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https://www.courtlistener.com/api/rest/v3/opinions/8487592/ | *598The following petition in the Orphans’ Court was enclosed to me in a letter from Louis McLane, Esq.:
New Castle County, ss.
The petition of William Sharpless and William Elliott, the guardians aforesaid, to the Chancellor sitting as Judge of the Orphans’ Court, humbly showeth that the respondent above named has appeared to the foregoing appeal, and that the same was at issue, but continued at the last term upon the affidavit of the said William Sharpless setting forth the materiality of testimony which could not be procured at the same term. Your petitioners farther show that John Phillips is a material witness for the said appellants, without whose testimony they cannot safely proceed to the hearing of the said appeal; that he resides in the State of Pennsylvania, and beyond the reach of the process of this Court.
Your petitioners therefore pray your Honor to grant them an order for a commission to issue to the State of Pennsylvania, to be directed to Isaac Darlington, Esq., of West Chester, and such other commissioner as may be named by the respondent, to take the depositions of witnesses upon interrogatories to be filed; and also an order upon the said respondent to name his commissioner and file his cross-interrogatories, or that upon his failure to do so, in ten days after notice of interrogatories being filed1 to his attorney, the said commission shall issue to the said I. Darlington only, and upon the appellant’s interrogatories. And your petitioners, etc.
(Signed) L. McLane in behalf of the petitioners.
The following order was made:
To the Clerk of the Orphans’ Court of New Castle County.
After an affidavit shall be made and annexed to the above petition, make an order agreeably to the prayer thereof, with this difference, that next after the word “filed” 2 in the eighth line of the second page insert these words, “to *599the respondent' and,” so that the notice be given both to the respondent and to his attorney.
(Signed) Nicholas Ridgely, May 23,1821.
Accompanying this petition the Chancellor received a letter from Louis McLane, Esq., dated May 16, 1821, of which the following is a copy:
Dear Sir,
Your unexpected indisposition at New Castle obliges me to trouble you with the enclosed petition. I presume the Orphans’ Court may be considered always open for such purposes, and I believe the petition very nearly corresponds with the English forms in Chancery. I will thank you to return the order as early as convenient.
I had wished very much for the order upon the infant children of Wilson to convey the land to their uncle, and I had supposed there could be no difficulty. I find, however, that a summons was directed against the two minor children. The whole affair is amicable on both sides, and all parties are desirous of a speedy arrangement, and unless you should be sensible of some impediment which I have not thought of, and therefore be disinclined to grant the order, I will, if you please, direct the petition to be forwarded to you for your re-examination, in the hope that you may avoid the delay which is likely to ensue.
I hope you have entirely recovered from your indisposition, and remain, etc.
The following is the Chancellor’s answer, dated May 23, 1821.
Dear Sir,
The petition in the appeal of Jackson and others against Jackson’s administrator ought to have had an affidavit annexed. In such cases the practice should conform to the proceeding in Chancery; and there no examination of witnesses de bene esse can be had without an affidavit. 1 Harr.Ch.Pr. 110, Mitf.Pl. 51 etc. In the motion to postpone the hearing at last term, there was an affidavit of the appellant, and perhaps (but I do not recollect) it was substantially the same as this petition; but it is probable that it was there suggested that the attendance of the witness could be procured next term. There must be an affidavit annexed to this petition before the order can be made.
In the case of the infant trustees of the name of Wilson, I do not remember the reason exactly why the order was *600not made and why the subpoena was directed, but I believe it was:
First, because the infants were not parties to the petition by their guardian.
Second, because the Act of Assembly directs the order to be made, upon the hearing of all the parties concerned.
Third, because, perhaps, it did not clearly appear upon the petition that the infants are trustees within the Act of Assembly. Our Act is the same as the Statute, 7 Anne, c. 19, except as to mortgages; and in England the Court of Chancery will not, on petition, order an infant trustee to convey, unless the trust appears in writing, but in such case will leave the cestui que trust to get a decree by bill. Neither.will the Court order such conveyance on an implied trust. 1 P.Wms. 549, 3 P.Wms. 386, 2 Ves.Sr. 559.
Fourth, the practice in England is always to inquire into the case and see the interest of the infant, and whether the case is within the meaning of the Act. This is done on a reference to a master. See 1 P.Wms. 549, 1 Harr.Ch. Pr. 60, 61, Bun. 52.
So far as I understand the case, 3 Atk. 479, Ex parte Maire, a subpoena is necessary when all the parties do not join in the petition and are not before the Court.
My principal reason, I apprehend, was founded on the Act of Assembly requiring the order to be made on hearing the parties concerned; and this could not be done without calling them all before the Court. I have looked into the cases since I received your letter, and they entirely correspond with the-ideas I entertained of the Act.
Note (added since the 23rd May). See Ex parte Sergisson, In the matter of Crips, an infant, 4 Ves.Jr. 147.
Note by Ridgely, “See the Act of Assembly, 4 Del.Laws 32.”
Note by Ridge’-y, “See the Act of Assembly, 4 Del. Laws 32.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487593/ | May, 1821. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487595/ | The Chancellor.
In this case there are two questions: first, whether the award concludes the defendants from disputing the title of the lessor of the plaintiff; and secondly, whether the survey made by Isaac Taylor, a proprietary surveyor, dated the 24th September 1713, controls or overrules the patent made by William Penn to Simon Hadley for Hadley’s tract of land, dated the 25th September, 1713.
First, as to the award. The defendant, John Mclntire, executed a bond to Daniel Thompson, the lessor of the plaintiff, and James Thompson, his brother, dated September 1, 1813, in the sum of $3000, with a condition underwritten, reciting that some controversy had arisen between the said parties respecting the line dividing their lands, and other matters, for which a suit had *612been instituted by the aforesaid Dr. Thompson against the said John Mclntire, the whole of which the parties had amicably submitted to the decision, settlement and final determination of Isaac Dixon, Richard Buckingham, Andrew Gray, William Foulk and Joseph Ball, then, that if the above bounden John Mclntire, his heirs, executors and administrators shall and do well and truly stand to, abide by, perform, fulfil and keep the award, order, arbitrament, final end and determination of the said Isaac Dixon, Richard Buckingham, Andrew Gray, William Foulk and Joseph Ball aforesaid or a majority of them (provided that the said award, order, or final end and determination of the said referees be made under their hands and seals and ready to be delivered to the parties on or before the 25th of the said month of September) then the said obligation to be void. Four of the arbitrators made an award in writing under their hands and seals, dated the 24th September, 1813, and ordered that the division line should run in the straight direction of a certain marked hickory standing in the line of John Walker’s and Jesse Owen’s lands, and a certain marked black oak, fallen and blocked, on the line of lands of the said John Mclntire and Daniel Thompson, as represented on the plot annexed to the award. They also awarded that Mclntire, the defendant, should pay to Daniel Thompson, the lessor of plaintiff, $11 for his damages which he had wrongfully sustained by the said John Mclntire for timber. This line passed entirely the lands of John Mclntire and Daniel Thompson where they joined, and extended through the lands of James Thompson and J. Mclntire, so far as they adjoined, and established a division line between the Thompson’s and Mclntire. It includes about 1% acres of land held by John Mclntire, the defendant, and claimed in this action by Daniel Thompson, the lessor of the plaintiff.
First, whether the award concludes the defendant Mclntire from disputing the title of the lessor of the plaintiff and controverting the line so established. This is the first case in which this point has arisen in this state. The counsel for the plaintiff in error cited: 3 East 15; Kyd Aw. 55; 1 Bac.Abr. 239, title “Arbitrament” K (Wilson’s Edition of Gwilliam’s Bacon); 1 Wils. 122; 2 Wils. 148; 2 Johns. 62, 63; 3 Johns. 367; — to prove that the award is conclusive, and that whether the party claiming under it sought to recover the penalty or to enforce the award by an action of ejectment for the recovery of the land awarded, it could not be invalidated in a court of law, and could be impeached in a court of chancery only. In an action of debt on a bond to perform an award, nothing dehors the award can be given in evidence to impeach it, such as partiality or corruption *613in the arbitrators; and the only remedy the party can have must be sought in a court of equity. The cases cited fully come up to this point, and from the reason of the thing the award should be conclusive on the party, so far as to entitle the other party to a recovery on the bond for the non-performance of it. The bond fairly becomes forfeited by a breach of the condition; and to suffer the party to question the award on a suit on the bond would be a death-blow to arbitrations at common law, and would make a man’s contract of no avail. Somehow, they should be enforced, and the regular and proper and well known method is by a suit on the bond.
In England, it seems to be settled by the case of Doe, on the demise of Morris et al., v. Rosser, 3 East 15, in an action of ejectment, that though an award cannot have the operation of conveying the land, yet that by the agreement of the parties to make it conclusive as to the right to land in controversy, it is sufficient to bind them in the action of ejectment. This is the first decision there which has given such an effect to an award at common law. If it concludes the right to the land, or, which is the same thing, if it binds the party in an action of ejectment so that he cannot controvert it, it is equal to a conveyance of the land and more effectual than a verdict and judgment in an action of ejectment.
In the case of Trusloe against Yewer, Cro.Eliz. 223, 2 Leon. 104, there is a curious distinction in a controversy concerning a lease for years. An award that one of them should have the land was held to be a good gift of the interest of the land or of the interest of the term; that is, that the whole lease or interest in the land for the term then to come belonged to one exclusive of the other; but if the award had been that one should permit the other to enjoy the term, this would not have given the interest in the land, nor would amount to a lease. The author of Bacon’s Abridgment (3 Bac.Abr. 421, title “Leases and Terms for Years,” K) explains this case thus:
“Because the Permission being to come from the other Party, the Interest must be supposed to be and continue in him; and it could not amount to a Lease, or an Award of a Lease; not to a Lease, either from the Arbitrator or the other; not from the Arbitrator, because he had nothing in the Land, and was only to award what the other should do; not to a Lease from the other, because it was only the Act and Award of the Arbitrator; neither could it amount to an Award of a Lease from the other, because it was only that he should permit the other to enjoy the Term, which he might do without making a Lease; and *614the Words being spoken by the Arbitrator, who was a third Person, cannot have the same Operation, as if they had been spoken by one who had Interest in the Lands to another, but must be taken according to the literal Sense and Meaning. . . . ”
The distinction here is in words only. An award that one of the parties should have the land; and an award that one of the parties should permit the other to enjoy the term, would end precisely in the same thing; for if the award in both cases were to take effect according to the intention of the arbitrator, the land would be enjoyed by the one to whom the arbitrator awarded it; that is, by him [by] whom the arbitrator intended the beneficial interest in the land should be enjoyed. In Dyer 182b, in a note, this case of Trusloe against Yewer is cited and seems to be approved. And there, where baron et feme possessed of a term in right of the feme executrix, it is said, a submission by the husband of the title and interest in the term would bind the feme as much as if the husband had granted the term; but if the arbitrators had awarded that the possessor should hold the term, that would not bind the right of the other, for their arbitration does not extinguish the right then, as it does, to pass the possession. These were cases of terms for years and may be distinguished from estates in fee simple by not requiring the same solemnities in passing from one to another, but even in them the award would not extinguish the right.
In Marks v. Marriot, 1 Ld.Raym. 114, which was an action of debt on a bond conditioned to perform an award, Treby, C. J., said that things in the realty might be submitted, as well as things in the personalty; but they could not be recovered upon the award. And Kyd, in his treatise on awards (Kyd Aw. 62), says that since the Statute of Frauds such an award would not be sufficient to bind the parties; but that it must order a transfer of the possession or a release of the right by a written instrument. Vide Doct.Pl. 97. Thus it appears that an award cannot' pass an estate from one to another; and most clearly the Statute of Frauds, and our Act of Assembly (1 Del.Laws 328) do not countenance such ah opinion, but are directly adverse to it. If the award can have any such effect, it must be by an act to be done in obedience to an award.
But it has not been contended that the award operates as a conveyance of the land, nor that it vests any right or title to the land in Daniel Thompson, the lessor of the plaintiff, but merely that it concludes Mclntire from setting up any title to the land in opposition to the decision of the arbitrators. The case in East *615[3 East 15] supports the argument of the plaintiff’s counsel; but that case seems to me to be contrary to former opinions and to the general principles of the law. I have referred to Lord Chief Justice Treby’s opinion. It is, though, on the footing of the agreement of the party that the award of the arbitrators should be conclusive as to the right to the land in controversy, that the party is to be barred or precluded from disputing the title of the lessor of the plaintiff. If the agreement can have such an operation at law, it would be a case peculiarly fitted for equity jurisdiction; but in the case of Thompson v. Noel et al., 1 Atk. 60, Lord Hardwicke says that a bill to carry an award into execution, when there is no acquiescence in it by the parties to the submission or agreement by them afterwards to have it executed, would certainly not lie, but the remedy to enforce a performance of the award must be taken at law; that is, as I understand, by a suit on the bond, or by such other mode as will correspond with the form of submission. And in 1 Eq. Cas.Abr. 51 pl. 9, Bishop and Webster, a bill was exhibited to an execution of an award, which was performed by neither party. The defendant demurred because there was no precedent that a court of equity had ever carried such awards into execution; and the demurrer was allowed. In the case of Norton v. Mascall, 2 Vern. 24, where one party had sold land to raise money to be paid under an award, and the other party had intimated that he would receive it, though the award was extrajudicial and not good in strictness of law, it was decreed to be specifically performed, not because the award of itself could be enforced, but because the party had intimated that he would receive the money, and thereby agreed to the award and induced the other party to sell land to enable him to perform it. So in Hall v. Hardy, 3 P.Wms. 187, in a dispute about the fee simple of a small parcel of land, on a submission to arbitration, two sums of money, £10 and £30, were ordered to be paid on different days by one of the parties, and that the other should join in a fine and deed of uses and thereby convey the premises to the plaintiff. The £10 were paid, and the £30 tendered. On a bill for the specific performance of the award, it was so decreed because the defendant by his acceptance of part of the money had undertaken specifically to perform it; but without that circumstance it would not have been decreed.
Upon a voluntary submission to arbitrators, without the interposition of a court of equity, and without any acquiescence or agreement by the parties to have it executed, a bill will not lie in a court of chancery for a specific performance. I speak here of awards that are good and made according to the sub*616mission, and where there is a remedy by a suit at law. (Vide 1 Ves.Sr. 450, Pow.Con. 318.)
If the award does not operate as a conveyance,-' if it vests no title to the land in controversy in Thompson, the lessor of the plaintiff, if it does not extinguish the right or title of the defendant, if any he has, if a court of chancery would not compel a specific execution of it, I cannot perceive the principle upon which it can be enforced in a court of law in an action of ejectment. If the award could be enforced by an action of ejectment, then a court of law would do more in compelling the performance of it by the defendant than could be obtained in equity; and the award would be more effectual than a verdict and judgment. At common law every covenant and agreement was personal where there was no proper conveyance to transfer the right of the thing itself; and being only a personal agreement, when it was broken, the party could only recover damages. This remedy in all instances was not complete, therefore a court of equity interposed. Gilb.Cas. 235, 3 Bl.Comm. 438, 1 Madd.Ch. 286. A court of equity, where a man bargains to do a thing, in conscience and justice looks upon it as already done, therefore their decree is not only in personam, but in rem and binds the right of the thing; but a court of law acts only in personam. A court of equity has a discretion in such cases, not arbitrary and capricious, but a regulated and judicial discretion governed by established rules of equity. 3 Bl.Comm. 432, 1 Madd.Ch. 287. A court of equity can impose terms; a court of law cannot. If the party be entitled to a verdict, the law must take its course. 5 Term 690. Vide 5 Ves.Jr. 517. It is admissible on the part of defendant to show circumstances, dehors, independent of the writing, to make it inequitable for the purpose of a specific performance, 1 Madd.Ch. 322; but in a court of law nothing dehors the award, or a suit on the bond of submission, can be given in evidence to affect it. 2 Wils. 148.
Can these rules apply to an action of ejectment to enforce the award? And yet they certainly ought; for if a court of common law jurisdiction assumes the jurisdiction of a court of equity and undertakes to enforce an award specifically because of the agreement of the party to perform it, all the rules of a court of equity should be applied to the case, and the defendant should be allowed to show circumstances dehors, independent of the award, as in all cases in equity where the aid of that court is sought for the enforcement of agreements. If there are acts to be performed by each party, many difficulties will arise in going incidentally into a specific execution of the award; but in a suit at law on the submission bond the pleadings will develop the *617whole case and give notice of the facts to be proved and the points in issue between the parties. All these appear to be strong objections against compelling the performance of an award by an action of ejectment.
Again, an action of ejectment is a possessory remedy and only competent where the lessor of the plaintiff may enter; therefore it is always necessary for the plaintiff to show that his lessor had a right to enter, by proving a possession within twenty years or accounting for the want of it under some of the exceptions allowed by the Act of Assembly. Twenty years adverse possession is a positive title to the defendant. It is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession. 1 Burr. 119. This is the doctrine of Lord Mansfield and of all other judges. And our Act of Assembly, 2 Del.Laws 1156, takes away the right of entry, but within twenty years next after the party’s right or title first descended or accrued; and also the writ of right, and all actions real, personal or mixed, and all prescriptions or claims to or in any lands, without an actual seisin or possession of him or his ancestors or predecessor of the premises sued for or claimed, within twenty years next before such writ or action brought. If then Thompson, the lessor of the plaintiff, has not had the actual seisin or possession of this land within twenty years next before the action brought, how can this submission and award entitle him to recover in this action? The award gives no title, it conveys no right and transfers no possession; and yet, if it were conclusive against the defendant, it would enable the plaintiff to recover against the express provision of the Act of Assembly. If the award were to conclude the defendant so as to bar him from making any defense in this action, still it would not transfer such a seisin or possession to the lessor of the plaintiff that the plaintiff could recover without an actual seisin or possession within twenty years. As it could not operate as a conveyance of any right or title from Mclntire to Thompson, the plaintiff could not claim under Mclntire’s possession within twenty years as his predecessor; and consequently the want of an actual seisin or possession could not be supplied by the award. And if I supposed that the award barred the defendant from impeaching or controverting it, yet I should not think it decisive of the right of the plaintiff to recover in this action. At the utmost, the award could only repel the defense of the defendant; it could not affirmatively give a right of entry and a right to recover the possession, without an actual seisin or possession.
In Pennsylvania this question has been agitated, but has never perhaps received a solemn decision. On the last occasion, at nisi *618prius in May, 1798, Chief Justice McKean and Mr. Justice Smith held that such an award was not binding. See Dixon’s Lessee v. Morehead, Add. 216, cited in a note to Kyd Aw. 63.
Great respect is certainly due to the decision in East [3 East 15], but as that case seems to me to be at variance with the general doctrine on the subject of awards, and as it is not an authority, I must decide upon my own light and my own understanding. If I am mistaken, it does not happen from negligence. I have examined the point with diligence and attention, and from the best consideration I can give it, my opinion is that the Supreme Court did not err in allowing the defendant to controvert the award.
Second, as to the survey. In the charge of the Court the Chief Justice directed the jury thus:
“And so the question about the said boundary remaining to be considered, whether the north and south line of the Hadley patent contains two courses or only one, it appears that there is a variance between the survey and the patent of the Hadley tract in this, that the survey represents the disputed boundary as containing two lines, and the patent describes the same as consisting of but one line. And we have no hesitation in directing you, and giving it as our opinion, that, according to the evidence in this cause, if the same be believed by the jury, the survey which is anterior in date should control the patent. And that if the said land in dispute should be believed by the jury not to be included within the bounds of the said survey, or it should be believed by the jury that the defendants and those under whom they claim have had twenty years adverse possession thereof uninterruptedly before the time of the bringing the said action of ejectment, it will bar the plaintiff’s right of recovery therein, notwithstanding that the controversy arises between the parties in this action , about the true location of the common boundary line between their respective adjoining tracts, and the submission of the parties to arbitration relative to this matter in controversy. would not prevent the operation of the Act of Limitations to bar the right of the plaintiff to recover in this action.” ,
The survey and the patent were made for the same person and are for the same parcel of land, except that the two lines include the land in controversy, and the line of the patent does not. There was no evidence given at the trial to impeach the patent, or to question the fairness of its execution. It is a genuine authentic deed made by William Penn, by his attorneys, for *619conveying to Simon Hadley the tract or parcel of land contained within the metes and bounds therein mentioned.
The survey was made for the purpose of designating a particular parcel of land to be granted to the patentee. It was designed merely to ascertain and separate the land to be granted from other land of the grantor or of other grantees, and it was liable to the control of the grantor and grantee, and might be altered and corrected by them. It is true that a Land Office being erected for the sale of vacant lands, and rules established by which such sales were conducted, a compliance with those rules, or even with the customs of the Office, would give to the party a right to the land appropriated to him by a warrant and survey, but the moment the patent was executed the survey became functus officio; the grant was completed, and the grantor was invested with a complete legal title. The patent executed the contract created by the warrant and survey, and fixed and established the terms and conditions between the grantor and grantee. The case, though, is not so strong as if the survey were supported by a warrant. The survey by itself ought to have, and could have no effect. If it stands per se, then it is an unauthorized act; and although made by a surveyor of the Proprietary, yet without a warrant it was not valid. A warrant might be presumed, but that is not the question. Neither was it the question with the jury; but the survey alone without any warrant was opposed to the patent, and was ruled, according to the evidence in the cause, to invalidate or control the patent in respect to the lines in which the survey and patent vary.
A warrant and survey without a patent, and a warrant alone where the land has been sufficiently designated and located in the warrant, have been deemed sufficient evidence of a grant; but when the Proprietary has acted upon any warrant and survey and issued a patent thereon, the patent supersedes the warrant and survey in relation to the warrantee and patentee, the same person being both, just as a judgment recovered on a bond extinguishes the bond. When the warrant and survey are adverse to a patent, that is, where they have been granted to different persons, and distinct opposing titles are set up under them, the right or title to the land will depend on the priority of the grant, the warrant and survey being considered as a grant. The Act of Assembly passed February 7, 1794 (2 Del. Laws 1174) has sanctioned and confirmed the practice that prevailed in our courts before and since the Revolution, and provided for those who legally claim lands under any warrant or grant issued or made before January 1, 1760, for which lands no patent has yet issued, a mode of completing their titles by *620obtaining a patent; but in this case no patent could be obtained under that Act, because a patent had been issued, and the title was thereby completed.
I do not understand the court, though, in this direction to the jury, as laying down the law generally, that this survey should control the patent merely because it was anterior in date, but according to the evidence in the cause, if it were believed by the jury. This narrows down the question to the particular case and facts that were then before the court and jury. But I am so unfortunate, if there were any evidence that did or could operate on the survey or on the patent, so that the survey should control it, as not to perceive it, nor to be able to give the same effect to it which the court below did. The patent at its date either controlled the survey, and was superior to, and superseded it, or did not. No subsequent facts or circumstances could operate upon these instruments. The proof given of the possession did not, for however that the possession might be strengthened by length of time, yet it could not refer back and destroy an instrument which was valid at its date.
These papers depended on their own intrinsic efficacy at their dates, and could not be affected by any subsequent events. If the patent on September 25, 1713, completed the title to Simon Hadley, as I think it did, nothing afterwards could so operate as to give any superior or controlling effect to the survey. There is not proof nor allegation of any fraud, imposition or mistake in obtaining the patent; and to presume a mistake because the patent and this survey differ would be a rash presumption, not to be respected in law. There must have been a survey returned before the patent issued, and that should have been produced before any ground of presumption of mistake could be laid. This is not an office paper and is not tile best evidence of the survey, unless it be shown that the survey was lost and could not be found. I repeat that a survey must have been returned before the patent issued, unless this patent originated in a manner different from the common course of granting patents, and of that there is no evidence in this cause. The parties to the patent must certainly have seen and known that it differed from the lines of the survey, if they acted upon this survey; and although it cannot now be accounted for, yet the parties no doubt had good reason for the change. If this patent could be controlled by this survey found among the title papers of the defendant Mclntire, and not appearing to have been returned to the office, although accompanied with possession, I cannot conceive what effect a patent can have, or what security it can give in any case. It is certain that a patent cannot operate *621against an older warrant and survey, by which a title is set up adverse to the patent by one claiming against the patent; and if it has not a conclusive effect as to the patentee and those claiming under him, it will amount to nothing.
The court placed the case on the alternative, that if the land in dispute should be believed by the jury not to be included within the bounds of the survey, or it should be believed by the jury that the defendants and those under whom they claim have had twenty years adverse possession thereof uninterruptedly before the time of bringing the said action of ejectment, it will bar the plaintiff’s right of recovery therein, notwithstanding that the controversy arises between the parties in this action about the true location of the common boundary line between their respective adjoining tracts; and the submission of the parties to arbitration relative to this matter in controversy would not prevent the operation of the Act of Limitations to bar the right of the plaintiff to recover in this action. Now this is giving full effect to the survey, entirely overruling the patent, and making the paper title of the defendant, as to the location of the lines, depend exclusively on the survey; which, I think, was erroneous, for the defendant’s paper title could not extend beyond the limits mentioned in the patent. But as to the charge related to the Act of Limitations, it was right as I have before mentioned. Inasmuch then as the jury might have supposed from the direction of the court that the lines in the patent must give way and be controlled by the survey, and as they might not have found for the defendant without this direction, there is error in the charge, and the judgment should be reversed.
Warner, Cooper and Batson concurred. Opinion unanimous. Delivered October 20, 1821 at an adjourned court.
Note (made November 25,1827). See the case, Bouck v. Wilber, 4 Johns.Ch. 405, where the Court of Chancery in New York corrected a mistake of an extrajudicial nature in an award, and decreed a performance of it in specie. In 1 Swans. 43, Wood v. Griffith, that a bill will lie for the specific performance of an award, because the award supposes an agreement between the parties, and contains no more than the terms of the agreement ascertained by a third person. See I Dall. 304, Smallwood v. Mercer, 1 Wash. 290. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487596/ | June, 1821. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487597/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487598/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487599/ | The Chancellor.
Whittington Johnson did not die seised of an estate of inheritance in this land, and therefore the case does not come within the description of lands mentioned in the Act of Assembly entitled “An Act respecting devises of lands, joint estates and dower,” passed in the year 1816 [5 Del.Laws 174]. And the husband did not die intestate, so that on no ground can she proceed in this Court to obtain her dower.
The election to take her dower, and the petition on the motion of Mr. Brinckle were withdrawn, neither having been entered' on the record, and John M. Clayton agreeing thereto. He opposed the assignment of dower on the part of Walter Douglass,, a creditor. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487600/ | The Chancellor
decreed that Mary Shockley should have her dower. He said that the partition made by the devisees of John Ralston, Esq., although she asquiesced in it, was not a bar to her recovery; and he referred to Kennedy v. Nedrow et ux. et al., 1 Dall. 415, where the widow, a devisee, herself caused partition to be made, and nevertheless recovered her dower; and this he said was a much stronger case. Her acquiescence was no bar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487601/ | The Chancellor.
In this state all lands, tenements and hereditaments, where no sufficient personal estate can be found, are liable to be seized and sold upon judgment, and execution obtained, 1 Del.Laws 110. So lands may [be sold] by executors, 1 Del.Laws 281, and by administrators, 1 Del.Laws 292, by order of the court for payment of debts.
By these Acts of Assembly all debts are in some form charged upon lands and made liens or incumbrances, so as to exclude the widow’s dower. And in the Supplement to “An Act for the better confirmation of the owners of lands, etc. in their just rights and possessions,” 1 Del.Laws 138, it is declared that by the laws of this government lands were always subject to be taken in execution and sold for the payment of debts, as well as to be sold by executors and administrators for the payment of their intestates’ and testators’ debts.
It is evident then that debts always have been incumbrances on land; and although their effect has not been such as to bind or charge them when bona fide sold by the owner in his lifetime, yet, in all cases where the land passes by the operation of law or by devise, the debts are liens or incumbrances, and the wife, heir or devisee takes, liable to be affected by such incumbrances. The difference consists in the mode of proceeding in converting these assets into money for the satisfaction of the debts, and not in the liability of the land. When the land is sold by the sheriff on an execution upon a judgment recovered in a court of law, or by an executor or administrator by order of the Orphans’ Court, the wife is completely barred of her dower.
A mortgage is a lien on land, yet if the wife does not join in the deed, and the land, after the death of the husband, is sold by process of law on the mortgage, the wife is not thereby barred of her dower. This was so decided in the High Court of Errors and Appeals at August Term, 1807, in the case of Marshall v. the Lessee of Daniel Wolfe. But if there is a debt on bond or simple contract, and the husband dies, the land may be sold to bar the dower of the wife, either upon a judgment recovered at law, or by order of the Orphans’ Court. In these instances the debts operate according to the nature of the securities. The bond or simple contract debt is a lien, or incumbrance, or charge on the land, and, after the death of the husband, attaches and must be paid before the wife can take her dower, but the mortgage has no *630such effect; and the reason is because the law charges the bond or simple contract debt on the land, and the mortgage is a lien by the act of the party, and the wife not having joined in it, she is not barred.
A judgment recovered after the marriage did not, at common law, bar a widow of her dower; but the Acts of Assembly before mentioned made them liens or incumbrances against the wife, and made a common debt, as to her, as much a lien or incumbrance as a debt on judgment. In giving a construction to the Act of 1816 [5 Del.Laws 174] the words, “lien” or “incumbrance,” must be expounded according to the intention of the legislature and the subject matter. When the legislature excepted liens or incumbrances existing before the passing the Act, they excepted all such charges, burdens, liens or incumbrances, no matter by what name they were called, as before that Act prevented a widow from recovering her dower. The general provision of the Act is that the wife shall be entitled to dower in preference to all charges and incumbrances created by the husband alone after the marriage; but it was felt that it would be a breach of faith, a violation of contracts, to give the wife a right of dower paramount [to] the debts which had been created and were incumbrances before the Act was passed, and therefore they provided that nothing therein contained should be construed or taken to affect or destroy any lien or incumbrance existing before the passing the Act. A judgment recovered after the marriage no more barred the wife than a debt not upon judgment; but on the death of the husband they both attached and barred her, and therefore they both alike were incumbrances as to her and are excepted. It was not designed by this Act to break in upon the existing rights of the parties, but prospectively to adopt a new system in relation to dower. And certainly no wrong was done to the wife by leaving the law, as to past cases, precisely as it stood at the time the Act was passed.
, Whatever may be the technical meaning of the words, “lien” or “incumbrance,” we must use and construe them according to the sense of the legislature, and so as to give effect to the Act of Assembly. In 1 Vern. 309, Norton v. Sprig, a bond given by a widow, who afterwards married, is called by the court a lien by deed; and in 3 Burr. 1375, Montcaster v. Watson et al., the words, charges and incumbrances, were said to mean incumbrances on the estate, as dower etc.
With my view of the subject, it is unnecessary to enter into a consideration of the constitutionality of the Act. The legislature *631did not interfere with past contracts; they left them in full force and by no means impaired their obligation.
Appeal taken.
This case was carried by appeal by Eliza Brinckl[o]e, the petitioner, to the Supreme Court, and at March Term, 1822, the appeal was dismissed and the judgment of the Orphans’ Court affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487602/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487603/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487604/ | The Chancellor.
There are two principal questions. The first is whether the bequest of a legacy to Abel Glasford of £75 is to be deemed a satisfaction of the debt which the testatrix owed him. The second is whether the legacy given “to the Baptist Church known by the name of the Welch Tract Church,” is void.
As to the first. The testatrix was indebted to the legatee, Abel Glasford, by her single bill dated June 10, 1797, in the sum of £28.19.6, payable on demand. She made her will in writing August 24, 1799, which was proved April 23, 1800, whereby she ordered all her lawful and just debts to be paid. She then bequeathed to Elizabeth Weir her clothes “and what of her moveable effects might be left after paying her debts.” Then after disposing of some silver teaspoons she says, “I do give to Samuel Smith McKee £150 to be paid to him out of the money coming to me from the estate of Mary Evans, deceased, to be paid to the said Samuel Smith McKee as soon as it shall be recovered. I do give to Abel Glasford £75 out of the monies coming to me from the estate of Mary Evans.” She then gave to Abigail Giles £25; to Margaret Walker £25; to Mary Toppin £25, all of which sums of money were to be paid out of the monies coming to her from the estate of Mary Evans, deceased. She then gave “to the Baptist Church known by the name of the Welch Tract Church the sum of £200 to be paid out of the monies coming from Mary Evans’ estate, if there should be so much after the other legacies are paid.” And then she says, “if there should be any remainder of my estate after paying the legacies as aforesaid, it is my will that it should be equally divided between the three daughters of William Weir, namely Elizabeth, Margaret and Sarah Weir.”
Abel Glasford died a year or two after the testatrix, who in her lifetime had filed a bill in the Court of Chancery to recover the money due to her from the estate of Mary Evans, deceased. And after her death the money was recovered, and on December 14, 1808, it was actually paid to Morgan Jones, the administrator with the will annexed, to the amount [of] $2123.71%. The administrator with the will annexed paid to the administrator of Abel Glasford his debt and legacy, and also paid to the Baptist Church the legacy of £200. Exceptions have been to the payment of the debt which the testatrix owed to Abel Glasford, on the ground that the legacy was a satisfaction, and to the payment of the legacy to the Baptist Church.
It is a rule of law that when a debtor bequeaths to his creditor a sum of money equal to, or greater than, the debt he owes him, *636such legacy shall be deemed a payment or satisfaction of the debt. But this rule admits of many exceptions; as if there be a difference in the times of payment, so that the legacy may not be as beneficial as the debt. Atkinson v. Webb, Prec.Ch. 236. And in Nichols v. Judson, 2 Atk. 300, it was held that the legacies being made payable in one or two years after the testator’s death was a considerable circumstance and showed strongly that it was not the intent of the testator that it should go in satisfaction of the debt, for the bond was payable immediately, and the testator had no right to suspend the payment of the debt, though he might suspend the payment of the legacy. This circumstance, it was adjudged, took the case out of the general rule.
Here the debt was due to A. Glasford immediately, before the death of the testator, and the payment of the legacy depended upon the recovery of the money from the representative of Mary Evans, so that if this legacy were to be taken as a payment of the debt, the testatrix would have postponed it to an uncertain, distant period, which she could not do. And in Matthews v. Matthews, 2 Ves.Sr. 635, the Master of the Rolls said “The thing in satisfaction should be as certain as to the duration and commencement of it, otherwise though ten times larger given by the will, it will not be held a satisfaction.” Now, it was altogether uncertain when this legacy would be recovered. The bill was filed against Mary Evans’ representative in this Court, November, 1798, and the decree was not made until March, 1807, and the money was not actually paid to Mr. Jones until December 14, 1808. The testatrix takes notice that this money was not in hand, and she knew at the time of making her will that if her death happened at any short period after its date, the money could not be paid in time to satisfy the debt, if it were immediately required. In Clark v. Sewell, 3 Atk. 96, where the payment was postponed one month only after the testator’s death, Lord Hardwicke said that that was a circumstance that the plaintiff had a right to lay hold of to take that out of the cases that had been deemed a satisfaction. For, according to the rule of this Court, a legacy that ought to be deemed a satisfaction must take place immediately after the death of the testator; for the debt, whether of a principal sum or interest, is due at the death of the testator, and therefore the legacy must be so too. I refer also to the case of Haynes v. Mies, 1 Bro.C.C. 129 and Peacock v. Falkner, 1 Bro.C.C. 295.
In Hinchcliff v. Hinchcliff, 3 Ves.Jr. 516, 529, and in many other cases, this rule, that a legacy is a satisfaction of a debt, is spoken of with regret, but, being clearly established, it is to be adhered to, though any little circumstances are laid hold of by .the *637Court to take a case out of the rule. The circumstance in this case is not a little one, for it is evident that the administrator cum testamento annexa could not pay the legacy until after litigation in Chancery. The fund should be recovered from which the legacy was to be paid. In this will there is an express provision for payment of debts. And in the bequest of the legacy, that is ordered to be paid out of money to be recovered from the representative of Mary Evans, so that it is evident the testatrix intended the debt should be paid at all events, and the legacy to depend on the recovery to be made. And it is fairly to be inferred that the testatrix did not intend to substitute the legacy for the debt. She intended a greater benefit to Mr. Glasford than the payment of the debt. The debt was provided for immediately; the legacy was postponed to [a] remote period not within the power of the parties to hasten beyond the ordinary course of legal proceedings. Upon the whole, I am of opinion that this legacy is not a satisfaction of the debt, and that this exception ought not to prevail.
The bequest to the Baptist Church depends on the proper construction of the Act of Assembly “to enable all the religious denominations in this state to appoint Trustees, who shall be a body corporate, for the purpose of taking [care of] the temporalities of their respective congregations,” 2 Del.Laws 878. The Act declares that all gifts, etc. Now this is not a gift of money to be laid out in the purchase of any lands, etc., and consequently is not within the provision of the Statute. The prohibition of this section extends to gifts, etc., of realty, or of personal estate to be laid out, or disposed of, in the purchase of lands, tenements, rents or other hereditaments; and does not, either in the meaning of the legislature, or by the words of the Act, extend to a mere bequest of money to a religious society. This Act is almost in the language of 9 Geo. II, c. 36, which has never been construed to embrace a gift or devise of money, goods, chattels, stocks in a public fund, securities for money, or any other personal estate not to be laid out, or disposed of, in lands, tenements, rents or other hereditaments. There is some little difference between the two laws. I am very clear that the bequest to the Baptist Church, known by the name of the Welch Tract Church, of these £200 is a good devise.
None of the exceptions are allowed, except to the commissions, which are excessive. Eight per cent on $2456.22 will amply compensate the administrator. There have been eighty-six dollars and ninety-two cents allowed beyond what is right. Such excess ought to be charged to the administrator, and his representative to pay the costs.
*638Note. Bequest, money to build or repair on land already in mortmain, not within the Statute 9 Geo. II, c. 36: 2 Ves.Sr. 182; Amb. 614, 651, 751; 1 Bro.C.C. 444; 3 Bro.C.C. 588, 595. See 2 Ves.Sr. 647, 3 Atk. 806, 4 Bro.C.C. 526. Land cannot be devised nor money willed to purchase land, nor mortgages nor anything which partakes of realty. See above cases and Amb. 20, 614, 635, 643; 1 Ves.Jr. 548; 2 Ves.Jr. 238; 4 Ves.Jr. 21, 418; 6 Ves. Jr. 404; 8 Ves.Jr. 186; 9 Ves.Jr. 535. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487605/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487608/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487610/ | Per Curiam,
unanimously. Causes remanded for a final decision.
These causes were heard and decided by Ridgely, Chancellor, Booth, Chief Justice of the Court of Common Pleas, and Cooper and Stout, Justices of the same court. Johns, Chief Justice of the Supreme Court, who had rendered judgment in that court, in -each of them before removal, and did not sit judicially upon the hearing in this Court, authorized the Chancellor to say that he concurred in the judgment of this Court in remanding these causes for a final decision. No other judge of the Supreme Court was in attendance. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487614/ | The opinion of the Court was delivered this day, December 1, by the Chancellor. He said that this case did not differ from Crockett v. Blackistone, Administrator of Ford. The only variation of circumstances was that here a distributive account had been passed, which was nothing more than putting on paper the amount which the widow and child respectively were entitled to in the surplusage of the intestate’s personal estate. That this distribution on paper was not a payment, nor a retainer by Huff, nor a charge against him. It only showed that the estate had been settled by the Register. It certainly could be no proof of payment, nor of anything else than showing the amount each heir is entitled to; otherwise it would frequently do great wrong to unpaid heirs. Huff has not mentioned that the money was held or retained by him for his ward. And in the guardian account passed August 6, 1810, nothing but rents and profits are accounted for. It is evident that Huff at no time intended to charge himself with his ward’s share of the personal estate, particularly as there is a balance stated to be due to him on the guardian account of $225.95, which is not even credited by any part of the balance due to his ward of the personal estate.
Judgment reversed unanimously, and judgment rendered for . the plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487615/ | The Court
was of opinion that as Fisher held this slave as a trustee, he could do no act to divest the interest of the cestui que trust. That he had no right to sell the slave, even for the benefit of the heir, without an order of the court. And if he could in this manner liberate the slave, he might do indirectly what he could not do directly. That his unlawful act ought not to prejudice the cestui que trust.
*669Note. April 6, 1822. In 4 Cranch 267, in the case of Rose v. Kimely, Martin in his argument said, "So in Maryland, although the statute forbids an administrator to sell the slaves of his intestate, if there be sufficient other personal property to pay the debts, yet if in violation of that law he sells the slaves, the title of the purchaser is good.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487616/ | Mr. Chief Justice Johns
delivered the opinion of the Court. He had looked into the record, and thought that the point had *672not come properly before the Court of Common Pleas, and that therefore the judgment should not be reversed even if there were any misdirection of the court. He said that the court should have been expressly called on for their opinion, and required to charge the jury upon the subject; and then, if the court erred in their direction, it would be proper to review the case in this Court.
Mr. Justice Batson concurred with him, and they were both for affirming the judgment.
Mr. Justice Davis seemed to think that due diligence was a question of law to be determined by the court; but he acquiesced in the affirmation of the judgment.
The Chancellor
considered the question an important one, and that it ought to be deliberately decided; but as two of the members of the Court were for affirming the judgment below, he did not object, thinking that whenever an ultimate decision was made, the point should come before the Court in such a form that that should be the single sole matter for consideration.
Judgment affirmed.
[Note.] See the manuscript report, in my possession, of the case Ann Keith and Andrew Nandain, Administrator of Thomas Keith v. James Snow, tried in the Supreme Court in Kent before Read, C. J., and Clayton, J., April 3, 1798. Read said, “The Court consider themselves in duty bound to say this proceeding has not been with that due diligence as to make the assignor liable.” And after going through the case he concluded, “We are therefore of opinion that the plaintiffs cannot recover in this action.” The jury, however, found a verdict for the plaintiff. The verdict was set aside, and a new trial had October 19, 1799, before Johns, Chief Justice and Clayton, Justice of Supreme Court. In the charge the question of due diligence was left very much with jury. “Then, you,” said the Chief Justice, “Are to consider whether there is any limited time for the assignor to sue; then, what is the limited time. A suit must be commenced to the first Court after the assignment etc. The Court apprehends due diligence was not used by suing as the first Court. General rule, but does not say there are no exceptions.” etc., etc. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487617/ | This was a petition for freedom presented to the court below by Grace, the petitioner, against Shockley. Grace had been the slave for life of John Cooper of Kent County in this state. In the year 1809 Cooper manumitted her and many other slaves, to be free at different periods. Grace was to serve until some time in the year 1824. In 1811, Cooper’s daughter, the wife of Seth Godwin, a resident of the State of Maryland, applied to her father for a negro girl to be taken by her home into Maryland to nurse her children. Cooper permitted his daughter, the said Mrs. Godwin, to take Grace with her into Maryland and there detain or keep her about eleven months. Cooper neither hired nor sold her, but barely suffered her to be thus taken into Maryland. A negro woman, the slave of Cooper, upon some dissatisfaction of hers about the treatment of Grace, went to Godwin’s and brought Grace home to Cooper’s in Delaware. After some time, Cooper gave Grace to another daughter, the wife of John Willoughby, who sold her to Shockley.
The only question with the Court was whether this was an exportation contrary to “An Act concerning Negroes and Mulattoes” 4 Del.Laws 337, c. 124, s. 5; and the Court was clear and unanimous that this was an exportation against the meaning and intention of that Act. Although Cooper himself did not carry the girl into Maryland, yet he suffered his daughter to take her there and continue her there about eleven months. His permitting her to be exported into Maryland is the same thing as if he had done the act. He could easily have prevented it, and *674as he did not, the Court said that it amounted to an exportation contrary to the Act.
