)(1) to make an initial showing of “cause.” Id. at 1281. In this case, UDC asserts that the Debtors’ petitions were filed in bad faith and that it is not adequately protected. The concept of “bad faith” does not lend itself to precise definition. It is for the Court to consider any factors which evidence “an intent to abuse the judicial process and the purposes of the reorganization provisions or, in particular, factors which evidence that the petition was filed to delay or frustrate the legitimate efforts of ... creditors to enforce their rights.” In re Albany Partners, Ltd., 749 F.2d 670, 672 (11th Cir.1984) (examining the issue of bad faith in the context of a motion to dismiss the case). The standards for dismissing a bankruptcy case on the basis of bad faith “are not substantively different” from those applied in the context of a motion seeking relief from the automatic stay. See In re 234-6 West 22nd St. Corp., 214 B.R. 751, 757 (Bankr.S.D.N.Y.1997). As noted in 281-6 West 22nd St., when faced with a motion to lift the stay on bad faith grounds, a judge must conduct a careful analysis similar to that performed with a motion to dismiss a case on bad faith grounds. In both cases, the relief sought is an extraordinary remedy that requires careful examination of the facts on a case-by-case basis. But where the circumstances require such relief, and the cases granting both types of motions are legion, a judge must not shrink from ordering it. Id. To this end, the courts have considered a variety of factors: (1) the debtor has only one asset; 40(2) the debtor has few unsecured creditors whose claims are small in relation to those of the secured creditors; (3) the debtor’s one asset is the subject of a foreclosure action as a result of arrearages or default on the debt; (4) the debtor’s financial condition is, in essence, a two party dispute between the debtor and secured creditors which can be resolved in the pending state foreclosure action; (5) the timing of the debtor’s filing evidences an intent to delay or frustrate the legitimate efforts of the debtor’s secured creditors to enforce their rights; (6) the debtor has little or no cash flow; (7) the debtor can’t meet current expenses including the payment of personal property and real estate taxes; and (8) the debtor has no employees. In re C-TC 9th Ave. Partnership, 113 F.3d 1304, 1311 (2d Cir.1997) (citing Pleasant Pointe Apartments, Ltd. v. Kentucky Housing Corp., 139 B.R. 828, 832 (W.D.Ky. 1992)). Accordingly, the Court considers these factors in examining the motion before it: (1) Debtors have only one asset: The Debtors’ only asset in this case is Kennedy Plaza, and the rents generated from it. (2) Debtors have few unsecured creditors: According to the Debtors’ schedules, the claims of approximately sixty unsecured creditors total approximately $3,533,765.44, of which the Debtors identify HUD as holding a contingent, disputed unsecured claim of $2,543,357. The Debtors also list a disputed unsecured claim of $606,323 of the City of Utica pursuant to Article 2 of the New York Private Housing Law. In addition, there is a claim of $34,000 of Horwitz for legal services. Without the HUD claim, the City of Utica’s claim, and Horwitz’s claim, the Debtors’ unsecured debt is reduced to $350,085.44 at the time they filed their petitions. This is to be compared with the claims of UDC of approximately $12.9 million. (3) Debtors’ one asset is the subject of a foreclosure action: Kennedy Plaza, the Debtors’ only significant asset, was the subject of a foreclosure action at the time that they commenced their cases. (4) Debtors’ financial condition is, in essence, a two party dispute which can be resolved in the pending state foreclosure action: The Florida bankruptcy court in SSH’s case took the position that the financial problems for SSH involved a two party dispute that could be resolved in a New York State foreclosure action. See State Street Houses, 305 B.R. at 736-37. The action pending in this Court seeks the immediate turnover of $2,173,809, currently held by UDC following the Sarabond Settlement, as well as an accounting of the balance of the “Settlement Proceeds” in the amount of $7,056,000. This Court makes no finding concerning whether the New York State Court would consider such relief in the context of the pending foreclosure action. However, the Debtors point out that the civil theft action arises under Florida state law and that there is no similar statute in New York. (5) Timing of the Debtors’ filing evidences an intent to delay efforts of their secured creditors to enforce their rights: Horwitz admitted that the timing of the filing of the Debtors’ cases was intended to prevent the appointment of a State Court receiver to manage Kennedy Plaza. 41(6) Debtors have little or no cash flow: Horwitz testified that the occupancy rate for Kennedy Plaza averaged 95% from which rental income is generated. See June 2nd Tr. at 13. However, as Horwitz acknowledged, the rates of rent have not been increased since 1991 and place a severe strain on the Debtors’ cash flow. Nonetheless, it is clear from a review of the operating reports filed on behalf of the Debtors that there is rental income of between $90,000 and $100,000 per month being generated on an accrual basis. See, e.g., UDC’s Exhibit 29. (7) Debtors can’t meet current expenses: The Debtors’ operating report for April 2005 indicates that the Debtors had $83,104.05 in cash on hand as of April 1, 2005, and that $86,077.61 in rents had been received, as well as other receipts totaling $5,601.50. Thus, the Debtors had on hand $174,783.16 in available funds in April 2005. Disbursements for the month totaled $123,977.82, leaving cash on hand at the end of the month of $50,805.28. However, the disbursements did not include any payments to secured creditors, including UDC. Nor is there any payment of real property taxes. Horwitz testified that the Debtors are required to make payments in lieu of taxes, but that they were not due until July or August 2005.16 See June 2nd Tr. at 83. (8) Debtors have no employees: SSH has no employees. Horwitz testified that SSA has five or six employees.17 See id. at 31. These same factors were considered by the Florida bankruptcy court. See State Street Houses, 305 B.R. at 734-37. However, in that case SSH was the only debt- or. SSH was found to be merely a “corporate shell” which was not a going concern and had no employees. See id. at 736. In addition, the Florida bankruptcy court found that the fact that the case had been commenced “over a thousand miles from Kennedy Plaza, the Movants, and other creditors, including HUD and the City of Utica, is additional evidence that the Chapter 11 proceeding was commenced in bad faith.” Id. at 737. In the matter sub judice, there are two debtors, one of which does have a few employees and does have an ongoing business from which regular monthly income is generated. Based on a review of the Debtors’ operating reports, it appears that they have been able to meet their current expenses, including the payments in lieu of taxes, with the exception of the monthly payments of $15,000 due to UDC. Furthermore, the filing is in the district in which its main asset, Kennedy Plaza, is located. It is also the district in which many of its creditors have offices. The number of claims of unsecured creditors, while their total amounts are dwarfed by those of the UDC, the City of Utica and HUD, nevertheless, are relatively many. Clearly, the fact that the Debtors’ one asset, Kennedy Plaza, is the subject of a foreclosure action and the fact that the Debtors filed their petitions in an effort to delay UDC from enforcing its rights as a secured creditor are factors to be considered in connection with a determination of bad faith. However, the Court notes that the fact that the Debtors filed their petitions to prevent the appointment of a temporary receiver in the foreclosure action 42commenced by UDC in May 2003 in and of itself does not establish bad faith or “cause” for relief from the automatic stay. See In re Syndicom Corp., 268 B.R. 26, 47 (Bankr.S.D.N.Y.2001). In balancing all of the other factors, the Court concludes that the petitions were not filed in bad faith. Furthermore, because UDC is receiving monthly payments from HUD of approximately $45,000, its interests in Kennedy Plaza are adequately protected despite its undersecured status. Accordingly, the Court will deny the relief sought by UDC pursuant to Code § 362(d)(1) for “cause.” Therefore, the Court must also consider the arguments made by UDC pursuant to Code § 362(d)(2). The parties do not dispute that there is no equity in Kennedy Plaza. The threshold determination for the Court is whether there is a realistic prospect of an effective reorganization within a reasonable period of time. As noted previously, the Debtors have the burden of proof on this issue. As one court has noted, [a] moving target burden of proof requires that the debtor must provide the most stringent and convincing showing under § 362(d)(2)(B) after the expiration of the exclusivity periods to file a plan and obtain acceptance thereof. The evidence presented by the debtor must be greater than “plausible” or “probable”. After the expiration of the exclusivity period or periods, to satisfy § 362(d)(2)(B), the debtor must offer sufficient evidence to indicate that a successful reorganization within a reasonable time is “assured”. $ * * * * Generally, it is impossible to satisfy § 362(d)(2)(B) if: (1) the only evidence offered is debtor’s chimerical opinion that it can successfully reorganize; or (2) the evidence offered indicates the debtor is unable to propose a meaningful plan. In re Holly’s, Inc., 140 B.R. 643, 702-703 (Bankr.W.D.Mich.1992). In this case, the Debtors have filed then-plan and disclosure statement. In then-treatment of creditors, the Debtors indicate that UDC, listed as Class 1, will continue to receive the monthly interest reduction subsidy payment from HUD. In addition, the Debtors indicate in the First Amended Disclosure Statement, dated September 28, 2005, that [i]n the event the Debtors are successful in the UDC Litigation and/or the pending rent increase application, the Debtors anticipate that they shall be able to make the requisite debt service payments to satisfy the UDC claim as determined in accordance with the UDC Litigation or the claim shall be paid at the time the Project is decoupled and refinanced. UDC’s Exhibit 32 at 13. In addition, Class 3, which is comprised of the secured claim of the City of Utica, and Class 6, which is comprised of general unsecured creditors with allowed claims, are both to be paid in full “upon completion of the UDC Litigation and/or the decoupling and refinancing of the Project.” Id. The success of the Debtors’ reorganization rests on four factors over which the Debtors have little control insofar as then-outcome is concerned. First of all, they are in the process of seeking an increase in rental rates for Kennedy Plaza. Horwitz acknowledged that this is a lengthy process. Second, the Debtors commenced an adversary proceeding in this Court on August 6,. 2004, seeking turnover of the $2,173,809 which had previously been assigned to UDC by the Debtors in connection with the Sarabond Settlement. The 43Court denied a motion by UDC seeking dismissal of the complaint on March 23, 2005. See State Street Associates, L.P. v. New York State Urban Development Corp., 323 B.R. 544 (Bankr.N.D.N.Y. 2005).18 Most recently the Court allowed HUD to be joined as a party and approved a stipulation allowing HUD until October 4, 2005, to file its answer. On October 4, 2005, HUD filed its answer to the complaint and asserted a counterclaim requesting that the Court direct UDC to turn over the Settlement Proceeds to HUD (Docket No. 62). To date, no trial has been scheduled. Third, the Debtors intend to pursue the Civil Theft Action in Florida State Court. Horwitz admitted that this litigation was likely to take two years to complete. As pointed out by the UDC in its motion to dismiss that action, which was stayed upon the filing of the bankruptcy petitions, the Debtors have to overcome the problem of the Florida State Court’s jurisdiction over the UDC, which asserts that it is not a resident of the State of Florida and has not engaged in any conduct in the State of Florida whereby it could reasonably expect to be “haled into court” in Florida. It is UDC’s position that the parties thirty year lending relationship “involved solely New York corporations, solely New York real property, litigation conducted solely in New York, settlement proceeds from that litigation which were always held in New York, and documents governed by New York law.” UDC’s Posh-Trial Mem. of Law at 28. SSH allegedly has asserted that personal jurisdiction over the defendants exists based on Florida Statute § 48.193(l)(b), “which confers personal jurisdiction over parties that commit a ‘tor-tious act’ in Florida” even if they were not physically present in Florida when the act occurred. See Wendt v. Horowitz, 822 So.2d 1252, 1257 (Fla.2002). A threshold question will be whether the allegations in SSH’s complaint state a cause of action establishing that the defendants committed a tortious act in Florida such that the Florida court has personal jurisdiction over them. In addition, UDC argues that even if SSH is able to establish personal jurisdiction and that Florida law applies, SSH will be unable to recover treble damages because of the contractual relationship which exists between the parties. UDC’s Post-Trial Mem. of Law at 29 and 31, citing to Rosenthal Toyota, Inc. v. Thorpe, 824 F.2d 897, 902 (11th Cir.1987) (indicating that “[ujnder Florida law, damages for civil theft can only be trebled where there is no contractual relationship between the parties”). Finally, the Debtors’ plan of reorganization contemplates being able to take advantage of “decoupling” procedures, which allow the housing project to be refinanced while the interest reduction payments are “decoupled” from the original debt and allowed to continue. Horwitz acknowledged that unless the Debtor was able to eliminate the claim of UDC, it would be necessary to obtain UDC’s consent to any proposed decoupling. Furthermore, White testified that the process of decoupling could take more than a year and, in all likelihood, the Debtors would be required to make extensive renovations to Kennedy Plaza before any decoupling would be permitted. The key concern of the Court is the delay inherent in the Debtors’ plan of reor44ganization, coupled with the uncertainty of its success with any of the four factors identified above. Obviously, if the Court were to grant the relief requested by UDC, it is a certainty that the unsecured creditors will receive nothing. The same will be true should the Debtors be unsuccessful with the UDC Litigation under the terms of the plan, which provides that payment of the secured claim of the City of Utica, as well as general unsecured claims, is contingent on the outcome of the litigation in this Court and in the Florida State Court. UDC first loaned the Debtors over $8 million to construct Kennedy Plaza in 1971. Over the years, it has provided additional funds in connection with the housing project. The parties subsequently agreed to a forbearance period for the Debtors, which extended until July 31, 2000. UDC has not received any payment on principal for over thirty years, and the Debtors have made no payments on the obligation since 1998. Admittedly, UDC has been receiving the monthly interest payments of approximately $45,000 from HUD. However, the Debtors are now proposing further delay for UDC while its claim continues to increase at an estimated rate of $286,500 in unpaid interest annually. Based on the testimony presented, it would appear that this delay is likely to last at least a year and perhaps even for two years or more while the request for a rental increase is considered and the UDC Litigation is resolved. It is also possible that payment to the UDC will have to await decoupling and refinancing. The Court recognizes that a lift stay hearing should not be transformed into a confirmation hearing. The “effective reorganization” requirement enunciated by the Supreme Court does, however, require a showing by a debtor and a determination by the bankruptcy court that a proposed or contemplated plan is not patently unconfirma-ble and has a realistic chance of being confirmed. In re 266 Washington Associates, 141 B.R. 275, 281 (Bankr.E.D.N.Y.), affd, 147 B.R. 827 (E.D.N.Y.1992); see also In re 499 W. Warren Street Associates, 151 B.R. 307, 310 (Bankr.N.D.N.Y.1992) (noting that “where a debtor submits a proposed plan before the lift stay hearing ... Timbers requires a determination that such plan is not ‘patently unconfirmable.’ ” (citations omitted)). The Debtors’ plan provides for payment of its ongoing expenses. However, in order to reorganize and to pay its debt to the UDC and to its unsecured creditors, it is asking that the creditors rely on what can only be called “pie in the sky” in the view of this Court. As noted by the court in In re Yeager, No. 02-35857, 2004 WL 422049 (Bankr.E.D.Pa. Feb.18, 2004), in the context of a chapter 13 case, “[a] plan dependent on an uncertain litigation outcome cannot be confirmed because it simply is not feasible .... Although a plan dependent for its success on a contingent source of income such as a litigation recovery ... is not per se defective, a plan proposed after multiple bankruptcy filings over a period of years must have a higher degree of certainty than the one proposed here.” Id. at 3. In the view of this Court, the same rationale is applicable in a chapter 11 case such as the one now before it. In addition, the Court notes the difficulty confronting the Debtors in obtaining the necessary affirmative vote of the class of unsecured creditors. Code § 1126(c) requires acceptance by creditors “that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by creditors ... that have accepted or rejected such plan.” 11 U.S.C. § 1126(c). In this case, the Debtors have identified unsecured claims 45of $3.533 million, exclusive of UDC’s deficiency claim of $5.742 million, based on a fair market value for Kennedy Plaza of $7.135 million and a total claim of $12.877 million. Combining the two, namely $3.533 million and $5.742 million, unsecured debt totals approximately $9.275 million. At 62% of Class 6, UDC controls the class for acceptance purposes and has indicated that it will not accept the proposed treatment. The Court’s preference is always to afford a debtor an opportunity to reorganize. However, in the opinion of this Court, the Debtors have not met then-burden of establishing that their reorganization is in prospect and that there is a reasonable possibility of success within a reasonable time. All that is a “certainty” are the monthly payments by HUD, which have not required any affirmative action on the part of the Debtors in their efforts to reorganize. The Court would be more inclined to find that there was a reasonable possibility of success had the Debtors already obtained a rent increase or been able to obtain refinancing without the need for decoupling. However, under the present circumstances, the Court concludes that it must grant the motion of UDC pursuant to Code § 362(d)(2). It is hereby ORDERED that the motion of UDC requesting relief from the automatic stay pursuant to Code § 362(d)(1) is denied; and it is further ORDERED that the motion of UDC requesting relief from the automatic stay pursuant to Code § 362(d)(2) is granted. . David White ("White”), who is employed by ESDC as Senior Asset Manager, testified that UDC is a subsidiary of ESDC. See Transcript of May 12, 2005 Hearing ("May 12th Tr.”) at 9. He testified that MLC administers the housing portfolios for which UDC is the mortgagee. Id. . Pursuant to Code § 362(e), the Court finds that the 30 day period set forth therein has been waived by virtue of the need for an evidentiary hearing and consensual adjournments of said hearing. . Since that date, UDC has loaned additional funds in connection with Kennedy Plaza and the parties have entered into various amended Notes and Consolidated Agreements. See UDC's Exhibits 2, 4-5 and 7-8. . Horwitz acknowledged that the Debtors stopped making regular monthly payments sometime in 1998 when a dispute concerning the distribution of certain settlement proceeds under the terms of an Amended Loan Restructuring Agreement ("Amended LRA”) arose, as will be discussed below. See June 2nd Tr. at 51-52. . The forbearance was extended from July 31, 1985 until July 31, 1995 under the terms of the LRA and to July 31, 2000 under the terms of the Amended LRA. . On August 5, 1985, SSA borrowed $2,173,809 from HUD, under its Flexible Subsidy Loan Program, to finance repairs on Kennedy Plaza resulting from the Sarabond damage. . Although SSH had requested that the case be transferred to New York, rather than having the case dismissed, that relief was denied by the Florida bankruptcy court. On appeal the Florida district court affirmed, pointing out that it would be inappropriate to transfer a case that had been found to have been filed *36in bad faith. See State Street Houses, 305 B.R. at 743. . White acknowledged that had the $2,173,809 in Settlement Proceeds been applied to the debt service, all arrearages owed by the Debtors would have been eliminated. See May 12th Tr. at 39. . According to the proof of claim filed on behalf of UDC, the total arrearages of principal and interest at the time the cases were filed totaled $4,541,228.04. See UDC’s Exhibits 10 and 11. . Florida Statute § 772.11 provides that ”[a]ny person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of §§ 812.012-812.037 ... has a cause of action for threefold the actual damages sustained ....” Florida Statute § 812.014 states that "[a] person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently; (a) [d]eprive the other person of a right to the property or a benefit from the property, (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” . Debtors objected to the use of the Horwitz Deposition, dated May 4, 2005, and identified as UDC's Exhibit 31. See Debtors' Objection, dated May 18, 2005. The Court has reviewed those objections and notes that the statements, on which it has relied and referenced in this decision were not objectionable to the Debtors. Therefore, the Court need not address any of the objections noted by the Debtors. . On August 18, 2005, the Debtors filed a motion seeking the appointment of Horwitz and the law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. as co-special counsel in connection with the “Civil Theft Claim.” The motion is currently scheduled to be heard on November 1, 2005. .Although the Debtors had not had an opportunity to respond to UDC's motion, they provided the Court with a copy of a draft response. See Attachment to Debtors' Post-Hearing Mem. of Law, filed July 20, 2005. . Horwitz explained that “the underlying interest reduction payment is separated from or decoupled from the debt and is used to support new financing in exchange for an agreement that the property will still be used for a period of time to provide affordable housing under the aegis of an agency such as DHCR.” Horwitz Deposition at 138. . On October 4, 2005, HUD filed its answer to the Debtors' complaint filed against UDC in this Court and asserted a counterclaim requesting that the Court direct UDC to turn over the Settlement Proceeds to HUD. . According to the operating report of the Debtors filed for July 2005 (Docket No. 295), $45,262.91 in taxes was paid to the City of Utica. . According to the Debtors' Disclosure Statement, they employ nine full-time employees and three part-time employees. See MLC/ UDC Exhibit 32 at 8. . In its decision, the Court denied UDC’s motion to dismiss the first and second causes of action of the complaint, seeking turnover of the Settlement Proceeds and an accounting, respectively, based on a finding that there was "a triable issue of fact as to whether UDC fraudulently induced the Debtors into signing the Amended LRA based upon the Debtors' belief that UDC would repay HUD immediately.” Id. at 560.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493884/	ORDER TOM R. CORNISH, Bankruptcy Judge. On this 8th day of March, 2006, this matter came on for trial on the Debtor’s Motion to Avoid Judicial Lien on Real Estate and the Objection thereto filed by the State of Oklahoma ex rel Board of Regents for the University of Oklahoma (“OU”). Debtor appeared pro se, and OU was represented by Richard Winblad. After hearing and reviewing the evidence and testimony presented by the parties, this Court does hereby enter its findings and conclusions in conformity with Rule 7052, Fed. R. Bankr.P., in this core proceeding. FINDINGS OF FACT Debtor commenced this Chapter 7 proceeding on October 1, 2005 and was discharged on January 25, 2006. In 1993, Debtor was accepted into OU’s College of Law and borrowed funds from OU to pay for her tuition and housing. Debtor withdrew from law school and defaulted on the loan. In 2004, OU filed an action in Cleveland County, State of Oklahoma, Case No. CS-03-1274, against Debtor to recover monies due on the student loan.1 Debtor claimed to have no notice of this lawsuit. OU supplied the Court with an affidavit of service which stated that Debtor was personally served with notice of OU’s lawsuit on May 21, 2004.2 A Journal Entry of Judgment was entered on July 1, 2004, in the amount of $2,268.45 plus interest, costs and attorney’s fees of $340.00. OU recorded its judgment with the Muskogee County Clerk, State of Oklahoma, on September 21, 2004. Debtor’s home is located in Muskogee County, Oklahoma. It is her principal residence. Her bankruptcy schedules indicate a value of $40,000 subject to a mortgage of $33,315.88. CONCLUSIONS OF LAW The Debtor filed her Motion to Avoid Judicial Lien pursuant to 11 U.S.C. § 522(f) which provides, in part: the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien .... Oklahoma has opted out of the federal exemption provisions, therefore, we look to Oklahoma law to determine whether Debt- or qualifies for an exemption before we consider whether OU’s judgment lien impairs that lien. Okla. Stat. tit. 31, § 1(a)(1) (West Supp.2006) provides for a homestead exemption for a debtor’s home if that home is the debtor’s principal residence. OU raises three primary defenses to Debtor’s motion. First, it argues that its hen should not be avoided because it does not impair an exemption. OU re100fers the Court to a brief filed on the issue of impairment of exemptions by judicial liens in another bankruptcy case in this district, In re Morgan, Case No. 05-70494. In that brief, the creditor argued that Oklahoma does not exempt homestead property from the attachment of judgment liens, therefore, a creditor’s judgment lien does not impair a debtor’s homestead exemption until a creditor attempts to execute on that lien. Although state law defines exempt property, federal law governs regarding lien avoidance. In re Strother, 328 B.R. 818, 821 (10th Cir. BAP 2005); Coats v. Ogg (In re Coats), 232 B.R. 209, 213 (10th Cir. BAP 1999). To the extent state law interferes with the “fresh start” policy underlying the lien avoidance provisions of § 522(f), federal law preempts it. Coats at 213. Accordingly, this Court must look to federal law, rather than state law, regarding impairment of exempt property. Under the Bankruptcy Code, a judicial lien may be avoided if it impairs the debtor’s exempt property pursuant to § 522(f). A judgment lien impairs a debt- or’s Oklahoma homestead exemption and can therefore be avoided under § 522(f) even though the state law prohibits the forced sale of the property. Coats at 212. Accordingly, OU’s judicial lien impairs Debtor’s homestead and can be avoided. Impairment of exempt property is further defined in § 522(f)(2)(A). A lien impairs an exemption to the extent that the sum of the lien, all other liens on the property and the amount of the exemption Debtor could claim if there were no liens on the property exceeds the value of Debtor’s interest in the property absent any liens. Applying the formula to this case as the court did in Coats, Debtor’s homestead exemption is impaired by OU’s judicial lien. Coats at 214. OU advances no alternative calculation or legal authority which supports its claim that its judicial lien does not impair Debtor’s homestead exemption, except to reiterate its position that Oklahoma does not exempt judgment liens. This Court declines to adopt another method for valuing impairment of exemptions. Secondly, OU argues that its lien should not be avoided because the underlying debt of a student loan is nondischargeable under § 523. Section 522(c) sets forth the general rule that exempt property will not be liable for pre-petition debts, but does include several exceptions to this rule, some of which are for nondischargeable debts under § 523. “The fact that Section 522(c) expressly excepts a few debts that are nondischargeable under Section 523, but makes no mention of the others, evidences Congressional intent to insulate exempt property from most non-dischargeable debts.” In re Vaughan, 311 B.R. 573, 579 (10th Cir. BAP 2004). Student loan debt is only excepted from § 522 if the debt was obtained through fraud. § 522(c)(4). OU has not suggested nor was any evidence presented to this Court which indicates that Debtor’s financial assistance was somehow fraudulently obtained. The fact that the underlying debt of student loans may not be dischargeable does not defeat the protection of exempt property from judicial liens of § 522. OU’s lien does not fall within one of the exceptions to § 522, therefore it may not be avoided on the grounds that the underlying debt may be nondischargeable. Finally, OU questions whether Debtor’s property qualifies for a homestead exemption. A debtor’s claimed homestead is presumed to be valid, and the objecting creditor bears the burden of producing evidence to rebut that presumption. In re Robinson, 295 B.R. 147 (10th Cir. BAP 2003). OU presented no evidence disputing this presumption, therefore its argument that she was not entitled 101to a homestead exemption fails. Debtor’s Muskogee residence is her homestead and qualifies as exempt property under Oklahoma law. OU’s due process argument is moot as the parties had the opportunity to conduct discovery, and were presented a full evi-dentiary hearing on Debtor’s Motion. IT IS THEREFORE ORDERED that Debtor’s Motion to Avoid Judicial Lien on Real Estate is granted. . The statute of limitations does not bar the suit of any governmental entity in its sovereign capacity to vindicate public rights. State ex rel. Schones v. Town of Canute, 1993 OK 90, 858 P.2d 436. . The Court is satisfied that proper service on Debtor was effected in the state court action.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493885/	ORDER DENYING WOODBURY FINANCIAL SERVICES, INC.’S MOTION FOR RULE 9011 SANCTIONS (Doc. No. 221) ALEXANDER L. PASKAY, Bankruptcy Judge. THIS CAUSE came on for hearing with notice on January 25, 2005, to consider *102Woodbury Financial Services, Inc.’s Motion For Rule 9011 Sanctions (Woodbury). (Doc. No. 221). Woodbury contends that 21st Century Communications, Inc. (the Debtor) violated Rule 9011 of the Federal Rules of Bankruptcy Procedure by including Woodbury in certain portions of the Debtor’s Amended Complaint for Violations of the Racketeer Influenced and Corrupt Organizations Act, the Florida Civil Remedies for Criminal Practices Act, the Federal Securities Exchange Act, the Florida Blue Sky laws, Fraudulent Misrepresentation, Fraud, and Negligent Supervision. (Doc. 130). In its Amended Complaint, the Debtor listed the defendants including Woodbury and then set up the term “participants” to refer to all of them. The Debtor made many allegations in its Amended Complaint by referring only to “participants.” Woodbury contends that these allegations are false and were made without reasonable investigation into the facts. Woodbury requests that this Court impose sanctions against the Debtor pursuant to F.R.B.P. 9011 and dismiss the Debtor’s Amended Complaint. This Court has considered the argument made by Woodbury and is satisfied that sanctions are not appropriate in this case. In order for sanctions to be imposed, Rule 9011 requires a finding by the court that a party made factual contentions to the court without factual support or reasonable belief there would be factual support. F.R.B.P. 9011(b)(3). In this case, no factual statement made by the Debtor in the Amended Complaint is untrue. The basic difficulty is that the Debt- or lumped together numerous defendants in its Amended Complaint without enough specificity. Therefore, this Court holds that no sanctions should be imposed on the Debtor pursuant to Rule 9011. However, this Court is also satisfied that the Debt- or’s Amended Complaint lacks the specificity necessary to identify the defendants to whom certain allegations apply. Therefore, this Court holds that the Debtor shall have thirty (30) days from the entry of this Order to amend its Complaint in order to clarify this lack of specificity. Accordingly, it is ORDERED, ADJUDGED AND DECREED that Woodbury Financial Services Inc.’s Motion for Rule 9011 Sanctions be, and the same is hereby, denied without prejudice. It is further ORDERED, ADJUDGED AND DECREED that 21st Century Inc.’s Amended Complaint be, and the same is hereby, dismissed and 21st Century shall have thirty (30) days from the date of this Order to amend its Complaint.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493886/	MEMORANDUM OPINION JOHN T. LANEY, III, Bankruptcy Judge. This case is back before the Court on remand from the United States District Court for the Middle District of Georgia by Order of the Honorable W. Louis Sands, Chief Judge. The case has been remanded to this Court for the sole purpose of determining the following two issues: (1) Whether Ayres Aviation Holdings, Inc. properly raised the legal issue of whether it was a “buyer in ordinary course of business”; and (2) Whether Ayres Aviation Holdings, Inc. was in fact a “buyer in ordinary course of business.” Like the subject matter of the appeal to the district court, these issues pertain solely to a determination of the ownership and/or lien interests in General Electric aircraft engine serial number GE-E-685998 (hereinafter, the “998 engine”). PROCEDURAL HISTORY On November 27, 2000, Ayres Aviation Holdings, Inc., Ayres Corporation, and the Fred P. Ayres Company, Inc. filed for Chapter 11 protection under the United States Bankruptcy Code. These cases were consolidated for joint administration by order dated November 27, 2000. On February 8, 2001, First National Bank of South Georgia (hereinafter, “First National”) filed this adversary proceeding in the case of Ayres Aviation Holdings, Inc. (hereinafter, “Debtor”). In its complaint, First National asked that the Court determine the validity, priority, and extent of liens and interests in two General Electric aircraft engines, which secured credit extended by First National to Debtor. The engines were installed on an aircraft in Debtor’s possession. Debtor, Ayres Aviation Holdings, Inc., Zlatava Davidova, Trustee of LET, a.s. (hereinafter, “LET”), and GATX Capital Corporation (hereinafter, “GATX”) were named as defendants in the original complaint. General Electric Company (hereinafter, “GE”) was later added. In its answer, Debtor asserted cross-claims and counterclaims and sought determination of the interests in the L610 aircraft as well as the two GE engines. On August 7, 2002, this Court conducted a trial on First National’s complaint and on the cross-claims and counterclaims of Debtor. On August 21, 2002, the Court entered its memorandum opinion and order. The Court held that Zlatava Davido-va, Trustee for LET, did not carry her burden to prove substantive Czech Republic law on the issues before the Court and ruled as follows: (1) GE was the title owner of the 998 engine, free and clear of any interests of Debtor, GATX, Zlatava Davidova as Trustee for LET, or First National; (2) The bill of sale between LET, a.s. and Debtor transferred ownership in the 002 engine to Debtor and, therefore, First National had a valid and perfected security interest in the 002 en107gine; (3) The bill of sale transferred ownership of the L610 aircraft to Debtor and the aircraft was, consequently, part of Debtor’s bankruptcy estate; and (4) GATX’s motion for relief from stay was denied. On October 11, 2002, the Court held a hearing on the motion of Zlatava Davidova, Trustee for LET, to reconsider the Court’s August 21, 2002 Memorandum Opinion and Order. The Court issued a final memorandum opinion and order on November 4, 2002 in which the Court held: (1) The bill of sale between LET and Debtor did not transfer ownership in the L610 aircraft to Debtor; therefore, the aircraft was not part of Debtor’s bankruptcy estate; (2) GE was the title owner of the 998 engine free and clear of any claims of interest asserted by Debtor, Zlatava Davidova, Trustee for LET, GATX, or First National; (3) The bill of sale between LET, a.s. and Debtor did transfer ownership of the 002 engine to Debtor; therefore, Debtor’s pledge of the engine as security for First National’s extension of credit was valid. Consequently, First National held a valid perfected security interest; and (4) The motion of GATX for relief from stay was denied. Debtor filed a notice of appeal on November 14, 2002. On November 25, 2002, Zlatava Davidova, on behalf of LET, filed notice of cross-appeal. On March 30, 2004, the district court entered an order vacating this Court’s November 4, 2002 decision and directed the Court to reconsider First National’s complaint in light of additional Czech Republic law presented on appeal. On July 7, 2004, the Court held a hearing in accordance with the order of the district court. At the hearing, Debtor, LET, and First National announced a settlement; GE was not a party to the settlement, however. The Court approved the proposed settlement on November 10, 2004. The settlement decreed that Debtor had ownership of the L610 aircraft free and clear of other liens or interests except for the lien of First National on the 002 engine. In light of the settlement, the district court “denied as moot as to the L610 aircraft and 002 engine,” the appeal of Debtor and LET, of the order entered by this Court on November 4, 2002. The only issue considered by the district court on appeal was the ownership and lien status of the 998 engine. On that issue, the district court held that a bailment agreement existed between GE and LET and that at no time did GE expressly or impliedly consent to LET’s transfer of the 998 engine. The district court noted, however, Debtor’s citation of Official Code of Georgia Annotated (hereinafter, “O.C.G.A.”) § 11-1-201(9) to support its argument that Debtor was a “buyer in ordinary course of business.” The district court stated that it could not rule on the issue of “buyer in ordinary course of business” since the issue was neither developed in the record of this Court nor explicitly considered by this Court in reaching its conclusion. The issue of whether Debtor was a buyer in ordinary course of business was remanded to this Court for consideration and ruling assuming this Court determines the issue was timely raised by Debtor. FINDINGS OF FACT The following facts are limited to those pertinent to the issues currently before the Court. In or about September 1998, Debtor acquired approximately ninety-three percent (93%) of the outstanding equity interests in LET a legal entity organized under the laws of the Czech Republic. Fred P. Ayres is the sole shareholder and director 108of a corporation known as Ayres Corporation. Fred P. Ayres was a director of Debtor Ayres Aviation Holdings, Inc., but was not involved in the daily operations of the company. On or about May 19, 2000, Fred P. Ayres executed in the name of LET Aeronautical Works a bill of sale intended to convey to Debtor an L610 aircraft (Serial No. 0301) manufactured by LET. The L610 was equipped with two General Electric engines, serial numbers GE-E-685998 (hereinafter, the “998 engine”) and GE-E-685002 (hereinafter, the “002 engine”). The L610 and its two engines were located in the United States at the time the bill of sale was executed and delivered. Debtor actually took delivery of the L610 aircraft during the summer of 1999, prior to the execution and delivery of the bill of sale. After taking control of the L610, Debtor repainted the aircraft, renamed the aircraft the Ayres 7000, and took the aircraft on a worldwide tour with stops in such places as Dubai, Bahrain, Oman, Singapore, Arizona, Las Vegas, Miami, Virginia, Thunder Bay, Canada, Brazil, and Peru. Debtor provided the funds necessary to take the L610 on tour and funded efforts to market the aircraft worldwide. The marketing expenses totaled approximately $500,000. Fred P. Ayres determined the value of the L610 at the time of transfer to be one million dollars ($1,000,000 USD). Mr. Ayres arrived at the value using the values of the engines, the propellers, and the avionics since the aircraft was not yet certified in the United States. Debtor paid for the L610 aircraft by “transferring avionics” to LET both before and after the transfer of the L610 aircraft and both before and after the bill of sale was executed and delivered. Debtor Ayres Aviation served as “the buyer[] of all the avionics for LET and shipped [the avionics to LET].” LET had no buying power in Europe but needed to purchase U.S. avionics systems with which to replace the Russian systems that had been installed in the aircraft LET manufactured. The value of avionics transferred from Debtor to LET totaled $1.2 million. Debtor transferred the avionics to LET “without charge.” Debtor and LET agreed that in exchange for the transfer of the L610 aircraft and the two GE engines, LET would not have to repay Debtor the cost of the avionics or the marketing expense incurred by Debtor. Fred P. Ayres discussed with Turner Bostwick, director general for LET following the acquisition of LET by Debtor, that the L610 aircraft was being transferred to Debtor Ayres Aviation in return for “continuing considerations of the avionics” that Debtor was sending to LET. No written agreement existed declaring that the L610 aircraft and its two engines would be transferred in exchange for the forgiveness of debt owed, but such an exchange was the admitted nature of the transaction. LET never paid Debtor for the avionics it received or for the expenses associated with marketing the L610 aircraft. DISCUSSION AND CONCLUSIONS OF LAW As mentioned above, two issues are currently before the Court: first, whether Debtor properly raised the issue of whether it was a buyer in ordinary course of business; and second, if the issue was properly raised, whether Debtor was a buyer in ordinary course of business. I. Whether Debtor Ayres Aviation Holdings, Inc. properly raised the issue of whether it was a “buyer in ordinary course of business” The parties are in agreement that the issue of whether Debtor was a buyer in 109ordinary course of business is tied directly to the issue of whether GE negligently entrusted the 998 engine to a merchant LET who deals in goods of that kind and in so doing gave LET the right to transfer all rights of the entruster, GE, to a buyer in ordinary course of business. GE concedes that the issue of negligent entrustment was raised in the pre-trial order but that it was raised by GATX, a former party to the adversary proceeding that withdrew before trial. Upon GATX’s withdrawal, the Court struck the responsive pleadings filed by GATX. GE contends that it is arguable that GATX’s portion of the pre-trial order that addressed negligent entrustment was struck with the responsive pleadings. GE submits, however, that the concept was at least argued prior to the Court’s issuing its August 2002 opinion and, therefore, the issue was probably properly raised. Debtor by way of arguing that the issue of whether it was a buyer in ordinary course of business was properly raised in this Court, likewise points to argument made on the issue during the trial. Both parties having conceded that the issue was at least raised and the Court, recognizing that argument on the issue was made at trial, concludes that the issue of whether Debtor was a buyer in ordinary course of business was indeed properly raised by Debtor before this Court. II. Whether Debtor Ayres Aviation Holdings, Inc. was a buyer in ordinary course of business of General Electric engine 998 The Court having held above that Debt- or properly raised at trial the issue of whether it was a buyer in the ordinary course of business submits that the Court considered the arguments of Debtor