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https://www.courtlistener.com/api/rest/v3/opinions/8484757/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________
November 17, 2022
No. 22-0067 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re E.H., J.S., E.K., and C.K.
________________________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable Derek C. Swope
Case Nos. 21-JA-002-DS, 21-JA-003-DS, 21-JA-004-DS, and 21-JA-005-DS
VACATED AND REMANDED WITH DIRECTIONS
________________________________________________________________________
Submitted: November 1, 2022
Filed: November 17, 2022
Gerald R. Linkous, Esq. Patrick Morrisey
Mercer County Public Defender Attorney General
Corporation Brittany Ryers-Hindbaugh
Princeton, West Virginia Assistant Attorney General
Counsel for Petitioner R.H. Charleston, West Virginia
Counsel for Respondent
Tiffany Kent, Esq. Department of Health and Human Resources
ChildLaw Services, Inc.
Guardian ad Litem
JUSTICE WALKER delivered the opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “‘When this Court reviews challenges to the findings and conclusions
of the circuit court, a two-prong deferential standard of review is applied. We review the
final order and the ultimate disposition under an abuse of discretion standard, and we
review the circuit court’s underlying factual findings under a clearly erroneous standard.’
Syl., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).” Syllabus
Point 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015).
2. “‘Where a trial court order terminating parental rights merely declares that
there is no reasonable likelihood that a parent can eliminate the conditions of neglect,
without explicitly stating factual findings in the order or on the record supporting such
conclusion, and fails to state statutory findings required by West Virginia Code § 49-6-
5(a)(6) (1998) (Repl. Vol. 2001) on the record or in the order, the order is inadequate.’ Syl.
Pt. 4, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).” Syllabus Point 7,
In re K. S., 246 W. Va. 517, 874 S.E.2d 319 (2022).
3. “‘Where it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
disposition of cases involving children adjudicated to be abused or neglected has been
substantially disregarded or frustrated, the resulting order of disposition will be vacated
and the case remanded for compliance with that process and entry of an appropriate
i
dispositional order.’ Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).”
Syllabus Point 8, In re K. S., 246 W. Va. 517, 874 S.E.2d 319 (2022).
ii
WALKER, Justice:
Petitioner-Father R.H. was adjudicated an abusing parent of minor children
E.H. and J.S. in September 2021.1 By order entered December 27, 2021, the circuit court
terminated Petitioner’s parental rights to the children under West Virginia Code § 49-4-
604(c)(6), due to “aggravated circumstances.” 2 Petitioner raises four assignments of error
on appeal, but we address the substance of only one: that the dispositional order entered on
December 27, 2021, lacks sufficient findings of fact and conclusions of law to permit this
Court to conduct a meaningful review of the proceedings below. So, we vacate the
dispositional order and remand this case for further proceedings consistent with this
Opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Department of Health and Human Resources filed a petition in January
2021 alleging that Petitioner-Father R.H. and his wife, B.H., abused E.H., J.S., E.K., and
1
Consistent with our long-standing practice in cases with 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, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731,
742 S.E.2d 419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State
v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
Disposition under West Virginia Code § 49-4-604(c)(6) results in the termination
of an abusing parent’s “parental, custodial and guardianship rights and responsibilities . . .
.” We refer to that trio of rights as “parental rights” throughout this Opinion.
1
C.K.3 Petitioner is the biological father of E.H. (mother, B.H.) and J.S (mother, A.S.).
E.K. and C.K. are B.H.’s children with P.K.4 The Department alleged that it received a
referral on February 16, 2020, that police had been called to Petitioner and B.H.’s home
after Petitioner hit B.H. B.H. claimed that Petitioner kicked her, and that Petitioner had
sexually abused C.K. A social worker with Child Protect of Mercer County, Inc.,
conducted forensic interviews of E.K. and C.K. later that month. E.K. reported witnessing
domestic violence between his mother, B.H., and Petitioner, his stepfather. And C.K.
stated that Petitioner had sexually abused her and detailed Petitioner’s conduct. In
February 2021, Petitioner was indicted on charges stemming from that abuse. C.K.
testified at Petitioner’s trial in July 2021.
On September 21, 2021, the circuit court conducted an adjudicatory hearing
for both B.H. and Petitioner. The court heard testimony from (1) Dr. David Ellis,
psychologist; (2) Lindsay Pack, forensic interviewer; (3) Teresa Larew, an employee of the
federal Department of Housing and Urban Development; (4) B.H.; (5) J.S.’s mother, A.S.;
and (6) P.K., father to E.K. and C.K. Petitioner also testified, admitting that he had exposed
the children to domestic violence but denying that he had sexually abused C.K. Also,
3
E.K. and C.K. are not the subjects of this appeal.
4
The Department named A.S., P.K., and R.K. (P.K.’s wife) as non-offending
parents.
2
during the hearing, Petitioner relinquished any rights he may have had to his stepchildren,
E.K. and C.K.
The circuit court found by clear and convincing evidence that Petitioner had
abused the children based on his admission to engaging in domestic violence with B.H.
Likewise, the circuit court adjudicated B.H. as an abusing parent based on her admitted
participation in domestic violence with Petitioner. 5 The court stated that it had reviewed
the transcript of C.K.’s testimony at Petitioner’s trial but had not reviewed the transcript of
C.K.’s forensic interview. The circuit court deferred ruling on the allegations of sexual
abuse until it could review that transcript. On November 1, 2021, the circuit court entered
an order finding by clear and convincing evidence that Petitioner had sexually abused C.K.
The circuit court conducted a dispositional hearing on December 13, 2021.
Petitioner requested a post-adjudicatory improvement period, to which the Department and
the guardian ad litem objected. Petitioner also requested disposition under West Virginia
Code § 49-4-604(c)(5) (2020), so that only his custodial rights to E.H. and J.S. would be
terminated. Finally, Petitioner requested post-termination visitation with E.H. and J.S.,
should the court terminate his parental rights under § 49-4-604(c)(6). The Department
5
The court granted B.H. a post-adjudicatory improvement period.
3
requested that the circuit court terminate Petitioner’s parental rights to E.H. and J.S. under
§ 49-4-604(c)(6). The guardian ad litem concurred in that request.
The circuit court terminated Petitioner’s parental rights to E.H. and J.S. at
the conclusion of the hearing,6 explaining on the record that:
Well, I’m going to terminate his parental rights to all the
children. I’m going to amend my earlier finding, and here’s
why: I mean, I think there -- not only the sexual assault but
just the entire gamut of these things. It’s just not, you know, –
- it’s just bad. That’s all I can say.
I believe the child. . . . I thought the child was very
creditable. . . . I haven’t seen any real attempt to improve on
some of these things, so I’m terminating the parental rights.
Two weeks later, on December 27, 2021, the court entered an order stating
as follows:
[Petitioner], by counsel, requests an improvement
period regarding his two children, [E.H. and J.S.].
The Department requests that the Court terminate his
parental rights and the guardian ad litem joins the motion.
Upon consideration of the matters presented and
argument of counsel, this Court FINDS and concludes, in the
best interests of the children that:
6
The permanency plan for E.H. is continued residence with B.H. The permanency
plan for J.S. is continued residence with A.S., his non-offending mother.
4
A [multi-disciplinary team] meeting is scheduled for
January 3, 2021, at 10:00 a.m.
WHEREFORE, it is hereby ORDERED that:
The Court ORDERS that the parental, custodial, and
guardianship rights of [Petitioner] be terminated as those rights
relate to [E.H. and J.S.], due to aggravated circumstances.
Termination of Petitioner’s parental rights mooted the issue of a post-adjudication
improvement period. The circuit court did not address Petitioner’s motion for post-
termination visitation with E.H. and J.S.7
Petitioner now appeals the December 27, 2021 order terminating his parental
rights to E.H. and J.S.
II. STANDARD OF REVIEW
This Court applies a two-prong standard of review in child abuse and neglect
cases:
The dispositional order does not address sibling visitation. Compare Syl. Pt. 4,
7
James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (“In cases where there is a
termination of parental rights, the circuit court should consider whether continued
association with siblings in other placements is in the child’s best interests, and if such
continued association is in such child’s best interests, the court should enter an appropriate
order to preserve the rights of siblings to continued contact.”). However, the parties
represented to the Court that both of Petitioner’s biological children, E.H. and J.S., appear
to visit with each other. On remand, the circuit court should formally address sibling
visitation.
5
“When this Court reviews challenges to the findings and
conclusions of the circuit court, a two-prong deferential
standard of review is applied. We review the final order and
the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings
under a clearly erroneous standard.” Syl., McCormick v.
Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).[8]
III. ANALYSIS
Petitioner assigns four errors to the proceedings before the circuit court.
First, Petitioner contends that the circuit court should have granted him a post-adjudicatory
improvement period. 9 Second, he argues that the court erred when it terminated his
parental rights to E.H. and J.S., rather than his custodial rights, only. Third, Petitioner
asserts that the court erred by terminating his parental rights because neither the record nor
the December 27, 2021 order contain the requisite findings of fact and conclusions of law
and so should be vacated. Finally, Petitioner argues that the court erred by failing to
address his request for post-termination contact and/or visitation with E.H. and J.S.
8
Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015).
9
Petitioner does not appeal his adjudication as an abusing parent.
6
We need address Petitioner’s third assignment of error, only. 10 Rule 36(a)
of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings details
the necessary contents of a dispositional order:
[a]t the conclusion of the disposition hearing, the court
shall make findings of fact and conclusions of law, in writing
or on the record, as to the appropriate disposition in accordance
with the provisions of W. Va. Code § 49-4-604. The court shall
enter a disposition order, including findings of fact and
conclusions of law, within ten (10) days of the conclusion of
the hearing.[11]
In the context of termination of parental rights under § 49-4-604(c)(6), the
requisite findings are two-fold: that “there is no reasonable likelihood that the conditions
of abuse and neglect can be substantially corrected in the near future,” and termination of
parental rights is “necessary for the welfare of the child.” 12 Those are “distinct
requirements” that must be “afforded their proper significance” under § 49-4-604(c)(6). 13
Indeed, as we have explained,
[t]he prerequisite that there must first be “no reasonable
likelihood that the conditions of neglect or abuse can be
10
Because we are vacating the dispositional order and remanding this matter for
further proceedings, consideration of Petitioner’s other assignments of error is not
necessary to our resolution of this case.
11
W. VA. R. OF PROC. FOR CHILD ABUSE & NEGLECT PROC. 36(a).
12
W. Va. Code § 49-4-604(c)(6).
13
In re A. P., 245 W. Va. 248, 255, 858 S.E.2d 873, 880 (2021).
7
substantially corrected” speaks to the parent’s current
situation, conduct, and/or abilities relative to his or her
caretaking of the child. [W. Va. Code § 49-4-604(c)(6)]. In
contrast, the “and[ ] when necessary for the welfare of the
child” requirement concerns itself with the particular needs of
the child as pertains to his or her physical and emotional well-
being. Id. (emphasis added).
This latter requirement—through its pre-condition of
abject necessity—duly recognizes the heightened burden
which must be satisfied to terminate, with finality, a parent’s
fundamental right to custody of his or her child.[14]
Finally, and as we recently emphasized, “‘[t]he State must produce clear and convincing
evidence to support [disposition under § 49-4-604(c)(6)] before the court may sever the
custodial rights of the natural parents.’” 15
In view of those authorities, we agree with Petitioner that the December 27,
2021 dispositional order does not contain the requisite findings of fact or conclusions of
law to support termination of his parental rights under § 49-4-604(c)(6). The order cites
no evidence offered by the State to support the conclusion that termination of Petitioner’s
parental rights is in either E.H. or J.S.’s best interests. Nor does the order cite evidence
sufficient to arrive at the additional finding required to terminate parental rights under §
49-4-604(c)(6)—that there is no reasonable likelihood that the conditions of abuse and
14
Id.
15
In re K. S., 246 W. Va. 517, ___, 874 S.E.2d 319, 327 (2022) (emphasis in
original) (quoting State v. C.N.S., 173 W. Va. 651, 656, 319 S.E.2d 775, 780 (1984)).
8
neglect can be substantially corrected. Section 49-4-604(d) provides that the phrase “‘[n]o
reasonable likelihood that conditions of neglect or abuse can be substantially corrected’
means that, based upon the evidence before the court, the abusing adult or adults have
demonstrated an inadequate capacity to solve the problems of abuse or neglect on their
own or with help . . . .” Here, the order simply states that termination was necessary due
to “aggravated circumstances,” with no further discussion. 16 While the court stated at the
dispositional hearing that it had not seen “any real attempt [by Petitioner] to improve on
some of these things,” that statement is simply too vague “‘to enable us properly to exercise
and not exceed our powers of review.’”17
We have held that,
16
The phrase “aggravated circumstances” appears in § 49-4-604(c)(7)(A), which
provides that:
[f]or purposes of the court’s consideration of the
disposition custody of a child pursuant to [§ 49-4-604(c)], the
department is not required to make reasonable efforts to
preserve the family if the court determines . . . [t]he parent has
subjected the child, another child of the parent or any other
child residing in the same household or under the temporary or
permanent custody of the parent to aggravated circumstances
. . . . which include, but are not limited to, . . . sexual abuse . .
..
(Emphasis added).
17
In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001) (quoting
Nicpon v. Nicpon, 157 N.W.2d 464, 467 (Mich. Ct. App. 1968)).
9
“[w]here a trial court order terminating parental rights
merely declares that there is no reasonable likelihood that a
parent can eliminate the conditions of neglect, without
explicitly stating factual findings in the order or on the record
supporting such conclusion, and fails to state statutory findings
required by West Virginia Code § [49-4-604(c)(6) (2020)] on
the record or in the order, the order is inadequate.”[18]
Further,
“[w]here it appears from the record that the process
established by the Rules of Procedure for Child Abuse and
Neglect Proceedings and related statutes for the disposition of
cases involving children adjudicated to be abused or neglected
has been substantially disregarded or frustrated, the resulting
order of disposition will be vacated and the case remanded for
compliance with that process and entry of an appropriate
dispositional order.”[19]
Applied here, those syllabus points mandate that we vacate the final
dispositional order of December 27, 2021. We remand this matter for any further
proceedings necessary to permit the circuit court to enter a dispositional order containing
the requisite findings of fact and conclusions of law in accordance with the provisions of
Syl. Pt. 7, In re K. S., 246 W. Va. at 517, 874 S.E.2d at 322 (quoting Syl. Pt. 4, In
18
re Edward B., 210 W. Va. at 621, 558 S.E.2d at 620).
19
Syl. Pt. 8, id. (quoting Syl. Pt. 5, In re Edward B., 210 W. Va. at 621, 558 S.E.2d
at 620).
10
West Virginia Code § 49-4-604 and Rule 36(a) of the West Virginia Rules of Procedure
for Child Abuse and Neglect Proceedings.
VACATED AND REMANDED WITH DIRECTIONS.
11 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484763/ | FILED
No. 21-0217, Dakota Jones and Matilda Workman v. Logan County BOE.
November 17, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Armstead, Justice, dissenting: OF WEST VIRGINIA
Although I believe that Petitioners in this action have alleged serious
incidents of bullying, I nonetheless believe that the circuit court was correct in its
determination that the Complaint did not properly allege negligence on the part of
Respondent sufficient to overcome Respondent’s assertion of governmental immunity.
Mr. Jones’s Complaint contained five (5) claims against the Logan County Board of
Education (hereinafter “Board”). The circuit court granted the Board’s motion to dismiss
as to all of Petitioners’ claims. Petitioners do not assign error to the dismissal of four of
their five claims and have narrowed the focus of their appeal to their claim of negligence
contained in Count II of their Complaint. Because I disagree with the majority’s findings
reversing the circuit court’s dismissal of Petitioners’ negligence claim, I respectfully
dissent.
Initially, I believe that the majority’s finding that “[t]he Board did not assert
immunity from the [negligence] claim under § 29-12A-5(a) before the circuit court” is
incorrect. On November 13, 2019, the Board filed a motion to dismiss Mr. Jones’s
Complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. In its
memorandum of law in support of its motion to dismiss, the Board clearly asserted
immunity. The final sentence of the Board’s “Standard of Review” section reads as
follows: “[h]ere, taking Plaintiff’s factual allegations as true, the Board is entitled to
1
immunity for the following reasons.” The first paragraph of the Board’s “Legal Argument”
section contains the following statements: “The Logan County Board of Education is a
political subdivision as defined in the West Virginia Tort Claims and Insurance Reform
Act (Tort Claims Act). Statutory immunity of a political subdivision is ‘governed
exclusively by the West Virginia Tort Claims and Insurance Reform Act.’” “Accordingly,
the Logan County Board of Education is entitled to immunity under the Act[.]”
Although Mr. Jones was “not required to anticipate the defense of immunity
in his complaint[,]” he clearly did so. Hutchison v. City of Huntington, 198 W. Va. 139,
150, 479 S.E.2d 649, 660 (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920,
1923-24, 64 L.Ed.2d 572 (1980)). In his Complaint, Mr. Jones alleges the following: “[t]o
the extent that any claims asserted herein are subject to governmental immunity, said
claims are being asserted only to the extent of available insurance coverage.” See
Complaint ¶ 30. Therefore, Mr. Jones was aware that some or all of his claims may be
subject to governmental immunity. Subsequently, the Board clearly asserted immunity.
On January 28, 2021, while the Board’s motion to dismiss was pending, the circuit court
held a status hearing. During the status hearing, the circuit court inquired whether Mr.
Jones would like the opportunity to file any additional pleadings in this matter “as allowed
under Hutchison[.]” 1 Crucial to the resolution of this appeal, Mr. Jones opted to forego
1
See Hutchison v. City of Huntington, 198 W. Va. 139, 150, 479 S.E.2d 649, 660 (1996).
In Hutchinson, this Court indicated that when a defendant raises the defense of qualified
or statutory immunity, the trial court “must insist on heightened pleading by the plaintiff.”
Id. at 149, 479 S.E.2d at 149. In such cases, the circuit court should direct that a plaintiff
file a “short and plain statement of his complaint” and “may, on its own discretion, insist
2
filing any additional pleadings and to “rely on the pleadings as filed.” I believe that this
failure to take advantage of the circuit court’s offer to permit additional pleadings is
dispositive given the failure of petitioner’s allegations to support his claim for negligence.
The Board is a political subdivision that asserted immunity in its motion to
dismiss. “The immunity of political subdivisions and their employees … is governed
exclusively by the West Virginia Tort Claims and Insurance Reform Act set forth in West
Virginia Code § 29-12A-1 et seq. (commonly referred to as the Tort Claims Act).” Bowden
v. Monroe County Commission, 232 W. Va. 47, 51, 750 S.E.2d 263, 267 (2013). As the
circuit court and the majority note, the Tort Claims Act allows only certain negligence
claims against a political subdivision. Specifically, under W.Va. Code § 29-12A-4(b) of
the Tort Claims Act,
Except as provided in subsection (c) of this section, a political
subdivision is not liable in damages in a civil action for
injury, death, or loss to persons or property allegedly caused
by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a
governmental or proprietary function[.]
W. Va. Code § 29-12A-4(b)(1)(emphasis added).
Therefore, we must look to subsection (c) to see if there is an applicable
exception. The circuit court concluded that the only applicable exceptions that arguably
could apply to the instant case are subsections (c)(2) and (c)(4), which provide:
that the plaintiff file a reply tailored to an answer pleading the defense of statutory or
qualified immunity.” Id. at 150, 479 S.E.2d at 660.
3
(2) Political subdivisions are liable for injury, death, or loss to
persons or property caused by the negligent performance of
acts by their employees while acting within the scope of
employment.
….
(4) Political subdivisions are liable for injury, death, or loss to
persons or property that is caused by the negligence of their
employees and that occurs within or on the grounds of
buildings that are used by such political subdivisions,
including, but not limited to, office buildings and courthouses,
but not including jails, places of juvenile detention,
workhouses, or any other detention facility.
W. Va. Code § 29-12A-4(c)(2) and (c)(4).
In order to permit Mr. Jones to address the Respondent’s assertion of
governmental immunity, the circuit court gave Mr. Jones an opportunity to file additional
pleadings, but he declined to do so and relied upon the pleadings he had already filed. As
the majority notes, there is an onus placed on a plaintiff to respond to a political
subdivision’s assertion of immunity. Hutchison at 147-148, 479 S.E.2d at 657-658
(“[p]ublic officials and local government units should be entitled to … statutory immunity
under W. Va. Code, 29-12A-5(a), unless it is shown by specific allegations that the
immunity does not apply.”) Despite the majority’s implication to the contrary, I believe
that the heightened pleading process clearly applies in this case and that Mr. Jones’s failure
to avail himself of the process outlined in Hutchison and made available to him by the
circuit court must result in the dismissal of his negligence claim. His cursory allegations 2
simply cannot overcome Respondent’s entitlement to immunity.
2
In the Negligence count of his Complaint, Mr. Jones merely alleged the following:
4
I do not believe that Mr. Jones’s allegations in his Complaint adequately set
forth allegations that a Board employee was negligent, and I believe the majority’s
conclusion in this regard is wrong for a number of reasons. First, Mr. Jones alleges
unnamed students bullied him while he attended Logan Middle School. At no point does
Mr. Jones identify the alleged bully, or even make clear whether one or more students were
involved. Specifically, he alleges one instance of bullying in 2012 when students wrote on
his body in permanent ink. Mr. Jones alleges one instance of bullying in 2013 when a
fellow student cut his hand and one instance of bullying in 2014 when unnamed students
sprinkled lead into his clothing. In 2015, Mr. Jones alleges that he was choked by an
unnamed student and punched by an unnamed student a few days later. In addition, Mr.
Jones alleges that he was stabbed with a pencil. While clearly such conduct should not be
condoned, I do not believe these allegations of isolated incidents are sufficient to allege a
40. Defendant Board owed a duty of care to Dakota Jones to
conduct their activities in a reasonable and prudent manner.
41. Defendant Board negligently and recklessly breached the
duty of care they owed to Dakota Jones.
42. The actions and inactions, as described above, proximately
caused physical and emotional harm to Dakota Jones.
43. Defendant Board’s negligent and reckless misconduct was
the sole proximate cause of the harm experienced by Dakota
Jones.
44. As a direct and proximate result of Defendant Board’s
intentional and reckless misconduct, Dakota Jones is entitled
to compensatory damages.
Complaint at ¶¶ 40-44.
5
foreseeable duty on the part of the Respondent without additional facts, which Mr. Jones
declined to provide.
The majority finds that the principal, Mr. Sutherland, “owed Mr. Jones a duty
of protection and/or supervision following the September 21, 2015 choking episode
because it was or should have been foreseeable to him that his affirmative inaction would
expose Mr. Jones to the high risk of harm posed by the intentional misconduct of school
bullies.” I disagree that the factual allegations in Mr. Jones’s Complaint, if accepted as
true, are sufficient to establish a duty on the part of Respondent as to his negligence claim.
The circuit correctly identified the elements that Mr. Jones must establish to
state a claim for negligence: “(1) The defendant owed the plaintiff a duty of care; (2) the
defendant breached said duty by failing to exercise ordinary care; (3) the defendant’s
breach caused the plaintiff to be injured; and (4) the plaintiff suffered damages as a result
of defendant’s breach.” See Order Granting Defendant’s Motion to Dismiss at ¶18 (citing
Webb v. Brown & Williamson Tobacco Co., 121 W. Va. 115, 2 S.E.2d 898 (1939)).
The majority finds that the employees, Principal Sutherland, and the school
nurse, knew that Mr. Jones had been bullied at least twice and injured once. According to
Mr. Jones’s Complaint, the employees knew the following:
(1) Principal Sutherland knew that fellow students wrote on Mr. Jones’s body
with permanent markers in 2012;
(2) The school nurse knew that Mr. Jones’s hand was cut by a fellow student
in 2013 when a fellow student grabbed a notebook from Mr. Jones’s hand;
6
(3) Principal Sutherland knew about the choking incident on September 21,
2015;
(4) Principal Sutherland knew about the punching incident on September 23,
2015; and
(5) The school nurse knew that Mr. Jones was stabbed with a pencil on an
unknown date.
With respect to the incident on September 23, 2015, the record reveals that
after becoming overcome with frustration, Mr. Jones shoved a student who was throwing
pencils at him. These allegations, although serious, simply do not establish that Principal
Sutherland owed Mr. Jones a duty of protection and/or supervision such that “it was or
should have been foreseeable to him that his affirmative inaction would expose Mr. Jones
to the high risk of harm posed by the intentional misconduct of school bullies.” I disagree
with the majority’s conclusion that the isolated instances cited by Mr. Jones require
reversal of the circuit court’s dismissal of the negligence claim because, as the majority
found, it was foreseeable, or should have been foreseeable, to Board employees that
students at Logan Middle School would bully him and cause injury. The circuit court
concluded that Mr. Jones “pled no facts” indicating that the prior instances of bullying
made the risk of future harm foreseeable, and I agree with this conclusion.
Further, because I believe that Mr. Jones has not pled facts that establish the
foreseeability of his injuries, I also believe that he has not sufficiently alleged facts to
support that Respondent’s actions or inaction were the proximate cause of his alleged
7
injuries. “Proximate cause is a vital and an essential element of actionable negligence and
must be proved to warrant a recovery in an action based on negligence.” Syl. Pt. 4, Sergent
v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311 (2001) (quoting Syl. Pt. 3, McCoy
v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965)). “The proximate cause of an injury is
the last negligent act contributing to the injury and without which the injury would not have
occurred.” Id. at Syl. Pt. 5. “Generally, a willful, malicious, or criminal act breaks the
chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690, 474 S.E.2d 613, 620 (1996)
(citation omitted). Clearly, according to Mr. Jones’s barebones allegations, an unnamed
student, or multiple students, at the school committed a “willful, malicious or criminal act”
against him. In order for the Board to be liable for the intervening act of this unnamed
student, the act or acts of that student must have been “reasonably foreseeable” to the Board
at the time of the Board’s alleged negligent conduct. See Syl. Pt. 13, Marcus v. Staubs,
230 W. Va. 127, 736 S.E.2d 360 (2012). As the circuit court correctly held, Mr. Jones
failed to plead “facts that establish the foreseeability of his injuries.” The Board is not
liable to Mr. Jones if the unforeseeable intervening acts of the bullies caused Mr. Jones’s
injuries. Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311 (2001) (citing Syl.
Pt. 13, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990)).
For these reasons, I believe the circuit court was correct in dismissing
Petitioners’ negligence claim. Accordingly, I respectfully dissent as to the majority’s
8
decision to reverse the circuit court’s order dismissing Count II of Petitioners’ Complaint.3
I am authorized to state that Justice Bunn joins me in this dissent.
3
While I dissent as to the majority’s decision to reverse the circuit court’s dismissal of the
negligence claim, I agree with the majority’s decision to decline to read into our prior cases
an absolute duty to prevent all instances of bullying on school grounds on the part of boards
of education and their employees.
9 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484755/ | FILED
No. 21-0387, Butner v. High Lawn Memorial Park Company, et al. November 17, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Armstead, Justice, concurring: OF WEST VIRGINIA
I concur in the majority’s ultimate decision to affirm the circuit court’s grant
of summary judgment to Respondents on all claims asserted by Petitioner. I further concur
with the majority’s holding that summary judgment was appropriate as to whether the
landowner breached a duty to the petitioner because the only evidence proffered by the
petitioner to establish such a duty consisted of unsworn and unverified documents and
alleged oral statements which are insufficient to meet the Petitioner’s burden pursuant to
Rule 56 of the Rules of Civil Procedure.
I write separately simply to clarify what I believe is the appropriate
application of the open and obvious doctrine outlined in West Virginia Code § 55-7-28(a)
in light of the circuit court’s findings regarding the doctrine. The open and obvious statute
makes clear that “a possessor of real property, including an owner, lessee or other lawful
occupant,” owes “no duty of care” to parties injured on the premises in four (4) separate
instances:
(1) if the danger is open;
(2) if the danger is obvious;
(3) if the danger is reasonably apparent; or
(4) if the danger was as well known to the person injured as it was to the owner or
occupant.
1
W. Va. Code § 55-7-28(a) (emphasis added).
If the danger is open, obvious, or reasonably apparent, the owner or
occupant’s knowledge of the danger is irrelevant to the question of whether the landowner
or occupant owes a duty of care to a plaintiff. Moreover, under the fourth circumstance,
where a danger is “as well known” to the person injured as it is to the owner or occupant,
such provision does not establish any duty on the owner to know or investigate any dangers.
It merely provides that an injured party cannot assert a duty on the part of an owner or
occupant of the premises for a danger that was as “well known” to the injured party as it
was to such owner or occupant. I write separately to clarify that no such duty is established
by the open and obvious statute.
In 2013, this Court judicially abolished the open and obvious doctrine. See
Hersh v. E-T Enterprises, Ltd. Partnership, 232 W. Va. 305, 752 S.E.2d 336 (2013). In
response, in 2015, the Legislature “expressly reinstated the doctrine by enacting West
Virginia Code § 55-7-28(a).” Gable v. Gable, 245 W. Va. 213, 228, 858 S.E.2d 838, 853
(2021). Subsection (c) of West Virginia Code § 55-7-28 provides:
(c) It is the intent and policy of the Legislature that this section
reinstates and codifies the open and obvious hazard doctrine in
actions seeking to assert liability against an owner, lessee or
other lawful occupant of real property to its status prior to the
decision of the West Virginia Supreme Court of Appeals in the
matter of Hersh v. E-T Enterprises, Limited Partnership, 232
W. Va. 305 [752 S.E.2d 336] (2013). In its application of the
doctrine, the court as a matter of law shall appropriately apply
the doctrine considering the nature and severity, or lack
thereof, of violations of any statute relating to a cause of action.
2
West Virginia Code § 55-7-28(c).
While this majority acknowledges the Legislature’s express desire to
reinstate the open and obvious hazard doctrine, I am concerned by the majority’s
interpretation of portions of the circuit court’s holding. Specifically, the majority states:
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.
The majority further concludes: “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.”
I respectfully differ from the majority in my interpretation of the circuit
court’s opinion. I do not believe the circuit court based its finding that the owner of the
premises had no knowledge of any alleged dangerous conditions on the property solely on
whether the plaintiff knew of such dangers. In fact, the circuit court found that, “[i]n the
present case, the evidence reveals that at the time of the incident, the danger of the hidden
hole was not visible to Plaintiff, or to anyone else, including Defendants.” (Emphasis
added). The circuit court further held that “[s]ince the Defendants had no knowledge of
3
the defect or dangerous condition on their property, the Court finds it would be impossible
for Defendants to have prevented the Plaintiff from discovering the defect or condition.”
Clearly, the circuit court’s finding that the landowner was not aware of the
holes on the property was based on the evidence presented before the circuit court. This is
contrary to the majority’s characterization that the circuit court created a lose-lose scenario
by merely assuming that because the plaintiff below could not see the holes, neither could
the landowner. Here, the circuit court found, having fully considered the evidence
presented by the parties at the summary judgment stage, that there was no evidence that
the landowner was aware of any dangerous condition.
I agree that the circuit court was correct to grant summary judgment to
Respondents on all claims asserted by Petitioner because Petitioner did not produce
evidence in compliance with the provisions of Rule 56 in opposition to Respondents’
motion for summary judgment sufficient to establish that there is a genuine issue for trial
on the issue of negligence. I further concur with the majority’s holding that unsworn and
unverified documents provided by Petitioner were not of sufficient evidentiary reliability
to be given weight in the circuit court’s determination of whether to grant a motion for
summary judgment.
Because the majority has touched on the respective knowledge of an alleged
hazard by the property owner or occupant and the party alleging injury as such knowledge
relates to the open and obvious doctrine, I simply wish to clarify what I believe is the proper
meaning of the statute. Again, I write separately merely to caution and reiterate that West
4
Virginia Code § 55-7-28(a) does not require a court to consider the knowledge of the owner
or occupant when considering whether a danger is open, obvious, or reasonably apparent.
Moreover, even where the fourth scenario outlined by § 55-7-28(a) is implicated, and “a
danger is as well known to the person injured as it is to the owner or occupant,” such
provision does not, in and of itself, establish any duty on the part of the owner or occupant
to know or investigate any such alleged dangers. Such provisions only provides that where
the facts show that the danger was as “well known” to the injured party as to the owner or
occupant, such owner or occupant owes no duty to the injured party.
5 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484746/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_____________
November 17, 2022
No. 21-0456 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.
ALEXANDER PAUL DELORENZO,
Defendant Below, Petitioner.
________________________________________________
Appeal from the Circuit Court of Marshall County
The Honorable Jeffrey D. Cramer, Judge
Criminal Action No. 21-F-4
AFFIRMED
________________________________________________
Submitted: September 27, 2022
Filed: November 17, 2022
William E. Galloway, Esq. Patrick Morrisey, Esq.
Galloway Law Office Attorney General
Weirton, West Virginia Michael R. Williams, Esq.
Attorney for the Petitioner Senior Deputy Solicitor General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE BUNN delivered the Opinion of the Court.
CHIEF JUSTICE HUTCHISON and JUSTICE WOOTON dissent and may write
separately.
SYLLABUS BY THE COURT
1. “The admissibility of testimony by an expert witness is a matter within
the sound discretion of the trial court, and the trial court’s decision will not be reversed
unless it is clearly wrong.” Syllabus point 6, Helmick v. Potomac Edison Co., 185 W. Va.
269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 301, 116 L. Ed. 2d 244
(1991).
2. “‘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.’ Syl. Pt. 2,
State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).” Syllabus point 2, State v. Martin,
224 W. Va. 577, 687 S.E.2d 360 (2009) (per curiam).
3. The trial court has an obligation to all parties to ensure that the trial is
conducted in a fair manner. This obligation includes a duty to supervise the direct and
cross-examination of each party’s witnesses.
4. “‘An appellant must carry the burden of showing error in the
judgment of which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.’ Syllabus Point 5, Morgan
i
v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966).” Syllabus point 2, In re Visitation of
L.M., 245 W. Va. 328, 859 S.E.2d 271 (2021).
5. “‘The obligation of police to warn a suspect of both his right to
counsel and his right against self-incrimination applies only to custodial or other settings
where there is a possibility of coercion.’ Syl. pt. 2, State v. Andriotto, 167 W. Va. 501, 280
S.E.2d 131 (1981).” Syllabus point 5, State v. Hardway, 182 W. Va. 1, 385 S.E.2d 62
(1989).
ii
BUNN, Justice.
Petitioner Alexander Paul Delorenzo appeals the Circuit Court of Marshall
County’s May 7, 2021 order sentencing him to five to fifteen years in prison after a jury
found him guilty of a single count of unlawfully, knowingly, and willfully sending or
causing to be sent and/or possessing material depicting minors engaged in sexually explicit
conduct, namely, 600 or more images of minors engaged in sexually explicit conduct or
depicting violence against a child, in violation of West Virginia Code § 61-8C-3(a). He
raises six issues on appeal. Three of the issues relate to the circuit court’s evidentiary
rulings, including the circuit court’s ruling excluding Mr. Delorenzo’s expert witness on
Mr. Delorenzo’s diagnoses of Autism Spectrum Disorder (“ASD”) and Obsessive
Compulsive Disorder (“OCD”), the testimony of the State’s expert witness, and the visual
images introduced by the State. Another claimed error involves the circuit court’s denial
of his motion to dismiss the superseding indictment or disqualify the prosecutor’s office.
He further argues the circuit court erred in finding that his statement to law enforcement
was voluntary. His final claimed error concerns the circuit court admonishing Mr.
Delorenzo to follow the court’s rules while he testified before the jury. As explained below,
we conclude that the circuit court committed no error and affirm Mr. Delorenzo’s
conviction.
1
I.
FACTUAL AND PROCEDURAL HISTORY
In January 2019, the West Virginia State Police discovered an internet
protocol (“IP”) address using peer-to-peer software share significant amounts of child
pornography on the internet. Law enforcement then determined that the IP address was
associated with Mr. Delorenzo’s physical address and executed a search warrant at his
apartment. During the search, law enforcement seized his computer and Mr. Delorenzo
participated in an interview.
A Marshall County grand jury indicted Mr. Delorenzo for unlawfully,
knowingly, and willfully possessing 600 or more images of minors engaged in sexually
explicit conduct on or about February 19, 2019, in violation of West Virginia Code
§ 61-8C-3(a). 1 Months later, the grand jury returned a superseding indictment, alleging that
on or between July 31, 2018, and February 20, 2019, he unlawfully, knowingly, and
willfully sent or caused to be sent and/or possessed child pornography, in violation of West
1
West Virginia Code § 61-8C-3(e) defines how videos of a “minor engaged
in any sexually explicit conduct” should be counted for the purposes of determining the
number of images:
For purposes of this section each video clip, movie or similar
recording of five minutes or less shall constitute seventy-five
images. A video clip, movie or similar recording of a duration
longer than five minutes shall be deemed to constitute seventy-
five images for every two minutes in length it exceeds five
minutes.
2
Virginia Code § 61-8C-3(a). The superseding indictment alleged that there were 600 or
more images depicting minors engaged in sexually explicit conduct or images depicting
violence against a child. Mr. Delorenzo moved to dismiss the superseding indictment or
disqualify the Marshall County Prosecuting Attorney’s Office; the circuit court denied his
motion.
During the course of the proceedings, Michael J. Marshall, Ph.D, diagnosed
Mr. Delorenzo with ASD and OCD. Mr. Delorenzo disclosed Dr. Marshall as an expert
witness for trial. As explained in more detail below, the circuit court ultimately precluded
Dr. Marshall from testifying at trial because his proffered testimony was “improper and
not relevant at the trial of this case.”
The State filed a motion to determine voluntariness regarding Mr.
Delorenzo’s statement to law enforcement, and Mr. Delorenzo filed a motion to suppress
that statement. At the hearing on those motions, the circuit court denied Mr. Delorenzo’s
request to limit the State’s cross-examination to the issue of voluntariness during his
hearing testimony. After considering the evidence, the circuit court found that the statement
was voluntary and permitted the State to introduce the recorded interview at trial.
The case was tried before a jury. The State presented testimony from law
enforcement and a digital forensic evidence expert, and introduced evidence of child
3
pornography sent from Mr. Delorenzo’s computer, as well as evidence of child
pornography found directly on his computer. Mr. Delorenzo testified on his own behalf
and offered testimony from his friends and family.
The jury convicted Mr. Delorenzo of the charge in the superseding
indictment. The circuit court sentenced him to five to fifteen years imprisonment. This
appeal followed. Additional relevant facts are provided below with our discussion of the
alleged errors.
II.
STANDARD OF REVIEW
Mr. Delorenzo asserts six assignments of error that have different review
standards. We will provide the standard of review for each issue in turn. See State v. Benny
W., 242 W. Va. 618, 622, 837 S.E.2d 679, 683 (2019) (dispensing with our usual standard
of review section because each of the assignments of error had its own review criteria).
III.
DISCUSSION
Mr. Delorenzo contends that the circuit court erred by: (1) excluding expert
testimony regarding the impact of his ASD and OCD diagnoses on his behaviors, character
traits, state of mind, and credibility; (2) failing to dismiss the superseding indictment or
4
disqualify the Marshall County Prosecuting Attorney’s Office related to information
obtained during a court-ordered mental evaluation; (3) denying his motion to suppress his
recorded statement to law enforcement after refusing to limit his cross-examination to
voluntariness; (4) permitting the State’s digital forensic analyst to testify beyond the scope
of her expertise; (5) admitting videos and images from the State’s child pornography library
not found directly on petitioner’s computer; and (6) admonishing Mr. Delorenzo while he
testified at trial. We address the first and sixth alleged errors together, as they involve Mr.
Delorenzo’s diagnoses of ASD and OCD. We will then examine the remaining alleged
errors in turn.
A. Mr. Delorenzo’s Diagnoses of Autism Spectrum Disorder and
Obsessive Compulsive Disorder
1. Expert Trial Testimony Regarding Diagnoses. Mr. Delorenzo first argues
that the circuit court erred by preventing Dr. Marshall from testifying at trial regarding Mr.
Delorenzo’s diagnoses of ASD and OCD. Mr. Delorenzo contends that this testimony
would have provided the jury with context regarding his character traits, credibility, and
state of mind, as well as an assessment of “his subjective perceptions of what he was doing
when he engaged in research on the dark web.” He also maintains that the testimony would
“rebut the conclusion that because he went on the dark web, he ‘knowingly and willfully’
sent or possessed child pornography.” We find no error in the circuit court’s exclusion of
Mr. Delorenzo’s proffered expert testimony.
5
The record before this Court relating to Dr. Marshall’s expert testimony is
limited to two circuit court orders and a transcript of his testimony from the sentencing
hearing. The parties failed to include in the appendix any expert reports, expert disclosures,
pretrial hearing transcripts, or underlying motions and responses. Unquestionably, the
sentencing hearing transcript was not before the circuit court when it ruled that Dr.
Marshall could not testify at trial. To the extent that Mr. Delorenzo asks us to consider the
sentencing testimony from trial, we decline to do so. When reviewing the trial court’s
determination to exclude this expert testimony, we are limited to the record before the trial
court at the time of its determination, so we will not consider the expert’s sentencing
testimony when determining whether the trial court erred. See State v. Campbell, 246
W. Va. 230, ___, 868 S.E.2d 444, 454 (2022) (refusing to address the voluntariness of a
defendant’s statement when the circuit court did not address that issue and noting that “[i]n
determining whether the circuit court erred in declining to suppress [defendant’s recorded
statement], we are constrained to consider only arguments and evidence that were before
the circuit court at that time.”). The facts described here we glean only from those two
orders.
In a discovery response, Mr. Delorenzo disclosed that Dr. Marshall would
testify at trial regarding Mr. Delorenzo’s diagnoses of ASD and OCD. Mr. Delorenzo
stated that he anticipated that Dr. Marshall would testify in accordance with his
supplemental report that, due to “Mr. Delorenzo’s simultaneous presence of two mental
6
disorders, namely ASD and OCD, he will hyper-focus on a topic he is motivated to
investigate . . . with a lack of appreciating whether something is right or wrong.” The State
then moved the court in limine to prohibit the expert’s testimony or to have Mr. Delorenzo
evaluated pursuant to West Virginia Code § 27-6A-4, which allows a court to require a
criminal responsibility or diminished capacity evaluation in certain circumstances. 2 In
response to the State’s motion, Mr. Delorenzo argued that his expert would testify that he
lacked the capacity to form the mens rea to commit the alleged acts, but that he was not
presenting a diminished capacity defense.
The circuit court rejected Mr. Delorenzo’s argument that he was not
presenting a diminished capacity defense as “not well-founded.” The court denied the
State’s motion to exclude Dr. Marshall and found probable cause to believe that Mr.
Delorenzo’s criminal responsibility or diminished capacity would be a significant factor to
his defense. The court ordered the examination requested by the State, and the evaluator
determined that Mr. Delorenzo was unable to assert a diminished capacity or lack of
criminal responsibility defense.
2
In West Virginia, a diminished capacity defense allows “a defendant to
introduce expert testimony regarding a mental disease or defect that rendered the defendant
incapable, at the time the crime was committed, of forming a mental state that is an element
of the crime charged,” although it is usually asserted “when the offense charged is a crime
for which there is a lesser included offense.” Syl. pt. 3, in part, State v. Joseph, 214 W. Va.
525, 590 S.E.2d 718 (2003).
7
The State again moved the circuit court to prohibit Dr. Marshall’s testimony.
In its order granting the State’s motion, the circuit court explained:
In the most recent pleadings and at the recent pre-trial
hearing, the Defendant has shifted from his initial assertions
regarding the nature of Dr. Marshall’s testimony to argue that
Dr. Marshall will testify as to the defendant’s credibility, his
subjective perceptions, to explain his conduct, and to assert the
defendant was doing “non-criminal research on the dark web.”
The Court can only assume that if permitted, Dr. Marshall
would opine that the Defendant’s “research” was “non-
criminal” because of his mental diagnoses.
(Footnote omitted).
The circuit court observed in a footnote that Mr. Delorenzo filed no
supplemental expert disclosures pursuant to Rule 16(b)(1)(C) of the West Virginia Rules
of Criminal Procedure and Rule 32.03(b)(6) of the West Virginia Trial Court Rules. 3 These
rules require a defendant to disclose expert material if requested by the State, including “a
written summary of expert testimony the defendant intends to use” under Rules 702, 703,
and 705 of the West Virginia Rules of Evidence, which relate to expert testimony. W. Va.
R. Crim. P. 16(b)(1)(C). This summary must include “the opinions of the witnesses, the
bases and reasons therefor, and the witnesses’ qualifications.” Id.
3
Rule 32.03(b)(6) of the West Virginia Trial Court Rules cross-references
Rule 16(b)(1)(C) of the West Virginia Rules of Criminal Procedure.
8
The circuit court stated that the proposed expert testimony was “attempting
to assert a diminished capacity/lack of criminal responsibility defense, which is
unsupported by both the [c]ourt ordered evaluation . . . and Dr. Marshall himself.”
Ultimately, the circuit court concluded that the proposed expert testimony was “improper
and not relevant at the trial of this case.”4
We review a circuit court’s decision to admit or exclude expert testimony
under an abuse of discretion standard, typically giving circuit courts a “wide berth” for this
type of discretionary judgment. State v. LaRock, 196 W. Va. 294, 306, 470 S.E.2d 613, 625
(1996). “The admissibility of testimony by an expert witness is a matter within the sound
discretion of the trial court, and the trial court’s decision will not be reversed unless it is
clearly wrong.” Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d
700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 301, 116 L. Ed. 2d 244 (1991). See, e.g.,
Syl. pt. 1, State v. Lockhart, 208 W. Va. 622, 542 S.E.2d 443 (2000) (quoting, among other
cases, Syl. pt. 6, Helmick, 185 W. Va. 269, 406 S.E.2d 700). See also State v. Black, 227
W. Va. 297, 308, 708 S.E.2d 491, 502 (2010) (determining that the exclusion of
defendant’s expert witness testimony was not clearly wrong and was within the “sound
discretion of the trial court”). An abuse of discretion generally occurs “‘when a material
4
At trial, Mr. Delorenzo, his friends, and his father testified about his
personality and his diagnoses of ASD and OCD, including about his “trouble with even
people getting close to him,” his interest in “heavily” researching topics, his sense of order,
and how he could “come off as condescending sometimes.”
9
factor deserving significant weight is ignored, when an improper factor is relied upon, or
when all proper and no improper factors are assessed but the circuit court makes a serious
mistake in weighing them.’” LaRock, 196 W. Va. at 307, 470 S.E.2d at 626 (quoting Gentry
v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995)).
Mr. Delorenzo argues that the circuit court erred by excluding his expert
testimony when Dr. Marshall would have provided testimony regarding the impact of his
ASD and OCD diagnoses on his behavior, which he further asserts would be relevant to
his character traits, credibility, and mental state. We address each of these types of
testimony in turn.
Mr. Delorenzo claims that his expert would “give the jury a context” to
evaluate his “character traits” and references traits common to individuals with ASD
diagnoses. 5 Mr. Delorenzo has failed to direct this Court to any instance when he raised to
5
While he references the expert’s sentencing testimony about the behaviors
of individuals diagnosed with ASD that a jury could misunderstand or misinterpret, as we
have previously explained, we will not consider the expert’s sentencing testimony when
determining whether the circuit court erred in excluding the expert’s testimony from trial.
See State v. Campbell, 246 W. Va. 230, ___, 868 S.E.2d 444, 454 (2022).
Still, had he raised the issue of expert testimony relating to his behaviors and
personal presentation before the circuit court, this evidence still fails to fit into the confines
of admissible expert testimony. Rule 702 of the West Virginia Rules of Evidence permits
the admission of expert testimony if the testimony “will assist the trier of fact to understand
the evidence or to determine a fact in issue.” W. Va. R. Evid. 702(a). There is no
“evidence” to understand regarding his personal presentation on the stand, and no “fact in
10
the circuit court, prior to trial, that his expert would testify regarding his character traits.
Instead, Mr. Delorenzo apparently argued to the circuit court before trial that the expert
would testify as to Mr. Delorenzo’s “credibility, his subjective perceptions, to explain his
conduct, and to assert the defendant was doing ‘non-criminal research on the dark web.’”
Furthermore, no mention of “character trait” evidence appears in either of the circuit
court’s orders regarding expert testimony. “[W]e are constrained to consider only
arguments and evidence that were before the circuit court at that time.” Campbell, 246
W. Va. at ___, 868 S.E.2d at 454 (refusing to address the voluntariness of the defendant’s
interview when it was not addressed by the circuit court). Accordingly, because character
trait evidence was not addressed by the circuit court, we decline to address whether the
circuit court erred by excluding Mr. Delorenzo’s expert from testifying regarding his
character traits. 6
issue” relating to his testimony or appearance. Sometimes witnesses are argumentative
with counsel or the judge. Sometimes they are submissive. A witness may appear selfish
and conceited. Witnesses may shift in their seats while testifying, while others stare at the
floor. Members of the jury do not leave their common sense at the door when evaluating
witnesses. We decline to extend this Rule to allow an expert to explain how such a
diagnosis may cause a witness to appear while testifying to a jury. See State v. Anderson,
789 N.W.2d 227, 236 (Minn. 2010) (finding, in part, that expert testimony regarding
defendant’s Asperger’s diagnosis (now incorporated into Autism Spectrum Disorder) was
not necessary to explain defendant’s “behavior, physical abilities, and his testimony” and
“whatever probative value the expert testimony would have had, it was substantially
outweighed by the danger of confusing the jury.”).
Typically, “character trait” evidence has a specific meaning within the West
6
Virginia Rules of Evidence. See W. Va. R. Evid. 404. A defendant may offer character
traits as evidence if they are pertinent to the crime charged. State v. Benny W., 242 W. Va.
618, 632, 837 S.E.2d 679, 693 (2019) (citing W. Va. R. Evid. 404(a)(2)(A)). See also Syl.
11
Mr. Delorenzo also unsuccessfully argues that circuit court erred because the
expert testimony was relevant to his credibility. Credibility determinations may not be
provided by an expert. State v. Martin, 224 W. Va. 577, 582, 687 S.E.2d 360, 365 (2009)
(per curiam). “‘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.’ Syl. Pt. 2, State
v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).” Syl. pt. 2, Martin, 224 W. Va. 577,
687 S.E.2d 360. In Martin, this Court found that the trial court erred by allowing the State’s
expert witness to testify that the main prosecution witnesses were “believable and
credible.” Id. at 583, 687 S.E.2d at 366. The only information in the record before this
Court is that Mr. Delorenzo asserted to the circuit court in a pleading or at a pretrial hearing
that his expert would testify about his credibility. As stated in Martin, expert testimony
regarding credibility “invade[s] the province of the jury.” Id. There is nothing in the record
to find error on the part of the circuit court by excluding expert testimony relating to Mr.
Delorenzo’s credibility.
pt. 7, id. This Court has found, for example, that a defendant’s character trait of honesty is
not pertinent to a sexual offense charge. Syl. pt. 8, id.; id. at 632, 837 S.E.2d at 693 (also
listing other cases noting non-pertinent traits to specific crimes). Moreover, “[i]n West
Virginia a criminal defendant may only use reputation evidence to prove character.” Syl.
pt. 4, State v. Gangwer, 169 W. Va. 177, 286 S.E.2d 389 (1982).
12
Finally, the circuit court did not err in excluding the expert testimony as it
related to Mr. Delorenzo’s mental state. On appeal, Mr. Delorenzo now makes an
insubstantial argument that the proposed expert testimony about his diagnoses was
relevant. He argues that the testimony would “rebut the conclusion” that because Mr.
Delorenzo “went on the dark web, he ‘knowingly and willfully’ sent or possessed child
pornography.”
Evidence is relevant when “(a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” W. Va. R. Evid. 401. Expert testimony, like any other type of
evidence, must be relevant for a trial court to admit the evidence. See Black, 227 W. Va. at
307-08, 708 S.E.2d at 501-02 (upholding circuit court’s exclusion of expert testimony
regarding false confessions when the court found defendant did not make a confession,
only a statement slightly against his interest). Rule 702 of the West Virginia Rules of
Evidence permits the admission of expert testimony if the testimony “will assist the trier
of fact to understand the evidence or to determine a fact in issue.” W. Va. R. Evid. 702(a);
see Lockhart, 208 W. Va. at 635-36, 542 S.E.2d at 456-57 (explaining that expert testimony
regarding a certain mental disorder may be admissible, on a case-by-case basis, when a
defendant asserts an insanity defense, but affirming the exclusion of the evidence in the
underlying case as the evidence was unreliable and would not have assisted the trier of
fact).
13
Mr. Delorenzo primarily urges us to rely on two cases from outside this
jurisdiction to conclude that the circuit court erred in excluding expert testimony about his
OCD and ASD diagnoses: State v. Burr, 948 A.2d 627 (N.J. 2008), and State v. Boyd, 143
S.W.3d 36 (Mo. Ct. App. 2004). Given the facts here, we do not find these cases persuasive.
The excluded expert testimony at issue in Boyd would have provided the jury with
information about why that defendant, with his diagnosis, could not have committed a
murder, while the excluded information in Burr related to that defendant’s abilities and
mental state surrounding his interactions with alleged victims. What little information we
have to consider regarding the expert testimony and Mr. Delorenzo’s mental state fails to
link his diagnoses with any limitations on his ability to commit the crime.
While our analysis is limited due to the scarce record, the proposed evidence
and Mr. Delorenzo’s argument miss an important step in the analysis of whether any of his
diagnoses affected his intent to commit the charged crime. The charge in the superseding
indictment required the State prove that Mr. Delorenzo knowingly and willfully sent, caused
to be sent, and/or possessed child pornography. See W. Va. Code § 61-8C-3(a). Our record
indicates that Mr. Delorenzo told the circuit court that his expert’s testimony would address
his subjective perceptions and that he was doing “non-criminal research on the dark web.” 7
Still, Mr. Delorenzo apparently never updated the initial expert disclosure
7
that Dr. Marshall would testify regarding his “lack of appreciating whether something is
14
The proposed testimony fails to connect his diagnoses to having any effect on—much less
negating—the mens rea of the alleged crime, knowingly and willfully possessing or sending
child pornography or his ability to commit the crime as charged. Rather, the expert
testimony may have been relevant to explain why Mr. Delorenzo would have committed
the crime as alleged, or went on the dark web—a more appropriate sentencing argument.
The trial court did not abuse its discretion in excluding this expert testimony from trial, as
it did not meet the threshold of assisting “the trier of fact to understand the evidence or to
determine a fact in issue.” See W. Va. R. Evid. 702(a).
2. Admonitions by the circuit court. The circuit court instructed Mr.
Delorenzo to follow its rules when he talked over objections and failed to answer “yes” or
“no” questions during cross-examination. Mr. Delorenzo now asserts that the circuit court
erred by admonishing him before the jury, unfairly prejudicing him and denying him a fair
trial. Mr. Delorenzo again argues that by preventing Dr. Marshall from testifying, in light
of the court’s admonitions, the jury likely misconstrued Mr. Delorenzo’s behavior while
testifying as being uncooperative.
During Mr. Delorenzo’s direct examination by his defense attorney, the
circuit court judge twice instructed him to stop talking over an objection, finally explaining
right or wrong,” even after a forensic evaluation determined that he could not assert a
diminished capacity defense.
15
that if “the witness” did not follow the court’s rules, his testimony would end.8 On cross
examination, the circuit court also instructed him to answer cross-examination questions
with “yes” or “no,” or the court would strike his testimony. 9
8
While we do not have an indication of the length of time Mr. Delorenzo’s
testimony lasted, the transcript of his direct examination was 72 pages. After Mr.
Delorenzo answered a question on direct examination while the court considered an
objection by the State, the court instructed him “Mr. Delorenzo, when there’s an objection,
you need to quit speaking.” As the direct examination continued, Mr. Delorenzo continued
to answer a question after the court sustained an objection by the State. The court again
instructed him, “Mr. Delorenzo, I’ve sustained the objection. You’re not permitted to
answer.” Mr. Delorenzo responded “I was just making a statement. I’m sorry.” The court
explained “You’re not allowed to just make statements. You have to answer questions.”
After his direct examination resumed, Mr. Delorenzo spoke over his counsel asking him
questions. The circuit court told counsel that “if the witness can’t follow the rules of the
court, your examination’s going to be concluded.”
9
After explaining that the court would strike his testimony and a brief bench
conference, the court directed Mr. Delorenzo as follows:
Mr. Delorenzo, I need to explain to you that right now
[the State] is asking you questions that he is looking for
particular answers from. Many of the questions he asks are
going to be able to be answered with a simple “yes” or “no.”
When [the State] is questioning you, you need to make
every effort to answer his questions with a simple “yes” or
“no.” When [defense counsel] has an opportunity to do what’s
called “redirect examine” you, then if you need to explain one
of your answers, he’ll go through that with you.”
After Mr. Delorenzo indicated that he understood, the court stated, “But with
regard to [the State’s] questions, if it’s a ‘yes’ or ‘no’ question, you need to just answer
‘yes’ or ‘no’ and leave it at that.”
16
This Court reviews the manner of a trial court conducting a trial under abuse
of discretion because “a trial judge has broad discretion in managing his or her docket,
including trial procedure and the conduct of trial.” State v. Davis, 232 W. Va. 398, 414,
752 S.E.2d 429, 445 (2013) (per curiam) (quoting Barlow v. Hester Industries, Inc., 198
W. Va. 118, 127, 479 S.E.2d 628, 637 (1996)).
A trial judge must “be extremely cautious not to intimate in any manner by
word, tone, or demeanor, his opinion upon any fact in issue.” State v. Thompson, 220
W. Va. 398, 412, 647 S.E.2d 834, 848 (2007). Still, a court may instruct witnesses to follow
the rules of the court. See People v. Williams, 558 N.E.2d 1258, 1267 (Ill. App. 1990)
(explaining that a trial court instructing a defense expert to answer “yes” or “no” questions
“were not attempts to discredit the witness or the defense in general.”). In Thompson, this
Court found that the trial judge “abandoned his role of impartiality and neutrality” during
a trial. Thompson, 220 W. Va. at 412, 647 S.E.2d at 848. The judge extensively questioned
witnesses, asked seven questions of the defendant, and made comments that aided the
prosecution. Id. at 411-12, 647 S.E.2d at 847-48. This Court then determined that the judge
“seriously affected the fairness, integrity, and public reputation of the judicial
proceedings.” Id. at 412, 647 S.E.2d at 848. In contrast, here the trial court instructed Mr.
Delorenzo to follow the rules of the proceedings, like the court would any other witness,
and explained the consequences of not following those rules. The court did not ask
substantive questions of Mr. Delorenzo and matter-of-factly instructed Mr. Delorenzo to
17
adhere to the court’s directives. Like the court in Williams, these comments were within
the court’s discretion “and were not attempts to discredit” him or his defense. See Williams,
558 N.E.2d at 1267.
A court has “inherent authority to conduct and control matters before it in a
fair and orderly fashion.” Syl. pt. 2, in part, State v. Fields, 225 W. Va. 753, 696 S.E.2d
269 (2010). The trial court has an obligation to all parties to ensure that the trial is
conducted in a fair manner. This obligation includes a duty to supervise the direct and
cross-examination of each party’s witnesses. Mr. Delorenzo’s diagnoses do not alter the
trial court’s ability to manage the courtroom, and the transcripts do not reveal that the judge
was in any way prejudicial or inappropriate in his instructions to Mr. Delorenzo to follow
the rules that all witnesses must follow when testifying. For these reasons, we find that the
circuit court did not abuse its discretion in instructing Mr. Delorenzo to follow the rules of
the circuit court during his trial testimony.
B. Mr. Delorenzo’s Motion to Dismiss the Superseding Indictment or
Disqualify the Prosecuting Attorney’s Office
We now turn to Mr. Delorenzo’s argument that the circuit court erred by
failing to dismiss the superseding indictment or disqualify the Marshall County
Prosecuting Attorney’s Office. He alleges, without citation to the record, that he provided
information regarding attorney-client privileged trial strategy to the court-appointed mental
18
health evaluator; that this information was then turned over to the prosecutor; that this
information was the basis for the superseding indictment; and that this information could
have been redacted by the court before being sent to the prosecutor. The only evidence in
the appendix for this Court for review in connection with this assignment of error is the
circuit court’s four sentence order denying Mr. Delorenzo’s motion to dismiss the
indictment or, in the alternative, to disqualify the prosecutor’s office.
“[T]he responsibility and burden of designating the record is on the parties
and [] appellate review must be limited to those issues which appear in the record presented
to this Court.” State v. Honaker, 193 W. Va. 51, 56, 454 S.E.2d 96, 101 (1994) (footnote
omitted). We recently took as “‘non[-]existing all facts that do not appear in the [appendix]
record.’” See Hairston v. W. Va. Dep’t of Health & Hum. Res. Bd. of Rev., No. 20-0326,
2021 WL 982643, at *3 n.3 (W. Va. Mar. 16, 2021) (memorandum decision) (alteration in
original) (quoting Honaker, 193 W. Va. at 56 n.4, 454 S.E.2d at 101 n.4, and changing the
reference from “designated record” to “appendix.”). As we have explained,
“[a]n appellant must carry the burden of showing error
in the judgment of which he complains. This Court will not
reverse the judgment of a trial court unless error affirmatively
appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the
judgment.” Syllabus Point 5, Morgan v. Price, 151 W. Va.
158, 150 S.E.2d 897 (1966).
19
Syl. pt. 2, In re Visitation of L.M., 245 W. Va. 328, 859 S.E.2d 271 (2021). Accordingly,
based on the lack of a record before this Court, with only Mr. Delorenzo’s argument in his
brief and a short order denying his motion, we will not find error in the circuit court’s denial
of Mr. Delorenzo’s motion.
C. Mr. Delorenzo’s Voluntary Statement to Law Enforcement
Mr. Delorenzo contends that the trial court erred in determining that his
recorded statement to law enforcement was voluntary. He also claims that the circuit court
erred because it refused to allow him to testify on the issue of voluntariness without being
subject to cross-examination on other matters at a pretrial hearing.
According to the record on appeal, 10 when law enforcement arrived at Mr.
Delorenzo’s apartment, all wearing plain clothes, they informed him they had a search
10
The record consists of the circuit court order finding Mr. Delorenzo’s
statement voluntary and the transcript of the pretrial hearing. The parties did not include
underlying motions and responses in the appendix. To the extent that Mr. Delorenzo asks
us to consider his trial testimony that he felt confused, anxious, and in a state of panic
during the search to revisit the circuit court’s ruling on voluntariness, we refuse.
While a trial court may reconsider suppression determinations if new facts
come out at trial, Mr. Delorenzo did not request the circuit court do so. See State v. Farley,
192 W. Va. 247, 253 n.7, 452 S.E.2d 50, 56 n.7 (1994) (“Because the defendant did not
renew his motion to suppress at trial, specifically after he had testified, he is now foreclosed
from using trial testimony to challenge the trial court’s ruling.”). The trial court was not
required to review its suppression determination at trial without a motion. See id. Without
a renewed motion to suppress at trial, Mr. Delorenzo may not now use his trial testimony
to refute the circuit court’s pretrial decision. See id.
20
warrant. During the search, Detective Rob Safreed (“Det. Safreed”) from the Wheeling
Police Department asked Mr. Delorenzo to sit at the kitchen table so he could speak with
him while the other two officers searched the apartment pursuant to the warrant. Det.
Safreed conducted the thirty-five minute interview there, using a recorder, and was the only
person to question Mr. Delorenzo. No one handcuffed Mr. Delorenzo during the search or
the interview. Mr. Delorenzo was not arrested on the day of the search and stayed in his
apartment after law enforcement concluded the search.
Upon motions by both parties, the circuit court held a pretrial hearing relating
to the voluntariness of the statement Mr. Delorenzo gave to Det. Safreed. At the hearing,
only Det. Safreed testified on behalf of the State. Det. Safreed explained to the circuit court
that he read Mr. Delorenzo his Miranda rights from a card he usually carried in his portfolio
before he started questioning him. Det. Safreed confirmed that he advised Mr. Delorenzo
that he was not under arrest. Det. Safreed explained that Mr. Delorenzo “would have said
that he did understand [his rights] because we had an interview.” Det. Safreed did not have
Our general rule is that nonjurisdictional questions raised for the first time
on appeal will not be considered. See Syl. pt. 2, Sands v. Security Trust Co., 143 W. Va.
522, 102 S.E.2d 733 (1958) (“This Court will not pass on a nonjurisdictional question
which has not been decided by the trial court in the first instance.”). Nevertheless, “[a]
constitutional issue that was not properly preserved at the trial court level may, in the
discretion of this Court, be addressed on appeal when the constitutional issue is the
controlling issue in the resolution of the case.” Syl. pt. 2, Louk v. Cormier, 218 W. Va. 81,
622 S.E.2d 788 (2005). Upon examination, this Court does not find Mr. Delorenzo’s
argument dispositive. Therefore, we decline to address any alleged error.
21
Mr. Delorenzo sign a waiver of his Miranda rights. Det. Safreed said that he may not have
told Mr. Delorenzo he was free to leave, as he wanted Mr. Delorenzo to witness the search
of his apartment, but he did not specifically tell Mr. Delorenzo that he could not leave his
house. Had Mr. Delorenzo told him he was leaving, he would have allowed him to leave.
Det. Safreed explained that he recorded the interview, but due to a new
recorder, did not realize that the recording did not include the reading of those rights and
the subsequent agreement from Mr. Delorenzo that he understood them. He estimated
approximately three minutes of the interview were not recorded, including the portion
where he provided Mr. Delorenzo with his Miranda warning. 11
Mr. Delorenzo did not offer any testimony or evidence at the pretrial hearing
other than cross-examination of Det. Safreed. In contemplation of his own testimony at the
hearing, Mr. Delorenzo requested that the circuit court limit his cross-examination to only
the voluntariness of his statement. The circuit court invited counsel to provide a basis for
such a limitation on cross-examination, which counsel did not do. Mr. Delorenzo further
11
While Sgt. Safreed earlier testified at the initial preliminary hearing that
he did not realize that the recorder failed to work until he listened to the recording, at the
hearing he testified that he realized the error during the interview. He explained the
discrepancy in his testimonies by stating that he forgot about the recorder not working at
the preliminary hearing because the hearing occurred eleven months after the interview.
He also explained that he reported that the recorder did not record in the narrative in his
police report that he created shortly after the interview.
22
did not provide any reason why cross-examination was unjust. The circuit court denied his
motion and Mr. Delorenzo did not testify.
After considering testimony from Det. Safreed and reviewing the audio
statement, the circuit court issued an order finding that the statement was voluntary, made
with “full knowledge of his Miranda rights after being advised of the same,” and that, in
any event, Mr. Delorenzo was not in custody at the time he made his statements so his
“arguments relating to spoliation of evidence of the defendant being [M]irandized (or not)
are irrelevant and moot.”
1. Scope of Cross-examination at the Pretrial Hearing. We first address the
alleged error regarding Mr. Delorenzo’s motion at the pretrial hearing to testify without
being subject to cross-examination outside the scope of voluntariness. Before this Court or
the circuit court, Mr. Delorenzo failed to supply any rules or law in support of his argument
that the circuit court should have granted his motion. West Virginia Rule of Appellate
Procedure 10(c)(7) requires a petitioner to “clearly exhibit[] the points of fact and law
presented” and to “cit[e] the authorities relied on[.]” Citing to “some of the facts involved
with an issue” does not meet the requirements of Rule 10(c)(7). Benny W., 242 W. Va. at
632 n.23, 837 S.E.2d at 693 n.23. The circuit court specifically provided Mr. Delorenzo
the opportunity to provide relevant authority for his request and he provided none. He has
not provided this Court with any relevant authority, either. Mr. Delorenzo’s argument, both
23
here and before the circuit court, is “a skeletal argument, really nothing more than an
assertion” and “does not preserve a claim.”12 See State, Dep’t of Health and Human Res.
ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995) (internal quotations and citations omitted). Mr. Delorenzo’s limited argument both
here and before the circuit court does not preserve a claim. We refuse to address his
argument that the circuit court erred by denying his motion to testify with only limited
cross-examination.
2. Mr. Delorenzo’s Voluntary Statement. We next examine whether the
circuit court erred in determining that Mr. Delorenzo’s statement to Det. Safreed was
voluntary. Mr. Delorenzo appears to argue that no evidence shows that Mr. Delorenzo was
read and understood his Miranda rights, because only Det. Safreed testified that he read
Mr. Delorenzo his Miranda rights. The State asserts that Mr. Delorenzo was not in custody,
and therefore Det. Safreed had no duty to give Mr. Delorenzo any Miranda warnings, and
12
Rule 104(d) of the West Virginia Rules of Evidence governs cross-
examination of a defendant on a preliminary question. W. Va. R. Evid. 104(d) (“By
testifying on a preliminary question, a defendant in a criminal case does not become subject
to cross-examination on other issues in the case.”). As we have explained many times,
“[t]his Court will not pass on a nonjurisdictional question which has not been decided by
the trial court in the first instance.” Syl. pt. 2, Sands v. Sec. Tr. Co., 143 W. Va. 522, 102
S.E.2d 733 (1958). Had he named this Rule in his brief and claimed an error in its
application by the circuit court to this Court, we still would not review whether the circuit
court erred in the application of Rule 104(d), as Mr. Delorenzo did not submit any
testimony for which he could be cross-examined and the Rule subsequently violated.
24
in any event, the circuit court determined that Det. Safreed’s testimony that he read Mr.
Delorenzo his Miranda rights was credible. We agree with the State.
“We apply an abuse of discretion standard of review to a circuit court's
decision on the admissibility of a confession.” Campbell, 246 W. Va. at ___, 868 S.E.2d at
451. A trial court “has wide discretion in regard to the admissibility of confessions and
ordinarily this discretion will not be disturbed on review.” Syl. pt. 2, in part, State v. Vance,
162 W. Va. 467, 250 S.E.2d 146 (1978). “A trial court’s decision regarding the
voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly
against the weight of the evidence.” Syl. pt. 3, id. Moreover, “factual findings based, at
least in part, on determinations of witness credibility are accorded great deference.” Syl.
pt. 3, in part, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994) (regarding the standard
of review for suppression motions).
Yet, we apply a de novo review when determining whether “‘a particular
confession is voluntary and whether the lower court applied the correct legal standard in
making its determination,’” limiting our deference to factual findings. Campbell, 246
W. Va. at ___, 868 S.E.2d at 451 (quoting Syl. pt. 2, in part, State v. Farley, 192 W. Va.
247, 452 S.E.2d 50 (1994)). “[T]he prosecution must show by ‘affirmative evidence’ as a
condition precedent to its admissibility that the voluntariness of a confession is established
by a preponderance of the evidence.” Farley, 192 W. Va. at 252, 452 S.E.2d at 55.
25
Additionally, “[i]n circumstances where a trial court admits a confession without making
specific findings as to the totality of the circumstances, the admission of the confession
will nevertheless be upheld on appeal, but only if a reasonable review of the evidence
clearly supports voluntariness.” Syl. pt. 3, Farley, 192 W. Va. 247, 452 S.E.2d 50.
Law enforcement officers must provide Miranda warnings, pursuant to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when a person
is in custody and is interrogated. Campbell, 246 W. Va. at ___, 868 S.E.2d at 451. “‘The
obligation of police to warn a suspect of both his right to counsel and his right against self-
incrimination applies only to custodial or other settings where there is a possibility of
coercion.’ Syl. pt. 2, State v. Andriotto, 167 W. Va. 501, 280 S.E.2d 131 (1981).” Syl. pt.
5, State v. Hardway, 182 W. Va. 1, 385 S.E.2d 62 (1989). Thus, if a person is not in custody
or in a setting “where there is a possibility of coercion,” law enforcement officers do not
have to provide Miranda warnings before questioning a person. See id.
Whether a person is in custody is an “‘objective test’” where the court must
consider, in the totality of the circumstances, whether “‘a reasonable person in that
individual’s position would have considered his freedom of action restricted to the degree
associated with a formal arrest.’” Campbell, 246 W. Va. at ___, 868 S.E.2d at 452 (quoting
State v. McCracken, 218 W. Va. 190, 195, 624 S.E.2d 537, 542 (2005) (per curiam)). When
26
determining the factual question of whether a person is subject to a custodial interrogation,
the factors the circuit court must consider include:
the location and length of questioning; the nature of the
questioning as it relates to the suspected offense; the number
of police officers present; the use or absence of force or
physical restraint by the police officers; the suspect’s verbal
and nonverbal responses to the police officers; and the length
of time between the questioning and formal arrest.[13]
Syl. pt. 4, in part, Damron v. Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008) (per curiam).
In State v. Singleton, we affirmed a trial court’s determination that a person was not in
custody when her interview took approximately forty minutes, so was “not lengthy;” she
was not handcuffed, detained or “otherwise restrained;” she was allowed to leave for work;
officers advised her that she was not under arrest; and she was seated in the front seat of a
police car. 218 W. Va. 180, 186 & n.11, 624 S.E.2d 527, 533 & n.11 (2005) (per curiam).
Based on the facts presented at the pretrial hearing, we will not disturb the
circuit court’s conclusion that Mr. Delorenzo was not in custody when he gave his
statement to Det. Safreed. Mr. Delorenzo was in his home with three plain-clothed law
enforcement officers, which was not an overwhelming number of individuals, while they
executed a search of his apartment. Mr. Delorenzo’s apartment was a neutral setting. See
United States v. Hargrove, 625 F.3d 170, 180 (4th Cir. 2010) (explaining that a suspect’s
These factors are not all-inclusive. See Syl. pt. 4, in part, Damron v.
13
Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008) (per curiam).
27
residence is a more “neutral” and “relaxed” environment than is typically associated with
formal arrest). Mr. Delorenzo and Det. Safreed sat at the kitchen table during the interview.
Furthermore, Det. Safreed told him he was not under arrest. The officers did not handcuff
him, restrain him, or restrict his freedom to depart. Like the interview in Singleton, Mr.
Delorenzo’s conversation with Det. Safreed was “not lengthy,” approximately thirty-five
minutes. See 218 W. Va. at 186, 624 S.E.2d at 533. Law enforcement did not arrest him at
or immediately following the search of his apartment. Based upon these facts, Mr.
Delorenzo was not in custody during the interview and the record presents no evidence of
coercion. Because it was not a custodial interrogation, law enforcement did not have to
provide Miranda warnings to him.
Further, to the extent that the circuit court found that Det. Safreed provided
Miranda warnings to Mr. Delorenzo, we will not alter the circuit court’s finding. See Syl.
pt. 3, in part, Stuart, 192 W. Va. 428, 452 S.E.2d 886 (giving “great deference” to factual
findings based at least in part on witness credibility). Mr. Delorezo argues that Det.
Safreed’s testimony was “unsubstantiated.” Still, Det. Safreed testified extensively
regarding the warnings he provided Mr. Delorenzo, and Mr. Delorenzo’s understanding of
those warnings. The circuit court clearly found Det. Safreed credible when it determined
that Det. Safreed provided Miranda warnings to Mr. Delorenzo, as its only evidence was
Det. Safreed’s testimony and the recorded statement itself. We will not disturb this finding.
28
Having determined that Mr. Delorenzo was not in custody, yet still received
Miranda warnings, we now turn to whether his statement was voluntary. While the circuit
court did not make “specific findings as to the totality of the circumstances,” our review of
the evidence “clearly supports [the] voluntariness” of Mr. Delorenzo’s statement. See Syl.
pt. 3, in part, Farley, 192 W. Va. 247, 452 S.E.2d 50. For the same reasons that support
our finding that Mr. Delorenzo was not in custody, we find that the State proved by a
preponderance of the evidence that Mr. Delorenzo’s statement was voluntary.
For the foregoing reasons, we find that the circuit court did not abuse its
discretion by denying Mr. Delorenzo’s motion to suppress and admitting his recorded
statement into evidence at trial.
D. Testimony by the State’s Digital Forensic Analyst.
We now turn to Mr. Delorenzo’s contention that the State’s digital forensic
computer analyst, an uncontested expert, testified outside of her expertise at trial and the
circuit court plainly erred by allowing this testimony. We disagree.
Before trial, the State disclosed the resume of Ginger Haring (“Ms. Haring”)
the State’s digital forensic computer analyst, to Mr. Delorenzo. Her resume included
information that as a digital forensic analyst, she performed “thorough examinations of
computer hard disk drives and electronic data storage media.” Her resume also listed her
29
credential as a Certified Cyber Crime Examiner. At trial, Ms. Haring described her
background and disclosed she had a degree in network administration and cyber
security/computer forensics. She explained the evidence she found on Mr. Delorenzo’s
computer and explained how she reviewed that evidence.
During her testimony, the State asked her whether she spoke with Mr.
Delorenzo’s counsel. She responded that she had on more than one occasion, and she
reported that at one point, he asked her whether it was possible that someone could have
used Mr. Delorenzo’s computer as a server without his knowledge. She told the jury that
she told Mr. Delorenzo’s counsel it was possible, but not probable. She then explained that
it’s possible for any home computer to be -- to be gotten into
and used. However, most of the time when that’s the case,
there’s a monetary -- they’re looking for monetary reasons to
do it. They want your identity. They want your bank numbers.
They want your credit card numbers. In most cases that is more
what it’s for, is for monetary gain.
She confirmed that it was not typical that people put pornography on someone else’s
computer and then delete it. Mr. Delorenzo did not object at trial during her direct
testimony. On cross-examination, Mr. Delorenzo’s attorney revisited the issue with Ms.
Haring, asking her whether she spoke with him. He asked her whether a cybercriminal
could have gained access to the defendant’s computer. Ms. Haring responded that “Again,
it is possible; it is not probable. That is not a likely scenario, but it’s -- it is possible.”
30
Generally, pursuant to Rule 103(a) of the West Virginia Rules of Evidence,
to preserve a claim of error, a party must “timely” object to the admission of evidence,
stating the “the specific ground” of the objection “unless it was apparent from the context.”
W. Va. R. Evid. 103(a). See State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996)
(discussing the failure to object to evidence at trial). Because Mr. Delorenzo did not raise
this issue during Ms. Haring’s testimony, it is unpreserved, and any analysis must use a
plain error review. See Syl. pt. 6, State v. Mayo, 191 W. Va. 79, 443 S.E.2d 236 (1994);
W. Va. R. Crim. P. 52(b) (explaining that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”). See
also W. Va. R. Evid. 103(e) (“A court may take notice of a plain error affecting a
substantial right, even if the claim of error was not properly preserved.”).
A “plain error” occurs when there is “(1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. pt. 7, in part, State v. Miller, 194 W. Va. 3,
459 S.E.2d 114 (1995). If the first three elements are met, we may correct the error, but
need not do so “unless a fundamental miscarriage of justice has occurred.” Marple, 197
W. Va. at 52, 475 S.E.2d at 52.
Mr. Delorenzo asserts that part of Ms. Haring’s testimony on direct
examination meets the threshold for plain error because Ms. Haring was not qualified to
31
testify as a criminologist about the following issues: (1) that it is not typical that someone
would place pornography on someone else’s home computer without the owner’s
knowledge; and (2) when people intrude on others’ computers, it is usually for monetary
reasons. Mr. Delorenzo claims, without citation, that the circuit court allowing an expert to
testify outside the scope of her expertise was an “egregious act” that “constitute[ed] plain
error.” He fails to provide any legal authority that demonstrates that permitting Ms.
Haring’s contested testimony was error at all, merely alleging that her “central role” in the
trial led the jury to give “a great deal of credence to her testimony.”
We find no error in allowing this testimony, much less that “the lower court
skewed the fundamental fairness or basic integrity of the proceedings in some major
respect.” See LaRock, 196 W. Va. at 317, 470 S.E.2d at 636 (discussing standard for
finding plain error). Ms. Haring had degrees in network administration and cyber
security/computer forensics; as part of her employment, she performed examinations of
computers and electronic storage media; and she was a Certified Cyber Crime Examiner.
Testifying about the criminal use of computers appears within her area of expertise.
Moreover, rather than objecting to Ms. Haring’s direct testimony, on cross-examination
Mr. Delorenzo’s counsel revisited the issue, eliciting yet again that it was possible someone
placed child pornography on Mr. Delorenzo’s computer. We do not find such testimony is
error, much less plain error.
32
E. Visual Evidence the State Introduced at Trial
Finally, Mr. Delorenzo asserts two errors relating to the videos and
photographs presented to the jury at trial. He argues that the circuit court should have
prevented the State from presenting evidence from the State’s library of child pornography
because it was “unnecessary” for the State to present this evidence, as “the images were
not on his computer” when it was seized and “if the images appeared on his computer at
any time before the computer was seized it was not accomplished through his knowing and
willful act.” He also contends that the circuit court erred by playing videos “for an
unnecessary length of time,” alleging for the first time in this appeal that the circuit court
admitted needlessly cumulative and unfairly prejudicial evidence, in violation of Rule 403
of the West Virginia Rules of Evidence.
Sergeant James Kozik (“Sgt. Kozik”) from the West Virginia State Police
testified at trial on behalf of the State, explaining that the State has a “hash library” of
known child exploitation materials that provides each file’s “hash value,” a mathematical
algorithm that is the precise “DNA fingerprint of the file.” He described his investigation,
where he used a computer program to find an IP address sharing voluminous files with
some of those known hash values over the internet. 14 He then matched those files’ hash
values with copies of identical files from the State’s library of child exploitation. Sgt. Kozik
14
Another law enforcement witness ultimately testified that the IP address at
issue was associated with Mr. Delorenzo’s residential address.
33
placed copies of those identical files on data storage materials and the State introduced
those videos and photographs into evidence at trial. Mr. Delorenzo objected to the
introduction of those files on the grounds that they came from the State’s library, not from
his computer.
The admissibility of evidence is “‘committed to the discretion of the trial
court,’” and with few exceptions, this Court reviews “‘evidentiary . . . rulings of the circuit
court under an abuse of discretion standard.’” Syl. pt. 1, in part, State v. Gray, 204 W. Va.
248, 511 S.E.2d 873 (1998) (per curiam) (quoting Syl. Pt. 1, in part, McDougal v.
McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995)). See also Syl. pt. 9, State v.
Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (quoting Syl. pt. 1, Roberts v. Stevens
Clinic Hospital, Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)) (“‘A trial court is afforded
wide discretion in determining the admissibility of videotapes and motion pictures.’”).
Mr. Delorenzo’s argument that the contested visual evidence was not on his
computer and was therefore unnecessary to present to jury is without merit. The State
correctly points out that it has a right to present evidence of essential elements of crimes.
See State v. Less, 170 W. Va. 259, 264, 294 S.E.2d 62, 66 (1981) (“The State must prove
all the elements of a crime beyond a reasonable doubt.”). The credibility of evidence is “for
the trier of fact to determine.” State v. Jenkins, 195 W. Va. 620, 626, 466 S.E.2d 471, 477
(1995). The State’s burden included proving to the jury the number of images charged in
34
the superseding indictment, which alleged that Mr. Delorenzo unlawfully, knowingly, and
willfully sent or caused to be sent and/or possessed child pornography, including 600 or
more images depicting minors engaged in sexually explicit conduct or images depicting
violence against a child. See W. Va. Code § 61-8C-3(b)-(d) (increasing penalties for a
violation of § 61-8C-3(a) depending on the number and type of images); § 61-8C-3(e)
(defining how images are counted for the purposes of the statute, with five-minute videos
equaling 75 images, with each additional two minutes adding 75 more images). The jury
heard testimony from Sgt. Kozik that the videos and images sent over the internet from Mr.
Delorenzo’s IP address matched child pornography in the State’s library. This evidence
directly related to the superseding indictment that alleged Mr. Delorenzo sent or caused to
be sent child pornography. Mr. Delorenzo stating that this evidence is “unnecessary” is not
grounds for limiting the State’s evidence to visual images found only on Mr. Delorenzo’s
computer and hard drives. Whether Mr. Delorenzo knowingly and willfully sent, caused to
be sent, and/or possessed those images were properly a question of fact for the jury. The
circuit court did not abuse its discretion in admitting evidence of child pornography from
the State’s library rather than only evidence retrieved directly from Mr. Delorenzo’s
computer seized by the State.15
15
The State’s evidence also included child pornography found on his
computer. Ms. Haring testified about her examination of Mr. Delorenzo’s computer and
hard drives and the numerous child-suspicious videos and items she found on them. She
further explained she found files identified as child pornography that had been deleted from
the “recycle bin” on Mr. Delorenzo’s computer. The State showed evidence from that
35
Mr. Delorenzo also now argues that the trial court should have applied Rule
403 of the West Virginia Rules of Evidence to preclude the admission of some of the videos
and photographs because they were unfairly prejudicial and needlessly cumulative. Rule
103(a)(1) of the West Virginia Rules of Evidence explains that a party may claim error
relating to the admission of evidence if the party timely objects and “states the specific
ground, unless it was apparent from the context.”
Mr. Delorenzo objected to this evidence at trial, but on the grounds that the
images were from the State’s library. Because he did not raise any objections under Rule
403, these arguments are waived. See State v. DeGraw, 196 W. Va. 261, 271-72, 470
S.E.2d 215, 225-26 (1996) (declining to address whether trial court improperly admitted
evidence that allegedly violated Rule of Evidence 404(b) where the party only objected to
the evidence on the grounds that it violated Rule of Evidence 609). As such, Mr.
Delorenzo’s assignments of error regarding the admission of various pictures and videos
into evidence fail.
computer to the jury. While she was unable to see the search history from Mr. Delorenzo’s
web browser, she identified browser activity from known child pornography sites.
36
IV.
CONCLUSION
Finding no reversible error for the reasons stated above, we affirm the final
order from May 7, 2021, of the Circuit Court of Marshall County.
Affirmed.
37 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484736/ | 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) 200420-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,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0420
v. ) Circuit No. 18-CF-492
)
THEO CHESTER, ) Honorable
) Clark E. Erickson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justices Daugherity and Holdridge concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) Defendant’s statutory speedy trial rights were not violated; (2) defendant’s
constitutional speedy trial rights were not violated; (3) defense counsel was not
ineffective; and (4) the circuit court did not err when it did not appoint
independent counsel to represent defendant during a preliminary Krankel hearing.
¶2 Defendant, Theo Chester, appeals following his conviction for second degree murder. He
argues his statutory and constitutional speedy trial rights were violated, he received ineffective
assistance of trial counsel, and the Kankakee County circuit court failed to conduct a proper
Krankel hearing. We affirm.
¶3 I. BACKGROUND
¶4 Police arrested defendant on August 20, 2018, for the murder of his brother, George
Chester. 720 ILCS 5/9-2 (West 2018). Defendant appeared in court on August 22, 2018, and the
matter was continued to September 11, 2018, for arraignment. Defendant remained in custody.
The court docket attributes the continuance to defendant.
¶5 At arraignment, the court continued the case to October 18, 2018. The State also stated
that discovery would be available to defense counsel within 21 days, and the court asked defense
counsel if he would like a status hearing on discovery 30 to 40 days from then, which counsel
stated would be fine. The court stated the continuance would be on defendant’s motion. The case
was later continued to November 15, 2018, by agreement, and then to January 10, 2019, on
defendant’s motion.
¶6 On January 10, 2019, the court noted that there was a speedy trial demand and set the
case for trial on March 4, 2019. On March 1, 2019, defendant appeared in court for final pretrial.
On that date, the State filed a motion for a continuance. The State noted that defendant was ready
to proceed, but defense counsel would agree to a 60-day continuance. Defendant objected to the
continuance, stating that he wanted to proceed to trial and that he did not understand why the
case should be continued. The court granted the State’s motion for a continuance over
defendant’s objection. The court docket noted that the continuance was by agreement.
¶7 The next court date was on May 7, 2019. The State tendered further discovery to the
defense, and the court set the case for trial for August 26, 2019. While the court transcripts are
silent as to who the continuance is attributable to, the clerk’s docket shows that the continuance
was on defendant’s motion.
2
¶8 The parties returned to court for a status hearing on July 8, 2019. Defense counsel stated
that he had not yet complied with Rule 413 disclosures but would within the next 14 days. The
case returned to court on August 23, 2019, for final pretrial. Defense counsel filed his Rule 413
disclosures instanter. On the date of trial, August 26, 2019, the State filed a motion to continue
because of the late disclosure of three witnesses it wished to investigate. Over defendant’s
objection, the court granted the State’s motion. The court continued the case for trial on
October 28, 2019. On that date, defendant had been in custody for a total of 434 days.
¶9 At trial, testimony established that defendant, George, and George’s girlfriend lived
together. Defendant and George engaged in an argument the night George died. Defendant left
the house after the fight, and George’s girlfriend found him on the kitchen floor with a stab
wound. George died from his injuries.