The judgment of the Court of Common Pleas was affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487621/ | [For this case, see 1 Del.Ch. 226.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487622/ | The Chancellor.
I am of opinion that it is not necessary that
the offense stated in this declaration should be charged to have been committed against the Acts of the General Assembly, because the Act entitled “An additional Supplementary Act to an act, intituled, An act to prevent the exportation of slaves, and for other purposes,” 2 Del.Laws 942, alone gives the action. By the “Act to punish the practice of kidnapping free Negroes and free Mulattoes, and for other purposes,” 2 Del.Laws 1093, s. 3, the Justices of the Court of General Quarter Sessions of the Peace and Gaol Delivery, or any two of them, are substituted for the five justices of the peace, in open sessions, as mentioned in *28the additional Supplementary Act, etc.; but still it is upon this Supplementary Act alone that the action is founded.
The Constitution, had repealed that part of this last mentioned Act by which the five justices of the peace, in open sessions, were authorized to grant a license for the exportation of a slave, by abrogating the power-of the justices of the peace to hold a Court of Quarter Sessions after the first Tuesday of October, 1793; and therefore by the Act to punish the practice of kidnapping the authority granted to the present Justices of the Court of General Quarter Sessions, or any two of them, is ingrafted in and made part of the additional Supplementary Act etc.; but no suit is given by this last mentioned Act, and it was the intention of the legislature merely to supply a defect in the previous law in the power to grant licenses created by the Constitution. In the second section of the Act to punish the practice of kidnapping etc., special bail is required to be given by persons prosecuted for offenses committed against the additional Supplementary Act etc., and it seems to have been considered by the legislature that the action was given by that Act alone. The Act to punish the practice of kidnapping etc. in no form creates an offense or provides a remedy in relation to the exportation of slaves, and consequently an action cannot be founded on it.
The case of Andrews v. The Hundred of Lewknor, Cro.Jac. 187, is similar to the present, because, as the court then said, the action was grounded only upon the Statute of Winton, 13 Edw. I, c. 2, which gives the penalty and remedy, and the Statute 27 Eliz., c. 13, only shows how the examination shall be and in what time before the action brought. Lee, C. J., in Merrick v. The Hundred of Osselstone, Rep.T.H. 409, Andr. 115, also says that the action is founded upon the Statute of Winton only; and the subsequent Acts of Parliament do not entitle the plaintiff to the action, but only restrain him in the manner of suing. And so here the Act to punish the practice of kidnapping etc. gives no action but only supplies a defect in the additional Supplementary Act. The law stands precisely as if the additional Supplementary Act, 2 Del.Laws 942, had been re-enacted with the third section of the Act to punish the practice of kidnapping etc., 2 Del.Laws 1094, the whole making but one Act as to the granting licenses, but more especially as to the penalty and the remedy.
It is no error that the verdict was rendered for the sum mentioned in the narratio. This is the usual mode for rendering verdicts when the suit is brought for a penalty or for a certain sum, and is sufficiently certain.
*29And the form in which the judgment is entered is well enough; for it should be considered as if drawn up at full length with the legal precision in such cases.
The plaintiff below could not recover damages for the detention of the debt, because the debt did not accrue until the judgment was recovered. 4 Burr. 2018. The conclusion of the declaration, that the plaintiff Gaskins is injured and hath damage, is mere surplusage. The costs have been released; and if judgment had been rendered for the costs or damages, the whole judgment would not have been erroneous, but only so much as related to the costs or damages, or both; and the judgment might be reversed for part and affirmed as to the other part.
The seventh error assigned I do not perfectly understand. The plaintiff below in his declaration named the slave, and this seems to be considered as an error, but I do not perceive in what manner this particularity can be erroneous. It might have imposed some difficulty at the trial; but as the jury has found the fact, it can be no error and would not have been a good cause of demurrer.
It is surplusage only in the declaration to allege that “the defendant below sold with an intention to export etc. without the license or permit first had and obtained from five justices of the peace of the county where the owner or owners of such negro slave did reside, in open sessions,” because such justices had no authority to grant such license or permit, as I have before mentioned. And if the point of objection turns on these words, “did reside,” [it] is now immaterial. The Act intended that five justices of the peace of the same county in which the owner resided should grant the license in open sessions, but now the justices of the peace having no such authority, all that part of the declaration is unimportant and should be rejected; and then the declaration would read thus: “that the said Ingram, on such a day and year, at Sussex County, did sell etc. without license or permit first had and obtained from the Justices of the Court of General Quarter Sessions of the Peace and Gaol Delivery, or any two of them,” which would have the declaration correct in this particular.
I perceive no error and am of opinion that the judgment should be affirmed.
Judgment was unanimously affirmed at an adjourned court, October, 1822, by Ridgely, Chancellor, Johns, Chief Justice of the Supreme Court, Davis, Justice of the Supreme Court, and Stout, Justice of the Court of Common Pleas. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487623/ | July, 1822. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487625/ | *43The following are the Chancellor’s reasons for the judgment rendered on this petition and plea.
By the marriage article, made before marriage, the petitioner agreed to take, in case she should survive her husband Joseph Farrow, one-third of his personal estate in lieu and in full satisfaction of her third or portion of his real or personal estate. Before and at the time of this marriage Joseph Farrow was greatly in debt, far beyond the value of his personal estate. He died about December 12, 1821. On January 1 and 2, 1822, all his personal2 estate was sold by the sheriff on execution process originally issued September 8, 1818, the day of the marriage, and no part of it has been, or can be applied according to this contract. The wife was twenty-one years old at her marriage.
On the part of the respondents, it was contended that the Act of Assembly did not give to this Court jurisdiction in every case of dower; that in many of them very important questions of law may arise, which, if entertained by this Court, may be settled, without going into, and being decided and finally determined by the High Court of Errors and Appeals. And it was suggested, on the allegation of fraud made by the petitioner’s counsel, that the Court should send that question to be tried by a jury. Secondly, it was contended that the wife before marriage might bind herself by such an agreement, however precarious it may be, so as to bar her claim of dower.
First as to the jurisdiction of this Court, there can be no question. The “Act respecting devises of lands, joint estates and dower,” 5 Del.Laws 174, s. 2, has enacted that “in all cases where a widow may be entitled to dower, the same may be assigned and laid off to her by the orphans’ court of the county where the land lies, upon her petition to the said court by the like proceedings and in the same manner as is by law provided in the case of intestate estates, and the cost and charges thereof shall be ordered by the court to be paid by the parties respectively concerned, according to their interests in the said lands, whereof dower shall be so assigned or laid off.” There can be nothing clearer than the meaning of the legislature as expressed in this Act. Authority is given in all cases where a widow is entitled, to assign her dower.
By law, in intestacies, no case can arise in which dower may not be assigned by this Court, unless the aid of Chancery may be required. Such has been the construction and practice under the Acts concerning intestates’ estates; and the legislature in*44tended by the late Act to subject all cases of dower, when the demand could be sustained at law, to the same jurisdiction, and to the same course of proceeding, whether the widow’s right accrued on an intestacy, or in any other manner. The Act is remedial, and was intended to facilitate the assignment of dower, to lessen the charges, and equitably to divide the expenses among the parties interested. Yet, as there are no negative words in the Act, and none implied, the widow may, according to the nature of her case, resort to any other tribunal which had jurisdiction before the Act was passed. In some cases it may be necessary to apply to Chancery for its assistance, as when she has no title deeds (Talb. 120); or for the discovery of such facts as may enable her to proceed at law, or in this Court; and on an allegation of an impediment thrown in her way in her proceedings at law, Chancery has a right to assume a jurisdiction to the extent of giving her relief for her dower, and if the alleged facts are not positively denied, to give her the full assistance of that Court, she being in conscience as well as law entitled to her dower. Curtis v. Curtis, 2 Bro. C.C. 620, 630. Pultney v. Warren, 6 Ves. 89. But dower is a legal demand, and the widow’s remedy is prima fade at law; and wherever she had, or still has a remedy at law, she may apply to this Court by petition and recover her dower.
It has though been suggested that on the allegation of fraud by the petitioner in this marriage contract, this case should be sent to one of the courts of law that the question may be tried by a jury. For what purpose should it be sent to a jury? That another judge may sum up the testimony, and tell the jury what are the conclusions of law upon the facts proved; or is it because a jury is more competent to try the credit of the witnesses, etc.? This Court, it is presumed, can as competently make the proper conclusions upon the facts, as the judge of another court; and as the advantage of a viva voce examination may be had here, the credit of witnesses may be as completely and satisfactorily tried here as by a jury. Suppose it were sent to a jury, their finding would not conclude this Court, and more especially the court having appellate jurisdiction. They must hear and decide for themselves. The Act of Assembly warrants no such proceeding; the Intestate Acts countenance no such course; and no instance ever has occurred of an issue being made up and sent to a jury by this Court. The petitioner has a right to insist on decision of this Court according to all other cases; and it is the more important as the petitioner’s interest cannot extend beyond her life, that no unnecessary delay should be interposed. With her life her claim ceases, and she ought not to be delayed by *45a new and extraordinary mode of proceeding, particularly as the Act of Assembly limits the Court to the like proceedings as in cases of intestacy.
The principal difficulty has arisen on the plea of the respondents. By that an agreement made before marriage for a collateral satisfaction is set up to bar the petitioner. At common law a jointure was no bar of dower, because no collateral satisfaction could bar a right or title of inheritance or freehold. Vernon’s Case, 4 Co. 1. Co.Litt. 36.6. 2 Bac.Abr. 140, title, “Dower” F. But now, by the Statute, 27 Hen. 8., c. 10, a jointure made according to the Statute is a bar. Though a collateral satisfaction is not pleadable at law, yet it may be a good bar in equity. 2 Vern. 365. Co.Litt. 36c note 1. 1 Eq.Cas.Abr. 218, pl. 2. 2 Ves.Jr. 122, 129, Mundy v. Mundy. And the cases in equity generally arise from some legal bar, or from some peculiar difficulty in prosecuting the claim at law. 2 Bro.C.C. 620, 630. 6 Ves. 89. Mitf.Pl. 110, 111. 1 Madd. 197.
No objection has been made to this plea upon this ground; and the question, as this is the first case of [its] kind, is, whether this plea of an equitable bar should be received by this Court, supposing it to be available in equity. This question must depend upon the character of this Court, and the mode of proceeding. In the Constitution, Art. 6, s. 15, 1 Del.Laws 42, 3 Del.Laws 256, the equity jurisdiction of this Court is spoken of as the only jurisdiction of the Court; and in the Act for establishing an Orphans’ Court, 1 Del.Laws 87, s. 8, an appeal is given to the governor for the time being, in equity. All the acts to be performed by this Court are of an equitable nature; and the proceedings are by petition, summons, citation, attachment, imprisonment and sequestration, forms peculiar to a court of equity. The subject matter of the jurisdiction of this Court is such as properly belongs to a court of equity, and no portion of it is such as belongs to a court of common law; unless it be the partition of real estates of intestates among their heirs, as tenants in common, and the assignment of dower. The division of the real estate of intestates among their heirs, as tenants in common is a peculiar case, and is not known at common law, unless among parceners.
This authority was given to the Orphans’ Court very early, and has been so continued. The assignment of dower in this case is to be made upon the petition of the widow, and in the same manner as is by law provided in the case of intestates’ estates; and the costs are to be paid by the parties according to their interest in the land. This Court, then, is a court of equity as to all matters within its jurisdiction, and whatever is a bar either *46at law or in equity may be pleaded. The Act says that, in all cases where the widow may be entitled to dower, the same may be assigned and laid off by this Court. If she is not entitled at law, or if there is any equitable bar, the Court cannot assign it. The Act seems to mean that the whole inquiry should be made by this Court, to ascertain that she has title, before the dower can be assigned. This then brings it to the question [of] right, and as her case altogether rests upon that, the Court should be satisfied that she is entitled before the order is made. Therefore there can be no objection in going into the consideration of the effect of this marriage contract. At the same time, as the question has not been argued, or proposed at the bar, it will be open to discussion in any case which may hereafter arise.
Second, this contract, if fairly made, would certainly be binding on the petitioner. In Lawrence v. Lawrence, 2 Vern. 365, Lord Somers decreed that a collateral satisfaction was a good bar in equity. This decree was reversed, not because of any doubt that dower might be barred in equity, but because the devise to the wife was not expressed to be in satisfaction of dower. See Mr. Hargrave’s Note 1 to Co.Litt. 36a. In Davila v. Davila, 2 Vern. 724, marriage articles were held to bar all demand out of the personal estate under the Statute of Distributions (See 4 Bro. C.C. 506, Caruthers v. Caruthers in the note, where this case is cited as law). In Glover v. Bates, 1 Atk. 439, a marriage contract, made before marriage with an infant, and which she agreed to after the death of her husband, and after she arrived to the age of 21 years, was held to bar her of her share of the personal estate under the Statute of Distributions, he having died intestate, by the provision that the terms therein mentioned should go to the wife, in full satisfaction and recompense of all right and claim of dower, or any claim, or right by common law, custom of the city, or any other usage, law, or custom notwithstanding. In Caruthers v. Caruthers, 4 Bro. C.C. 500, where the question was whether a female infant should be bound by a settlement made on her marriage, it was decided that she should not be bound, because of the uncertainty of the provision made for the wife. But the Master of the Rolls said that if she had been an adult, she might have taken a provision out of the personal estate, or she might have taken a chance, in satisfaction of her dower, acting with her eyes open, but an infant is not bound by a precarious interest.
Mr. Maddock in his treatise, 1 Madd.Ch. 369, sums up the law to be “that any provision, however inadequate or precarious it may be, which an adult, before marriage, agrees to accept, in lieu of dower, will amount to a good equitable jointure.” Like *47all other contracts, if she is fully apprised of all the circumstances, if she acts with her eyes open, and has an equal knowledge with the husband of all the facts, so that she may judge of them, and of the probable result of the contract, she certainly should be bound. But if there is any concealment, or suppression of any fact or thing which ought to be communicated, it amounts to fraud and will vitiate the contract. This doctrine is applicable to all contracts. 1 Vern. 19. 1 P.Wms. 239. Carr v. Carr, 1 P.Wms. 723. And in the very case of dower, if it be fraudulently or partially assigned by the sheriff, a court of equity will give relief. 1 Vern. 218. 1 Atk. 442. In Harvey v. Ashley, 3 Atk. 607, Lord Hardwicke declared that the husband who had entered in a marriage contract with his wife, an infant, was guilty of a fraud in secreting judgments and other debts that were charged upon the estate, and that that was a good ground for relief, not to set aside the whole settlement, but to apply the unsettled estate of the husband, to exonerate the estate settled of the incumbrances which had not been disclosed.
And the case cited by the petitioner’s counsel from 2 Com.Dig. 469, title “Chancery,” 3 E 2, shows that where a personal estate vested in trustees upon trust to pay £100 per annum to a widow in lieu of dower, which proved deficient, though she accepted it for many years, was supplied out of the real estate. This case shows that where something is expected, and considered to be given in lieu of dower, and the consideration fails, the woman shall be otherwise satisfied. And this does not interfere with what was before said, that a woman, an adult, might take any chance or provision, however precarious it may be, acting with her eyes open, in satisfaction of her dower; for the unreasonableness of a contract is no ground to set it aside, if she is of age, perfectly acquainted with her rights, fully aware of what is done, and of all the circumstances which may affect her, and is free from deception.
This is not such a contract as a court of chancery would execute. The husband secreted the debts which both his real and personal estate was bound to satisfy. On September 8,1818, the date of the contract and marriage, two writs of execution were issued at the suit of the President, Directors, and Company of the Commercial Bank of Delaware, by which his goods and personal estate were all subsequently sold without raising a sufficiency to pay his debts.
According to the evidence, there is no proof that Mrs. Farrow had any notice of the debts. Mr. Farrow had a good deal of conversation with other persons about them, but none of the witnesses bring a knowledge of them home to the wife. Nothing *48was said about them when the contract was executed, nor at the time of the marriage, which all happened on the same day. There is a total want of any evidence that she had been informed of his situation. It is evident that she must have expected something as an equivalent for what she abandoned, and therefore, to make the contract valid, justice required that his real situation should have been fully exposed to her. He knew well his embarrassments; and that there could be no reasonable expectation that she would ever receive anything in lieu of her dower. All this should have been explained to her.
The order for assignment of dower must be made. . . .
At this point, Ridgely’s Notebook IV, 75, the account of this case is interrupted ; it is resumed at 89. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487628/ | [For this case, see 1 Del.Ch. 233.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487633/ | By the Chancellor.
Thomas Evans, the former husband of Elizabeth Lofland, one of the petitioners, was never seised of an estate of inheritance in the land mentioned in this petition. *67At the utmost he had only a trust estate under the alienation bond made by William Brittingham Ellis to Eli Collins and assigned so as to declare that eighty acres of the land should be conveyed to him, Evans. He assigned the bond to Nathaniel Mitchell, so that during the whole period, from August 11, 1802, to August 2, 1809, when he assigned the bond to Mitchell, he had not the legal estate in this land. Then and now, the legal estate is in William Brittingham Ellis, or his heirs, if he be dead. At any rate, Thomas Evans had only a trust estate. He was the cestui que me, and his widow cannot be endowed of any part.
Petition dismissed.
Note. A wife can no more be endowed of a trust now (since Statute of Uses, 27 Hen. VIII, c. 10) than at common law and before the Statute she could be endowed of an use, 3 P.Wms. 229, 234, Chaplin v. Chaplin; 2 Sch. & Lef. 387, Darcy v. Blake. See there the reason. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487634/ | The Chancellor.
The first question to be decided is whether the petitioner was bound to prove a seisin in James Gordon, her deceased husband. The petition alleges a seisin, and that was necessary, because it . was incumbent on the petitioner to state, a title to dower; and without the seisin of her husband she could not be entitled, and the respondent might have put the petitioner to prove the fact, by denying the seisin. But if the respondent pleads matter which goes to the whole demand, and, if true, will defeat the claim of the petitioner, then the petitioner need not prove the seisin, for the respondent admits it, by placing his defense upon a separate and distinct matter. In his pleas he first defends himself by debts existing against the husband before the passing the late Act of Assembly [5 Del.Laws 174], and under which he alleges that he now holds the land. Secondly, that there existed a debt due to him from Gordon, the husband, before the passing said Act of Assembly, upon which judgment was recovered and execution sued out, and the land sold to him by the sheriff on that execution process. The petitioner joins issue upon these pleas, and the sole matter of inquiry with the Court is whether the petitioner is barred by Harris’s own debt or by any other debts existing before the passing the late Act of Assembly. The inquiry then does not go to the seisin of the husband, for that fact is not denied; but we are directed by the pleas to another and distinct defense, which, if true, defeats the petitioner as effectually as if the seisin of the husband were denied and found against her. The evidence must be confined to the issue, and the petitioner was not bound to prove the seisin,' for it has not been denied. This objection cannot avail the respondent.
Secondly, the pleas in bar of this claim of dower are, first, that before the passing of the Act respecting devises of land, joint estates and dower, February, 1816, 5 Del.Laws 174, there were divers debts, liens, and incumbrances made, entered into, contracted and created by the husband, and now existing, under which Benton Harris, the respondent, holds and claims said lands and tenements. The second plea is that before the said Act of the General Assembly was passed, there did exist a debt due to him, the said Benton, contracted by the said husband, and for which judgment was obtained, and under which judgment said lands were sold by the sheriff to said Benton by virtue of execution process.
The debts referred to in the first plea are a judgment recovered in the Court of Common Pleas, November 24, 1817, on a -promissory note dated October 5, 1815, for $50, given by Gordon, the husband, to David Paynter; and another judgment re*69covered by James Clifton in the Court of Common Pleas, September 23, 1818, on a single bill for $30, dated March 23, 1815; and a recognizance acknowledged in the Orphans’ Court by Gordon, April 22, 1800, on the acceptance of land for real dower, $1003.20. These are the only debts which are exhibited in their original creation. The recognizance, it is probable from the testimony of Mr. Samuel Paynter, has been satisfied. No claim has been made upon it for now nearly twenty-three years, and Harris did not purchase on any execution issued thereon. If these three debts remain unsatisfied, the sheriff will look to that in the application of the purchase money. Although the note to D. Paynter and the bill to Clifton have been extinguished by the judgments recovered on them since the date of the Act of Assembly, yet I apprehend that they are incumbrances which have a preference to the widow’s dower; for it could not be the intention of the legislature that the means used to enforce their payment should operate so as to make null the providing clause, which declares that liens and incumbrances existing before the passing the Act shall not be affected or destroyed.
The Act was not designed to operate in favor of dower against existing debts, which are incumbrances. And therefore a judgment recovered on any such debt, after the passing the Act, though the defendant may in other respects be extinguished by the judgment, cannot have the effect of giving the widow a preference; for that would be indirectly to defeat a debt or incumbrance, as to the dower, which the legislature say shall not be affected or destroyed. But this question is not before the Court. It has been alluded to in the argument, and the petitioner’s counsel agrees that, if they have not been satisfied, they are still incumbrances, though on two of them judgments have been recovered since the date of the Act. Upon these judgments it does not appear that execution process has been sued out; and a judgment merely is not sufficient to bar a widow’s dower. If it were, a judgment for $100 might defeat a widow’s dower in land worth $10,000.
The argument most relied on by the counsel for the respondent arises under both pleas. They urge that the before mentioned debts, and the debts due to the Farmers’ Bank, to Samuel Paynter and to the respondent himself, were all originally created before the passing the Act of the General Assembly. Gordon owed two debts to the Bank; one in 1812 on promissory notes, for which he gave his bond for $350, September 22,1818; the other on notes before 1816, which were renewed by a note dated May 2, 1820, for $300, upon which judgment was recovered October 9, 1820. So he owed Samuel Paynter on a bond dated May 6, *701813, and on book and other dealings before the year 1816, $1335.83%. When Mr. Paynter took his bond on July 10, 1816, he included in it the debt due on bond, the book account and dealings existing before 1816, and gave up to Gordon the bond of May 6, 1813. Gordon also owed to B. Harris, the respondent, a debt on bond dated June 11, 1816, on which judgment was entered June 12,1816. On March 22,1819, Harris took a new bond for the money due on the judgment and entered satisfaction on the record, the same day, by another judgment bond. These debts to the Bank, to Paynter and to Harris, they say were not extinguished, and that they were liens or incumbrances existing in the year 1816, before the Act of Assembly was passed. It is contended that the subsequent securities did not extinguish these debts; that the debts remained until the money was paid, and however the forms of the securities were altered, the money not being paid, the incumbrances existed still.
The debt of $350 due to thé Bank on notes was extinguished by the bond of September 22, 1818, so that, although the incumbrance existed before the passing the Act, it ceased to exist as an incumbrance by the act of the creditor, and is not a debt created by the husband since the marriage, from which the dower is freed and discharged by the express words and meaning of the Act.
The $300 due to the Bank on notes given before 1816 were included in the note of the 2nd May 1820. But are these notes in existence? They are not shown to the Court, nor proved to be still held by the Bank. The acceptance of a security of equal degree is not an extinguishment of a debt, unless there were an agreement that it should be so. 5 Term 513, Kearslake v. Morgan. The party pleading these original notes should show their existence. The clear presumption is that they were given up or destroyed when the last notes were made. Mr. Tunnell, the cashier, says this was the last note for this debt. If the other notes were retained, and this last note was given merely as a collateral security, then the former notes are existing incumbrances; but all this should be proved by the party who relies on them as a defense. The suit brought and judgment recovered on the note of May, 1820, pretty clearly demonstrate that the last note was relied on as the security for the debt, and that the former are not in existence.
Mr. Paynter gave up to Gordon the bond of May 6,1813, when he took the bond of July 10, 1816; and that act, together with the last bond, extinguished the bond of 1813 and all accounts and dealings before July 10,1816. So as to Harris’ entering satisfaction on the judgment obtained on his bond of June 11, 1816, no *71debts of Harris previous to June, 1816, have been shown. The entry of satisfaction by another judgment bond clearly extinguishes the judgment. The bond had been extinguished by the judgment.
None of these are debts existing before'the passing the Act, and therefore do not bar this claim of dower. The land was sold under Harris’ judgment entered on a bond dated March 20, 1819. And unless the debt upon which the land was sold existed at the time the Act passed, the purchaser could not have a title against the dower.
Judgment for the petitioner. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487635/ | [For this case, see 1 Del.Ch. 244.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487637/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487638/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487639/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487641/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487643/ | The Chancellor.
The lands out of which dower is claimed by the petitioner, Nancy D. Blocksom, were never conveyed to Richard Blocksom, the husband of the petitioner, though he died possessed of them. One parcel was conveyed to John, the son of the husband, and another parcel to Robert, another son. For both of these parcels of land, Richard, the husband, paid the consideration money. These sons were both of age at the time of these conveyances, and Richard, their father, took the profits of the estate. The estate then of Richard, the father, who paid the purchase money, is a resulting trust, though there is no declaration in writing by the sons, or by either of them. The payment by the father was clearly proved in both purchases. The husband here was not seised, at the time of his death, of the legal estate in these lands, and the question is whether the wife is entitled to dower in such estate. This resulting trust is not executed by the Statute of Uses (27 Hen. VIII) but is an equitable estate and still to be executed by a *75court of chancery. Of such an estate the wife is not entitled to dower. The husband was not seised of an estate of inheritance in the lands.
If there had been any proof of fraud, that this was done to defeat the wife of her dower, then the case might have stood differently; but there is no positive proof of fraud, and suspicious circumstances are not sufficient ground for a decree.
The petition must be dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487644/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487645/ | [For this case, see 1 Del.Ch. 256.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487662/ | The Orphans’ Court and Court of Chancery were opened this day at ten o’clock A. M. The usual course is first to proceed *125with the Orphans’ Court, and the two first days are commonly appropriated to the appointment of guardians, making orders for the sale of land by administrators and executors, receiving the returns of sales, making orders for the division of intestate lands, and receiving returns of such orders and divisions, and to such business as ordinarily may be considered as things of course. Very little of such business was done. ' Very few people attended, and the Court was by no means fully employed.
Tuesday, July 19, 1825.
On the first Tuesday of the Court, especially in July, the people have usually attended in great numbers, but this day their attendance has been very thin, and the quantity of business offered to the Court has been very small. This may be owing to two causes: first, the heat of the weather; and secondly and particularly, the low price of grain and other products of the country. The low price of grain makes a scarcity of money, and the people are not disposed to bring business before the Court when they have not money to pay the expenses.
This has been the hottest summer, since about the 10th of June, that I recollect. The thermometer (Fahrenheit’s) has generally been above eighty-four, frequently above ninety, and I have often seen it at ninety-four in the shade, fully exposed to the air.
Indian corn is at about thirty-one cents a bushel, and wheat at eighty-five to ninety, clear of freight. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487647/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487648/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487649/ | [For this case, see 1 Del.Ch. 261.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487650/ | [For this case, see 1 Del.Ch. 271.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487652/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487653/ | The Chancellor.
Solomon Vinson, the father of Solomon Vinson, the husband of the petitioner, being seised of an equitable estate in fee in the lands mentioned in the petition, devised the same to Betty, his wife, during her widowhood, and after the determination of that estate, to the said Solomon, the husband, in fee. Benjamin Vinson, who was seised in fee of the legal estate in the said lands and had made a written contract with the *82testator to sell them to him in fee, and had been paid the consideration money by him, afterward, on the 10th February, 1812, conveyed the same to Solomon, the husband, in fee, reserving to Betty, the widow of the testator, a life estate therein. Thus Benjamin executed the contract he had made with the testator by conveying such estates to the widow and son of the testator as he had devised to them.
Solomon, the husband, the remainderman, occupied the lands under Betty, the widow, the tenant for life, and paid rent to her for part, and otherwise held the other part under her, from the death of the testator until he was about to sell his interest in the same to the respondent, William Parsons, in the year 1816. In August of that year, the said husband, being about to move from Delaware into the State of Ohio, made a public sale or vendue of his personal estate, and proposed to sell these lands, but no purchaser offered for them on account of the outstanding life estate of the widow of the testator. On the same day, she, the widow, afterward agreed verbally with her son, the husband of the petitioner, that her interest in the lands should be sold in consideration of $200 to be paid to her; and then William Parsons agreed to become the purchaser of the whole estate in the lands. No money was paid that day, nor was any writing or deed then signed or executed. Afterward, on the 2nd October of the same year, Solomon Vinson paid his mother, the tenant for life, $200, which she acknowledged by a written receipt of the same day, in the following words, “Received October 2, 1816, of Solomon Vinson the sum of two hundred dollars for my dower in the miner land.” By “the miner land,” the land devised as aforesaid was understood. On the same day the tenant for life and Solomon Vinson, the remainderman, conveyed by deed of bargain and sale the lands to the respondent, William Parsons, in fee.
The question is whether Solomon, the husband of the petitioner, was so seised of the said lands in his lifetime, that the petitioner, the widow, is entitled to dower therein.
I am of opinion that there was no seisin in the husband during the coverture, which entitled his widow to dower. He, as remainderman, was seised of his remainder at the same time that the tenant for life became seised of her life estate; but to entitle a widow to dower, the husband should have the freehold and inheritance in him at the same time. For instance, if a lease is made for life rendering rent, the lessor marries and dies, his wife shall not be endowed of the rent or land; not of the land, because the husband was not seised of the freehold during coverture; and the rent was but a freehold for life. Co.Litt. 32a, Bac. Abr. (Wilson’s Edition), title “Dower,” 364, 365.
*83There was no surrender by the tenant for life, saying nothing about its being by paroi; for the agreement, such as it was, was only to enable the remainderman to contract for the sale of the1 whole estate in the lands; and not that he should be the purchaser of the life estate. And this is proved by the deed of the 2nd October, 1816, by which Elizabeth Vinson the tenant for life, and Solomon Vinson, the remainderman conveyed the lands to William Parsons. Solomon Vinson certainly never had by this transaction any seisin beneficially to his own use, nor any at all.. So far from that, he was using all the means in his power to divest himself of his interest; and this he could not do without the union of his mother in the sale of the lands. The intention of the parties was manifestly to make a sale to another person; and it would be strange to presume or construe an intention in Solomon to purchase, where it was not necessary for the execution of his wishes, and when his whole design was to sell and not to purchase. The payment of the $200 to Elizabeth, the tenant for life, only shows that she got her share of the purchase money; and her receipt is fully explained by the deed, made to William Parsons.
But it has been argued that Parsons, the bargainee, is estopped by the deed made to him, and that he cannot plead that the husband was never seised; and Matthew Taylor’s Case, W. Jones 317, is cited from 2 Bac.Abr. (Wilson’s Edition), title “Dower,” 371 note, and title, “Disseisin,” 333, and Johns.Dig. 174, which refers to 6 Johns., to support this position. The doctrine of estoppel does not apply here, for the deed from Elizabeth Vinson and Solomon Vinson to Parsons and the other papers read in evi- ' dence clearly show that Solomon Vinson had only a remainder in fee, and that he intended to convey his remainder only, and the mother her life estate, so that the plea does not contradict the deed; for Parsons received from Solomon Vinson such estate only as he had, and as it was intended to grant, without any pretense that he was seised of the freehold. It is clear from the whole evidence that he was not seised of the freehold, for all his holding was -under his mother, he paying rent to her and constantly admitting her title.
As to the plantation and the outfields, the petition must be dismissed; but as to the forty-four acres, part of the tract of land called “Addition to Swamp Ridge,” there must be a decree for the petitioner. The widow’s right to dower in these forty-four acres is admitted by the respondent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487654/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487655/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487657/ | The Chancellor.
I shall in the first place advert to the charge as to the question of due diligence. The court states that the action was brought against Edward Gilpin as the assignor of *96the bond and mortgage and that in the assignment he acknowledges he executed it for a valuable consideration paid to him by the Bank and that it was done to release him from his indorsement of the notes. If, therefore, says the court, the consideration for which the notes were given up and the compensation intended to be made by the assignment of the bond and mortgage to the Bank, has failed without any default on the part of the Bank, Edward Gilpin, the7 defendant, is responsible in an action for the amount of such failure. The assignment of a bond or mortgage to another for a valuable consideration creates, continues the court, an obligation or implied undertaking on the part of the assignor to pay, if the amount can not be recovered of the obligee or mortgagee, provided there is no stipulation of the parties to the contrary (whether expressed or implied), and provided too, that the assignee has used due diligence to recover the amount.
It was first settled by a judicial decision in the Supreme Court in Kent County in the year 1796, in the case of Graviston v. Freeman that the assignor was liable in an action for money had and received in the case the money due on the bond could not be recovered from the obligor, upon the principle stated by the court in this cause that the money or compensation paid the assignee to the assignor for the bond assigned was paid without a valuable consideration. And the court then said in substance, as the Court of Common Pleas here has said, that a valuable consideration being paid by the assignee creates an obligation or implied undertaking on the part of the assignor to repay the money or compensation given upon the assignment if the money due or to be paid on the bond cannot be recovered. The Court of Common Pleas added, without any default on the part of the Bank. However, notwithstanding the language of the Court of Common Pleas here cited, it is not to be understood when taking with the rest of the charge, to mean unless the bond be sued or prosecuted speedily, the assignee can not recover the money paid upon the assignment.
Here were two specialties assigned by Edward Gilpin on the 21st July 1817 to the Bank: one a bond and the other a mortgage; both dated September 16, 1816. Both were given by John Smith and Joseph Gilpin to Edward Gilpin for the same consideration; and both were assigned by Edward Gilpin to the Bank. Though they were different instruments they were both given to secure to Edward Gilpin the amount of the notes which he had indorsed for Smith and Gilpin, and they were both assigned to the. Bank by Edward Gilpin to satisfy those notes, and discharge him from his liability as indorsor. The bond and mortgage re*97lieved Smith and Gilpin from their liability to Edward Gilpin as indorsor; and they being assigned to the Bank discharged Edward Gilpin from the obligation created by the indorsements. Both assignments, not one alone, made Edward Gilpin liable in case of the failure of both securities. The Bank had both the bond and mortgage assigned to pay the same amount of money; and any default in the Bank in regard to the bond or mortgage operated to discharge the assignor from his liability on both assignments; for these securities were given and assigned to effect a payment or recovery of the same sum of money, so that if the mortgage failed the bond might be effectual, and a default in either operated alike to discharge Edward Gilpin from each and both assignments. The bond never was put in suit, nor was any legal remedy used by the Bank to enforce the payment or recovery of the debt on the bond. This was such a want of diligence on the part of the Bank as to discharge Edward from all liability created by the assignments.
In the opinion of the Supreme Court, in the case of Ruth’s Administrator v. Snow, it was laid down that the assignor is liable if the obligee fails, provided due diligence has been used in speedily prosecuting legal remedies for the recovery of the money; but due diligence must be used or the assignee can revert to the assignor. This opinion is referred to by Chief Justice Read in the case of Ruth’s Administrator v. Snow as having been the principle upon which the court decided in the case of Graviston v. Freeman that the assignor is liable in case of failure by obligor. The case of Graviston v. Freeman was first tried; afterwards, the case of Ruth’s Administrator v. Snow in 1796, and the Chief Justice, in delivering the opinion of the court in the last mentioned case, stated that the counsel for Kuth’s Administrator had referred to a case in the Court of Common Pleas where it was laid down that when it was proved that the obligor had no property, the same diligence was not necessary. But the court said, before the assignor can be made liable the assignee shall lose no time in proceeding and taking all legal means for the recovery of the money. This will depend on the particular circumstances; as to this case the court will consider the several defenses. And, after adverting to the pleas of discount and limitation, he said:
We now pass to the third point. The first process against Smith was nine months and two days and the fourth term after the assignment, three terms having elapsed. The Court consider themselves in duty bound to say this proceeding has not been with that due diligence as to make the assignor liable. But the plaintiff contends that this lapse of time had no tendency to cause this debt to be lost owing to *98Smith’s insolvent circumstances; and a number of judgments and executions against Smith are exhibited to prove this and to satisfy the Court. 1 Esp.N.P. 55, Bickersdike v. Bollman is cited by plaintiff’s counsel (here the judge reads the case).
This case is not analogous to the case before the Court which is founded on an assignment of a bond made by Smith to Snow under the Act of Assembly. No part of the bond had been paid although all the instalments became due 15th September, 1791. We are to consider the circumstances. Smith was well known to Kuth who had been security for Smith. It is presumed Kuth expected that he would get the money from Smith and it is incumbent on the assignee to take legal steps to recover. Here are nine months elapsed after the assignment before suit brought; the judgments and executions are debts of record. When we consider the situation of these parties, the circumstances, and knowledge Kuth had of Smith, the judgments being of record, and that Kuth took the obligation of Smith, it must have been under the expectation and chance of receiving the money from Smith. After Kuth did sue Smith the suit was not prosecuted with reasonable diligence. The suit was brought to August, 1790. No declaration was filed until June, 1795. We are therefore of opinion that the plaintiff cannot recover in this action.
Notwithstanding this charge the jury found verdict for the plaintiff. The defendant’s counsel moved for a new trial and, after argument, Chief Justice Read delivered the following opinion of the Court:
The Court considers this right of action by the assignor against the assignee has been but recently established; and, considering the Act of Assembly [1 Del.Laws 117] by which specialties are made assignable for encouragement of trade and commerce and that the assignee is enabled thereby to support a suit in his own name; and it being found from experience to be a convenient means of commerce, these paper securities answering the end of money, the Court conceived it was their duty to put an end to that vexed question whether the assignee could sue the assignor. When the judgment was given, the Court heard much argument and good argument at the trial, and, having considered the several arguments, they held that under due regulations the right might be more beneficially used than refused. But well knowing unless proper regulations were established that it Would be more pernicious than beneficial, in the case *99of Graviston v. Freeman the Court said the assignee should use all due diligence to make the assignor liable, and that by giving delay through negligence or favor the inconvenience would be greater than the advantages.
Our Act of Assembly having strong resemblance to the Statute of Anne (making promissory notes negotiable and putting them on the footing of bills of exchange, as nearly as they would admit), it was natural enough to resort to precedents in England on similar transactions, our assignments being on such grounds.
The Court considered that a recent prosecution of the bond was necessary, either to have been begun the next term after the assignment or the second at furthest, when the terms were held four times a year; therefore the Court said last evening that this was a matter of law as to the delay of the suit against Smith; that the delay was such as operated against the right of remedy by the plaintiff against defendant. The Court being strongly impressed with the necessity of putting some control on this subject for the sake of certainty and security to the people at large, thought they should deliver the law to the jury.
The judges in England, speaking of the limitation of time to regulate actions by indorsees against indorsers said, it was highly necessary to control the question; that if it was to be determined by a variety of juries, it would be productive of uncertainty and, of course, inconvenience; and therefore it ought to be considered a rule of law to be binding in all cases which might follow. It is in the power of every man, at least resident in the state, as well to make the attempt to receive his money as afterwards to pursue his action in a reasonable time. The Court will not undertake to say what is a reasonable time; and we are not called on in a way as to make it necessary to now limit the time, neither are we situated as the judge in Pennsylvania, [1] Dali. 252. There the motion was a nonsuit. Hearing the whole evidence in this case and stating our opinion, that too much delay had existed to entitle the plaintiff to his remedy, the Court will have it in their power by granting a new trial to hear the opinions of the other twelve men, and we do not conceive that we will by this be taking the ease from the jury.
So a new trial was ordered. After the death of Chief Justice Read this cause was tried before Justice Johns and his associates and it is believed the jury found a verdict for the plaintiff on *100proof being made by plaintiffs that the delay in suing Smith, the obligor, was occasioned by Snow, the assignor.
I have introduced this case of Kuth’s Administrator at large because in it and Graviston v. Freeman were first laid down by any court in this state within my knowledge any principle in relation to suits by the assignee against the assignor for the recovery of the consideration of the assignment of a specialty on the failure or inability of the obligor to pay the debt mentioned in the specialty assigned. The case of Cummins and Kennard v. Smith in the Supreme Court in the year 1816 was decided on a variety of circumstances; but in that cause a suit was instituted against the obligor and in this particular is unlike this case in which no action was ever commenced by the Bank on this assigned bond against the obligors.
In Deputy v. Bradley, in the Court of Common Pleas for Sussex County, it is said to have been ruled that insolvency at the time of the assignment is a sufficient excuse for not bringing a suit. In Darrow v. Hanver, heard October 24, 1821, at an adjournment of the regular term of this Court, a judgment was rendered by the Court [which] laid down no principle in their decision which could stand as a precedent or which could or should influence their own judgment in any future case, leaving the whole subject as to suits brought by the assignee of a specialty against the assignor, entirely open for this Court to decide uninfluenced by any case which has been heretofore before the Court. It is true in that case, as the record stands, it seems as if the Court had settled the point so as to make it a rule for the government of other cases; but no such thing was intended by the Court, and the reasons of the Court do not appear on the record and the Court designed to leave every question on the assignment of specialties open for a more serious and solemn decision.
Clark v. Young and Company, 1 Cranch 181, is a case which was decided by the laws of Virginia and it'seemed to be a principal question whether the assignor or indorsor of a negotiable promissory note should be answerable to the indorsee unless a suit were brought against the maker, he being a known insolvent. The Chief Justice then said the condition annexed to the receipt of a note cannot be presumed to have required that a suit should be brought against a known insolvent, or that it should be brought against the will of the indorsee. If he chose to dispense with it or took measures to prevent it, nothing can be more unreasonable than that he should be at liberty to avail himself of a circumstance occasioned by his own conduct. It is not intended to say that the person receiving such a note is compellable with*101out special agreement to sue upon it in any state of things. It is not designed to say that he may not on its being protested return it to the indorsor and resort to his original cause of action. It is only designed to say that under the circumstances of this case, nothing can be more clear than that there is no obligation to sue.
To understand this case it should be carefully read. A suit had before been instituted in Fairfax County in Virginia against Clark on his indorsement of this note, upon the trial of which cause the court ruled that the plaintiffs, Young and Company, could not maintain this action against him previous to their having commenced a suit and obtained a judgment against the maker of the note and until his insolvency should appear. The suit in 1 Cranch 181 was an action for goods sold and delivered by Young and Company to Clark. The note had been assigned or indorsed to Young and Company in payment for these goods and it is in reference to this suit the Chief Justice said, “The condition annexed to the receipt of the note cannot be presumed to have required that a suit should be brought against a known insolvent.” And that it is only to say that under the circumstances of this case nothing can be more clear than that there was no obligation to sue. The indorsement of the note, [the Chief Justice said,] was not intended as an .absolute payment for said goods nor received as such by plaintiffs, but merely as a conditional payment; yet the defendant below contended that the receipt of the said note under such circumstances, and the institution of the said suit by Young and Company in Fairfax County against Clark upon his indorsement, made the note so far a payment to the said plaintiff for said goods as to preclude them from maintaining any action against said defendant for said goods until they had taken such measures against Edgar [the drawer] as the laws of Virginia required; and the plaintiffs, Young and Company, having instituted the said suit upon the said note against the defendant and having been decided against said plaintiffs, they were barred from sustaining this action against said defendant. The Chief Justice further remarked that in Fairfax the point decided was that the suit against the indorsor would not lie until a suit had been brought against the drawer; in the suit in Alexandria (the action on the case for goods sold and delivered) the point decided was whether the plaintiffs had lost their remedy on the original contract, by their conduct respecting this notes These were distinct points and the merits of the latter were not involved in decision of the former.