on the issue but was not persuaded. The issue would have been a most fundamental barrier to the Court’s opinion issued November 4, 2002. Despite the fact that the Court could not have concluded the way that it did unless it found in the process of its careful consideration that Debtor was not a buyer in the ordinary course of business, the Court will now, for the benefit of the parties and at the direction of the district court, provide an analysis of the issue. A. O.C.G.A. §§ 11-2-403(2) and 11-1-201(9) The transaction at issue is the transfer of the L610 aircraft and its two General Electric engines (engines 002 and 998) from LET to Debtor. It is the task of the Court to determine whether O.C.G.A. § 11-2-403(2) is implicated so as to extinguish the ownership rights of General Electric in engine 998 upon transfer of the engine and L610 aircraft to Debtor. Section 11-2-403(2) provides: “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.” Debtor urges the Court to hold that Debtor was in fact a buyer in ordinary course so as to trigger the operation of O.C.G.A. § 11-2-403(2). Should the Court hold as much, then under O.C.G.A. § 11-2-403(2), Debtor would have taken engine 998 free and clear of the legal and equitable interests of General Electric. Rather than considering each of the elements of Section 11-2-403(2), the Court has only been instructed to decide whether Debtor Ayres Aviation was a “buyer in ordinary course” as is in part required by that section. The Georgia Commercial Code defines “buyer in ordinary course of business” at O.C.G.A. § 11-1-201(9). That code section provides: 110(9) “Buyer in ordinary course of business” means a person that buys goods in good faith without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller’s own usual or customary practices. A person that sells oil, gas, or other minerals at the wellhead or mine-head is a person in the business of selling goods of that kind. A buyer in the ordinary course of business may buy for cash, by exchange of other property, or on secured or unsecured credit and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that takes possession of the goods or has a right to recover the goods from the seller under Article 2 of this title may be a buyer in ordinary course of business. A person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt is not a buyer in ordinary course of business. This Court stated in In re Palmer that O.C.G.A. § 11-1-201(9) requires that a buyer in the ordinary course of business: (1) purchase in good faith; (2) purchase without knowledge that the sale to him is in violation of any security agreement; and (3) purchase goods in the ordinary course from a person in the business of selling goods of that kind. In addition, however, Section 11-1-201(9) also declares what is not a buyer in the ordinary course of business. The last sentence of the Section reads: “A person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt is not a buyer in ordinary course of business.” The Eleventh Circuit Court of Appeals considered this portion of O.C.G.A. § 11-1-201(9) in Sterling National Bank & Trust Co. of New York v. Southwire Co. In that case, Sterling National Bank (hereinafter “Sterling National”) advanced Metric International, Inc. (hereinafter, “Metric”), a metals dealer, nearly $4 million along with making other periodic advances of funds. Sterling National took a broad security interest in the metals Metric dealt. In a supplement to the financing agreement, Metric agreed that “[E]xcept for sales in the regular course of business, we shall not sell ... any collateral without [Sterling National’s] prior written consent.” Metric had a “tolling” or “conversion” contract with Southwire Co. (hereinafter, “Southwire”), which purchased and sold copper scrap and copper cathode, and itself processed and converted copper scrap into copper cathode. The tolling contract required that Metric deliver 200,000 pounds of copper scrap to Southwire each month and pay 10.5 cents per pound to Southwire for conversion of the scrap into cathode. In exchange, Metric could draw a proportionate amount of cathode for sale to its customers. At the end of May 1978, Southwire held 476.000 pounds of surplus cathode belonging to Metric, but Metric owed Southwire approximately $175,000 in conversion charges, a preexisting debt. In order for Metric to secure release of cathode to one of its customers, Metric had to transfer 265.000 pounds of cathode at 66.2 cents per pound to Southwire. The transfer was in payment of the conversion charges. Southwire then released 200,000 pounds of cathode to Metric’s customer. Subsequent to the transfer of cathode, Metric filed for bankruptcy. Sterling Na111tional contacted Southwire to verify that it held nearly 3 million pounds of cathode belonging to Metric. Southwire reported that it only held approximately 12,000 pounds. Sterling National sued Southwire for converting the cathode transferred to it by Metric. The district court granted summary judgment in favor of Sterling National. Southwire appealed. The Eleventh Circuit determined that “sale in the regular course of business,” as used in the financing agreement between Metric and Southwire, did not require that Southwire be a “buyer in ordinary course” as defined in the Georgia Commercial Code. The court did, however, state in dicta that Southwire, under O.C.G.A. § 11-1-201(9), would “not [be] a ‘buyer in the ordinary course of business,’ because the transfer was in satisfaction of a debt.” In the end, the Eleventh Circuit affirmed the district court’s ruling that after an examination of the transfer it was clear that the setoff was not a sale in Metric’s regular course of business. The United States Bankruptcy Court for the Middle District of Alabama reasoned likewise in the case of Ford Motor Credit Co. v. Dothan Lincoln-Mercury Co., Inc. In that case, two individuals had loaned the debtor car dealership $100,000. One of the individuals requested that the dealership order him a new automobile and the parties agreed that the debtor dealership would accept as payment for the vehicle a reduction in the $100,000 debt it owed. The lender never took delivery of the vehicle. Instead, the dealership delivered the vehicle to its attorney to secure payment of attorneys fees. The attorney demanded payment of $5,000 from the lender and upon payment released the vehicle to the lender. The lender thereafter, gave the debtor a $15,000 credit on the debt it owed. The sole issue in the case was whether the lender was a “buyer in ordinary course of business.” If the lender was a buyer in ordinary course, then he would take free and clear of the security interest of the inventory creditor of the debtor, Ford Motor Credit. Although the bankruptcy court recognized that the lender “bought” the vehicle in good faith and without knowledge that the sale to him violated the ownership rights of Ford Motor Credit, the court nonetheless ruled that the lender was not a buyer in ordinary course of business since the vehicle was “paid for in large part by a reduction of the debt, which was owed to him by the debtor.” The court stated in its holding, “This takes [the lender] out of the category of ‘buyer in ordinary course of business’ and makes his rights to the vehicle subject to the rights of Ford Motor Credit.” The court relied on the plain meaning of the last sentence of Alabama U.C.C. Section 7-1-201(9), which is almost identical to the last sentence of O.C.G.A. § 11-1-201(9). The Alabama statute provides: “ ‘Buying’ ... does not include a transfer in bulk or as security for or in total or partial satisfaction of money debt.” B. Fractionalizing and Plain Meaning Section 11-1-201(9) of the O.C.G.A. is clear on its face. Some courts have held that when applying the last sentence of this provision of the U.C.C. courts should “fractionalize” the transfer, labeling the transferee a buyer in ordinary course as to the extent of the purchase price that is not in satisfaction of a money debt, but not a buyer in ordinary course to the extent the transferee paid for the transferred goods with the satisfaction of a money debt. Agreeing with the bankruptcy court in Do than Lincoln-Mercury Co., this Court believes such application of Section 11 — 1— 201(9) would be an improper “judicial 112amendment of clearly worded statutory language.” Section 11-1-201(9) simply does not allow for fractionalizing. Either a buyer is a buyer in ordinary course of business or a buyer is not; the statute simply doesn’t allow for the judicial parsing of a transfer. Further, such application of the statute is consistent with the approach of the Eleventh Circuit Court of Appeals in Sterling National Bank explained above. In oral argument, counsel for Debtor Ayres Aviation cited General Electric Credit Corp. v. R.A. Heintz Construction Co. for the proposition that where any portion of the purchase price is not in satisfaction of a money debt, then the cash payments render the purchaser a buyer in ordinary course of business as to the entire transfer. The Heintz case concerned the rights of the parties in four pieces of heavy machinery. The United States District Court for the District of Oregon, applying interpretations of a similar provision in the Uniform Trust Receipts Act, held “[i]t would be completely inconsistent with the announced policy to penalize a purchaser who qualified as a ‘buyer in the ordinary course of business,’ by ‘fractionalizing’ the entire transaction and making the sale part good and part bad.” It must be noted when considering the decision in Heintz that the transaction involved four individual pieces of machinery and that both cash and forgiveness of debt were paid for the machinery. Not only is the holding in Heintz inconsistent with the Eleventh Circuit Court of Appeals’ interpretation of the commercial code provision at issue, but it also concerns facts wholly different from the facts before the Court in this case. It was the sworn testimony of Fred P. Ayres that the L610 aircraft and its two General Electric engines were paid for fully with the satisfaction of a money debt owed to Debtor Ayres Aviation by LET. Not even a portion of the sale price for the aircraft was paid in cash. Not only is this case distinct from Heintz, the Court cannot find authorization for such a holding in the statute. The Court will not, therefore, follow the ruling in Heintz. C. Application In the case at bar, it is clear to the Court that the last sentence of O.C.G.A. § 11-1-201(9) is outcome determinative. Although counsel for Debtor concludes in its brief to the Court that Debtor was clearly a “buyer in ordinary course,” counsel failed to include in its recital of Section 11-1-201(9) that a buyer in ordinary course of business is not “[a] person that acquires goods in a transfer ... in total or partial satisfaction of a money debt .... ” The Court cannot so easily ignore that portion of the definition. In applying Section 11-1-201(9), the Court looks first to the testimony of Debt- or’s principal, Fred P. Ayres, given at the August 7, 2002 trial before this Court. In his testimony, Mr. Ayres explained how after Debtor purchased ninety-three percent (93%) of LET in or about September 1998, Debtor served as “the buyer[ ] of all the avionics for LET and shipped [the avionics to LET].” Mr. Ayres stated that Debtor transferred the avionics to LET “without charge.” The value of the avionics transferred, according to Mr. Ayres, totaled $1.2 million. It was also Mr. Ayres’ testimony that during the summer of 1999, Debtor took delivery from LET of an L610 aircraft equipped with two General Electric engines. The value of the aircraft and its two engines was determined by Mr. Ayres to be $1 million at the time of transfer. After taking delivery, Mr. Ayres stated, Debtor repainted the L610, renamed it the Ayres 7000, and took the aircraft on a *113worldwide marketing tour. Debtor incurred costs totaling nearly $500,000 in marketing the aircraft. Debtor was never paid by LET for these marketing expenses. A bill of sale for the transfer of the L610 was not executed and delivered until May 19, 2000. Mr. Ayres explained to the Court that even though no written agreement existed declaring as much, Debtor agreed that, in exchange for the transfer of the L610 aircraft, LET would not have to repay Debt- or the cost of the avionics or the cost of marketing the L610. Mr. Ayres testified that Debtor paid for the L610 aircraft by “transferring avionics” to LET both before and after the transfer of the L610 aircraft. It is clear to the Court that prior to the transfer of the L610 aircraft and its two engines from LET to Debtor, whether that transfer occurred when Debtor took actual possession of the aircraft in the summer of 1999 or when the bill of sale was executed in May of 2000, Debtor was owed a monetary debt for avionics purchased by Debtor and shipped to LET. The amount of the monetary debt owed by LET would vary depending on whether the transfer is deemed to have occurred when Debtor took actual possession of the L610 in the summer of 1999 or when the bill of sale was executed and delivered in May of 2000. In previous proceedings, it appeared to be the understanding of the parties that the transfer occurred at the time the bill of sale was executed and delivered, but such a determination is not necessary for the Court to reach a conclusion on the issue before the Court today. The evidence is that a monetary debt owed to Debtor existed before the L610 was transferred and that Debtor paid for the aircraft with the satisfaction of that debt. It being the sworn and unrefuted testimony of Fred P. Ayres that Debtor accepted the aircraft and its two engines in exchange for the forgiveness of debt owed by LET to Debtor, the Court can come to no other conclusion than that Debtor was not a buyer in ordinary course of business of the General Electric engine 998. It is unnecessary for the Court to consider whether Fred P. Ayres and Debtor had “knowledge that the sale violat[ed] the rights of another person in the goods ....” as is heavily briefed and argued by counsel for Debtor. Debtor cites the case of Hanington v. Palmer where this Court held that the special relationship of a purchaser to a seller does not necessarily itself preclude the purchaser from being a buyer in ordinary course. The Court’s holding in the instant case is not impacted by the special relationship Fred P. Ayres had at the time of the transfer with both LET as transferor and Debtor as transferee. The Court’s holding rests solely on the application of O.C.G.A. § 11-1-201(9) to the evidence that the L610 aircraft was paid for with the total or partial satisfaction of a money debt. CONCLUSION It is for the reasons stated that the Court clarifies its decision of November 4, 2002 and now holds that the issue of whether Debtor Ayres Aviation was a buyer in ordinary course of business was properly raised before this Court and that Debtor Ayres Aviation was not a buyer in ordinary course of business of General Electric engine 998 so as to extinguish the ownership rights of General Electric in said engine. General Electric, therefore, holds and maintains all rights of ownership and possession in GE engine 998.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493887/	ORDER DENYING REQUEST FOR HEARING TO BAR ENTRY OF DISCHARGE AND DIRECTING THE CLERK OF THE COURT TO ENTER DISCHARGE S. MARTIN TEEL, JR., Bankruptcy Judge. On January 24, 2006, the court entered its Order and Notice re Opportunity to Request Hearing under 11 U.S.C. Section 727(a)(12) to Bar Entry of Discharge (D.E. No. 17), which gave notice to any party in interest to the debtor’s case that a request for a hearing to consider barring the entry of the debtor’s discharge needed to be filed within twenty-one days of the entry of the court’s order. The court has received one such request from the debtor’s landlord. Consequently, the court must decide whether a hearing is necessary based on the substance of the request before it can enter a valid discharge pursuant to 11 U.S.C. § 727.1 The court concludes that the landlord’s request should be denied. Section 727 of the Bankruptcy Code provides that (a) The court shall grant the debtor a discharge, unless- (12) the court after notice and a hearing held not more than 10 days before the date of the entry of the order granting the discharge finds that there is reasonable cause to believe that- (A) section 522(q)(l) may be applicable to the debtor; and (B) there is pending any proceeding in which the debtor may be found guilty of a felony of the 115kind described in section 522(q)(l)(A) or liable for a debt of the kind described in section 522(q)(l)(B). 11 U.S.C. § 727(a)(12) (emphasis added). Section 522(q)(l) of the Bankruptcy Code, in turn, provides that (q)(l) As a result of electing under subsection (b)(3)(A) to exempt property under State or local law, a debtor may not exempt any amount of an interest in property described in subparagraphs (A), (B), (C) and (D) of subsection (p)(l) which exceeds in the aggregate $125,000 if- (A) the court determines, after notice and a hearing, that the debtor has been convicted of a felony (as defined in section 3156 of title 18), which under the circumstances, demonstrates that the filing of the case was an abuse of the provisions of this title; or (B) the debtor owes a debt arising from- (i) any violation of the Federal securities laws (as defined in section 3(a)(47) of the Securities Exchange Act of 1934), any State securities laws, or any regulation or order issued under Federal securities laws or State securities laws; (ii) fraud, deceit, or manipulation in a fiduciary capacity or in connection with the purchase or sale of any security registered under section 12 or 15(d) of the Securities Exchange Act of 1934 or under section 6 of the Securities Act of 1933; (in) any civil remedy under section 1964 of title 18; or (iv) any criminal act, intentional tort, or willful or reckless misconduct that caused serious physical injury or death to another individual in the preceding 5 years. 11 U.S.C. § 522(q)(l) (emphasis added). It would strain the faculties of the layperson and the lawyer alike to try to understand why Congress linked these statutes together in the manner provided by § 727(a)(12).2 Nevertheless, the gist of the provision is that a debtor will not receive a discharge if (1) the debtor is subject to § 522(q)(l) (i.e., has elected to exempt property under state or local law rather than under the federal exemptions contained in § 522(d)) and (2) the debtor has (a) been convicted of a type of felony that suggests that her bankruptcy filing is abusive, (b) violated certain federal securities laws, or (c) engaged in criminal, intentional, or reckless misconduct leading to 116the serious physical injury or death of another person in the previous five years. The debtor in this case has elected to use the federal exemptions provided by § 522(d) rather than the applicable state or local exemptions. Consequently, she is not subject to § 522(q)(l) and, by extension, § 727(a)(12). The debtor’s landlord’s request that the court bar the entry of the discharge pursuant to that same provision must fail. For that reason, it is ORDERED that the sole request for a hearing to bar entry of the discharge filed in this case (D.E. No. 19) is DENIED; and it is further ORDERED that the clerk of the court enter a discharge of the debtor’s debts pursuant to 11 U.S.C. § 727 upon the entry of this order. . The court erroneously entered an order discharging the debtor without having considered the landlord's request on February 28, 2006 (D.E. No. 20). That order was vacated by the court on March 7, 2006. . The House Report preceding the passage of § 330 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8 (2005), states that § 727(a)(12) was designed to require the court to withhold the entry of a debtor's discharge order if the court, after notice and a hearing, finds that there is reasonable cause to believe that there is a pending proceeding in which the debtor may be found guilty of a felony of the kind described in Bankruptcy Code section 522(q)(l) or liable for a debt of the kind described in Bankruptcy Code section 522(q)(2). H.R.Rep. No. 31, 109th Cong., 1st Sess. 330 (2005), U.S.Code Cong. & Admin.News 2005, pp. 88, 150. This language explains the existence of § 727(a)(12)(B), but it does not account for § 727(a)(12)(A), which sets forth the threshold requirement that the debtor elect to use state or local exemptions rather than the exemptions provided by § 522(d). Without any legislative history suggesting an alternative meaning for this provision, the court must interpret sub-section (A) according to its plain meaning.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493888/	MEMORANDUM OPINION M. Bruce McCullough, Bankruptcy Judge. AND NOW, this 8th day of May, 2006, upon consideration of (a) the complaint filed by the IUE-CWA Pension Fund, et al. (hereafter “the Pension Fund”), against Joseph Piccirilli (hereafter “Piccirilli”), which complaint was filed first in the United States District Court for the District of New Jersey and then removed to this Court by Pittsburgh Brewing Company, Inc., the instant debtor (hereafter “the Debtor”), (b) the motion by the Pension Fund for remand of its action against Pic-cirilli (hereafter “the Pension Fund’s Action”), and (c) the response to, and reply in support of, the aforesaid remand motion, as well as the exhibits submitted by the parties in support of their respective positions; and subsequent to notice and a hearing on the Pension Fund’s remand motion held on May 4, 2006, it is hereby determined that the Court shall issue an order granting the Pension Fund’s remand motion and, accordingly, remanding the Pension Fund’s Action to the United States District Court for the District of New Jersey. The Court determines that it must so remand the Pension Fund’s Action, which action is nothing more than an action against Piccirilli for an alleged breach by him of a settlement agreement to which he made himself a party, because the Court holds, in turn, that it lacks subject matter jurisdiction over such action. The Court so holds for the reasons set forth below. The Court possesses subject matter jurisdiction over the Pension Fund’s Action only if such action is related to the Debtor’s bankruptcy within the meaning of 28 U.S.C. § 1334(b), that is if “ ‘the outcome of that proceeding could conceivably have any effect on the [Debtor’s] estate being administered in bankruptcy.’ ” Halper v. Halper, 164 F.3d 830, 837 (3rd Cir. 1999) (quoting Pacor v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984)). The Debtor and Piccirilli, who is an officer of the Debtor, contend that the Pension Fund’s Action could conceivably have an effect on the Debtor’s bankruptcy estate because, they argue in turn, if such action is resolved adversely to Piccirilli, then Piccirilli will obtain, as a consequence thereof, a claim back against the Debtor, either by virtue of indemnification or contribution/ subrogation.1 The Debtor and Piccirilli ground Piecirilli’s potential indemnification claim upon Article VII, § 6 of the Debtor’s bylaws, which provision provides that the Debtor “shall indemnify its officers, directors, employees and agents to the full extent permitted by the General Corporation Law of Delaware” (hereafter “the Indemnification Provision”). In determining whether the Court possesses subject matter jurisdiction over the Pension Fund’s Action by virtue of the Indemnification Provision, the Third Circuit 211instructs] us to ask two questions. First, is the debtor’s liability automatically triggered when the purported related action against the party seeking indemnification is begun? Second, is a later lawsuit against the debtor, after the resolution of the action not involving the debtor, a prerequisite to a finding of indemnification? If the answer to the first question is no or the answer to the second is yes, “related to” jurisdiction does not exist. Steel Workers Pension Trust v. Citigroup, Inc., 295 B.R. 747, 753 (E.D.Pa.2003) (distilling the Third Circuit’s pronouncements on subject matter jurisdiction as set forth in Pacor and In re Federal-Mogul Global, Inc., 300 F.3d 368 (3rd Cir.2002)). Unfortunately for the Debtor and Piecirilli, the Court holds, under the best case scenario for such litigants, that the Debtor’s liability to Piecirilli via the Indemnification Provision will not have been triggered automatically by the institution of the Pension Fund’s Action, and litigation subsequent to an adverse resolution of such action will be necessary before a determination can be made that there exists such liability on the Debtor’s part. The Court so holds because the Court concludes, in turn, that the Indemnification Provision serves to provide Piecirilli with only qualified, that is not absolute, indemnification. The last conclusion follows given that (a) the Indemnification Provision provides for indemnification, by its very terms, to the full extent permitted by applicable Delaware law, and (b) applicable Delaware law only allows a corporation to indemnify one of its officers (i) against expenses, judgments, etc. incurred by such officer in connection with a pending action to which such officer is made a party “by reason of the fact that the person is or was a[n] ... officer ... of the corporation,” Del.Code. Ann. tit. 8, § 145(a) (2006) (emphasis added), and (ii) “if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation,” Id. (emphasis added). The Court holds, furthermore, that the foregoing best case scenario cannot even materialize for the Debt- or and Piecirilli — although such best case scenario is, of course, of little utility itself for jurisdictional purposes — given that (a) the Pension Fund, in the Pension Fund’s Action, sues Piecirilli not by reason of the fact that he is an officer of the Debtor but rather by virtue of his simply having allegedly breached a contract to which he made himself a party, see Cochran v. Stifel Financial Corporation, 2000 WL 1847676 at 5-8 & n. 23 (Del.Ch.2000), aff'd in part, rev’d in part, 809 A.2d 555 (Del.2002) (citing, inter alia at n. 23, Tilden of New Jersey, Inc. v. Regency Leasing Systems, Inc., 237 A.D.2d 431, 655 N.Y.S.2d 962 (N.Y.App.Div.1997), wherein the Tilden court held that, “[ijnasmuch as the action against the defendant ... is based upon a personal guaranty, the action is not brought against him ‘by reason of the fact that he ... was a director or officer of the corporation’ within the meaning of that phrase as employed in [the New York indemnification statute, which is similar to Del.Code. Ann. tit. 8, § 145(a)]”) (relevant portion of lower ct. Cochran opinion remains good law, see higher ct. Cochran decision at headnote 9), and (b) the institution of the Pension Fund’s Action, thus, can never, let alone automatically, trigger liability on the Debtor’s part to Piecirilli via the Indemnification Provision. Consequently, an indemnification claim by Piecirilli against the Debtor as a result of the Pension Fund’s Action cannot serve as a basis upon which the Court can exercise subject matter jurisdiction over such action. 212As for the argument that the Pension Fund’s Action could conceivably have an effect on the Debtor’s bankruptcy estate by ultimately causing Piccirilli to bring a claim against the Debtor for common law contribution/subrogation, the Court rejects such argument. The Court so rules (a) because, as a matter of law, a claim for common law contribution/subro-gation cannot conceivably affect a bankruptcy estate until after the party seeking contribution/subrogation has suffered, and then satisfied, an adverse judgment, see In re North American Refractories Company, 280 B.R. 356, 361-62 (Bankr.W.D.Pa. 2002); see also Federal-Mogul, 300 F.3d at 382 (“related to” subject matter jurisdiction exists only if “the allegedly related lawsuit would affect the bankruptcy proceeding without the intervention of another — even a third-party — lawsuit”); 46 P.L.E.2d Subrogation §§ 1-5 (Bender 2005) (“A prerequisite to the enforcement of a right of subrogation is the payment of the subrogor’s claim;” same with respect to the right of contribution, that is one must have “paid more than his or her proper share of the joint liability to force” contribution), and (b) given that Piccirilli has not yet suffered an adverse judgment in the Pension Fund’s Action, let alone satisfied such judgment. In light of all of the foregoing, the Court determines that it shall issue an order that grants the Pension Fund’s remand motion and, accordingly, remands the Pension Fund’s Action to the United States District Court for the District of New Jersey. . The Debtor and Piccirilli advance several other arguments in support of their position that the Court possesses subject matter jurisdiction over the Pension Fund's Action, each of which are summarily rejected by the Court.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493890/	MEMORANDUM-OPINION THOMAS H. FULTON, Bankruptcy Judge. THIS ADVERSARY PROCEEDING is before the Court after the conclusion of a trial on the merits of the cause of action brought by Plaintiff against Defendant under 11 U.S.C. §§ 523(a)(5), 523(a)(15) and 727(a)(2)(A). For the reasons set forth below, the Court determines that Defendant is entitled to a discharge and that the indebtedness of the Defendant to Plaintiff is dischargeable. By virtue of 28 U.S.C. § 157(b)(2)(I) this is a core proceeding. The following constitutes the Court’s Findings of Fact and Conclusions of Law pursuant to Fed. R. Bankr.P. 7052. FINDINGS OF FACT Plaintiff and Defendant divorced on April 7, 2003. Their Separation Agreement and Property Settlement (the “Settlement Agreement”) provided, among other things, that Defendant was to receive the couple’s 2001 Harley-Davidson motorcycle (the “Motorcycle”) and be responsible for payment of the indebtedness secured by the Motorcycle. Defendant made sporadic payments on the Motorcycle debt, but ultimately could not keep up with the payments. Plaintiff had to bring Defendant before the Graves Circuit Court “on several occasions” because Defendant had fallen behind on payments on the Motorcycle. At one of those hearings, Defendant allegedly taunted Plaintiff by saying that he would “ride it all summer, and then he would let it go back....”1 Defendant testified, credibly, that he explored the possibility of selling the Motorcycle but found that he could not sell it for enough money to repay the debt. He also testified that he offered to let Plaintiff have to Motorcycle to sell, although Plaintiff denies that Defendant made such an offer. Defendant also testified, credibly, that he cooperated with the repossession agent who came to his house to pick up the Motorcycle. When informed by the repossession agent that the agent had come to repossess the Motorcycle, Defendant stated: “I raised the garage door for him and he backed it out and loaded it up.” The Motorcycle was repossessed in August of 2004, leaving a deficiency balance that now amounts to approximately $8,000.00, for which Plaintiff is also liable. Defendant filed his bankruptcy petition on March 16, 2005. Plaintiff then filed this Adversary Proceeding claiming that the deficiency balance on the Motorcycle should be declared a non-dischargeable debt of Defendant to her under 11 U.S.C. § 523(a)(5) or, alternatively, 11 U.S.C. § 523(a)(15). Plaintiff also alleges that Defendant concealed the Motorcycle with the intention of hindering his creditor and, therefore, should be denied his discharge under 11 U.S.C. § 727(a)(2)(A). A trial on the merits was held on February 22, 2006. 271Defendant has been unable to work since July of 2004, because of injuries allegedly sustained at work. Although Defendant’s Workers Compensation claim was denied, Defendant has a Social Security disability claim pending. It is uncertain whether Defendant will prevail in his Social Security claim. As Defendant is essentially a manual laborer, it is uncertain when or if he will be able to return to work. Defendant’s sole source of income is $152.00 monthly in Food Stamps. He lives with his 70-year-old mother, whose only income consists of monthly Social Security payments. On the other hand, Plaintiff has remarried since her divorce from Defendant. She is employed as a nurse with an annual salary of approximately $40,000.00. Her husband has income of approximately $60,000.00 per year but uses part of that to support a son. CONCLUSIONS OF LAW 11 U.S.C. § 523(a)(5) This Circuit applies a four-part test to determine whether an obligation is “actually in the nature of alimony, maintenance, or support,” and thus nondischargeable under 11 U.S.C. § 523(a)(5). Under this test, the Court must consider: (1) whether the state court or parties intended to create a support obligation; (2) whether the obligation has the actual effect of providing necessary support; (3) whether the obligation so excessive as to be unreasonable under traditional concepts of support; and (4) if the amount is unreasonable, how to modify the obligation to the extent necessary to serve the purposes of federal bankruptcy law. Calhoun v. Calhoun, 715 F.2d 1103 (6th Cir.1983); Fitzgerald v. Fitzgerald, 9 F.3d 517 (6th Cir.1993). The Court finds that the state court and the parties did not intend that Defendant’s payment of the debt on the Motorcycle be in the nature of alimony, maintenance or support. The only indication that the parties might have intended the debt assumption to be a support obligation is the statement in Paragraph 5.7 of the Settlement Agreement, that states: “All debts to be paid by the Husband herein shall be considered as part of maintenance and shall not be dis-chargeable in bankruptcy.” The Court notes initially that the Settlement Agreement is divided into discrete Sections that deal with separate matters. Paragraph 5.7 is part of Section V, which is entitled “Personal Effects and Debts.” Section V, however, deals only with things like credit card and medical debts and does not make any mention of the Motorcycle. The Motorcycle is instead dealt with in Section VII, which is entitled “Division of Marital Property.” Section VII does not contain a provision comparable to Paragraph 5.7. Thus, the very structure of the Settlement Agreement demonstrates that the parties and the state court did not intend for treatment of the Motorcycle to deemed alimony, maintenance, or support. Furthermore, there was no testimony proffered to suggest that the parties intended Paragraph 5.7 to apply to the Motorcycle. Because there is no credible evidence that the state court and parties intended Defendant’s assumption of the Motorcycle debt to be a support obligation, the Court need not apply the other three elements of the Calhoun test. The debt in question is not a debt that would be non-dischargeable under 11 U.S.C. § 523(a)(5). ll.U.S.C. § 523(a)(15) As a general rule, the creditor seeking an exception from discharge of a particular debt under 11 U.S.C. § 523(a)(15) bears the burden of proof. In re Smither, 194 B.R. 102, 106 (Bankr. W.D.Ky.1996), citing Grogan v. Garner, 272498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). The standard of proof is the ordinary preponderance of the evidence standard. Grogan at 291, 111 S.Ct. 654. Under Section 523(a)(15), however, the burden of proof shifts from the creditor to the debtor after the creditor has proven that: (1) the debt is not a debt that would be non-dischargeable under 11 U.S.C. § 523(a)(5); and (2) the debt was incurred in the course of a divorce or separation agreement. Smither at 107. The Court has previously determined that the obligation in question does not constitute a non-dischargeable debt under 11 U.S.C. § 523(a)(5). Based on the facts, it is clear that Defendant is responsible for this debt. Therefore, Plaintiff has met her burden of proof and the burden shifts to Defendant to show either “an inability to pay the debt under § 523(a)(15)(A) or that a discharge would result in a benefit to the Debtor that outweighs the detrimental consequences of a discharge to the spouse, former spouse or children of the debtor under § 523(a)(15)(B).” Smither at 107. The Court will first examine the Debtor’s ability to pay the debt using the four part analysis set out by the court in Smither. According to Smither, the Court must consider: (1) the amount of debt sought to be held nondischargeable; (2) the debtor’s current income and the value and nature of any property retained after the bankruptcy filing; (3) the amount of reasonable and necessary expenses the debtor must incur for his support and the support of his dependents; and (4) a comparison of the debtor’s property and current income with his reasonable and necessary expenses. Smither at 108. Plaintiff seeks payment from Defendant of approximately $8,000.00. Defendant currently receives only $152.00 in Food Stamps and his future employment prospects are uncertain given his physical condition. According to his bankruptcy petition and schedules he has less than $1000.00 in assets, primarily consisting of a pickup truck valued at $300.00 and miscellaneous hand tools valued at $200.00. Defendant’s monthly expenses, although modest, obviously exceed his income. He is dependent on his elderly mother for support and his mother’s income is fixed by Social Security. Based on the foregoing, it is clear that Defendant lacks the ability to pay the debt in question. Accordingly, Defendant is entitled to a discharge for that debt under 11 U.S.C. § 523(a)(15)(A), and the Court need not consider whether Defendant would be entitled to a discharge under 11 U.S.C. § 523(a)(15)(B).2 11 U.S.C. § 727(a)(2)(A) 11 U.S.C. § 727(a)(2)(A) states as follows: (a) The court shall grant a debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— 273(A) property of the debtor, within one year before the date of the filing of the petition.... Thus, under this section of the Bankruptcy Code, a debtor must be denied a discharge if it is proven that, within one year prior to the filing of his or her bankruptcy petition, the debtor transferred, removed, destroyed, mutilated or concealed property, or permitted the same, with the intent to hinder, delay or defraud a creditor. In the instant case, to prevail under 11 U.S.C. § 727(a)(2)(A), Plaintiff must demonstrate that Defendant not only engaged in some sort of transfer or concealment of the Motorcycle within the year prior to March 16, 2005, the date of Defendant’s bankruptcy petition, but that such transfer or concealment was intended to hinder, delay or defraud Plaintiff or another creditor. Plaintiff has failed to show that Defendant engaged in an improper concealment or transfer of the Motorcycle. The facts are straightforward and innocuous from the perspective of 11 U.S.C. § 727(a)(2)(A). Defendant made sporadic payments on the Motorcycle debt but could not keep up with the debt. He explored selling the Motorcycle but found it was worth less than the amount of the loan. Faced with no practical alternative, he simply kept the Motorcycle until a repossession agent came to his house to pick it up, with whom he cooperated. The crux of Plaintiffs claim under 11 U.S.C. § 727(a)(2)(A) is that Defendant concealed from Plaintiff the fact that the Motorcycle was in danger of repossession and failed voluntarily to turn over the Motorcycle to Plaintiff, which deprived Plaintiff of the opportunity of either taking over ownership and payments or selling the Motorcycle to avoid the deficiency. In this regard, Plaintiff fails to raise a cognizable claim under 11 U.S.C. § 727(a)(2)(A) because Plaintiff fails to allege that Defendant did anything improper with his property. First, Defendant had no duty to turn the Motorcycle over to Plaintiff. He was given possession of the Motorcycle in the Settlement Agreement and the Graves Circuit Court declined to order Defendant to give the Motorcycle to Plaintiff despite Plaintiffs request even after Defendant fell behind on payment for the Motorcycle. Second, Plaintiff failed to present any credible evidence that Defendant concealed the impending repossession of the Motorcycle from Plaintiff.3 Indeed, Plaintiff must have known that the Motorcycle was at risk of being repossessed. Plaintiff and Defendant appeared before Graves Circuit Court “on several occasions” because Defendant had fallen behind on payments on the Motorcycle and Plaintiff testified that Defendant taunted her about letting the Motorcycle be repossessed. Under such facts and circumstances, the Court cannot find that there was an improper transfer, removal, concealment, destruction, mutilation or concealment of property under 11 U.S.C. § 727(a)(2)(A) 274and must conclude that Defendant is entitled to his discharge. A separate Order consistent with the foregoing has been entered in accordance with Federal Rule of Bankruptcy Procedure 9021. ORDER THIS ADVERSARY PROCEEDING is before the Court after the conclusion of a trial on the merits of the cause of action brought by Plaintiff against Defendant under 11 U.S.C. §§ 523(a)(5), 523(a)(15) and 727(a)(2)(A). Pursuant to Federal Rules of Bankruptcy Procedure 7054 and 9021 and the Court’s Memorandum-Opinion entered this same date and incorporated herein by reference, the Court finds in favor of Defendant and holds that Defendant is entitled to a discharge and that Defendant’s debt to Plaintiff is dischargea-ble. . Defendant denies making such a statement. . The Court would note in passing, however, that Plaintiff's personal salary of approximately $40,000.00, not to mention her husband's salary of approximately $60,000.00, far surpasses Defendant’s paltry $152.00 monthly Food Stamps. It seems patently obvious that the benefit of granting Defendant a discharge clearly outweighs the detriment to Plaintiff from having to pay the debt in question. . Plaintiff relies solely on the fact that Defendant received a registered letter from the lender, that was addressed to Plaintiff, some time shortly before the Motorcycle was repossessed. The Court is apparently expected to assume that the letter was a formal notice of default on the loan and conclude that Defendant intentionally concealed such "notice of default” from Plaintiff. Defendant, however, testified credibly that he did not open the letter and thus did not know its contents and that he attempted to forward the letter to Plaintiff at what he thought was Plaintiff's approximate address. Also, although ultimately not necessary for the Court’s decision here, the Court questions whether Defendant’s alleged concealment of the fact that the Motorcycle was at risk of repossession would even constitute concealment of Defendant's property for purposes of 11 U.S.C. § 727(a)(2)(A).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8493892/	ORDER BASIL H. LORCH III, Bankruptcy Judge. This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Plaintiffs Complaint filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact: 1. On October 16, 2000 [the “Petition Date”], the Debtors filed voluntary Chapter 11 petitions for relief with this Court 291under Title 11 of the United States Code. [Complaint, ¶ 2.] 2. Prior to the Petition Date, Paul Harris Stores, Inc. [“Paul Harris”] operated a number of retail stores, selling women’s clothing. [Deposition of Ronald W. Martin, p. 42.] A portion of its inventory was purchased from manufacturers based in Asia. [Martin Deposition, p. 50.] 3. Expeditors is a non-vessel operating common carrier, customs broker, freight forwarder and freight consolidator. [Affidavit of A.J. Tangeman, ¶ 2.] 4. Before the Petition Date, Paul Harris contracted with Expeditors to transport merchandise [collectively, the “Goods”] from manufacturers overseas to the United States and to clear the Goods through U.S. Customs. [Martin Deposition, pp. 54-57.] 5. As used herein, the term “Goods” means merchandise which Expeditors transported to the United States by sea and which Paul Harris purchased on “T/T” (telegraphic transfer) terms and open account credit terms. As a result, Paul Harris paid for the Goods from its own funds and not with borrowed money. [Martin Deposition, pp. 41-42, 54.] 6. In addition to said credit terms, the terms of sale for the Goods provided that all Goods were sold FOB point of origin. [Tangeman Affidavit, ¶ 4.] 7. For accounting purposes, Paul Harris calculated its cost in merchandise (including the Goods) as purchase price, plus transportation costs and Customs duties. [Martin Deposition, pp. 35-36.] 8. To evidence Expeditors’ receipt of the Goods for shipment, with respect to all Goods Expeditors issued bills of lading and/or cargo receipts, naming Paul Harris as consignee. [Tangeman Affidavit, ¶ 10.] 9. Expeditors obtained possession, custody and control of the Goods at their points of origin outside the United States, then Expeditors transported the Goods to Indianapolis, Indiana. [Martin Deposition, pp. 30, 75; Tangeman Affidavit, ¶¶ 3, 7 and 8.] 