¶ 10 Police later found defendant with two individuals walking away from the house. Officers
found and collected the knife used to stab George, a bloodstain on the pant leg of Anthony
Romano-Boyd, and blood on defendant.
¶ 11 Dr. Michael Humilier testified as the State’s expert in forensic pathology. Humilier
testified regarding his examination of George, as well as the autopsy and toxicology reports. He
reported that George died of a stab wound to his chest. Based on the toxicology report, George
had signs of PCP and marijuana in his blood. The reference comments in the toxicology report
indicated that George was not within the range of phencyclidine (PCP) where a user would
experience agitation and combativeness. Defense counsel objected to the admittance of the
autopsy and toxicology reports into evidence. The court overruled the objection and admitted the
reports pursuant to section 115-5.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115-5.1 (West 2018)).
3
¶ 12 On cross examination, defense counsel questioned Humilier regarding his knowledge of
the drugs listed on the toxicology report. Humilier testified that he did not perform the testing,
and he did not have any further knowledge of the drugs other than what was in the report. The
court found that Humilier was not an expert qualified to provide opinions on the effects of drugs,
and this line of questioning ended. Defendant did not present an expert to the jury to contradict
or otherwise discredit Humilier’s testimony.
¶ 13 Defendant testified that he stabbed George in self-defense. He explained that George was
on top of him, and defendant reached for a knife and “poked” George with it so he would move.
On cross-examination, the State played clips of defendant’s videorecorded interview with the
police to highlight the contradiction between defendant’s testimony and statement to the police
on the night of the incident.
¶ 14 During the jury instruction conference, defense counsel submitted a jury instruction for
self-defense, but did not tender Illinois Pattern Jury Instructions, Criminal, No. 4.13 (approved
July 18, 2014) (hereinafter IPI Criminal No. 4.13) regarding the definition of reasonable belief.
Additionally, the court asked whether the parties wanted the jury to be sent back with any
exhibits, and defense counsel stated they could wait to see what the jury wanted before sending
anything to them.
¶ 15 During closing arguments, trial counsel argued that defendant acted in self-defense. He
argued that George had “stuff” in his system that made his behavior “a little off.” Counsel argued
that the “stuff” found in George’s body at the time of his death caused him to act a little more
violently that night, creating a situation that required defendant to defend himself. Counsel also
stressed that none of the State’s witnesses saw defendant and George fighting, and therefore, no
one knew exactly what happened and how defendant came to stab George.
4
¶ 16 The jury found defendant guilty of second degree murder. At the sentencing hearing,
defendant stated defense counsel was ineffective. The court asked defendant to write down his
complaints and set the matter for a Krankel hearing. See generally People v. Krankel, 102 Ill. 2d
181 (1984).
¶ 17 During the Krankel hearing, defendant argued that counsel did not visit him, did not tell
him about the blood evidence on Romano-Boyd’s pant leg, did not interview witnesses regarding
the events leading up to his fight with George and of his self-defense theory, and did not bring up
the drugs found in George’s body during closing arguments. The court asked defense counsel to
respond to the allegations against him. Defense counsel stated that he did speak to the necessary
witnesses and that he told defendant about the State’s evidence prior to trial. The court found that
there was no basis for appointing new counsel to pursue any claims against defense counsel and
that he was not ineffective. The court subsequently sentenced defendant to 12 years’
imprisonment. Defendant appeals.
¶ 18 II. ANALYSIS
¶ 19 A. Speedy Trial
¶ 20 Defendant argues that trial counsel was ineffective for failing to move for a statutory or
constitutional speedy trial dismissal. In support, defendant contends the circuit court erred in
attributing delays to defendant for speedy trial purposes and that trial counsel was ineffective for
failing to object to continuances that created a speedy trial violation.
¶ 21 To prevail on an ineffective assistance of counsel claim, defendant must show that:
(1) counsel’s performance was deficient, and (2) but for counsel’s deficiency, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984).
Defendant’s ineffective assistance claim derives from an alleged speedy trial violation. Counsel’s
5
failure to assert a speedy trial violation cannot establish either prong of an ineffective assistance
claim if there is no basis for raising a speedy trial objection. People v. Cordell, 223 Ill. 2d 380,
385 (2006). Accordingly, we must first determine whether defendant’s right to a speedy trial was
violated. The circuit court’s determination of whether a constitutional or statutory speedy trial
right has been violated is reviewed de novo. People v. Crane, 195 Ill. 2d 42, 52 (2001).
¶ 22 1. Statutory Right to a Speedy Trial
¶ 23 A defendant has a statutory right to a speedy trial. U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, § 8; 725 ILCS 5/103-5(a) (West 2018). Section 103-5(a) of the Code states, in
pertinent part,
“Every person in custody in this State for an alleged offense shall be tried by the
court having jurisdiction within 120 days from the date he or she was taken into
custody unless delay is occasioned by the defendant. *** Delay shall be
considered to be agreed to by the defendant unless he or she objects to the delay
by making a written demand for trial or an oral demand for trial on the record.”
725 ILCS 5/103-5(a) (West 2018).
“[S]ection 103-5(a) places the onus on a defendant to take affirmative action when he becomes
aware that his trial is being delayed.” Cordell, 223 Ill. 2d at 391. If a defendant does not object to
the delay of his trial, the delay is considered agreed to by defendant. Id. To invoke speedy trial
rights, defendant must make a clear objection and demand for trial. Id. Any delays where
defendant’s act caused or contributed to the delay will be calculated against defendant, and the
speedy trial time will be tolled. People v. Mayo, 198 Ill. 2d 530, 537 (2002). The court’s decision
as to the accountability for a delay will be upheld absent an abuse of discretion. People v.
Reimolds, 92 Ill. 2d 101, 107 (1982).
6
¶ 24 Here, defendant was taken into custody on August 20, 2018. The speedy trial clock began
on August 21, 2018. See People v. Pettis, 2017 IL App (4th) 151006, ¶ 20 (in calculating the
speedy trial period, we exclude the first day and include the last day). Defendant next appeared
in court on August 22, 2018. These two days are attributable to the State. See Mayo, 198 Ill. 2d
at 536 (holding that the statutory period begins to run automatically from the day defendant is
taken into custody, even without a formal demand).
¶ 25 Defendant argues the time frame of August 22 to September 11, 2018, as being
attributable to the State instead of defendant, but provides no argument as to why we should
attribute it to the State. From our review of the record, this delay is attributable to the defendant,
as defendant did not object to the continuance.
¶ 26 The main delay at issue in this case is the continuance on March 1 to May 7, 2019. On
March 1, when defense counsel did not object to the State’s motion to continue the trial,
defendant affirmatively objected and stated that he did not agree to continuing his case.
Defendant further stated on the record that he wanted to go to trial. “[W]here a defendant does
not promptly repudiate an attorney’s unauthorized act upon receiving knowledge of the same, the
defendant effectively ratifies the act.” People v. Hall, 194 Ill. 2d 305, 328-29 (2000).
Defendant’s objection caused the 63-day continuance to the next court date to be attributable to
the State, which is not properly accounted for in the circuit court docket.
¶ 27 The continuances from May 7 to August 26, 2019, are shown by the court docket to be
attributable to defendant, and there is nothing in the record to contradict this designation.
Moreover, even if we accept defendant’s argument that he did not ask for a continuance, we note
that the Cordell court held that if a defendant does not object or affirmatively assert a speedy
trial demand on the record after a delay is proposed, such defendant acquiesces to the delay and
7
the speedy trial period tolls. See Cordell, 223 Ill. 2d at 391-92. Defendant did not object or
affirmatively assert his speedy trial demand on the record during the status hearings during this
time. Therefore, the delay was at the very least by agreement, and the speedy trial period tolled.
¶ 28 Defendant also raises the time frame between August 26 and October 28, 2019. The State
asked for a continuance on August 26, 2019, due to the need to investigate defendant’s witnesses
that had been disclosed three days prior to the trial date. Even when defendant does not request
or agree to a continuance, the court may still attribute a delay to defendant if he or she is the
cause of the delay. See People v. Cross, 2021 IL App (4th) 190114, ¶ 99. In this instance, the
delay was caused by defendant when certain witnesses were disclosed only three days prior to
trial, giving the State little time to properly investigate. It is not an abuse of discretion for the
court to attribute the delay to defendant here, because of his late disclosure of discovery. See id.
¶ 29 In sum, though 434 days passed from the time defendant was arrested and he proceeded
to trial, only 89 days may be attributable to the State, well under the 120-day statutory speedy
trial limit. Defense counsel was not ineffective for failing to move for a statutory speedy trial
dismissal because no violation occurred.
¶ 30 2. Constitutional Right to a Speedy Trial
¶ 31 A criminal defendant also has a constitutional right to a speedy trial. U.S. Const., amends.
VI, XIV; Ill. Const. 1970, art. I, § 8. In determining whether the constitutional right has been
violated, no specific time period is used. Barker v. Wingo, 407 U.S. 514, 523 (1972). There are
four factors to consider when evaluating a constitutional speedy trial claim: (1) the length of
delay; (2) the reason for the delay; (3) defendant’s assertion to the right to a speedy trial; and
(4) the prejudice caused. People v. Campa, 217 Ill. 2d 243, 250 (2005). All factors must be
8
considered together to determine whether the right to a speedy trial has been violated. Barker,
407 U.S. at 533.
¶ 32 We find that while defendant clearly asserted his right to a speedy trial, that assertion
does not result in a violation of his constitutional right to a speedy trial when the other three
factors clearly do not support defendant’s arguments. First, defendant was tried and convicted of
second degree murder, and only 434 days passed between the date of arrest and the
commencement of trial. Considering the seriousness of the charge and the complexity of the
evidence, we find that a less than two-year delay is not unreasonable. See id. at 530-31 (finding
that longer delays may be tolerated for a serious and complex charge rather than an ordinary
charge with less preparation required).
¶ 33 The State’s reasons for requesting delays are also reasonable in this case. The State had
two primary requests for continuances, to finalize forensic testing and to investigate witnesses
that defendant had disclosed only three days prior to trial. These were not attempts to delay a
trial to hamper the defense, but valid reasons that justify the delays. See id.
¶ 34 Finally, while a defendant is certainly prejudiced by delays when he is incarcerated while
awaiting trial, the prejudice in this case was minimal. The record does not indicate that there was
any evidence lost due to the delay, nor were there any witnesses who could no longer testify due
to death or lapses in memory. The delay did not affect defendant’s ability to present his defense
at trial. We therefore find, after weighing all factors, that defendant’s constitutional speedy trial
right was not violated, and defense counsel was not ineffective for his decision not to raise the
issue.
9
¶ 35 B. Ineffective Assistance of Counsel
¶ 36 Defendant raises several other ineffective assistance of counsel claims, including that
defense counsel failed to: (1) file a motion in limine, (2) object to the State’s questioning of
certain witnesses, (3) engage in meaningful cross-examination against Humilier or to retain an
expert for the defense regarding the effects of the drugs found in George’s body, (5) tender a jury
instruction regarding the definition of reasonableness, and (6) address George’s drug use in
closing arguments. As set forth above, to prevail on an ineffective assistance claim, a defendant
must show that counsel rendered deficient performance and that the deficient performance
prejudiced the defendant. Strickland, 466 U.S. at 687. Prejudice is demonstrated where a
defendant shows that a reasonable probability exists that, but for the deficient performance, the
result of the trial would have been different. People v. Enis, 194 Ill. 2d 361, 376 (2000). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 669. Both prongs of the Strickland analysis must be proven; if a claim
fails under either prong, we need not determine whether the claim also fails under the other.
People v. Graham, 206 Ill. 2d 465, 476 (2003). Claims of ineffectiveness of counsel may be
rejected on prejudice grounds alone, “for lack of prejudice renders irrelevant the issue of
counsel’s performance.” People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).
¶ 37 Actions that are considered matters of trial strategy are accorded great deference by the
court and “are generally immune from claims of ineffective assistance of counsel.” People v.
West, 187 Ill. 2d 418, 432 (1999). A defendant is entitled to competent representation, not perfect
representation. People v. Tucker, 2017 IL App (5th) 130576, ¶ 26. “[E]ven if defense counsel
makes a mistake in trial strategy or tactics or an error in judgment, this will not render
representation constitutionally defective.” People v. Perry, 224 Ill. 2d 312, 355 (2007). In such
10
cases where a defendant argues ineffective assistance due to mistakes in trial strategy, he must
overcome the strong presumption that counsel’s action constituted reasonable strategy. People v.
Clendenin, 238 Ill. 2d 302, 317 (2010). A reviewing court evaluates counsel’s conduct under the
totality of the circumstances. Tucker, 2017 IL App (5th) 130576, ¶ 54.
¶ 38 Defendant challenges several specific instances of counsel’s alleged failures. We evaluate
each claim in turn.
¶ 39 First, defendant claims counsel was deficient for failing to file a motion in limine or to
otherwise object to the admission of hearsay comments during Humilier’s testimony regarding
the effects of PCP in the reference comments of the toxicology report. However, section 115-5.1
of the Code provides that “pathologist’s protocol, autopsy reports and toxicological reports, shall
be public documents and thereby may be admissible as prima facie evidence of the facts,
findings, opinions, diagnoses and conditions stated therein.” 725 ILCS 5/115-5.1 (West 2018).
The extent of Humilier’s testimony outlined the drugs listed in the toxicology report and how
this information aided him in performing George’s autopsy. This information is clearly
admissible under section 115-5.1. Further, defense counsel could not have provided deficient
performance here, because he did in fact object to the admission of the report, and it was
admitted over his objection. Defendant also cannot prove he was prejudiced by defense counsel’s
decision not to argue further or to file a motion in limine to argue the issue, because any further
arguments would have failed.
¶ 40 Defendant next claims counsel should have retained an independent expert for trial to
testify to the effects of the drugs found in George’s body at the time of his death to further his
argument that George was aggressive, and defendant was acting in self-defense. The decision of
whether to call a witness is a matter of trial strategy that is left up to trial counsel. West, 187 Ill.
11
2d at 432. While another attorney may have retained an expert, defense counsel is not deficient
simply because he chose not to do so. See People v. Young, 341 Ill. App. 3d 379, 383 (2003)
(finding that another attorney’s hindsight is not sufficient to show deficient performance).
¶ 41 Defendant also argues counsel did not engage in a meaningful cross-examination of
Humilier. Specifically, defendant contends counsel should have questioned Humilier regarding
the effects PCP, marijuana, and cocaine could have had on George’s behavior. Defendant
challenges the scope and manner of counsel’s cross-examination, an area that falls under trial
strategy and cannot sustain an ineffectiveness claim. See People v. Munson, 206 Ill. 2d 104, 139-
40 (2002) (decisions regarding what witnesses and evidence to present and the extent of cross-
examination are matters of trial strategy that is generally unchallengeable); People v. Williams,
246 Ill. App. 3d 1025, 1035 (1993) (“any allegations of incompetency of counsel in regards to
cross-examination are questions of trial strategy *** and, as such, are not subject to review by a
reviewing court”).
¶ 42 A review of the record shows that trial counsel effectively handled Humilier’s cross-
examination, and we cannot say that counsel’s approach was objectively unreasonable. Extensive
cross-examination could cause undue attention to unwanted aspects of a witness’s testimony, and
counsel is given substantial deference to exercise his professional judgment not to create
negative attention to defendant’s case. People v. Holman, 132 Ill. 2d 128, 163 (1989). Defense
counsel questioned Humilier as to his knowledge of the drugs listed on the toxicology report, and
Humilier testified that he did not perform the testing and was merely stating what was listed in
the report. He repeatedly stated that he did not have any further knowledge of the drugs than
what was in the report and that he only used the information to aid in the performance of the
autopsy. Further, the court already determined that Humilier was not an expert qualified to
12
provide opinions on the effects of drugs on a person’s behavior, making any questioning
regarding that topic meaningless. While, in hindsight, defendant may contend that certain
questions should have been asked or other tactics employed, we cannot say that counsel failed to
conduct any meaningful questioning that rises to the level of ineffective assistance of counsel.
¶ 43 Moreover, even if we were to find deficient performance based on counsel’s choice not to
impeach Humilier or to retain an independent expert witness, defendant suffered no prejudice
from that choice. In order to establish prejudice, defendant must show that there is a reasonable
probability that the result of the trial would have differed if not for trial counsel’s error. Perry,
224 Ill. 2d at 342. Defendant has not and cannot establish that failure to question Humilier
regarding the effects of PCP in a person’s blood would have resulted in a different outcome at
trial when Humilier was not qualified to give such an opinion.
¶ 44 Next, defendant argues ineffective assistance where defense counsel did not object to the
State’s manner of cross-examination of defendant. Decisions regarding what to object to and
when to do so are also matters of trial strategy and thus entitled to great deference. People v.
Pecoraro, 175 Ill. 2d 294, 327 (1997). Because counsel may only be ineffective when his
performance falls below the standards of reasonableness, counsel is not deficient for failing to
object when an objection would be improper. People v. Johnson, 218 Ill. 2d 125, 139 (2005). We
find that defense counsel’s decision not to object to the manner of cross-examination was a
matter of trial strategy and did not rise to the level of constitutionally deficient performance. It is
arguable that such an objection may result in the State reexamining defendant and drawing more
attention to the inconsistencies in his statements. Though counsel’s strategy was ultimately
unsuccessful, a trial strategy that is unsuccessful does not constitute deficient performance. See
Perry, 224 Ill. 2d at 355.
13
¶ 45 Defendant’s argument that counsel was ineffective for failing to tender IPI Criminal No.
4.13, on the definition of reasonable belief, when it is an element of his self-defense claim also
fails. The decision to omit the jury instruction is not so fundamental as to result in an unfair trial
or prejudice when the jury is properly instructed on everything else. See People v. Underwood,
72 Ill. 2d 124, 130-31 (1978). The jury received all other instructions relating to the elements of
self-defense, therefore, there was no error in not providing an instruction defining “reasonable
belief.”
¶ 46 Defendant’s last ineffective assistance claim is that counsel should have more clearly
argued at closing that the drugs found in George’s body made him aggressive and necessitated
defendant stabbing him in self-defense. Counsel argued that defendant acted in self-defense, but
not solely because of the drugs George used. It is not unreasonable for an attorney to only attack
one element of the State’s case. People v. Milton, 354 Ill. App. 3d 283, 290 (2004). “[T]he
choice of defense theory is ordinarily a matter of trial strategy, and counsel has the ultimate
authority to decide this trial strategy.” People v. Guest, 166 Ill. 2d 381, 394 (1995). In his closing
argument, defense counsel chose to focus on the fact that the State’s witnesses were not present
during the fight and did not know how George was stabbed. Discussing the drugs found in
George’s body in detail was clearly a part of a defense theory that trial counsel decided not to
pursue, and the failure to discuss it does not amount to deficient performance.
¶ 47 Finally, defendant claims that his trial counsel’s errors cumulatively deprived him of a
fair trial. To reverse for a new trial, the court must find that the errors are extreme in nature.
People v. Sims, 2019 IL App (3d) 170417, ¶ 55. However, we have already found that none of
the circuit court’s findings regarding trial counsel’s representation are manifestly erroneous.
14
Where, as here, the alleged errors do not amount to reversible error on any individual issues,
there is no cumulative error. People v. Howell, 358 Ill. App. 3d 512, 526 (2005).
¶ 48 C. Independent Counsel for Krankel Hearing
¶ 49 Defendant next argues that the circuit court erred by not appointing independent counsel
at the conclusion of the Krankel hearing. He contends that the trial court incorrectly rejected his
arguments that trial counsel was ineffective.
¶ 50 When a defendant raises, as a self-represented litigant, a posttrial ineffective assistance of
counsel claim, the circuit court must conduct a preliminary Krankel inquiry into the claim’s
factual basis. People v. Jolly, 2014 IL 117142, ¶ 29. The purpose of a preliminary Krankel
inquiry is to decide whether to appoint independent counsel to argue a defendant’s ineffective
assistance of counsel claims. People v. Ayres, 2017 IL 120071, ¶ 11. The procedure developed
from our supreme court decision in Krankel and its progeny. See Krankel, 102 Ill. 2d at 181.
When a defendant raises such a claim, the circuit court is to conduct an adequate inquiry into the
factual basis of the claim. People v. Jackson, 2020 IL 124112, ¶¶ 95-97. Our supreme court has
further clarified that newly appointed counsel is not automatically required in every case where a
defendant presents a posttrial motion as a self-represented litigant alleging ineffective assistance
of counsel. People v. Moore, 207 Ill. 2d 68, 77 (2003). If the court determines that the claim
“lacks merit or pertains only to matters of strategy,” it may dismiss defendant’s claims without
appointing new counsel. Jackson, 2020 IL 124112, ¶ 97. If the defendant’s allegations show
possible neglect of the case, new counsel should be appointed to represent the defendant in his or
her claims of ineffective assistance of counsel. Id.
¶ 51 We review de novo whether the court conducted a proper Krankel hearing to determine if
new counsel must be appointed. People v. Robinson, 2017 IL App (1st) 161595, ¶ 88. Where a
15
proper Krankel hearing was conducted, the court’s finding that it was not necessary to appoint
new counsel will not be disturbed on appeal unless it is manifestly erroneous. People v. Haynes,
331 Ill. App. 3d 482, 484 (2002).
¶ 52 We first note that defendant cites People v. Roddis, 2018 IL App (4th) 170605, ¶ 81, to
support his argument that the circuit court erred by deciding the merits of defendant’s ineffective
assistance of counsel claim at the initial Krankel hearing. However, in January 2020, our
supreme court reversed this decision, finding that, even during a preliminary Krankel hearing, it
is necessary for the trial court to consider the merits before determining whether new counsel
should be appointed. People v. Roddis, 2020 IL 124352, ¶ 61. Defendant’s reliance on this case
is therefore misplaced.
¶ 53 Here, the court held a hearing regarding defendant’s allegations. During the hearing, the
court provided defendant an opportunity to address his claims, heard defendant list each instance
of alleged ineffective assistance, and relied on its own trial observations. The court therefore
addressed the facts and circumstances surrounding defendant’s claims of ineffective assistance.
Consequently, we find the hearing constituted a proper preliminary inquiry under Krankel.
¶ 54 Having found that the court conducted a proper preliminary inquiry, the next question is
whether the inquiry demonstrated possible neglect such that the appointment of new counsel is
necessary. Defendant does not appear to have presented the court with any valid arguments on
the claims. As noted above, we find defendant’s claims against defense counsel lack merit, as
they raised issues of trial strategy that “ultimately rest with trial counsel” and are “generally
immune from claims of ineffective assistance of counsel.” People v. Wilborn, 2011 IL App (1st)
092802, ¶ 79. As we have found defendant did not receive ineffective assistance of counsel, we
cannot say that the circuit court’s finding was against the manifest weight of the evidence.
16
¶ 55 III. CONCLUSION
¶ 56 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee
County.
¶ 57 Affirmed.
17 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484768/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BELINDA WHEELER, individually and on
behalf of all others similarly situated, Civil Action No. 22-00763 (BAH)
Plaintiff, Chief Judge Beryl A. Howell
v.
PANINI AMERICA, INC.
Defendant.
MEMORANDUM OPINION
Plaintiff Belinda Wheeler is an unhappy customer. She purchased several trading card
boxes from defendant Panini America, Inc., a trading card company, with the hopes of entering
the defendant’s contest, or “lottery”, to potentially win a rare, extremely valuable trading card.
Indeed, on the outside of defendant’s trading card boxes is a notice that reads “No Purchase
Necessary” to participate in the lottery—but to read the instructions about how to enter defendant’s
contest, she had to purchase and open the trading card box. Had she been able to read the
instructions for defendant’s contest on the outside of the product prior to purchasing it, plaintiff
claims she would never have bought it in the first place.
Plaintiff now brings this putative class action against defendant, alleging violations of
federal, D.C., and various other states’ consumer protection laws. Defendant moved to dismiss
for lack of subject matter jurisdiction and failure to state a claim. For the reasons below, plaintiff’s
Complaint is dismissed with prejudice for lack of jurisdiction.
I. BACKGROUND
Defendant is a trading card company that specializes in sports trading cards. Compl. ¶ 1,
ECF No. 1; Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 6, ECF No. 8. Defendant has exclusive
licenses with major athletes and sports leagues in the United States, Compl. ¶ 47, to sell trading
1
cards to consumers at third-party retail stores, big box stores, department stores, hobbyist or card
stores, and defendant’s own website. Id. ¶ 49.
Trading card companies like defendant use a variety of methods to increase demand in their
products, including the use of redemption cards, which is the method at issue in this lawsuit.
Compl. ¶ 8. When following this strategy, companies, as a general matter, will include instructions
on each pack that allows its holder, through use of a special code and a redemption card in the
trading card pack, to potentially win a random specialty card. See id. ¶ 9. Trading card companies
tout the special nature and rarity of these specialty cards that entrants could win, even noting that
the specialty card could be signed by an athlete or entertainer. Id. ¶ 11. The product’s packaging
highlights the ability to win a specialty card, and such cards can range in value from $1.00 to
$50,000.00. Id. ¶ 12.
Included in the defendant’s product arsenal are the redemption card packs described above.
Id. ¶ 13. Multiple packs are sometimes sold within a single box. For example, one of defendant’s
products is the “Flux 2020-2021 Inaugural Edition” trading card box, which notes the inclusion of
redemption cards through statement such as “3 Cards Per Pack,” “6 Packs Per Box,” and “2 Blaster
Exclusive Mojo Prizms! per box, on average[.]” Id. ¶ 18. The boxes look like this:
2
Id. The fine print at the bottom on the front of the box states, “NO PURCHASE NECESSARY –
See Pack for Details[,]” but the side and other panels of the product do not include those
instructions. Id. ¶¶ 18-19. Instead, the “No Purchase Necessary” (“NPN”) instructions are located
on the trading card packs inside the box, as shown by this graphic:
Id. ¶ 21. The instructions read as follows:
NO PURCHASE NECESSARY: Open only to U.S./Canadian (except Quebec)
residents. For chance to obtain any of the cards listed above, at the same odds, hand
print your name and complete address on a 3 x 5 card and mail in a #10 envelope
to: Panini America Inc., NPN, 2020-21 Panini Flux Basketball, 5325 FAA Blvd.,
Suite 100, Irving, TX 75061-3601. Canadian entrants must also correctly answer
the following mathematical skill-testing question on the 3 x 5 card: 663 + 422 ÷
211 x 812 – 180 = ? Limited to two entries per household. Only one card per
envelope, mailed separately, postmarked by 1/5/22 and received by 1/12/22 will be
accepted. No metered mail. All non-complying entries will be disqualified.
Random drawings on or about 1/26/22. Persons selected will receive card(s) via
mail within three weeks from drawing date. List of persons selected available upon
written request. This offer only available while supplies last.
Id.; see also Def.’s Mot. at 8.
Without reading the instructions, consumers could not enter defendant’s contest to obtain
redemption cards, with the result that they must first purchase the trading card box to enter. Id. ¶
23. Nor could someone who wishes to read the fine print purchase the box, read the instructions,
and return the product, because merchants do not allow customers to return opened trading card
merchandise. Id. ¶ 22.
3
Plaintiff is one of those customers. She purchased the defendant’s trading card boxes on
one or more occasions at various retail stores in the Washington Metropolitan Area and elsewhere
on the eastern coast of the United States between 2021 and 2022. Id. ¶ 50. Plaintiff believed that
purchasing the trading card box was necessary to gain entry to the defendant’s contest and gave
the purchaser a greater chance at winning the specialty cards. Id. ¶ 51. By requiring customers to
purchase the trading card boxes prior to reading the NPN instructions, plaintiff alleges that
“consumers are misled to purchase items they otherwise would not have to, at higher prices.” Id.
¶ 22. Indeed, had she known that those representations and omissions were false, plaintiff says
she would not have purchased defendant’s products. Id. ¶ 54.
Plaintiff sued defendant on March 21, 2022, individually and on behalf of all others
similarly situated who wanted to enter the defendant’s NPN contests without purchasing its trading
cards, alleging violations of the District of Columbia Consumer Protection Procedures Act
(“CPPA”), D.C. CODE § 28-3901 et seq., and the consumer protection laws of Texas, Kansas,
North Dakota, Arkansas, Iowa, Utah, West Virginia, Virginia, South Carolina, Georgia, Alabama,
Kentucky, Idaho, Alaska, Hawaii, New Mexico, Maine, and Montana, Compl. ¶¶ 67-77, breaches
of warranty under the Magnuson-Moss Warranty Act (“MMWA”), see 15 U.S.C. § 2301 et seq.,
Compl. ¶¶ 78-93, and unjust enrichment under the MMWA. Id. ¶ 94. Plaintiff seeks monetary
and injunctive relief, expenses, and reasonable attorneys’ fees. Id. at 13-14, Prayer for Relief,
¶¶ 2-6.
Defendant moved to dismiss, with prejudice, on June 10, 2022, pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). See Def.’s Mot. at 4, 12. The parties completed their
briefing in July 2022, see Def.’s Reply Br. Supp. Mot. To Dismiss (“Def.’s Reply”), ECF No. 18,
so defendant’s motion is now ripe for resolution.
4
II. LEGAL STANDARD
In evaluating a motion to dismiss for lack of subject-matter jurisdiction, under Federal Rule
of Civil Procedure 12(b)(1), federal courts must be mindful that they “are courts of limited
jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton,
568 U.S. 251, 256 (2013) (internal quotation marks omitted) (quoting Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting
beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and,
therefore, “have an affirmative obligation to consider whether the constitutional and statutory
authority exist for us to hear each dispute.” James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092
(D.C. Cir. 1996) (internal quotation marks omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974
F.2d 192, 196 (D.C. Cir. 1992)).
Article III of the Constitution restricts the power of federal courts to hear only “Cases” and
“Controversies.” U.S. CONST. art. III, § 2, cl. 1; see also Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 661 (D.C. Cir. 1996) (en banc) (“Article III of the Constitution limits the jurisdiction of
federal courts to ‘actual cases or controversies between proper litigants.”). “The doctrine of
standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are
appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 573 U.S.
149, 134 (2014) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). Absent standing by the plaintiff, the court lacks subject-matter jurisdiction to hear the
claim, and dismissal is mandatory. See FED. R. CIV. P. 12(h)(3).
When the plaintiff's standing is challenged, the court “must assume that [the plaintiff] states
a valid legal claim.” Info. Handling Servs., Inc. v. Def. Auto. Print. Servs., 338 F.3d 1024, 1029
(D.C. Cir. 2003). In such cases, the plaintiff bears the burden of “show[ing] a substantial
probability that [he or she has] been injured, that the defendant caused [his or her] injury, and that
the court could redress that injury.” Carbon Sequestration Council v. EPA, 787 F.3d 1129, 1133
5
(D.C. Cir. 2015) (internal quotation marks omitted) (quoting Sierra Club v. EPA, 292 F.3d 895,
899 (D.C. Cir. 2002)); see also Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).
“Each element of standing must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (alterations
omitted) (quoting Lujan, 504 U.S. at 561). Thus, the court must “accept the well-pleaded factual
allegations as true and draw all reasonable inferences from those allegations in the plaintiff's
favor.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
III. DISCUSSION
Defendant raises two grounds for dismissal of this putative class action. First, defendant
argues that plaintiff’s complaint should be dismissed for lack of subject matter jurisdiction because
plaintiff has not alleged any injury-in-fact. Def.’s Mot. at 5. Second, defendant contends, in the
alternative, that plaintiffs fail to state a claim because plaintiff’s alleged injury—forcing potential
entrants to purchase defendant’s trading card boxes in order to enter defendant’s NPN contest—is
not a cognizable claim for damages under federal and state law. Id. at 12–16.
For the reasons outlined below, plaintiff lacks Article III standing to raise her claims, so
this Court lacks jurisdiction to address the merits, and any amendment would prove futile. 1
Accordingly, her claims are dismissed with prejudice.
A. Plaintiff Lacks Standing to Bring her Claims.
Defendant raises the argument that plaintiff lacks Article III standing to bring her claims.
See Def.’s Mot. at 2–3 (nominally arguing that the plaintiff lacks Article III standing such that the
Court lacks subject matter jurisdiction); cf. id. at 4–18 (focusing the argument on plaintiff’s failure
1
The D.C. Circuit has held that a district court cannot address the merits upon determining that subject matter
jurisdiction is lacking. Hancock v. Urb. Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016) (“The district court erred
at the outset when it bypassed the jurisdictional question of [plaintiff’s] standing and dove into the merits of this case.
In doing so, the district court stepped where the Constitution forbade it to tread.”). Since plaintiff cannot satisfy
Article III standing, whether plaintiff fails to state a claim is an issue that need—and should—not be reached.
6
to state a claim upon which relief can be granted, rather than that plaintiff has not suffered an
injury-in-fact within the meaning of Article III). Plaintiff points out in her opposition the relative
dearth of briefing by defendant on the critical subject matter problem raised. See Pl.’s Opp’n to
Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 16, ECF No. 16 (quoting Def.’s Mot. at 1, 11) (“Under
the guise of Rule 12(b)(1), Defendant asserts that Plaintiff’s ‘disappointment’ she was forced to
participate in its ‘illegal lottery’ is not sufficient to ‘allege[]d an injury in fact.’”).
Defendant’s briefing focus is irrelevant, however: “When there is doubt about a party’s
constitutional standing, the court must resolve the doubt, sua sponte if need be.” Bauer v.
Marmara, 774 F.3d 1026, 1029 (D.C. Cir. 2014) (cleaned up) (emphasis in original); accord
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (quotation marks and citation omitted)
(dismissing suit for lack of standing even though issue was not addressed by court below and
noting that courts “have an obligation to assure [themselves] of litigants’ standing under Article
III”). Indeed, “[f]ederal courts cannot address the merits of a case until jurisdiction—the power to
decide—is established.” Hancock, 830 F.3d at 513.
To establish Article III standing, plaintiff must allege sufficient facts to show the following:
(1) an “injury in fact” that is “concrete and particularized,” Lujan, 505 U.S. at 560; (2) an injury
that is “actual or imminent, not conjectural or hypothetical[,]” id.; and “a causal connection
between the injury and the conduct complained of,” and “a likelihood that a court ruling in
[plaintiffs’] favor would remedy their injury[,]” id. Defendant says that plaintiff cannot satisfy
Article III’s “injury in fact” requirement. See Def.’s Mot. at 6. Defendant is right.
To begin, plaintiff’s causes of action alleging defendant’s violations of various state and
federal consumer protection laws all stem from the same factual allegation—namely, that
defendant prints the NPN notice outside the box, with the participation instructions inside the
individual packs of cards, rather than on the outside of the box—meaning that “potential entrants
to the contest are required to purchase the Product” to enter the contest. Compl. ¶ 21. Plaintiff
7
thus suggests that she only purchased the trading card boxes to enter defendant’s NPN drawing,
not to purchase the cards themselves, see id. ¶ 51, 54, despite the fact that she made such purchase
more than once over a fairly lengthy period of time and presumably would have been aware of the
need to read the NPN instructions inside the box after the first purchase. Defendant’s conduct
purportedly violated sections of the CPPA, the MMWA, and constitutes unjust enrichment.
First, subsections (a), (b), (d), and (e–1) of the CPPA proscribe persons from representing
that the goods, services, or persons, have certain qualities that they do not possess. D.C. CODE
§ 28–3904(a), (b), (d), (e–1). Subsection (s) forbids “pass[ing] off goods or services as those of
another.” Id. § 28–3904(s). And subsections (e), (f), and (f–1) prohibit making representations or
omissions “as to a material fact” when those representations or omissions have “a tendency to
mislead.” Id. § 28–3904(e), (f), (f–1). Under the CPPA, “a statement or ‘omission is material if a
significant number of unsophisticated consumers would find that information important in
determining a course of action.’” Mann v. Bahi, 251 F. Supp. 3d 112, 126 (D.D.C. 2017) (quoting
Saucier v. Countrywide Home Loans, 64 A.3d 428, 442 (D.C. 2013)). Under plaintiff’s theory,
defendant violated the CPPA because the NPN notice on the outside of the trading card box made
her mistakenly believe did not have to purchase anything to enter the defendant’s NPN lottery.
See Pl.’s Opp’n at 8.
Plaintiff’s warranty claims under the MMWA claims rest on a similar theory of material
misrepresentation. “The Magnuson-Moss Act was promulgated to increase consumer rights and
protections by imposing minimum standards for manufacturers’ warranties and by providing
various avenues for consumer redress.” Abedrabbo v. Topps Meat Co., LLC, 756 F. Supp. 2d 18,
21 (D.D.C. 2010) (quotation marks omitted). The Act confers upon consumers a private cause of
action for (a) violations of the substantive provisions of the Act, and (b) breaches of a written or
implied warranty. 15 U.S.C. § 2310(d)(1). Although plaintiff’s opposition is difficult to decrypt,
she seems to allege defendant violated the MMWA by selling a “defect[ive]” product because it
8
falsely included a NPN notice on the outside of the box when, to enter the contest, plaintiff was in
fact required to purchase the defendant’s product to see the full NPN instructions. See Compl.
¶ 26.
Finally, plaintiff’s unjust enrichment claim is based on the same underlying theory of harm.
Under D.C. law, “[u]njust enrichment occurs when: (1) the plaintiff conferred a benefit on the
defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the defendant’s
retention of the benefit is unjust.” News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218, 1222
(D.C. 2005). Plaintiff reasons that she was forced to buy defendant’s product to enter the NPN
contest despite the NPN notice on the outside of the product, that plaintiff only sought to enter the
contest, and that defendant retained the benefit (the value of the product), thereby unjustly
enriching defendant. See, e.g., In re APA Assessment Fee Litig., 766 F.3d 39, 46–47 (D.C. Cir.
2014) (“[D]efendants [allegedly] included misleading language on the dues statement in order to
deceive plaintiffs into overpaying for APA membership. Plaintiffs seek recovery of the alleged
overpayments.”).
None of these theories for relief are premised on a concrete injury. First, plaintiff says that
she suffered a “cognizable overpayment injury” because defendant omitted putting the NPN
instructions on the outside of the box, fraudulently inducing her to buy its product to participate in
the NPN lottery, see Pl.’s Opp’n at 4, but her naked allegation is unpersuasive. As multiple federal
courts have held, plaintiff paid the purchase price for the value of the box of cards—not for the
ability to enter the NPN lottery—so she got exactly what she paid for. See Chaset v. Fleer/Skybox
Intern., LP, 300 F.3d 1083, 1087 (9th Cir. 2002) (“At the time the plaintiffs purchased the package
of cards, which is the time the value of the package should be determined, they received value—
eight or ten cards, one of which might be an insert card—for what they paid as a purchase price.”);
Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998) (“[P]laintiffs received a pack of
trading cards for their money; they got exactly what they paid for and they do not and cannot allege
9
otherwise.”) (quotation marks and alterations omitted); Austin-Spearman v. AARP Servs. Inc., 119
F. Supp. 3d 1, 14 (D.D.C. 2015) (J. Jackson, K.B.) (“[C]onclusory statements regarding a plaintiff's
own beliefs and expectations are not sufficient to support an alleged ‘overpayment’ injury; rather,
a plaintiff must allege facts that demonstrate that the breached term was objectively essential to
the contract at issue, such that the violation effectively robbed the plaintiff of her payment because
what she received was not what the parties agreed she had purchased.”). Apart from her wholly
unsupported statement that the NPN lottery was the reason she purchased defendant’s trading card
box—apparently on more than one occasion—plaintiff does not even attempt to distinguish these
cases and alleges no other facts to support her overpayment theory, so that argument fails.
That leads to plaintiff’s second theory of harm: that she suffered the procedural violation
of not being able to see the NPN instructions on the box before she purchased it. See Pl’s Opp’n
at 4 (arguing that plaintiff, at least, suffered the deprivation of the statutory right to be free from
improper trading practices). Even assuming that defendant’s failure to put the NPN instructions
on the outside of the box, as opposed to on the individual packs of cards, amounts to statutory
violations of D.C. and federal law, that injury is too abstract to satisfy Article III standing’s injury-
in-fact requirement.
Two binding decisions support this result. For starters, in TransUnion LLC v. Ramirez, the
Supreme Court recently held that, even if Congress enacted a statutory prohibition on certain
conduct, that injury does not automatically satisfy Article III’s standing requirement because “an
injury in law is not an injury in fact.” 141 S. Ct. 2190, 2205 (2021). “An uninjured plaintiff who
sues in those circumstances is, by definition, not seeking to remedy any harm to herself but is
merely seeking to ensure a defendant’s compliance with regulatory law.” Id. at 2206 (quotation
marks omitted). To determine whether a statutory infraction amounts to a concrete injury under
Article III, the TransUnion Court explained that the harm must bear “a close relationship to harms
traditionally recognized as providing a basis for lawsuits in American courts.” Id. at 2204.
10
With these principles in mind, the Supreme Court evaluated the claims of three sets of
plaintiffs in a class action brought under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681 et seq. The first set of plaintiffs alleged that the defendant failed to “follow reasonable
procedures to assure maximum possible accuracy of the plaintiffs’ credit files maintained by” the
defendant in their credit reports, in violation of 15 U.S.C. § 1681e(b), and the publication of those
reports bore misleading alerts that plaintiffs were potential terrorists. Id. at 2204 (quotation marks
omitted). These class members suffered a “reputational harm associated with the tort of
defamation[,]” that the Court determined amounted to a concrete injury in fact under Article III.
Id. at 2208–09. The second set of plaintiffs alleged the same claim, but their credit reports were
not disseminated to third parties; the defendant simply internally maintained inaccurate records in
those plaintiffs’ internal credit files. Id. at 2210. (“In cases such as these where allegedly
inaccurate or misleading information sits in a company database, the plaintiffs’ harm is roughly
the same, legally speaking, as if someone wrote a defamatory letter and then stored it in her desk
drawer.”). The Court concluded that these plaintiffs lacked the concrete harm of having their
inaccurate information published to third parties and thus could not satisfy Article III’s injury-in-
fact requirement. Id. at 2211.
The third set of plaintiffs, who claimed that the defendant violated 15 U.S.C.
§§ 1681g(a)(1), 1681g(c)(2) by sending them inaccurate and incomplete credit files upon request,
also could not demonstrate that the defendant’s statutory violations of the FCRA “caused them a
harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit
in American courts.” Id. at 2213. The plaintiffs presented no evidence that class members “opened
the mailings or that “they were confused distressed, or relied on the information in any way.” Id.
(quotation marks omitted). Without any evidence of harm from the inaccurate mailings, the
plaintiffs flunked the injury-in-fact requirement because they had only demonstrated “bare
procedural violations, divorced from any concrete harm.” Id. Similarly, here, plaintiff got what
11
she paid for: a box of cards, so any disappointment in the NPN notice on the outside of the box is
simply that—a disappointment which falls short of an injury-in-fact.
Hancock v. Urban Outfitters, Inc. is also instructive. In that case, the plaintiffs brought a
class action alleging violations of the District of Columbia’s Use of Consumer Identification
Information Act, D.C. CODE § 47–3151 et seq., which provides in relevant part that “no person
shall, as a condition of accepting a credit card as payment for a sale of goods or services, request
or record the address or telephone number of a credit card holder on the credit card transaction
form.” Id. § 47-3153. Specifically, plaintiffs claimed that when they made a credit card purchase
at the defendant’s store, the cashier asked for their zip codes and entered it into the store’s point
of sale register, rather than into the credit card machine. Hancock, 830 F.3d at 512. The D.C.
Circuit held that the complaint could not “get out of the starting gate” because plaintiffs failed to
allege they “suffered any cognizable injury as a result of the zip code disclosures.” Id. at 514.
Indeed, the plaintiffs’ “naked assertion that a zip code was requested and recorded without any
concrete consequence” was divorced from any real harm, such as an “invasion of privacy,
increased risk of fraud or identity theft, or pecuniary or emotional injury.” Id. In short, the
plaintiffs could not satisfy Article III’s injury-in-fact requirement.
Plaintiff’s “injury” here is no different from the second and third set of plaintiffs in
TransUnion and those in Hancock. Just as the mere maintenance of inaccurate and incomplete
credit files and sending of those files to plaintiffs in TransUnion could not manifest an Article III
injury-in-fact, so too can defendant’s failure to include the NPN instructions on the outside of the
trading card box not have caused plaintiff “a harm traditionally recognized as providing a basis for
a lawsuit in American courts.” 141 S. Ct. at 2213. Nor is plaintiff’s injury of not receiving the
NPN instructions prior to purchasing defendant’s trading boxes any different from the Hancock
defendant’s conduct in verbally requesting customers’ zip codes: In both cases, the plaintiffs
suffered bare informational and procedural violations of D.C. law devoid of any concrete harm.
12
Plaintiff’s last-ditch effort to support her claim for subject matter jurisdiction is limited to
her claim for injunctive relief. She says that because she seeks injunctive relief, and she alleges
that she plans on purchasing defendant’s trading card boxes in the future “with the assurance [that]
the [defendant’s] representations [on its trading card boxes] about the [NPN] contests are fair and
lawful[,]” she has alleged an injury-in-fact. Pl.’s Opp’n at 11.
Plaintiff’s argument goes nowhere—for several reasons. Even if plaintiff is right, her
argument would only support her claim to standing for her claims for injunctive relief, not her
claims for damages, because she must prove standing for each claim of relief. See TransUnion,
141 S. Ct. at 2208 (“[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate
standing for each claim that they press and for each form of relief that they seek (for example,
injunctive relief and damages).”). Injunctive relief also would not support subject matter
jurisdiction for plaintiff’s state law claims under the Class Action Fairness Act of 2005, 28 U.S.C.
§ 1332(d)(2), because plaintiff has not demonstrated that the aggregate amount in controversy
would exceed $5 million for pure claims of injunctive relief. See Sloan v. Soul Circus, Inc., No.
CV 15-01389 (RC), 2015 WL 9272838, at *10–11 (D.D.C. Dec. 18, 2015) (concluding that the
court lacked subject matter jurisdiction over a state law injunction claim predicated on injunctive
relief because even if injunctive costs could be included, plaintiff failed to specify how those costs
alone would satisfy the amount-in-controversy requirement).
As for plaintiff’s MMWA claim, which arises under federal law, see 28 U.S.C. § 1331,
plaintiff does not have standing to bring her claim for injunctive relief because her injury-in-fact
is entirely manufactured. Nowhere does she state or explain how she will suffer a future injury by
defendant’s failure to put NPN instructions on the outside of the trading card boxes. See Clapper
v. Amnesty Int’s. USA, 568 U.S. 398, 401–02 (2013) (“[Plaintiffs’] theory of future injury is too
speculative to satisfy the well-established requirement that threatened injury must be ‘certainly
impending.’”). Nor could she: Such an injury, which is premised on a breach of warranty, can
13
only occur after plaintiff purchases the product, not if she intends to in the future. The MMWA
statute itself supports this conclusion because it authorizes private plaintiffs the right to bring a
private right of action only for damages; injunctive relief is left to governmental actors. See 15
U.S.C.A. §§ 2310(c), (d) (allowing private plaintiffs the ability to bring a “[c]ivil action . . . for
damages,” while authorizing the federal government to bring “[i]njunction proceedings . . . for
deceptive warranty, noncompliance with requirements, or violating prohibitions”). At bottom,
plaintiff cannot clear the Article III “Cases”-and-“Controversies” hurdle.
B. Plaintiff’s Complaint Must Be Dismissed with Prejudice.
Plaintiff lacks Article III standing to bring any of her claims, so her complaint must be
dismissed for lack of subject matter jurisdiction. The only question that remains is if the complaint
should be dismissed with or without leave to amend.
Dismissal with prejudice is warranted here. Although “a court should freely give [a party]
leave” to amend its pleadings “when justice so requires,” a court should deny leave to amend when
the amendment, if granted, would be futile. FED. R. CIV. P. 15(a); see also Hettinga v. United
States, 677 F.3d 471, 480 (D.C. Cir. 2012) (“A district court may deny a motion to amend a
complaint as futile if the proposed claim would not survive a motion to dismiss.”). In no world
can plaintiff satisfy Article III standing for her claims for damages because, as described above,
her purported injury is too abstract under binding caselaw. Furthermore, plaintiff would not be
able to adduce facts to satisfy subject matter jurisdiction for her claims premised on injunctive
relief for the reasons already explained above. Plaintiff offers no explanation as to why
amendment would be beneficial here, see Pl.’s Opp’n at 12, and, accordingly, the complaint must
be dismissed without leave to amend.
14
IV. CONCLUSION
For the above reasons, plaintiff’s Amended Complaint is dismissed with prejudice.
Date: November 17, 2022
__________________________
BERYL A. HOWELL
Chief Judge
15 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484773/ | COURT OF CHANCERY
OF THE
SAM GLASSCOCK III
VICE CHANCELLOR
STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: August 23, 2022
Date Decided: November 17, 2022
Eric D. Selden, Esquire P. Clarkson Collins, Jr., Esquire
Anthony M. Calvano, Esquire K. Tyler O’Connell, Esquire
Ross Aronstam & Moritz LLP Samuel E. Bashman, Esquire
1313 North Market Street, Suite 1001 Morris James LLP
Wilmington, Delaware 19801 500 Delaware Avenue, Suite 1500
Wilmington, Delaware 19801
RE: Sorenson Impact Foundation v. Continental Stock Transfer &
Trust Company, C.A. No. 2021-0413-SG
Dear Counsel:
This matter involves the diversion of merger consideration by third-party
hacker/fraudsters. Those parties are, presumably, beyond the reach of justice, at
least in this mortal plane. The parties to the merger transaction, therefore, are left to
contest who among them must bear the loss.
In the merger, Defendant Tassel Parent Inc. acquired Defendant Graduation
Alliance, Inc. (together, the “Company Defendants”). The Plaintiff, Sorenson
Impact Foundation, is a former stockholder of Graduation Alliance, Inc., and is the
entity whose consideration was purloined. The details of the transaction are
adequately, I think, laid out in a prior Memorandum Opinion in this matter
(“Sorenson I”), 1 where I dismissed then-Defendant Continental Stock Transfer &
Trust (“CST”) for lack of personal jurisdiction. 2 The Plaintiff seeks to recover under
theories of breach of contract and unjust enrichment. Pending before me is the
Company Defendants’ motion to dismiss both counts for failure to join the transfer
agent contractually bound to facilitate the transaction, CST, as well as the legal
advisor for the transaction, Holland & Knight (“H&K”). Both, per Company
Defendants, are necessary and indispensable parties under Rule 19. Generally, it
appears that CST and/or H&K were the entities directly fooled by the third-party
fraudsters.
The Company Defendants are thus correct that this case is a quadripartite
dispute shoehorned into a bilateral contract action. As I suggested at oral argument,3
the most elegant solution to this dispute would be for the Company Defendants to
waive the forum selection clause (“FSC”) in the merger agreement, which provides
for Delaware jurisdiction.4 The Plaintiff is bound by both the FSC and my ruling
that this Court lacks personal jurisdiction over CST; CST does business in New York
and its duties in this matter stem from a contract with a New York forum selection
1
Sorenson Impact Found. v. Cont'l Stock Transfer & Tr. Co., 2022 WL 986322, at **2-6 (Del.
Ch. Apr. 1, 2022).
2
In the interests of judicial economy, this opinion incorporates by reference the facts of
Sorenson I.
3
Tr. of 8-23-2022 Oral Arg. on Defs.’ Mot. to Dismiss at 14:4-15, Dkt. No. 62.
4
Verified Am. Compl., Ex. A. § 13.8, Dkt. No. 6.
2
clause.5 Consequently, the Plaintiff is unable to get all possible defendants into one
forum. By waiving the FSC, the Company Defendants would mitigate both parties’
fears of prejudice and costly multi-forum litigation. 6 However, that decision
ultimately rests with the Company Defendants, and they stand on their contractual
right to this forum.
This Court may dismiss a claim under Rule 12(b)(7) for failure to join a
necessary and indispensable party in accordance with Rule 19.7 This determination
requires a two-part inquiry. Under Rule 19(a), the Court determines whether an
absent party is necessary.8 Necessary parties should be joined if feasible.9 When an
absent party is necessary but joinder is not feasible, the Court weighs the four factors
of 19(b) to determine that party’s indispensability.10
Rule 19(a) requires the joinder of parties necessary to a just adjudication.11
Under this rule, the Court examines whether an absent party has an interest in the
action that would be impaired or impeded in its absence.12 The Court also looks to
whether a party’s absence would subject it to a substantial risk of multiple or
5
Id., Ex. B. § 4.11.
6
In re Coinmint, LLC, 261 A.3d 867, 893 (Del. Ch. 2021) (“It is well settled in Delaware that
contractual requirements or conditions may be waived.”) (citing AeroGlobal Cap. Mgmt., LLC v.
Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005)).
7
Ct. Ch. R. 12(b)(7).
8
NuVasive, Inc. v. Lanx, Inc., 2012 WL 2866004, at *1 (Del. Ch. July 11, 2012).
9
Id. at *2.
10
Id. (citing Ct. Ch. R. 19(b)).
11
Ct. Ch. R. 19(a).
12
Id.
3
inconsistent obligations related to the action.13 If a party is necessary, it must be
joined if feasible. 14 For the purposes of this analysis, I assume that both CST and
H&K are necessary parties under 19(a). CST’s joinder is not feasible, for the reasons
explained in Sorenson I. 15
If joinder is not feasible, the Court then determines if the necessary party is
also indispensable under 19(b) by weighing the following factors: (1) to what extent
a judgment might be prejudicial to the absent person or the parties; (2) the extent to
which provisions in the judgment can lessen or avoid prejudice; (3) whether the
person's absence will render the judgment inadequate; and (4), whether the plaintiff
will have an adequate remedy if the action is dismissed for non-joinder. 16 If the
absent party is both necessary and indispensable, the Court will dismiss the action.17
I hold that CST is not indispensable. Starting from the first factor, the
Company Defendants contend that they will be prejudiced by CST’s absence.18 The
alleged prejudice includes costly third-party discovery and the risk of relitigating the
13
S’holder Representative Servs. LLC v. RSI Holdco, LLC, 2019 WL 2207452, at *4 (Del. Ch.
May 22, 2019); see also NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417,
436 (citing Ct. Ch. R. 19(a)).
14
Ct. Ch. R. 19(a).
15
Sorenson, 2022 WL 986322, at **13-22.
16
Ct. Ch. R. 19(b); see Makitka v. New Castle Cty. Council, 2011 WL 6880676, at *4 (Del. Ch.
Dec. 23, 2011) (reasoning the 19(b) factors are interdependent and must be considered in relation
to each other and the facts of the case).
17
Makitka at *4. (“[the Court shall] determine whether in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the absent person being thus
regarded as indispensable.”).
18
Defs.’ Opening Br. in Supp. of Mot. to Dismiss at 16-17, Dkt. No. 14.
4
same facts and circumstances in a contribution action, if the Company Defendants
lose here. 19 These arguments fall short when viewed in light of the causes of action
alleged in the amended complaint, which narrowly concern performance under the
merger agreement.20 CST is not a signatory to the merger agreement.21 There may
be a need for third-party discovery, but third-party discovery is common and likely
insufficiently prejudicial to invoke dismissal under the Rule.
Regarding the second factor, this Court has broad discretion to fashion a
suitable remedy.22 At this stage, it is reasonable to infer that I could craft relief that
mitigates the purported prejudice discussed above.
Under the third 19(b) factor, if the Plaintiff prevails at trial on its contract
claims, CST’s absence will not impact the judgment’s adequacy. The Company
Defendants would be free to bring a suit for contribution against CST or H&K.
CST’s absence would also have no impact on a judgment favorable to the Company
Defendants. Thus, while it would be efficient to have all parties present, judgments
in their absence would not be inadequate on these narrow contract claims.
19(b)’s fourth factor, which addresses a plaintiff’s prejudice should a motion
to dismiss be granted, presents the largest prejudicial risk. If the Plaintiff’s claims
19
Id.
20
See Verified Am. Compl., Dkt. No. 6.
21
See Id., Ex. A.
22
See Reserves Dev. LLC v. Severn Sav. Bank, FSB, 961 A.2d 521, 525 (Del. 2008); see also
Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 817 A.2d 160, 176 (Del. 2002).
5
were dismissed, it would be constructively barred from litigating its breach of
contract claim against the Company Defendants. This is because the FSC restricts
any causes of action arising from the merger agreement to Delaware courts.23
Balancing any potential prejudice to the Company Defendants against the clear
prejudice to the Plaintiff, I find that dismissal would be inequitable and that this
narrow action must proceed.
With respect to H&K, to the extent that it is a necessary party, there has been
no showing that it may not be joined here.
For the foregoing reasons, I deny the Defendants’ 12(b)(7) Motion to Dismiss.
To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.
Sincerely,
/s/ Sam Glasscock III
Vice Chancellor
23
Verified Am. Compl., Ex. A. § 13.8, Dkt. No. 6.
6 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484766/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 2022*
Decided November 17, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1969
KEITH TURNER, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:22-cv-00275-TWP-DML
WESTFIELD WASHINGTON
TOWNSHIP, Tanya Walton Pratt,
Defendant-Appellee. Chief Judge.
ORDER
Keith Turner appeals the dismissal of his complaint against Westfield
Washington, an Indiana township, for denying his application for emergency rental
assistance under a federally created pandemic relief program. The district court ruled
that the relevant statutes do not provide a private cause of action. We agree, and
because Turner’s complaint did not otherwise state a claim, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 22-1969 Page 2
At this stage, we accept the factual allegations in Turner’s pro se complaint as
true. See Saint Anthony Hosp. v. Eagleson, 40 F.4th 492, 499 (7th Cir. 2022). Turner sought
housing benefits from a local program funded by the federal Coronavirus Relief Fund.
The Fund was created and funded by the Coronavirus Aid, Relief, and Economic
Security (CARES) Act, 42 U.S.C. § 801, the Consolidated Appropriations Act of 2021,
15 U.S.C. § 9058a, and the American Rescue Plan Act of 2021, 15 U.S.C. § 9058c. As
relevant here, the Acts give local governments block grants to pay housing expenses for
applicants meeting certain criteria. See 42 U.S.C. § 801(b)(1); 15 U.S.C. §§ 9058a(b)(1), (c),
(k)(3), 9058c(b)(1), (d), (f)(2). Turner applied to Westfield Washington (“the Township”)
for the benefits, but the Township denied the application because it concluded,
incorrectly, that the application was fraudulent.
The Township moved to dismiss the complaint, arguing that the Acts do not
authorize private lawsuits to recover benefits. The district court agreed and dismissed
the complaint. Turner filed a notice of appeal and then another document in which he
argued that he could sue under the Acts to enforce his right to benefits. He also argued
that his complaint stated a claim under 42 U.S.C. § 1983. Construing this as a motion to
reconsider, the district court denied it. Given the timing of the motion and the notice of
appeal, we can review both the dismissal and the denial of the motion. See FED. R. APP.
P. 4(a)(4)(A)(iv), (vi), (B)(i); Carter v. City of Alton, 922 F.3d 824, 826 n.1 (7th Cir. 2019).
Turner first argues that the Acts provide him with a private right of action
because he meets the statutory criteria for the benefits. He concedes that nothing in the
text of the Acts establishes a right for eligible applicants to sue if they are denied
benefits, but he infers such a remedy from the overall statutory scheme.
Here, a right to privately enforce the benefits provisions of the Acts cannot be
inferred. Without clear statutory intent to create a private right of action, “a cause of
action does not exist and courts may not create one, no matter how desirable that might
be as a policy matter, or how compatible with the statute.” Alexander v. Sandoval,
532 U.S. 275, 286–87 (2001); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1855–56 (2017).
Turner apparently interprets the statutes as granting an individual right to the benefits
if the criteria are met. But the Acts are directed at the Secretary of the Treasury, who
must distribute program funds to local governments, which determine eligibility and
pay covered expenses for those who qualify. 42 U.S.C. § 801(b)(1); 15 U.S.C.
§§ 9058a(b)(1), (c)(1), 9058c(b)(1), (d)(1). Nothing in any of the Acts secures a right to
benefits for individual applicants. Turner might have an administrative claim under
No. 22-1969 Page 3
state law, but the Acts do not confer individual rights or create a private enforcement
mechanism.
Next, Turner contends that his complaint stated a claim under 42 U.S.C. § 1983.
The Township first responds that Turner waived this argument because he did not
plead a § 1983 violation. But plaintiffs need not commit to a legal theory at the
pleadings stage, Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022), and complaints
cannot be dismissed because they imperfectly state the law supporting the claim.
Johnson v. City of Shelby, 574 U.S. 10, 11 (2014).
The Township also argues that Turner waived the § 1983 theory by not raising it
in the district court, but Turner appropriately gave the district court the chance to
address his argument. See Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012).
In his motion to reconsider, Turner argued that even if he had no private right of action
under the Acts, the Township’s denial violated his “private privilege” to the benefits,
allowing him to sue under § 1983 for the denial of a federal right. Because Turner did
not need to plead legal theories, and the Township moved to dismiss based solely on
the lack of a private right of action, he cannot be faulted for not specifying another
theory of relief until the motion for reconsideration.
Nevertheless, under our de novo review, Turner’s complaint did not state a
§ 1983 claim because it did not allege that he was deprived of a federal statutory or
constitutional right. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119–20 (2005).
According to Turner, he has a statutory right because the Acts require that all eligible
applicants receive benefits. But we have already rejected that argument. The Acts
authorize local governments, as the recipients of block grants, to distribute relief funds
to certain eligible applicants, but no individual has a right to the funds. Turner cannot
use § 1983 to sidestep the absence of a private right of action under the Acts. To the
extent Turner also suggests his “property right” in the benefits can be enforced through
the Due Process Clause, the same answer applies. Perhaps Turner could be understood
to argue that the Township irrationally, and thus unconstitutionally, targeted him for an
unfavorable decision. See Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 603 (2008)
(explaining class-of-one theory of equal protection). But the complaint states that the
Township denied the application after concluding that it was fraudulent; that is not
irrational, and Turner’s complaint does not provide any facts to suggest that the
conclusion, even if erroneous, was pretextual.
Turner’s last argument is that his complaint stated a tort claim. But he cites no
authority (and we are aware of none) establishing a tort claim for the wrongful denial of
No. 22-1969 Page 4
benefits. We need not decide this issue, however. The district court acknowledged, but
did not address, the Township’s argument that Turner failed to state a tort claim. This
was sensible given the presumption that, when a court dismisses a lone federal claim on
the merits, it will relinquish subject-matter jurisdiction and dismiss any pendent state-
law claims without prejudice under 28 U.S.C. § 1367(c)(3). Rivera v. Allstate Ins. Co.,
913 F.3d 603, 618 (7th Cir. 2018). We therefore modify the judgment to provide that any
state claims are dismissed without prejudice.
Finally, we note that the judgment reflects a dismissal “for lack of jurisdiction,”
but the court’s reasoning on the federal claim was not jurisdictional. A jurisdictional
dismissal is not on the merits and is without prejudice to refiling in the proper forum.
Lewert v. P.F. Chang's China Bistro, Inc., 819 F.3d 963, 969–70 (7th Cir. 2016). But a motion
challenging “the existence of a federal cause of action” attacks the merits. Boim v. Am.
Muslims for Palestine, 9 F.4th 545, 557 (7th Cir. 2021) (quoting Malak v. Associated
Physicians, Inc., 784 F.2d 277, 279–80 (7th Cir. 1986)); see also Shapiro v. McManus, 577 U.S.
39, 45 (2015). The court’s memorandum opinion recognizes this by correctly granting
the Township’s motion under Rule 12(b)(6) (not Rule 12(b)(1)) and dismissing “with
prejudice.” Lewert, 819 F.3d at 969.
We instruct the district court to enter an amended judgment order clarifying the
dispositions in accordance with this order. But based on our understanding that the
federal claims are dismissed on the merits, and having modified the judgment on the
state claims, we AFFIRM. | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484770/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JORGE TOLEDO, )
Plaintiff,
V. Civil Case No. 21-1286 (RJL)
UNITED STATES OF AMERICA,
Defendant.
38 U.S.C. § 1975 and the Administrative
Procedure Act, 5 U.S.C. § 701, et seq. (“APA”), the Department of the Navy’s denial of
his application for benefits under the Traumatic Servicemembers’ Group Life Insurance
Program (“TSGLI”). Because the decision of the Board for Correction of Naval Records
(“Board”) was not arbitrary, capricious, or an abuse of discretion, plaintiff's [Dkt. #12]
Motion for Summary Judgment is DENIED and the United States’ [Dkt. #14] Cross-
Motion for Summary Judgment is GRANTED.
BACKGROUND
A. Statutory Background
Under 38 U.S.C. § 1980A, a servicemember insured under Servicemembers’ Group
Life Insurance is “insured for traumatic injury” if he “sustains a traumatic injury ... that
results in a qualifying loss.” 38 U.S.C. § 1980A(a)(1). “Qualifying losses” include a
variety of injuries. Jd. § 1980A(b)(1). Relevant here, “the inability to carry out the
activities of daily living resulting from traumatic injury to the brain” is a “qualifying loss.”
Id. § 1980A(b)(1)(H). The statute further defines the “inability to carry out the activities
of daily living” as “the inability to independently perform two or more of the following six
functions:” (i) bathing; (ii) continence; (iti) dressing; (iv) eating; (v) toileting; and
(vi) transferring. Id. § 1980A(b)(2)(D). A servicemember who suffers a qualifying loss is
eligible to receive lump-sum payments ranging from $25,000 to $100,000 based on the loss
sustained and, where appropriate, the length of time for which the loss is sustained. See 38
C.F.R. §9.20(f. For inability to carry out activities of daily living (“ADL”), a
servicemember may receive $25,000 at the 1 Sth consecutive day of ADL loss; an additional
$25,000 at the 30th consecutive day; an additional $25,000 at the 60th consecutive day;
and an additional $25,000 at the 90th consecutive day. See id.
B. Factual and Procedural Background
Plaintiff served as a Helicopter Crew Chief in the Marine Corps. AR1501. On July
6, 2011, plaintiff was involved in a helicopter crash during training and suffered a left
trimalleolar fracture, skull fracture, lung contusions, and a concussion. AR467, 578. After
surgery, plaintiff was released from the hospital on July 10, 2011. AR2.
On February 11, 2013, plaintiff filed a claim with the Marine Corps for TSGLI
benefits, seeking $25,000 for hospitalization and inability to perform at least two ADLs for
15 consecutive days. AR1357-93. On April 3, 2013, the Office of Servicemembers’
Group Life Insurance denied plaintiff's claim. AR28—30. Plaintiff sought reconsideration
of his claim and his claim was again denied on June 11, 2013. AR1353.
2
Plaintiff (now represented by his counsel) filed an appeal on March 6, 2019 from
the denial of his claim by the Marine Corps with the Department of the Navy Appeals
Board for Traumatic Injury Protection under the Servicemembers’ Group Life Insurance
program. AR10-13. In this appeal, plaintiff changed his request to $50,000 for inability
to perform at least two ADLs for 30 consecutive days. AR13. The TSGLI Appeals Board
unanimously denied his appeal on October 28, 2020. AR1412. Plaintiff subsequently filed
an application for correction of military record on January 13,2021. AR9. The Department
of the Navy Board for Correction of Naval Records (“BCNR” or “Board”) denied his
application on March 30, 2021. AR687-89.
In May 2021, plaintiff filed this action for judicial review of the administrative
denial of benefits against the United States (“defendant”). See Complaint (“Compl.”) [Dkt.
#3]. The Government then filed a consent motion for voluntary remand to the Secretary of
the Navy, with instructions for the BCNR to consider plaintiff's claims for relief. See Mot.
for Voluntary Remand [Dkt. #8]. I granted the motion. See Minute Order of September 9,
2021. On remand, the Board again denied plaintiff's application based on insufficient
evidence. ARI.
Following the remand to the BCNR, the parties reported that the result “did not
provide a result to the satisfaction of both parties.” Joint Mot. for Order and Proposed
Briefing Schedule [Dkt. #9]. The parties have now cross-moved for summary judgment,
and their motions are ripe. See Pl.’s Mot. for Summ. J. (“Pl.’s MSJ”) [Dkt. #12]; Def.’s
Cross-Mot. for Summ. J. (“Def.’s Cross-MSJ’) [Dkt. #14].
LEGAL STANDARD
The standard provided in Federal Rule of Civil Procedure 56 does not govern
motions for summary judgment in actions for judicial review of an administrative agency’s
decision under the APA. See Barker v. United States, 404 F. Supp. 3d 251, 260 (D.D.C.
2019); Moreno v. Spencer, 310 F. Supp. 3d 83, 86 (D.D.C. 2018). Instead, courts must
decide, “as a matter of law, whether the agency action is supported by the administrative
record and otherwise consistent with the APA standard of review.” Coe v. McHugh, 968
F, Supp. 2d 237, 240 (D.D.C. 2013). Under the APA, courts must set aside agency action
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); Tourus Records, Inc. vy. DEA, 259 F.3d 731, 736 (D.C. Cir.
2001). Although review of agency action is generally deferential, Blanton v. Office of the
Comptroller of the Currency, 909 F.3d 1162, 1170 (D.C. Cir. 2018), courts must “ensur[e]
that agencies have engaged in reasoned decision making,” Jaccarino v. Duke, 327 F. Supp.
3d 163, 177 (D.D.C. 2018) (quotation marks and citation omitted). “[T]he party
challenging an agency’s action as arbitrary and capricious bears the burden of proof.” City
of Olmstead Falls v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002) (quoting Lomak Petroleum,
Inc. v. FERC, 206 F.3d 1193, 1198 (D.C. Cir. 2000)).!
' Our Circuit generally reviews decisions of military boards under “an unusually deferential
application of the ‘arbitrary or capricious’ standard.” McKinney v. Wormuth, 5 F 4th 42, 45 (D.C. Cir.
2021) (quoting Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). However, our
Circuit does not appear to have considered whether this standard applies in a case involving a military
board’s decision on a TSGLI benefits claim. See Cloud v. United States, 2019 WL 1924363, at *5 (D.D.C.
Apr. 30, 2019). And some of my colleagues “have been reluctant to apply this level of deference in TSGLI
cases.” Jd. (citing cases). Because the denial of benefits here “was not arbitrary and capricious under the
ordinary APA standard” for all the reasons stated in this Memorandum Opinion, I need not decide whether
the “unusually deferential” standard applies in cases involving review of TSGLI claims. See id.
4
ANALYSIS
Plaintiff argues that the denial of his benefits’ claim was arbitrary and capricious
for two reasons: first, because the TSGLI Office and BCNR failed to apply the proper
standard of review; and, second, because the Board ignored certain evidence indicating that
plaintiff was entitled to benefits. Unsurprisingly, the Government disagrees on both
counts. Unfortunately for plaintiff, I agree with the Government that both of his arguments
are without merit. How so?
A. Standard of Review
Plaintiff first argues that the Board “erred in weighing and considering evidence, or
not considering evidence, and therefore, failed to apply the appropriate legal standard of
review.” Pl.’s MSJ at 11. By “focus[ing] on selective evidence” and “disregard[ing] the
totality of the evidence,” plaintiff argues, the Board failed to “consider the ‘preponderance
of evidence standard.’” P1.’s MSJ at 12-13.
Plaintiff correctly states (and the Government does not dispute) that the
preponderance of the evidence standard applied to the Board’s decision. See Pl.’s MSJ at
11; Def.’s Cross-MSJ at 16~18; see also Secretary of the Navy Instruction 1770.4A Encl.
1 (“Procedures for Appeals of Eligibility Determinations”) § 3(e)(2) (“The evidentiary
standard for TSGLI determination is a preponderance of the evidence.”). However, in
arguing that the Board failed to apply the preponderance of the evidence standard, plaintiff
does not identify a different standard that he believes the Board applied instead. And the
record shows that the Board applied the preponderance of the evidence standard in
evaluating plaintiff's claim. See AR3.
In the final analysis, plaintiff's argument is that the Board failed to properly consider
the evidence before it—not that the Board applied the wrong legal standard. See P1.’s MSJ
at 11 (“[d]Jefendant erred in weighing and considering evidence”); id. at 12 (“the Board
failed to consider other medical records”); id. (“the Board ... disregarded the totality of the
evidence”); id. at 12-13 (“the Board focused on selective evidence, and, in doing so,
disregarded the totality of the evidence”). Accordingly, plaintiff's challenge is better
construed as a challenge to the Board’s weighing of the evidence, which I address below.
See, e.g., Rich v. United States, 369 F. Supp. 3d 263, 274 (D.D.C. 2019).
B. Weighing of Evidence
Second, plaintiff argues that the administrative record contains sufficient evidence
from which to conclude that he was entitled to TSGLI benefits. See Pl.’s MSJ at 13. To
start, plaintiff's argument incorrectly frames the question before this Court, which must
ask whether the Board acted in an arbitrary or capricious manner, or otherwise abused its
discretion—not “whether record evidence could support the petitioner’s view of the issue.”
Moreno, 310 F. Supp. 3d at 87 (emphasis added); see 5 U.S.C. § 706(2)(A). In other words,
this Court must determine whether “the agency action is supported by the administrative
record.” Coe, 968 F. Supp. 2d at 239.
Regardless, each of plaintiff's asserted challenges to the Board’s weighing of the
evidence fails. Plaintiff points to statements he submitted from two first-hand witnesses—
a squadron Flight Surgeon, Vincent Peronti, and LT Michael Lynch—that he argues
support his eligibility for benefits because they “clearly list out the required assistance to
perform the claimed ADLs.” Pl.’s MSJ at 14. However, these statements are insufficient
6
to show that the Board’s decision was not supported by the record. Broadly, the Board
noted that it considered all documentary material included with plaintiff's application for
benefits and the administrative record. ARI; see Moreno, 310 F. Supp. 3d 88. And,
contrary to plaintiff's argument, the Board explicitly considered these witness statements
but determined that they were inconsistent with “more relevant and reliable” “medical
records[] created contemporaneously with the treatment of [plaintiff's] injuries.” AR4; see
also AR689 (“afford[ing] more weight to the evidence in the” “medical treatment
records ... created contemporaneously with [plaintiff's] treatment during the time in
question”). As my colleagues have recognized when addressing similar evidentiary
records, the Board did not act arbitrarily and capriciously by affording more weight to
contemporaneous medical records than to “statements made long after the fact by medical
professionals not responsible for [plaintiff's] care at the time in question and for the
primary purpose of supporting [plaintiff's] TSGLI claim.” AR4; see, e.g., Hensley v.
United States, 292 F. Supp. 3d 399, 409-10 (D.D.C. 2018). Contrary to plaintiffs
contention that the Board improperly discredited this evidence, see Pl.’s MSJ at 14, the
Board rationally determined that other evidence carried more weight. See Moreno, 310 F.
Supp. 3d at 88-89; Cloud v. United States, 2019 WL 1924363, at *7 (D.D.C. 2019). The
same reasoning applies to the after-the-fact medical certification by Marc L. Calestini, MD.
Cf P1.’s MSJ at 14-15. Plaintiff therefore has failed to show that the Board acted arbitrarily
and capriciously. And, absent a showing that the Board’s decision violated the APA, “it
would be improper for this Court to ‘substitute its judgment for that of the agency.’”
Moreno, 310 F. Supp. 3d at 88 (quoting Motor Vehicle Mfrs. Ass’n of the United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Next, plaintiff argues that the Board erred because, “although the medical records
did not explicitly list ADL limitations, the records do not refute that such assistance was
necessary either.” Pl.’s MSJ at 15. Unfortunately, this argument turns the required analysis
on its head. See, e.g., Pl.’s MSJ at 13 (“The assumption that insufficiency of medical
records concerning ADLs status implies an ability to perform ADLs is an unfair and
unjustifiable assumption against plaintiff.”). To be eligible for benefits, plaintiff must
suffer a qualifying loss, including the inability to carry out ADLs as specified under the
statute and its implementing regulations. See, e.g., 38 C.F.R. § 9.20. And, to evaluate a
claimant’s application for benefits, the Board must consider whether a preponderance of
the evidence supports the claimant’s entitlement to payment such that it is more likely true
than not true based on the evidence in the record. See, e.g., Cloud, 2019 WL 1924363, at
*5. Therefore, plaintiff must demonstrate through affirmative evidence that he is more
likely than not entitled to benefits; put simply, the absence of evidence demonstrating that
he is not entitled to benefits is insufficient to establish a claim. See id. at *6 (“To
successfully bring a TSGLI benefits claim on the basis of ADL loss, [a claimant] must
show that he was unable to independently perform at least two ADLs for a [specified]
period.”). This is especially true at this stage of review when the plaintiff bears the burden
of showing that the Board acted arbitrarily and capriciously in denying his benefits claim.
See City of Olmstead Falls, 292 F.3d at 271. Plaintiff's argument otherwise fails as well.
CONCLUSION
For all of the foregoing reasons, plaintiff's [Dkt. #12] Motion for Summary
Judgment is hereby DENIED and defendant’s [Dkt. #14] Cross-Motion for Summary
Judgment is hereby GRANTED. A separate Order consistent with this decision
accompanies this Memorandum Opinion.
=
“ Car bast Lon f
RICHARD J. LEON
United States District Judge | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484772/ | Filed 11/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
COVER RIGHT ROOFING, INC.,
Cross-complainant and Appellant, G060210
v. (Super. Ct. No. 30-2019-01084230)
STATE COMPENSATION INSURANCE OPINION
FUND,
Cross-defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Martha
K. Gooding, Judge. Affirmed.
Margie R. Lariviere, General Counsel, Anthony Lewis, Assistant General
Counsel, Rhett R. Johnson, Assistant Chief Counsel, and Gary R. Soliman, Attorney for
Cross-defendant and Appellant.
Sterling Scott Winchell and Sterling Scott Winchell for Cross-complainant
and Appellant.
* * *
This appeal asks us to interpret Insurance Code section 11664, subdivision
(e)(6)(A),1 which requires workers’ compensation insurers to provide their insureds with
notice of certain premium rate increases: “[i]f the premium rate in the governing
classification for the insured is to be increased 25 percent or greater and the insurer
intends to renew the policy, the insurer shall provide a written notice of a renewal offer
not less than 30 days prior to the policy renewal date.” (§ 11664, subd. (e)(6)(A).) In a
matter of first impression, we find cross-defendant State Compensation Insurance Fund
(State Fund) was not obligated to provide notice to cross-complainant Cover Right
Roofing (Cover Right) under this statute. The increase at issue was not due to any
change in the premium rate of Cover Right’s governing classification. Rather, a third
party changed the applicable governing classification criteria, which caused Cover Right
to be assigned a new governing classification with a higher premium rate. The statute
does not require notice in such circumstances. Thus, we find the trial court correctly
granted State Fund’s motion for summary judgment and affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
A. State Fund’s Premiums
This appeal concerns a particular rate known as a “base rate,” which State
Fund uses to calculate premiums for its insureds. The material facts are undisputed.
State Fund is a quasi-governmental entity that provides workers’
compensation insurance. (Stevens v. Workers’ Comp. Appeals Bd. (2015) 241
Cal.App.4th 1074, 1088, fn. 11.) It was “created in 1914 as a public enterprise fund and
[is] subject to the jurisdiction and control of the state Insurance Commissioner.” (Notrica
v. State Compensation Ins. Fund (1999) 70 Cal.App.4th 911, 918.) “State Fund ‘is at
1
All further undesignated statutory references are to the Insurance Code.
2
once both an agency of the state and an insurance carrier. In these two roles, it is self-
operating and of a special and unique character.’” (California Attorneys, etc. v. Brown
(2011) 195 Cal.App.4th 119, 124.)
State Fund calculates an estimated premium for its policies by multiplying
the insured’s estimated payroll by an interim billing rate and dividing the result by 100.
The insured makes payments based on the estimated premium throughout the policy’s
life. Once the policy ends, State Fund calculates a final premium, and the insured is
charged the difference between the estimated premium and the final premium. State
Fund may perform an audit after the policy ends to determine the insured’s final
premium.
When calculating the estimated premium, the insured’s interim billing rate
is comprised of a base rate plus individual risk factors specific to the insured. Base rates
are predetermined, generalized amounts that do not account for any individual risk
variations or insured-specific factors. State Fund uses actuarial models to develop its
base rates, which must be approved by the California Department of Insurance. State
Fund assigns base rates to its insureds using industry classifications from the Uniform
Statistical Rating Plan – 1995 (the USRP). The USRP industry classifications are
established by the Workers’ Compensation Insurance Rating Bureau (the Bureau) and are
codified in the California Code of Regulations, title 10, section 2318.6.
USRP industry classifications are assigned by State Fund based on the
insured’s business operations. Typically, a single classification is assigned to each
insured. But an exception to this rule occurs when the insured’s assigned industry
classification contains a dual wage classification. As its name suggests, a dual wage
classification consists of two separate wage-based classifications that are both assigned to
the insured. The only difference between the two classifications is whether the average
wages of the insured’s employees fall below or above a defined amount, known as the
3
2
dual wage threshold. If the average wages are above the dual wage threshold, the
insured is assigned one classification. If they are below it, the other classification is
assigned. Significantly, each of these classifications has its own base rate. While the
Bureau determines the dual wage threshold amount, State Fund sets the base rates for
each classification. Base rates are expressed as rate per $100 of payroll, and they reflect
an insurer’s perceived risk for insuring an employer assigned to a given classification.
B. Cover Right’s Policy
Cover Right is a roofing company. It held a workers’ compensation
insurance policy with State Fund in 2017, which covered January 1, 2017 to December
31, 2017 (the 2017 policy). State Fund assigned the 2017 policy a dual wage
classification relating to roofing operations. The two classifications were (1) Class 5552-
1 – Roofing – all kinds – including shop, yard or storage operations, which applied to
roofers whose average hourly wages were below the dual wage threshold, and (2) Class
5553-1 – Roofing – all kinds – including shop, yard or storage operations, which applied
to roofers whose average hourly wages equaled or exceeded the dual wage threshold.
During the relevant period, the former had a higher base rate than the latter. The 2017
base rate for Class 5552-1 was $58.44 per $100 of payroll, while it was $31.18 per $100
of payroll for Class 5553-1. Thus, under Cover Right’s dual wage classification, its base
rate would be lower if it paid its workers at or above the dual wage threshold.
In 2017, the dual wage threshold set by the Bureau for Class 5552-1 and
Class 5553-1 was $23 per hour. Cover Right employed six roofers in 2017. Two earned
$23 an hour, three earned $24 an hour, and one earned $30 an hour. Because all of Cover
Right’s employees made equal or more than the dual wage threshold in 2017, State Fund
assigned it the Class 5553-1 classification, and its final premium for the 2017 policy was
It is unclear from the record how an insured’s average wages are calculated.
2
4
3
calculated using the corresponding $31.18 base rate. At some point in 2017, however,
the Bureau increased the applicable dual wage threshold from $23 to $25 per hour,
effective January 1, 2018, due to wage inflation over the years.
The 2017 policy automatically renewed after lapsing. The renewed policy
with State Fund covered January 1, 2018 to December 31, 2018 (the 2018 policy). State
Fund calculated the estimated premium for the 2018 policy under the assumption Cover
Right would again be assigned the Class 5553-1 classification. In 2018, the base rate for
Class 5553-1 was $26.92 per $100 of payroll, while the base rate for Class 5552-1 was
$58.41 per $100 of payroll. Cover Right made $25,445.64 in estimated premium
payments in 2018 that were primarily calculated using Class 5553-1’s lower base rate.
State Fund performed an audit of the 2018 policy in early 2019. It found
Cover Right had paid most of its employees $23 to $24 an hour in 2018, which was less
than the new dual wage threshold of $25 an hour. Because Cover Right’s average wages
were under the dual wage threshold, State Fund assigned it the Class 5552-1
classification and calculated Cover Right’s final premium using Class 5552-1’s higher
corresponding base rate. Under the Class 5552-1 classification, Cover Right owed a final
premium of $56,766.72 for the 2018 policy.
In February 2019, State Fund sent Cover Right a bill for $31,321.08, the
difference between what it had paid in estimated premiums for 2018 ($25,445.64) and the
final premium calculated in the audit ($56,766.72). Cover Right maintains it did not
know the dual wage threshold had changed until it received State Fund’s bill.4
Cover Right’s opening brief claims it paid a total premium of $38,815 in 2017, but it
3
provides no citation for this assertion.
4
We note that on January 5, 2018, State Fund mailed a copy of 2018 policy to Cover
Right’s principal place of business. The 2018 policy included a policy endorsement
showing the dual wage threshold for 2018 was $25 per hour.
5
Cover Right did not pay the bill, so State Fund assigned the debt to plaintiff
Creditors Adjustment Bureau who filed suit to collect it. Cover Right then filed a cross-
complaint against State Fund, asserting negligence and equitable indemnity claims based
on an alleged violation of section 11664, subdivision (e)(6)(A). Specifically, Cover
Right contended State Fund failed to provide notice that its base rate would increase from
$31.18 per $100 of payroll in 2017 to $58.41 per $100 of payroll in 2018, an increase of
over 87 percent. Cover Right alleged that if notice had been given, it would have either
ensured all its employees were paid at least $25 an hour in 2018 (so it could be assigned
the Class 5553-1 classification, which had a lower base rate) or it would have obtained a
policy from another insurer.
State Fund demurred to the cross-complaint, claiming it had no legal duty
of care to disclose any premium rate increases to its insureds. The court overruled the
demurrer, reasoning that “[g]iven the mandatory language of section 11664[, subdivision
(e)(6)(A),] and the purpose of the statute, [it could not] find, as a matter of law, that the
statute does not establish a standard of care, specifically for workers compensation
insurance policies, with respect to notification of premium rate hikes.”
State Fund then moved for summary judgment on Cover Right’s claims. It
argued there was no violation of section 11664, subdivision (e)(6)(A), because it did not
increase the respective base rates for either Class 5552-1 or Class 5553-1 by more than
25 percent. Rather, Cover Right’s classification changed in 2018, which resulted in a
higher corresponding base rate. State Fund asserted the statute does not require notice for
such changes.
The trial court agreed with State Fund. It concluded section 11664,
subdivision (e)(6)(A), unambiguously “does not require written notice where the defined
threshold for the governing classification is changed.” Rather, the statute only “requires
written notice of a renewal offer when ‘the premium rate in the governing classification
for the insured is to be increased 25 percent or greater . . . .’” The court granted State
6
Fund’s summary judgment motion and subsequently entered judgment in favor of State
Fund on Cover Right’s cross-complaint.
Cover Right now appeals, arguing the trial court erred in interpreting
section 11664, subdivision (e)(6)(A). In response, State Fund filed a protective cross-
appeal. If we overturn the court’s summary judgment order on appeal, State Fund’s
cross-appeal requests that we review the court’s order overruling its demurrer. We find
the court properly granted State Fund’s summary judgment motion. As such, there is no
need to address State Fund’s cross-appeal.
II
DISCUSSION
The parties agree this appeal turns on our interpretation of section 11664,
subdivision (e)(6)(A). Questions of statutory interpretation are reviewed de novo.
(Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.) “Under
settled canons of statutory construction, in construing a statute we ascertain the
Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to
the statute’s words and give them ‘their usual and ordinary meaning.’ [Citation.] ‘The
statute’s plain meaning controls the court’s interpretation unless its words are
ambiguous.’” (Ibid.) “‘“When the language of a statute is clear, we need go no
further.”’” (People v. Harrison (2013) 57 Cal.4th 1211, 1221-1222.) But if the statutory
language is ambiguous, “‘courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’” (Imperial Merchant Services, Inc., at pp. 387-
388.)
Under section 11664, subdivision (e)(6)(A), “[i]f the premium rate in the
governing classification for the insured is to be increased 25 percent or greater and the
insurer intends to renew the policy, the insurer shall provide a written notice of a renewal
offer not less than 30 days prior to the policy renewal date.” “‘[P]remium rate’ means
7
the cost of insurance per unit of exposure prior to the application of individual risk
variations based on loss or expense considerations such as scheduled rating and
experience rating.” (§ 11664, subd. (e)(6)(B).) The parties agree, and it appears to be
true under the statute, that the base rates at issue are premium rates for purposes of
section 11664, subdivision (e)(6).5
Here, Cover Right asserts it was entitled to notice under section 11664,
subdivision (e)(6)(A), because its premium rate increased from $31.18 per $100 of
payroll in 2017 to $58.41 per $100 in 2018, due to the change in the dual wage threshold.
We disagree. Notice is only required under the statute if “the premium rate in the
governing classification for the insured is to be increased by 25 percent or greater.”