Had the suit here been brought against Edward Gilpin as the indorser of the notes and he had insisted on the assignment of the mortgage and bond as a satisfaction and then if a question *102had arisen whether the plaintiffs could maintain an action against him previous to their having entered a judgment and sued out an execution on the bond, the case in Cranch would have been applicable to such supposed suit, but according to Chief Justice Marshall the points in such a suit as that and this would be distinct and the merits of such supposed suit would not be involved in the decision of this. The suit instituted by Young and Company in Fairfax County on his indorsement of the note goes to show that according to the opinion of the Court this action could not be maintained unless the Bank had commenced a suit or entered a judgment and sued out execution against John Smith and Joseph Gilpin and their insolvency had appeared by such proceedings. And in the case in 1 Cranch 181', the decision in Fairfax County is not questioned, and the suit in the action brought for goods sold and delivered is governed by its own peculiar circumstances, and cannot and ought not to operate upon a distinct point and against the solemn decision of the Supreme Court in the cases of Graviston v. Freeman and Ruth’s Administrator v. Snow. In Doug. 496, the Attorney General in his argument said that it had been frequently ruled by Lord Mansfield at Guildhall that it is not an excuse for not making a demand on a note or bill or for not giving notice of non-payment that the drawer or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends and otherwise. The court, in their decision of the motion for a new trial on the misdirection of the judge, made the rule absolute on another point on which the direction was wrong and said it was needless to go into this.
In De Berdt v. Atkinson, 2 H.Bl. 336, Justice Buffer refers to the decision of Lord Mansfield and says that the insolvency of the drawer does not take away the necessity of notice when value has been given, but [he goes] no farther. This doctrine has been confirmed in Nicholson v. Gouthit, 2 H.Bl. 609, in the case of a known insolvent, when the Chief Justice said and the other Justices agreed, that a known bankruptcy was not equivalent to a demand or notice. The case of Warrington and another v. Furbor and Warrington, 8 East 242, was not a case depending on any general rules in relation to the acceptance of bills of exchange or to the indorsement of promissory notes, but it was a case of a guarantee. The contract required no act to be done by the creditor to make the guarantees liable, and they were in no form nor in any way parties to the bills of exchange, and no notice of the non-payment of it was necessary for they were bound by their previous written engagement. They stood more like securities in a bond without any notice or proceeding what*103ever, for the payment of the money. And the court there distinguished between guarantees and acceptors of a bill.
The proof given in this cause of the insolvency of John Smith and Joseph Gilpin, the obligors in the bond, is not sufficient to charge'Edward Gilpin, the assignor of the bond, with the amount of the money due or payable upon this bond, because it does not appear that any legal means were used by the Bank for the recovery of the money secured to be paid by the bond. In every assignment of a specialty there is an implied undertaking of the assignor that if the money due or secured to be paid cannot be recovered of the obligor, provided there is no stipulation of the parties to the contrary (either express or implied), that the assignor will pay or satisfy the same to the assignee. But then there is a condition in law annexed to such undertaking that the assignee shall use legal means with due diligence for the recovery of the money of the obligor.
And such a condition involves the assignee in no risk or uncertainty, for he has only to use the legal means in due time and the failure will inevitably fall on the assignor. When the specialty is assigned the law gives full power to the assignee, his executors and administrators in his own name or names to sue for and recover the money contained in any specialty so assigned. This authority to recover the money is completely in the hands of the assignee, and the assignor is entirely divested of all right, power or authority over the same, and cannot coerce the payment of the money. It is incumbent upon the assignee to use all the means which the law affords before the assignor can become liable. There is no other mode to recover money contained in a specialty, and if the assignee will not do so he discharges the assignor from his implied undertaking and takes upon himself the risk of recovery or failure. He is not to say in the first instance that the obligor is insolvent, and to recur to the assignor upon his implied undertaking, because the implied condition in every such assignment (unless it be otherwise agreed) requires him to use all legal means with due diligence for the recovery of the money. There is no question here as to due diligence because it does not appear that the payment of the money has ever been enforced by any legal proceedings against the obligors upon this bond.
As the assignor cannot sue or compel the payment of the money; it is not unreasonable in him to insist that the assignee shall use all the means which the law affords to collect it of the obligor before the money or consideration given or paid for the assigned bond shall be taken as money paid without any consideration which has failed. If the performance of a condition has *104failed and become improbable by the act of God, the performance is excused. So if the condition is not performed by the act of the party who creates it. As when the condition of a bond was that A and his wife should in Easter Term next after the date of the bond levy a fine to B. Lord Hobart said that in this case B was bound to sue out a writ of covenant, otherwise the condition was not broken. So here where the Bank did not proceed at law upon the bond, no obligation was created by which Edward Gilpin can be compelled to pay to the Bank the consideration given or paid for the bond and mortgage. For the Bank by not proceeding on the bond broke the condition upon which the bond and mortgage were assigned by Gilpin and taken by them, that is, that the bond and mortgage should be both enforced by suit or by other legal means according to the nature of those instruments and then on failure of the Bank upon such proceedings, that the assignor should be charged with the loss.
The opinion which I have formed arises from the Act of Assembly about assigning specialties [1 Del.Laws 117], and from the nature of the transaction. And in this case, from the testimony of Mr. Hay, as recorded in the bill of exceptions in the negotiation about the assignment of this bond and mortgage, members of the Bank and Edward Gilpin had the question as to the risk of collection of the money mentioned in their specialties, under consideration, and these notes were given up on the liability of Gilpin upon his assignments, — the Bank considering the assignment as equivalent to the indorsement of the notes. But the liability of Gilpin did extend beyond the obligation which the law imposed upon him, that is, that he should make good any deficiency which might appear, the assignees using due diligence in enforcing the collection of the money recoverable upon these specialties by the use of legal means.
If the plaintiffs below meant to rely upon a special agreement1 they were bound to state [it] in their declaration; and upon the general count alone in the declaration they could not prove a special contract.2 This supposed additional engagement of Edward Gilpin forms no excuse and lays no grounds for a recovery in this action, unless it had been charged in the declaration and made part of the case in the pleadings. As I concur in the opinion of the Supreme Court, as delivered by the Chief Justice Read, that before the assignor can be made liable, the assignee shall lose no time in proceeding and taking all legal means for the recovery; and as it does not appear that any proceeding were had *105by the assignee upon the bond, the assignee cannot recover in this action as the case here appears by the record returned to this Court.
And because the court in their charge to the jury said, that the plaintiffs’ counsel allege that at the time of the assignment of the bond and mortgage aforesaid the defendant promised and engaged to make good any deficiency that might arise from the insufficiency of the bond and mortgage; and that the evidence supports this allegation; and then directed, if the jury consider there is such evidence and they believe the evidence that the defendant did make such promise and engagement, this establishes the liability of the defendant and renders an inquiry into the question of due diligence unnecessary. And again directed the jury that if the evidence adduced at the bar satisfies the consciences of the jury that John Smith and Joseph Gilpin were insolvent at the time of the assignment aforesaid and continued so, this insolvency would be a justification of the plaintiffs in not suing out process or taking other measures against them because in that case such proceedings would be fruitless, and the law requires no one to do that which is vain and nugatory. The charge or direction to the jury in these particulars was erroneous. For, as this case appears from the record, nothing less than the use of legal means for the recovery of the money mentioned in the bond from the obligors and the failure thereupon entitles the Bank to recover of Edward Gilpin the consideration paid or given by them for the assignment of the said bond and mortgage. The insolvency of the obligors as this case stands could be established only by proceedings upon the bond and mortgage and, as it does not appear that the assignees took any legal means to enforce the payment of the bond, they have failed and Edward Gilpin is not liable to answer over to them as the assignor.
My remarks apply to this special case, and to the neglect of the assignee in omitting to proceed upon this bond. The court have further said in their charge to the jury, “We consider the question of due diligence to be a question of fact for the consideration and determination of the jury under all the circumstances of the case. If the jury, when they consider all the facts in evidence, if they believe that the plaintiffs have used due diligence, that is diligence which a prudent man attentive to his interests would have used, then the plaintiffs ought to recover.” And throughout the whole charge the question of due diligence is treated as a question of fact for the jury alone to decide.
Here again the charge is erroneous. The question of due diligence is either a question of law, or it is a mixed proposition of *106law and fact. Whether the circumstances alleged to show that due diligence has been used are true and existed, is a matter of fact; but whether, supposing them to be true they amount to due diligence, is a question of law. Due diligence, reasonable time, probable cause, in malicious prosecution and suchlike cases depend upon the same principle.
In Co.Litt. 56b, this case is stated: if a man seised of a messuage in fee and has certain goods in said house and makes his executors, and dies, the executors shall have reasonable time to carry out the goods of the testator. “This reasonable time,” Lord Coke says, “shall be adjudged by the discretion of the justices before whom the cause dependeth; and so it is of reasonable fines, customes and services, upon the true state of the case depending before them: for reasonablenesse in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices. (Bract, li. 2, ca. 52b) Quam longum esse débet non deflnitum in jure, sed pendet ex discretions justitiariorum. And this being said of time, the like may be said of things incertaine, which ought to be reasonable; for nothing that is contrary to reason, is consonant to law.” This doctrine is supported by Cro.Jac. 204, Hobart v. Hammond, 460, 276. Tri. per Pais 12, 231. 22 Vin.Abr. p. 5, 6, 7, 5.3 Com.Dig.,4 title “Temps,” who says, “what shall be reasonable Time, the Justices are to determine.”
In the modern decisions in England the question has been often discussed and the result of the cases is, that due diligence or reasonable time is a question of law, or a question of law and fact; that the facts being ascertained, or there being no dispute about them, reasonable time or due diligence is a question of law; but when matters which are partly law and partly fact are in issue, and the evidence has been laid before the court and jury, the court shall direct the jury how the law is, and if they find contrary to such direction it is a sufficient reason for a new trial. The cases upon this subject are Eaton v. Southby, Willes 131; Bell v. Wardell, Willes 202; Chamberlyn v. Delarive, 2 Wils. 353 (and this case last mentioned in principle is extremely like the present one); Tindal v. Brown, 1 Term 167. Darbishire and another v. Parker, 6 East 3, in which I refer particularly to the opinion of Justice Grose and Justice Lawrence, the latter of whom says,
“As to whether reasonable notice be a question of law or fact, it must be recollected that the facts stated in the re*107port of Tindall v. Brown were afterwards found in a special verdict, in which the jury did not find whether the notice were reasonable or not; on which special verdict this Court gave judgment for the plaintiff, and that judgment was unanimously confirmed in the Exchequer-chamber. But if reasonable notice were a question of fact and not of law, I am at a loss to know how those judgments are to be sustained; for the jury did not find the fact of reasonable notice, but left that as a question of law, to be inferred from all the circumstances. But if it were a question of fact, there ought to have been a venire de nova in that case.”
Then he adverts to the case in Willes, 202, and the practice on trials for crimes. Afterwards arose the case of Parker v. Gordon, 7 East 385, and there, where there was no dispute about the facts in action by the indorser of an inland bill of exchange against the drawer, what was sufficient proof of notice of nonpayment by the drawee was settled by the court as a question of law; and this case occurred after those mentioned in the notes in 6 East.
In the case of Kuth’s Administrator v. Snow, Chief Justice Read, after adverting to the facts given in evidence, said explicitly in the charge to the jury, “We are therefore of the opinion that the plaintiff can not recover in this action.” And after-wards, on the motion for a new trial, [he] said as to the due diligence that it was a matter of fact; as to the delay of the suit against Smith, that the delay was such as operated against the right of remedy by plaintiff against the defendant and the court considered themselves as in duty bound to say that this proceeding has not been with that due diligence as to make the assignor liable.
All the reasoning of the court in Kuth’s Administrator v. Snow is alike conducive to the interest of the assignors and assignees. It establishes with some degree of certainty the law upon the subject, producing uniformity of decision; and does not leave it to fluctuate upon the opinions of various juries. If this is a matter for the determination of juries then all such cases are placed without remedy, however erroneous such decisions may be; for if it belongs entirely to a jury to decide what is due diligence I do not perceive with what propriety a court can set aside a verdict and grant a new trial, unless in very flagrant cases; as no rule could be established by which assignors and assignees could govern themselves upon the assignment of specialties. The assignment of specialties seems to be more particularly than other cases within the province of the *108court, as the prosecution of a suit may appear upon record testimony, and then if there be any excuse for not having done so the Court may judge of the excuse and instruct the jury thereupon. When it is made a question of law and fact according to circumstances, the court and juries continue in their departments; certain rules will be established and become well known and the assignment of specialties will answer the purpose intended by the legislature.
It has been objected against the plaintiff in error in the argument of this case (in this court by the counsel of the defendant in error), that the counsel of Edward Gilpin, the plaintiff in error, treated this case in the Court of Common Pleas in their arguments on the trial of the issues there joined, as a question of fact to be decided by the jury. However the counsel for the defendant in the Court of Common Pleas may have managed the matter in their arguments on the trial of the issues before the jury, it is presumed that they followed the course which the counsel for the plaintiff in that court took and thereby prescribed, in order to repel the arguments of the plaintiffs and to make the best of their case according to the testimony given to the jury. IBut the case here is not to be decided by the manner of conducting the cause by counsel in their argument, for they must meet the case according to circumstances.
If any agreement had been made, if any act had been done, this Court upon its being placed here on the records could have judged upon it. But to decide upon a cause in this Court upon the arguments of counsel in a court where issues are tried under all the variety of testimony there given, and different modes of managing and debating a cause on such occasion (and specially if the opinions of a court can be anticipated), would put insurmountable difficulties upon gentlemen of the bar. When manifest error has happened “to the great injury of the defendant,” as the writ supposes, and, to use technical language, “by the default of the Court,” it may be assigned for error. The law cannot be altered by any arguments of counsel. William., the heir of William, v. Gurgh, [-]5 42, 43, 47. Error may be released; there may be an agreement not to bring a writ of error. But where the directions of the court are deemed to be erroneous, and those directions may have produced the verdict upon which the judgment has been rendered, it is a fit case for the ultimate decision of this Court.
. For these reasons, I have adjudged that the judgment should be reversed.
Manuscript reads “argument.”
Manuscript reads “he could not prove special a contract.”
An unintelligible reference; Viner’s article on “Time” is in Volume 20, pp 266-277.
The manuscript here contains the unintelligible' reference, “334.”
Blank in manuscript. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487658/ | Chief Justice Johns.
I concur in the opinion that the judgment ought to be reversed for errors in the charge of the Court of Common Pleas to the jury. There are two errors in the charge as to which I entertain no doubt.
First, the court decided the question of due diligence by the assignee of the bond to be a question of fact for the jury to decide. This is error for in this case it is a mixed question of law and fact and the court ought to have decided the law and have submitted the facts to the jury. In other words, the court should have declared to the jury whether, supposing insolvency not to be an excuse for the assignee’s not proceeding to use legal means to recover the debt and no execution issuing on the bond, the law was that due diligence had not been used, and that this discharged the assignor from his conditional liability. Or, if the court was of the opinion that insolvency at the time of the assignment or at the time when an execution could have been issued on the bond was any excuse, or rendered it unnecessary for the assignee to proceed on the bond for the purpose of preserving the assignee’s right to resort to the assignor for the recovery of the consideration of the assignment, then the court ought to have decided the law to be so and left the fact only of insolvency to the jury. It was error to submit to the jury to decide the question of law as to due diligence: first, because the court are bound to decide questions of law if necessary to be decided and the questions are made in the case; and secondly, if on account of insolvency the question of due diligence is immaterial, then the court ought so to have decided.
That the question of law as to due diligence should be decided by the court, I consider is established by English authorities and the decisions of the United States Courts. But if there was a doubt, the decisions of the courts in this state ought to settle the question. In Kuth’s Administrator v. Snow, Chief Justice Read decided the question as to what was due diligence: that a suit must be brought and prosecuted diligently or there would be a want of due diligence and the assignor would be discharged. A verdict for the plaintiff was set aside and a new trial granted. It appeared that three terms elapsed before suit against obligor and two years before narratio filed.
The same cause was tried in the Supreme Court, October Term 1799, before Chief Justice Johns and John Clayton. It was a suit on the assignment of a bond of James Smith’s to James Snow by Thomas Kuth. The bond was dated, January 6th, 1788, the assignment was dated 29 October 1792. Thomas Kuth commenced a suit on the bond against Smith on the 1st August 1793; May *11025th, administrator of Kuth made a party; December 5th, 1795, judgment. December 12th, 1795, fieri facias issued, returnable' to May, 1796. Returned, nulla bona. November Term, 1796, Smith petitioned and was discharged as an insolvent, and there was paroi testimony as to the insolvency of Smith. Among other grounds of defense, a want of due diligence was relied on, to which Mr. Bayard, counsel for the plaintiff, answered, admitting that in the case of Graviston v. Freeman in the Supreme Court, a suit by an assignee against assignor, it was established that an assignor was liable. He also admitted as a general rule that the assignee was bound to sue and that delay would release the assignor but contended that this case was an exception to the general rule on two grounds: first, the insolvency of James Smith at the time of the assignment; secondly, that Snow, the defendant, requested Kuth not to sue Smith without his orders, of which there was some slight testimony.
The court did decide the law as to what due diligence was. The general rule as to the liability of the assignor in the case of Graviston v. Freeman was recognized conditionally, that a suit was brought on the bond by the assignee in due time and prosecuted in common form. The court did decide that the suit if necessary must be brought to the next court after the assignment, and the court did decide that if there was an agreement on the part of the assignor that no suit should be commenced without his orders, it would except the case out of the general rule or excuse the not bringing the suit.
Chief Justice Johns was then of opinion, if insolvency was admitted or proved, it would be an exception to the rule; but whether a technical or notorious insolvency was understood, or what kind of proof of insolvency was to be required he does not know that he then considered. In Cummins and Kennard v. Solomon Smith, in the Supreme Court, October Term, 1806, the court did decide what was due diligence as to the time when a suit must be commenced; and the taking a judgment with the stay of execution for four months could not be an objection to due diligence.
In the case of Rumsey and Broom v. Smith, in the Court of Common Pleas at May Term, it appears that the court did submit the question of due diligence to the jury, but whether the point was insisted on and the attention of the court called to it, or under what circumstances the opinion of the court was delivered does not appear. The case of James Dyer v. Benjamin Harrow in the Court of Appeals at an adjourned court, 1821, is relied on to show that the Court of Appeals have decided the question of *111due diligence to be not a question of law, and a proper question for a jury to decide. It is true, from the record it may be inferred that the Court did so decide. But this was not the fact. I delivered the opinion of the Court, which was previously reduced to writing which I am now in possession of. This declared, we do not think it necessary [to decide] the question whether due diligence in this case is a question of law or fact, and ought to have been decided by the court and not left to the jury; because it does not appear from the bill of exceptions that this point was insisted on at the trial below, and if the point was not made, and the attention of the court called to it. We are of the opinion, as the court in the charge left the question to the jury to decide, whether it was a question of law or fact or a mixed one that is not an error for which this Court ought to reverse the judgment. In a case brought before us depending upon the question whether the court ought to decide the question or leave it to the jury to decide, then we shall have no objection to decide it.
This decision shows the Court of Appeals did not decide the question and I consider the decisions of the Supreme Court in the cases before mentioned ought to govern this case, as it respected the question whether due diligence is a question of law and to be decided by the court.
The second error in the charge of the court is that if there was a paroi agreement at the time of the assignment by which E. Gilpin, the defendant, agreed to be answerable for any deficiency in consequence of the inability of the obligor to pay, that on this ground the plaintiff below was entitled to recover. I am of the opinion that on the general count in the declaration, the plaintiff could not recover on this ground. If there was any such special contract it should have been stated in the declaration.
Third point. There is a third point which presents two questions: first, whether insolvency will supersede the necessity of bringing a suit and prosecuting it with due diligence; secondly, if yes, what species of insolvency and what kind of proof is required. As to the question of insolvency in the charge of the court, it is stated that if the evidence satisfies the conscience of the jury that John Smith and Joseph Gilpin were insolvent at the time of the assignment and continued so, this insolvency would be a justification to the plaintiff in not suing out process or taking other means against them. I am of the opinion there is error in this part of the charge. Insolvency in this case is a mixed question of fact and law and the court should have decided what is legal insolvency and left the facts only to the jury; that is, supposing insolvency to be sufficient to entitle the plaintiff to recover without having sued on the bond.
*112In the consideration of the question of insolvency, I have endeavoured to ascertain what the law is, as well from my recollections of the opinions prevalent at the bar, as from the decisions of the Courts of Delaware. At the close of the Revolutionary War and afterwards, the scarcity of specie and want of money occasioned much traffic in bonds and notes. They were bought and sold and used as a substitute for money. Before the adoption of the Constitution of Delaware, the liability of the assignor in case of the inability of the obligor to pay was questioned, and if liable the extent, or whether absolute or conditional, if conditional what were the conditions, — were doubtful questions. It was the general opinion that the assignor was liable and the practice was for the assignee to sue the assignor on failure of obtaining payment from the obligor. Some lawyers doubted whether the action could be maintained on the assignment. The practice of suing on the assignment continued without any decision that I know of, until 1796, when in the case of Graviston v. Freeman in the Supreme Court in Kent County, there was a decision; before which, the practice was for the assignee to sue the obligor and I believe the general opinion was that to make the assignor liable, it was considered to be necessary that the suit should be instituted to the next court after the assignment, but I do not believe that the universality of the principle was established so as to require the suit to be necessary in the case of a legal or absolute insolvency.
In Graviston v. Freeman, the liability of the assignor in an action for money had and received in case the money due on bond could not be recovered from the obligor, was established on the principle that the money presumed to be paid to the assignor for the assignment was a valuable consideration which raises an implied obligation on the part of the assignee to repay it in case of failure by the obligor. It might be inferred that the court in this case intend6 recovery, if a suit was instituted and by such the debt could be recovered; but it is not so expressed. In Kuth’s Administrator v. Snow, 1798, Mr. Ridgely, the counsel for the defendant did not consider the law as so settled, for insolvency was insisted on as one of t,he grounds of defense, and two cases were referred to (it is supposed, in the Common Pleas); one in Kent when it was admitted both by counsel and the court, that if the obligor was insolvent at the time of the assignment the assignor was liable. The second in New Castle, that even a suit was not necessary. But Chief Justice Read said that in Graviston v. Freeman when the right of *113action by an assignee was established the court deemed it important and so expressed themselves, that such right could only attach in such cases in which the assignee had or should use reasonable and due diligence to obtain the money from the obligor, the ultimate and necessary step being that of a compulsory suit at law.
In the same case, 1799 (see ante), as a general rule that the assignee must sue was admitted by counsel, but contended that insolvency is an exception to the general rule, and the court divided.
In the case of Cummins and Kennard v. Smith, decided in 1806 (see ante), Messrs. Clayton and Hall, pro plaintiff, Mr. Fisher for defendant, the ground of insolvency was relied on to entitle the plaintiff to recover without prosecuting a suit with due diligence. There was a judgment with stay of execution four months, and no execution issued until nine months had elapsed and five months after the stay had expired. Mr. Clayton contended that insolvency at the time of the assignment was sufficient. Mr. Hall, insolvency at the time of the judgment, and that as soon as the obligor became insolvent the liability of the assignor was fixed and that the assignee was not bound further to proceed in the suit against the obligor. The defendant’s counsel insisted there was a want of due diligence because a copias ad satisfaciendum was not issued; and I remark there was no sale of the land. The case of Rumsey and Broom v. Lofland, in 1804, was cited in which it was decided by the Common Pleas that if the obligor was insolvent the assignee was not bound to sue the obligor. In this case against Smith, the court (Johns, C. J., and Cooper, J.,) recognized the general rule as to the right of the assignee to maintain a suit against the assignor on the ground that the assignment (if it was not otherwise agreed) was a conditional warranty to repay the consideration money, provided due diligence was used by the assignee and the debt could not be obtained from the obligor. It was also decided that the insolvency of the obligor at the time of the assignment would be sufficient to make the assignor liable in this case, and also that insolvency at the time when the plaintiff could have taken out execution would be sufficient to make the assignor liable and entitle the plaintiffs to recover.
The case of [Deputy] v. Bradley was cited by the respondents’ counsel, decided by Common Pleas in 1817, in which it was alleged and not denied that, that court decided that insolvency was sufficient to make the assignor liable. If decisions in our own courts are to decide what the law is as to the question of insolvency, in both the Court of Common Pleas and the Supreme *114Court, the liability of the assignor on the ground of insolvency at the time of the assignment was settled; for all the decisions affirm the principle except the case of Kuth’s Administrator v. Snow, in 1798, which is at variance with and contradictory to all the other decisions; in that case the question as to insolvency was a point in the cause and the court did decide that a suit at law by the assignee against the obligor was necessary to make the assignor liable.
I confess that the great respect I have for the opinion of Chief Justice Read, the reason for requiring a suit to be instituted (which I understand to be the using legal means), and the inconvenience that might result from holding the assignor liable after he parted with the power of suing'without requiring the assignee to sue, and the general practice of commencing suits by the assignees against the obligors, — afford ground to doubt. But when it is considered that the law does not require the assignee to do an act positively useless, as to sue an insolvent, and that although it may be a sound principle and good as a general rule, that the conditional liability of the assignor means that he is liable if the assignee sues the obligor, prosecutes the suit with due diligence, and cannot recover; yet, like all general rules, it is liable to some exceptions. And the performance of conditions in some cases the law does dispense with or excuse: as, if the performance be prevented by the act of God; and so, if prevented by the act of the party for whose benefit the condition is to be performed as in the case of Kuth’s Administrator v. Snow, where the assignor requested the assignee not to sue the obligor without his orders; and so also, if the obligor has no property, it seems to be unreasonable that the assignee should be bound to sue an insolvent when no effect can be produced.
The practice of suing by the assignee was a safe one, for, if the debt was not recovered, it furnished him with evidence to recover of the assignor. But, if insolvency could be proved and the assignee will take the burden of the proof, why should he not be permitted to recover on such evidence. When a technical insolvency may be proved where no suit has been instituted by the assignee, as when the obligor is discharged under an insolvent or bankrupt law or has made an assignment of all his property for the benefit of his creditors; and again, suppose there to be judgment and executions against the obligor at the suit of a creditor not the assignee, all the property is sold and not sufficient to pay the executions. This would be clear and certain proof of insolvency, and it would be unreasonable in such cases to compel the assignee to sue the obligor, whereby *115he must subject himself to expense, trouble and delay, and recover nothing before he could commence a suit against the assignor. It is therefore my opinion that a case of a clear and absolute insolvency at the time of the assignment should be considered an exception to the general rule and that in such cases the assignee may maintain an action against the assignor. But, for reasons assigned (see ante), I consider the charge of the court as to this subject erroneous.
But, as I know three of the four judges, the Chancellor, Judges Davis and Rowland, sitting judges in this case have concurred in a different opinion, the law must now be considered to be settled; and that, if the assignee neglects to commence and prosecute a suit against the obligors, this will discharge the assignor from any liability to repay the assignee the amount of the bond even if the obligor was insolvent at the time of the assignment; which is conclusive as to the present cause for no such suit was instituted in the present case and consequently the plaintiff had no right of action.
And the judgment of Common Pleas must be erroneous and ought to be reversed.
Manuscript reads “intend by recovery.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487660/ | EZEKIEL WILLIAM CLOWES, an Infant under the age of twenty-one years, by GREENSBERRY BLADES and PRUDA, his Wife, Guardian of the said E. W. Clowes, v. THOMAS L. JUDGE.May, 1825.[For this case, see 1 Del.Ch. 295.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487661/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487663/ | April, 1825.[For this case, see 1 Del.Ch. 284.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487666/ | August, 1825. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487667/ | August, 1825.[For this case, see 1 Del.Ch. 298.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487668/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487669/ | Copy of a letter to George Read, Jr., Esq.:Sir,Mr. Paynter committed a mistake, I apprehend, in sending to me the bill of Joseph Robinson and James Robinson against John Stidham and others. I presume he imagined that the complainants desired that a writ of injunction should be ordered, but as there is no prayer for such writ, no order for it can be made. There is a prayer that a perpetual injunction should be decreed, but that is a different matter from a writ, and is to be made on the merits, after hearing the parties. This I need not repeat to you, but lest there should be any doubt, see Mitf.Pl. 46, Coop.Eq.PL 13, Amb. 70. As well as I remember, in all injunction bills in this state, in which the complainants desired such a writ, *160there has been a prayer for it; and so it is in Mr. Thomas’s bill against McCallmont and Evans.I wish to call your attention to the interrogatory part of the bill. It seems to me that you have not been as full in your interrogatories as you might have been, and perhaps as you ought to have been, if you are anxious to have a complete answer to the stating part of the bill. I have constantly resisted a relaxation in this matter, because I am persuaded that answers would seldom be sufficient, and that exceptions would be endless. A bill drawn by Mr. Rodney without interrogatories escaped my notice; and on objections made by me to a bill of Mr. McLane, he mentioned that case, but I was so convinced of the inconvenience of such a practice that I insisted on the question of interrogatories.If possible, I will return Mr. Thomas’s bill by the mail which carries this, at any rate by Tuesday’s mail. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487671/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487672/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487673/ | The Chancellor
delivered the opinion of the Court the 17th June. In the record returned, it is certified that the jury, “being solemnly sworn and affirmed to try the issues,” found for the defendant. In the allegation of diminution ft is said that the record transmitted to this Court is diminished in not certifying that the jurors were solemnly sworn and affirmed “to try the issues and a true verdict give according to the evidence.” And the defendant in error prays that a wilt of certiorari may be directed to . the Justices of the Supreme Court to certify that “the said jurors were solemnly sworn and affirmed to try the issues and a true verdict give according to the evidence”; and also more fully to certify the truth of the premises.
' At the August Term of this Court, in the year 1825, there was a quorum of this Court sitting in this cause to proceed to business and hear the case, and to render a judgment. The assignment of errors was filed on the first day of August in that year, which was the first day of the term; and at that term the diminution of the record might have been, and perhaps should have been alleged. The plaintiff might have had a rule to plead by the first rule day in vacation, and if such rule had been obtained, the defendant must have pleaded according to the rule; and after the defendant had pleaded it would have been too late to allege diminution. But no such rule was obtained; no plea has been put into the assignment of errors, and now the defendant is in time to allege diminution. Though we say it would have been too late to allege diminution after a plea of in nullo est erratum, we do not mean to say that under no circumstances could a writ of certiorari have been awarded. After in nullo est erratum pleaded, neither plaintiff nor defendant can allege diminution, for by the plea and the joinder the record is admitted to be perfect; but the Court, to inform their conscience, might award a certiorari. In Meredith v. Davis, 1 Salk. 270, the court awarded a certiorari for their own satisfaction, there being an affidavit that the record was right below.
The prayer of the defendant is that a certiorari should be directed to the Justices of the Supreme Court to certify that “the jurors were sworn to try the issues and a true verdict give according to the evidence.” The record transmitted here contains the whole oath of the jurors as it is certified by the Justices of the Supreme Court, and according to the admission of the counsel of the defendant in error in his argument here of this cause. It is frankly admitted by him that the record, as it exists below, *169has come up to this Court correctly; and that his object is to obtain an amendment below, and then to have such amended record certified to this Court. If this were a case in which an amendment could be made below, there would probably be no objection to awarding a certiorari. But as the oath taken by the jury cannot be added to, nor diminished, and as it is substance and not form, the record cannot, in this particular, be amended. A different oath from that taken by the jurors cannot be inserted in the record. In the case of Godwin and Adams v. the Lessee of Jesse Green, at August, 1816, the judgment was reversed by the unanimous opinion of this Court, for a similar fault; and that judgment has been followed by the cases of Lyman v. Latimer, and Jones v. Dehorty’s Lessee.
Unless the jury is properly sworn they cannot try the issues, and a trial under such circumstances is no trial, and consequently no judgment can be rendered on a verdict had in such a way; or at least no judgment for a recovery, or that the defendant shall go without day. The oath may be said to be the commission, or authority for the jury to hear the cause and render a verdict, and without it the trial is coram non judice. The administering the oath improperly is not a clerical mistake; it is the substance by which only a verdict can be obtained upon which a judgment can be grounded. In the English books, in the investigation of this subject, we discover several reversals of judgments for such a cause, and if it were a clerical mistake, it is strange, considering the many statutes there for amendments, that a single reversal of a judgment should have been there made. In the reversal of judgments, for the same cause, by this court, it has been considered to be a substantial defect and such as to vitiate the verdict and judgment which followed. The case of Tully v. Sparks, 2 Ld.Raym. 1570, which was principally relied on by Mr. Wales, was deemed to be an error, or misprision of the clerk; and the court considered it amendable by the Statute 16 & 17 Car. II, c. 8; for, although it was not expressly included in that Statute, yet it was held to be of the like nature with the case provided for by that Statute, and upon that principle the amendment was made. It was by virtue of that Statute, and without the Statute the amendment could not have been made. The same case is also reported in Str. 867, and thus also it clearly appears that the Statute governed the court in making the amendment.
Certiorari refused. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487674/ | Chancellor Ridgely
delivered the opinion of himself, of Chief Justice Booth, and of Cooper and Stout, Justices of the Court of Common Pleas:
This is an action for the use and occupation of a farm. Patterson and Parsons, the defendants in error and plaintiffs below, purchased on the 2nd July, 1821, at a sale made by the Sheriff of Kent, in virtue of a judgment and writ of execution sued out against William Kennedy, his life estate in the said farm situate in said county. At the time of the purchase and before, John Bailey, the plaintiff in error and defendant below, was tenant *171for years of the said farm under a demise made by said Kennedy. The judgment upon which the land was sold was antecedent to the demise. Kennedy and Bailey, at the time of the demise, made an express contract. The holding was from March 25. The rent was payable in kind. Kennedy was indebted to Bailey [for] fifteen or sixteen hundred dollars, and he directed Bailey to apply the rents as they should accrue, as credits to said debt. This suit was brought before the sheriff had made a conveyance of the land to Patterson and Parsons.
The court, in the charge to the jury, told them that the production of a sheriff’s deed was not necessary in this action; that the question as to the legal title was not material; that assumpsit for use and occupation may be maintained on a contract, express or implied; and if the jury should be of opinion that the defendant occupied with the permission of Patterson and Parsons, the suit was maintainable; and that it was for the jury to decide whether the tenant held the land with their permission. The principal question, the court said, was whether Bailey held the land with the permission of Patterson and Parsons, or whether his holding was adverse and tortious. The court considered an adverse and tortious holding to be a holding in opposition to their title, and against their will and consent. That if the holding was not under the plaintiffs (the defendants in error) they could not recover. As to the contract about the application of the rents to the credit of the debt due from Kennedy to Bailey, the court said that if the jury should be of opinion that there was such a contract, and if it was made before the judgment was rendered on which the land was sold, that then the plaintiffs (defendants in error) could not recover, but if it was made after the judgment was rendered, the judgment being prior, the contract would present no obstacle to the recovery.
This was the charge to the jury, and upon this charge the writ of error is grounded. The amount of it is that if the jury should find that Bailey held the land by permission of Patterson and Parsons, the action for use and occupation would lie; but if his possession was adverse and tortious, and not under them, the action could not be maintained. And further that a deed from the sheriff conveying the estate of Kennedy in the land to them was not necessary, or in other words, that Bailey should not be allowed to question their title, if his holding was by their permission.
The whole case turned on the contract express or implied between the parties. The jury found for the plaintiff below, and thereby established the fact that the defendants below did hold by the permission of Patterson and Parsons; and if that were *172the fact, and so we must take it after the verdict, the action would well lie, and the defendant below ought not to have been allowed to question the title, or to say that the plaintiff below had no title because the sheriff had not made a conveyance. The court put the case in the alternative. If the holding was with the permission of the plaintiffs below, the plaintiff is right; if the holding is adverse or tortious, the defendant is right. The jury found the fact in favor of the plaintiffs below; and that being so found, the deed was immaterial.
Further, the judgment being antecedent to the special contract made by Kennedy and Bailey about the application of the rents, the title of plaintiffs under the purchaser superseded or overruled that contract, and it ceased to have any operation when the judgment took effect, that is, on the sale made under the judgment.
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487675/ | This day, Wednesday, the 21st June, 1826, Chancellor Ridgely, delivered the opinion of himself, Booth, Chief Justice, and Cooper and Stout, Justices of the Court of Common Pleas:
This was an action of debt brought in the Supreme Court in Sussex County at October Term, 1823, by Jacobs and his wife, on a guardian bond dated 14th February, 1804, made by James Houston, guardian, and Nathan Young, now deceased, his surety, to the plaintiff Eliza, while sole, then an infant. The time of the marriage of Jacobs and his wife does not appear. The defendant pleaded the Act of Limitations (1 Del.Laws 424, s. 14); that is, that the action had not been commenced within six years after the passing the said bond. To this plea the plaintiffs replied that the action had been brought within three years after the said Eliza came to full age. To this replication the defendant demurred generally. No other saving of the Act of Limitations was pleaded than the infancy of the plaintiff Eliza, and by the demurrer it is admitted that the suit was commenced within three years after she arrived to twenty-one years of age.
The question now is whether the plaintiffs were in time in suing within three years after the said Eliza came to full age. No disability on account of coverture is pleaded; and had the defendant supposed that the marriage of the said Eliza would have operated so as to afford a speedier removal of the disability of infancy, and to give effect to the Act of Limitations from the date of the marriage, or that it would in any manner have been a bar to the recovery, the defendant should have put that fact on the record. And then an issue might have been taken on it, or the plaintiff might have demurred to it, and thus it would have been brought distinctly into view as the ground upon which the defendant relied against a recovery on this bond. As the case now stands it does not appear whether this marriage took place at the age of fifteen, twenty, twenty-one or twenty-two of the said Eliza. If it had happened at her age of fifteen, or at any period so that six years had elapsed before the suit was brought, there would have been some fact upon which the defendant might have built his argument that the lapse of six years from the marriage would bar the suit of the husband and wife during his lifetime. But now the case rests on the naked proposition *174that the husband and wife cannot sue the bond within three years after she arrives to full age.
In support of this demurrer the defendant in error relies upon Bhankland’s Casé1 decided on the unanimous opinion of this Court at an adjournment of the Court on the 21st October, 1823, on great deliberation, as it had been decided by the unanimous opinion of the Court of Common Pleas. The question in that case was whether the saving of the right of a feme covert in the second section of “An Act to compel executors to give security for the faithful discharge of the duty reposed in them by their testators, and for other purposes,” 2 Del.Laws 888, applied to the husband and wife, during the lives of such husband and wife, upon a suit brought by them on a testamentary bond made after the marriage. It was then adjudged that the right of the husband and wife to bring a suit after six years from the passing of the bond was not saved, for that he was not under any disabilities in the Statute; but that it was saved to the wife alone, and not to her until after the disability was removed.
That decision, supposing that it militated against the plaintiffs in this cause, has been more than questioned in the argument on the part of the plaintiffs; and, to impugn its authority, several cases have been read as being in direct opposition to it. I shall notice the most prominent, first remarking, as is noted in that case, that there then was no plea of infancy, and that there was no question on that head, and that it never came into discussion or consideration. Indeed, the court expressly declared that infancy at the time of marriage and when the bond was given would have given rise to another question as to the effect Of the saving clause of the Act of Assembly. Hence it is evident that the court, in deciding the Case of Shankland, confined itself simply to the question of coverture.
In Belch v. Harvey, cited from Sugd.Vend., Appendix 19, the chief question was what length of time would bar an equity of redemption. Thirteen years had passed between the death of the husband and the bill filed for redemption. The person claiming the equity of redemption attempted to prove that she, the plaintiff, was an infant at the time of her marriage, and that the marriage continued many years, both which, taken together, she or her counsel supposed would excuse the non-redemption for many years. Lord Chancellor Talbot said if she was of full age at the time of her marriage the time would run against her notwithstanding the subsequent marriage. By the Statute, 21 Jac. I, c. 16, persons having any right or title of entry must enter within *175twenty years after titles accrued; but the title of infants, femes coverts etc. are saved so [long] as they commence their suits within ten years after imperfection removed. She had not sued within ten years after she became discovert. The Chancellor said that it was very doubtful with him whether the plaintiff was an infant at the time of her mariarge, but taking it that she was an infant, as the court has not in general thought proper to exceed twenty years, where there was no disability, in imitation of the first clauses of the Statute, so he was of opinion that after the disability removed, the time fixed for prosecuting in the proviso, which is ten years, should also be observed; for the proviso containing an exception of several cases out of the purview of the Statute, if the parties at law should avail themselves by the proviso, they must take it under such restrictions as the legislature has annexed to it, that is to say, within ten years after the impediment ceases. The persons who are the subject of the proviso are not disabled from suing; they are only excused from the necessity of doing it during the continuance of the legal disability. Therefore, when that difficulty is removed, the time allowed after such impediment removed for their further proceedings should be shortened. The import of that case is that after the impediment is removed or the disability ceases, whether it arises from infancy or coverture, or from both, the person suing should be restricted to ten years after the disability is removed; for this good reason, that if the party would avail herself of the exception in the Statute she must take it under such restrictions as the legislature annexed to it, and that is to sue within ten years after the impediment is removed.
But that case is not like Shankland’s nor the present; for in the former the only question was whether the suit brought by the husband and wife during the coverture was not barred by the lapse of six years; and the court said that it was, for the husband was not within the saving clause of the Act of Assembly; that he had been under no disability and might have sued at any time, and could not claim the disability of the wife to excuse him; but that after the disability of the wife was removed, she might sue within three years. And it is not like this case, for there more than the ten years had expired after the legal disability had been removed, and here the suit is brought within the three years saved to the infant; there it was after the expiration of the time saved to the infant.
George and Wife, 6 East 80, was cited as being contrary to Shankland’s Case and as being proper to be relied on in the decision of the question now depending. That case was thus. The ancestor died seised, leaving a son and daughter, both infants; *176and on the death of the ancestor a stranger entered, and the son soon after went to sea and was supposed to have died abroad, within age. It was held that the daughter was not entitled to twenty years to make her entry after the death of her brother, but only to ten years, more than twenty having, in the whole, elapsed since the death of the person last seised. That case depended on the proper construction of the Statute, 21 Jac. I, c. 16, s. 1, which enacts that no person shall make any entry into lands but within twenty years next after their right or title which shall first descend or accrue to the same. And then there is a saving, that if any person or persons entitled to such writ, or that shall have such right or title of entry, shall be, at the time of said right or title, first descended, accrued or fallen, within the age of twenty-one, that then such person or persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action or make his entry as he might have done before the Act; so as such person and persons, or his or their heir and heirs, shall, within ten years next after his and their full age etc. or death, take benefit of and sue forth the same, and at no time after the said ten years.
That case turns on this point, that the Statute gave ten years after the death of the party dying under disability, and that more than ten years had expired after the death of the brother before the ejectment was brought. Lord Ellenborough said that the word “death” must mean and refer to the death of the person to whom the right first accrued, and whose heir the claimant is; and the Statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have ten years from the death of his ancestor to whom the right first accrued during any period of disability and who died under such disability (notwithstanding the twenty years from the first accruing of the title of the ancestor should have before expired). Now, as the ten years had expired since the death of the brother, and as the word “death” meant and referred to the death of the person to whom the right first accrued, that is the brother, the period saved in the Statute had elapsed, and the sister, who was heir of the brother, could not sustain her action.
This was a construction upon the special words of the Statute; but it has no relation in fact or principle to Shankland’s Case, or to this, both of which in their circumstances, and in the provisions of the Statutes which regulate them, are dissimilar with each other, and with this case in East; and yet that case is produced to show the mistakes of the court in the Case of Shank-land, and that here the replication is good and available. Here *177are no successive disabilities, neither were there in Shankland’s Case, and that principle in East can have no application.