10. The Goods first arrived in the United States in California or Washington State. [Tangeman Affidavit, ¶ 8.] 11. Subsequently, Expeditors cleared the Goods through United States Customs, and delivered the Goods to Paul Harris’s warehouse in Indianapolis. [Tangeman Affidavit, ¶¶ 3, 7 and 8; Martin Deposition, pp. 56-57.] 12. At all times while the Goods were en route from point of origin overseas to the Paul Harris warehouse in Indianapolis, Expeditors maintained possession, custody and control of the Goods. [Tangeman Affidavit, ¶¶ 3, 7 and 8; Martin Deposition, pp. 30-32, 75.] 13. The services rendered by Expeditors with respect to the Goods enabled Paul Harris to acquire rights in the Goods and the possession or use of the Goods. [Tangeman Affidavit, ¶ 6; Martin Deposition, pp. 29-33.] 14. On or about March 29, 1996, Paul Harris executed and delivered to Expeditors a credit application [the “Credit Application”], which contained the following provision: As security for any existing and future indebtedness of the Customer [Paul Harris] to the Company [Expeditors], including claims for charges, expenses or advances incurred by the Company in connection with any shipment or transaction of the Customer, and whether or not presently contemplated by the Customer and the Company, the Customer hereby grants to the Company a continuing lien and security interest in any 292and all property of the Customer (including goods and documents relating thereto) now or hereafter in the Company’s possession, custody or control or en route (the “Collateral”).... [Tangeman Affidavit, ¶¶ 9, 11, and Exhibit A thereto; Martin Deposition, pp. 73-75.] 15. The services which Expeditors performed for Paul Harris were governed by the Credit Application and by the individual contracts for the carriage of goods. [Tangeman Affidavit, ¶ 9; Martin Deposition, pp. 73-75.] 16. Expeditors asserts carrier’s liens and security interest in and upon all Goods in its possession, custody or control and in all documents of title related to said Goods. [Answer, ¶ 16, and affirmative defenses ¶¶ 5, 6, 7, 10 therein; Tangeman Affidavit, ¶¶ 9-13 and Credit Application; Martin Deposition, pp. 73-77.] 17. Only Expeditors and LaSalle Bank claim liens or security interests in the Goods. [Martin Deposition, pp. 79-80.] LaSalle Bank alleges that it is still owed several million dollars on account of pre-petition loans. 18. LaSalle Bank did not give value to enable Paul Harris to acquire rights in the Goods or to acquire the use of the Goods. [Martin Deposition, pp. 41-42, 54.] 19. No UCC-1 financing statements naming Paul Harris as debtor were of record in the State of California on or before the Petition Date, nor are there any such financing statements of record as of August 4, 2005. [UCC-11 Searches, Appendix to Memorandum in Support of Expeditors’ Motion for Partial Summary Judgment on Plaintiffs Complaint.] 20. No UCC-1 financing statements naming Paul Harris as debtor were of record in the State of Washington on or before the Petition Date, nor were there any such financing statements of record in Washington as of August 11, 2005. [UCC-11 Searches, Appendix to Memorandum in Support of Expeditors’ Motion for Partial Summary Judgment on Plaintiffs Complaint.] 21. On the 90th day before the Petition Date, the value of the Goods in Expeditors’ possession, custody and control was $1,175,580.33, and the amount of Paul Harris’s debt to Expeditors was $139,380.94. Thus, on this date, Expeditors was over-secured by not less than $1,036,199.39. [Tangeman Affidavit, ¶¶ 16, 31.] 22. During the 90-day period before the Petition Date, Paul Harris made several payments to Expeditors in payment for Expeditors’ services in transporting Goods from overseas to Paul Harris’s Indianapolis warehouse, and clearing said Goods through U.S. Customs (collectively, “the Payments”). [Tangeman Affidavit, ¶ 15.] Those Payments totaled $739,071.15. [Tangeman Affidavit, ¶ 15.] 23. The Payments were made by Paul Harris and not by any of the other Debtors. [Martin Deposition, pp. 44-45.] 24. On the date prior to the transfer of each Payment, the value of the Goods in Expeditors’ sole possession, custody or control exceeded the amount of Paul Harris’s indebtedness. [Tangeman Affidavit, ¶¶ 17-29, 31.] Thus, Expeditors was over-secured on each such date. 25. On the Petition Date, the value of the Goods in Expeditors’ possession, custody and control was $1,166,601.62, and the amount of Paul Harris’s debt to Expeditors was $122,989.63. Thus, on this date, Expeditors was over-secured by not less than $1,043,611.99. [Tangeman Affidavit, ¶¶ 30, 31.] 26. On the Petition Date, this Court entered an Order Authorizing Debtors to Honor Certain Prepetition Checks or Issue New Checks to Pay for (I) Prepetition 293Shipping Charges and (II) Key Merchandise and Other Key Expenses, and Shorten and Limit Notice. Shortly after entry of said Order, Paul Harris paid Expeditors the pre-petition debt of $122,989.63 pursuant to said Order. [Tangeman Affidavit, ¶ 30.]1 27. On September 27, 2002, the Debtors commenced this adversary proceeding, to recover the amount of the Payments from Expeditors, pursuant to 11 U.S.C. § 547. [Complaint, ¶¶ 9-17.] 28. On December 2, 2002, Expeditors timely filed and served its Answer to the Complaint, in which it disputed the Debtors’ allegation that the Payments had a preferential effect and asserted, inter alia, that the Payments were not preferential, because Expeditors was a fully secured creditor. [Answer, ¶ 16, and affirmative defenses ¶¶ 5, 6, 7,10 therein.] Discussion Expeditors seeks partial summary judgment on Paul Harris’s claims to recover alleged preferential transfers. Summary judgment is appropriate when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Upon a motion for summary judgment, the Court will view the evidence in the light most favorable to the non-moving party and will draw all reasonable inferences in favor of the non-moving party. Markel v. Board of Regents of Wisconsin System, 276 F.3d 906, 911 (7th Cir.2002). The moving party bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The trustee or the debtor-in-possession may avoid certain pre-petition transfers to creditors as preferences under the authority of 11 U.S.C. § 547(b). The trustee must prove each of the following elements of section 547(b) in order to avoid the transfer of an interest of the debtor in property: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made (A)on or within 90 days before the date of the filing of the petition; ... and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 [of the Code]; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by [the Code]. It is the final element, Expeditors asserts, that the Debtor cannot establish. The issue is whether Expeditors was fully secured at the time the transfers occurred. To answer that question, the Court will first turn to the terms of the contract between the parties. The Credit Application that Paul Harris executed in favor of Expeditors granted the latter “a continuing lien and security interest in any and all property of [Paul Harris] (including goods and documents relating thereto) now or hereafter in [Expeditors’] possession, custody or control or en route (the ‘Collateral’) .... ” Such language constitutes a valid and binding security agreement. Expeditors also points to the following language contained in the individual contracts 294for carriage of goods, including house bills of lading and forwarder’s cargo receipts: The Carrier shall have a lien on the Goods, which shall survive delivery, for all freight, dead freight, demurrage, damages loss charges, expenses and any other sums whatsoever payable by or chargeable to or for the account of the Shipper [Paul Harris] under this Bill of Lading and any contract preliminary hereto and the cost and expenses of recovering the same, .... (¶ 19, Expeditors’ house bill of lading form.) Expeditors shall have a general lien on any and all property (and documents relating thereto) of the Customer [Paul Harris], in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by Expeditors in connection with any shipments of the Customer.... (¶ 8, Expeditors’ forwarder’s cargo receipt.) The Debtor insists that Expeditors’ surrender of the goods and documents of title to the Debtors extinguished Expeditors’ carrier’s lien under the terms set forth hereinabove and because Paul Harris made the challenged payments sometime after the Collateral had already been delivered, it argues that the debt was unsecured at the time of payment. Expeditors, however, is not claiming only a possessory lien on the goods which were delivered to Paul Harris. Expeditors asserts that it was, at all times, in possession of additional goods which provided additional security for payment. Expeditors, in support of its Motion, points to the following data contained in the Affidavit of A.J. Tangeman: Date (2000) Goods in Expeditors’ Possession Less Unpaid Charges Difference July 18 $1,175,580.33 ($ 139,380.94) $1,036,199.39 July 19 1,175,580.33 137,190.78) 1,038,389.55 July 27 370,876.89 144,081.06) 226.795.83 July 31 826,463.29 144.281.55) 682.181.74 August 9 682,375.27 185.920.87) 496,454.40 August 16 850,417.04 181,487.20) 668.929.84 August 23 789,613.38 246,381.75) 543,231.63 August 29 813,889.67 146,238.74) 667,650.93 September 6 1,476,827.29 123.233.55) 1,353,593.74 September 10 1,090,271.63 122.578.88) 967.692.75 September 18 1,356,540.69 207,763.30) 1,148,777.39 September 25 1,734,538.76 260.055.89) 1,474,482.87 October 3 1,244,937.38 247,955.72) 996,981.66 October 11 1,218,007.55 127,125.94) 1,090,881.61 October 16 1,166,601.62 122,989.63) 1,043,611.99 Affidavit, ¶¶ 15-31. Based upon the foregoing evidence, which has not been controverted by Paul Harris, the Court finds that Expeditors had, at the time the challenged payments were made, a contractual general lien which granted it a continuing lien on any goods in its possession. Because Expeditors was fully secured at the time the prepetition payments were made, Paul Harris cannot establish that Expeditors received more, by virtue of such payments, than it would have received in a chapter 7 liquidation. Because Paul Harris cannot satisfy the test as set forth hereinabove, the Court finds in favor of the Defendant, *295and grants summary judgment in favor of the Expeditors on the Complaint. . The Debtors do not seek recovery of this Court authorized payment.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484751/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED _____________________ November 17, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 22-0400 SUPREME COURT OF APPEALS OF WEST VIRGINIA _____________________ STATE OF WEST VIRGINIA EX REL. ANTERO RESOURCES CORPORATION, Petitioner, v. THE HONORABLE CHRISTOPHER MCCARTHY, JUDGE OF THE CIRCUIT COURT OF HARRISON COUNTY, SCOTT A. WINDOM, TRUSTEE OF THE CAROLYN E. FARR TRUST AND ITS BENEFICIARIES, AND EMPIRE OIL & GAS, INC., A WEST VIRGINIA CORPORATION, Respondents. ___________________________________________________________ PETITION FOR A WRIT OF PROHIBITION WRIT GRANTED _________________________________________________________ Submitted: November 1, 2022 Filed: November 17, 2022 Timothy M. Miller, Esq. David J. Romano, Esq. Mychal S. Schultz, Esq. Romano Law Office, LC Katrina N. Bowers, Esq. Clarksburg, West Virginia Babst, Calland, Clements & Counsel for Respondents, Zomnir, P.C. Scott A. Windom, Trustee and Charleston, West Virginia Empire Oil & Gas, Inc. and Joseph V. Schaeffer, Esq. Babst, Calland, Clements & Zomnir, P.C. Pittsburgh, Pennsylvania Attorneys for Petitioner CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court. JUSTICES WOOTON and BUNN, deeming themselves disqualified, did not participate in the decision in this case. JUDGES HAMMER and SIMS, sitting by temporary assignment. SYLLABUS BY THE COURT 1. “A writ of prohibition is available to correct a clear legal error resulting from a trial court’s substantial abuse of its discretion in regard to discovery orders.” Syl. Pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992). 2. “When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court’s original jurisdiction is appropriate.” Syl. Pt. 3, State ex rel. U. S. Fidelity & Guar. Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995). 3. “‘In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential.’ Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).” Syl. Pt. 7, State ex rel. U. S. Fidelity & Guar. Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995). i 4. “The burden of establishing the attorney-client privilege . . . always rests upon the person asserting it.” Syl. Pt. 4, in part, State ex rel. U. S. Fidelity & Guar. Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995). 5. “To establish the application of the crime-fraud exception, a party must demonstrate an adequate factual basis exists to support a reasonable person’s good faith belief that an in camera review of the privileged materials would produce evidence to render the exception applicable. In making this prima facie showing, the party must rely on nonprivileged evidence, unless the court has not previously made a preliminary determination on the matter of privilege, in which case the allegedly privileged materials may also be considered. Discretion as to whether to conduct an in camera review of the privileged materials rests with the court. If, however, the prima facie evidence is sufficient to establish the existence of a crime or fraud so as to render the exception operable, the court need not conduct an in camera review of the otherwise privileged materials before finding the exception to apply and requiring disclosure of the previously protected materials. The crime-fraud exception operates to compel disclosure of otherwise privileged materials only when the evidence establishes that the client intended to perpetrate a crime or fraud and that the confidential communications between the attorney and client were made in furtherance of such crime or fraud.” Syl. Pt. 7, State ex rel. Allstate Ins. Co. v. Madden, 215 W. Va. 705, 601 S.E.2d 25 (2004). ii 6. “In order to admit in evidence confidential communications between attorney and client under the exception to the general rule that, if such communications were made in order to perpetrate a fraud on justice, they are not privileged, it must clearly appear that such communications were made by the client with that intent and purpose.” Syl. Pt. 2, Thomas v. Jones, 105 W. Va. 46, 141 S.E. 434 (1928). iii HUTCHISON, Chief Justice: Petitioner, Antero Resources Corporation, seeks a writ of prohibition to prevent the respondent, the Honorable Christopher McCarthy, Judge of the Circuit Court of Harrison County, from enforcing an April 7, 2022, order granting a motion to compel filed by the plaintiffs below and respondents herein, Scott A. Windom, Trustee of the Carolyn E. Farr Trust and its Beneficiaries, and Empire Oil & Gas, Inc., (hereinafter “plaintiffs”). The order requires Kevin Ellis, an attorney employed by Antero, to appear at a deposition and respond to questions that Antero claims are subject to the attorney- client privilege and/or work product doctrine. Antero argues that the circuit court abused its discretion by making factual findings in its order that are contrary to the evidentiary record and erroneously applied the crime-fraud exception to the attorney-client privilege. Having considered the parties’ briefs and oral arguments, the submitted appendices, and the pertinent authorities, we grant the writ for the reasons set forth below. I. Facts and Procedural Background The Carolyn E. Farr Trust was created by its namesake on May 24, 1991, to provide funds for the general care, maintenance, and support of herself, and upon her death, 1 the same for her four children. The assets of the Trust include several natural gas 1 Ms. Farr died in 1993. 1 mineral properties located primarily in Ritchie and Doddridge counties. 2 Ms. Farr designated Clarence E. Sigley, Sr., as the Trustee, and he served in that capacity until his death on September 22, 2019. After Mr. Sigley’s death, the underlying civil action commenced when the plaintiffs filed suit on June 22, 2020, against Mr. Sigley’s estate, which was being administered by his wife, Barbara Wright Sigley. The complaint also named as defendants Ms. Sigley, individually; Amy R. Zannino, the Sigleys’ daughter; and Antero. The complaint alleged that Mr. Sigley converted, misappropriated, and fraudulently diverted Trust assets thereby breaching his fiduciary duties and obligations as Trustee. Relevant to the issue before this Court, the complaint specifically alleged that Mr. Sigley improperly leased certain mineral properties belonging to the Trust to himself and then simultaneously assigned those leases to Antero, which allowed him to collect bonuses and royalty payments that he kept for himself and his family to the detriment of the Trust. The complaint further alleged that Antero facilitated or participated in the fraudulent transfers of the property and that Antero knew or should have known that Mr. Sigley’s actions were a violation of his fiduciary duties. The petition for a writ of prohibition currently before this Court stems from a discovery dispute that arose when the plaintiffs took the deposition of Kevin Ellis on 2 Empire Oil & Gas, Inc., is a West Virginia company that is also an asset of the Farr Trust. 2 October 15, 2021. As noted above, Mr. Ellis is an attorney employed by Antero, and he held the title of “Manager, Administrative and Legal-WV” during the time period relevant to the plaintiffs’ complaint. 3 The record indicates that Mr. Ellis secured the leases to the Farr Trust properties for Antero. During the deposition, counsel for Antero objected to many questions asked by counsel for the plaintiffs, instructing Mr. Ellis not to answer based upon the attorney-client privilege and/or work product doctrine. After Antero’s counsel asserted multiple objections, the plaintiffs’ attorney adjourned the deposition and then filed a motion to compel with the circuit court seeking a ruling requiring Mr. Ellis to answer the questions. The circuit court referred the matter to a discovery commissioner who held a hearing and ultimately recommended that the motion to compel be granted based upon a finding that the crime-fraud exception applies and precludes Antero from claiming the protections afforded by the attorney-client privilege and work product doctrine. The circuit court adopted the findings of the discovery commissioner in its April 7, 2022, order and granted the plaintiffs’ motion to compel. Antero then filed its petition for a writ of prohibition with this Court. By order entered on August 17, 2022, we issued a rule to show cause why the writ should not be granted and scheduled the matter for oral argument. 3 According to Antero, Mr. Ellis’s current title is “Regional Vice President- Appalachia.” 3 II. Standard for Issuance of Writ In the context of discovery orders, this Court has held that clear legal error warrants the exercise of this Court’s original jurisdiction through the issuance of a writ of prohibition. As syllabus point one of State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992), provides: “A writ of prohibition is available to correct a clear legal error resulting from a trial court’s substantial abuse of its discretion in regard to discovery orders.” This Court has further held that “[w]hen a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court’s original jurisdiction is appropriate.” Syl. Pt. 3, State ex rel. U. S. Fidelity & Guar. Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995). 4 The reason for this holding is obvious. 4 Rule 26 of the West Virginia Rules of Civil Procedure provides, in pertinent part: (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 4 “[T]he attorney-client privilege and the work product exception would be lost forever if the offended party is forced to ‘run the gauntlet’ before having the opportunity to seek redress before this Court.” Canady, 194 W. Va. at 437, 460 S.E.2d at 683. Accordingly, with this standard in mind, we consider the parties’ arguments. III. Discussion Antero argues that the findings the circuit court made in its April 7, 2022, order granting the plaintiffs’ motion to compel are inadequate, contrary to the evidentiary record, and do not support the application of the crime-fraud exception to the attorney- client privilege. Specifically, Antero contends that the circuit court committed clear legal **** (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. (Emphasis added). 5 error by concluding that “Antero’s participation in the fraudulent scheme can be inferred by its inspection of property records and its continued payment to [Mr. Sigley] as an individual without taking action to verify the propriety of the actions of [Mr. Sigley].” Antero asserts that this is clear error because an inference does not equate to the factual basis required for application of the crime fraud exception, and because the circuit court ignored the fact that the Trust Agreement expressly provided that Mr. Sigley as Trustee could sign documents and take title of Trust property in his own name. Antero also points out that the circuit court disregarded West Virginia Code § 44-5A-3(b) (2011) which provides that “the party dealing with the fiduciary 5 is not under a duty to follow the proceeds or other consideration received by a fiduciary from the sale or exchange [of any property].” (Footnote added). Finally, Antero contends that the plaintiffs presented no evidence that it communicated with Mr. Ellis with the “intent and purpose” to commit a fraud which is a necessary part of the prima facie showing required for invocation of the crime-fraud exception to the attorney-client privilege. Antero maintains that it was also clear legal error for the circuit court to apply the crime-fraud exception in the absence of such evidence. Conversely, the plaintiffs argue that none of the information they are seeking is protected by the attorney-client privilege. They contend that Mr. Ellis was not acting in 5 West Virginia Code § 44-5A-1 (1993) defines “fiduciary” to include “one or more trustees of a testamentary or inter vivos trust estate, whichever in a particular case is appropriate.” 6 his capacity as attorney, but rather was fulfilling his duty as Antero’s “landman” when he secured the leases for the Farr Trust mineral properties. As such, the plaintiffs maintain that counsel for Antero had no basis to assert the attorney-client privilege and instruct Mr. Ellis not to respond to the questions posed to him during his deposition. The plaintiffs further argue that if the attorney-client privilege was properly invoked by Antero, then the circuit court’s order contains the findings necessary for application of the crime-fraud exception. “The attorney-client privilege is a common law privilege that protects communications between a client and an attorney during consultations.” State ex rel. Doe v. Troisi, 194 W. Va. 28, 35-36, 459 S.E.2d 139, 146-47 (1995). It “is intended to ensure that a client remains free from apprehension that consultations with a legal advisor will be disclosed.” Canady, 194 W.Va. at 438, 460 S.E.2d at 684. We have held that “[i]n order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential.” Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979). Id. at 433-34, 460 S.E.2d at 679-80, syl. pt. 7. We have also held that “[t]he burden of establishing the attorney-client privilege . . . always rests upon the person asserting it.” Id. at 434, 460 S.E.2d at 679, syl. pt. 4, in part. 7 The attorney-client privilege is not absolute; it is subject certain exceptions such as the crime-fraud exception, which the plaintiffs have asserted here.6 As this Court observed in State ex rel. Allstate Ins. Co. v. Madden, 215 W. Va. 705, 717, 601 S.E.2d 25, 37 (2004), “[t]he crime-fraud exception has long been recognized as a means to overcome the privilege ordinarily afforded to communications between a client and his or her counsel when such communications have been made in furtherance of the commission of a crime or fraud.” In other words, ““[i]t is the purpose of the crime-fraud exception to the attorney- client privilege to assure that the “seal of secrecy” . . . between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime.’” Id., quoting United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469, 485 (1989) (citations omitted). This Court has held that [t]o establish the application of the crime-fraud exception, a party must demonstrate an adequate factual basis exists to support a reasonable person’s good faith belief that an in camera review of the privileged materials would produce evidence to render the exception applicable. In making this prima facie showing, the party must rely on nonprivileged evidence, unless the court has not previously made a preliminary determination on the matter of privilege, in which case the allegedly privileged materials may also be considered. Discretion as to whether to conduct an in camera review of the privileged materials rests with the court. If, however, the prima facie evidence is sufficient to establish the existence of a crime or fraud so as to render the exception operable, the court need not conduct an in camera review of the otherwise privileged materials before finding the exception to apply and requiring disclosure of the previously protected materials. The crime- fraud exception operates to compel disclosure of otherwise 6 The attorney-client privilege may also be waived. Canady, 194 W.Va. at 442, 460 S.E2d at 688. However, there has been no assertion of waiver in this matter. 8 privileged materials only when the evidence establishes that the client intended to perpetrate a crime or fraud and that the confidential communications between the attorney and client were made in furtherance of such crime or fraud. Madden, 215 W. Va. at 709, 601 S.E.2d at 29, syl. pt. 7. Having carefully reviewed the April 7, 2022, discovery ruling, we find that the circuit court abused its discretion and committed clear legal error by declaring the crime-fraud exception applicable without first determining whether the attorney-client privilege could be invoked in response the questions posed to Mr. Ellis by the plaintiffs’ counsel. The circuit court’s order indicates that the court simply “assumed that some of the . . . questions posed at the deposition could, at least arguably, be protected from disclosure by the attorney-client privilege.” The order further indicates, however, that it was undisputed that Mr. Ellis had duties as “Manager, Administrative and Legal-WV” that were both legal and non-legal in nature and that “neither party identified any clear delineation.” In addition, the plaintiffs have argued from the outset that the information they seek relates solely to Mr. Ellis’s non-legal duties, and therefore, the attorney-client privilege does not apply. This Court has made clear that “even when proved, [the attorney-client privilege] is to be applied strictly.” Canady, 194 W. Va. at 444, 460 S.E.2d at 690. As we have explained, because “[t]he attorney-client privilege and the work product exception may result in the exclusion of evidence which is otherwise relevant and material and are 9 antagonistic to the notion of the fullest disclosure of the facts, courts are obligated to strictly limit the privilege and exception to the purpose for which they exist.” Id. at 438, 460 S.E.2d at 684. Therefore, “the claimant must show certain threshold requirements in order to avail himself or herself of the privilege or exception including a showing that the communication originated in confidence, that it would not be disclosed, that it was made by an attorney acting in his or her legal capacity for the purpose of advising a client, and that it remained confidential.” Id., (emphasis added). The fact that Mr. Ellis holds a law license and was in-house counsel for Antero does not mean that the attorney-client privilege extends to all of his communications. Indeed, in Canady, this Court expressly “refuse[d] to adopt a per se rule making ordinary investigative employees who hold licenses to practice law, attorneys for purposes of the attorney-client privilege[,]” explaining that to do so could pose an absolute bar to discovery of relevant and material evidentiary facts. In the insurance industry context, it would shield from discovery documents that otherwise would not be entitled to any protection if written by an employee who holds no law license but who performs the same investigation and duties. To enlarge the scope of protection to those not performing traditional attorney duties would be fundamentally incompatible with this State’s broad discovery policies designed for the ultimate ascertainment of truth. More than ever, we find these broad discovery policies essential to the fair disposition of both civil and criminal lawsuits. Id. at 444, 460 S.E.2d at 690. Because Mr. Ellis was performing a variety of duties for Antero at the time the leases for the Farr Trust properties were obtained, we find that the 10 circuit court’s failure to conduct an analysis of the questions posed during his deposition to determine the scope and applicability of the attorney-client privilege was clear error that warrants the granting of the writ of prohibition. Given these particular facts and circumstances, determining the applicability of the attorney-client privilege to the information sought by the plaintiffs during Mr. Ellis’s deposition was a necessary first step in the analysis of whether to grant the plaintiffs’ motion to compel. The circuit court’s failure to make that determination cannot be overlooked and requires us to grant Antero the requested relief. If the parties seek to revisit this matter below, the circuit court must conduct a new hearing and first determine whether the attorney-client privilege applies to the communications Antero seeks to shield from discovery. In Madden, we outlined the general procedure to be followed when attorneys who are being deposed assert the attorney-client privilege, instructing that if the party seeking testimony for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery. Id. at 710, 601 S.E.2d at 30, syl. pt. 11, in part. Should the circuit court find any of the communications between Mr. Ellis and Antero protected by the attorney-client privilege, then the circuit court can proceed to determine whether the plaintiffs have demonstrated an adequate factual basis to render the crime-fraud exception operable. Critically, “the 11 dispositive question is whether the attorney-client communications are part of the client’s effort to commit a crime or perpetuate a fraud.” Id. at 717, 601 S.E.2d at 37 (additional quotations and citation omitted). In other words, in order to admit in evidence confidential communications between attorney and client under the exception to the general rule that, if such communications were made in order to perpetrate a fraud on justice, they are not privileged, it must clearly appear that such communications were made by the client with that intent and purpose. Syl. Pt. 2, Thomas v. Jones, 105 W. Va. 46, 141 S.E. 434 (1928). In the absence of such evidence, there would not be an adequate factual basis to render the crime-fraud exception operable. See syl. pt. 7, Madden, supra. IV. Conclusion For the foregoing reasons, we grant the requested writ of prohibition. Writ granted. 12	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484752/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED September 2022 Term _____________ November 17, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 21-0243 SUPREME COURT OF APPEALS _____________ OF WEST VIRGINIA PRAETORIAN INSURANCE COMPANY, Putative Intervenor Below, Petitioner, V. VIRGINIA CHAU, ADMINISTRATRIX OF THE ESTATE OF ANH KIM HO, Plaintiff Below, Respondent, AND AIR CARGO CARRIERS, LLC Defendant Below, Respondent. ________________________________________________ Appeal from the Circuit Court of Kanawha County The Honorable Louis H. Bloom, Judge Civil Action No. 19-C-450 AFFIRMED ________________________________________________ AND _____________ No. 21-0682 _____________ PRAETORIAN INSURANCE COMPANY, Plaintiff Below, Petitioner, V. AIR CARGO CARRIERS, LLC, AND VIRGINIA CHAU, ADMINISTRATRIX OF THE ESTATE OF ANH KIM HO, Defendants Below, Respondents. ________________________________________________ Appeal from the Circuit Court of Kanawha County The Honorable Kenneth D. Ballard, Judge Civil Action No. 20-C-800 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ________________________________________________ Submitted: October 5, 2022 Filed: November 17, 2022 Don C.A. Parker, Esq. William M. Tiano, Esq. Spilman Thomas & Battle, PLLC Cheryl A. Fisher, Esq. Charleston, West Virginia Tiano O’Dell PLLC Attorney for the Petitioner Charleston, West Virginia Attorney for the Respondent, Jeffrey M. Wakefield, Esq. Virginia Chau, Administratrix of the Morgan E. Villers, Esq. Estate of Anh Kim Ho Flaherty Sensabaugh Bonasso PLLC Charleston, West Virginia Spencer D. Elliott, Esq. Attorneys for Amicus Curiae, James C. Stebbins, Esq. West Virginia Insurance Federation Ramonda C. Marling, Esq. Lewis Glasser PLLC Steven K. Wellman Charleston, West Virginia Sarah A. Walling Attorneys for the Respondent, Jenkins Fenstermaker, PLLC Air Cargo Carriers, LLC Huntington, West Virginia Attorneys for Amicus Curiae, West Virginia Chamber of Commerce JUSTICE BUNN delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “‘West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction [that] is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties.’ Syl. Pt. 2, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999).” Syllabus point 4, SWN Production Co., LLC v. Conley, 243 W. Va. 696, 850 S.E.2d 695 (2020). 2. “‘To justify intervention of right under West Virginia Rule of Civil Procedure 24(a)(2), the interest claimed by the proposed intervenor must be direct and substantial. A direct interest is one of such immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment to be rendered between the original parties. A substantial interest is one that is capable of definition, protectable under some law, and specific to the intervenor. In determining the adequacy of the interest in a motion to intervene of right, courts should also give due regard to the efficient conduct of the litigation.’ Syl. Pt. 4, State ex rel. Ball v. Cummings, 208 W. Va. i 393, 540 S.E.2d 917 (1999).” Syllabus point 5, SWN Production Co. v. Conley, 243 W. Va. 696, 850 S.E.2d 695 (2020). 3. “To establish jus tertii standing to vindicate the . . . rights of a third party, a litigant must (1) have suffered an injury in fact; (2) have a close relation to the third party; and (3) demonstrate some hindrance to the third party’s ability to protect his or her own interests.” Syllabus point 5, in part, Kanawha County Public Library Board v. Board of Education of County of Kanawha, 231 W. Va. 386, 745 S.E.2d 424 (2013). 4. “This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syllabus point 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965). ii Bunn, Justice: In these consolidated appeals, Praetorian Insurance Company (“Praetorian”) seeks review of three orders issued by two separate judges presiding over two separate but related cases in the Circuit Court of Kanawha County. 1 First, Praetorian appeals an order denying its motion to intervene in a wrongful death action filed against its insured, Air Cargo Carriers, LLC (“Air Cargo”). Praetorian sought to intervene as a matter of right under Rule 24(a)(2) of the West Virginia Rules of Civil Procedure solely to assert Air Cargo’s entitlement to workers’ compensation immunity as to a negligence claim brought by the plaintiff below, Virginia Chau, as administratrix of the estate of Anh Kim Ho. Second, Praetorian appeals from two orders entered in its companion declaratory judgment action. One order denied Praetorian’s motion for summary judgment as to its sought-after declaration in Count I of its complaint that Air Cargo had no coverage for a deliberate intent claim asserted by Ms. Chau due to a policy exclusion for conduct engaged in by deliberate intention as defined by West Virginia Code § 23-4-2(d)(2). The other order granted motions filed by Ms. Chau and Air Cargo seeking dismissal of Count II of Praetorian’s declaratory judgment complaint, which sought the same relief Praetorian pursued in its motion to intervene in Ms. Chau’s wrongful death action, i.e., a declaration 1 We acknowledge and appreciate amicus curiae briefs submitted by the West Virginia Chamber of Commerce and the West Virginia Insurance Federation in support of Praetorian’s position in its appeal of the circuit court’s denial of its motion for summary judgment, Docket No. 21-0682. We considered the arguments presented by these Amici Curiae in resolving this issue. 1 of Air Cargo’s entitlement to workers’ compensation immunity as to the negligence claim asserted by Ms. Chau in the companion wrongful death action. For the reasons stated below, we affirm the circuit court’s order denying Praetorian’s motion to intervene in Ms. Chau’s wrongful death action for lack of standing to assert Air Cargo’s right to workers’ compensation immunity. In addition, we reverse the circuit court’s order denying Praetorian’s motion for summary judgment as to Count I of its declaratory judgment complaint because we find the deliberate intent policy exclusion applies, and Air Cargo has no coverage. Therefore, we remand on this issue for entry of an order granting summary judgment to Praetorian. Finally, we affirm the circuit court’s order dismissing Count II of Praetorian’s declaratory judgement complaint, again concluding that Praetorian lacks standing to assert Air Cargo’s entitlement to workers’ compensation immunity. I. FACTUAL AND PROCEDURAL HISTORY The litigation underlying these consolidated appeals arose from an aircraft crash on May 5, 2017, that resulted in the death of Anh Kim Ho. Ms. Ho, an employee of respondent Air Cargo, served as first officer on the flight. In May 2019, respondent Ms. Chau, as administratrix of Ms. Ho’s estate, filed a wrongful death action in the Circuit 2 Court of Kanawha County,2 naming Air Cargo as one of the defendants. 3 Ms. Chau asserted a deliberate intent claim against Air Cargo under West Virginia Code § 23-4-2(d)(2)(B), and, in the alternative, a negligence claim. 4 Air Cargo is insured under a “Workers Compensation and Employers Liability Insurance Policy” issued by Praetorian. Praetorian agreed to defend Air Cargo in the wrongful death action under a reservation of rights and assigned the defense to Edgar Poe of the law firm Pullin, Fowler, Flanagan, Brown & Poe. 5 In September 2020, Praetorian filed a declaratory judgment action in the Circuit Court of Kanawha County purportedly seeking to determine its rights and obligations under the policy issued to Air Cargo. 6 Specifically, Count I of Praetorian’s 2 Judge Louis H. Bloom presides over the wrongful death action. Ms. Chau later filed an amended complaint, but the claims against Air Cargo remained the same. 3 Other defendants named in the complaint are not parties to these consolidated appeals and are not relevant to the issues before this Court. 4 Ms. Chau’s complaint states that “[i]f it is determined that [Air Cargo] was not [Ms. Ho’s] formal employer or was not in good standing and is thus stripped of any immunities, then Plaintiff asserts an alternative [negligence] claim . . . .” 5 Air Cargo retained separate counsel to represent it as to coverage issues, including this appeal. Judge Tod E. Kaufman initially presided over the declaratory judgment 6 action; however, Judge Kaufman retired in March 2021 and the case was reassigned to Judge Kenneth D. Ballard. 3 complaint sought a declaration that the policy excludes coverage for the deliberate intent claim asserted in the wrongful death action. However, Count II of Praetorian’s complaint sought a declaration that Air Cargo is entitled to the workers’ compensation immunity protections of West Virginia Code § 23-2-6 and, therefore, could not be held liable for negligence in connection with Ms. Ho’s death. In November 2020, Ms. Chau and Air Cargo each filed a motion to dismiss Count II of Praetorian’s declaratory judgment complaint. Both claimed the circuit court had no subject-matter jurisdiction over Count II, as it sought resolution on the merits of the negligence claim asserted in Ms. Chau’s separate wrongful death action, and both claimed that Praetorian lacked standing to litigate the merits of Ms. Chau’s negligence claim. Also in November 2020, Praetorian filed a motion to transfer the declaratory judgment action to Judge Bloom, who is presiding over the wrongful death action. All parties to both the wrongful death and declaratory judgment actions consented to the motion. In December 2020, while the motion to transfer was pending, Praetorian filed, in the wrongful death action, a motion to consolidate the declaratory judgment and wrongful death actions. Praetorian sought consolidation so that Judge Bloom could address a legal issue common to both actions: “whether Air Cargo is entitled to the workers’ compensation immunity granted by [West Virginia] Code § 23-2-6.” Ms. Chau opposed the motion to consolidate and argued that Praetorian sought to “participate directly in litigating the merits of the Estate’s negligence claim[.]” By order entered on January 13, 2021, Judge Bloom 4 denied both the agreed motion to transfer and the motion to consolidate. No relief from this order was sought by Praetorian, and no issues related to these rulings are raised in these consolidated appeals. Meanwhile, although Ms. Chau’s and Air Cargo’s motions to dismiss Count II of the declaratory judgment action remained pending, on December 30, 2020, Praetorian filed a motion for summary judgment in the declaratory judgment action. On February 10, 2021, Praetorian filed a motion in the wrongful death action to intervene as of right under Rule 24(a)(2) of the West Virginia Rules of Civil Procedure. By order entered on February 25, 2021, Judge Bloom denied Praetorian’s motion to intervene. 7 Praetorian appealed that order, which was given docket number 21-0243. Thereafter, by two separate orders entered on July 28, 2021, Judge Ballard dismissed Count II of Praetorian’s declaratory judgment complaint and denied Praetorian’s motion for summary judgment. Praetorian appealed these two orders, which were assigned docket number 21-0682. We then consolidated the two appeals for purposes of our review. First, we address the circuit court’s denial of Praetorian’s motion to intervene in the wrongful death action. Second, we address the issues raised on appeal from the declaratory judgment action. More detailed facts are provided below as necessary. 7 Ms. Chau’s response to Praetorian’s motion to intervene was filed the day after the circuit court issued its order denying Praetorian’s motion. 