(§ 11664, subd. (e)(6)(A), italics added.) Under the statute’s plain language, an insured is
not entitled to notice simply because its base rate increases by 25 percent or more. The
statute has a narrower application. As the italicized portion of the text indicates, notice is
only required if the insurer increases a specific governing classification’s base rate by at
least 25 percent. In other words, State Fund would have been obligated to give Cover
Right notice had it increased the base rate for either Class 5553-1 or Class 5552-1 by at
least 25 percent from 2017 to 2018. It did not. It is undisputed the respective base rates
for Class 5552-1 and 5553-1 both decreased from 2017 to 2018.
Cover Right’s base rate increased by over 25 percent from 2017 to 2018
due to a change in Cover Right’s classification, not due to an increase in the base rate of
either Class 5552-1 or Class 5553-1. As set forth above, the Bureau changed the
applicable dual wage threshold from $23 per hour in 2017 to $25 per hour in 2018.
Cover Right paid most of its workers $23 to $24 per hour in 2017, so it was assigned the
Class 5553-1 classification and its corresponding base rate for that year. Cover Right
again paid most its workers $23 to $24 per hour in 2018. But because the Bureau had
Throughout the remainder of this opinion, the term “premium rate” is used as defined
5
under section 11664, subdivision (e)(6)(B).
8
changed the dual wage threshold for 2018, State Fund assigned Cover Right the Class
5552-1 classification. As such, Cover Right’s final premium for 2018 was calculated
using Class 5552-1’s higher corresponding base rate. Under the text of the statute, notice
is not required when an insured is assigned a new governing classification with a higher
corresponding base rate. Rather, notice is only required when the “premium rate in the
governing classification” increases. (§ 11664, subd. (e)(6)(A), italics added.) Finding
State Fund was obligated to provide notice here would require us to ignore the italicized
portion of the statute, which we cannot do. (See Prang v. Los Angeles County
Assessment Appeals Bd. (2020) 58 Cal.App.5th 246, 254.)
We also find unreasonable Cover Right’s interpretation of section 11664,
subdivision (e)(6)(A). As discussed above, Cover Right was assigned a different base
rate in 2018 due to a classification change, which occurred because Cover Right paid its
workers an average wage of less than $25 an hour in 2018. If the statute applied, State
Fund would have been required to provide Cover Right with notice of the increase near
the end of 2017, specifically, at least 30 days before the policy renewed on January 1,
2018. (§ 11664, subdivision (e)(6)(A).) But in 2017, State Fund did not know the
average wage Cover Right would pay its workers in 2018. It could only estimate what
that average rate would be. Accordingly, prior to the effective date of the 2018 policy,
State Fund could only speculate as to whether Cover Right would be assigned the Class
5552-1 or Class 5553-1 classification for 2018. Given the information it had, at best,
State Fund could have provided Cover Right with notice of a potential change to its base
rate for the 2018 policy. But the statute does not require notice of potential increases. It
only requires notice if premium rate “is to be increased 25 percent or greater.” (§ 11664,
subd. (e)(6)(A), italics added.)
Cover Right argues State Fund had access to its payroll from prior years
and knew the wages of its employees. It believes State Fund should have known in 2017
that Cover Right would pay its workers less than $25 an hour in 2018 and should have
9
anticipated this would cause Cover Right to be assigned Class 5552-1 in 2018 rather than
Class 5553-1. This argument is unpersuasive. Employee wages can change from year to
year based on an employer’s needs, general labor demands, and/or overall market
conditions, among other factors. Even with Cover Right’s historical wages, State Fund
would still have to speculate as to whether Cover Right would maintain those same
wages in 2018 to have given notice under the statute. It is unreasonable to interpret the
statute in a manner that compels an insurer to guess whether an insured’s governing
classification will change in a given year.
Since the text of the statute is clear, we need not perform any further
analysis.6 Nonetheless, we also find requiring State Fund to give notice here would be
unreasonable as a matter of public policy. As discussed above, adopting Cover Right’s
interpretation would require State Fund – not to mention other workers’ compensation
insurers – to anticipate potential classification changes for its insureds every year. This
would force State Fund to review any classification changes promulgated by the Bureau,
review each of its insured’s current classifications, determine whether any of the
Bureau’s changes could affect its insured’s classifications, and then determine whether
any of these potential classification changes might cause an insured to be assigned a new
classification with a base rate at least 25 percent greater than its prior classification. This
is far too onerous of a burden to put on workers’ compensation insurers. Rather, from a
matter of policy, it is more reasonable to have individual employers monitor the Bureau’s
changes to classification criteria and determine how such changes might affect their
insurance rates.
6
Since the plain meaning of the statute is clear, the legislative history of section 11664,
subdivision (e)(6)(A), is immaterial to our analysis. As such, we deny State Fund’s
request for judicial notice.
10
Because we uphold the trial court’s order granting State Fund summary
judgment, we do not address State Fund’s cross-appeal, which asked us to review the
court’s demurrer ruling only if we overturned the summary judgment order.
III
DISPOSITION
We sympathize with Cover Right’s situation. Given all the responsibilities
facing small businesses, we do not fault Cover Right for missing the Bureau’s increase of
the dual wage threshold. Cover Right likely would have avoided the higher base rate had
it known of this change. Nonetheless, as set forth above, section 11664, subdivision
(e)(6)(A), does not require an insurer to provide notice in the circumstances at issue here.
Further, as a matter of public policy, it would be unreasonable to compel insurers to
monitor the Bureau’s changes to the various industry classifications. As such, the
judgment is affirmed. State Fund is entitled to its costs on this appeal.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
MOTOIKE, J.
11 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484767/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 2022 *
Decided November 17, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 21-3008
JAMES MUNSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 3:11-CV-159-MAB
JAMES KELLER, et al., Mark A. Beatty,
Defendants-Appellees. Magistrate Judge.
ORDER
James Munson, an Illinois prisoner and practicing Buddhist, appeals the
summary judgment against his claims asserting that a soy-based diet was harmful to his
health, in violation of the Eighth Amendment, and restricted his religious practice, in
violation of the First Amendment and the Religious Land Use and Institutionalized
Persons Act of 2000. 42 U.S.C. §§ 2000cc to 2000cc-5. The district court concluded that no
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-3008 Page 2
reasonable jury could find that Munson’s treatment fell below constitutional standards
or that the prison officials violated his religious-practice rights. We affirm.
We recount the facts in the light most favorable to Munson, the non-moving
party. See James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020). Munson experienced
gastrointestinal problems that he believed were caused by soy in the prison’s vegetarian
meals, which he ate for religious reasons. Munson stated in his deposition that he
related this concern about soy to the doctor defendants. The doctors repeatedly
examined him and saw no symptoms consistent with a soy allergy, relying on several
tests that would have revealed one if it existed. They did not order an allergy test or
soy-free vegetarian diet. They believed that Munson’s gastrointestinal problems were
caused by his pre-existing gastrointestinal conditions—gallstones, peptic ulcer disease,
and H. pylori bacteria—or other prescribed medications that had gastrointestinal
problems as a common side effect. They prescribed him numerous medications,
referred him to an outside gastrointestinal specialist and an outside surgeon to remove
his gallbladder, and ordered many diagnostic procedures.
Munson then brought this suit against prison doctors and officials. The court
initially granted the defendants’ summary judgment motions, but we vacated the
judgment based on the district court’s erroneous decision to stay discovery pending the
outcome of a similar case being adjudicated in the Central District of Illinois. Munson v.
Butler, 776 F. App’x 339 (7th Cir. 2019). We remanded the case to allow Munson to
conduct discovery and more fully address the merits of the summary judgment
motions. Munson, through recruited counsel, then amended his complaint to add a First
Amendment claim. After several months of discovery, the district court again entered
summary judgment for the defendants, concluding that Munson had not introduced
sufficient evidence for a reasonable jury to find that the doctors impermissibly ignored
or delayed his treatment or that the prison officials violated his religious-practice rights.
On appeal, Munson has not meaningfully developed the arguments in his brief,
see FED. R. APP. P. § 28(a)(8), but we touch upon two arguments we can discern. First,
Munson argues that the district court overlooked key evidence—his deposition, in
which he asserts that he informed the doctors of his concern about soy, as well as a
nurse’s notations in his medical records stating her intent to discuss this concern with
one of the doctors—that, he maintains, supports an inference that the doctors knew that
soy caused his ailments. But the district court directly addressed this evidence when it
noted the testimony from all the doctors opining that Munson’s symptoms were
inconsistent with a soy allergy. As the court explained, the doctors evaluated Munson’s
No. 21-3008 Page 3
gastrointestinal complaints, prescribed him numerous medications and diagnostic tests
in response to these complaints, and referred him to outside specialists. Based on the
evidence in the record, no reasonable jury could conclude that the doctors disregarded a
serious risk to Munson’s health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Second, Munson argues that his doctors substantially deviated from professional
standards by not testing him for a soy allergy or ordering a soy-free diet. See Stewart v.
Wexford Health Sources, Inc., 14 F.4th 757, 763 (7th Cir. 2021). But to support this theory,
Munson must point to evidence that no minimally competent doctors would have made
the same treatment decisions as the defendants in this case. Id. The only evidence he
cites is a note from a nonparty doctor, reporting Munson’s belief that decreasing soy
helped alleviate his gastrointestinal problems. But the opinions of Munson, who is not a
specialist, are not sufficient evidence for a jury to find that the doctors deviated from
professional standards.
We have considered Munson’s remaining arguments, and none has merit.
AFFIRMED | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484774/ | 11/17/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 18, 2022 Session
VANESSA COLLEY v. JOHN S. COLLEY, III
Appeal from the Circuit Court for Davidson County
No. 12D-314 Philip E. Smith, Judge
___________________________________
No. M2021-00731-COA-R3-CV
___________________________________
Appellant/Husband voluntarily nonsuited his post-divorce lawsuit involving issues of
alimony and the parties’ alleged settlement of an IRS debt. Appellee/Wife moved for an
award of her attorney’s fees on alternative grounds, i.e., the abusive lawsuit statute, Tenn.
Code Ann. § 29-41-106; the parties’ MDA; and Tennessee Code Annotated section 36-5-
103(c). The trial court granted Wife’s motion and entered judgment for her attorney’s fees
and costs. The trial court specifically held that Husband’s lawsuit was not abusive, and
Wife does not raise this as an issue on appeal. As such, we conclude that she is not entitled
to her attorney’s fees under the abusive lawsuit statute. As to her claim for attorney’s fees
and costs under the MDA and Tennessee Code Annotated section 36-5-103(c), both
grounds require that Wife be a “prevailing party” in the underlying lawsuit. Because
Husband took a voluntary nonsuit, neither party prevailed in the action, and Wife is not
entitled to her attorney’s fees and costs. Reversed and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed 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.
Jennifer Honeycutt, Franklin, Tennessee, for the appellant, John Shackelford Colley, III.
Abby R. Rubenfeld, Nashville, Tennessee, for the appellee, Vanessa Young Colley
(Turner).
OPINION
I. Background
Appellant John Shackelford Colley, III (“Husband”) and Appellee Vanessa Young
Colley (“Wife”) were divorced on July 18, 2012. While the divorce action was pending,
on April 12, 2012, the trial court entered an order on the parties’ cross-motions to set
temporary support and a temporary residential schedule for the parties’ children. As is
relevant to the instant appeal, the April 12, 2012 order provided that: “With regard to Mr.
Colley’s motion for the installment agreement, Mrs. Colley shall not be required to sign
the installment agreement; however, because of her refusal to sign, Mrs. Colley shall be
responsible for all penalties and interest from this date forward if there is no wrongdoing
established by the IRS with regard to the 2010 tax return.”
The parties’ post-divorce litigation has been prolific and contentious, and this is the
second appeal to this Court. See Colley v. Colley, No. M2014-02495-COA-R3-CV, 2016
WL 3633376 (Tenn. Ct. App. June 28, 2016). As is relevant to the instant appeal, on
January 9, 2019, Husband filed a “Petition to Terminate Transitional Alimony, Modify
MDA and Enter Judgment for IRS Reimbursement.” By his petition, Husband sought relief
from his alimony obligation (based on Wife’s remarriage), relief from having Wife as the
beneficiary on his life insurance (to ensure alimony payment), entry of judgment against
Wife for $6,000 as reimbursement of interest and penalties on the parties’ 2010 IRS
obligation, and an “[a]ward [of] his attorney’s fees and discretionary costs should he
prevail.” To support his request for the $6,000 reimbursement, Husband relied on the April
12, 2012 order, supra. On March 6, 2019, Wife filed an amended answer to Husband’s
petition. Therein, she averred that Husband’s request to modify the MDA regarding the
IRS reimbursement was untimely, and the April 12, 2012 order did not include any
judgment against her for a sum certain owed to the IRS. However, Wife agreed that she
would execute an agreed order on the alimony issue.
On May 10, 2019, Husband filed a motion to enforce settlement. Therein, Husband
alleged that, based on several emails he attached to his motion, he and Wife had reached
an agreement for her to pay $5,000 in settlement of the IRS issue. On June 18, 2019, Wife
filed a response in opposition to Husband’s motion to enforce settlement, wherein she
alleged that there was no enforceable settlement between the parties. After an unsuccessful
mediation, the trial court held a hearing on Husband’s motion on July 26, 2019. By order
of November 26, 2019, the trial court held that there was no settlement agreement and
denied Husband’s motion. This order was not a final judgment, however, due to the fact
that the trial court reserved “all other matters” and ordered discovery to go forward. The
trial court’s reference to “all other matters” appears to involve Husband’s contention that
he overpaid alimony by two months because Wife allegedly was living with her fiancé two
months immediately preceding her remarriage.
The parties continued with discovery and, after several delays, on August 17, 2020,
the parties entered an agreed order, setting the remaining matters for hearing on November
18, 2020. On November 6, 2020, Husband filed a notice of nonsuit of “all causes of action
from the instant litigation.”
-2-
On November 8, 2020, before the order of nonsuit was entered on November 13,
2020, Wife filed a “Motion for damages and/or sanctions for an abusive lawsuit, or in the
alternative to alter or amend order of dismissal.” Therein, Wife requested attorney’s fees
for Husband’s alleged “abusive lawsuit.” Tenn. Code Ann. § 29-41-103, et seq. Wife
noted that the order of nonsuit had not yet been entered and, as such, averred that her
motion was timely as it was brought “during the civil litigation.” Tenn. Code Ann. § 29-
41-103(a)(2) (“If a civil action is filed and the defendant to the action believes it to be an
abusive civil action, the claim may be raised by the defendant . . . (2) By motion made at
any time during the civil action.”). On November 30, 2020, Husband filed a response in
opposition to Wife’s motion, wherein he alleged that her claim of abusive lawsuit was
untimely because he had filed his notice of nonsuit prior to her bringing the motion. Based
on his assertion that his notice of nonsuit ended the lawsuit at that point, he claimed that
Wife could not make a claim for abusive lawsuit damages after his notice was entered.
Alternatively, Husband argued that, if Wife’s motion was considered a pending motion at
the time of his notice of nonsuit, the motion could not be considered after he took the
nonsuit. Husband asked for “his attorneys’ fees and costs under T.C.A. § 29-41-106(d),
should he prevail on this issue.”1
The trial court heard Wife’s motion on December 18, 2020. By order of January 7,
2021, the trial court specifically denied Wife’s motion for abusive lawsuit but granted her
motion to alter or amend the order of dismissal. The trial court further held that Wife could
file a motion for attorney’s fees, which would be decided in a separate hearing. On
February 2, 2021, Wife filed a motion for attorney’s fees. As grounds for attorney’s fees,
Wife relied on the parties’ MDA, which provided:
In the event it becomes reasonably necessary for either party to institute or
defend legal proceedings related to the enforcement of any provision of this
Agreement, the prevailing party shall also be entitled to a judgment for
reasonable expenses, including attorney’s fees, incurred in connection with
such proceedings.
1
Tennessee Code Annotated § 29-41-106(d) provides:
If a civil action defendant alleges that a claim is an abusive civil action or that the plaintiff
is an abusive civil action plaintiff, and the court finds by a preponderance of the evidence
that the action was not an abusive civil action or that the plaintiff is not an abusive civil
action plaintiff, the court may:
(1) Tax all costs related to litigating the issue of whether the action is an abusive
civil action or whether the plaintiff is an abusive civil action plaintiff, against the civil
action defendant who made the claim; and
(2) Award the civil action plaintiff reasonable attorney fees and all reasonable costs
of defending the claim that the action was an abusive civil action or that the plaintiff was
an abusive civil action plaintiff.
-3-
In the alternative, Wife claimed that she was entitled to attorney’s fees under
Tennessee Code Annotated section 36-5-103(c) (“A prevailing party may recover
reasonable attorney’s fees, which may be fixed and allowed in the court’s discretion, from
the non-prevailing party in any criminal or civil contempt action or other proceeding to
enforce, alter, change, or modify any decree of alimony. . . .”). On March 7, 2021, Husband
filed a response in opposition to Wife’s motion, wherein he asserted that Wife was not a
prevailing party and, thus, not entitled to attorney’s fees. Concurrent with his response,
Husband filed a cross-motion for attorney’s fees under Tennessee Code Annotated section
29-41-106(d) for abusive lawsuit.
The cross-motions for attorney’s fees were heard on March 26, 2021. By order of
May 11, 2021, the trial court denied Husband’s motion and granted Wife’s. Thereafter,
Wife’s attorney filed a fee affidavit. On June 2, 2021, the trial court entered an order
altering and amending its May 11, 2021 order to award Wife $16,500.00 in attorney’s fees.
Husband appeals.
II. Issues
Husband raises the following issues as stated in his brief:
1. Whether the email settlement agreement is enforceable.
2. Whether the court abused its discretion in reversing two earlier discovery
orders.
3. Whether Wife is entitled to her attorney’s fees after Husband nonsuited
his petition.
As noted above, Husband took a voluntary nonsuit in this case. As such, this Court
lacks subject matter jurisdiction to review issue one. In Martin v. Washmaster Auto
Center, Inc., this Court noted that
[n]o present controversy exists after the plaintiff takes a nonsuit. The lawsuit
is concluded and can only be resurrected if and when the plaintiff
recommences the action. The plaintiff’s refiling the suit is a contingent event
that may not occur.
Martin v. Washmaster Auto Center, Inc., No. 01-A-01-9305-CV00224, 1993 WL 241315,
* 2 (Tenn. Ct. App., Nashville, July 2, 1993).
In Hudson v. Grunloh, No. E2014-00585-COA-R3-CV, 2014 WL 3809765 (Tenn.
Ct. App. Aug. 4, 2014), perm. app. denied (Tenn. Nov. 19, 2014), as in the instant appeal,
appellant was granted a voluntary nonsuit without prejudice in the trial court and then
sought appeal in this Court. Relying on Martin, we dismissed the appeal for lack of subject
matter jurisdiction. Specifically, we held that “there appears to be no justiciable issue for
-4-
this Court to review as the judgment on appeal is not adverse to Grunloh, the only
remaining appellant in this proceeding.” Hudson, 2014 WL 3809765, at *1 (citing Benson
v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007) (holding that the lack of a judgment
“adverse” to the party appealing said judgment deprives the appellate court of jurisdiction
to entertain the appeal)). The same is true here. Husband’s first issue does not arise from
an adverse judgment. Oliver v. Hydro-Vac Services, Inc., 873 S.W.2d 694, 696 (Tenn. Ct.
App. 1993) (concluding that a party is ordinarily not aggrieved when no judgment is
rendered against him). As such, this Court lacks jurisdiction over the question of
“[w]hether the email settlement agreement is enforceable.” Hudson, 2014 WL 3809765,
at *1.
Furthermore, concerning Husband’s second issue, the contested discovery involved
the trial court’s order requiring Wife to produce certain telephone and email records. These
records would likely go to the issue of alimony. Having been relieved of his alimony
obligation and having nonsuited his case, the discovery issue surrounding telephone and
email records is moot.
At oral argument before this Court, Husband’s attorney conceded the foregoing
points. When asked the effect of the nonsuit on Husband’s issues, Husband’s attorney
stated that “based on the nonsuit, there was no longer any controversy” concerning the
enforceability of the settlement agreement. As to the discovery issue, Husband’s attorney
also conceded that this issue would be rendered moot if the nonsuit precluded our review
of other issues arising from Husband’s substantive lawsuit. We agree. As such, our
jurisdiction extends only to the question of whether the trial court erred in granting Wife’s
attorney’s fees and costs. We now turn to address this issue.
III. Standard of Review
As noted above, Wife’s claim for attorney’s fees alternatively rests on statutory and
contractual grounds. Both the interpretation of statutes and the interpretation of contracts
are questions of law and, therefore, require a de novo review on appeal with no presumption
of correctness given to the trial court's conclusions of law. See State v. Williams, 38 S.W.3d
532, 535 (Tenn. 2001) (indicating that the construction of statutes and the application of
the law to the facts are questions of law); see also Guiliano v. Cleo, Inc., 995 S.W.2d 88,
95 (Tenn. 1999) (holding that “[t]he interpretation of a contract is a matter of law that
requires a de novo review on appeal”).
IV. Analysis
In Cracker Barrel Old Country Store, Inc. v. Epperson, the Tennessee Supreme
Court explained the “American Rule”:
-5-
Tennessee, like most jurisdictions, adheres to the “American rule” for award
of attorney fees. John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528,
534 (Tenn. 1998); Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336,
338 (Tenn. 1985). Under the American rule, a party in a civil action may
recover attorney fees only if: (1) a contractual or statutory provision creates
a right to recover attorney fees; or (2) some other recognized exception to the
American rule applies, allowing for recovery of such fees in a particular case.
Taylor [v. Fezell], 158 S.W.3d [352,] at 359 [(Tenn. 2005)]; John Kohl, 977
S.W.2d at 534.
Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)
(footnote omitted).
In its May 11, 2021 order, the trial court held that Wife was entitled to her attorney’s
fees. In relevant part, the order states:
In ruling on the appropriateness of an award of attorney fees in this
matter, the Court looks to the relevant statutory provisions, case law and the
provision regarding attorney fees in the parties’ Marital Dissolution
Agreement. The Marital Dissolution Agreement Provides,
In the event it becomes reasonably necessary for either party to
institute or defend legal proceedings related to the enforcement
of any provision of this Agreement, the prevailing party shall
also be entitled to a judgment for reasonable expenses,
including attorney's fees, incurred in connection with such
proceedings."
MDA, Section XV. Additionally, there is a relevant statutory provision
which deals with the award of attorney fees in proceedings to enforce, alter,
change, or modify a decree of alimony. The statute, T.C.A. §36-5-103(c),
provides in relevant part,
(c) A prevailing party may recover reasonable attorney’s fees,
which may be fixed and allowed in the court's discretion, from
the non-prevailing party in any criminal or civil contempt
action or other proceeding to enforce, alter, change, or modify
any decree of alimony, child support, or provision of a
permanent parenting plan order, or in any suit or action
concerning the adjudication of the custody or change of
custody of any children, both upon the original divorce hearing
and at any subsequent hearing.
-6-
T.C.A. §36-5-103(c). Based on the language of this statute, as well as the
provision in the Marital Dissolution Agreement, the Court must determine
whether either party, if any, may be deemed the prevailing party for purposes
of awarding attorney fees.
The Supreme Court has identified a voluntary non-suit as insufficient
to meet the standard of a “favorable termination” on the merits required in a
suit for malicious prosecution. Himmelfarb v. Allain, 380 S.W.3d 35.
However, this conclusion has not been applied outside the realm of malicious
prosecution claims. While a persuasive argument could be made supporting
the proposition that Ms. Colley is indeed the prevailing party, the Court need
not address a conclusion on that issue. Respondent sought, in her Answer to
the Petition affirmative relief by a prayer for an award of attorney fees far
before the current Motion for fees was filed. Petitioner’s voluntary dismissal
did not operate to dismiss Ms. Colley’s prayer for relief. It follows then, that
the voluntary nonsuit was not a final order from which an appeal could be
taken.
Based on the foregoing, this Court finds that [Wife’s] Motion for
Attorney Fees is well-taken and is hereby granted.
In the first instance, Wife’s claim for attorney’s fees does not rest on the question
of whether the order on Husband’s voluntary nonsuit was a final order. Furthermore, the
resolution of the issue does not rest on whether Wife’s prayer for attorney’s fees constituted
an independent cause of action, or merely a prayer for relief in her answer. Rather, to
justify an award of attorney’s fees, Wife must show some exception to the American Rule.
Here, Wife sought deviation from the American Rule on three alternative theories: (1) the
abusive lawsuit statute, Tenn. Code Ann. § 29-41-106(b)(1); (2) the parties’ MDA; and (3)
Tennessee Code Annotated section 36-5-103(c). We will address each of these theories in
turn.
A. Abusive Lawsuit Statute
Tennessee Code Annotated section 29-41-106 provides, in relevant part:
(a) If the court finds by a preponderance of the evidence that a person filing
a civil action is an abusive civil action plaintiff, and that any or all civil
actions filed by the abusive civil action plaintiff against the abusive civil
action defendant that are pending before the court are abusive civil actions,
the civil actions shall be dismissed.
(b) In addition to dismissal of any pending abusive civil action within the
jurisdiction of the court, the court shall:
(1) Tax all costs of any abusive civil action pending in the court at the time
of the court's finding pursuant to subsection (a) against the abusive civil
-7-
action plaintiff;
(2) Award the civil action defendant reasonable attorney fees and all
reasonable costs of defending the abusive civil action; and
In its January 7, 2021 order, the trial court denied Wife’s abusive lawsuit claim. She
does not appeal this holding. Under the plain language of section 29-41-106(a), the court
must first find “by a preponderance of the evidence that a person filing a civil action is an
abusive civil action plaintiff” before it can proceed, under sections 29-41-106(b)(1)-(2), to
award costs and attorney’s fees. After the trial court denied Wife’s claim for abusive
lawsuit, there was no basis for an award of attorney’s fees under Tennessee Code
Annotated section 29-41-106(b)(2).
B. MDA and Tennessee Code Annotated Section 36-5-103(c)
As set out in context in the trial court’s May 11, 2021 order, supra, both the MDA
and Tennessee Code Annotated section 36-5-103(c) allow for an award of attorney’s fees
to a prevailing party. Specifically, the MDA states “the prevailing party shall also be
entitled to a judgment for reasonable expenses, including attorney’s fees,” and the statute
provides that “[a] prevailing party may recover reasonable attorney’s fees.” The question,
then, is whether Wife is a prevailing party in this lawsuit. Resolution of this question rests
on the effect of Husband’s nonsuit.
In its May 11, 2021 order, the trial court acknowledged that “[t]he Supreme Court
has identified a voluntary non-suit as insufficient to meet the standard of a ‘favorable
termination’ on the merits required in a suit for malicious prosecution.” Himmelfarb v.
Allain, 380 S.W.3d 35 (Tenn. 2012). In Himmelfarb, the Tennessee Supreme Court
addressed the issue of whether the plaintiff’s voluntary dismissal of the lawsuit constituted
a favorable termination for the defendant for purposes of satisfying the third element of a
malicious prosecution cause of action. The underlying action in that case was a medical
malpractice lawsuit that a patient dismissed after learning that another party was
responsible for leaving a guide wire in her vein during a medical procedure. Himmelfarb,
380 S.W.3d at 36. The doctors named in the initial malpractice action filed a malicious
prosecution case against the patient after she dismissed her complaint against them. The
patient moved for summary judgment, arguing that the doctors could not prove the
malpractice action had been terminated in their favor. Id. at 36-37. After considering the
effect of voluntary nonsuits in other jurisdictions, the Himmelfarb Court determined that
“a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a
termination on the merits for the purposes of a malicious prosecution claim.” Id. at 38-41.
The Court reasoned that the merits of a case are not considered when a case is dismissed
on procedural grounds. Id. at 40-41 (citing Parrish v. Marquis, 172 S.W.3d 526, 532
(Tenn. 2005) (holding that a favorable termination was not reached when the case was
dismissed because the statute of limitations had expired)).
-8-
In its May 11, 2012 order, the trial court limited the holding in Himmelfarb to
malicious prosecution cases, i.e., “[The Himmelfarb Court’s conclusion [that “a voluntary
nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a termination on the
merits for the purposes of a malicious prosecution claim,”] has not been applied outside
the realm of malicious prosecution claims.” However, this Court has applied the
Himmelfarb holding in contexts other than malicious prosecution. For example, in
Jasinskis v. Cameron, homeowners sued their builder, asserting claims for violations of
the Tennessee Consumer Protection Act. Jasinskis v. Cameron, No. M2019-01417-COA-
R3-CV, 2020 WL 2765845 (Tenn. Ct. App. May 27, 2020). As is relevant to this appeal,
the Jasinskis Court reasoned that
the trial court in Himmelfarb neither addressed the merits of the plaintiff's
claims nor the liability of the defendant. As a result, the Himmelfarb
plaintiff's voluntary dismissal of his claims against the defendant was not a
dismissal on the merits, and neither party ended up as the “prevailing party.”
[] see also Fit2Race, Inc. v. Pope, No. M2015-00387-COA-R3-CV, 2016
WL 373313, at *5 (Tenn. Ct. App. Jan. 29, 2016). The result is the same here.
Once the Guzmans nonsuited their claims against Clark, neither party was a
prevailing party.
Jasinskis, 2020 WL 2765845, at *5 (some citations omitted). Relying, inter alia, on
Jasinskis, in Justice v. Craftique Construction, Inc., this Court reiterated:
As our Supreme Court has stated, “[w]hen a voluntary nonsuit is taken, the
rights of the parties are not adjudicated, and the parties are placed in their
original positions prior to the filing of the suit.” Himmelfarb v. Allain, 380
S.W.3d 35, 40 (Tenn. 2012); see also Cooper v. Glasser, 419 S.W.3d 924,
930 (Tenn. 2013); Jasinskis v. Cameron, No. M2019-01417-COA-R3-CV,
2020 WL 2765845, at *5 (Tenn. Ct. App. May 27, 2020). A plaintiff’s
voluntary nonsuit “terminates the action without an adjudication of the
merits” and leaves the parties “as if no action had been brought at all.” 27
C.J.S. Dismissal and Nonsuit § 11 (2020); see also Nat'l R.R. Passenger
Corp. v. Int'l Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 48
(1st Cir. 1990) (stating that voluntary dismissal “‘carries down with it
previous proceedings and orders in the action, and all pleadings, both of
plaintiff and defendant, and all issues, with respect to plaintiff’s claim.’”)
(quoting Bryan v. Smith, 174 F.2d 212, 214 (7th Cir. 1949)); 24 AM. JUR.
2D Dismissal § 4 (2020) (“Nonsuit is a procedural step that terminates the
pending litigation but leaves the issues of the cause undecided.”).
Justice v. Craftique Construction, Inc., No. E2019-00884-COA-R3-CV, 2021 WL
142146, at *3 (Tenn. Ct. App. Jan. 15, 2021). Based on the foregoing, Husband’s nonsuit
“terminate[d] the action without an adjudication of the merits” and left the parties “as if no
-9-
action had been brought at all.” Id. As such, neither party is a “prevailing party” for
purposes of triggering a right to recover attorney’s fees under either the MDA or Tennessee
Code Annotated Section 36-5-103(c). Accordingly, we conclude that the trial court erred
in awarding Wife her attorney’s fees.
V. Conclusion
For the foregoing reasons, the trial court’s order awarding Appellee attorney’s fees
is reversed, and the case is remanded for such further proceedings as may be necessary and
are consistent with this opinion. Costs of the appeal are assessed one-half to Appellant,
John Shackelford Colley, III, and one-half to Appellee, Vanessa Young Colley (Turner),
for all of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
- 10 - | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484778/ | 11/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0466
No. DA 21-0466
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RYAN HUNTER ZITNIK,
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 13, 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/8484779/ | 11/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. DA 22-0527(c)
IN THE MATTER OF:
S.L., B.L., J.L,
Youths in Need of Care.
ORDER
Upon consideration of Appellant Father’s motion for an extension of time,
affidavit in support, and good cause appearing therefore,
IT IS HEREBY ORDERED that Appellant Father is granted an extension of
time to and including December 27, 2022, within which to prepare, file, and serve
his Opening Brief on appeal.
No further extensions will be granted.
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/8484777/ | Filed 11/17/22 P. v. Wilson 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, E078903
v. (Super.Ct.No. RIF150851)
KEVIN LAMONT WILSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Kevin Lamont Wilson 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 2011, a jury found defendant guilty of offenses related to robbery of a business,
including attempted murder stemming from shooting the business owner in the forehead.
It also found true a corresponding section 12022.53, subdivision (d) personal use firearm
enhancement. The trial court sentenced him to a prison term of 50 years to life on
account of the shooting (25 years to life for the attempted murder plus 25 years to life for
the firearm enhancement). Defendant appealed his conviction to this court and we
affirmed. (People v. Wilson (Nov. 27, 2012, E054550) [nonpub. opn.].)
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 persons who could not be convicted under the statutes as
amended to retroactively obtain relief. In 2021, the Senate amended the statute to make
clear that defendants convicted of attempted murder under a natural and probable
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
consequences theory or manslaughter were entitled to resentencing relief. (§ 1172.6;
Senate Bill No. 775; Stats. 2021, ch. 551, §§ 1-2, eff. Jan. 1, 2022.)
In January 2022 defendant filed a section 1172.6 petition to vacate his attempted
murder conviction and to be resentenced. The trial court set the matter for a status
conference and appointed counsel for defendant. At the April 2022 hearing, counsel for
the People represented that he had reviewed the jury instructions in the matter and the
court had not given instructions on natural and probable consequences. Counsel also
noted that jury had found true the section 12022.53, subdivision (d) enhancement, which
applies only if a defendant has personally and intentionally discharged a firearm and
proximately causes great bodily injury or death to a person other than an accomplice.
The court denied the petition based upon the jury’s findings and 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
requests us to independently review the record on appeal pursuant to People v. Wende
(1979) 25 Cal.3d 436.
Counsel suggests a potentially arguable issue: whether the trial court erred when
it denied defendant’s petition for relief under section 1170.95.
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
3
with our opinion in People v. Griffin (Nov. 14, 2022, E079269) ___ Cal.App.5th ___.
We found no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
FIELDS
J.
4 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484775/ | Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 17, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JAMES R. MCKILLIP,
Plaintiff - Appellant,
v. No. 22-3100
(D.C. No. 5:20-CV-03318-SAC)
JOE NORWOOD, Former Secretary of (D. Kan.)
Corrections, Kansas Department of
Corrections, in his individual and official
capacity; RON BAKER, Former Warden,
Lansing Correctional Facility, in his
individual and official capacity; GINA M.
HOWLETT, Unit Team Manager, Lansing
Correctional Facility, in her individual and
official capacity; JAMIE CLAASSEN,
Former Unit Team Supervisor, Lansing
Correctional Facility, in his individual and
official capacity; (FNU) PAYNE,
Corrections Officer I, Lansing Correctional
Facility, in his individual and official
capacity; JAMES ENGLIS, Corrections
Officer II, Lansing Correctional Facility, in
his individual and official capacity;
WILLARD SCOTT KINCAID,
Corrections Supervisor I, Lansing
Correctional Facility, in his individual and
official capacity; AUGUST DILLARD,
Corrections Officer, II Lansing
Correctional Facility, in his individual and
official capacity; STEVEN GANDY,
Corrections Officer I, Lansing Correctional
Facility, in his individual and official
capacity; ASHLEY GABLE, Corrections
Officer I, Lansing Correctional Facility, in
her individual and official capacity,
Defendants - Appellees.
_________________________________
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 2
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Pro se prisoner James R. McKillip appeals the district court’s dismissal of his
42 U.S.C. § 1983 claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
While incarcerated at Lansing Correctional Facility, a Kansas state prison,
McKillip lost access to running water in his cell. On December 17, 2018, McKillip
alerted corrections officers of the problem, and they told him they would put in a
work order. The work order was not completed until December 31, 2018. During
these two weeks, McKillip repeatedly reached out to prison officials for help but
was told that nothing else could be done because staff already submitted a work
order.
While the running water was broken in McKillip’s cell, he was forced to
urinate in his sink and clean it as best he could with bottled water. He also had to
defecate in a bag and place the bag in the hallway for prison employees to throw
away. Opening Br. 3. McKillip states that he felt prison officials were “trying to kill
[him]” and that he suffered emotional distress. He contends that prison officials
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 3
delayed in making the repairs because “[t]hey don’t like [him] around here and they
constantly do things to retaliate against [him].”
McKillip filed a § 1983 suit against several prison officials, alleging that the
lack of running water violated his constitutional rights. In his amended complaint,
McKillip claimed these unsafe cell conditions constituted cruel-and-unusual
punishment in violation of the Eighth and Fourteenth Amendments. The district
court found that this claim did not allege a physical injury, as required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), and dismissed the complaint under 28
U.S.C. § 1915 for failure to state a claim. McKillip also alleged a negligence claim,
and the district court dismissed that claim as well because a § 1983 action cannot
rest on mere negligence. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)
(internal citation omitted). McKillip moved to alter or amend that dismissal under
Federal Rule of Civil Procedure 59(e), but the district court denied that motion.
McKillip timely appealed the dismissal order.
DISCUSSION
In the district court, McKillip proceeded in forma pauperis, so he was subject
to the requirements of 28 U.S.C. § 1915. A district court may dismiss a pro se
prisoner complaint if it fails to state a claim on which relief may be granted.
§ 1915(e)(2)(B)(ii). On de novo review, we apply the standard of Federal Rule of
Civil Procedure 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217–18 (10th Cir. 2007).
“[T]he specific allegations in the complaint [must] . . . plausibly support a legal
claim for relief.” Id. at 1218 (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
3
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 4
1215 n.2 (10th Cir. 2007)). We accept McKillip’s factual allegations as true and
construe them in the light most favorable to him. Id. (quoting Gaines v. Stenseng,
292 F.3d 1222, 1224 (10th Cir. 2002)). Because McKillip is proceeding pro se, we
construe his allegations liberally. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806
(10th Cir. 1999).
McKillip does not appeal the negligence claim beyond a cursory mention of
the word in his opening brief. We decline to consider it here. See Holmes v. Colo.
Coal. for Homeless Long Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir.
2014) (refusing to consider an appellant’s challenge when it was inadequately
briefed on appeal). McKillip appeals the dismissal of his conditions-of-confinement
claim under both the Eighth and Fourteenth Amendments.1 Because the Eighth
Amendment protects McKillip’s right to a habitable prison cell, Battle v. Anderson,
564 F.2d 388, 393 (10th Cir. 1977), we need not analyze his claims “under the more
generalized provisions of substantive due process.” Riddle v. Mondragon, 83 F.3d
1197, 1202 (10th Cir. 1996). To avoid redundancy, we review McKillip’s claims
1
McKillip refers to his claim as a conditions-of-confinement claim in his
statement of the case, and later refers to it as both an “unsafe conditions” and
“deliberate indifference” claim. Courts analyze unsafe prison conditions through
conditions-of-confinement claims. Helling v. McKinney, 509 U.S. 25, 33–34 (1993).
Deliberate indifference is not its own claim under the Eighth Amendment, but rather
is the second prong of a conditions-of-confinement analysis. Barney v. Pulsipher,
143 F.3d 1299, 1307 n.5 (10th Cir. 1998) (“[A] finding of ‘deliberate indifference’ is
. . . required to hold prison officials liable for violating inmates’ Eighth Amendment
right to humane conditions of confinement.”). If McKillip’s deliberate-indifference
claim is intended to address an Eighth Amendment violation for deliberate
indifference to serious medical needs, Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005), McKillip has not given any facts to support this type of claim.
4
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 5
under the Eighth Amendment as applied to the states through the Fourteenth
Amendment. Id.
The Eighth Amendment guarantees McKillip prison conditions that do not
“result in his degeneration” or threaten his mental and physical well-being. Battle,
564 F.2d at 403. But § 1997e(e) authorizes prisoners to bring § 1983 actions “for
mental or emotional injury suffered while in custody” only if the prisoner can also
show physical injury.
We affirm the district court’s dismissal as it relates to McKillip’s claim for
damages because he has not alleged physical injury in this case. His allegation that
he had no access to running water for two weeks, if true, is certainly concerning. But
he states only that this situation somehow caused him to fear for his life and that he
“broke down and started crying a few times.” These emotional injuries cannot
sustain his § 1983 claim for damages. § 1997e(e).
Even so, the district court still needed to address McKillip’s declaratory-relief
claim.2 The physical-injury requirement of § 1997e(e) “does not affect actions for
declaratory or injunctive relief.” Perkins, 165 F.3d at 808. McKillip’s amended
complaint requested “[a] declaration that the acts and omissions described herein
violated [plaintiff’s] rights under the Constitution and laws of the United States.”
McKillip’s claim for declaratory relief was not subject to § 1997e(e) limitations.
Perkins, 165 F.3d at 808.
2
The district court did not differentiate between these claims and simply
dismissed all of McKillip’s claims under § 1997e(e) and § 1915(e)(2)(B)(ii).
5
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 6
But his claim for declaratory relief is now moot. McKillip cannot maintain a
declaratory action unless he shows that the constitutional violation is ongoing, or he
has a “good chance” of suffering the same injury in the future. Green, 108 F.3d at
1300 (quoting Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994),
superseded by statute on other grounds, 42 U.S.C. § 1981a); Jordan v. Wiley, 477 F.
App’x 525, 530 (10th Cir. 2012) (unpublished). McKillip’s interest in declaratory
relief must be more than “simply the satisfaction of a declaration that [he] was
wronged.” Green, 108 F.3d at 1300 (quoting Cox, 43 F.3d at 1348).
The prison staff restored his water on December 31, 2018. He alleges no
ongoing constitutional violation here that declaratory relief can remedy. McKillip
has not alleged any facts to show he will be deprived of running water in the future.
Though two weeks is a significant amount of time, nothing indicates he has a “good
chance” of suffering that injury again. Green, 108 F.3d at 1300; Jordan 477 F.
App’x at 530. We affirm the district court’s dismissal of the declaratory-relief claim
because it is moot. United States v. Schneider, 594 F.3d 1219, 1227 (10th Cir. 2010)
(citations omitted) (explaining that an appellate court can affirm on any indisputable
alternative grounds clearly supported by the record).
Finally, McKillip submitted a motion to proceed on this appeal without
prepayment of costs or fees. The Clerk’s Office assessed the fee and directed
McKillip to make partial payments of the fee out of his prison account. See
§ 1915(b). We grant McKillip’s motion to proceed without prepayment of costs or
6
Appellate Case: 22-3100 Document: 010110770565 Date Filed: 11/17/2022 Page: 7
fees and remind him that he must continue making partial payments until the entire
filing fee is paid in full.
CONCLUSION
We affirm the district court’s order.
Entered for the Court
Gregory A. Phillips
Circuit Judge
7 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8493894/ | MEMORANDUM of DECISION
RALPH B. KIRSCHER, Bankruptcy Judge.
In this Chapter 11 bankruptcy, after due notice, a hearing was held February 7, 2006, in Butte on the Motion to Dismiss Case filed by Fremont Investment and Loan (“Fremont”) on November 22, 2006. Fremont was represented at the hearing by attorney Ross Richardson, of Butte, Montana, and the Debtor was represented by attorney James A. Patten, of Billings, Montana. Kevin Detienne testified. No exhibits were offered into evidence. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.
BACKGROUND
The history of this Debtor was previously set forth by this Court in a Memorandum of Decision entered on July 29, 2005, in Debtor’s prior Chapter 11 bankruptcy case, Case No. 04-63115:
Debtor is a limited partnership that has been family owned since the early 1970’s. Currently, Kevin Detienne (“Kevin”) serves as Debtor’s general partner and Kevin’s sibling serves as a limited partner. Debtor operates as a holding company and its primary asset is a 71 room hotel in downtown Helena, Montana that operates under a franchise agreement with Holiday Inn. The hotel, known as the Holiday Inn Helena Downtown, also has a restaurant, lounge, nightclub, swimming pool, jacuzzi, exercise room and a meeting/convention area.
Park Plaza Hotel, Inc. (“Park Plaza”) oversees the day-to-day activities of the Holiday Inn Helena Downtown. Park Plaza is owned solely by Kevin. Kevin has managed the day-to-day operations of the hotel since 1992 and is currently the General Manager of the hotel and intends to remain in that capacity.
The hotel was constructed in 1971 and was purchased by Debtor in 1984. In 1998, Debtor began an extensive remodel of the hotel which included acquisition of the Holiday Inn franchise. Debtor obtained bids for the remodel project and accepted the bid of a contractor from out of state. The remodel project did not go as planned and Debtor incurred unanticipated expenses to rectify and fix construction defects, resulting in a one year delay of the remodel project and project overages of $790,000.00.1
Kevin testified that Debtor’s financial problems were compounded during the end of the construction project when local area forest fires in 2000 put a damper on summer tourism. Also, between 2000 and 2004, 4 new hotels were built in the Helena area, increasing the supply of rooms in Debtor’s market area by approximately 60 percent.
*321The financial strains caused by the remodel project, reduced tourism as a result of fires in 2000 and an increase in the supply of hotel rooms in the Helena area prompted Debtor to seek protection under Chapter 11 of the Bankruptcy Code on October 13, 2004. As admitted in Debtor’s Amended Disclosure Statement, the “Debtor’s finances ... are intertwined with the operations of the Park Plaza Hotel. The Debtor’s ability to fund the Chapter 11 Plan is dependent, in its entirety, in the ability of Park Plaza Hotel to make the rent payments due to the Debt- or. Therefore, in order to understand and appreciate the Debtor’s financial projections, it is necessary to understand and appreciate the operations of the Park Plaza Hotel.”
Debtor’s Amended Disclosure Statement sets forth several tables summarizing the financial performance of Park Plaza for 2001, 2002, 2003 and 2004. Debtor also provides a table setting forth Debtor’s operating expenses for the same years. The foregoing tables include a rent expense for Park Plaza and rental income for Debtor. According to Kevin’s testimony, Park Plaza has not paid rent to Debtor for some time, as is reflected in the fact that Park Plaza owes Debtor approximately $660,707.00 in past due rent. Also, the expenses for Park Plaza show a property tax expense of $63,763.00 in 2004, $63,798.00 in 2003, $63,798.00 in 2002 and $67,658.00 in 2001. The Court questions whether Park Plaza paid such taxes as Debtor provides for the payment of delinquent property taxes in the sum of $137,000.00.2 At any rate, given the interrelatedness between Debtor and Park Plaza, the Court has reconfigured Debtor’s tables to delete the transactions between Debtor and Park Plaza. In particular, the Court has removed rent expense and rental income. The Court has also excluded noncash items from its tables, such as depreciation and amortization since such items do not impact Debtor’s cash flow. This Court’s table of the income and expenses of Debtor and Park Plaza, as set forth in the Court’s July 29, 2005, Memorandum of Decision, is set forth below, but has been modified to reflect a change reported by Debtor in the average daily rate for 2003, to reflect a change in the rooms sold and percent occupancy for 2004 (presumably to reflect actual numbers rather than a combination of actual and projected), and includes the revised numbers reported by Debtor for 2005:
2001 2002 2003 2004 2005
Rooms Sold 18368 17591 16876 16075 16995
Average Daily Rate Percent Occupancy 68.64 71% 71.63 67.22 65% 66.21 63% 69.07 66%
Rooms 1260741 1260094 1138229 1080720 1173809
Food 757709 562589 541667 496474 542579
Beverage Other Food & Beverage 515265 202066 553555 190467 521027 206072 456306 144227 393795 158713
Telephone 16798 10420 10623 6150 5883
TOTAL REVENUE 2752579 2577125 2417618 2183877 2274779
Room Expense 40017 30224 29852 18521 28328
Room — Payroll 309314 261905 252970 258009 306150
F & B Cost of Sales 466164 453646 465254 432144 437076
F & B — Payroll 584816 538441 474439 432999 427513
DEPARTMENT EXPENSES 1400311 1284216 1222515 1141673 1199067
*322GROSS PROFIT 1352268 1292909 1195103 1042204 1075712
Other Income
Interest Income 62248 8921 12027 9004 9277
REVENUES 1414516 1301830 1207130 1051208 1084989
Other Expenses of Park Plaza
General & Administrative 88768 136275 179326 197463 238480
Marketing 105337 176175 81137 118738 127473
Franchise Fees 138403 72313 116878 107755 120857
Energy 131546 126409 141700 139046 187929
Property Operations & Maintenance 278873 206801 95886 93894 121457
Property Taxes 67658 63798 63798 63763 60446
Insurance 26926 28772 35378 41415 43729
Interest 120079 59693 41424 41439 68545
Mise. Expense 15978 31558 74844 14033 23130
Total other expenses of Park Plaza 973568 901794 830371 817546 992046
Other Expenses of Debtor
Accounting & Legal 8569 8350 2291 9038 16726
Bank Charges 321 262 272 50 0
Consulting Expense 33000 40750 37345 36000 36000
Life Insurance 6036 6036 6036 6036 5254
Lease Expense 6981 7316 7030 1977 0
Mise. Expense 5054 69 16011 279 5278
Total other expenses of Debtor 59961 62783 68985 53380 63258
TOTAL OTHER EXPENSES 1033529 964577 899356 870926 1055304
NET INCOME 380987 337253 307774 180282 29685
In addition to the foregoing, Debtor and Park Plaza report interest expense of $351,912 in 2001, $281,337 in 2002, $249,692 in 2003, $308,289 in 2004, and $297,224 in 2005.
At the hearing on confirmation of Debt- or’s Chapter 11 Plan held June 7, 2005, the parties stipulated that Rocky Mountain Bank is not a creditor of Debtor. Rather, Rocky Mountain Bank has a lien against the liquor license, inventory, accounts, furniture, fixtures, equipment and general intangibles of Park Plaza. Following the hearing on confirmation of Debtor’s Chapter 11 plan, Park Plaza and Rocky Mountain Bank entered into a “Change in Terms Agreement” whereby Park Plaza agreed to make monthly payments of $6,700.00 to Rocky Mountain Bank for a period of 120 months starting July 20, 2005, at an adjustable rate of interest that was 7.75%. Payments under the above Change in Terms Agreement are not reflected in the Court’s above combined summary of operations for Debtor and Park Plaza.
In the same Memorandum of Decision entered July 29, 2005, and per an Order entered that same date, confirmation of Debtor’s Chapter 11 Plan was denied and the case was dismissed. Debtor filed a Motion to Reconsider on August 5, 2005, requesting that the Court reconsider the dismissal of Case No. 04-63115, and allow Debtor to file a plan of liquidation. After notice and hearing, the Court entered an Order on September 6, 2005, finding that the evidence before the Court did not support anything other than dismissal of the case. Debtor’s prior bankruptcy case was then closed on September 26, 2005.
*323The closure of Debtor’s prior bankruptcy was followed by the filing of a second voluntary bankruptcy petition by Debtor on October 14, 2005. The Schedules filed by Debtor in this case are virtually identical to the Schedules filed by Debtor in Case No. 04-63115 and in fact, reflect 04-63115 as the ease number rather than the ease number of this Chapter 11 bankruptcy.3 Debtor filed amended Schedules B, D, F and H on February 3, 2006. Debtor filed a Disclosure Statement and a Chapter 11 Plan, providing for the liquidation of all the Debtor’s assets, on February 6, 2006.
DISCUSSION
As noted above, Fremont filed a Motion to Dismiss on November 22, 2005, seeking the dismissal of this case under 11 U.S.C. § 1112(b), asserting that Debtor commenced this case in bad faith. Section 1112(b) of the Bankruptcy Code provides that “on request of a party in interest ... and after notice and a hearing, the court may ... dismiss a case under this chapter ... for eause[.]” Section 1112(b) then provides a laundry list of items that constitute cause warranting dismissal. Although a debtor’s bad faith in filing a petition is not an enumerated reason for dismissal under § 1112(b), courts have overwhelmingly held that a lack of good faith in filing a Chapter 11 petition establishes cause for dismissal. See, e.g., In re Little Creek Dev. Co., 779 F.2d 1068, 1072 (5th Cir. 1986); In re Stolrow’s, Inc., 84 B.R. 167, 170 (9th Cir. BAP 1988); In re ACI Sunbow, LLC, 206 B.R. 213, 217 (Bankr. S.D.Cal.1997). As aptly articulated by one court:
A case under Chapter 11 may be dismissed for cause pursuant to section 1112 of the Bankruptcy Code if the petition was not filed in good faith. Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 674 (11th Cir.1984). See also Shell Oil Co. v. Waldron (In re Waldron), 785 F.2d 936 (11th Cir.), (Chapter 13 petition dismissed because of bad faith filing.), cert, dismissed, 478 U.S. 1028,106 S.Ct. 3343, 92 L.Ed.2d 763 (1986).
In re Phoenix Piccadilly, Ltd., 849 F.2d 1393,1394 (11th Cir.1988).
The decision whether to dismiss a case for a lack of good faith “is a matter for the bankruptcy court’s discretion.” Stolrow’s, 84 B.R. at 170. A determination of bad faith is made after examining a totality of the circumstances:
[TJhere is no particular test for determining whether a debtor has filed a petition in bad faith. Instead, the courts may 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 secured creditors to enforce their rights.” In re Albany Partners, Ltd., 749 F.2d at 674.
Phoenix Piccadilly, 849 F.2d at 1394. In a well reasoned opinion, the Bankruptcy Court for the Southern District of California fashioned a test for determining the existence of bad faith:
*324In the Ninth Circuit, the Fifth Circuit’s Little Creek decision is followed. In In re Arnold, 806 F.2d 937 (9th Cir.1986) the court wrote:
The existence of good faith depends on an amalgam of factors and not upon a specific fact. [Citing Little Creek] The bankruptcy court should examine the debtor’s financial status, motives, and the local economic environment.
806 F.2d at 939. In re Marsch, 36 F.3d 825, 828 (9th Cir.1994). In the latter case, the court recognized:
The term “good faith” is somewhat misleading. Though it suggests that the debtor’s subjective intent is determinative, this is not the case. Instead, the “good faith” filing requirement encompasses several, distinct equitable limitations that courts have placed on Chapter 11 filings.
Id. The court thus makes clear that objective factors will also support “for cause” dismissals, not subjective bad faith only. Indeed, that is consistent with § 1112(b), but Marsch does not hold, nor should it that regardless of how subjectively improper a debtor’s motives, dismissal or relief from stay cannot be granted unless objective futility is established. Such a holding would eviscerate the “for cause” provisions of § 362(d)(1) and § 1112.
In the earlier decision In re Thirtieth Place, Inc., 30 B.R. 503, 505 (9th Cir. BAP 1983), cited with approval in Arnold, the court observed:
Chapter 11 of the Bankruptcy Code has one purpose; the rehabilitation or reorganization of entities entitled by statute to its relief,____
In re ACI Sunbow, LLC, 206 B.R. 213, 221 (Bankr.S.D.Cal.1997). Consistent with the foregoing, the Court in Stolrow’s articulated eight factors that are generally present in bad faith cases and which may be considered by court’s:
(1) The debtor has only one asset.
(2) The secured creditors’ lien encumbers that asset.
(3) There are generally no employees except for the principals.
(4) There is little or no cash flow, and no available sources of income to sustain a plan of reorganization or to make adequate protection payments.
(5) There are few, if any, unsecured creditors whose claims are relatively small.
(6) There are allegations of wrongdoing by the debtor or its principals.
(7) The debtor is afflicted with the “new debtor syndrome” in which a one-asset equity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors.
(8) Bankruptcy offers the only possibility of forestalling loss of the property-
Stolrow’s, 84 B.R. at 171.
In the instant case the totality of the circumstances show that Debtors cannot satisfy either the objective test or the subjective test for good faith. The objective futility inquiry is designed to insure that there is embodied in the petition “some relation to the statutory objective of resuscitating a financially troubled [debt- or].” In re Coastal Cable TV, Inc., 709 F.2d 762, 765 (1st Cir.1983). A court should therefore concentrate on assessing whether “there is no going concern to preserve ... and ... no hope of rehabilitation, except according to the debtor’s ‘terminal euphoria.’ ” Little Creek, 779 F.2d at 1073.
In the case sub judice, the Debtor’s projections for 2005, as set forth in its *325Amended Disclosure Statement filed February 28, 2005, in Case No. 04-63115, were vastly different from the numbers reported by Debtor in the Disclosure Statement filed by Debtor in this case on February 6, 2006. The differences are as follows:
2005 Income and Expenses Reported by Debtor In 2005 2005 Income and Expenses Projected by Debtor In 2004
Rooms Sold 16995 16648
Average Daily Rate Percent Occupancy 69.07 66% 69.56
Rooms 1173809 1158000
Food 542579 506403
Beverage Other Food & Beverage Telephone TOTAL REVENUE 158713 5883 2274779 147112 6273 2283220
Room Expense Room — Payroll F & B Cost of Sales 28328 306150 437076 18891 263169 388734
F & B — Payroll DEPARTMENT EXPENSES 427513 1199067 441659 1112453
GROSS PROFIT 1075712 1170767
Other Income
Interest Income 9277 0
REVENUES 1084989 1170767
Other Expenses of Park Plaza General & Administrative 238480 116444
Marketing Franchise Fees 127473 120857 121112 115800
Energy Property Operations & Maintenance Property Taxes Insurance 187929 121457 60446 43729 141827 95772 65038 42244
Interest 68545
Mise. Expense Total other expenses of Park Plaza 23130 992046 14314 712551
Other Expenses of Debtor Accounting & Legal Bank Charges Consulting Expense Life Insurance 16726 0 36000 5254 5000 100 0 0
Lease Expense Mise. Expense 0 5278 0 200
Total other expenses of Debtor 63258 5300
TOTAL OTHER 1055304 717851
EXPENSES
29685 452916 NET INCOME
*326The above numbers highlight Debtor’s and Park Plaza’s dismal financial picture and demonstrate Debtor’s “terminal euphoria”. Debtor projected in early 2005 that it and Park Plaza would generate revenues of $452,916, which revenues could be used to pay on the obligations owing to: (1) Rocky Mountain Bank in excess of $500,000; (2) Lewis & Clark County, which Fremont asserts is in excess of $185,000; (3) Fremont in excess of $3,000,0000; (4) Mountain West Bank of roughly $293,441.18; (5) American Casualty of $118,000; and (6) the Small Business Administration of $312,575.76.4 In addition to the foregoing, Debtor’s Schedules filed in this case reflect a new secured obligation owing to Richard Shepherd in the sum of $110,157.20. In sum, Debtor has incurred additional debt, has not made a single payment to Fremont, and presumably has not made any payments to Lewis & Clark County, American Casualty or the Small Business Administration.
Further showing Debtor’s dismal financial picture is the fact that Debtor’s cash position is listed by Debtor at exactly the same amount as it was in 2004, namely that Debtor has two certificate of deposits totaling $36,112.02 and a negative checking account balance of $3,363.35. Debtor contemplates in the Disclosure Statement filed February 6, 2006, that it will somehow be able to miraculously pay $386,000 in administrative expenses upon confirmation. Based upon the numbers provided by Debtor, Debtor does not have the funds to pay even its projected administrative expenses.
The subjective bad faith inquiry is aimed at determining whether the petitioner’s real motivation is “to abuse the reorganization process” and “to cause hardship or to delay creditors by resort to the Chapter 11 device merely for the purpose of invoking the automatic stay, without an intent or ability to reorganize his financial activities.” Carolin Corp. v. Miller, 886 F.2d 693, 702 (4th Cir.1989) (quoting In re Thirtieth Place, Inc., 30 B.R. 503, 505 (9th Cir. BAP 1983)). Debtor’s historical financial numbers clearly show that Debtor filed this Chapter 11 case solely to invoke the automatic stay, thereby frustrating and delaying Fremont’s scheduled foreclosure sale.
Compelling evidence against Debtor is found in the Statement of Business Income and Expenses that accompanied the Schedules filed by Debtor in Case No. 04-63115, wherein Debtor disclosed its gross income for the previous 12 months as $369,000 and its total monthly expenses at $6,503. In the Statement of Business Income and Expenses filed in this case nearly one year later, Debtor discloses in the Statement of Business Income and Expenses that its gross income for the previous 12 months dropped to $136,483.33, while monthly expenses remained the same.
The foregoing is troubling in two respects. First, Debtor admittedly experienced a drastic drop in gross income from October of 2004 to October of 2005. Second, other than some minor interest income, Debtor’s sole source of revenue stems from rental income owed to Debtor by Park Plaza. According to prior testimony, Park Plaza has not made any rent payments to Debtor in sometime, which is partially reflected in Debtor’s amended Schedule B filed February 3, 2006, which *327lists an accounts receivable owed by Park Plaza to Debtor in the sum of $l,126,976.58.5 Kevin testified in Debtor’s prior bankruptcy that the above obligation was essentially uncollectible.
Finally, Debtor entered into a Stipulation for Adequate Protection with Fremont. The Stipulation was filed with the Court on February 1, 2006, was approved by the Court on February 2, 2006, and provides for monthly adequate protection payments of $17,500. Debtor, without rental income from Park Plaza, has no ability to make the agreed adequate protection payments. Moreover, using the combined income and expense figures of Debtor and Park Plaza for 2005, the two entities combined had enough income during the entire year to make less than 2 adequate protection payments to Fremont.
The historical financial evidence in this case shows that this Debtor is simply going further into the hole each and every day. At this late stage in the game, no going concern value exists to preserve and the time has come to put this Debtor in its final resting place. Accordingly, the Court will enter a separate order providing as follows:
IT IS ORDERED that a separate order will be issued by this Court providing that the Motion to Dismiss Case filed by Fremont Investment and Loan on November 22, 2006, is GRANTED; and this case is dismissed for cause pursuant to 11 U.S.C. § 1112(b).
. As a result of the construction defects, Debt- or obtained a judgment against Designtex Enterprises in the sum of $2,012,281.00, but Debtor does not believe it will be able to collect on the judgment.
. Exhibit A attached to Fremont's post-hearing brief reflects that Debtor may actually owe in excess of $185,000.00 for past due property taxes.
. The Court would note that the List of Creditors Holding 20 Largest Unsecured Claims filed by the Debtor in both this case and the prior bankruptcy case list Kevin as a creditor. The inclusion of Kevin as a creditor is a violation of F.R.B.P. 1007(d), which reads: "In addition to the list required by subdivision (a) of this rule, ... a debtor in a voluntary chapter 11 reorganization case shall file with the petition a list containing the name, address and claim of the creditors that hold the 20 largest unsecured claims, excluding insiders[.]”
. The above amounts do not include administrative claims, priority claims or general unsecured claims.
. This obligation increased from $660,707.00 as set forth in Schedule B filed in Debtor's prior bankruptcy case. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484780/ | 11/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0054
No. DA 22-0054
SHANDOR S. BADARUDDIN,
Appellant,
v.
THE STATE OF MONTANA &
THE NINETEENTH JUDICIAL DISTRICT,
Appellees.
ORDER
Pursuant to authority granted under Mont. R. App. P. 26(1),
Appellee the State of Montana is given an extension of time until
February 22, 2023 to prepare, file and serve its answer brief.
Electronically signed by:
1 Mike McGrath
Chief Justice, Montana Supreme Court
November 17 2022 | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484781/ | 11/17/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 16, 2022 Session
JENNIFER GABY v. TONY GABY
Appeal from the Circuit Court for Greene County
No. 15CV259TJW Thomas J. Wright, Judge
___________________________________
No. E2022-00217-COA-R3-CV
___________________________________
This is the second appeal of this action concerning the father’s petition to modify the
permanent parenting plan for his two children. In the first appeal, we remanded the case
back to the trial court for submission of additional findings of fact and conclusions of law.
The father now appeals the decision on remand. We vacate the order of the trial court and
remand for entry of a new permanent parenting plan for the remaining minor child.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II and KRISTI M. DAVIS, JJ., joined.
Crystal G. Jessee, Greeneville, Tennessee, for the appellant, Tony Gaby.
Joseph O. McAfee, Greeneville, Tennessee, for the appellee, Jennifer Gaby.
OPINION
I. BACKGROUND
Tony Gaby (“Father”) and Jennifer Gaby (“Mother”) married in 2003. Two children
were born of the marriage, “P.” and “A.” (collectively “the Children”), in November 2004
and July 2007, respectively. The parties were divorced by order of the trial court on August
11, 2017.
The divorce decree incorporated a permanent parenting plan, in which Mother was
named primary residential parent of the Children. The trial court limited Father’s co-
parenting time to 52 days per year as a result of his “apparent lack of an emotional
attachment to the Children, his anger management issues, and his unusual work schedule,
which made it difficult for him to spend time with the Children.” Gaby v. Gaby, No.
E2020-00790-COA-R3-CV, 2021 WL 3719359, at *1 (Tenn. Ct. App. Aug. 23, 2021).
On August 30, 2018, Father petitioned the trial court to modify the permanent
parenting plan, asserting that he had taken significant steps to improve himself and his
relationship with the Children. He requested equal co-parenting time. Mother moved for
dismissal of the petition. During the pendency of the hearing, Father’s relationship with P.
deteriorated to the point that she refused to cooperate with his co-parenting time. Her
refusal was primarily related to Father’s alleged favoritism toward her sister and his
relationship with his live-in girlfriend, referred to as “Michelle.”
The case proceeded to a hearing on December 2, 2019, at which multiple witnesses
testified. Father testified that he changed his schedule to work Monday through Friday
from 1 a.m. to 1 p.m., allowing him to be with the Children during the weekday after school
and on the weekends. He admitted that if the Children stayed with him during the week,
then Michelle or the paternal grandparents would supervise the Children at night and get
them ready for school the next morning.
Father stated that he worked with a counselor to introduce Michelle to the Children.
He claimed that they responded well to her and that A. had formed a healthy relationship
with her. He admitted that he has recently had difficulty maintaining a healthy relationship
with P. and that she now refuses to come with him for his co-parenting time or even answer
his telephone calls. He claimed that Mother failed to encourage P. to maintain the
relationship and that Mother also refused to attend counseling with them, stating that she
was not the problem in the relationship.
P. testified that she did not feel comfortable with Father and that he made her feel
guilty instead of working to improve the relationship. She agreed that he attended her
extracurricular activities but claimed that he only attended to appease the trial court. She
further claimed that she witnessed Father and Michelle fighting.
A. agreed that she mostly enjoyed her time with Father and Michelle but admitted
that she had also witnessed disagreements between them. She stated that her main concern
with Father was his treatment of her sister and her sister’s reluctance to visit. She explained
that she did not want to hurt anyone and felt “caught in the middle.”
Mother testified that the Children are doing well in school and are both involved in
extracurricular activities. She confirmed that A. cooperated with Father’s co-parenting
time and sometimes stayed longer at his house than scheduled. She stated that she had
-2-
some concerns about the clothing that A. purchased while with Father and that she had also
overheard a heated discussion between Father and Michelle. She explained that she was
talking to A. on the telephone when she suddenly heard loud yelling in the background.
She also expressed concerns regarding Father’s ability to provide structure for the Children
during the weekday when homework is required or when they need to arrive in a timely
manner for their extracurricular activities. She stated that despite their differences, they
remain civil and work well dividing their time with the Children.
Mother stated that P. had more difficulty with Father’s co-parenting time. She
explained that P. expressed her hesitation about her time with him and sometimes refused
to cooperate. Mother denied advising P. not to attend but asserted that she could also not
make her attend. She was concerned that forcing visitation would damage their
relationship and increase P.’s anxiety in the situation.
Following the hearing, the trial court entered an order finding that there had been a
material change of circumstance based upon Father’s new schedule that increased his
availability for the Children and Mother’s failure to facilitate Father’s relationship with the
Children. The court failed to issue specific findings of fact in support of its decision that a
modification of the current plan was in the best interest of the Children. Rather, the court
offered a cursory explanation that the “best interest” factors remained as previously found
in the prior court hearing. The court modified the plan to increase Father’s co-parenting
time from 52 to 90 days, with the added time occurring in the summer months.
Father appealed to this court, arguing that the trial court failed to issue sufficient
findings of fact and requesting equal co-parenting time with the Children. Neither party
disputed the trial court’s conclusion that there had been a material change of circumstances.
A panel of this Court remanded the case to the trial court for entry of an order containing
required findings of fact and conclusions of law necessary for meaningful appellate review.
Gaby, 2021 WL 3719359, at *1.
Upon remand, the trial court held a hearing on January 14, 2022. The parties were
permitted to present arguments on the best interest analysis. Father’s counsel requested
further specificity on the trial court’s best interest findings and further explanation on the
calculation of total days of parenting time. The parties provided the trial court with copies
of their appellate briefs, which contained their analyses of the best interest factors set forth
in Tennessee Code Annotated section 36-6-106(a).
By order entered January 20, 2022, the trial court set forth detailed findings on the
best interest factors and concluded that the children’s best interest would be served by
modifying the parenting plan to provide “a week about schedule during the summer
months, continuing the every other weekend schedule during the school year, and having
an equal split of the holidays and vacation times.” The trial court noted that this order
-3-
supplemented its previous April 3, 2020, order. The parenting time remained the same: 90
days to Father and 275 to Mother. Father filed this timely appeal.
II. ISSUE
The sole and dispositive issue on appeal is as follows: Whether the trial court erred
as a matter of law by failing to maximize Father’s time with the Children, providing him
with only 90 days of co-parenting time.
III. STANDARD OF REVIEW
“A trial court’s determinations of whether a material change in circumstances has
occurred and whether modification of a parenting plan serves a child’s best interests are
factual questions.” Armbrister v. Armbrister, 414 S.W.3d 684, 692 (Tenn. 2013) (citing In
re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)). Therefore, “appellate courts must
presume that a trial court’s factual findings on these matters are correct and not overturn
them, unless the evidence preponderates against the trial court’s findings.” Id.; see also
Tenn. R. App. P. 13(d). Likewise, trial courts have “broad discretion in formulating
parenting plans” because they “are in a better position to observe the witnesses and assess
their credibility.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister,
414 S.W.3d at 693). On appeal, we review a trial court’s decision regarding parenting
schedules for an abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Eldridge v.
Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). “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.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court
abuses its discretion in establishing a residential parenting schedule “only when the trial
court’s ruling falls outside the spectrum of rulings that might reasonably result from an
application of the correct legal standard to the evidence found in the record.” Eldridge, 42
S.W.3d at 88.
IV. DISCUSSION
The trial court found and the parties agreed on appeal that a material change in
circumstances had occurred that necessitated a change in the residential schedule.
Accordingly, the trial court’s opinion on remand and our review on appeal concerns
whether the modification itself was in the best interest of the Children pursuant to
Tennessee Code Annotated section 36-6-106(a). Father argues on appeal that the trial court
failed to fashion a plan that would permit each parent’s maximum participation in the
-4-
Children’s lives. He requests equal co-parenting time and suggests that such an
arrangement would be in the best interest of the Children.
The best interest determination “is a fact-sensitive inquiry.” Steakin v. Steakin, No.
M2017-00115-COA-R3-CV, 2018 WL 334445 at *5 (Tenn. Ct. App. Jan. 9, 2018). The
determination “‘does not call for a rote examination of each of [the relevant] factors and
then a determination of whether the sum of the factors tips in favor of or against the
parent.’” Id. (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)). Rather,
“‘[t]he relevancy and weight to be given each factor depends on the unique facts of each
case.’” Id. The trial court is directed to consider the following factors when conducting
the best interest analysis:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s past and potential for future performance of parenting
responsibilities[;]
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined
as the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent
and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
with the child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
-5-
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. The court shall, where appropriate, refer any
issues of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person's interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older . . .;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a)(1)–(15) (emphasis added).1
As with all cases, we recognize that time has marched on during this litigation. P.
attained the age of majority during the pendency of this appeal in November 2022. She is
no longer subject to the parameters of the trial court’s permanent parenting plan. Our
review of the opinion on remand reveals that the trial court placed great weight on the
sibling relationship in determining the residential schedule in accordance with the best
interest of both children. The court referenced P.’s strained relationship with Father in its
consideration of Factors 1, 6, 9, 12, 13, and 14. Citing Factor 15, the court further found
that Father evidenced significant effort in his attempt to improve his parental role but that
any progress was stalled due to P.’s feelings toward him. The court explained throughout
the opinion that A. desired more time with Father at one point but that she now presented
as a reluctant participant, in part, due to her allegiance to the sibling relationship.
With these considerations in mind, we hold that remand, once again, is appropriate
for the trial court to solely consider the best interest of A., the only remaining minor child
subject to the parameters of a permanent parenting plan. Upon remand, we encourage the
parties to work together with the trial court to fashion a residential schedule that is in the
minor child’s best interest and that maximizes each parent’s participation in her life for the
remainder of her adolescence.
1
Effective March 18, 2022, the General Assembly has amended Tennessee Code Annotated § 36-
6-106(a) by adding a new subdivision for the court’s consideration, requiring the court to consider 16
factors. See 2022 Tenn. Pub. Acts, Ch. 671 § 1 (H.B. 1866). However, because the petition in this case
was filed before the effective date of the amendment, the statutory best interest factors provided in the prior
version of the statute apply here. See, e.g., In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
-6-
V. CONCLUSION
For the reasons stated above, we vacate the decision of the trial court. The case is
remanded for entry of a revised permanent parenting plan for the remaining minor child.
Costs of the appeal are taxed equally to the parties, Jennifer Gaby and Tony Gaby.
_________________________________
JOHN W. MCCLARTY, JUDGE
-7- | 01-04-2023 | 11-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484783/ | 11/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0479
No. DA 21-0479
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DANIEL M. ALLEN,
Defendant and Appellant.
GRANT OF EXTENSION
Upon consideration of Appellee’s motion for a 30-day extension of time,
and good cause appearing therefor, Appellee is granted an extension of time to
and including December 24 2022, within which to prepare, file, and serve its
response brief.
BF Electronically signed by:
Bowen Greenwood
Clerk of the Supreme Court
November 17 2022 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484784/ | 11/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0585
DA 20-0585
I-
DONNIE LEE STANDLEY,
NOV 1 7 2022
Petitioner and Appellant, Bovv wood
C. 7,t Court
t,,„ to ot ,,ontana
v. ORDER
STATE OF MONTANA,
Respondent and Appellee.
Before this Court are three motions filed by self-represented Appellant Donnie Lee
Standley. Standley moves to expand the record to include the record from federal cases in
the United States District Court and the Ninth Circuit Court of Appeals. He moves to "copy
forward service" because where he is incarcerated, he cannot make or pay for copies of
any other documents. Lastly, Standley moves to request a waiver of the required service
of copies to opposing counsel as well as to provide copies of other court decisions from his
federal cases. The State has not filed a response to any of these motions, most likely in
part due to the lack of service to the State.
Upon review of this Court's docket for this appeal, Standley filed his reply brief on
November 15, 2022, and on that day, the case was sent to this Court. We will ensure that
opposing counsel receives a copy of the reply brief. This Court, however, cannot provide
Standley with his other requested relief. We decline to expand the record to include his
federal cases, because it is improper, and we decline to serve opposing counsel with his
motions or other court documents. As a result, his request for a waiver is not necessary.
A decision will be issued in due course. Therefore,
IT IS ORDERED that Standley's Motion to Expand the Record, Motion Requesting
Copy Forward Service, and Motion Requesting Court Order and Waiver of Procedural
Compliance are all DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record along with
a copy of Standley's reply brief and to Donnie Lee Standley personally.
DATED this ) --9-. -ffiy of November, 2022.
For the Court,
Chief Justice
2 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484782/ | Filed 11/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JESSICA LOY et al., B315313
Plaintiffs and Respondents, Los Angeles County
Super. Ct. No. 19STCV45035
v.
TRINA KENNEY et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Barbara Marie Scheper, Judge. Affirmed.
Ewaniszyk Law Firm, Richard M. Ewaniszyk; Arias &
Lockwood, Christopher D. Lockwood; Law Office of Donald W.
Reid and Donald W. Reid for Defendants and Appellants.
Cotchett, Pitre & McCarthy, Gary A. Praglin, Theresa E.
Vitale; Animal Legal Defense Fund, Isabel F. Callejo-Brighton
and Christopher Berry for Plaintiffs and Respondents.
____________________
Dog buyers claimed a puppy mill victimized them. They
said the mill advertised online, negotiated by text, arranged
parking lot meetups, insisted on cash, and sold underage puppies
that sickened within one day and soon died. The buyers alleged
the mill was the Kenney family: parents Trina and Rick and
their children Jezriel and Elijah. Nine buyers, joined by Caru
Society for the Prevention of Cruelty to Animals, sued the
Kenneys and moved for a preliminary injunction. The trial court
found the plaintiffs were likely to succeed in proving the Kenneys
had violated several statutes, including the Consumers Legal
Remedies Act. (Civ. Code, § 1750 et seq. (the Act).) One theory
was false advertising: it was wrong to represent the puppies
were healthy when in truth they were not. Pending trial, the
court granted a preliminary injunction barring the Kenneys from
advertising or selling dogs.
The Kenneys appeal the preliminary injunction. As a
group, they filed a single opening brief and a single reply: they
appeal as one group with a unified legal position. We treat the
four as a bloc.
The Kenneys’ main complaint is no proof showed they were
the ones selling these dogs. The trial court was right, however, to
reject this identity defense and to find the Kenneys were the dog
sellers. The court was also right to find likely harm to the public
justified the preliminary injunction. We affirm.
I
The dog buyers and Caru alleged the Kenneys sold puppies
by representing them as healthy when in fact the puppies were
sickly and soon died. The Act allows damaged consumers to sue
for an injunction if a seller represents goods have qualities they
2
do not have. (Civ. Code, §§ 1770, subd. (a)(5), 1780, subd. (a)(2).)
The plaintiffs also alleged other theories against the Kenneys.
The buyers and Caru moved for a preliminary injunction
barring the Kenneys from advertising or selling dogs. The
moving papers included declarations from three dog buyers:
Brandon Swigart, Jessica Loy, and Anthony Paradise. Humane
Society Officer Frank Padilla described the history of
enforcement efforts against the Kenneys related to puppy sales.
The moving papers excerpted the Kenneys’ depositions.
We detail some of this evidence in the next section.
II
The Kenneys claim no admissible evidence supported the
injunction.
We use a deferential standard to review this claim. We
affirm a decision about whether to grant a preliminary injunction
unless the decision is an abuse of discretion. (BBBB Bonding
Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 364 (BBBB).) In
applying this standard, we review the record as a whole and
accept all evidence supporting the order. We disregard contrary
evidence, we draw inferences in favor of the order, and we do not
reweigh evidence. (Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 581.) This holds for both implicit and explicit
factual findings. Lack of specificity does not undermine a finding
if the record reveals rational support. (Letgolts v. David H. Pierce
& Associates, PC (2021) 71 Cal.App.5th 272, 286.) If supported
by substantial evidence, the trial court’s findings govern our
review. (Schmidt, at p. 582.) We review the trial court’s decision,
not its reasoning. (See Kokubu v. Sudo (2022) 76 Cal.App.5th
1074, 1082.) We review evidentiary rulings for abuse of
3
discretion. (Jane IL Doe v. Brightstar Residential Inc. (2022) 76
Cal.App.5th 171, 176.)
A
The Kenneys’ main factual complaint is about identity: we
weren’t the sellers. They say the buyers’ declarations lacked
proper evidentiary foundations to identify the Kenneys as the dog
sellers. The Kenneys maintain “unidentified people” ran the
puppy mill and sold those dogs.
Overwhelming evidence demolishes this complaint.
1
We review the three declarations from buyers Swigart, Loy,
and Paradise to pinpoint the issue.
a
Swigart declared he and his wife were searching for a type
of puppy called a labradoodle. Swigart texted the phone number
listed in a Craigslist online ad picturing puppies for $1,250 each.
On February 2, 2019, the seller texted that “my son” could
be at “a safe public place”: 2700 E. Workman St., West Covina,
CA 91791. Swigart lived in Huntington Beach but was willing to
drive to the West Covina address to buy the dog. Swigart arrived
and texted the seller that he and his wife were “here in the
parking lot.” They waited for the seller for over an hour before
texting, “We will wait another 15 [minutes] and then we are
taking off.” The seller texted back, “Hi i am so sorry I don’t know
what happened he was suppose[d] to be there an hour ago!!! I
will try to get ahold of him but I’m still at work.” On account of
the delay, the seller reduced the price to $1,200.
Swigart declared, “The seller’s daughter ended up meeting
us with the puppies instead of the seller’s son.” The Swigarts
paid the daughter $1,200 and took a dog home.
4
Once home, the Swigarts’ new dog immediately fell
mortally ill. They took out a line of credit and paid about $9,000
in vet bills to try to save it.
On March 9, 2019, the vet euthanized the Swigarts’ dog. In
the interim, the Swigarts washed the dog and discovered it had
been dyed brown.
The Kenneys challenge the portion of Swigart’s declaration
where he stated, “We paid the seller’s daughter, [whom] we later
learned was Jezriel Kenney after seeing her photograph.” They
say Swigart did not append this photograph and did not explain
where he got it, which provided inadequate foundation. This
poses the identification issue about which the Kenneys appeal.
b
The Kenneys level a similar challenge to the declaration of
Loy, who declared, “The seller, who I later learned was Trina
Kenney, denied selling us Bear and then threatened me with a
racial slur.” “Bear” is what Loy named the dog she and her
family bought for $1,000 cash in the parking lot of a taco
restaurant. Loy bought the dog on the representation it was nine
to 12 weeks old. The dog sickened on the drive home and later
died. It had been dyed brown.
The Kenneys say Loy “provided no personal knowledge
basis for contending the seller was Trina Kenney.” This again
poses the identification issue.
c
The Kenneys make the same attack on the Paradise
declaration. Paradise swore he paid $1,800 cash for a dog he
bought in a Starbucks parking lot. The dog was advertised as
eight weeks old. “On May 1, 2020, we met the seller, Trina
Kenney, and her minor daughter in the Starbucks parking lot
5
located at 101 Barranca Avenue, West Covina, California, 91791.
Trina arrived in a brand-new Mercedes.”
Paradise’s new puppy died within days.
The Kenneys object that Paradise “stated no personal
knowledge basis for contending the people he met are Trina
Kenney or her daughter. This is speculation not based on
personal knowledge.”
2
Abundant proof supported the trial court’s identity finding
that it was the Kenneys who sold puppies to Swigart, Loy, and
Paradise. The Kenneys’ deposition testimony lavishly
established their identity as puppy sellers: they sold puppies in
the past, they had kennel facilities on the family property, and
they had an elaborate puppy sale history with local humane
society officials. Deposition testimony, together with the Padilla
and buyers’ declarations, also showed these particular sales fit
the Kenneys’ standard methods: dyed puppies, Craigslist,
parking lots, and so on. There was no mystery about the
Kenneys’ identity as the dog sellers. We review this extensive
proof.
a
In her deposition, Trina Kenney admitted she did sell
puppies.
When asked where she got the puppies she sells, Trina
Kenney testified she bought them “off of Craigslist, buying and
reselling. Recycler. Facebook. Sometimes word of mouth.”
“Q: So you purchase the puppies yourself from somebody
else and then you resell them?
“A: Yes, I have.”
6
Trina Kenney suggested she resold puppies in as little as
an hour.
“Q: So in the hour between when you obtain these pets,
these puppies from a seller and then reselling them, do you ever
vaccinate them?
“A: Of course.
“Q: So in a one-hour span you vaccinate these dogs?
“A: Yeah, it’s really fast. Takes me like—seriously like 30
seconds to do one dog.”
She said she provided vaccination records to puppy buyers
“[i]f they ask for it.” When asked “Have any of these vaccinations
ever come from a veterinarian?”, Trina Kenney answered, “No,
not that I can recall.”
b
Rick Kenney also admitted many relevant facts.
He admitted that “Animal Control has visited my Property
unannounced numerous times to investigate complaints that my
family is selling sick puppies.”
He likewise admitted that in 2018 “Animal Control”
assisted the Humane Society in seizing 32 dogs from his property
on Daisy Lane in Phelan, California. The seizure was pursuant
to a search warrant for “[a]ny and all dogs that appear sick.”
The record contains a picture of Rick Kenney holding a
small puppy. There likewise are photos of the Kenneys’ Daisy
Lane property showing an extensive block of outdoor kennel
cages on a concrete pad. The kennel cages are tall and wide, in a
contiguous line, and detached from other structures. Each cage is
large enough to hold many dogs, and there are many cages.
c
Jezriel Kenney also made pertinent admissions.
7
She admitted that, during a raid for puppies, officials
interviewed her regarding dogs. This raid and interview were at
her father’s house on Daisy Lane, where she then lived. Jezriel
Kenney identified pictures of “the kennels at my dad’s house” on
Daisy Lane.
When asked whether she had ever heard her father had
sold puppies, Jezriel Kenney answered, “I don’t know. I don’t
think so. I don’t know. I guess.”
The wording of this answer creates a cascade of inferences.
Jezriel Kenney sold labradoodle puppies online through
Craigslist.
When asked, “Did the Kenney family ever give puppies
shots before selling them?”, Jezriel Kenney answered yes. She
personally had given injections to puppies: “It comes with two
little vials, you mix them together and then you administer the
shot to the puppy.”
“Q: . . . So who fills out the vaccination record?
“A: If they’re not filled out, then I usually let the people fill
them out. I’ll put the date that the puppy had the shot, but then
the rest of the information is for the owner of the puppy.
“Q: So you’re the person who writes in the information on
the date that you gave the puppy the shot, right?
“A: If the puppy did not come with a record, then yes.
Sometimes it’s me, sometimes it’s the person [whom] I get the
puppy from.
“Q: And when you give a vaccine do you put some barcode
or a label on the shot record so that the puppy owner can know
what vaccine was given?
“A: Yeah, whatever it comes with you give them.”
8
Jezriel Kenney did not keep records of shots she gave
puppies.
d
Humane Society Officer Frank Padilla supplied information
about the Kenneys’ puppy business.
Padilla had worked for the Humane Society of San
Bernardino Valley for 15 years. In about 2012, his office began
receiving complaints about online sales of sick and underage
puppies and set up an undercover buy. Siblings Jezriel and
Elijah Kenney showed up at the arranged locale with two
puppies. The two Kenneys claimed they had been dropped off to
make the sale. They ran away without the puppies while the
officer waited for the sheriff’s department to arrive. The officer
seized the dogs and later got a call from a man saying he was
Rick Kenney, father of Jezriel and Elijah Kenney. The office’s
investigation revealed the family included father Rick Kenney,
his wife Trina Kenney, and their children Jezriel and Elijah. (A
third child is not involved in this appeal.) The children were
minors at the time, and the adults were using their minor
children as fronts to make the sales.
In 2014, Padilla’s office was involved in another sting
against the Kenneys. A person bought a puppy from Rick
Kenney, and the puppy turned out to be sick. The disgruntled
buyer gave Padilla’s office a picture of Rick Kenney holding a
puppy. Padilla’s office set up another sting. Rick Kenney arrived
in the car with his five-year-old daughter, who is not involved in
this case. The child got out of the car to deliver the puppy but
then Rick Kenney—apparently sensing the operation was a
sting—drove off and left his five year old in the parking lot.
9
In 2017, Padilla set up another sting on the Kenneys in
Rancho Cucamonga. Padilla’s office responded to a Craigslist ad
for a puppy, and the Kenneys set a location for the sale. The
entire Kenney family arrived. Rick Kenney sent his daughter
Jezriel out of the car with the puppy to meet the buyer. Officers
arrested Rick Kenney for driving on a suspended license and took
him to jail in handcuffs. The officers cited Trina Kenney for
doing business without a license.
In 2018, officers executed a search warrant on the Kenneys’
Daisy Lane property and arrested Rick Kenney for being a felon
in possession of a firearm. The Humane Society seized 32
puppies and dogs. Padilla saw the living conditions for the
animals were “unhealthy and cruel.”
In the garage, Padilla found a litter of 10 puppies of age six
to eight weeks. The mother dog was not there, and the puppies
were encrusted with feces and diarrhea. There was no food or
water there, and Padilla found no dog or puppy food anywhere on
the property. Padilla confiscated the puppies for their safety but
within hours they showed symptoms of Parvo virus and several
had to be euthanized. Parvo is very contagious and can spread
easily to puppies and dogs with immune problems. The virus
does not show symptoms for the first few days, but the infected
animals can spread the disease. It then is difficult to sterilize the
dogs’ area. Padilla declared the “lack of drains and the
contamination of the dirt observed around the Kenney kennels
would make it nearly impossible to get rid of the virus.”
One of the few puppies to survive turned from brown to
white when bathed, showing the dog’s fur had been dyed.