The case of Demarest and Wife against Wynkoop and others is another case of successive disabilities, 3 Johns.Ch. 129. There Chancellor Kent decided that this disability which entitles the party to the benefit of the proviso must be existing at the time the right first accrues; so that, if, during the saving allowed to an infant, coverture arises, the time continues to run notwithstanding such second disability; that successive or cumulative disabilities are not within the policy or sound construction of the Statute. In that case Hannah, the wife, married at nineteen. She was of age in 1802, and their bill was filed in 1815, so that ten years had expired since her disability of infancy had ceased. The disability of coverture was relied on, but that was rejected both as to the husband and wife. And in truth that case has no bearing on Shankland’s or on this, for the court went on the principle to decide against successive disabilities. The husband and wife, though, relied on the coverture, and not upon infancy, but it did not avail them. If it were possible to wrest the case from its proper meaning, it would support the decision in Shankland’s Case.
The case of Eagen and Seraphine, his Wife, 4 Mass. 182, was cited by plaintiff’s counsel. That was a writ of error brought to reverse a judgment of confiscation, rendered in 1780, against Michael Martin and Tilpher, his wife, of lands held by Martin and his wife, in her right. This writ was sued out in July, 1806, by Eagen and Seraphine, his wife, which said Seraphine was the daughter of the said Martin and Tilpher, his wife. The Statute limited such writs of error to twenty years next after the rendition of judgment. There was a saving in the Statute of five years, etc. The defendants pleaded the limitation of twenty years. The defendants replied that the title of said Seraphine to said writ of error first accrued in January, 1783; that at that time she was an infant of the age of fifteen years and no more; and that afterwards, to wit, on the 19th June, 1785, the said Seraphine being still an infant, viz of the age of eighteen years and no more, she was married to the said Eagen, and has been ever since covert of the said Eagen. To this replication the defendants rejoined, agreeing to the infancy of the wife at the time her title accrued, and also to her marriage during her infancy, said that after her title to the writ of error accrued and after she became of full age, five years had elapsed before suing out the said writ of error. To this rejoinder the plaintiffs demurred generally, and the defendants joined in demurrer.
*178Chief Justice Parsons delivered the opinion of the court He said that it was very clear that the infancy of the wife, at the time her title accrued, could not bring her within the exception of the Statute, because the writ was not sued out within five years after her coming of age. And, “As the plaintiffs are barred by the enacting clause unless they are within the proviso, the effect of their replication must depend upon the construction of the proviso. And we are all satisfied that the disability, to be sufficient to bring the plaintiffs within, must be existing at the time their right first accrued.” And he said, “In the present case the husband might have sued his writ within the twenty years. He was not under any disability, and ought to have prosecuted the rights of his wife.” And he reasoned further against this second, the successive disability from coverture. But he strongly intimated, as above, that the suit could not be maintained because the husband did not prosecute the wife’s right within the twenty years, and so far evidently was the same kind of reasoning as this court in Shankland’s Case. The coverture was the only matter under consideration, and that as the husband was under no disability he ought to have prosecuted the writ within twenty years.
The case under consideration is unlike ShanJclancl’s in every particular. It does not appear when Jacobs and his wife married; certainly though after the bond was made, but whether two years or six years before the suit was brought is not known. The suit was brought before the three years, the time saved to infants, had expired, and consequently within the proper period. Coverture is not made a part of the case; and as no other question than infancy is made by the pleading, the plaintiffs are not barred, the suit being brought within three years after the wife arrived to full age. The case comes not only within the words, but within the intent and meaning of the Act of Assembly [1 Del.Laws 424, s. 14]. In this decision we do not contradict, nor in the least [oppose] ShanTcland’s Case, and we do not mean to do so, for that is supported by adjudged cases, similar in principle, by fair reasoning, and by the meaning and intention of the Act of Assembly, and by the words.
The Act of Assembly never began to run against this infant, according to the record, until her age of twenty-one years. It does not appear when the guardianship ceased, nor that she had a right to demand this money of her guardian, or of his representative, until her age of twenty-one years; and all we know is that her title accrued at her age of twenty-one, and that the suit was brought within the three years after.
Judgment unanimously reversed.
[Note.] See The State of Delaware v. William Shankland (Shankland’s Case), Ridgely’s Notebook III, 333.
Ridgely’s Notebook III, 333. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487676/ | *181The following is the copy of a letter written to George Read, Jr., Esq., counsel for the complainant:Sir,The enclosed affidavit and petition I found at my house on Monday night, on my return from the court in Sussex County, where I had been since the 5th instant; and I now forward the order as early as it was practicable after getting home. I suppose that the defendant should have liberty to name a commissioner, and therefore notice of the order is required; but if the parties agree upon one, then one will be sufficient.According to my meaning, two periods of ten consecutive days will not be necessary; but notice may be given of the order, and the interrogatories may be filed and notice thereof given on the same day, or on any day later, and then the commission be taken out. So that if the defendant have ten days notice of the order, and ten days notice of the filing the interrogatories, it will be sufficient, though they be all the same ten days, or at any distance apart, provided that ten days notice be given of each.Depositions taken de bene esse are not, you know, to be used, if the witnesses can be examined in chief, and therefore are not to be published unless the witnesses die or go out of the power of the court; and that our rule for publication may not improperly act in the case, I have required a special order for publication. Be pleased to show this letter to Reybold’s counsel. I am, Sir, very respectfully, etc.[(Signed) Nicholas Ridgely, Chancellor.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487677/ | October, 1826.[For this case, see 1 Del.Ch. 310.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487678/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487679/ | [For this case, see 1 Del.Ch. 320.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487680/ | Here the Chancellor recommended to the parties that the •appeal should be dismissed by consent, without prejudice; which was agreed to, and the following order or decree was thereupon made:
This appeal coming on to be heard the 10th and 11th days of July, 1827, and the said accounts and exceptions being read, and the last will and testament of the said Arthur Murphy being read, and a motion made by the counsel of the respondents for the dismissal of the said appeal, on account of the want of interest in the appellants in said account, and the said motion being argued by the counsel of the said parties on both sides, it [is] ordered, adjudged and decreed by the Court, with the consent of the counsel on both sides, that the said appeal be dismissed without prejudice to the said appellants, or to either of them, in any suit that they, the said appellants, or either of them, may hereafter prosecute in any court of equity or of law, on account of any bequest, legacy, claim, devise or gift under the last will and testament of said Arthur Murphy, and without prejudice to them, said appellants, or to either of them, in any future exceptions which they or either of them may *188take or file to any future or other account of the said Ellen Murphy, her executors or administrators.
And it is ordered by the Court that the costs of this appeal, as between the parties to said appeal, await the final decision of any suit either in equity or law which the said appellants or either of them may bring against the said Ellen Murphy, her executors or administrators, touching any such bequest, legacy, claim, devise or gift as aforesaid, but that the said parties pay their own proper costs to the clerk of this court, to the witnesses and others who may have costs against them, or either of them, without prejudice to any question of costs as between the parties to this appeal, in sixty days, or that an attachment issue.
The following is a copy of Arthur Murphy’s will:
I, Arthur Murphy of the Borough of Wilmington in the County of New Castle and State of Delaware, being sick and weak in body, but of a sound mind and memory, blessed be Almighty God for all his mercies, do make and publish this my last will and testament in manner and form following, that is to say:
First, it is my mind and will that all my just debts and funeral expenses shall be paid as soon as convenient after miy decease by my executors hereinafter mentioned.
Item. I give and bequeath to my beloved wife, Ellen Murphy after payment of debts and expenses as aforesaid all the residue of my estate, real and personal during her natural life.
Item. I give and bequeath to my two nephews, James Bryson and John (Bryson, one hundred dollars each, to be paid to them after the decease of my said beloved wife and when they severally arrive to the age of twenty-one years, and also I give and bequeath a sufficient sum to bring them up and school them until they arrive at fifteen years of age.
Item. I give and bequeath to the Trustees of Saint Peter’s Church in the Borough of Wilmington the sum of one hundred dollars to be paid to them within one year after the decease of my said beloved wife for the use of the said Church.
Item. My mind and will further is that at the decease of my said beloved wife, I give devise and bequeath one-half of my estate then remaining unto her heirs to hold to them their heirs and assigns forever. And the other half I give *189devise and bequeath unto my heirs agreeably to law to hold to them their heirs and assigns forever.
Item. I give and bequeath to the children of my brother John Murphy the sum of one hundred dollars each to be paid to them after the decease of my said beloved wife when they severally arrive to the age of tWenty-one years.
Lastly, I do hereby nominate, constitute and appoint my said beloved wife executrix and my friend Peter Johnson executor of this my last will and testament hereby revoking annulling and making void all other will or wills by me at any time heretofore made, and declare this and no other to be my last will and testament.
In witness whereof I Arthur Murphy hath hereunto set my hand and seal the fourth day of November in the year of our Lord one thousand and eight hundred and twenty-five.
His
X (Seal)
Mark
Arthur Murphy
Signed sealed published pronounced and declared by Arthur Murphy the testator as and for his last will and testament in the presence of us who subscribed our names as witnesses at his request in his presence and in .the presence of each other.
Frederick Leonard
Isaac Hendrickson
Patrick Higgins
James Morrison
After signing the above it is the wish and will of Arthur Murphy that his brother John Murphy shall have two hundred dollars paid to him after all his just debts are paid and Ann Duff ee two hundred dollars paid to her by my particular request.
Taken and acknowledged before us.
Frederick Leonard
James Morrison
Patrick Higgins
Probate made to Arthur Murphy’s will (Copy of it): New Castle County, ss.:
Before me personally appeared Frederick Leonard, Esq. and Patrick Higgins two of the subscribing evidences to the within will who being solemnly sworn on the Holy *190Evangels of Almighty God did severally say that they saw Arthur Murphy the testator by way of making his mark, sign and seal the said instrument of writing and heard him publish, pronounce and declare the same as and for his last will and testament; that at the time of his so doing he was to the best of their belief of a sound and disposing mind and memory; that it was at the request of the said testator in his presence and in presence of each other they subscribed their names thereto as witnesses, and at the same time saw Isaac Hendrickson and James Morrison subscribe their names thereto as other witnesses. In testimony whereof I have hereunto set my hand at New Castle the 10th day of November Anno Domini 1825.
Evan H. Thomas
Reg. Wills | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487681/ | [July, 1827.][For this case, see 1 Del.Ch. 331.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487714/ | [Cite as State v. Santana, 2022-Ohio-4118.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29348
:
v. : Trial Court Case No. 2019-CR-3574
:
VICTOR SANTANA : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
Attorney for Defendant-Appellant
.............
LEWIS, J.
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{¶ 1} Defendant-Appellant Victor Santana appeals from his convictions for murder
and felonious assault. Santana contends that the trial court improperly excluded
evidence of past trespasses on his property, which was relevant to his state of mind at
the time he shot and killed two trespassers in his detached garage. Santana also argues
that the trial court should have excluded from evidence two recordings of his interviews
with police due to a lack of clarity in his responses to the officers’ questions. Further,
Santana contends that his trial counsel provided ineffective assistance by failing to object
to the admission of those recordings. Finally, Santana argues his convictions were
against the manifest weight of the evidence.
{¶ 2} For the reasons that follow, we affirm Santana’s convictions.
I. Facts and Course of the Proceedings
{¶ 3} On November 21, 2019, a Montgomery County grand jury indicted Santana
on four counts of murder (proximate result), first-degree felonies in violation of R.C.
2903.02(B); two counts of felonious assault (serious physical harm), second-degree
felonies in violation of R.C. 2903.11(A)(1); three counts of felonious assault (deadly
weapon), second-degree felonies in violation of R.C. 2903.11(A)(2); and one count of
attempt to commit murder, a first-degree felony in violation of R.C. 2923.02(A). All
counts contained firearm specifications. All of the counts relate to the night of August
28, 2019, when Santana shot and killed Devin Henderson and Javier Harrison, who were
sitting in a car in the detached garage on Santana’s property with their friend, Ja’shin
Gibson.
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{¶ 4} Santana filed a motion to suppress the statements he made during his two
interviews with the police. He also filed a motion in limine requesting that the trial court
allow his counsel to elicit testimony and evidence that trespassers had previously caused
damage to his house and truck. The trial court overruled both motions. On November
29, 2021, Santana moved to dismiss the attempt to commit murder count of the
indictment. Ultimately, this count was dismissed, leaving nine counts to be tried to a jury.
{¶ 5} The jury trial was held from November 30 to December 2, 2021. Several
witnesses testified at the trial. Lee Lehman, the Chief Deputy Coroner for Montgomery
County, testified first for the State. He had performed autopsies on Devin Henderson
and Javier Harrison. According to Lehman, Henderson was shot multiple times in his
back, and the bullets did not exit his body. The gunshot wounds caused Henderson’s
death, and there were no other contributing causes. Trial Tr., p. 184-193, 198-199.
Both bullets entered Henderson’s back in a downward path. Id. at 194. Henderson’s
toxicology report was positive for the presence of marijuana. Id. at 198. Lehman
testified that Javier Harrison had a gunshot wound to the left side of his back; the bullet
went through his heart and left lung. He also had a gunshot wound to his left forearm.
Id. at 204-205, 207-209. Harrison died as a result of multiple gunshot wounds. Id. at
214. Harrison’s toxicology report also showed the presence of marijuana. Id. at 213.
Lehman did not find any weapons in the possession of Henderson or Harrison. Id. at
214.
{¶ 6} Dayton Police Officer Jeff Downing testified next for the State. He had been
dispatched to Santana’s house at 848 Conners Street around 10:00 p.m. on August 28,
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2019, due to a reported shooting. Id. at 221-223. Downing took several photographs
of the crime scene. Officer Downing did not find any weapons around either Harrison or
Henderson. Id. at 232, 236. He noted that Santana’s yard was well maintained, but he
did notice some plywood and plastic over some windows of the house. Id. at 228, 241.
It was very dark around the garage and there was no electricity in the garage. Id. at 242.
Officer Downing agreed that there were many abandoned houses in Santana’s
neighborhood. Id. at 243.
{¶ 7} Ja’shin Gibson testified for the State. Gibson, who was 19 years old on the
night of August 28, 2019, had known Harrison since they were 12 or 13 years old, and he
had met Henderson at the Boys and Girls Club when he was five or six years old. Id. at
252-253. The three of them ran around together all the time, chilling, smoking, and
laughing. Id. at 253. They regularly smoked marijuana together. Id. at 253-254. The
three men met at Gibson’s place that night and were looking for a place to smoke. They
walked by Santana’s house and thought it was abandoned due to the boarded windows
and run-down cars in the garage. Id. at 254-255. None of them had any weapons, and
Harrison brought the marijuana. Id. at 257. It was very dark on the property, and
Gibson did not notice any lights on in the house. Id. at 257-259. The three men entered
the garage and got into the Lincoln Continental in the garage. Gibson sat in the front on
the passenger’s side, Henderson sat in the front on the driver’s side, and Harrison sat in
the back on the driver’s side. Id. at 263.
{¶ 8} The three men had been in the car only for approximately five to ten minutes
when Gibson lit his lighter to give Harrison some light to roll up a marijuana blunt. As
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Gibson passed the lighter to Harrison to light up the blunt, he saw the back door of the
car open, saw flashes, and heard gunshots. Harrison screamed that he had been shot.
The person with the gun then opened Henderson’s door and pointed the gun inside.
Henderson tried to push the gun up and exit the car. Henderson attempted to run to the
front of the car after getting out but was shot in the back. Id. at 264-271. Gibson was
able to get out of the car and hide underneath it. Gibson stayed underneath the car until
the shooter exited the garage. After Gibson got out from underneath the car, he was
able to observe the shooter enter the house on the property. Gibson then left the
property and ran away screaming for help. Id. at 271-273.
{¶ 9} Gibson returned to the scene of the shooting after he tried to tell people what
had happened. He spoke to a detective and initially lied about what had happened. Id.
at 273, 290. But he then told the truth. Id. at 278. On cross-examination, Gibson
reiterated that he had not heard the shooter coming before he had started shooting. He
admitted that he had not been able to see the shooter during the gunfire, but he had seen
the shooter go into the house afterward. Further, Gibson testified that he and his two
friends had never been on that property before and that, if the cars in the garage had
been locked, they would have left the property without smoking there. According to
Gibson, he and his friends had not intended to damage or take anything that night. Id.
at 279-280, 286, 299.
{¶ 10} Sergeant Clinton Evans of the Dayton Police Department also testified for
the State. He was dispatched to the crime scene on the night in question in response to
the homeowner’s call about a shooting. Id. at 304-305. When Sergeant Evans arrived,
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there was a firearm on the porch of the residence and there were two individuals in the
garage. He testified that there were no signs of life from the individuals in the garage
and no evidence of any weapons near them. Id. at 310-311. As Sergeant Evans
approached the garage in the dark, he had his weapon drawn. Id. at 312-314.
{¶ 11} Detective Stephen Lloyd of the Dayton Police Department testified next for
the State. He was dispatched to the crime scene at 9:20 p.m. based on a report that a
male had shot two other males in his garage. Id. at 317-319. When Detective Lloyd
arrived, he noticed that it was very dark on the property near the detached garage. Two
of the officers on the scene pulled an individual from the garage to render medical aid.
Id. at 322-323. The officers had approached the garage with their guns drawn for their
own safety. Ultimately, there were no signs of life from the two individuals in the garage
and no sign of weapons. Id. at 324-325. Detective Lloyd noticed a male near the
property who was crying, pacing, and very agitated; this male was Gibson. Detective
Lloyd eventually spoke with Gibson about what had happened. Gibson initially stated
that he and his friends had been in the alley when Santana started shooting at them, but
he then changed his story and told Lloyd that he and his friends had gone into the garage
to smoke marijuana and then Santana had started shooting at them. Id. at 331-335, 340.
{¶ 12} Detective Alexander Dole also testified for the State. He was part of the
special victims’ unit of the Dayton Police Department. Detective Dole had been called
to the crime scene on the night of August 28, 2019. When he arrived, the garage door
was open, and officers were pulling a male out of the garage. Detective Dole observed
a male at the front of the car bleeding and likely deceased. Id. at 347-349. He did not
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observe any weapons around either of the two males. Id. at 351. Detective Dole
agreed on cross-examination that he would not have been able to observe any weapons
without the use of a flashlight. Id. at 352.
{¶ 13} Officer Jamie Luckoski of the Dayton Police Department testified that he
had been dispatched to the crime scene and had approached the garage with other
officers. Id. at 359-360. Officer Luckoski had pulled Harrison out of the garage and had
noted a faint pulse, but both Harrison and Henderson ultimately were pronounced dead
at the scene. Id. at 365-367. On cross-examination, Officer Luckoski noted that
flashlights had been used when approaching Henderson and Harrison to help determine
if there were any weapons or any movements. Id. at 368-369.
{¶ 14} Officer Stephen Cline of the Dayton Police Department also testified that he
had recovered a revolver at the scene, discovering one live round and five spent casings
in the gun. Id. at 376.
{¶ 15} Craig Stiver, a coroner investigator for the Montgomery County Coroner’s
Office, testified that he had examined the Lincoln Continental from the garage, noting that
it had been very dusty and had no battery. Also, there had been blood on the front
bumper and in the back seat. Stiver also found a marijuana cigarette and a spent bullet.
Id. at 386, 388-394. While Stiver stated that he did not find any weapons in the car, he
testified on cross-examination that he found a wrench, screwdriver, and a PVC pipe under
the driver’s seat. Id. at 396-397.
{¶ 16} Detective Melissa Schloss of the Dayton Police Department was also
dispatched to the crime scene on the night in question. She testified that there had been
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no lighting in the garage area and that it was approximately 42 feet from the back of the
house to the garage. Id. at 410-411. She spoke with Gibson on the night of the
shootings. Officer Schloss testified that Gibson’s testimony at trial was consistent with
what he told her on the night of the shootings. Id. at 412. She interviewed Santana
twice after the shootings, once on the night of the shooting and once about three months
after the shooting. On cross-examination, Detective Schloss testified that Santana had
told her that he feared the males coming into his house on the night of the shooting. Id.
at 435.
{¶ 17} Elizabeth Ramirez, Santana’s niece, testified that Santana was a working
man who was handy and had a routine of going to work, cutting his grass, and researching
information on his computer. Id. at 456-457. Elizabeth said Santana was like a father
to her. Id. at 457. She had never seen him with a gun and considered him to be a very
peaceful man. Id. at 458-459. According to Elizabeth, Santana sometimes volunteered
at a homeless shelter. Id. at 459.
{¶ 18} Leticia Ramirez, Santana’s sister, also testified for the defense. Id. at
465-475. She noted that Santana had worked all of his life. Id. at 468. She and
Santana visited each other often and were very close. Leticia described her brother as
a kind, loving, peaceful, quiet man. Id. at 469, 471. Santana had told her that he
purchased a gun. Id. at 470. Leticia testified that her brother had a routine of going to
work, coming home, learning about new things, and going for walks. Id. at 474.
{¶ 19} The State also played for the jury portions of the videotaped recordings from
Santana’s two interviews with the police. The jury had the opportunity to see and hear
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Santana explaining what had happened on the night in question and why he had shot
Henderson and Harrison.
{¶ 20} The State read to the jury the stipulations of the parties. The stipulations
provided, in part, that the revolver recovered from the front porch of 848 Conners Street
was Santana’s firearm, that an expert would testify that the five fired cartridges found at
the scene were identified as having been fired from Santana’s firearm, and that the DNA
profiles obtained from the rear driver’s-side area of the car matched Javier Harrison. Id.
at 399-400.
{¶ 21} Following the testimony, the jury returned guilty verdicts on the first eight
counts, which involved allegations of murder and felonious assault against Henderson
and Harrison. But the jury returned a not guilty verdict on the ninth count, a felonious
assault count related to Ja’shin Gibson. The trial court merged counts 1, 2, 5, and 6
relating to Devin Henderson and counts 3, 4, 7, and 8 relating to Javier Harrison. The
court then imposed concurrent sentences of 15 years to life on counts 1 and 3, and it
ordered that the three-year firearm specifications attached to counts 1 and 3 be served
consecutively to each other and to the 15 years to life, for a total sentence of 21 years to
life. Santana filed a timely appeal from his convictions.
II. The Trial Court Did Not Abuse Its Discretion By Excluding Evidence of Past
Trespasses
{¶ 22} Santana’s first assignment of error states:
THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM
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INTRODUCING RELEVANT EVIDENCE IN HIS DEFENSE, THEREBY
VIOLATING HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR
TRIAL, THE RIGHT TO A FULL AND FAIR DEFENSE, AND
FUNDAMENTAL FAIRNESS.
{¶ 23} Santana contends that he purchased a gun for protection of himself and his
property based on prior incidents involving damage to his property and house. He points
out that he had previously complained to police about damage to the main door of his
residence and the window to his truck and about individuals throwing rocks at his
property. Appellant’s Brief, p. 12. According to Santana, “Ohio has a subjective test to
determine whether or not a defendant acted in self-defense,” and “the defendant’s state
of mind is crucial.” Id. at p. 13. Therefore, Santana’s “situation should have been
evaluated in accordance with his actual interpretation of the danger these individuals
posed to him based on his unique circumstances,” which included prior trespasses. Id.
{¶ 24} The State disagrees and notes that there was no evidence to tie the victims
in this particular case to any prior incident involving Santana or his property. Appellee’s
Brief, p. 8. Further, the State notes that when kids threw rocks at Santana’s house and
vehicle in the past, Santana yelled at them and they ran away. According to the State,
there was no evidence presented that any of the prior events involved threats to Santana
that would have justified the force Santana exerted on the night of August 28, 2019.
{¶ 25} The admission or exclusion of relevant evidence is within the sound
discretion of the trial court, and we review that decision for an abuse of discretion. State
v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39. The term “abuse of
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discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). It has been
previously noted that most abuses of discretion “will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process
that would support that decision.” Id.
{¶ 26} In its ruling excluding the evidence of prior trespasses onto Santana’s
property, the trial court noted that the prior instances of trespassing onto or throwing rocks
at Santana’s property had been too remote in time to the night of the incident in question.
Further, the trial court stated that there was no evidence directly connecting any of the
prior incidents to the three males involved in the incident on August 28, 2019. Indeed,
Santana’s trial counsel conceded that there was no evidence of such a connection. Trial
Tr., p. 424-425.
{¶ 27} Notably, the trial court allowed the admission of evidence from Santana that
he had seen footprints by the door to his house. Also, Gibson testified that it was
common to hear gunshots in the neighborhood where Santana lived. Id. at 285.
Santana’s counsel specifically mentioned both of these facts in his closing argument. Id.
at 502, 504, 513. Further, Santana’s counsel noted in his closing argument that Gibson
had testified that trespassing was common in that neighborhood. In addition, Santana’s
counsel reminded the jury that Santana had stated in his police interview that he often
heard gunshots in his neighborhood. Id. at 502, 505. In short, Santana was allowed to
-12-
introduce other evidence to the jury to paint a picture that Santana had had a reason to
be fearful when he saw the trespassers.
{¶ 28} Based on our review of the evidence that was permitted and the evidence
that was excluded, we do not believe the trial court abused its discretion in refusing to
allow into evidence Santana’s proffered statements regarding past trespasses on his
property that were remote in time to the night of August 28, 2019, and had no connection
to Henderson, Harrison, and Gibson.
{¶ 29} Further, we believe that the proffered evidence regarding prior incidents of
trespass onto Santana’s property, even if admitted into evidence, could not have
overcome the inherent deficiencies in Santana’s claim of self-defense. To establish self-
defense, the evidence must show (1) that the defendant was not at fault in creating the
situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was
in imminent danger of death or great bodily harm and that his only means of escape from
such danger was in the use of such force; and (3) that the defendant did not violate any
duty to retreat or avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d
1240 (2002), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph
two of the syllabus. If the evidence shows beyond a reasonable doubt that at least one
of these three elements is missing, a defendant cannot establish self-defense.
{¶ 30} “The ‘not at fault’ requirement also means that the defendant must not have
been the first aggressor in the incident.” State v. Turner, 171 Ohio App.3d 82, 2007-
Ohio-1346, 869 N.E.2d 708, ¶ 23 (2d Dist.), citing Robbins. “An individual who is the
first aggressor in an incident is ‘at fault’ for purposes of self-defense.” State v. Williams,
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9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 9, citing Turner at ¶ 23. Further, “there
is an objective and a subjective aspect involved in determining whether a defendant had
a bona fide belief that he or she was in imminent danger of death or great bodily harm:
an individual’s belief that he or she was in imminent danger must be objectively
reasonable, and the individual must have an honest subjective belief to that effect.”
(Citations omitted.) Id. at ¶ 11.
{¶ 31} In State v. Perez, 7th Dist. Mahoning No. 09 MA 30, 2010-Ohio-3168, the
court analyzed the interplay between the first two elements of a self-defense claim and
evidence of past trespasses. In Perez, the defendant was responsible for checking on
his sister’s house while she was out of town. At that time, defendant lived at his mother’s
house, which was located near his sister’s house. The defendant knew that a cousin
was staying at his sister’s house, along with a 4-year-old child. The defendant saw an
individual park a car outside his sister’s house, go into the house, and then come back
out of the house and sit in the parked car. The defendant walked over to the car with a
baseball bat and smashed the driver’s side window of the car. Id. at ¶ 1. According to
the defendant, he was acting either in defense of another or defense of property. Id. at
¶ 3. In particular, the defendant argued that he had had a legitimate reason to be afraid
of the individual in the parked car because his mother’s house had been previously
robbed. Id. at ¶ 17.
{¶ 32} The Seventh District rejected the defendant’s arguments. According to the
court:
In determining whether there are reasonable grounds for believing
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there was an imminent threat of bodily harm, the court can consider whether
the defendant received prior threats or encountered prior trespassers.
State v. Fields (1992), 84 Ohio App.3d 423, 428, 616 N.E.2d 1185.
***
Appellant believes that he had a legitimate reason to be afraid of J.R.
because his mother's house had been previously robbed. It is true that the
defendant's state of mind is an important factor in establishing self-defense.
State v. Moore, 3d Dist. Nos. 1-06-89, 1-06-96, 2007-Ohio-3600, ¶ 59.
There must be both reasonable and objective grounds to believe that harm
is imminent, and there must be an honest and subjective belief that harm is
imminent. State v. Thomas (1997), 77 Ohio St.3d 323, 330, 673 N.E.2d
1339. It is also true that, in determining whether there are reasonable
grounds for believing there was an imminent threat of great bodily harm, the
court may consider whether the defendant received prior threats or
encountered prior trespassers. State v. Fields (1992), 84 Ohio App.3d
423, 428, 616 N.E.2d 1185. Nevertheless, the defense of self-defense
does not permit the alleged victim to become the aggressor once the affray
has ended, or before an affray has even taken place. “The ‘not at fault’
requirement * * * means that the defendant must not have been the first
aggressor in the incident.” * * *
Appellant was obviously at fault in creating the affray because J.R.
was sitting in his car preparing to leave when Appellant attacked him. There
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is no evidence that J.R., a 16-year old boy, presented any type of threat to
anyone when he was assaulted.
Perez at ¶ 15-18.
{¶ 33} Like the defendant in Perez, Santana was the first aggressor and at fault in
creating the affray. Santana left his home searching for the trespassers. When he
entered the detached garage that was 42 feet from his house, he was not confronted or
cornered by the trespassers. Rather, he saw a light flicker in the inside of a car in the
detached garage. Instead of returning to his home from the detached garage, he walked
toward the car, opened the back door, and shot Harrison. He then proceeded to shoot
Henderson. Under these facts, no reasonable jury could have found that Santana shot
Harrison and Henderson in self-defense. Nothing in the evidence proffered to the trial
court relating to past occurrences of trespass or damage to his property could have
altered the fact that Santana was at fault for the affray as the aggressor, which precluded
a finding of self-defense as a matter of law.
{¶ 34} Santana’s first assignment of error is overruled.
III. The Trial Court Did Not Abuse Its Discretion By Admitting Into Evidence The
Two Police Interviews
{¶ 35} Santana’s second assignment of error states:
APPELLANT WAS DEPRIVED OF THE RIGHT TO A FAIR TRIAL
AND FUNDAMENTAL FAIRNESS THROUGH THE ADMISSION OF TWO
TAPED INTERVIEWS.
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{¶ 36} Santana contends that the trial court improperly admitted into evidence
taped recordings of two interviews of Santana conducted by police. According to
Santana:
[L]arge portions of these recordings were entirely incomprehensible
due to the quality of the recordings, mumbling, Appellant’s poor English.
Although an interpreter was present for the second interview, he appeared
to be allowing Appellant to struggle through the interview without
interpreting portions of it. Further, the interpreter was mumbling and was
turned away from the camera. The bulk of the recording was unintelligible.
Appellant’s Brief, p. 15. Santana argues that the “[e]xclusion of these recordings was
mandatory under the Ohio Rules of Evidence, as their probative value was substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.” Id. at 17.
{¶ 37} The State responds that, although Santana speaks in broken English, “he
could both speak understandable English and he understood English and the questions
that were being asked.” Appellee’s Brief, p. 15. According to the State, “Santana
described what happened, and although his English is not perfect, he was
understandable.” Id. Further, the State points out that the trial court reviewed the two
interviews when ruling upon Santana’s motion to suppress, and it noted that one could
determine what Santana was saying in English upon careful listening. Id. at 16. Also,
at oral argument, counsel for the State pointed out that any argument regarding difficulty
in understanding or hearing portions of the two taped interviews would go to the weight
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to be given the evidence, rather than its admissibility.
{¶ 38} As noted above, the admission or exclusion of relevant evidence is within
the sound discretion of the trial court, and we review that decision for an abuse of
discretion. State v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39.
Normally, potential prejudice is an insufficient basis on which to exclude relevant
evidence. Rather, a trial court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. Evid.R. 403. “Exclusion on
the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair
prejudice simply meant prejudice, anything adverse to the litigant’s case would be
excludable under Rule 403. Emphasis must be placed on the word ‘unfair.’ Unfair
prejudice is that quality of evidence which might result in an improper basis for a jury
decision.” (Citation omitted.) Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172,
743 N.E.2d 890 (2001). For example, “if the evidence arouses the jury’s emotional
sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence
may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence
appeals to the jury’s emotions rather than intellect.” Id.
{¶ 39} We have reviewed the recordings of Santana’s two interviews with police.
Although there are instances in which Santana’s statements are more difficult to
understand than others, we do not agree with Santana’s assertion that the video
recordings are largely unintelligible. Rather, a close listener can discern what Santana
was saying. We note that Santana’s trial counsel quoted rather extensively from
Santana’s recorded interviews during his closing argument at trial. Trial Tr., p. 503-505.
-18-
Further, Santana has failed to explain on appeal what particular portions of the recordings
could cause unfair prejudice by the jury’s viewing them. On the record before us, we
cannot conclude that the trial court abused its discretion by allowing the admission of the
the recordings of Santana’s interviews with the police.
{¶ 40} Santana also contends in this assignment of error that one of the State’s
comments in its closing argument may have improperly implied that Santana’s decision
not to testify should be held against him. Appellant’s Brief, p. 16-17. He cites page 490
of the trial transcript in support of his contention. In that particular portion of its closing
argument, the State explained:
Now, the evidence that you heard from Ja’shin and this Defendant is
that these three individuals were seated in his car in the pitch darkness, and
that the Defendant saw a light come on in the car. And you heard Ja’shin
explain what that was. They lit a lighter. They were going to light up a
blunt and get high.
And they were sitting in the car. And the next Ja’shin knows is the
door opens, and the Defendant starts shooting. That’s Ja’shin. So we
have two people that were there that can come in here and actually take
that stand and tell you what happened, okay? One is Ja’shin, and that’s
what he told you. The other one is this Defendant.
And what this Defendant told you was he heard voices. He got up
out of bed, and he went and got his gun. That was the first thing he did.
And he didn’t lock the doors. And he didn’t call 911. He went out to the
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front and he looked around. And he didn’t see anybody. And he tells you
that he’s scared, okay?
(Emphasis added.) Trial Tr., p. 489-490. The State then went on to discuss other
statements Santana made in his interviews with the police.
{¶ 41} While we acknowledge that the State toed the line when it brought up the
fact that Santana could have taken the stand at trial, we do not agree with Santana that
the State crossed the line into improper interference with Santana’s right to a fair trial.
Rather, the State immediately began to explain what Santana’s story to police was, taken
directly from interviews with the police that previously had been played for the jury. In
other words, the State noted that two people were able to explain what had happened
that night, Ja’shin and Santana. Then the State recapped what each said about the night
in question. Therefore, we conclude that the State’s solitary reference to Santana’s
opportunity to “take that stand,” when considered in context, did not violate Santana’s
right to a fair trial.
{¶ 42} Santana’s second assignment of error is overruled.
IV. Santana Was Not Denied His Right to Effective Assistance of Counsel
{¶ 43} Santana’s third assignment of error states:
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 44} Santana contends that his trial counsel “was ineffective for failing to object
to the playing of the two largely unintelligible and inaudible recorded interviews for the
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jury.” Appellant’s Brief, p. 18.
{¶ 45} To prevail on his ineffective assistance of counsel claim, Santana must
prove that his attorney was ineffective under the standard test from Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do so, he
must prove that his counsel’s performance was deficient and that he was prejudiced by
that performance. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,
¶ 10. “Thus, the defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and that there exists a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different.” Id. The
failure to meet either prong is fatal to an ineffective assistance of counsel claim.
Strickland at 697.
{¶ 46} As we explained in our resolution of Santana’s second assignment of error,
the trial court did not abuse its discretion by admitting into evidence the taped recordings
of Santana’s two interviews with the police. As such, we cannot conclude that the failure
of Santana’s trial counsel to object to the admission of this evidence constituted an error,
let alone that there is a reasonable probability that, but for that alleged error, the result of
the trial proceedings would have been different.
{¶ 47} The third assignment of error is overruled.
V. Santana’s Convictions Were Not Against The Manifest Weight of The Evidence
{¶ 48} Santana’s fourth assignment of error states:
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
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WEIGHT OF THE EVIDENCE.
{¶ 49} Santana contends that his convictions were against the manifest weight of
the evidence and “that the evidence simply does not support the felonious assault
charges pertaining to Ja’shin Gibson, as Ja’shin could not see well enough in the garage
to know what was happening, and there was insufficient evidence to support the
contention that Appellant had attempted to shoot at him during this incident.” Appellant’s
Brief, p. 23.
{¶ 50} Before addressing whether Santana’s convictions were against the
manifest weight of the evidence, we must point out that Santana was found not guilty of
the one count of felonious assault relating to Ja’shin Gibson. Therefore, in this
assignment of error, we will only address the counts on which Santana was found guilty.
{¶ 51} “The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). However, “[w]here an appellate court
determines that a conviction is not against the manifest weight of the evidence, the
conviction is necessarily based on legally sufficient evidence.” (Citations omitted.)
State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 8.
{¶ 52} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 12. When evaluating whether a conviction is against the manifest weight of the
evidence, the appellate court must review the entire record, weigh the evidence and all
-22-
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest
miscarriage of justice” such that the conviction must be reversed and a new trial ordered.
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer
to the fact finder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). A judgment of conviction should be reversed as being
against the manifest weight of the evidence only in exceptional circumstances. Martin
at 175.
{¶ 53} We recognize that, in other assignments of error, Santana challenges the
trial court’s admission of the video from Santana’s two police interviews. However, when
reviewing claims based on the sufficiency or manifest weight of the evidence, we are
required to consider all of the evidence admitted at trial, regardless of whether it was
admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-
1876, ¶ 27, citing, e.g., State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d
284. Accordingly, and because we have found that the videos were properly admitted,
we must consider the two interviews as part of our analysis.
{¶ 54} Santana was found guilty of several counts of murder and felonious assault.
Pursuant to R.C. 2903.02(B), a person is guilty of murder if he causes “the death of
another as a proximate result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree and that is not a violation
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of section 2903.03 or 2903.04 of the Revised Code.” Pursuant to R.C. 2903.11(A)(1), a
person is guilty of felonious assault if he knowingly causes serious physical harm to
another. Further, pursuant to R.C. 2903.11(A)(2), a person is guilty of felonious assault
if he knowingly causes serious physical harm to another by means of a deadly weapon
or dangerous ordnance.
{¶ 55} At trial, it was uncontested that Santana left his home and went searching
for trespassers that he had seen when looking out the window of his home. He
eventually found them in his detached garage, which was located about 42 feet from his
house. When he entered the garage, he was not confronted or cornered by the
trespassers. Rather, they were sitting in a car with the doors closed. Rather than
returning to his home, Santana continued to the car, opened the back door, and started
shooting. Harrison and Henderson died as a direct result of the gunshot wounds from
Santana’s gun. The overwhelming evidence of record, including the statements made
by Santana during his police interviews, the testimony of Ja’shin Gibson, who was the
only other surviving witness, the testimony of the police officers who were called to the
crime scene and the officer who interviewed Gibson and Santana, and the stipulations at
trial, supported the jury’s guilty verdicts on the felonious assault and murder counts
Further, as we explained above, Santana’s claim of self-defense failed as a matter of law
because he was the first aggressor.
{¶ 56} Upon the record before us, we cannot conclude that Santana’s convictions
were against the manifest weight of the evidence. Therefore, the fourth assignment of
error is overruled.
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VI. Conclusion
{¶ 57} Having overruled all of Santana’s assignments of error, the judgment of the
trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Charles W. Slicer, III
Hon. Timothy N. O’Connell | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494114/ | MEMORANDUM OPINION
JAMES D. WALKER, JR., Bankruptcy Judge.
This matter comes before the Court on Plaintiffs complaint to recover preferences and motion for summary judgment. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(F). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052.
Undisputed Facts
Debtor Houston Steel Fabricators, LLC filed a bankruptcy petition on February 3, 2005. On September 8, 2005, Plaintiff, the Chapter 7 Trustee, filed this adversary proceeding to recover preferences. Plaintiff subsequently filed a motion for summary judgment including a statement of material facts not in dispute. Pursuant to Local Rule 7056 — 1(c), the facts alleged in Plaintiffs statement may be deemed admitted unless controverted by a statement of facts from Defendants Jerry and Amanda Sheffield. Defendants have not contested the motion for summary judgment and have not filed a statement controverting the facts alleged by Plaintiff. For that reason, the Court will accept the following facts asserted by Plaintiff as true:
Defendants do business as J & M Homes. During the 90 days prior to filing bankruptcy Debtor made two payments on an unsecured debt it owed to the Sheffields. One payment of $103,214.46 was made on December 9, 2004. Another payment of $18,000 was made on November 26, 2004. The debt was incurred prior to either payment. Plaintiff has also contended as a matter of fact that the payments allowed Defendants to receive more than they would have in a hypothetical liquidation had the payments not been made.
Conclusions of Law
Summary judgment is governed by Federal Rule of Civil Procedure 56, made applicable to adversary proceedings through Federal Rule of Bankruptcy Procedure 7056. Under Rule 56, a party is entitled to summary judgment when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); McCaleb v. A.O. Smith Corp., 200 F.3d 747, 750 (11th Cir.2000). The Court views all evidence and reasonable factual inferences in the light most favorable to the nonmoving party. Burton v. Tampa Housing Auth., 271 F.3d 1274, 1277 (11th Cir.2001). However, the Court neither weighs the evidence nor determines its credibility. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
At issue in this case is whether certain transfers made by Debtor to Defendants may be avoided as preferences. Section 547(b)1 provides as follows:
Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of antecedent debt owed by the debtor before such transfer was made;
*682(3) made while the debtor was insolvent;
(4) made
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of' such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547(b).
The first question is whether the transfers were made to or for the benefit of a creditor. In this case, Debtor owed an unsecured debt to Defendants and the transfers were payments on that debt. Thus, the transfers were made both to and for the benefit of a creditor.
The second question is whether the transfers were made on account of an antecedent debt. Because the debt in this case arose prior to the transfers at issue, the transfers were made on account of antecedent debt.
The third question is whether the transfers were made while Debtor was insolvent. Section 547(f) provides that “the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f). Because both transfers were made during the 90 days preceding the bankruptcy filing, Debtor was presumptively insolvent at the time they were made.
The fourth question is whether the transfers were made during the 90 days prior to the filing of the petition. In this case, the bankruptcy petition was filed on February 3, 2005, and the transfers were made during the prior 90 days on December 9, 2004, and November 26, 2004.
The final question is whether the transfers caused Defendants to receive more than they would have received in a hypothetical liquidation had the transfers not been made. Plaintiff has alleged that this statement is true, and Defendants have not refuted it. However, the statement is a legal conclusion for which Plaintiff has provided no factual basis. In Kelley v. Chevy Chase Bank (In re Smith), 231 B.R. 130 (Bankr.M.D.Ga.1999) (Walker, J.), this Court denied a summary judgment motion in similar circumstances.
In Smith, the trustee sought to recover a preference and filed a motion for summary judgment. The Court denied the motion because “he failed to state facts necessary for the Court to find” that the fifth element of a preference was satisfied. Id. at 133. “In order to determine whether this test has been satisfied, the Court must, at a minimum have facts which establish Debtor’s total assets and liabilities.” Id. at 134. The Court rejected the trustee’s argument that it could take judicial notice of such facts from the debtor’s case file for three reasons: First, it is not the Court’s duty to comb the case file for facts that support the trustee’s motion; second, the movant has the burden of alleging all material facts; and third, the respondant’s ability to challenge facts is compromised when the Court takes judicial notice of such facts without any notice to the respondant. Id. at 135.