5 II. DOCKET NO. 21-0243 – MOTION TO INTERVENE The circuit court denied Praetorian’s motion to intervene in the wrongful death action as a matter of right on two grounds: (1) that Praetorian was not entitled to intervention of right because it could protect its interests through its declaratory judgment action; and (2) that the motion was untimely. However, as explained below, we affirm the circuit court’s decision on a different ground, that Praetorian lacked standing. A. Standard of Review On appeal, Praetorian challenges the circuit court’s timeliness decision and its finding that Praetorian may adequately protect its rights in the companion declaratory judgment action. In addition, Praetorian claims it has a right to intervene based on its direct and substantial interest in the issue of Air Cargo’s workers’ compensation immunity. Air Cargo and Ms. Chau argue that Praetorian lacks standing to intervene on this ground. We agree and, therefore, decline to address whether the motion was timely or whether Praetorian may adequately protect its rights in the declaratory judgment action. Without reaching the issue of timeliness, our review of the circuit court’s ruling on Praetorian’s motion to intervene under Rule 24(a)(2) is de novo. “The standard of review of circuit court rulings on the elements governing a timely motion to intervene as a matter of right under Rule 24(a) of the West Virginia Rules of Civil Procedure is de 6 novo.” Syl. pt. 3, SWN Prod. Co., LLC v. Conley, 243 W. Va. 696, 850 S.E.2d 695 (2020). Accordingly, we consider anew Praetorian’s motion to intervene as of right under the circumstances presented in this case. B. Discussion Rule 24(a)(2) of the West Virginia Rules of Civil Procedure addresses the requirements for intervening as a matter of right: (a) Intervention of Right. – Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Under Rule 24(a)(2), an applicant for intervention as of right must meet four prerequisites: “West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction [that] is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties.” Syl. Pt. 2, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). Syl. pt. 4, SWN Prod. Co., 243 W. Va. 696, 850 S.E.2d 695. A “failure to satisfy any one of the requirements is fatal to the application” to intervene. Louis J. Palmer, Jr. & Robin Jean Davis, Litigation Handbook on West Virginia Rules of Civil Procedure, § 24(a)[2], at 7 703 (5th ed. 2017). With respect to the requirement that the applicant “claim an interest relating to the property or transaction [that] is the subject of the action,” id., we have explained that “[t]o justify intervention of right under West Virginia Rule of Civil Procedure 24(a)(2), the interest claimed by the proposed intervenor must be direct and substantial. A direct interest is one of such immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment to be rendered between the original parties. A substantial interest is one that is capable of definition, protectable under some law, and specific to the intervenor. In determining the adequacy of the interest in a motion to intervene of right, courts should also give due regard to the efficient conduct of the litigation.” Syl. Pt. 4, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). Syl. pt. 5, SWN Prod. Co., 243 W. Va. 696, 850 S.E.2d 695 (emphasis added). Focusing on its purported direct and substantial interest in the wrongful death action, Praetorian argues that, under the policy issued to Air Cargo, it has “the right and duty to defend . . . any claim, proceeding or suit against [Air Cargo] for damages payable by this insurance[.]” Praetorian seeks to intervene to “exercise its explicit contractual right under the Policy to defend Air Cargo against a single aspect of Ms. Chau’s lawsuit – specifically, Ms. Chau’s claim that Air Cargo does not enjoy workers’ compensation immunity in connection with Ms. Ho’s death[.]” Thus, although Praetorian is providing Air Cargo’s defense, under a reservation of rights, and assigned the case to its lawyer of choice, Praetorian still seeks to intervene in the wrongful death action to assert Air Cargo’s purported right to immunity. Praetorian reasons that its money, not Air Cargo’s money, is 8 potentially at risk if Ms. Chau’s negligence claim proceeds “despite Air Cargo’s obvious workers’ compensation immunity.” Praetorian correctly notes that, while this Court apparently has not spoken directly on the issue, it is widely recognized that an insurer may intervene in an action against its insured under Rule 24(a)(2) of the Federal Rules of Civil Procedure. 8 However, the authority cited by Pretorian concerns intervention by insurance companies to determine whether they have a duty to defend in the civil action, not to assert the defenses and immunities held by the insured. 9 Here, rather than asserting an interest “specific to the 8 We have observed that an insurer “had at its disposal . . . the opportunity to earlier intervene in the proceedings underlying this appeal.” DeVane v. Kennedy, 205 W. Va. 519, 536, 519 S.E.2d 622, 639 (1999) (citing, in part, Rule 24(a) of the West Virginia Rules of Civil Procedure). We also have acknowledged that the intervention procedure of Rule 24(a)(2) enables an indemnitor to have a determination as to whether[,] under the express indemnity language[,] a defense [of the indemnitee who has been sued] is required . . . . We deem this type of intervention to be one of right where an intervenor has been put on notice by the indemnitee that it should assume the defense . . . as occurred here. VanKirk v. Green Constr. Co., 195 W. Va. 714, 724, 466 S.E.2d 782, 792 (1995). 9 See, e.g., Perez v. Potts, No. 2:16-CV-612, 2016 WL 11664974 (S.D. Ohio Dec. 15, 2016) (concluding that insurer’s interest in litigating the nature of the defendants’ conduct was a sufficient interest to intervene where insureds had no coverage for knowingly breaching fiduciary duties); Appalachian Power Co. v. Kyle, No. CIV.A. 3:14- 12051, 2015 WL 418145 (S.D.W. Va. Jan. 30, 2015) (allowing insurer to intervene to resolve coverage issue based on policy exclusion); Doe v. Cnty. of Milwaukee, No. 14-C- 200, 2014 WL 3728078 (E.D. Wis. July 29, 2014) (finding intervention proper to contest 9 intervenor,” 10 Praetorian seeks to intervene to assert Air Cargo’s workers’ compensation immunity. None of the cases cited by Praetorian allowed an insurer to intervene to assert a right belonging to its insured. In fact, it has been recognized that “[a]n applicant seeking to intervene as of right under Rule 24(a) must possess standing to participate in the lawsuit.” Palmer & Davis, Litigation Handbook, § 24(a)[2], at 703. “The standing analysis for intervention as of right generally is treated as equivalent to determining whether the intervenor has a ‘legally insurance coverage under three policy exclusions); Pulse v. Layne, No. 3:12-CV-70, 2013 WL 142875 (N.D.W. Va. Jan. 11, 2013) (permitting insurer to intervene as a matter of right to seek declaratory judgment that it had no duty to defend based on exclusions contained in policy); Zellner v. Herrick, No. 08-C-0315, 2009 WL 188045 (E.D. Wis. Jan. 22, 2009), aff’d, 639 F.3d 371 (7th Cir. 2011) (granting insurer’s motion to intervene to seek a declaratory judgment that its insured was not entitled to coverage or a defense for the claims asserted in lawsuit); Appleton Papers, Inc. v. George A. Whiting Paper Co., No. 08- C-16, 2009 WL 62988, at 1 (E.D. Wis. Jan. 8, 2009) (allowing insurer to intervene to challenge the existence of a policy issued to a defendant in the action, and commenting that insurers claim is not typical in that it “is not based on a coverage dispute over the terms of the policy-it is founded in its belief that it did not issue NMSC any policy at all.”); Hagen v. Van’s Lumber & Custom Builders Inc., No. 06-C-122, 2006 WL 3404772 (E.D. Wis. Nov. 22, 2006) (permitting insurer to intervene to obtain declaratory relief regarding duty to defend and coverage under policy for damages claimed by plaintiffs); United States v. Thorson, 219 F.R.D. 623 (W.D. Wis. 2003) (allowing insurer to intervene to seek an order bifurcating insurance coverage from liability, and to stay a decision on liability until coverage determined; insurer claimed it had no obligation under terms of policy to defend insured against claims alleged by plaintiff); Briggs & Stratton Corp. v. Concrete Sales & Servs., Inc., 166 F.R.D. 43 (M.D. Ga. 1996) (granting insurer’s motion to intervene as a matter of right to obtain stay of proceedings pending resolution of insurer’s declaratory judgment action). Syl. pt. 5, in part, SWN Prod. Co., LLC v. Conley, 243 W. Va. 696, 850 10 S.E.2d 695 (2020). 10 protected’ interest under Rule 24(a). Thus, when a putative intervenor has a legally protected interest under Rule 24(a), it will also meet constitutional standing requirements, and vice versa.” Id. In its motion seeking to intervene, Praetorian stated that it sought to intervene “for the sole, limited purpose of seeking a ruling on the immunity issue,” that is, whether its insured, Air Cargo, is entitled to workers’ compensation immunity pursuant to West Virginia Code § 23-2-6. Praetorian further declared that it was “ready, willing, and able to file a summary judgment motion on the immunity issue immediately,” should the circuit court grant its motion to intervene. Praetorian went so far as to attach to its motion to intervene a copy of its proposed summary judgment motion asserting that Air Cargo is immune from Ms. Chau’s negligence claim. However, the potential immunity that Praetorian seeks to assert belongs to Air Cargo, which creates a question as to Praetorian’s standing. “One specific aspect of standing is that one generally lacks standing to assert the rights of another.” State ex rel. Leung v. Sanders, 213 W. Va. 569, 578, 584 S.E.2d 203, 212 (2003) (per curiam) (finding plaintiff in medical malpractice action lacked standing to assert any rights proposed third- party defendants had under the Medical Professional Liability Act). Thus, we have explained that 11 [t]raditionally, courts have been reluctant to allow persons to claim standing to vindicate the rights of a third party on the grounds that third parties are generally the most effective advocates of their own rights and that such litigation will result in an unnecessary adjudication of rights which the holder either does not wish to assert or will be able to enjoy regardless of the outcome of the case. Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250 (1981). There are, however, exceptions to this prudential standing rule. 11 We have held that [t]o establish jus tertii standing to vindicate the . . . rights of a third party, a litigant must (1) have suffered an injury in fact; (2) have a close relation to the third party; and (3) demonstrate some hindrance to the third party’s ability to protect his or her own interests. Syl. pt. 5, in part, Kanawha Cnty. Pub. Libr. Bd. v. Bd. of Educ. of Cnty. of Kanawha, 231 W. Va. 386, 745 S.E.2d 424 (2013). 12 In this case, Praetorian does not meet the third factor 11 The prudential standing rule “prohibits a party from litigating the rights of another.” State ex rel. Abraham Linc. Corp. v. Bedell, 216 W. Va. 99, 112 n.3, 602 S.E.2d 542, 555 n. 3 (2004) (per curiam) (Davis, J., concurring). It “is not constitutionally based. See American Fed’n of Gov’t Employees, AFL-CIO v. Rumsfeld, 321 F.3d 139, 142 (D.C. Cir. 2003) (‘Prudential standing, unlike Article III standing, is based not on the Constitution, but instead on prudent judicial administration.’ (internal quotation marks and citation omitted)).” Id. 12 The holding in Kanawha County Public Library Board is phrased in terms of vindicating the constitutional rights of a third party. See Syl. pt. 5, Kanawha Cnty. Pub. Libr. Bd. v. Bd. of Educ. of Cnty. of Kanawha, 231 W. Va. 386, 745 S.E.2d 424 (2013). However, it has been recognized that “[w]hile successful third-party standing claims have involved alleged violations of third parties’ constitutional rights,” the United States Supreme Court has “not stipulated that constitutional claims are a prerequisite.” Pa. Psychiatric Socy. v. Green Spring Health Servs., Inc., 280 F.3d 278, 291 (3d Cir. 2002). See also State ex rel. Abraham Linc. Corp., 216 W. Va. at 112, 602 S.E.2d at 555 (Davis, J., concurring) (discussing jus tertii standing as an exception to the prudential standing rule, and explaining, at footnote 3, that prudential standing is not constitutionally based). 12 of the test for jus tertii standing in that it has failed to demonstrate any hindrance to Air Cargo’s ability to assert its own workers’ compensation immunity. Not only is Air Cargo a party to the wrongful death action, in its answer to Ms. Chau’s complaint, Air Cargo asserted the defense of workers’ compensation immunity. Moreover, in her response to Pretorian’s motion to intervene, Ms. Chau pointed out that she has claimed Air Cargo is not entitled to workers’ compensation immunity due to its alleged failure to comply with certain mandatory requirements. She averred that this issue is the subject of discovery in the wrongful death action. Thus, it appears that Air Cargo is pursuing its immunity defense, albeit not in the manner that Praetorian would prefer. Based on these facts, we find that Praetorian is not entitled to intervene for the purpose of asserting Air Cargo’s workers’ compensation immunity in the wrongful death action. See, e.g., Forrest v. C.M.A. Mortg., Inc., No. 06-C-14, 2007 WL 2903311, at 1 (E.D. Wis. Oct. 3, 2007) (denying, in part, motion to intervene because insurer, “as an intervening party, does not have standing to inject its views and arguments into the litigation of the claims between [the parties]”). Although the circuit court did not rely on standing to deny Praetorian’s motion, “[t]his Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syl. pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965). Accord Syl. pt. 2, Milmoe v. Paramount Senior Living at Ona, LLC, ___ W. Va. ___, 875 S.E.2d 13 206 (2022). Accordingly, we affirm the circuit court’s denial of Praetorian’s motion to intervene in the wrongful death action. III. DOCKET NO. 21-0682 – DECLARATORY JUDGMENT Praetorian appeals two orders issued by the circuit court in its declaratory judgment action, one that granted Ms. Chau’s and Air Cargo’s motions to dismiss Count II of Praetorian’s declaratory judgment complaint, and one that denied Praetorian’s motion for summary judgment. Both orders were entered on July 28, 2021. Although Praetorian sets forth fourteen assignments of error, its analysis addresses only three main alleged errors: (1) the circuit court erred in finding the subject policy does not exclude coverage for Ms. Chau’s deliberate intent claim; (2) the circuit court erred in applying the policy’s domestic workers endorsement; and (3) the circuit court erred by dismissing Count II of Praetorian’s complaint. After we set out the appropriate standards for our review of these issues, we will address them in turn. A. Standard of Review Praetorian first challenges the circuit court’s order denying its motion for summary judgment. Typically, the denial of a motion for summary judgment is an interlocutory ruling not subject to appellate review. However, this Court has explained that 14 where . . . the order denying one party’s motion for summary judgment simultaneously grants summary judgment to another party, such an order is final and appealable. In this regard, we have observed that “[a] motion for summary judgment which is granted . . . is an appealable final order.” Horace Mann Ins. Co. v. Leeber, 180 W. Va. 375, 377 n. 5, 376 S.E.2d 581, 583 n. 5 (1988) (citation omitted). This is so because, “an order qualifies as a final order when it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Durm v. Heck’s, Inc., 184 W. Va. 562, 566, 401 S.E.2d 908, 912 (1991) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911, 921 (1945)) (additional citation omitted). Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 100, 576 S.E.2d 807, 827 (2002). Here, the circuit court did not deny summary judgment based on the existence of material questions of fact. Rather, the circuit court found that the policy’s exclusion for intentional acts did not apply to preclude coverage for Ms. Chau’s deliberate intent claim. By so doing, the circuit court effectively, though not expressly, granted summary judgment to Ms. Chau and Air Cargo by resolving the issue of coverage in their favor. Accordingly, the denial of Praetorian’s motion for summary judgment is appealable, and our review is de novo. “This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. pt. 1, id. Likewise, our review of the circuit court’s order dismissing Count II of Praetorian’s declaratory judgment complaint is de novo. “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). 15 B. Discussion Applying the standard of review set forth above, we will address the three general assignments of error asserted by Praetorian in turn. 1. Policy Exclusion for Deliberate Intent. Praetorian first argues that the circuit court erred by failing to apply the exclusion for deliberate intent claims found in the policy issued to Air Cargo. In her amended complaint, Ms. Chau asserted a deliberate intent claim against Air Cargo under West Virginia Code § 23-4-2(d)(2)(B), alleging, in relevant part, that Air Cargo violated certain safety statutes, rules, regulations, and standards. West Virginia Code § 23-4-2(d) provides two ways for an employer to lose the immunity from suit provided by our workers’ compensation law, one based on intentional acts, as set out in paragraph (2)(A) below, and the other based upon the violation of safety statutes and rules, as set out in paragraph (2)(B) below, which is the type of claim asserted by Ms. Chau: (2) The immunity from suit provided under this section and under sections six and six-a [§ 23-2-6 and § 23-2-6a], article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention[.”] This requirement may be satisfied only if: (A) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (i) Conduct which produces a result that was not specifically intended; (ii) conduct which constitutes negligence, no matter how gross or 16 aggravated; or (iii) willful, wanton or reckless misconduct; or (B) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven: (i) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death; (ii) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition. .... (iii) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well- known safety standard within the industry or business of the employer. .... (iv) That notwithstanding the existence of the facts set forth in subparagraphs (i) through (iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge under subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and 17 (v) That the employee exposed suffered serious compensable injury or compensable death as defined in section one [§ 23-4-1], article four, chapter twenty-three as a direct and proximate result of the specific unsafe working condition. . . . W. Va. Code § 23-4-2(d)(2) (emphasis added). The policy Praetorian issued to Air Cargo contains the following exclusion: This insurance does not cover: 5. bodily injury intentionally caused or aggravated by you or which is the result of your engaging in conduct equivalent to an intentional tort, however defined, including by your deliberate intention as that term is defined by W. Va. Code § 23-4-2(d)(2). The circuit court found this exclusion applied only to intentional torts, and therefore did not apply to a deliberate intent action founded on the violation of a safety rule or statute. Accordingly, the court found the policy excluded only deliberate intent actions brought under West Virginia Code § 23-4-2(d)(2)(A) and did not exclude deliberate intent actions asserted under West Virginia Code § 23-4-2(d)(2)(B). Wisconsin law applies to the interpretation of this policy. 13 Under Wisconsin law, unambiguous policy language is simply applied. “If the words of a contract convey a 13 The parties agree that Wisconsin law applies because the policy was issued to Air Cargo at its headquarters in Wisconsin. See Syl., Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 182 W. Va. 580, 390 S.E. 2d 562 (1990) (“In a case involving the interpretation 18 clear and unambiguous meaning, our analysis ends. [Goldstein v. Lindner, 648 N.W.2d 892, 896 (Wis. Ct. App. 2002)].” Marks v. Houston Cas. Co., 866 N.W.2d 393, 401 (Wis. Ct. App. 2015) (applying this standard to an insurance policy). We find no ambiguity in the exclusion quoted above. The exclusion plainly states that it does not cover bodily injury caused or aggravated by an insured’s conduct equivalent to “deliberate intention as that term is defined by W. Va. Code § 23-4-2(d)(2).” Instead of applying this plain language, the circuit court limited its application to only West Virginia Code § 23-4-2(d)(2)(A). By doing so, the circuit court read into the exclusion a limitation that simply is not there. The policy language refers to the definition of “deliberate intention” found in West Virginia Code § 23-4-2(d)(2), which includes both subparagraphs (A) and (B). Air Cargo does not have coverage under this policy for the deliberate intent claim asserted by Ms. Chau under West Virginia Code § 23-4-2(d)(2)(B) as the policy plainly excludes coverage for such a claim. Therefore, we find that the circuit court erred in failing to apply the clear and unambiguous policy language. Praetorian additionally argues that the circuit court erred in finding the deliberate intent exclusion violates Wisconsin Statutes §§ 632.23 and 632.25. We agree. The circuit court found that the intentional act exclusion violated Wisconsin Statutes of an insurance policy, made in one state to be performed in another, the law of the state of the formation of the contract shall govern, unless another state has a more significant relationship to the transaction and the parties, or the law of the other state is contrary to the public policy of this state.”). 19 § 632.23, because this provision prohibits excluding or denying coverage based on the operation of an aircraft in violation of an air regulation. This statute is titled “[p]rohibited exclusions in aircraft insurance policies,” and states: “[n]o policy covering any liability arising out of the ownership, maintenance or use of an aircraft, may exclude or deny coverage because the aircraft is operated in violation of air regulation, whether derived from federal or state law or local ordinance.” Wis. Stat. § 632.23 (emphasis added). Under Wisconsin law, “‘[s]tatutory interpretation begins with the language of the statute.’ State ex rel. Kalal v. Cir. Ct. for Dane Cty., [681 N.W.2d 110, 124 (Wis. 2004)].” State v. Dorsey, 906 N.W.2d 158, 168 (Wis. 2018). “‘[I]f the meaning of the statute is plain, we ordinarily stop the inquiry.’ Kalal, [681 N.W.2d at 124.]” Dorsey, 906 N.W.2d at 168. The Supreme Court of Wisconsin has further explained that Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Kalal, 681 N.W.2d at 124. Furthermore, although “[s]tatutory titles are not part of the statute. See WIS. STAT. § 990.001(6), . . . [they] ‘may be resorted to in order to resolve a doubt as to statutory meaning . . . .’ State v. Holcomb, [886 N.W.2d 100, 104 (Wis. Ct. App. 2016).” In re. E.K., No. 2021AP1377, 2022 WL 4242054, at *10 (Wis. Ct. App. Sept. 15, 2022). While the text of Wisconsin Statutes § 632.23 does not specify the type of 20 insurance to which it applies, reading that language in context, and considering its title, it is obvious that it applies to aircraft insurance policies. Because the Praetorian policy at issue is a workers’ compensation and employers liability insurance policy, Wisconsin Statutes § 632.23 has no application, and the circuit court erred in finding that it precluded Praetorian from enforcing its deliberate intent exclusion. The circuit court also found that, under Wisconsin Statutes § 632.25, “in the event it is determined that Air Cargo failed to comply with rules concerning the safety of persons, Praetorian shall be responsible to the Estate within the policy insurance limits of coverage” despite the policy’s deliberate intent exclusion. Wisconsin Statutes § 632.25 provides that Any condition in an employer’s liability policy requiring compliance by the insured with rules concerning the safety of persons shall be limited in its effect in such a way that in the event of breach by the insured the insurer shall nevertheless be responsible to the injured person under s. 632.24 as if the condition has not been breached, but shall be subrogated to the injured person’s claim against the insured and be entitled to reimbursement by the latter. Wis. Stat. § 632.25. This provision applies to “conditions,” not “exclusions.” Under Wisconsin law, “‘[i]n an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.’ Kan.-Neb. Nat. Gas Co. v. Hawkeye-Sec. Ins. Co., [240 N.W.2d 28, 32 (Neb. 1976)].” Bortz v. 21 Merrimac Mut. Ins. Co., 286 N.W.2d 16, 19 (Wis. Ct. App. 1979). The Wisconsin Court of Appeals has further explained that Section 632.25, Stats., refers to the “breach” of the “condition.” This is in keeping with the principle that conditions but not exceptions or exclusions may be breached. Conditions provide for avoidance of liability if they are breached. An exception does not provide for a forfeiture, nor need it do so, since there never was an assumption of risk, there can be no liability under the policy although the policy remains in force in respect to the risks assumed. . . . A condition subsequent is to be distinguished from an exclusion from the coverage; the breach of the former is to terminate or suspend the insurance, while the effect of the latter is to declare that there never was insurance with respect to the excluded risk. . . . Bortz, 286 N.W.2d at 20 (citations omitted). Because Wisconsin Statutes § 632.25 applies to conditions rather than exclusions, the circuit court erred in applying it to the deliberate intent policy exclusion at issue in this case. 2. The Residence Employees Endorsement (referred to by Praetorian as the Domestic Workers Endorsement). The workers’ compensation and employer’s liability insurance policy issued to Air Cargo includes a “Voluntary Compensation and Employers Liability Coverage for Residence Employees Endorsement” (“residence employees endorsement” or “endorsement”). The circuit court found that the deliberate intent exclusion did not apply to the residence employees endorsement; therefore, coverage existed for deliberate intent claims asserted by residence employees. The endorsement 22 states that certain terms, including “residence employee,” “have the meanings stated in the policy.” However, the policy does not provide a definition for this term. Absent a definition for the term “residence employee,” the circuit court found the endorsement ambiguous. Applying Wisconsin law, under which ambiguities must be resolved in favor of the insured, the circuit court concluded that Ms. Ho “was arguably a ‘residence employee’ of [Air Cargo] within the meaning of the policy,” which entitled Air Cargo to coverage for Ms. Chau’s deliberate intent claim under the residence employees endorsement. To reach this conclusion, the circuit court reasoned that Under Wisconsin law, “residence” has been defined simply as “a person’s house.” State v. Lorentz, 389 Wis. 2d 377, 936 N.W.2d 415 ([Wis. Ct. App.] 2019). However, the term has also frequently been used to describe the act or fact of dwelling in a particular locality for some period of time and/or the status of a legal resident. See, e.g., County of Dane v. Racine County, 118 Wis. 2d 494, 347 N.W.2d 622 ([Wis. Ct. App.] 1984) (defining “residence” as “the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation”); Golembiewski v. City of Milwaukee, 231 Wis. 2d 719, 605 N.W.2d 663 ([Wis. Ct. App.] 1999) (defining “residence” as “personal presence at some place of abode with no present intention of definite and early removal”); Winnebago County v. [S.A.], 120 Wis. 2d 683, 357 N.W.2d 566 ([Wis. Ct. App.] 1984) [(unpublished table decision)] (defining “residence” as being physically present in a “county” with indefinite intent to remain). Based upon the above, the [c]ourt finds that it is reasonable to define “residence employee” as an employee of the insured who resides or has their legal residency in the state covered by the endorsement (in this case West Virginia). . . . 23 Praetorian argues that the circuit court erred by finding that Ms. Ho was a residence employee and, as a result, that Air Cargo had coverage for Ms. Chau’s deliberate intent claim under the residence employee endorsement. We agree. Under Wisconsin law, if “language that is undefined in the policy is ‘susceptible to more than one reasonable construction when read in context,’ it is ambiguous.” Acuity v. Bagadia, 750 N.W.2d 817, 823 (Wis. 2008) (emphasis added; citation omitted). Still, Wisconsin courts “interpret policy language according to its plain and ordinary meaning as understood by a reasonable person in the position of the insured.” Hirschhorn v. Auto-Owners Ins. Co., 809 N.W.2d 529, 535 (Wis. 2012). Additionally, “ambiguities are construed against the insurer, the drafter of the policy. . . . However, this does not mean that we must embrace any grammatically plausible interpretation created by an insured for purposes of litigation.” Id. (citations omitted). Moreover, “[c]ourts are to ‘interpret policy terms not in isolation, but rather in the context of the policy as a whole.’ Day v. Allstate Indem. Co., [798 N.W.2d 199, 206 (Wis. 2011)].” Connors v. Zurich Am. Ins. Co., 872 N.W.2d 109, 116 (Wis. Ct. App. 2015). The circuit court’s analysis of the residence employee endorsement fails to read the term “residence employee” in context. To place the term “residence employee” in its proper context, the entire endorsement must be considered. This includes a schedule of rates for “Residence Employees” that places them in two classes: “Domestic Workers- Residences-Full-Time” and “Domestic Workers-Residences-Part-Time.” Thus, when read 24 in its proper context, the residence employees endorsement clearly would not be “understood by a reasonable person in the position of the insured” to include the first officer of a flight crew, which is the position the decedent, Ms. Ho, held with Air Cargo. Hirschhorn, 809 N.W.2d at 535. Accordingly, we conclude that Ms. Ho was not a residence employee, and the circuit court erred in finding that Air Cargo was entitled to coverage for Ms. Chau’s deliberate intent claim under the residence employees endorsement of the Praetorian policy. Given the unambiguous language of the deliberate intent exclusion, and reading the residence employees endorsement in the proper context, we conclude that the circuit court erred by failing to grant summary judgment to Praetorian based upon the deliberate intent exclusion, which precludes coverage for Ms. Chau’s deliberate intent claim against Air Cargo. Thus, we reverse the circuit court’s summary judgement order, entered on July 28, 2021, and remand for entry of an order granting summary judgment to Praetorian on this issue. 3. Dismissal of Count II of Praetorian’s Declaratory Judgment Complaint. Count II of Praetorian’s declaratory judgment complaint asserted that Air Cargo was entitled to workers’ compensation immunity from Ms. Chau’s negligence claim in the wrongful death action under West Virginia Code § 23-2-6. Ms. Chau argued that the circuit court lacked subject-matter jurisdiction over Count II because resolution of the 25 merits of her negligence claim is the subject of her wrongful death action pending before another Kanawha County circuit court judge. Ms. Chau additionally claimed that Praetorian had no standing to litigate the merits of her underlying wrongful death negligence claim. Air Cargo filed a separate motion to dismiss Count II of Praetorian’s complaint, but joined the arguments made by Ms. Chau and sought dismissal on those same grounds. By order entered on July 28, 2021, the circuit court granted the motions and dismissed Count II of Praetorian’s complaint, concluding that Count II did not meet the requirements for a justiciable controversy in a declaratory judgment action insofar as the substantive claims of Count II were pending in another court. The circuit court pointed out that conflicting resolutions could be reached if both courts addressed the issue. Finally, the circuit court concluded that “Praetorian has presented no precedent recognizing an insurer’s contingent indemnity obligation to create adverseness among it, an injured plaintiff, and its insured to establish standing to litigate the merits of a tort claim.” Before this Court, Praetorian argues that the circuit court erred by dismissing Count II of its declaratory judgment complaint. However, as explained above in Section II.B. of this opinion, we conclude that Praetorian has no standing to assert Air Cargo’s entitlement to workers’ compensation immunity. For this reason, we find no error and affirm the circuit court’s order dismissing Count II of Praetorian’s declaratory judgment complaint. 26 IV. CONCLUSION For the reasons explained above, in the appeal docketed as number 21-0243, we affirm the order of the Circuit Court of Kanawha County, entered on February 25, 2021, denying Praetorian’s motion to intervene in Ms. Chau’s wrongful death action because Praetorian lacked standing to intervene for the sole purpose of asserting Air Cargo’s right to workers’ compensation immunity. In the appeal docketed as number 21-0682, we affirm in part, reverse in part, and remand. We reverse the order of the Circuit Court of Kanawha County, entered on July 28, 2021, denying Praetorian’s motion for summary judgment as to its entitlement to a declaration that the policy issued to Air Cargo excluded coverage for the deliberate intent claim Ms. Chau has asserted in her wrongful death action. Because we conclude the exclusion applies, we remand for entry of an order granting summary judgment to Praetorian on this issue. However, we affirm the circuit court’s order, also entered on July 28, 2021, dismissing Count II of Praetorian’s declaratory judgment complaint, which sought to assert Air Cargo’s right to workers’ compensation immunity, as we find Praetorian lacks standing on this issue. Docket No. 21-0243, Affirmed. Docket No. 21-0682, Affirmed in part, Reversed in part, and Remanded. 27	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484754/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED _____________ November 17, 2022 released at 3:00 p.m. No. 21-0387 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS _____________ OF WEST VIRGINIA JOEY J. BUTNER, Plaintiff Below, Petitioner, v. HIGHLAWN MEMORIAL PARK COMPANY, A West Virginia Corporation, and HIGHLAWN FUNERAL CHAPEL, INC., A West Virginia Corporation, Defendants Below, Respondents. ___________________________________________________________ Appeal from the Circuit Court of Fayette County The Honorable Paul M. Blake, Jr., Judge Civil Action No. 19-C-48 AFFIRMED _________________________________________________________ Submitted: October 18, 2022 Filed: November 17, 2022 Anthony J. Majestro, Esq. Brent K. Kesner, Esq. Powell & Majestro, PLLC Ernest G. Hentschel, II, Esq. Charleston, West Virginia Mark L. Garren, Esq. Kesner & Kesner, PLLC S. Brooks West, II, Esq. Charleston, West Virginia David A. Dobson, Esq. Counsel for Respondents West Law Firm, L.C. Charleston, West Virginia Amanda J. Taylor, Esq. New, Taylor and Associates Beckley, West Virginia Nathan J. Chill, Esq. Poca, West Virginia Counsel for Petitioner JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD concurs and reserves the right to file a separate opinion. SYLLABUS BY THE COURT 1. “Under West Virginia Code § 55-7-28(a) (2015), whether a danger was open, obvious, reasonably apparent or as well known to the person injured as it was to the owner or occupant is a question of fact.” Syl. Pt. 12, Gable v. Gable, 245 W. Va. 213, 858 S.E.2d 838 (2021). 2. “‘A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 4, Frazier v. Slye, 246 W. Va. 407, 874 S.E.2d 10 (2022). 3. “‘“It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.” Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).’ Syl. Pt. 2, Conseco Fin. Serv’g Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).” Syl. Pt. 8, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019). 4. “‘The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether i there is a genuine issue for trial.’ Syllabus Point 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 4, Goodwin v. Shaffer, 246 W. Va. 354, 873 S.E.2d 885 (2022). 5. “‘This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).” Syl. Pt. 2, Adkins v. Gatson, 218 W. Va. 332, 624 S.E.2d 769 (2005). 6. Unsworn and unverified documents are not of sufficient evidentiary quality to be given weight in a circuit court’s determination of whether to grant a motion for summary judgment. However, in its discretion the court may consider an unsworn and unverified document if it is self-authenticating under West Virginia Rule of Evidence 902 or otherwise carries significant indicia of reliability; if it has been signed or otherwise acknowledged as authentic by a person with first-hand knowledge of its contents; or if there has been no objection made to its authenticity. ii WOOTON, Justice: The plaintiff/petitioner Joey J. Butner (“the petitioner”) appeals from an order of the Circuit Court of Fayette County, West Virginia, granting summary judgment to the defendants/respondents Highlawn Memorial Park Company and Highlawn Funeral Chapel, Inc. (variously “Highlawn” or “the respondents”) on all claims asserted in the petitioner’s civil complaint for damages arising from injuries he sustained in a fall on the respondents’ property. The circuit court held that the petitioner’s claims were barred by application of West Virginia Code section 55-7-28(a) (2016), commonly referred to as “the open and obvious doctrine,” and further held that the petitioner had failed to produce any evidence of negligence on the part of either respondent. Based on our review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we conclude that the circuit court erred in its application of the open and obvious doctrine. Nonetheless, we affirm the court’s grant of summary judgment for the respondents because none of the evidence produced by the petitioner in opposition to the respondents’ motion “show[ed] that there is a genuine issue for trial” 1 on the issue of negligence. 1 W. Va. R. Civ. P. 56 (providing, in relevant part, that “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. ”). 1 I. Facts and Procedural Background On July 23, 2017, the petitioner was on his way home to his residence in North Carolina when he stopped at Highlawn Memorial Park to pay his respects at the gravesite of his brother-in-law, who had been buried there approximately two weeks earlier. The petitioner testified that he saw no holes or voids at or around the gravesite and saw nothing that would put him on notice that the ground surrounding the gravesite was not firm; 2 however, the ground beneath the petitioner gave way and he fell, resulting in a serious injury to his right shoulder. The following day, at the petitioner’s request, his niece, Molly Brown, took photographs of the gravesite which showed three holes along the perimeter thereof. When questioned about the photographs during his deposition, the petitioner testified that one of the holes had been created when he fell the previous day, but reiterated that he had not seen either of the other two holes on the date of his injury: Q. Okay. You’ve testified here today, Mr. Butner, that you did not notice any holes around the grave sit prior to the fall; is that correct? A. I did not notice any holes or anything. On April 12, 2019, the petitioner filed his complaint in the Circuit Court of Fayette County, alleging that the respondents’ conduct had been negligent (Count I) as well as “willful, wanton and reckless” (Count II), thus entitling the petitioner to both compensatory and punitive damages. Following discovery, the respondents filed their 2 In that regard, the owner of Highlawn testified that there is no signage (or any other type of warning) as to areas of the cemetery in which visitors should avoid walking. 2 respective motions for summary judgment on January 11, 2021; the petitioner filed his response thereto on January 12, 2021, 3 and then an amended response on February 23, 2021. Appended to the petitioner’s original response was “Plaintiff’s Third Supplemental Responses to Defendants’ First Set of Interrogatories and Requests for Production of Documents to Plaintiff,” which contained, inter alia, the following Answer to Interrogatory No. 17: 1. Plaintiff expects that previously disclosed fact witness, Andrew Lambert, will testify at trial as follows: That prior to May 2018, Mr. Lambert worked on the maintenance staff at Highlawn Memorial Park Company. After leaving employment at Highlawn Memorial Park Company, Mr. Lambert went to work for Blue Ridge Memorial Gardens in Beckley, West Virginia. Mr. Lambert is expected to testify that the grave filling procedures that he and other maintenance staff employees were instructed to use at Highlawn Memorial Park Company are different from the current grave filling procedures he has been instructed to use at Blue Ridge Memorial Gardens. While an employee at Highlawn Memorial Park Company, Mr. Lambert was not aware of any formal grave filling procedures, including procedures for tamping. All instructions during his employment with Highlawn Memorial Park Company were verbal and there was not a set of standards or formal rules for grave digging or backfilling. After after [sic] seeking employment at Blue Ridge Memorial Gardens, Mr. Lambert underwent a training course on grave digging and backfilling procedures taught by Brian Brooks, the general manager of SCI, Service Corp. International. 3 For reasons not apparent on the face of the appendix record, the motion for summary judgment had been served on the petitioner’s counsel on January 6, 2021, five days before it was filed with the circuit court. 3 Mr. Lambert is expected to testify that the grave digging and backfilling procedures he uses at his current employer are in his opinion superior to those used during his employment at Highlawn Memorial Park Company. Mr. Lambert is additionally expected to testify that while an employee at Highlawn Memorial Park Company, holes and voids frequently occurred on recently dug and filled graves. Mr. Lambert believes that the corners and sides of the graves were the most notorious areas of recently filled graves for voids to occur while he was an employee at Highlawn Memorial Park Company. Mr. Lambert further believes it is common knowledge in the funeral and cemetery business that the corners and sides of dug and filled graves are the areas most prone to sinkholes and collapse and furthermore that it is common knowledge in the funeral and cemetery business that if you do not properly tamp a gravesite, the corners and sides are prone to sinkholes, voids, holes or collapse. To combat potential sinkage of backfilled graves in these known problem areas, Mr. Lambert will state that he was taught by Brian Brooks that it is SCIs [sic] practice to backfill around the corner and sides of the grave with coarse construction sand as opposed to dirt, due to the superior compaction of the construction sand. Mr. Lambert is further expected to testify that this practice of backfilling the sides and corners of graves with sand results in a vast decrease of occurrence of sinkage, voids, holes and collapse. Additionally, Mr. Lambert is expected to testify that at his current employer, the need to come back later and re-fill a grave or address grave sinkholes, voids, holes or collapse rarely occurs. While at Highlawn Memorial Park Company, he continuously had to come back at a later time after a grave was filled and address the occurrence of sinkholes, voids, holes and collapse issues of graves. While employed at Highlawn Memorial Park Company, Mr. Lambert did not utilize a backhoe for grave filling or grave preparation. Mr. Lambert is personally aware of multiple instances of holes and voids occurring at gravesites while an employee of Highlawn Memorial Park Company. Mr. Lambert will also testify that he personally fell in a hidden hole at a gravesite at Highlawn Memorial Park 4 Company that appeared to be solid and covered with sod. After he fell, Mr. Lambert noticed there was a void underneath the sod where the soil was not properly tamped. Mr. Lambert is expected to testify that he hurt his wrist during the incident when he fell in the grave, and required care at the hospital. While an employee at Highlawn Memorial Park Company, Mr. Lambert had no formal inspection procedures. Instead, he was told “if you see something fix it.” As compared to his current employer, Mr. Lambert does not think that it is a good of safe practice. Based on his current training and work experience at Blue Ridge Memorial Gardens, Mr. Lambert does not believe Highlawn Memorial Park Company was using proper grave filling and tamping procedures while he was employed there. 2. Through additional discovery, Plaintiff now discloses Brian Brooks, a location manager for SCI, as a witness who may be called at trial. It is expected that Mr. Brooks will testify as follows: That he is a location manager of one funeral home and two cemeteries in West Virginia that are owned by SCI. Mr. Brooks provides a training course that is given to all groundskeepers and maintenance employees at SCI owned cemeteries. Part of SCI’s training course consists of proper grave digging and backfilling procedures, including tamping methods. Mr. Brooks personally taught the subject SCI course to Andrew Lambert, who works at Blue Ridge Memorial Gardens. In addition to this one day training course, SCI has other additional periodic training it provides its groundskeepers and maintenance employees related to proper grave digging and backfilling procedures including tamping methods. Mr. Brooks is further expected to testify that SCI maintains grave inspection and grave digging and backfilling policies and procedures for use and reference by all of SCIs [sic] employees. Mr. Brooks believes that the areas of the corners and sides of recently backfilled graves are problem areas that are prone to sinkage, voids, holes and collapse, which is commonly known in the funeral and cemetery industry. To combat potential sinkage of backfilled graves in these known problem areas, it is SCIs [sic] practice to backfill around the corner and sides of the grave with sand as opposed 5 to dirt, due to the superior compaction of sand. Mr. Brooks believes that this practice of backfilling the sides and corners of graves with sand results in a vast decrease in occurrence of sinkage, voids, holes and collapse. Significantly, for purposes of resolving the issues raised in this appeal, the petitioner’s answers to respondents’ interrogatories were not verified and thus did not conform to the requirement of West Virginia Rules of Civil Procedure 33(b)(1) that they “shall be answered separately and fully in writing under oath.” (Emphasis added). Thereafter, petitioner filed a supplemental response and appended what was designated as a “written transcript of Mr. Lambert’s testimony as well as the original recording for the Court’s review.” 