The search of the Daisy Lane property turned up hair dye
and vaccination records but no vaccines and no syringes. Officers
10
seized six computers and cell phones. Software on the smart
phones allowed the user to generate additional numbers to send
and receive texts. The software “gives you the ability to change
numbers as many times as needed and start with new numbers
again.”
During the search, Trina Kenney said words to the effect
that “you will not stop us from selling puppies.”
e
The Kenneys objected to the Padilla declaration in the trial
court on the grounds it was improper character evidence. The
trial court overruled this objection because the “evidence is being
offered to demonstrate the identity of the sellers as Defendants,
as well as opportunity, intent, and a common plan. (Evid. Code,
§ 1101; see e.g., People v. Edwards (2013) 57 Cal.4th 658, 713.)”
On appeal, the Kenneys by omission abandon their
character evidence objection: their opening brief cites neither
Evidence Code section 1101; People v. Edwards (2013) 57 Cal.4th
658; nor any other character evidence authority. They thus
forfeit this ground. They likewise have forfeited other appellate
objections to the Padilla declaration because they failed to raise
these objections in the trial court. (See Evid. Code, § 353.)
3
This proof destroys the Kenneys’ complaint about the
foundational adequacy of the declarations concerning identity.
Assuming for argument’s sake there were foundational errors in
the buyers’ declarations, these assumed errors were harmless
because a mass of other evidence supported the trial court finding
that, by a preponderance, the Kenneys were the sellers.
11
B
The Kenneys’ second evidentiary objection attacks proof the
puppies had been dyed brown. This objection is insubstantial.
Loy declared she bathed her dog and it turned from brown to
white: “the brown coloring came out in the bath and his coat was
actually an off-white color.” This report was a firsthand
observation. Padilla also found hair dye at the Kenney home on
Daisy Lane.
C
The Kenneys’ other evidentiary objections are immaterial.
They condemn the foundation for the declarations’ statements
about which disease killed each dog, the age of the dogs, and
whether vaccination records were falsified.
These other statements are immaterial because they were
unnecessary to the trial court’s analysis, which was valid.
The trial court accurately recounted the law. It evaluated
two interrelated factors: the likelihood the plaintiffs would
prevail on the merits at trial, and the interim harm likely to be
sustained if the injunction were denied compared to the harm the
defendants likely would suffer if it were granted. (BBBB, supra,
73 Cal.App.5th at p. 364.) The trial court found the plaintiffs
were likely to prevail on the merits, and the balance of harms
favored the injunction. Whether the puppies died of Parvo virus
or some other disease, for instance, does not matter.
Substantial evidence supported the plaintiffs’ probability of
success. The Act prohibits selling goods that are not as
advertised. (Civ. Code, § 1770, subd. (a)(5).) The trial court had
an ample basis for concluding the Kenneys had represented the
puppies were healthy when in fact they were not: all rapidly
died.
12
When the puppies you sell immediately get sick and die,
the plaintiffs at trial probably will be able to show your claims
about good health were false. That is all the Act requires in this
situation. The puppies’ age and so forth does not affect this
analysis.
On the second prong, the trial court correctly balanced the
harms. The court noted the Kenneys offered no proof a
preliminary injunction would cause them irreparable harm. This
is understandable. The Kenneys put themselves in an
intractable situation by pursuing an identity defense: difficulties
arise when people insist “we are not doing that, but if you stop us
from doing that it will cause us serious problems.”
The trial court properly found the public would be harmed
if the Kenneys continued selling unhealthy dogs to other families
seeking pets.
Swigart, Loy, and Paradise functioned as private attorneys
general, seeking an injunction against future deceptive practices
on behalf of the general public. The Act’s injunctive relief
provision is not to resolve private disputes but to remedy a public
wrong. The benefits of granting injunctive relief accrue to the
general public in danger of being victimized by the same
deceptive practices these buyers suffered. (See Broughton v.
Cigna Healthplans of California (1999) 21 Cal.4th 1066, 1079–
1080.)
The trial court had a basis for finding the Kenneys posed a
continuing menace to the public at large. The preliminary proof
was that the Kenneys persisted in their routine. As Humane
Society Officer Padilla reported, Trina Kenney said, “[Y]ou will
not stop us from selling puppies.” As a preliminary remedy
pending trial, closing this puppy mill was in the public interest.
13
III
The parties raise other issues we need not and do not
reach. They discuss other theories of liability that supplement
the Act. These are unnecessary to our holding. Nor need we
address whether Caru alone had standing to bring this case. The
preliminary injunction is valid irrespective of whether Caru is in
or out of the case. For purposes of this appeal, Caru is just a
spare plaintiff. No one argues otherwise. We express no view on
the merits of these ancillary issues.
DISPOSITION
We affirm and award costs to respondents.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
14 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484786/ | Case: 20-30072 Document: 00516549648 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. 20-30072 Lyle W. Cayce
Clerk
Cleartrac, L.L.C.; Russell Kent Moore,
Plaintiffs—Appellants,
versus
Lanrick Contractors, L.L.C.; Lanrick Real Estate,
L.L.C.; Southeast Dirt, L.L.C.; Hudson Holdings, L.L.C.;
Hudson Holdings Equipment, L.L.C.; Thomas P.
McKellar,
Defendants—Appellees,
consolidated with
_____________
No. 20-30076
_____________
Cleartrac, L.L.C.; Russell Kent Moore,
Plaintiffs—Appellees,
versus
Lanrick Contractors, L.L.C.; Lanrick Real Estate,
L.L.C.; Southeast Dirt, L.L.C.; Hudson Holdings, L.L.C.;
Hudson Holdings Equipment, L.L.C.; Thomas P.
McKellar,
Defendants—Appellants.
Case: 20-30072 Document: 00516549648 Page: 2 Date Filed: 11/17/2022
No. 20-30072
c/w No. 20-30076
Appeals from the United States District Court
for the Eastern District of Louisiana,
USDC No. 2:19-CV-12137
Before Dennis, Higginson, and Willett, Circuit Judges.
James L. Dennis, Circuit Judge:
These consolidated appeals involve a dispute over the enforceability
of a Texas state court judgment after it had been made executory by a
Louisiana state court and the judgment creditors then sought to make it
executory in the United States District Court for the Eastern District of
Louisiana. That federal court dismissed the case on res judicata grounds, but
we conclude instead that the district court lacked subject-matter jurisdiction
over the case because Plaintiffs failed to satisfy 28 U.S.C. § 1332(a)’s
amount-in-controversy requirement for diversity of citizenship jurisdiction.
Accordingly, we VACATE and REMAND with instructions for the district
court to dismiss the case for lack of jurisdiction.
Section 1332(a) requires that “the matter in controversy exceed[] the
sum or value of $75,000, exclusive of interest and costs.” While the statute
as a general matter excludes interest and costs, under recognized exceptions,
§ 1332(a) does not prevent a plaintiff from using costs or interest that his
principal claim includes at the time it arose, such as those accrued in a prior
case. Here, however, Plaintiffs rely crucially on interest that had not yet
accrued at the time their claim to enforce their prior judgment arose. Because
that interest is excluded by § 1332(a), Plaintiffs failed to establish subject-
matter jurisdiction over the present case.
2
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I.
On August 26, 2010, a Texas state court rendered a default judgment
(the “Texas Judgment”) in favor of Cleartrac, LLC (“Cleartrac”) and
against Lanrick Contractors Corp. (“Lanrick Contractors”). 1 The Texas
Judgment provided the following awards to Cleartrac:
1. $51,519.47 in principal;
2. Pre-judgment interest at a per diem rate of $7.06
after February 22, 2010, when the original
complaint was filed through the date of judgment;
3. $3,000.00 for the filing and prosecution to trial of
this case in the 272nd Judicial District Court for the
County of Brazos, State of Texas;
4. $2,500.00 for post-judgment collection efforts;
5. $500.00 in court costs in the 272nd Judicial District
Court for the County of Brazos, State of Texas;
6. Post-judgment interest at a rate of 5.00% per annum
from the date of judgment until the judgment is
paid in full.
On November 16, 2011, following entry of the Texas Judgment,
Cleartrac filed a “Petition to Make Judgment Executory” against Lanrick
Contractors in Louisiana state court, and, on November 21, 2011, that state
court ordered that the Texas Judgment be made executory and made the
judgment of the Louisiana court. On June 25, 2014, Cleartrac was dissolved. 2
1
Lanrick Contractors, LLC is the successor to Lanrick Contractors Corp. All
further references to “Lanrick Contractors” are to Lanrick Contractors, LLC.
2
Plaintiffs maintain that, under Texas Business Organization Code § 11.356(c), an
entity like Cleartrac may survive for three years after dissolution for a limited purpose until
judgments rendered in its favor have been fully executed. However, the parties contest
that assertion. In fact, as explained below, the Louisiana state court ruled against Cleartrac
on the issue, and when Cleartrac filed its complaint in the Louisiana federal court in this
case, it was joined by its sole former member Russell Moore as a precaution. As we find the
district court lacked subject-matter jurisdiction in this case, we take no position on the
3
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Several years later, on August 3, 2017, Cleartrac filed a “Petition to Enforce
Judgment” in Louisiana state court, seeking to enforce the Texas Judgment
against Lanrick Contractors. On July 9, 2018, Cleartrac amended its state
court petition, adding as defendants Lanrick Real Estate, LLC; Southeast
Dirt, LLC; Hudson Holdings, LLC; Hudson Holdings Equipment, LLC;
Thomas P. McKellar; and Lisa C. McKellar. On August 5, 2019, the
Louisiana state district court granted defendants’ exception of no right of
action, holding that, under Texas law, Cleartrac had no right to enforce the
Texas Judgment. Two weeks later, on August 19, 2019, the Louisiana state
court entered a judgment dismissing Cleartrac’s action. Cleartrac was
initially granted a suspensive appeal to the Louisiana court of appeal on
December 9, 2019, which delayed execution of the judgment pending appeal.
As of August 6, 2020, Cleartrac no longer had a suspensive appeal pending,
but only a devolutive appeal. Ultimately, on March 4, 2022, the Louisiana
First Circuit Court of Appeal reversed the judgment of the Louisiana state
district court due to lack of evidence of Cleatrac’s dissolution. Cleartrac,
LLC v. Lanrick Contractors, LLC, 2021-0413 (La. App. 1 Cir. 3/4/22), 2022
WL 630897. 3
In the interval between the Louisiana state court’s grant of the
exception of no right of action and its entry of judgment dismissing the case,
Cleartrac and its sole member, Russell Kent Moore, (collectively,
“Plaintiffs”) filed a complaint in the United States District Court for the
Eastern District of Louisiana (“EDLA”) seeking to invoke the court’s
diversity jurisdiction. Plaintiffs again sought to enforce the Texas Judgment
ability of either Plaintiff to bring this action but merely note the issue to explain the posture
of this case.
3
An initial appeal was dismissed for lack of appellate jurisdiction. Cleartrac, LLC
v. Lanrick Contractors, LLC, 2020-0175 (La. App. 1 Cir. 11/6/20), 2020 WL 6536929.
4
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and make it executory. They named as defendants Lanrick Contractors;
Lanrick Real Estate, LLC; Southeast Dirt, LLC; Hudson Holdings, LLC;
Hudson Holdings Equipment, LLC; and Thomas P. McKellar (collectively,
“Defendants”).
Defendants filed two motions to dismiss. First, Defendants argued
that the EDLA lacked subject-matter jurisdiction under 28 U.S.C. § 1332(a).
Defendants did not challenge that there was complete diversity between the
parties but instead contended that the diversity statute’s amount-in-
controversy requirement was not met. Specifically, Defendants argued that
28 U.S.C. § 1332(a) bars the inclusion of post-judgment interest in
computing the jurisdictional amount and that, without post-judgment
interest, the dispute involves less than $75,000. The EDLA, they argued,
therefore lacked jurisdiction. That district court rejected Defendants’
argument and denied their motion. Second, Defendants asserted in a
separate motion that the doctrine of res judicata precluded the federal action
because the Louisiana state district court in its August 19, 2019, judgment
already decided Plaintiffs had no right to bring this action. Agreeing with
Defendants, the EDLA granted their res judicata motion under Federal Rule
of Civil Procedure 12(b)(6) and dismissed the case.
Defendants timely appealed the district court’s ruling on subject-
matter jurisdiction, while Plaintiffs timely appealed the court’s order
dismissing on the basis of res judicata.
II.
“Federal courts are courts of limited jurisdiction.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “The burden of establishing
federal jurisdiction rests on the party seeking the federal forum.” Id. at 919.
This court, moreover, has “an independent obligation” to assure itself of its
5
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jurisdiction. MidCap Media Finance, L.L.C. v. Pathway Data, Inc., 929 F.3d
310, 313 (5th Cir. 2019).
Plaintiffs sought to invoke the district court’s diversity jurisdiction
under 28 U.S.C. § 1332. Relevant here, § 1332(a) permits the exercise of
federal jurisdiction only when (1) the dispute is between citizens of different
states and (2) the amount in controversy “exceeds the sum or value of
$75,000, exclusive of interests and costs.” 28 U.S.C. § 1332(a). Because we
find that Plaintiffs have not met the amount-in-controversy requirement, we
need not address whether there is diversity of citizenship. As to the amount
in controversy, it “should be determined at the time of filing” of the
complaint. White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003).
Plaintiffs argue that the amount in controversy is $85,180.97,
consisting of the following awards from the Texas Judgment: $51,519.47 in
principal; $1,313.16 in pre-judgment interest; $3,000 in attorneys’ fees for
filing and prosecuting the case; $2,500 in post-judgment collection efforts;
$500 in court costs; and 5.00% interest per annum from the date of the
Judgment until paid in full. Because the $51,519.47 principal by itself is
clearly insufficient, the question, then, is whether the other awards in the
Texas Judgment must be included in calculating the amount in controversy
or are excluded as interest or costs.
We first address costs. By its language, § 1332(a) plainly excludes
“costs” from the amount in controversy. However, as leading
commentators have noted, courts have considered costs in computing the
amount in controversy “when the subject matter of the controversy happens
to be or include the costs awarded in an earlier lawsuit.” 14AA Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3712 & n.3 (4th ed.), Westlaw (database updated Aug. 2022)
(citing Spann v. Compania Mexicana Radiodifusora Fronteriza, S. A., 131 F.2d
6
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609 (5th Cir. 1942); Richard C. Young & Co. v. Leventhal, 389 F.3d 1 (1st Cir.
2004)). One of the cases these commentators cite in support is our early case,
Spann v. Compania Mexicana Radiodifusora Fronteriza, S. A., 131 F.2d 609
(5th Cir. 1942). In that case, Spann sued for $50,000 in a Mexican court and
lost both his lawsuit and appeals. Id. at 610. Under Mexican law, as the losing
party, Spann was assessed the costs of the litigation; specifically, he was
ordered by Mexican courts to pay the defendant 12% of the $50,000 sum
requested—that is, $6,000—consisting of 8% to reimburse attorney fees and
4% to reimburse appeal costs. Id. The prevailing party in the Mexican
litigation sued Spann in U.S. federal court to enforce the Mexican judgment.
Attempting to resist the federal court’s jurisdiction, Spann “insist[ed] that
the suit was not for a sum or value in excess of $3,000.00”—the
jurisdictional amount then in effect under § 1332—and thus the U.S. federal
“court was without jurisdiction.” Id. The district court rejected Spann’s
arguments, and this court affirmed, explaining that in accordance with
Mexican law, judgment for costs had been entered against Spann in favor of
the adverse party in the sum of $6,000, or its equivalent in National currency;
that the judgment had been affirmed by the Mexican supreme court; and that
no part of it had been paid. See id. at 610-11. Thus, the adverse party was
entitled to rely on the $6,000 judgment for costs as costs awarded in the prior
Mexican case before the litigation in the U.S. courts began, and, included as
part of the amount in controversy, that amount clearly exceeded the
jurisdictional amount of $3,000 at that time. See id.
In the present case, the subject matter of the controversy includes
costs awarded in an earlier lawsuit: the $500 in court costs and the $2,500 in
post-judgment collection efforts awarded in the Texas Judgment. Guided by
the commentators and Spann, these costs are thus included in determining
the amount in controversy. Spann applied the same reasoning to attorneys’
fees awarded in a prior judgment as well. See id. Accordingly, the $3,000 in
7
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attorneys’ fees for filing and prosecuting the case awarded in the Texas
Judgment are also included. But these items do not add up to enough to
exceed $75,000.
So, we must turn to the subject of interest, which is critical. The
purpose of § 1332(a)’s exclusion of interest is to prevent the plaintiff from
delaying suit until the substantive claim, with the accrued interest, exceeds
the jurisdictional amount. Brainin v. Melikian, 396 F.2d 153, 155 (3d Cir.
1968); State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1271 (10th
Cir. 1998); Wright & Miller, supra, § 3712. The leading Supreme
Court decision explaining what interest is excludable under § 1332(a) is
Brown v. Webster, 156 U.S. 328 (1895). There, the plaintiff sued his vendor
in warranty for damages for being evicted from land he had purchased from
the defendant for $1,200. Id. at 328. Under the applicable state law, the
damages in such an action were the return of the purchase price with interest,
which plaintiff alleged to total $6,342.40. Id. at 329. The defendant objected
to the court’s jurisdiction, contending that the then-prevailing $2,000
jurisdictional amount was not met because, when the interest was excluded
from the amount in controversy, the dispute concerned only the $1,200
return of price. The Court disagreed, stating that the defendant’s argument
“overlooks the elementary distinction between interest as such and the use
of an interest calculation as an instrumentality in arriving at the amount of
damages to be awarded on the principal demand.” Id. The recovery sought
in that case was “not the price and interest thereon, but the sum of the
damage resulting from eviction. All such damage was therefore the principal
demand in controversy.” Id. at 329-30. The Court, then, drew a distinction
“between a principal and an accessory demand. The sum of the principal
demand determines the question of jurisdiction. The accessory or the
interest demand cannot be computed for jurisdictional purposes.” Id. at 330.
Because in Brown “the entire damage claimed . . . was predicated on a distinct
8
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cause of action[]—eviction from the property bought”—the interest could
be included. Id. In short, the interest “was an essential ingredient in the one
principal claim” and could not be “segregated therefrom, and be considered
as a mere accessory thereto.” Id. Also, although the Court did not explicitly
so state, the interest sued for was not post-judgment interest but interest that
accrued within the plaintiff’s state-law cause of action for eviction.
Our Court has summarized the rule in Brown as follows: “Interest is
only considered for jurisdictional purposes where it is a basis for the suit
itself.” Danial v. Daniels, 162 F. App’x 288, 290 (5th Cir. 2006) (citing
Brown, 156 U.S. 328; Greene County v. Kortrecht, 81 F. 241 (5th Cir. 1897)).
We have applied the holding in Brown only once in a published decision. In
Greene County v. Kortrecht, 81 F. 241, 241 (5th Cir. 1897), the plaintiff sought
to collect on negotiable bonds and their coupons, seeking the principal as well
as interest that accrued after the date of their maturity. The court drew a
distinction between coupons, which “represent interest on the bond accruing
and made payable at stated times before the maturity of the bond,” and
interest on the bonds and coupons “accruing after maturity.” Id. A coupon,
the court noted, “is an independent contract stipulating for the payment of
the installment of interest at the time named in each, respectively, and, after
its maturity, bears interest, will support an action, and is subject to the statute
of limitations, as a separable contract.” Id. Thus, the Supreme Court has
held that a claim on a coupon is included in the amount in controversy as a
“principal and primary” claim, “in no just sense accessory to any other
demand.” Edwards v. Bates Cnty., 163 U.S. 269, 272 (1896), cited in Kortrecht,
81 F. at 241. On the other hand, the court in Kortrecht reasoned, “[t]he
interest on the bonds accruing after maturity, and the interest on each coupon
accruing after its maturity, has an accessory relation to the principal of the
bond and of each coupon” and thus “is excluded from the calculation of the
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amount declared on, in determining the jurisdiction of the circuit court.” 81
F. at 241.
Making a similar distinction to the one in Kortrecht, the First Circuit
has explained that, under Brown, interest is included in calculating the
jurisdictional amount when “the principal claim itself, at the time it arose,
was made up in part of interest,” while interest is excluded when it “aris[es]
solely by virtue of a delay in payment.” Regan v. Marshall, 309 F.2d 677, 678
(1st Cir. 1962). 4 Neither we nor our sister circuits, however, have addressed
the precise question presented in this case. There are two components of
interest in the unpaid Texas Judgment which we must determine whether to
include in calculating the jurisdictional amount. First, there is the “pre-
judgment interest.” That is the interest that accrued from the filing of the
initial Texas complaint until the Texas Judgment was rendered. That
interest is no longer accruing. Second, there is the “post-judgment interest,”
which is the interest accruing from the time the Texas Judgment was entered
until paid. That interest is continuously accruing.
Several district courts have explored the issues presented in this case.
The majority of district courts appear to distinguish between pre-judgment
interest and post-judgment interest, including the former in the amount in
controversy but excluding the latter. See, e.g., Reynolds v. Reynolds, 65 F.
Supp. 916, 918-19 (W.D. Ark. 1946) (excluding post-judgment interest);
Colonia Ins. Co. v. Williams, No. 1:95CV288–S–D, 1995 WL 1945464, at *2
(N.D. Miss. Oct. 11, 1995) (same); Phoenix Scotts-Sports v. Kadish, 321 F.
Supp. 556, 557 (D. Alaska 1971) (including pre-judgment interest but
4
Indeed, “interest uniformly is excluded under the rule of Brown v. Webster, if it
. . . arises solely by virtue of a delay in payment of an obligation.” Wright & Miller,
supra, § 3712; see, e.g., Howard v. Off. Of Special Deputy Receiver, No. 22-10240, 2022 WL
2255708, at *1 (5th Cir. June 23, 2022); Principal Mut. Life Ins. Co. v. Juntunen, 838 F.2d
942, 943 (7th Cir. 1988); Whisenant v. Sheridan Prod. Co., 627 F. App’x 706, 709 (10th Cir.
2015); cf. Brainin, 396 F.2d at 155.
10
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No. 20-30072
c/w No. 20-30076
excluding post-judgment interest); Richie v. Richie, 186 F. Supp. 592, 593
(E.D.N.Y. 1960) (same). However, some district courts have taken a broader
view and included post-judgment interest in the amount in controversy. See,
e.g., Snider v. State Farm Mutual Automobile Insurance Co., 360 F. Supp. 929,
931 (S.D.W. Va. 1973); Gambino v. Am Guarantee & Liab, Ins. Co., No. 3:09–
CV–00304(CFD), 2009 WL 3158151, at *1 n.1 (D. Conn. Sept. 28, 2009).
We conclude that the pre-judgment interest that accrued prior to the
Texas Judgment is included in determining the amount in controversy in an
action to enforce that Judgment. As pre-judgment interest has completely
accrued during the prior case, this sum can be precisely calculated and does
not vary depending on the other awards and when the plaintiff files suit.
Because pre-judgment interest is an accrued component of the judgment
sued upon at the time the claim to enforce the judgment arose, and because
pre-judgment interest’s value does not depend on the passage of time after
entry of the state court judgment, pre-judgment interest can be fairly said to
constitute an “essential ingredient in the . . . principal claim.” See Brown,
156 U.S. at 330; Regan, 309 F.2d at 678.
As to the post-judgment interest accruing after entry of the Texas
Judgment, however, we conclude that it may not be included in determining
the amount in controversy in an action to enforce that Judgment. Excluding
post-judgment interest from the calculation furthers § 1332(a)’s statutory
purpose of preventing plaintiffs from delaying in filing suit until sufficient
interest has accrued such that they can reach the jurisdictional amount. See
Brainin, 396 F.2d at 155; State Farm, 149 F.3d at 1271. Permitting otherwise
would approve the anomalous situation where a judgment-creditor who seeks
to invoke a federal court’s diversity jurisdiction but is unable to meet the
amount-in-controversy requirement on the day his substantive claim first
accrues can simply wait until sufficient time has passed—and sufficient
interest has accumulated on his claim—such that he can meet the
11
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No. 20-30072
c/w No. 20-30076
jurisdictional amount set forth in § 1332(a). See Regan, 309 F.2d at 678;
Reynolds, 65 F. Supp. 918; Kadish, 321 F. Supp. at 557.
Plaintiffs argue that the post-judgment interest on the Texas
Judgment forms part of an “essential ingredient” in the “principal demand”
for enforcement of the Texas Judgment under Brown. However, unlike pre-
judgment interest, no part of the post-judgment interest has accrued at the
time the claim to enforce the judgment arose; rather, post-judgment interest
increases thereafter solely due to delay in paying the other awards in the
judgment. In that sense, post-judgment interest is “accessory” to the other
awards. See Kortrecht, 81 F. at 241; Regan, 309 F.2d at 678; Reynolds, 65 F.
Supp. at 918; Colonia Ins. Co., 1995 WL 1945464, at *2.
Turning again to the allegations in this case, the $1,313.16 in pre-
judgment interest awarded in the Texas Judgment is included in determining
the amount in controversy. However, the 5.00% interest from the date of the
Judgment until paid in full is not. The total amount in controversy thus
comes to $58,832.63. Because the amount in controversy does not exceed
the sum or value of $75,000, exclusive of interests and costs, the district court
lacked subject-matter jurisdiction under § 1332(a).
III.
For these reasons, we VACATE the district court’s judgment
dismissing Plaintiffs’ complaint on the basis of res judicata and REMAND
with instructions that the district court dismiss this case without prejudice
for lack of subject-matter jurisdiction.
12 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484785/ | Case: 22-30359 Document: 00516549169 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. 22-30359 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Terrence Rollins,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:19-CR-162-1
Before Smith, Barksdale, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Terrence Rollins appeals the denial of his motion for compassionate
release under the First Step Act. Rollins maintains that the district court
abused its discretion in denying a sentence reduction. We find no error and
affirm.
I.
Rollins is a paraplegic 43-year-old whose right leg was also amputated
after complications from the 2013 gunshot wound that left him paralyzed. At
the time of his arrest in August 2018, police found Rollins septic and mal-
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No. 22-30359
nourished, lying in his bodily wastes, though with five firearms around him
in reach. But for his arrest, Rollins likely would have died of his severe
wounds and infections. For the first six months of his detention, Rollins was
hospitalized at University Medical Center (“UMC”) because of his poor
condition. There, physicians recommended that Rollins have his remaining
leg amputated and that he further undergo a hemicorporectomy, which
would “essentially cut him in half to remove the infected part of his body.” 1
Rollins refused, stating that he was concerned about the complex nature of
the procedure and the adequacy of medical care he would receive.
In September 2019, Rollins moved for pretrial release, alleging that his
brother could care for him at home. The government opposed the release,
noting that Rollins’s doctor at Plaquemines Parish Detention Center (“Pla-
quemines”) reported that Rollins had a history of not complying with medi-
cal treatment and was “extraordinarily resistant to effective medical care.”
The doctor further explained that Rollins required daily medical care because
his feces and urine were consistently reinfecting his stage 4 ulcers on his
sacrum and buttocks, and it was “almost impossible to imagine the ability to
have them ever heal.”
Regardless of the potential surgery, the doctor noted that Rollins
would require 24-hour attention and that Plaquemines could not handle a
patient with such severe medical needs. Nonetheless, the magistrate judge,
1
A hemicorporectomy “is a radical surgery that involves amputation of the pelvis
and lower extremities by disarticulation through the lumbar spine with concomitant trans-
action of the aorta, inferior vena cava, and spinal cord. It is also accompanied by the corres-
ponding urinary and intestinal diversion.” Gerardo Gallucci, How Is the Long-Term Quality
of Life Following Hemicorporectomy? A Case Report of a Patient with 16 Years of Follow-Up, 3
WORLD J. SURG. SURGICAL RES., Dec. 2020, at 1. The mortality rate is 50%, though
that has decreased in recent years, and there have been only 66 cases described in the
literature. Id.
2
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No. 22-30359
after a hearing, denied Rollins’s motion for pretrial release.
In January 2020, Rollins pleaded guilty of possession with intent to
distribute heroin, crack cocaine, and powder cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) and of possession of seven firearms in furtherance
of those drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i).
In April 2020, Rollins moved for temporary release under the Bail Reform
Act. He urged that the COVID-19 pandemic, a recent contraction of sepsis,
and his poor health condition supported pre-sentencing release. The district
court denied that relief, finding that Rollins did not fall under the narrow
exceptions of the Act. Rollins did not establish exceptional reasons to sup-
port release, nor did he prove with clear and convincing evidence that he was
not a flight risk or a danger to the community.
Before sentencing in December 2021, Rollins was hospitalized multi-
ple times for infections and complications with his treatment at Plaquemines.
In August 2021, Rollins was diagnosed with septic arthritis, tachycardia, and
other complications and infections from his previous injuries. In November
2021, another physician at UMC wrote, “given [Rollins’s] extensive medical
problems, I feel that medical release from prison would be in the best interest
of his health.”
Rollins’s presentence investigation report noted that before the pres-
ent case, Rollins’s only criminal history was a felony conviction of possessing
a firearm on school property when he was 17, and his probation on that charge
was revoked. The report indicated that although Rollins’s guideline range
was 24 to 30 months’ imprisonment, the possession-in-furtherance-of-drug-
trafficking charge carried a mandatory five-year statutory minimum sen-
tence. The government noted that Rollins did not provide substantial assis-
tance and that it would not file a motion for a sentence reduction under
U.S.S.G. § 5K1.1. That would have allowed the court to vary from the man-
3
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No. 22-30359
datory minimum, but otherwise, the government did not oppose Rollins’s
request for a downward variance.
The district court sentenced Rollins to 12 months on the § 841
charges, varying downward, and the minimum of 60 months on the § 924
charge, for a total of 72 months. The court stated the sentence was “based
on the defendant’s health concerns and the history and characteristics of this
defendant” and to “promote respect for the law and provide[] just punish-
ment.” Rollins did not appeal, and his release date is September 10, 2023.
In January 2022, Rollins moved for compassionate release under the
First Step Act, 18 U.S.C. § 3582(c)(1)(A). Rollins contended that he needed
extensive surgery to remove his remaining leg and may still need a hemicor-
porectomy if his condition continues to deteriorate. Rollins averred that his
medical treatment and custody had already cost the U.S. Marshals over
$1 million, that Plaquemines was incapable of providing complete medical
care, and that Rollins could not receive surgery at UMC while in custody of
the Marshals. Instead, the Bureau of Prisons (“BOP”) would have to desig-
nate him for treatment and transport him to a medical facility. Rollins posits
that these were “extraordinary and compelling” medical conditions warrant-
ing release.
Rollins also maintained that he would not be a danger to the public, a
requirement under 18 U.S.C. § 3142(g). Rollins urged that he legally pur-
chased the firearms he was found at arrest with and would not have access to
firearms as a convicted felon. Additionally, his severe medical conditions and
paraplegia prevented recidivism. Rollins further contended that his incar-
ceration had cured his drug addiction, which motivated his crimes. If re-
leased, he would get the surgeries recommended since 2019, the leg amputa-
tion and the hemicorporectomy, and ideally, go to a nursing home to recover.
Furthermore, Rollins had already served over three years of his sentence and
4
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No. 22-30359
had spent most of his time incarcerated at Plaquemines, which had stated that
it could not care for him.
Rollins filed a supplemental memorandum to his compassionate-
release motion in February 2022, noting that he had been re-hospitalized at
UMC because of additional septic symptoms. He was further diagnosed with
“severe sepsis, abscess, septic joint” and “necrotizing fasciitis.” Rollins still
had not received a designation for a BOP facility, a necessary condition for
his required surgeries.
In March 2022, the district court denied Rollins’s motion for compas-
sionate release, though noting Rollins’s condition was “dire.” First, the
court held that “Rollins ha[d] not sufficiently shown he will no longer pose a
threat to the public post-release.” The court stated that Rollins’s offenses of
possession of “seven firearms and ammunition inside his home along with
heroin, cocaine base, and cocaine hydrochloride” were “very serious.”
Additionally, “while stricken with severe medical issues and confined to a
wheelchair, Mr. Rollins still trafficked heroin.” There was “no indication in
the record that Mr. Rollins would not revert to criminal behavior if released”
because his “medical complications did not prevent criminal activity in the
past.” “Accordingly, Mr. Rollins’ history, the serious nature of his offense,
and the danger his release would pose to the community at-large weigh[ed]
against granting the present motion.”
Secondly, the district court found it could not “allow Mr. Rollins’s
release at the potential expense of public safety” because of “the nature of
Mr. Rollins’s crime, his past criminal conduct, and the apparent risk of him
reverting to said conduct.” The court held that it could not “in good con-
sci[ence], allow Mr. Rollins’s release at the potential expense of public
safety” and that “[r]eleasing Mr. Rollins after just three months of incarcera-
tion would place the public at risk.”
5
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No. 22-30359
The court additionally found the need to “provide the defendant with
needed . . . medical care, or other correctional treatment in the most effective
manner” weighed in favor of maintaining his sentence. The court found that
the BOP was “equipped to address [Rollins’s] medical needs” and that Rol-
lins’s “past behavior indicates an apparent apathy or inability to tend to his
medical needs.” The court cited Rollins’s condition at arrest and his rejec-
tion of medical care and surgery while incarcerated as support for the conclu-
sion that Rollins would “most effectively receive the needed care he requires
in the custody of the Bureau of Prisons.”
Two weeks later, Rollins moved for reconsideration based on new evi-
dence and corrections of fact. First, defense counsel noted Rollins had served
44 months, not three months. Second, the BOP had informed Rollins that
there was no bed available at his designated federal medical facility. As a
result, he remained at Plaquemines and was receiving medical treatment at
UMC, not a BOP medical center. Third, Rollins had recently had surgery to
remove part of his hip bone, and one of the doctors sent a letter stating that
he needed “more extensive surgery with follow-up care in a long-term facility
or to be put on hospice.” This letter included that Rollins was “now amena-
ble to having [the hemicorporectomy]” and “[t]his admission is the first time
[Rollins] has agreed to [the] surgery.”
The district court denied the motion for reconsideration, correcting
its error about the time served but explaining that the “primary consideration
was, and still is, Mr. Rollins’s threat to the public’s safety.” The court found
that Rollins possessed drugs and firearms “[d]espite his severe medical
issues” and “modifying Mr. Rollins’s sentence would inaccurately reflect
the seriousness of his crimes and, in turn, fail to discourage criminal conduct
and encourage respect for the law.”
Rollins appeals this denial. Currently, the government has designated
6
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No. 22-30359
Rollins to the Federal Medical Center in Fort Worth, Texas, where a bed has
been made available to him.
II.
Appeals of motions for compassionate release are judged on the abuse-
of-discretion standard. See, e.g., United States v. Chambliss, 948 F.3d 691, 693
(5th Cir. 2020); United States v. Jackson, 27 F.4th 1088, 1091 (5th Cir. 2022).
Because Rollins does not point to any legal errors in the denial of his motion,
we inquire whether the district court abused its discretion by basing its deci-
sion on a clearly erroneous assessment of the evidence. See Jackson, 27 F.4th
at 1091. “A factual determination is clearly erroneous only if, based on the
entire evidence, we are left with the definite and firm conviction that a mis-
take has been committed.” Id. (quoting United States v. Barry, 978 F.3d 214,
217 (5th Cir. 2020)). “Even when the district court has erred, we may affirm
if another ground in the record supports its judgment.” Id. (citing United
States v. Garrett, 15 F.4th 335, 340 (5th Cir. 2021)).
“[A] prisoner seeking compassionate release must overcome three
hurdles.” Id. at 1089. First, he must prove that “extraordinary and compel-
ling reasons” justify a sentence reduction. Id. (citing 18 U.S.C. § 3582(c)-
(1)(A)(i)). Second, the reduction “must be consistent with applicable policy
statements issued by the Sentencing Commission.” Id. (citing § 3582(c)-
(1)(A)). “Finally, the prisoner must persuade the district court that his early
release would be consistent with the sentencing factors in 18 U.S.C.
§ 3553(a).” Id. If the § 3553(a) factors weigh against a reduction, the district
court has the discretion to deny the motion. Id. (quoting Ward v. United
States, 11 F.4th 354, 360 (5th Cir. 2021)).
Although the district court assessed Rollins’s medical situation as
“dire,” the court never affirmatively stated that it was an extraordinary and
compelling reason for compassionate release under § 3582(c)(1)(A)(i).
7
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No. 22-30359
Nonetheless, “we have regularly affirmed the denial of a compassionate-
release motion . . . where the district court’s weighing of the Section 3553(a)
factors can independently support its judgment.” Id. at 1093 n.8 (citing
Ward, 11 F.4th at 360); see also Chambliss, 948 F.3d at 693 (“[T]he court also
noted that compassionate release is discretionary, not mandatory, and could
be refused after weighing the sentencing factors of 18 U.S.C. § 3553(a).”).
The § 3553(a) factors include “(1) the nature and circumstances of the
offense and the history and characteristics of the defendant” and “(2) the
need for the sentence imposed—(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect
the public from further crimes of the defendant; and (D) to provide the defen-
dant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a).
“Furthermore, in reviewing the application of the § 3553(a) sentenc-
ing factors, we look to the [Gall] standard.” Chambliss, 948 F.3d at 693 (cit-
ing Gall v. United States, 552 U.S. 38, 51 (2007)). There, the Court indicated
that the “sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) in the individual case.” Id. (quoting Gall,
552 U.S. at 51). “Thus, we give deference to the district court’s decision and
note that reversal is not justified where ‘the appellate court might reasonably
have concluded that a different sentence was appropriate.’” Id. (quoting
Gall, 552 U.S. at 51).
III.
The district court sufficiently stated its reasons for denying compas-
sionate release and did not clearly err in assessing the evidence when weigh-
ing the § 3553(a) sentencing factors. The court made specific factual findings
adequately articulating the primary reason for the denial of relief.
8
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No. 22-30359
Applying the sentencing factors, the district court considered Rol-
lins’s prior criminal history, his serious drug and firearms crimes in the
instant case, and the danger his release would pose to the public. Although
the court clearly erred the first time in stating that Rollins had served only
three months in prison when in fact he had served 44 months, the court
corrected this error on reconsideration. And the court made the discretion-
ary decision to give more weight to the potential harm Rollins’s release may
cause the public.
Rollins strongly argues that the court’s dangerousness assessment is
clearly erroneous because Rollins will need surgery that removes the entire
lower portion of his body and requires 24-hour care. Before his conviction in
the present case, his only criminal history consisted of a decades-old convic-
tion for unlawfully possessing a firearm when he was 17. Rollins reasons that
he has successfully overcome the drug addiction that led him to crime and
that he began abusing drugs only after going through the trauma of being par-
alyzed and subsequent depression.
Rollins makes a colorable argument. If he undergoes the hemicorpor-
ectomy procedure, he will be cut in half at the belly button. The surgery is
rare, often fatal, and comes with various complications, even if the procedure
is successful. As the district court notes, following any amputation of his
lower body, “Mr. Rollins will need around the clock care for the foreseeable
future.” And even now, without this grave surgery, Rollins “cannot perform
basic functions without assistance.” Rollins is not wrong to suggest that it
seems highly unlikely that he will revert to criminal behavior.
Rollins would have to undergo drug testing and treatment if released.
According to him, the underlying cause for his criminal conduct would be
sufficiently monitored. Finally, Rollins claims that he has spent a significant
portion of his time incarcerated in a facility that has admitted it cannot fully
9
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No. 22-30359
care for his needs. His transfer to a BOP medical facility has been long
delayed. Contrary to the district court’s reasoning, all this indicates that the
prison system is not the place that can provide medical care most effectively.
Yet, the abuse-of-discretion standard is a demanding one. It is not this
court’s place to question the reasonable judgment of the district court in
assessing the § 3353(a) factors. 2
The district court adequately explained its reasons for denying com-
passionate release. The court acknowledged that Rollins was plainly suffer-
ing from medical crises for years before his arrest. When he was arrested,
Rollins “was wheelchair bound . . . [and] not receiving the medical care
needed, as evidenced by his month-long hospitalization after his arrest.” 3
Despite this appalling condition, while “stricken with severe medical issues
and confined to a wheelchair, Mr. Rollins still trafficked heroin” and was
found with multiple weapons in reach. Rollins had committed serious crimes
while suffering from severe and life-threatening medical complications. With
this in mind, it is not a clearly erroneous assessment of the evidence to find
that Rollins may continue criminal activity and pose a danger to the public
2
See Jackson, 27 F.4th at 1092–93 (finding, in compassionate-release cases, that
the sentencing judge is in a better position to apply the sentencing factors because the dis-
trict court has a unique role in sentencing matters and is in a better position to assess their
import based on the individual circumstances of the case). In Chambliss, for example, this
court held that a district court did not abuse its discretion in denying compassionate release,
even despite affirmatively finding that the prisoner’s terminal illness was an “extraordinary
and compelling reason” for a sentence reduction and that he did not present danger on
release. All that is required is that the district court “sufficiently articulate[]” its reasons
for denying compassionate release and not base any necessary condition on a clearly erron-
eous assessment of the evidence. Chambliss, 948 F.3d at 693–94.
3
As noted in the record on appeal, New Orleans Police found Rollins “septic and
severely malnourished at the time of his arrest . . . [lying] on the floor, where he had fallen
from his wheelchair and was lying in his own feces and urine.”
10
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No. 22-30359
after release.
As a result, these findings are sufficient to affirm the denial of com-
passionate release. Disagreement with the weighing of the § 3553(a) factors
is not “sufficient ground for reversal.” Chambliss, 948 F.3d at 694. The
district court did not clearly err in concluding that Rollins’s “history, the
serious nature of his offense, and the danger his release would pose to the
community at-large” under 18 U.S.C. § 3553(a)(1) and (2)(C) weighed
against granting relief.
Because the primary consideration for the district court’s decision is
concern for public safety, this court does not need to address whether the
court’s maintaining Rollins’s sentence met the § 3553(a)(2)(D) factor for the
sentence imposed to provide the defendant with needed medical care in the
most effective manner. Still, the court did not clearly err in making its assess-
ment. Rollins’s poor health and ability to take care of himself when he was
arrested, his noncompliance with treatment while incarcerated, and the
BOP’s assurances that it can provide Rollins with the intensive medical care
he requires all sufficiently support the court’s reasoning. 4
As the district court noted in a hearing, “[i]t’s been a difficult one
from the beginning.” Rollins has undoubtedly suffered and continues to suf-
fer severely from his many health issues, and his medical condition is indeed
dire. But the district court was familiar with his health issues. It considered
them when it imposed his sentence, and it weighed the § 3553(a) factors
adequately when it denied compassionate release. There was no abuse of
discretion. We AFFIRM.
4
We note that Rollins was designated to the Federal Medical Center in Fort Worth
on October 7, 2022, and was transferred from Plaquemines on October 19, 2022.
11 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484804/ | By the Court, SILVER, C.J.:
In this appeal, we consider whether the district court erred by instructing a jury, in a criminal case for exploitation of a vulnerable person and theft, that "[a] person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit." We conclude this instruction is inconsistent with NRS 100.085, and it does not accurately and completely reflect the reasoning and conclusion in Walch v. State, 112 Nev. 25, 909 P.2d 1184 (1996). Accordingly, we hold the jury instruction was a misstatement of law, and it was error to give the instruction. Because the State has failed to demonstrate the error was harmless, we reverse.
FACTS AND PROCEDURAL HISTORY
Helen Natko and Delford Mencarelli began dating in 1982, a year or two after their respective spouses passed away. During a visit to Pennsylvania in May 2012, Mencarelli was hospitalized for low blood sugar, a complication of his diabetes. After the couple returned to their shared home in Las Vegas, Natko and Mencarelli gave each other durable power of attorney, purportedly so that Natko could help care for Mencarelli. Four days later, Mencarelli added Natko as a joint account holder on his Las Vegas credit union account. In July 2013, Natko withdrew $195,000 from the couple's joint bank account and temporarily placed it into her personal bank account. She returned the money to the couple's joint account within the month. Mencarelli died approximately two years later.
Nine months after Mencarelli's death, the State charged Natko with exploitation of a vulnerable person and theft based on the act of withdrawing the money from the joint account in 2013.1 At trial, the State proposed jury instruction 18, which stated: "A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit." This language was taken nearly verbatim from Walch. Natko objected to the instruction, arguing it was inaccurate under the current version of NRS 100.085, which was amended in 1995. The district court, relying on Walch, ultimately gave the instruction. A jury found Natko guilty on both counts,2 and the district court sentenced her to a suspended aggregate prison term of 36 *682to 144 months and placed her on probation. This appeal follows.
ANALYSIS
Natko argues that jury instruction 18 was a misstatement of law because it directly contradicts NRS 100.085, and the district court incorrectly relied on Walch in giving the instruction because Walch was decided under a prior version of NRS 100.085. The State counters that jury instruction 18 was a correct statement of law that was not overruled by the amendments to NRS 100.085 and, therefore, the district court properly relied on Walch.
"District courts have broad discretion to settle jury instructions." Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008). "While we normally review the decision to [give or] refuse a jury instruction for an abuse of that discretion or judicial error, we review de novo whether a particular instruction, such as the one at issue in this case, comprises a correct statement of the law." Id. Further, whether jury instruction 18 was an accurate statement of the law involves statutory interpretation, which we also review de novo. See Bigpond v. State, 128 Nev. 108, 114, 270 P.3d 1244, 1248 (2012). When interpreting a statute, we first examine the statute's plain meaning. Id. "[I]f the statute is clear, we do not look beyond the statute's plain language." Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006).
NRS 100.085 was amended to its current version in 1995.3 1995 Nev. Stat., ch. 426, § 1, at 1054-55. NRS 100.085(1) provides, in relevant part: "If an account is intended to be held in joint tenancy, the account or proceeds from the account are owned by the persons named, and may be paid or delivered to any of them...." (Emphasis added.) And, as relevant to this appeal, NRS 100.085(4) provides that, "[f]or the purposes of this section, unless a depositor specifically provides otherwise, the use by the depositor of [joint account] ... in designating the ownership of an account indicates the intent of the depositor that the account be held in joint tenancy." When read together, the plain language of NRS 100.085(1) and (4) establishes a presumption that a person's status as a joint account holder provides that person with ownership of, and authority to use, the funds in the joint account.4
In contrast to NRS 100.085, jury instruction 18 stated that a person's status as a joint account holder alone does not provide the authority to use another person's assets. Jury instruction 18 was inconsistent with NRS 100.085 because it implied Natko did not have lawful authority to use or transfer the funds in the joint account for her own benefit. The State argues that the instruction was nevertheless a correct statement of the law under Walch. We disagree.
In Walch, the elderly victim gave the defendant, Walch, durable power of attorney that "expressly precluded Walch from using [the victim's] assets for Walch's own legal *683obligations, including but not limited to support of the agent's dependents." 112 Nev. at 27, 909 P.2d at 1185 (internal quotation marks omitted). Walch thereafter opened two joint bank accounts with the victim's money that named Walch and the victim as joint account holders, and Walch wrote checks from those accounts for her personal use. Id. at 27-29, 909 P.2d at 1185-86. On appeal, Walch cited to NRS 100.085(1) and argued that she could not be guilty of theft as a matter of law because, as a party on the joint accounts, she had lawful authority to withdraw any or all of the funds from those accounts and use them as she wished. Id. at 30-31, 909 P.2d at 1187-88. The supreme court rejected this argument, concluding that "Walch's mere status as a party to the joint accounts did not provide her with lawful authority to use [the victim's] assets for her own benefit and therefore did not preclude her conviction for theft." Id. at 33, 909 P.2d at 1189. This conclusion was based on the observation that the jury "could have concluded that Walch placed [the victim's] funds into the two accounts with the intention of withdrawing them later for her own benefit." Id. The court reasoned that "[i]f so, Walch's felonious intent and actions commenced before such monies reached the two accounts, and her status as a joint legal owner of the account funds would not shield her from culpability for theft of funds subsequently withdrawn and misused." Id.
In Walch , therefore, the supreme court did not conclude that NRS 100.085 does not create a presumption of ownership by a joint account holder of the funds in a joint account. Rather, Walch is best understood to stand for the proposition that despite the presumption of ownership established by NRS 100.085, a person named on a joint account can still be, under some circumstances, convicted of theft for withdrawing and/or misusing funds from the joint account. The State is correct that this aspect of Walch was not impacted by the 1995 amendments to NRS 100.085. This is so because there is nothing in NRS 100.085 that precludes a joint account holder from being convicted of theft for the withdrawal and/or misuse of funds in the joint account. However, based on the reasoning in Walch , in order to convict a joint account holder of theft based on the withdrawal and/or misuse of funds from a joint account, the State must allege and establish that the criminal intent arose prior to the funds being deposited into the joint account.
Because jury instruction 18 broadly stated: "A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit," it did not accurately reflect the reasoning and conclusions in Walch and was therefore incomplete. Notably, the instruction did not identify the circumstances under which a person named as a party on a joint account could be convicted of theft based on withdrawal and/or misuse of funds from the joint account.5 Accordingly, we conclude jury instruction 18 was not a correct statement of the law and it was error to give the instruction.
Because Natko objected to the use of jury instruction 18, we review the error under the harmless error standard. See Barnier v. State, 119 Nev. 129, 132, 67 P.3d 320, 322 (2003). "[T]he State bears the burden of proving that the error was harmless." Polk v. State, 126 Nev. 180, 183 n.2, 233 P.3d 357, 359 n.2 (2010).6 To meet this burden, it may *684be necessary for the State to file a respondent's appendix that includes "those documents necessary to rebut appellant's position on appeal which are not already included in appellant's appendix." NRAP 30(b)(4). Reversal will be warranted unless the State can show "it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Nay v. State, 123 Nev. 326, 334, 167 P.3d 430,435 (2007) (internal quotation marks omitted).
The State fails to argue on appeal, let alone demonstrate from the record, that the error is harmless. A joint appendix was not filed in this appeal and, although recognizing Natko did not provide this court with a copy of the trial transcripts, the State did not file a respondent's appendix and provide the trial transcripts to this court. Nothing in the record before this court indicates that Mencarelli or Natko specifically provided that they did not intend to hold the joint account in joint tenancy. Therefore, jury instruction 18 was not a correct statement of the law, and it improperly implied to the jury that Natko did not have lawful authority to use and/or withdraw the funds in the joint account. The State alleged Natko committed the crimes of exploitation of a vulnerable person and theft based on the act of withdrawing money from Natko and Mencarelli's joint account. Thus, without the trial transcripts, or anything to show the facts are like those in Walch, we cannot say that the error was harmless. Because the State has failed to meet its burden and demonstrate the error is harmless, we conclude the error warrants reversal.
CONCLUSION
The district court erred by giving jury instruction 18 because it was not a correct statement of the law. The instruction was inconsistent with NRS 100.085 because it broadly stated that a person's status as a joint account holder did not give her the authority to use another's assets within the joint account for her own benefit. Further, the instruction did not accurately reflect the reasoning and conclusions in Walch . Because the State has failed to meet its burden to demonstrate this error was harmless, we reverse and remand for further proceedings consistent with this opinion.
I concur:
Gibbons, J.
The dissent speculates that Mencarelli "may" have lacked mental capacity at the time the joint bank account was created a year prior, thus voiding the joint account and removing any legal claim Natko may have had to the funds within the account. This is mere speculation, and no evidence exists of this in our record. Tellingly, the State's information charged Natko with "willfully, unlawfully and feloniously" exploiting a vulnerable person and theft on July 5, 2013, by withdrawing the $195,000 from a bank account on which she was listed as a joint tenant. The withdrawal of money occurred a full year after the date from which she and Mencarelli set up the joint bank account. Significantly, too, the State never charged Natko with exploitation or fraud for any actions prior to the date of the withdrawal of funds from the joint bank account.
The judgment of conviction erroneously states Natko was convicted pursuant to a guilty plea.
We recognize that the opinion in Walch was issued in 1996. However, Walch is not controlling here, because the defendant, Walch, was charged based on acts that were committed before the amendment of NRS 100.085, and therefore, the Walch court would have considered the pre-amendment version of NRS 100.085 when deciding the appeal. See State v. Second Judicial Dist. Court (Pullin), 124 Nev. 564, 568, 188 P.3d 1079, 1081 (2008) (stating, in the context of addressing sentencing penalties, "the law in effect at the time of the commission of a crime governs the prosecution of criminal offenses").
Because the statute is clear, we need not look to the legislative history to determine the meaning of the statute. See Witzenburg, 122 Nev. at 1061, 145 P.3d at 1005. Nevertheless, we note that the legislative history expressly demonstrates that the 1995 amendments to NRS 100.085 were specifically intended to clarify that each party on a joint account has a right to funds in the account and the right of survivorship to funds in the account upon the death of one of the account holders. See Hearing on S.B. 424 Before the Assembly Judiciary Comm., 68th Leg. (Nev., June 15, 1995) (John Sande, representing the Nevada Bankers Association, testified that "if it is held as a joint tenancy, as that is defined in [NRS 100.085 ] under Subsection 4 ... either party, or any party that [is] on the account, has the right to those funds, that they will pass to the survivor on the death so that there's certainty," and, upon inquiry, he clarified that "[u]nder any interpretation," any party on a joint account, even if the parties do not live in the same house and have different families, "could take all the funds out of that account.").
A jury instruction that accurately reflects the reasoning and conclusions in Walch may have stated the following: A person's status as a joint legal owner of account funds does not shield the person from culpability for the taking of those funds if the State can demonstrate that the person's criminal intent and actions commenced before the money was placed into the joint account.
The dissent argues that the lack of trial transcripts in the record demands an affirmance. However, because the State failed to argue harmless error after Natko alleged reversible error by the district court, the State waived its argument that harmless error applies. Polk, 126 Nev. at 183 n.2, 233 P.3d at 359 n.2 ("[A respondent] who fails to include and properly argue a contention in the [respondent's] brief takes the risk that the court will view the contention as forfeited." (internal quotations and citation omitted) ). And, because the jury instruction given here was incomplete, as a matter of law, we are constrained to reverse under the circumstances of this case. See Cortinas , 124 Nev. at 1019, 1023-27, 195 P.3d at 319, 322-24 (reviewing de novo whether a jury instruction is a correct statement of law and addressing the effect of instructional errors). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484805/ | TAO, J., dissenting:
Before we can even get to the merits of Natko's arguments, there's a threshold problem: Natko was convicted following a jury trial, yet failed to supply copies of the trial transcript for us to review on appeal. We have partial transcripts of arguments of counsel surrounding the challenged jury instruction and some transcripts of post-trial motion argument. But we have no transcripts of the testimony of any trial witness reflecting the evidence admitted during the trial, no transcripts of the opening statements, and no transcripts of the closing arguments.
Consequently, we have no idea-none at all-what transpired at trial, what evidence either party introduced, or what the jury's verdict was or was not based upon. Absent that, I don't know how we can possibly analyze what effect, if any at all, jury instruction 18 may have had upon Natko's trial. To me, that omission alone demands affirmance, because we're required to presume that any missing portions of the record support, not undermine, the jury's verdict. See Johnson v. State , 113 Nev. 772, 776, 942 P.2d 167, 170 (1997) ("It is appellant's responsibility to make an adequate appellate record. We cannot properly consider matters not appearing in that record." (citation omitted) ); Riggins v. State , 107 Nev. 178 182, 808 P.2d 535, 538 (1991) (concluding that if materials are not included in the record on appeal, the missing materials "are presumed to support the district court's decision"), rev'd on other grounds by Riggins v. Nevada , 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992).
At the very least, I don't know what business we have reversing a felony jury verdict when the appellant has failed to properly apprise us of what actually happened below. Yet not only does the majority reverse a felony conviction without a transcript of the proceedings below, it does so via a broad *685legal ruling that upends a large swath of settled law. If the majority is correct, then NRS 100.085 isn't an obscure and rarely litigated statute unknown to much of the public, but rather one of the most sweeping laws ever enacted in Nevada-one that fundamentally undermines property law all the way back to the founding of this State.
Where I think the majority errs is in conflating the concept of legal authority (or possession) over personal property with the concept of ownership (or title) of the property. NRS 100.085 deals with the authority of any named account holder to withdraw money from a joint account and the bank's liability for allowing such withdrawals. But the majority makes it reach much farther to say that the act of depositing money into a joint account actually changes who owns the money. I read NRS 100.085 as saying nothing of the sort, and for all of these reasons I respectfully dissent.
I.
This appeal arises from a criminal case that implicates defenses based upon principles of banking and property law. On appeal, Natko raises a single argument: she asserts that one jury instruction given at trial (jury instruction 18) was incorrect.
Natko was convicted of two felony counts: one count of theft and one count of exploitation of a vulnerable person. The crux of the charges (as far as we can tell based upon arguments of counsel without a transcript of the trial) was that her name was added to a bank account first opened by her victim (her long-time boyfriend, according to the briefs), which changed it from a sole account to a joint one, and thereafter she withdrew large amounts of money from it at a time when the victim might not have been sufficiently lucid to agree to such financial decisions.
Her defense was this (again, based upon arguments of counsel without an actual trial transcript): once the account became a joint account, all of the money in it became hers as a "joint tenant" to use any way she pleased, and she could not possibly be convicted of stealing what already belonged to her. At common law, joint tenants could not "steal" jointly owned property from each other. See 3 Wayne LaFave, Substantive Criminal Law § 19.4(c), at 106 (3d ed. 2018) ("The common law view of larceny is that [one joint tenant] cannot steal from the other co-owner."); 3 Charles E. Torcia, Wharton's Criminal Law § 381, at 457-58 (15th ed. 1995) ("When, under principles of property law, property is owned by cotenants so that each one is entitled to the possession of the property jointly or in common with the others, one tenant cannot be guilty of larceny when he takes possession of the property, even though he does so with the intent to exclude the others from its use and enjoyment....").
The question is whether a "joint tenancy" existed here. For support, Natko contends that NRS 100.085 mandates that all money deposited in joint accounts, automatically and by operation of law, becomes the property of all account holders in joint tenancy. Consequently, she asserts the following jury instruction incorrectly describes the law:
18. A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another [sic] assets for their own benefit.
But it seems to me to be Natko, not jury instruction 18, who misstates the law, Natko confuses the act of placing a name onto a bank account with legal ownership of the assets within the account. The creation of a bank account is governed by banking law. Ownership of personal property is governed by principles of property law. These are two entirely different things.
II.
First, property law. Personal property may be owned by one person as a sole owner, or it may be owned by more than one person simultaneously. If owned by more than one person, the owners may be tenants in common, or they may be joint tenants. See NRS 111.063 (tenants in common in personal property); NRS 111,065(2) (joint tenants in personal property). The difference between the two is whether the ownership provides for a right of survivorship should one owner die during the tenancy. See Smolen v. Smolen, 114 Nev. 342, 344, 956 P.2d 128, 130 (1998) ("[T]he principal feature of the estate [is] the *686right of survivorship."). In Nevada, personal property may also take the form of community property when co-owned by husband and wife, but because Natko and the victim were never married, that classification has no relevance here.
The parties do not dispute (again, based solely upon arguments of counsel; we don't know what was proven at trial) that, before Natko's name was added to the existing account, every penny of the money deposited in it was the sole property of the victim. Natko agrees that she had no ownership interest in any of the money before her name was added to the account. However, she argues that once the account became joint, by operation of law everything in it became hers as a "joint tenant."
Maybe. But maybe not. The answer depends upon other evidence introduced at trial. Adding Natko's name to the joint account gave her coequal access to the money in it. Did it also give her legal title and permission to withdraw and spend it as she pleased? Not necessarily.
A foundational principle of property law is that possession is not the same thing as title. Legal title to personal property, and factual possession of it, are different things that can be severed from each other. A person can legally possess property without owning it; it's the difference between a loan that conveys possession but not title, and a sale or gift that conveys both title and possession. It's why a house sitter doesn't become a legal owner of the home simply by residing overnight, and why a casino valet parking attendant doesn't own a car just by being handed the keys. Quite to the contrary, the civil tort of conversion occurs precisely when one person wrongfully exerts dominion over property that actually belongs to another. See Golden Rd. Motor Inn, Inc. v. Islam, 132 Nev. 476, 489, 376 P.3d 151,160 (2016). Further, the crime of embezzlement occurs when, with criminal intent, a bailee entrusted with only possession and not ownership of personal property uses it for the bailee's own benefit as if he were the owner. See NRS 205.300.
A second foundational principle of property law is that title may transfer from one owner (a grantor) to another (a grantee) only if the grantor intended to convey such title. This has been settled law since 1865. See Hendricks v. Perkins , 98 Nev. 246, 250, 645 P.2d 973, 975 (1982) (examining whether evidence proved "the parties' intent to convey" an interest in the property); Cox v. Glenbrook Co., 78 Nev. 254, 264, 371 P.2d 647, 654 (1962) (in determining whether property was conveyed to another, "the intention of the parties [is] the object of inquiry"); Ruhling v. Hackett, 1 Nev. 360, 367 (1865) (the extent of any transfer of property ownership is measured by "the intention of the parties"). Indeed, acting as if title to property has been transferred when the owner never intended to convey ownership is precisely when the tort of conversion and the crime of embezzlement occur.
Natko's argument thus runs afoul of long-established principles of property law: she argues that, under NRS 100.085, merely because she possessed legal authority to withdraw money from the joint account, the money actually belonged to her as a matter of property law. But this lumps together possession and ownership and makes property change title without any evidence of intent by the owner to do so.
What's more, she argues that the property not only changed title, but the form of the title changed from sole ownership to joint tenancy. Under Nevada law, a sole owner of property may convey a sole interest in the property to another simply by expressing an intent to do so and handing over possession. However, when the owner wishes to transmute the form of ownership from sole ownership into ownership by joint tenancy, Nevada law requires considerably more. At common law, creation of a joint tenancy required the "unities of interest, time, title, and possession," Smolen, 114 Nev. at 344, 956 P.2d at 130, meaning an intent to convey both title as well as possession without severing them, along with the unity of "time," which means both must be conveyed at the same time in the same transaction. Id. Beyond that, NRS 111.065 adds a writing requirement that did not exist at common law. This is so because the essence of joint tenancy is the "right of survivorship" that governs what happens when one of the joint tenants dies. Because *687many years or decades may go by before one tenant dies, Nevada law requires such transfers to be evidenced by "a written transfer, agreement, or instrument," so that the parties do not become embroiled in probate disputes years after the fact based upon oral statements whose contents may now be difficult to verify. See NRS 111.065(2). If any of these requirements is missing, then there is no proper conveyance in joint tenancy and what was conveyed was only either a tenancy in common or just sole ownership. Smolen, 114 Nev. at 344, 956 P.2d at 130.
We have no evidence that any of these requirements for creating a joint tenancy were ever met. So, for NRS 100.085 to make a joint tenancy anyway, it must displace quite a lot of statutory and common law. But "[t]he Legislature is presumed not to intend to overturn long-established principles of law when enacting a statute [and] this court strictly construes statutes in derogation of the common law." Shadow Wood HOA v. N.Y . Cmty. Bancorp . Inc., 132 Nev. 49, 59, 366 P.3d 1105, 1112 (2016) (internal quotation marks and citations omitted). To succeed, Natko needs NRS 100.085 to convey ownership of the victim's money to her whether or not the victim intended to give her a dime; whether or not he intended to convey title as well as possession; whether or not title and possession were conveyed in unity at the same time; whether or not anyone intended the account to be a tenancy in common instead of a joint tenancy; and whether or not any other formality of property law set forth in any other statute was followed.
To overcome these gaps and fill in the missing pieces, Natko argues that the victim's intent and all of the unities have already been established simply because once the victim agreed to comply with NRS 100.085(4) while constructively knowing what it said, he adopted and agreed to everything it imposed. In other words, by voluntarily agreeing to create a joint bank account under NRS 100.085, the victim constructively agreed to convey his money to Natko in joint tenancy because that's what the statute would make a joint account holder do. The way for the victim to avoid such a conveyance and keep the money for himself was not to deposit it into a joint bank account.
But this brings us to the next problem, which is that Natko's approach also conflicts with principles of banking law.
III.
Bank accounts may be in the name of a sole account holder or they may be in the name of joint account holders. Under traditional principles of banking law, the form of the account, and the name it may bear, may have little to do with the beneficial ownership of anything deposited into the account. By way of example, trust accounts-such as an attorney trust account holding money for clients, or any other type of trust account used by agents or fiduciaries to hold money on behalf of principals-are classic examples of bank accounts that may bear the name of one person or entity but actually hold money beneficially owned by other people whose names appear nowhere on the accounts. Indeed, the body of federal crimes commonly known as "money laundering" punishes the act of attempting to conceal ownership of ill-gotten money by depositing it into bank accounts in the names of others while secretly retaining control of it. See United States v. Davis, 226 F.3d 346, 357 (5th Cir. 2000) ; United States v. Rutgard , 116 F.3d 1270, 1292 (9th Cir. 1997).
The point is that the name on an account may have little to do with who owns what's in it. Who actually owns the money in an account, both before and after it is deposited, is a question for the depositors and account holders to handle between themselves: "[g]enerally, the respective rights of the parties to a joint bank account are determined by the rules of contract law, and the intent of the parties with respect to the joint savings account is controlling." Anderson v. Iowa Dep't of Human Servs., 368 N.W.2d 104, 109 (Iowa 1985). See Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923, 925 (1994) (stating that "each owner's right to the funds may depend upon an agreement between them as to their ownership rights"); see generally In re Estate of Greer, 128 P.3d 1104, 1107 (Okla. Civ. App. 2005) (stating that "actual ownership of the funds, as opposed to *688the right of possession, is a question of intent ").
Natko argues otherwise, but until now it's been long established that depositing money into a "joint account" does not automatically constitute a conveyance of money from the depositor to other account holders, either as sole owners or as joint tenants. "[A] person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he usually intends no present change of beneficial ownership." Deutsch Larrimore & Farnish , P.C., v. Johnson, 577 Pa. 637, 848 A.2d 137, 143 (2004). Thus, money deposited in a joint bank account does not belong to other account holders absent "clear and convincing evidence" that the depositing party intended to confer such ownership. Enright v. Lehmann, 735 N.W.2d 326, 331 (Minn. 2007). Some states have held that the creation of a joint account established a rebuttable presumption of joint ownership (notably not a conclusive or irrebuttable one), and at one time Nevada employed such a presumption. See Sly v. Barnett, 97 Nev. 587, 589, 637 P.2d 527, 528 (1981). Courts in those states recognized that an irrebuttable presumption of the kind Natko proposes would create a "hardship ... on parties having 'convenience' accounts, as where an incapacitated person might have a joint account for the sole purpose of financial management." Id. (Which, by the way, in view of the victim's alleged lack of mental capacity might be just what was intended here).
But it is simply not true that depositing money into a bank account by itself constitutes a transfer of ownership in the money to someone else just because their name also happens to be on the account, with no consideration of any evidence to the contrary no matter how weighty or persuasive that evidence might be, and no opportunity for ownership to be disputed or challenged by any other party. See id; see also South v. Smith , 326 Ark. 774, 934 S.W.2d 503, 507 (Ark. 1996) ("[E]ven though one has a right to withdraw funds from a joint bank account, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant...." (citation omitted) ). Quite the opposite: a party who merely has his name on a joint account and proves nothing more "fail[s] to establish his ownership of all the funds in the joint accounts." Marcucci v . Hardy, 65 F.3d 986, 992 (1st Cir. 1995). Indeed, if one owner of a joint bank account tries to withdraw more from the joint account than he owns or is entitled to, the other account holders may sue him for the tort of conversion because he has taken something that was not his to take. Newbro v. Freed , 409 F.Supp.2d 386, 395 (S.D.N.Y. 2006) ; see Matter of Kleinberg v. Heller , 38 N.Y.2d 836, 382 N.Y.S.2d 49, 345 N.E.2d 592 (1976) ; see also Kettler v. Sec. Nat'l Bank , 805 N.W.2d 817, 823 (Iowa Ct. App. 2011) (stating that "a cotenant may not withdraw from the account in excess of his interest; if he has done so, he is liable to the other joint tenant for the excess so withdrawn" (quotation and citation omitted) ); South , 934 S.W.2d at 507 ("[W]hen one [joint account holder] withdraws in excess of his moiety, he is liable to the other joint tenant for the excess withdrawn.").
The Nevada Supreme Court long ago rejected the very argument advanced here, in which "plaintiff contends that by depositing the money in the joint account defendant made a valid, completed gift to the plaintiff." Weeks v. Weeks, 72 Nev. 268, 275, 302 P.2d 750, 753 (1956). It rejected this argument summarily, pointedly noting that no authority existed for this proposition but "literally hundreds of cases" stood for the opposite. Id. at 276, 302 P.2d at 754 ; see Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943) (under prior statute, merely because a bank account is joint does not mean that it is intended to be a joint tenancy with right of survivorship). Since then, the Nevada Supreme Court's position has consistently remained the same right through 2016: money retains its original ownership even when deposited into a joint account, and consequently "[a] judgment creditor may garnish only a debtor's funds that are held in a joint bank account, not the funds in the account owned by the nondebtor." Brooksby v . Nev. State Bank, 129 Nev. 771, 772, 312 P.3d 501 (2013). This is simply because "joint bank account funds [may] truly belong to someone other than the judgment *689debtor." Id. at 773, 312 P.3d at 502 ; see Brooks v. Mejia, 2016 WL 197396, Docket No. 67794 (Order of Affirmance, Jan. 14, 2016) (concluding that creditor could not garnish account to pay off debt owed by other account holder because appellant successfully "demonstrated that the funds in the bank account belonged to her alone"). In other words, even when funds from different sources are commingled in a joint bank account, the ownership of the funds does not automatically change merely by being deposited in the joint account. Rather, even when commingled, the funds retain their original ownership status at least so long as ownership can be traced. In re Christensen, 122 Nev. 1309, 1323, 149 P.3d 40, 49 (2006) (ownership over funds stays unchanged even when commingled with other funds "so long as tracing is possible").
None of these cases makes any sense (and all would have to be overruled) if Natko is correct about what NRS 100.085 does. These cases make sense only if Natko is wrong. Indeed, they show, conclusively, that she is.
What a joint bank account does is give every account holder some right of access to the money. But access is not the same thing as ownership. "The joint owner of a bank account ... has the right to withdraw all of the funds, thereby totally divesting the other joint owner of all interest. [But] the creator of a joint account has a cause of action against the other owner for having completely withdrawn the funds, upon establishing that in creating the account the creator did not intend to transfer [all of the funds]." In re Rauh, 164 B.R. 419, 424 (Bank, Ct. D. Mass. 1994) ; see Kettler, 805 N.W.2d at 823 ; South, 934 S.W.2d at 507. As another court described a virtually identical statute to NRS 100.085 :
The intent of [the statute] is to protect a financial institution from liability for distributing funds from a multiple-party account to any of the individual account holders. However, the relationship between a banking institution and the holders of a joint account does not in any manner shape the relationship between the account holders themselves. As such, while [one account holder] was authorized to withdraw the funds, she was not authorized to use the funds for her personal benefit.
Sandler v . Jaffe, 913 So.2d 1205, 1207 (Fla. Dist. Ct. App. 2005), See Erhardt v . Leonard, 104 Idaho 197, 657 P.2d 494, 497 (Idaho Ct. App. 1983) (noting that "[a]ccount contracts ... define the power of withdrawal held by each party to the account, as a means of protecting the financial institution," but that they do not affect the actual ownership of the funds therein, which is determined by looking to the intent of the depositor).
IV.
Natko argues that she is right and all of this is wrong because NRS 100.085 overturned it all in 1995, when the statute was last amended; ever since then, none of these statutes or common law principles has applied to any money held in joint bank accounts.
If she is correct, that raises an interesting question: what happened to money that was deposited into joint bank accounts before 1995 and remained there after the amended statute took effect? Natko concedes that, prior to 1995, money deposited into a joint account was not necessarily held in joint tenancy, agreeing that the Nevada Supreme Court said exactly that in Starr v. Rousselet, 110 Nev. 706, 712, 877 P.2d 525, 530 (1994) (holding that "a simple reference to a 'joint' account ... will not suffice for purposes of establishing a joint tenancy"). She argues, though, that money deposited into any joint account became automatically held in joint tenancy beginning in 1995 when the last amendment to NRS 100.085 took effect, thereby overruling Starr at least sub silentio .
Would this not be a governmental seizure of private property and conveyance to others of all money held in joint bank accounts at the moment the 1995 amendments took effect-possibly tens of millions of dollars of it across Nevada? Nev. Const, art. 1, § 8 (5) stipulates that "[n]o person shall be deprived of ... property, without due process of law," and art. 1, § 22 provides that "[p]ublic use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private *690party to another private party." Yet Natko seems to read the 1995 amendments as accomplishing something very much along those dangerous lines: taking all money deposited in any joint account before 1995 away from any original sole owner and giving it away in joint tenancy whether the owner wanted to or not.
Furthermore, it seems to me that this interpretation creates serious problems with the Contract Clause of the Nevada Constitution, which prohibits any "law impairing the obligation of contracts." Nev. Const, art. 1, § 15. Following Natko's reasoning, any contract governing the ownership of money held in a joint account before 1995-say, a 1994 contract that provided that money held in a joint account was expressly not held in joint tenancy between the parties-would have been voided, ex post facto, by the 1995 amendment to NRS 100.085. That would make NRS 100.085 unconstitutional. But we're not supposed to read statutes that way; to the contrary, "when a statute may be given conflicting interpretations, one rendering it constitutional, and the other unconstitutional, the constitutional interpretation is favored." State v. Kopp, 118 Nev. 199, 203, 43 P.3d 340, 342-43 (2002) (internal quotation marks omitted).
Central to the concept of liberty in our constitutional republic is the right to freely convey or dispose of private property as the owner, not the government, sees fit. Indeed, the right to own real and personal property free from government interference is the individual right most frequently mentioned in the U.S. Constitution. See U.S. Const, amend. III (protecting "any house"); amend. IV (protecting "houses" from unreasonable search and seizure); amend. V (prohibiting deprivation of life, liberty, or "property" without due process of law, and preventing "private property" from being taken without just compensation); amend. XIV (prohibiting deprivation of life, liberty, or "property" without due process of law). Government ownership and control of property is the hallmark of communist societies, not free ones. Yet that comes perilously close to what Natko seems to propose here: that the Legislature can simply take one's private property and give it to someone else (or at least make the original owner share it with others against his will) by enacting a statute like NRS 100.085.
V.
Natko argues that this is what NRS 100.085 demands. But the statute doesn't really say what she claims it does.
When reviewing statutes, we start with the statutory language and give it the meaning most reasonably supported by the text, structure, and context. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170, 174 (2012). If one is an "intentionalist" or "purposivist," one might also peek at the legislative history or announced purpose lurking behind a statute. But neither the stated purpose nor anything in the legislative history can ever override the plain meaning framed by the statute's own language and structure, because the language and structure were all that the Legislature voted on and all that the Governor signed.
As a starting point, the structure of NRS 100.085 tells us that it isn't the general all-purpose banking and property law statute that Natko says it is. Quite to the contrary, and quite notably, the general banking statute is located very far away, in NRS Chapter 657. The personal property statute is also located elsewhere, in NRS Chapter 111.
In contrast, NRS 100.085 is located within Chapter 100, a chapter directed specifically at "Special Relations of Debtor and Creditor," and NRS 100.085 is further located adjacent to a series of subchapters titled "Marshaling of Assets," "Suretyship," and "Transfer of Creditor's Rights." The statute is immediately preceded by a series of other statutes addressing "Agreements between principals and sureties for joint control of assets" ( NRS 100.060 ); "Deposits authorized in lieu of cash payment or surety bond for protection of State" ( NRS 100.065 ); and "Creditor's rights transferable without consent of debtor" ( NRS 100.075 ). The statute immediately following NRS 100.085 is NRS 100.091, titled "Impound account required under loan secured by real property...."
*691What does this tell us? That NRS 100.085 doesn't govern how bank accounts are set up for all purposes, nor does it supplant centuries of common law (along with several current statutes) to dictate who owns personal property; this chapter would be a pretty incongruous place to bury a statute that revolutionary. Rather, being placed here tells us that it's much narrower and is directed toward problems that may arise in debtor/creditor relations. As the Nevada Supreme Court has described the statute, "[t]he effect of NRS 100.085(1) is to protect a depository, such as a bank, from liability if it pays money out to a joint tenant of an account." Walch v . State, 112 Nev. 25, 31, 909 P.2d 1184, 1188 (1996).
Structure aside, here are what the plain words of the statute say. Under NRS 100.085(1) and (3), any "deposit made in the name of [two or more persons] and intended to be paid or delivered to any one of them" is the property of all named persons that can be withdrawn by any account holder, and the bank will suffer no liability if the withdrawal turns out to have been against the wishes of other account holders. NRS 100.085(4) specifically states that, "[f]or purposes of this section," the bank may treat a "deposit" into a joint account as if it were intended in joint tenancy so long as the deposit was made in the name of one or more persons into the joint account, unless the "depositor" indicates otherwise.
Take these words at face value, and notice what they don't say: they don't say that all joint bank accounts create joint tenancies all the time. Here's why. There are three ways that money can end up in a joint account: it can be deposited in a sole account to which more names are added later to make it joint; it can be deposited into a joint account in the name of only one account holder; or it can be deposited into a joint account in the names of multiple account holders. Yet NRS 100.085 addresses only one of these (the third). The plain words of NRS 100.085 state that the entire statute comes into play only when a joint account has already been established and a "deposit [is] made in the name of the depositor and one or more other persons." See NRS 100.085(1) ("When a deposit has been made in the name of the depositor and one or more other persons...."); 100.085(3) ("When a deposit has been made in the name of the depositor and one or more other persons....").
By its plain terms, NRS 100.085 isn't triggered by the initial creation of a joint account, but rather only by the making of certain kinds of deposits into one already established. That's the very title of the statute: "Deposits in names of two or more persons" (and not, by contrast, "joint bank accounts" or "joint tenancies"). Even NRS 100.085(4), the section that refers to joint tenancies (and upon which Natko most obviously hangs her hat), is triggered only by the actions of a "depositor" who makes the kind of deposit outlined in sections (1) and (3). In fact, here is the language from (4) that forms the backbone of Natko's entire argument:
4. For the purposes of this section, unless a depositor specifically provides otherwise, the use by the depositor of any of the following words or terms in designating the ownership of an account indicates the intent of the depositor that the account be held in joint tenancy.... (emphasis added).
On their face, these words don't apply to all joint bank accounts from inception but only when activated by the actions of a "depositor" following a deposit pursuant to (1) or (3). This would not be Natko if she never deposited any of her own money into the account herself in the specific manner provided by (1) or (3) (which she seems to concede); Natko couldn't trigger this statute herself as a mere account holder who never made a deposit in the name of more than one person. Did the victim ever trigger section (4)? That depends on evidence we don't have before us.
But let's keep going through the text. What happens with the other two situations? Say no such deposits are made in the names of multiple account holders. Or, say deposits were made only back when the account was a sole account before it became joint. Notably, neither of these is covered by NRS 100.085(1), (3), or (4). The statute omits bank accounts that began as sole accounts and then were later converted into joint ones without any more deposits having been *692made. It also omits bank accounts that are joint, but in which no deposits have yet been made "in the name of the depositor and one or more other persons." These seem like rather glaring omissions, omissions that may potentially encompass thousands of joint accounts, weirdly making some bank accounts into joint tenancies but leaving out quite a lot of them.
So if NRS 100.085 creates joint tenancies at all (which I doubt, but let's assume it does for the moment), it does so only sporadically and unpredictably: some joint bank accounts are joint tenancies because the right kind of "deposit" was made into them; some joint bank accounts are not joint tenancies right now but may become joint tenancies in the future upon the making of the right kind of "deposit"; and some joint bank accounts may never become joint tenancies if the right kind of "deposit" is never made. That's a pretty odd scheme.
More pointedly, oddity aside, those omissions matter very much to this appeal because at least one of the situations omitted may be precisely the situation at hand. Here, the victim originally deposited what had unequivocally been his own money into a sole account and Natko's name was added to the account only later. Absent a transcript it's not clear whether all of the money at stake was deposited before or after her name was added (your guess is as good as mine on the precise sequence of events). If all of the victim's money was deposited while the account was still sole, then there was never a deposit into any joint account made in the name of more than one person. If so, this case would be precisely one of the situations that the express words of NRS 100.085 would not cover, and Natko's interpretation of the statute leaves her own appeal out.
The strangeness of these results suggests something more broad: Natko is simply wrong about what the statute says. Why would a comprehensive banking and property statute omit so much and include so little? The answer must be: because NRS 100.085 is not the comprehensive banking and property statute that Natko argues it is. Rather, it is what Watch said it is: a statute that protects banks from liability. 112 Nev. at 31, 909 P.2d at 1188. It applies in only extremely limited circumstances, and says nothing about whether the mere creation of a joint account universally gifts every dollar deposited to everyone else whose name happens to be on the account. NRS 100.085(4) simply protects banks from being sued by a decedent's estate for allowing a surviving account holder to withdraw funds after the depositor has died and the bank mistakenly thought that a right of survivorship was intended. That's all it does. NRS 100.085(4) insulates the bank by allowing it to assume for purposes of the withdrawal that there existed a right of survivorship; but whether there actually was one is a matter to be resolved in probate court as a question of property law.
VI.
If Natko wanted to prove that the money was hers, she could have done so by introducing evidence of the victim's intent to gift the money to her, and perhaps the creating of the joint account may have constituted some evidence of such intent. But it did not become hers just by operation of law without any evidence that the victim intended a conveyance.
Alternatively, perhaps one might say that the creation of a joint bank account established a prima facie rebuttable presumption that the money in it might be intended to be held in joint tenancy. See Sly, 97 Nev. at 589, 637 P.2d at 528. But even then the jury must consider any and all evidence of intent offered to rebut that presumption.
Either way, NRS 100.085 is not the alpha and omega of the inquiry, with nothing more to ask. Accordingly, jury instruction 18 is more or less correct. It states that a person's status as a joint account holder by itself says nothing about who owns the money within the account or who can use it for their own personal benefit. That's manifestly true. Status as a joint account holder may constitute evidence pointing to ownership of the money. It may even create a rebuttable presumption of joint tenancy in some cases. But no legal conclusion can be drawn from the status itself, without anything more.
*693Although jury instruction 18 is poorly worded (including an obvious grammar and punctuation error), in substance it's a reasonable approximation of the law. It probably would have been more accurate had it stated that "a person's status as a joint account holder does not by itself provide lawful authority to use or transfer the assets in the account for their own benefit," or perhaps "a person's status as a joint account holder does not by itself convey legal ownership of the funds deposited in the account." But it's not that far off the mark. I do not think the district court erred in giving it, and therefore reversal is not warranted.
VII.
Even if one could read NRS 100.085 as broadly as Natko proposes-to make the name on a bank account single-handedly preempt any other principle of property ownership-I would still affirm the conviction. Without a transcript of the trial, we have no idea what the State or Natko proved about the money in the bank account or the victim's capacity or intent to convey it. We also don't know whether jury instruction 18 related to the evidence introduced at trial or whether it may have been entirely superfluous and irrelevant to everything that happened below. Those gaps requires affirmance.
But there's more. The central issue in this case appeared to be that, at the time the joint account was created, the victim may have lacked the mental capacity to make any serious financial decisions. If the trial evidence confirmed this (we can only guess), the jury could have concluded that the establishment of the joint bank account itself occurred without the victim's legal consent, and if so, then any withdrawal from it thereafter was either void or at least voidable due to the victim's lack of capacity. If the account itself and any deposit into it or withdrawals from it were legally void, then Natko never legally owned the money even under her theory of NRS 100.085, because the victim lacked the mental capacity to give it to her. A rational jury could have concluded that Natko committed theft and exploitation by inducing the victim to convert his money into joint tenancy and thereby gift it to her at a time when he had no legal capacity to agree, and I would affirm on this basis as well as for the other reasons set forth herein.
VIII.
For all of these reasons, I respectfully dissent. At common law, joint tenants could not steal from each other. But joint bank account holders might be able to, because not every joint bank account holder is necessarily a joint tenant to every penny ever deposited in the account by anyone at any time. In the absence of a trial transcript we simply do not know whether Natko was a joint tenant to the money deposited into the account, or whether she might have been a joint account holder without being a joint tenant. Consequently, we do not know whether any error occurred, and I would affirm the conviction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484806/ | PER CURIAM:
*414In this appeal, we consider whether a plaintiff must comply with the jurisdictional naming requirement set forth in NRS 41.031 and NRS 41.0337 in order to properly proceed with civil rights claims brought pursuant to 42 U.S.C. § 1983. NRS 41.031 and NRS 41.0337 require plaintiffs bringing state tort claims against the State of Nevada and state employees to comply with certain requirements-particularly, naming the State as a party to the action-in order to properly invoke the State's waiver of sovereign immunity. Under 42 U.S.C. § 1983, plaintiffs may bring claims for damages against any person who, under color of state law, deprives the plaintiff of his or her civil rights. And it is well established that the State is not considered a "person" for the purposes of bringing a § 1983 claim; thus, such claims cannot be maintained against the State.
At issue here is how NRS 41.031 and NRS 41.0337 's requirement that the State be named as a party to invoke a waiver of Nevada's sovereign immunity operates when a plaintiff brings an action against state employees pursuant to both NRS Chapter 41 and 42 U.S.C. § 1983. We hold that, while a plaintiff must name the State as a party to any state tort claims in order to comply with NRS 41.031 and NRS 41.0337, this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even when brought in the same complaint as a plaintiff's state tort claims. Indeed, the State cannot be named as a party to a plaintiff's § 1983 civil rights claims.
In this case, plaintiff's complaint arguably asserted both state tort claims and 42 U.S.C. § 1983 claims against the respondent state employees, but did not name the State of Nevada as a party to any of these claims. Accordingly, we affirm the district court's order dismissing the complaint to the extent plaintiff asserted state tort claims under NRS 41.031 and NRS 41.0337, but reverse and remand the district court's dismissal as to those claims made pursuant to 42 U.S.C. § 1983.
BACKGROUND
Plaintiff Teddie Craig is an inmate at the Lovelock Correctional Center. Craig filed a civil rights and torts complaint pursuant to 42 U.S.C. § 1983 and NRS 41.031 naming respondents, who are employees of the Nevada Department of Corrections, as defendants in their individual capacities and alleging that these parties violated his First, Eighth, and Fourteenth Amendment rights under the United States Constitution.
Respondents subsequently moved to dismiss the complaint, arguing that Craig failed to properly name the State of Nevada as required by NRS 41.031 and NRS 41.0337, and therefore, failed to invoke the State's waiver of sovereign immunity such that the district court lacked jurisdiction over the matter. Craig opposed the motion, arguing that the prison, as an arm of the State, is not a person for purposes of 42 U.S.C. § 1983, and asserting that, as a result, he was withdrawing his reliance on NRS 41.031 as a basis for the action. Craig also moved to strike any reference to NRS 41.031 as a basis for his complaint for the purpose of giving the district court jurisdiction over his § 1983 claims.
The district court granted respondents' motion to dismiss, concluding that Craig failed to name the State of Nevada in his complaint, as required by NRS 41.031, and that he therefore failed to properly invoke the State's waiver of sovereign immunity. Based on this determination, the district court held that it lacked subject matter jurisdiction over the case, noting that Craig could not plead around this jurisdictional defect by *415attempting to strike the reference to the relevant statute.
Craig now appeals, contending that the district court erred in dismissing his case because he brought federal civil rights claims under 42 U.S.C. § 1983. Respondents disagree, arguing that dismissal was proper because Craig failed to properly invoke the State's waiver of sovereign immunity under NRS 41.031, and therefore, the district court did not have jurisdiction over the case.
ANALYSIS
The district court may properly dismiss a complaint when a lack of subject matter jurisdiction is apparent on the face of the complaint. Rosequist v . Int'l Ass'n of Firefighters Local 1908 , 118 Nev. 444, 448, 49 P.3d 651, 653 (2002), overruled on other grounds by Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 573 n.22, 170 P.3d 989, 995 n.22 (2007) ; see NRCP 12(h)(3). This court reviews a district court's order granting a motion to dismiss for lack of subject matter jurisdiction de novo. See Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015) (reviewing a district court order dismissing a case for lack of subject matter jurisdiction de novo).
By statute, the State of Nevada has waived its sovereign immunity from civil liability in limited circumstances. See NRS 41.031. NRS 41.031 provides that, to properly invoke the State's waiver of immunity and pursue a civil action against the State, a plaintiff must name "the State of Nevada on relation of the particular department, commission, board or other agency of the State whose actions are the basis for the suit." Additionally, NRS 41.0337 requires that, to pursue a tort claim against a state employee, the complaint must name the State as a party pursuant to NRS 41.031. Thus, NRS 41.031 and NRS 41.0337 require that, to pursue a claim against the State or a state employee acting within the scope of his or her employment, a plaintiff must name the State of Nevada as a defendant.