The court could speculate with near perfect assurance of certainty that unsecured creditors in the case will not be paid in full. However, such speculation, however *683certain, is not fact. A conclusory allegation to that effect is still an allegation, and not a fact. Because Plaintiff in this case has not alleged facts to support the fifth element of a preference claim, the Court cannot conclude that Plaintiff has proven all the elements of a preference action. Consequently, the Court must deny Plaintiffs motion for summary judgment without prejudice.
An Order in accordance with this Opinion will be entered on this date.
. The applicable law in this case is the law as it existed prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487682/ | The Chancellor
is of the opinion that the Negroes were not specifically bequeathed to the children; that they should be accounted for as the other personal property of the testator; that the wife is entitled to one third part of the surplus; and after deducting that surplus, that the residue should be equally divided among the children. The bequest of the service of the Negroes, to the heirs until they, the Negroes, arrive to the age of thirty-five years of age, was merely to designate the time at which the Negroes should become free.
But Mr. Rogers alleges that some of the Negroes have run away, and that the executrix should not be charged with the appraised value of such of them as have run, and prays time until next term to make good his allegation, especially as the executrix is absent, and is very firm. And time is accordingly given, so the appeal is continued until next term.
Continued. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487683/ | Account begins,Hearing on the cross-bill exceptions above. Counsel for Bauduy (defendant to this cross-bill) argues that the Court of Chancery *225has no jurisdiction in this cause since there is an adequate remedy at law. Counsel for Du Pont, (complainant in cross-bill) maintains that defendant cannot ignore the cross-bill, but can be required to plead, answer, or demur.(At this point, the report ends abruptly.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487684/ | Account begins, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487695/ | United States Court of Appeals
For the First Circuit
No. 21-1068
ROBERT FRESE,
Plaintiff, Appellant,
v.
JOHN M. FORMELLA, in his official capacity as Attorney General
of the State of New Hampshire,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court, issued on November 8, 2022, is
amended as follows:
On page 9, line 12, replace "Smith v. Goguen" with "Smith v.
Goguen." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487194/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
Echo Group, Inc., appellee and cross-appellant, v.
Tradesmen International, an Ohio corporation,
appellee, and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Historic Florentine, LLC, a Nebraska limited
liability company, and Midwest Protective
Services, Inc., appellees, and Lund-Ross
Constructors, Inc., a Nebraska corporation,
intervenor-appelllant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Duke of Omaha, LLC, a Georgia limited
liability company, Great Western Bank and
Midwest Protection Services, Inc., appellees,
and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
___ N.W.2d ___
Filed October 28, 2022. Nos. S-21-729, S-21-730, S-21-770.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
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Cite as 312 Neb. 729
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the lower
court.
4. Liens: Foreclosure: Equity. An action to foreclose a construction lien
is one grounded in equity.
5. Equity. The maxim “equity follows the law” in its broad sense means
that equity follows the law to the extent of obeying it and conforming to
its general rules and policies whether contained in common law or stat-
ute. This maxim is strictly applicable whenever the rights of the parties
are clearly defined and established by law.
6. ____. Equitable remedies are generally not available where there exists
an adequate remedy at law.
7. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
8. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
purposes of summary judgment.
9. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
10. Principal and Surety: Bonds: Liens. The function of the surety bond
under Neb. Rev. Stat. § 52-142 (Reissue 2021) is to release the property
from the lien and to transfer the claimant’s rights from the property to
the surety bond.
11. Stipulations: Parties. The general rule is that parties are bound by
stipulations voluntarily made.
12. Principal and Surety: Liability. In the absence of a condition extend-
ing his or her liability, a surety cannot be held liable for more than the
penal sum named.
13. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
14. Prejudgment Interest. Neb. Rev. Stat. §§ 45-103.02 and 45-104
(Reissue 2021) provide alternate and independent means of recovering
prejudgment interest.
15. ____. Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021) authorizes the
recovery of prejudgment interest on liquidated claims.
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16. ____. When a claim is of the types enumerated in Neb. Rev. Stat.
§ 45-104 (Reissue 2021), then prejudgment interest may be recovered
without regard to whether the claim is liquidated.
17. Appeal and Error. The district court cannot commit error in resolving
an issue never presented and submitted to it for disposition.
18. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2021) applies
to four types of judgments: (1) money due on any instrument in writing;
(2) settlement of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof; and (4)
money loaned or due and withheld by unreasonable delay of payment.
19. Prejudgment Interest: Liens: Foreclosure. An award of prejudgment
interest in an action to foreclose a construction lien is authorized under
Neb. Rev. Stat. § 45-104 (Reissue 2021).
20. Statutes: Words and Phrases. As a general rule, the word “shall” in
a statute is considered mandatory and is inconsistent with the idea of
discretion.
21. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
22. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
23. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
24. Statutes: Intent. In construing a statute, the court must look at the
statutory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose.
25. Appeal and Error. Absent plain error, an appellate court considers only
an appellant’s claimed errors that the appellant specifically assigns in a
separate “assignment of error” section of the brief and correspondingly
argues in the argument section.
26. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
Appeals from the District Court for Douglas County: J.
Michael Coffey, Leigh Ann Retelsdorf, and Duane C.
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Dougherty, Judges. Judgment in No. S-21-729 affirmed and
in part reversed, and cause remanded with direction. Judgment
in No. S-21-730 affirmed in part and in part reversed, and
cause remanded with direction. Judgment in No. S-21-770
affirmed in part, and in part reversed.
David S. Houghton and Justin D. Eichmann, of Houghton,
Bradford & Whitted, P.C., L.L.O., for appellant.
Cathy S. Trent-Vilim and Craig F. Martin, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
These three cases consolidated for appeal involve foreclo-
sures of construction liens under the Nebraska Construction
Lien Act (Act). 1 The appeals present three primary issues:
whether equitable considerations make summary judgment
improper, whether prejudgment interest is authorized, and
whether attorney fees are recoverable.
Because there was no dispute that the supplier complied
with the provisions of the Act and equity follows the law, we
affirm the entry of summary judgment in each case.
We conclude that the claims were liquidated, and thus, an
award of prejudgment interest was authorized. Because the
court in two cases erred by not awarding prejudgment inter-
est, we reverse the denial and remand to award such interest in
conformity with this opinion.
Finally, we conclude that under the circumstances, there was
no statutory authorization for an award of attorney fees. Thus,
we reverse in part the judgment in two cases awarding attorney
fees.
1
Neb. Rev. Stat. §§ 52-125 to 52-159 (Reissue 2021).
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II. BACKGROUND
1. Overview
We begin with a broad overview. These appeals arose from
three construction-related projects. A general contractor entered
into agreements with a subcontractor for performance of elec-
trical work, and the subcontractor obtained electrical materials
and equipment from a supplier. When the subcontractor failed
to pay the supplier, the supplier filed construction liens. The
supplier then sued the property owners to foreclose on the
liens. The general contractor posted lien release bonds and
intervened. Ultimately, the district court—through a different
judge in each of the three cases—entered summary judgment
in favor of the supplier. Two judgments overruled requests for
prejudgment interest, one overruled a request for attorney fees,
and one awarded both prejudgment interest and fees. These
appeals followed.
2. Parties and Contracts
With that general understanding, we fill in the details. The
general contractor, Lund-Ross Constructors Co. (Lund-Ross),
was hired for the three projects involved in these appeals. The
projects consisted of renovating common space at a senior liv-
ing center, revamping an old apartment building into new apart-
ments, and constructing a new apartment project, respectively.
Lund-Ross entered into contracts with Signature Electric,
LLC (Signature), doing business as D&J Electric, for the per-
formance of electrical work on the projects. Signature entered
into agreements with Echo Group (Echo) to obtain electrical
materials and equipment.
Generally, the subcontracts between Lund-Ross and
Signature specified that Signature had the responsibility to pay
all amounts owed to any suppliers it engaged. The subcontracts
obligated Signature to furnish satisfactory evidence to Lund-
Ross, “when and if required,” that it did so. To receive monthly
progress payments, Signature had to provide Lund-Ross with a
completed lien waiver for all prior months’ progress payments.
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3. Progress Payments
Signature submitted monthly pay applications to Lund-Ross,
requesting monthly progress payments for work completed
and supplies purchased. Lund-Ross would remit payment to
Signature, less an applicable retainage amount. Once Signature
received payment, it submitted a partial lien waiver to Lund-
Ross, attesting to Signature’s payment of all suppliers up to the
date of the lien waiver.
According to Lund-Ross’ president, the lien waivers were
of “critical importance.” He explained that if Signature did not
provide lien waivers for the previous month attesting to pay-
ment of suppliers, “Lund-Ross would then have known that
there was a problem with Signature’s payment of suppliers and
Lund-Ross could have stopped making payments to Signature
and made other arrangements to pay Signature’s suppliers . . .
directly or take other action to protect itself.”
4. Construction Liens and Lawsuits
In July 2019, Signature abruptly ceased operations.
The next month, and in accordance with the Act, Echo
recorded a construction lien in the office of the Douglas County
register of deeds in each case in the amounts of $11,604.46,
$32,781.03, and $296,407.73, respectively.
Echo presented demands to Lund-Ross for payment with
respect to electrical supplies it furnished to Signature. Having
received no payments, Echo filed lawsuits against the property
owners to foreclose on the construction liens. The complaints
also alleged unjust enrichment. Lund-Ross posted a surety
bond in each case and moved to intervene.
After the court allowed Lund-Ross to intervene, Lund-Ross
filed an answer setting forth numerous affirmative defenses.
Among the affirmative defenses, Lund-Ross identified equi-
table doctrines of waiver, estoppel, laches, and unclean hands.
Lund-Ross stipulated to the dismissal of each property owner.
In case No. S-21-729, Lund-Ross stipulated that any judgment
would be satisfied “by Lund-Ross or its bond.” Similarly, in
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
case No. S-21-770, Lund-Ross stipulated that a final judgment
would be satisfied “by Lund[-]Ross and/or its bond.”
Echo subsequently moved for summary judgment. As dis-
cussed in more detail below, the court sustained the motion in
each case.
5. District Court Judgments
The court entered summary judgment in Echo’s favor on the
foreclosure of a construction lien claim in each case. Thus, in
case No. S-21-729, the court entered judgment in the amount
of $11,604.46 against the bond posted by Lund-Ross, together
with costs and postjudgment interest. In case No. S-21-730,
the court entered judgment against the bond in the amount
of “$32,871.03” (transposing the lien amount of $32,781.03),
together with costs, attorney fees, and postjudgment interest.
In case No. S-21-770, the court entered summary judgment
against Lund-Ross in the amount of $296,407.73, plus prejudg-
ment and postjudgment interest, costs, and attorney fees.
The orders further disposed of Echo’s claims for unjust
enrichment. In case No. S-21-729, the court found that claim
should be dismissed with prejudice. In case No. S-21-730, the
court sustained Echo’s motion to dismiss that claim. And in
case No. S-21-770, having determined that summary judgment
was appropriate on the lien foreclosure claim, the court found
it unnecessary to consider Echo’s unjust enrichment claim.
Additional findings by the district court will be set forth as
necessary in the analysis.
Lund-Ross filed a timely appeal in each case. The Nebraska
Court of Appeals sustained Lund-Ross’ motion to consolidate
the appeals, and we subsequently moved them to our docket. 2
III. ASSIGNMENTS OF ERROR
Lund-Ross assigns five errors. In all three cases, it alleges
that the district court erred in determining that no genuine issue
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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ECHO GROUP V. TRADESMEN INTERNAT.
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of material fact existed and in granting Echo summary judg-
ment on its claims for construction lien foreclosure.
In two cases—cases Nos. S-21-730 and S-21-770—Lund-
Ross alleges that the court erred in granting judgment in an
amount greater than the surety bond posted by Lund-Ross.
In case No. S-21-770 only, Lund-Ross alleges that the court
erred in (1) entering judgment for the excess amount directly
against Lund-Ross, (2) awarding Echo prejudgment interest on
its claim for construction lien foreclosure, and (3) awarding
Echo attorney fees not actually incurred in pursuit of Echo’s
claim in the action pending before it.
On cross-appeal, Echo assigns that the court erred in cases
Nos. S-21-729 and S-21-730 by denying prejudgment interest.
It further assigns that the court erred in case No. S-21-729 by
denying attorney fees.
IV. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 3 In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 4
[3] Statutory interpretation presents a question of law which
an appellate court reviews independently of the lower court. 5
These standards are central to our review. We set forth other
applicable standards in the analysis.
3
Elbert v. Young, ante p. 58, 977 N.W.2d 892 (2022).
4
Id.
5
Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
V. ANALYSIS
1. Summary Judgment
Lund-Ross argues that the district court erred in granting
summary judgment in three ways. In all three appeals, Lund-
Ross claims that the court erred in entering summary judgment
on the construction lien foreclosure claim without “balancing
the equities.” 6 In cases Nos. S-21-730 and S-21-770, Lund-
Ross alleges the court erred by entering summary judgment in
an amount greater than the surety bond it posted to release the
real estate from the construction lien. In case No. S-21-770,
Lund-Ross claims error with respect to the entry of judgment
for the excess amount directly against Lund-Ross.
(a) Balancing of Equities
With regard to summary judgment on the construction lien
foreclosure claims, Lund-Ross does not dispute that Echo
complied with the statutory requirements of the Act. But Lund-
Ross argues that “the grant of such an equitable remedy also
requires the trial court to first balance any equities supported
by the parties’ evidence.” 7
[4] It bases its argument on case law stating that an action
to foreclose a construction lien is one grounded in equity. 8
From this general characterization of the nature of a construc-
tion lien foreclosure proceeding, it reasons that a balancing of
equities—which, it argues, is inherent in an equity action—pre-
cludes granting summary judgment.
No Nebraska case law has addressed balancing of equities
in a lien foreclosure action. Recognizing the same, Lund-Ross
directs our attention to two cases to support its argument.
6
Brief for appellant at 22.
7
Id. at 21.
8
See, e.g., Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020); Lincoln
Lumber Co. v. Lancaster, 260 Neb. 585, 618 N.W.2d 676 (2000); Franksen
v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794 (1994).
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One case, an unpublished decision of the Iowa Court of
Appeals, 9 involved a trial court’s refusal to foreclose on a
mechanic’s lien based on equitable principles. The trial court
had concluded that the contractor was largely responsible for
creating the dispute due to its confusing and inaccurate billing.
The Court of Appeals reasoned that although the contractor met
the statutory requirements to foreclose on its lien, the appel-
late court had broad discretion in determining an equitable
remedy and could consider the hardship its orders would cause
the defendant.
The other case, a Nebraska case, involved whether to grant
equitable relief in connection with allegations of ultra vires
acts by insurance company officers. 10 There, we stated that
“[i]n balancing equities, [a court] must take into consideration
the good that may be done to those who have been wronged,
against the evil that may befall innocent persons.” 11 After
noting that “if the plaintiff can be readily compensated in dam-
ages,” we stated that “[c]ourts will balance equities and, where
they are equal or predominate against him who seeks relief,
equity will follow that rule.” 12
Neither case persuades us that the possibility of balancing
equities in fashioning relief precludes a court from employ-
ing a summary judgment, at least where there are no factual
disputes. The Nebraska precedent, in particular, differs signifi-
cantly from the case before us. There, the plaintiffs primarily
sought and received injunctive relief requiring that bonds and
money removed from a fraternal benefit corporation and paid
to an insurance company organized by officers of the frater-
nal benefit corporation be returned to that corporation, and
9
Olmstead Construction, Inc. v. Otter Creek Investments, LLC, No. 18-1186,
2019 WL 4678167 (Iowa App. Sept. 25, 2019) (unpublished opinion listed
in table of “Decisions Without Published Opinions” at 940 N.W.2d 44
(2019)).
10
See Folts v. Globe Life Ins. Co., 117 Neb. 723, 223 N.W. 797 (1929).
11
Id. at 745, 223 N.W. at 806.
12
Id.
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precluding the individuals and corporate entities from using
the fraternal benefit corporation’s goodwill, property, or orga-
nization in the business of the insurance company. While an
action for injunction sounds in equity 13 and an action to fore-
close a construction lien is one grounded in equity, 14 the simi-
larity ends there. In Nebraska, construction liens are largely
governed by the Act.
[5,6] Long-established principles require a court in equity
to implement these statutory provisions. The maxim “equity
follows the law” in its broad sense means that equity follows
the law to the extent of obeying it and conforming to its gen-
eral rules and policies whether contained in common law or
statute. 15 This maxim is strictly applicable whenever the rights
of the parties are clearly defined and established by law. 16 And
equitable remedies are generally not available where there
exists an adequate remedy at law. 17 That is the case here. The
Act sets forth a comprehensive statutory structure. By asking
this court to balance the equities with respect to Echo’s fore-
closure requests, Lund-Ross seeks to inject something new into
the Act.
[7] Even if it were appropriate to do so, Lund-Ross did not
meet its burden to show the existence of a material issue of
fact. The party moving for summary judgment must make a
prima facie case by producing enough evidence to show that
13
County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).
14
Goes v. Vogler, supra note 8.
15
Guy Dean’s Lake Shore Marina v. Ramey, 246 Neb. 258, 518 N.W.2d
129 (1994). See, also, Wisner v. Vandelay Investments, 300 Neb. 825, 916
N.W.2d 698 (2018); Fisher v. Heirs & Devisees of T.D. Lovercheck, 291
Neb. 9, 864 N.W.2d 212 (2015); Jeffrey B. v. Amy L., 283 Neb. 940, 814
N.W.2d 737 (2012); Doksansky v. Norwest Bank Neb., 260 Neb. 100, 615
N.W.2d 104 (2000); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658
(1994).
16
Guy Dean’s Lake Shore Marina v. Ramey, supra note 15; Wisner v.
Vandelay Investments, supra note 15; Jeffrey B. v. Amy L., supra note 15;
Doksansky v. Norwest Bank Neb., supra note 15.
17
Wisner v. Vandelay Investments, supra note 15.
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the movant is entitled to judgment if the evidence were uncon-
troverted at trial. If the party moving for summary judgment
makes a prima facie case, the burden shifts to the nonmovant
to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law. 18 Echo met
its initial burden, but Lund-Ross failed to meet its respon-
sive burden.
Lund-Ross did not produce evidence to raise a genuine issue
of material fact as to the equitable defenses it raised. There
is no evidence that Echo had an obligation to bring payment
issues to the attention of Lund-Ross or the property owner. Nor
is there evidence that Lund-Ross asked for lien waivers from
any of the suppliers. Although Lund-Ross asserts that Echo
“slept on [its] rights and waited over the course of more than
half [a] year to make [its] claim,” 19 Echo timely filed its liens
and sought foreclosure in accordance with the provisions of
the Act.
[8] At oral argument, Lund-Ross asserted that the equitable
considerations it advanced should be heard at trial. It explained
that a trial would allow a fuller exploration and further devel-
opment of facts. But the time to show a genuine dispute regard-
ing any material fact was at the summary judgment stage. At
that stage, Lund-Ross could produce “depositions, answers to
interrogatories, admissions, stipulations, and affidavits” 20 to
support its equitable defenses. Instead, Lund-Ross essentially
relied on inferences based on speculation. Conclusions based
on guess, speculation, conjecture, or a choice of possibilities
do not create material issues of fact for purposes of sum-
mary judgment. 21
As noted, there is no dispute that Echo complied with the
statutory requirements of the Act with respect to its con-
struction lien foreclosure claims. The district court correctly
18
Ag Valley Co-op v. Servinsky Engr., supra note 5.
19
Brief for appellant at 28.
20
Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020).
21
Ag Valley Co-op v. Servinsky Engr., supra note 5.
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followed the law and had no need in this instance to “balance
any equities.”
(b) Award Greater Than Surety Bond
Lund-Ross argues that in cases Nos. S-21-730 and S-21-770,
the district court erred by entering judgment in excess of the
surety bond. Lund-Ross contends that the Act defines the rem-
edy for a successful lien claim. So we turn to the Act.
The Act speaks to the procedure to release a lien. Under
§ 52-142(1)(a), a person may release real estate from a lien
by depositing “money in cash, certified check, or other bank
obligation, or a surety bond . . . , in an amount sufficient to pay
the total of the amounts claimed in the liens being released plus
fifteen percent of such total.” Upon such release, “the claim-
ant’s rights are transferred from the real estate to the deposit or
surety bond.” 22 Once the court determines the claim, it “shall
order the clerk of the district court to pay the sums due or ren-
der judgment against the surety company on the bond, as the
case may be.” 23 Lund-Ross homes in on the latter language,
contending that “the limit of any possible recovery by Echo . . .
is a judgment rendered against the surety company on the bond
deposited.” 24 It asserts, without citation to authority, that the
total judgment cannot exceed the bond amount. We disagree.
[9] The plain language of the Act does not contain a limit
on the amount of recovery. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. 25 The Act pro-
vides that a person furnishing materials has a construction lien
“to secure the payment of his or her contract price.” 26 Contract
22
§ 52-142(3).
23
Id.
24
Brief for appellant at 30.
25
In re Guardianship of Jill G., ante p. 108, 977 N.W.2d 913 (2022).
26
§ 52-131(1).
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price is defined as “the amount agreed upon by the contract-
ing parties for performing services and furnishing materials
covered by the contract” as increased or diminished by certain
matters; however, “[i]f no price is agreed upon by the con-
tracting parties, contract price shall mean the reasonable value
of all services or materials covered by the contract.” 27 The
amount of the lien is specified by § 52-136, 28 which provides,
under the circumstances here, that the lien is for the amount
unpaid under Echo’s contract. 29
Provisions within the Act authorize recovery of amounts in
addition to the amount of the lien and, thus, may be in addition
to the amount of the bond. One statute 30 mandates an award to
the prevailing party of reasonable attorney fees and court costs
if a claimant has a claim under a bond procured by an owner
or prime contractor from a surety company in the penal sum
set forth in § 52-141(3). Another makes a person who fails to
furnish information required by § 52-143 liable to the request-
ing party for actual damages or $200 as liquidated damages. 31
A third statute makes a claimant who fails to send a copy of
the recording of a notice of commencement to the contracting
owner liable to the contracting owner for any damages caused
by that failure. 32 A fourth statute provides that if a person is
wrongfully deprived of benefits or if a claimant acts in bad
faith, damages, including the costs of correcting the record and
reasonable attorney, fees may be awarded. 33 Nothing within the
Act limits these additional amounts to 15 percent of the amount
claimed in the lien. 34
27
§ 52-127(2).
28
§ 52-131(4).
29
See § 52-136(2)(a).
30
§ 52-141(6).
31
§ 52-143(3).
32
§ 52-145(6).
33
See § 52-157.
34
See § 52-142(1)(a).
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[10] The language of the Act demonstrates that the function
of the surety bond under § 52-142 is to release the property
from the lien and to transfer the claimant’s rights from the
property to the surety bond. It is simply a matter of substitution
of collateral. 35 The shifting of the lien from the property to the
bond substitute does not create a limit on recovery that would
not otherwise exist. Where recovery of amounts in excess of
the lien amount is permitted, it is not error to enter judgment in
an amount greater than the amount of the surety bond.
(c) Judgment Directly Against Lund-Ross
Lund-Ross further contends that in case No. S-21-770, the
court erred by assessing the judgment in excess of the posted
surety bond—an additional $69,524.86—directly against
Lund-Ross. The district court reasoned that under § 52-142,
it was discretionary to the court whether to render judgment
against the surety company or simply order the clerk of the
district court to pay the bond out to Echo. The court declared
that any remaining amount due on the judgment—which
included prejudgment interest, attorney fees, and costs—was
the sole responsibility and obligation of Lund-Ross. Lund-
Ross argues that any judgment against it—as opposed to
the surety per § 52-142(3)—was error. We disagree for sev-
eral reasons.
First, we reject Lund-Ross’ assertion that judgment could
not be entered against it because “Echo’s pleadings are entirely
devoid of any claims asserted against Lund-Ross.” 36 In case
No. S-21-770, Echo sued the property owner and two corpora-
tions having an interest in the property, seeking to foreclose
on its construction lien. Subsequently, Lund-Ross deposited a
surety bond and moved to intervene. As Lund-Ross recognized
in its motion—and as set forth in the discussion above—upon
release of the construction lien, Echo’s rights were transferred
from the property to the surety bond. The bond to release the
35
See § 52-151(1).
36
Brief for appellant at 30.
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lien identified Lund-Ross as “Principal” and Western Surety
Company as “Surety,” and they bound themselves “jointly
and severally” to Echo. Lund-Ross cites no authority for the
proposition that the liability of the principal on a surety bond
is limited to the penal sum.
[11] Second, Lund-Ross is obligated by its stipulation. The
general rule is that parties are bound by stipulations voluntarily
made. 37 Lund-Ross stipulated that the property owner should
be dismissed as a party and that “to the extent [Echo] obtains
a final judgment, it will be satisfied by Lund[-]Ross and/or
its bond.”
[12] Third, a surety generally cannot be held liable for an
amount greater than the bond. “[I]n the absence of a condition
extending his or her liability, a surety cannot be held liable for
more than the penal sum named.” 38 Although this bond was not
a surety bond meeting the requirements of § 52-141, that stat-
ute conveys the same general rule: “The bond must obligate the
surety company, to the extent of the penal sum of the bond” 39
and “the total liability of the surety may not exceed the penal
sum of the bond.” 40 This means that liability for any amount in
excess of the bond falls to Lund-Ross.
For all these reasons, we find no error by the court in assess-
ing the judgment in excess of the posted surety bond directly
against Lund-Ross.
2. Prejudgment Interest
(a) Standard of Review
[13] Awards of prejudgment interest are reviewed de novo. 41
37
Lincoln Lumber Co. v. Lancaster, supra note 8.
38
11 C.J.S. Bonds § 55 at 43 (2019).
39
§ 52-141(2).
40
§ 52-141(7).
41
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d
251 (2021).
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(b) Additional Facts and Findings
In all three cases, Echo requested prejudgment interest under
Neb. Rev. Stat. § 45-104 (Reissue 2021) only. In case No.
S-21-729, the court did not explicitly rule on Echo’s request
for prejudgment interest. In case No. S-21-730, the court dis-
agreed that Echo’s construction lien was an instrument in writ-
ing envisioned by § 45-104. Thus, it denied Echo’s request for
prejudgment interest under that statute.
In case No. S-21-770, the court found that Echo was entitled
to prejudgment interest under § 45-104. It determined that the
construction lien itself qualified under § 45-104 as “‘money
due on an instrument in writing.’” The court further found that
Echo was entitled to prejudgment interest under the provision
of § 45-104 allowing interest on “‘money loaned or due and
withheld by unreasonable delay of payment.’” Accordingly, the
court determined that Echo was entitled to prejudgment inter-
est of $71,910.72, for the period beginning on the date Echo
recorded the construction lien.
(c) Discussion
Both parties assign error with respect to prejudgment inter-
est. Lund-Ross claims that the court erred by awarding Echo
prejudgment interest in case No. S-21-770. On cross-appeal,
Echo assigns that the court erred by denying it prejudgment
interest in cases Nos. S-21-729 and S-21-730.
[14-16] On appeal, Echo contends that in addition to
§ 45-104, Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021)
also authorized an award of prejudgment interest. Sections
45-103.02 and 45-104 provide alternate and independent means
of recovering prejudgment interest. 42 Section 45-103.02(2)
authorizes the recovery of prejudgment interest on liquidated
claims. 43 When a claim is of the types enumerated in § 45-104,
then prejudgment interest may be recovered without regard to
42
Id.
43
See Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
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whether the claim is liquidated. 44 Although Echo did not iden-
tify § 45-103.02(2) as a basis for prejudgment interest before
the district court, the issue of prejudgment interest “as provided
in [§] 45-104” 45 was clearly raised. We look to both statutes.
(i) § 45-103.02(2)
[17] As noted, the record from the district court proceed-
ings does not reflect that Echo ever mentioned § 45-103.02(2)
as a basis for prejudgment interest. The district court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. 46 Thus, in cases Nos. S-21-729 and
S-21-730—where the court found no entitlement to prejudg-
ment interest—we find no error in failing to award interest
under § 45-103.02(2).
As to case No. S-21-770, where the court awarded pre-
judgment interest under § 45-104, we merely observe that
§ 45-103.02(2) supplies another basis for such an award.
Section 45-103.02(2) states that “[e]xcept as provided in sec-
tion 45-103.04, interest as provided in section 45-104 shall
accrue on the unpaid balance of liquidated claims from the date
the cause of action arose until the entry of judgment.”
Here, Echo’s claim was liquidated. For a claim to be liq-
uidated, a dispute must not exist either to the amount due or
to the plaintiff’s right to recover. 47 Lund-Ross admitted each
of Echo’s statements of undisputed fact. Thus, it admitted
the balances that Echo asserted remained unpaid. We note
that in three cases involving the foreclosure of a mechanic’s
lien, terminology predating the Act, 48 our opinion referenced
§ 45-103.02 but disallowed interest because the claim was
44
Id.
45
§ 45-103.02(2).
46
Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
47
See Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692,
695 N.W.2d 665 (2005).
48
See § 52-159 (substituting “construction lien” for “mechanic’s lien”).
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unliquidated. 49 That is not the case here. Thus, it appears that
§ 45-103.02(2) would have provided a perhaps clearer basis for
prejudgment interest.
(ii) § 45-104
[18] We now turn to § 45-104, which the court in case No.
S-21-770 used as the statutory basis for its award of prejudg-
ment interest. Section 45-104 applies to four types of judg-
ments: (1) money due on any instrument in writing; (2) settle-
ment of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained
without the owner’s consent, express or implied, from the
receipt thereof; and (4) money loaned or due and withheld by
unreasonable delay of payment. 50
Lund-Ross advances several reasons in support of its belief
that prejudgment interest is unavailable. It argues that the only
relevant instrument in writing would be the material contract
between Echo and Signature, but that no such contract is in
evidence and that Echo did not sue Signature. Lund-Ross also
points to the lack of any instrument in writing between Echo
and the project owners. It further argues that the construction
lien itself does not create the obligation to the claimant; rather,
the lien provides a remedy.
The plain language of the statute provides insight. As set
forth above, interest shall be allowed “on money due on
any instrument in writing.” 51 An “instrument” is “[a]n object,
device, or apparatus designed or used for a particular purpose
or task.” 52 An alternative definition, specific to the legal realm,
49
See, Payless Bldg. Ctr. v. Wilmoth, 254 Neb. 998, 581 N.W.2d 420 (1998);
Blue Tee Corp. v. CDI Contractors, Inc., 247 Neb. 397, 529 N.W.2d 16
(1995); Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465
(1993).
50
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212
(2020).
51
§ 45-104.
52
See “Instrument,” Oxford English Dictionary Online, https://www.oed.
com/view/Entry/97158 (last visited Oct. 24, 2022).
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is “[a] formal legal document entailing rights and obligations,
such as a contract, deed, legislative act, etc.; any document
formally drawn up so as to have legal effect.” 53 A construction
lien fits within these definitions. That leads to the next ques-
tion: Is money due on the lien? Because the right to recover
money that was due on an underlying contract has essentially
transferred to the lien, the answer is yes.
Further, this court has previously allowed prejudgment inter-
est under § 45-104 in connection with mechanics’ liens. In
Walker v. Collins Construction Co., 54 we cited Comp. Stat.
§ 45-104 (1929) and stated that “where a lien is claimed for an
account for material and labor furnished for the construction
of a building, in the absence of an agreement to the contrary,
interest may be reckoned only from a date six months after
the last item.” 55 We thus allowed prejudgment interest to the
extent that lienors were entitled to liens. In O’Keefe Elevator
v. Second Ave. Properties, 56 we determined that a party who
brought an action to foreclose its mechanic’s lien was entitled
to prejudgment interest under § 45-104 because money was
“‘due and withheld by unreasonable delay of payment.’”
[19] We conclude an award of prejudgment interest in an
action to foreclose a construction lien is authorized under
§ 45-104. At oral argument, counsel for Echo provided no
rationale for interest to begin running before the filing of the
lien. We agree that any prejudgment interest would begin run-
ning on the date of recording the construction lien. That is the
date used by the district court in case No. S-21-770, and we
affirm its award of prejudgment interest.
[20] In connection with Echo’s cross-appeal, we conclude
that the court in cases Nos. S-21-729 and S-21-730 erred by
53
Id.
54
Walker v. Collins Construction Co., 121 Neb. 157, 236 N.W. 334 (1931).
55
Id. at 160, 236 N.W. at 336.
56
O’Keefe Elevator v. Second Ave. Properties, 216 Neb. 170, 175, 343
N.W.2d 54, 57 (1984), disapproved in part on other grounds, Weyh v.
Gottsch, supra note 43.
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denying prejudgment interest. Section 45-104 specifies that
“interest shall be allowed.” As a general rule, the word “shall”
in a statute is considered mandatory and is inconsistent with
the idea of discretion. 57 We therefore reverse the denial of
prejudgment interest and remand cases Nos. S-21-729 and
S-21-730 to the district court with direction to award such
interest in conformity with this opinion.
3. Attorney Fees
(a) Standard of Review
[21] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 58
We turn to the issues raised by the parties in cases Nos.
S-21-729 and S-21-770.
(b) Case No. S-21-729
[22] In case No. S-21-729, the court overruled Echo’s
request for attorney fees. On cross-appeal, Echo assigns error
to that denial. As a general rule, attorney fees and expenses
may be recovered in a civil action only where provided for
by statute or when a recognized and accepted uniform course
of procedure has been to allow recovery of attorney fees. 59
Echo claims attorney fees were appropriate under two statutes,
one—§ 52-157(3)—contained within the Act, and the other—
Neb. Rev. Stat. § 44-359 (Reissue 2021)—found in the chapter
of the Nebraska Revised Statutes addressing insurance. We
examine each statute.
(i) § 52-157
Echo contends that § 52-157(3) permitted an award of attor-
ney fees. After recalling principles of statutory construction,
we examine the language of the statute.
57
Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
58
McGill Restoration v. Lion Place Condo. Assn., supra note 41.
59
North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195 (2022).
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[23,24] When construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense. 60 In construing
a statute, the court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to
be served, and then place on the statute a reasonable construc-
tion which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose. 61
Section 52-157 is titled “Remedies for wrongful conduct.”
Although a section head or title does not constitute any part of
the law, 62 the title fits the statutory language. The first subsec-
tion authorizes damages “[i]f a person is wrongfully deprived
of benefits to which he or she is entitled under [the Act] by
conduct other than that described in section 52-156.” 63 The sec-
ond subsection authorizes damages “[i]f in bad faith a claimant
records a lien, overstates the amount for which he or she is
entitled to a lien, or refuses to execute a release of a lien.” 64
The third and final subsection specifies that damages awarded
under § 52-157 “may include the costs of correcting the record
and reasonable attorney’s fees.” 65
We do not interpret § 52-157 as authorizing attorney fees
in every action involving foreclosure of a construction lien.
Notably, the statute authorizes fees as part of “[d]amages
awarded under this section.” 66 We do not read this language
as authorizing a fee award to a prevailing party for any action
under the Act.
60
Ag Valley Co-op v. Servinsky Engr., supra note 5.
61
Id.
62
Neb. Rev. Stat. § 49-802(8) (Reissue 2021).
63
§ 52-157(1) (emphasis supplied).
64
§ 52-157(2) (emphasis supplied).
65
§ 52-157(3).
66
Id. (emphasis supplied).
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This reading of the statute is consistent with the comments
to a uniform act. Nebraska’s Act is based on the Uniform
Simplification of Land Transfers Act. 67 A comment to the sec-
tion of that uniform act which corresponds to § 52-157 pro-
vides examples of wrongful deprivation which would lead to
liability under the section:
(1) owner contracts under incorrect name so that claim-
ants are misled as to name in which real estate is held
which causes them to record under incorrect name with
resulting failure to secure priority against a third party;
(2) prime contractor furnishes incorrect owner name with
same result; (3) owner or prime contractor furnishes
incorrect description of real estate with resultant mis-
taken recording by claimant; (4) misstatement by prime
contractor as to amount of contract price or payment
thereof which induces claimants not to record lien; (5)
false or bad faith determination of damages from a
prime contractor’s breach which reduces the owner’s lien
liability. 68
The comment demonstrates that wrongful deprivation requires
something more than merely having to foreclose on a construc-
tion lien. And here, Echo has not alleged conduct similar to
that set forth in the comment. Instead, Echo highlights that
there was no genuine dispute as to the amount of its claim or
its right of recovery.
We cannot say that Echo was wrongfully deprived of benefits
under the Act. The Act authorized Echo to obtain a construc-
tion lien, which Echo obtained. The Act authorized foreclosure
of a lien, which Echo pursued. Echo alleged no wrongful con-
duct by Lund-Ross. In a case where a contractor successfully
foreclosed a construction lien, we stated that the contractor
received all of the benefits to which it was entitled under the
67
See Lincoln Lumber Co. v. Lancaster, supra note 8.
68
Unif. Simplification of Land Transfers Act § 5-403, comment 1, 14 U.L.A.
564 (2021).
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Act and, thus, was not entitled to relief under § 52-157. 69 To
the extent a decision by the Nebraska Court of Appeals 70 can
be read as authorization for attorney fees under § 52-157 wher-
ever a party prevails on a construction lien claim and foreclo-
sure, we disapprove it.
Accordingly, we find no error by the court in failing to
award attorney fees under § 52-157 in case No. S-21-729.
Next, we turn to the other statute that Echo contends autho-
rized an award of attorney fees.
(ii) § 44-359
Echo argues that attorney fees were mandated under
§ 44-359. That statute states:
In all cases when the beneficiary or other person
entitled thereto brings an action upon any type of insur-
ance policy, except workers’ compensation insurance, or
upon any certificate issued by a fraternal benefit soci-
ety, against any company, person, or association doing
business in this state, the court, upon rendering judg-
ment against such company, person, or association, shall
allow the plaintiff a reasonable sum as an attorney’s fee
in addition to the amount of his or her recovery, to be
taxed as part of the costs. If such cause is appealed, the
appellate court shall likewise allow a reasonable sum as
an attorney’s fee for the appellate proceedings, except
that if the plaintiff fails to obtain judgment for more
than may have been offered by such company, person, or
association in accordance with section 25-901, then the
plaintiff shall not recover the attorney’s fee provided by
this section. 71
69
See Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502
(2001).
70
See Model Interiors v. 2566 Leavenworth, LLC, 19 Neb. App. 56, 809
N.W.2d 775 (2011).
71
§ 44-359 (emphasis supplied).
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Echo argues that a surety bond is an insurance policy for pur-
poses of § 44-359. We need not decide that issue here. There is
a fatal flaw to Echo’s argument.
The flaw is that Echo did not “bring[] an action upon”
the surety bond. Echo brought an action to foreclose its con-
struction lien. It was not until 2 months later that Lund-Ross
obtained the surety bond to substitute as collateral. And the
surety company was never brought in as a party in these
proceedings.
Echo argues that once it posted the lien release bond, thereby
transferring its claims from the property to the bond, the action
became one on the bond. We disagree. Had Lund-Ross instead
deposited “a sum of money in cash, certified check, or other
bank obligation” 72 to release the real estate from the lien, we
would not term the action as one on a deposit. The shifting of
the lien from the property to the collateral substitute does not
create an entitlement to attorney fees that would not other-
wise exist.
Cases involving bonds where we have allowed attorney fees
under § 44-359 demonstrate the contrast in circumstances.
We allowed attorney fees under a predecessor statute 73 to
§ 44-359 when a plaintiff sued a surety company which was
the surety on a bond. 74 In other words, the plaintiff brought an
action upon the surety bond. Similarly, we allowed fees under
§ 44-359 in a suit against an insurance company for recovery
under a motor vehicle dealer’s bond where the insurance com-
pany was the surety. 75 In a case where a drilling company sued
a subcontractor and the bonding companies for the general
contractor, we determined that attorney fees were authorized
72
§ 52-142(1)(a).
73
See Comp. Stat. § 44-346 (1929).
74
See City of Scottsbluff v. Southern Surety Co., 124 Neb. 260, 246 N.W. 346
(1933).
75
See Adams Bank & Trust v. Empire Fire & Marine Ins. Co., 244 Neb. 262,
506 N.W.2d 52 (1993).
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under § 44-359. 76 We explained, “It is clear in this case that
[the drilling company] did sue the bonding companies of the
principal contractor, and recovered judgment against them.” 77
But that is not the situation before us. We conclude that fees
are not authorized under § 44-359.
As an aside, we note that similar to § 44-359, a statute
within the Act 78 mandates attorney fees for a judicial pro-
ceeding brought on a surety bond. When the requirements of
§ 52-141 are met, no construction lien attaches to the real
estate and a claimant may proceed directly against the surety.
But no one contends that § 52-141 has application here, and we
conclude that it is not implicated.
In case No. S-21-729, we find no error by the court in not
awarding attorney fees.
(c) Case No. S-21-770
(i) Additional Facts and Findings
With respect to attorney fees, an attorney representing Echo
submitted an affidavit stating that a significant portion of the
work performed was applicable in all three cases, particularly
briefing, discovery, and a deposition. The attorney proposed
“accumulat[ing] all time and apply[ing] it to each based on the
pro rata share of the demand.” Echo set forth a table show-
ing the demand in each case and the corresponding pro rata
share of the demand. It showed that in case No. S-21-770,
the demand was $296,407.73 and the pro rata share was 87
percent. In case No. S-21-730, the demand was $32,781.03,
so the pro rata share was 9.6 percent. In case No. S-21-729,
the demand was $11,604.46, making the pro rata share 3.4
percent. According to the affidavit, the total fees incurred for
all three cases against Lund-Ross amounted to $41,607.50;
76
Rieschick Drilling Co. v. American Cas. Co., 208 Neb. 142, 303 N.W.2d
264 (1981).
77
Id. at 154, 303 N.W.2d at 271.
78
§ 52-141(6).
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thus, the pro rata share of fees for case No. S-21-770 totaled
$36,198.53. A document showing all time entries incurred in
the three cases was attached to the affidavit.
The court found Echo’s methodology to be appropriate and
awarded Echo attorney fees pursuant to § 52-157(3). The court
agreed with Echo that § 44-359 provided an additional legal
basis for attorney fees, reasoning that the surety bond qualified
as an insurance policy under § 44-359 and that Echo was a
beneficiary to that surety bond. Although the court stated that
it awarded Echo $36,198.53 in attorney fees, when it specifi-
cally set forth the final judgment, the court awarded attorney
fees of $41,607.50—the total for all three cases.
(ii) Discussion
On appeal, Lund-Ross argues that the court erred in case
No. S-21-770 by awarding fees because (1) it awarded the fees
incurred in all three cases rather than the proportionate share
requested and (2) it awarded fees incurred entirely in separate
matters. Echo does not dispute that the court’s order contained
the errors alleged.
[25,26] Lund-Ross does not allege or argue that the attorney
fee award was not statutorily authorized. Absent plain error,
an appellate court considers only an appellant’s claimed errors
that the appellant specifically assigns in a separate “assign-
ment of error” section of the brief and correspondingly argues
in the argument section. 79 But because we above concluded
that neither § 44-359 nor § 52-157 authorized the award of
attorney fees under the circumstances, allowing the award to
stand would constitute plain error. Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. 80 We therefore reverse the
award of attorney fees in case No. S-21-770.
79
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
80
North Star Mut. Ins. Co. v. Miller, supra note 59.