4 This designation was inaccurate, as Mr. Lambert had never testified; rather, the transcript and recording were of a telephone conversation between Mr. Lambert and one of the petitioner’s attorneys, Nathan J. Chill. The transcript was undated, unsigned, and unverified. Further, as was the case with the petitioner’s original response, the supplemental answer to respondents’ interrogatories was not verified. Following a hearing, the circuit court granted summary judgment for the respondents on all claims. Although the petitioner had testified that he had not seen the 4 The original recording was not made a part of the appendix record on appeal, and therefore we express no view on its authenticity, admissibility, or relevance to the issues discussed herein. 6 surface holes and voids shown in the photographs – photographs which were, it will be recalled, taken the day after the incident – the court held that the holes and voids were nonetheless open and obvious because should a jury determine that the holes and voids were present, as depicted in the photographs taken following the incident, the Court finds that there would be no duty of care upon the Defendants to protect Plaintiff from the obvious and apparent danger presented by the same. As such, pursuant to W. Va. Code § 55-7-28(a), the Court finds and concludes Defendants could not be held liable for any civil damages or injuries sustained by Plaintiff as a result of falling into one of these open and obvious holes. Additionally, the court reasoned that if the holes and voids were “not visible or discernible to [the petitioner] as he walked to, and stood at, the grave site,” then a priori they could not have been visible or discernable to the respondents either. Thus, the court concluded, the respondents owed no duty of care to protect the petitioner because any dangers were “as well known to the person injured as they [were] to the premises owner or occupant,” Id. § 55-7-28(a). Finally, the court found that the petitioner’s claims failed in any event because the testimony of his expert witness, Mr. Stovall, was wholly conclusory; he could point to no actual evidence that the respondents had actual or constructive knowledge of the alleged defective condition that caused the petitioner’s fall, or that the respondents had failed to adequately pack the dirt back into the grave before they replaced the sod. Further, although Mr. Stovall was critical of the respondents’ failure to have written policies and procedures for opening and closing graves, he cited no authority to support his contention that such 7 written policies and procedures were industry standards or otherwise required by law. The court refused to credit the anticipated evidence of Mr. Lambert and Mr. Brooks, finding that because Mr. Lambert had actually closed the grave in question when he was still an employee of the respondents, he was “essentially criticizing his own workmanship”; that both individuals’ testimony “go towards the possible cause of the hidden hole and not to its visibility on the date of the alleged incident”; and that there was no evidence “which would give historical context” to the anticipated testimony. This appeal followed. II. Standard of Review As was the case in Lehman v. United Bank, Inc., 228 W. Va. 202, 719 S.E.2d 370 (2011), we are reviewing both the circuit court’s summary judgment order and its interpretation of West Virginia Code section 55-7-28(a), upon which the grant of summary judgment to the respondents largely rested. We have found that [t]he same standard of review applies in both instances. As firmly established in our case law, “[a] circuit court’s entry of summary judgment is reviewed de novo,” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), and “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Lehman, 228 W. Va. at 204, 719 S.E.2d at 372. 8 III. Discussion At the outset, we note that the question of whether the allegedly dangerous condition of the gravesite was “open and obvious,” id. § 55-7-28(a), could be deemed moot in light of our holding that the petitioner failed to produce any evidence of negligence on the respondents’ part. Nonetheless, we conclude that it is appropriate for this Court to address the issue because it is inextricably intertwined with, and necessary to an understanding of, the totality of the factual and legal issues presented in this case. The statute at issue, generally referred to as the “open and obvious danger doctrine,” provides in subsection (a) that [a] possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers. Id. In subsection (c) of the statute, the Legislature stated that its specific intention was to “reinstate[] and codif[y] the open and obvious hazard doctrine,” thereby legislatively overturning this Court’s decision in Hersh v. E-T Enterprises, Limited Partnership, 232 W. Va. 305, 752 S.E.2d 336 (2013), a case wherein we abolished the common law doctrine – a doctrine whose judicial adoption dated back to the dawn of the twentieth century. See W. Va. Code § 55-7-28(c); Hersh, 232 W. Va. at 316, 752 S.E.2d at 347. Since the Legislature’s reinstatement of the open and obvious danger doctrine, this Court has had 9 occasion to analyze its application to a number of different fact patterns. Compare Syl. Pt. 13, Gable v. Gable, 245 W. Va. 213, 858 S.E.2d 838 (2021) (“Under West Virginia Code § 55-7-28(a) (2015), whether a danger was open, obvious, reasonably apparent or as well known to the person injured as it was to the owner or occupant is a question of fact.”), and W. Liberty Univ. Bd. of Governors v. Lane, No. 16-0942, 2018 WL 300564, at 4 (W. Va. Jan. 15, 2018) (memorandum decision) (disputed issue of fact as to whether the dangerous condition was “as well known to [plaintiff] as [it was] to the owner”), with Tabit v. Kroger Grp. Coop., Inc., No. 18-0287, 2019 WL 517823, at 3 (W. Va. Feb. 11, 2019) (memorandum decision) (plaintiff’s allegation of ADA violations “fall short of instigating the proximate cause of [the shopper]’s injury: that is, her entanglement with a large and obvious cautionary sign in the common space of a public restroom.”), and Drew v. Dillons Furniture, No. 20-0842, 2022 WL 669257, at 5 (W. Va. Mar. 7, 2022) (memorandum decision) (“any danger posed by the rocking chairs [positioned near the edge of a porch] was as well known to Ms. Drew as to respondents and would have been as readily apparent to Ms. Drew as to respondents.”). The instant case is factually akin to Gable and West Liberty University in that the petitioner’s sworn testimony that he saw no holes or voids at the gravesite on the day of his fall, together with the clear inference – an inference that must be drawn at the summary judgment stage 5 ̶ that no holes or voids existed at that time, created a disputed 5 We have previously held that 10 issue of material fact for resolution by a jury. Contrary to the reasoning of the circuit court, the respondents were not entitled to summary judgment on the ground that the jury could find in their favor on the issue of whether the danger was open and obvious; the question was whether there was any evidence from which the jury could find in the petitioner’s favor on that issue. Because there was such evidence in the record, specifically, the petitioner’s sworn testimony and the inferences to be drawn therefrom, the circuit court erred in granting summary judgment on the ground that any danger at the gravesite was open and obvious as a matter of law. The circuit court also concluded that the respondents were entitled to summary judgment even if the petitioner hadn’t seen any holes or voids at the gravesite, because if a dangerous condition wasn’t visible to the petitioner, then it wasn’t visible to the respondents either. Accordingly, the court reasoned, under the open and obvious danger doctrine the respondents would prevail because they “owe[d] no duty of care to protect “[a]t the summary judgment stage, the benefit of the doubt is to be given to the nonmoving party. All inferences drawn are to be made in favor of the nonmoving party. Both this Court and the court below ‘must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion.’ Painter v. Peavy, 192 W.Va. at 192, 451 S.E.2d at 758.” Harris v. Jones, 209 W. Va. 557, 561, 550 S.E.2d 93, 97 (2001) (emphasis added). 11 others against dangers that are . . . as well known to the person injured as they are to the owner or occupant.” See W. Va. Code § 55-7-28(a). We disagree with the court’s analysis, which turns the open and obvious danger doctrine inside out and creates a lose-lose proposition for any plaintiff: if the plaintiff can see or otherwise perceive the danger, he or she loses because the danger is open and obvious; and if the plaintiff cannot see or otherwise perceive the danger, he or she still loses because a priori the defendant can’t see or perceive it either and therefore has no duty of care to the plaintiff. It is well established in our jurisprudence that “‘[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 4, Frazier v. Slye, 246 W. Va. 407, 874 S.E.2d 10 (2022). Here, the statutory language that a defendant “owes no duty of care to protect others against dangers that are . . . as well known to the person injured as they are to the owner or occupant,” W. Va. Code § 55-7-28(a), is not only clear on its face, but clearly intended by the Legislature to shield owners, lessees or lawful occupants of land from liability in cases where the danger is known to them, but such danger is equally well known to the plaintiff. We explained this statutory provision in West Liberty University, where the plaintiff was injured when he attempted to dunk a ball through a basketball hoop that had been set up at the edge of a swimming pool; the hoop fell over and struck the plaintiff as he emerged from the water. 2018 WL 300564, at 4. 12 Here, the pretrial record established genuine issues of material fact, particularly as to whether the defendants failed to keep the pool in a reasonably safe condition. Defendants had actual knowledge of the hoop’s dangers. Moreover, genuine issues existed regarding whether plaintiff’s friends’ conduct or that of the lifeguard created an open and obvious condition. In this case, defendants’ employees, including the lifeguard and Dr. Noble, admitted knowledge of the dangerous condition created by the hoop. In contrast, the record on appeal shows that plaintiff had no prior knowledge of the hoop’s danger because he had used the hoop only this one time, and only for about fifteen minutes before his injury. Further, plaintiff did not help the lifeguard set the hoop in place at the pool’s edge, he did not speak to the lifeguard, and he testified that he did not hear the lifeguard speak to him. Further, plaintiff had no training regarding the proper set up or use of the hoop. Thus, because the dangerous condition was not “as well known to [plaintiff] as [it was] to the owner,” defendants were required to establish that the dangerous condition was “open, obvious, [and] reasonably apparent” to plaintiff. Id. (emphasis added). As noted, the circuit court’s construction of the statutory language would lead to an absurd result: a plaintiff could never win in a premises liability case where he or she didn’t see or otherwise perceive the danger. In this regard, we have held that “‘“It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.” Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).’ Syl. Pt. 2, Conseco Fin. Serv’g Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).” 13 Syl. Pt. 8, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019). We therefore reject the circuit court’s construction of the statute; evidence that a plaintiff did not see or otherwise perceive the danger does not mean, as a matter of law, that the defendant could not have been aware of it either. To the contrary, we reaffirm our prior cases holding that the statutory language at issue, specifically, that a defendant “owes no duty of care to protect others against dangers that are . . . as well known to the person injured as they are to the owner or occupant,” comes into play in cases where there is evidence that the owner or occupant knew of the dangers. W. Va. Code § 55-7-28(a). In summary, we find that the circuit court erred in its application of the open and obvious doctrine as a basis for granting summary judgment to the respondents. The petitioner’s sworn testimony that he had not seen any holes or voids at the gravesite, together with the inference to be drawn therefrom that said holes or voids were not present at the time of the petitioner’s fall, see supra note 5, was sufficient to take the issue of open and obvious danger to the jury. We now review the circuit court’s determination that the petitioner failed to produce any evidence of negligence on the part of the respondents. In this regard, we note that the petitioner’s evidence submitted in opposition to the respondents’ motions for summary judgment consisted of the following: photographs of the gravesite; a one-page excerpt from the petitioner’s deposition; a three-page excerpt from the deposition of Michael Phares, owner of Highlawn; the petitioner’s supplemental answer to respondents’ 14 Interrogatory No. 17, which describes the anticipated testimony of Andrew Lambert and Brian Brooks; a letter report dated July 10, 2019, from the petitioner’s expert witness, William Stovall; and a tape and transcription of a telephone conversation between Mr. Lambert and Nathan J. Chill, one of the petitioner’s attorneys – a tape which has not been made part of the appendix record, and a transcription which is undated, unsigned, and unverified. We turn first to the deposition excerpts. The petitioner’s testimony does not bear on the respondents’ negligence; it simply supplies sworn evidence to support the petitioner’s claim that he did not see “any holes or anything . . . open or obvious” that would indicate the gravesite wasn’t on firm ground. Similarly, Mr. Phares’ testimony was also immaterial to the issue of negligence. Although he acknowledged that once sod was laid on top of a grave Highlawn did not “use any sort of markers or flags to mark off areas where you should not be walking[,]” the petitioner produced no evidence that markers or flags were required by law or industry standard or that “the ordinary man in the defendant's position, knowing what he knew or should have known, [could] anticipate that harm of the general nature of that suffered was likely to result[.]” Smoot ex rel. Smoot v. Am. Elec. Power, 222 W. Va. 735, 736, 671 S.E.2d 740, 741 (2008). 6 Additionally, nothing contained in the three-page excerpt of Mr. Phares’ deposition testimony established, or even bore on, the question of 6 Although Mr. Phares stated that “we have to go back more frequently on some graves especially if the conditions were really wet when we did the burial,” the petitioner produced no evidence showing that conditions at the time of the petitioner’s brother-in- law’s burial required extra vigilance on the part of Highlawn. 15 whether the respondents knew or should have known of any dangerous condition(s) existing at Highlawn. We turn now to the letter report submitted by Mr. Stovall. We agree with the circuit court that nothing contained in this report was sufficient to raise a disputed issue of fact with respect to the respondents’ negligence. For example, Mr. Stovall wrote that “[m]y impression is that the workers did not properly and adequately pack the dirt back into the grave before they replaced the sod[.]” (Emphasis added). However, there is not a scintilla of evidence in the record as to when and how the grave was filled, and the remaining evidence, which is susceptible of differing inferences as to exactly what happened and why, fails to support a finding of negligence on the part of the respondents. An “impression” as to what the facts might have been is not evidence of what the facts actually were; at best Mr. Stovall’s “impression” was a textbook example of res ipsa loquitur reasoning, 7 and at worst it was mere speculation. Further, although Mr. Stovall criticized the fact that Highlawn “does not have a set of written practices and procedures for the task of closing a grave[,]” he did not indicate that this was required by law or industry standard or that 7 The doctrine of res ipsa loquitur “applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.” Syl. Pt. 5, in part, Davidson’s, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965) (emphasis added). Here, where many different factors could have come into play – weather, for example, as Mr. Phares discussed – it cannot be said that the only reasonable inference that can reasonably and legitimately be drawn is that the ground around the gravesite would not have given way but for negligence on the part of the respondents. 16 Highlawn’s failure to have written practices and procedures otherwise established a duty on its part to the petitioner under the Smoot test 8; thus, he failed to establish a standard of care to be used as a yardstick for evaluating whether or not the respondents were negligent in this respect. Finally, although Mr. Stovall opined that “the cemetery was not pro-active in revisiting the gravesite to [visually] check to see if there still remained problems there with how that grave was closed[,]” this could not be the basis for a finding of negligence on the part of the respondents in the absence of any evidence of problems at the gravesite that would be visible to any observer. We turn now to the photographs, which show the condition of the gravesite on the day after the petitioner’s fall. As noted earlier, these photographs would clearly have been relevant to the jury’s resolution of the open and obvious issue. However, they would be relevant to the issue of negligence if, and only if, the respondents “had actual or constructive knowledge of the defective condition which caused the injury.” McDonald v. Univ. of W. Va. Bd. of Trs., 191 W. Va. 179, 183, 444 S.E.2d 57, 61 (1994); accord Neely v. Belk Inc., 222 W.Va. 560, 571, 668 S.E.2d 189, 199 (2008); Hawkins v. U.S. Sports Assoc., Inc., 219 W.Va. 275, 279, 633 S.E.2d 31, 35 (2006) (per curiam). Because the only information tendered by the petitioner that would support a finding of actual or constructive knowledge on the part of the respondents was that which was contained in the supplemental answers to interrogatories – specifically, attorney Dobson’s recitation of what Andrew 8 Smoot, 222 W. Va. at 735, 671 S.E.2d at 741; see text supra. 17 Lambert and Brian Brooks were expected to testify, followed by the tape and transcript of a telephone conversation between Mr. Lambert and attorney Chill – we must determine whether either or both of these documents were properly considered in the circuit court’s resolution of the respondents’ motions for summary judgment. The circuit court’s analysis of the Lambert and Brooks information was cursory, at best. First, the court catalogued what “Mr. Lambert will purportedly testify” (emphasis added): that the grave-filling procedures at his new place of employment are superior to those utilized at Highlawn; in particular, that the use of construction sand as backfill around gravesites is superior to re-using the original soil for that purpose; and that hidden holes and voids were not uncommon around the respondents’ gravesites and he (Mr. Lambert) had actually fallen into one such hidden hole and required medical attention as a result. (Emphasis added). The court then proceeded to weigh the credibility of these statements and opinions, finding that because “Mr. Lambert actually closed the grave site at Defendant’s cemetery which is at issue in this case . . . [he] is essentially criticizing his own workmanship”; and that because the specific dates and locations of the hidden holes and voids was not specified, there was no “historical context” to the anticipated testimony.” Without even mentioning what Mr. Brooks might have to say, the court concluded that the substance of the anticipated testimony of Mr. Lambert and Mr. Brooks goes toward their preference for other grave closing methodologies and not to whether on the day of the incident the alleged hidden dangers at the grave site were as well known to Plaintiff as they were to the Defendants. 18 We conclude that the circuit court erred in finding that the anticipated testimony of Mr. Lambert and Mr. Brooks would be irrelevant to the petitioner’s negligence claims. First, the court’s findings that Mr. Lambert’s testimony was somehow suspect because he was “criticizing his own workmanship,” and that his testimony about holes and voids was somehow inadmissible in the absence of specific dates and locations, clearly demonstrate that the court had assumed the role of factfinder by weighing the evidence. This violates the fundamental precept that “‘[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.’ Syllabus Point 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 4, Goodwin v. Shaffer, 246 W. Va. 354, 873 S.E.2d 885 (2022). Second, the court was simply wrong in its sweeping assertion that the anticipated testimony of both Mr. Lambert and Mr. Brooks was confined to “their preference for other grave closing methodologies.” To the contrary, the proffer of their anticipated testimony – particularly Mr. Lambert’s testimony – was quite extensive, see text supra, and bore directly on a key issue: whether the respondents knew or should have known of the danger posed by holes and voids at gravesites, and, if so, what they did (or didn’t do) about it. Notwithstanding our conclusion that the circuit court erred in weighing, and then totally discounting, the anticipated testimony of the two witnesses, this is not the end of our inquiry because 19 “‘[t]his Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).” Syl. Pt. 2, Adkins v. Gatson, 218 W. Va. 332, 624 S.E.2d 769 (2005). We turn to the respondents’ argument that because none of the Lambert/Brooks evidence was authenticated, none of it could be considered in the circuit court’s resolution of the summary judgment motion. We begin with West Virginia Rule of Civil Procedure 56(e), which provides: Form of affidavits; further testimony; defense required. – Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse part’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. The formality required by the rule is consistent with the fact that the stakes are high when a party makes a motion for summary judgment. Put simply, it’s “put up or shut up” time for both the proponent and the opponent, who must show that the evidence – not the 20 allegations, but the actual evidence – is either conclusive, meaning there’s nothing left for a jury to decide, or disputed, meaning that only a jury can resolve the facts. Pursuant to the rule, this evidence may take the form of affidavits, depositions, or answers to interrogatories, all of which have one critical thing in common: they contain information given on personal knowledge and under oath. 9 See id. In the instant case, as detailed earlier, the petitioner’s recitation of what Mr. Lambert and Mr. Brooks were expected to say was contained in an answer to an interrogatory that was not verified; and the transcript of the Lambert-Chill telephone conversation was neither dated, signed, nor verified, and was appended to another unverified answer to an interrogatory. This Court has noted that [o]rdinarily, “[u]nsworn and unverified documents are not of sufficient evidentiary quality to be given weight in determining whether to grant a motion for summary judgment. Therefore, documents that do not state that they are made under oath and do not recite that the facts stated are true are not competent summary judgment evidence.” 49 C.J.S. Judgments § 328 (2009). Ramey v. Contractor Enters., Inc., 225 W. Va. 424, 432-33 n.15, 693 S.E.2d 789, 797-98 n.15 (2010); see also Hamon v. Morris, No. 20-0841, 2021 WL 5033682, at 7 (W. Va. Oct. 29, 2021) (memorandum decision). This principle – we hesitate to call it a “rule” when 9 West Virginia Rule of Civil Procedure 33(b)(1) provides that “[e]ach interrogatory shall be answered separately and fully in writing and under oath,” (emphasis added), and Rule 33(b)(2) provides that “[t]he answers are to be signed by the person making them[.]” 21 to date it has been enunciated only in a footnote 10 and in a memorandum opinion 11 - is very much in line with the weight of authority in both federal and state courts. Indeed, that unauthenticated documents cannot be used to defeat a motion for summary judgment has been described as “well settled” in federal practice, 12 as indicated 10 See State ex rel. Med. Assurance of W. Virginia, Inc. v. Recht, 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003) (“If this Court were to create a new exception to attorney- client privilege, it would do so in a syllabus point and not in a footnote.”) 11 See Fairmont Tool, Inc. v. Davis, _ W. Va. _, _, 868 S.E.2d 737, 749 (2021) (“Of course, ‘memorandum decisions may be cited as legal authority, and are legal precedent,’ but ‘their value as precedent is necessarily more limited[.]’ Syl. pt. 5, in part, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014).”). 12 It must be noted that the cases cited infra were decided under Federal Rule of Civil Procedure 56 as it existed prior to 2010, when substantial changes were made to the text. These changes have been characterized as follows in 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2722 (4th ed. 2021): Although affidavits remain an available type of summary- judgment evidence, a formal affidavit no longer is required. Section 1746 of Title 28 specifically authorizes a written “unsworn declaration, certificate, verification, or statement” signed by the person under penalty of perjury to substitute for an affidavit. (Emphasis added). Because none of the changes made to the federal rule have been made to our state rule, West Virginia Rule of Civil Procedure 56, we find that the earlier federal decisions are applicable to our analysis. And in any event, none of the documents at issue in the instant case – the unverified answers to interrogatories and the telephonic transcript – would be acceptable substitutes for an affidavit under the amended federal rule, none having been signed under penalty of perjury by a person with first-hand knowledge, see text infra, and the transcript not having been signed at all. 22 by the United States Court of Appeal for the Ninth Circuit in Canada v. Blain’s Helicopters, Inc., 831 F.2d 920 (9th Cir. 1987): It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment. In order to be considered by the court, “documents must be authenticated by and attached to an affidavit that meets the requirements of [Fed.R.Civ.P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2722 at 58-60 (2d ed. 1983) (footnotes omitted).This court has consistently held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment. Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976); United States v. Dibble, 429 F.2d 598, 601–02 (9th Cir.1970). We hold that such documents may not be relied upon to defeat a motion for summary judgment. Canada, 831 F.2d at 925; see also Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (“To be admissible at the summary judgment stage, ‘documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e.)’”) (citations omitted); Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 113 (11th Cir. 2010) (same); Martz v. Union Lab. Life Ins. Co., 757 F.2d 135, 138 (7th Cir.1985) (same); Columbia Gas Transmission, LLC v. Ott, 984 F. Supp.2d 508, 522 (E.D. Va. 2013) (same); Miskin v. Baxter Healthcare Corp., 107 F. Supp.2d 669, 671 (D. Md. 1999) (same). Although there are cases holding to the contrary, most of them involve a finding that the documents in 23 question, although not attached to an affidavit or otherwise verified, are self- authenticating 13 under the rules of evidence,14 or a finding that the issue has been waved.15 State court jurisprudence largely follows the lead of the federal cases, both pre- and post-amendment to the federal rule, in requiring that documents be authenticated in order to be considered on a motion for summary judgment. See, e.g., Thomas v. Bayonne, 339 So. 3d 71, 78 (La. Ct. App. 2022) (“A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether or not there remain genuine issues of material fact.”); Hamon, 2021 WL 5033682, at 7 (“[u]nsworn and unverified documents are not of sufficient evidentiary quality to be given weight in determining whether to grant a motion for summary judgment.”) (citation omitted); Whyte v. Logisticare Sols., LLC, No. CV126032173S, 2014 WL 2054015, at *3 (Conn. Super. Ct. Jan. 15, 2014) (“Because ‘Practice Book § [17–45] . . . contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [the] rules would be meaningless if they could be circumvented by 13 See Fed. R. Evid. 902; W. Va. R. Evid. 902. 14 See, e.g., Alexander v. CareSource, 576 F.3d 551, 561 (6th Cir. 2009). 15 See, e.g., H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir. 1991) (Federal Rule of Civil Procedure 56(e) “does not, as appellee suggests, require that parties authenticate documents where appellee did not challenge the authenticity of the documents in the district court.”). 24 filing [unauthenticated documents] in support of or in opposition to summary judgment.’”); Gorman-Rupp Co. v. Hall, 908 So.2d 749, 754 (Miss. 2005) (“We find that under M.R.E. 901 and M.R.C.P. 56(c) the unauthenticated documents should not have been considered.”); Booker v. Sarasota, Inc., 707 So.2d 886, 889 (Fla. 1st DCA 1998) (“A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.”). The filing of a motion for summary judgment is a critical stage in a civil proceeding, as it is dispositive of a plaintiff’s constitutional right to have his or her case tried by a jury. 16 For this reason, this Court is firmly of the opinion that both the proponent and opponent of such a motion must support their respective positions with actual, competent evidence, not with mere assertions as to what the parties expect to prove (but haven’t yet) or what the witnesses are expected to testify (but haven’t yet). Accordingly, we hold that unsworn and unverified documents are not of sufficient evidentiary quality to be given weight in a circuit court’s determination of whether to grant a motion for summary judgment. However, in its discretion the court may consider an unsworn and unverified document if it is self-authenticating under West Virginia Rule of 16 Article III, section 13 of the West Virginia Constitution provides in relevant part that “[i]n suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved[.]” Id. 25 Evidence 902 or otherwise carries significant indicia of reliability; if it has been signed or otherwise acknowledged as authentic by a person with first-hand knowledge of its contents; or if there has been no objection made to its authenticity. With these standards in mind, we examine the documents in question: (a) the petitioner’s answer to Defendants’ Interrogatory No. 17, detailing the anticipated testimony of Mr. Lambert and Mr. Brooks, (b) the petitioner’s supplemental answer, and (c) the telephonic transcript of a conversation between Mr. Lambert and attorney Chill, which was appended to the supplemental answer. First, neither the answer to the interrogatory nor the supplemental answer was verified, and therefore neither satisfied the requirement of West Virginia Rule of Civil Procedure 33(b)(1) that “[e]ach interrogatory shall be answered separately and fully in writing under oath.” Id. Second, the signature of an attorney on the answers – in both cases, David A. Dobson – was insufficient to authenticate the information contained therein because Mr. Dobson did not have first-hand knowledge; as detailed earlier, the telephone conversation on which the information was based was between Mr. Lambert and Mr. Chill, who is not a member of Mr. Dobson’s firm. 17 Third, in any event the signature of an attorney on a pleading certifies only that to his or her knowledge, information, and belief, “the allegations and other factual contentions have evidentiary support or, if specifically 17 The record is silent as to how information from or about Mr. Brooks was obtained. 26 so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[.]” W. Va. R. Civ. P. 11(b)(3) (emphasis added). Here, although this Court assumes Mr. Dobson’s good faith belief that Mr. Lambert and Mr. Brooks would testify to the facts set forth in the answers to interrogatories, the fact is that they had never actually done so, and there was never a motion made pursuant to West Virginia Rule of Civil Procedure 56(f) 18 for a continuance to enable counsel to obtain affidavits from these witnesses or set up their depositions. Fourth, the transcript of the telephone conversation between Mr. Lambert and Mr. Chill was undated, unsigned, and unverified, and thus bore no indicia of reliability whatsoever. 19 In this regard, neither Mr. Lambert nor Mr. Chill in any way acknowledged the authenticity of the tape, the transcript, or the representations made in the supplemental answers to interrogatories. Fifth, none of the documents at issue were self-authenticating. 18 West Virginia Rule of Civil Procedure 56(f) provides: When affidavits are unavailable. – Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just. As set forth supra, the tape recording itself has not been made a part of the record 19 on appeal, and therefore we express no opinion as to whether anything contained on the tape might constitute indicia of reliability as to its contents. 27 This brings us to the sixth, and final, matter for consideration: whether the respondents have waived the issue of authenticity by failing to raise it in the proceedings below. See Whitlow v. Bd. of Educ. of Kanawha Cnty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993) (“Our general rule . . . is that, when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal.”) 20 On the particular facts of this case, we decline to find such a waiver. The supplemental answer to Interrogatory No. 17, together with the transcript of Mr. Chill’s telephonic interview of Mr. Lambert, was not filed until the day of the hearing on the motion for summary judgment. Our rules contemplate an orderly process of discovery that allows all parties sufficient time to read, analyze, and react to information; here, there was no time at all. Whether or not an ambush was intended, an ambush was effected, and we cannot fault the respondents’ counsel for failing to make an argument 20 As we explained in Whitlow, The rationale behind this rule is that when an issue has not been raised below, the facts underlying that issue will not have been developed in such a way so that a disposition can be made on appeal. Moreover, we consider the element of fairness. When a case has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise new issues on appeal. Finally, there is also a need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom. 190 W.Va. at 226, 438 S.E.2d at 18. 28 about the authenticity of a document when it’s not clear that he even had time to read it, let alone research the issue of its admissibility. In light of the foregoing, we find that the anticipated testimony of Mr. Lambert and Mr. Brooks should not have been considered in resolving the motion for summary judgment, as the evidence failed to meet the authenticity requirements of West Virginia Rule of Evidence 56(e). Inasmuch as the remaining evidence failed to establish a disputed issue of fact as to the respondents’ negligence, the circuit court’s grant of summary judgment must be affirmed. IV. Conclusion For the foregoing reasons, the order of the Circuit Court of Fayette County, filed on April 14, 2021, is affirmed. Affirmed. 29	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484761/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED _______________ November 17, 2022 No. 21-0603 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK _______________ SUPREME COURT OF APPEALS OF WEST VIRGINIA DAMON MCDOWELL, MARY MCDOWELL, and DEEANNA LAWSON Petitioners, v. ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY and PATRICK O. HAMBRICK, JR., Respondents. ________________________________________________________ Appeal from the Circuit Court of Fayette County The Honorable Paul M. Blake, Jr., Judge Civil Action No. 19-C-129 REVERSED AND REMANDED ________________________________________________________ Submitted: October 5, 2022 Filed: November 17, 2022 Erwin L. Conrad, Esq. Brent K. Kesner, Esq. Conrad & Conrad PLLC Ernest G. Hentschel, II, Esq. Fayetteville, West Virginia Kesner & Kesner, PLLC Counsel for the Petitioners Charleston, West Virginia Counsel for the Respondents CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). 2. “W.Va. Code, 33-6-7 (1957), provides that ‘[m]isrepresentations, omissions, concealments of facts, and incorrect statements shall not prevent a recovery under the policy unless. . . .’ This language indicates that not all misrepresentations will avoid an insurance policy, but only those specifically identified in subsections (a), (b), and (c) of the statute.” Syl. pt. 3, Powell v. Time Ins. Co., 181 W. Va. 289, 382 S.E.2d 342 (1989). 3. “Under W.Va. Code, 33-6-7(b) and (c) (1957), in order for a misrepresentation in an insurance application to be material, it must relate to either the acceptance of the risk insured or to the hazard assumed by the insurer. Materiality is determined by whether the insurer in good faith would either not have issued the policy, or would not have issued a policy in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or otherwise.” Syl. pt. 5, Powell v. Time Ins. Co., 181 W. Va. 289, 382 S.E.2d 342 (1989). i 4. “W.Va. Code, 33-6-7 (1957), adopts the test of whether a reasonably prudent insurer would consider a misrepresentation material to the contract.” Syl. pt. 6, Powell v. Time Ins. Co., 181 W. Va. 289, 382 S.E.2d 342 (1989). 5. “[N]either West Virginia Code § 33-6-7(b) nor (c) [1957] requires that an insurer prove the subjective element that an insured specifically intended to place misrepresentations, omissions, concealments of fact, or incorrect statements on an application in order for the insurer to avoid the policy.” Syl. pt. 6, in part, Massachusetts Mut. Life Ins. Co. v. Thompson, 194 W. Va. 473, 460 S.E.2d 719 (1995). 6. “Where an insurer seeks to avoid a policy based on a material misrepresentation, this assertion is in the nature of an affirmative defense which the insurer must prove by a preponderance of the evidence.” Syl. pt. 7, Powell v. Time Ins. Co., 181 W.Va. 289, 382 S.E.2d 342 (1989). 7. Under West Virginia Code § 33-6-7 (1957), the materiality of a misrepresentation on an application for an insurance policy is ordinarily a jury question. However, if the evidence excludes every reasonable inference except that the misrepresentation was material, then the question of materiality becomes one of law for the court. ii HUTCHISON, Chief Justice: West Virginia Code § 33-6-7(b) and (c) (1957) permit an insurer to rescind a policy if the insurer establishes that the application for the policy contains answers that are false and were material to the insurer’s decision to issue the policy. In this appeal from the Circuit Court of Fayette County, homeowner Damon McDowell (“McDowell”) purchased an insurance policy from Allstate Vehicle and Property Insurance Company (“Allstate”) for a derelict house McDowell intended to remodel. After a fire, Allstate sought to rescind the policy, claiming that McDowell digitally signed an application whereon he falsely answered a question regarding whether he would occupy the house within thirty days. McDowell contends that he never saw the application; never signed it; and that his answer was not false because he entered the property within thirty days to store personal property and begin renovations. McDowell also asserts that Allstate never demonstrated that the thirty-day-occupancy question on the application was material to its decision to issue the policy, in part because the question conflicts with the terms of the policy. The circuit court granted summary judgment in favor of Allstate’s decision to rescind the policy. McDowell now appeals the summary judgment order. We reverse the order and conclude that questions of material fact exist regarding whether McDowell’s answer to Allstate’s thirty-day-occupancy question was false, and whether the question 1 was material to Allstate’s issuance of the policy. We also remand the case for further proceedings. I. Factual and Procedural Background In May of 2019, plaintiffs McDowell and Deeanna Lawson purchased a 1 house located at 219 Highland Avenue in Oak Hill, West Virginia. They paid $37,000 for the house. McDowell contends that he and his wife, plaintiff Mary McDowell, stored personal property in the house. This case involves insurance coverage on the house, and the facts revolve almost exclusively around McDowell. Defendant Patrick O. Hambrick, Jr., is an insurance agent who sells policies for defendant Allstate. McDowell asserts that he had known agent Hambrick for several decades prior to 2019, and agent Hambrick knew McDowell was “fixing up houses.” In mid-May, McDowell contends he had a discussion in a grocery store with agent Hambrick, and they talked about McDowell’s purchase of and intent to remodel the Highland Avenue house. Agent Hambrick said he was selling homeowner’s insurance, and he gave McDowell a business card and said he would like to earn McDowell’s business. McDowell contacted agent Hambrick who asked McDowell questions that are not apparent from the record. Based on that conversation, agent Hambrick prepared a “personalized insurance proposal” for a homeowner’s insurance policy from Allstate for The parties do not explain the relationship between McDowell and Lawson, 1 other than that they are co-owners of the house at issue. 2 McDowell. It appears that, based upon the proposal, McDowell agreed to purchase an Allstate policy. However, it is unclear from the record how the policy was obtained. A. The Application The focus of this appeal is an application for coverage, a six-page document with typewritten answers that was apparently electronically prepared on May 17, 2019, sometime after agent Hambrick prepared the proposal. Allstate and McDowell have proffered two different versions of the application. The version of the application proffered by Allstate has a blank on page four titled “Applicant’s Initials” followed by “D. M.” There is also a blank on page six titled “Applicant’s Signature” below the statement “I have read this entire application before signing.” The signature blank on page six of Allstate’s version of the application contains the following printed text: Signed by: DAMON MCDOWELL Date: 2019.05.17 14:01:16 CDT McDowell argues that he never initialed or signed the application and never saw it until some months later, after Allstate told him he had made misrepresentations on the application. McDowell alleges that Allstate sent him a version of the application. That printout of the application, proffered by McDowell, does not contain McDowell’s initials, and it does not contain his printed signature. Moreover, McDowell and Allstate offer two wholly different versions of the circumstances surrounding the completion of the application. As we understand the record, McDowell contends that, on May 17, after he had spoken with agent Hambrick and 3 received the proposal for an Allstate policy, and while he was in the middle of reroofing a church, he received a telephone call from Lilly Hoover, an employee in agent Hambrick’s office. McDowell recalls that Hoover asked him questions about the house. Furthermore, McDowell says Hoover “did some kind of Skype thing from a satellite” and told him the square footage of the house and told him the house’s replacement value. McDowell gave Hoover a credit card number, Allstate charged a premium to the credit card, and a few days later he received documents showing he had insurance on the Highland Avenue house from Allstate. Allstate counters that the purpose of the phone call was so that Hoover could complete the application using the answers given by McDowell. For instance, “dwelling information” on the application indicates that McDowell said the purchase price for the house was $37,000, but that he estimated its “current market value” was $300,000. However, the application also contains blanks filled with detailed information supplied solely by Allstate. In a section titled “Estimator” that used “Residential Component Technology (tm),” Allstate (not McDowell) identified the insured property as a two-story, single-family house built in 1921, identified the materials used to construct and decorate the house, and declared the house had 1,578 square feet of living area. On the application, Allstate placed the replacement cost of the house at $379,618. Significantly, the application contains the typed signature of agent Hambrick below this statement: “I have not inspected the premises.” Allstate contends McDowell electronically signed the completed application after being given an opportunity review the document; Allstate does 4 not, however, identify how he was able to review the application or how the signature was obtained. 