Here, Craig's complaint set forth 42 U.S.C. § 1983 claims while also providing that jurisdiction for his claims existed under NRS 41.031. And the district court dismissed the complaint, in its entirety, for failure to name the State of Nevada as a party pursuant to NRS 41.031.
Insofar as Craig's complaint can be read to have asserted state tort claims against the respondent state employees pursuant to NRS 41.031, dismissal as to those claims was required.1 As detailed above, NRS 41.031 and NRS 41.0337 require that the State, on relation of the particular department, be named as a party to any complaint setting forth tort claims against state employees. And here, it is undisputed that Craig failed to name the State as a party to the action. Accordingly, the district court was required to dismiss any state tort claims that Craig brought against respondents for lack of subject matter jurisdiction. See NRS 41.031 ; NRS 41.0337 ; Rosequist, 118 Nev. at 448, 49 P.3d at 653.
This does not end our analysis, however, as the district court went on to determine that NRS 41.031 and NRS 41.0337 also required dismissal of Craig's 42 U.S.C. § 1983 claims for failing to name the State as a party. The Nevada appellate courts have not addressed whether NRS 41.031 and NRS 41.0337 require a plaintiff to name the State as a party to § 1983 claims brought against state employees in their individual capacities, and we take this opportunity to provide guidance on this issue.
42 U.S.C. § 1983 allows a plaintiff to bring civil rights claims against any person who, under color of any statute, deprives the plaintiff of any rights, privileges, or immunities secured by the United States Constitution. 42 U.S.C. § 1983. Importantly, states are not "persons" for purposes of *41642 U.S.C. § 1983 actions, and thus, a plaintiff cannot bring a § 1983 action against a state. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 64-70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
Similarly, when state officials or employees are sued in their official capacities, such actions are truly against the office, not the individual, such that the action is effectively against the state itself. Id. at 71, 109 S.Ct. 2304 ; see also N. Nev . Ass'n of Injured Workers v. Nev . State Indus. Ins. Sys., 107 Nev. 108, 114-15, 807 P.2d 728, 732 (1991) (applying Will to determine that § 1983 claims could not be maintained against a Nevada state agency or state officials and employees in their official capacities). Therefore, state officials and employees are likewise not "persons" for purposes of § 1983 actions when sued in their official capacities and such claims cannot be brought against them in this capacity. Will , 491 U.S. at 71, 109 S.Ct. 2304 ; N. Nev. Ass'n of Injured Workers, 107 Nev. at 114-15, 807 P.2d at 732.
Because neither the State nor state employees in their official capacities can be proper defendants to 42 U.S.C. § 1983 claims, NRS 41.031 and NRS 41.0337 necessarily do not apply to such claims. As a result, the respondent state employees, in their individual capacities, were the proper defendants to Craig's § 1983 claims, not the State. See Hafer v. Melo , 502 U.S. 21, 27-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that state officials may be sued in their personal or individual capacities under § 1983, even if their actions were taken as part of their official duties).
Beyond the fact that 42 U.S.C. § 1983 claims cannot be maintained against the State, to the extent that dismissal of Craig's § 1983 claims based on a failure to invoke Nevada's sovereign immunity under NRS 41.031 and NRS 41.0337 would provide immunity over and above what is already provided by § 1983, such an application of Nevada's statutes would violate the supremacy clause of the United States Constitution. See Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (explaining that § 1983 claims may be brought in state courts and are not subject to state sovereign immunity defenses because allowing "immunity over and above those already provided in § 1983... directly violates federal law"); Martinez v . Cal., 444 U.S. 277, 284 n.8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (explaining that "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law" because it would violate the supremacy clause (internal quotation marks omitted)). As a result, NRS 41.031 and NRS 41.0337 cannot bar Craig from pursuing his 42 U.S.C. § 1983 claims against the respondent state employees, in their individual capacities, on sovereign immunity grounds.2
Thus, when a plaintiff seeks to bring both state tort claims and 42 U.S.C. § 1983 claims against state employees, the claims should be structured as follows. Any state tort claims must name not only the state employees, but must also include the State, on relation of the particular department, as a party to those particular claims in order to comply with NRS 41.031 and NRS 41.0337 and perfect a waiver of Nevada's sovereign immunity. Any claims brought pursuant to § 1983, however, need only name the state employees, in their individual capacities, as parties to the § 1983 claims. The plaintiff need not-and indeed cannot-name the State as a party to the 42 U.S.C. § 1983 claims.
CONCLUSION
Based on the foregoing analysis, we conclude that, while the district court properly dismissed any state tort claims brought against the respondent state employees for failing to name the State as a party as required *417by NRS 41.031 and NRS 41.0337, it erred in applying these statutes to dismiss Craig's 42 U.S.C. § 1983 claims. With regard to the § 1983 claims, Craig's complaint properly named the state employees, in their individual capacities, as parties and not the State, as required to bring claims under § 1983. Accordingly, we affirm the dismissal of any state tort claims in Craig's complaint, but reverse and remand the dismissal of Craig's complaint as to his 42 U.S.C. § 1983 -based causes of action.3
It is not clear that Craig actually asserted any state tort claims in his complaint, as he appears to only assert constitutional violations as causes of action. Indeed, Craig's complaint was filed using a standard form entitled, "Civil Rights Complaint pursuant to 42 U.S.C. § 1983" and Craig merely included NRS 41.031 as an additional statute providing jurisdiction. Nonetheless, to the extent his complaint could be read as including state tort claims, Craig waived them in his opposition to the motion to dismiss.
We note that our conclusion on this point is in line with those reached by several of our sister states who have addressed similar questions. See , e.g., Besser v. Dexter , 68 Ohio App.3d 510, 589 N.E.2d 77, 79 (1990) ("The procedure set forth in [Ohio's waiver of sovereign immunity statute] applies to state law claims against the state of Ohio and/or its employees. It has no application to federal claims whether brought in federal or state court...."); Watkins v. Pa. Dep't of Corr., 196 A.3d 272, 274 (Pa. Commw. Ct. 2018) ("Section 1983 claims may be brought in the courts of this Commonwealth and are not subject to state sovereign immunity defenses.").
In light of our resolution of this case, we deny all other requests for relief currently pending in this matter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350252/ | Hall v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 07369)
Hall v New York Cent. Mut. Fire Ins. Co.
2022 NY Slip Op 07369
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
865 CA 21-01227
[*1]MICHAEL HALL AND MELISSA HALL, PLAINTIFFS-RESPONDENTS,
vNEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT. (APPEAL NO. 2.)
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (GREGORY S. GAGLIONE, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (CHRISTOPHER M. BERLOTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Gail Donofrio, J.), entered August 23, 2021. The order and judgment awarded plaintiffs a money judgment against defendant.
It is hereby ORDERED that the order and judgment so appealed from is unanimously vacated, the order entered August 11, 2021 is reversed on the law without costs, the cross motion is denied, the motion is granted and the complaint is dismissed.
Same memorandum as in Hall v New York Cent. Mut. Fire Ins. Co. ([appeal No. 1] — AD3d — [Dec. 23, 2022] [4th Dept 2022]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350358/ | NUMBER 13-21-00336-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID EUGENE WHITE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 453rd District Court
of Hays County, Texas.
ORDER OF ABATEMENT
Before Justices Benavides, Hinojosa, and Tijerina
Order Per Curiam
This cause is before the Court on its own motion. Briefs for both appellant and the
State have been filed, and the case is ready for submission. Upon review, the Court
learned that appellant, David Eugene White, is likely deceased. The Court, through its
Clerk of Court, attempted to communicate with counsel for White on several occasions
about this matter, but to no avail. This sequence of events requires us to effectuate our
responsibility to avoid further delay and to preserve the parties’ rights. See TEX. R. APP.
P. 7.1(a)(2), 43.6. Accordingly, this appeal is ABATED and the cause REMANDED to the
trial court.
Upon remand, the trial court shall immediately cause notice to be given and
conduct a hearing to determine whether appellant is deceased or not deceased. Once
that determination is made, the trial court shall enter a written finding.
The trial court shall cause its findings and recommendations, together with any
orders it may enter regarding the aforementioned issue to be filed in a supplemental
clerk’s record. Additionally, the trial court shall cause a supplemental reporter’s record of
any proceedings to be prepared. The supplemental clerk’s record and supplemental
reporter’s record, if any, shall be filed with the Clerk of this Court on or before the
expiration of thirty (30) days from the date of this order.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
20th day of December, 2022.
2 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350366/ | Affirmed and Memorandum Opinion filed December 20, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00105-CV
IN THE MATTER OF W.A.M.P.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-00197J
MEMORANDUM OPINION
We issue this opinion to address appellant’s issue 2, the sole remaining issue
in this case, in which appellant challenges his commitment to the Texas Juvenile
Justice Department. On July 28, 2022, we issued a memorandum opinion
overruling appellant’s issues 3 and 4, which challenged the legal and factual
sufficiency of the evidence supporting the trial court’s determination that appellant
engaged in delinquent conduct by committing in January 2020 the second-degree
felony of manslaughter. We sustained appellant’s issue 1 on the grounds that the
trial court’s determination order committing appellant to the Texas Juvenile Justice
Department was insufficiently specific under Family Code section 54.04(f), and
remanded the case, abating by separate order with instructions that the trial court
make findings compliant with the Family Code. Tex. Fam. Code Ann. § 54.04(f).
The trial court signed its disposition findings and order on August 24, 2022.
After the order was received by this court, we requested supplemental briefing
from the parties on appellant’s issue 2, in which appellant argued that the trial
court abused its discretion by committing appellant to the Texas Juvenile Justice
Department. In response, appellant’s lawyer informed this court that appellant had
been deported and argued that issue 2 was now moot, given that appellant was no
longer committed to the Texas Juvenile Justice Department.1 We agree that issue 2
is moot, given that, due to appellant’s deportation, this court can no longer provide
the relief requested, i.e., probation at appellant’s home instead of commitment to
the Texas Juvenile Justice Department.
Accordingly, we overrule appellant’s issue 2 as moot. Having disposed of all
of appellant’s issues, we affirm the judgment of the trial court as challenged on
appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Spain, and Hassan.
1
We requested a response from the State but no response has been filed.
2 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484810/ | JUDGMENT
This cause having come on to be heard before Judges Wood and Lutu at 9:30 a.m., 5 July 1927 at the District Court Room in Fagatogo and
The defendants having admitted all the material allegations of the complaint,
It is accordingly found:—
1. That on the 2nd day of July 1927 the defendants were indebted to the plaintiff in the amount of $4,450.00, the same being the unpaid balance of principal and interest on a promissory note made by said defendants on 1 December 1926 in the principal amount of $4,800.00.
2. That the defendants have failed to pay the installment of interest due on 1 July 1927..
3. That according to the tenor of said note the whole amount of principal and interest thereof then become due.
4. That said note was secured by a mortgage dated 1 December 1926 made by the defendants to the plaintiff— and that this mortgage covered:
A. The lease of the defendant’s store premises leased from Ho-Ching.
*9B. All the stock in trade, fountain and fixtures of said store.
C. All accounts receivable of the defendant A. Forsythe.
D. In the event that the foregoing assets were not sufficient to secure the amount due on said note, then the defendants to lease to the plaintiff the house of defendant Faaulito Forsythe, for a period not over 40 years at $30 per month for the time necessary to pay the balance found due to the plaintiff from the defendants.
5. That the assets of the said A. Forsythe were appraised as follows:
A. Ho-Ching Lease $ 250.00
B. Stock in trade, fixtures & fountain 1,910.15
C. Accounts receivable 1,500.00
$3,660.15
6. Balance due to the plaintiff by the defendants $789.85.
IT IS ACCORDINGLY ADJUDGED AND DECREED
1. That the assets of the said A. Forsythe be immediately transferred to the plaintiff Hoeter as follows:—
A. Ho Ching lease.
B. Stock in trade, fixtures and fountain in A. Forsythe’s store.
C. All accounts receivable of A. Forsythe.
2. That beginning the 1st day of October 1927 the defendant Faaulito Forsythe lease the premises described in said mortgage of 1 December 1926 to the plaintiff for the term of two years and three months at a monthly rent of $30.00 to be applied by the plaintiff on the balance due to him by the defendants, to wit $789.85. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484811/ | H. P. WOOD, Chief Justice
This case having come on before this Court for a rehearing on the 20th of July 1932 upon the petition of Sifoa and Mageo — it having been shown in said petition that Sifoa built the house upon the land Fausaga by the permission of Mageo and that Sifoa was not represented at the first hearing,—
And witnesses having been heard on the part of Sifoa and Mageo and additional witnesses having been heard on the part of Taetafea,—
And the Court after hearing all the testimony being of the Opinion that the evidence preponderated neither in favor of Sifoa and Mageo or Taetafea on the question of Taetafea’s use and cultivation of the land Fausaga,—
And having appointed Tuimalu, William Harrington and Chris Young as appraisers to value separately the house built by Sifoa and the land Fausaga, and having at the trial stated that said appraisal having been made, either Sifoa and Mageo should buy Taetafea’s interest in the land or Taetafea should buy the house built by Sifoa,—
And said appraisers having valued said house at $250.00 and said land at $200.00, and Taetafea having deposited with the Clerk of this Court the sum of $250.00 as *11full payment of all the right, title and interest of Sifoa and Mageo in said house,
IT IS ORDERED, ADJUDGED AND DECREED that all the right, title and interest in the land Fausaga which were awarded to Taetafea and Sapela and their descendants by the judgment of the High Court of American Samoa in Sapela v. Mageo, 1 A.S.R. 223 (1910), continue in her and them and that in addition that by the payment of $250.00 she and they have acquired all the right, title and interest in the house built by Sifoa upon said land with the permission of Mageo.
The costs of this action amounting to $5.00 will be paid by Taetafea. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484812/ | DECISION
It appearing to this Court, after testimony of the parties taken in open court,
*121. That the plaintiff is, by decree of the High Court of American Samoa, the sole and supreme head of the Mauga family.
2. That the title of all the land Fatamafuti is, by decree of the said High Court, in Mauga.
3. That the said Mauga has the right of immediate possession to the land Fatamafuti.
4. That the defendant is occupying a part of said land, not under a written lease, but by sufferance only.
5. That defendant claims a right of possession as a descendant of Mauga Taufasau who is no longer a holder of the name Mauga, and by permission of Mauga Moimoi.
6. That there are no elements of a title to said land by adverse possession in the defendant.
IT IS ORDERED, ADJUDGED AND DECREED
1. That the title of all the land Fatamafuti is in the name Mauga, now held by the plaintiff and that he has the right of immediate possession in and to said land.
2. That the defendant is a trespasser on said land, having neither title or right to possession.
3. That defendant and those claiming under him be evicted from said land Fatamafuti.
4. That all houses and buildings erected by the defendant on said land is in the name Mauga together with all growing crops.
5. That upon defendants failure to vacate said premises upon the service of a copy of this decree, he will be in contempt of court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484813/ | DECISION
This cause having come on for hearing on this Twenty-seventh day of September, 1900 A.D., at Ofu in the District of Manua in the United States Naval Station, Tutuila, all parties to the action being present in person, and after a lengthy hearing, it is hereby ADJUDGED as follows:—
1. That the land known as Faletau situated in Alaufau in Ofu is and shall be the property of Faoa one of the plaintiffs herein, subject to the right of the defendant Mao and his successors in name to have on the land a Samoan House wherein to live and also to have the privilege of using a portion of the fruits of the land as directed by the said Faoa, but the said Mao shall not dispose of his interest in the land in any way whatever without the consent of the said Faoa or the person bearing the name of Faoa for the time being, and further whenever the said Mao shall dwell on the land he shall do so under the protection and rule of the said Faoa and his successors in name.
*162. That the defendant Mao having cultivated and used the land known as Faleola for a large number of years, viz., beyond the period of Ten Years without any substantial objection having been made against such cultivation and use, he the said Mao, shall have the absolute rule of the land Faleola.
3. That the land Malama-Aoina, having been originally planted by the Mao family, but the rule over the said land having been proved to the satisfaction of the Court to be vested in the plaintiff Lagoo and the said Lagoo having protested from time to time against the cultivation and use of the said land by Mao, such land shall be equally divided between the said Lagoo and the said Mao. If the said Lagoo and the said Mao cannot agree upon a division line of the land Malama-Aoina then the land shall be equally divided by some person to be appointed by the Commandant of the United States Naval Station, Tutuila.
4. That the land Laloifi is the property of the said Lagoo by inheritance and he and his successors in name shall be the rulers of said land Laloifi.
5. That the costs of this action amounting to Twenty-five dollars shall be paid in manner following:—
Ten dollars by the plaintiff Lagoo, ten dollars by the defendant Mao, and five dollars by the plaintiff Faoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484823/ | JUDGMENT
This cause having been commenced at the instance of the Government of the United States of America, against *55the above-named Respondent, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, the property of the Respondent herein, said lands being required for Public Uses; AND the Registrar of Titles for the United States Naval Státion, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for Public Uses having given due and proper notice to the Respondent herein, and a reference to arbitration to settle and adjust the amount of compensation to be paid to the above-named Respondent for said land, as shown by the award of the Arbitrators appointed for that purpose, and the Report of the Registrar of Titles now on file in this Court, recommending the Government be declared the proprietor of said land and premises upon payment of the sum of $400, interest and costs, IT IS NOW THEREFORE ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Tufue, the sum of $400, together with interest thereon at the rate of 8 per centum per annum from the 7th day of March, 1901, to the 10th day of December, 1902, amounting to $56.26 and shall pay costs of attorney, arbitration, Registrar’s and High Court costs, amounting to $120.50, said sum making a total of $576.76, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of said sum of $576.76, as aforesaid, the Government of the United States of America be and the same is hereby declared the proprietor of ALL that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “ASILA”.
*56The REGISTRAR OF TITLES is hereby directed to issue a Certificate of Title to said land in favor of the said Government according to said Order and Judgment.
GIVEN under my hand and seal of the Court on this 13th day of December, 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484825/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America, against the above-named Respondent, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for Public Purposes, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for public uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 11th day of December, 1902 A.D., report to this Court, which said Report is now on file, recommending the *60Government be declared the proprietor of said lands and premises upon payment of the sum of One Hundred Fifty Dollars ($150), interest and costs;
IT IS NOW, THEREFORE, ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Ifopo, the sum of $150.00, together with interest thereon at the rate of 8 per cent per annum from the 7th day of March, 1901, to the 10th day of December, 1902, amounting to $21.10, and shall pay costs of attorney, arbitration, Registrar’s and High Court costs, amounting to $53.00, said sums making a total of $224.10, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of said sum of $224.10, as aforesaid, the Government of the United States of America be, and the same is hereby declared, the proprietor of all that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “UTUMOA”, STARTING at the northwestern corner of land “Laloifi”, property of the Government of the United States of America, acquired from one Taamu, and at the point of intersection of the northern boundary of said land “Laloifi” with the eastern boundary of land called “ASOLELEI”, belonging to said Government, and following in a northerly direction the said eastern boundary of land called “Asolelei”, bearing 37 degrees, distance 29 feet, to land described in Court Grant No. 623 of Samoan Supreme Court Grants, and recorded in Volume 1, folios 5 and 6 of the Register of Court Grants of the Land Records of said Station, said land being quit-claimed by Arthur Young of Manua, the holder of said Court Grant, to the *61said Government by deed recorded in Vol. 1, Folios 23, 24 and 25 of the Register of Transfers of said Land Records; thence following easterly the southern boundary of said land from Arthur Young, bearing 107 degrees 30 minutes, distance 40 feet, to said land called “Laloifi”; thence following the northern boundary of said land “Laloifi”, bearing 294 degrees 45 minutes, distance 64 feet, to the starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and the seal of the Court on this 15th day of December, 1902 A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484816/ | DECISION
1. The questions before the Court are, the right of succession to the title of “TUITELE” and the determination of a successor out of the several claimants. The trial also calls for opinion and decision concerning various alleged Samoan customs and rights.
2. The title “TUITELE” is ancient, and the holder of it has been classed as one of the “Kings” of Tutuila. At the present time he is one of the two highest chiefs (Faiivae being the other) in the County of Lealataua, in the District of Falelima West, Tutuila.
*263. Tuitele-Toomata-Penitila, who was the last “TUITELE”, was District Governor for the District of Falelima West under the United States Government. He died on or about the 15th day of July, 1902, leaving a widow and several sons and a daughter.
4. A few days previous to his death, he created his son Salatielu, who is a “fitafita” (landsman, U.S. Navy) serving the United States Government in Tutuila, “TOOMATA”, a princely title of the Samoans which was held by the late Tuitele.
5. There is no dispute to the title “TOOMATA”, being handed over to Salatielu, but the claim of Salatielu-Toomata that, by virtue of his election to “Toomata”, he succeeds at death of his father to the higher title, “TUITELE”, is opposed by a strong division of the “TUITELE FAMILY”.
6. Regulation No. 5 of the United States Naval Station, Tutuila, provides that “the hereditary chiefs of the county may be removed from office by the Commandant either directly or upon the request of a majority of the chiefs of his county for misconduct, disobedience, or neglect of duty. And the Commandant shall, either directly or upon recommendation of the members of the family of the said chief, and the member of the family so appointed shall succeed to the name and title of the deposed or otherwise incapacitated chief...”.
7. At several meetings of the “TUITELE FAMILY” held in the month of November last, the heads of the several divisions of the “TUITELE FAMILY” disputed the rights of succession, and the meetings ended turbulently, engendering bitter and hostile feelings.
8. On November 11, 1902, District Governor Faiivae of the Falelima West wrote the Commandant advising him of the hostile feeling then existing at Leone amongst the
*27“TUITELE FAMILY”, and that there were four (4) claimants to the title.
9. The claimants were:—
(1) Toomata, son of Tuitele, deceased.
(2) Save, member of collateral branch.
(3) Atofau, a representative head of a division of the “TUITELE FAMILY”.
(4) Maiava, one of the leading talking-men of the “TUITELE FAMILY”.
10. The Secretary of Native Affairs then proceeded to Leone for the purpose of being present in the Town of Leone during another meeting to be held, and to prevent any overt acts being taken by one party against another.
11. It was ascertained that the three last named (paragraph 9) claimants had formed a coalition against the first, and it was announced that if the Commandant approved of any one of the three they would be agreeable, but that they would not agree to Toomata, whilst Toomata left the selection of a successor entirely with the Commandant, without any reserve.
12. By order of the Commandant, the 28th day of November, 1902, was appointed for the hearing of the parties, and all persons interested were then notified that no candidates would receive consideration if they were not nominated on or before that day, and all objections then had to be lodged.
13. On the 28th day of November the leading members of the “TUITELE FAMILY” met at Fagatogo, in Pago Pago, and a meeting was then held in the presence of the Commandant.
14. Finding that the family could not agree upon one to have the title, the Commandant informed them that if they could not agree before the evening of the 29th day of *28November, he would refer the question to the District Court of Tutuila, consisting of persons competent to try such issues.
15. On the 29th of November the combined three claimants informed the Commandant by letter that Toomata would not agree to their desire, and that they placed the question for settlement in the District Court, and, further, that each of the three had handed over his right to one Leoso, the Chief Tulafale or talking-man of the family.
16. The Commandant, in reply, stated that he regretted the want of unanimity in the family, but that he could not accept the nomination of Leoso, making, as it was thought then, a fifth party. The claimants were advised to await a settlement in the District Court; in the meantime, no one was allowed to use the title of “TUITELE”.
17. The Court was unable to immediately assemble to try the case.
18. On the 15th day of December, the District Governor wrote the Commandant that the four candidates had held a meeting and had agreed to proclaim Leoso as the “TUITELE”.
19. A protest was then entered by Toomata on the ground that he did not consent to the appointment of Leoso; neither was he present at the meeting.
20. The Commandant then advised the District Governor that he could not accept the appointment of Leoso, and that the claimants had to wait for a determination of the question by the Court.
21. In spite of this, Leoso was still styled “TUITELE”, and he received the “TUITELE CUP” of kava in confirmation of his succession to the title.
22. The “Toomata” family felt aggrieved at the act of Leoso, and the disregard of the instructions of the Commandant.
*2923. The proceedings commenced in the District Court No. 3 at Leone, on Friday, the 30th day of January, 1903, with Toomata as Plaintiff and Leoso, Maiava and Save as Defendants.
24. Although Leoso was put forward by Save, Maiava and Atofau, they, with Toomata, presented themselves as candidates, as originally intended.
25. Toomata pleaded that he, being the son of Tuitele, deceased, was the rightful heir, as he had the title of “Toomata”, which is a necessary preceding title towards obtaining the title “TUITELE”, and that neither of the other candidates had any right to the title.
26. The defendants answered that, whilst Toomata was son of Tuitele and “Tamalii” (prince), he had no voice in the nomination of a successor, but that each of the four —Save, Maiava, Atofau and Leoso — had rights in naming the successor of Tuitele.
27. Witnesses were called for each side, and exhaustive conflicting testimony was taken concerning the genealogies of the claimants and their respective rights in the appointment of a successor.
28. The Town of Leone was founded by Salavea, Leoso and Olo. At the time of the first settlement, there was another High Chief in the County of Lealataua, called “Faiivae”. The founders of Leone desired to appoint a High Chief to rule the settlement, and they then created the title of “TUITELE”. All authority was then vested in Tuitele. Leone was then embraced in the District of Lealataua, and the two high chiefs, Tuitele and Faiivae, governed that division of the Island of Tutuila.
29. It appeared from the facts adduced that the first Tuitele lost his title in a game of “lafoga” (quoits) with a chief called “Lilomaiava”, from Upolu; the prize being that the title of the loser should go to the winner.
*3030. Tuitele lost, and his title was taken, figuratively, to Upolu by the Chief Lilomaiava and his party.
31. For some years (or several generations), no one held the title of “TUITELE” in Tutuila.
32. At that time, Leoso, who was the “matua”, or head “tulafale” (talking-man) for the chief who was deprived of his title, controlled the Alataua District, Falelima West, of Tutuila.
33. Then, one Maiava came over from Falealili and was invited by Leoso to assist him in his administration.
34. The idea was conceived to endeavor by some strategy to regain the lost title.
35. Up to this point, all agree, but it is here that the testimony conflicts, and it is this confliction which has largely given cause for the present trouble.
36. Maiava claims that he advised his two daughters to proceed to the house of Lilomaiava and, by coaxing and caressing, induce him to return the title to Tutuila.
37. Toomata contends that the same two girls were daughters of the first Tuitele, who resorted to the same strategy to regain his lost title.
38. Through the uncertainties of tradition, it is difficult to divine the truth, but it is settled that the title was returned through the strategy of the two girls.
39. It is here that Maiava bases his claim to highest recognition in the family and his right to control the title, on the ground that his ancestors recovered the title, and the present heads of the division of the “TUITELE FAMILY” are descended from the scions of the first Maiava.
40. Toomata denied this, and called upon Maiava to show by what agreement, or by what connection with the Tuitele scion he claimed to send his alleged daughters to regain the title. Maiava failed to give a satisfactory *31reply, except that the former Leoso told his ancestor to do it.
41. From the evidence adduced, the relation of the several candidates to each other, and the nature of their rights, are as follows:—
Toomata is “Tamalii” (prince or high chief), son of Tuitele-Toomata-Penitila, deceased. He is approached through Maiava and Fiu, who are his viziers when any business is to be done with neighboring chiefs, or in family matters. Toomata confers with Fiu and Maiava for advice. They declare the desire of their chief to others. Toomata has charge of and controls all the property. Fine mats received from any chief or family are presented to Toomata through Fiu and Maiava; likewise, if Toomata presents any property at any time to other chiefs, he makes the presentation through his agents and counsellors, Fiu and Maiava.
Save is the head of a division of the family of Tuitele which is a collateral branch of the division of the late Tuitele. He is a chief in the family but performs no important office. He claims interest because his grandfather was a “TUITELE”.
Atofau is head of a family which is part of the “Maiava family”, and it is through his connection with Maiava that he claims a right to the title. Maiava himself, admits that Atofau is one of his “Tauuso” (brothers) and is of the one family of Maiava; in fact Maiava, when asked to name the different divisions of the “Tuitele Family” avoided mentioning Atofau as a distinct division, but referred to him as connected with and under Maiava.
Maiava, as stated before, acts as a vizier for Toomata, with Fiu. He claims his interest through the Leoso who desired him to help in looking after the County of Lealataua. He admits, however, that Leoso still retains *32the original privileges concerning the “Tuitele Family”, and that the will of Leoso is superior to the desire of Maiava. The evidence shows that a Leoso, some generations ago, vested certain authority in him, and the Maiava descendants have exercised the right, with the division of Fiu, of nominating the “Tuitele” in the case of death or removal from the position through any mal-practice. But this right has not been undisputed. Some of the chiefs who held the title have done so against the will of Maiava, or Maiava and Fiu. The weight of testimony is in favor of Maiava and Fiu, together having the right to nominate the “Tuitele”. But Maiava arrogates to himself the supreme control of the “Tuitele”, and all other divisions of the family, even the Toomata branch, for whom he is a medium for transacting business with other chiefs and families. He even goes so far as to say that the “Tuitele” must obey him in all matters, and that in case of Tuitele refusing to comply with his wishes, he would drive him from his position and appoint another to hold the title in his stead. This is a clear instance of the usurpation by a “tulafale” of the authority of the chief. It is this usurpation and self-assumed authority which has been, to a large extent, the cause of many of the tribal disputes and wars in Samoa. The chief is appointed to rule, not to serve. If the claim of Maiava were upheld, no chief could exercise any real authority, the foundation of any government would be shaken, and all reverence and respect for chiefs would be lost.
The Court is of the opinion that the “tulafales” who have important functions to perform in connection with chiefs, should be, in their actions, confined to their proper duties; the chiefs should be upheld in authority, and protected from any usurpation of their rule by the “tulafales”.
LEOSO: This claimant is the representative of one of the original founders of the Town of Leone. They were his *33forerunners who desired a “king” or high chief to rule and control the family, and they chose the first Tuitele, and vested all authority in him. This was the same Tuitele who lost his title in the skillful game of “lafoga”.
For several generations there was no titular head of the family, and Leoso exercised authority. But, as presented by the evidence, Leoso and the people longed for a “king” or high chief, but they were prohibited from having one until the title could be recovered from Lilomaiava, in Upolu. When the title was regained and Toomata-Talae, son of Momosea, once more acceded to the seat of his fore-parents and was proclaimed “Tuitele”, Leoso still retained his position of the “matua” or head of the family; or, in contrast to Fiu and Maiava, as viziers of the Toomata branch, he might be styled the Grand Vizier of the Noble Family of Tuitele. Although he vested some of his authority in Fiu and Maiava, he has reserved for himself the higher office, and performs his Samoan-official duties for Tuitele in connection with the people of Lealataua and the District of Falelima West. During war, the body of Tuitele is sacred; he is not required to take active part in any engagement. He accompanies the troops but is always surrounded with a strong guard and kept in a fortified place. It is Leoso’s duty to go out to battle and to lead the war party. Another duty Leoso performs in connection with the presentation of fine mats and the distribution of food is that he receives the fine mats and collects food and kind to give in return. He supervises the distribution of food on all great occasions. This is all done, however, in the name of Tuitele. “Leoso” is a “tulafale” title. It is the “Tulafale Sili”, or highest “tulafale”. The present Leoso comes from the line of high chiefs on his father’s side, but that connection should not entitle him to enter the “Tuitele Family” on the chief side. His connection with that family is on the “Tulafale” side.
*3442. The claimants for the title were, originally: Toomata, Save, Atofau and Maiava; subsequently, Leoso was put forward. The Commandant ordered that all nominations had to be presented to him on or before the 28th day of November, after which no other names would be considered. From the documentary evidence before the Court, it appears that Leoso’s name was mentioned on the 29th day of November as being the nominee of Save, Atofau and Maiava, but that the Commandant declined to recognize him. Leoso claims that he announced his name to the Commandant at the meeting in Fagatogo on the 28th, and that the Commandant refused then to accept it, on the ground that the appointment must be made from the hereditary chiefs, not hereditary “tulafales”.
43. Leoso claimed to have obtained the title on December 15th, 1902, from Fiu, Maiava, Atofau, Save and Toomata. He admits Toomata was not there, but he had written a letter to a Fiu Samu — not the Fiu mentioned above — renouncing claim to title and informing the family that they could appoint whom they liked, but the writing could not be produced, nor had Leoso seen it.
44. Toomata wrote a letter to Fiu stating that he did not desire the title, and if any other of his family were appointed — for instance, his brother, Penitila — he would be agreeable.
45. Fiu confirms this statement.
46. Fiu, in explanation of his action in giving his vote to Leoso on the 15th states that he did it in temporary anger towards Toomata; it was his duty to comply with the wishes of Toomata, and that he exceeded his instructions when he accepted Leoso. His whole support was now in favor of Toomata.
47. Leoso claims that Fiu is bound by his act and cannot retract, according to Samoan custom.
*3548. From the evidence of Leoso, it is apparent that there is no fixed rule in the Samoan custom. Leoso admitted in the commencement of the proceedings that Toomata was the true son of Tuitele (deceased), but, towards the end he, in his evidence, desired to describe the genealogy of Toomata in order to show he was not a descendant of Tuitele. The Court would not allow him to do so. He insisted that he had a right to contradict his former statement according, to Samoan custom, because Toomata had acted wrongly towards him since his admission three days ago.
49. All the time Leoso claims to have obtained the title; the question was lis pendens in the District Court, and whatever was done could not avail him anything until, according to agreement, the Court had given a decision.
50. An attempt was made by Leoso to defeat the orders of the Commandant and the intention of the Regulation concerning the appointment of a successor to a high chief. Finding that, as Leoso, a “tulafale”, his chances of being successful in the contest were small, either on the ground of being a “tulafale” or of being nominated after the time appointed, he assumed the place and name of Atofau, one of the other claimants, on the ground of being an alleged son of Atofau. The Atofau who was originally put forward appeared in Court but was ordered to take a back seat by Leoso. Before Leoso could drink the cup of “Tuitele”, in confirmation of his assumption of that title, he had to divest himself of the name “Leoso”, and this, it is alleged, he did. The Court endeavored to ascertain how he divested himself of the name, but no witness could show that he had done so, according to Samoan custom. Although it is stated that there is no “Leoso” at the present time, the Court looks with a great deal of suspicion on the act of Leoso, and is inclined to consider it a mere trick or subterfuge for the purpose of this trial.
*3651. Another practice of some of the Samoans which tends to disorder and confusion and, finally, to serious disputes, was exhibited in the testimony of one of the witnesses. He stated that he was a descendant of a former Maiava, and openly asserted, in spite of evidence to the contrary, that the present Maiava had no right, and prohibited him from taking further part in the trial. This practice of any member of a family interfering in the duties of the head of the family, and assuming that he has as good a right as the head, cannot be tolerated. The head of the family is responsible, and it should not be permitted for any member of a family, say of 50 or 60 persons, to be able to come up and interfere with him.
It so happens that many things are done in the name of the family of which the responsible head is ignorant. Anyone will assume authority and say he is the responsible representative of the family, and then cast his vote. The party wishing to gain a point is only too willing to take advantage of the act of a minor person and use it against the real head.
So also in this trial, the preponderance of testimony is in favor that Fiu and Maiava together have the right to nominate the “Tuitele”; yet we find five (5) persons claiming the right, and Fiu and Maiava accept placidly the position. Other members of the Maiava family have no right to step in and multiply votes against Fiu if he stands alone, as he is expected to do according to true Samoan custom. Atofau and Maiava are one, and Leoso may justifiably be added. In this case there are three votes and three nominators from the one branch, namely Maiava, whilst Fiu, who has equal rights, only exercises one vote.
52. In addition to any of the foregoing opinions expressed, the Court gives the following opinions:—
(a) That the recognized heads of the Fiu family and of the Maiava family are the proper persons who are *37entitled to nominate the chief to hold the title of “Tuitele”.
(b) That in case of any dispute between Fiu and Maiava, reference should be made to Leoso, whose decision should be accepted by Fiu and Maiava, but that Leoso should not name anyone outside of those named by Fiu and Maiava.
(c) That Leoso, Fiu, and Maiava should continue to hold their positions after the Samoan custom, and should not aspire to the title of “Tuitele”.
(d) That Leoso, Fiu and Maiava should be supported in their respective positions and functions.
(e) That the title of “Tuitele” should be vested in the members of the Toomata division, they being “tamalii” or “usoalii” of the family.
(f) That failing any suitable persons of the Toomata division, or any of that family being unable to perform the duties of the high chief, a “Tuitele” be appointed from a collateral branch of the “Toomata Family”.
(g) The present “Toomata” is a young man, enlisted in the service of the United States Navy. He has also stated that he did not wish now the title of his father, “Tuitele”, and, as Atofau, Save, Maiava and Leoso and Toomata signified their desires to accept either Atofau, Save or Maiava, as may be decided by the Court to assume the title, it is the opinion of the Court for the considerations, opinions and facts hereinbefore stated, that for the present the title should be vested in Save during his lifetime, or during good behavior, and at his death, or earlier divesting of the title, the title should go to Toomata. And, in case of the earlier decease of the present Toomata, then Fiu and Maiava shall nominate one of the “Toomata Family” to take the title. Should any dispute arise between Fiu and *38Maiava the question is to be referred to Leoso for settlement.
It must be understood that by “Fiu” is meant ONLY FIU, the recognized head of the family, and “MAIAVA”, the recognized head of his family, NOT the WHOLE FAMILIES or any MEMBER thereof WHO WISHES TO INTERFERE.
53. Costs Forty Dollars ($40.00), to be paid by each of the claimants in equal proportion.
AND BE IT SO ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484817/ | DECISION AND OPINION
This Cause is a dispute between the Plaintiffs and the Defendants over the succession to the title of “ILAOA”, and the ownership of land belonging to the Ilaoa family, and certain lands purchased by Ilaoa Tuiloua, father of the Defendants.
The hearing commenced at Leone on the 7th day of February, 1902, and lasted during the 8th, 11th, 12th and 13th of February, when the case was further regularly adjourned from time to time.
The dispute concerning the title of “ILAOA” is within the jurisdiction of the District Court, but as there is also in the complaint a prayer to settle and quiet the title to certain lands, the High Court was ordered to convene by Precept issued by Captain U. Sebree, U.S.N., Commandant of the United States Naval Station, Tutuila, President of the High Court.
The Plaintiffs claim they are the rightful heirs of “ILAOA”, and have, under their alleged right, appointed one Fanene, of Nuuuli, to hold the title of “ILAOA”. They also claim that they are the owners of land situate in Leone and called “Fogavai”; and they also ask the Court to grant a decree adjudging them to be the owners of a piece of land *40called “Laolao”, which was purchased by Ilaoa Tuiloua, and which is the possession of the Defendants.
The Defendants claim that they are the true sons of Ilaoa Tuiloua, and have the right, adverse to the Plaintiffs, of appointing a member of the family to the title of “ILAOA”, and, in exercise of that right, had given the title to one Lealofi; that the land “Fogavai” is vested in the holder of the title during the period he holds the name; that the land “Laolao” was private property of their father, and, upon his death, became vested in his bodily heirs.
TITLE OF ILAOA
The claim to the title was warmly contested, and there was much bitter feeling shown between the litigants and their several witnesses.
It was shown that three families, viz.: Sa Tafano, of whom luli is one, Sa Aumavae, and Sa Moefaauo, have the right to select the holder of the title of “ILAOA” and the “Ilaoa” is appointed from any of those families. It appeared that the possessor of the title gained little, if any, material advantage. He is the head of the “Aumaga”, or kava-makers, and is subject to a High Chief of Upolu, called Sagapolutele, or to Tupou, who is connected with Sogapolutele.
If the three heads of the families named met together and decided who should be the “ILAOA”, there would be no cause for the quarrels and disputes which have taken place between the Plaintiffs and the Defendants. But every member of those families alleges to have a right to interfere, and, in order to give effect to their claims, they, in some instances, disregard the regularly acknowledged head and appoint another as head of the family, thus creating interminable disputes and a variety of factions.
Whilst it is admitted that each member of the family has the right to state his opinion and make suggestions to *41the head of the family, he has not the power to arrogate to himself the right of appointment; that right alone is vested in the head of the family, who is the representative to vote and act for the family.
As long as younger members of a family assume this power, there cannot be good feeling and peace amongst the people.
It is the opinion of the Court that only the recognized heads of families should have the right to elect the holder of the title, and if there should be any dispute concerning the proper ruler of the family that dispute should be settled first, before proceeding to choose a person for the higher title.
In this case, the persons who have the authority to nominate and appoint the “ILAOA” are, Tafano, Aumavae, and Moefaauo.
On February 13th, the Defendants proposed that the parties should confer together for the purpose of adjusting their differences, and being re-united in friendship. The offer was accepted by the Plaintiffs, and, after an adjournment, the parties came into Court and announced that Fanene Ilaoa, the nominee of the Plaintiffs, withdrew all claims to the title in favor of Lealofi Ilaoa, and the surrender of the title was publicly made in the presence of the Court, and, therefore, Lealofi was adjudged to be the “ILAOA”, and all the members of the family were ordered to recognize and respect him as the head of the family.
TITLE TO LAND
When the Plaintiffs and Defendants agreed upon the “ILAOA”, they omitted to settle their disputes to the ownership of the lands, and a further adjournment was permitted to enable a settlement to be arrived at. The parties were informed that if they could not agree the Court would *42give judgment at the next session of the High Court at: Leone.
On May 2nd, the Court sat, and it was announced by the Plaintiffs that they had come to no arrangement about the lands, and that also they desired to withdraw from their agreement to acknowledge Lealofi as “ILAOA”. This the Court would not allow, and the Plaintiffs were informed that the order of the Court on February 13th would be enforced.
The land “Fogavai” is the property of the Ilaoa family, and it was ordered and adjudged that the possessor of the title shall have the right to the use and profits of the land during the time he holds the title, with no right to alienate the land.
The land “LaoJao” was purchased by the father of the Defendants, Ilaoa Tuiloua, and he and the Defendants have occupied and cultivated the land since the date of purchase without any objection or claim from other members of the Ilaoa family, or the Plaintiffs. It was a private investment of Tuiloua; but the Plaintiffs allege that he bought the land with money derived from rents of the land “Fogavai”, and the property should, therefore, be vested in them as the Defendants have had another section of land by Ilaoa Tuiloua in a similar way awarded by the Court to them in a former action.
The weight of testimony is in favor of the contention of the Defendants, and, further, shows that the holder of a title can use the produce profits and rents of any land he has an interest in by virtue of his title, in any way he wishes. He can spend the rents and use the produce without any interference or claim of the other members of the family and “a fortiore” any property he acquired for the use of his private family instead of spending the money in luxuries or such like, should vest in his bodily heirs.
*43It is therefore the opinion of the Court, and it is so ordered and adjudged, that the land “Laolao” shall be the absolute property of the Defendants, Sopoaga and Liai, and descend to their heirs, and the Plaintiffs, and all others claiming under them, are hereby perpetually enjoined from further interfering with the claim of the Defendants thereto.
Costs of Court amounting to Twenty Dollars ($20.00) are to be paid by the Plaintiffs and the Defendants in equal shares.
DATED at LEONE on this 2nd day of May, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484819/ | JUDGMENT
THIS CAUSE having been commenced by the Government of the United States Naval Station, Tutuila, for the object of obtaining the lands (the property of the above-named Respondent) hereinafter described, for public uses for the United States Government under and by virtue of the Ordinance No. 20, 1900, being the Ordinance to regulate the acquisition of land by the Government of the United States Naval Station, Tutuila, for public purposes, for the United States Government, and under the provisions of said regulation due and proper notice having been given to the said Respondent through the Registrar of Titles, and the Registrar of Titles, by his report to this Court bearing date the 6th day of May, 1901, having informed the Court that the tender of the Respondent herein, amounting to Six Hundred Dollars ($600) had been accepted by the Petitioner Government and recommended that the Government be declared the proprietor of the said lands at and for the said consideration to be paid by the said Government, *46IT IS NOW HEREBY ORDERED and ADJUDGED AS FOLLOWS; to wit:—
1. That the Government of the United States is and the same is hereby declared to be the proprietor of ALL THAT PIECE or PARCEL of LAND CALLED “MILOMILO”, STARTING at a peg on the road at the northwestern corner of said land, bearing 9 degrees 24 minutes, distance 128 feet, to a monument marked ^ thence bearing 301 degrees 41 minutes, distance 135 feet to a stream; thence along stream 52 degrees 45 minutes, distance 35 feet, to the boundary of land the property of the United States Government, and recorded in Vol. 1, Folios 46, 47, and 48 of the Registrar of Transfers of the United States Naval Station, Tutuila; thence following along the boundary of said land of the United States Government, bearing 318 degrees, distance 49 feet; thence 331 degrees 15 minutes, distance 52 feet; thence 332 degrees 30 minutes, distance 21 feet; thence 27 degrees, 30 minutes, distance 49 feet, to high-water mark; thence bearing westerly along high-water mark to the starting point.
2. That the said Government shall pay in consideration of the release of all claims and demands of the said Respondent to said land, the sum of Six Hundred Dollars ($600) together with interest thereon at the rate of 8% per annum from the 7th day of March 1901 to the 10th day of December, 1902, amounting to $80.40, and shall pay further costs of Attorney, Arbitration and Registrar’s costs, amounting to $76.50, amounting in all to the sum of $756.90.
3. The Registrar of Titles is hereby instructed to draw up a transfer of said land, and to issue a certificate of title to said lands in favor of said Government.
GIVEN under my hand and seal of the court on this 10th day of December, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484820/ | THIS CAUSE having been commenced at the instance of the Government of the United States against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC USES, and the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900) to regulate the Acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken thereon in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties and did, on the 9th day of December, in the year 1902, A.D., report to this Court, recommending the Government be declared the proprietor of said lands and premises upon payment of *48$800 (Eight Hundred Dollars) and costs, IT IS NOW, THEREFORE, ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent the sum of Eight Hundred Dollars ($800), together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March, 1901, to the 10th day of December, 1902, amounting to One Hundred Twelve Dollars and Fifty-three Cents ($112.53), and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to Eighty-nine Dollars and Fifty Cents ($89.50), said sums making a total of One Thousand Three Dollars and Three Cents ($1,003.03), in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of said sum of $1,003.03, — as aforesaid — the Government of the United States of America is, and the same is hereby declared to be the proprietor of all that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “FAATULOU”, STARTING at a point on the beach, being the northeastern corner of land called “UTUNONQ”, acquired by the Government by deed from Mailo and Jack Hunkin on the 18th day of November, 1902, and following the eastern boundary of said land, called “Utunono”, bearing 199 degrees, distance 142 feet, to land “Milomilo”, property of said Government, and thence on in the same bearing along said land of “Milomilo”, distance 8 feet, to the boundary of the land agreed to be surrendered and sold by the Samoan land-owners of Fagatogo, aforesaid, to the said Government; thence along said agreed boundary, bearing 301 degrees 41 minutes, distance 26 feet, to land claimed by Faagata, Afoa and Taesali, called *49“FAULOLOA”; thence bearing 39 degrees 30 minutes along western boundary of land “FAULOLOA”, distance 85 feet; thence bearing 290 degrees 45 minutes, distance 61 feet, to land “Asila”, claimed by Tufue or Mrs. Morris; thence bearing 203 degrees 30 minutes, along western boundary of said land “Asila”, distance 112 feet, to high-water mark; thence bearing in a westerly direction along high-water mark to the point of starting.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said lands, in favor of said Government, according to said order and judgment.
GIVEN under my hand and seal on this 10th day of December, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484821/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States against the above-*50named Respondents, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC USES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900) to regulate the acquisition of land by the Government of the United States for PUBLIC USES, having given due and proper notice to the Respondents herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 10th day of December, in the year 1902, A.D., report to this Court, which said report is now on file, recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of Three Hundred Fifty Dollars, interest and costs, IT IS NOW THEREFORE ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondents, Faagata, Afoa and Taesali, the sum of $350 (Three Hundred Fifty Dollars) together with interest thereon at the rate of eight per centum (8%) per annum from the 7th day of March, 1901, to the 10th day of December, 1902, amounting to $59.23, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to Sixty-eight Dollars ($68.00), said sums making a total of $467.23, in consideration of the release of all claims and demands of the said respondents to said land and premises.
2. That in consideration of the payment of said sum of $467.23, as aforesaid, the Government of the United States of America be, and the same is hereby, declared the proprietor of ALL that piece or parcel of land *51situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “FAULOLOA”, STARTING at a point, being the southeastern corner of land called “FAATULOU”, property of the said Government, acquired from one Lutu, of Fagatogo, aforesaid, and following the boundary of said land “FAATULOU” bearing 39 degrees 30 minutes, distance 85 feet; thence bearing 290 degrees 45 minutes, distance 61 feet, to land of Tufue, called “Asila”; thence following along said land of Tufue, bearing 203 degrees 30 minutes, distance 33 feet; thence bearing 114 degrees 45 minutes, distance 56 feet, to a stream, and western boundary of land “Asolelei”, property of the said Government; thence bearing 37 degrees, distance 69 feet to the boundary of land agreed by the Samoan landowners of Fagatogo aforesaid, to be surrendered and sold to said Government; thence following along said agreed boundary, bearing 301 degrees 41 minutes, distance 128 feet, to the point of commencement.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said lands, in favor of said Government, according to said order and judgment.
GIVEN under my hand and seal of the Court on this 10th day of December, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484822/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States, against the above named Respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC USES, AND the Registrar of Titles, for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900), to regulate the acquisition of land by the Government of the United States for PUBLIC USES Having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 10th day of December, in the year 1902, A.D., report *53to this Court, which said Report is now on file, recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of $50, interest and costs.
IT IS NOW THEREFORE ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Afoa, the sum of $50.00, together with interest thereon, at the rate of 8 per centum per annum from the 7th day of March, 1901 to the 10th day of December, 1902, amounting to $7.02, and shall pay costs of attorney, arbitration, Registrar’s and High Court costs, amounting to $56.00, said sums making a total of $113.03, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of said sum of $113.03, as aforesaid, the Government of the United States of America be and the same is hereby declared the proprietor of ALL that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “TUANUU”, STARTING at the southeastern corner of land called “FAULOLOA”, the property of the said Government, acquired from Faagata, Afoa and Taesali, on the boundary line of the land agreed by the Samoan landowners of Fagatogo to be surrendered and sold to the said Government, and following said boundary line bearing 301 degrees 41 minutes, distance 88 feet, to stream and land of Taamu, called “Laloifi”; thence bearing 24 degrees, distance 5 feet, to land called “Asolelei”, property of said Government, described in deed from T. Meredith and Mrs. Annie Theresa Meredith, bearing date the 10th day of November, 1902, A.D.; thence following along boundary *54of said land “Asolelei”, bearing 169 degrees, distance 21 feet; thence bearing 322 degrees, distance 13 feet; thence bearing 350 degrees 15 minutes, distance 79 feet, to land called “Asila”, claimed by Tufue or Mrs. Morris; thence bearing 37 degrees, along the eastern boundaries of said land “Asila” and land “Fauloloa” aforesaid, to starting point.
THE REGISTRAR OF TITLES is hereby directed to issue a CERTIFICATE of TITLE to said land in favor of the said Government according to said Order and Judgment.
GIVEN under my hand and seal of the Court on this 12th day of December, 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494063/ | MEMORANDUM OF DECISION
JIM D. PAPPAS, Bankruptcy Judge.
Background
After the Court granted Chapter 7 Trustee L.D. Fitzgerald’s motion to reopen Debtor Vicki Dougan’s closed bankruptcy case to administer an inheritance, Debtor amended her schedules to claim a homestead exemption in a house devised to her and her sisters under her mother’s will. Docket No. 16. On August 15, 2005, Trustee filed an objection to Debtor’s claim of exemption. Docket No. 17. Trustee’s argument is twofold. First, he argues Debt- or should not be allowed to amend her schedules and assert the exemption after reopening because it would result in prejudice to the bankruptcy estate. Second, as a devisee under her mother’s will, which remains in probate, Trustee contends Debtor does not “own” the house for purposes of Idaho Code § 55-1001, a prerequisite to establishing a valid homestead and corresponding exemption.
The Court conducted a hearing on Trustee’s objection on February 14, 2006, at which the parties presented evidence and testimony. Minutes, Docket No. 32. The parties also submitted post-hearing briefs. Docket Nos. 33, 34. After taking the issues under advisement and carefully considering the evidence, arguments and relevant legal authorities, the Court concludes that Debtor is entitled to exempt the house as a homestead. This Memorandum constitutes the Court’s findings of fact and *894conclusions of law. Fed. R. Bankr.P. 7052; 9014.
Facts
Debtor filed her Chapter 7 case on April 9, 2004. Docket No. 1. Her case was closed as a no asset case on July 16, 2004. Docket No. 6. Debtor’s schedule A indicated she had no interest in any real property. Docket No. 1.
Upon learning from a third party that Debtor may have had a prepetition interest in an inheritance, Trustee moved to reopen the case on October 28, 2004. Docket No. 7. The motion was granted by order entered on November 5, 2004. Docket No. 9. Several months later Debtor amended her schedules, disclosing that she held a one-third interest in a house inherited from her mother, and claiming that house exempt as a homestead. Am. Schedules A, C, Docket No. 16.1
It seems that after Debtor’s father died in 1971, her mother had become the record owner of the family’s house and farm encompassing eighty-seven acres. Debtor testified that her mother passed away in September 1995, leaving a will devising all of her estate in equal undivided shares to her three daughters. Ex. 1. The will was admitted to informal probate in state court on September 11, 1996, and Debtor’s sister, Sherrie Robison, was appointed personal representative. The will does not specifically mention the house and farm, but Debtor testified that the real estate was her mother’s only asset. She believes that her mother may also have had a 25% interest in her grandparents’ probate estate. Neither her mother’s nor her grandparents’ probate estate have been administered, and no distributions have been made from these estates.
According to Debtor, her mother had given her permission to live in the house. Debtor has lived there continuously since March 1995 with her children and grandchildren. She considers the house to be her home and intends to remain there. She owns no other real property. Her mother’s probate estate pays the real estate taxes and expenses associated with the farm by renting out the sixty-five farmable acres. It is Debtor’s understanding that no money remains from the rent proceeds after the expenses are paid. Debtor believes the value of the house is currently $18,900. Am. Sched. C, Docket No. 16. However, she testified that one party has offered as much as $75,000 for all of the property. She claims the maximum statutory exemption amount of $50,000. Am. Sched. C, Docket No. 16.
As for why she failed to list her interest in the house in her original schedules, Debtor testified she was unaware she was required to do so. However, Debtor insists she never attempted to conceal the fact she lived in the house. She testified that she explained to Trustee at her § 341 meeting that she was living in an “estate house of her mother’s,” and that “she didn’t own it.” She believes the record title to the farm is still in her mother’s name.
Disposition
A. Debtor May Amend Her Schedules.
Trustee argues that Debtor should not be permitted to amend her schedules to claim an exemption after such a long delay, and that to allow an amendment and exemption now is prejudicial to the bankruptcy estate and Trustee.
*895Fed. R. Bankr.P. 1009(a) provides that a debtor may amend her schedules “at any time before the case is closed.” The Ninth Circuit Bankruptcy Appellate Panel has held that, for the purpose of filing an amendment to schedules, “there is no difference between an open case and a reopened case,” and that a debtor in a reopened case did not need the court’s permission to amend. In re Goswami, 304 B.R. 386, 393 (9th Cir.BAP 2003).
Nevertheless, the fact that a debtor in a reopened case may amend her schedules and claim additional exemptions does not mean she has an absolute right to amend. In re Goswami, 304 B.R. at 393; In re Hamilton, 93 I.B.C.R. 227, 229 (Bankr.D.Idaho 1993). The liberal policy in favor of allowing amendments must give way when the debtor has acted in bad faith or where creditors will be prejudiced by the delay in claiming the exemption. In re Goswami 304 B.R. at 393; In re Hamilton, 93 I.B.C.R. at 229. But “[sjimple delay in filing an amendment ... does not alone prejudice creditors.” In re Arnold, 252 B.R. 778, 787 (9th Cir.BAP 2000) (quoting In re Andermahr, 30 B.R. 532, 534 (9th Cir.BAP 1983)). Prejudice is shown when creditors suffer an actual economic loss due to the debtor’s delay in claiming her exemptions. In re Arnold, 252 B.R. at 787.
Trustee has not shown here that Debtor acted in bad faith or that her creditors will be economically prejudiced by her delay in asserting her exemption claim. Debtor exhibited no ill motive in failing to disclose her inheritance sooner. While misinformed, she did not believe she owned an interest in the house, and was frank about describing her living arrangements at the § 341 meeting of creditors. It appears that the information concerning the nature and extent of Debtor’s inheritance and her living arrangements was available all along had someone thought to ask Debtor to produce it.
Once the bankruptcy case was reopened, Debtor promptly amended her schedules. And while Trustee may be prejudiced in the sense that he now feels compelled to litigate this issue, he has not demonstrated how there will be any appreciable economic harm to Debtor’s creditors if the exemption is allowed. Her bankruptcy estate was identified by the Trustee as a no asset case. Allowing Debtor to amend her schedules and claim the exemption will not change that situation. This scenario is unlike the facts in Hamilton, where the Court found the estate was prejudiced by a debtor who amended her schedules to claim the recovery from a lawsuit exempt only after the trustee and creditors had spent considerable time and money negotiating the settlement of the case. Here, Debtor’s creditors had no expectation of a distribution from the estate, and the trustee has expended no estate funds pursuing recovery of Debtor’s interest in the house. The Court concludes there is little if any prospect for prejudice to the bankruptcy estate if the amended exemption claim is allowed.
B. Debtor is an “Owner” of the Homestead and May Claim the Exemption.
In Idaho, to determine a debt- or’s bankruptcy exemptions, the Court looks to state law. 11 U.S.C. § 522(b); Idaho Code § 11-609. Under Idaho law, a debtor may claim a homestead exemption in real property. Idaho Code §§ 55-1001-1011; In re Koopal, 226 B.R. 888, 890 (Bankr.D.Idaho 1998); In re Millsap, 122 B.R. 577, 579 (Bankr.D.Idaho 1991). The Court liberally construes the homestead statutes in favor of the debtor. In re Steinmetz, 261 B.R. 32, (Bankr.D.Idaho 2001); Koopal, 226 B.R. at 890; In re *896Peters, 168 B.R. 710, 711 (Bankr.D.Idaho 1994). The amount of the homestead exemption may not exceed the lesser of the-net value of the land, or $50,000. Idaho Code § 55-1003. The objecting party carries the burden of proving that exemptions are not properly claimed. Fed. R. Bankr.P. 4003(c).
One of the prerequisites to qualify for an Idaho homestead exemption is ownership, since a “homestead” is defined as the “dwelling house or the mobile home in which the owner resides.... ” Idaho Code § 55-1001(2). The definition of “owner” under the statutes includes, “but is not limited to, a purchaser under a deed of trust, mortgage, or contract, or a person who takes the subject property under a life estate.” Idaho Code § 55-1001(4). For the exemption to attach automatically without the need of a written declaration, the property must be “occupied as a principal residence by the owner.” Idaho Code § 55-1004(1). In this case, it is undisputed that Debtor has lived in the house she claimed as her homestead since 1995, and that she had no other qualifying homestead or unusual living circumstances. Therefore, the automatic homestead exemption is available to Debtor. Thus, the crucial question is whether Debtor “owned” the house in which she was living for purposes of claiming the exemption.
Under remarkably similar facts, the Court has decided a debtor may appropriately claim the exemption when the debt- or’s ownership rights flowed from the occupation of a house devised under a will. In In re Fullerton, 92 I.B.C.R. 22 (Bankr.D.Idaho 1992), the debtor and her brother had been devised equal, undivided interests in their mother’s residence under the terms of a will. The debtor was granted permission by her brother to live in the house. On the date of the debtor’s bankruptcy, the will was still in probate, record title was in the name of the deceased, and no distributions been made from the probate estate.
The Court in Fullerton held that the debtor’s possessory interest, in addition to her equitable interest in the property as derived from the will, were sufficient to meet the homestead exemption statute’s ownership requirement. In re Fullerton, 92 I.B.C.R. at 22. Looking to the Uniform Probate Code,2 the Court concluded that the personal representative of a probate estate has a fiduciary duty to settle and distribute the property of the estate according to the terms of the will. Id. See also Idaho Code § 15-3-703. The personal representative has the right to possess any real property of the estate, but may leave it “with the person ‘presumptively entitled to it,’ unless it is believed the property will be necessary in the administration of the estate.” Id. (citing Idaho Code § 15-3-709). The fact that the estate remained in probate and the deed was never executed did not, in the Court’s view, defeat the debtor’s claim to a homestead exemption considering that there was no evidence the debtor contributed to the delay in distribution of the estate or in effecting a transfer of ownership by way of a deed. Id. at 23.
There is no reason present here to stray from the conclusion reached by the Court in Fullerton. Debtor has occupied the home continuously as her principal residence since 1995. She was bequeathed an undivided one-third interest in the house under her mother’s will, and was living in the home with her late-mother’s permission. While the evidence does not reveal why the land and house have not been deeded out of probate to the sisters, there is no showing that Debtor has contributed *897in any way to the delay. As in Fullerton, and construing the statute liberally in her favor, Debtor’s possessory interest, along with her equitable interest in the house and acreage under her mother’s will, is sufficient to constitute “ownership” for purposes of Idaho Code § 55-1004(1). Since the highest value attributed to the property in the record is $75,000, presumably Debtor’s maximum share would not exceed $25,000. Accordingly, Debtor’s interest in the house and land is exempt as a homestead under Idaho Code § 55-1003.
Conclusion
For these reasons, Trustee’s Objection to Debtor’s Claim of Exemption in her homestead, Docket No. 17, will be overruled by separate order.
. Debtor attempted to amend her schedules on May 6, 2005, Docket No. 12, but the schedules filed were blank. It was clear, however, from the docket entry that the error was unintentional, since the docket text indicated she intended to list her interest in her mother’s estate.
. The Uniform Probate Code has not undergone any major revisions to the cited sections from the time Fullerton was decided up to the date of Debtor’s mother's death in 1995. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494065/ | MEMORANDUM OPINION
ROBERT F. HERSHNER, JR., Chief Bankruptcy Judge.
Arthur W. Howard, Plaintiff, filed on June 28, 2006, a motion for summary judgement. The Citizens Bank of Cochran, Defendant, (the “Bank”) filed on June 30, 2006, a motion for summary judgment. Herbert Davis, Defendant, (“Mr. Davis”) filed on July 18, 2006, a motion for sum*253mary judgment.1 The Court, having considered the record and the arguments of counsel, now publishes this memorandum opinion on the cross-motions for summary judgment.
[“The] filing of cross-motions [for summary judgment] does not establish that there is no material fact in issue and that a trial is therefore unnecessary. The Court must still make an independent evaluation as to the merits of each party’s motion.” Donovan v. District Lodge No. 100, International Assoc. of Machinists and Aerospace Workers, AFL-CIO, 666 F.2d 883, 886 (5th Cir. Unit B, 1982).
“The court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard. Both motions must be denied if the court finds that there is a genuine issue of material fact.” 10A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 3d, § 2720, pp 335-36 (1998).
The following facts are not in dispute. Plaintiff owned and was the sole occupant of a residence on Gregory Drive, Hawkins-ville, Georgia. HawMnsville is a city in Pulaski County, Georgia.
Plaintiff obtained a loan from the Bank. Plaintiff signed a promissory note dated October 29, 2001, in favor of the Bank. The principal amount of the loan was $14,931.94. Plaintiff was to pay the obligation by making 74 monthly payments. Plaintiff signed a Deed With Power Of Sale To Secure Debt giving the Bank a security interest in his residence. The deed to secure debt provides in part that it secures the original indebtedness and any renewals or extensions thereof.
Plaintiff “renewed” his October 2001 obligation by signing a promissory note dated September 11, 2003, in favor of the Bank. The principal amount of the new obligation was $17,216.58. Plaintiff was to pay the obligation by making 72 monthly payments. The obligation is secured by the deed to secure debt dated October 29, 2001.
Plaintiff failed to make the payments on his obligation dated September 11, 2003. The Bank employed Scott B. Thompson, Sr., attorney at law, to foreclose on the deed to secure debt. Notice of the foreclosure was published in the local newspaper. Mr. Thompson sent via certified mail a notice of the pending foreclosure to Plaintiff. The United States Postal Service attempted but was unable to deliver the notice to Plaintiff. The Postal Service returned the notice to Mr. Thompson. Plaintiff testified by deposition that he did not receive the notice and did not know about the pending foreclosure. The envelope in which the notice was sent shows that someone marked through the city, state, zip code, and bar code portions of Plaintiffs address.2
Defendant / Bank / Creditor Exhibit 1.
Herbert Davis is the president of R & S Farms, Inc. Mr. Davis has, over the years, purchased about a dozen properties at foreclosure. Mitchell E. Cobb was, at the relevant time, a banking officer at the Bank. Mr. Davis asked Mr. Cobb about certain property the Bank was advertising for foreclosure in Bleckley County. Mr. Cobb mentioned that the Bank would also *254be foreclosing on a property in Pulaski County (Plaintiffs residence). Mr. Davis asked Mr. Cobb what time the foreclosure would take place. Mr. Cobb told Mr. Davis that Mr. Thompson was handling the foreclosure. Mr. Thompson told Mr. Davis that he would conduct the foreclosure in Bleckley County around 2 P.M. and that he would then conduct the foreclosure in Pulaski County.3 Mr. Davis testified by deposition that he did not have any pre-foreclosure arrangements of any kind with Mr. Cobb or the Bank.
On September 6, 2005,4 Mr. Thompson, on behalf of the Bank, conducted a foreclosure of certain property at the courthouse in Bleckley County. Mr. Davis, on behalf of R & S Farms, made the highest bid. A representative of the Bank, Chuck Har-well, was present at the foreclosure. Mr. Harwell asked Mr. Davis how he was going to pay. R & S Farms has a checking account at the Bank. Mr. Davis told Mr. Harwell that the funds were on deposit at the Bank and that he could give the Bank a check or that the Bank could draft the checking account. Mr. Davis told Mr. Hartwell that if he was the highest bidder at the foreclosure in Pulaski County that he “would handle it the same way”.
After the foreclosure in Bleckley County was concluded, Mr. Thompson and Mr. Davis traveled in separate automobiles to the courthouse in Pulaski County. Mr. Thompson conducted a foreclosure on Plaintiffs residence. Mr. Thompson made a bid on behalf of the Bank for $19,000. Mr. Davis, on behalf of R & S Farms, made a bid of $19,001. There were no other bids. The foreclosure was concluded just before 3 P.M.
Mr. Davis told Mr. Thompson that he was “ready to do it now.” Mr. Thompson told Mr. Davis that he would prepare the foreclosure deed5 when he returned to his office that afternoon. Mr. Davis contacted Mr. Cobb by telephone. Mr. Davis arranged to meet Mr. Cobb at the Bank the next morning, to pay the amount of the foreclosure bid, and to receive the foreclosure deed. R & S Farms had sufficient funds in its checking account at the Bank to honor its bid on Plaintiffs residence. It is undisputed that Mr. Davis, on behalf of R & S Farms, did not give Mr. Thompson, Mr. Cobb, or the Bank a check for the foreclosure bid on September 6, 2005.
During the afternoon of September 6, 2006, Mr. Davis purchased property insurance on Plaintiffs residence. Mr. Davis went to Plaintiffs residence about 6 P.M. and told Plaintiff that he had purchased the residence at foreclosure. Plaintiff stated that his residence could not sell at foreclosure because he had filed for bankruptcy relief.6
Plaintiff met with his attorney the next morning. Plaintiff filed a petition under Chapter 13 of the Bankruptcy Code on September 7, 2005.
Mr. Davis had agreed to go to the Bank on September 7, 2005, to pay the foreclosure bid, and to receive a foreclosure deed on Plaintiffs residence. Mr. Davis and the Bank learned that Plaintiff had filed for *255bankruptcy relief. Mr. Davis did not go to the Bank.
On September 16, 2005, R & S Farms gave the Bank a check for the amount of the foreclosure bid, $19,001. The Bank gave R & S Farms a foreclosure deed on Plaintiffs residence. R & S Farms’s check cleared its account at the Bank on September 19, 2005.
It is undisputed that (1) at all relevant times R & S Farms had sufficient funds in its account at the Bank to pay the foreclosure bid; (2) R & S Farms gave the Bank a check for the foreclosure bid after Plaintiff filed for bankruptcy relief; and (3) the Bank gave R & S Farms a foreclosure deed after Plaintiff filed for bankruptcy relief.
Plaintiff filed on November 16, 2005, a Complaint To Set Aside Wrongful Foreclosure And Complaint For Declaratory Relief. Plaintiff contends that the foreclosure is void and that his residence is property of his bankruptcy estate.
Two issues are presented in the motions for summary judgment. First, whether Plaintiffs interest in his residence was terminated before Plaintiff filed for bankruptcy relief.7 Second, whether the foreclosure sale was properly conducted.8
“Under Georgia law, a deed to secure debt transfers legal title to the property conveyed to the grantee and the grantor retains equitable title with the equitable right of redemption by payment of the debt. Redemption can be accomplished only by payment in full of the secured debt. This equitable right of redemption is a property right of the debtor within the jurisdiction of the bankruptcy court.... In Georgia, a properly conducted foreclosure cuts off the grantor’s equitable right of redemption.” Leggett v. Morgan, (In re Morgan), 115 B.R. 399, 401 (Bankr.M.D.Ga.1990).
Federal law determines whether an interest in property is property of the bankruptcy estate. The nature and existence of the interest is determined by state law. Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004). A debtor’s equitable right of redemption is property of the bankruptcy estate. Commercial Federal Mortgage Corp. v. Smith, (In re Smith), 85 F.3d 1555, 1557-58 (11th Cir.1996). Whether a debtor’s equitable right of redemption is terminated by a foreclosure sale is a question of state law.
Neither Plaintiff, the Bank, nor Mr. Davis has cited a controlling appellate state court or federal court decision identifying the specific event in a foreclosure proceeding that terminates a debtor’s equity of redemption. In the case at bar, the Court is persuaded that the deed to secure debt answers the question.
Plaintiff signed a deed to secure debt in favor of the Bank.9 The last page of the deed to secure debt provides in part:
The first party [Plaintiff] hereby covenants and agrees with the second party [the Bank]:
*256[After default the second party may sell the property at public outcry to the highest bidder for cash]; and the second party, representative or as-signee, so desiring, may bid at said sale and may make to the purchaser or purchasers of the said property good and sufficient title in Fee Simple thereto, thereby divesting out of the first party all right and equity that the first party may have in and to said property, and vesting the same in the purchaser or purchasers aforesaid .... (Emphasis added)
Defendant / Bank / Creditor Exhibit 6.
Black’s Law Dictionary defines thereby as follows:
thereby, adv. By that means; in that way <Blofeld stepped into the embassy and thereby found protections
Black’s Law Dictionary 1517 (8th ed.2004).
“[P]owers contained in a deed to secure debt are matters of contract, and will be enforced as written.” Hilton v. Millhaven Co., 158 Ga.App. 862, 282 S.E.2d 415, 416 (1981).
In the Court’s view, the deed to secure debt provides that Plaintiffs right and equity in his residence would be divested when the Bank gives the purchaser at foreclosure “good and sufficient title in Fee Simple.” It is undisputed that the Bank gave Mr. Davis title to Plaintiffs residence after Plaintiff filed for bankruptcy relief. The Bank is bound by the terms of the deed to secure debt. The Court is persuaded that Plaintiffs interest in his residence was not divested before he filed for bankruptcy relief and that his right and equity in the residence are property of his bankruptcy estate. This conclusion is dispositive of the motions for summary judgment filed by Plaintiff, the Bank and Mr. Davis.
An order in accordance with this memorandum opinion will be entered this date.
. Herbert Davis is the president of R & S Farms, Inc. The Court notes that R & S Farms, Inc. rather than Mr. Davis may be the proper defendant in this adversary proceeding.
. The Court questions but need not decide whether the notice of foreclosure was sent to the proper address.
. Bleckley County is adjacent to Pulaski County.
. Non-judicial foreclosures are conducted on the first Tuesday of each month. September 6 was the first Tuesday in September of 2005.
. A foreclosure deed is a Deed Under Power Of Sale.
.Plaintiff had met with an attorney and understood that a bankruptcy petition had been filed. It is undisputed, however, that Plaintiff did not file for bankruptcy relief until September 7, 2006.
. Plaintiff's ability to cure a default through his Chapter 13 Plan is not presently before the Court. 11 U.S.C.A § 1322(c)(1) (West 2004).
. Plaintiff contends that there are genuine issues of material fact as to whether the foreclosure sale was properly conducted. The Court is persuaded that Plaintiff’s interest in his residence was not terminated before he filed for bankruptcy relief and therefore does not reach the question of whether the foreclosure was properly conducted.
.The deed to secure debt at issue is not on a form known as a "Fannie Mae/Freddie Mac Uniform Instrument.” See F. Alexander, Georgia Real Estate Finance And Foreclosure Law, § 13-2, (2004 4th ed.) | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494066/ | OPINION AND ORDER
MICHAEL J. KAPLAN, Bankruptcy Judge.
This dispute began pre-petition and was removed to this Court from State Court.
On April 22, 2004, this Court conducted a trial regarding the Defendant/Debtor’s counterclaim against the Plaintiff. The *45Chapter 7 Trustee had separately settled the Chapter 7 Estate’s claim against the Plaintiff and the Plaintiffs claims against the Debtor. This is likely to be a “surplus money” case; hence the standing of the Debtor to seek damages on his own behalf. As importantly, the Debtor had almost no debt other than Plaintiffs initial claims. This case was filed because of the Plaintiffs pursuit of the Debtor in State Court. This explains why the Debtor seeks nearly $200,000 in actual damages for 1999, but seeks only $50,000 for his anticipated profits for year 2000; almost all of his 1999 costs had been fully paid when the Plaintiff tortiously put him out of farming, long prior to the bankruptcy filing.
The Plaintiff appeared without counsel in that 2004 trial. After trial, the Court found that the Plaintiff had absconded with key assets of the Debtor’s farming operation, causing the ruination of the Debtor’s crops and requiring the Debtor to cease farming.
The Plaintiff retained counsel after the ruling after trial but before the Court computed the award, and after the Court awarded $158,466.45 to Czechowicz, Young’s counsel perfected an appeal. On review, the District Court affirmed on liability, but reversed on damages because the Debtor’s counsel had not served an F.R.Civ. P. Rule 26 Notice upon the then-pro se Plaintiff, advising him of the evidence that would be offered on the subject of damages.
The re-trial on damages was concluded on April 28, 2006, this time with counsel on both sides.
Written closing arguments were submitted to the Court in August of 2006. The following constitutes the Court’s Rule 52 findings, conclusions and decision, regarding the matter of damages, as directed by the United States District Court for the Western District of New York (Arcara, C.J.).
Because trial and decision involved only the counterclaim, it is cumbersome to refer to the parties as Plaintiff and Defendant. Instead the parties will be referred to by name. Young has been found liable to the Debtor, Czechowicz, and this Opinion and Order addresses damages only.
Because Young put Czechowicz out of farming in mid-season of the year 1999, with crops in the fields and with fields ready for planting, it is difficult to determine what profits those crops would have brought. This is particularly so here because this was Czechowicz’s first full crop. As a new, inexperienced farmer in 1997 and 1998, he had not made any profit. In 1997 he did not yet have a pesticide license and so suffered extra expenses in hiring-out those treatments. In 1998 he lost his crop to adverse weather. And in 1999 (the year of the tort), he reported di minimis farm sales.
In the year at issue, 1999, he had added more acreage to planting, had no adversities, and had various crops in the ground and was preparing to plant other crops, when Young absconded with critical equipment, leaving Czechowicz with crops that became ruined, and with tilled land that could not be planted.
So to prove his damages, Czechowicz offered three types of evidence: (1) The eyewitness account of a neighboring farmer as to the existence of Czechowicz’s corn crop and the quality of his corn crop at the time Young absconded with the necessary equipment; (2) his own testimony as what his plans were to harvest and sell the existing crops and to plant others; and (3) various publications, some official and some not, addressing average crop yields and their proceeds in the locality in that year.
*46Young offered no evidence at all for the Court to contrast to such evidence. Rather, he relied on (1) attempting to impeach Czechowicz’s evidence (other than the eyewitness testimony of the neighboring farmer who testified that Czechowicz’s corn crop was the “best corn he ever tasted”), and (2) Czechowicz’s tax returns from 1997-1999 demonstrating that Czechowicz had never made any money as a farmer. (Czechowicz’s farming enterprise was a side-line to his full-time job at a Buffalo printing plant.)
As to Czechowiez’s own testimony, Young pointed out prior, inconsistent deposition testimony by Czechowicz (in the pre-petition state court litigation brought by Young) regarding how many acres of various crops had actually been planted. And he attacked by cross-examination only, the feasibility and projected costs of Czechowicz’s plans for the harvest and sale of his various crops, and for the planting of other crops. As to the publications offered by Czechowicz, Young attacked their relevance, reliability and proper use and interpretation: In particular, he attacked the non-official publication, provided by a seed dealer, upon which Czechowicz relied in determining the planting dimensions (space between seeds and between rows of seeds) in order to accomplish the published, anticipated yields.1
Young could have offered evidence that such anticipated yields were overly optimistic (if such were the case), but did not. Young could have offered evidence that the official compilations of average prices obtained in the region were incorrect (if such were the case), but did not. Young could have offered evidence as to what the labor and other costs would actually have been in excess of Czechowicz’s plans for the harvest (if such would have been the case), but did not.
In fact, Young’s entire defense (regarding damages) lay in an effort to establish that none of Czechowicz’s evidence had any probative value or any weight in light of the fact that Czechowicz had never made money as a farmer.
In relying entirely upon this approach, Young walks the very fine line established by the United States Supreme Court in the case of Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264-65, 66 S.Ct. 574, 90 L.Ed. 652 (1946). That case involved an unlawful conspiracy in the distribution of new motion pictures. And the sole question before the Supreme Court was whether the movie theaters that had been injured by that conspiracy had provided sufficient evidence to support the jury verdict that they had suffered a loss of earnings in excess of $120,000 in each of a given five-year period. The Court set forth governing principles as follows:
[Where tortious acts have] precluded ascertainment of the amount of damages more precisely ... the jury could return a verdict for the plaintiffs, even though damages could not be measured with the exactness which would otherwise have been possible.
In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act on probable and inferential as well as (upon) direct and positive proof.” [Case citations omitted.]
*47Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain.
Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery.
The most elementary conceptions of justice and public policy require that the wrongdoers shall bear the risk of the uncertainty which his own wrong has created.... That principle is an ancient one ... and is not restricted to proof of damage in antitrust suits, although their character as such is frequently to call for its application. In cases of collusion ... and in cases of confusion of goods ... the wrongdoer may not object to the plaintiffs reasonable estimate of the cause of injury and of its amount, supported by the evidence, because not based on more accurate data which the wrongdoer’s misconduct has rendered unavailable. And in cases where a wrongdoer has incorporated the subject of a plaintiffs patent or trademark in a single product to which the defendant has contributed other elements of value or utility, and has derived profits from the sale of the product, this Court has sustained recovery of the full amount of defendant’s profits where his own wrongful action has made it impossible for the plaintiff to show in what proportions he and the defendant have contributed to the profits.... [Emphasis added.]
The constant tendency of the Court is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery for a proven invasion of the plaintiffs rights. [Case citation omitted.]
And so Young would seem to argue, in accordance with the principles thus enunciated by the Highest Court, that any award that this fact finder might make would be an impermissible “verdict based on speculation or guesswork.” On the other side of the fine line, however, is the fact that this fact finder may “make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly,” and this fact finder is allowed “to act on probable and inferential as well as upon direct and positive proof.” 327 U.S. at 264, 66 S.Ct. 574.
Similarly, in attempting to implicate Czechowicz’s other problems in life apart from losing his farm (the break-up of his relationship with his girlfriend, an unrelated back injury that led to a period of disability, and the loss of his full-time job in the bankruptcy of his employer), Young echoes the kind of arguments made in the case of Doralee Estates, Inc. v. Cities Service Oil Company, 569 F.2d 716 (2d Cir. 1977). In that case landowners were injured by oil that the defendant knew was seeping from the defendant’s land onto the plaintiffs land. The defendant argued that the plaintiff “failed to prove how much of its claimed diminution in that property value was attributable to [the] seepage. [The defendant further suggests] that other pollutants such as sewage, discharge from another petroleum plant, and automobile exhausts and leakage contributed to [the plaintiffs] damages.” Id. at 720-21. The Second Circuit stated “we think that [the defendant] overstates plaintiffs burden. When a defendant’s tortious acts are of a nature which preclude precise ascertainment of damages, the jury may make ‘a just and reasonable estimate of the damage based on relevant data and render its verdict accordingly.’ ” Id. at *48721 (Citing the Supreme Court’s decision in Bigelow, and other cases as well).
This writer has presided in dozens of farm cases, and has no doubt that the profit potential for most cash crop farms in this locale is speculative until the crops are in and sold. But the fact that we cannot know with certainty that Czechow-icz would have made the type of year-1999 profits he claims is the consequence of Young’s intentional tort, and Young may not benefit from that tortious act. The Court must use whatever competent and admissible evidence Czechowicz offered. As quoted above, the Court is to “find some way in which damages can be awarded where a wrong has been done.” All of Czechowicz’s evidence has been ruled competent, relevant and admissible (at least for limited purposes). And, the cumulative weight of the evidence is more than “nothing.” Young, for his part, has offered precisely “nothing” regarding the crops and anticipated crops in question.
As this Court ruled in its August 24, 2004 decision, intentional tort cases are different from other cases. So long as the fact of damage is not speculative, then the fact that the amount of damage is speculative does not preclude an award. That Young damaged Czechowicz by means of intentional tort — the tort of theft of essential equipment — is “law of the case” here. The Court finds that the “fact of damages” is not speculative, because Czechowicz had good crops in the ground and also land ready to be planted. Consequently, the determination of the amount of damages may permissibly rest in “a just and reasonable estimate, based on relevant data.”
Young has offered in evidence no relevant data (rather than argument) to contrast with Czechowicz’s evidence, and so this fact finder makes a “just and reasonable estimate,” as follows:
The Court has carefully examined the evidence, and fully adopts, as its own Rule 52 Findings of Fact, Czechowicz’s representations as contained in his written “Summation,” with certain exceptions as set forth below.
CORN
As to corn, the crop was in the ground and was hearty. The only “speculation or guesswork” is as to the costs of spraying and harvesting. The anticipated yield and proceeds are “reasonable estimates” based on “relevant evidence.” Because of “speculation and guesswork,” the Court reduces the request by 20%, and awards $73,440.
HAY
As to hay, the Court finds damages in the amount of $18,663.75 for the loss of the second cutting.
WHEAT
As to winter wheat and resulting straw, 47 acres were prepared to be planted. The Court reaches a “just and reasonable estimate” of $20,000 in damages.
YEAR-2000 LOST PROFITS
As to lost profits for the year, the court finds that $50,000 is a “just and reasonable estimate, based on relevant data.”
PUNITIVE DAMAGES
Although Czechowicz’s original counterclaim did not seek an award of punitive damages, he sought leave to amend the Counterclaim, to conform to the evidence adduced at trial, after this Court’s ruling on damages was vacated and remanded for a new trial. That Motion was granted, and Young was given additional time to conduct further discovery as a consequence.
*49At the new trial, Young’s examination of Czechowicz established that there may have been a basis upon which Young might have thought that he was within his rights to take the equipment — there is no dispute about the fact that there had been a give- and-take between the two about Czechow-icz leasing from Young, rather than buying, the equipment that Young took back from Czechowicz. In eliciting such evidence, Young does not attack the “law of the case,” but instead seeks to mitigate the dollar amount of the “punishment.” Whatever fíne line Young seeks to walk here in that regard falls for two reasons. First is the fact that it was upon Young’s own testimony at the first trial that this Court found that Young’s conduct was “shocking to the conscience of the court.” That finding is, in the Court’s view, also “law of the case.” But even if it is not “law of the case,” that mitigating theory has now been offered only in argument, not in testimony by Young. For all the Court knows, Young is as committed to “Frontier Justice” today as he was at the first trial when he testified, under oath, to the effect that Czechowicz’s cessation of payments for the equipment was “theft,” and so he had a right to “steal” the equipment back. He left no doubt in the Court’s mind then that he would do it again tomorrow. (As we know, failure to pay a debt is “breach of contract,” not “theft.”)
This Court noted after the first trial that the days of the Wild West are long done. The place to resolve disputes is a court of law. Had Czechowicz come home to find Young trespassing and stealing the equipment, there may well have been a tragic disturbance of the peace. Such conduct must be deterred. The U.S. Supreme Court has recognized that “indifference to or reckless disregard for the health and safety of others” is an “aggravating factor” in punitive damages cases.2
And it must also be noted that at that re-trial on damages, Young and his counsel had an advantage that few litigants have. He not only had seen Czechowicz’s case laid-out in full, on the record in the first trial, but had also seen this Court’s findings about the case, and those of the reviewing Court. It is on that basis that this Court denied, prior to re-trial, Young’s Motion to Dismiss premised on Czechow-icz’s failure to serve a formal Rule 26 Disclosure upon Young’s new counsel. Young and his new counsel had Czechow-icz’s whole case. They had every conceivable iota of substance, but not in Rule 26 form. (When the District Court previously sent this matter back to this Court, it did so because before the first trial Young, who was then pro se, was possessed of neither the substance nor the form addressed by Rule 26.) This Court is commanded by Rule 1, that the Rules “be construed and administered to secure the just, speedy, and inexpensive determination of every action.” F.R.Civ.P. 1.
Not a scintilla of evidence was offered by Young on re-trial as to the value of the crops and the crop year at issue. Not even Young’s own testimony. The Court does not criticize that choice. It may be that any further truthful testimony by Young, particularly on cross-examination, might not have served Young’s own cause, in which case, his very capable counsel has done the best he can. (Young would have been well-advised to have hired him before the first trial.) This fact finder concludes that Young stands by his testimony in the first trial, that in his view, he could “steal” the equipment “back.”
*50On the other hand, Young is himself not in the business of selling farms and equipment. So far as the Court knows, this is an isolated incident.
But Young seems unable to admit error, based on his decision not to recant his prior testimony or express remorse for his decision to “steal” the critical equipment back. And so in light of the case of Gore and BMW and in light of all of the above, punitive damages are awarded in the amount of $50,000.
OTHER ARGUMENTS
The Court has considered all of Young’s other arguments and Motions and finds them to be without merit.
The Court especially notes the effort by Young at re-trial to establish, through cross-examination of Czechowicz, that it was Czechowicz’s personal problems with his girlfriend, and loss of his job in the bankruptcy liquidation of his employer F.N. Burt, that bankrupted him, not Young’s actions.
Trite phrases are trite because they are often true. And so now some trite phrases. The Court is of the view that the question of which particular “straw broke the camel’s back” is not to be resolved by holding that the particular straw that was added to the camel’s back by intentional tort is of no compensable moment. This writer sees thousands of cases each year. Multiplied by 15 years on the Bench, that is a great many cases. And in most of those cases, life has been tough for the debtor. “If it’s not one thing, it’s another,” in their lives, in another trite phrase. Even in contract law, there is recognition of “special damages,” far-reaching damages that flowed from a breach of contract, but the amount of which might not have actually been known to the breaching party at the time of the breach. See 36 N.Y.Jur.2d Damages §§ 41,42.
And in the final trite phrase, it is the tale of “for want of a nail, a kingdom was lost.” Czechowicz testified that the loss of the farm was instrumental in the loss of his “family.” And here we have a tort that was intentional, not a decision to default on a contract or even a negligent act. An intentional tort visits upon the tortfeasor “such immediate consequential injuries as, according to the common experience of humankind, are likely to, and do in fact, result from such act.” not simply the “foreseeable” consequences. See 36 N.Y.Jur.2d Damages § 56. A punch to the face of a stranger who is a wage-earner might cost him or her a few days’ pay and the cost of an X-ray. A punch to the face of a stranger who is a performance artist might cost a performance that costs a tour that costs a career. The performance artist and her tour might have been a “flop” anyway. But that can never be known after the punch that cost the performance. Maybe the artist had other problems. Maybe the punch was a “mercy killing” to a career that would never happen. But the fact of uncertainty does not inure to the benefit of the one who punched. See Bigelow, above.