- 756 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
(d) Case No. S-21-730
In case No. S-21-730, the district court awarded attorney
fees of $3,994.32 under § 52-157(3). Although neither party
challenged the award on appeal, we must reverse it. For the
same reasons discussed above, the award under § 52-157(3)
was erroneous and allowing it to stand would be plain error.
Accordingly, we reverse the award of attorney fees in case
No. S-21-730.
VI. CONCLUSION
In all three appeals, we find no abuse of discretion by the
court in entering summary judgment and not granting equitable
relief. In cases Nos. S-21-730 and S-21-770, we find no error
by the court in entering judgment in an amount greater than the
amount of the surety bond. And in case No. S-21-770, we con-
clude that the court did not err in assessing judgment in excess
of the posted surety bond against Lund-Ross.
We conclude that prejudgment interest in an action to fore-
close a construction lien is authorized under § 45-104. Thus, in
cases Nos. S-21-729 and S-21-730, we reverse the denial and
remand with direction to award prejudgment interest in con
formity with this opinion.
Finally, we determine that neither § 44-359 nor § 52-157
authorize attorney fees under the circumstances presented in
these cases. We therefore reverse the award of such fees in
cases Nos. S-21-730 and S-21-770.
Judgment in No. S-21-729 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-730 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-770 affirmed in part
and in part reversed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487706/ | NOT DESIGNATED FOR PUBLICATION
No. 125,035
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
MICHAEL A. HOLMES,
Appellant,
v.
HEATHER M. GAGEL,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; JACQUELYN E. ROKUSEK, judge. Opinion filed November
18, 2022. Affirmed.
Christina E. Gondring, of Berkowitz Cook Gondring Driskell & Drobeck, LLC, of Kansas City,
Missouri, for appellant.
Sarah Carmody, of Sarah Carmody Law, LLC, of Overland Park, for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Michael A. Holmes appeals the district court's denial of his "Motion
To Terminate Maintenance, Or, In The Alternative, To Decrease Maintenance." The
parties entered into a Property Settlement Agreement—which was approved by the
district court—in which Holmes agreed to pay his ex-wife, Heather M. Gagel,
maintenance payments until October 30, 2023, unless one of the parties died or Gagel
remarried prior to that date. On appeal, Holmes contends that the district court erred by
1
not terminating or decreasing his agreed-upon maintenance obligation. Finding no abuse
of discretion, no error of law, and no error of fact, we affirm the district court's decision.
FACTS
The parties are well aware of the underlying facts. As such, we will not repeat
them in detail in this opinion. Instead, we will briefly summarize the facts in this section
of the opinion and will address additional facts in the analysis section that are material to
the limited issue presented on appeal.
This divorce action commenced in October 2018. In his domestic relations
affidavit (DRA), Holmes stated that his gross income was $10,944 per month, his net
income was $8,641 per month, and his monthly expenses were $7,421. In Gagel's DRA,
she stated that her gross income was $1,433.17 per month, her net income was $1,252.92
per month, and her monthly expenses were $3,893.45.
Gagel requested that Holmes pay her maintenance in the amount of $2,239.25 per
month for a period of 60 months. In response, Holmes asked the district court to deny
Gagel's request for maintenance. Significant to the issue presented on appeal, the parties
voluntarily entered into a property settlement agreement that addressed the issue of
maintenance. In entering into the agreement, the parties represented to the district court
that it was fair, just, and equitable. Likewise, the parties acknowledged that the terms of
the agreement represented a negotiated settlement.
Specifically, the agreement contained the following provision regarding the
payment of maintenance:
"The parties have further agreed that [Gagel] is in need of maintenance. The
parties have agreed that based on what [Holmes] was earning at Cerner, he shall pay
maintenance to [Gagel] in the amount of $1,900.00 per month.
2
"The parties further agree that the maintenance in the amount of $1,900.00 per
month shall be paid beginning on May 1, 2019 and each consecutive month thereafter
until the first to occur of the following: either parties' death; [Gagel's] remarriage; or
October 30, 2023. [Holmes] has not waived his rights to claim a change of circumstance
in the future regarding the reduction of the amount of maintenance or the duration of
maintenance, as set forth by statute, including his loss of employment in March of 2019."
At the time the parties entered into the property settlement agreement, Holmes was
temporarily unemployed. As a result, he had no reported income at the time the parties
reached their agreement regarding the amount and length of maintenance. Instead, the
parties based the amount of maintenance on the amount Holmes earned prior to the filing
of the petition for divorce. Fortunately, Holmes was reemployed with Netsmart
Technologies in August 2019 earning a slightly decreased income than he previously had
earned. Specifically, his gross monthly income decreased from $10,944 to $10,358.
On May 20, 2019, the district court entered a decree of divorce. At the same time,
the district court also approved the property settlement agreement signed by the parties.
Specifically, the district court found the property settlement agreement was voluntarily
entered into by the parties and determined the terms of the agreement to be fair, valid,
just, and equitable. For the next 16 months, Holmes made the maintenance payments in
the amount agreed upon by the parties.
Claiming a material change in circumstances, Holmes filed a "Motion To
Terminate Maintenance, Or, In The Alternative, To Decrease Maintenance" on
September 30, 2020. In his motion, Holmes alleged that his monthly income had
decreased, that Gagel's income had increased, and that Gagel was residing in a new home
with her boyfriend resulting in a decrease in the amount of her expenses. According to
Holmes, these factors "render the current maintenance order unreasonable and in need of
termination." In the alternative, Holmes argued that the amount of maintenance "should
3
be modified in accordance with the present incomes and financial circumstances of the
parties."
In response, Gagel pointed out that none of the agreed-upon events for the
termination of maintenance prior to October 30, 2023, had occurred. She also pointed out
that cohabitation was not listed in the property settlement agreement as one of the events
triggering termination of Holmes' maintenance obligation. She also argued that
modification of the amount of maintenance was unnecessary because Holmes' income
had not decreased so substantially as to constitute a material change in circumstances.
Similarly, Gagel argued that maintenance is transitional in nature and her income had not
increased so substantially as to justify modification in the amount of maintenance.
After completion of discovery, the district court held an evidentiary hearing via
Zoom on June 2, 2021. At the hearing, the district court heard Holmes' testimony and 20
exhibits were admitted into evidence. The exhibits included Gagel's interrogatory
responses, Gagel's bank statements, Holmes' amended DRA, Gagel's current DRA, and
Gagel's current pay stubs. The district court also reviewed trial briefs submitted by the
parties and the property settlement agreement entered into by the parties. After
consideration of the evidence presented, the district court denied Holmes' motion on the
record. Subsequently, on July 13, 2021, the district court entered a journal entry
formalizing its previous ruling from the bench.
In ruling against Holmes' motion, the district court found that the parties had
voluntarily agreed that the payment of maintenance in the amount of $1,900 a month was
fair, just, and equitable. The district court also found that the parties had agreed to three
specific events that would trigger termination of the maintenance obligation. Based on
the representations of the parties and the district court's review of the property settlement
agreement, the maintenance obligation became part of the decree of divorce. Moreover,
4
the district court determined that none of the triggering events for termination of
maintenance had occurred.
Turning to Holmes' allegation of a material change in circumstances, the district
court found:
"The material change in circumstance that would be required in order to modify the
maintenance is not predicated upon whether or not Ms. Gagel has a significant other who
may be contributing to her household income at this time. If the parties had contemplated
a material change of circumstances to include one or—whether or not Ms. Gagel moved
in with someone, that would have been set forth in the agreement under the subsection
related to maintenance, but that was not part of what was contemplated by the parties.
Instead it was a change of circumstance, which according to the statute, would be a
material change of circumstance.
"When you look at this case, the change in circumstances that have been argued
by Mr. Holmes in this particular matter include the fact that his income has decreased by
5.4 percent. Today's testimony was, I believe, 7 percent, although from the time of the
divorce, his income has increased from an amount of 0 to over $120,000. So the fact that
his income may have been decreased from the amount that he earned prior to the divorce
is irrelevant here today.
"The fact that Respondent started a new job and her income increased—well, the
goal in maintenance is to allow the other party to equalize over time and be able to
establish themselves and earn their own income. The amount of maintenance that was
due was due through May 1st, 2019, until October 30th of 2023. It was not a significant
period of time but enough time to allow Ms. Gagel to try to get back on her feet, find
employment and start earning additional income.
....
"So what the Court has to consider is what is in this agreement because the Court
is bound by the agreement before it in considering whether or not this is a material
5
change in circumstance. A review of case law would indicate that in this particular case,
unlike the cases that are cited, there hasn't been a material change in circumstance which
would warrant either a decrease in the amount of maintenance that the parties agreed was
fair, just and equitable at a time when Mr. Holmes had no income, particularly in light of
the fact that he now has an income over $120,000 a year.
"The material change in circumstance would have to be one that would warrant a
change at this point in time. The fact that Ms. Gagel has money in her account—there has
been no evidence as to where that income came from. There has been no information
pertaining to whether or not she received that income from someone else or perhaps
inherited income. The Court has no idea where that money came from, but the whole goal
is for her to get back on her feet. That is why the parties contemplated the maintenance
when they agreed to $1,900 a month in the contract that both of them signed with the
provision unless there was a change of circumstance.
"Quite honestly looking at the contract, considering the fact that Mr. Holmes was
unemployed at the time that he signed this agreement, the only material change in
circumstance that the Court could fathom would be if there was some reason Mr. Holmes
was unable to work at all or was disabled to the [degree] that he couldn't work and
couldn't pay the maintenance. Because at the time he signed the agreement, he signed the
agreement with no income and now he has a substantial income from which he can pay
the maintenance.
"So the Court would find that based on the agreement of the parties that the Court
is bound by, that none of the conditions set forth in the property settlement agreement as
it pertains to maintenance have been met in that both parties are still living, Respondent
has not remarried, we haven't reached October 30th of 2023, and there has been no
change in circumstance which would warrant a reduction or termination of maintenance
at this time."
Thereafter, Holmes filed a timely notice of appeal to this court. However, he failed
to docket his appeal in a timely manner. Nevertheless, this court granted his motion to
6
docket the appeal out of time over Gagel's objection. Now that the issue presented has
been fully briefed by the parties, this appeal is ready for decision.
ANALYSIS
On appeal, the sole issue presented is whether the district court erred by failing to
terminate or decrease the maintenance obligation agreed upon by the parties. Holmes
argues that the decision of the district court "was heavily against the weight of the
evidence." In response, Gagel argues that although the agreed upon maintenance may be
terminated for three specific reasons, none of those reasons have occurred. In addition,
she argues that the district court appropriately exercised its discretion in concluding that
there was not a material change in circumstances warranting a decrease in the amount of
the monthly maintenance payments.
Standard of Review
Generally, a district court has wide discretion over spousal maintenance. In re
Marriage of Hair, 40 Kan. App. 2d 475, 483, 193 P.3d 504 (2008). Accordingly, a
judgment regarding maintenance should be disturbed on appeal only if there was a clear
abuse of discretion. 40 Kan. App. 2d at 483 (citing In re Marriage of Day, 31 Kan. App.
2d 746, 758, 74 P.3d 46 [2003]). A judicial action constitutes an abuse of discretion only
if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based
on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018).
As a general rule, we review a district court's decision whether to modify
maintenance to determine if there is substantial competent evidence to support the ruling.
In re Marriage of Strieby, 45 Kan. App. 2d 953, 961, 255 P.3d 34 (2011). "Substantial
competent evidence constitutes such legal and relevant evidence that a reasonable person
might accept as sufficient to support the trial court's conclusion." In re Marriage of Knoll,
7
52 Kan. App. 2d 930, 935, 381 P.3d 490 (2016). In determining whether there is
substantial competent evidence, we are not to reweigh the evidence nor are we to make
credibility determinations. 52 Kan. App. 2d at 935.
To the extent that it is necessary for us to interpret the terms of a property
settlement agreement voluntarily entered into by the parties, our review is unlimited. 52
Kan. App. 2d at 939. In such cases, our role is to attempt to "'ascertain and give effect to
the mutual intention of the parties at the time the contract was made.'" 52 Kan. App. 2d at
940 (quoting Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 [1976]). When the
intent of the parties is ascertainable from the plain language of the agreement, we must
enforce the parties' agreement as written. Knoll, 52 Kan. App. 2d at 939-40.
In addition, we exercise unlimited review over issues involving statutory
interpretation. Strieby, 45 Kan. App. 2d at 976. Absent an ambiguity, the plain language
controls our interpretation of a statute. Only where a statute's language is ambiguous are
we to attempt to determine the Kansas Legislature's intent by applying the cannons of
statutory construction. Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647
(2019). Under the canons of statutory construction, we must avoid unreasonable statutory
interpretations that would lead to absurd results. In re Marriage of Traster, 301 Kan. 88,
98, 339 P.3d 778 (2014).
Termination of Maintenance
When the parties agree upon spousal maintenance as part of their property
settlement agreement that is incorporated into their divorce decree entered by the district
court, the obligation can only be terminated or modified "as prescribed by the agreement
or as subsequently consented to by the parties." In re Marriage of Ehinger, 34 Kan. App.
2d 583, 587, 121 P.3d 467 (2005); see also In re Marriage of Vandenberg, 43 Kan. App.
2d 697, 710, 229 P.3d 1187 (2010). Here, it is undisputed that Holmes and Gagel
8
voluntarily entered into a property settlement agreement that included a maintenance
provision. Furthermore, it is undisputed that the district court incorporated the agreement
into the parties' divorce decree.
The plain and unambiguous language of the parties' property settlement agreement
provided that Holmes was to pay maintenance to Gagel in the amount of $1,900 per
month from May 1, 2019, until October 30, 2023, unless one of the parties died or Gagel
remarried. We find this provision to be clear and unambiguous. Moreover, we find the
district court's determination that none of these events has occurred to be supported by
substantial competent evidence. Consequently, we conclude that the district court
appropriately found that Holmes' request for termination of his maintenance obligation
should be denied.
Modification of Maintenance
In the alternative, Holmes' motion requested a decrease in the amount of his
monthly maintenance obligation. Holmes is allowed to seek a modification in the amount
or duration of maintenance under the terms of the property settlement agreement to the
extent allowed by statute. Pursuant to K.S.A. 2021 Supp. 23-2903, a district court has the
discretion to "modify the amounts or other conditions for the payment of any portion of
the maintenance originally awarded that has not already become due . . . ."
This court has found that the district court has the discretion to modify
maintenance under K.S.A. 2021 Supp. 23-2903 where there has been a material change in
circumstances. See Ehinger, 34 Kan. App. 2d at 589-90. However, there is no precise
definition of what constitutes a material change in circumstances as it relates to the
modification of spousal maintenance. In re Marriage of Hedrick, 21 Kan. App. 2d 964,
968, 911 P.2d 192 (1996). However, in other contexts—such as modification of a child
custody order—it has been held that "[a] material change in circumstances must be of
9
such a substantial and continuing nature as to make the terms of the initial decree
unreasonable." In re Marriage of Nelson, 34 Kan. App. 2d 879, 887, 125 P.3d 1081
(2006) (citing Johnson v. Stephenson, 28 Kan. App. 2d 275, 280, 15 P.3d 359 [2000]).
One of the relevant factors to consider in determining whether there has been a
material change in circumstances that is sufficient to justify the modification of a
maintenance award is to compare the financial condition of the parties at the time the
property settlement agreement was reached with their financial condition at the time the
modification request is made. See Strieby, 45 Kan. App. 2d at 967. Nevertheless, "a
material change in circumstances is not an event already considered by the separation
agreement." In re Marriage of Freeman, No. 123,568, 2022 WL 1123358, at *13 (Kan.
App. 2022) (unpublished opinion). Specifically, the panel in Freeman found that "a
material change in circumstances is something that changes the dynamics between the ex-
spouses so that the continuation of maintenance payments is unfair." 2022 WL 1123358,
at *13. An example of such unfairness can be found in Ehinger, where a panel of this
court affirmed the district court's granting of a motion to reduce a maintenance award of
$1,200 a month where the ex-husband's gross monthly income dropped from about
$9,000 to $400. 34 Kan. App. 2d at 590.
Here, contrary to Holmes' claims, the record on appeal reflects that the district
court carefully heard the evidence and arguments presented by the parties. In particular, a
review of the record reveals that the district court properly took into consideration the
respective financial situations of the parties. The district court expressly explained in its
ruling that it had "considered the information pertaining to the amount of income the
parties have and the amount of expenses that the parties have, but those are factors that
are fluid, that can be changed."
Furthermore, the district court determined that, "the goal in maintenance is to
allow the other party to equalize over time and be able to establish themselves and earn
10
their own income." The district court also found that "the whole goal is for [Gagel] to get
back on her feet" which was "why the parties contemplated the maintenance when they
agreed to $1,900 a month in the contract that both of them signed with the provision
unless there was a change of circumstance."
We agree with the district court that "[t]he purpose of maintenance is to provide
for the future support of the divorced spouse." Vandenberg, 43 Kan. App. 2d 697, Syl.
¶ 5. Although Gagel's income has increased significantly since the divorce, the district
court found that this does not make the terms of the property settlement agreement
unreasonable or unfair. Rather, a reasonable person could conclude—as did the district
court—that the parties' agreement that Holmes pay maintenance for a period of
approximately four years is serving its purpose by allowing Gagel the ability to provide
for herself in the future.
Likewise, there is substantial competent evidence in the record to support the
district court's finding that Holmes had no reported income at the time the property
settlement agreement was entered into by the parties. As a result, it was reasonable for
the district court to conclude that Holmes' income had not decreased since that time but
had actually increased. Additionally, even if we accept Holmes' argument on its face, the
record shows that his income had only decreased by three percent at the time of the
hearing. Thus, a reasonable person could conclude that there has not been a substantial
decrease in Holmes' income to warrant a finding that the maintenance obligation
voluntarily agreed to by the parties is unfair.
In summary, we find that the district court's decision is supported by substantial
competent evidence. Likewise, we do not find the district court's decision to be
unreasonable nor do we find it to be based on an error of law or fact. In particular, we
find the district court's determination that Holmes failed to establish a material change in
circumstances that was substantial and continuing in nature to be supported by the record.
11
We, therefore, conclude that the district court did not abuse its discretion in denying
Holmes' motion.
Affirmed.
12 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487700/ | IN THE SUPREME COURT OF IOWA
No. 20–0786
Submitted September 14, 2022—Filed November 18, 2022
JAMES FARNSWORTH II,
Appellee,
vs.
STATE OF IOWA,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cerro Gordo County,
Christopher C. Foy, Judge.
Both the defendant and the State seek further review of a court of appeals
decision in a postconviction-relief proceeding that declined to disturb the
defendant’s second-degree murder conviction but ordered the return of a
previously-forfeited $50,000 cash bond. DECISION OF COURT OF APPEALS
AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which all participating
justices joined. May, J., took no part in the consideration or decision of the case.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
2
MANSFIELD, Justice.
I. Introduction.
A decade ago, a melee between two young men resulted in the death of one
of them. The defendant, who had pulled a knife and fatally stabbed the decedent,
was charged with first-degree murder; he claimed self-defense. To obtain pretrial
release, the defendant’s family had to post a $200,000 cash bond, with $50,000
subject to the condition that it would be forfeited for restitution purposes if the
defendant were convicted. Following a jury trial, the defendant was found guilty
of the lesser included offense of second-degree murder. The $50,000 was
forfeited to pay victim restitution.
The defendant applied for postconviction relief, raising several claims of
ineffective assistance of counsel. The district court denied the application. The
court of appeals affirmed on the issues relating to the defendant’s conviction but
reversed as to the bond forfeiture order. It found that the defendant’s counsel
had been ineffective in failing to challenge what it viewed as an unlawful bond
forfeiture order. The court of appeals remanded for return of the $50,000 to the
defendant.
We granted both parties’ applications for further review. In our discretion,
we let the court of appeals decision stand as the final appellate decision on all
issues relating to the defendant’s conviction. We reverse the court of appeals
decision on the bond forfeiture issue. While we do not approve of the forfeiture
order that was entered in this case, we hold that postconviction relief is not a
way to overturn that order. Generally, bond forfeiture orders are civil matters
3
separate from the actual criminal proceeding. And to the extent that the
forfeiture order here could be deemed part of the defendant’s sentence, it
nonetheless “relat[es] to restitution” and thus cannot be the basis for
postconviction relief. See Iowa Code § 822.2(1)(g) (2015).
II. Facts and Procedural History.
In 2014, the court of appeals affirmed James Farnsworth’s second-degree
murder conviction, summarizing the relevant facts as follows:
Several witnesses to the details of this incident testified, each
relating slightly different facts depending on their proximity to
certain actions. None, however, contradicted another. Based on this
testimony, the jury could have found the following facts. On April
13, 2012, Farnsworth, his girlfriend, Victoria Miller, and several
others were at the apartment of Echo Dority. The group then decided
to go to a local bar. At the bar, Miller received a text of a smiley face
from her ex-boyfriend, Ian Decker, who is also the father of her child.
Farnsworth and Miller argued, and Farnsworth slapped Miller.
Miller then told Farnsworth she was “done with him” and that he
should leave. With the encouragement of others in the group,
Farnsworth left.
Not long after that, the group decided to go back to Dority’s
apartment. Farnsworth was waiting around the corner from the bar.
Miller ignored Farnsworth and others told him to leave. Undeterred,
Farnsworth followed the group, which continued to largely ignore
his presence. When Farnsworth approached Miller, Dority kicked
Farnsworth in the crotch, causing him to fall to the ground.
Farnsworth got up and ran to Dority’s apartment, arriving ahead of
the group.
Dority did not allow Farnsworth to enter her apartment. In an
effort to talk with Miller, Farnsworth sent her numerous text
messages. Miller replied, telling him to leave and that “[e]veryone
wants to beat the f * * * out of you.” Farnsworth threatened to kill
himself and walked away from the door and out of sight of those in
the apartment.
Dority and Miller went outside the apartment to wait for
Decker, whom Dority had invited. After Decker’s arrival, Farnsworth
came from around the corner and made a request to speak with
4
Miller, which she refused. Miller and Decker told Farnsworth to
leave, so he got in his car and drove quickly away. However, a few
minutes later, Farnsworth “came barreling back down the street” as
other guests, Alyssa Fullerton and Derek Wentworth, were leaving
the apartment. Miller and Wentworth told Farnsworth to leave.
Farnsworth approached Miller, and Wentworth stepped between the
two. After Miller informed Farnsworth she did not want to speak with
him, Farnsworth stated: “If Ian [Decker] tries anything, I’m going to
f * * * * * * stab him.”
Decker was standing around the corner of the apartment
building. Upon hearing Miller and Farnsworth arguing, Decker
appeared to be very angry. He walked around the corner and began
fighting with Farnsworth. It was not disputed that Decker threw the
first punch. Miller tried to warn Decker by yelling, “[S]top, [Decker],
he has a knife.” The two continued fighting and grappled on the
ground but both got back up. At one point, Decker was hunched
over Farnsworth, but Farnsworth was able to throw Decker off of
him. When Decker stood up, he lifted his shirt to reveal blood
streaming down his chest and onto the sidewalk. Decker collapsed;
Miller and Dority applied pressure to his chest wound. Farnsworth
stood there briefly, then got in his car and sped away. It was later
revealed Decker had been stabbed once in the ribs, once in the thigh,
and had a cutting wound on his left forearm. Although police and
paramedics quickly arrived, Decker died at the scene from the stab
wound in his side, which had pierced his heart.
Police stopped Farnsworth shortly after he drove away.
Farnsworth was cooperative and informed police the knife was in his
center console. When asked what happened, Farnsworth replied
Decker had punched him four or five times, prompting Farnsworth
to pull the knife from his pocket and “[fling] it around.” Although
Farnsworth had some visible injuries, he refused medical treatment
and was transported to the police station. Farnsworth later
complained about being dizzy, and was then taken to the hospital.
A neurological exam revealed the absence of a head injury, and
though the doctor thought perhaps Farnsworth’s nose was broken,
Farnsworth refused to have X-rays taken and declined further
treatment.
State v. Farnsworth, 2014 WL 2884732, at *1–2 (Iowa Ct. App. June 25, 2014)
(alterations in original) (footnote omitted).
5
Soon after the above-described events, Farnsworth was arrested by the
Mason City police and charged with first-degree murder. He was initially held in
jail on a $100,000 cash bond. Farnsworth applied for bond review, and a hearing
took place. After that, the bond was increased to $200,000 cash, but with the
proviso that $150,000 of the cash could be posted by a surety while $50,000 had
to be deposited in the defendant’s name. This requirement was intended to allow
the $50,000 to be applied immediately to restitution if the defendant were
convicted.
A month later, Farnsworth again sought bond review. He asked for
permission to post a surety bond instead of cash for the $150,000 that did not
have to be in his name. The State countered that Farnsworth should be required
to post an increased sum of $100,000 in cash bond under his own name. The
district court adopted neither suggestion and left the existing bail conditions in
place.
To meet those conditions, a $50,000 cash bond was posted in the
defendant’s name, while a bail bonding company posted the remaining
$150,000. The record indicates that the $50,000 came from Farnsworth’s family.
When the $50,000 was deposited, Farnsworth was required to agree as follows:
I authorize the Clerk of Court to use this bail bond to pay all fines,
surcharges, costs and victim restitution that I may be ordered to pay
by the District Court in the final judgment of this matter or any other
criminal judgment against me in Cerro Gordo County.
Farnsworth was released pending trial.
Trial began in the Cerro Gordo County Courthouse on January 14, 2013.
Farnsworth primarily relied on a defense of justification. Three days later, the
6
jury returned a verdict finding Farnsworth guilty of the lesser included offense
of second-degree murder. See Iowa Code § 707.3 (2012).
At Farnsworth’s March 8 sentencing hearing, the district court imposed a
sentence on the second-degree murder conviction of fifty years’ incarceration
with a mandatory minimum of 70%. See id.; id. § 902.12(1). The court added,
“I’ll enter an order separate from the sentencing order in regard to bond
disposition.” It continued, “Pursuant to Mr. Farnsworth’s bond receipt
agreement, I intend to forfeit the sums posted in his name for application toward
victim restitution.” The court further indicated that the parties would have ten
days to object to this procedure.
The court’s formal sentencing order, entered that day, directed Farnsworth
to pay $150,000 in pecuniary damages to Decker’s heirs at law pursuant to Iowa
Code section 910.3B and $14,972 to the crime victim compensation program. It
did not address Farnsworth’s bond payments.
Twelve days later, on March 20, the court entered an order as to the bond.
The order exonerated the $150,000 in cash bond posted by the bonding company
while stating that the court “intend[ed] to forfeit” the $50,000 in cash bond
posted in Farnsworth’s name “for application toward victim restitution.” The
clerk was directed to hold the latter funds in trust “until further order of the
court, which will enter upon the opening [of] a probate estate of Ian Decker, the
appointment of a conservator for the minor heir of Ian Decker, or the
establishment of a trust for the benefit of the minor heir of Ian Decker.” The
court’s order added, “In the absence of a written objection by either party, the
7
court will enter [an order forfeiting the $50,000 cash bond] on or after April 2,
2013.”
On April 4, noting the absence of any objection, the court ordered the
forfeiture of the $50,000. It directed that the funds be held in trust by the clerk
until further order of the court. Three months later, after being notified that a
trust had been formed for Decker’s minor heir with Miller as trustee, the court
ordered that the $50,000 be released to her as trustee.
Meanwhile, Farnsworth had appealed on March 14. That appeal was
transferred to the court of appeals, which affirmed Farnsworth’s conviction and
sentence in 2014. Specifically, the court of appeals rejected arguments that the
prosecutor had engaged in misconduct, that a Miranda violation had occurred
when an officer who apprehended Farnsworth was asked whether Farnsworth
had made statements that would support a defense of justification, and that a
prospective juror had been wrongfully stricken for cause at the State’s request.
In 2015, Farnsworth filed the present application for postconviction relief.
He raised a number of ineffective-assistance claims relating to Farnsworth’s
retained trial counsel, David Roth. It turned out that Roth had been engaged in
very significant financial improprieties at the time he was representing
Farnsworth. Roth took his own life in the fall of 2014 as the details of those
improprieties emerged.
Farnsworth’s ineffective-assistance claims included an allegation of
conflict of interest because Roth and his firm had represented Mason City and
some of its police officers. Farnsworth also alleged that Roth should have
8
retained a forensic pathologist who could have countered—or at least added
context to—the state medical examiner’s testimony that the fatal stab wound
had been inflicted in a “slightly downward” direction. In addition, Farnsworth
faulted Roth for not objecting to an instruction that allowed the jury to reject his
justification defense by finding that Farnsworth had started or continued the
incident which resulted in Decker’s death. In Farnsworth’s view, there was no
evidence that he had started or continued the incident. Farnsworth also claimed
ineffective assistance based on Roth’s failure to mention the “beyond a
reasonable doubt” burden of proof during closing argument. Farnsworth went
on to allege several other pretrial and trial errors, including a failure to assure
that witnesses were sequestered, a failure to convey a plea offer from the State
to Farnsworth, and an allegation of cumulative error.1 Finally, Farnsworth
claimed Roth had been ineffective in seeking review of the initial $100,000 cash
bond, which review resulted in a higher cash bond, and in not objecting to the
forfeiture of the $50,000 that had been posted in Farnsworth’s name.
The district court conducted a trial on Farnsworth’s postconviction-relief
application in 2019 and entered a ruling denying it several months later in 2020.
The district court’s ruling noted there was “nothing in the record . . . to show
that Roth or his law firm ever represented any of the police officers whom the
State called as trial witnesses against Farnsworth.” It pointed out that
Farnsworth’s forensic pathologist expert for the postconviction-relief proceeding
1The plea offer was for second-degree murder, the offense of which Farnsworth was
convicted. Farnsworth testified at the postconviction-relief trial that he would have rejected such
a plea offer.
9
did not criticize the State medical examiner’s conclusions and “does not appear
to shed much light on the relative positions of the combatants”; at most,
Farnsworth’s postconviction-relief expert took issue with statements made by
the prosecutor during closing argument. The court also found sufficient evidence
that Farnsworth had started or continued the incident resulting in the fatal
stabbing. Concerning Roth’s failure to mention the burden of proof during
closing argument, the district court agreed this was “unusual” but did not find
that it breached an essential duty. And the court rejected the various other
claims of pretrial and trial error.
Lastly, on the bond issue, the court found no breach of duty in the decision
to seek review of the initial $100,000 all-cash bond. Regarding the subsequent
bond forfeiture, the court noted that we did not decide State v. Letscher, 888
N.W.2d 880 (Iowa 2016), until 2016. It was then we held that district courts lack
authority to forfeit bail as a term of sentencing. Id. at 886–87. The district court
thus declined to find that Roth “breached an essential duty in his representation
of Farnsworth by failing to assert a position that had yet to be validated by any
appellate court in Iowa.” The district court also observed that the “issue of bond
is completely separate from and has no bearing on the trial or the verdict
returned by the jury.”
Farnsworth filed a motion to reconsider, amend, and enlarge findings,
which the district court overruled.
10
Farnsworth appealed, and we transferred the case to the court of appeals.
On November 3, 2021, the court of appeals affirmed the district court on all
issues but the bond issue. As to the bond, the court concluded as follows:
We need not address whether counsel breached an essential
duty in seeking bond review. The operative omission with respect to
the bond was counsel’s failure to object to the court’s application of
the cash portion to Farnsworth’s restitution obligation. See State v.
Letscher, 888 N.W.2d 880, 885, 887 (Iowa 2016) (“No statutory
sentencing provision exists in Iowa to authorize a court to forfeit
bail. . . . The disposition of pretrial bail money is not an authorized
part of sentencing, and therefore, a sentencing court is without
statutory authority to forfeit bail as a part of a sentence. Action
taken against bail must comply with the statutory terms and
conditions.”). Although the State correctly notes Letscher postdated
Farnsworth’s posting of his bond and counsel had no duty “to
foresee that result,” counsel did not require Letscher to argue that
no statutory authority supported the forfeiture of the cash bond for
restitution. Indeed, statutory authority in effect at the time said
precisely the opposite:
Upon the filing of the undertaking and the
certificate of the officer, or the certificate of the officer
alone if money has been deposited instead of bail, the
court or clerk shall immediately order return of the money
deposited to the person who deposited the same, or
order an exoneration of the surety.
Iowa Code § 811.8(2) (2015) (emphasis added). We conclude counsel
had a duty to object to the district court’s expressed intent to apply
the cash bond amount to his outstanding restitution obligation. We
further conclude Farnsworth was prejudiced by the omission, to the
tune of $50,000. We “return the case to the district court for the
clerk to disburse the bail money as required by law.” Letscher, 888
N.W.2d at 886.
(Omission in original.) At the conclusion of its opinion, the court of appeals
remanded for “return of that sum [(i.e., $50,000)] to Farnsworth.”
Both parties sought further review. We granted the applications and
directed supplemental briefing “addressing both the appellant’s ability to
11
challenge in a postconviction-relief action the district court’s forfeiture of his
appearance bond in this case and the court of appeals’ order to remand for the
clerk of court ‘to disburse the bail money as required by law.’ ”
III. Scope and Standard of Review.
“When we grant further review, we may exercise our discretion to let the
court of appeals decision stand as the final decision on particular issues.” State
v. Fogg, 936 N.W.2d 664, 667 n.1 (Iowa 2019). Here, while respecting the
vigorous advocacy of Farnsworth’s present counsel, we elect to let the court of
appeals decision stand as the final decision on all issues but the bond forfeiture.
The bond forfeiture question is a matter of statutory interpretation. We review
the district court’s interpretation for correction of errors at law. Sahinovic v.
State, 940 N.W.2d 357, 359 (Iowa 2020).
IV. Analysis.
The State does not claim that the forfeiture of the $50,000 cash bond
posted in Farnsworth’s name was proper. In other words, the State does not
argue that it was lawful to condition Farnsworth’s pretrial release on his posting
of bail money that could be redirected to pay fines, costs, and restitution if
Farnsworth were convicted. Nor does the State try to defend the actual order
forfeiting Farnsworth’s cash bond in order to pay restitution.
Our 2016 decision in Letscher is relevant here. 888 N.W.2d 880. There, we
reversed a sentencing order that required a convicted defendant to forfeit a
$2,000 cash appearance bond so it could be used to cover financial obligations
arising out of the defendant’s conviction. Id. at 887. We explained that bail exists
12
to assure the defendant’s appearance and protect public safety, not to secure
payment of financial obligations that might be imposed later if the defendant
were convicted. Id. at 884–87; see also Iowa Code § 811.1(3). As we stated,
“Under our law today, conditions on bail are only imposed to assure the
subsequent appearance of the defendant or protect the safety of others.”
Letscher, 888 N.W.2d at 886. And “the statutes governing a forfeiture of bail do
not authorize forfeiture as a term of sentencing.” Id. at 884.
We also took note of the state’s argument that the defendant had agreed
his bond could be forfeited to pay any financial obligations. Id. at 886 (“[T]he
State argues that the authority of the district court to order forfeiture at
sentencing was derived from the consensual nature of the terms of bail in this
case.”). Yet we concluded that “any issue of consent is not properly before us in
this appeal.” Id. “No record exists to reveal the circumstances behind the bond
form signed by Letscher,” we said. Id. We left open the possibility that the clerk
of court could seek to forfeit the bond based on the defendant’s written
agreement, subject to the defendant’s “opportunity to challenge the action in a
separate district court proceeding” with judicial review by writ of certiorari. Id.
In lieu of arguing that the forfeiture of the $50,000 cash bond was lawful,
the State raises several other grounds why the district court properly denied
postconviction relief in this area. First, the State contends that Farnsworth
cannot use postconviction relief to challenge the bond forfeiture because the
forfeiture was not a part of his sentence and was civil in nature. Second, the
State alleges that Farnsworth had no constitutional right to effective assistance
13
of counsel with respect to the bond forfeiture. Third, the State maintains that
reasonably competent counsel did not have a duty to challenge bond forfeiture
for payment of restitution until Letscher was decided. Lastly, the State argues
that it would be inequitable and unjust to try to recoup the money at this point
from the victim’s child and heir.
We will begin with the State’s first argument. Iowa Code section 822.2(1)(a)
(2015) authorizes a defendant to file an application for postconviction relief when
“[t]he conviction or sentence was in violation of the Constitution of the United
States or the Constitution or laws of this state.” Clearly, Farnsworth’s present
attack on the bond forfeiture isn’t an attack on his conviction, so to be eligible
for postconviction relief Farnsworth must be attacking his sentence. Was the
district court’s April 4, 2013 “order for disposition of bond” part of Farnsworth’s
“sentence”? That order directed that the cash bond posted by Farnsworth be
forfeited and applied toward victim restitution. Thus, it could potentially be
viewed as a bond order or as a restitution order, or as something of both.
The State insists that bond forfeiture orders are civil in nature and not a
proper subject of a postconviction-relief application. It directs us to State v.
Dodd, where the court of appeals said, “Proceedings for forfeiture of bail and
judgment thereon are civil in nature.” 346 N.W.2d 42, 43 (Iowa Ct. App. 1984).
There are several precedents saying the same thing. See, e.g., State v. Costello,
489 N.W.2d 735, 737–38 (Iowa 1992) (“[P]roceedings for forfeiture of bail and
judgment therein are civil actions . . . .” (quoting State v. Zylstra, 263 N.W.2d
529, 531 (Iowa 1978))); State v. Marrufo-Gonzalez, 806 N.W.2d 475, 480 (Iowa
14
Ct. App. 2011) (“The proceedings for forfeiture of bail and judgment are civil
actions . . . .”).
Clearly, the April 4, 2013 order has some characteristics of a classic bond
forfeiture order. At sentencing, the district court stated that it would enter a
“separate” order in regard to bond disposition. In that separate order, the court
made an effort to comply with the ten-day notice provision of Iowa Code section
811.6(1) (2012) relating to forfeiture of bonds.
Yet this case does not involve a standard bond forfeiture for failure to
appear. Cf. Costello, 489 N.W.2d at 737; Marrufo-Gonzalez, 806 N.W.2d at 477–
78; Dodd, 346 N.W.2d at 43. Here, the forfeiture order was based on the
defendant’s conviction, following the court’s announcement at sentencing that it
planned to enter such an order. And the order did not merely take away the bond
money, it also directed that the bond be applied to Farnsworth’s restitution
obligation to the victim’s heirs. Farnsworth argues that we treated a similar order
as a term of sentence in Letscher and that the present situation is analogous.
See 888 N.W.2d at 884 (“We now consider the authority of the district court to
order the forfeiture of a pretrial appearance bond as a term of a sentence.”).
We have said that “the meaning of ‘sentence’ depends on the context.”
State v. Richardson, 890 N.W.2d 609, 617–18 (Iowa 2017). “[D]epending on the
context, restitution could be considered part of the ‘sentence.’ ” Id. at 617.
Notably, the type of victim restitution that was awarded to Decker’s heirs under
section 910.3B has previously been determined by our court to be “partly
punitive.” Id.; see also State v. Davison, 973 N.W.2d 276, 285 (Iowa 2022).
15
Section 910.2(1) provides that restitution is ordered by “the sentencing court.”
Iowa Code § 910.2(1). Also, we have “acknowledged that restitution is a phase of
sentencing.” State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996). We have
indicated that “a restitution hearing is a critical stage of the criminal
proceedings requiring assistance of counsel” when the restitution is imposed “as
part of the original sentencing order” or in a “supplemental order[].” Id. at 883–
84. Farnsworth points out that in Letscher the bond forfeiture order was set forth
as a paragraph of the judgment and sentence, whereas here a separate order
was entered less than a month later. Not a material difference, in his view.2
In the end, though, we don’t believe it matters how the district court’s bond
forfeiture order is characterized. If we view the April 4 order as a stand-alone
bond forfeiture order, it is clearly a civil matter—Letscher confirms this. See 888
N.W.2d at 886. We explained in Letscher that forfeiture is available to the state
“only as a civil matter.” Id. We allowed for the possibility that, on remand, the
state could try to pursue forfeiture based on the defendant’s written agreement
that his bond could be used to pay the financial obligations of the sentence. Id.
2Moreover, Farnsworth’s March 8, 2013 written judgment and sentence had form
language stating,
The appearance bond of the Defendant, if any, shall be first applied to the payment
of costs, then to the payment of the fine, then to the payment of any other
outstanding restitution, fines, and costs owing in this matter, and the balance, if
any refunded to the Defendant.
This boilerplate did not reflect the correct priority of payment. Payments to victims were—and
still are—prioritized ahead of other payments. See Iowa Code § 910.9 (2012); id. § 910.9(3) (2022).
As noted, follow-on orders were entered on March 20 and April 4 providing that only the $50,000
cash bond in the name of Farnsworth would be forfeited and that the proceeds would go to
Decker’s minor heir.
16
In that case, though, we said that the defendant’s avenue for challenging such
action would be by writ of certiorari, and we cited to the Iowa Rules of Civil
Procedure. Id. In other words, we reiterated that a stand-alone bond forfeiture
proceeding, even one based on the defendant’s consent rather than his failure to
appear, was a civil matter. Id. As a civil matter, the bond forfeiture order would
not be a proper subject for postconviction relief.
On the other hand, if the forfeiture order is considered a term of sentence,
then Farnsworth runs smack into Iowa Code section 822.2(1)(g) (2015), which
precludes any use of the postconviction-relief remedy to attack a sentence for
“alleged error relating to restitution.” See Earnest v. State, 508 N.W.2d 630, 633
(Iowa 1993) (“[T]his subsection unambiguously excludes claims relating to
restitution in postconviction proceedings.”). To the extent that the April 4, 2013
order was a term of Farnsworth’s sentence, it was a term relating to restitution.
The April 4 order specifically provided that Farnsworth’s $50,000 cash bond
would be used for victim restitution.
The problem with Farnsworth’s Letscher analogy is that Letscher was a
direct appeal. This case is a postconviction-relief action. Thus, even if we treat
the April 4, 2013 order as a term of Farnsworth’s sentence, we have to ask
whether it is a term that Farnsworth can challenge under Iowa Code chapter
822. And some sentencing terms can’t be challenged. In particular, restitution
terms can’t be challenged in postconviction-relief proceedings. See Iowa Code
§ 822.2(1)(g) (excluding “restitution, court costs, or fees”).
17
So, we sum up as follows: If the forfeiture order is a term of Farnsworth’s
sentence, it is a term of his sentence because it relates to restitution. And in that
event, postconviction relief is not available. See id.
In his supplemental brief, Farnsworth argues that the State waived its
present position that postconviction relief is unavailable to challenge the bond
forfeiture order by not raising that claim in its principal brief. As Farnsworth
puts it:
The State never argued that there was no ability in a postconviction
[proceeding] to raise this issue. The State did not even argue that
the forfeiture provision was not part of sentencing.
Given the State’s original brief on appeal, the Court should
find that the State cannot now raise those issues. The State should
not be able to raise these arguments for the first time in its
Application for Further Review.
We believe that we can exercise our discretion to consider the issue. The
State made a minimalist argument below that postconviction relief was not an
available remedy, asserting, “If Farnsworth believes he should have bond money
back, he should file a civil malpractice suit, not raise this issue in post-conviction
relief.” The State is the appellee. Furthermore, the issue is a legal one, and the
supplemental briefs have afforded both sides a full opportunity to make a
thorough adversarial presentation. See, e.g., Iowa Ass’n of Bus. & Indus. v. City
of Waterloo, 961 N.W.2d 465, 476 (Iowa 2021) (affirming in part based on an
argument that was raised in an amicus brief); King v. State, 818 N.W.2d 1, 12,
35–36 (Iowa 2012) (affirming based on an argument that was raised below but
not in the appellee’s brief and noting that “[o]ur rules provide that an appellee
need not even file a brief in our court”).