2 In his deposition, McDowell argued that he would never have signed the version of the application proffered by Allstate, if he had seen it, because it contains errors. For instance, the application identifies the co-owner of the house (Lawson) as an “Occupant Non-Relative,” despite her never intending to reside in the house. Conversely, the application omits McDowell’s daughter who he asserts was going to reside in the house. The application also incorrectly states McDowell’s wife’s birthday, and McDowell insists he would never have signed an application where his wife was listed as being eighteen years younger than she really was. Allstate’s contentions center on one question in the May 17 application, and what it asserts is a misleading response by McDowell. Specifically, the application contains the following question and printed answer: Will the residence be occupied within the next 30 days?: YES While Allstate contends McDowell electronically signed the application, 2 McDowell points out that Hoover claimed in her deposition that she has seen McDowell’s application “with his handwritten notes to it or handwritten signature on it[.]” McDowell complains that Allstate has never produced this handwritten version of the application, and instead produced only a version with typed answers, initials, and signatures. Furthermore, for reasons we cannot discern, the circuit court made a finding of fact that McDowell “applied for a home insurance policy with Allstate . . . through the internet on a cellular telephone.” App. R. at 4, ¶ 3. This finding is nowhere supported by the record on appeal and is not mentioned in either party’s brief. 5 B. The Parties’ Dispute Allstate sent McDowell a declarations page stating that it was providing homeowner’s insurance coverage for the house, effective on May 18. The declarations page reflects that Allstate was providing coverage for “dwelling protection” with a limit of $379,618. The declarations page lists McDowell and his wife as the “Named Insured(s).” 3 The other owner of the house (Lawson) was omitted from the dwelling coverage. The record suggests that, while none of the plaintiffs (Mr. or Mrs. McDowell or Ms. Lawson) began residing in, or sleeping at, the house over the next month, they did have articles of personal property in the house. Also, McDowell indicated that he did cleaning or repair work at the house (although the record is unclear as to its extent). Further, some utilities were turned on for the property, such as water service, sewer service, and garbage collection. McDowell asserts, however, that he did not have electrical service in the house, for two reasons. First, he says he intended to conduct repairs on the electrical wiring in the house. Second, McDowell contends that he hoped to dissuade certain intruders from staying in the house. McDowell states that relatives, friends, or associates The declarations page also reflects that Allstate provided $227,771 in 3 “personal property protection.” While the plaintiffs assert that they have personal property losses Allstate refuses to cover, the parties’ arguments center on whether McDowell misrepresented that the house was “occupied” within thirty days. Consequently, we leave questions about the personal property to the circuit court for resolution on remand. 6 of the house’s prior owner continued to break into the house, despite McDowell’s efforts and appeals to law enforcement. These intruders even had their mail delivered to the house. Twenty-five days after Allstate initiated insurance coverage on the house, on June 12, an Allstate contractor conducted an underwriting inspection of the exterior of the house. The resulting underwriting inspection report said the house calculated the replacement cost of the house at $295,552, but noted missing and broken windows, moss on the roof, and ivy growing on the siding and eaves. The underwriting inspector took photos and wrote that he could not complete his inspection, in part, because of appliances and debris in the yard.4 Days later, around two o’clock in the morning of June 20, a fire occurred, and the house and some of the contents were damaged. 5 Police officers assessed that the In her deposition, Hoover (the employee of agent Hambrick) asserts that 4 she learned the results of the underwriting inspection on June 12. Hoover claims that, the next day, she spoke with McDowell and told him the house would not be covered by Allstate’s insurance because it did not meet the company’s underwriting standards. In the days thereafter (and before June 20), Hoover quit her job and moved to Mississippi. Allstate did not advise McDowell in writing of the results of the underwriting inspection until about three weeks later, during the first week of July. The record indicates that, after the fire, McDowell filed an inventory of 5 millions of dollars’ worth of personal property he claims he lost in the fire that included antique furniture, valuable coins, vintage Barbie Dolls, and irreplaceable baseball and football cards. While Allstate now asserts there was no evidence these items were ever present in the house, the plaintiffs suggest that Allstate refused to cover these items because they were excluded from coverage by the terms of the Allstate policy. 7 fire was started deliberately in three locations using rags soaked in a petroleum distillate. 6 The City of Oak Hill later sent a notice that the “structure cannot be reasonably repaired and should be ordered demolished.” McDowell promptly made a claim with Allstate. On June 20, the same day as the fire, Allstate wrote to McDowell with a claim number to let him “know that we received your claim and started working on it.” The next day, Allstate emailed McDowell a missive that begins “Good news! Your claim payment is on its way,” and advised McDowell it was depositing $1,000 onto his credit card for the “Fire Loss.” Allstate appears to have later provided McDowell with living expense payments. On June 26, a fire inspector visited the house on behalf of Allstate and confirmed that the fire had been intentionally set. The fire inspector took photographs which McDowell argues show his efforts to improve the condition of the house, namely that the appliances, debris, and some of the vegetation in the yard during the June 12 underwriting inspection had been removed. Just over a week after the fire inspector’s visit, and at least twenty-two days after the underwriting inspection, Allstate sent McDowell two conflicting letters. In the A next-door-neighbor told police she heard somebody coughing outside 6 shortly before the fire was discovered. Police also found a clean, seemingly freshly dropped South Carolina driver’s license on the sidewalk in front of the house during the fire. McDowell contends he gave police the names of intruders into the house. It is unclear what, if anything, the police accomplished with this information. 8 first letter (which is undated except for a notation that it used “Information as of July 04, 2019”), Allstate declared that the homeowner’s insurance policy would be cancelled on “August 14, 2019 at 12:01 AM.” The reasons given for the cancellation included that the “yard or porch has appliances, debris,” and that there was moss, plant, and vegetation growth on the roof and exterior of the house. The first letter concludes that “your policy will remain in effect until the cancellation date and time shown above.” The second letter from Allstate (also undated except for a notation that it used “Information as of July 5, 2019”) declared Allstate was confirming McDowell’s “policy change.” The second letter contained an amended declarations page that, confusingly, declares that Allstate was providing coverage “Beginning May 18, 2019 through May 18, 2020 at 12:01 a.m. standard time.” Otherwise, the amended declarations page appears identical to the earlier declarations page and even maintains the same $379,618 in dwelling coverage. This appeal arises from a third letter from Allstate to Mr. and Mrs. McDowell dated July 18, 2019. Allstate announced in the letter that, because of misrepresentations on the application regarding whether the house would be occupied within thirty days, Allstate was effectively rescinding the homeowner’s insurance policy. Allstate’s July 18 letter gave the following reasoning: It has been determined that material misrepresentations were made on the application as it relates to occupany [sic] of the home. You answered that you would be moving into the home in May 2019, and in fact it would be occupied within 30 days of the signed application, and neither occurred. The occupany 9 [sic] is directly correlated to the condition of the home at the time of the application. The home was not habitable at the time of the application, nor was it at the time of the loss. . . . Allstate would not have written the business had it known . . . that it would not be occupied within 30 days. 7 Because it was rescinding the contract, Allstate declared that it was returning all premiums paid under the policy. The plaintiffs (Mr. and Mrs. McDowell, and Ms. Lawson) sued Allstate and agent Hambrick for breach of contract and unfair trade practices. After conducting 8 7 Allstate’s July 18 letter also notes that its “underwriting inspection of the home deemed the home was not a desireable [sic] risk” and that Allstate would not have issued the policy “had it known the pre loss condition of the home and property[.]” However, Allstate does not point to any question in the application where McDowell misrepresented the condition of the home. As noted earlier, after Allstate conducted its underwriting inspection it did seek to prospectively cancel the policy, effective August 14, 2019. Along with their complaint in September 2019, the plaintiffs note that they 8 filed requests for production of documents and therein requested a copy of “the ‘Application’ upon which Defendant, Allstate, is relying[.]” Allstate produced what it contends is the “signed” application five months later, in February 2020. Before both the circuit court and this Court, the plaintiffs have argued that Allstate’s version of the application is inadmissible because it was not produced within thirty days. As authority, plaintiffs cite to West Virginia Code § 33-6-6(c) (1957), which provides that no application for insurance signed by or on behalf of the insured shall be admissible in evidence in any action between the insured and the insurer arising out of the policy so applied for, if the insurer has failed, at expiration of thirty days after receipt by the insurer of written demand therefor by or on behalf of the insured, to furnish to the insured a copy of such application reproduced by any legible means. The circuit court does not appear to have ruled on the plaintiffs’ request to exclude the application. We leave it to the circuit court on remand to consider the plaintiffs’ request. 10 discovery, the plaintiffs and Allstate filed competing motions for summary judgment. The plaintiffs asked for a ruling that Allstate was obligated to pay them under the policy; Allstate countered that the policy was void ab initio because of misrepresentations in the application. In an order dated July 6, 2021, the circuit court determined that there was no factual dispute that McDowell had made false and material statements on his application for insurance. The circuit court denied the plaintiffs’ motion and granted Allstate’s motion to rescind the policy. The plaintiffs now appeal the circuit court’s July 6, 2021, summary judgment order. II. Standard of Review We review a circuit court’s entry of summary judgment de novo. Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We therefore apply the same standard as the circuit court, which is that “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). 11 III. Discussion The plaintiffs raise seventeen assignments of error on appeal. However, we 9 distill these varied assignments down into one fundamental contention. The plaintiffs Interlaced in the plaintiffs’ muddled assignments are numerous assertions 9 of clear errors in the circuit court’s factual findings. The most egregious among these are findings that the plaintiffs themselves started the June 20 fire. The circuit court’s order states that Allstate’s policy excludes coverage for “intentional or criminal acts of or at the direction of any insured person[.]” The order then finds that, “Specifically, Allstate has asserted that Plaintiffs intentionally caused the fire and/or conspired with others to do so[.]” The order also finds that, in the July 18 rescission letter, Allstate said it “was denying Plaintiffs’ claim . . . because the subject fire resulted from the intentional or criminal acts of, or at the direction of, the Plaintiffs, with the intent to cause the loss.” These statements in the circuit court’s order are nowhere supported by the record. Nowhere in the record does Allstate assert the plaintiffs caused the fire or conspired with others to do so. Allstate’s July 18 letter contains no such language that the plaintiffs engaged in intentional or criminal acts. The police officers who investigated the fire did not charge the plaintiffs. The plaintiffs also assert the circuit court’s order erroneously finds that all utilities to the house “had been cut off prior to the fire[.]” This finding is contradicted by documents in the record showing various utilities were connected. Additionally, the order finds that McDowell verified the “condition of the dwelling” on the application, but plaintiffs point out the application contains no questions regarding the dwelling’s condition. Moreover, McDowell’s statement that he paid $37,000 for a house that he valued at $300,000, and that Allstate valued at $379,618, might have warranted further investigation by Allstate. See, e.g., Restatement of the Law of Liability Insurance § 9, cmt. d (2019) (“[I]f there is something suspicious in an application that would cause an objectively reasonable insurer to undertake further investigation, the reasonable-reliance requirement would impose such a duty on the insurer.”); 16 Williston on Contracts § 49:51 (4th ed. 2022) (“While an insurance company has the right to expect that applicants will tell the truth . . . if the representation is such that it would put a reasonable insurer on notice or create a duty of inquiry, and the insurer fails to further investigate, the representation is not considered to be untrue or material.”). We caution litigants that, when drafting a proposed order for a circuit court granting summary judgment, the order must set out factual findings that are “relevant, determinative of the issues and undisputed.” Syl. pt. 3, Fayette Cnty. Nat. Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997) (emphasis added). 12 argue that the circuit court erred in finding that there were no questions of material fact surrounding whether McDowell’s answer to the thirty-day-occupancy question was both false and material to Allstate’s decision to issue the policy. McDowell argues that the circuit court erroneously found that Allstate had, as a matter of law, established its right to rescind the policy. We agree. An insurer’s right to rescind an insurance policy due to a misrepresentation in the insured’s application for insurance is governed by West Virginia Code § 33-6-7 (1957), which provides, in part, that: Misrepresentations, omissions, concealments of facts, and incorrect statements shall not prevent a recovery under the policy unless: (a) Fraudulent; or (b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or (c) The insurer in good faith would either not have issued the policy, or would not have issued a policy in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or otherwise. This statute was “intended to codify the circumstances in which an insurance policy could be revoked for misrepresentations made in the application.” Powell v. Time Ins. Co., 181 W. Va. 289, 295, 382 S.E.2d 342, 348 (1989). “This language indicates that not all misrepresentations will avoid an insurance policy, but only those specifically identified in subsections (a), (b), and (c) of the statute.” Id. at 291, 382 S.E.2d at 344, Syl. Pt. 3, in part. 13 In the instant case, Allstate relies on subsections (b) and (c) of West Virginia Code § 33- 6-7. 10 In a typical, non-insurance contract action involving a misrepresentation, the party seeking to avoid the contract must usually prove two separate facts: that the representation “was material and false,” and that the party “relied upon it[.]” Syl. pt. 1, Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66 (1981). See, e.g., Syl. pt. 2, in part, McBee v. Deusenberry, 99 W. Va. 176, 128 S.E. 378 (1925) (“The false representation of a material fact . . . on which the purchaser had the right to rely, and upon which he did rely, is always ground for a rescission of the contract[.]”). In the context of insurance, subsections (b) and (c) of West Virginia Code § 33-6-7 create a somewhat different approach to misrepresentations. A representation must, of course, be “material and false” in order to rescind a policy. However, subsections (b) and (c) blur the concepts of materiality and reliance: while an insurer may rescind a policy if there is a material misrepresentation, materiality is established by proof the insurer relied to its detriment on the misrepresentation. Hence, we gave this description of materiality in Syllabus Point 5 of Powell: If the insurer asserts the insured’s misrepresentation, omission, or 10 concealment of facts was fraudulent under West Virginia Code § 33-6-7(a), “then the insured’s intent to deceive the insurer is clearly an element which the insurer must prove.” Massachusetts Mut. Life Ins. Co. v. Thompson, 194 W. Va. 473, 478, 460 S.E.2d 719, 724 (1995); see also Syl. pt. 4, Powell, 181 W. Va. at 291, 382 S.E.2d at 344. In the instant case, Allstate does not assert fraudulent intent, so we need not weigh subsection (a) of the statute. 14 Under W.Va. Code, 33-6-7(b) and (c) (1957), in order for a misrepresentation in an insurance application to be material, it must relate to either the acceptance of the risk insured or to the hazard assumed by the insurer. Materiality is determined by whether the insurer in good faith would either not have issued the policy, or would not have issued a policy in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or otherwise. 181 W. Va. at 291, 382 S.E.2d at 344. Stated differently, “A misrepresentation by an insured during the application for . . . an insurance policy is material only if, but for the misrepresentation, a reasonable insurer in this insurer’s position would not have issued the policy or would have issued the policy only under substantially different terms.” Restatement of the Law of Liability Insurance § 8 (2019). In subsections (b) and (c), the materiality analysis focuses on “the impact the misrepresentation would have on the insurer’s business judgment utilized in issuing the policy.” Massachusetts Mut. Life Ins. Co. v. Thompson, 194 W. Va. 473, 478, 460 S.E.2d 719, 724 (1995). Many commentators have said that the “[m]ateriality of a misrepresentation is perhaps the most difficult of all the elements to prove in an action for rescission.” Robert J. Brennan, Misrepresentation in the Application As the Basis for Rescission of a Property Insurance Policy, 21 Tort & Ins. L.J. 451, 454 (1986). As one lawyer wryly noted, “[t]he matter of misrepresentation and concealment in obtaining insurance is at once the simplest and most maddeningly difficult of subjects,” in part because of “the proverbial ‘Serbonian bog’ of rules and counterrules[.]” 15 The whole subject is made infinitely more difficult by the great differences in methods by which various branches of the insurance industry underwrite risks. Life insurers, for instance, commonly subject applicants to exhaustive questioning and examinations, signed and certified, while property insurers usually ask only the most rudimentary questions, often leaving it to clerical help, with no reliable method of proving who said what. Any property insurance lawyer who has had to try to prevail in a swearing contest between an insured, whose smoking ruins have now sharpened his memory, and a secretary who left the agency eight months before, knows this predicament. Clayton H. Farnham, Application Misrepresentation and Concealment in Property Insurance-the Elusive Elements of the Defense, 20 Forum 299 (1985) (emphasis added). Additionally, West Virginia applies an objective standard for materiality. In weighing the question of whether a misrepresentation was material, “W. Va. Code, 33-6-7 (1957), adopts the test of whether a reasonably prudent insurer would consider a misrepresentation material to the contract.” Syl. pt. 6, Powell, 181 W. Va. at 291, 382 S.E.2d at 344. Even innocent misrepresentations, if material, are sufficient to allow an insurer to rescind an insurance policy. “[N]either West Virginia Code § 33-6-7(b) nor (c) requires that an insurer prove the subjective element that an insured specifically intended to place misrepresentations, omissions, concealments of fact, or incorrect statements on an application in order for the insurer to avoid the policy.” Syl. pt. 6, in part, Thompson, 194 W. Va. at 474, 460 S.E.2d at 720. 16 Furthermore, the burden is on the insurer to prove, by a preponderance of the evidence, that the insurance applicant made a representation that was untrue, and that the representation was material. Syl. pt. 7, Powell, 181 W. Va. at 291, 382 S.E.2d at 344. See also Restatement of the Law of Liability Insurance § 7, cmt. c (2019) (“The burden of proof with respect to each element of misrepresentation lies with the insurer.”) In many cases, as support for its claim a misrepresentation was material, an insurer will offer an affidavit from an insurance company employee stating the insurer would not have issued the policy if the true facts had been known. See, e.g., Nationwide Prop. & Cas. Ins. Co. v. Brown, 260 F. Supp. 3d 864, 873 (E.D. Mich. 2017) (“Courts routinely rely on affidavits attesting to the insurer’s reliance on and materiality of statements in insurance applications[.]”). 11 An insurer may also establish materiality by “present[ing] documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to While affidavits are common at the summary judgment stage, one court 11 cogently explained that summary judgment should not be founded on an insurer’s opinion evidence alone and said it could not “adopt a holding which provides that summary judgment must go to the insurer if the insurer’s employee provides his employer with a favorable opinion in the requisite affidavit.” Case v. RGA Ins. Servs., 521 S.E.2d 32, 34 (Ga. App. 1999). “The test for materiality of a representation in an insurance application should not be based upon such procedural gaming, but must be grounded upon a weighing of whether the representation varied from the truth so as to substantially change the nature, extent, or character of the risk.” Id. See also Lee v. Mercury Ins. Co. of Georgia, 808 S.E.2d 116, 128 (Ga. App. 2017) (“[A]n affidavit from an insurer stating that certain information omitted from an application was material does not automatically entitle an insurer to void a policy.”); Pratz v. Wayne Coop. Ins. Co., 724 N.Y.S.2d 293, 296 (Sup. Ct. 2001) (An “unsubstantiated and plainly self-serving” affidavit by an insurance company president that insurer would not have issued a policy was not supported by the insurer’s “written policies, rules, directives, guidelines, manuals or any other such writings” used to “grant or deny an individual’s application” or “to train or instruct” the insurer’s employees or agents.) 17 similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application.” Thandi v. Otsego Mut. Fire Ins. Co., 157 N.Y.S.3d 516, 518-19 (2022) (citation omitted). Finally, under West Virginia Code § 33-6-7 (1957), the materiality of a misrepresentation on an application for an insurance policy is ordinarily a jury question. However, if the evidence excludes every reasonable inference except that the misrepresentation was material, then the question of materiality becomes one of law for the court. Further, “both the truth of the insured’s answers and the incorrectness of the 12 See, e.g., Kambeitz v. Acuity Ins. Co., 772 N.W.2d 632, 640 (N.D. 2009) 12 (“Fraud, intentional and material misrepresentation, concealment, and collusion are all generally questions of fact for the trier of fact.”); Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So. 2d 759, 767 (Ala. 2004) (“[T]he materiality of a misrepresentation on an application for an insurance policy is generally a jury question.”); Styzinski v. United Sec. Life Ins. Co. of Illinois, 772 N.E.2d 888, 894 (Ill. App. 2002) (“Materiality is generally a question of fact[.]”); Jackson v. Hartford Life & Annuity Ins. Co., 201 F. Supp. 2d 506, 513 (D. Md. 2002) (“The materiality of a misrepresentation is typically a question of fact for the jury, and the burden of proof lies with the party attempting to assert the defense. John Hancock Mut. Life Ins. Co. of Boston, Mass. v. Adams, 205 Md. 213, [220,] 107 A.2d 111, 113 (1954). Nonetheless, where materiality is shown by uncontradicted or clear and convincing evidence, the question may become one of law.”); Paul Revere Life Ins. Co. v. Fish, 910 F. Supp. 58, 65 (D.R.I. 1996) (“[T]he materiality of a misrepresentation by an insured in an insurance application is normally a question of fact.”); L. Smirlock Realty Corp. v. Title Guar. Co., 421 N.Y.S.2d 232, 237 (App. Div. 1979) (“Although materiality is ordinarily a question of fact, where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine.”); United Fam. Life Ins. Co. v. Shirley, 248 S.E.2d 635, 636 (Ga. 1978) (“Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court.”); Old Republic Ins. Co. v. Alexander, 436 S.W.2d 829, 833 (Ark. 1969) (“The materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible.”); Smith v. Peninsular Ins. Co., 181 So. 2d 212, 217 Continued . . . 18 recording thereof without [the] insured’s knowledge may present questions for the jury.” 6 Steven Plitt, et al., Couch on Insurance § 85:64 (3d ed. 2022). Moreover, “[a] disputed 13 question whether the agent of the insurer was apprised of the true facts with regard to a particular issue, but failed without knowledge or collusion of the insured to put the information in the document sent to the insurer, is properly submitted to the jury.” Id. With these legal principles in mind, we now assess whether a triable issue of material fact existed for jury resolution. The plaintiffs contend that Allstate failed to establish, as a matter of law, that McDowell’s statement regarding occupancy was either (1) false or (2) material. We agree and find that material issues of fact abound in the record. We first examine whether genuine questions of fact exist regarding whether McDowell made a misrepresentation. On Allstate’s application, McDowell allegedly answered “yes” to the question “[w]ill the residence be occupied within the next 30 days?” Most courts consider that whether a dwelling was vacant or unoccupied at the time of a loss is a question of fact. Lundquist v. Allstate Ins. Co., 732 N.E.2d 627, 631 (Ill. App. 2000) (“[W]hether the subject dwelling was vacant or unoccupied at the time of the loss is a question of fact”). Courts interpreting insurance policies generally construe “vacant” to (Fla. Dist. Ct. App. 1965) (“The general rule also seems to be established that the question of the increase in hazard is a question of fact for the determination of the jury.”). Couch on Insurance also counsels that “[w]hether or not the insurer had 13 knowledge of misrepresentations . . . so as to effect a waiver,” or “whether the insurer had constructive notice of misrepresentations by virtue of its agent’s conduct or knowledge,” are also generally questions to be determined by a jury. 6 Couch on Insurance § 85:64. 19 mean “entire abandonment, deprived of contents, empty, that is, without contents of substantial utility.” Jerry v. Kentucky Cent. Ins. Co., 836 S.W.2d 812, 815 (Tex. App. 1992). See also Allen E. Korpela, What Constitutes “Vacant or Unoccupied” Dwelling Within Exclusionary Provision of Fire Insurance Policy, 47 A.L.R.3d 398, § 3(b) (1973) (“In a number of cases dealing with the question of what constitutes a vacant or unoccupied dwelling . . . the court has expressly defined the term ‘vacant’ as meaning generally empty or deprived of contents.”). There is evidence in the record suggesting that, within thirty days of applying for insurance, the house was not empty or deprived of contents because the plaintiffs moved personal property into the house. Further, there is evidence that, within the thirty days after applying for insurance, McDowell was visiting the house and conducting repairs and renovations to ready the house for habitation. The record indicates that agent Hambrick knew McDowell 14 Concerning the alleged renovations and repairs, we note that Allstate’s July 14 18, 2019, rescission letter centered exclusively upon McDowell’s allegedly false answer to the question whether he would be occupying the house within thirty days. Throughout this lawsuit Allstate has also asserted that McDowell falsely answered “no” to the question “Dwelling in Course of Construction” on the application because he otherwise admitted he was remodeling the house. Unfortunately, we do not know for certain if or how the question was orally posed to McDowell by Hoover, but, as it is presented on the printed application, the question is stated in the present tense. Hence, it seems to ask, when the application was supposedly completed on May 18, “Today, is the dwelling currently under construction?” If McDowell had not yet entered the house, and was planning to do repairs on future days, then his negative answer would seem true. Furthermore, the word “construction” in the insurance context is a term laden with ambiguity: some courts construe the term to apply only to newly constructed homes (see, e.g., Myers v. Merrimack Mut. Fire Ins. Co., 788 F.2d 468, 472 (7th Cir. 1986) (“[I]n an insurance policy, the term construction does not include repairs, maintenance, reconstruction, renovation and the like to an already existing structure.”), while other courts construe “construction” as including Continued . . . 20 renovated homes, and that McDowell told agent Hambrick (before either the insurance proposal or application were completed) that he was planning to renovate the Highland Avenue house. There is nothing in the application or in Allstate’s policy that prohibits 15 renovations. See, e.g., Warren Davis Properties V, L.L.C. v. United Fire & Cas. Co., 111 S.W.3d 515, 522 (Mo. Ct. App. 2003) (“Construing the reasonable definition of construction in favor of the insured, we find that activities encompassing the renovation of a building are construction.”). As we discuss in the text, an ambiguous question usually will not evoke a material response. We note that the general rule is that an insurer is bound by the information 15 acquired by its agent in taking an application, and the insurer is assumed to have at least constructive notice of what the agent knows. See generally, Restatement of the Law of Liability Insurance § 5 (2019). “Where the soliciting agent has knowledge of past conditions or existing facts which at the time would serve to void the policy, the company issuing the policy cannot insist upon such facts for the purpose of avoiding its liability.” Syl. pt. 2, Kimball Ice Co. v. Springfield Fire & Marine Ins. Co., 100 W. Va. 728, 132 S.E. 714 (1926). Hence, we have held that an insurance agent who issues a policy knowing a property will be vacant waives the insurer’s right to assert an occupancy requirement: When a duly authorized agent of the insurer knows at the time the policy is issued that the building is vacant, and it was later destroyed by fire while vacant . . . , the provision of the policy that the insurer shall not be liable if the building is vacant or unoccupied for a definite number of days is waived by the insurer. Syl. pt. 2, McKinney v. Providence Washington Ins. Co., 144 W. Va. 559, 109 S.E.2d 480 (1959). In McKinney, the insured sought a three-year fire insurance policy on a building and told the insurance agent “‘the building was vacant and probably would be vacant during the duration of the policy, might be someone in it the next two weeks or months, or possibly during the duration of the three years,’ and that the agent said ‘that didn’t make any difference.’” Id. at 562, 109 S.E.2d at 482. We concluded that [t]he weight of authority . . . supports the view that if an insurance company has knowledge, through its agent, when a contract of insurance is effected, that the premises are vacant or unoccupied, the issuance of the policy waives any provision Continued . . . 21 renovations and repairs to a property. In the context of this case where McDowell claims he was initially entering the property to conduct renovations, the question “will the residence be occupied” appears ambiguous. The ambiguity is heightened because, in two places, the policy provides that “[a] dwelling under construction is not considered vacant or unoccupied.” The general rule is an “insurer is not at liberty to deny coverage, after a loss has occurred, on the basis of an answer to an insurer’s question that is ambiguous or too general to evoke a material response.” Hollinger v. Mut. Ben. Life Ins. Co., 560 P.2d 824, 827 (Colo. 1977). See also Peterson v. USAA Life Ins. Co., 814 F. App’x 408, 411 (10th Cir. 2020) (“An insured is not responsible for misrepresentations made in response to an ambiguous insurance policy question.”); In re Tri-State Armored Servs., Inc., 332 B.R. 690, 710 (Bankr. D. N.J. 2005) (“[W]here an application question is ambiguous, the as to vacancy or nonoccupancy, at least so far as concerns the existing vacancy. Id. at 564, 109 S.E.2d at 483. See also Runner v. Calvert Fire Ins. Co., 138 W. Va. 369, 373-74, 76 S.E.2d 244, 247 (1953) (policy provisions may be waived by an insurance agent); Medley v. German Alliance Ins. Co., 55 W. Va. 342, 357, 47 S.E. 101, 107 (1904) (insurer may waive, or be estopped from asserting, policy conditions and exclusions); Effect On Provisions Of Insurance Policy As To Vacancy, Of Agent’s Representations Made, Or Knowledge Acquired, Prior To Issuance Of Policy, 96 A.L.R. 1259 (1935) (“The weight of authority appears to support the view that, if an insurance company has knowledge, through its agent, when a contract of insurance is effected, that the premises are vacant or unoccupied, the issuance of the policy waives any provision as to vacancy or nonoccupancy, at least so far as concerns the existing vacancy.”). But see Ashraf v. State Auto Prop. & Cas. Ins. Co., No. 18-0382, 2019 WL 2167960, at *5 (W. Va. May 20, 2019) (memorandum decision) (applying McKinney and finding insurer did not waive vacancy provision in policy). 22 ambiguity will be construed against the insurer and in favor of the truthfulness of the representation.”). Finally, the record is unclear as to whether McDowell ever made or affirmed any representation regarding occupying the property within thirty days. The record indicates that Hoover, agent Hambrick’s employee, completed the application. McDowell contends he did not know he completed an application; he insists he answered questions from agent Hambrick, received a proposal for insurance that persuaded him to buy an Allstate policy, and then later answered questions by phone that were asked by Hoover, agent Hambrick’s employee. Further, many of the blanks on Allstate’s six-page application (such as those regarding the size or the replacement cost of the house) were completed using information supplied by Allstate, not McDowell. McDowell testified he has no recollection of seeing or signing the application, in person or electronically, and insists he would not have signed the application because of its errors (such as misstating his wife’s age by eighteen years). Further, McDowell has proffered a copy of the application which does not contain his signature or initials, and which contradicts Allstate’s claim that McDowell electronically signed and initialed the application. Taken together, we find substantial questions of material fact exist regarding whether McDowell made a false representation about his occupancy of the house. Second, there are significant questions regarding whether McDowell’s response to the thirty-day-occupancy question in the application was material to Allstate’s 23 decision to issue the policy. To begin, the record contains an affidavit from a “product and risk management litigation consultant” employed by Allstate, but the affidavit does not refer to the thirty-day-occupancy question on the application. The consultant opines that Allstate, “[b]ased upon its underwriting policies and procedures,” would not have issued the policy if McDowell had “disclosed that the property had been acquired as an investment or ‘flip’ property,” because Allstate “considers the occupancy of a home as a primary residence to be a material fact in determining whether or not to insure the proposed risk[.]” (emphasis added). Setting aside McDowell’s claims (that while he intended to renovate the property as an investment, he might also have intended to live in the house with his family), absent from Allstate’s affidavit is any opinion regarding whether or how the thirty- day-occupancy question was material to Allstate. Allstate’s July 18 letter did not seek rescission of the policy because plaintiffs did not make the house their primary residence; it only sought to avoid the policy because “it would not be occupied within 30 days.” Beyond the opinion affidavit of its employee, Allstate offered no written underwriting policies, manuals, guidelines, or other writings pertaining to the company’s use of the thirty-day-occupancy question in assessing whether to issue a policy. More significantly, McDowell points out that the application’s thirty-day question cannot be material because it conflicts with both the language of the insurance policy and with the requirements of state law. As we noted earlier, in two places, Allstate’s policy provides that “[a] dwelling under construction is not considered vacant or unoccupied.” Again, factually, McDowell insists he told agent Hambrick he intended to 24 enter the property within thirty days to conduct “construction” in the form of repairs and renovations and insists he did enter the property to do so. Thus, he asserts his answer could not have been material to Allstate’s decision to issue the policy. But importantly, the policy contains a section called the “Standard Fire Policy Provisions” because West Virginia law requires those provisions. Specifically, West Virginia Code § 33-17-2 (1957) provides that: No policy of fire insurance covering property located in West Virginia shall be made, issued or delivered unless it conforms as to all provisions and the sequence thereof with the basic policy commonly known as the New York standard fire policy, edition of one thousand nine hundred forty-three, which is designated as the West Virginia standard fire policy[.] Allstate’s policy incorporates the “West Virginia Standard Fire Policy” and contains language that Allstate “shall not be liable for loss occurring . . . while a described building . . . is vacant or unoccupied beyond a period of sixty consecutive days.” (emphasis added.) McDowell contends that Allstate’s application impermissibly narrows the coverage provided in the Standard Fire Policy by shortening the allowable vacancy period from sixty consecutive days to only thirty days. It is axiomatic that any conflict between a statute and an insurance policy provision is resolved in favor of the statute. Adkins v. Meador, 201 W. Va. 148, 153, 494 S.E.2d 915, 920 (1997) (“When the language of an insurance policy is contrary to statute and therefore void, the policy should be construed to contain the coverage required by West Virginia law.”); W. Va. Code § 33-6-17 (1957) (any insurance policy in conflict with state law must be construed as though it was in full compliance with the law). We leave for another day the assessment of whether the application’s question is 25 in conflict with statutory requirements. Instead, we focus on whether the circuit court was correct in ruling that Allstate had shown, as a matter of law and by a preponderance of the evidence, that its thirty-day question was material under West Virginia Code § 33-6-7(b) and (c). On this record, we can only say that such a showing was not made, and we leave it to the factfinder to resolve whether the conflict with Allstate’s statutorily required policy language rendered the question on the application immaterial. In summary, we conclude that questions of material fact exist concerning whether Allstate’s thirty-day-occupancy question was material to Allstate’s decision to issue the policy to the plaintiffs. 16 IV. Conclusion The record below shows there are genuine issues of material fact to be tried, and inquiry concerning the facts is necessary to clarify the application of the law. Accordingly, we find the circuit court erred in granting summary judgment to Allstate. The July 6, 2021, order is therefore reversed, and the case remanded for further proceedings. Reversed and remanded. In addition to asserting the circuit court erred in granting summary 16 judgment to Allstate, the plaintiffs also argue that the circuit court should have granted summary judgment in their favor. Because of the numerous questions of material fact and inferences in the record surrounding the application, we reject the plaintiffs’ argument. 26	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484760/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED September 2022 Term _______________ November 17, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 22-0155 SUPREME COURT OF APPEALS OF WEST VIRGINIA _______________ GREG ALLEN BALL, Petitioner, v. UNITED FINANCIAL CASUALTY COMPANY, MILTON HARDWARE, LLC, BUILDERS DISCOUNT, LLC, and RODNEY PERRY, Respondents ________________________________________________________ Certified Question from the United States Court of Appeals for the Fourth Circuit No. 20-1452 CERTIFIED QUESTION ANSWERED ________________________________________________________ Submitted: October 4, 2022 Filed: November 17, 2022 Stephen B. Farmer, Esq. Susan R. Snowden, Esq. R. Chad Duffield, Esq. Jackson Kelly PLLC Jennifer D. Roush, Esq. Martinsburg, West Virginia Farmer Cline & Campbell, PLLC Counsel for Respondent United Charleston, West Virginia Financial Casualty Company Counsel for Petitioner Jeffrey A. Holmstrand, Esq. Grove Holmstrand & Delk PLLC Wheeling, West Virginia Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia Dallas F. Kratzer III, Esq. Steptoe & Johnson PLLC Columbus, Ohio Counsel for Amicus Curiae Defense Trial Counsel of West Virginia CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court. JUSTICE WALKER concurs and reserves the right to file a concurring opinion. JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion. JUSTICE BUNN, deeming herself disqualified, did not participate in the decision of the case. JUDGE SADLER, sitting by temporary assignment. SYLLABUS BY THE COURT 1. “The mandatory omnibus requirements imposed by W. Va. Code, 33- 6-31(a), indicate that the legislature has demonstrated a clear intent to afford coverage to anyone using a vehicle with the owner’s permission as a means of giving greater protection to those who are involved in automobile accidents. The statute should be liberally construed to effect coverage.” Syl. Pt. 3, Burr v. Nationwide Mut. Ins. Co., 178 W. Va. 398, 359 S.E.2d 626 (1987). 