In sum, Czechowicz might have been a very successful farmer or a flop. It is because of Young’s unlawful actions that we will never know.
Importantly, this case is essentially a two-party dispute in which Czechowicz filed for relief here in the face of Young’s pursuit of Czechowicz in State Court. Czechowicz had few debts, but was driven to this Court by Young’s pursuit of a judgment over and above his unlawful self-help. And so, there is no doubt in this Court’s mind that Young “drove” Czechowicz into bankruptcy. (See the introductory paragraphs to this Decision.)
CONCLUSION
The Clerk shall enter money judgment against Young and in favor of Czechowicz *51in the amount of $212,103.75,3 and close this Adversary Proceeding, subject, of course, to Appeal.
SO ORDERED.
. This was deemed evidence not as to the truth regarding yield, but rather as the basis upon which Czechowicz planted his crops, and now estimates their value.
. BMW v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 1592, 134 L.Ed.2d 809 (1996); State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 1521, 155 L.Ed.2d 585 (2003).
. In the pre-reversal computation of damages, Young argued that damages could not possibly exceed the purchase-price of the farm. This argument is fallacious for three reasons: (1) It is "law of the case” that the purchase price of this farm, $160,000 in 1997 was artificially depressed by Young's prior encumbrance of the land to farming only (apparently a “T.D.R.”) (Transfer of Development Rights) from which Young derived other value; and so the price that Czechowicz paid was not "fair market value” of land that was not otherwise encumbered, and (2) Czechowicz put his own, non-farm income into trying to make a successful farm, thereby enhancing the actual value of the farm, and (3) the combination of the above two factors enhanced the potential of the farm to generate substantial farming profits, a stream of income, that made the purchase of the farm a better deal for Czechowicz than Young might have contemplated when he priced the farm at $160,000 in 1997. In light of Young's intentional tort, valuation is Young’s problem, not Czechowicz's problem. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484827/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States against the above-named Respondent, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for Public Uses, and the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties and did, on the 12th day of December, in the year 1902, report to this Court recommending the Government be declared the proprietor of said land and premises upon payment of Four Hundred Dollars *65($400), interest and costs, IT IS NOW, THEREFORE, ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent the sum of Four Hundred' Dollars ($400), together with interest thereon at the. rate of 8 per centum per annum from the 7th day of, March, 1901, to the 10th day of Dec., 1902, amounting to $56.26, and shall pay costs of attorney, arbitration, Registrar’s and High Court costs, amounting to $70.50, said sums making a total of $526.76, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of said sum of $526.76, as aforesaid, the Government of the United States of America be, and the same is hereby declared, the proprietor of ALL that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “LELOTOA”, STARTING at a point being the northeastern corner of land “Laloifi”, and the southeastern corner of land “Utumoa”, property of the said Government, and following the eastern boundary of said land “Utumoa” bearing 47 degrees 15 minutes, distance 40 feet, to land of said Government, known as the church site; thence following the eastern boundary of said church site, bearing 36 degrees, distance 32 feet; thence bearing 95 degrees 30 minutes, distance 53 feet, to land “Faletoi”, property of said Sarnia; thence running in a southerly direction, bearing 2 degrees 15 minutes, distance 62 feet, to land “FALEULU”; thence bearing 159 degrees, distance 86 feet, to the, boundary line of land agreed by the Samoan landowners of Fagatogo to be surrendered and sold to the said Government; thence following said agreed boundary line, westerly, bearing 276 degrees 6 minutes, distance 100 feet, to a monument marked , and land known as *66“Laloifi”, sold by Mele Meredith to said Government; thence following eastern boundary of said land “Laloifi”, bearing 345 degrees, distance 80 feet, to starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said lands in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and seal of the Court on this 15th day of December, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494067/ | MEMORANDUM OPINION1
MARY F. WALRATH, Bankruptcy Judge.
Before the Court is the Trustee’s Second Omnibus Objection to Claims asserting *64that the secured claim filed by Charles and Frances Barker (“the Barkers”) must be reclassified as a general unsecured claim. The Barkers oppose the Objection and assert they had a valid perfected security interest in the Debtor’s truck by virtue of a judgment and sheriffs levy on the vehicle. For the reasons stated below, the Court will deny the Objection in part and will allow the Barkers’ claim as a secured claim to the extent of the value of the truck.
I. BACKGROUND
On or about December 10, 2002, Stanley’s Asphalt Paving, Inc. (the “Debtor”) purchased a 2003 Chevy C4500 dump truck with VIN number 1GBC4E1153F502658 (the “Truck”) for a purchase price of $32,000. The Debtor borrowed $32,025 from First National Bank of Wyoming (the “Bank”) to purchase the Truck and executed a security agreement in favor of the Bank at the time of the purchase. The Bank’s lien, however, was not noted on the Truck’s title at that time.
On January 14, 2003, the Barkers obtained a judgment in the Superior Court of the State of Delaware against the Debtor in the amount of $83,170.07. On April 22, 2003, the Sheriff of Kent County (the “Sheriff’) levied on certain of the Debtor’s property, including the Truck. The Sheriff scheduled a sale of that property for September 16, 2003. When the Debtor failed to produce the property subject to the levy for the scheduled sale, the Superi- or Court entered an Order on October 31, 2003, directing the Debtor to produce, inter alia, the Truck. The Truck was impounded on that day and delivered to a custodian, where it was held pending the rescheduled sale.
On November 18, 2003, the Bank perfected its lien in the Truck by having it listed on the title to the Truck. On November 25, 2003 (the “Petition Date”), the Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code. Alfred T. Giuliano (the “Trustee”) was appointed the chapter 7 trustee.
On October 19, 2004, the Trustee filed a complaint against the Bank to avoid its security interest in the Truck. The Bank conceded that its lien had been perfected within ninety days of the Petition Date and that it was avoidable under section 547 of the Bankruptcy Code. The Bank delivered the Truck title to the Trustee. Thereafter, the Trustee amended his Complaint to name the custodian of the Truck as a defendant and ultimately obtained possession of the Truck.
On December 23, 2004, the Trustee filed a Motion to sell the Truck along with other vehicles owned by the Debtor. The Barkers objected to the sale, asserting a lien on the Truck. The Court authorized the sale, with the Barkers’ lien, if any, to attach to the proceeds of the sale. The Truck was sold for $20,000.
On July 21, 2006, the Trustee filed the Second Omnibus Objection to Claims which sought to reclassify the Barker claim as a general unsecured claim. The Barkers responded and a hearing was held on August 23, 2006. The Court asked for post-hearing briefing which has now been filed. The matter is ripe for decision.
II. JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 & 157(b)(2)(A), (B), (C), (K), & (O).
*65III. DISCUSSION
The Trustee asserts that the Barkers did not have a perfected lien on the Truck as of the Petition Date because their lien was not reflected on the vehicle’s certificate of title. He asserts that the only way a lien can be perfected on a vehicle is by a notation on the certificate of title. See Del.Code Ann. tit. 6 § 9-303 & tit. 21 § 2331 (2006). See also Associates Commercial Corp. v. Trim-Lean Meat Prods., Inc. (In re Trimr-Lean Meat Prods.), 5 B.R. 190, 191 (Bankr.D.Del.1980) (concluding that lender did not have perfected security interest in tractor where no certificate of title was ever issued on which its lien could be reflected). He asserts that the need for notation on the certificate of title is evident from the Bank’s actions. When it realized it had not perfected its security interest, the Bank took steps (albeit too late) to get its lien noted on the certificate of title. The Trustee asserts that the Barkers should have done the same.
The Barkers disagree. They argue that the Trustee cites only the method of obtaining a consensual lien on a vehicle and ignores the fact that a party can obtain a non-consensual lien on a vehicle under Delaware law. See, e.g., DeLCode Ann. tit. 10 § 3901 (2006) (granting security interest to garage owner in possession of vehicle); DeLCode Ann. tit. 10 § 4002 (2006) (granting security interest to custodian of abandoned property).
In fact, the Barkers argue that under Delaware law they had a perfected lien in the Truck as of the Petition Date. Specifically, they assert that they obtained a perfected lien on the Truck on April 22, 2003, when the Sheriff levied on it.
The Court agrees with the Barkers. The relevant Delaware statute provides that “[a]n execution shall not bind goods and chattels until it is delivered to the Sheriff ... to be executed. An execution shall, from the time it is so delivered, bind all the goods and chattels of the Defendant within the bailiwick, which shall be actually levied upon.... ” DeLCode Ann. tit. 10 § 5081 (2006). The lien created is effective only upon actual levy by the sheriff and remains valid for three years. Id. See, e.g., Flemming v. Thompson, 343 A.2d 599, 600 (Del.1975) (concluding that lien was only effective when sheriff actually levied on the personal property); State v. Fisher, 1996 WL 659471 (Del.Super.1996) (noting that lien was perfected upon levy by sheriff and gave judgment creditor priority over all subsequent liens for a period of three years); Cochran v. Clements, 183 A. 632, 634 (Del.Super.1936) (concluding that upon levy, sheriff obtains rights in the property which prevent the judgment debtor from selling the property). See generally 2 Woolley on Delaware Practice §§ 992,1014,1034 (1906).
Furthermore, there is no question that a sheriff may levy on a motor vehicle, thereby creating a lien on that vehicle. See, e.g., Flemming, 343 A.2d at 599 (dealing with sheriffs levy on a mobile home); Phillips v. Siano, 2000 WL 33115824 (Del.Super.2000) (concluding that sheriffs levy on truck was superior to title of subsequent purchaser who had constructive, if not actual, notice of the levy). Cf. In re Collins, 234 B.R. 88, 91 (Bankr.W.D.Mo. 1999) (holding that Missouri law allowed sheriff to levy on motor vehicles). That is exactly what occurred in this case. The Truck was levied upon by the Sheriff on April 22, 2003, at which time the lien attached and became perfected. Therefore, as of the Petition Date, the Barkers had a perfected lien on the Truck.
Furthermore, that lien is not avoidable by the Trustee. Under section 544(a), the Trustee, as a hypothetical judi*66cial lien creditor who has executed on the debtor’s property, could avoid any lien of a judgment creditor which had not yet been perfected. See, e.g., In re Downey, 261 B.R. 124, 128 (Bankr.D.N.J.2001). However, the Trustee’s position is inferior to any judgment creditor that has perfected its lien by having the sheriff levy on the debt- or’s personal property. See, e.g., Collins, 234 B.R. at 94 (concluding that judgment creditor’s lien was superior to trustee’s position under section 544 because “when the Sheriff levied upon the debtor’s vehicles by taking possession of them, a perfected lien was created in those vehicles giving [the judgment creditor] priority against subsequently arising liens in the same property”); In re Marvel, 138 B.R. 451, 453 (Bankr.D.Del.1992) (concluding that trustee could not use section 544 of the Bankruptcy Code to avoid lien which was perfected under Del.Code Ann. tit. 10 § 5081 by sheriffs levy on personal property). Because the Barkers perfected their lien pre-petition (and long before the preference period), the Court concludes that the Trustee may not avoid their lien.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Barkers had a perfected security interest under Delaware law in the Truck as of the Petition Date. Therefore, the Trustee’s objection will be overruled in part and the Barkers’ secured claim will be allowed in the amount of $20,000 (the price at which the Truck was sold).2
An appropriate order is attached.
. 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 *64to contested matters by Rule 9014 of the Federal Rules of Bankruptcy Procedure.
. The Barkers are also entitled to any interest the Trustee may have earned on the sale proceeds. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484830/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States, against the above-named Respondent, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for Public Uses, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 13th day of December, in the year 1902, A.D., report to this Court, recommending the Government be declared the proprietor of said land and premises upon pay*72ment of the sum of Two Hundred Fifty Dollars ($250), interest and costs, IT IS NOW, THEREFORE, ORDERED and ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Taulago, the sum of $250, together with interest thereon at the rate of 8% per annum from the 7th day of March, 1901, to the 10th day of December, 1902, amounting to $35.16, and shall pay costs of Attorney, arbitration, Registrar’s and High Court costs, amounting to $59.00, said sums making a total of $344.16, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment of $344.16, as aforesaid, the Government of the United States of America be, and the same is hereby declared, the proprietor of all that piece or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila, and called or known as “Tuaifuata”, BOUNDED towards the north by land called “Tuaifuata”, property of said Government, by deed recorded in Vol. 1, Folios 43, 44 & 45 of the Register of Transfers of the Land Records of the United States Naval Station, Tutuila; towards the east by property of said Government, called the “Malae”, of Fagatogo, acquired from Thomas Meredith by deed recorded in Vol. 1, Folios 15, 16 & 17 of said Register of Transfers, bounded towards the south by property of said Government called “Faletoi”, from Sarnia, and towards the west by land of said Government, recorded in Vol. 1, Folios 23, 24 & 25 of said Register of Transfers, and more particularly described in deed from Ifopo to the said Government, under Judgment of the High Court of Tutuila, entered up in Gov’t. of U.S. v. Ifopo, 1 A.S.R. 61 (1902).
*73The Registrar of Titles is hereby directed to issue a Certificate of Title to said lands in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and the seal of the Court on this 15th day of December, 1902. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484831/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent, for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC PURPOSES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for PUBLIC USES, having given due and proper notice to the Respondent herein, *74and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of the parties hereto, did satisfactorily adjust the acceptances and tenders of the parties, and on the 13th day of December, 1902, A.D., did report to this Court, said Report being now on file, recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of $200.00, IT IS NOW, THEREFORE, ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, E. Ripley, the sum of $200.00, together with interest thereon at the rate of eight per cent (8%) per annum, from the 7th day of March in the year 1901, A.D., to the 10th day of December, 1902, A.D., amounting to $28.13, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $55.50, said sums making a total of $283.63, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment by the said Government of the said sum of $283.63, as aforesaid, the Government of the United States of America be, and the same is hereby declared, the Proprietor of ALL THAT PIECE OR PARCEL OF LAND situate in Fagatogo, in the United States Naval Station, Tutuila, and being called or known as “FALETOI”, STARTING at the southeastern corner of land “Faletoi”, property of the Government of the United States of America, acquired from one Samia, and following the eastern boundary of said land from Samia, bearing 22 degrees 45 minutes, distance 71 feet, to land of said Government, recorded in Volume 1, Folios 15, 16, 17 of the Register of Transfers of the Land Records of the United States *75Naval Station, Tutuila; thence running along the south boundary of said recorded land, bearing 301 degrees, distance 31.5 feet, to land of Fanene; thence along boundary of said land of Fanene, bearing 145 degrees 15 minutes, distance 39 feet; thence southerly, bearing 28 degrees 30 minutes, distance 36 feet, to land “Faleulu”, property of said Government; thence along northern boundary of said land “Faleulu” bearing 282 degrees 30 minutes, distance 90 feet, to the starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and the seal of the Court on this 15th day of December, in the year 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484832/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States against the above-*76named Respondent, Fanene, for the object of obtaining the lands (the property of the above-named Respondent) hereinafter described, for public uses, for the United States Government, under and by virtue of Ordinance No. 20-1900, being the Ordinance to regulate the acquisition of land by the Government for Public Purposes, and under the provisions contained in said Ordinance, due and proper notice having been given to the said Respondent through the Registrar of Titles, and the Registrar of Titles, by his report to this Court bearing date the 6th day of May, 1901, having informed the Court that the tender of the Respondent herein amounting to Five Hundred Dollars ($500) had been accepted by the Petitioner Government, and recommended that the Government be declared the proprietor of the said lands at and for the said consideration, to be paid by the said Government, IT IS NOW, HEREBY ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America be, and the same is hereby declared Proprietor of ALL THAT PIECE OR PARCEL OF LAND CALLED OR KNOWN AS “FALESEU”, situate in Fagatogo, in the United States Naval Station, Tutuila, bounded towards the north by land called “Fanuatanu”, belonging to the said Government, towards the east by land “Seeti”, also property of the said Government; towards the south by land of the said Fanene, called “Gautavai” and land “Faleulu”, property of the said Government, and towards the west by lands of the said Government, called “Faletoi”, from E. Ripley, and “Lotomua” or the “Malae” of Fagatogo, from T. Meredith, as all the said boundaries are more particularly described and delineated in the plat now on file in the office of the Registrar of Titles for the United States Naval Station, Tutuila.
-2. That the said Government shall pay, in consideration .of all claims and demands of the said Respondent to said *77land, the sum of Five Hundred Dollars ($500) together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March, 1901 to the 10th day of December, 1902, amounting to $70.33, and shall also pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $70.50, said sums' amounting to a total of $640.83.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said lands in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and seal of the Court on this 15th day of December, 1902 A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484833/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government as compensa*78tion in respect of the lands and premises hereinafter described, said lands being required for PUBLIC PURPOSES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for PUBLIC USES, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles at the request of the parties hereto, did satisfactorily adjust the acceptances and tenders of the parties, and did, on the 13th day of December, 1902, A.D., report to this Court, which said Report is now on file, recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of $400.00, with interest and costs, IT IS NOW, THEREFORE, ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent the sum of $400.00 (Four Hundred Dollars), together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March in the year 1901, A.D. to the 10th day of December, 1902, A.D., amounting to $56.26, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $70.50, said sums making a total of $526.76, in consideration of the release of all claims and demands of the said Respondent to said land and premises.
2. That in consideration of the payment by the said Government of the said sum of $526.76, as aforesaid, the Government of the United States of America be, and the same is hereby declared, the Proprietor of ALL THAT PIECE OR PARCEL OF LAND SITUATE IN FAGATOGO IN THE UNITED STATES NAVAL STATION, TUTUILA, AND BEING CALLED OR *79KNOWN AS “GAUTAVAI”, STARTING at a point on the boundary line of land agreed by the Samoan landowners of Fagatogo aforesaid, to be surrendered and sold to the United States Government, being the southeastern corner of land called “Faleulu”, sold to said Government by one Tiumalu, and following the eastern boundary of said land “Faleulu” northerly, bearing 40 degrees 15 minutes, distance 64 feet; thence bearing 172 degrees 45 minutes, distance 45 feet; thence following the southern boundary of land “Faleseu”, sold by the said Fanene to the said Government, in an easterly direction to the northwestern corner of land of said Government, called “Faletoi”, acquired from Paul Leonard; thence running southerly along the western boundary of said land “Faletoi”, bearing 157 degrees 15 minutes, distance 66 feet, to land of Afoa, called “Soala”; thence running southwesterly along northwestern boundary of said land “Soala”, bearing 60 degrees 45 minutes, distance 82 feet, to an orange tree, and stake on said agreed boundary line; thence following westerly said agreed boundary line, bearing 276 degrees 6 minutes, distance 64 feet to the starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and the seal of the Court on this 15th day of December in the year 1902 A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484834/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC PURPOSES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900 to regulate the Acquisition of land by the Government of the United States for PUBLIC USES, having given due and proper notice to the respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles at the request of the parties hereto, did satisfactorily adjust the acceptances and tenders of the parties, and did on the 13th day of December 1902 A.D. report to this Court, which said Report is now on file, recommending *81the Government be declared the proprietor of said lands and premises upon payment of the sum of $200 with interest and costs, subject to a certain lease now existing of said premises. IT IS NOW, THEREFORE ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Mailo, the sum of $200.00 together with interest thereon at the rate of eight per cent per annum from the 7th day of March in the year 1901 A.D. to the 10th day of December 1902 A.D. amounting to $55.50, said sums making a total of $283.63 in consideration of the release of all claims and demands of the said Respondent to said lands and premises.
2. That in consideration of the payment by the said Government of the said sum of $283.63 as aforesaid, the Government of the United States of America be, and the same is hereby declared the Proprietor of ALL THAT piece or parcel of land situate in Fagatogo in the United States Naval Station, Tutuila, and being called or known as “Tafatafa” starting at the South Eastern corner of land “Faletoi” acquired by said Government from one Paul Leonard and running along the Eastern boundary of said land, “Faletoi” bearing 359° 15' distance 73 feet, thence bearing 15° distance 114 feet to land of said Government called “Siufaga” from TAAMU recorded in Volume 1, Folios 4, 5, & 6 of the Register of Transfers of the Land Records of the United States Naval Station, Tutuila, thence running in a South Easterly direction along boundary of said land “Siufaga” bearing 313° 57' distance 88 feet to land of Fanene called “Vaiifi” bearing 215° 46' distance 150 feet to the point of starting.
*82The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government according to said Order and Judgment.
Given under my hand and the seal of the Court on this 15th day of December in the year 1902, AD. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484835/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for PUBLIC PURPOSES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900 to regulate the Acquisition of land by the Government of the United States for PUBLIC USES, having given due and proper notice to the respondent herein, and proceedings before said Registrar having *83been regularly taken in the premises, whereupon the Registrar of Titles at the request of the parties hereto, did satisfactorily adjust the acceptances and tenders of the parties, and did on the 13th day of December, 1902, A.D. report to this Court, which said Report is now on file, recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of $500.00 with interest and costs. IT IS NOW, THEREFORE ORDERED AND ADJUDGED AS FOLLOWS; to wit:—
That the Government of the United States of America shall pay to the Respondent, AFOA, the sum of $500.00, together with interest thereon at the rate of eight per cent per annum from the 7th day of March in the year 1901 A.D. to the 10th day of December 1902 A.D. amounting to $64.42, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs amounting to $82.75, said sums making a total of $647.17 as aforesaid, the Government of the United States of America be, and the same is hereby declared the Proprietor of ALL those pieces or parcels of land situate in Fagatogo in the United States Naval Station, Tutuila, and being called or known as “Soala” and “Siufaga” respectively.
“Soala”: Starting at a stake near an orange tree on the boundary line of land agreed by the Samoan landowners of Fagatogo to be surrendered and sold to the United States Government and on the South boundary of land “Gautavai” property of said Government, following in a North Easterly direction along said land “Gautavai” bearing 60° 45' distance 82 feet to land “Faletoi” property of said Government acquired from Paul Leonard, thence following South boundary of land from Paul Leonard in a South Easterly direction bearing 287° 30' distance 64 feet to an Ifi tree, thence bearing 296° distance 109 feet to land “Tafatafa” property of the said *84Government and land Yaiifi claimed by Fanene, thence following the Western boundary of said land Vaiifi in a Southerly direction bearing 23° 24' distance 110 feet to land of Taamu called “Asiafa”, thence following in a Southerly direction said land of Taamu bearing 43° 30' distance 73 feet to said agreed boundary line, thence following the said boundary line bearing 311° 36' distance 209 feet, thence bearing 18° 30' distance 44 feet to the starting point.
2. [sic] The said land “Siufaga” is described as follows: STARTING at a point on the southeastern boundary of land called “Siufaga”, property of the said Government recorded in Vol. 1, Folios 4, 5 and 6 of the Register of Transfers of the Land Records of the United States Naval Station, Tutuila, the same point being the northeastern corner of land called “Vaiifi”, claimed by Fanene, following said boundary of “Siufaga” in a northeasterly direction, bearing 45 degrees 30 minutes, distance 99 feet, to land claimed by Taamu called also “Siufaga”; thence following the south boundary of said Taamu land, bearing 102 degrees 30 minutes, distance 196 feet, to the boundary line of land agreed by the Samoan landowners of Fagatogo to be sold to said Government; thence running southerly along said boundary line, bearing 12 degrees 12 minutes, distance 174 feet; thence still on said boundary line bearing 40 degrees 31 minutes, distance 75 feet, to the southeastern corner of said land of Fanene, called “Vaiifi”; thence following the northeastern boundary of said land “Vaiifi” in a north westerly direction, bearing 138 degrees 45 minutes, distance 267 feet, to the point of starting.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government, according to said Order and Judgment.
*85Given under my hand and the seal of the Court on this 15th day of December, in the year 1902 A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484836/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government in respect of the lands and premises hereinafter described, said lands being required for PUBLIC PURPOSES, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the Provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request *86of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 13th day of December, in the year 1902, A.D., report to this Court which said Report is now on file, recommending the Government be declared the Proprietor of said lands and premises upon payment of the sum of One Thousand Dollars ($1,000) with interest and costs, IT IS NOW THEREFORE ORDERED AND ADJUDGED; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Fanene, the sum of One Thousand Dollars ($1,000), together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March 1901 to the 10th day of December, 1902, amounting to $128.84, and shall pay costs amounting to $108.00, said sums making a total of $1,236.84, in consideration of the release of all claims and demands of the said Respondent to said lands and premises.
2. That in consideration of the payment of said sum of $1,236.84, as afore-said, the Government of the United States of America be, and the same is hereby, declared the Proprietor of ALL THAT PIECE OR PARCEL OF LAND SITUATE IN FAGATOGO, IN THE UNITED STATES NAVAL STATION, TUTUILA, AND CALLED OR KNOWN AS “VAIIFI”, STARTING at a point on the southeastern boundary of land called “Siufaga”, property of the Government of the United States, recorded in Vol. 1, Folios 4, 5 & 6 of the Register of Transfers of the Land Records of the United States Naval Station, Tutuila, the same point being the northwestern corner of land “Siufaga”, property of said Government, acquired from Afoa, and following the southeastern boundary of said recorded land “Siufaga”, 'in a southwesterly direction, bearing 45 degrees 30 minutes, distance 65 feet to land “Tafatafa”, *87property of said Government from Mailo, thence following boundary of said land “Tafatafa” in a southwesterly direction bearing 215 degrees 46 minutes, distance 150 feet to land “Soala” and “Faletoi”, property of said Government; thence following the western boundary of land “Soala”, in a southerly direction bearing 23 degrees 24 minutes, distance 110 feet, to land of Taamu, called “Asiafa”, thence following boundary of land “Asiafa” in a southeasterly direction, bearing 144 degrees, distance 109 feet, thence in a southwesterly direction, bearing 34 degrees, distance 51 feet, to the boundary line of land agreed by the Samoan landowners to be surrendered and sold to the said Government, thence following said agreed boundary line in a southeasterly direction, bearing 311 degrees 36 minutes, distance 107 feet; thence still following said agreed boundary line in a northeasterly direction bearing 40 degrees 31 minutes, distance 358 feet to land of “Siufaga”, property of said Government acquired from Afoa, thence following the southwestern boundary of said land “Siufaga” in a northwesterly direction, bearing 138 degrees 45 minutes, distance 267 feet, to the starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land, in favor of said Government, according to said Order and Judgment.
GIVEN under my hand and the seal of the Court on this 15th day of December, in the year 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484837/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America, against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government in respect of the lands and premises hereinafter described, said lands being required for Public Purposes, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900 to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings taken before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did, satisfactorily, adjust the acceptances and tenders of said parties, and did, on the 13th day of December, in the year 1902, A.D., report to this Court, which said Report is now on file, recommending the Government be declared the Proprietor of said lands and premises upon payment of the sum of $500 with interest and costs, *89IT IS NOW THEREFORE ORDERED AND ADJUDGED AS FOLLOWS; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Taamu, the sum of $500.00, together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March, 1901 to the 10th day of December, 1902, amounting to $64.42, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs amounting to $82.75, said sums making a total of $647.17, in consideration of the release of all claims and demands of the said Respondent to said lands and premises.
2. That in consideration of the payment of the said sum of $647.17, as aforesaid, the Government of the United States of America be, and the same is hereby declared the PROPRIETOR of all that piece or parcel of land situate in Fagatogo and called or known as “Asiafa”, STARTING on the boundary line of land agreed by the Samoan landowners of Fagatogo aforesaid to be surrendered and sold to the United States Government, and at the southeastern corner of land “Soala”, the property of the said Government, and following the southeastern boundary of said land “Asiafa”, bearing 48 degrees 30 minutes, distance 73 feet to land of said Government called “Vaiifi”, thence following the southwestern boundary of said land “Vaiifi”, bearing 144 degrees, distance 109 feet, thence running southwesterly bearing 34 degrees, distance 51 feet, to said agreed boundary line; thence bearing 311 degrees 36 minutes, distance 116 feet, to the starting point; AND ALSO ALL THAT PIECE or parcel of land situate in Fagatogo aforesaid on the said agreed boundary line at the northeastern corner of land “Siufaga”, property of said Government acquired from Afoa, thence running along the north boundary of said Afoa-Siufaga land in a westerly *90direction, bearing 102 degrees 30 minutes, distance 196 feet, to land of said Government called “Siufaga”, recorded in Vol. 1, Folios 4, 5 & 6 of the Register of Transfers of the Land Records of the United States Naval Station, Tutuila, thence following the southeastern boundary of said recorded land “Siufaga”, bearing 45 degrees 30 minutes, distance 21 feet, thence bearing 41 degrees 17 minutes, distance 121 feet, thence bearing 48 degrees 2 minutes, distance 43 feet to land “Fagaone” acquired by said Government before the month of June 1899, A.D., thence following the southeast boundary of the said land “Fagaone”, bearing 47 degrees 30 minutes, distance 48 feet, thence bearing 54 degrees 31 minutes, distance 66 feet, thence bearing 35 degrees 11 minutes, distance 66 feet, thence bearing 15 degrees 58 minutes, distance 20 feet to said agreed boundary line; thence running in a southerly direction along said agreed boundary line, bearing 12 degrees 12 minutes, distance 321 feet, to the starting point; AND ALSO ALL THAT PIECE OR PARCEL OF LAND being portion of the tract of land known as “Siufaga”, STARTING at the northern apex of the section of land called “Siufaga”, hereinbefore described, on the said agreed boundary line and following said land of Government called “Fagaone”, bearing 11 degrees and 9 minutes, distance 101 feet, thence bearing 94 degrees 6 minutes, distance 82 feet, to said agreed boundary line, thence running along said agreed boundary line in a southerly direction bearing 48 degrees 15 minutes, distance 134 feet to the starting point.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484838/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government in respect of the lands and premises hereinafter described, said lands being required for Public Purposes, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 15th day of December in the year 1902, A.D., report to this Court, which said Report is now on file, recommending the Government be declared the PROPRIETOR of said lands and premises upon pay*92ment of the sum of $100.00, with interest and costs, IT IS NOW THEREFORE ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Mele Meredith, the sum of One Hundred Dollars ($100), together with interest thereon at the rate of eight per cent (8%) per annum from the 7th day of March, 1901 to the 10th day of December, 1902, amounting to $14.22, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $38.00, said sums making a total of $152.22, in consideration of the release of all claims and demand of the said respondent to said lands and premises.
2. That in consideration of the payment of the said sum of $152.22, as aforesaid, the Government of the United States of America be, and the same is hereby declared the PROPRIETOR of ALL THAT PIECE or parcel of land situate in Fagatogo, in the United States Naval Station, and called or known as “Laloifi”, STARTING on the boundary line of land agreed to be surrendered and sold by the Samoan landowners of Fagatogo to the Government of the United States, at a point thereon being the southeastern corner of land called also “Laloifi”, property of the said Government acquired from Taamu, and running along the eastern boundary of said Taamu —Laloifi land bearing 52 degrees 17 minutes, distance 25.5 feet, thence bearing 63 degrees 47 minutes, distance 36 feet, to land “Lelotoa”, property of the said Government; thence following the boundary of said land “Lelotoa”, in a southeasterly direction, bearing 345 degrees, distance 10 feet to said agreed boundary line; thence following said boundary line in a westerly direction, bearing 301 degrees 41 minutes, distance 89 feet, to the point of Starting.
*93The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government in accordance with said Order and Judgment.
GIVEN under my HAND and the SEAL of the Court on this 15th day of December, in the year 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484839/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government in respect of the lands and premises hereinafter described, said lands being required for Public Purposes, AND the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States, for Public Uses, having given due and proper *94notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of the said parties, and did, on the 15th day of December, in the year 1902, A.D., report to this Court, which said Report is now on file, recommending the Government be declared the PROPRIETOR of said lands and premises upon the payment of the sum of $325.00, with interest and costs, IT IS NOW THEREFORE ORDERED AND ADJUDGED as follows; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Lisíate, the sum of $325.00, together with interest at the rate of eight per cent (8%) per annum from the 8th day of January, 1901, to the 18 day of December, 1902, amounting to $45.37, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $54.25, said sums making a total of $424.62, in consideration of the release of all claims and demands of the said respondent to said lands and premises.
2. That in consideration of the payment of the said sum of $424.62, the Government of the United States of America be, and the same is hereby declared, the PROPRIETOR of ALL THAT PIECE or parcel of land situate in Fagatogo, in the United States Naval Station, Tutuila and called or known as part of “Malaloa”, adjoining the western boundary of the property described in Court Grant No. 805, recorded in Vol. 1, Folios 8 & 9 of the Register of Court Grants of the Land Records of the United States Naval Station, Tutuila, and following said western boundary bearing 218 degrees, distance 64 feet; thence running westerly, bearing 133 degrees, distance 118 feet; thence running northerly, bearing 209 degrees 30 minutes, distance 102 feet to high-water *95mark; thence running along high-water mark, bearing 315 degrees 30 minutes, distance 132 feet; thence bearing 131 degrees 48 minutes, distance [sic] feet, to starting point, the said described land being portion of land claimed by one Lutu and condemned for Public Uses by proceedings in the High Court of Tutuila.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government according to said Order and Judgment.
GIVEN under my HAND and the SEAL of the COURT on this 15th day of December, in the year 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484840/ | JUDGMENT
THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above-named Respondent, for the purpose of ascertaining *96the sum to be paid by the said Government in respect of the lands and premises hereinafter described, said lands being required for Public Purposes, AND the PETITIONER GOVERNMENT having since the proceedings were instituted, withdrawn the desire for Public Purposes of certain portions of the land described in the original notice of the Registrar of Titles for the United States Naval Station, Tutuila, AND the said Registrar, under the provisions contained in Ordinance No. 20-1900, to regulate the acquisition of land by the Government of the United States for public uses, having given due and proper notice to the Respondent herein, and proceedings before the said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of parties hereto, did satisfactorily adjust the acceptances and tenders of said parties, and did, on the 15th day of Dec., in the year 1902, A.D., report to this Court, which said report is now on file, recommending the Government be declared the PROPRIETOR of the lands and premises hereinafter described upon payment of the sum of $1,335, with interest and costs, IT IS NOW THEREFORE ORDERED AND ADJUDGED AS FOLLOWS; to wit:—
1. That the Government of the United States of America shall pay to the Respondent, Lutu, the sum of $1,335, together with interest thereon at the rate of eight per cent (8%) per annum, from the 8th day of January, in the year 1901, to the 18th day of December, 1902, amounting to $207.63, and shall pay costs of Attorney, Arbitration, Registrar’s and High Court costs, amounting to $110.50, said sums making a total of $1,653.13, in consideration of the release of all claims and demands of the said Respondent to the said lands and premises.
2. That in consideration of the payment of the said sum of $1,653.13, as aforesaid, the Government of the United States of America be, and the same is hereby *97declared, the PROPRIETOR of all that PIECE or PARCEL of LAND SITUATE IN FAGATOGO, in the UNITED STATES NAVAL STATION, TUTUILA, and called or known as part of “Malaloa”, being bounded towards the north by the Harbor of Pago Pago, at high-water mark; towards the east by the lands of T. Meredith, Afoa and Faagata; towards the south by land of said Lutu, and towards the west by land leased to E. W. Gurr, as all the said boundaries are more particularly described and delineated on the plot now on file in the office of the Registrar of Titles, in respect of said lands.
The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of said Government, according to said Order and Judgment.
GIVEN under my HAND and the SEAL of this COURT on this 15th day of December, in the year 1902, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494069/ | MEMORANDUM OPINION
ROBERT L. JONES, Bankruptcy Judge.
Security Bank, Idalou, Texas, plaintiff, filed this adversary proceeding seeking the Court’s determination, under section 523(a)(2)(A) and (B) of the Bankruptcy Code, that the debt owed to the bank by Monica Rodriguez, defendant and debtor, should be declared nondischargeable. Trial was held on February 22, 2006, and March 22, 2006. The Court has jurisdiction over this matter under 28 U.S.C. § 1334(b); this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). This Memorandum Opinion contains the Court’s findings of fact and conclusions of law. Bankruptcy Rule 7052.
Statement of Facts
On Monday, March 28, 2005, defendant Monica Rodriguez and her husband Jonathan Rodriguez signed a Note, Disclosure and Security Agreement (the “Note and Security Agreement”) representing a $16,000 loan made to them by Security Bank. Pl.Ex. 7. The Note and Security Agreement provides for sixty monthly payments of $333.42 each, with the first payment being due May 12, 2005. To secure the loan, the Rodriguezes granted the bank a security interest in a 2004 Mazda sedan. On the same day, the Rodriguezes also signed a separate document which states as follows:
Received from the Security Bank, Idal-ou, Texas, in trust the following specified documents described herein below, and in consideration therefore, we hereby agree to hold said documents in trust for said bank and as said bank’s property and to deliver over to the said Securi*142ty Bank or it’s [sic] assigns the proceeds of the sale of said documents (or property) described herein below; the delivery herein being temporarily made to us for convenience only without notation or without giving us any title to the documents or the property they represent, except as a trustee and agent for said bank or to receive the proceeds thereof for the account of said bank. The said bank may at any time cancel this trust by taking possession of said documents or the proceeds of such of the same as may then have been sold, wherever, the said documents or the proceeds thereof may be found.
We hereby agree to deliver said documents or to pay the proceeds arising from the sale of property to said bank on or before 3:00 o’clock, on the 12 day of April, 2005.
Pl.Ex. 8. This document, which the bank calls a “trust receipt,” was intended to obligate the Rodriguezes to provide the certificate of title on the Mazda by April 12, 2005. The Rodriguezes actually purchased the Mazda on Friday, March 25, 2005. The purchase was financed with Bank of America. The Rodriguezes used the $16,000 in loan proceeds from Security Bank to pay off Bank of America and thereby effectively refinanced the debt on the Mazda.
The Rodriguezes did not deliver the title to Security Bank by April 12, 2005, as contemplated by the trust receipt. Bank of America released its lien against the Mazda on April 13, 2005. PLEx. 11. On April 22, 2005, Troy Stegemoeller with Security Bank sent a letter to the Rodri-guezes thanking them for making the first payment under the Note and Security Agreement and reminding them that the bank still needed “proper evidence of title on [the] car.” Pl.Ex. 9. Around this same time, the Rodriguezes separated and the Mazda was left with Monica. On May 2, 2005, Troy Stegemoeller, again on behalf of the bank, which had still not received evidence of title, sent a second letter to the Rodriguezes warning them that the debt under the Note and Security Agreement may be declared in default and the maturity accelerated because of their failure to provide the title. Pl.Ex. 10.
Monica Rodriguez filed her chapter 7 case on May 19, 2005. She testified that she actually received the car title a “week or two” prior to her bankruptcy filing. She also testified that upon receipt of the title she called the bank and talked to a “Ms. Torres” who advised her to have the bank listed as lienholder on the title and delivered to the bank. Monica Rodriguez gave the title to her bankruptcy attorney, Jeff Conner. At some point after the bankruptcy filing, both the Mazda and the certificate of title were delivered to the chapter 7 trustee, Floyd Holder.
By letter dated June 9, 2005, from Monica Rodriguez to Troy Stegemoeller, she advised the bank that her husband Jonathan had left her on April 14 and that she could no longer afford the car. Floyd Holder, the trustee, having received the title and noting that it reflected there were no liens against the car, made plans to have the car sold at auction. Prior to the auction, however, the auctioneer contacted Holder to inform him that he had a “hot” buyer who was willing to pay $10,000 on the spot for the Mazda. Holder authorized the sale and the car was sold. Holder did not incur any expense, i.e., a commission, on the sale. He also did not obtain court approval for the sale. Both Monica and Jonathan Rodriguez are reflected on the title as owners of the Mazda. Pl.Ex. 11. Holder has filed a motion to approve the sale nunc pro tunc, to which the bank has objected and which is presently pending before the Court.
*143Discussion
Security Bank contends its debt should be declared nondischargeable under section 523(a)(2)(A) and (B) of the Bankruptcy Code, which states as follows:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is hable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive;
Security Bank bears the burden of proof and must establish each of the required elements of its claim under section 523(a) by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Acosta, 406 F.3d 367 (5th Cir.2005).
Subsection (B) is not implicated as there is no evidence in this case of any “statement in writing ... respecting the debtor’s financial condition.” Security Bank’s claim is based on subsection (A). The Fifth Circuit has recently stated that for a debt to be declared nondischargeable under section 523(a)(2)(A), the creditor must show that (1) the debtor made a representation; (2) the debtor knew the representation was false; (3) the representation was made with the intent to deceive the creditor; (4) the creditor actually and justifiably relied on the representation; and (5) the creditor sustained a loss as a proximate result of its reliance. In re Acosta, 406 F.3d 367, 371 (5th Cir.2005). An intent to deceive may be inferred from a reckless disregard for the truth or the falsity of a statement combined with the sheer magnitude of the resulting misrepresentation. Id. In addition, silence as to material facts can constitute a false representation. Id.
Security Bank contends that Monica Rodriguez represented to the bank that it would have a “first lien on the collateral.” Monica Rodriguez’s failure to deliver the certificate of title to the bank with the bank reflected as lienholder makes her representation false, according to the bank.
The Note and Security Agreement granted Security Bank a security interest in the Mazda. It is questionable whether the so-called trust receipt constitutes a representation by Rodriguez that she would provide the bank with a first lien against the car. What Security Bank really wants is a valid perfected lien against the car. As a practical matter, it strikes the Court as unusual and outside normal procedures for a lender, when advancing for the purchase of a car, to place on its customer the obligation of obtaining the title and having the lender designated as lienholder on the title. Despite this, the Court is satisfied that Monica Rodriguez, by the Note and Security Agreement, the trust receipt, and discussions had with the bank representatives at the time the loan was obtained effectively promised to deliver a good certificate of title to the bank. It is also safe to assume that the bank actually and justifiably relied upon this *144representation and sustained a loss as a result of its reliance. As noted, the chapter 7 trustee has sold the car and, assuming clear title has been or can be delivered to the purchaser, the bank has effectively lost its security interest in the car.
The real issue, however, is whether Monica Rodriguez’s representation was false at the time it was made, March 28, 2005. The funds from the Security Bank loan were indeed used to pay off Bank of America. Bank of America released its lien on April 13, 2005. The only evidence before the Court addressing when Monica Rodriguez received the title is her testimony that she did not receive the title until a “week or two” prior to the bankruptcy filing. She ultimately delivered the title to her attorney. No explanation is provided as to why it was not delivered to the bank. Regardless, the Court cannot attribute any ill-will or deceit on Monica Rodriguez’s part by her simply turning the title over to her bankruptcy attorney. More importantly, the Court cannot conclude that, at the time she signed the Note and Security Agreement and the trust receipt, she had no intention of delivering the certificate of title to the bank. The representation was neither false nor made with intent to deceive at the time it was made. Having not satisfied all elements of its claim of nondis-chargeability under section 523(a)(2)(A), the relief requested by Security Bank will be denied. The Court will prepare an appropriate order. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494070/ | MEMORANDUM AND ORDER RE MOVANT’S “POST-SALE MOTION FOR RELIEF FROM STAY” COMBINED WITH RELATED ORDERS AND NOTICE OF THE ENTRY THEREOF
The instant proceeding before the court arises out of a contested matter styled “Post-Sale Motion for Relief from Stay” filed by the movant, Select Portfolio Servicing, Inc. (“SPS”), a creditor of the above-named chapter 13 debtor, Jerry Lee Love (“Mr.Love”). By virtue of 28 U.S.C. § 157(b)(2)(G), (A) and (0), this is a core proceeding.
The threshold issue before the court is whether Mr. Love’s home (ie., his principal residence) was property of the estate under 11 U.S.C. § 541(a) at the time he commenced this chapter 13 case such that he may cure prepetition economic defaults in the manner allowed under 11 U.S.C. § 1322(b)(5), while also maintaining ongoing contractual home mortgage payments, or whether the prepetition foreclosure sale conducted by the substitute indenture trustee, Manteen, LLC, was completed or finalized prior to the commencement of the chapter 13 case, thereby divesting Mr. Love of his ownership interest in his home and his concomitant inability to cure pre-petition home mortgage defaults.1
Based on consideration of the statements of counsel, stipulated background facts and related legal documents, and based on the chapter 13 case record as a whole, the court renders the following findings of fact and conclusions of law in accordance with Fed. R. BankrP. 7052.
Although the parties have an honest difference of opinion regarding the ultimate judicial outcome of this core proceeding, *218the relevant background facts and judicial history are not in substantial dispute and may be briefly summarized as follows. At all times relevant here Mr. Love was a Tennessee resident. SPS is the servicing agent for JP Morgan Chase Bank, the mortgagee on Mr. Love’s home located at 4392 East French Market Circle, Memphis, Tennessee, which is the subject of the instant motion for relief from the stay under 11 U.S.C. § 362(d)(1) and Fed. R. BankrP. 4001(a). This real property has served as the home of Mr. Love for the past 12 years.
On August 29, 2002, Mr. Love executed a deed of trust and deed of trust note securing payment in the principal sum of $70,400 to SouthStar Funding, LLC., regarding his home. Due to financial distress, Mr. Love subsequently defaulted under the terms of the deed of trust and deed of trust note; and on March 10, 2006, Mr. Love’s account was referred to Hud-nall, Cohn, & Abrams of TN, LLC, to initiate a nonjudicial home mortgage foreclosure sale under applicable Tennessee state law. The foreclosure sale was originally set for April 20, 2006, and acceleration letters were sent to Mr. Love on March 24, 2006, notifying him and any other interested parties of the scheduled nonjudicial foreclosure sale date. On March 27, 2006, an appointment of substitute trustee appointing Hudnall, Cohn, & Abrams of TN, LLC, as substitute trustee, was recorded in the records of Shelby County, Tennessee. On April 20, 2006, the nonjudicial foreclosure sale was adjourned to May 22, 2006, by oral announcement of the substitute trustee. A new appointment of substitute trustee was recorded in the public records of Shelby County on April 25, 2006, to reflect the name change of the substitute trustee to Manteen, LLC. The nonjudicial foreclosure sale was orally cried out on May 22, 2006, and the home was sold back via a permissible credit bid to JP Morgan Chase Bank, successor in interest to Bank One, National Association, as trustee, on behalf of the holders of the ACE Securities Corp. Home Equity Loan Trust, Series 2002-HE3 Asset-Backed Pass-Through Certificates (“JP Morgan Chase”) for $62,340.73.
On the day the nonjudicial foreclosure sale was orally cried out, a written memorandum of the sale was signed only by the attorney crying out the sale. The parties have stipulated that this document is the sole prepetition record of the nonjudicial foreclosure sale and the resulting credit bid that was made prior to the commencement of Mr. Love’s chapter 13 ease. This document contained a detailed description of the property, a handwritten notation of the amount of the highest bid by JP Morgan Chase, and the signature of the attorney crying out the sale. No other signatures were affixed to this document. This document also stated that “this sale is subject to (1) confirmation that the sale is not prohibited under the U.S. Bankruptcy Code....”
On May 24, 2006, Mr. Love filed the instant chapter 13 case. George W. Stevenson, Esquire is the Standing Chapter 13 Trustee. On May 25, 2006, without actual notice or knowledge of Mr. Love’s chapter 13 case, the substitute trustee’s deed arising out of the nonjudicial foreclosure sale was executed by Mr. Richard B. Maner of Manteen, LLC., after the filing of this chapter 13 case.
Mr. Love’s OBF Schedule I reflects that Mr. Love has been employed at Huey’s Restaurant as a chef for 20 years; that his gross income is $1,704 per month; and that he proposes to have $630 deducted from each bi-weekly paycheck and paid by his highly regarded local employer/corporate citizen (Huey’s) to the chapter 13 trustee, who would act as disbursing agent *219for the funds paid into the plan. Mr. Love’s proposed chapter 13 plan disbursements include the ongoing contractual home mortgage payment of $637 per month and also allows for the curing of the prepetition arrearage claim to be paid at the rate of $270 per month.
Upon the commencement of the chapter 13 case, an estate was created by operation of law.2 This estate consists of all property of the debtor, no matter where it is located or by whom it is possessed or held, and whether the property is real or personal. Property of the section 541(a) estate is a legally broad concept3 and includes “all legal or equitable interests of the debtor in property as of the commencement of the case.”4 In addition, the filing of the chapter 13 petition triggers the section 362(a) automatic stay of the Bankruptcy Code (“Code”), which ordinarily halts any and all actions that pertains to property of the estate, as it is defined above.5
The automatic stay created by section 362(a) ordinarily stops all attempts by creditors to possess, collect, recover, or create and perfect a lien in property of the estate.6 Also, it has been said that although federal bankruptcy law determines the outer boundary of what may constitute property of the estate, it is state law that determines the “nature of a debtor’s interest” in the property.7 It is a long standing precedent that “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law.”8 For reasons discussed below, if in the instant case the prepetition foreclosure sale is determined to be completed or finalized under applicable nonbankruptcy law, as defined under Tennessee state law, prior to the commencement of Mr. Love’s chapter 13 case, then the property, Mr. Love’s home, did not become property of the estate and the prepetition default may not be cured under section 1322(b)(5) by virtue of the provisions of section 1322(c)(1) of the Code, infra9
Furthermore, in the instant case if the nonjudicial foreclosure sale was completed or finalized prior to the commencement of the chapter 13 case, as defined by applicable Tennessee state law, Mr. Love will not be able to exercise the statutory option available under section 1322(b)(5) of the Code to cure the prepetition mortgage ar-rearage and remain in possession of the home. It is noted that sections 1322(b)(3) and (5) of the Code ordinarily permit a chapter 13 debtor to cure prepetition defaults in connection with home mortgage loans under chapter 13 plans.
In In re Glenn,10 decided in 1985 prior to the enactment of section 1322(c)(1) of the Code, the Sixth Circuit Court of Appeals held that the chapter 13 debtor’s right to cure home mortgage default loans continues at least until the time of the *220foreclosure sale.11 The District Court for the Eastern District of Michigan analyzed Glenn succinctly in stating that:
In deciding Glenn, the Sixth Circuit was deciding when a federally created right to cure under 11 U.S.C. § 1322(b) was cut off, not when a particular state’s foreclosure sale was deemed to be final.12
Congress further addressed this issue when, in 1994, 11 U.S.C. § 1322(c)(1) was passed and enacted.13 This section “safeguards a debtor’s rights in a chapter 13 case by allowing the debtor to cure home mortgage defaults at least through completion of a foreclosure sale under applicable nonbankruptcy law.”14 Section 1322(c) of the Code is a permissive rather than a restrictive provision.15 Specifically, section 1322(c)(1) provides:
a default with respect to, or that gave rise to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; (emphasis added).
Subsection (c) of section 1322 of the Code was added by section 301 of the Bankruptcy Reform Act of 1994, Pub.L. 103-394, and became effective on October 22, 1994. The relevant legislative history underlying section 1322(c)(1) provides as follows:
Section 1322(b)(3) and (5) of the Bankruptcy Code permit a debtor to cure defaults in connection with a chapter 13 plan, including defaults on a home mortgage loan. Until the Third Circuit’s decision in Matter of Roach, 824 F.2d 1370 (3d Cir.1987), all of the Federal Circuit Courts of Appeal had held that such right continues at least up until the time of the foreclosure sale. See In re Glenn, 760 F.2d 1428 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); Matter of Clark, 738 F.2d 869 (7th Cir.1984), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985). The Roach case, however, held that the debtor’s right to cure was extinguished at the time of the foreclosure sale. This decision is in conflict with the fundamental bankruptcy principle allowing the debtor a fresh start through bankruptcy.
This section of the bill safeguards a debtor’s rights in a chapter 13 case by allowing the debtor to cure home mortgage defaults at least through completion of a foreclosure sale under applicable nonbankruptcy law. How*221ever, if the State provides the debtor more extensive “cure” rights (through, for example, some later redemption period), the debtor would continue to enjoy such rights in bankruptcy.... H.R.Rep. No. 103-835, at 52 (1994), U.S.Code Cong. & Admin. News 1994, pp. 3340, 3361.
More recently, in In re Cain,16 the Sixth Circuit, applying applicable nonbankruptcy law fie., Michigan state law) under the circumstances existing there, held that the debtor’s home mortgage default could not be cured through the filing of a chapter 13 case and plan after the foreclosure sale, but before expiration of the redemption period under applicable Michigan state law. In Cain, the debtors filed for bankruptcy 12 days after the foreclosure sale had been cried out and the bank with the winning bid had already acquired the property subject only to the debtors’ state law statutory right of redemption fie., the foreclosure sale under Michigan law was complete).
The Sixth Circuit stated in Cain, 423 F.3d at pp. 619-620, in relevant part, as follows:
Under the current language of the Bankruptcy Code, a Chapter 13 plan may provide for the curing of “a default with respect to ... a lien on the debtor’s principal residence ... until such residence is sold at a foreclosure sale that is conducted in accordance ivith applicable non-bankruptcy latv.” 11 U.S.C. § 1322(c)(1). (Emphasis supplied.) The question presented here is whether a foreclosure sale is not a foreclosure sale for purposes of § 1322(c)(1) until the expiration of any post-sale redemption period.
The meaning of § 1322(c)(1), which took effect in 1994, is a question on which the courts have “divided into two main schools of thought.” In re Crawford, 232 B.R. 92, 95 (Bankr.N.D.Ohio 1999).
“Generally, one line of cases holds that the new statutory language is unambiguous and cuts off the right to cure at the foreclosure auction. The other line of cases finds the language ambiguous, looks to the legislative history for guidance, and concludes that the debtor’s right to cure extends beyond the auction date to the point in time where the sale is completed under state law.” Id. at 95-96.
We agree with the courts that have held § 1322(c)(1) to be unambiguous. In our view, “a foreclosure sale” is a single, discrete event — typically an auction at which the highest bidder purchases the property. See Crawford, 232 B.R. at 96; In re McCarn, 218 B.R. 154, 160 (10th Cir. BAP 1998). But see In re Beeman, 235 B.R. 519, 525 (Bankr.D.N.H.1999) (holding that a foreclosure sale occurs “upon the completion of a process, and not upon the occurrence of a single event such as a foreclosure auction”).
* * *
We are not persuaded that the phrase “conducted in accordance with applicable non-bankruptcy law” expands the meaning of “foreclosure sale” to encompass a state-law redemption period. As we see it, this language does not more than require that the sale adhere to procedures mandated by state law. See Crawford, 232 B.R. at 96. It may be that the language “indicates that Congress intended state law to be determinative” of what constitutes a “foreclosure sale, ” Beeman, *222235 B.R. at 525, but Michigan law plainly conceives of a foreclosure sale as a discrete event that occurs at a specified time and place. See Mich. Comp. Laws §§ 600.3216, 600.3220. It is true that the deed acquired by a purchaser at a Michigan foreclosure sale does not become operative until the running of the redemption period, see §§ 600.3232 and 600.3236, but a delay in the time when the deed becomes fully effective simply does not equate to a delay in the time of the sale, (emphasis added).17
The language emphasized above in Cain is strongly relied upon by this court in holding that under applicable Tennessee state law, “the fall of the auctioneer hammer is NOT alone sufficient to satisfy the Statute of Frauds requirement”.18 It has been well established and settled for many years in Tennessee that the statute of frauds19 must be satisfied before a foreclosure sale is deemed final and a binding contract exists.20 For example, in In re Williams,21 a post-Glenn decision, the court stated as follows:
In In re Johnson, 213 B.R. 134 (Bankr.W.D.Tenn.1997), modified after reh’g., 215 B.R. 988 (Bankr.W.D.Tenn. 1997), the court analyzed the finality of a foreclosure sale in Tennessee. The court explained that “[f]or the last 175 years, Tennessee has consistently required the exchange of consideration and the satisfaction of the statute of frauds before a foreclosure sale is deemed final.” Johnson 213 B.R. at 137. Under Tennessee law, “the fall of the auctioneer’s hammer is not alone sufficient to satisfy the statute of frauds requirement.” Id. (quoting Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 662 (1947)). Satisfaction of the statute of frauds, as is necessary under Tenn. Code Ann. § 29-2-101 (Supp.1999), requires a writing which evidences “ ‘an existing and binding contract.’ ” Id. *223at 136 (quoting Black, 202 S.W.2d at 662). When the writing take the form of a deed, the “deed must be executed before the statute may be deemed satisfied.” Id. (citing Black, 202 S.W.2d at 662).
Further, the Williams court held under the circumstances that the preparation and execution of the indenture trustee’s deed satisfies the Tennessee statute of frauds.22 However, in Williams, the deed was prepared and executed prior to the commencement of the chapter 13 case. Accordingly, the debtor’s home was not property of the section 541(a) estate and the economic default on the debtor’s home mortgage could not be cured as a permissive plan provision under section 1322(b)(5).
It is important to look to the recent decision of the Tennessee Supreme Court for further guidance as to the completion of an “existing and binding contract” under the Tennessee statute of frauds. In Blair v. Brownson,23 the Tennessee Supreme Court held that in order to satisfy the statute of frauds, a writing must be signed by the party to be charged and that the party to be charged is the party against whom enforcement of the contract is sought.24 The memorandum of sale here could not rise to the level of a binding contract for the sale of real property for this reason; no one other than the attorney who orally cried out the sale signed the document.25
This court finds under a totality of the particular facts and circumstances and applicable determinative nonbankruptcy law (i.e., Tennessee state law) that the nonjudicial foreclosure sale here was not completed or finalized at the time of the filing of Mr. Love’s chapter 13 case. Accordingly, Mr. Love’s home was property of the section 541(a) estate at the time of the commencement of his chapter 13 case such that the automatic stay was triggered and that he may seek to cure prepetition economic defaults and provide payment of SPS’s prepetition arrearage claim in the manner permitted under section 1322(b)(5) while also maintaining ongoing contractual home mortgage payments.
It is undisputed that SPS’s credit bid satisfied the “exchange of consideration” requirement under the Tennessee statute of frauds by virtue of its credit bid and that the prepetition nonjudicial foreclosure sale was orally cried out in accordance with applicable Tennessee law. This court, nonetheless, finds that the applicable statute of frauds under nonbankruptcy Tennessee state law was not complied with here. As such, under Tennessee law, the nonjudicial foreclosure sale under these circumstances was not “complete” or “finalized.” No prepetition memorandum or binding foreclosure sale contract or deed was created or executed here until after the commencement of Mr. Love’s chapter 13 case when the substitute trustee deed *224was executed by Richard B. Maner of Manteen, LLC. The prepetition writing presented by SPS, the memorandum of sale, does not on its face satisfy the Tennessee statute of frauds or create a binding contract in writing between the buyer and the seller, regardless if in the instant case they are the same entity, because neither party’s signature was properly affixed thereto.
It is also important to note that the deed of trust executed by Mr. Love on August 29, 2002, specifically contemplates that the “Trustee shall deliver to the purchaser Trustee’s deed conveying the Property ...” and does not contractually contemplate any other writing manifesting the transfer of the property.26 Simply stated, the Tennessee statute of frauds, Tenn. Code Ann. 29-2-101, has not been complied with in this case as no timely writing evidencing “an existing and binding contract” was executed until after the commencement of Mr. Love’s chapter 13 case.
Having found that Mr. Love’s home is property of the section 541(a) estate, that the automatic stay was triggered, and that the prepetition economic default here may be subject to a permissible curing under section 1322(b)(5), the court will schedule a future hearing that will be the subject of a separate order and notice of hearing to determine whether Mr. Love’s proposed chapter 13 plan provisions meet all the statutory requirements for confirmation under section 1325(a) and whether SPS’s objection to confirmation of Mr. Love’s proposed plan should be granted or denied — that is, whether Mr. Love can permissibly cure the prepetition economic defaults on his home mortgage loan and otherwise satisfy all the requirements under section 1325(a).
Based on the foregoing,
IT IS SO ORDERED AND NOTICE IS HEREBY GIVEN.
. See, e.g., In re Williams, 247 B.R. 449, 450-51 (Bankr.E.D.Tenn.2000); see also In re Johnson, 213 B.R. 134 (Bankr.W.D.Tenn. 1997), modified after reh’g, 215 B.R. 988 (Bankr.W.D.Tenn.1997); cf. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 662 (1947); Blair v. Brownson, 197 S.W.3d 681 (Tenn. 2006).
. 11 U.S.C. § 541(a) (2005).
. U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983).
. 11 U.S.C. § 541(a)(1) (2005).
. 11 U.S.C. § 362(a) (2005).
. See id.
. In re Howard’s Appliance Corp., 874 F.2d 88, 93 (2d Cir.1989).
. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
. In re Williams, 247 B.R. 449, 451 (Bankr.E.D.Tenn.2000); In re Johnson, 213 B.R. 134 (Bankr.W.D.Tenn. 1997), modified after reh’g, 215 B.R. 988 (Bankr.Tenn.1997).
. 760 F.2d 1428 (6th Cir.1985), cert. den. 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985).
. See also In re Ferrell, 175 B.R. 222 (Bankr.W.D.Tenn.1994), rev’d. 179 B.R. 530 (W.D.Tenn.1994) decided prior to the enactment of section 1322(c)(1); see also Andrew Bernstein, Tennessee Homeowner’s Post Foreclosure Auction Right to Cure Under 11 U.S.C. §§ 1322(b) and (c), 27 U. Mem. L.Rev. 453 (Winter 1997).
. In re Agee, 330 B.R. 561, 567 (E.D.Mich. 2005).
. 11 U.S.C. § 1322(c)(1) provides as follows:
(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law—
(1) a default with respect to, or that gave rise to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; and ...
(emphasis added)
. H.R.Rep. No. 103-835, at 52 (1994) (emphasis added). See also H140 Cong. Rec. H10,769 (daily ed. Oct 4, 1994) (remarks of Rep. Jack Brooks).
. 8 Collier on Bankruptcy ¶ 1322.15, p. 1322-61 (15th ed. rev.).
. 423 F.3d 617 (6th Cir.2005).
. It is also of note that Cain relied heavily on the language of Crawford which examined a judicial foreclosure auction carried out under Ohio state law, and that in the instant case the court is examining a nonjudicial foreclosure sale carried out under Tennessee state law. See In re Crawford, 232 B.R. 92 (Bankr.N.D.Ohio.1999).
. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 662 (1947)(overruled on other grounds not pertinent here by Blair v. Brownson, 197 S.W.3d 681 (2006)) (emphasis added). See also In re Johnson, 213 B.R. 134 (Bankr.W.D.Tenn.), modified after reh’g, 215 B.R. 988 (Bankr.W.D.Tenn.1997).
. Tenn.Code Ann. 29-2-101 provides in relevant part:
Writing required for action.—
(a) No action shall be brought:
(1) To charge any executor or administrator upon any special promise to answer any debtor damages out of such person’s own estate.
(2) To charge the defendant upon any special promise to answer for the debtor, default, or miscarriage of another person.
(3) To charge any person upon any agreement made upon consideration of marriage;
(4) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one (1) year; or
(5) Upon any agreement or contract which is not to be performed within the space of one (1) year from the making of the agreement or contract;
unless the promise or agreement, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person lawfully authorized by such party.
. See In re Johnson, 213 B.R. 134 (Bankr.W.D.Tenn.), modified after reh’g, 215 B.R. 988 (Bankr.W.D.Tenn.1997); In re Bland, 252 B.R. 133 (Bankr.W.D.Tenn.2000).
. 247 B.R. 449, 451 (Bankr.W.D.Tenn.2000).
. Id., at 451. It is emphasized here that compliance with the Tennessee statute of frauds is not a purposeless statutory formality. Compare, e.g., In re Biggs, 377 F.3d 515 (6th Cir.2004).
. 197 S.W.3d 681 (2006).
. Id., at 685.
. If in this case, the proceeding were not in front of the bankruptcy court but rather a Tennessee state court on an action of the seller (e.g., a bank/mortgagee) to enforce specific performance by the buyer (or even the reverse), this court is confident that under Tennessee state law, as it stands in light of Blair, the state court would find that the action could not stand as the action was brought prior to the execution of the trustee's deed and neither party had signed the document purporting to exhibit the sale of the property. No specific performance could be compelled here.
. Letter filed by Joel Giddens (Deed of Trust) at 17, SPS v. Love, No. 06-23746 (W.D.Tenn. Oct. 2, 2006) (emphasis added) | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494071/ | *256MEMORANDUM DECISION REGARDING UNITED STATES TRUSTEE’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT AND DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT
W. RICHARD LEE, Bankruptcy Judge.
This adversary proceeding posits the question, “What happens to an objection to chapter 7 discharge after the case is converted to chapter 13?” The United States Trustee (“UST”) filed this adversary proceeding to deny the Debtor’s discharge, or dismiss the case, based on allegations arising under 11 U.S.C. §§ 707(b) and 727(a).1 The Debtor failed to file a responsive pleading to the UST’s complaint, and consequently his default was entered. Before the court could enter the default judgment,2 the Debtor converted his case from chapter 7 to chapter 13. Presently before the court is the UST’s application for entry of a default judgment (the “Application”) and the Debtor’s motion to vacate the entry of default (the “Motion”). For the reasons set forth below, both the UST’s Application and the Debtor’s Motion will be DENIED. Because the discharge objection is no longer justiciable, the adversary proceeding will be stayed so long as the Debtor remains in chapter 13.
This Memorandum contains findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52 (made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7052). The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A).
Background.
The Debtor filed a petition for chapter 7 relief on October 6, 2005. The section 341 meeting of creditors was concluded in November 2005. Later that month, the UST received information from the chapter 7 trustee suggesting that the Debtor’s schedules did not accurately report the Debtor’s income and expenses, and that he failed to disclose a substantial loan from his retirement account and the purchase of an automobile. In January 2006, the UST requested documents and additional information from the Debtor. The Debtor responded, requesting additional time and consenting to delay entry of the discharge order. The UST requested an extension of time to object to discharge or move to dismiss. The bar date was extended by agreement of the parties to March 17, 2006.
On March 16, 2006, the UST commenced this adversary proceeding with a complaint objecting to discharge under §§ 727(a)(3), 727(a)(4)(a) and 727(a)(5)(the “Complaint”). Alternatively, the UST sought to have the case dismissed under § 707(b) on the grounds that a chapter 7 discharge would be a “substantial abuse.” The Complaint, Summons and Notice of Status Conference *257were served on the Debtor and his counsel on March 21. The Debtor failed to file a responsive pleading.3
On March 30, 2006, the Debtor responded to the UST’s request for documents by conceding that he did not qualify for a discharge, and offering to have the case dismissed. Specifically, Debtor’s counsel wrote:
Mr. Cleveland contacted me on Monday and at my request provided me with his most recent pay stubs and his 1099 for 2005.
Based upon this evidence he does not qualify for a discharge.
I will sign a stipulation for the case to be dismissed if that is acceptable.
The UST filed an ex parte application for entry of default, which was entered on May 16, 2006. On June 7, the UST filed and served a notice of hearing and this Application for entry of a judgment on the § 727 claims, supported by declarations and exhibits. The Debtor did not file a response to the Application. Instead, four days before the hearing, the Debtor moved to convert his case to chapter 13. An order converting the case was entered on July 5. The Debtor’s counsel appeared at the hearing on July 7 and opposed the entry of a judgment solely on the grounds that the case had been converted to chapter 13. After oral argument, the court took the matter under submission.
On July 11, 2006, before the court ruled on the UST’s Application, the Debtor filed the present Motion to set aside the entry of default.4 The Motion was based on the assertion by Debtor’s counsel that the Debtor has meritorious defenses to the Complaint and that he had proposed a chapter 13 plan to pay creditors. The Motion did not include a proposed responsive pleading, or anything actually signed by the Debtor. The UST opposed the Motion. After oral argument on August 9, the court also took the Debtor’s Motion under submission.
On September 5, 2006, the Debtor successfully confirmed his chapter 13 plan. It provides for payments of $575 per month for 36 months with a 50% distribution to unsecured creditors. Neither the UST, the chapter 13 trustee, nor any creditor objected to confirmation of the plan.
Analysis.
The UST’s Objection to Chapter 7 Discharge is Not Justiciable in Chapter 13.
The UST seeks entry of a judgment denying the Debtor’s chapter 7 discharge under § 727(a), notwithstanding the fact that the Debtor is now in chapter 13. The UST argues based on the holding in Searles v. Riley (In re Searles), 317 B.R. 368 (9th Cir.BAP2004) that an adversary proceeding under § 727 remains viable even though the underlying chapter 7 case is converted to chapter 13. However, in Searles, the debtor was unable to confirm a chapter 13 plan and the court deferred adjudication of the trustee’s objection to discharge until the case was reconverted to chapter 7.5 Discussing the concepts of abatement and mootness, *258the court observed that the conversion to chapter 13 abated the need to rule on the trustee’s § 727 claims, but it did not render the claims as moot based on the “possibility of reconversion to chapter 7.”
Since a case converted from chapter 7 to chapter 13 cannot be dismissed as of right under § 1307(b), every such conversion carries with it the possibility of reconversion to chapter 7....
One implication of the fact that reconversion to chapter 7 cannot be ruled out is that pending litigation addressed to issues specific to chapter 7 may recede into the background while the case is in chapter 13 but may later re-emerge. Although there may be no reason to resolve the chapter 7 discharge question during the pendency of the ease in chapter 13, such dormancy does not equate with mootness....
Searles, 317 B.R. at 374 (citations omitted).
The Searles court also noted that a pending meritorious objection to chapter 7 discharge “may serve the useful purpose of increasing a debtor’s incentives to confirm and complete performance of a chapter 13 plan.” Id. The Searles decision has only limited application here because the case was a chapter 7 when the trial court adjudicated the trustee’s objection to discharge. The Searles decision stopped short of instructing trial courts what to do with a chapter 7 discharge complaint while the case is still in chapter 13.
The court cannot rule on the UST’s Application at this time because it is not justiciable; i.e., there is no case or controversy. The voluntary conversion to chapter 13 terminated the application of chapter 7 before the hearing on the UST’s Application. The Complaint arises under §§ 707 and 727 of the Bankruptcy Code, which are found in subchapters I and II of chapter 7. Under § 103(b), “Subchapters I and II of chapter 7 of this title apply only in a case under such chapter.” By the plain meaning of the Bankruptcy Code, §§ 707 & 727 do not apply so long as the case is in chapter 13. A ruling under those Code sections is unnecessary and would be inappropriate at this time.
The “case or controversy” doctrine, which limits the jurisdiction of federal courts, was recently summarized by the Ninth Circuit in Earth Island Institute v. Ruthenbeck, 459 F.3d 954, 961-62 (9th Cir. 2006):
“The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to ‘cases’ and ‘controversies.’” Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Courts must refrain from deciding abstract or hypothetical controversies and from rendering impermissible advisory opinions with respect to such controversies. See id. at 96, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. “[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (internal quotation marks omitted). An advisory opinion results if the court resolves a question of law that is not presented by the facts of the case. See, e.g., In re Michaelson, 511 F.2d 882, 893 (9th Cir. 1975). (“[I]t would be constitutionally improper for us to reach this question *259since the issue lacks the necessary facts to make it concrete.”).
Here, the UST is essentially asking the court to issue an advisory opinion because the question of a chapter 7 discharge has no meaning so long as the Debtor is in chapter 13. The court is being asked to make a ruling based on a hypothetical set of facts; i.e., “Would the Debtor be entitled to a discharge if he were in chapter 7?” The entry of a judgment against the Debtor cannot affect the rights of the Debtor so long as he remains in chapter 13. This is not to say that the facts alleged in the Complaint would not have been relevant to the Debtor’s good faith and to confirmation of his chapter 13 plan.6 § 1325(a)(3). See In re Warren, 89 B.R. 87, 93-94 (9th Cir. BAP 1988); In re Padilla, 213 B.R. 349, 352-53 (9th Cir. BAP 1997). However, as noted above, the Debtor has now confirmed a chapter 13 plan without any objection There is nothing in the record to suggest that the Debt- or is not performing under his plan and the court must presume that he will eventually receive a discharge under § 1328.
The Debtor Has Not Shown “Good Cause” to Set Aside the Entry of Default.
The Debtor asks the court to vacate the entry of default. The default order was entered before the case was converted to chapter 13, so it was not affected by the justiciability problem discussed above. Moreover, the conversion does not preclude the court from ruling on the Debtor’s Motion; the ruling is appropriate to clarify the status of the adversary proceeding.
Federal Rule of Civil Procedure 55 (made applicable to this adversary proceeding by Fed.R.Bankr.P. 7055) provides that a default may be entered against a party against whom a judgment for affirmative relief is sought. Rule 55(c) allows a court to set aside an entry of default for “good cause shown.” The “good cause” analysis under Rule 55(c) considers three factors:
(1) whether the defendant engaged in culpable conduct that led to the default;
(2) whether setting it aside would prejudice the adversary; and
(3) whether defendant has presented a meritorious defense.
Franchise Holding II, LLC v. Huntington Restaurants Group, Inc. 375 F.3d 922, 925-26 (9th Cir.2004) (citation omitted).
The above factors are disjunctive, meaning that the trial court may decline to vacate the default based on any one of the three factors. Id. at 926 (citation omitted). The defendant bears the burden of showing that any of the three factors favor setting aside the default. Id. (citation omitted).
First, the Debtor’s failure to respond to the UST’s request for documents, the Debtor’s failure to answer the UST’s Complaint, and the Debtor’s election to convert this case to chapter 13 instead of responding to the UST’s Application for judgment, all demonstrate that the default was a willful choice by the Debtor. Although the Debtor’s election to convert to chapter 13 is not, by itself, a “culpable act,” it was done after a lengthy delay and to avoid entry of an adverse judgment. It *260also shows that the Debtor did not intend to defend the Complaint on the merits, thereby validating the default. It is not clear why the Debtor now wants the default vacated, since it has no meaning in chapter 13, except to suggest that the Debtor wants to preserve a “second chance” to defend the adversary proceeding should his chapter 13 prove unsuccessful.
Second, the court is persuaded that the UST would be prejudiced if the default were set aside. The UST is vested with the responsibility to oversee the administration of bankruptcy cases. 28 U.S.C. § 586(a)(3). The UST has limited resources, yet she devoted substantial time and effort in trying to work with the Debt- or to avoid litigation in the first place. The Debtor could have converted his case to chapter 13 as early as March 2006, when his attorney acknowledged that there was a potential problem with the Debtor’s ability to receive a chapter Y discharge. Yet the case remained in chapter 7 for another three months. The delay forced the UST to invest the time and prepare the pleadings necessary to move this adversary proceeding forward. The Debtor had numerous opportunities to respond to the UST and to avoid the unnecessary expenditure of resources.
Third, the Debtor has failed to present a meritorious defense to the UST’s objection. The Debtor filed nothing in response to the UST’s Application to show that he has any defense. The Debtor’s counsel filed a declaration regarding the Debtor’s income in support of the Motion, and denying that the Debtor made improper statements on his schedules. The UST objected to the testimony of the Debtor’s counsel on “hearsay” grounds. The court agrees and hereby sustains the UST’s evidentiary objection. The attorney’s declaration of facts that could only have come from the Debtor is either hearsay or speculation. In addition, the Debtor’s Motion fails altogether to address the allegations in the Complaint relating to the omission of material information from the Debtor’s schedules. The court is not persuaded that the Debtor has shown “good cause” to set aside the entry of default.
The Adversary Proceeding Should be Stayed While the Debtor Remains in Chapter 13.
The circumstances presented here compel the court to order a stay of the adversary proceeding. “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879, 118 S.Ct. 1761, 140 L.Ed.2d 1070 n. 6 (1998) (citation omitted). “A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir.1979).
As discussed above, the court cannot rule on the UST’s Application so long as the case remains in chapter 13. Dismissal of the adversary proceeding is not the fairest course of action because that would essentially nullify much of the UST’s efforts up this point. This adversary proceeding is not moot because the case could be reconverted to chapter 7 should the Debtor fail to complete his plan. Searles, 317 B.R. at 374. Multiple “wait and see” status conferences would be an administrative burden on the court and an unfair burden and expense to the litigants. The Debtor is entitled to the presumption that he will successfully complete his chapter *26113 plan, and receive his chapter 13 discharge. Until then, the UST retains her right to move for entry of a judgment should the chapter 13 prove unsuccessful. In the interest of fairness to the litigants and judicial economy, the adversary proceeding must be stayed until and unless the case is reconverted to chapter 7.
Conclusion.
Based on the foregoing, the UST’s Application for Entry of Default Judgment will be denied without prejudice. The Debtor’s Motion to Set Aside Default will also be denied. The adversary proceeding will be stayed. For administrative purposes, the adversary proceeding will be closed untü and unless the case is reconverted to chapter 7. In that event, the adversary proceeding may be reopened, and the stay may be modified, on application of either party on 10 days’ notice.
. Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036, as enacted and promulgated prior to October 17, 2005, the effective date of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8, Apr. 20, 2005, 119 Stat. 23.
. The bankruptcy courts of this District permit the plaintiff in an adversary proceeding to apply for the entry of default by ex parte application upon a showing that the summons and complaint were properly served and that no responsive pleading has been filed. The default order specifies a procedure for entry of the judgment, either by a noticed hearing with evidence, or in certain circumstances, the judgment may be entered upon ex parte application. Here, the default order required the UST to set the matter for a noticed hearing with supporting evidence.
. The answer was due 30 days after the summons issued.
. The Debtor's Motion was titled "Motion to Set Aside Default Judgment," but upon inquiry by the court, the Debtor’s counsel indicated that his Motion was intended to set aside entry of the default, not a default judgment, as no judgment has yet been entered.
.The trial court in Searles did bifurcate and proceed with trial on a disputed issue involving property of the estate. Resolution of that issue was germane to the court's decision to deny confirmation of the chapter 13 plan.
. The UST argues that the Debtor’s conversion to chapter 13 is a mere “delaying tactic,” rather than a sincere effort to reorganize and pay his debts. This argument is not supported by any evidence, and it is belied by the Debtor’s chapter 13 plan which provides a 50% distribution to general unsecured creditors. The UST did not object to conversion or to plan confirmation. Moreover, the Debtor’s motive for converting to chapter 13 is irrelevant to the "case or controversy” issue before the court. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484843/ | THIS CAUSE having been commenced at the instance of the Government of the United States of America against the above named Respondent, for the purpose of ascertaining the sum to be paid by the said Government in respect of the interest of said Respondent in the leasehold messuage situate in Fagatogo in the United States Naval Station, Tutuila, called “TAFATAFA”, the fee simple of said land having been acquired by the Government on the 23rd day of December, 1902, from one Mailo, under condemnation proceedings then had in this Court; and the Registrar of Titles, for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance No. 20, 1900, to regulate the acquisition of land by the Government for public uses, having given due and proper notice to the Respondent herein, and proceeding before said Registrar having been regularly taken in the premises, *103whereupon the parties hereto did mutually agree upon the consideration hereinafter stated to be paid by the said Government, and the Registrar did, on the 28th day of May, 1903, report to this Court, which said Report is now on file, recommending the Government be declared the Proprietor of said leasehold messuage, together with all buildings and improvements now standing and being thereon upon payment of the sum of Two Hundred and Five Dollars ($205.00) U.S. Gold Coin, and costs, and upon the condition that the beneficiaries of said Estate shall be permitted to remain on the said land for six (6) months after the first day of June, 1903. It is now therefore ordered and adjudged as follows: to wit:—
1. That the Government of the United States of America shall pay to the Respondent Estate the sum of Two Hundred and Five Dollars ($205.00), and shall also pay Attorney costs Ten Dollars and Fifty Cents ($10.50), Registrar’s fees Fifteen Dollars ($15.00), High Court costs Twelve Dollars and Fifty Cents ($12.50), Recording charges Seven Dollars and Fifty Cents ($7.50), said sums making a total of Two Hundred and Fifty Dollars and Fifty Cents ($250.50).
2. That in consideration of the payment of the said sum of Two Hundred and Fifty Dollars and Fifty Cents ($250.50) as aforesaid, the Government of the United States of America be and the same is hereby declared the Proprietor of all that the interest of the Estate of John Ryan, deceased, for the residue of the term therein granted in the leasehold messuage situate in Fagatogo, in the United States Naval Station, Tutuila, said lease being recorded in Volume 1, folios 7 to 10 of the Register of Native Leases of the Land Records of the United States Naval Station, Tutuila (the fee simple of the land therein described having been acquired by the Government from the lessor therein on the 23rd day of December, *1041902, subject nevertheless to the terms of said lease), together with all buildings and improvements now standing and being thereon.
3. The beneficiaries in said Estate of J. Ryan, deceased, shall be entitled to remain on said land until the 1st day of December, 1903.
4. The Registrar of Titles is hereby directed to draw up a surrender of said lease in favor of the Government.
GIVEN under the hand and seal of the Court on this 30th day of June, 1903. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484844/ | E. W. GURR, Judge
DECREE
THIS CAUSE having been regularly called and tried by the Court, and the findings of fact and conclusions of law and the decision thereon in writing having been duly rendered by the Court, which are now on file in this cause, wherein Judgment was awarded in favor of Sunui Groves, the Plaintiff, against all of the Defendants, on motion of Sunui Groves, the Plaintiff;
*105IT IS NOW, THEREFORE, HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiff have Judgment as prayed for in the particulars of claim against the Defendants, and each and all of them; that all adverse claims of the Defendants, and each of them, and all persons claiming or to claim said premises, or any part thereof, through or under said Defendants, or either of them, are hereby adjudged and decreed to be invalid and groundless; and that the Plaintiff and her children be and the same are hereby declared and adjudged to be the beneficial owners of the land hereinafter described to be vested in a trustee for the use and benefit of the said Plaintiff and her children, and that the title to said land is adjudged to be quieted against all claims, demands, or pretensions of the Defendants or either of them, who are hereby perpetually estopped from setting up any claims thereto, or any part thereof. Said premises are bounded and described as follows:— SITUATE, LYING AND BEING ON THE NORTH SHORE OF PAGO PAGO HARBOR, AND CALLED OR KNOWN AS “SATALA”. STARTING AT A PEG ON THE NORTHWESTERN CORNER OF LAND OF H. J. MOORS, DESCRIBED IN COURT GRANT NO. 412 of SAMOAN SUPREME COURT GRANTS, AND RECORDED IN VOLUME 1, FOLIOS 116, 117 & 118 OF THE REGISTER OF COURT GRANTS OF THE UNITED STATES NAVAL STATION, TUTUILA, AND FOLLOWING THE WESTERN BOUNDARY OF SAID LAND, BEARING 345 degrees 15 minutes, and REACHING TO THE MAIN MOUNTAIN RIDGE or TUASIVI; STARTING for the NORTHERN BOUNDARY AT SAID PEG AND BEARING WESTERLY 242 degrees 30 minutes TO LAND OF W. FOSTER, AND A GATAI TREE ON THE BEACPI AT HIGH WATER MARK, THE DISTANCE BETWEEN SAID PEG AND SAID GATAI TREE ALONG THE MAIN ROAD BEING 457 FEET: *106for WESTERN BOUNDARY FOLLOW THE EASTERN BOUNDARY OF SAID LAND OF W. FOSTER BEARING 341 degrees 15 minutes AND RUN IN THE SAME STRAIGHT LINE TO THE TUASIVI: and for the SOUTHERN BOUNDARY, RUN ALONG THE TUASIVI EASTERLY UNTIL THE POINT OF INTERSECTION OF THE EASTERN BOUNDARY OF “SATALA” WITH THE TUASIVI is REACHED: the SAID DESCRIBED LAND CONTAINS AN AREA OF 281% ACRES, BE THE SAME MORE OR LESS.
AND IT IS FURTHER ORDERED and DECLARED that the Plaintiff pay costs of this DECREE, amounting to $7.50, in addition to costs ordered to be paid by the Plaintiff in said Judgment.
GIVEN under the hand and seal of the Court on this 21st day of July, 1903.
DECISION
THE PETITIONER, Sunui Groves, is the wife of William Groves, a British Subject.
On the 1st day of September, 1900, two Samoans, named Talali and Loloaso, agreed to vest the land in dispute Jn Sunui Groves and her children.
Under the Native Land Regulation, application was made to the Commandant for his approval of a transfer of said land, and upon notice being given of the grant from Talali and Loloaso, to Sunui Groves, objections were filed by Mrs. J. S. Pike, Leiato, Pi, and others, and hence this suit to try the title to the land.
The action commenced on the 3rd day of JUNE, 1902; the trial occupied three days, namely, the 3rd, 4th, and 9th of June, 1902.
The Defendants Pi and Leiato withdrew all claims they had to the land in favor of the Plaintiff.
*107The contest then lay with the Plaintiff and the Defendant, Mrs. J. S. Pike. Mrs. Pike alleged that Leiato Liulagai and his son Taliamanu had deeded the land to her late husband, S. S. Foster, and she claimed now, as trustee for her grandchild Norma Foster. The original grant from Leiato and others to her husband was lost.
On the last day of trial the parties to the suit presented to the Court an agreement by which the Defendant withdrew all claim to the land, in favor of the Plaintiff, on the condition that the grantors to the Plaintiff transfer another piece of land to her in trust for her grandchild Norma Foster. This agreement was referred to the Commandant under the Native Land Regulation for his approval, as it involved the transfer of land by natives to aliens, and the Commandant, after consideration, approved of the intended transfers, on the 12th day of March, 1903.
IT IS THEREFORE CONSIDERED by the Court that the prayer of the Plaintiff should be granted AND IT IS SO ORDERED and ADJUDGED THAT ALL THAT PIECE OR PARCEL OF LAND SITUATE ON THE NORTH SHORE OF PAGO PAGO HARBOR, CALLED OR KNOWN AS PART OF “SATALA”, BOUNDED TOWARDS THE EAST BY THE LAND OF H. J. MOORS, DESCRIBED IN COURT GRANT NO. 412, AND RECORDED IN VOL. 1, FOLIOS 116, 117, 118 OF THE REGISTER OF COURT GRANTS OF THE UNITED STATES NAVAL STATION, TUTUILA, TOWARDS THE WEST BY LAND OF PULU FOSTER, AND TOWARDS THE SOUTH BY HIGH-WATER MARK, SHALL BE VESTED IN A TRUSTEE FOR THE BENEFIT OF THE PLAINTIFF SUNUI GROVES AND HER CHILDREN, and a DECREE of this Court shall issue to that effect, and enjoining the Defendants from further asserting any claim whatever in or to said land and premises.
*108Costs of Court assessed at $35.00 are to be paid by the Plaintiff and Defendant as under:—
Plaintiff Sunui Groves............................ $20.00
Defendant Mrs. J. S. Pike...................... 15.00
GIVEN under the hand and seal of the Court on this 20th day of July, 1903. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484845/ | JUDGMENT
THIS CAUSE came on regularly for trial on the 28th and 29th days of September, 1903, Plaintiff appearing by his Agent, F. Bernard, and Defendant by his counsel, J. Jewett.
F. Bernard gave evidence for Plaintiff, and the Defendant testified on his own behalf; the Defendant having admitted the greater part of the claim, the Court suggested that parties confer together for the purpose of ascertaining and agreeing upon an amount due by the Defendant to the Plaintiff.
*109Upon the Court re-assembling, the Plaintiff announced that Defendant had admitted the sum of $720.00 to be due, and had agreed to pay said sum in monthly installments of $15.00 until debt be paid, together with interest thereon at the rate of 5 per cent per annum, the installments to be increased as the business of the Defendant warranted, in the meantime security to be given for amount due by Defendant to Plaintiff, and both parties having agreed that Judgment be entered up accordingly;
NOW, THEREFORE, by reason of said agreement and consent, IT IS ORDERED and ADJUDGED that H. J. Moors, the Plaintiff, do have and recover of and from John Williams, the Defendant, the sum of $720.00, with interest thereon at the rate of 5 per cent per annum from the date hereof until paid, together with said Plaintiff’s costs and disbursements incurred in this action, amounting to the sum of $34.00 and that said sum of $754.00 and said interest be paid by said Defendant in gold coin of the United States.
Judgment rendered 29th day of September, 1903. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484846/ | JUDGMENT
This cause having been commenced at the instance of the United States against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for Public Uses: And the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900), to regulate the acquisition of land by the Government for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of the parties hereto; did satisfactorily adjust the acceptances and tenders of said parties and did, on the 14th day of October, 1904, A.D., report to this Court which said report is now on file recommending the Government be declared the proprietor of said lands and premises *111upon payment of the sum of Seven Hundred Dollars ($700), and costs.
IT IS NOW THEREFORE Ordered and adjudged as follows:—
1. That the Government of the United States of America shall pay to the Respondent Fano, the sum of Seven Hundred Dollars and shall pay the costs of Attorney, Registrar and High Court costs amounting to Sixty-three Dollars and Fifty Cents in consideration of the release of all claims and demands of the said Respondent to said lands and premises.