18
Thus, we conclude that postconviction relief is not available to set aside
the April 4, 2013 order directing that Farnsworth’s cash bond be forfeited for
victim restitution. At the time, other remedies may have been available—direct
appeal, review by certiorari, or a petition under Iowa Code chapter 910.7 (2012).
We do not decide which of those remedies Farnsworth could have pursued at the
time. But clearly postconviction relief is not available today. In light of this
conclusion, we need not reach the State’s second through fourth arguments, but
we note that the State’s final argument provides some policy support for the
conclusion we are reaching today. It would be unworkable if defendants could
challenge orders forfeiting their bail for victim restitution purposes years after
the fact. The money is gone. It has long since been paid by the State to victims
and used by the victims to pay bills and for other purposes.3
V. Conclusion.
For the foregoing reasons, we affirm the order of the district court denying
Farnsworth’s application for postconviction relief and affirm the decision of the
court of appeals except as to the bond forfeiture issue. On that point, we vacate
the decision of the court of appeals for the reasons stated herein.
3Farnsworth also argues that Roth rendered ineffective assistance when he sought review
of the initial $100,000 cash bond. This review resulted in the bond being increased to $200,000
cash, with $50,000 required to be posted in the defendant’s name.
The original April 14, 2012 bond order required $100,000 “cash only in defendant’s name
only.” Following the review hearing, the bond was increased on April 27 to $200,000 cash but
only $50,000 of that had to be in Farnsworth’s name. At this point, Farnsworth’s family paid
$20,000 to a bonding company for a $150,000 cash bond and also deposited $50,000 in
Farnsworth’s name. Thus, we agree with the district court that even with hindsight, the effort to
seek review of the bond was a reasonable strategic decision that actually reduced the family’s
out-of-pocket outlay from $100,000 to $70,000.
19
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except May, J., who takes no part. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487704/ | NOT DESIGNATED FOR PUBLICATION
No. 124,664
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THOMAS KARL EISMANN,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed November 18,
2022. Appeal dismissed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Taylor A. Hines, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GARDNER, P.J., WARNER and COBLE, JJ.
PER CURIAM: Thomas Eismann appeals his sentence, which was within the
presumptive range for his drug-related convictions under the Kansas Sentencing
Guidelines. Eismann claims the district court erred when it denied his request for a
downward departure at sentencing. But because he received a presumptive sentence, we
lack jurisdiction to consider his challenge. We therefore dismiss this appeal.
Eismann entered an Alford plea to possession of marijuana with intent to distribute
and possession of drug paraphernalia, both related to a 2020 car stop. Before sentencing,
1
Eismann moved for a downward sentencing departure, arguing that steps he had taken to
address his drug and mental-health issues should result in less stringent punishment than
would otherwise be appropriate under Kansas law. The district court denied Eismann's
motion. While the court acknowledged and applauded Eismann's treatment efforts, it did
not find that they justified a sentencing departure considering Eismann's history of
convictions related to drug distribution.
The court then sentenced Eismann to 68 months in prison—the standard
presumptive sentence under the Kansas Sentencing Guidelines given the severity of his
crimes and his criminal-history score. Eismann now appeals, arguing that the district
court improperly weighed his criminal history when it denied his departure motion. He
also asserts that the court relied on factual errors when denying the motion.
Under the Kansas Sentencing Guidelines, a sentencing court calculates a person's
presumptive sentencing range based on the severity of the crime committed and the
person's criminal-history score. See K.S.A. 2021 Supp. 21-6805(a) (sentencing ranges for
drug crimes). A court must impose a sentence within this presumptive range unless the
court finds "substantial and compelling reasons" to depart from it. K.S.A. 2021 Supp. 21-
6815(a). And when a sentencing court imposes a sentence in the presumptive range,
appellate courts lack jurisdiction to review the sentence. K.S.A. 2021 Supp. 21-
6820(c)(1).
Eismann's controlling crime of conviction was a severity level 3 drug crime, and
his criminal-history score was C. This meant that his presumptive sentencing range under
the guidelines was 65 to 72 months, with a mid-range sentence of 68 months. See K.S.A.
2021 Supp. 21-6805(a). The district court imposed this mid-range 68-month sentence. As
a result, this court lacks jurisdiction to review Eismann's challenges to his sentence on
appeal.
2
Eismann argues that we have jurisdiction despite his presumptive sentence
because he does not contest that sentence directly; he instead challenges the standard the
district court employed when it denied his departure motion. For support, he cites State v.
Warren, 297 Kan. 881, Syl. ¶ 1, 304 P.3d 1288 (2013), which held that "when a district
court misinterprets its own statutory authority and explicitly refuses to consider a
defendant's request for a discretionary, nonpresumptive sentence that the district court
has statutory authority to consider, the appellate court may take up the limited question of
whether the district court properly interpreted the sentencing statute."
But Eismann's reliance on Warren is misplaced. The district court here understood
its sentencing authority and considered Eismann's arguments supporting his motion; it
merely found that these arguments did not warrant a sentencing departure. See State v.
Jones, No. 120,389, 2020 WL 6244428, at *3 (Kan. App. 2020) (unpublished opinion)
(distinguishing Warren on similar grounds), rev. denied 313 Kan. 1044 (2021). The
limited jurisdictional exception discussed in Warren thus does not apply.
Because the district court imposed a presumptive sentence, we have no authority
to consider the issues Eismann raises on appeal.
Appeal dismissed.
3 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487699/ | IN THE SUPREME COURT OF IOWA
No. 21–0999
Submitted October 13, 2022—Filed November 18, 2022
SAVE OUR STADIUMS, DANIEL PARDOCK, TAMARA ROOD, DANIEL
TWELMEYER, and KATIE PILCHER,
Appellees,
vs.
DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, KYRSTIN
DELAGARDELLE, HEATHER ANDERSON, ROB BARRON, DWANA
BRADLEY, TEREE CALDWELL-JOHNSON, KALYN CODY, and KELLI
SOYER,
Appellants.
Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.
The plaintiffs appeal the district court’s summary judgment dismissing
claims challenging the defendant school district’s refusal to grant their petition
for a public referendum on funding for an athletic stadium. AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all participating
justices joined. Christensen, C.J., and Mansfield and May, JJ., took no part in
the consideration or decision of the case.
Gary Dickey (argued) of Dickey, Campbell & Sahag Law Firm, PLC, Des
Moines, for appellant.
Janice M. Thomas (argued), Lamson Dugan & Murray LLP, West Des
Moines, Blake R. Hanson (until withdrawal), and Benjamin J. Kenkel (until
2
withdrawal) of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for
appellees.
3
WATERMAN, Justice.
Citizens collected signatures for a petition to force a public referendum on
the financing of a school district’s proposed athletic stadium. The school board
deemed the number of signatures insufficient to force a referendum, and the trial
court agreed. The resulting appeal presents a question of statutory
interpretation: how to determine the number of signatures needed to trigger the
public referendum under Iowa Code section 423F.4(2)(b) (2020), which requires
signatures totaling at least “thirty percent of the number of voters at the last
preceding election of school officials under section 277.1.” That election included
both city and school officials on the ballot, and the parties disagree whether the
“voters” to be counted include all those who voted at the election or rather only
those who marked their ballot for the uncontested at-large school board seat. If
the former, the petition fell short; if the latter, it met the signature requirement.
The school district told the plaintiffs in advance that all voters must be
counted; the plaintiffs turned in their petition thirty minutes before the deadline
with fewer signatures. The district determined the petition was facially invalid
and declined to accept it or proceed with the referendum. The plaintiffs
commenced this declaratory judgment action to force the referendum. The trial
court agreed with the school district’s interpretation and granted summary
judgment denying relief. We retained the plaintiffs’ appeal.
On our review, we determine that all voters at the election must be
counted, and the plaintiffs’ petition was facially invalid as lacking the requisite
number of signatures. We conclude that the school district breached a directory
4
duty under Iowa Code section 277.7 to return the rejected petition, but the
plaintiffs are required to show prejudice to obtain judicial relief for that technical
violation, which they cannot do after they effectively ran out the clock with no
time left to obtain more signatures. Their due process claims fail. We affirm the
summary judgment.
I. Background Facts and Proceedings.
The facts are largely undisputed. On November 13, 2019, the Des Moines
Independent Community School District (the District) announced its plans to
partner with Drake University to build an outdoor athletic stadium on Drake’s
campus. Drake would contribute $4.5 million, while the District would
contribute $15 million in sales tax revenue under the Secure and Advanced
Vision for Education (SAVE) program. On May 19, 2020, the District’s board
unanimously passed a resolution that approved the project. The resolution
informed eligible voters they could challenge the appropriation of SAVE funds:
Eligible electors of the school district have the right to file with the
Board Secretary a petition pursuant to Iowa Code § 423F.4(2)(b), on
or before close of business on June 2, 2020, for an election on the
proposed use of SAVE Revenue. The petition must be signed by
eligible electors equal in number to not less than one hundred or
thirty percent of those voting at the last preceding election of school
officials under Iowa Code § 277.1, whichever is greater.
A valid petition forces either rescission of the resolution or a public
referendum on the resolution. To be valid, the petition must be filed within fifteen
days of the resolution and include the number of signatures equal to 30% of “the
number of voters at the last preceding election of school officials under
section 277.1.” Id. § 423F.4(2)(b).
5
The parties agree that the election on November 5, 2019, is the last
preceding election of school officials. That election included voting for school
board and city council positions. The contested races were for city council seats
and district-based school board seats in which only a portion of the electorate
could vote, while the only at-large school board position in which all eligible
voters could vote was uncontested and drew fewer votes.
District residents organized Save Our Stadiums (SOS) to gather signatures
for a petition seeking a referendum under section 423F.4(2)(b). Daniel Pardock,
one of the individual plaintiffs in this action, contacted Thomas Ahart, the
District’s superintendent, on the morning of May 29, 2020, to ascertain the
requirements for the petition. Pardock specifically asked how many signatures
were needed. The superintendent replied that afternoon that 7,501 signatures
were needed. The superintendent also noted that the petition should be
submitted by the close of business—5:00 p.m.—on June 2 and that the District
would make every effort to review the petition before its board meeting on July 7.
On June 2, the final day to submit a petition, SOS presented a petition to
the school board secretary at 4:30 p.m. The petition contained 7,120
signatures—381 fewer than the minimum the superintendent had said were
required. SOS, however, took the position that it only needed 30% of the votes
cast in the uncontested at-large school board election. Under that theory, 5,353
signatures would trigger a public referendum.
Iowa Code section 277.7 sets forth the procedure to be followed by the
school district when it receives a petition on a public measure:
6
1. A petition filed with the school board to request an election
on a public measure shall be examined before it is accepted for filing.
If the petition appears valid on its face it shall be accepted for filing.
If it lacks the required number of signatures it shall be returned to
the petitioners.
2. Petitions which have been accepted for filing are valid
unless written objections are filed. Objections must be filed with the
secretary of the school board within five working days after the
petition was filed. The objection process in section 277.5 shall be
followed for objections filed pursuant to this section.
District officials reviewed SOS’s petition after June 2. They determined
that the petition lacked the minimum number of signatures to trigger a public
referendum under section 423F.4(2)(b). To reach that conclusion, the District
looked to the total number of voters who turned out at the November 5, 2019
election (25,009). Signatures totaling 30% of that figure—7,502—were needed to
trigger a referendum. Accordingly, the district did not accept the petition for
filing. The district described the action taken as follows:
Upon receipt of Plaintiffs’ Petition, Chief Financial Officer Shashank
Aurora performed a facial review of the Petition, simply seeking to
ascertain the total number of signatures it contained. The initial
count showed Petitioners fell well below the required number under
Iowa law, making it facially invalid and insufficient to force a
referendum on the resolution, thus [the Board] never accepted it for
filing.
The District took no further action after it determined that the petition’s 7,120
signatures were insufficient to trigger a referendum. The District did not return
the petition to SOS, notwithstanding the directive to do so in Iowa Code
section 277.7(1).
The individual plaintiffs and SOS (collectively SOS) commenced this
declaratory judgment seeking an adjudication that their petition included
7
enough signatures to trigger a public referendum, that the District failed to abide
by the procedural requirements of section 277.7, and that the District violated
their due process rights. SOS sought a writ of mandamus and injunction to force
the public referendum. The parties filed cross-motions for summary judgment.
The district court granted the District’s motion and denied SOS’s motion. The
court ruled that “[t]he District correctly refused to accept the petition because
the number of signatures did not reach the amount needed to trigger a special
election.” The court found the district technically violated section 277.7(1) by
failing to return the petition to SOS but determined no relief was warranted
because SOS could not show any resulting prejudice given the lack of time
remaining to obtain enough additional signatures. The court ruled as a matter
of law the due process claim failed because SOS could not show the district’s
conduct shocked the conscience. SOS appealed, and we retained the appeal.
II. Standard of Review.
We review a district court’s grant of summary judgment for correction of
errors at law. Young v. Iowa City Cmty. Sch. Dist., 934 N.W.2d 595, 601 (Iowa
2019). We review constitutional issues de novo. Id. We review rulings on
statutory interpretation for correction of errors at law. EMC Ins. Grp. v. Shepard,
960 N.W.2d 661, 668 (Iowa 2021).
III. Analysis.
SOS raises three issues in this appeal: (1) whether the district court erred
in determining the number of signatures required to trigger the referendum,
(2) whether the district court erred by denying relief based on the school district’s
8
failure to return the petition to SOS, and (3) whether the district court erred in
rejecting SOS’s constitutional due process claim. In our view, the case turns on
the resolution of the principal fighting issue: how to determine “the number of
voters at the last preceding election of school officials.” Iowa Code § 423F.4(2)(b).
We address that issue first.
A. Whether the District Court Correctly Calculated the Number of
Signatures Required Under Iowa Code § 423F.4(2)(b). Voters elect school
officials in a hybrid election that also includes voting for city council positions.
Beginning with the election on November 5, 2019—the election that the parties
agree is “the last preceding election of school officials”—voters could in the same
election cast votes for city council members as well as school board members.
The parties disagree about who the “voters at the last preceding election of school
officials” includes—anyone who voted in the election or rather only those who
voted for a school official, or specifically, those who voted in the uncontested race
for the at-large school board seat.
Undervoting causes vote totals to differ across the individual races in the
same hybrid election. At every election, some voters cast votes in certain races
or ballot measures but leave others blank.1 A survey of the vote tallies at the
November 5, 2019 election illustrates the phenomenon. Only 17,843 votes were
cast in the race for the at-large school board seat, but a total of 25,009 voters
1David Axelrod & Mike Murphy, More than 30 Percent of Voters Fail to Complete Their
Ballots. Don’t Be One of Them, Vox (Nov. 7, 2016, 2:40 PM), https://www.vox.com/the-big-
idea/2016/11/7/13553496/down-ballot-vote-local-elections-informed-voter
[https://perma.cc/TH2N-QZV3].
9
cast votes at the election.2 Which number represents the total number of voters
at the last preceding election of school officials? SOS urges the former; the
District the latter.
The parties agree that there is a universe of total votes or voters that is to
be multiplied by 30% to determine the statutory threshold to trigger a rescission
or public referendum of the spending plan. Id. SOS argues we should use the
number of votes cast in the at-large school board election (17,843), requiring
only 5,353 signatures for a valid petition. The District argues the district court
correctly used the total number of voters at the election (25,009), requiring 7,502
signatures, and correctly ruled that the petition submitted with fewer signatures
was invalid on its face.
We begin our analysis with the text of the statute. Borst Bros. Constr. v.
Fin. of Am. Com., LLC, 975 N.W.2d 690, 699 (Iowa 2022). We interpret statutes
as a whole. State v. Iowa Dist. Ct., 889 N.W.2d 467, 473 (Iowa 2017).
Section 423F.4(2)(b) provides:
For bonds subject to the requirements of paragraph “a”, if at any
time prior to the fifteenth day following the hearing, the secretary of
the board of directors receives a petition containing the required
number of signatures and asking that the question of the issuance
of such bonds be submitted to the voters of the school district, the
board shall either rescind its adoption of the resolution or direct the
county commissioner of elections to submit the question to the
registered voters of the school district at an election held on a date
specified in section 39.2, subsection 4, paragraph “c”. The petition
must be signed by eligible electors equal in number to not less than
one hundred or thirty percent of the number of voters at the last
preceding election of school officials under section 277.1, whichever
is greater. If the board submits the question at an election and a
2This gives an undervoting rate of 28.7%.
10
majority of those voting on the question favors issuance of the
bonds, the board shall be authorized to issue the bonds.
Iowa Code § 423F.4(2)(b) (emphasis added). We read related statutes together.
Kolzow v. State, 813 N.W.2d 731, 736 (Iowa 2012). Because it is referenced
expressly, we also consider section 277.1:
The regular election shall be held biennially on the first
Tuesday after the first Monday in November of each odd-numbered
year in each school district for the election of officers of the district
and merged area and for the purpose of submitting to the voters any
matter authorized by law.
Iowa Code § 277.1.
Reading these statutes together, there was never a time when the statutory
minimum number of signatures required by section 423F.4(2)(b) would have
been calculated at a stand-alone election of school officials. Elections had been
combined by the legislature in 2017, effective July 1, 2019. 2017 Iowa Acts
ch. 155, §§ 8–9 (codified at Iowa Code § 277.1 (2020)). In 2019, the legislature
enacted the 30% requirement, also effective July 1, 2019. 2019 Iowa Acts
ch. 166, § 17 (codified at Iowa Code § 423F.4(2)(b) (2020)). So, when the
legislature enacted the 30% requirement, the elections had already been
combined and the legislature understood which voters it was using as its base—
voters at the combined election. See Simon Seeding & Sod, Inc. v. Dubuque Hum.
Rts. Comm’n, 895 N.W.2d 446, 467 (Iowa, 2017) (“We assume ‘when a legislature
enacts statutes it is aware of the state of the law.’ ” (quoting Rhoades v. State,
880 N.W.2d 431, 446 (Iowa 2016))). Iowa Code section 49.41, allowing the same
person to seek both a school and a municipal office “at the same election,” also
became effective on July 1, 2019. 2017 Iowa Acts ch. 155, §§ 23, 44 (codified at
11
Iowa Code Sec. 49.41(1)(a) (2020)). The legislature thereby ensured that the
voters at the election of school officials could simultaneously vote for city officials
at the same election.
SOS argues we should interpret these statutes liberally in favor of the right
to vote in a public referendum. SOS relies on Devine v. Wonderlich for this
proposition, a case that did not involve a public referendum. 268 N.W.2d 620
(Iowa 1978) (en banc). In Devine, we emphasized that, due to the fundamental
nature of the right to vote in elections for public office, statutes must be
construed liberally in favor of voters. Id. at 623. But more recently we have
declined to apply a liberal construction to public referendum statutes. Young,
934 N.W.2d at 605 (holding school district was not required to hold referendum
on demolition of elementary school building). We distinguished Devine by
contrasting referenda cases:
We do not in any way retreat from Devine. But the context of
this case before us is different. Here, we are not dealing with
regulation of the voting process in an election of our governmental
representatives. Instead, we are trying to divine the boundary
between the power our legislature has allocated to the voters on the
one hand and school boards on the other.
While democratic values may be promoted in referenda, the
school board is comprised of democratically elected officials
empowered to conduct the school district’s business through the
deliberative process. Both the actions of the voters through the
referendum process and decisions of elected officials in a
deliberative setting have been established by the legislature and are
entitled to respect. We are not inclined to expansively read the power
of the voters at the expense of the deliberative processes of the
elected school board through a rule of construction. We think a
straight up interpretation of the applicable statutes is a better
approach than one that puts a thumb on the scale in favor of the voters
acting through referenda. After all, the voters have elected the school
board members too.
12
Id. (emphasis added). We give effect to the referendum process just as the
legislature has specified by statute. Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417, 419 (1899) (“We do not inquire what the
legislature meant; we ask only what the statute means.”). For these reasons, we
decline to give section 423F.4(2)(b) a liberal construction. Rather, in construing
this statute, we give its words their ordinary meaning. Com. Bank v. McGowen,
956 N.W.2d 128, 133 (Iowa 2021).
As noted, the election at issue included both city officials and school
officials on the ballot. Section 423F.4(2)(b) requires counting “voters” (people),
not the votes cast in a particular race. See Iowa Code § 423F.4(2)(b). A “voter” is
a person—one “who engages in the act of voting.” Voter, Black’s Law Dictionary
(11th ed. 2019). It follows that the plural “voters” would be the people who engage
in the act of voting at the election.
Section 423F.4(2)(b) requires a count of the “voters at” the election. Iowa
Code § 423F.4(2)(b) (emphasis added). Idiomatically, it is telling that “voters” is
paired with the preposition “at” before “the last preceding election of school
officials.” Id. This conveys a spatial meaning where we consider the people
(voters) at a particular place (the election of school officials).3 The election at
issue here included multiple races for city council seats and school board
positions. See Iowa–Ill. Gas & Elec. Co. v. City of Bettendorf, 41 N.W.2d 1, 5 (Iowa
3We are mindful of the bizarre consequences that can result when judges break phrases
down into their components, analyze each component, and then synthesize the whole. See
Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting). But holding
to the original public meaning of the words of the statute at the time it was enacted ensures that
we will not fall into the same trap.
13
1950) (“[An election] is the statutory method whereby qualified voters or electors
pass upon various public matters submitted to them—the election of officers,
national, state, county, township—the passing upon various other questions
submitted for their determination.”). A voter who is present at the election of city
officials is also present at the election of school officials, and vice versa. Indeed,
a candidate may seek both a municipal office and a school office “at the same
election.” Iowa Code § 49.41. We agree with the district court and the school
district that the total number of voters at the election is to be counted, not the
votes cast in the at-large school board race.4
Section 423F.4(2)(b) does not say “thirty percent of the number of votes in
the last preceding election of school officials.” That choice of words would better
support SOS’s interpretation. Instead, the language enacted requires a count of
“voters at” that election, which includes those casting votes for city officials.
Our holding avoids the textual and practical problems inherent in SOS’s
interpretation that counts only the votes cast for the uncontested at-large seat.
The election of school officials—officials plural—involves more than the election
of one at-large board member. The Des Moines School Board is comprised of
seven members: four elected from geographically divided districts and three
4We acknowledge that absentee voting is a popular mode of voting. Iowa voters cast more
absentee ballots than traditional ballots in the general election of November 3, 2020. Press
Release, Off. of the Iowa Sec’y of State, MEDIA RELEASE: Iowa Shatters General Election Turnout
Record (Nov. 4, 2020), https://sos.iowa.gov/news/2020_11_04.html [https://perma.cc/U4KJ-
5DEC]. But voters who choose to cast an absentee ballot do not affect our construction of section
423F.4(2)(b). Absentee voters are still “at” the election because they “pass upon various public
matters submitted to them.” Iowa–Ill. Gas & Elec. Co., 41 N.W.2d at 5. There is no single, magical
location where a voter must appear to be included in the count under section 423F.4(2)(b). In
the modern age, the precinct-by-precinct polling place, the county courthouse, and the kitchen
table are all places to mark the ballot.
14
at-large members.5 A voter who casts a vote in the election for a district member
but fails to cast a vote in the at-large election qualifies as a voter at the election
of school officials. But due to undervoting, that voter at the election of school
officials would go uncounted in SOS’s preferred method of interpreting
section 423F.4(2)(b).
This is more than an academic concern. The at-large school board election
on November 5, 2019, was uncontested, and as the district court observed, the
uncontested races saw far more undervotes compared to the contested races.
Indeed, the two uncontested district races had totals of 2,914 and 3,313 votes
while the contested district race had a total of 8,450 votes. It is reasonable to
conclude that voters undervoted in the uncontested at-large election. Given the
phenomenon of undervoting, the legislature reasonably chose to count voters at
the election instead of votes cast for specific races.
And although SOS refers to “the at-large school board director’s race,” this
framing hides the ball. (Emphasis added.) Given the current composition of the
District’s board, the 2025 election of school officials will feature two at-large
elections.6 Under SOS’s theory that section 423F.4(2)(b) looks to the number of
votes cast in the at-large election, which at-large election’s vote total would
5School Board Elections, Des Moines Pub. Schs.,
https://www.dmschools.org/board/elections/ [https://perma.cc/6U38-4CVE] (last visited
Nov. 10, 2022).
6Two of the three at-large board members’ terms of office expire in 2025. Maria
Alonzo-Diaz, Des Moines Pub. Schs., https://www.dmschools.org/board/school-board-
members/maria-alonzo-diaz/ [https://perma.cc/E4TT-S2DR] (last visited Nov. 10, 2022);
Jackie Norris, Des Moines Pub. Schs., https://www.dmschools.org/board/school-board-
members/jackie-norris/ [https://perma.cc/5GAH-C5TQ] (last visited Nov. 10, 2022).
15
determine the number of signatures needed for a valid petition after the 2025
election becomes “the last preceding election of school officials”? Iowa Code
§ 423F.4(2)(b). The phenomenon of undervoting indicates that the answer to that
question could matter—especially if one of the races is contested and the other
uncontested. “Generally, we try to interpret statutes so they are reasonable and
workable.” Iowa Dist. Ct., 889 N.W.2d at 473. SOS’s interpretation is neither.
There are other practical problems with attempting to separate the number
of voters in the school board races. It is too late to perform a manual recount of
the ballots cast by all 25,009 voters at the November 5, 2019 election. See Iowa
Code § 50.13(1) (providing for the destruction of ballots six months after
election). SOS proposes using the “tally books” to determine the number of voters
who voted in the city election only and thus should be excluded from the total
number of voters. The tally books, however, show only vote totals; they contain
no ballot-by-ballot breakdown of how many voters voted for both city and school
races, only for school races, and only for city races, allowing the last group to be
excluded from the total number of voters at the last election of school officials.
This further demonstrates the better approach is to count all voters at the
November 5, 2019 election.
For these reasons, we hold the district court correctly affirmed the
District’s determination that the petition lacked sufficient signatures and was
facially invalid.
B. Whether the District Court Correctly Denied Relief for the
District’s Technical Violation of Section 277.7. The district court ruled that
16
the school district violated Iowa Code section 277.7(1) by failing to return the
petition to SOS, but denied relief because SOS failed to show any resulting
prejudice. We agree with the district court’s resolution.
As we just explained above, the District correctly determined that SOS’s
petition was facially invalid because it lacked the requisite number of signatures
to trigger a public referendum. Accordingly, the District could not accept the
petition for filing or move forward with a public referendum. Yet SOS demands
relief (including a public referendum) simply because the District failed to return
the petition to SOS. See id. (“A petition filed with the school board to request an
election on a public measure shall be examined before it is accepted for filing.
. . . If it lacks the required number of signatures it shall be returned to the
petitioners.”). The question is whether this statutory violation entitles SOS to
relief. We think not, given the undisputed facts.
SOS agrees that the District could take a reasonable time to examine and
return the petition. It is undisputed that SOS submitted its petition on June 2,
2020, the last day, thirty minutes before the District’s 5:00 p.m. deadline. SOS
does not claim the District was required to review and return the petition that
same day. But even if the District had immediately returned the petition, SOS
cannot show it would or could have gathered the remaining signatures required
by 5:00 p.m., or even by midnight. For that reason, the district court correctly
found SOS was not prejudiced by the District’s failure to return the petition. By
running out the clock, SOS put itself in this bind. Even the District’s immediate
return of the petition would have made no difference.
17
Section 277.7(1) imposed a duty on the District to return SOS’s petition.
Id. (“If [the petition] lacks the required number of signatures it shall be returned
to the petitioners.” (emphasis added)); see id. § 4.1(30)(a) (“The word ‘shall’
imposes a duty.”). Duties can be either mandatory or directory. See In re Det. of
Fowler, 784 N.W.2d 184, 190 (Iowa 2010). We have described directory duties as
follows:
[T]he general rule [is] that statutory provisions fixing the time, form
and mode of proceeding of public functionaries are directory
because they are not of the essence of the thing to be done but are
designed to secure system, uniformity and dispatch in public
business. Such statutes direct the thing to be done at a particular
time but do not prohibit it from being done later when the rights of
interested persons are not injuriously affected by the delay.
Taylor v. Dep’t of Transp., 260 N.W.2d 521, 523 (Iowa 1977). That is what we
have here. Section 277.7(1) fixes “the time, form and mode of proceeding of
public functionaries.” Id. Simply put, it tells whom to do what and when: the
board is to return the petition after it has determined that the petition lacks
sufficient signatures. Section 277.7(1) prescribes a directory duty. By contrast,
the mandatory duty—to provide a public referendum in response to a valid
petition—is found in section 423F.4(2)(b).
The difference between a directory and mandatory duty determines the
remedies available:
“The difference between [mandatory and directory duties] lies in the
consequence for failure to perform the duty.” A mandatory duty “is
essential to the main objective of the statute . . . and a violation will
invalidate subsequent proceedings under it.” If a duty is directory, a
failure to perform the duty will not invalidate subsequent
proceedings unless the individual has suffered prejudice as a result
of the violation.
18
In re Det. of Fowler, 784 N.W.2d at 190 (omission in original) (citations omitted)
(quoting Taylor, 260 N.W.2d at 522–23). Because the duty in question is
directory, SOS must demonstrate that it was prejudiced by the District’s failure
to return the petition. Id.
SOS cannot demonstrate that it has suffered prejudice. SOS lacked time
to collect additional signatures to validate its petition; its rights were not affected
by the District’s failure to return the petition. Even if the District had returned
the petition immediately, thirty minutes was not enough time to collect another
381 signatures. And SOS cannot claim that it was prejudiced by being misled or
misinformed—SOS knew the District would require more signatures based on
the superintendent’s May 29 email.
Alternatively, SOS argues that the District’s failure to return the petition
constituted its “acceptance” of the petition for filing. SOS contends this de facto
acceptance of the petition makes it per se valid. Id. § 277.7(2) (“Petitions which
have been accepted for filing are valid unless written objections are filed.”). Under
this theory, SOS argues that the District either should have filed written
objections to the petition or gone ahead and referred the matter for a public
referendum. Because the District did not file written objections challenging the
validity of the petition, SOS argues that the District accepted the petition as a
matter of law, the petition is valid, and the matter must go to a public
referendum. We disagree. The District never accepted the petition for filing by its
action or inaction. It examined the petition and found the number of signatures
19
insufficient. It would have violated the statute to accept a deficient petition for
filing.
SOS advances no authority for the proposition that we should validate a
facially invalid petition after the submission deadline expired simply because the
District failed to return it. SOS proposes a false choice between returning the
petition and accepting it for filing. In this case, the District properly declined to
accept SOS’s petition that lacked sufficient signatures. Because the deadline
expired the same day SOS submitted the petition with inadequate time to cure
the deficiency, any obligation to return the petition was moot. See Maghee v.
State, 773 N.W.2d 228, 233 (Iowa 2009) (defining mootness as “when the
contested issue has become academic or nonexistent and the court’s opinion
would be of no force or effect in the underlying controversy”). SOS is entitled to
no relief in the absence of prejudice.
C. Whether the District Court Correctly Rejected SOS’s Due Process
Claim. Finally, SOS argues that a denial of the right to vote on the expenditure
of the SAVE funds amounts to a denial of its individual residents’ due process
rights. But because SOS fell short of the number of signatures required to trigger
a public referendum, it triggered no right to challenge the District’s use of the
SAVE funds at a public referendum. Referendum cases are not “right to vote”
cases:
The right to vote in a general election, i.e., the right to participate in
representative government, is a fundamental constitutional right
that may not be abridged absent a compelling state interest. A
referendum, however, is a form of direct democracy. Our
constitution insures a representative form of government, not a
direct democracy. Where a statute provides for an expression of
20
direct democracy, such as by initiative or referendum, it does so as
a matter of legislative grace; the right to participate in such a process
is not fundamental to our Constitution.
Bowers v. Polk Cnty. Bd. of Supervisors, 638 N.W.2d 682, 692 (Iowa 2002)
(quoting Kelly v. Macon–Bibb Cnty. Bd. of Elections, 608 F. Supp. 1036, 1038 n.1
(D. Ga. 1985)); see also John Doe #1 v. Reed, 561 U.S. 186, 212 (2010)
(Sotomayor, J., concurring) (“[Initiatives and referenda] are not compelled by the
Federal Constitution. It is instead up to the people of each State . . . to decide
whether and how to permit legislation by popular action. States enjoy
‘considerable leeway’ . . . to specify the requirements for obtaining ballot access
. . . .”); Eggers v. Evnen, 48 F.4th 561, 565 (8th Cir. 2022) (collecting cases and
noting “we have repeatedly stated that the right to place initiatives on the state
ballot ‘is not a right guaranteed by the United States Constitution, but is a right
created by state law.’ ”).
We see no “wholesale deprivation of the right to vote,” as SOS claims,
because SOS itself failed to submit a valid petition to trigger a statutory right to
a public referendum. The failure of SOS’s statutory claim to a public referendum
is fatal to its due process claim, which presupposes the deprivation of a right to
the referendum.
We also agree with the district court that SOS cannot show that the
District’s conduct “shocks the conscience” as required to recover under a
substantive due process theory. Lennette v. State, 975 N.W.2d 380, 393–94 (Iowa
2022) (“A substantive due process violation is not easy to prove. The claim ‘is
reserved for the most egregious governmental abuses against liberty or property
21
rights, abuses that “shock the conscience or otherwise . . . offend judicial notions
of fairness . . . [and that are] offensive to human dignity.” ’ ” (alteration and
omissions in original) (citation omitted) (quoting Blumenthal Inv. Trs. v. City of
West Des Moines, 636 N.W.2d 255, 265 (Iowa 2001))). It hardly shocks the
conscience to decline to act on a facially invalid petition for a public referendum.
We affirm the district court’s summary judgment dismissing the due process
claims.
IV. Disposition.
For the foregoing reasons, we affirm the district court’s summary judgment
dismissing SOS’s claims.
AFFIRMED.
All justices concur except Christensen, C.J., and Mansfield and May, JJ.,
who take no part. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487708/ | NOT DESIGNATED FOR PUBLICATION
No. 125,179
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
ROBERT DAVIS JR.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed November 18,
2022. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Kurtis K. Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and SCHROEDER, JJ.
PER CURIAM: Robert Davis Jr. timely appeals the district court's denial of his
petition for transitional release after his 2020 and 2021 annual review hearings under the
Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Davis is
currently on Tier 1—the lowest of three tiers—of the sexual predator treatment program
(SPTP). Davis asserts he presented sufficient evidence to show probable cause his mental
abnormality or personality disorder has significantly changed to warrant an evidentiary
hearing to consider his placement in transitional release. After a thorough review of the
record, we find his claim unpersuasive. We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
In December 2018, a jury found Davis to be a sexually violent predator, and the
district court committed Davis to the custody of the Secretary of the Department for
Aging and Disability Services (KDADS) under the KSVPA. Davis appealed his
commitment, and a panel of this court affirmed his commitment. In re Care and
Treatment of Davis, No. 121,947, 2020 WL 5581734, at *1 (Kan. App. 2020)
(unpublished opinion).
As part of Davis' commitment under the KSVPA, he received annual
psychological evaluations. See K.S.A. 2021 Supp. 59-29a08(a). Each of the annual
reports and supplemental reports submitted from March 2020 through February 2022
concluded Davis remained a sexually violent predator and recommended he remain in
KDADS custody.
Davis' first annual psychological examination was in March 2020. The report
explained Davis was on Tier 1 of a three-tier treatment program. While Davis had perfect
attendance in his therapist-led groups, the examination overall concluded Davis was in a
high risk/need category and his mental abnormality and personality disorder had not so
significantly changed that it would be safe for him to be placed in transitional release.
Specifically, the Static-99R-2003 placed Davis in the above average risk category to
reoffend against a child or nonconsenting adult, and the Acute-2007 placed Davis as a
high priority for general recidivism risk and moderate priority for sex and violence risk.
The Stable-2007 assessment placed Davis in the moderate treatment needs category.
The Secretary of KDADS provided Davis with its annual notice of his right to
petition for release over the Secretary's objection as required under K.S.A. 2021 Supp.
59-29a08(a). Davis acknowledged receipt of the annual notice and timely filed a petition
requesting a probable cause hearing for transitional release.
2
The district court held a hearing and found no probable cause to believe Davis'
condition had significantly changed to warrant an evidentiary hearing to consider his
transfer to transitional release. Davis was ordered to remain in the custody of the
Secretary of KDADS for continued treatment.
Davis' next annual psychological examination was in March 2021. Davis remained
in Tier 1 of the SPTP. Davis did not have attendance issues with his treatment groups and
classes but had some "notable incidents which resulted in [rule] violations for allegedly
writing inappropriate comments about peers which ultimately resulted in [Davis] losing
his privilege level." The Static-99R-2003 placed Davis in the above average risk
category, the Acute-2007 placed Davis in moderate priority for general recidivism risk
and low priority for sex and violence risk, and the Stable-2007 placed Davis in the
moderate treatment needs category. Overall, Davis was placed in a low risk/need
category. The report concluded the risk associated with his mental abnormality or
personality disorder had not so significantly changed that it would be safe for Davis to be
placed in transitional release.
The Secretary of KDADS filed Davis' 2021 annual notice of right to petition for
release from treatment over the Secretary's objection along with a signed receipt of
acknowledgment by Davis. Davis did not timely file a petition requesting a hearing after
his 2021 annual examination. Thus, the State requested the district court conduct an in
camera annual review of the status of Davis' mental condition under K.S.A. 2021 Supp.
59-29a08(f).
In August 2021, the clinical program director of the SPTP issued a supplement to
Davis' annual evaluation. Davis' Acute-2007 score increased, placing him at high risk for
general recidivism and high sex and violence risk. The report noted Davis had struggled
with the effect of his bipolar disorder since he requested a change in medication in
September 2020. Davis was compliant with his medication regimen, but the new
3
medication was not as effective as his prior medication in helping him control his
impulsive choices or decipher appropriate mechanisms for skill acquisition and
advancement. As a result, Davis had a notable increase in his Bipolar II symptoms,
especially regarding impulsivity, and had reduced responsiveness to feedback. The SPTP
clinical program director recommended Davis not be placed in transitional release.
Another supplemental report was filed in February 2022. The report stated Davis
remained on Tier 1 of the SPTP, had made inappropriate sexual references, and even had
to change therapists because he had inappropriate sexual fantasies about his therapist.
Davis demonstrated verbally aggressive behaviors with staff and other residents at the
facility and continued to respond poorly to feedback or direction.
In February 2022, the district court conducted an annual review hearing on Davis'
2021 annual evaluation. Based on the original review from March 2021, along with the
supplement reports in August 2021 and February 2022, the district court found Davis'
mental abnormality or personality disorder had not so significantly changed to warrant a
hearing to consider his placement in transitional release as he was likely to engage in
repeated acts of sexual violence. Davis timely sought our review of the district court's
denial of his request for transitional release after his review hearings for 2020 and 2021.
ANALYSIS
The district court did not err in denying Davis' request for transitional release hearing.
Davis claims on appeal he presented sufficient evidence to show probable cause
his mental abnormality or personality disorder significantly changed to warrant a hearing
to consider his placement in transitional release because he maintained perfect attendance
in all his groups and classes, gave and received feedback in group discussions, and turned
in journals and fantasy logs regularly. Davis contends his Static-99R-2003 evidenced an
4
82.7 percent probability he would not be rearrested for a new sexual offense within five
years in the community and his Acute-2007 score had improved. The State responds
Davis has not progressed beyond Tier 1 in the SPTP.
Under the KSVPA, a committed person has the right to an examination of his or
her mental condition once every year. K.S.A. 2021 Supp. 59-29a08(a). After receiving an
annual report from the Secretary, the committed person may request an annual review
hearing and petition for transitional release. K.S.A. 2021 Supp. 59-29a08(b). At the
review hearing, the committed person must show probable cause to believe the person's
mental abnormality or personality disorder significantly changed so that he or she is safe
to be placed in transitional release. K.S.A. 2021 Supp. 59-29a08(d). The district court
must determine whether there is sufficient evidence to cause a person of ordinary
prudence and action to conscientiously entertain a reasonable belief that the committed
person's mental abnormality or personality disorder has so changed to support the
person's placement in transitional release. In re Care & Treatment of Burch, 296 Kan.
215, 226, 291 P.3d 78 (2012).
We apply a de novo standard of review when a person committed under the
KSVPA appeals a district court's probable cause determination after an annual review
hearing. 296 Kan. at 222-23. When making this determination, we, like the district court,
must consider the evidence in the light most favorable to the committed person and
resolve all conflicting evidence in that person's favor. 296 Kan. at 225-26.
Davis fails to meet his burden to show probable cause to believe his mental
abnormality or personality disorder had significantly changed to warrant an evidentiary
hearing to consider his placement in transitional release. Aside from the fact Davis has
yet to reach Tier 2 of the SPTP, the evidence shows a regression in behavior hindering
Davis' progress. The 2021 assessments place Davis in an above average risk category,
high priority for general recidivism risk, and high priority for sex and violence risk. Even
5
viewing the evidence in the light most favorable to Davis, he has not shown probable
cause to believe his mental abnormality or personality disorder has significantly changed
to justify an evidentiary hearing on his request for transitional release. See K.S.A. 2021
Supp. 59-29a08(d).
Affirmed.
6 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487698/ | IN THE SUPREME COURT OF IOWA
No. 20–1689
Submitted October 13, 2022—Filed November 18, 2022
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER WILLIAM THOMPSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Sarah E. Crane,
Judge.
The defendant seeks further review of a court of appeals decision affirming
his conviction for first-degree murder, challenging the admission of certain
hearsay evidence. DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which all
participating justices joined. Mansfield, J., filed a concurring opinion, in which
Waterman, J., joined. May, J., took no part in the consideration or decision of
this case.
Martha Lucey, Appellate Defender, and Theresa R. Wilson (argued),
Assistant Appellate Defender, for appellant.
2
Thomas J. Miller, Attorney General, and Timothy M. Hau (argued),
Assistant Attorney General, for appellee.
3
CHRISTENSEN, Chief Justice.
“I a[m] tired o[f] being scared . . . he is a drunk. I called the cops and they
said to contact you. I need your help I am done.” The defendant’s mother sent
this email to his probation officer hours before the defendant killed her by
repeatedly hitting her with a crowbar. At trial, the defendant admitted to killing
his mother but argued he was not guilty of first-degree murder because he acted
impulsively out of rage. Over the defendant’s objection, his probation officer and
his mother’s friend testified about his mother’s fear of the defendant and her
plan to stop financially supporting him. The jury found the defendant guilty of
first-degree murder.
The defendant appealed, claiming the district court erred in admitting the
testimony from the probation officer and his mother’s friend as statements of the
mother’s then-existing mental state under Iowa Rule of Evidence 5.803(3)
because her state of mind was not relevant. The court of appeals affirmed. On
our review, we agree. The victim’s statements were relevant to proving the
defendant’s intent and motivation at the time of the crime, so the district court
correctly admitted them under rule 5.803(3).
I. Background Facts and Proceedings.
After repeated attempts to get in touch with her friend, Paula Thompson
(Paula), Lorie Baker contacted Paula’s son, Christopher Thompson (Thompson),
who informed her that Paula was not responding to Baker’s messages because
she was on a drinking binge. Nevertheless, Baker continued her attempts to
reach Paula by phone and online messages. After failing to reach Paula for a few
4
days, Baker called Thompson on March 18, 2020, to inform him that Paula was
going to get fired if she did not report to work that day. Thompson replied, “I got
into a big argument with my mom. We were both drunk; I blacked out and killed
her.” He instructed Baker to call the police.