2. “Any provision in an insurance policy which attempts to contravene W. Va. Code, 33-6-31(a), is of no effect.” Syl. Pt. 2, Burr v. Nationwide Mut. Ins. Co., 178 W. Va. 398, 359 S.E.2d 626 (1987). 3. “W.Va. Code, 33-6-31(a) [1998] expressly requires that a motor vehicle insurance policy contain a provision insuring the named insured and any other person responsible for the use of or using the motor vehicle against liability to another for death, bodily injury, loss or damage sustained as a result of negligence in the operation or use of such vehicle. Any additional provision in a motor vehicle insurance policy which tends to limit, reduce or nullify that . . . liability coverage . . . is void and ineffective as against public policy.” Syl. Pt. 3, Gibson v. Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598 (2005). 4. When an exclusion in a motor vehicle liability insurance policy violates West Virginia Code § 33-6-31(a) [2015] because it would deny coverage to a i permissive user of an insured vehicle, the exclusion is void, and the insurance policy must provide coverage to the permissive user up to the full limits of liability coverage available under the policy. ii HUTCHISON, Chief Justice: This case is before this Court on a certified question from the United States Court of Appeals for the Fourth Circuit concerning the amount of motor vehicle liability insurance coverage, if any, that United Financial Casualty Company (“United Financial”) must provide to a non-employee permissive user of an insured vehicle who caused personal injuries to an employee of a named insured under a standard commercial automobile insurance policy issued by United Financial (“the policy”): When an exclusion in an automobile liability insurance policy violates West Virginia Code § 33-6-31(a) because it would deny coverage to a permissive user of an insured automobile, must the insurance policy provide the permissive user with the full liability coverage available under the policy or the minimum liability coverage required by the Motor Vehicle Safety Responsibility Law, West Virginia Code § 17D-1-1 et seq.? The Fourth Circuit has determined that an Employee Indemnification and Employer’s Liability’s exclusion 1 in United Financial’s policy is void and unenforceable The Employee Indemnification and Employer’s Liability exclusion is the exclusion 1 relevant to the certified question; it provides as follows: PART I – LIABILITY TO OTHERS .... EXCLUSIONS .... Coverage under this Part I, including our duty to defend, does not apply to: Continued . . . 1 under the mandatory omnibus requirements of West Virginia Code § 33-6-31(a) [2015]. Upon review of the parties’ briefs, appendix record, oral argument, and applicable legal authority, and for the reasons stated below, we find the void exclusion may not be invoked to limit the amount of liability insurance coverage available to a permissive user of a vehicle insured by United Financial’s policy. We conclude that United Financial must afford the permissive user with coverage up to the full limits of liability coverage available under the insurance policy for any damages proven. I. Factual and Procedural Background .... 5. Employee Indemnification and Employer’s Liability Bodily Injury to: a. An employee of any insured arising out of or within the course of: (i) That employee’s employment by any insured; or (ii) Performing duties related to the conduct of any insured’s business; or .... This exclusion applies: a. Whether the insured may be liable as an employer or in any other capacity. . . . 2 In its published order, United Financial Casualty Company v. Ball, 31 F.4th 164 (4th Cir. 2022), the Fourth Circuit set forth the undisputed relevant facts and procedural history as follows: On October 25, 2016, employees of Milton Hardware, LLC, were performing construction work at the home of Rodney Perry in Milton, West Virginia. At one point during the work, Milton Hardware’s owner authorized Perry to move one of Milton Hardware’s trucks, which was blocking the driveway. As Perry was moving the truck in reverse, however, he accidentally struck Greg Ball, a Milton Hardware employee, temporarily pinning him between the truck Perry was driving and another Milton Hardware truck. As a result, Ball sustained serious injuries that required hospitalization. At the time of the accident, Milton Hardware had a commercial automobile liability insurance policy issued by United Financial Casualty Company, which provided $1 million in liability coverage to Milton Hardware and to any person using Milton Hardware’s vehicles with its permission. Based on this provision, Ball demanded that United Financial indemnify him for the injuries that he claimed were caused by Perry’s negligence. United Financial denied coverage and commenced an action in [the United States District Court for the Southern District of West Virginia] against the named insureds, Milton Hardware and Builders Discount, LLC, as well as Perry and Ball, seeking a declaratory judgment that it had no obligation to cover Perry’s liability to Ball. It asserted that coverage for Perry’s liability to Ball was barred by two exclusions in the policy—a “Worker’s Compensation” exclusion and an “Employee Indemnification 2 and Employer’s Liability” exclusion. Ball filed a crossclaim against Perry, 3 West Virginia Code § 33-6-31(h) provides that “[t]he provisions of subsections (a) 2 and (b) of this section do not apply to any policy of insurance to the extent that it covers the liability of an employer to his or her employees under any workers’ compensation law.” West Virginia Code § 33-6-31(a) provides, in relevant part, as follows: 3 No policy or contract of bodily injury liability insurance, or of property damage liability insurance, covering liability arising from the ownership, maintenance or use of any motor vehicle, may be issued or delivered in this state to the Continued . . . 3 seeking damages for his negligence, and a counterclaim against United Financial for a declaratory judgment that, among other things, the Worker’s Compensation exclusion did not apply and that the Employee Indemnification and Employer’s Liability exclusion violated West Virginia Code § 33-6-31(a). Ball also sought money damages from United Financial, alleging breach of contract, breach of the covenants of good faith and fair dealing, unfair trade practices, and common law bad faith. On cross-motions for summary judgment, the district court granted United Financial’s motion. The court concluded that because Ball “sustained his injuries while he was working within the course of his employment with Milton Hardware,” his injuries fell within the scope of the Worker’s Compensation exclusion and “that, as a result, he [was] barred from liability coverage under the policy.” The court also rejected Ball’s argument that West Virginia Code § 33-6-31(a) required United Financial to extend liability coverage to Perry as a permissive user of an insured automobile, reasoning that the exception in § 33-6-31(h) applied to eliminate this requirement. See W. Va. Code § 33-6-31(h) (providing that subsection (a) does “not apply to any policy of insurance to the extent that it covers the liability of an employer to his or her employees under any workers’ compensation law”). The court dismissed all of Ball’s counterclaims against United Financial, including his state law claims for damages, and it declined to exercise supplemental jurisdiction over Ball’s state law tort claim against Perry. owner of such vehicle, or may be issued or delivered by any insurer licensed in this state upon any motor vehicle for which a certificate of title has been issued by the Division of Motor Vehicles of this state, unless it contains a provision insuring the named insured and any other person, except a bailee for hire and any persons specifically excluded by any restrictive endorsement attached to the policy, responsible for the use of or using the motor vehicle with the consent, expressed or implied, of the named insured or his or her spouse against liability for death or bodily injury sustained or loss or damage occasioned within the coverage of the policy or contract as a result of negligence in the operation or use of such vehicle by the named insured or by such person[.] (Emphasis added). 4 On Ball’s appeal, [the United States Court of Appeals for the Fourth Circuit] vacated the district court’s judgment and remanded for further proceedings. United Financial Casualty Co. v. Ball, 941 F.3d 710 (4th Cir. 2019). [The Fourth Circuit] held first that “because Ball’s negligence claim against Perry was a claim against a third party, rather than a claim against his employer for workers’ compensation, the [policy’s] Worker’s Compensation exclusion did not apply.” Id. at 712. [The Fourth Circuit] also “conclude[d] that the policy’s broader exclusion for Employee Indemnification and Employer’s Liability, which on its face would apply to exclude coverage for Perry’s liability to Ball, was inoperable because its limitation of coverage contravened West Virginia Code § 33-6-31.” Id. Specifically, United Financial had argued that “§ 33-6-31 (a) [did] not apply because of the workers’ compensation exception in subsection (h),” but [the Fourth Circuit] explained that because “Ball’s claim against Perry [was] not a workers’ compensation claim, but rather a third-party common law tort claim, the exception in § 33-6-31 (h) [did] not apply, and § 33-6-31(a) continue[d] to override the restrictions of the Employee Indemnification and Employer’s Liability exclusion.” Id. at 716. As [the Fourth Circuit] summarized, At bottom, [the court] conclude[s] that while the language of the Employee Indemnification and Employer’s Liability exclusion, considered alone, is sufficiently broad to deny Perry coverage for his liability to Ball, such a limitation of coverage for a permissive user of an insured vehicle contravenes West Virginia Code § 33-6-31(a) and thus renders the exclusion unenforceable. See Universal Underwriters Ins. Co. v. Taylor, 185 W. Va. 606, 408 S.E.2d 358, 363 (1991) (recognizing “that any provision in an insurance policy which attempts to contravene W. Va. Code, 33-6-31(a) is of no effect” (cleaned up)); see also Burr [v. Nationwide Mut. Ins. Co.], 178 W.Va. 398] 359 S.E.2d [626, 631 (W. Va. 1987)]. Accordingly, [the court] hold[s] that the Employee Indemnification and Employee’s Liability exclusion cannot operate to deny Perry coverage under United Financial’s policy for his liability to Ball. Id. at 717. Thus “conclud[ing] that United Financial may not deny liability coverage to Perry by reason of either the Worker’s Compensation exclusion or the Employee Indemnification and Employer's Liability exclusion,” [the Fourth Circuit] remanded “for further proceedings as to any unresolved issues raised by the parties.” Id. 5 On remand to the district court, the parties disagreed on what level of coverage United Financial was required to provide in view of [the Fourth Circuit’s] holding that the Employee Indemnification and Employer’s Liability exclusion was unenforceable. And this dispute brought into play West Virginia Code § 17D-4-2(b) (requiring minimum liability coverage of $25,000 for bodily injury to a person injured in a motor vehicle accident), 4 as well as [the Fourth Circuit’s] prior holding under West Virginia Code § 33-6-31(a). United Financial argued that while the exclusion was unenforceable up to the $25,000 minimum liability coverage required by § 17D-4-2(b), it remained enforceable as to any amount above that statutory minimum. Ball and Perry, by contrast, argued that the exclusion was entirely unenforceable under § 33-6-31(a) and that therefore United Financial was required to provide Perry with coverage of up to the full $1 million afforded by the policy. The district court entered summary judgment upholding United Financial’s position in a memorandum opinion and order dated March 31, 2020. J.A. 484-92. . . . [I]t held that the policy’s Employee Indemnification and Employer’s Liability exclusion was “unenforceable up to the minimum As part of the Motor Vehicle Safety Responsibility Law, West Virginia 4 Code § 17D-4-12(b)(2) [2015] provides that a motor vehicle liability policy shall insure the person named therein and any other person, as insured, using any such vehicle or vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, operation, maintenance or use of such vehicle or vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such vehicle, in the amounts required in section two of this article. (Emphasis added); see Ball, 31 F.4th at 167. West Virginia Code § 17D-4-2, “in turn, specifies the minimum amount of liability coverage that must be provided pursuant to [§ 17D-4-12(b)(2)’s] requirement – $25,000, as relevant here.” Ball, 31 F.4th at 168; see W. Va. Code § 17D-4-2(b)(2), in part (“‘proof of financial responsibility’ means proof of ability to respond in damages for liability, on account of accident occurring subsequent to the effective date of the proof, arising out of the ownership, operation, maintenance, or use of a motor vehicle, trailer or semitrailer in the amount of $25,000 because of bodily injury to or death of one person in any one accident”). 6 insurance coverage [of $25,000] required by state law but operative as to any amount above the state’s mandatory minimum limits.” J.A. 492. Ball, 31 F.4th at 165-67 (footnotes and emphasis added). Ball appealed the district court’s ruling. 5 On Ball’s second appeal to the Fourth Circuit, the issue thus concerned the amount of liability coverage, if any, United Financial is obligated to provide Perry with respect to Perry’s liability (as a permissive user under the Milton Hardware policy) to Ball, a Milton Hardware employee. See id. at 167. Finding no controlling West Virginia 6 precedent to definitively answer the question, the Fourth Circuit certified the following question to us: When an exclusion in an automobile liability insurance policy violates West Virginia Code § 33-6-31(a) because it would deny coverage to a permissive user of an insured automobile, must the insurance policy provide the permissive user with the full liability coverage available under the policy or the minimum liability coverage required by the Motor Vehicle Safety Responsibility Law, West Virginia Code § 17D-1-1 et seq.? We accepted the certified question by order entered April 14, 2022. II. Standard of Review A crossclaim and certain counterclaims remain pending in the district court and 5 have been stayed. See Ball, 31 F.4th at 167. The question as to what amount of coverage United Financial was required to 6 provide to Perry was first raised before the district court on remand. See id. at 168. 7 This case presents a certified question from the United States Court of Appeals for the Fourth Circuit. Our review is plenary. See Syl. Pt. 1, Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999) (“This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.”). III. Discussion Although the Fourth Circuit found that application of the Employee Indemnification and Employer’s Liability exclusion to permissive users of an insured vehicle contravened West Virginia Code § 33-6-31(a) and was, therefore, unenforceable, Ball, 31 F.4th at 166,7 we are being asked to determine to what degree, if any, the exclusion nonetheless applies to limit the amount of liability coverage available to Perry, the non- employee permissive user of Milton Hardware’s vehicle who allegedly negligently caused injuries to Ball, a Milton Hardware employee. West Virginia Code § 33-6-31(a) plainly requires all motor vehicle insurance policies to insure permissive users of insured vehicles “against liability for death or bodily injury sustained . . . within the coverage of the policy . . . as a result of negligence in the operation or use of such vehicle by” the permissive user. Id. (emphasis added). Without United Financial has never appealed the Fourth Circuit’s conclusion that the 7 policy’s Workers’ Compensation exclusion does not apply to exclude coverage to Perry, a non-employee, for injuries caused to Ball, an employee of the insured, and that conclusion is not at issue in the question certified to this Court. 8 addressing the “within the coverage of the policy” requirement of the statute, United Financial argues that West Virginia Code § 33-6-31(a) and § 17D-4-2, the latter of which sets the minimum financial requirements for motor vehicle liability policies, work in tandem “to define minimum motor vehicle coverage in West Virginia” and that, based upon existing precedent, the Employee Indemnification and Employer’s Liability exclusion is unenforceable only up to the minimum “proof of ability to respond in damages for liability” of $25,000 for bodily injury to a person in a motor vehicle accident, as set forth in West Virginia Code § 17D-4-2(b). Above this statutory minimum, United Financial contends, the exclusion is enforceable. In contrast, Ball argues that this Court has never held that an exclusion that violates West Virginia Code § 33-6-31(a) is enforceable above the mandatory minimum limits set forth in West Virginia Code § 17D-4-2. According to Ball, our case law clearly supports a finding that the Employee Indemnification and Employer’s Liability exclusion, which has already been determined to be inoperable, has no effect on the amount of liability coverage available in this case; rather, pursuant to the plain language of West Virginia Code § 33-6-31(a), both the availability and amount of available coverage under the policy depend upon the status of the user of the insured vehicle and not the status of the injured party – in other words, the statute requires that a permissive user such as Perry be insured against liability for negligently causing bodily injury “within the coverage of the policy” regardless of the injured party’s status as an employee of the named insured. Accordingly, 9 United Financial must provide Perry with insurance coverage in an amount of up to $1 million, as provided in the policy. We agree with Ball. Turning first to the language of West Virginia Code § 33-6-31(a), we reiterate that the statute requires all motor vehicle insurance policies to insure permissive users of insured vehicles “against liability for death or bodily injury sustained . . . within the coverage of the policy . . . as a result of negligence in the operation or use of such vehicle by” the permissive user. Id. We have held that [t]he mandatory omnibus requirements imposed by W. Va. Code, 33-6-31(a) 8, indicate that the legislature has demonstrated a clear intent to afford coverage to anyone using a vehicle with the owner’s permission as a means of giving greater protection to those who are involved in automobile accidents. The statute should be liberally construed to effect coverage. Syl. Pt. 3, Burr v. Nationwide Mut. Ins. Co., 178 W. Va. 398, 359 S.E.2d 626 (1987) (footnote added); see Universal Underwriters Ins. Co. v. Taylor, 185 W. Va. 606, 611-12, 408 S.E.2d 358, 363-64 (1991) (“[T]he legislature’s enactment of the omnibus clause [West Virginia Code 33-6-31(a)] evinces an unmistakable intent to maximize insurance coverage for the greater protection of the public and that effectuation of such intent requires a broad interpretation of the statute.”). “Any provision in an insurance policy which Although West Virginia Code § 33-6-31(a) has since been amended, the 8 amendment does not affect our decision in this case. 10 attempts to contravene W. Va. Code, 33-6-31(a), is of no effect.” Syl. Pt. 2, Burr, 178 W. Va. at 399, 359 S.E.2d at 627. Despite the plain language of West Virginia Code § 33-6-31(a), and without acknowledging that the statute unambiguously requires that permissive users be insured against liability for injuries caused while negligently operating an insured vehicle “within the coverage of the policy,” United Financial contends that West Virginia Code § 33-6- 31(a) should be interpreted so as to limit the liability coverage available to the permissive user to the statutory minimum requirement set forth in West Virginia Code § 17D-4-2(b) (which, in this case, is $25,000). However, the case upon which United Financial primarily relies, Jones v. Motorists Mutual Insurance Company, 177 W. Va. 763, 356 S.E.2d 634 (1987) (abrogated by W.Va. Code §§ 33-6-31h [2015]), is readily distinguishable from the issue presented here and, in fact, along with other decisions from this Court, warrants that we hold that the policy must insure Perry against liability for the bodily injury alleged to have been negligently caused to Ball within the full limits of the policy. In Jones, the insured purchased an automobile liability insurance policy that specifically excluded her teenage son from the policy’s coverage. The son subsequently drove the car and wrecked it in a single car collision, damaging the vehicle and the property of third parties. See id. at 764, 456 S.E.2d at 635. The Court relied on the language of West Virginia Code 33-6-31(a) that expressly “authorizes potential users of an automobile to be specifically excluded from an automobile liability policy by a restrictive endorsement[,]” but also found there to be a “lack of harmony between this omnibus statute and the specific 11 requirements of Chapter 17D of the Code concerning financial responsibility and minimum levels of insurance.” 177 W. Va. at 766, 356 S.E.2d at 637. Ultimately, for third-party liability purposes, the Court held the “named driver exclusion” endorsement to be enforceable, but only beyond the mandatory minimum required by West Virginia Code § 17D-4-2. 177 W. Va. at 765, 766, 356 S.E.2d at 736, 637. Critically, the statute clearly 9 permitted the exclusion at issue in Jones – that is, West Virginia Code § 33-6-31(a) authorized an automobile liability insurance policy to exclude from coverage any specific “persons . . . by any restrictive endorsement attached to the policy[,]” and so the policy at issue in Jones, which specifically excluded the insured’s teenage son, did not violate (and, in fact, comported with) the requirements of the statute. See id. In comparison, the Employee Indemnification and Employer’s Liability exclusion at issue in this case clearly violates West Virginia Code § 33-6-31(a) by attempting to exclude coverage for a broad category of permissive users whose negligence may cause death or bodily injury as a result of the operation or use of the insured vehicle. Given this significant distinction, United Financial’s reliance on Jones for the proposition that the Employee Indemnification and Employer’s Liability exclusion is enforceable The Court in Jones made clear, however, that “the named driver exclusion 9 endorsement is effective as against any claim made by [the insured] herself for damage to her own automobile or other personal property owned by her or her son.” Id. at 765, 356 S.E.2d at 636. 12 beyond the statutory minimum limits set forth in West Virginia Code § 17D-4-2 is misplaced. 10 United Financial also briefly argues that our decisions in Dotts v. Taressa J.A., 10 182 W. Va. 586, 390 S.E.2d 568 (1990), and Imgrund v. Yarbrough, 199 W. Va. 187, 483 S.E.2d 533 (1997), dictate that the Employee Indemnification and Employer’s Liability exclusion be enforced above the minimum requirements of West Virginia Code § 17D-4- 2. However, these cases are likewise distinguishable from the case before us. In Dotts, we considered whether an insurance company was required to provide coverage under a policy it had issued to the Fairmont Marion County Transit Authority to one of its employee drivers for damages resulting from his sexual assault of a passenger. Id. at 587, 390 S.E.2d at 569. The policy included what was deemed to be exclusionary language that was “generally designed to exclude coverage for an intentional tort such as sexual assault.” Id. at 589, 390 S.E.2d at 571. The plaintiff in Dotts argued that the exclusion was invalid “with respect to the mandatory insurance provisions of our” financial responsibility laws. Id. at 589, 390 S.E.2d at 571. Observing that our financial responsibility statute was not intended to exclude coverage for an intentional tort, id. at 590-91, 390 S.E.2d at 572-73, we held that “an intentional tort exclusion in a motor vehicle liability insurance policy is precluded under our [financial responsibility law] up to the amount of the minimum insurance coverage required therein. [However,] [t]he policy exclusion will operate as to any amount above the statutory minimum.” Id. at 587, 390 S.E.2d at 569, syl. pt. 4. We note, first, that Dotts was decided strictly with respect to the exclusion’s invalidity under the financial responsibility law and not West Virginia Code § 33-6-31(a). Second, we observe that, in any event, the statute requires that named insureds and permissive users be insured against liability for death or bodily injury sustained or loss or damage occasioned “as a result of negligence in [their] operation or use of” the insured vehicle. Id. (emphasis added). It is thus logical to conclude that, because West Virginia Code § 33-6-31(a) does not require that named insureds and permissive users be similarly insured for death, bodily injury, loss, or damage caused as a result of intentional torts committed in their operation or use of the insured vehicle, an intentional tort exclusion would not violate West Virginia Code § 33-6-31(a) and, therefore, would be enforceable beyond the mandatory minimum limits of West Virginia Code § 17D-4-2. Contrary to the intentional torts exclusion in Dotts, in this case, an exclusion that excludes coverage for a permissive but negligent user of an insured vehicle violates West Virginia Code § 33-6- 31(a) and is, thus, inoperable even beyond the mandatory statutory minimum limits. Continued . . . 13 We also look to our decision in Burr, which involved an accident caused by the driver of a pickup truck that had been borrowed for the driver’s personal use from the insured, a motor vehicle dealership owner. Among other issues, the Court addressed the applicability of the insurance policy’s “dealer plates” endorsement exclusion, which stated that “[a]ny auto you own while used with . . . [dealer plates] . . . is a covered automobile . . . but only while the auto is: (A) Used in your garage business, or (B) Rented to a customer . . . .” 178 W. Va. at 403 n.9, 359 S.E.2d at 631 n.9. The insurance company argued that this exclusion comported with West Virginia Code § 33-6-31(a) and should be equated with the statute’s language “that enables an exclusion for ‘any person specifically excluded Our holding in Imgrund is likewise distinguishable from the case at bar. That case involved whether an “owned but not insured” exclusion could preclude a driver of a motorcycle involved in a collision with an uninsured motorist from obtaining uninsured motorist coverage under his parent’s policy where no premium was paid by the insureds for that vehicle. See W. Va. Code § 33-6-31(b) (requiring motorists to have uninsured motorist coverage in minimum amounts established by West Virginia Code § 17D-4-2). We held that “[a]n ‘owned by not insured’ exclusion to uninsured motorist coverage is valid and enforceable above the mandatory limits of uninsured motorist coverage required by W. Va. Code §§ 17D-4-2. . . and 33-6-31(b)[,]” but that such an exclusion is ineffective and void to the extent it “attempts to preclude recovery of statutorily mandated minimum limits of uninsured motorist coverage.” 199 W. Va. at 188, 483 S.E2d at 534, syl. pt. 4, in part. Imgrund is distinguishable from the present case because (1) an “owned but not insured” exclusion does not violate West Virginia Code 33-6-31(a), see W. Va. Code § 17D-4-12(b)(1) (requiring a motor vehicle liability policy to “designate . . . all vehicles with respect to which coverage is thereby to be granted”), and (2) West Virginia Code § 33-6-31(a) very clearly requires that permissive users of insured vehicles must be insured “against liability for death or bodily injury sustained . . . within the coverage of the policy[.]” Id., in relevant part (emphasis added). 14 by any restrictive endorsement.’” 178 W. Va. at 403, 359 S.E.2d at 631. This Court rejected that argument, concluding that the “statutory phrase ‘person[] specifically excluded’” cannot be “interpreted to include a category which refers to no specified person” as contained in the “dealer plates” endorsement. Id. at 404, 359 S.E.2d at 632. To conclude otherwise, the Court reasoned, would be contrary to the plain meaning of West Virginia Code § 33-6-31(a); therefore, we held that, to be effective under the omnibus clause, “an exclusion must specifically designate by name the individual or individuals to be excluded. Since the ‘dealer plates’ endorsement in [the] . . . policy did not so designate [the specific driver involved in the accident], it was null and void as to him.” Id. at 404-05, 359 S.E.2d at 633 (footnote omitted). Thus, we concluded in Burr that the “dealer plates” endorsement exclusion was void and unenforceable in toto because it failed to comport with the plain requirements of West Virginia Code § 33-6-31(a). Finally, this Court has held that provisions that purport to “limit, reduce or nullify” the liability coverage mandated by West Virginia Code § 33-6-31(a) are likewise void and unenforceable in their entirety. In Gibson v. Northfield Insurance Company, 219 W. Va. 40, 631 S.E.2d 598 (2005), the Court addressed the validity of a “defense within limits” provision in an automobile liability insurance policy purchased by the City of Charleston. In such a provision, “all costs of defense are chargeable against, and thereby erode or reduce, the indemnification policy limits” such that “[w]hen the policy limits are exhausted – whether through the payment of claims to third parties or the payment of defense costs – the insurance company’s obligation to provide coverage and a defense 15 terminates[.]” Id. at 42, 631 S.E.2d at 600. The Court in Gibson observed that, of “the 11 required elements of a motor vehicle insurance policy” sold in West Virginia, as set forth 12 in West Virginia Code § 33-6-31(a), “[n]otably absent . . . is any requirement that an automobile liability insurance policy . . . expend the policy limits to protect the named insured against the fees and expenses incurred . . . in defending claims” such as what was 13 provided for in the defense within limits provision of the City’s policy. Finding that such a provision violates West Virginia Code § 33-6-31(a) and the intent of the Legislature, we held: W.Va. Code, 33-6-31(a) [1998] expressly requires that a motor vehicle insurance policy contain a provision insuring the named insured and any other person responsible for the use of or using the motor vehicle against liability to another for death, bodily injury, loss or damage sustained as a result of negligence in the operation or use of such vehicle. Any additional provision in a motor vehicle insurance policy which In Gibson, one of the plaintiffs was injured and the other’s decedent was killed 11 when their motorcycles collided with an ambulance owned by the City of Charleston. 219 W. Va. at 43, 631 S.E.2d at 601. The City had purchased an insurance policy with a $1 million limit for automobile liability coverage. Id. Many months after a complaint was filed against the City, the plaintiffs learned that over thirty percent of the $1 million coverage had been consumed by defense litigation expenses, “and that the amount of insurance coverage continued to be reduced by ongoing defense attorney fees and costs.” Gibson, 219 W. Va. at 44, 631 SE.2d at 602 (footnote omitted). The parties ultimately settled for the amount that remained, with one of the parties reserving the right to seek declaratory relief as to the validity of the “defense within limits” provision and the amounts “spent by the insurance company on defense costs to the date of the settlement.” Id. Id. at 47, 631 S.E.2d at 605. 12 13 Id. at 47, 631 S.E.2d at 605. 16 tends to limit, reduce or nullify that . . . liability coverage . . . is void and ineffective as against public policy. Gibson, 219 W. Va. at 41, 631 S.E.2d at 599, syl. pt. 3, in part. Because the “defense within limits” provision violated West Virginia Code § 33-6-31(a), it was void and ineffective in its entirety. Based upon all of the foregoing, and in light of West Virginia Code § 33-6- 31(a)’s clear and unambiguous language requiring motor vehicle liability insurance policies to insure permissive users against liability for death or bodily injury sustained or loss or damage occasioned within the coverage of the policy as a result of the permissive user’s negligence in operating or using an insured vehicle, we now hold that when an exclusion in a motor vehicle liability insurance policy violates West Virginia Code § 33- 6-31(a) because it would deny coverage to a permissive user of an insured vehicle, the exclusion is void, and the insurance policy must provide coverage to the permissive user up to the full limits of liability coverage available under the policy. IV. Conclusion The certified question having been answered, we remand this case to the United States Court of Appeals for the Fourth Circuit for further proceedings. Certified Question Answered. 17	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484759/	No. 22-0155, Greg Allen Ball v. United Financial Casualty Company, Milton Hardware, FILED LLC, Builders Discount, LLC, and Rodney Perry November 17, 2022 released at 3:00 p.m. Armstead, Justice, dissenting: EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA In this case, Rodney Perry allegedly backed a truck into, and injured, Greg Ball. The United States Circuit Court of Appeals for the Fourth Circuit has asked us to state whether the vehicle’s insurer, United Financial Casualty Company, must provide Mr. Perry either (a) the full amount of coverage available under its automobile liability insurance policy (the “Policy”) or (b) the minimum amount of coverage required by the Motor Vehicle Safety Responsibility Law, W. Va. Code §§ 17D-1-1 to 17D-6-7 (the “MVSRL”). In practical terms, the question is whether United Financial is obligated for $1 million of liability coverage or $25,000 of liability coverage. 1 Ordinarily, the Policy’s terms and conditions would control, but in this case, the Policy includes language that purports to exclude coverage because Mr. Perry was driving a truck belonging to Milton Hardware, LLC, and because Mr. Ball was Milton Hardware’s employee. See United Fin. Cas. Co. v. Ball, 941 F.3d 710, 714-15 (4th Cir. 2019) (describing the Policy’s “Employee Indemnification and Employer’s Liability exclusion” (the “Exclusion”)). According to the Fourth Circuit, this Exclusion or “limitation of coverage for a permissive user of an insured vehicle contravenes West 1 See W. Va. Code § 17D-4-2(b) (eff. 2015) (defining “proof of financial responsibility” as “proof of ability to respond in damages for liability . . . arising out of the . . . use of a motor vehicle . . . in the amount of $25,000 because of bodily injury to or death of one person in any one accident . . .”). Virginia Code § 33-6-31(a) [(eff. 2015)] and . . . renders the exclusion unenforceable.” United Financial, 941 F.3d at 717. Nevertheless, this conclusion “must be understood in context.” United Fin. Cas. Co. v. Milton Hardware, LLC, No. CV 3:17-2002, 2020 WL 1545766, at 2 (S.D. W. Va. Mar. 31, 2020) (memorandum opinion and order). “When the language of an insurance policy is contrary to statute and therefore void,” that is not the end of the matter. Adkins v. Meador, 201 W. Va. 148, 153, 494 S.E.2d 915, 920 (1997). On the contrary, we must construe “the policy . . . to contain the coverage required by West Virginia law.” Id. Thus, the question before us is what level of coverage West Virginia law requires when the exclusion, an aspect of the bargain between United Financial and Milton Hardware, cannot be enforced because it contravenes West Virginia Code § 33-6- 31(a). We have answered a similar question in a previous opinion issued by this Court. In the Syllabus of Jones v. Motorists Mut. Ins. Co., we held that “[a] ‘named driver exclusion’ endorsement in a motor vehicle liability insurance policy in this State is of no force or effect up to the limits of financial responsibility required by W.Va.Code, 17D–4– 2 [1979]”; nevertheless, “above those mandatory limits . . . a ‘named driver exclusion’ endorsement is valid under W.Va.Code, 33–6–31(a) [1982].” 177 W. Va. 763, 356 S.E.2d 634 (1987), overturned due to legislative action (emphasis added). 2 We applied the same rule in Syllabus Point 4 of Dotts v. Taressa J.A., 182 W. Va. 586, 390 S.E.2d 568 (1990) 2 See W. Va. Code § 33-6-31h(c) (eff. 2015) (stating that insurers need not “provide any coverage” for “any person . . . specifically excluded from coverage under the provisions of a motor vehicle liability policy”). 2 (holding that “[a]n intentional tort exclusion . . . is precluded under . . . [the MVSRL] up to the amount of the minimum insurance coverage required therein” but enforceable “as to any amount above the statutory minimum”); Ward v. Baker, 188 W. Va. 569, 573, 425 S.E.2d 245, 249 (1992) (noting that the insurer had “paid into court the mandatory minimum $20,000 bodily injury coverage” and that, “due to the existence of the valid named driver exclusion, [the insurer] [wa]s not responsible for any damages in excess of the $20,000”); Syllabus Point 2 of Dairyland Ins. Co. v. East, 188 W. Va. 581, 425 S.E.2d 257 (1992) (holding that “[a] named insured exclusion endorsement is invalid with respect to the minimum coverage amounts required by the . . . [MVSRL]” but that “[a]bove the minimum amounts of coverage required by West Virginia Code § 17D-4-12 (1992) . . . the endorsement remains valid”); and Imgrund v. Yarborough, 199 W. Va. 187, 193–94, 483 S.E.2d 533, 539–40 (1997) (holding “that an ‘owned but not insured’ exclusion to uninsured motorist coverage is valid and enforceable above the mandatory limits of uninsured motorist coverage required by W. Va.Code §§ 17D–4–2 (1979) (Repl.Vol.1996) and 33–6–31(b) (1988) (Supp.1991)” but that “[t]o the extent that an ‘owned but not insured’ exclusion attempts to preclude recovery of statutorily mandated minimum limits of uninsured motorist coverage, such exclusion is void and ineffective . . .”).3 The majority appears to go to great lengths to in an attempt to distinguish these precedents, many of 3 We likewise endorsed this rule in Burr v. Nationwide Mut. Ins. Co., 178 W. Va. 398, 405 n.10, 359 S.E.2d 626, 633 n.10 (1987) (noting our holding “in Jones that a driver exclusion in an automobile policy is inoperative up to the limits of liability insurance required under W.Va. Code, 17D–4–12” and stating that the “dealer plates” endorsement in question would “also be invalid under the analysis used in Jones.”). 3 which were correctly cited by the United States District Court in its decision that is the subject of the current appeal before the Fourth Circuit Court of Appeals. However, we have yet to overrule any of these cases, and I believe they reflect a clear pattern that the Fourth Circuit described more than thirty years ago: “When West Virginia has found that an attempt to exclude or restrict coverage violated state law, it has voided the restriction or exclusion only up to the level of minimum coverage. It has permitted it to operate above this minimum.” Nationwide Mut. Ins. Co. v. Cont’l Ins. Co., 943 F.2d 49, ----, 1991 WL 181130, at 3 (4th Cir. 1991) (per curiam) (unpublished) (emphasis added). In my view, this is an entirely correct statement of our law, and I see no reason to depart from it in this case. Accordingly, I would hold that United Financial is only obligated to provide Mr. Perry the minimum amount of liability coverage required by the MVSRL (i.e., $25,000), and I would hold that the Exclusion is enforceable above that amount. The majority opinion, however, adopts a different rule that finds the Exclusion void and ineffective to limit United Financial’s obligation to provide Mr. Perry the “full limits” of liability coverage available under the Policy (i.e., $1 million). According to the majority opinion, West Virginia Code § 33-6-31(a) requires this result because it forbids any motor vehicle liability insurance policy to be issued unless it insures permissive users, like Mr. Perry, “against liability for death or bodily injury sustained or loss or damage occasioned within the coverage of the policy . . . .” Id. (emphasis added). However, as United Financial points out, West Virginia Code § 33-6-31 also states that it does not “prevent any insurer from incorporating in such terms, conditions and 4 exclusions as may be consistent with the premium charged.” Id. § 33-6-31(k) (emphasis added). That is not to say that subsection (k) grants insurers unfettered discretion to eliminate mandatory statutory coverages. It does not. As we held in Syllabus Point 3 of Deel v. Sweeney, “[i]nsurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes.” 181 W. Va. 460, 383 S.E.2d 92 (1989) (emphasis added). 4 Accordingly, though I agree § 33-6-31(a) does not allow United Financial to entirely deny coverage to Mr. Perry as a permissive user, I believe that § 33-6-31(k) makes the Exclusion applicable beyond the statutory coverage limits set forth in Chapter 17D of the Code. I further believe that our previous holding in Jones supports this interpretation of the interplay between these statutory provisions. In Jones, we recognized an apparent “lack of harmony between this omnibus statute [i.e., § 33-6-31(a) and its express authorization to exclude specified persons] and the specific requirements of Chapter 17D of the Code concerning financial responsibility and minimum levels of insurance.” Jones, 4 The majority opinion holds, based on Syllabus Point 3 of Gibson v. Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598 (2005), that any provision of a motor vehicle insurance policy that “tends to limit, reduce or nullify” the coverage required by § 33-6-31(a) is altogether “void and ineffective as against public policy.” However, Gibson, itself, reveals that, in certain circumstances, § 33-6-31(a) yields to other pertinent statutory provisions. See Gibson, 219 W. Va. at 42, 631 S.E.2d at 600, syl. pt. 5 (holding that an insurance company may incorporate limiting terms and conditions that are inconsistent with the provisions of W. Va. Code § 33–6–31 into an insurance policy where such terms are permitted under W. Va. Code § 29–12A–16(a)). 5 177 W. Va. at 766, 356 S.E.2d at 637. To reconcile this seeming inconsistency, we adopted “a common sense reading of [the] statutes in their entirety” and reasonably “conclude[d] that the legislature intended in Chapter 17[D] to provide a minimum level of financial security to third-parties who might suffer bodily injury or property damage from negligent drivers”; beyond that amount, we concluded that “Code 33–6–31(a) [1982] allows an insurer and an insured to agree to a ‘named driver exclusion’ endorsement.” Id. The same common sense reasoning applies here. On the one hand, § 33-6- 31(k) authorizes “any insurer” to incorporate “such terms, conditions and exclusions as may be consistent with the premium charged.” Thus, § 33-6-31(k) would seem to support the Exclusion’s complete denial of coverage to Mr. Perry on the facts of this case. On the other hand, § 33-6-31(a) clearly requires that liability policies must include coverage for permissive drivers, and § 17D-4-12(b)(2) (eff. 2015) requires each such policy to provide liability coverage to such permissive users “in the amounts required in” § 17D-4-2. In addition, § 17D-4-2(b) defines “proof of financial responsibility,” for relevant purposes, as “proof of ability to respond in damages for liability . . . in the amount of $25,000 because of bodily injury to or death of one person in any one accident[.]” Thus, I believe that §§ 33-6-31(a), 17D-4-2(b), and 17D-4-12(b)(2), when read together, require United Financial to extend at least $25,000 of liability coverage to Mr. Perry in his capacity as a permissive user. However, reconciling these statutory provisions, and applying the previous decisions of this Court, I disagree with the majority’s conclusion that United Financial is required to provide the full $1 million of liability coverage to Mr. Perry in this case. This is particularly 6 true under the unique facts of this case in which Mr. Perry, and not an employee of Milton Hardware, was driving the Milton Hardware’s truck when it allegedly struck Mr. Ball, himself a Milton Hardware employee. Instead, I would follow Jones and hold that exclusions envisioned under § 33-6-31(k), but inconsistent with § 33-6-31(a)’s requirement that permissive drivers be covered, would have no force or effect up to the limits of financial responsibility required by § 17D-4-2(b); but above those limits, such exclusions would be enforceable. Because the majority opinion renders the Employee Indemnification and Employer’s Liability exclusion entirely void and unenforceable in this case, even beyond the required coverage amounts set forth in W. Va. Code § 17D-4-2(b), I respectfully dissent. 