2. That in consideration of the payment of the sum of Seven Hundred and Sixty-three Dollars and Fifty Cents ($763.50), as aforesaid, the Government of the United States of America, be, and the same is hereby declared the proprietor of ALL that piece or parcel of land situate at the entrance of Pago-Pago Harbor and called or known as part of Matatia and Blunt’s Point, containing an area of three and four-tenths (3.4), acres (be the same a little more or less), adjoining the section of land acquired by said Government from Tugaolelagi, Tafao and Faoato by deed dated the 25th day of November, 1904. Starting at the apex of Blunt’s Point aforesaid situate South 56°45' East from the light on Breaker’s Point and following along the Southern boundary of said land acquired from Tugaolelagi, Tafao, and Faoato, up the steep incline to a peg on the narrow ridge bearing North 70°3O' East distance 311 feet; thence bearing West along the top of the ridge and said boundary of land acquired from Tugaolelagi, Tafao and Faoato distance 400 feet to a peg with a copper nail driven into it; thence bearing South distance 114 feet to a monument marked ; thence bearing South 45 °0' East distance 334 feet, crossing the main road from Fagaalu to Pago-Pago, and reaching to a monument marked g.'l. to seaward of said road, and thence following the bearing last named to high water mark; thence following high *112water mark in a Northeasterly direction to the point of commencement, as all the said boundaries are more particularly delineated and drawn on the plat attached hereto and marked “A”.
3. The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of the said Government according to said order and judgment.
Given under my hand and seal of the Court on this 25th day of November, 1904, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484847/ | JUDGMENT
This cause having been commenced at the instance of the United States against the above-named Respondents for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required *113for Public Uses: And the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900), to regulate the acquisition of land by the Government of the United States for Public Uses, having given due and proper notice to the Respondents herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of the parties hereto, did satisfactorily adjust the acceptances and tenders of said parties and did, on the 14th day of October, 1904, A.D., report to this Court which said Report is now on file recommending the Government be declared the proprietor of said lands and premises upon payment of the sum of Seven Hundred Dollars ($700), interest and Costs.
It is NOW, THEREFORE, ORDERED AND ADJUDGED as follows:—
1. That the Government of the United States of America shall pay to the Respondents Tugaolelagi, Tafao and Faoato the sum of Seven Hundred Dollars ($700), and shall pay Costs of Attorney, Registrar’s and High Court Costs, amounting to Sixty-three dollars and Fifty cents ($63.50), said sums making a total of Seven Hundred and Sixty-three Dollars and Fifty Cents ($763.50), consideration of the release of all claims and demands of the said Respondents to said land and premises.
2. That in consideration of the payment of said sum of Seven Hundred and Sixty-three Dollars and Fifty Cents ($763.50), as aforesaid, the Government of the United States of America be and the same is hereby declared the proprietor of ALL that piece or parcel of land situate at the entrance to Pago-Pago Harbor and called or known as parts of Matatia, Ututoafa and Blunt’s Point, containing an area of Four and two-tenths (4.2) acres (be the same a little more or less), Starting at the apex of Blunt’s Point aforesaid situate South 56°45' East from the light on *114Breaker Point and thence running up the steep incline to a peg on the narrow ridge being North 70°30' East distance 311 feet, thence bearing West along the top of the ridge distance 400 feet to a peg with a copper nail driven into it, thence bearing North distance 200 feet to a monument marked <?f;, thence still bearing North distance 250 feet to a monument marked to seaward of the Main Public Road from Blunt’s Point to Pago-Pago, thence along the same bearing across said Public Road to High Water Mark, thence following along High Water Mark Easterly to the point of commencement at Blunt’s Point.
3. The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of the said Government according to said order and judgment.
Given under my hand and seal of the Court on this [sic] day of November, 1904, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484848/ | *115JUDGMENT
This cause having been commenced at the instance of the United States against the above-named Respondent for the purpose of ascertaining the sum to be paid by the said Government as compensation in respect of the lands and premises hereinafter described, said lands being required for Public Uses: And the Registrar of Titles for the United States Naval Station, Tutuila, under the provisions contained in the Ordinance (No. 20-1900), to regulate the acquisition of land by the Government for Public Uses, having given due and proper notice to the Respondent herein, and proceedings before said Registrar having been regularly taken in the premises, whereupon the Registrar of Titles, at the request of the parties hereto, did satisfactorily adjust the acceptance and tender of said party and did, on the 14th day of October, 1904, A.D., report to this Court that the Respondent offered to assign all his interest to the Petitioner Government for the nominal consideration of One Dollar ($1), the said Government to pay all costs of registration and transfer which said offer was accepted by the Petitioner.
IT IS NOW, THEREFORE, ORDERED AND ADJUDGED AS FOLLOWS:—
1. That the Government of the United States of America shall pay to the Respondent Edwin W. Gurr, the sum of One Dollar and shall pay the costs of Attorney, Registrar’s and High Court Costs, amounting to Forty Dollars ($40), said sums making a total of Forty-one Dollars ($41), in consideration of the release of all claims and demands of the said Respondent to said lands and premises.
2. That in consideration of the payment of the sum of Forty-one Dollars ($41), as aforesaid, the Government of the United States of America, be, and the same is hereby declared the proprietor of ALL that piece or parcel of land *116situate at the entrance of Pago-Pago Harbor and called or known as part of Matatia and Blunt’s Point, containing an area of three and four-tenths (3.4) acres (Be the same a little more or less), adjoining the section of land acquired by-said Government from Tugaolelagi, Tafao and Faoato by-deed dated the [sic] day of November, 1904. Starting at the apex of Blunt’s Point aforesaid situate South 56°45' East from the light on Breaker Point and following along the Southern boundary of said land acquired from Tugaolelagi, Tafao and Faoato up the steep incline to a peg on the narrow bridge bearing North 70°30' East distance 311 feet; thence bearing West along the top of the ridge and said boundary of land acquired from Tugaolelagi, Tafao and Faoato distance 400 feet to a peg with a copper nail driven into it; thence bearing South distance 114 feet to a monument marked Fl. ; thence bearing South 45°O' East distance 334 feet, crossing the main road from Fagaalu to Pago-Pago, and reaching to a monument marked to seaward of said road, and thence following the bearing last named to High Water Mark; thence following High Water Mark in a Northeasterly direction to the point of commencement, as all the said boundaries are more particularly delineated and drawn on the plat attached hereto and marked “A.”
3. The Registrar of Titles is hereby directed to issue a Certificate of Title to said land in favor of the said Government according to said order and judgment.
Given under my hand and the seal of the Court on this 2nd day of December, 1904, A.D. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494073/ | MEMORANDUM OPINION
1
KEVIN GROSS, Bankruptcy Judge.
The Court has before it the Motion of Joshua Ross for (I) Clarification Regarding Stipulation and Agreed Order Lifting Automatic Stay and (II) Determination Regarding Order Approving Sale Free of Liens and Encumbrances (“the Motion”). A sister court has asked parties in litigation before it to seek clarification of an order of this Court, which has given rise to the matter sub judice. The underlying legal issue in the state court litigation is whether a buyer of assets is liable on a “successor liability” claim.2
RELEVANT BACKGROUND FACTS AND PROCEDURAL SETTING
DESA Holdings Corporation and DESA International LLC, Hk/a DESA International, Inc. (“Debtors”), filed voluntary bankruptcy petitions for relief in this Court on June 8, 2002. The Court thereafter set a bar date for the filing of pre-petition claims of December 18, 2002 (“Bar Date”), and a bar date for filing administrative claims of April 23, 2004 (“Administrative Bar Date”).
In November 2002, Debtors sold substantially all of their assets through an auction process to the highest bidder, HIG — DESA Acquisition LLC, now known as DESA LLC (“Buyer”). The Order (a) Authorizing & Scheduling a Public Auction for Sale of All Debtors’ Assets or One of Debtors’ Divisions Free & Clear of All Liens Claims & Encumbrances (b) Approving Procedures for Submission of Qualifying Bids (c) Approving Form & Manner of Notice (D.I.224) required Debtors to give notice by mail where practical, *421and by publication in a nationally circulated newspaper where notice by mail was not practical. Debtors complied, including publication in the national edition of The Wall Street Journal. On December 12, 2002, the Court entered an Order (a) Authorizing the Debtors’ Sale of Substantially All of Their Assets, Free & Clear of Liens, Claims, & Encumbrances, (b) Approving an Asset Purchase Agreement, (c) Authorizing the Sale, Assumption & Assignment of Certain Executory Contracts & Unexpired Leases in Connection with Such Sale, (d) Granting Superpriority Liens, & (e) Granting Related Relief (“the Sale Order”) (D.I.520) which provided, in relevant part:
B. Notice of the Sale Motion, the Auction, and the Sale Hearing has been given in accordance with Fed. R. Bankr.P.2002, 4001 and 6004 and the Bidding Procedures Order. The foregoing notice constitutes good and sufficient Notice of the Sale Motion and the Sale Hearing, and no other or further notice of the Sale Motion and the Sale Hearing or the entry of this Sale Order need be given.
G. The transactions contemplated by the Final Asset Purchase Agreement are undertaken by the Debtors and the Buyers at arm’s length, without collusion and in good faith within the meanings of sections 363(m) and 364(e) of the Bankruptcy Code, and such parties are entitled to the protections of sections 363(m) and 364(e) of the Bankruptcy Code.
H. A sale of the Acquired Assets other than one free and clear of Liens would adversely affect the Debtors’ bankruptcy estates and would be of substantially less benefit to the estates of the Debtors.
* * *
2. Pursuant to section 363(b) of the Bankruptcy Code, the Debtors are authorized to sell the Acquired Assets (including the Assumed Contracts) to the Buyer upon the terms and subject to the conditions set forth in the Final Asset Purchase Agreement, with such modifications as may be agreed to by the parties.
4. The sale of the Acquired Assets to the Buyer shall be free and clear of Liens (other than Liens created by the Buyer) pursuant to section 363(f) of the Bankruptcy Code, whether known or unknown, including, but not limited to, any of the Debtors’ creditors, vendors, suppliers, employees, executory contract counterparties, lessors, customers or users of goods manufactured or sold by the Debtors, and the Buyer shall not be liable in any way (under any theory of successor liability or otherwise) for any claims that any of the foregoing or any other third party may have against any of the Debtors, provided further that, except as expressly provided in the Final Asset Purchase Agreement, with regard to employees’ claims, the free and clear delivery of the Acquired Assets shall include, but not be limited to, all asserted or unas-serted, known or unknown, employment related claims, payroll taxes, employee contracts, employee seniority accrued while employed with any of the Debtors and successorship liability, with any and all valid and enforceable Liens thereon, including those *422asserted by the Lenders, shall be transferred, affixed, and attached to the net proceeds of such sale, with the same validity, priority, force, and effect as such Liens had upon the Acquired Assets immediately prior to the Closing.
10. Pursuant to sections 105(a) and 363 of the Bankruptcy Code, all Persons (as defined in section 101(41) of the Bankruptcy Code) are hereby enjoined from taking any action against the Buyer or the Buyer’s affiliates (as they existed immediately prior to the Closing) to recover any claim which such Person has against the Debtors or the Debtors’ affiliates (as then exist immediately following the Closing).
15. The Buyer has not assumed or otherwise become obligated for any of the Debtors’ liabilities other than as expressly set forth in the Final Asset Purchase Agreement, and the Buyer has not purchased any of the Excluded Assets (as defined in the Final Asset Purchase Agreement). Consequently, all holders of liabilities or Claims (as defined in section 101(5) of the Bankruptcy Code) are hereby enjoined from asserting or prosecuting any Claim or cause of action against the Buyer or Acquired Assets to recover an account of any Claim or liabilities other than Assumed Liabilities pursuant to the Final Asset Purchase Agreement or other than pursuant to this Sale Order. All persons having any interest in the Excluded Assets are hereby enjoined from asserting or prosecuting any claim or cause of action against the Buyer for any liability or Claim associated with the Excluded Assets.
(Sale Order at ¶¶ B, G and H, and ¶¶ 2, 4, 10 and 15)
The movant, Joshua Ross (“Movant”) was allegedly injured while working on January 15, 2004. The alleged injuries occurred 25 months after the Sale Order, after the Bar Date, and prior to the Administrative Bar Date. Movant alleges that a defective heater which Debtors manufactured caused his injuries. In order to recover for his injuries, Movant on March 11, 2005, filed the Motion to Allow a Late-Filed Claim (“Late Claim Motion”) (D.I. 1580) and the Motion for Relief from the Automatic Stay to Pursue Personal Injury Claims (“Lift Stay Motion”) (D.I.1581). Debtors informed Movant that they would oppose the Late Claim Motion and the Lift Stay Motion. Movant and Debtors thereafter negotiated a resolution of Movant’s Late Claim Motion and Lift Stay Motion, the terms of which were contained in the Stipulation and Agreed Order by and Among the Debtors and Joshua Ross (“Lift Stay Order”) (D.I.1608), which the Court approved on March 30, 2005, and which provided, inter alia, that “[t]he automatic stay provision of section 362 of the Bankruptcy Code shall be modified for the sole and limited purpose of permitting the Movant to pursue or litigate the Ross claim against the Debtors and any other potentially responsible parties in a non-bankruptcy forum of competent jurisdiction.” (Lift Stay Order ¶ 2)
The Lift Stay Order also provided that Movant’s recovery against Debtors would be limited to the Debtors’ applicable insurance coverage and any other non-debtor party. Movant expressly waived the right to collect any damages from Debtors or Debtors’ estates other than from any applicable insurance and agreed that Movant was not entitled to receive any distribu*423tions from Debtors. (Lift Stay Order ¶ 4) Movant also agreed to withdraw the Late Claim Motion.
During the same hearing at which the Court considered and entered the Lift Stay Order, the Court also confirmed Debtors’ Second Amended Joint Liquidating Plan of Reorganization (“the Plan”) pursuant to which Debtors thereafter liquidated substantially all of their assets.
Armed with the Lift Stay Order, Movant commenced an action on May 11, 2005, in the Superior Court of the State of Delaware in and for New Castle County (“the Delaware Superior Court”) in a case captioned Joshua Ross v. DESA Holdings Corporation, et al., Case No, 05-C-05-13 MMJ (“the Delaware Superior Court Action I”). The defendants included Debtors and others, but not Buyer. Nine months later, on January 17, 2006, Movant commenced a second action in the Delaware Superior Court captioned Joshua Ross v. DESA, LLC, DESA Heating, LLC, et al., C.A. No. 06-C-01-172-MMJ (“the Delaware Superior Court Action II”). In this second action, Movant named Buyer as a defendant, claiming Buyer and an affiliate were liable for Movant’s injuries “for the acts and omissions of the predecessor entities [Debtors] as having expressly assumed [Debtors’] liabilities or assumed the liabilities through a de facto merger.” (Delaware Superior Court Action II Complaint ¶ 5)
Buyer moved to dismiss the claims against it in the Delaware Superior Court Action II on the ground, among others, that the Sale Order precluded Buyer’s liability for any claim that a user of Debtors’ goods might have against Debtors. At oral argument on the Buyer’s motion to dismiss, the Delaware Superior Court expressed uncertainty with this Court’s Lift Stay Order. The transcript of the argument held on May 15, 2006, includes the following discussion by the Delaware Superior Court:
I agree, there is no question that there is a very compelling public policy reason for the purchaser being able to purchase the assets free and clear of all claims. I agree with that.
And what I think I am going to find here today is that indeed, the Court, the bankruptcy court was very clear in its order, and I want to get the right date. Oh, actually, that order was signed by Judge Walsh, December 12, 2002.
The bankruptcy court was very clear in that order that the buyer acquired the assets free and clear of liens, including, under theories of successor liability or otherwise.
So that is clear.
What is not clear to me is whether or not the stipulation and agreed order signed by Judge Shapiro [sic] on March 30, 2005, and I’m specifically referring to paragraph 2, whether or not Judge Shapiro [sic] intended that the automatic stay be lifted with regard to the buyer for purposes of this particular plaintiff, because it includes the language, “pursue or litigate the Ross claim against the debtors and any other potentially responsible party in a non-bankruptcy forum of competent jurisdiction.”
And the reason I’m unclear on that is because it would be a limited lifting of the automatic stay with regard to one claimant, and also because the language is so broad.
So therefore, what I’m going to ask the parties to do is to refer that very narrow issue to the bankruptcy court for its determination, and that way the Court will be in a better position to assess the motion to dismiss.
(Hearing Transcript, 38-39, May 15, 2006)
It is the Delaware Superior Court’s concern over a “very narrow issue,” specifical*424ly, whether this Court intended the Lift Stay Order to give relief from the stay “with regard to [Buyer] for purposes of [Movant]” which the Court now addresses. As discussed below, the Court will not provide an advisory opinion, particularly where as here, the law of the state in which the litigation is pending applies. The Delaware Superior Court’s inquiry concerning the Lift Stay Order does not require an advisory opinion unlike the Movant’s request for clarification regarding the Sale Order.
ISSUES BEFORE THE COURT
a.The Delaware Superior Court’s Statement of the Issue
The Delaware Superior Court confined the issue which it submitted to the parties for clarification to this: “... whether or not the stipulation and agreed order signed by Judge Shapiro [sic] on March 30, 2005, and I’m specifically referring to paragraph two, whether or not Judge Shapiro [sic] intended that the automatic stay be lifted with regard to the buyer for purposes of the plaintiff....” (Hearing Tr„ 38, May 16, 2006)
b.Movant’s Statement of the Issues
Movant’s request for clarification goes beyond the narrow issue raised by the Delaware Court. Movant has requested that the Court enter an Order:
“[Clarifying that the [Lift Stay Order] was intended to permit [Movant] to pursue his claim against the DESA Defendants, as successor in interest to the DESA Debtors. Further, [Mov-ant] seeks a clarification that the Sale Order was of no effect as to [Movant] insofar as he was not provided with notice of the sale to the DESA Defendants or the opportunity to meaningfully participate in the Plan.”
(Movant’s Motion for Clarification, 5)
Movant thus argues that the language of the Lift Stay Order and the absence of notice to Movant of the Sale Order combine to preclude the application of the provisions of the Sale Order to Movant, which would otherwise protect Buyer from any claim arising from the goods it purchased from Debtors. The basis of Mov-ant’s assertion is that because he allegedly sustained his injuries after the entry of the Sale Order, he did not receive notice of the motion for the sale of Debtors’ assets and therefore cannot be bound by its terms, including the provisions barring claims against the Buyer arising from Debtors’ potential liability. In addition, Movant asserts that the terms of the Lift Stay Order expressly gave Movant the right to proceed against Buyer as “the successor in interest” to Debtors.
c.Buyer’s Statement of the Issue3
The issue as framed by Buyer is this: Does the Lift Stay Order permitting Mov-ant to pursue his claim against Debtors and any other potentially responsible parties in a non-bankruptcy forum of competent jurisdiction amend, modify or negate this Court’s Sale Order, including the protections it afforded Buyer?
DISCUSSION AND DECISION
It is very tempting for the Court to leap into a scholarly discourse on the relationship between § 363 of the Bankruptcy Code and the complexities of a buyer’s liability as a successor to the debtor-seller. Doing so would be a self-indulgent excess, because the issue which the Delaware Superior Court raised does not require the *425Court’s dissertation on a buyer’s successor liability. Furthermore, the Court must be careful not to render an advisory opinion. In Zisholtz v. Goldstein (In re Martin’s Aquarium, Inc.), 98 Fed.Appx. 911, 2004 WL 1012814 (3d Cir.2004), the Third Circuit Court of Appeals expressed serious concern that a bankruptcy court would reopen a case for the limited purpose of opining on the effect of an order in a subsequent state court litigation. The Court of Appeals observed that: “Evidently, the [requesting parties] were dissatisfied with the initial interpretations of that decision taken by the Pennsylvania state courts and sought therefore to enlist the aid of the Bankruptcy Court to aid their arguments in the state litigation.” In re Martin’s Aquarium, Inc., 98 Fed.Appx. at 913.
The Court of Appeals found that the legal issue rested on state law and that “[a] bankruptcy court — or any federal court — should not provide advisory opinions for state court litigants.” Id. See also, In the Matter of FedPak Systems, Inc., 80 F.3d 207 (7th Cir.1996), (holding that the bankruptcy court lacked jurisdiction to issue a clarification order). In FedPak, as here, the dispute did not involve the amount of property for distribution or the allocation of assets among creditors and therefore the dispute did not qualify as “related to” jurisdiction under 28 U.S.C. § 1334(b).
Furthermore, this Court will not invade the province of the learned Delaware Superior Court which stated unequivocally: “And what I think I am going to find here today is that indeed, the Court, the bankruptcy court was very clear in its order the buyer acquired the assets free and clear of liens, including under theories of successor liability or otherwise. So that is clear.” (Hearing Tr., 38, May 16, 2006)
Faced with Buyer’s assertion that the Sale Order precludes Buyer’s liability under a successor liability claim, Movant has now reframed the Delaware Superior Court’s request for clarification by seeking this Court’s ruling on whether Movant is bound by the Sale Order.
a. The Lift Stay Order
First, to address the Delaware Superior Court’s concern, the Lift Stay Order by its very nature governs only Debtors. It is a tenet of bankruptcy law that the automatic stay provisions of § 362 of the Bankruptcy Code apply only to debtors and do not prevent litigation from proceeding against non-debtors. Mother African Union Methodist Church v. Conference of AUFCMP Church (In re Conference of African Union First Colored Methodist Protestant Church), 184 B.R. 207 (Bankr.D.Del.1995). As this Court held in In re Conference of African Union First Colored Methodist Protestant Church, “the automatic stay is not available to non bankrupt co-defendants of a debtor even if they are in a similar legal or factual nexus with the debtor.” Id. at 214 (quoting Maritime Electric Co. Inc. v. United Jersey Bank, 959 F.2d 1194, 1205 (3rd Cir.1991)). Here, Movant was free without an order of this Court to proceed against non-debtor individuals and/or entities, including the Buyer. The Lift Stay Order was not applicable to Buyer because there was no stay in place and therefore Movant was already free to bring suit against Buyer.
The Lift Stay Order therefore applied to and affected only Debtors’ rights. The Lift Stay Order did not authorize the Mov-ant to proceed against Buyer, and did not provide Movant with rights beyond authorizing Movant to bring suit against Debtors. The provision of the Lift Stay Order which prevents Movant from collecting from Debtors indicates to the Court that the parties understood that Movant was *426looking toward any insurance coverage Debtors might have for a monetary recovery. Movant did not seek and the Lift Stay Order did not grant any modification of the Sale Order, because the Lift Stay Order did not apply to Buyer.
Movant argues that the inclusion of language in the Lift Stay Order permitting Movant to pursue “any responsible party” applied to Buyer. However, Buyer was not a party to the stipulated Lift Stay Order. In neither its papers nor at argument did Movant claim that it negotiated the Lift Stay Order with the intent of pursuing a claim against Buyer, and Debtors specifically disclaim any intention to alter Buyer’s protection against any successor liability claim. Buyer was a known entity, not “any responsible party.” For Movant to prevail in claiming that the Lift Stay Order applied to Buyer and nullified the express language of the Sale Order, the Lift Stay Order would have had to specify that it applied to Buyer and modified the Sale Order. It did not.
The belated action against Buyer, combined with the absence of any indication that the Lift Stay Motion was directed toward Buyer belies Movant’s assertion that the term “any responsible party” in the Lift Stay Order included Buyer. Instead, the Court is persuaded by Debtors’ assertion that:
It was certainly never specifically discussed that [Movant] would pursue the Ross Claim against [Buyer].... As a result thereof, it was never the intent of the parties for the [Lift Stay Order] to amend, modify or in any way affect the Sale Order as may apply to the Ross Claim.
(Debtors’ Limited Response to Motion for Clarification, 8). If Movant had, in fact, intended for the Lift Stay Order to vitiate Buyer’s protection from successor liability for the acts of Debtors, Movant never communicated that intention to anyone and certainly not to the Court. Moreover, had Movant truly intended that the Lift Stay Order was what he needed to proceed against Buyer, he would have named Buyer as a defendant in Delaware Superior Court Action I.
In summary, this Court finds that: (1) the Lift Stay Order was not necessary to prosecute a claim against Buyer, (2) having obtained the Lift Stay Order, Movant still did not pursue Buyer, (3) there was no mention of Buyer in the negotiations leading to the Lift Stay Order, (4) the Lift Stay Order does not name Buyer and (5) Movant did not object to the Confirmation Order which ratified the injunctive relief to Buyer under the Sale Order. These findings establish conclusively that the Lift Stay Order did not in any way amend or modify the Sale Order. The Court concludes therefore that Movant’s effort to impose successor liability on Buyer through the Lift Stay Order is an afterthought which neither the Court nor the parties contemplated.
b. The Delaware Court Litigation
The litigation giving rise to the Motion is not before the Bankruptcy Court. Instead, the Motion is related to and necessitated by Movant’s lawsuits pending in the Delaware Superior Court for Movant’s injuries sustained in an accident in Delaware. The Delaware Superior Court requested clarification, but not of the Sale Order. The clarification that the Delaware Court seeks is confined to the consequences and meaning of this Court’s Lift Stay Order. It is highly significant to the Court’s analysis that the Delaware Superi- or Court has not requested the Bankruptcy Court’s findings or legal conclusions regarding the Sale Order and its impact on Movant. Rather, it is the Movant who now asks this Court to rule that the Sale *427Order is not binding on Movant’s right to pursue litigation against Buyer.
The Delaware Court’s defining of this issue is all together appropriate because the applicable law to which the capable Delaware Court will apply the facts is Delaware law, not federal law. See Schwinn Cycling & Fitness, Inc. v. Benonis, 217 B.R. 790 (Bankr.N.D.Ill.1997) (explaining that the successorship doctrine is predominately a creature of state law); Cf. Conway v. White Trucks, 885 F.2d 90 (3rd Cir.1989) (applying Pennsylvania law on the issue of successor liability). Delaware courts recognize successor liability as a viable legal theory and, as well, that there are exceptions to the general principle that purchasers of assets do not succeed to a seller’s liability. Corporate Property Associates 8, L.P. v. Amersig Graphics, Inc., 1994 WL 148269, 1994 Del. Ch. LEXIS 45 (Del. Ch.1994). Accordingly, the Delaware Superior Court has jurisdiction to rule on whether successor liability claims against Buyer are viable under Delaware law.
Since Movant’s claim arose after the Bar Date but before the confirmation of the Plan, it was subject to this Court’s Sale Order. See generally In re White Motor Credit Corp., 75 B.R. 944 (Bankr.N.D.Ohio 1987). By withdrawing his Late Claim Motion, Movant waived his opportunity to participate in the bankruptcy case in exchange for a clear path to litigate against Buyer. The Court cannot ignore the fact that immediately after the Court entered the Lift Stay Order, Movant filed suit against Debtor and did not file a separate lawsuit against Buyer and others for approximately nine months. Movant’s complaint that he was unable to participate in the bankruptcy case is not compelling because it was his choice to compromise his Late Claim Motion which, if successful, would have enabled him to participate in the bankruptcy case and to object to the applicability of the Sale Order.
CONCLUSION
The Court concludes that the Lift Stay Order did not amend, modify or negate the Sale Order. Movant’s arguments for the inapplicability of the Sale Order are properly before the Delaware Superior Court for decision and it would be wholly improper for this Court to rule on such issues.
An appropriate order follows.
ORDER REGARDING THE MOTION OF JOSHUA ROSS FOR (I) CLARIFICATION REGARDING STIPULATION AND AGREED ORDER LIFTING AUTOMATIC STAY AND (II) DETERMINATION REGARDING ORDER APPROVING SALE FREE OF LIENS AND ENCUMBRANCES
For the reasons set forth in the Memorandum Opinion of even date herewith, the Court finds that the Lift Stay Order did not amend, modify, or negate the Sale Order. IT IS THEREFORE ORDERED that Motion of Joshua Ross for (I) Clarification Regarding Stipulation and Agreed Order Lifting Automatic Stay and (II) Determination Regarding Order Approving Sale Free of Liens and Encumbrances is DENIED to the extent that it seeks a determination regarding the Sale Order entered December 12, 2002.
. On April 18, 2006, this case was reassigned to Judge Kevin Gross. The Honorable Peter J. Walsh and later the Honorable Walter Shapero, a visiting judge to this district, presided over the matters which give rise to this Memorandum Opinion.
. "The ordinary rule of successor liability is rooted in corporate law, and it states that a firm that buys assets from another firm does not assume the liabilities of the seller merely by buying its assets." Berg Chilling Systems, Inc. v. Hull Corporation, 435 F.3d 455, 464 (3d Cir.2006). There are exceptions to the general rule: (1) assumption by contract, (2) fraud, (3) where there is a de facto merger, (4) continuity of identity between seller and purchaser. Id.
. The Plan Administrator, as Debtors’ successor pursuant to the Plan, has filed a Limited Response which does not state a position on the Motion but which supports the Buyer’s position. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484850/ | JUDGMENT
This cause having been commenced by the Government of the United States of America for the object of obtaining the land hereinafter described for Public Uses for the said Government under and by virtue of the Ordinance No. 20-1900, being the Ordinance to regulate the acquisition of land by the Government, for Public Uses, and under the provisions of said Regulation due and proper notice having been given to the above-named Respondents through the *120Registrar of Titles, and the Registrar of Titles, by his report to .this Court bearing the 6th day of July, 1905, having informed the Court that a satisfactory adjustment of the acceptance and tenders having been made and recommended that the Government be declared the proprietor of the said land at and for the consideration hereinafter stated to be paid by the said Government. IT IS NOW HEREBY ORDERED AND ADJUDGED AS FOLLOWS; to wit:—
1. That the Government of the United States of America is, and the same is hereby declared to be, the proprietor of ALL that piece or parcel of land situate in the Island of Aunuu, County of Saole, District of Falelima East, Tutuila, starting at a concrete block marked U.S.G.L. sunk in the ground at a point distant one hundred and eighty-one feet from the stand of the light bearing North 86°46' East Magnetic from the stand; thence to the brow of the bluff North 22 °0' East Magnetic, forty feet; then beginning at the said concrete block, thence running one hundred and seventy-six feet South 79° 2 5' West Magnetic to a concrete block marked U.S.G.L. sunk in the ground; thence one hundred and seventy feet South 79° 06' West Magnetic to a concrete block marked U.S.G.L. sunk in the ground; thence seventy-three feet North 20°39' West Magnetic to the brow of the bluff, comprising in all Forty-five Hundredths (45/100) of an acre (be the same a little more or less).
2. That the said Government shall pay in consideration of the release of all claims and demands of the said Respondents to said land the sum of Seventy-five Dollars ($75.00), and shall pay Costs of High Court, Registrar, Attorney and Recording, amounting to Forty-five Dollars ($45.00); the total consideration to be paid by the *121Government being One Hundred and Twenty Dollars ($120).
3. The Registrar of Titles is hereby instructed to draw up a transfer of said land and to issue a Certificate of Title to said land in favor of the said Government.
Given under my hand and the Seal of the Court on this 9th day of August, 1905. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484851/ | DECISION
The present holder of the title Lutu shall hold that title until his death, or until he commits such misconduct as will give good cause for removing him. When his death occurs, or if he should be deprived before death, .the whole of the Afoa family shall meet together and endeavor to appoint a successor. If they disagree among themselves and there happens to be more than one candidate, then the final decision shall rest with Afoa. It is ordered by the Court that the name Afoa has the right of title and no one else has the right to interfere.
*122The costs of court are as follows: $15.00 to he paid by the side of Lutu and $10.00 to be paid by Afoa.
/s/ C. J. Parks,
Clerk of the Court
The above to the best of my knowledge and belief is a true copy of the original decision in the case of Lutu v. Molioo-Afoa: #90-1905
This 28th day of May, 1923.
/s/ Sydney D. Hall,
Secretary of Native Affairs. (SEAL)
Attest:
/s/ Edwin T. Pollock,
Governor. (SEAL)
[EDITOR’S NOTE: This Decision was changed to the extent indicated in the following letter from the High Court.]
In the matter of the “Matai” Name “LUTU”
Before the American Judge, and Secretary of Native Affairs.
The “Matai” “Lutu-Samuelu” died December 10th, 1921. Said record being found on page 80 of the Register of Deaths in the office of the Secretary of Native Affairs.
A short time after his death, Molioo, Native Judge of District Court #1, appeared in the office of the Secretary of Native Affairs and presented to that official a copy of a court decision rendered in the year 1905 in an action involving the “matai” name “LUTU”.
The Secretary of Native Affairs after reading the contents of said copy made reference to the files in the case above mentioned and investigation of the said files disclosed the fact that a forged decision had been attached to *123the said files and no apparent record of the original true decision existed.
The purport of the copy of the decision presented to the Secretary of Native Affairs by Molioo was to invest the name “Afoa” with the power of decision as to who should be the “matai” in the Lutu family in case of disagreement in said family.
The purport of the forged decision was to place the power and authority of the decision in the name Faagata.
Comparison of the forged decision with the authentic copy presented by Molioo disclosed very slight variance in the wording of the decision; viz., the copy presented by Molioo, investing Afoa with power of decision as to who should be “matai” in case of Disagreement, and the forged decision discovered in the files, investing Faagata with power of decision in case of disagreement in family.
The Secretary of Native Affairs, Sydney D. Hall, made a thorough investigation of all the matters involved and due to the authentication of the decision presented by Molioo held that that was the decision which should obtain and be followed in any action that might occur in case of a disagreement in the family.
Various members of the Faagata family, have at different times, presented themselves at the office of the Secretary of Native Affairs, insisting that because of the disagreement involved in the selection of a “Matai” to hold the name “Lutu” that the matters in connection therewith be made the subject of a trial in court. But the unvarying answer of the Secretary of Native Affairs has been that this matter had already been decided by previous court action and that nothing remained in view of the existing disagreement but to abide by the said previous court decision and register as Lutu the person designated by Afoa, which action had this day been ordered by the said named official and which is in keeping with the policy of the Court *124that no previous court cases and decisions handed down by previous judges will be reviewed and perhaps reversed.
Further investigation by the Secretary of Native Affairs disclosed the fact that in the copy of the decision submitted by said named Molioo a slight error exists, in that where the decision reads “the whole of the Afoa family shall meet together and endeavor to appoint a successor” the word “Afoa” should read the word “Lutu” according to a further Samoan decision existing on the third page of the complaint blank.
The Secretary of Native Affairs in the action he has taken has been guided by the order of the court which exists in the two decisions, viz., the one in the possession of Molioo and the Samoan decision on the third page of the complaint blank, that the final decision shall rest with Afoa in case of a disagreement among the members of the family.
Attached herewith find translated copy of .the Samoan decision as found on the third page of the complaint blank.
This thirteenth day of February, 1922. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484852/ | DECISION and OPINION
The land in dispute is a portion of the locality known as Autapini in Pago Pago which has been commonly known as *126the “Mageo” property. The plaintiff claims that a former Mageo left by will (nuncupative) the estate to her mother through whom she claims for herself and other members of her family. In February of 1902 Mageo Yeevalu transferred the property now in dispute to Faanati, a Samoan, wife of George Armstrong, to be held for the use of the said Faanati and her issue. Faanati died a few weeks ago and since the original institution of these proceedings, and her son, Edward James Armstrong, an infant, is the present claimant, represented by his father and guardian, George Armstrong. As Mageo was the donor, upon the application of the defendant, Armstrong, he was joined as a defendant. After the commencement of the suit Mauga filed a bill asking to be joined as a third party. Subsequently Mauga asked leave of the Court to withdraw his bill, which was granted.
Upon the gift to Faanati her husband, on behalf of his wife, erected a cottage on the land and generally improved it. He has expended, all together, about $1,400.00 in improvements.
On the twenty-first day of August in the year 1903, after the house was built, a complaint was filed in this Court by Pulu, Sapela, Fanene, Vaumaolo, and Tuinei against Mageo to try the title of the land in Autapeni called “Fausaga”.
A meeting was held between the contestants and notice was given of the withdrawal of the complaint.
On the first day of April 1904, Sapela, one of the complainants above named, gave notice to the Registrar of Titles, that she claimed the land transferred by Mageo to Faanati and her issue, and the present suit has been commenced in order to try her title.
It was ascertained that at the meeting held before the first complaint was withdrawn the complainants agreed to recognize the title of Mageo and Sapela, and a portion of *127the property was set apart for the use of Sapela, who first agreed but afterwards, finding that the area was much smaller than she expected, refused to acknowledge Mageo as the owner of the balance, and several months after-wards she gave the notice before mentioned to the Registrar of Titles.
The plaintiff’s mother, Emma, with her husband, lived on the land prior to 1870, and upon her death and that of her husband some years later, both were buried on a portion of Autapeni, but not on the section now in dispute. After the death of Emma the plaintiff, who is married to a native missionary, lived at several places in Samoa where her husband was appointed. Then Mageo took possession and has occupied the land continuously up to the present time.
Mageo also claims, that notwithstanding his title by succession to the Mageo, his holding is indefeasible owing to his long possession, considerably over the prescriptive period of ten years, and that Sapela, no matter what her rights may have been, is estopped from putting forth any claim to the land at the present time.
It is admitted that Emma was the adopted daughter of Mageo Ifi. It is also proved that the same Mageo divided among members of his family his estate, but there is a great divergence of testimony as to the manner of the disposition.
The plaintiff avers that Mageo Ifi bequeathed land “Fausaga” to her, and that the property in dispute is part of the same “Fausaga”. Testimony controverting this tended to show that Fausaga proper is situated seaward of the main road of Pago Pago and opposite the land in dispute, but the defendants claim that this was not given by Mageo Ifi to the claimant’s mother. There was a disinclination on the part of the defendants to admit that Ifi was a Mageo and also that Emma was adopted by him as his daughter. But *128it was apparent that Mageo Xfi had considered Emma in the disposition of his property, and the defendant after-wards had conceded that she was entitled to land called Fausaga, but had given it a different location.
This admission on the part of the defendant Mageo, takes the case out of the period of limitation, and the Court will follow the principle laid down in Lord v. Shaler (8 Am. Dec. 162). “An acknowledgment that a debt barred by the statute of limitations is still due will take the case out of the statute,” and in Ingersoll v. Lewis (51 Am. Dec. 536), and in Davis v. Collins (43 Fed. 31), “Interruption of the continuity necessary to acquire title by prescription occurs when the adverse claimant recognizes the title of the disseizee. On recognition of such title his adverse possession ceases to be adverse, no matter how hostile it may previously have been, and limitation does not again begin to run against the person whose title is acknowledged until the claimant repudiates his title.” It is also held in New York that recognition is a confession of a title in another when sued in ejectment instead of pleading and going to trial. (Keneda v. Gardner, 4 Hill N.Y. 469.)
The case at bar appears to be analogous to the New York case cited.
There are instances amongst the Samoan people that will not admit of a rigid application of the rules which govern title by adverse possession. To do so would be inequitable in many cases, especially those where the dispute occurs amongst persons of close relationship or being adopted into a family obtain an interest in the community lands and recognize the “matai” or paternal head of the family in all matters governing the relations of the several members — in such cases a privity is established between the members of the community and no person would attempt to exercise a right adverse to the wishes of the “matai” *129previous to the establishment of the present government. If there is a privity between an occupant claiming adversely to the true title, this will be fatal to the claim of the party setting up title by adverse possession. “The situation of the parties determines what is possession.” (Simmons Creek Coal Co. v. Doran, 192 U.S. 443.) To constitute adverse possession it must be “actual, visible, exclusive, hostile and continued during the time necessary to create a bar under a statute of limitations.” (1 Cyc. 981.)
Of these elements, there is some doubt as to whether the possession of Mageo has been sufficiently exclusive and hostile to establish a title by adverse possession.
“Exclusive possession means a possession exclusive of all persons whatsoever.” (1 Cyc. 1026: Burke v. Adams, 50 Am. Rep. 510.)
Evidence was produced to show that one of the claimants under the plaintiff Sapela, has been living on a portion of the land claimed by her under the bequest of Mageo Ifi, so that by applying the doctrine embraced in the foregoing citations it must appear that adverse possession of the defendant Mageo cannot be exclusive. But, in addition to being exclusive, the possession must be hostile. “The mere fact that the claimant has had possession of the land for the statutory period will not suffice to satisfy the rule requiring the disseizor’s possession to be hostile.” (1 Cyc. 1027, Little v. Libby, 11 Am. Dec. 68.)
The statute of limitations does not begin to run until the true owner has actual notice of a hostile holding against him, or until there are acts or declarations on the part of the claimant showing the possession to have become hostile, done or made in such manner and under such circumstances as to leave no doubt that they came to the knowledge of the owner or some one representing him. It must be shown that the true owner had knowledge of the *130adverse holding, or it must be so open and notorious as to raise a presumption of notice to him equivalent to actual notice. (1 Cyc. 1032.)
From a Samoan standpoint it may asserted that the occupation of Mageo was by virtue of a custom existing that whenever land is unoccupied or the real owner is unable to use it through absence, a relative of the real owner would be entitled to occupy the property and by so doing there could be no inference that he was occupying the land adversely to the true owner. As to whether Mageo entered upon the land in the inception with the deliberate intention to disseize the plaintiff, the evidence is ambiguous and uncertain. The facts, however, that the parents of the plaintiff were buried on the land, one of whom was interred since Mageo entered into possession, the occupation of a portion by one of the relatives of the plaintiff and the recognition of an interest in Sapela by Mageo in late years make the claim of the defendant to adverse possession appear nebulous.
It behooves the court to conclude that the plaintiff Sapela and those claiming with her have an interest in the land in dispute and that Mageo disregarded that interest when transferring the land to the defendant. The Court, however, is not prepared to define the extent of that interest in the present case. It seems that if the parties cannot agree amongst themselves it will be necessary for further action to be taken and the Court to receive more evidence as to the interest involved in the greater estate claimed by Sapela, and then make the necessary disposition of the property.
But the Court will now dispose of the estate claimed by the defendant, George Armstrong, who entered upon the property in good faith and erected valuable improvements upon it without any notice of the claim of Sapela, who was aware of the erection of the dwelling house on the land. *131Many months passed, after the entry by Armstrong, before she asserted her right.
In Searl v. School District, Lake County, reported in 133 U.S. page 561, Chief Justice Fuller states “the civil law recognized the principle of reimbursing to the bona fide possessor the expense of his improvements if he was removed from his possession by the legal owner, by allowing him the increase in the value of the land created thereby. And the betterment laws of the several states proceed upon that equitable view. The right of recovery, where the occupant in good faith believes himself to be the owner, is declared to stand upon a principle of natural justice and equity, and such laws are held not to be unconstitutional as impairing vested rights, since they adjust the equities of the parties as nearly as possible according to natural justice; and in its application as a shield of protection, .the term “vested rights” is not used in any narrow sense, but as implying a vested interest of which the individual cannot be deprived arbitrarily without injustice. The general welfare and public policy must be regarded, and the equal and impartial protection of the interests of all.
And in Pomeroy’s Equity Jurisprudence, par. 1241, it says “The right to a contribution or reimbursement from the owner, and the equitable lien on the property benefited as a security therefor, have been extended to other cases where a party innocently and in good faith, though under a mistake as to the true condition of the title, makes improvements or repairs or other expenditures which permanently increase the value of the property, so that the real owner, when he seeks the aid of equity to establish his right to the property itself, or to enforce some equitable claim upon it, having been substantially benefited, is required, upon principles of justice and equity, to repay the amount expended.”
*132If the Court should follow the principles just quoted it would be incumbent on the right owner to pay Armstrong a sum of money which may be considered large for Samoans to raise, and that he would have an equitable mortgage over the property until the whole sum should be satisfied with interest.
The regulations of the Naval Station prohibit the sale of native lands to a foreigner, and a fortiori there can be no mortgage equitable or legal, but under section 8, of the Native Lands Regulation, 1900, “a native proprietor of land who desires to make provision for a son or daughter in view of legal marriage with a non-native or for his son or daughter already legally married to a non-native or to any issue of any such marriage by grant or transfer of the land by instrument inter vivos or by will or deed mortis causa in favor of any trustee to hold in trust for the use of such son or daughter or such issue.”
The intention of Mageo, as donor, was to vest the property in Faanati and her heirs, and the Court is of opinion that equity will be done to all by following the rule stated in section 10, article 4, of the Berlin Treaty concerning Samoa, which was adhered to in settling the land titles before the Samoan Land Commission and the Supreme Court of Samoa, enabling persons who had acquired land in good faith and had improved it but afterwards found the title to be defective, the title may be confirmed upon the payment by the occupant to the person or persons entitled thereto of a sum of money deemed to be equitable and just.
It is considered by the Court, in order to enable Mageo to vest the property claimed in the defendant under the regulation of the United States Naval Station, and for the defendant to perfect his title, that the defendant pay a sum of $150.00, and upon which payment a decree of this court will be issued enabling Mageo to transfer to George Armstrong in trust for his son the property in dispute.
*133The sum of money shall be paid into Court to await a settlement of the differences between the plaintiff Sapela and the defendant Mageo. Failing which, Sapela is instructed to bring further suit in Court to try the title to the balance of the land claimed by her.
Costs of Court to be paid by the defendant.
EDITOR’S NOTE: The Defendant in this case paid the $150.00 required by the Court to perfect his title, thus the ensuing decree:
DECREE
This cause having been regularly called and tried by the Court, and the findings of fact and conclusions of law, and the decision thereon in writing having been duly rendered by the Court, which are now on file in this cause, wherein it was ordered that Defendant Geo. A. Armstrong pay the sum of One Hundred and Fifty Dollars ($150) into Court in order to perfect his title to the portion of land in dispute, claimed by him, in trust, which said sum is subject to an award of the Court to one or all of the adverse Samoan Claimants to said land should said Claimants fail to amicably adjust their differences, and that upon payment of said sum a decree of the Court would issue enabling Mageo, a defendant herein, to transfer to George Armstrong in trust for his son the property in dispute; and Whereas since the rendition of said judgment the said George Armstrong has paid said sum of $150 into Court as directed.
It is now, therefore, hereby ordered, adjudged and decreed that the said Mageo, one of the defendants herein, is, for the purposes intended by this decree, seized in fee, and is the true and lawful owner of ALL that piece or parcel of land situate in Pago-Pago and being known as part of “Autapini” and being described as follows : Starting at the.Northwestern juncture of the road to Pago-Pago with the *134“Autapini” creek, thence bearing North 65°06' East, distance 70 feet; thence bearing North 45°54' West, distance 115 feet; thence bearing North 45°54' West, distance 146.5 feet; thence bearing South 64°56' West, distance 27.3 feet; thence bearing South 25° 04' East, distance 250 feet to the point of starting.
And it is further ordered, adjudged and decreed that all adverse claims of the plaintiffs to said described land, and each of them, and all persons claiming or to claim said premises or any part thereof, through or under said plaintiffs, or either of them, are hereby adjudged and decreed to be invalid and groundless; that the title of the said Mageo thereto is adjudged to be quieted against all claims, demands, or pretensions of the plaintiffs or either of them, who are hereby perpetually estopped from setting up any claims thereto, or any part thereof.
And it is further ordered, adjudged and declared that the defendant Mageo and defendant George Armstrong, as guardian, pay Costs of Court to be assessed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484853/ | The Title to the land Anta has on previous occasions been presented to the High Court of Tutuila for adjudication. On or about .the 28th day of July, 1905, Alapa prayed the Court to declare him to be the owner of the land and to enjoin the present Defendants from ever interfering with his title. At the time the case was about to be heard Alapa had said something derogatory concerning the Leone people, and in consequence he was induced to withdraw this claim. Some months afterwards he realized that a mistake had been made and again made application for his claim to be heard. The case was set down for hearing on the 28th day of July, 1905, and again Alapa withdrew stating in open Court that he did not wish to contest the claim of the Defendants.
The present Plaintiff, Maloata, is closely allied .to Alapa, and several months after the 2nd withdrawal he filed a claim to the land, alleging that he was the owner of the property. It appeared that there was some arrangement between Alapa and Maloata relative to filing the original claim in the name of Alapa. He, however, contended that he was not a party with Alapa to the withdrawal.
*136The Court was inclined to overlook this irregularity in this instance alone, and no precedent is hereby established, owing to the lack of knowledge the Samoans have in pleading their causes and their customary inaccuracy in alleging ownership of lands. Moreover it has been admitted by all parties that Maloata and his family have cultivated the greater portion of the land in dispute, and it appeared to the Court that Maloata would suffer a wrong if the title of the Defendants should be sustained without due and proper consideration of all evidence which the parties proposed to introduce. The Court therefore made a rule enabling Maloata to re-open the ease on terms regarding the Costs of Trial.
The dispute to the title of the land is of many years standing. For some years there was a passive admission by the Plaintiff of the title in the Defendants. This was during the period when the Plaintiff and his family were living in Leone and the Defendants claim that the cultivation and improvements by the Plaintiff were carried out under the authority of the Defendants. But from the nature of the claim of the Defendants it would appear that the Plaintiff made such admission, if any, under duress. The whole of the people of the County of Lealataua claimed an interest in “Auta” as a public reserve, obtained by them by subjugating the people of Aitulagi. The men of Lealataua County number some hundreds, whilst those of Aitulagi only several score. Under the conditions obtaining previously in the Government of these Islands, it would have been dangerous for the Plaintiff to openly assert his claim against such a powerful opponent. He and his family would have been immediately driven out of the place and all his property confiscated had he dared to show resistance. He therefore preferred to quietly continue his cultivations under the apparent authority of the Defendants. This author*137ity may have been such as has been exercised by the community in general over the lands of any individual.
It was a well known custom in Samoa that the individual owner of property, notwithstanding his well established rights to it, was subject to the will of the community and upon the commission of any act contrary to the desire of the community he would be banished or have to submit to gross degradation imposed by the people. An admission by a party under such conditions cannot be held to be a free and voluntary admission.
In the year 1864 the Defendants submitted that their people engaged in battle with the Aitulagi people over the land “Auta”, and the Aitulagi people were driven from their homes. Some years after a reconciliation took place between the contending factions, the Leone people received the defeated party and after entertaining them for some months escorted them back to the site of their homes and there re-established them in possession. Some fine mats were presented by the Aitulagi people by way of redemption. As to whether any definite agreement was made regarding the land “Auta” or not the evidence throws little or no light upon the question. The facts presented to the Court by both parties clearly show:—
(1) That the Aitulagi people, of whom the Maloata family form an important and large part, claimed the land before that war.
(2) That at that time the title was in dispute.
(3) That since that time the Plaintiff has endeavored to definitely assert his title, but has been unable .to do so, owing to the conditions then prevailing.
(4) That the Plaintiff has cultivated and improved the land permanently and has reaped the produce, the fruits of his labor.
(5) That the Defendants have occasionally cultivated taro on portions of the land.
*138From these facts the Court is compelled to the conclusion that the Plaintiff, Maloata, owns the land called “Auta” and that the Defendants have no legal right whatever to it.
But it is necessary for the Court to settle the boundaries of the land, as both parties have given different descriptions. Yet the main part of .the land is substantially accepted by both parties to be “Auta”, especially the portion under cultivation. The variance of the boundaries applies to the portions of land not so cultivated or which still remain virgin forest. After due consideration the Court is of the opinion that the boundaries as laid down by the Defendants should be recognized and declared to be forever the boundaries of the land known as “Auta”.
The Court decides, unanimously, that Maloata is the owner in fee of “Auta”, as described by the Defendants and delineated in the plat marked “B” on exhibit in the cause, and judgment is ordered to be entered up in accordance with the foregoing. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484854/ | DECISION
One Vili entered suit against Faiivae claiming a section of a block of land known as “Tia” and which is delineated in the plan before the Court marked “A” and colored red. Upon investigation, it transpired that Vili claimed only an interest in the land in conjunction with two women, relatives of his mother, Malia, viz., Faatoa and Siopitu. Thereupon the Court ordered that the names of these two women should be joined as plaintiffs.
Faatoa and Siopitu are daughters of Paipai, and Malia (deceased) was a half sister of Paipai, who, by virtue of his right to the land as a descendant of Faiivae Sootoo, or (as expressed by them, Faiivae Leoo) vested all his interest in Faatao, Siopitu and Malia, who cultivated and reaped the produce of the land until Faiivae Ioane forcibly took possession and prohibited the three women from making further use of the property, and they have been prevented from enjoying their rights to the land from that time to the present. The defendant Faiivae is a brother of Faiivae Ioane. He claims that the land is the absolute property of his branch of the Faiivae family, and that no other division of the family, nor any other Faiivae who may be elected from the members of the other branches can have and claim any interest in the land. It is admitted by the plaintiffs that the titled chief of the settlement known as “Tia” is “Faiivae” but they deny the right of the present holder to the title. Both parties agree that at one time the block of land known as “Tia” was subdivided by a former Faiivae amongst the several members of the Faiivae fam*140ily. The defendant, notwithstanding this admission, claims not only the land in dispute, but all other sections of Tia, which were apportioned out amongst the divisions of the tribe.
A number of years ago, a section of Tia was given over to the London Missionary Society for their work in Tutuila, and subsequently the Mission abandoned the place for reasons concerning health. Matthew Hunkin, the father of the defendant (who is also known as Alfred Hunkin), owned a section of land in Manua and he transferred his interest in the Manua land to the London Missionary Society for the section of Tia, which had been previously occupied by the Society. By right of such exchange, the defendant avers that all claims to the Faiivae divisions, who had been entitled to those sections, were forfeited. The section of Tia, which was occupied by the Mission is delineated on the plan marked “A” colored blue. The plaintiffs allege, that after this transaction, Faiivae Ioane asserted his ownership to the land which was used by the Mission, and also the section adjoining, being the land now in dispute. The Court does not intend to decide the question of ownership to the lands adjoining the section claimed by the plaintiffs. The object in referring to those lands is merely to state an introduction to the claim of the defendant.
After the subdivision of the land Tia, as before stated, the office of “Faiivae” was vacant, and in the absence of any titular head, the family divisions pursued their avocations on the lands allotted them; the parents of the plaintiffs and the plaintiffs themselves occupied and cultivated the land now claimed. One Sipai was then elected to be the “Faiivae” but not giving satisfaction to the family, Ioane, the son of Matthew Hunkin, was appointed. Sipai and Ioane held the title contemporaneously until the former retired. Faiivae Ioane was then the reputed head of the family. The plaintiffs have raised the question of the right of *141the sons of Matthew Hunkin, whose wife was alleged to have been a member of the Faiivae family, to the title. As to whether they have a right through their mother to the name “Faiivae” or not, is of little consequence. It is sufficient that both Ioane and the present Faiivae have held the position of head of the family, and have been recognized as the chief “Faiivae” for many years. But, can the holder of the title “Faiivae” assume absolute ownership of the family lands and deprive the other members of their rights as claimed by the present Faiivae? The Court decides that he cannot. The relationship which exists between the “Faiivae” and the plaintiffs is somewhat similar to that which exists between a Guardian and Ward. These women being the only surviving members of their branch of their family, suffered, as it were, a disability which precluded them from asserting their rights as against the chief of the tribe.
And for this reason, the Court considers that here in Samoa, when a weaker branch of a family is deprived of its rights through the superior rank or force of the head chief, no period of occupancy should be reckoned in declaring that the chief has title by prescription. To apply the rule concerning adverse possession amongst members of the same family would result in an injury and injustice. Siopitu and Faatoa claim through Paipai, who is descended from Nona, a daughter of the Faiivae, who subdivided the land. Nona was a sister of Faapuaiga, one of the divisions of the Faiivae family, who received a share of Tia. No other claimants under this branch have come forward, and the Court concludes that the plaintiffs are the only persons who have any claim under that branch of the Faiivae family.
Faiivae also claims that he is descended from a daughter of Faiivae Sootoo, and if his statement were admitted his grandmother Vaiapua would be a sister of Nona. But .this is contradicted by Siopitu, who states that the grandmother of Faiivae was Agasamoa, who dwelt in her father’s fam*142ily. The Court is satisfied that Siopitu and Faatoa are direct descendants of Faiivae Sootoo and that the portion of land claimed by them is the section awarded by a former Faiivae to their branch of the family, and that they have a right to the same. Paipai, the father of Siopitu and Faatoa, having vested in the mother of Vili an interest in the land, he also is entitled to a joint interest with Siopitu and Faatoa; and it is ordered that a decree issue vesting the property in Siopitu, Faatoa and Vili, the plaintiffs herein.
Court costs to be assessed — 1/3 of which shall be paid by plaintiffs and 2/3 by the defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484855/ | The above-entitled cause having come on to be heard, and testimony having been taken on behalf of all parties concerned in the said cause, and upon due consideration of same,
IT IS ORDERED, ADJUDGED AND DECREED, that the property in controversy LEGAOA is defined to be the flat land of the valley before the rise to the hills surrounding.
*143That the said land Legaoa is the property of Toomata by deed from Talamaivao.
That those persons who have improved portions of Legaoa by planting cocoanuts are entitled to compensation to the extent of the value of bearing cocoanuts.
That in view of the difficulty of ascertaining the amounts to be paid, the Court recommends that the land Legaoa be divided equally, the inland portion to be the property of Toomata and the seaward portion the property of the Le-one defendants, except Leoso.
That the Leone defendants, except Leoso, mutually partition the portion adjudged to them, but if they cannot do this, the Court, upon reference to it, will apportion the land amongst them after ascertaining the extent of their improvements.
That a survey be made of the land declared to be Legaoa, Toomata to pay one-half and the defendants, one-half.
That in subdivision of defendants’ land, defendants pay all costs and expenses, including survey.
That lands alienated are not included in this decision.
Costs to be paid $60, one-half by Toomata, one-half by defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484856/ | OPINION
The plaintiff claims a tract of land containing six acres, situated in the division of Pago Pago known as Autapini, under the name or title of “FAUSAGA”.
The defendant contests .this claim on the ground that the property is the seat of the Mageo family, one of the oldest families in Pago Pago, and denies that the section of land known as “FAUSAGA” extends to all the limits as described by the claimant, but is confined to a subdivision on the sea-beach.
It is admitted by the Plaintiff that the land was the property of the Mageo family, and that one Ivi bequeathed it to Ema, the plaintiff’s mother, for the benefit of herself and her children. Ema was an adopted daughter of Ivi, who had gone to Manua and married her mother. Mageo Vee*145valu contended that there had never been at any time any alienation of the family lands, notwithstanding the adoption by Ivi of Ema, who was a stranger in Tutuila. A great deal of unnecessary testimony was given by both parties as to genealogies, and, in fact, the greater part of the trial was taken up in futile attempts to explain the true lineal descent of parties to the trial.
In a former suit between the parties, Sapela v. Armstrong and Mageo, 1 A.S.R. 124 (1905), concerning a section of the land in controversy it was decided that:—
“It behooves the Court to conclude that the Plaintiff, Sapela, and those claiming with her, have an interest in the land in dispute, and that Mageo disregarded that interest when transferring the land to the defendant. The Court, however, is not prepared to define the extent of that interest. It seems that if the parties cannot agree amongst themselves, it will be necessary for further action to be taken, and the Court to receive more evidence as to the interest involved in the greater estate claimed by Sapela, and then make the necessary disposition of the property.”
“A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be drawn in question in any future action between the same parties or their privies, whether the causes of action in the two suits be identical or different.” (Black on Judgments, 504, Vol. 2, and citations therein.)
The land then in dispute comprised only a small section of the land now claimed by the plaintiffs, who had not, at that time, definitely asserted their right to the whole of the property now in dispute, and whilst that decision carries with it a certain presumption that the Plaintiffs do retain an interest in the property now claimed, it cannot be allowed under that finding that the interest extends to the whole of the land now in dispute.
As in that action there was not afforded a full legal opportunity for an investigation and determination of the *146merits of the claim of .the plaintiff, it has been necessary for the Court to receive further evidence as to the alleged transactions which form the basis of the present claim.
The Court, in the former suit, was unable, owing to the uncertainty of the evidence produced, to definitively settle the first question in relation to the section then before the Court, and in the present proceeding the plaintiffs have brought forward no further reliable testimony to support their title. So the Court again is confronted with the same difficulty.
The whole burden of proving conclusively that the property was vested absolutely in Erna and her children rests entirely on the plaintiffs, and, unless there is a sufficiency of evidence adduced to sustain their contention, they cannot obtain judgment. It is necessary for the Court to scrutinize most carefully claims of this nature, especially when the heirs of the .testator are likely to be ousted from their inheritance by such claims being supported.
There must be something more than a mere assertion of a bequest by one witness. When the immediate members of a dying man’s family are not called in to hear the final disposition of a testator’s property there is always ground for strong suspicion against the party asserting a right under a bequest made secretly, unless good reason can be shown for thus making a secret disposition, instead of —as in the true Samoan custom — declaring the last wishes openly before the members of the family then assembled. The whole claim of the plaintiffs hangs on the evidence of one Pulu, and the fact that the parents of the plaintiff are buried on a portion of the property.
Pulu is a witness unworthy of credit. It appears also that in the year 1903, some differences occurred in the Mageo family, and that Pulu, Fanene, Sapela and Tuinei, conspired to expel Mageo from the land.
*147Prior to this, none of the Plaintiffs had ever laid claim to the land. Opportunities have been afforded to them to lay claim, and, upon resistance being shown, to have the dispute referred to a judicial authority for settlement. In answer to the enquiry why no overt act had been committed by them, they rely on the usual subtle reply of “Faasaua’’, or aggressiveness on the part of the defendant. A bare reply such as this is not sufficient to excuse a party from openly asserting a claim rightly made. The claim should have been made in a manner suitable to the times, and then, if there had been aggressive conduct on the part of the defendant, it would be of good weight to the plaintiff. It is stated that a brother of one of the plaintiffs, S apela, was living on the land and removed from it at the instigation of Mageo Veevalu. But whether Fuga, the brother, left reluctantly and under protest, or willingly, is uncertain.
This was about twenty years ago, and since that time the Mageo family has continuously occupied the land and asserted ownership against all people.
There is no sufficient evidence to support the claim of the plaintiffs that the property was vested in them by Ivi, as against the true heirs of Mageo, who, if he had chosen, could have so disposed of the land. But the witnesses do not sustain that bequest.
Ema was adopted into .the Mageo family by Ivi, and thereupon became a member of the Mageo family, and entitled to an interest in the community property of that family. Her descendants, so long as they chose to remain members of the Mageo family, hold a similar interest, which would enable them to have a domicile on the property, and to cultivate and reap the produce of a portion of the property. This is all the interest which the present plaintiffs can claim and have awarded to them. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484857/ | Upon motion of Tufaga, one of the Petitioners, for himself and on behalf of the other Petitioners in the above-entitled cause, moving this Court to enforce the judgment of the Court for that the Respondents herein have not satisfactorily performed the conditions of the Judgment which on their part should have been observed and performed, as set forth in the affidavit of said Tufaga filed herein.
And it appearing to the Court, upon a personal inspection of the premises, that the Respondent herein has not satisfactorily performed the conditions which on his part were to have been performed in that he, the Respondent, or his Agent or Representative have failed to erect a school on the land leased and place a qualified teacher there for the purpose of educating pupils belonging to the Town of Aua within a period of four months from the date of the Judgment (Jan. 29, 1906), within the meaning and intention of said Judgment.
Now therefore, in pursuance of said motion, it is hereby ordered, adjudged and decreed by this Court that the lease *149entered into on the 16th day of May, 1904, between Tufaga and others and the Church of Jesus Christ of Latter Day Saints for the lease of certain land in Aua, to be used for educational and religious purposes, for forty years upon the consideration of Five Dollars ($5.00) a year, be and the same is hereby cancelled, and every condition, term, clause, matter and thing in said lease shall immediately cease and determine, and the land demised in said lease shall thereupon revert to the lessors, who may enter unto and upon the said premises (subject to the time for removal hereinafter stated) and possess and reoccupy the same as in their former estate.
And it is hereby ordered that the Respondent quit the land described in said lease within one week from the date of this order, with authority to remove the structure erected thereon by them within one week from date.
Costs of proceedings assessed at $15.00 to be paid by the Respondent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487065/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 01:08 AM CST
- 275 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MANN V. MANN
Cite as 312 Neb. 275
Asia R. Mann, now known as
Asia R. Harrison, appellee, v.
Brian L. Mann, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-19-1194.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Final Orders: Appeal and Error. A trial court’s decision to certify a
final judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)
is reviewed for an abuse of discretion, but whether § 25-1315 is impli-
cated in a case is a question of law which an appellate court considers
de novo.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory, and unless a statute provides for an appeal, such right does
not exist.
5. Legislature: Final Orders: Appeal and Error. The Legislature has
authorized appeals from judgments and decrees, as well as final orders,
made by the district court.
6. Final Orders: Appeal and Error. In cases that present multiple claims
for relief or involve multiple parties, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016) permits a trial court to certify an otherwise interlocutory
order as a final, appealable judgment under the limited circumstances
set forth in the statute.
7. ____: ____. When a court properly directs the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) as to certain claims
or parties, the order is treated as a judgment from which an aggrieved
party can appeal.
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8. Claims: Parties. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is impli-
cated only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which adjudi-
cates fewer than all the claims or the rights and liabilities of fewer than
all the parties.
9. Actions: Words and Phrases. For purposes of determining whether
a case presents more than one “claim for relief” under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016), the term is not synonymous with “issue”
or “theory of recovery,” but is instead the equivalent of a “cause
of action.”
10. Claims: Parties: Judgments: Appeal and Error. When a case involves
multiple claims for relief or multiple parties, and the court has entered
an order adjudicating fewer than all the claims or the rights and liabili-
ties of fewer than all the parties, then, absent a specific statute govern-
ing the appeal providing otherwise, Neb. Rev. Stat. § 25-1315 (Reissue
2016) controls and mandates that the order is not immediately appeal-
able unless the trial court issues an express direction for the entry of
judgment upon an express determination that there is no just reason
for delay.
11. Claims: Parties: Judgments. Absent the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016), orders adjudicating
fewer than all claims against all parties are not final and are subject to
revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.
12. Final Orders: Words and Phrases. The term “final judgment” as used
in Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is the functional equiva-
lent of a “final order” within the meaning of Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2020).
13. Final Orders: Appeal and Error. To be appealable, an order must
satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) and, where implicated, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
14. Claims: Parties: Final Orders: Appeal and Error. In cases where
Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is implicated, and no more
specific statute governs the appeal, an order resolving fewer than all
claims against all parties is not final and appealable if it lacks proper
§ 25-1315 certification. This is so even if the order otherwise satisfies
one of the final order categories in Neb. Rev. Stat. § 25-1902(1) (Cum.
Supp. 2020).
15. Actions: Final Orders. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)
can be implicated in civil actions, in special proceedings, and in civil
actions joined with special proceedings.
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Petition for further review from the Court of Appeals,
Moore, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Douglas County, J Russell Derr, Judge.
Judgment of Court of Appeals vacated and remanded with
directions.
Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellant.
Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is an interlocutory appeal from an order of par-
tial summary judgment entered in a proceeding brought to
modify custody and child support. The Nebraska Court of
Appeals concluded the summary judgment order was imme-
diately appealable as a final order in a special proceeding
under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020) and
affirmed. On further review, we conclude that Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) was also implicated because the
case involved multiple claims for relief and the partial sum-
mary judgment order resolved fewer than all such claims.
Because § 25-1315(1) is implicated but has not been satis-
fied, we must vacate the decision of the Court of Appeals and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
BACKGROUND
In 2009, Asia R. Mann, now known as Asia R. Harrison
(Harrison), gave birth out of wedlock to a daughter, Maleah D.
In 2010, a California court established paternity and entered
a judgment which granted Harrison sole legal and physical
custody of Maleah and granted visitation rights to Maleah’s
biological father.
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Marriage and Divorce
In 2011, Harrison married Brian L. Mann. Their marriage
produced two children. In 2016, Harrison filed a complaint for
dissolution in the district court for Douglas County, Nebraska.
While the dissolution was pending, Maleah’s biological father
registered the California paternity judgment in the same court.
However, no party brought the registered paternity judgment
to the attention of the dissolution court before the decree was
entered, nor was the court informed that Maleah was the sub-
ject of a California custody judgment.
In July 2018, the district court entered a stipulated decree
dissolving the parties’ marriage. The decree provided for
joint legal and physical custody of the parties’ two children.
Additionally, the decree recited that Mann stood in loco paren-
tis to Maleah and ordered the parties to share joint physical
custody of Maleah, with Harrison having sole legal custody.
The decree also approved the parties’ stipulated parenting plan
and ordered Mann to pay child support for all three children.
Neither party appealed the 2018 decree.
Complaint to Modify Joined With
Declaratory Judgment Action
In July 2019, Mann filed a complaint to modify his child
support obligation and certain provisions of the parenting plan.
Harrison’s answer generally denied that Mann was entitled
to modification. Harrison’s answer also alleged two counter-
claims. Her first counterclaim was framed as an action under
the Uniform Declaratory Judgments Act, 1 and it attacked the
validity of provisions in the 2018 decree relating to Maleah’s
custody and care. 2 Harrison alleged, summarized, that when the
decree was entered, the 2010 California judgment of paternity
1
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
2
See Neb. Rev. Stat. § 42-346 (Reissue 2016) (providing that divorce decrees
are “conclusively presumed . . . valid in all respects, notwithstanding some
defect . . . unless an action is brought within two years from the entry of
such decree of divorce attacking the validity thereof”).
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and custody was still in full force and effect, and that California
had not relinquished its exclusive and continuing jurisdiction
over Maleah under the Uniform Child Custody Jurisdiction and
Enforcement Act. 3 She therefore alleged the Nebraska court
did not have subject matter jurisdiction over Maleah when the
dissolution decree was entered, and she sought a declaration
that “any orders for [Maleah’s] custody and care should be
declared void as a matter of law.” Harrison’s second counter-
claim sought to modify custody of the other two children to
give her sole legal and physical custody.
Partial Summary Judgment Granting
Declaratory Relief
Both parties moved for partial summary judgment on
Harrison’s counterclaim for declaratory judgment. After an
evidentiary hearing, the district court entered an order which
granted Harrison’s summary judgment motion and vacated that
“portion of the Decree that provides for ‘in loco parentis’ rights
to [Mann] with regard to Maleah.” The order did not expressly
overrule Mann’s summary judgment motion or address his sup-
port obligations regarding Maleah.
Mann filed a motion to clarify and to set a supersedeas bond.
In an order entered December 20, 2019, the district court clari-
fied its prior order by granting Harrison’s motion for summary
judgment, denying Mann’s motion for summary judgment,
voiding every provision in the 2018 decree and parenting plan
pertaining to Maleah, and eliminating all of Mann’s support
obligations regarding Maleah. The December order also denied
Mann’s request for a supersedeas bond.
Mann filed a notice of appeal from the partial summary
judgment order, assigning error to the district court’s conclu-
sion that it lacked subject matter jurisdiction over Maleah under
the Uniform Child Custody Jurisdiction and Enforcement Act
when the decree was entered. It is undisputed that when the
3
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp.
2020).
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notice of appeal was filed, the parties’ competing complaints to
modify custody and support remained pending and unresolved
in the district court. Likewise, it is undisputed that Mann did
not ask the court to enter final judgment on the declaratory
judgment claim under § 25-1315(1), and no such certification
was issued sua sponte.
Court of Appeals
The Court of Appeals affirmed. 4 It first addressed appellate
jurisdiction, rejecting Harrison’s argument that the partial sum-
mary judgment order was not immediately appealable under
any of the final order categories enumerated in § 25-1902.
Instead, the Court of Appeals reasoned that custody modi-
fications are considered special proceedings, 5 so the order
granting partial summary judgment was an order “affecting
a substantial right made during a special proceeding” under
§ 25-1902(1)(b). The opinion did not discuss or distinguish our
cases reciting the rule that partial summary judgment orders
are interlocutory in nature and will not be considered final
4
Mann v. Mann, 29 Neb. App. 548, 956 N.W.2d 318 (2021).
5
See, Yori v. Helms, 307 Neb. 375, 390, 949 N.W.2d 325, 337 (2020)
(“[p]roceedings regarding modification of a marital dissolution are
special proceedings”); Huskey v. Huskey, 289 Neb. 439, 449, 855 N.W.2d
377, 385 (2014) (“an order modifying custody arises from a special
proceeding”); Fitzgerald v. Fitzgerald, 286 Neb. 96, 105, 835 N.W.2d 44,
51 (2013) (“modification of child custody and support in a dissolution
action is . . . a special proceeding”); Steven S. v. Mary S., 277 Neb. 124,
129, 760 N.W.2d 28, 33 (2009) (“proceedings regarding modification of
a marital dissolution . . . are special proceedings”); State ex rel. Reitz
v. Ringer, 244 Neb. 976, 980, 510 N.W.2d 294, 299 (1994), overruled
on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780
(1999) (“custody determinations, which are controlled by § 42-364, are
considered special proceedings”). But see Carmicheal v. Rollins, 280
Neb. 59, 72, 783 N.W.2d 763, 772 (2010) (Connolly, J., concurring)
(acknowledging prior holdings treating custody modifications as special
proceedings but noting they are arguably “more properly” treated as order
affecting substantial right made on summary application in action after
judgment is rendered).
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until all issues in the case are determined. 6 And although the
Court of Appeals noted that the modification case presented
other claims for relief that had not yet been resolved, 7 its
jurisdictional analysis did not address whether § 25-1315(1)
was implicated.
After concluding it had appellate jurisdiction, the Court of
Appeals framed the question on appeal as whether the district
court had the authority to vacate or modify portions of the
2018 decree upon learning that it “should not have exercised
jurisdiction on issues related to Maleah’s custody due to the
California court’s continuing jurisdiction.” 8 It answered that
question in the affirmative, finding the necessary authority in
Neb. Rev. Stat. § 25-2001(4) (Reissue 2016), which governs
a district court’s power to vacate or modify judgments after
term. The Court of Appeals therefore affirmed the district
court’s order granting partial summary judgment in favor
of Harrison.
We granted Mann’s petition for further review and ordered
supplemental briefing. Among other questions, we asked the
parties to brief whether, to be immediately appealable, an order
of partial summary judgment which adjudicates fewer than all
claims for relief presented in a custody modification case must
satisfy both § 25-1902 and § 25-1315. The parties submitted
supplemental briefs addressing this question, which we sum-
marize later in our jurisdictional analysis.
ASSIGNMENTS OF ERROR
On further review, Brian assigns three errors, which can
be consolidated and restated into one. He asserts the Court of
Appeals erred in concluding the district court had authority,
6
See, e.g., O’Connor v. Kearny Junction, 295 Neb. 981, 987, 893 N.W.2d
684, 690 (2017) (“[p]artial summary judgments are usually considered
interlocutory. They must ordinarily dispose of the whole merits of the case
to be considered final . . .”).
7
See Mann, supra note 4.
8
Id. at 559, 956 N.W.2d at 327.
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under § 25-2001(4), to vacate the 2018 decree provisions relat-
ing to Maleah.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 9
[2] A trial court’s decision to certify a final judgment pursu-
ant to § 25-1315(1) is reviewed for an abuse of discretion, 10
but whether § 25-1315 is implicated in a case is a question of
law which an appellate court considers de novo.
ANALYSIS
Appellate Jurisdiction
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. 11
[4,5] The right of appeal in Nebraska is purely statutory,
and unless a statute provides for an appeal, such right does
not exist. 12 The Legislature has authorized appeals from judg-
ments and decrees, as well as final orders, made by the district
court. 13 A judgment is defined in Neb. Rev. Stat. § 25-1301
(Cum. Supp. 2020) to mean “the final determination of the
rights of the parties in an action.” 14 Final orders are defined in
§ 25-1902, which currently recognizes four categories of final
9
Clason v. LOL Investments, 308 Neb. 904, 957 N.W.2d 877 (2021).
10
Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391
(2015).
11
See Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d
906 (2016).
12
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
13
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
14
See, also, Becher v. Becher, 311 Neb. 1, 27, 970 N.W.2d 472, 492 (2022)
(“[a] ‘judgment’ is a court’s final consideration and determination of the
respective rights and obligations of the parties to an action as those rights
and obligations presently exist”).
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orders; some categories pertain to actions, 15 and one pertains to
special proceedings. 16
[6,7] Additionally, in cases that present multiple claims for
relief or involve multiple parties, § 25-1315(1) permits a trial
court to certify an otherwise interlocutory order as a final,
appealable judgment under the limited circumstances set forth
in the statute. 17 Subsection (1) of that statute provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment. In the absence of such determina-
tion and direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
When a court properly directs the entry of a final judgment
under § 25-1315(1) as to certain claims or parties, the order
is treated as a judgment from which an aggrieved party can
appeal. 18
Here, the Court of Appeals concluded it had appellate juris-
diction, reasoning the order granting partial summary judgment
15
See § 25-1902(1)(a) and (c).
16
See § 25-1902(1)(b).
17
Castellar Partners, supra note 10.
18
See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
See, also, § 25-1912(1) (providing procedure for appeals from district
court); Neb. Rev. Stat. § 25-2729(1) (Cum. Supp. 2020) (providing appeal
procedure from county court).
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was an order affecting a substantial right made in a special
proceeding and thus was a final order under § 25-1902(1)(b).
Neither party challenges this conclusion on further review, and
we express no opinion on the Court of Appeals’ final order
analysis or the circumstances, if any, under which a sum-
mary judgment order granting declaratory relief can satisfy
the final order requirements of § 25-1902(1)(b). Instead, we
focus on a different jurisdictional question: Is this a case where
§ 25-1315(1) is implicated?
The parties addressed this question in their supplemen-
tal briefing. Mann argues, summarized, that our appellate
jurisdiction turns exclusively on the final order require-
ments in § 25-1902(1)(b). He reasons that “[w]here an order
already meets the clear statutory definition of a final order
under [§ 25-1902], a separate order by the trial court des-
ignating that same order as final under [§ 25-1315] would
be superfluous for the purposes of determining appellate
jurisdiction.” 19 And he contends this case presents a final
order under § 25-1902(1)(b) because the summary judgment
order was entered in a special proceeding and affected his
substantial rights.
Harrison argues that even if the summary judgment order
was entered in a special proceeding, both § 25-1315(1) and
§ 25-1902 must be satisfied in this case to confer appellate
jurisdiction. Harrison argues that § 25-1315(1) is implicated
here because the case presents multiple claims for relief and
the summary judgment order resolved only the counterclaim
for declaratory judgment. She also argues, “There is no indica-
tion that the [L]egislature intended to [exempt] custody modi-
fication proceedings, or any other type of special proceedings
from [the] requirements” 20 of § 25-1315.
To address the parties’ competing jurisdictional arguments,
we begin by reviewing § 25-1315(1) and the pertinent cases
construing it.
19
Supplemental brief for appellant at 8.
20
Supplemental brief for appellee at 9.
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§ 25-1315(1)
Under Nebraska’s liberal joinder rules, a case can involve
multiple plaintiffs, multiple defendants, and multiple claims for
relief, including counterclaims, cross-claims, and third-party
claims. 21 Appellate jurisdiction is relatively straightforward
when a judgment or decree resolves all claims presented as to
all parties. But before § 25-1315 was enacted, the rules gov-
erning interlocutory appeals in civil cases involving multiple
claims or multiple parties generally provided:
[A]n order that effected a dismissal with respect to one
of multiple parties was a final, appealable order, and
the complete dismissal with prejudice of one of multiple
causes of action was a final, appealable order, but an
order dismissing one of multiple theories of recovery, all
of which arose from the same set of operative facts, was
not a final order for appellate purposes. 22
Uncertainty in applying these rules in multiclaim, multiparty
cases prompted some parties to file premature appeals, and
others to miss appeal deadlines altogether. 23
To clarify and simplify appellate jurisdiction in cases involv-
ing multiple claims and multiple parties, 24 the Legislature
enacted what is now codified as § 25-1315. 25 In enact-
ing § 25-1315, the Legislature attempted to strike a balance
21
See, e.g., Neb. Rev. Stat. §§ 25-311, 25-320, 25-701, and 25-705 (Reissue
2016).
22
TDP Phase One v. The Club at the Yard, 307 Neb. 795, 801, 950 N.W.2d
640, 646 (2020).
23
See, e.g., Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448,
558 N.W.2d 531 (1997), overruled on other grounds, Hornig v. Martel
Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000) (missed deadline to
appeal); Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990) (appeal
prematurely filed).
24
See Bargmann v. State, 257 Neb. 766, 773, 600 N.W.2d 797, 804 (1999)
(noting what is now codified as § 25-1315 was enacted to “simplif[y]”
appellate jurisdiction and “clear[] up many of the questions regarding final
orders when there are multiple parties and claims”).
25
See § 25-705(6) and (7) (Cum. Supp. 1998).
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between the undesirability of piecemeal appeals and the poten-
tial need for making review available at a time that best serves
the needs of the parties. 26
[8,9] By its terms, § 25-1315(1) is implicated only when a
case presents more than one claim for relief or involves multiple
parties, and the court enters an order which adjudicates fewer
than all the claims or the rights and liabilities of fewer than
all the parties. 27 For purposes of determining whether a case
presents more than one “claim for relief” under § 25-1315(1),
we have said the term is not synonymous with “issue” or
“theory of recovery,” but is instead the equivalent of a “cause
of action.” 28 Because of this construction, our cases sometimes
use the phrases “claim for relief” and “cause of action” inter-
changeably when analyzing whether § 25-1315 is implicated. 29
[10,11] When § 25-1315 is implicated, we have explained
the consequences this way:
[When a case involves] multiple claims for relief or
multiple parties, and the court has [entered an order
adjudicating] fewer than all the claims or the rights and
liabilities of fewer than all the parties, then, absent a
specific statute governing the appeal providing other-
wise, § 25-1315 controls and mandates that the order is
not immediately appealable unless the lower court issues
an “express direction for the entry of judgment” upon
“an express determination that there is no just reason
for delay.” 30
26
TDP Phase One, supra note 22.
27
See, Clason, supra note 9; State on behalf of Marcelo K. & Rycki K. v.
Ricky K., 300 Neb. 179, 912 N.W.2d 747 (2018); Rafert v. Meyer, 298
Neb. 461, 905 N.W.2d 30 (2017); Guardian Tax Partners v. Skrupa Invest.
Co., 295 Neb. 639, 889 N.W.2d 825 (2017); Cerny, supra note 18.
28
State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). See, also,
Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
29
Compare, e.g., Guardian Tax Partners, supra note 27 (cause of action),
with Cerny, supra note 18 (claim for relief).
30
TDP Phase One, supra note 22, 307 Neb. at 800, 950 N.W.2d at 645-46.
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Further, absent the entry of a final judgment under § 25-1315(1),
orders adjudicating fewer than all claims against all parties are
not final and are “‘subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.’” 31
Here, the Court of Appeals analyzed whether the summary
judgment order satisfied the final order requirement under
§ 25-1902, but it did not discuss whether § 25-1315(1) is also
implicated in this case. As we explain, it is implicated here,
and because the district court did not certify the order as a final
judgment under § 25-1315(1), we lack appellate jurisdiction.
§ 25-1315 Is Implicated
Although this case does not involve more than one plaintiff
or defendant, it does involve multiple claims for relief, and no
party contends otherwise. Mann’s complaint sought to modify
child support and the parenting plan under the 2018 decree,
and Harrison’s answer alleged a counterclaim which sought to
modify custody. In addition, Harrison filed a counterclaim for
declaratory judgment, asking that portions of the 2018 decree
pertaining to Maleah be declared void for lack of subject mat-
ter jurisdiction. Without addressing the propriety of Harrison’s
choice to attack the validity of the decree through a declaratory
judgment action, this is plainly a case where the order of partial
summary judgment adjudicated fewer than all of the claims for
relief that were permissively joined in this modification case.
We therefore conclude that § 25-1315(1) is implicated here
because the case involves multiple claims for relief, and the
court entered an order adjudicating fewer than all of them. 32
And because § 25-1315(1) was implicated, the partial summary
judgment order resolving the declaratory judgment action was
not appealable unless the summary judgment order was prop-
erly certified under § 25-1315(1) or until all of the claims for
31
Boyd v. Cook, 298 Neb. 819, 826, 906 N.W.2d 31, 38 (2018). See
§ 25-1315(1).
32
See Clason, supra note 9.
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relief were resolved. The Court of Appeals thus erred by not
addressing § 25-1315(1) in its jurisdictional analysis.
Both § 25-1902 and § 25-1315
Must Be Satisfied
Mann argues that certification under § 25-1315 was unnec-
essary because “[a]n order for partial summary judgment in a
custody modification which satisfies [§] 25-1902(1)(b) need
not also satisfy [§] 25-1315.” 33 His argument is contrary to
settled precedent and must be soundly rejected. To explain
why, we begin by reviewing the role that § 25-1902 plays in
our § 25-1315 jurisprudence.
[12,13] For nearly 20 years, our cases have construed the
term “final judgment” as used in § 25-1315(1) as “the func-
tional equivalent of a ‘final order’ within the meaning of
[§ 25-1902].” 34 In other words, we have looked to the final
order statute to provide the standard for finality 35 that must be
satisfied for an order to be certified as a “final judgment” under
§ 25-1315. To that end, our cases hold that “a ‘final order’ is
a prerequisite to an appellate court’s obtaining jurisdiction of
an appeal initiated pursuant to § 25-1315(1).” 36 Thus, it is a
well-settled principle in our § 25-1315 jurisprudence that to be
appealable, an order must satisfy the final order requirements
of § 25-1902 and, where implicated, § 25-1315(1). 37
33
Supplemental brief for appellant at 7.
34
Cerny, supra note 18, 273 Neb. at 805, 733 N.W.2d at 884, citing Bailey
v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003).
35
See Cerny, supra note 18, 273 Neb. at 808, 733 N.W.2d at 885 (explaining
that § 25-1315(1) requires finality “in the sense that [there] is an ultimate
disposition of an individual claim entered in the course of a multiple
claims action”).
36
Bailey, supra note 34, 265 Neb. at 546, 657 N.W.2d at 923. See, also,
Rafert, supra note 27.
37
See Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021); Rafert,
supra note 27; Guardian Tax Partners, supra note 27; Connelly v. City
of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009); Cerny, supra note 18;
Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).
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This principle was applied by the Court of Appeals in the
2004 case of Pioneer Chem. Co. v. City of North Platte. 38 In
that case, the appellant argued that Ҥ 25-1315 is not applicable
to special proceedings, such as condemnation actions, and
that appeals in such proceedings, irrespective of whether they
involve multiple claims or multiple parties, are governed only
by [§ 25-1902].” 39 The Court of Appeals rejected that argument
and expressly held that when an order resolves one of multiple
claims in a special proceeding, it is immediately appealable
only if the order satisfies the requirements of both § 25-1902
and § 25-1315. This court summarily affirmed.
More recently, this court has issued several opinions which
illustrate that when § 25-1315(1) is implicated, satisfying
§ 25-1902 alone is not sufficient to make an order final and
appealable. For instance, in State on behalf of Marcelo K. &
Rycki K. v. Ricky K., 40 the State filed an action to establish
child support, and the father filed a counterclaim and cross-
claim seeking to disestablish paternity as to one child and
seeking a custody order regarding the other child. The court
entered an order that disestablished paternity, and the State
filed an interlocutory appeal arguing that the order affected
a substantial right and was entered in a special proceeding.
We held that § 25-1315(1) was implicated, because the case
involved multiple parties and multiple claims for relief and the
order resolved fewer than all claims against all parties. We thus
concluded that absent § 25-1315(1) certification, we lacked
appellate jurisdiction.
As relevant to Mann’s argument, our opinion in State on
behalf of Marcelo K. & Rycki K. expressly rejected the State’s
suggestion that it was unnecessary to satisfy § 25-1315(1)
because the order of disestablishment was immediately appeal-
able as a final order under § 25-1902. We reasoned:
38
Pioneer Chem. Co. v. City of North Platte, 12 Neb. App. 720, 685 N.W.2d
505 (2004).
39
Id. at 724, 685 N.W.2d at 508.
40
State on behalf of Marcelo K. & Rycki K., supra note 27.
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[T]he State does not explain how this would avoid the
effect of § 25-1315. That section states, “In the absence
of such determination and direction, any order or other
form of decision, however designated, which adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties shall not terminate the action as
to any of the claims or parties . . . .” Even if disestablish-
ment was fully adjudicated by [the order being appealed],
it was asserted with other claims in the overall proceed-
ing. Because the [order being appealed] did not adjudicate
those other claims, it did not “terminate the action as to
any of the claims or parties,” including the disestablish-
ment claim. 41
We reached a similar conclusion in TDP Phase One v. The
Club at the Yard. 42 There, we found that § 25-1315(1) was
implicated when a forcible entry and detainer proceeding 43
was joined with actions for breach of contract and breach of
guaranty, as well as counterclaims alleging fraud and tortious
interference. When one of the parties attempted to appeal from
an order of partial summary judgment granting restitution of
the premises, we determined the order was not immediately
appealable absent proper certification under § 25-1315(1). And
because the order of partial summary judgment had not been
properly certified pursuant to § 25-1315(1), we found it unnec-
essary to analyze whether the order qualified as a final order
under § 25-1902.