7	01-04-2023	11-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/8484753/	IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2022 Term FILED ____________ November 17, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 20-0233 SUPREME COURT OF APPEALS ____________ OF WEST VIRGINIA LAWYER DISCIPLINARY BOARD, Petitioner v. GREGORY H. SCHILLACE, a member of the West Virginia State Bar, Respondent ________________________________________________________________________ Lawyer Disciplinary Proceeding Nos. 18-03-093, 18-03-199, 18-03-261, 18-02-362, 18-03-556, 19-03-211, and 19-03-253 LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED ________________________________________________________________________ Submitted: September 28, 2022 Filed: November 17, 2022 Rachael L. Fletcher Cipoletti, Esq. Timothy J. Manchin, Esq. Chief Lawyer Disciplinary Counsel Manchin Injury Law Group, P.L.L.C. Office of Lawyer Disciplinary Counsel Fairmont, West Virginia Charleston, West Virginia Respondent’s Counsel Petitioner’s Counsel JUSTICE WALKER delivered the Opinion of the Court. JUSTICE WOOTON dissents and reserves the right to file a separate opinion. SYLLABUS BY THE COURT 1. “A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board (“HPS”)] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [HPS’s] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS’s] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.” Syllabus Point 1, LDB v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. McCorckle, 192 W. Va. 286, 452 S.E.2d 377 (1994)). 2. “This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions[,] or annulments of attorneys’ licenses to practice law.” Syllabus Point 2, LDB v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984)). 3. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; (2) whether the lawyer acted intentionally, knowingly or i negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating factors.” Syllabus Point 4, Off. Law. Disc. Couns. v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998). 4. “Aggravating factors in lawyer disciplinary proceedings are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Syllabus Point 4, LDB v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). 5. “In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syllabus Point 3, Comm. on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987) (citing W. Va. R. Law. Disc. P. 3.16). ii WALKER, Justice: Over the course of several years, Gregory H. Schillace repeatedly agreed to represent clients but then abandoned his duties and responsibilities, leaving them with virtually no legal representation. His misconduct cost his former clients their legal rights, property, peace of mind, and trust in the legal system; he also contributed to public distrust of the legal profession. A hearing panel subcommittee of the Lawyer Disciplinary Board found that he committed fifty-three ethics violations but recommends we impose no active suspension of his law license. It reasoned that Respondent’s diagnosed mental impairment mitigates against harsher sanctions. We recognize how Respondent’s mental impairment affected his client representation, and we afford it due mitigating weight. We also commend his actions to address it, and we acknowledge his continued efforts toward mental health recovery. But his impairment does not insulate him from meaningful sanctions. We find that it mitigates his sanction to a two-year suspension, among other sanctions. Without significant mitigation, Respondent’s misconduct would warrant more than a two-year suspension. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 1 See e.g. LDB v. Rossi, 234 W. Va. 675, 686, 769 S.E.2d 464, 475 (2015) (suspending a lawyer’s license for three years for, among other things, being “unresponsive to his clients in . . . six matters and caused them real injuries.”). 1 Respondent has practiced law in West Virginia since 1990. On March 16, 2020, the Lawyer Disciplinary Board filed a seven-count Statement of Charges against him, alleging dozens of ethics violations. A subcommittee of the Board’s Hearing Panel (the Hearing Panel Subcommittee or HPS) conducted hearings on the charges on November 24, 2020, November 25, 2020, and March 2, 2021. Respondent, aggrieved clients, a circuit court judge who witnessed some of Respondent’s misconduct, and several mitigation witnesses testified at the hearings. The mitigation witnesses discussed, among other things, Respondent’s adjustment disorder and how it affected his client representation. Based on the evidence, the HPS made the following findings for each count. 2 A. Count I The HPS found that clients retained Respondent sometime in 2016 to represent them in a claim against their home contractor. Respondent never reduced the 2 After the HPS issued its report and recommended disposition to this Court, the Office of Disciplinary Counsel (ODC) filed an objection to the HPS’s recommended disposition. In response, Respondent consented to the recommended disposition, but he noted his objections to certain findings of facts and rule violations found. On appeal, he restates his objections but presents no argument explaining why we should disturb the HPS’s findings as to facts or rule violations. Instead, he presents, with no supporting arguments, the statement of facts and rule violations he claims the HPS should have adopted for each count. “The filing of any objection to the report of the Hearing Panel Subcommittee shall constitute commencement of proceedings . . . before the Supreme Court of Appeals[,]” but it does not carry a party’s burden of proving error below. See W. Va. R. Law. Disc. P. 3.13. In the absence of arguments by Respondent, we decline to disturb the HPS’s factual findings or the rule violations it found; clear and convincing evidence supports the findings. 2 scope or terms of his representation to writing. Respondent filed suit on the clients’ behalf on June 7, 2016. The contractor filed a counterclaim, but Respondent never responded to it or informed the clients of it. As the case proceeded, Respondent failed to communicate with them about the case. By the close of discovery, Respondent had failed to answer interrogatories, so the circuit court ordered that he file the discovery responses by July 21, 2017. Respondent filed the responses ten days late, on July 31, 2017. When opposing counsel moved for sanctions, Respondent did not respond, and the court ordered Respondent to pay attorney fees as a sanction. On November 30, 2017, opposing counsel moved for sanctions again, citing Respondent’s systematic failure to obey the court’s orders or the discovery rules. This time, opposing counsel requested that the court dismiss the clients’ claims due to Respondent’s pattern of misconduct. Respondent never responded to the motion. The circuit court dismissed the clients’ claims with prejudice but allowed the opposing party’s counterclaim to proceed. Respondent did not inform his clients that the court dismissed their claims and continued to withhold information about the counterclaim—despite the clients’ extensive efforts to get status updates on their case. By January 31, 2018, Respondent still had not responded to the counterclaim. The defense moved for a default judgment, and the circuit court granted it on March 1, 2018. Shortly before the damages trial for the default judgment, Respondent informed the clients of the counterclaim and that the circuit court dismissed their claims. The clients retained new counsel and settled the counterclaim for 3 $20,000 before trial. Respondent’s professional malpractice insurance carrier eventually made the clients financially whole by settling a malpractice lawsuit. Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 1.5(b), 1.5(c), 3.2, 3.4, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct. B. Count II The HPS found that a client retained Respondent sometime around January 2017 to represent her in a suit against her former employer, which her previous attorney filed on October 26, 2015. After the client and Respondent entered into a contingency fee agreement, Respondent failed to communicate with the client or respond to her requests for status updates on her case. On December 8, 2017, the client learned that opposing counsel filed a motion to dismiss for Respondent’s failure to prosecute. She attempted to contact Respondent about the motion, but he never responded. After Respondent failed to respond when the court ordered him to do so, the court dismissed the client’s lawsuit. Respondent baselessly assured the client that the circuit court would reinstate the case, but he made no effort toward reinstatement. The client then filed an ethics complaint against Respondent, which Respondent initially ignored. When he responded to the ODC’s second demand for a 4 response, he denied any ethics violations and said he would have the case reinstated. In response, the client reiterated to the ODC that Respondent made no effort to reinstate the case and had done nothing in the seven months following the dismissal. Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a),1.3, 1.4, 3.2, 3.4, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct. C. Count III The HPS found that a client retained Respondent to represent him in a divorce action. After the family court entered a final order in the case on December 21, 2016, Respondent appealed it to the circuit court. The family court then scheduled a May 1, 2017 hearing on a contempt motion filed against the client for allegedly violating the family court’s order. At the hearing, Respondent argued that the family court lacked jurisdiction while the case was pending in the circuit court. The family court continued the hearing to May 2. On May 1, the circuit court stayed proceedings in the family court. So, Respondent did not attend the continued May 2 hearing. After the parties settled the underlying case, the family court issued an order to show cause against Respondent for his failure to appear at the May 2 hearing. Respondent filed a complaint for declaratory relief and petition for writ of prohibition in 5 the circuit court against the family court judge related to the order to show cause, but Respondent failed to serve the family court judge with the complaint. So, the circuit court continued a hearing for the case and ordered Respondent to serve the family court judge before the next hearing. The circuit court also ordered Respondent to prepare an order reflecting its directives. The family court judge filed a motion to dismiss the petition for writ of prohibition. Respondent failed to appear for a hearing on that motion. Respondent also failed to serve the family court judge or prepare the order. So, the circuit court imposed a monetary sanction on Respondent, halted proceedings in the client’s case until Respondent paid the sanction, and filed an ethics complaint against him. The ODC sent Respondent the ethics complaint and demanded a response within twenty days, but Respondent failed to respond to the ODC by the initial deadline. When he responded late, he assured the ODC that he would pay the monetary sanctions so that the circuit court would allow the client’s case to proceed. But the circuit court provided the ODC with a transcript of a later hearing where Respondent admitted he had not paid the sanction and refused to do so. After Respondent refused to pay the sanction, the circuit court reduced it to a civil judgment. Respondent appealed the sanction to this Court. We reversed, in part, finding that the circuit court abused its discretion by issuing the contempt 6 sanction without a jury trial. 3 The HPS found insufficient evidence to find any ethics violations related to this count because of this Court’s decision to invalidate the sanction. D. Count IV The HPS found that a client retained Respondent to defend her in a contract dispute related to an equipment purchase for her business. The equipment supplier sued her sometime around May 2, 2014, for an alleged failure to pay. She requested that Respondent file a counterclaim alleging breach of contract for the supplier’s alleged failure to tender the goods in working condition. But Respondent never asserted the counterclaim. After the circuit court set the case for trial, Respondent never served discovery requests or took depositions. And Respondent never filed any pretrial motions, exhibits, or jury instructions, and he missed a February 10, 2017, docket call for the case. Before trial, the plaintiff presented a settlement offer to Respondent, but Respondent failed to communicate it to his client before it expired. At trial, the circuit court sanctioned Respondent for his discovery misconduct by excluding the client’s testimony. And the client learned at the trial that Respondent failed to assert the counterclaim. The jury awarded $31,500 to the plaintiffs. Even though Respondent promised the client that he would appeal, he never did. The client filed an ethics complaint, and Respondent failed to respond to the ODC’s first request for a response. The client filed 3 Rector v. Ross, 245 W. Va. 352, 360, 859 S.E.2d 295, 303 (2021). 7 a legal malpractice claim against Respondent. She testified below that Respondent never apologized to her for his misconduct. Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 3.2, 3.4, 3.4(d), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct. E. Count V The HPS found that clients retained Respondent to represent them in an August 15, 2016, partition lawsuit related to jointly inherited property. Respondent’s associate attorney attended a December 12, 2016 status conference on his behalf. At the conference, the circuit court emphasized that Respondent failed to respond to the lawsuit or participate in discovery. On December 27, 2016, the circuit court entered an order directing Respondent to respond to the lawsuit within 20 days. Respondent did not, and on January 23, 2017, the plaintiffs filed a Motion to Appoint Commissioners and Adopt Factual Matters for the partition action. Respondent never responded to the motion, and the circuit court granted it. The circuit court ordered that the partition commissioners ignore any evidence on the clients’ behalf because Respondent abandoned the case. The commissioners issued recommended findings, leaving the clients with an undesirable 8 portion of the property. Respondent did not provide a copy to the clients, and he withheld the adverse ruling from them. On July 23, 2018, the circuit court adopted the recommended findings. The clients only learned of the adverse rulings when they tried to pay property taxes to an opposing party who informed them that the circuit court ruled on the case. The clients demanded an explanation from Respondent who assured them he would “look at it.” The clients also demanded their client file, but Respondent withheld it. The clients filed an ethics complaint and hired counsel to recover the client file, but Respondent still withheld it. Respondent ignored the ODC’s first request for a response. He answered the ODC’s second request and claimed he acted ethically in the matter. Respondent’s malpractice insurance carrier settled a malpractice suit, arguably making the clients financially whole. But the clients testified that the settlement proceeds failed to provide them with sufficient redress because they still lacked access to their beloved family property. Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 1.16(d), 1.5, 1.15(d), 1.16(d), 3.2, 3.4, 8.4 (c), and 8.4 (d) of the West Virginia Rules of Professional Conduct. F. Count VI 9 The HPS found that a client retained Respondent in September 2018 to represent her in a real estate suit against an adjoining property owner. The client paid Respondent a $3,500 retainer, but Respondent never reduced the fee agreement to writing. He assured the client that he would file suit, but he then ignored the client’s communications over the next several months. On April 12, 2019, the client contacted the circuit court clerk’s office and learned that Respondent never filed the complaint. On April 17, 2019, the client mailed Respondent a letter terminating his representation and requesting a retainer refund and her client file. Respondent met with the client four days after receiving her termination letter. To the client’s dismay, he conducted an intake with her like he had at their initial meeting. The client informed Respondent that she had no more money to replenish her retainer. Respondent convinced her that he would file the suit and represent her under a contingency fee agreement. He also assured her that he would file suit by April 29, 2019, but he did not. He later promised that he would file it by May 6, 2019, and the client tried to contact him to confirm that he had, but he ignored her. The client went to the clerk’s office on May 10, 2019, where she learned that Respondent still had not filed the complaint. The client again requested a refund of her retainer and her client file, but Respondent returned neither. 10 The client filed an ethics complaint, and Respondent ignored the ODC’s request for a response. When Respondent responded to ODC’s second request, he denied committing any ethics violations. Based on these findings, the HPS found that Respondent violated Rules 1.2(a), 1.3, 1.4, 1.5(b), 1.5, 1.15(b), 1.15(d), 1.16(d), 8.4(c) and 8.4(d) of the West Virginia Rules of Professional Conduct. G. Count VII The HPS found that a client retained Respondent to represent him in an April 15, 2016, lawsuit against his former employer. Respondent failed to disclose witnesses or respond to discovery requests, as the circuit court’s order required. Opposing counsel repeatedly attempted to contact Respondent about his failures, but Respondent ignored the attempts. On August 7, 2017, opposing counsel filed a motion for sanctions and, alternatively, a motion to compel the discovery. Respondent did not respond. Respondent failed to instruct his client to attend an August 28, 2017, pretrial hearing. When Respondent attended the hearing, he admitted that he failed to prosecute the case, and the circuit court dismissed it. Respondent never informed the client that the circuit court dismissed the case. The client only learned about it when he hired a new lawyer to represent him. 11 The client filed an ethics complaint against Respondent. Respondent ignored ODC’s first request for a response. He responded to ODC’s second request and denied committing any ethics violations. His malpractice insurance carrier eventually made the clients financially whole by settling a malpractice claim. Based on these findings, the HPS found that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 3.2, and 3.4 of the West Virginia Rules of Professional Conduct. H. Recommended Sanction In all, the Hearing Panel Subcommittee found that Respondent committed fifty-three ethics violations. As discipline for the misconduct, the HPS recommends that we impose various sanctions against him, including a stay of a two-year suspension of his law license: [The HPS recommends] A. That Respondent’s law license be suspended for a period of two years, provided that the imposition of that suspension is stayed and the Respondent [be] placed on a period of [t]hree (3) years of probation and supervised practice; B. That Respondent must maintain [p]rofessional [l]iability [i]nsurance in the amount of [o]ne [m]illion [d]ollars ($1,000,000) per claim and in the aggregate and provide proof of the same upon request of the Office of Disciplinary Counsel; C. That Respondent should continue in the therapy regimen and undergo an independent psychological evaluation to determine his compliance with his therapy regiment at his 12 expense and at the request of the Office of Disciplinary Counsel; D. Respondent should undergo an audit of his law office to determine if he is compliant with the prior directives of the retained office consultant, and be ordered to implement any and all necessary changes in his law office management procedures to ensure that the pattern of misconduct is less likely to occur; and E. That Respondent be ordered to pay the costs of these proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. The ODC objects to the recommended sanctions, mainly the stayed suspension. It advocates for (1) two years’ active suspension of Respondent’s law license, (2) Respondent’s compliance with Rule 3.28 of the Rules of Lawyer Disciplinary Procedure, (3) Respondent’s continued therapy, (4) an independent psychological evaluation of Respondent and a law office audit before reinstatement, (5) Respondent to carry $1,000,000 of professional liability insurance per claim and in the aggregate, if reinstated, and (6) Respondent to bear the costs of his disciplinary proceedings. II. STANDARD OF REVIEW In lawyer discipline cases, we review questions of law de novo, defer to the HPS’s supported factual findings, and exercise our independent judgment to determine appropriate sanctions: A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board (“HPS”)] as 13 to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [HPS’s] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS’s] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.[4] We respectfully consider the HPS’s recommended sanctions, but “[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions[,] or annulments of attorneys’ licenses to practice law.”5 III. ANALYSIS The Rules of Lawyer Disciplinary Procedure contemplate a variety of possible disciplinary sanctions, ranging in severity from an admonishment to law license annulment: A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct or pursuant to Rule 3.14: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment . . . .[6] 4 Syl. Pt. 1, LDB v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. McCorckle, 192 W. Va. 286, 452 S.E.2d 377 (1994)). 5 Syl. Pt. 2, Cain, 245 W. Va. at 693, 865 S.E.2d at 95 (quoting Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984)). 6 W. Va. R. Law. Disc. P. 3.15. 14 To determine appropriate sanctions, we consider a lawyer’s professional duties, culpable mental state, injury inflicted, and any mitigating or aggravating factors: Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; (2) whether the lawyer acted intentionally, knowingly or negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating factors.[7] The HPS found that (1) “Respondent’s pattern and course of misconduct breached his duties to his clients, the legal system, and to the profession[,]” (2) he acted negligently, (3) he caused harm to his clients and the legal profession, and (4) that his mental impairment heavily mitigated his misconduct. The HPS found no aggravating factors. We disagree with the HPS’s assessment of several factors and independently analyze all factors below. But first, we briefly highlight the HPS’s erroneous insufficient evidence finding for Respondent’s conduct in Count III; Respondent committed several ethics violations unrelated to the merits of the contempt action against him. His successful appeal based on procedural defects in the contempt proceedings fails to excuse his 7 Syl. Pt. 4, Off. Law. Disc. Couns. v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998) (citing W. Va. R. Law. Disc. P. 3.16). 15 disrespectful and dishonest conduct before the circuit court or the ODC. We even acknowledged his misconduct when we decided the appeal. As now-Chief Justice Hutchison noted in his concurrence, the record shows that despite the sanction, Mr. Schillace continued to defy the circuit court, claiming in one instance that he believed the sanction was prophylactic in nature, and therefore, he did not need to pay it. Moreover, Mr. Schillace continued to argue that he had submitted the December 11, 2017, hearing order to the circuit court prior to March 30, 2018, hearing, offering an unsigned letter at a July 13, 2018, hearing that he had obviously just printed from his computer as proof. Based on what had occurred at the March 30, 2018, hearing, the circuit court knew that he had not previously submitted the order.[8] Respondent disregarded the circuit court’s orders to serve the family court judge or prepare an order. He violated the ODC’s response deadline. And he misrepresented to the ODC that he would pay the sanction to avoid further prejudicing his client but took the opposite position before the circuit court. For these reasons, we find clear and convincing evidence to support the ODC’s charged rule violations for this count; Respondent violated Rules 1.1, 3.3(a)(1), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct. A. Professional Duties 8 Ross, 245 W. Va. at 362, 859 S.E.2d at 304 (Hutchison, J. concurring). 16 With the framework for our analysis established and Respondent’s rule violations clarified, we move to discussion of the first Jordan factor: Respondent’s professional duties. As we have explained, lawyers owe basic duties to their clients, the public, and the legal profession: A lawyer owes an ethical duty to clients including the duty of candor, loyalty, diligence, and competence. Lawyers also owe duties to the public who rely on lawyers to protect their interests. The general public deserves lawyers with the highest standards of honesty and integrity. As officers of the court, lawyers owe duties to the legal system whereby they must conduct themselves within the bounds of the law and abide by the rules of substance and procedure which afford the administration of justice. As to the legal profession, lawyers owe an ethical duty to maintain the integrity of the profession.[9] Respondent admits he violated duties to his clients, the legal system, and the profession, and we agree. Specifically, Respondent repeatedly violated his duties of candor, loyalty, diligence, and competence owed to his clients; over and over, he promised to represent their interests but failed to pursue them. For the same reason, he violated his duties to the public which depends on lawyers to navigate the legal system. And he breached his duties to the legal profession and system by violating our Rules of Professional Conduct. B. Culpable Mental State 9 LDB v. Blyler, 237 W. Va. 325, 341, 787 S.E.2d 596, 612 (2016). 17 There being no issue as to Respondent’s violations of duties as a lawyer, we next turn to his culpability. In lawyer discipline cases, we deem intent the most culpable mental state and negligence the least culpable; a knowing mental state demonstrates culpability somewhere between the two: the most culpable mental state is that of intent, which consists of conduct by the lawyer with a conscious objective or purpose to achieve a particular result. The next most culpable mental state is that of knowledge when there are acts by the lawyer with awareness of the nature of the acts or the potential consequences of the conduct. However, with the state of knowledge there is no conscious effort to attain a particular result. The least culpable mental state is negligence, which involves a failure to be aware of substantial risks at issue.[10] The HPS found that Respondent acted negligently because “his course of conduct occurred during a time when [he] suffered a series of medical and mental health issues which were temporary in nature and for which he has taken substantial steps to correct.” The ODC argues that Respondent acted knowingly and that he failed to present evidence showing that his mental impairment prevented him from appreciating the nature of his misconduct. We agree with the ODC; based on the indisputable evidence presented to the HPS, we must conclude that Respondent acted knowingly. We acknowledge that a clinical 10 Id. 18 social worker evaluated Respondent and assessed him with an adjustment disorder. And the social worker testified that with the disorder, Respondent “developed the capacity to avoid [and] became less productive.” But he never deemed Respondent incapable of understanding his action’s consequences. Respondent’s mental impairment may mitigate the degree of discipline for his conduct, but it fails to rebut the evidence showing he understood the adverse effects his clients suffered when he lied to and abandoned them. Throughout the underlying cases, courts issued sanctions against Respondent, clients complained to him about his misconduct, and the ODC sent him multiple complaints related to it. Respondent’s decades of law practice should have apprised him of his misconduct’s consequences. But if it did not, the non-approval from the courts, his clients, and the ODC brought them to his attention. We find that Respondent acted knowingly when he consistently disregarded his clients’ interests and the lower courts’ authority. He may have acted negligently in some circumstances, but his continuous pattern, over the course of many years and cases, demonstrates that he understood the consequences of his misconduct. C. Injury Inflicted 19 When determining an appropriate sanction, we consider actual and potential injury to the client, the public, and the legal system. 11 As another state supreme court noted, “The level of injury can range from ‘serious’ injury to ‘little or no’ injury.” 12 When a lawyer insists that remedial measures cured their former clients’ injuries, we have emphasized that case delay and understandable frustration with the system establish actual injury. 13 The HPS found that Respondent caused damage, but it minimized the harm’s magnitude by finding, “Respondent has been financially responsible for his malpractice[,] and it appears . . . that settlements were reached with the clients that filed suit against him.” We disagree with the HPS’s suggestion that Respondent’s malpractice insurance settlements negated his inflicted injuries. For one, a former client testified that Respondent assured her that his insurance company would compensate her for her financial injuries. But she explained, I had to file multiple Freedom of Information requests to get the names of his insurance company. He told us multiple times that he was going to contact them and get the claim filed. 11 See W. Va. R. Law. Disc. P. 3.16. 12 In re Vanderslice, No. 261, 2015, 2015 WL 3858865, at *12 (Del. June 19, 2015). 13 See e.g. LDB v. Munoz, 240 W. Va. 42, 49, 807 S.E.2d 290, 297 (2017) (“Although [the lawyer] attempts to minimize any client [injury], the obvious injury to them was the delay of resolution of their cases and their understandable frustration with the system.”). 20 He was going to do that himself. He refused. He would not do that. I asked him for the names of his insurance carrier. He refused to supply that information. I took it upon myself to submit FOIA requests to get that information. And she emphasized, “His insurance company settled. He did nothing to help promote that.” Likewise, she testified, “the amount of stress and just anxiety that we had to go through to get to that point, [the insurance] settlement nowhere near covered it.” The client who lost his rights in the partition action testified, “at nighttime I wake up in the middle of the night and I start crying because my kids loved to go there . . . .” Another former client testified, “I’m hurt. I just—from a professional ethics standpoint, I just don’t think that you should be allowed to ignore people and to not do what you’re supposed to do to represent them. So—and it’s been—it’s difficult to accept.” The record in this case is full of similar stories, but these emphasize the point: a lawyer can inflict more than financial injury when he violates our Rules of Professional Conduct. Malpractice insurance settlements do not unilaterally cure the injuries. Respondent inflicted actual, serious harm. D. Mitigating Factors We next turn to mitigating factors, which we have explained are “any considerations or factors that may justify a reduction in the degree of discipline to be 21 imposed.” 14 We have also adopted the American Bar Association’s proposed mitigating factors as a baseline for our application. The factors include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.[15] We consider mental impairments as mitigating factors when medical evidence establishes the mental impairment and that it caused the lawyer’s misconduct; the lawyer must also prove a “meaningful and sustained” rehabilitation period, that he has ceased the misconduct, and that he is unlikely to reoffend: [w]e hold that in a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney’s recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.[16] LDB v. Scott, 213 W. Va. 209, 214, 579 S.E.2d 550, 555 (2003) (citing American 14 Bar Association, Standards for Imposing Lawyer Sanctions, 9.31 (1992)). 15 Scott, 213 W. Va. at 214, 579 S.E.2d at 550 (quoting Standards for Imposing Lawyer Sanctions, supra note 14, at 9.32). 16 LDB v. Dues, 218 W. Va. 104, 112, 624 S.E.2d 125, 133 (2005) (quoting Standards for Imposing Lawyer Sanctions, supra note 14, at 9.32). 22 We afford mental impairments varying weight as mitigation, depending on the causal connection between the impairment and the misconduct: If the offense is proven to be attributable solely to a [mental] disability . . ., it should be given the greatest weight. If it is principally responsible for the offense, it should be given very great weight; and if it is a substantial contributing cause of the offense, it should be given great weight. In all other cases in which the [mental] disability . . . is considered as mitigating, it should be given little weight.[17] In this case, the HPS found that Respondent’s mental impairment, counseling regimen, and law office remediation measures constituted mitigating factors. The HPS found that Respondent’s mental impairment served as a “substantial cause” of his misconduct, that his client representation since receiving the Statement of Charges showed his rehabilitation, and that his counselor’s testimony proved him unlikely to reoffend. Respondent asks us to find as mitigating factors his (1) absence of prior discipline, (2) absence of dishonest or selfish motive, (3) personal and emotional problems, (4) restitution, (5) participation in disciplinary proceedings, (6) character and reputation, (7) mental disability, (8) interim rehabilitation, (9) imposition of other penalties or sanction, and (10) remorse. 18 But we deem as mitigating factors only his personal and 17 Dues, 218 W. Va. at 112, 624 S.E.2d at 133 (quoting BA/BNA Lawyers’ Manual on Professional Conduct, at 01:840 (2005)). 18 We reject many of Respondent’s proposed mitigating factors. Respondent’s disciplinary record does not represent a mitigating factor. The Investigative Panel 23 emotional problems, mental impairment, interim rehabilitation, and character and reputation. Respondent’s mental impairment, personal and emotional problems, and interim rehabilitation substantially overlap, so we will discuss them together. Respondent’s mental health counselor established that Respondent suffered from an adjustment disorder. He attributed the mental impairment to Respondent’s grief, stress, and other emotional challenges. He testified that he has treated Respondent weekly since assessing him with the adjustment disorder, that Respondent’s counseling has improved it, and that continued treatment will likely prevent his misconduct from reoccurring. Because the counselor also established how Respondent’s mental impairment served as a substantial contributing factor to his misconduct, we afford it great mitigating weight. We also afford admonished him in 2015, and it did not deter the misconduct underlying this disciplinary action that soon followed. Respondent presented insufficient evidence to show that he acted without a dishonest or selfish motive. Instead, he acted dishonestly in many cases by withholding crucial, detrimental information from his clients until he could no longer hide it. Respondent’s “restitution” or imposition of other “penalties” do not constitute mitigating factors. He argues that his malpractice insurance settlements should mitigate his discipline. For the reasons stated above, we reject this argument. And Respondent’s participation in the disciplinary proceedings does not mitigate in this case; he ignored numerous ODC response requests issued prior to the Statement of Charges. Finally, Respondent failed to demonstrate remorse sufficient to mitigate his misconduct. He may have acted remorsefully during the HPS hearing, but we find it telling a former client testified that Respondent never apologized to her. Respondent should have directed his remorse towards his injured clients, not the HPS. 24 mitigating weight to his interim rehabilitation and the personal and his emotional problems related to the adjustment disorder. Finally, we deem Respondent’s character and reputation a mitigating factor. He presented United States Magistrate Michael J. Aloi as a mitigation witness. Judge Aloi met with Respondent in early 2018 in his capacity as volunteer for the West Virginia Judicial and Lawyers’ Assistance Program (WVJLAP). 19 Judge Aloi knew Respondent for many years before meeting with him then. He testified about Respondent’s reputation as a friend and great lawyer, and he emphasized that Respondent’s misconduct appeared uncharacteristic of the character and reputation he established in the years preceding. We find the testimony persuasive and afford Respondent’s character and reputation mitigating weight. E. Aggravating Factors We have held that “[a]ggravating factors in lawyer disciplinary proceedings are any considerations or factors that may justify an increase in the degree of discipline to 19 Magistrate Judge Aloi testified that he met with Respondent after the WVJLAP received referrals from persons concerned about Respondent’s well-being. The record contains no indication that Respondent sought assistance from the WVJLAP on his own initiative or has any ongoing involvement with it. 25 be imposed.” 20 The American Bar Association’s Standards for Imposing Lawyer Sanctions lists the following as aggravating factors in lawyer disciplinary cases: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct, including the use of controlled substances.[21] In this case, the HPS found no aggravating factors. In contrast, the ODC asserts as aggravating factors Respondent’s (1) 2015 admonishment by the Lawyer Disciplinary Board, (2) selfish motive as reflected by his misleading statements to clients, (3) pattern of misconduct, (4) multiple offenses, and (5) substantial legal experience. But we find as aggravating factors only Respondent’s selfish motive, pattern of misconduct, multiple offenses, and substantial legal experience. 20 Syl. Pt. 4, Scott, 213 W. Va. at 209, 579 S.E.2d at 550. 21 American Bar Association, Standards for Imposing Lawyer Sanctions, 9.22 (2019). 26 First, we find that in the circumstances of this case, Respondent’s prior admonishment does not represent an aggravating factor. But we agree with the ODC’s other asserted aggravating factors. Respondent’s conduct demonstrates selfish and dishonest motives, the seven counts against him establish a course of misconduct and multiple offenses, and he committed the misconduct despite his nearly three decades practicing law. The record contains clear and convincing evidence showing that Respondent acted dishonestly and selfishly in many instances. For one, he withheld damaging information from his clients until he could no longer hide it. He also incorrectly assured several former clients that he could cure adverse rulings against them but took no action to do so. We find his actions reflected in Count VI illustrative. Respondent accepted the client’s case and assured her that he would file suit. He depleted her $3,500 retainer without filing a complaint, as promised, and he ignored her extensive efforts to contact him. When she mailed a letter terminating his representation and requesting a retainer refund, he promptly arranged a meeting with her and convinced her to keep him retained on a contingency basis—despite his preexisting and unfulfilled duties under the unwritten retainer fee agreement. The record highlights countless times when Respondent abdicated his duties and ignored communications, but when his money was at stake, he acted promptly. 27 We find that Respondent’s selfish and dishonest motives, course of misconduct, multiple offense, and substantial legal experience are aggravating factors. F. Sanctions We craft sanctions to punish attorneys, protect the public, and restore confidence in the legal profession: In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.[22] In LDB v. Grafton, we suspended the lawyer’s license for two years after he “continued in a pattern and practice of repeatedly failing to communicate with and for his clients, and not responding to requests of the ODC . . . . [And he] also deceived his client by allowing her to believe that he was acting diligently and an appeal had been perfected in her case.”23 To determine the appropriate discipline, we considered the lawyer’s significant physical impairment and remorse as mitigating factors; as aggravating factors, we considered his pattern of misconduct, significant legal experience, dishonest motive, 22 Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987). 23 227 W. Va. 579, 587, 712 S.E.2d 488, 496 (2011). 28 and violation of this Court’s order related to a trustee’s inventory of his client files. 24 Similarly, in LDB v. Hardin, we suspended the lawyer’s license for two years for disobeying discovery orders, missing hearings, and ignoring circuit court sanctions. 25 To determine the appropriate discipline, we considered as mitigating factors the lawyer’s clean disciplinary record, lack of dishonest motives, and remorseful conduct; we considered no aggravating factors. 26 Respondent’s conduct compares to the lawyers’ conduct in Grafton and Hardin. Like the lawyer in Grafton, Respondent knowingly ignored communications from his clients and the ODC. Like the lawyer in Hardin, Respondent knowingly violated several court orders and failed to represent his clients diligently. In both cases, we imposed two-year, active suspensions after considering mitigating evidence; in Hardin we suspended the lawyer without finding any aggravating circumstances. We recognize that “[t]here is no ‘magic formula’ for this Court to determine how to weigh the host of mitigating and aggravating circumstances to arrive at an appropriate sanction . . . .”27 But given our previous decisions and the countervailing aggravating factors present in this case, 24 Id. 25 217 W. Va. 659, 661, 619 S.E.2d 172, 174 (2005) (per curiam). 26 Id. 27 LDB v. Sirk, 240 W. Va. 274, 282, 810 S.E.2d 276, 284 (2018). 29 we find that Respondent’s mental impairment and other mitigating factors reduce his sanction to an active, two-year suspension, among other sanctions. The HPS’s suggestion that his mental impairment mitigated the sanction to no active suspension is not consistent with our precedent. And without imposing substantial consequences, we fail to deter similar attorney misconduct or restore confidence in the profession. IV. CONCLUSION For the above reasons, we impose the following sanctions: (1) we suspend Respondent’s law license for two years; (2) we refer Respondent to the WVJLAP for evaluation, treatment recommendation, and monitoring, if deemed necessary, and reinstatement shall be conditioned on full compliance with any such recommendations 28; (3) as a condition of reinstatement, Respondent must demonstrate that he has satisfied and paid in full pay any outstanding sanctions, penalties, or obligations owed to any tribunal in 28 While we include this condition as a sanction, we do not intend it as punishment. The WVJLAP’s purposes align with the objectives to protect the public, and we believe it possesses resources to aid Respondent’s continued recovery from his mental impairment. Indeed, this Court established the WVJLAP for, among other things, the following purposes: (1) To protect the interests of clients and the general public from harm caused by impaired members of the legal profession; [and] (2) To assist impaired members of the legal profession to begin and continue recovery[.] R. W. Va. Jud. and Law. Assist. Program 1(b)(1)-(2). 30 this State and all expenses related to the underlying disciplinary proceedings; and (4) if reinstated, Respondent shall maintain $1,000,000 in professional malpractice insurance, per claim, and in the aggregate. Law license suspended and other sanctions imposed. 31	01-04-2023	11-17-2022

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