We applied similar reasoning in Clason v. LOL Investments. 44
That case involved competing actions to quiet title, joined with
counterclaims for ejectment and unjust enrichment. When one
party appealed from an order of partial summary judgment that
41
Id. at 184, 912 N.W.2d at 750.
42
TDP Phase One, supra note 22.
43
See Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003)
(describing forcible entry and detainer as special proceeding).
44
Clason, supra note 9.
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resolved only the quiet title claims, we held that § 25-1315(1)
was implicated because the case involved multiple claims for
relief and the order of summary judgment adjudicated fewer
than all such claims. We rejected the appellant’s suggestion
that satisfying § 25-1902(1)(b) made the order immediately
appealable, reasoning:
[I]n this case, we need not consider [the appellant’s] argu-
ment that the [summary judgment] order is a final order
under § 25-1902. Even assuming that it is a final order
for the reason urged by [the appellant], § 25-1315 does
not permit appeal until either the remaining claims are
resolved or the court enters judgment under § 25-1315,
accompanied by an express determination that there is no
just reason for delay of an appeal. 45
Finally, in Tyrrell v. Frakes, 46 we held that satisfying
§ 25-1902 alone was insufficient to make the order final and
appealable in a case where § 25-1315(1) was implicated. In
Tyrrell, the appellant permissively joined an application for
a writ of habeas corpus, which we have described as a spe-
cial proceeding, 47 with a petition in error. 48 The district court
quashed the habeas claim, and no appeal was taken from that
order. Several months later, the court dismissed the petition
in error, and the appellant filed a notice of appeal challenging
the denial of habeas relief within 30 days of that dismissal.
The State argued the appeal was untimely because it was filed
45
Id. at 910, 957 N.W.2d at 881.
46
Tyrrell, supra note 37.
47
See, Flora v. Escudero, 247 Neb. 260, 266, 526 N.W.2d 643, 647 (1995);
(“[h]abeas corpus is a special proceeding, civil in character, which
provides a summary remedy open to persons illegally detained”); In re
Application of Tail, Tail v. Olson, 144 Neb. 820, 827, 14 N.W.2d 840,
843-44 (1944) (“we decide that the denial of relator’s application for a
writ of habeas corpus and the refusal to allow the writ by the district
court was a final order affecting a substantial right made in a special
proceeding”).
48
See Neb. Rev. Stat. § 25-1901 (Reissue 2016).
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more than 30 days after the order quashing the habeas claim.
We disagreed.
Our opinion in Tyrrell acknowledged that an order deny-
ing habeas relief generally qualifies as a final order entered
in a special proceeding. But we explained that because the
habeas proceeding and the petition in error had been joined in
a single case, § 25-1315(1) was also implicated. And because
no proper certification had been issued under § 25-1315(1),
we concluded the order disposing of the habeas claim did not
become final and appealable until disposition of the petition
in error.
[14] Our decisions in Tyrrell, Clason, TDP Phase One, and
State on behalf of Marcelo K. & Rycki K. are controlling and
demonstrate that in cases where § 25-1315(1) is implicated,
and no more specific statute governs the appeal, 49 an order
resolving fewer than all claims against all parties is not final
and appealable if it lacks proper § 25-1315 certification. This
is so even if the order otherwise satisfies one of the final order
categories in § 25-1902(1). Thus, Mann is simply incorrect
when he argues that § 25-1315(1) need not be satisfied so long
as the order he seeks to appeal satisfies the final order require-
ments under § 25-1902.
§ 25-1315 Can Be Implicated
in Special Proceedings
Finally, to the extent Mann can be understood to argue that
§ 25-1315(1) cannot be implicated in special proceedings,
49
See R & D Properties v. Altech Constr. Co., 279 Neb. 74, 78, 776 N.W.2d
493, 496 (2009) (explaining “[t]o the extent there is a conflict between
two statutes on the same subject, the specific statute controls over the
general statute,” and finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016),
rather than § 25-1315(1), controlled the appeal because it was more
specific). See, also, TDP Phase One, supra note 22, 307 Neb. at 802,
950 N.W.2d at 646-47 (acknowledging “[t]o the extent there is a conflict
between two statutes on the same subject, the specific statute controls
over the general,” but finding no applicable statute that conflicted with
§ 25-1315).
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we are unpersuaded. The above-cited cases demonstrate that
§ 25-1315(1) can be implicated in civil actions, in special pro-
ceedings, and in civil actions joined with special proceedings.
And while we acknowledge that § 25-1315(1), by its terms,
applies when “more than one claim for relief is presented in
an action,” 50 our § 25-1315 cases have not construed the term
“action” as a term of art 51 that equates only to civil actions and
excludes special proceedings.
We generally construe the term “action” to mean “civil
action.” 52 And we generally consider civil actions and special
proceedings to be mutually exclusive. 53 But when the context
supports it, we have also said “[t]he term ‘action’ is a com-
prehensive one, and is applicable to almost any proceeding in
a court of justice by which an individual pursues that remedy
which the law affords.” 54 Our cases construing § 25-1315 illus-
trate that the term “action” is used in the comprehensive sense,
to broadly reference civil cases that present multiple claims for
relief or involve multiple parties.
Asking whether the order at issue was entered in an action or
a special proceeding does little to inform the threshold inquiry
of whether § 25-1315 is implicated. As already explained,
the relevant inquiry for determining whether § 25-1315(1) is
50
§ 25-1315(1) (emphasis supplied).
51
State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 614,
924 N.W.2d 664, 670 (2019) (explaining legal term of art “is a word or
phrase having a specific, precise meaning in a given specialty apart from
its general meaning in ordinary contexts”).
52
In re Interest of R.G., 238 Neb. 405, 413, 470 N.W.2d 780, 787 (1991),
disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582
N.W.2d 350 (1998).
53
See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 597, 788
N.W.2d 538, 546 (2010) (“regardless of a statutory remedy’s location
within Nebraska’s statutes, actions and special proceedings are mutually
exclusive”).
54
Champion v. Hall County, 309 Neb. 55, 76, 958 N.W.2d 396, 411 (2021)
(emphasis omitted).
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implicated turns on whether the case presents multiple claims
for relief or involves multiple parties, as well as whether the
“order or other form of decision, however designated . . . adju-
dicates fewer than all the claims or the rights and liabilities of
fewer than all the parties.” This inquiry is the same whether the
order at issue was entered in a civil action, a special proceed-
ing, or a case permissively joining the two.
We cannot ignore the reality that under Nebraska’s liberal
joinder statutes, 55 civil actions and special proceedings can
be permissively joined in the same civil lawsuit. Here, for
instance, the parties have permissively joined what is com-
monly characterized as a civil action 56 with what is commonly
characterized as a special proceeding. 57 As this case illustrates,
civil cases involving multiple claims for relief are not always
amenable to binary classification as either an action or a spe-
cial proceeding.
[15] We now expressly hold what our prior cases have
implied: Section 25-1315(1) can be implicated in civil actions,
in special proceedings, and in civil actions joined with special
proceedings. Although we remind litigants and judges that not
every order entered in a special proceeding will necessarily
implicate § 25-1315(1), 58 we reject Mann’s suggestion that
special proceedings are categorically exempted from the reach
of § 25-1315.
55
See §§ 25-701 and 25-705 (Reissue 2016).
56
See, e.g., Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631, 694
N.W.2d 832 (2005) (describing declaratory judgments as actions to which
§ 25-1315 would apply). But see Graham v. Beauchamp, 154 Neb. 889,
894, 50 N.W.2d 104, 107 (1951) (“[i]n an action for declaratory judgment
the matter of entering a declaratory judgment has been held to be one of
practice and procedure rather than one of jurisdiction. An action for such
a judgment or relief is a special proceeding . . .”).
57
See cases cited supra note 5.
58
See State on behalf of Marcelo K. & Rycki K., supra note 27, citing
Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017); State
v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); Guardian Tax Partners,
supra note 27.
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CONCLUSION
We need not determine whether the order of partial sum-
mary judgment is a final order under § 25-1902, because
even if it is, we conclude § 25-1315(1) is implicated because
the case involves multiple claims for relief and the summary
judgment order resolved fewer than all such claims. There has
been no proper certification under § 25-1315, and we therefore
lack appellate jurisdiction over this appeal, as did the Court
of Appeals. We vacate the Court of Appeals’ decision and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
Vacated and remanded with directions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484858/ | This cause having been regularly called and tried by the Court, and the findings of fact and conclusions of law, and the decision thereon in writing, having been duly *150rendered by the court, which are now on file in this cause, wherein judgment was awarded in favor of Pele, Tialavea, Niuamoa and Savea, Interpleaders, against all other parties to the issue.
It is now, therefore, hereby ordered, adjudged, and decreed that the above named Pele, Tialavea, Niuamoa and Savea have judgment, as prayed for, against all the other parties to the issue, and each and all of them; that all adverse claims of all of the other parties to the issue, and each of them, and all persons claiming or to claim said premises, or any part thereof through or under the said parties, or any of them, are hereby adjudged and decreed to be invalid and groundless; and that the above named Pele, Tialavea, Niuamoa and Savea be, and they are hereby declared and adjudged to be, the true and lawful owners of the land described in the complaint, and hereinafter described, and every part and parcel thereof; and that their title thereto is adjudged to be quieted against all claims, demands, or pretensions of all the other parties to the issue, or any of them, who are hereby perpetually estopped from setting up any claim thereto, or any part thereof. Said premises are bounded and described as follows :—
Starting at a Milo tree on the boundary of Faumuina bearing West 227°, distance 600 feet; thence bearing 208°, distance 320 feet; thence bearing 352°, distance 100 feet; thence bearing 297°, distance 100 feet; thence bearing 330°, distance 300 feet; thence bearing 347°, distance 350 feet; thence bearing 250°, distance 300 feet; thence bearing 238°, distance 165 feet; thence bearing 305°, distance 188 feet; thence bearing 317°, distance 147 feet; thence bearing 324°, distance 100 feet; thence bearing 355°, distance 86 feet; thence bearing 323°, distance 83 feet; thence bearing 291°, distance 100 feet; thence bearing 320°, distance 83 feet; thence *151bearing 280°, distance 300 feet; thence bearing 294°, distance 350 feet; thence bearing 300°, distance 253 feet; thence bearing 235°, distance 500 feet; thence bearing 308°, distance 136 feet; thence bearing 248°, distance 100 feet; thence bearing 270°, distance 182 feet; thence bearing 278°, distance 200 feet; thence bearing 310°, distance 609 feet; thence bearing 10°, distance 100 feet; thence bearing 45°, distance 400 feet; thence bearing 78°, distance 300 feet; thence bearing 60°, distance 540 feet; thence bearing 100°, distance 300 feet; thence bearing 70°, distance 317 feet; thence bearing 55°, distance 100 feet; thence bearing 115°, distance 135 feet; thence bearing 90°, distance 146 feet; thence bearing 70°, distance 630 feet; thence bearing 95°, distance 400 feet; thence bearing 103°, distance 200 feet; thence bearing 108°, distance 50 feet; thence bearing 180°, distance 51 feet; thence bearing 111°, distance 300 feet; thence bearing 135°, distance 500 feet; thence bearing 125°, distance 95 feet; thence bearing 183°, distance 526 feet; thence bearing 232°, distance 100 feet; and thence bearing 155°, distance 500 feet, to the point of commencement. Witness the Seal of the Honorable Members of the High
Court this 18th day of August, 1906.
/s/C.P. Parks (Seal)
Clerk of the High Court
Original decision is registered in Vol. I, Register of Native Titles pages 99-101 and in Registered Journal No. 329. Plan attached on Register of Native Titles on page 102.
/s/ J. M. Poyer
Deputy Clerk of the High Court | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484859/ | ORDER OF INJUNCTION
The plaintiff in the above-entitled cause having commenced an action in this Court against the above named defendants, and having moved for an injunction against the said defendants, requiring them to refrain from certain acts in said complaint and hereinafter more particularly mentioned. On reading said complaint in said action and it satisfactorily appearing to me therefrom that it is a proper case for an injunction, and that sufficient grounds exist therefor, and the necessary undertaking having been given:
IT IS, THEREFORE, ORDERED by me, Judge of the High Court, that until further order in the premises, you, the said Alafaio and the said Edgar Reid, and all your representatives, agents and all others acting in aid or assistance of you, and each and every one of you, do absolutely desist and refrain from encroaching on the property claimed by the said plaintiff.
Given under the hand and seal of the Court this 5th day of April in the year 1907. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484860/ | JUDGMENT
The lands in dispute in this case are declared to he the property of the Save family, and the person holding the title of Save will hold the lands in trust for the whole family. Such lands that the various members of the family have been working upon may continue to be cultivated by them, but under the direction of the trustee.
The costs of the court, which will be assessed are to be paid by Save, as trustee, and he will direct the several members of the family of the amount which each is .to pay. As trustee, the person holding the title of Save cannot enter into any agreement to sell or lease any portion of the property without first conferring with the members of the Save family and ascertaining their opinion.
Any disputes that might occur between the holder of the title of Save and the members of his family can be referred to the court for settlement, but no dispute as to the title of the property will be allowed.
Let a decree issue vesting the title in Save, as trustee, and the Registrar of Titles is ordered to issue a certificate of .title in favor of said Save as trustee. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484861/ | DECISION
This is a claim to a section of land inland of Leone, and being part of an old settlement known as “Puapua”. The Plaintiffs call the land “Lalolama” but the Defendant styles it “Leusi”. Defendant claims the land in .trust for his wife and children.
Plaintiffs have relied upon the evidence of Samana and Fiu in support of their claim, but from a personal observation made by the Court, the land which both these witnesses have been cultivating is outside of the land now claimed by the defendant, who had on a previous occasion surveyed the property under cultivation by Samana and Fiu, as shown on the plan marked “A”. But the defendant does not now claim that land. The cultivations on the land as marked out, according to plan “B” are the result of the energies of the defendant and his family, except an irregular row of young cocoanuts which was planted by the plaintiff Alapa two years ago when a dispute arose between him and Uo Sopoaga, defendant about the ownership of the property. The weight of the testimony is in favor of .the defendant. Even the witnesses called on behalf of the plain*155tiffs prove that the previous owners of the land from whom the defendant derives title, cultivated the land. It is considered by the Court that the land described in the plat marked “B” and produced by the defendant is the land of Uo Sopoaga, in trust for his wife Vea and her children, and let a decree issue accordingly.
Costs to be paid by plaintiffs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484862/ | DECISION
Taileifi claimed land which has been in occupation by Samana for many years. Samana was about to erect a house on the land which had been occupied by the Samana family, when Taileifi interposed and invoked the court for an injunction restraining Samana from building this house; hence this suit.
In addition to the land upon which this house was being erected, several other lands of the Samana family have been contested also by Taileifi and the title to these lands has been tried in conjunction with the original suit.
It is admitted by the plaintiff that the three properties claimed are the property of the Samana family, but it is *156claimed that he, Taileifi, controls the Samana family; that he can name any person to be a Samana; that he can take away the name from any person holding the name Samana, and further in support of his claims, he asserts that he has alienated other sections of this land in days past without objection or hindrance, — because he has so dealt with these lands, that he has a right also to do what he likes with the Samana lands at the present time.
This appears to be a dispute amongst the Samana family. Taileifi holds a certain office in the Samana family. If a Samana dies, the only person who can keep vigil over the corpse is Taileifi. Such an office obtains in many families in Samoa, but by virtue of that office, the holder of it cannot claim an absolute title to the lands of the family.
The sales which Taileifi says he has made in the past, and on account of which he claims to be the absolute owner of the Samana lands, are sales, which, had they been contested in any court that might have been established at that time would not have been held good.
It frequently happens in some families that when one member has been of a strong mind, he has assumed the title lands and dealt with the property as if it were his own, while the other members of the family who have been weak and too much afraid to oppose him, but there were no courts established where the people could go for protection, and so they had to submit to these forcible sales by the stronger members of their family.
The court orders that these lands, Paipatele, Fasaga and Vaivela are the property of Samana as the head of the Samana family and that Taileifi and other members of the Samana family cannot have control of any part of these lands apart from Samana.
If Taileifi has that right which he says he has of naming the Samana, he can name a Samana and when that person *157holds the name, he controls the whole of the family property. Taileifi still holds the office he claims to hold in the Samana family, and there is no one in the Samana family who can displace him from that office. These old claims which families have, covering the relationships among themselves are still respected.
So from henceforth, let it be understood that the Samana family will control these lands.
Samana must consider the desires of all fhe members of his family, Taileifi among the rest of them.
The costs of the court may appear to be heavy, but there are three pieces of land. The costs will be $60, which will cover everything, including the title to these three pieces of land.
The court looks to Samana to pay it as head of the family, but he will collect it from all members of his family, using these lands.
Let a decree issue vesting the title of these three lands in Samana as trustee, and the Registrar of Titles is ordered to issue a certificate of title ,to said Samana for the said three pieces of land. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484863/ | DECREE
THIS CAUSE, Having been brought on for trial, pursuant to Precept of the President of the High Court, dated August 10th, 1907, and the parties appearing in propriae personae and by counsel, the cause was tried before the Court, whereupon witnesses for all parties concerned were duly sworn and examined, and the evidence being closed, the cause was submitted to the Court for consideration, and after deliberation thereon, the court files its findings in writing, and does hereby ORDER, ADJUDGE and DECREE:
1. That the southwesterly portion of the land in controversy, “LALOPUA” as shown by plan B heretofore filed in this cause, is the property of defendant Leoso; said land being more particularly described as follows: Beginning at a tree on the westernmost corner of said land; thence 123 links, 33 degrees; thence 32 links, 36 degrees; thence in a southeasterly direction, 205 links, 303 degrees; thence in a southwesterly direction 165 links, 205 degrees; thence in a northwesterly direction, 118 links, 304 degrees; thence 122 links, 309 degrees to the place of beginning.
*1592. That that portion of the land in dispute, lying easterly of the portion hereinbefore decreed to Leoso, as shown by plan B, heretofore filed in this cause, is the property of Tui.tele Leapaga, defendant herein; said land being more particularly described as follows; Commencing at a point on the northern corner of Leoso’s said land; thence northeasterly 90 links, bearing 36 degrees; thence 70 links, bearing 40 degrees; thence southeasterly 176 links, 126 degrees; thence southwesterly 25 links, 225 degrees; thence 165 links, 205 degrees; thence northwesterly along the easterly boundary of Leoso’s said land, 205 links, 303 degrees, to the place of commencement.
3. That that portion of the land in dispute, lying easterly of the portion hereinbefore decreed to Tuitele Leapaga, as shown by said plan B, is the property of Uo Sopoaga — it appearing by the files and records of this court that Toomata, plaintiff, did transfer and set over unto said Uo Sopoaga, all his right, title and interest in the portion of Lalopua claimed by said Toomata; said land being more particularly described as follows: Commencing at a point at the northern corner of the land hereinbefore decreed to Tuitele Leapaga; thence northeasterly a distance of 165 links, bearing 32 degrees; thence in a southeasterly direction a distance of 225 links, bearing 303 degrees; thence in a northwesterly direction a distance of 66 links, bearing 231 degrees; thence 86 links, 229 degrees; thence 24 links, 225 degrees to the boundary of the land hereinbefore decreed to Tuitele Leapaga; thence along said boundary of the land of Tuitele Leapaga a distance of 176 links, bearing 126 degrees to the place of commencement.
4. That defendant Faiivae holds the title to that portion of the land in controversy, bounding the land heretofore awarded to Uo Sopoaga, assignee of Toomata, on the northeasterly and on the northwesterly sides, as shown by said plan B. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484864/ | JUDGMENT
The court having taken the dispute between the parties in this case into consideration considers that Noaese is entitled to the land surveyed by him through his father who obtained .the land from Samaga. The land outside of the survey of Noaese which was in dispute between the parties is the property of Atofau.
The costs in this case are to be paid as follows:
Leoso and Léala........................................ $15.00
Atofau ...................................................... 12.50
Noaese ...................................................... 12.50
$40.00
The costs of Noaese are made $12.50 to cover his title, which he will obtain to the land. He prevails in this case as to his own claim, but on Atofau’s side, whom he represented, he does not prevail, and he, representing Atofau will be called upon to see that the costs are paid.
The heavier portion of the costs are placed on Leoso and Léala. I will explain to Leoso why this is: In calculating *161the costs of court, it is necessary sometimes to take into consideration the amount of time taken up by the several parties. Now, it happens, sometimes, .that one party will call witnesses who will go into a lot of matter which is quite irrelevant to the issue. If these parties have taken up the time of the court uselessly, notwithstanding the final issue of the contest, they must expect to pay. Leoso took up a greater portion of the time occupied in this hearing in narrating a story which finally had no real bearing on the title to the land. It would be very interesting to hear it in sitting around a house during the evening just after dinner, but such stories as .that might just as well be kept out of court, unless they are of some use.
Let a decree issue, vesting the title in Noaese to the lands described in the foregoing judgment, and to Atofau to the lands awarded to him in the foregoing judgment, and the Registrar of Titles is ordered to issue a certificate to each of the above in accordance with the provisions of the foregoing judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484865/ | JUDGMENT
The land Letoa has been claimed by five different persons, Alapa, Tuitele, Fiu, Miava, and Uo.
With the exception of the adverse claim of Alapa to Tuitele, the contests between the parties amount to boundary disputes alone.
With regard to these boundary disputes, the court desires to make this suggestion to litigants. Where there are boundaries in dispute in places such as the place where this land is situated, and there are no distinct landmarks to identify their claims, it is infinitely better for all parties ,to endeavor to adjust their differences among themselves without coming into court. And especially in this case, where the differences did not comprise any great area of land.
The court took occasion to go over the boundaries in dispute, and when the different boundaries were pointed out, there was nothing to show permanent land marks. It appears to the court that when persons claiming land of this nature wish to point out their boundaries, they chiefly do so by guess-work. One party will cut a line which he believes to be his boundary, but there is nothing whatever to guide him, and all the information the parties could have obtained from their fore-parents, would not be sufficient to identify these boundaries.
Unfortunately there is a lot of petty ill-feeling among the contestants in this case, and I might say that this feeling generally pervades the people of this District.
*163The Court wants .to advise you that when you have these little disputes, concerning your boundaries, to set aside all petty jealousies and ill feeling. You will save your money and your relationship with each other will be better. Every person who comes forward into the court is liable to be called upon ,to pay money, and the litigation in the High Court over land claims is not cheap.
Now as regards the dispute between Alapa and Tuitele after due consideration of the evidence that has been submitted, the Court is of the opinion that Tuitele entered upon this land and occupied it under a special agreement with Alapa. It was thought from the evidence submitted by Tuitele .that he had gained a clear prescriptive title to the land by ten years’ possession and occupation, but upon his cross-examination and the hearing of the witness called on behalf of Alapa, it is clear that an agreement between himself and Alapa did exist. When a person enters upon property and remains upon property with the permission of another person, he cannot deny, at any time, the right of that person to the place.
The occupation of ten years or twenty years under such an agreement will not enable him to obtain title by prescription. If he wishes to claim adversely to the person under whom he originally entered upon the land, he must first give notice to that person and quit the land, and then try to obtain possession adversely to the first claimant. Tuitele has remained on that land, and on no occasion has he declared that he holds adversely to Alapa except in this case. So, it is considered by the court that Tuitele holds only a life estate in .that portion of the land Letoa, which is called by Alapa, Pueloa, as now will be described by the Court: The section of land which was surveyed by Alapa on the 29th of this month and which Alapa claimed to be an additional portion of that claimed by Tuitele as Pueloa is cut off by the court from the claim.
*164On a previous occasion, there was a trial between Aitulagi and Leone over a piece of land called Auta, and the boundary of Auta, at that time, as pointed out by the people whom Alapa belonged to encroached upon the land surveyed by Alapa, and during that trial, Alapa laid no claim to any land outside of that boundary on the Leone side. But, it was admitted by all parties that it was Leone property, owned by different people in Leone. So the court cannot allow Alapa to add that portion on to the piece that Tuitele claims, and had it not been for the agreement existing between Tuitele and Alapa, Alapa would have no ground for claiming .the land claimed by Tuitele, but that agreement is so clearly proved to the court that the court is bound to award to Alapa the reversion of the land after the death of Tuitele. Beginning at the Tavai tree a portion of the land surveyed by Tuitele is cut off, running from the Tavai tree to the corner at Ripley’s land.
(Court — Gurr explains in Samoan.)
The bearing from the Tavai tree to that corner is 200 degrees, distant 300 links. Then from the boundary of Ripley’s land, the boundary of Pueloa, a portion of the land Letoa, will run along the lines surveyed by Tuitele, and starting on the other side from the Tavai tree, the boundary will run along the line surveyed by Tuitele as described in the plan now before the court, until it reaches the Toi tree marked on the plan where Alapa began his survey of the land which the court has now rejected. Then the line of the Tuitele-Alapa land will run along the boundary which will be described later as the boundary of Uo’s land.
As to the dispute between Faiivae and Uo. Here again, there are no distinct landmarks to show that boundary. Faiivae stated that he had cultivated up to the limit of his land. Iliili, grantor to Uo, said there was part bush along the boundary, but during the last few months, Uo *165Sopoaga has cleared that bush. The Court now fixes the line between Faiivae and Uo. Faiivae will not get all that he claims, and Uo will not get all that he claims. The line between Faiivae and Uo will commence at the point in the ditch where Faiivae stated was the starting point. Starting at this point, as marked on the plan and pointed out by Faiivae as the boundary between Fata and Letoa, the bearing runs in the direction of 36 degrees up to a large Toi tree, which was marked as a corner of Uo and Faiivae’s land. So that henceforth, the boundary between Fata and Letoa will be a straight line running up the hill from the point where Faiivae said the boundary commenced.
That leaves all Faiivae’s plantations clear. On the side awarded to Uo, there are no plantations worth speaking of. There are two or three cocoanuts planted here and there, but those few cocoanuts are quite distinct from the cocoanut plantations of Faiivae.
As to Uo and the boundary between Tuitele and Fiu. The boundary will start at the Toi tree which was referred to as the Toi tree where the survey of Alapa commenced. Then it was run down the hill in a straight line through a piece in dispute between Tuitele and Uo and the piece in dispute between Fiu and Uo — and the bearing from the Toi tree cutting through .these two lands is 211 degrees.
The land lying west of this line running 211 degrees from the Toi tree is awarded to Uo, and the land lying to the eastern side of this land shall be Tuitele’s portion as surveyed, and Fiu’s portion, as surveyed. So that .the land of Uo will be lying between the land, Fata, the property of Faiivae, and the property of Tuitele and Fiu as defined by the court.
(Court — Gurr exhibits plan to litigants.)
The line pointed out by Uo as the boundary of Tavai with Letoa is not recognized by the court as any boundary whatever.
*166Costs are to be paid as follows:—
Alapa ........................................................ $17.50
Tuitele ...................................................... 17.50
Fiu ............................................................ 7.50
Faiivae...................................................... 7.50
Uo Sopoaga .............................................. 20.00
$70.00
Let a decree issue vesting the titles as before adjudged, and the Registrar of Titles is ordered to issue a certificate of title to each of the parties as so decreed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484866/ | DECISION
Pafuti Talala asks this court to give her possession of seven pieces of land in the village of Aoa and the surrounding territory, and of the seven pieces, Matagalu, it is discovered in the course of the trial was named merely for form’s sake, and that she really has no claim to Matagalu. And at a later part of the proceedings, it has been discovered that the only claimants to Matagalu are Salanoa and Iuli, on the one hand, and Mauia, on the other hand, and that as the principal defendants in the main case have no claim on Matagalu, this portion of land was, by agreement of all the parties, stricken from the ease, and therefore is not, in any sense, included in the opinion which is to follow; but the ownership of Matagalu is to be contested between the two adverse claimants in another cause before the High Court of Tutuila, and nothing which has occurred in this case is to be construed by the courts of Tutuila hereafter as prejudicing either the rights of Salanoa or Iuli on the one hand, or the rights of Mauia on the other, and their rights in the land, whatever they may be, not being covered by this decision, remain untouched by it. But the parties to this suit, viz., Pafuti Talala on the one hand, and the defendants Logo, Masi, Mamea, Teo, Tuitagaloa, and all the other people claiming under them are declared to have no interest whatever at the present time in the land Matagalu.
Another incident of the trial was that the representatives of Salanoa and Iuli stood up in the Court and sur*168rendered all claim to that section of land included in the complaint of the Plaintiff, known as Lesolo; therefore,', whatever may be the decision rendered in this case as between Pafuti Talala and the remaining defendants, Salanoa and Iuli, are declared to have no right whatever in the land known as Lesolo. This leaves in dispute sections of. land known as Fanuatanu, Tase, Maauga, Lesolo, [sic], and Lepua with the defendants Logo and others on the one side and Pafuti Talala on the other side.
In the course of the trial, Pafuti Talala, while suing in her own name, declared that her interest in the lands was derived from Mataafa’s interest; that she is Mataafa’s daughter and sues in his right. This statement would do away, in the opinion of the court, with the title of Pafuti Talala entirely and preclude the possibility of making a decision in [sic] name; but in view of certain customs in Samoa, so strict a rule was not adopted in this court because this court seeks not so much technical correctness as the administration of substantial justice; therefore the case was carried on and tried upon the merits of the claim which Mataafa, a high chief of Upolu, might have had on the land. It seems from the testimony produced by the Plaintiff that one Pafuti, a titled lady of Amaile, in Upolu, sometime in the dim past, made a “malaga” to Aoa, and there became the wife of one Iuli and acquired certain rights from one Sii, in consideration of the gift of the name “Masi”, to the said Sii, and in due course of time, through marriage in Upolu, and through her descendants, she became the ancestress of Mataafa, and through this descent, Mataafa acquired the title to these lands in Aoa, and this suit was brought really on his right and to determine his ownership, rather than that of Pafuti Talala.
Evidence was admitted necessarily of .the genealogy which would connect Pafuti with this claim, but when Mataafa was reached, and the relationship between Mataafa *169and Pafuti Talala was inquired into, the Court was answered that Pafuti Talala was suing in the right of Mataafa, and by reason of courtesy to so high a chief, the question of Pafuti Talala’s relationship was not allowed to be discussed in the Court, but she was accepted as Mataafa’s agent.
The ownership of Mataafa, according .to the testimony of the witnesses on his behalf, began some time previous to the year 1883. How far back the title passed to Mataafa is not stated and could not be ascertained from the witnesses; but it is not necessary to go beyond the present Mataafa’s time, as, from the testimony of the witnesses on his behalf, the land had passed peaceably to him, and the dispute which is here to be tried, arose, so far as this Court can ascertain, during the lifetime of the present Mataafa. The Court therefore, ruled out any further investigation back of that time. The defendants were given equal privileges to trace their genealogies, to show their connection with the land during the time of Mataafa, and when the genealogy of Logo, Masi and Teo was brought down to the lifetime of Mataafa, the real issue of the trial was drawn.
The defendants claim .that they have always lived on the land; that there was no such person as Pafuti that ever lived in Aoa, or ever owned the land, and that they have been continuously in possession of the land from time immemorial.
From the statements of the witnesses taken alone, each by itself, it would be extremely difficult to reach any conclusion as to what these ancient rights might be; but there are certain agreements in the statements of the two parties which go to show that Logo and Masi were the dwellers upon these lands at the time of the alleged arrival of Pafuti in Tutuila. Pafuti Talala’s witnesses say that when Pafuti went to Aoa, .there were three people living in Aoa, Faatu Logo, Sii and Olomua. Logo says that originally, there *170were only two people dwelling Aoa — Logo and Olomua; so that is [sic] is pretty safe to say that Logo has lived in Aoa and has been one of the people of Aoa before and since the arrival of Pafnti in that place.
The traditional transfer of the lands of Sii to Pafuti in return for the title “Masi” may or may not be correct, and it makes little difference; in fact, it makes no difference whether that transfer took place, in the remote past, or not. The real contest seems to have begun when Mataafa, in assertion of his claim, sent some subsidiary chiefs, who were his retainers or supporters, as the case might be, to regulate some matters in the village of Aoa.
When they arrived in Aoa, their authority, according to the testimony of witnesses, was ignored, and they were unable to exercise any control in the village of Aoa, because, at that .time, Logo, and Masi, together with others of their party, joined in denying the authority of the name Mataafa over the lands of Aoa.
At a convenient opportunity, which, the Court is convinced from the evidence and the historical traditions of Samoa, must have been in the year 1883, Mataafa himself, as an incident of a visit to Manua, stopped at Aoa, ordered Logo, Masi, Mamea and those claiming with them, off of the lands now in controversy, and put his “Sa” upon the lands. This “Sa” was disregarded, and according to some of the witnesses for the plaintiff, and evidently their most truthful witness, Mataafa has derived no benefit from these lands since 1883, and the occupants of the lands have steadily refused to recognize him, or any other person as his representative, as having any authority or ownership in the lands.
The Samoan Lands Commission, created in consequence of the Tripartite Agreement of 1890, between Germany, Great Britain and the United States, refused to disturb undisputed adverse possession running for more than *171ten years, and was upheld in so doing by the Supreme Court of Samoa up — so far as this Court knows — to the time of .the division of Samoa between the United States and Germany.
The High Court of Tutuila has generally held that ten years undisputed possession would be sufficient to pass title, and in consequence of the attitude of the Samoan Lands Commission, of the Supreme Court of Samoa, and of the previous attitude of the High Court of Tutuila, the Governor of Tutuila enacted a law that ten years of adverse possession should confirm the title.
The Court recognizes that in a country where it has not been customary to record the titles of lands in books, and .the transfers of lands have been made without written deeds, that long occupancy and tradition go a long way towards giving title. It also recognizes that within ages not so very remote, when the Treaty of Partition between the United States and Germany was signed and went into effect, titles often changed hands by force more or less violent, and that one of the recognized modes of transfer was war, or force, and the fact of a title being gained by force does not in any way militate against it at the expiration of the time set for quieting titles, especially where the force seems to have been used in such times as to have given opportunity to meet it by legal process of organized government before the expiration of the time necessary to quiet the title.
In judging of the titles in the Island of Tutuila, it is necessary for the Court to take into consideration the fact that certain titles are merely traditional and are ancient, and it would be very much against the peace of this country, and against the certainty of life to have long occupation and long, undisturbed assertion of title to lands set [sic].
*172Now, the testimony shows that Logo and Masi and the people claiming with them, have been living on these lands for generations. The testimony of both sides agrees that they were there — at least Logo was there — at the time of the coming of Pafuti, and there is no evidence of a transfer of Logo’s title. It is also agreed that the family of Olomua was living there at the time, but it seems that Pafuti did not get any claim to Olomua’s land at that time, and the lands that he now lives on are not in question before this Court. But it would not affect the issue before this Court to any extent to admit that Pafuti had some rights on these lands at some time previous to the year 1888, and transferred by descent these rights to Mataafa, since it is known that Mataafa’s claim to these lands was disputed sometime previous to his visit, which has been fixed as in the year 1883, as nearly as it is possible for this Court to fix it, and that finding the title disputed, he visited Aoa in 1885 and was flouted, his “Sa” disregarded, the lands were occupied and his order removing the people from them disobeyed. So the history of the quarrel from 1883 to the present day is the only means that we have of deciding to whom the titles to these disputed lands belong.
It seems that after Mataafa left Aoa in the morning of a day in 1883 until the coming of Pafuti Talala to Tutuila in the year of 1903 or 1906, no claim was ever made by Mataafa in person upon these lands, and that no effort was made before the Samoan Lands Commission or the Supreme Court of Samoa to gain legal possession of these lands, and that a period of approximately twenty-three years elapsed betwen the refusal of Logo and Masi and the people claiming with them, to recognize the title to Mataafa to any lands whatever in Aoa, before Talala filed her claim.
There has been no effort made before this Court to show that one Mana, by reason of some occupancy of certain *173portions of the lands in question, was holding these lands as a representative of Mataafa, and that he took produce off these lands and fine mats, or the ordinary tribute of ownership, to Mataafa. But it appears from the admission of his son, Pua, who testified before the Court, that if such tribute was carried by Mana to Mataafa, it was tribute not obtained by reason of his occupation of these lands, but something that he had obtained elsewhere, and that he carried secretly to Mataafa, and without the knowledge of the real occupants of the lands in dispute, and this Court can hardly recognize such an admission of title by a man who conceals the fact, or at least, never made known the fact, that he claimed to be representative of Mataafa.
It would seem that somewhere about the year 1903 or 1904 — twenty or twenty-one years after the visit of Mataafa and considerably more than twenty years after the refusal of the inhabitants of Aoa to recognize the claim of Mataafa, Mana, with his son Pua, by reason of some quarrel over a head-dress or the lands themselves, entered suit in his own name for the possession of these lands, and made no claim and no mention of the lands as being the property of Mataafa, concealing this agency of Mataafa up to and beyond the period of twenty years, making it more than twice the time required by the statute of limitations.
The possession of these lands by Logo and the people claiming with him, was open, exclusive and continuous, so far as Mataafa was concerned, from the visit of Mataafa in 1883 to the visit of Pafuti Talala, as the daughter of Mataafa, in the year 1903 or 1906, which would make it more than twenty-two years between the two [sic] of any claim of Mataafa to the lands in question, and this Court cannot consider any secret, underhand communication with Mataafa as strengthening his right to hold these lands.
*174It is not worth while for this Court to cite the numberless authorities on the question of the settlement of titles by adverse possession. The doctrine is so well understood that it is a waste of time to discuss it.
It seems to this Court that whatever may have been the traditional right of Mataafa and his people to control these particular pieces of land, that right is dead; that Pafuti Talala, either in her own name or as the Agent of Mataafa, has no right or title to any of the lands named in her complaint, and it is so ordered. Costs will be assessed against Plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484867/ | DECREE
AT A SESSION of the High Court, held at Leone, on the 9th day of January, A.D., 1908.
PRESENT, The Honorable E. W. Gurr, Senior Member, and the Honorable Mauga, Associate Member
APPEARANCES:
Fepuliai,
Faumuina
Leoso and Tuitele, representing Lealataua County.
*175THIS CAUSE having been brought on for trial pursuant to Precept of the President of the High Court, dated August 10th, 1907, and the parties appearing in propriae personae, the cause was tried before the Court, whereupon witnesses on the part of the plaintiff and the defendants were duly sworn and examined, and the evidence being closed, the cause was submitted to the Court for consideration and decision; and after deliberation thereof, the Court files its decision in writing, and
ORDERS, ADJUDGES and DECREES that that portion of the land in dispute beginning at the mouth of the stream, Vai Saumani, upon the southernmost extremity of the land Fagalue, heretofore decreed to be the property of Toomata, thence in a northwesterly direction along the boundary between said land of Toomata — styled Fagalua —bearing 167 degrees, 300 feet; thence bearing 145 degrees, 400 feet; thence bearing 135 degrees, 300 feet; thence bearing 121 degrees, 100 feet; thence bearing 162 degrees, 270 feet; thence bearing 143 degrees, 284 feet to a rock on the seacoast thence following the seacoast in a southerly direction to Steppe’s Point, and again following the seacoast in a northeasterly direction to the place of beginning — said land being known as “Utuloa” — is the property of defendant Faumuina and of the Leusoalii (a body of “matais” of which Fepuliai is a member). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484868/ | DECISION
The Plaintiff in the actions before the Court, has brought suit to recover certain sums of money collected by the Defendant, in his capacity as Secretary of Native Affairs, for copra sold by the Island Government for the benefit of the inhabitants of this Colony.
Upon the trial of this cause, but two witnesses were sworn to testify as to the merits. The Plaintiff’s testimony consisted in presenting to the Court numerous books and documents, showing the transactions of the Defendant as Secretary of Native Affairs. The Defendant produced one witness, whose testimony merely showed that there was a great pressure of business in the office of the Secretary of Native Affairs in the year 1903, and that during that year the books in his office balanced regularly every month.
The testimony thoroughly convinces this Court that the Defendant did collect moneys accruing from the sale of copra, and did not deliver over to the Island Treasurer, nor apply to the benefit of the inhabitants of this Colony, all of the moneys collected by him in his official position, as Secretary of Native Affairs. It developed upon the Court *177to determine the exact sums of money for which the Defendant shall be held to be liable.
The Court found it necessary to make a thorough and minute examination of the various exhibits offered, comprising the books of account of the Secretary of Native Affairs, and many documents relating to the subject matter of this suit, and the Court’s findings are based upon the testimony presented to it, as substantiated or refuted by the documentary evidence offered during the trial.
The Court finds that during the year 1903, the Defendant received the sum of Five Hundred Dollars ($500) from the Pacific Oil & Lead Works of San Francisco, California, as payment for copra delivered by this Government, and that he failed to turn over the said sum to the Island Treasurer, and the Court holds him liable for this amount, as being wrongfully withheld by him.
In the year 1904, the testimony of the Plaintiff tended to show that the Defendant likewise withheld the sum of $3,273.92 — moneys collected by the Defendant for copra sold but not delivered over to the proper officer charged with the custody of same. The Court has given special attention to this item, and has carefully compared and checked the various documents in evidence bearing upon this sum. The records of the Secretary of Native Affairs are deplorably incomplete in showing the amounts of copra sold, the prices paid for same, and the times of shipment. Further complications arose from the fact that English money was the principal medium of exchange, although the books were kept by the Secretary of Native Affairs in U.S. money — a pound Sterling being the equivalent of five dollars U.S. gold. Among the various exhibits offered, Exhibit 18, a statement of the copra of the Western District for 1904, contained the following item: “Sydney, 65,056 pounds at $48 per ton, . . . $1,394.79.” The Plaintiff’s theory is to the effect that this copra was shipped during *178the copra year of 1904, and he has therefore included it in the amount claimed by him, as mentioned before in this paragraph, viz.: $3,273.92. The Court finds absolutely nothing, with the exception of this Exhibit (No. 18) to show that this copra was shipped to Sydney in the copra year of 1904, but, on the contrary, the Court is thoroughly convinced that this copra was shipped late in the copra year 1903, which would be, of course, in the calendar year of 1904. The receipts for 1903, as given by the cash book of the Secretary of Native Affairs’ and the Island Treasurer’s receipts, are in excess of the value of the copra for that year, as summarized in Exhibit P. But the addition of the sum of $1,394.79 to the amount for which the Defendant is responsible in the copra year 1903, — less the sum. of $1,166.97, which he apparently entered in excess against himself — leaves a further deficiency of the Defendant in the year 1903, of $227.82, but, as this is not included in the allegations of Plaintiff, it will not be considered by this Court.
The Court will therefore deduct the amount of $1,394.79 from the Plaintiff’s claim for the year 1904, and finds that the Defendant has wrongfully withheld from the Island Treasurer the sum of $1,879.13 for this year.
As to Plaintiff’s claim for deficiency in the copra year 1905, no evidence was presented by the Defendant. The testimony of the Plaintiff, corroborated by the Court’s examination of the documentary evidence produced, shows clearly that the Defendant failed in this year to deliver over $1,244.49 of the proceeds of the sale of copra, and the Court finds that this amount has likewise been wrongfully withheld by the Defendant.
As to the sum of $1,920.79, claimed by the Plaintiff (Case No. 3-1908) the undisputed proofs show that in the year 1905 the sum of $1,920.79 .was overpaid by the contractors for the copra of that year. Up to October of that *179year, the moneys paid by the contractors were kept in the custody of the Secretary of Native Affairs, after which time the Island Treasurer .took charge of all moneys derived from the disposition of copra. The proofs further show that after the time that the moneys were delivered over to the Island Treasurer, the sales of copra to the contractor agreed with the amounts paid by the contractor. At the end of the season, it was discovered that the contractor had overpaid $1,920.79, in excess of the value of the copra at the contract price, and that amount was promptly sent to the contractor by the Island Treasurer and charged to the moneys which the Island Treasurer had actually received. The Court finds that this overpayment occurred prior to the time that the Island Treasurer took charge of the moneys arising from the sale of copra, and that the amount of this overpayment, $1,920.79, was not delivered to the Island Treasurer, but was wrongfully withheld by the Defendant, and that the Defendant, retaining possession of this amount paid to him, drew a check upon the Island Treasurer to reimburse the contractor for the amount overpaid by the contractor to the Defendant, but never accounted for it.
The various sums of money for which this Court finds the Defendant responsible, which moneys said Defendant failed and neglected to deliver over to the Island Treasurer, but wrongfully withheld and retained in his own possession, are as follows:—
1903 .................................................... $ 500.00
1904 .................................................... 1,879.13
1905 .................................................... 1,244.49
1905 (overpayment) .......................... 1,920.79
making a total of........................................ $5,544.41, and judgment will be rendered against Defendant for that amount.
*180The Court will assess no damages by way of interest or otherwise against the Defendant. The Plaintiff had ample opportunity to prove whatever damages he may have suffered, and in the absence of any such proof, the discretion of the Court will be exercised for the benefit of the Defendant.
Costs of Court will be assessed against Defendant for all proceedings incidental to this action, except the hearing on demurrer; Plaintiff will pay the costs of said hearing. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484869/ | DECISION
The land in controversy in this case forms the western headland of the harbor of Pago Pago and includes two small islets, lying close inshore, as well as the mainland contiguous thereto. The complaint was filed by Sagaina and Tufaina against Mauga Moimoi and Mauga Taufaasau but, at the opening of the trial in this cause, Savea of Ma*181tuu declared in open court that he also claimed the land and adversely to either the original complainants or the original defendants. The Court thereupon permitted Savea to intervene at that time, and he was by order of the Court made an interpleader in this case.
To elucidate the opinion of the Court as clearly as possible, the claim of Savea to this land will first be considered. Savea and a witness called on his behalf stated .that the land in controversy belonged to and was in the possession of an ancestor of the present claimant some time in the dim past, but that it had been seized by Mauga Paniani “by right of might” and has been in the possession of the Mauga family from that time up to the present date; that no consideration was given for the transfer of this property to Mauga and further, but incidentally, .that the land now held by Savea adjoins on its eastern boundary with the land Fatumafuti, now in controversy. This evidence was purely tradition. Neither Savea nor his witness, Samia, offered any testimony within their own knowledge corroborating the traditions of their family and, in the absence of such corroboration, this Court is constrained to follow the well-established usages of law which have guided the courts of the United States and of Great Britain for many years past, and this Court will presume a conveyance of the land from Savea in the manner customary in those unenlightened days in Samoa. Savea’s claim is rejected upon the grounds that the laches of the Savea family for a long period of years in failing to assert their alleged rights against the Mauga family will bar them most effectively from securing the legal title and possession of the land at this late date.
The findings of the Court regarding Savea’s alleged claim having been concluded, the controversy between Sagaina and Tufaina on the one side and the two Maugas on the other side remains to be decided, and in this connection *182the testimony given on behalf of Savea has been most valuable in enabling the Court to establish the respective rights of these parties. Both Savea and Sarnia testified positively from facts within their own knowledge that the Mauga family, as far back as Mauga Paniani, held absolute control and possession of the land Fatumafuti and that the Savea family refrained from asserting their claims through fear of the wrath of the Mauga family.
Among the material facts admitted by all parties to this action, the building of various houses by members of the Mauga family on this land stands out prominently, likewise the cutting of lumber from the land for houses of the Mauga family in Pago Pago. The principal claim advanced by the complainants is that the property was secured in ancient days by the ancestors of the Sagaina family from Savea and a quit-claim was also secured from Fuimaono Tuiseuseu, but .this claim is only supported by tradition— hearsay evidence — and, although it is circumstantial, the Court does not deem it sufficiently convincing to justify a rejection of Mauga’s claim.
Sagaina also claims that Mauga Taufaasau, as a member of the family of which Sagaina is the “matai”, has an interest in the land, but that Mauga Moimoi has no interest whatsoever in the land; but the evidence shows that while Mauga Taufaasau has been exercising control during recent years, to the exclusion of Mauga Moimoi, the predecessors of the present Maugas, i.e„, Mauga Sai, Mauga Manuma and other Maugas were reputed to be the owners and actually did hold possession of the land and sent their dependents to live on the land as far back as the old man Leia, who first lived on the land as a dependent of the Mauga family.
The testimony of Suafoa also corroborates in a striking degree the testimony of Mauga to the effect that Mauga Taufaasau exercised supreme control of this land. Suafoa, *183a disinterested witness, testified positively that he had been allowed to live upon the land by the authority of Mauga, and that he was subsequently ejected from the land by Mauga and, further and a fortiori, that Mauga had a perfect right to eject him.
Notwithstanding the fact that the Mauga family has established the fact that they have exercised control of this land, the Court must take into consideration the relationship existing between Mauga Taufaasau and the present Sagaina, differing widely from the relationship existing between Mauga and Suafoa. They are known as “Brothers” according to the Samoan custom, though their relationship is that of Uncle and Nephew. Prior to the time that Taufaasau assumed the title of Mauga, it is undeniable that he was closely connected with the Sagaina family, and more remotely with the family of Mauga, and at that time he cultivated the property in dispute. He claims at this time that he operated this property solely under the authority of the name of Mauga by virtue of his connection with that name, but the Court deems it far more probable that his interest in this land is derived from his relationship to Sagaina and through .the name Sagaina to the name Mauga.
It is clear that the families of Mauga and Sagaina are practically one family. Prior to the commencement of this action Mauga Moimoi had little or nothing to do with this land, and the land was controlled jointly by Mauga Taufaasau and his “brother” (nephew) the present Sagaina. It is the conclusion of this Court that Sagaina stands in a far different position than do the various parties who were ejected from the land, and that Sagaina’s interest is substantial enough to prevent him from being summarily ousted from the property in the manner in which Mauga sought to do, as shown by the complaint. Inasmuch as the Mauga family has shown the greater amount of use and cultivation of this land, the Court will decree them to be *184the absolute owners of the land, on condition that they pay a reasonable sum to Sagaina and Tufaina for their interests.
Let a decree issue vesting the title to the land in controversy in the name of Mauga, subject, however, to the condition that the Maugas pay to Sagaina and Tufaina the sum of $100.00 and Sagaina and Tufaina will remain in possession of the land until this sum is paid in full.
The costs of this action are assessed at $125.00; $50.00 to be paid by Sagaina and Tufaina, $50.00 by Mauga Taufaasau and Mauga Moimoi, and $25.00 by Savea. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484870/ | DECISION
The Plaintiffs in this case, Tufaga, Sao, and Maulupe, of the village of Aua, commenced this action in the year 1903, claiming ownership ,to six pieces of land situated in the village of Aua and held in the possession of Liufau Mativa of the same place. No plans were filed but the names of the different pieces were given as
Vaitulitai
Vaituliuta
Leasi
Alele
Lesolo, and
Taufusi.
It developed during the trial that for some indefinite period, but many years before the filing of the complaint in this case, the ancestors of plaintiff had a strong claim on the land, but that beginning with about the year 1880 the *186immediate predecessor of the present defendant acquired possession of the land and that he and the present defendant after his decease held this land continuously until the time of the filing of this complaint — a period of possession far in excess of the ten years limitation which has been determined to be the law of this colony. See cases of Mauga v. Gaogao, H.C., 2-1905; Laapui v. Taua, H.C., 30-1901; Tuimalu v. Fuimaono, H.C., 1-1900; Pafuti v. Logo, H.C., 11-1906.
During this period that the defendant held possession of those lands, the plaintiffs or their ancestors endeavored on two different occasions to dispossess the defendant’s predecessor transferred to the plaintiffs family a portion of land known as Amouti as damages for a sanguinary assault committed upon a member of the plaintiff’s family. Defendant frankly acknowledged this assault and the transfer of the land Amouti as damages for the “shedding of blood,” but it is admitted by both parties that he and his predecessor retained possession of the six pieces of land mentioned in this complaint.
It appeared from the testimony that many years ago a person named Tilo Leoo owned the property in dispute. The plaintiffs claim that he was the first owner of the land, and the defendant contends that prior to the ownership of Tilo Leoo, the land was owned by the ancestors of the defendant. Both of their claims are founded solely upon tradition and the Court cannot believe the statement of one party in preference to that of the other, as neither has any solid foundation of fact.
That the property in dispute has enhanced enormously in value since the alleged entry by Liufau Timoti, father of the defendant, somewhere about the year 1880, cannot be questioned. The established form of government, under which this colony is assured of the utmost protection *187of property rights has multiplied the value of real estate many times, and it would be grossly inequitable to permit the plaintiffs to come forward at this late date and obtain possession of this property after its value had increased so largely under the possession of the defendant and his predecessor. In view of the precedents quoted, and, to effect the administration of substantial justice in the premises, the Court must assume that the plaintiffs acquiesced in this possession.
The case at bar is distinguished from the case of Vili v. Faiivae, 1 A.S.R. 138 (Date unknown, No. 1-1906), by the fact that in this case the defendant, Liufau Mativa and his father Liufau Timoti, were not, in any sense of the word, or at any time, heads of the family of plaintiffs. They owed no duty towards the ancestors of the plaintiffs to protect them in their property rights as .the Faiivae in the case last cited owed to the women Siopitu and Faatoa.
Plaintiffs claim that .they were unable to seek redress in any court prior to the establishment of this Government in 1900. This Court must reject this statement. In the case of Pafuti v. Logo, cited supra, the Court stated:—
“The Samoan Lands Commission, created in consequence of the Tripartite Agreement of 1890, between Germany, Great Britain, and the United States, refused to disturb undisputed adverse possession running for more than ten years and was upheld for doing so by the Supreme Court of Samoa up — so far as this court knows — to the time of the division of Samoa between the United States and Germany.”
The plaintiffs should have made complaint before one of the tribunals established at Apia prior to the establishment of this Government, and the fact that they have slept on their alleged rights for so long a period will most effectually debar them from asserting them at this late date.
It may be well, in this connection, to cite the following United States cases: — Wood v. Carpenter, 101 U.S. 135.
*188“Statutes of limitations are vital to the welfare of society and are favored in the law. They are found and approved by all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay extending to the limit prescribed is itself a conclusive bar. The bane and the antidote go together.” Naddo v. Bardon, 51 Fed. 493.
“No doctrine is so wholesome, when wisely administered as that of laches. It prevents the resurrection of stale titles and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many.” See also Vol. 5, Pomeroy’s Equity Jurisprudence, Sec. 23.
Had the plaintiffs in this case been advised of the law governing the adverse possession of lands in this colony, this action would never have been brought before the High Court. The testimony shows that Liufau, the defendant and his immediate ancestor had been in possession of the six pieces of land in controversy for a long period of years —approximately twenty-three — prior to the commencement of this action in the High Court in 1903. The possession of the defendant and his predecessor during this period was open, notorious, hostile, continued and under a claim of title. His possession included all the elements of adverse possession, and notwithstanding the contention of the plaintiffs that the original entry was unlawful and oppressive, so long a period of time has elapsed that a court of justice must assume .that the original entry was acqui*189esced in, and that this claim of plaintiffs was advanced as an afterthought.
The Complaint of plaintiffs is therefore dismissed.
Let a decree issue vesting the title of the six pieces of land in controversy in .the name of Liufau Mativa. Costs are assessed at $60.00, one half to be borne by plaintiffs and one half by defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484871/ | *190DECISION
This is a case between Fuimaono, Afalava, and Sala, Plaintiffs, and Leasiolagi and Foumai of Asu, Defendants, involving the ownership of two pieces of adjoining land, named “Sita” and “Onegase”, situated on .the north coast of Tutuila between the villages of Asu and Fagasa. The land has evidently been well cultivated, and its shores are laved by a stream of appreciable size that divides it from the land of Alo.
By far the larger part of the plantations are those of the Plaintiffs, as is shown not only by the testimony of the Plaintiffs, but also from admissions of the witnesses for the defense. That the Plaintiffs have cultivated the land thoroughly is evident from the testimony that their plantations included the kava, mulberry, taro, and banana, in addition to the more common cocoanut and bread-fruit. These cultivations were made while the Plaintiffs were in possession of the land. Both cultivation and possession extended over a long reach of time, far beyond any statutory period of limitation, during which reach of time Plaintiffs erected houses on the disputed land and lived in them.
Inasmuch as Defendants contend that, while Plaintiffs did live upon and cultivate this land, it was by permission of Leasiolagi and his ancestors; this state of facts casts upon the Defendants the burden of proof, that is, the absolute necessity for Defendants to prove facts sufficient to convince the Court that this possession of Plaintiffs was by the License of Leasiolagi, or his predecessors. The Defendants have failed utterly to do this; and, were there no other evidence corroborative of the Plaintiff’s claim to .title, the decision of the Court would be in favor of Plaintiffs.
But many incidental facts point unquestionably to the ownership of Fuimaono and his family in these lands. Such *191facts, for example, as the consistency of the Plaintiff’s testimony and the inconsistency of the testimony presented by the defense, especially regarding the original owner of the land; the Plaintiffs, by each and all their witnesses, presented a straightforward and consistent claim from Leatnalevao Ena, while the witnesses for Defendants were uncertain and contradicted each other on this point.
In passing, the Court takes occasion to comment on the testimony of the Defendants to the effect that the alleged victory of the people of Asu, in a war between Fuimaono of Aoloau and the people of Asu, confirmed Leasiolagi’s title to the land now in dispute as against the Plaintiffs;— the Court cannot give sufficient credence to this story to justify its serious consideration as evidence supporting Leasiolagi’s claim of ownership.
Let a decree issue vesting the title of the lands “Sita” and “Onegase” in the Plaintiffs, Fuimaono, Sala, and Afalava.
Costs are assessed at $80.00 (eighty dollars), three fourths to be borne by the Defendants and one-fourth by the Plaintiffs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484872/ | DECISION
The case at bar has arisen out of a quarrel between Mailo, the plaintiff, and Fanene Pi, the defendant, which occurred about five years ago — shortly after the death of Fanene Aitonu, the immediate predecessor of the present Fanene. Prior to the accession of the present Fanene to that name, the families of Mailo and Fanene dwelt in harmony, and it is admitted that Mailo occupied the superior station and Fanene the inferior station.
Fanene acknowledged that the name Fanene is a “nofofanau” of the name Mailo. The Court has found it impossible to arrive at an accurate definition of the Samoan word “nofofanau” but it unquestionably indicates a certain degree of dependence.
According to the testimony produced by the plaintiff, the ancestors of the defendant were given the use of the land in controversy by the ancestors of plaintiff. The tenure held by the defendant’s ancestors was of that quasifeudal nature, which, in the early days was determined at the pleasure of the ruling chief.
The Court is satisfied that at the inception, the ancestors of Fanene secured this land from Mailo as a place to live, on or to cultivate the fruits of the earth, and as time went *193on, the family of Mailo and that of Fanene being on friendly terms, no objection was raised by Mailo to the continued use and occupation of this land by Fanene as long as the relations between the two families were harmonious. After the quarrel between the present Fanene and Mailo, the present Fanene attempted to assert his supposed rights in this land by surveying a portion of same and executing a deed to one Siomia.
The Court therefore, holds, that the Mailo family, under the control of the name “Mailo” are the owners of the land in dispute. Fanene, as a member of the Mailo division or family, has been appointed to the use of this land, and it cannot be disposed of by Mailo without the consent of Fanene, nor can Fanene dispose of it without the acquiescense of Mailo. In case it ever transpires that Fanene has abandoned this land, the land will revert to Mailo, who as trustee for the family, may apportion it out to other members of his family. Fanene’s rights to this land have accrued to him because of the long period of use and occupation of this land by the family of Fanene.
The costs will be assessed by the Clerk of the Court— one half to be paid by Fanene and one half by Mailo. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484874/ | DECISION
The decision in .this case is based primarily upon the reluctant admission by the defense of the Plaintiffs control of these lands as “Ao” of the Sálele division of the village of Nu’uuli.
In the year 1905 the Defendant Maluia began the erection of a house on the land in dispute, and, upon the objection of Levu, absolutely refused to acknowledge Levu’s “pule”. Though there had been more or less friction over this land between Maluia and Levu since the last trouble in Upolu, the issue was not clearly defined until this house was commenced; and in the year 1906 Levu began proceedings to determine their respective rights.
The weight of evidence favors Levu’s contention that he and his ancestors possessed such rights over the properties Anaoleloi and Sauao that their permission must first be sought before any one could enter upon the land or enjoy its products. Levu’s unequivocal statement that he, in propria persona, heard Maluia Pinovale, predecessor of .the Defendant, ask permission of the Levu to cut lumber from this land has not been successfully contradicted by the Defendant other than by the negative assertion that Defendant and his witnesses had not heard of such permission having been sought and granted, which testimony is further weakened by admissions of Defendant’s witnesses that they were absent from the places where such important events were most likely to transpire. An instance of the *199testimony of the defense in this regard may be quoted. Maluia testified as follows:—
“Q. Were you living in the time of Levu Talilelagi ?
“A. Yes, I saw him personally.
“Q. Did you know Levu Toliesi and were you living in his time?
“A. Yes.
“Q. Were you living in the time of Levu Ufisasa?
“A. Yes.
“Q. In the time of Levu Paoaga?
“A. Yes.
“Q. Were you present at the family councils held by these chiefs?
“A. No, at the time I was a young man.
“Q. Were you present at the family councils of the Maluia family during the time of these Levus ?
“A. No, I was only a young man at the time.
“Q. Then how did you know that during the time of these people the Levu made no objection to Maluia’s occupation of Anaoleloi and Sauao.
“A. Because my father never told me that Levu objected to his occupying the land.
“Q. Then all your information concerning this matter is hearsay?
“A. Yes.
In the case of Au v. N.Y.L.E. & W. Ry. Co., 29 Fed. 76, the Court charged the jury in the following language:—
“There is a rule of law, gentlemen of the jury, that where there is a conflict of testimony, and one testifies positively to a thing within his peculiar knowledge or information, and the testimony of the other is a mere denial of that which is not within his peculiar knowledge or information, the positive testimony will generally prevail over the negative testimony.”
The Court declines to admit any right on the part of Levu to evict the Defendant or his people from the land at this time. The cultivations and the continued use and occupancy of these lands by Maluia for several generations have vested in the family of Maluia a right to continue in such enjoyment, subject, of course, to the Samoan “pule” *200of Levu. In the case of Mailo v. Fanene, No. 3-1907, the holding of the Court was that Mailo, the Samoan “Pule”, was the owner of the land in dispute; that Fanene, as a member of the Mailo division, had been appointed to the use of the land; and the Court held that the land could not be disposed of by Mailo without the consent of Fanene, and further that Fanene could not dispose of it without the acquiescence of Mailo.
In the case of Pele Fia v. Paleafei, No. 5-1904, a case somewhat similar to the last case cited and to the case at bar, the High Court held that “The family who cultivates any section of land will have the right to the produce thereof so long as they retain possession, but upon abandonement [sic] of any section by any family who has cultivated it the disposition of that section shall be in the discretion of the Matua.”
The Court will follow the previous decisions of the High Court and will decree the lands Anaoleloi and Sauao as the property of the name Levu, subject, however, to the right of Maluia and descendants to use and occupy so long as they live upon the land and care for it. Upon the abandonment of the land by Maluia or his descendants at any time the land will revert to the name Levu. The property cannot be sold by either party without the consent of the other during the period of this use and occupancy.
Costs are assessed at $100.00, $60.00 to be paid by Maluia and $40.00 by Levu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484875/ | DECISION
This case was begun in the year 1904 by Tago, Fepuliai, Tia, Tafea, Maata, Muafono, Tuatoo, Ufagafa, as plaintiffs against Faumuina Tuita. The original complaint was not signed by any of the above-named persons. A memorandum on the complaint, dated March 23rd, 1907, is as follows: — “Tuita says all dead except Muafono”, signed with the initials of the Judge of the High Court at that time.
When the case was called for trial, it developed that neither the plaintiffs or the defendant was present. The original plaintiffs were dead, and some of their successors appeared and requested permission to prosecute the complaint. The defendant Faumuina Tuita sent a communication to the Court stating that he was ill and unable to attend Court, and asked that the present holder of the name Faumuina be permitted to conduct the trial, on behalf of Faumuina Tuita and the name “Faumuina”.
In view of the long time this case has been awaiting trial, the Court permitted the plaintiffs to be substituted *202for the original plaintiffs and the present holder of the name Faumuina was allowed to defend the interests of .the name Faumuina. The Court investigated the matter very carefully before entering upon this trial, and was satisfied that the above claimants were the proper representatives of the original parties to .the suit. The plaintiffs before the Court in this trial, united in their opposition to Faumuina Tuita and the name “Faumuina” as did the original plaintiffs.
The case involved two pieces of land located in the Village of Alofau, known respectively as “Asosama” and “Faleteine”. Faumuina Tuita as ruling chief of Alofau had claimed absolute ownership of these lands, and the land Asosama had been leased by him to one William Howden prior to the establishment of this Government and during the year 1900, a formal lease was entered into regarding this land which was duly recorded in Volume 1 of Native Leases folios 11 to 14. Howden subsequently left this land, and according to the testimony of Faumuina, this lease is not at present in force.
In the year 1904, Faumuina leased the land “Faleteine” to one H. J. Moors — or as appears from .the wording of the lease — that part of Faleteine, known as “Fale Sa” which was duly recorded in the same Volume of Native Leases at folios 169 to 173. The plaintiffs then commenced this suit to determine the rights of Faumuina on these two pieces of land. In January, 1905, this lease was transferred by H. J. Moors to E. H. Partridge, recorded in Volume 1 of Miscellaneous at folios 128 and 129. Partridge is still living on the land. Following the precedent of this Court in the case of Sapela v. Mageo, 1 A.S.R. 124 (1905), the Court eliminated Partridge from this case, especially as the lease was a distinctly advantageous one to whomsoever should be decreed to be the rightful owner.
*203There is no doubt but that Faumuina has for a very long period of years consistently and actively asserted his title to and held possession of the land Asosama. In the year 1897, William Howden was invited to come to Alofau by Faumuina and live on the land Asosama. Plaintiffs admit that at first they acquiesced as Howden’s wife was related to the name “Fepuliai” through which they claimed the land. Later, in the year 1899, the plaintiffs, evidently instigated by foreign influence, notified Howden to leave the land “Asosama” stating that it was his own fault that he did not obtain a lease on the land. At the beginning of this Government, Howden promptly repaired this fault (if it was one), and his lease was duly recorded as stated supra.
The land was originally owned by one Fepuliai, together with all other lands of Alofau, but the evidence tends to show that at some time in the dim past the people of the village transferred their allegiance and the over-lordship of their lands to one Faumuina, who came here from Upolu. Since that time, Faumuina has exercised his Samoan “pule” over this land, and has occupied and used it continuously, with but slight interruption.
The primary claim of plaintiffs is based upon the ownership of Fepuliai to both pieces of land, descending down to plaintiffs. The continued use and occupation of the land Asosama by Faumuina together with his acknowledged overlordship tends to rebut plaintiff’s claim and the Court is convinced that the long period that he has asserted his title to Asosama will estop this Court from investigating the equities of the alleged transfer, or seizure, of the land, at the time Faumuina came over from Upolu.
The land Faleteine stands on a wholly different footing. For many years, presumably as far back as the advent of Faumuina to Alofau, the right of Faumuina to the land Faleteine was steadily denied and disregarded. There is some evidence tending to show that some chiefs were *204brought from the village of Aua to live upon the land Faleteine, but if this be true, it is unquestionable that they repudiated Faumuina’s claim to this piece of land, setting up the superior title of Fepuliai, acknowledging the latter name as the source of their right to remain on the land. If, at .the time that the people of Alofau transferred their allegiance to Faumuina, the descendants of Fepuliai and their successors and privies continued to live upon such land and to cultivate such land as they had lived upon and used prior to the coming of Faumuina from Upolu, and have from that time down to the present time, refused to acknowledge Faumuina’s “pule” over such land — notwithstanding the ancient transfer or seizure, as the case may be, the descendants of Fepuliai and their privies are the rightful owners of such lands at .the present time, and from a review of all testimony the Court finds that the preponderance of evidence warrants a finding that these are the facts regarding the possession and use by the plaintiffs of the land Faleteine.
Let a decree, therefore, issue from this Court, vesting the title to the land Faleteine in the plaintiffs, and vesting the title of the land Asosama in the defendant.
Costs are assessed at $80 — $50 to be paid by defendants and $30 by the plaintiffs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484876/ | DECISION
In the year 1907 one Seau of Aunu’u surveyed a tract of land located on the shores of that islet, claiming it as the property of the name Seau. This survey included not only the house of Seau but also the houses of the plaintiffs in this case, who immediately began proceedings in the High Court to determine the ownership of the land surveyed, making Seau and Misipaga, the previous holder of the name Seau, as defendants.
At the inception of this trial the plaintiffs disclaimed ownership of the property surrounding Seau’s house, and in accordance with their wishes a line was drawn on the plan submitted by the defendants running between the house of Seau and the houses of the plaintiffs at right angles to the westerly or beach line, and this triangular piece was eliminated from the balance of the property shown on the plan submitted as not in controversy in this case.
A question of fact arose in this case as to the name of the land, plaintiffs claiming the name to be Tamalepaua and *206defendants asserting that the name of the land is Fanua Tele. The Court finds, in view of the contradictory and uncertain testimony given on both sides, that the name of the land matters little and the Court will follow the well settled rules of law adopted by the High Court in determining the ownership and the opposing parties may call it by any name they please.
The Court has been greatly assisted in its deliberations by the circumstantial recital by witnesses on both sides of a ceremony or ordeal participated in by the predecessors of the present claimants.
Many years ago (1877 according to plaintiffs) a dispute arose between the predecessors of the present parties as to the ownership of this land. The parties met and decided that both sides should take solemn oaths as to the ownership of the land and the Lord would then decide the case by causing the death of perjurers. On the part of Seau it is asserted his title is established because all the other persons who took this oath are dead except Misipaga, co-defendant with Seau.
The Court is obliged to dismiss this view of testimony as pure superstition but this circumstance proves conclusively that the plaintiffs and their predecessors asserted adverse title to this land at a period greatly anterior in time to the period required by any statute of limitations. It has been admitted that since the taking of these oaths the plaintiffs and their families have continued to reside upon and to use the products of the land.
The adverse possession of the plaintiffs to part of the lands in dispute is established beyond peradventure.
On the other hand, it is undoubted that the Seau family had cultivations and a burial place inland of the house of Seau and the doctrine of adverse possession to these cultivations and this burial place will operate in favor of Seau *207as well as it does in favor of the plaintiffs as to the other portion of this property.
The Court has therefore divided the land in a manner which will confirm to both of the opposing parties the land which according to the testimony they have been controlling and using for many years past.
Both parties have made requests to the Court which the Court does not see fit to grant:
Plaintiffs have requested that the Court select any resident of Aunuu and require him to testify as to the name of the land in controversy. Inasmuch as the Court has decided supra that the matter of the name is not material, this request was denied.
Defendants have requested that the Court or some authorized representative visit the property and note the plantations made by both parties. This course was not deemed necessary by the Court.
Let a decree therefore issue vesting the title to the Southern portion of the property as shown in the plan attached marked “A” in the defendants, and vesting the title to the northern portion of the property as shown in the plan attached marked “B” in the plaintiffs. The dividing line shall run between the houses of the plaintiffs and the house of the defendant at right angles to the westerly or beach boundary; thence to a point as shown in the plan submitted to the Court inland of the house of the defendant; thence through the inland portion of the land parallel to the second southerly course shown on the plan submitted to the Court (244°).
Costs are assessed at $80.00; $50.00 to be paid by the defendants and $30.00 by the plaintiffs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484877/ | DECISION
This dispute has been a bone of contention between the people of Amouli and the people of Utumea for many years. A number of trials were held regarding the land in dispute, some under de facto governments and other trials before tribunals under this Government having no jurisdiction to decide the ownership.
The land involved consists of two parcels situated in an inlet close to the settlement of Utumea. The plaintiffs called these parcels Oloie and Matatufu, respectively and the defendant named them Muliuaua and Mulitufu.
According to an ancient document presented by plaintiffs and according to testimony corroborating its contents, a trial was held at Amouli on May 27, 1879, wherein the claims of Utu and Paolo as opposed to Fonoti were considered by a court composed of a large number of native chiefs of Tutuila and a clerk — one Ned Ripley (Neli). This document, though informal in a strictly legal sense, attested the fact that plaintiffs were awarded the land in dispute as well as other lands. This decision is denied by defendant, *209but not according to the law regarding the impeachment of documentary evidence.
It is unfortunate that this native court had no machinery for enforcing its decrees. As a result both plaintiffs and defendant continued to cultivate and reap the produce of the land. Since 1879 both parties have cut copra from the lands and have reaped the fruit of other cultivations. The dispute finally reached the High Court in the year 1907 when Utu and Paolo filed a complaint against Fonoti and, after amending the original complaint so as to exclude Utumea, the case came to this Court for trial and decision.
The testimony given by the witnesses on both sides was conflicting to the point of absurdity. Most of their respective claims were based upon tradition but this tradition centered in one common ancestor Sinanene who, it is admitted, lived on the land over seventy years ago. The descent of the title from Sinanene was the subject of dispute in 1879 and has again been brought up in this case.
This Court is constrained to hold that, inasmuch as the testimony as to ancestry and descent is vague and shadowy and too unsubstantial to base a decree upon at this time, the decision of the Court upon this point must follow that of the de facto Court held in 1879 as to the descent of Sinanene’s title to the present plaintiffs.
Had this de facto court of 1879 possessed and exercised the power of enforcing its decrees, the dispute would have passed out of the memory of all parties to the dispute and Utu and Paolo would have been in comfortable and undisturbed possession of the land at the time of the establishment of this Government and up to this time. However, as would appear from the testimony, Fonoti disregarded absolutely the decision of this court and continued to use the property and from a lapse of years has acquired certain undefined rights in this property which it is the difficult task of this Court to determine and it is to be regretted *210that, in order to settle this long drawn-out dispute, this determination must be in a measure somewhat arbitrary.
This Court has visited the land in dispute and has held a session of court upon the disputed premises; and, upon knowledge gained by a thorough inspection of the land and a comparison of the respective values of the two pieces of land, the Court has decided to divide the property in dispute, granting the smaller but proportionately more valuable portion to Fonoti and the larger piece to Utu and Paolo.
Let a decree therefore issue vesting the title of the westerly portion “Olioe” in the plaintiffs and vesting the title of the easterly portion “Mulitufu” in the defendant.
Costs are assessed at $100.00 — $50.00 to be paid by plaintiffs and $50.00 by defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484878/ | DECISION
The question at issue in this controversy is whether defendant, Eseta Hahn, possessed such absolute title to the land known as Logologo, located near Leone in the Western District, as would enable her to transfer it to her children, Vea, Ana and Fred Hahn, co-defendants.
On April 24, 1906, defendant Eseta executed a quit claim deed of this property to her children, mentioned above, and subsequent thereto plaintiff Fiu was informed that his children had no right to use the land and Eseta ordered the removal of a cookhouse of plaintiff from this land.
Fiu commenced suit at once against Eseta and the other defendants, claiming that Eseta had no such right; that he, Fiu, was the head of the family to which Eseta and her children belonged and that he held the “matai” name Vailuu which controlled the land.
Defendant Eseta contended that Fiu had parted with his right on May 25, 1901, when he signed an informal deed transferring this and other properties to Eseta and Fred Hahn, and somewhat inconsistently claimed that Fiu had no right on the land in any event inasmuch as he had, according to defendant’s testimony, retired from the controlling name of Vailuu, and that the control was in one Augafa, now deceased.
Regarding the claim of defendant that Fiu had parted with his right by signing the informal deed of May 25, 1901, plaintiff claimed that he was induced so to do by the false representations made by defendants that the Government or foreigners were about to seize the land unless it were registered in the name of Fred Hahn. Plaintiff further stated that at the time this informal deed was exe*212cuted Eseta and Fred Hahn informed him that it was a mere matter of form and that Fiu would still retain his “pule” over the land. Defendant Eseta admitted in her testimony that she did tell Fiu that he could erect a house on the land at any time he chose.
The informal deed was never registered, but five years afterwards Eseta executed a formal quit claim deed to her children which was duly recorded in the Register of Native Titles, Vol. 1, at folio 47. This quit claim deed transferred to her children only her “right, title and interest” in and to the property.
It now devolves upon this Court to determine what right Eseta Hahn possessed in this land on the date of the execution of the quit claim deed.
It is unnecessary for the Court to determine whether or not a deception was practised upon Fiu by the defendants. Eseta admitted that Fiu’s signature to the informal deed was necessary and the Court has had recourse to the Regulations of this Government to decide whether or not this informal deed was valid.
Regulation No. 4-1901 which became a law on May 24, 1901, provides as follows:—
“Section 5. An instrument shall be ineffectual to pass the title of any land or portion thereof . . . unless and until such instrument shall have been duly registered in the Land Records of the United States Naval Station, Tutuila.”
The deed of May 25, 1901, was not registered and under the above provision of the law must be held as ineffectual to pass any title to Eseta or Fred Hahn.
Eseta’s right in the land on April 24, 1906, therefore was merely that of a member of the family of which Fiu Vailuu was the head, and not such a right as would be capable of alienation by deed without the consent of Fiu Vailuu.
Let a decree therefore issue cancelling the quit claim *213deed of April 24, 1906, and declaring same to be null and void.
The Court finds that Fiu is the holder of the controlling name Vailuu, and “pule” of the family lands.
Costs are assessed at $50.00 to be paid by defendants. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484880/ | DECISION
In the year 1906 a trial was held by the High Court of Tutuila (No. 12-1903) wherein the people of the town of Amanave in the Western District disputed the claim of title to the lands of their village by one Talamaivao. This action was commenced originally by one Iulio, a religious teacher, but the trial was conducted by him in the name of Talamaivao, a chief’s title of Upolu. Talamaivao Lei, defendant, attended this trial at Leone. The decree of the Court awarded the title to “Talamaivao”.
Subsequently an agreement was entered into between Iulio — styling himself as Talamaivao Iulio — and the people of Amanave, whereby they agreed to pay rent for the land of Amanave at the rate of $120.00 per annum and perform divers services of Samoan hospitality. At the time that the negotiations resulting in the above agreement were pending before Ex-Governor C. B. T. Moore, .the defendant, Talamaivao Lei, was present and, according to the testimony of the interpreter, upon that occasion Talamaivao Lei represented Iulio to be his agent and Iulio acquiesced in this representation.
*218The people of Amanave paid their rent, as agreed, for the years of 1907 and 1908, but in 1910 the defendant, Talamaivao Lei, made a “malaga” to Amanave, as a result of which a new agreement was made by Talamaivao Lei and the people of Amanave releasing the people of Amanave from the obligation of paying rent.
Iulio immediately filed a complaint against Talamaivao Lei, claiming that Talamaivao Lei had no right to make such an agreement regarding this land, praying that the agreement of 1910 be set aside, and the agreement of 1906 enforced; that Iulio be awarded ownership of the land as Talamaivao Iulio, asking damages in the sum of $500.00, etc.
There is no doubt in the minds of the Court as to who is the present holder of the name “Talamaivao”. Talamaivao Lei, defendant, is a prominent chief of Upolu, and his title to the name has never been contested by Iulio in any court proceedings heretofore. The testimony shows that Talamaivao Lei and Iulio are half-brothers, Talamaivao Lei being the older. Their father, Talamaivao Saisaofai, was in his lifetime the holder of the name “Talamaivao”. Iulio testified that he (Iulio) was the favorite son of Saisaofai and that Lei had been driven from home for misconduct; that Saisaofai had declared that Iulio should be the successor to the name “Talamaivao”; but that Iulio did not desire to become a chief and preferred to follow his vocation as a religious teacher and, according to lulio’s testimony, after the death of Saisaofai, Lei was induced to retire from the name of Mauga, which he had been holding in Pago Pago, and to return to Upolu to hold the name “Talamaivao”.
Even if the Court were convinced of the accuracy of the above statements, the Court cannot believe Iulio’s testimony that Lei accepted this name as a gift from Iulio, and especially Iulio’s testimony that such conditions were at*219tached to this gift as would allow Lei to exercise the authority of the name “Talamaivao” only in such manner and to such an extent as might be prescribed by Iulio — in other words, that Lei was only a figurehead, subject to deposition at the pleasure of Iulio. The evidence adduced, especially when considered in connection with Iulio’s admissions, fails to bear out this contention.
At the trial in 1906 at Leone, Iulio’s testimony presented the case of Talamaivao and, from a careful examination of the minutes of that trial, introduced in evidence by Iulio, Iulio’s alleged superior right was not asserted at that time, but the name “Talamaivao” as the authority. Iulio prevailed in that case primarily upon the authority of this name, as is evidenced by the decree of the Court in that case.
The Court is constrained to hold that to sustain Iulio’s contention in this case would be an unwarranted modification of the decree of the Court in the case last mentioned.
A letter from Samoan Advocate E. W. Gurr was introduced by Iulio as evidence that the Supreme Court of Samoa during the year 1896 adjudged Iulio to be the owner of the lands at Amanave. It appears from the evidence that one Hunkin, a foreigner, applied to the Land Commission for a court grant for the lands of Amanave. Iulio successfully resisted this claim and, as in the case at bar, declared that he had been asserting his individual right. On the part of the defendant, however, evidence was produced to show that, during the state of unrest existing in Upolu at that time, Talamaivao Lei and his family deemed it advisable .to delegate this matter to Iulio as Talamaivao Lei was persona non grata to the existing Government. The subsequent conduct of Iulio and Talamaivao, especially at the trial in 1906, tends to confirm the opinion of the Court that at the hearing in 1896 Iulio was acting in a representative capacity. The hearing was held before the Land *220Commission and this Court is convinced that it merely rejected or recommended the rejection of the petition of the foreign claimant for a court grant.
The evidence discloses the fact that Xulio’s claim is based upon a complex relation of principal and agent, which may be briefly stated as follows:—
That, after the death of Talamaivao Saisaofai, Iulio succeeded to absolute control of the name; that Talamaivao Lei was appointed by Iulio to hold the name “Talamaivao” but, by a reservation more or less of a secret nature, he was merely a puppet; that, in reality, Iulio was to be the undisclosed principal and Talamaivao Lei the agent. Next the relation of principal and agent is reversed and, in 1906, Talamaivao Lei becomes the principal and Iulio the agent — Iulio however reserving an unrevealed interest in the property in Amanave.
To discover the true owner of this land, this Court bases its reasoning primarily upon the decision of the Court in 1906, viz., that “Talamaivao” is the owner. The Court finds that in 1906 the relation of principal and agent did exist, Talamaivao Lei as principal and Iulio as agent. Any contention that Iulio’s agency is irrevocable because coupled with an interest cannot be sustained: — First, because the interest claimed is vague and uncertain, amounting, according to Iulio’s testimony, to an absolute, complete control and authority, — according to defendant’s testimony, to nil; Second, because Iulio has persistently concealed this alleged interest. This Court has no doubt that this concealment redounded to his own interest in the 1906 trial. In fact, Iulio has held out to the public and to the Court that Talamaivao Lei was the owner and Iulio the agent. Public policy demands that rights and interests should be distinct and certain and does not encourage the ownership of property by a confused and irregular system, whereby either of the parties to the relation of principal and agent may reap *221the benefits and avoid the responsibilities of ownership; Third, the Court cannot give sufficient credence to Iulio’s statement regarding the conditions under which Talamaivao Lei succeeded to the name and authority of “Talamaivao” to warrant it in concluding that lulio had such an interest, passing to him from his father Saisaofai, as would preclude a revocation of his authority by Talamaivao Lei.
The Court finds that the agency of lulio was revoked by the action of his principal, Talamaivao Lei, in entering into a new agreement with the people of Amanave in April 1910. This agreement is practically the same as the one presented by Talamaivao Lei and lulio at the trial in 1906, which the people of Amanave refused at that time to sign, and which refusal was the cause of that case proceeding to a decree.
The Court finds that the addition of the name “Talamaivao” to the name lulio in the agreement of 1906 was merely descriptive and defined the agency of lulio. At the time this agreement was made lulio did not abandon his vocation as a teacher, a necessary step towards taking a chief’s name according to Iulio’s testimony, nor was there a family meeting and confirmation of his title as “Talamaivao” at this time or at any other time, and the conclusion arrived at by the Court disposes of Iulio’s claim to the title of “Talamaivao” in Tutuila.
The findings of this Court, however, are not to be construed to the prejudice of either side regarding the succession to the name “Talamaivao” after the death of the present holder of the name, Talamaivao Lei, defendant.
The complaint of complainant is dismissed.
Costs are assessed at $100.00 — $50.00 to be paid by lulio, and $50.00 to be paid by Talamaivao Lei. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484881/ | DECISION
The charges against Tuitele and Salavea are clearly proven by the evidence before the Court. An unlawful falsification of the report of the Village Magistrate is admitted by both defendants.
The defense have endeavored to show justification of their conduct and have made countercharges against some of the complaining witnesses, but the fact remains that Tuitele County Chief of Lealataua County, instigated by Salavea, forwarded to the District Governor a falsified report of the election of Village Chief of Leone.
Had Tuitele desired to question the report of the Magis-. trate, he could have readily done so by suitable endorsement on the Magistrate’s report, but, instead, he listened to the evil advice of Salavea and thus brought himself before this Court to answer the grave charges made against him.
The Court finds both defendants guilty of the second charge, and sentences Tuitele to pay a fine of $75.00 and Salavea to pay a fine of $50.00.
*223The Court expresses its strong disapproval of the conduct of District Judge Leoso in the premises. Leoso wilfully failed in his duty as an official and prominent citizen of the Western District by absenting himself from the meeting, although he was well aware of the meeting and planned to be excused upon a specious plea of sickness. The Court is inclined to believe the testimony of .the witness who stated that Leoso deliberately shirked attendance at the village meeting with the intention of making trouble afterwards. Leoso is warned that such conduct will not be tolerated, and that his duplicity in this matter is made a matter of record herein. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484884/ | DECISION
In this case plaintiffs claimed to be the owners of four pieces of land situate in the village of Fagatogo, viz., Poata, Saumaleato, Matamalu and Filoa, complained that they were ordered off the lands by defendants, and asserted that defendants had no right to the lands whatsoever.
At the beginning of this trial, defendants offered in evidence the decision and decree of the High Court in the case of Tiumalu v. Fuimaono, 1 A.S.R. 17 (1901) (evidently the first case entered in this Court), showing that the ownership of all of the lands in dispute had been passed upon shortly after the establishment of this Government. The last paragraph of the decision reads:—
*230“The Court is satisfied after consideration of the premises that Tiumalu is the owner of the land Poata, Saumaleato, Fualalo, Aga, Malaloa and Filoa and is entitled to possession of said lands as prayed for and which lands were mutually agreed by the parties to be included in the Decree of the Court. Judgment is entered up for Tiumalu in terms of the foregoing.”
Upon the introduction of this decision plaintiffs then charged that the names of the above lands were fraudulently included in the issue by Tiumalu Faigata (deceased) holder of the name Tiumalu at the time of the trial.
The testimony offered by plaintiffs failed to bear out this contention. The records of the Court show that the lands were mentioned repeatedly in the trial, and the testimony of Fuimaono (one of the unsuccessful defendants in the previous trial) was especially untrustworthy, as he was the only witness for plaintiffs who was present at the reading of the above decision, and in this case he testified that he did not know that the case in which he was interested involved lands other than “Lotomua”.
In this world of uncertainty the gradual progress of civilization tends to eliminate uncertainties, and one of the blessings of civilization is stability of land titles. A landowner, holding an unqualified decree of a competent court setting forth that after a proper trial he was awarded title to the land, will not be disturbed in his possession after a lapse of many years, unless extraordinary circumstances are shown justifying exceptional action by another Court. Let it be understood that when the High Court issues a decree, this document means exactly what it says.
Whatever rights of possession or cultivation the ancestors of Gaisoa may have had on the lands in dispute, these rights were entirely extinguished by the possession and assertion of title by Tiumalu and the confirmation of Tiumalu’s title by formal decree of the High Court.
Forasmuch, therefore, as plaintiffs have failed to pro*231duee evidence substantiating their charges of fraud, their complaint is DISMISSED.
Costs of Court have been assessed in the sum of Twenty Dollars to be paid by plaintiffs. | 01-04-2023 | 11-18-2022 |
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