Thompson waited a few hours after speaking to Baker “thinking they’d
have a warrant out [for his arrest] by then” before walking into the Polk County
Jail and declaring that there was a warrant for his arrest. When asked why there
would be a warrant, Thompson stated he had killed his mother. Around the same
time, Baker called 911 to do a welfare check on Paula and report what Thompson
had said about killing Paula. Responding officers found Paula dead on her
bedroom floor.
After the police read Thompson his Miranda1 rights, they conducted a
recorded interview with Thompson. Thompson explained the fight that led to
Paula’s death happened on March 13, around 10 p.m. after they had both been
drinking alcohol. According to Thompson,
When [Paula] drinks, she gets really stupid and starts slamming
things and yelling at me, and telling me I’m not doing a good job at
life, and that I’m a big mistake, and just always negative. And well,
we, the argument got really heated, you know, she got in my face, I
got in hers, then it escalated . . . . I hit her in the head with a crowbar
and—a few times—and she was on the floor, and she was just laying
there, and I didn’t know what to do. So, I, I put her back, dragged
her into her room, and I closed the door.
Thompson also threw a towel over Paula’s head and placed rugs over the blood
on the floor to keep from stepping in it.
1Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding police must advise suspects of
their constitutional rights before a custodial interrogation).
5
When asked why the fight escalated, Thompson claimed Paula would not
let him close his bedroom door and “was in his face.” Thompson “just snapped,”
and he revealed that this was when he walked through the kitchen to get to the
back stairway and retrieve the crowbar from the toolset. Upon further
questioning, Thompson reported that there was no argument with Paula after he
grabbed the crowbar. Rather, he went up to Paula and immediately hit her in
the head with the crowbar, causing her to fall down. Thompson proceeded to “hit
her a few more times and she stopped moving.”
He estimated that he hit Paula “like seven” times. When asked what was
going through his mind, Thompson answered, “rage,” and explained, “I wanted
it to be over.” He stated he stopped hitting Paula after he saw all of the blood and
realized she was dead, then washed the crowbar in the kitchen sink because it
was dripping blood.
After Thompson explained what he did to Paula, the interviewers asked
him what happened to Paula’s cat. Thompson said he “just got rid of it” because
“it wasn’t [his] cat.” Upon further questioning, Thompson admitted to killing the
cat by hitting it with the same crowbar that he used to hit Paula, reasoning he
was “still pissed” about everything related to Paula and the cat was hers.
Thompson did not believe there was any of the cat’s blood on the crowbar and
expressed surprise that the cat “just broke” when he hit it. He grabbed the dead
cat by the neck and threw it in the garbage can outside. Thompson also smashed
Paula’s cell phone.
6
Until he went to the Polk County Jail on March 18, Thompson claimed he
only left the house to buy more alcohol after killing Paula and the cat. He told
the interviewers that he had initially lied to Baker about Paula being on a
drinking binge, but he was having trouble sleeping and felt compelled to admit
what he did on March 18. After Thompson’s interview, the State charged him
with first-degree murder, a class “A” felony, in violation of Iowa Code sections
707.1 and 707.2(1) (2020), as well as animal abuse, an aggravated misdemeanor,
in violation of Iowa Code section 717B.2. Thompson separately pleaded guilty to
the animal abuse charge.
A. Pretrial Evidentiary Issues. Before trial, the State filed a motion
requesting a hearing under Iowa Rule of Evidence 5.104(a) to determine the
admissibility of testimony from two witnesses—Melissa Moylan and Maggie
Wood—under either Iowa Rule of Evidence 5.404(b) involving prior bad acts or
5.803(3) regarding the declarant’s then-existing mental state. Moylan was a close
friend of Paula’s, and the State sought to admit testimony from Moylan about
conversations she had with Paula about Paula and Thompson’s relationship.
Specifically, Paula shared with Moylan that [Thompson] was
abusive. In December 2019, Moylan watched a video that was posted
to Paula’s Facebook page. In the video, Paula whispers that if
anything happens to her, it was [Thompson] who killed her.
Additionally, approximately one month before Paula’s death, Paula
confided in Moylan that she and [Thompson] had a heated argument
regarding finances. Paula told [Thompson] that she was done
supporting him and that he needed to move out of her house.
[Thompson] was upset because he didn’t want to work. Paula cut up
[her] credit cards in front of him. Paula told Moylan that she was
afraid of [Thompson]. She said that [Thompson] was drinking again,
but she didn’t know how he was getting his alcohol without an
income.
7
The State also sought to admit testimony from Wood, Thompson’s
probation officer at the time of his arrest in this case, regarding an email Paula
sent her at 5:49 p.m. on the night she died expressing her fear of Thompson. The
email stated, “Maggie, I a[m] tired o[f] being scared . . . he is a drunk. I called the
cops and they said to contact you. I need your help I am done. [H]elp please.”
Wood would also testify that she knew the email came from Paula because Paula
had emailed her before about Thompson.
Following a hearing, the district court ruled Paula’s statements about
being afraid that Thompson might kill her, that she was done financially
supporting Thompson, and her desire to get Thompson out of the house were
admissible under Iowa Rule of Evidence 5.803(3) as statements of Paula’s then-
existing mental, emotional, or physical condition. It also allowed the State to
introduce testimony from Moylan about Paula’s Facebook video under the same
rule so long as the evidence that Paula later withdrew the video and told others
she was fine was also admitted. The district court reserved ruling on additional
statements until trial.
At the final pretrial conference, Thompson again objected to the district
court’s ruling on the admissibility of the challenged evidence. He also explained
that he would make a general objection again at trial to the witnesses’ testimony
based on the rule 104(a) hearing. The district court denied Thompson’s renewed
objection.
B. Thompson’s Trial. A jury trial concerning Thompson’s first-degree
murder charge commenced on November 2. Throughout the trial, Thompson
8
acknowledged killing Paula, but he argued he was guilty of “either voluntary
manslaughter or murder in the second degree” instead of first-degree murder.
Namely, Thompson argued he killed his mother as an act of passion and
provocation instead of an act that was willful, deliberate, and premeditated. He
did not testify.
Baker testified about her attempts to reach Paula and her interactions
with Thompson during that time, including Thompson’s admission to her that
he killed Paula with a crowbar. Moreover, the medical examiner testified about
the extent of Paula’s injuries and jail staff testified about their interactions with
Thompson when he turned himself in at the Polk County Jail. The jury also heard
from one of the interviewing detectives and watched the detectives’ recorded
interview with Thompson, the responding officer’s body camera footage
discovering Paula’s body, and video footage of the crime scene. Similarly, it
listened to Baker’s 911 call reporting what Thompson told her about killing
Paula.
Additionally, the jury heard the challenged testimony from Moylan and
Wood. Moylan testified about the Facebook video that Paula had posted late at
night in December 2019. She described Paula sitting in her living room and
“quietly whispering and saying, He’s going to kill me; he’s going to hurt me; I’m
scared; he’s going crazy. And she was . . . referencing [Thompson].” Moylan could
not reach Paula by phone or text that night or the next morning, so she called
the police to perform a welfare check on Paula. Paula later called Moylan to tell
her the police had come and she told them everything was fine. Moylan said
9
Paula was quiet and whispering on the phone, stating, “I can’t talk about it” and
“I’ll tell you later,” when Moylan asked her what happened.
Further, Moylan testified about a conversation she had with Paula over
lunch in February 2020, declaring:
[Paula] was telling me that they had got into an argument
because she had told [Thompson] that she was no longer going to
take care of him financially, that he needed to work and that he got
upset; and she took her credit cards out of her purse and cut them
up in front of him and said, [t]his is it and this is proof that this is
it, and that made him very angry.
On cross-examination, Moylan admitted Paula “struggle[d] with
alcoholism” and argued with Thompson when she and Thompson drank
together. She conceded that Paula was known to go on drinking binges when she
would not respond to Moylan for a few days. She also acknowledged she did not
hear any yelling or disturbance in the Facebook video.
Likewise, the jury heard testimony from Wood about her interactions with
Paula as Thompson’s probation officer for seven years. Although Wood had never
met Paula in person, she had corresponded with her through email before. Wood
testified that she received an email time-stamped 5:49 p.m. on March 13, 2020,
from Paula declaring she was afraid of Thompson and was asking for Wood’s
help because the police told Paula to contact her. Wood was off work at the time
and did not receive the email until March 18.
The jury found Thompson guilty of first-degree murder. Thompson
subsequently filed a motion in arrest of judgment and a motion for new trial,
both of which the district court denied. Following sentencing, Thompson filed a
timely notice of appeal. We transferred the case to the court of appeals, which
10
affirmed Thompson’s convictions. We granted Thompson’s application for further
review.
II. Standard of Review.
We review the district court’s evidentiary rulings on hearsay for errors at
law. State v. Skahill, 966 N.W.2d 1, 8 (Iowa 2021). This is because the district
court lacks “discretion to admit hearsay in the absence of a provision providing
for it” or deny the admission of hearsay if it falls within an exception. Id. (quoting
State v. Veverka, 938 N.W.2d 197, 202 (Iowa 2020)). We consider inadmissible
hearsay to be prejudicial to the nonoffering party “unless the record affirmatively
establishes otherwise.” State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (quoting
State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004)).
III. Analysis.
Thompson contends the district court erred when it allowed Moylan and
Wood to testify under Iowa Rule of Evidence 5.803(3) about previous statements
Paula made because they constitute irrelevant hearsay statements.2 He
specifically challenges three different hearsay statements that were admitted at
trial: (1) Paula’s statements to Moylan and Wood that she was afraid of
Thompson, (2) Paula’s statements to Moylan that she was going to stop
2Thompson also discusses whether the challenged evidence was admissible under Iowa
Rule of Evidence 5.404(b), which governs evidence of prior bad acts. Although the State argued
the challenged evidence was admissible under both rule 5.803(3) and 5.404(b), the district court
resolved the admissibility question under rule 5.803(3) and offered no ruling on the applicability
of rule 5.404(b). Consequently, we decline to address the applicability of the evidence under
5.404(b) on appeal.
11
financially supporting Thompson, and (3) the statements Paula made in her
Facebook video.
“Hearsay is a statement the declarant makes other than while testifying at
the current trial that is offered ‘to prove the truth of the matter asserted in the
statement.’ ” State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021) (quoting Iowa
R. Evid. 5.801(c)(2)). Hearsay is inadmissible unless it falls within an enumerated
exception to the law. Id. Iowa Rule of Evidence 5.803(3) provides one such
exception, allowing the admission of hearsay statements
of the declarant’s then-existing state of mind (such as motive, intent,
or plan) or emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.
Nevertheless, the admission of such evidence hinges on its relevance.
Newell, 710 N.W.2d at 19. Specifically, the evidence must have a tendency to
make a consequential fact in determining the action “more or less probable than
it would be without the evidence.” Iowa R. Evid. 5.401. Thompson maintains the
hearsay exception under rule 5.803(3) is inapplicable because the hearsay
statements regarding “Paula’s state of mind and emotional state were not
relevant” to “any legitimate issue.” The problem with Thompson’s argument is
that the statements reveal more than Paula’s state of mind, as they also speak
to her contentious relationship with Thompson that may have motivated
Thompson to kill Paula. “[A] murder victim’s statements falling within the state
of mind exception to the hearsay rule are highly relevant to show the status of
12
the victim’s relationship to the defendant.” State v. Alston, 461 S.E.2d 687, 704
(N.C. 1995).
We have reiterated this time and again.3 For example, we expressed the
relevance of these relationships in State v. Newell, noting,
An essential element of first-degree murder is malice aforethought.
“Malice aforethought” is defined as “a fixed purpose or design to do
some physical harm to another that exists before the act is
committed.” “Because this element is a state of mind, circumstantial
evidence is generally used to prove malice.” We have held the prior
relationship between the defendant and the victim, including bad
feelings, quarrels, and physical acts, is a circumstance that may be
shown to prove the defendant’s state of mind and motivation at the
time of the crime.
710 N.W.2d at 21 (citations omitted) (quoting State v. Buenaventura, 660 N.W.2d
38, 49 (Iowa 2003)); see also State v. Richards, 809 N.W.2d 80, 93 (Iowa 2012)
(“Richards’ past acts of violence toward Cyd ‘reveal[] the emotional relationship
between the defendant and the victim and [are] highly probative of the
defendant’s probable motivation and intent in subsequent situations.’ ”
(alteration in original) (quoting State v. Taylor, 689 N.W.2d 116, 125 (Iowa
2004))); Buenaventura, 660 N.W.2d at 49 (holding the acrimonious relationship
between the defendant and the victim could be used to support a finding of
malice aforethought); State v. Kellogg, 263 N.W.2d 539, 542 (Iowa 1978)
(concluding hearsay testimony about the defendant and victim’s “stormy
marriage” was relevant to the defendant’s intent to harm the victim).
3Likewise, “statements by murder victims regarding their plans and feelings[] have been
admitted as hearsay exceptions in a number of jurisdictions.” E.g., People v. Fisher, 537 N.W.2d
577, 581 (Mich. 1995) (discussing cases in various jurisdictions that have admitted this evidence
as a hearsay exception).
13
In that case, Newell was convicted of the first-degree murder of his
girlfriend and challenged admitted hearsay evidence that included the victim’s
“statements to a number of persons that she was scared of Newell, that she
feared for her safety, that she planned to leave Newell, and that she was afraid”
Newell would keep their baby away from her if she left. Newell, 710 N.W.2d at
18. We concluded these statements were admissible under rule 5.803(3)—the
same hearsay exception the district court applied in Thompson’s case—because
the victim’s emotional state was relevant “to rebut the defendant’s position that
he and the victim had a loving relationship.” Id. at 19; see also Martinez v. State,
17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (en banc) (“[The victim’s] statement
that she was afraid of appellant was a statement of the declarant’s then existing
state of mind” under Texas Rule of Evidence 803(3)). Thompson seizes on this
“loving relationship” language in an attempt to distinguish his case, explaining
he admitted killing Paula and “was not claiming that he had a loving relationship
with [her] or that she died by accident.”
But this is a distinction without a difference. The district court correctly
concluded that Paula’s statements to Moylan and Wood expressing fear of
Thompson and her statements to Moylan that she was done financially
supporting Thompson are comparable to the challenged statements in Newell.
As the district court reasoned, Paula’s statements to Moylan about her plan to
stop supporting Thompson financially and that he needed to move out are
virtually identical to someone’s plan to leave their spouse. She’s
saying, I’m planning -- whether you’re going to be the one leaving
the house or whether you’re making the other person leave the
house, it’s the plan to separate in the relationship. And she makes
14
a similar statement to [Wood] that -- the statement that she called
the cop; “They said to contact you; I need your help; I am done;
please help, please” also falls within that plan category.
See, e.g., State v. Wood, 881 P.2d 1158, 1167–68 (Ariz. 1994) (en banc) (“The
statements about [the victim’s] fear and desire to end the relationship helped
explain Defendant’s motive. The disputed trial issues were Defendant’s motive
and mental state—whether Defendant acted with premeditation or as a result of
a sudden impulse. The prosecution theorized that Defendant was motivated by
anger or spite engendered by [the victim’s] termination of the relationship. [The
victim’s] statements were relevant because they showed her intent to end the
relationship, which in turn provided a plausible motive for premeditated
murder.” (footnote omitted)); State v. O’Neal, 721 N.E.2d 73, 84–85 (Ohio 2000)
(holding the victim’s statements that she was afraid of the defendant—her
husband—and planned to separate and end the marriage were admissible at the
defendant’s aggravated murder trial as evidence of the victim’s then-existing
state of mind).
Moreover, Thompson’s attempt to distinguish his case from Newell based
on the “loving relationship” language overlooks the portion of Newell that is
directly on point here. Newell, 710 N.W.2d at 21–22. Namely, “If Newell and [the
victim] had an acrimonious relationship, it is more probable that Newell acted
with malice—a fixed purpose to do harm—at the time of [the victim’s] death than
if they had a loving relationship.” Id.; see also Taylor, 689 N.W.2d at 128 (“[I]f
the defendant was angry with his wife and hostile toward her, then it would be
more likely that he was aggressive and threatening when he found her in the
15
church parking lot. His anger and hostility make it more probable that he
intended to break out the van window so he could forcibly remove his wife from
the vehicle . . . .”). Here, the dispositive issue at trial was whether Thompson
acted with malice aforethought. Paula’s statements expressing her fear of
Thompson and her plan to withdraw financial support were probative of her
relationship with Thompson and his possible motive for harming Paula. See
Richards, 809 N.W.2d at 95 (“Cyd’s out-of-court statements to Furman and her
daughter that she was afraid of Richards and wanted to find somewhere else to
live were admissible under the hearsay rule exception for statements relating to
a ‘[t]hen existing mental, emotional, or physical condition.’ ” (quoting Iowa R.
Evid. 5.803(3))); Newell, 710 N.W.2d at 22. Similarly, they rebut Thompson’s
defense that he killed Paula impulsively out of rage without premeditation.
Further, like the challenged testimony in Newell and State v. Richards, the
testimony about Paula’s fear of Thompson was interwoven with admissible direct
evidence demonstrating the nature of their relationship. Perhaps most
significant of all was Thompson’s recorded interview with detectives confessing
to killing Paula, which the jury was shown. Like the challenged testimony,
Thompson made various statements in the interview that easily allowed the jury
to conclude that Thompson’s contentious relationship with Paula provided a
motive to kill her. For instance, he made multiple statements throughout the
interview about how mean Paula could be to him and admitted to arguing with
her every time she drank. Thompson stated that Paula would regularly “get[]
really stupid and start[] slamming things and yelling at me” when she drank
16
alcohol. Similar to the resentment Paula expressed to Moylan over financially
supporting Thompson, Thompson told detectives that Paula was ranting about
everything in the house being hers, including his clothes and the bedroom door
he was trying to close soon before he killed her.
Moreover, Thompson complained to the detectives about having to be
Paula’s “personal errand boy,” detailing a time Paula sent him to the grocery
store to get more wine at around “11 o’clock at night . . . I was like, are you
kidding me? I was asleep.” He even admitted to killing Paula’s cat because it
belonged to Paula, and he “was still pissed” at “[e]verything about mom,
everything she -- everything was hers.” Overall, the jury was not without direct
evidence from Thompson himself concerning the nature of his relationship with
Paula.
“[C]ourts have had little difficulty admitting evidence of a murder victim’s
fear of the accused when the victim’s fear was relevant to a material issue other
than ‘the happening of the event which produced the state of mind.’ ” Linton v.
State, 880 P.2d 123, 130 (Alaska Ct. App. 1994). That is the case here, as the
disputed evidence relating to Paula’s fear of Thompson was not used to prove
that Thompson had in fact previously done something to Paula to make her
afraid of him. Rather, this evidence suggests a plausible motive for Thompson’s
commission of the crime: that Thompson resorted to murder after Paula made it
clear that he needed to move out and that she would no longer financially
support him. See id. at 131; see also Re v. State, 540 A.2d 423, 430 (Del. 1988)
(holding the victim’s statement to a friend that the defendant had threatened to
17
kill the victim and believed he would not be found guilty as long as he acted crazy
were admissible as evidence of the victim’s state of mind, namely her “fear that
[the defendant] would kill her,” which was “contrary to [the defendant’s] position
that [the victim] incited stress in him which ultimately led him to kill her”); Moore
v. State, 761 P.2d 866, 870 (Okla. Crim. App. 1988) (“Much of [the state of mind]
testimony reflected Mrs. Moore’s fear of her husband and that he could harm
her. Such antecedent declarations by a decedent are admissible in a case of
homicide to show the decedent’s state of mind toward the defendant as well as
providing a motive for the killing.”).
Evidence of Paula and Thompson’s “acrimonious relationship” makes it
“more probable that [Thompson] acted with malice—a fixed purpose to do harm—
at the time of [Paula’s] death than if they had a loving relationship.” Newell, 710
N.W.2d at 21. Consequently, “this evidence was essential to the truth-seeking
function of the jury.” Id. at 23. To hold otherwise would result in a significant
departure from well-established Iowa precedent and require us to overturn
Newell and other cases that have relied on its reasoning. Thompson does not
offer a persuasive argument to justify such a drastic change.
We also reject Thompson’s comparison of the challenged statements to the
victim’s statements that we deemed inadmissible in State v. Buenaventura, 660
N.W.2d 38. There, the defendant sought to offer evidence that the murdered
victim told others that a man she was associated with at work
had refused to accept her lack of sexual interest in him, had stalked
her, had vandalized her pick-up truck, once violently, and who may
very well have met her outside of her apartment and may have talked
18
his way in or coerced her into admitting him to her room where he
ultimately killed her.
Id. at 51. Notably, the defendant sought to admit these statements to support
his defense that this man at work murdered the victim instead of the defendant.
Id. Consequently, we concluded the hearsay evidence was inadmissible because
the victim’s then-existing state of mind was not relevant when offered to
introduce the defense’s theory that the third party was actually responsible for
the murder. Id.
This situation is not comparable because Thompson admitted to killing his
mother and has never claimed otherwise. As the State simply put it in the hearing
on this evidence, “[T]he nature and the history of the relationship between a man
and his mother is relevant in a trial where the man is accused of killing his
mother.” That includes “bad feelings, quarrels, and physical acts” between them,
which “may be shown to prove the defendant’s state of mind and motivation at
the time of the crime.” Newell, 710 N.W.2d at 21. Accordingly, Thompson’s
relationship with his mother was relevant in deciding whether he acted with
malice aforethought regardless of his acknowledgment that they did not have a
loving relationship.
Thompson poses an additional relevance argument concerning Moylan’s
testimony about Paula’s Facebook video, asserting this testimony was not
relevant because Paula posted the video three months before her death. But the
passage of time makes no difference here because Paula’s statements that she
was afraid of Thompson in the video were part of her ongoing fear that Thompson
would harm her. Cf. Richards, 809 N.W.2d at 93 (“We believe the evidence that
19
Richards physically abused Cyd during the year before her death was relevant
and probative.”); State v. Gogg, 561 N.W.2d 360, 367 (Iowa 1997) (explaining that
the passage of time between an informant’s observations and the issuance of a
warrant is “less problematic” when the information shows ongoing activities
“because it is more likely that these activities will continue for some time into
the future”). Her other, more recent statements to Moylan and Wood corroborate
that ongoing fear, including the email she sent to Wood hours before Thompson
killed her expressing this fear.
Ultimately, all of the evidence that Thompson challenges was highly
relevant because it was pertinent to his possible motive for killing Paula.
Therefore, the district court correctly concluded it was admissible under Iowa
Rule of Evidence 5.803(3).
IV. Conclusion.
For the reasons discussed above, we affirm Thompson’s conviction.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
All justices concur except May, J., who takes no part. Mansfield, J., files a
concurring opinion, in which Waterman, J., joins.
20
#20–1689, State v. Thompson
MANSFIELD, Justice (concurring).
I join the court’s well-written opinion.
I write separately to express my misgivings about admitting a victim’s prior
out-of-court statements under the Iowa Rule of Evidence 5.803(3) state-of-mind
exception, when the purpose is not actually to prove the victim’s state of mind
but to raise an inference as to what the defendant must have done to bring about
that state of mind.
The district court allowed witnesses to testify to Paula’s out-of-court
statements that she was scared of Thompson, that she had contacted police, that
she had cut up her credit cards in front of Thompson making him angry, that
she had a heated argument with Thompson, and that she had told Thompson
she was no longer going to support him. All of this evidence was hearsay.
Notably, some of these out-of-court statements involve Paula’s reports of
things she had said or done—for example, that she had contacted the police or
cut up her credit cards and made Thompson angry. These do not seem to fall
under any hearsay exception, and nobody has cited an applicable hearsay
exception. In the ordinary course of events, they would be inadmissible hearsay.
Other statements might potentially be admissible under the rule 5.803(3)
hearsay exception for “statement[s] of the declarant’s then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily health).” Id. For example, assuming that
Paula’s fears of Thompson were directly relevant to an issue in the case, evidence
21
that she told people she feared him would be admissible. A victim’s previous fear
of the defendant would be relevant, for example, if consent were an issue in the
case.
I question whether Paula’s fear, standing alone, is relevant in this case.
Rather, her fear is relevant only to the extent it suggests that Thompson had
done or said things to make her afraid. That’s a hearsay inference. It is as if
Paula said, “I’m afraid of Thompson because he has done things that make me
frightened.” It engenders the same “backdoor hearsay” problem we have
discussed in the past, where evidence that appears on its face not to be
inadmissible hearsay is used so that jurors will draw an improper hearsay
inference. See, e.g., State v. Huser, 894 N.W.2d 472, 493–97 (Iowa 2017)
(discussing this issue).
McCormick on Evidence summarizes the issue well:
A recurring problem arises in connection with the
admissibility of accusatory statements made before the act by the
victims of homicide. If the statement is merely an expression of fear,
such as, “I am afraid of D,” no hearsay problem is involved, since
the statement falls within the hearsay exception for statements of
mental or emotional condition. This does not, however, resolve the
question of admissibility. The victim’s emotional state must relate to
some legitimate issue in the case. For example, the victim’s
emotional state may permit the inference of some fact of
consequence, such as lack of consent where the prosecution charges
that the killing occurred during the commission of either a
kidnapping or rape.
However, the most likely inference that jurors may draw from
the existence of fear, and often the only logical inference that could
be drawn, is that some conduct of the defendant, probably
mistreatment or threats, occurred and caused the fear. The
possibility of over-persuasion, the prejudicial character of the
evidence, and the relative weakness and speculative nature of the
inference, all argue against admissibility as a matter of relevance.
22
Moreover, even if the judgment is made that evidence of fear
standing alone should be admitted, statements of fear are rarely
stated pristinely. Instead, that state of mind usually assumes the
form either of a statement by the victim that the accused has made
threats, from which fear may be inferred, or perhaps more likely a
statement of fear because of the defendant’s threats. Not only does
the evidence possess the weaknesses suggested above for
expressions of fear standing alone, but in addition it seems unlikely
that juries can resist using the evidence for forbidden purposes in
the presence of specific disclosure of misconduct of the defendant.
In either event, the cases have generally excluded the
evidence.
2 Kenneth S. Broun et al., McCormick on Evidence § 276, at 426–28 (Robert P.
Mosteller ed., 8th ed. 2020) (footnotes omitted) [hereinafter Broun]; see also
United States v. Brown, 490 F.2d 758, 766 (D.C. Cir. 1973) (“The principal danger
[of admitting such statements] is that the jury will consider the victim’s
statement of fear as somehow reflecting on defendant’s state of mind rather than
the victim’s—i.e., as a true indication of defendant’s intentions, actions, or
culpability.”); 7 Michael A. Graham, Handbook of Federal Evidence § 803:3, at
195 (9th ed. 2020) (“An important limitation, however, is that the mental or
emotional condition sought to be shown, ‘such as fear, must be relevant other
than to prove the events giving rise to the fear.’ ” (quoting 2 Broun § 274, at 411
n.20)); Lynn McLain, “I’m Going to Dinner with Frank”: Admissibility of
Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than
the Speaker—and the Role of the Due Process Clause, 32 Cardozo L. Rev. 373,
394 (2010) (“In the typical homicide case, for example, the victim’s state of mind
and her own subsequent acts are usually irrelevant. What is in question, rather,
is only the defendant’s conduct: Did the defendant murder her? Her statement,
23
“I’m afraid of Defendant,” though it describes her state of mind, would ordinarily
be relevant only to prove that the defendant had done something in the past to
put the victim in fear, which in turn would make it more likely that he had hurt
her this time as well. It thus would be offered for a ‘backward-looking’ initial
purpose and would be inadmissible under Shepard, as codified in Rule 803(3).”
(footnotes omitted)).
In State v. Nance, we adopted the McCormick line of reasoning in holding
that a victim’s out-of-court statements that she feared the defendant should not
have been admitted in a murder trial. 533 N.W.2d 557, 561 (Iowa 1995). As we
explained,
Although it may be “state of mind” evidence, it was
inadmissible because the probative value of the evidence did not
substantially outweigh the danger of unfair prejudice. Iowa R. Evid.
403. The admission of Powell’s testimony about [the victim’s]
statement of fear was prejudicial error.
Id. We also quoted from United States v. Brown with approval. Id. at 559–60.
Ultimately, we reversed the defendant’s conviction and remanded for a new trial
even though the statements were made by the victim only “twelve to fourteen
hours before she was shot” and even though the state had argued—and the
district court agreed—that they were admissible “to contradict prior testimony of
a close and kind relationship between the victim and the defendant.” Id.
But Nance is not our last word on the subject. Closer in time are our 2006
and 2012 opinions in State v. Newell, 710 N.W.2d 6 (Iowa 2006), and State v.
Richards, 809 N.W.2d 80 (Iowa 2012). In Newell, we held that a murder victim’s
statements that she was scared of the defendant and feared for her safety were
24
admissible under the rule 5.803(3) exception because “[the victim’s] emotional
state was relevant in this case to rebut the defendant’s position that he and the
victim had a loving relationship.” 710 N.W.2d at 19. In Richards, we likewise held
that a murder victim’s out-of-court statements “that she was afraid of [the
defendant] and wanted to find somewhere else to live” were admissible under
rule 5.803(3). 809 N.W.2d at 95 (citing Newell, 710 N.W.2d at 18–19). These
opinions do not mention Nance, but they reflect the current state of the law in
Iowa.
In Newell and Richards, the relationship between the defendant and the
victim was largely proved by direct evidence. Any testimony that the victim feared
the defendant was interwoven with lots of clearly admissible evidence about the
defendant’s prior abusive behavior toward the victim. See Newell, 710 N.W.2d at
19 (“[T]he fact that the couple was not getting along could be easily gleaned from
the admissible testimony.”); Richards, 809 N.W.2d at 95 (“There was plenty of
nonhearsay evidence that [the defendant] abused [the victim].”). Here, as the
court’s opinion ably demonstrates, there was likewise considerable nonhearsay
evidence concerning the relationship between Thompson and Paula. The hearsay
bolstered a case regarding the parties’ prior relationship developed mostly
through nonhearsay, principally Thompson’s interview. So I think this case is
governed by Newell and Richards.4
4I note that the court’s opinion has a series of quotations from out-of-state cases. I’d be
wary of putting too much stock in those quotations. There is also a lot of out-of-state authority
supporting the McCormick position. See Jay M. Zitter, Annotation, Admissibility of Evidence of
Declarant’s Then-Existing Mental, Emotional, or Physical Condition, Under Rule 803(3) of Uniform
Rules of Evidence and Similar Formulations, 57 A.L.R.5th 141, § 3[b] (1998); see also Gordon Van
25
Having said that, I would exercise caution in admitting prior statements of
a decedent in a murder case. Each statement, and the reasons for which its
admission is sought, should be examined separately and carefully.
Waterman, J., joins this concurrence.
Kessel, Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach, 49
Hastings L.J. 477, 537 n.250 (1998) (characterizing United States v. Brown as representing “the
majority view”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487707/ | NOT DESIGNATED FOR PUBLICATION
No. 124,044
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Estate of
JOHN R. JAMES.
MEMORANDUM OPINION
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed November 18,
2022. Affirmed.
Joshua J. Boehm and David P. Troup, of Weary Davis, L.C., of Junction City, for appellant
Thomas James.
Whitney L. Casement, Bradley R. Finkeldei, and Matthew Hoy, of Stevens & Brand, L.L.P., of
Topeka, and Catherine C. Theisen, of Barber Emerson, L.C., of Lawrence, for appellee Katherine James.
Before WARNER, P.J., GREEN and HILL, JJ.
PER CURIAM: Thomas James appeals from the trial court's ruling that he reached a
valid settlement agreement with his sister Katherine James in the probate of their father's
estate. At a hearing in 2020, counsel read a settlement into the record. A few days later,
Thomas signed the agreement, making some handwritten notes in the margin and adding
a two-page supplement. After the trial court ruled that the parties had a valid settlement
agreement, Thomas appealed but did not move to stay probate proceedings. The trial
court ordered a final distribution in 2021. Because we conclude that the trial court's ruling
was right for the wrong reason, we affirm.
1
FACTS
John R. James died in March 2017 and his two children, Katherine and Thomas,
have been in litigation ever since. When John died, he was subject to a guardian and
conservatorship proceeding in Douglas County, and Katherine served as her father's
conservator.
In April 2017, John's widow Barbara James filed a petition for probate of will
requesting admittance of John's handwritten will. Stevens and Brand, LLP represented
both Barbara and Katherine in this present matter and in the conservatorship proceedings.
Since this action was filed in April 2017, five attorneys have represented Thomas and
have been allowed to withdraw from the case.
In June 2017, the trial court appointed Barbara the executor of the estate and
admitted John's will to probate. The estate's inventory totaled more than $13 million, the
bulk of which was corporate stock, making it subject to substantial changes in value.
Barbara filed two accountings showing the estate's expenses and the recorded dividend
reinvestments and interest payments. In March 2018, Barbara petitioned for final
settlement. Then Barbara died in May 2018.
Two days after Barbara died, Thomas petitioned the trial court to appoint him
executor of the John James estate. Katherine also petitioned to be named executor and
filed a written defense to Thomas' petition. The trial court appointed Katherine as
temporary successor executor. Thomas then issued a series of subpoenas related to the
estate's investment accounts. He sought account history, balances, ownership status, and
records of beneficiary designations by sending business record subpoenas to U.S.
Bancorp, Merrill Lynch, Baldwin State Bank, and other financial institutions. Katherine
objected to all of Thomas' subpoenas.
2
In July 2018, Katherine asked to file an amended inventory and valuation with the
trial court, explaining that some assets originally listed had a surviving joint owner and
should not have been included in the original inventory of John's assets. In April 2019,
Katherine added a supplement to the amended inventory. In the supplement, Baldwin
State Bank corrected an ownership classification, explaining that John and Barbara
owned the Baldwin State Bank account as tenants in common, not as joint tenants with
right of survivorship. The supplement also added a certificate of deposit to the probate
assets.
On September 23, 2020, counsel circulated an acknowledgement of settlement
agreement. Katherine signed it that day.
On September 24, 2020, the trial court held a pretrial motions hearing to prepare
for trial coming up on September 28. The parties instead told the trial court that they
reached a resolution in the matter. Katherine's counsel advised the trial court that the
parties had written out bullet points of agreement, stating that "these bullet points are
intended to be more fully developed in a valid settlement agreement pursuant to K.S.A.
59-102(8)." Katherine's counsel read into the record the agreement that Katherine had
signed. The trial court discussed with counsel a reasonable time frame to expect Thomas'
signature and set the matter for a hearing on September 29, 2020.
Counsel for the parties believed that the agreement would be fully executed on
Monday, September 28, 2020. But the matter was set for an evidentiary hearing that day.
With some trepidation, the trial court canceled the hearing, cautioning the parties as
follows:
"Based on what I have heard today, I am making a finding that the parties have entered
into a settlement agreement. It remains to be memorialized and in a written format and
formally executed, but if I remove matters from the docket for Monday, these contested
3
matters, the parties are foregoing their opportunity to contest the issues that are set for
Monday. And the only contest that would exist thereafter would be as to any nonmaterial
terms to the agreement that's been announced here today."
On September 28, 2020, Thomas signed the agreement. At the hearing on
September 29, 2020, counsel told the trial court that Thomas had signed the agreement
but had made some handwritten edits. Next to paragraph seven of the agreement, Thomas
wrote "security at [the address on 1400 Road] remains to be resolved" and either struck
through or underlined part of paragraph seven. That language released Katherine and the
estate from liability for personal property stored at that address. It is unclear whether
Thomas meant to strikethrough or underline the language. Thomas' counsel told the trial
court that this edit was not a material change.
The real property at the address on 1400 Road was not a probate asset and became
Katherine's property after separate litigation. Neither the original language of the
agreement nor Thomas' edit dealt with the real estate. Both writings addressed some of
the personal property stored on the real estate. That personal property was to go to
Thomas, but he was not yet able to retrieve it.
Thomas also altered language in paragraph four, related to the nonprobate asset of
the Nicholas Fund investment account. He struck through the words "Barbara is the
beneficiary" and handwrote "is distributed to Barbara." At paragraph 12, Thomas made a
cosmetic change by striking through part of the phrase "Thomas also agrees he will not
object" to make it read simply "Thomas will not object." At paragraph 13, Thomas
underlined "the settlement." The trial court found that these handwritten notes made no
material changes to the valid settlement agreement.
4
The trial court went on to discuss the fact that, despite the parties both signing a
valid settlement agreement, they already disagreed as to interpretations of some language.
In the trial court's own words, it stated:
"And on the more detailed issue that both counsel, all counsel have spoken to, as
to the proper interpretation of [']Thomas will release Katherine,['] etcetera, as struck
through in what's been presented to the Court and executed by Thomas James, I think
what it boils down to is if that's a term that the Court needs to make a finding on at some
future date as to what the parties' intent was, then we can have a hearing on that. But
nothing I have heard today disturbs my prior finding that a material—that an agreement
exists in all material terms. And as I said, or as I think I recall saying on the 24th, the
only thing that could be a source of contention between the parties would be refining
those terms or interpreting the intention of the parties with respect to any of those terms.
And what I am hearing today sounds like falls within the scope of that finding by the
Court. And so I don't believe there is a request before the Court today to resolve any
dispute as to what the final terminology should be or what the final interpretation should
be of that language.
"I take it that's the purpose of setting the hearing for October 22nd at 10:30, and
if there needs to be some other requests prior to that time, but my finding stands that there
is an agreement and the parties are duty bound to work in good faith towards reducing an
agreement to a form that can be submitted to the Court as a valid settlement agreement,
and I'm not sure there is more I can find today."
At the October 2020 hearing, Katherine explained to the trial court the progress
made from the signed settlement agreement. Katherine used the "15 bullet points" of the
settlement agreement to draft a "detailed distribution schedule outlining which particular
assets would be liquidated to pay for fees, [and] how distribution of the various financial
assets would occur." Thomas had not signed or offered revisions on this "more
comprehensive settlement agreement." When the parties requested another hearing date,
the trial court described what that hearing would address as follows:
5
"So again, thinking out loud, the issues would be, A, is any objection to the final
settlement agreement a term that was fairly within the contemplation of what the Court
has already found was announced by [Katherine's counsel], and then at the 24th—let me
get my dates correct for the record—we were here on September 24th, the agreement was
read into the record, and then on the 29th the Court was presented with a proffer of the
acknowledgement of settlement that had been both marked on by presumably Mr. James,
but ultimately signed by him, and then was not signed by Katherine because of a concern
about whether she wanted to accept those edits.
"And so what we would be dealing with is first and foremost is any dispute
beyond what's within the fair contemplation of the settlement agreement that was
approved by the Court in concept. And then if it's within the scope of that, what did the
parties intend to agree as I have heard it announced at the previous hearings."
The trial court further stated the following, "[W]e've decided there is an
agreement, it's a question of, you know, putting it into terms that the parties can execute,
and really I don't see what the other issues would be."
In November 2020, Katherine submitted a draft of a settlement which detailed the
distribution of assets. The same day, Thomas' counsel moved to withdraw. The trial court
held hearings on the withdrawal motion. The trial court recapped the status of the case,
stating that "on September 29th the Court made a finding that the parties had a settlement
agreement, and that any dispute as to the language of the final agreement would be left
open for the Court to resolve." Thomas' counsel explained that the attorney-client
relationship was not working in part because she did not include two additional pages that
Thomas wanted attached to the signed settlement agreement as a supplement. The trial
court allowed Thomas' counsel to withdraw and advised Thomas to secure new counsel
while the trial court worked on its written ruling, allowing for the possibility that new
counsel might file additional motions.
The trial court issued its journal entry and memorandum decision in January 2021.
The trial court concluded that the Thomas Supplement was in "legal harmony" with the
6
valid settlement agreement, addressing the same topics and evincing the same essential
understanding. The trial court found this:
"The Settlement as read into the record and approved by the Court is and remains
a binding valid settlement agreement regarding the issues addressed within its terms. The
settlement removed from the docket all disputes as to the content of the final inventory in
this estate. To the extent the agreement restricts or prohibits any objections or actions as
to final settlement, those terms will be binding on the parties.
"Further, the Court finds that this conclusion is so self-evident from the language
of the instruments that the parties are relying upon to dispute the existence of a settlement
agreement that taking evidence would add no material value to the Court's ability to
properly resolve the dispute."
Thomas, through new counsel, moved for reconsideration, claiming for the first
time that he signed the settlement agreement under threat of violence. At an evidentiary
hearing, Thomas testified that his counsel told him on September 28, 2020, that there
would be violence against Thomas and his counsel if Thomas did not sign the agreement.
Thomas could not elaborate on what kind of violence was threatened and could not
remember the details of any threat of violence. Two months after Thomas signed the
agreement, his counsel e-mailed him explaining the following: "'I am really sorry that I
thought you understood my message of 1:30 about what the Acknowledgement
represented. I am truly sorry that you somehow thought there was a threat of violence
involved.'" After the evidentiary hearing, the trial court found that Thomas failed to
present sufficient evidence to support his claim of duress, noting that several previous
hearings had given Thomas multiple opportunities to raise allegations of duress earlier.
The trial court reiterated its earlier finding that a valid settlement agreement existed.
Thomas appealed the ruling the next day, which is the appeal currently before us.
The record contains no motion from Thomas for a stay of probate proceedings pending
7
this appeal. The trial court proceeded with a hearing on Katherine's petition for final
settlement.
At the hearing, Thomas told the trial court that the pending appeal had no effect on
the proceedings, that he had not filed a motion for stay, and that the trial court could
continue to final settlement. Thomas objected to Katherine's executor fees, despite
previously agreeing that he would not object. Thomas also objected to Katherine's
petition for final settlement but neglected to raise the issue presented here—that no valid
settlement agreement existed. After the hearing, the trial court issued orders on
distribution of the probate assets. The record contains no notice of appeal from the trial
court's final distribution orders.
ANALYSIS
Did the trial court err by finding that there was a valid settlement agreement?
Thomas argues that the trial court erred by finding that the parties had a valid
settlement agreement on September 24, 2020. He notes that he had not signed it on that
day, and he argues that the agreement does not show a meeting of the minds on all
material terms. Katherine argues that the trial court correctly found that the parties had a
valid settlement agreement when Thomas signed it on September 28, 2020. She argues
that the parties agreed to all material terms.
"The interpretation and legal effect of written instruments are matters of law over
which our review is unlimited." Schmitendorf v. Taylor, 58 Kan. App. 2d 292, 301, 468
P.3d 796 (2020) (citing Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 [2016]; Prairie
Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270
[2014]). "The primary rule in interpreting written contracts is to ascertain the intent of the
parties. If the terms of the contract are clear, there is no room for rules of construction,
8
and the intent of the parties is determined from the contract itself." Liggatt v. Employers
Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002).
Normally, whether a contract exists is a question of fact. U.S.D. No. 446 v.
Sandoval, 295 Kan. 278, 282, 286 P.3d 542 (2012). An appellate court reviews a trial
court's finding that a contract exists for substantial competent evidence. Price v. Grimes,
234 Kan. 898, 904, 677 P.2d 969 (1984); Source Direct, Inc. v. Mantell, 19 Kan. App. 2d
399, 407, 870 P.2d 686 (1994).
K.S.A. 59-102(8) defines a valid settlement agreement as "a written and
acknowledged instrument which affects the administration or distribution of the estate
and which is entered into by all interested heirs, devisees, legatees and persons whose
interests are affected by the settlement agreement, all of whom must be competent or
authorized to enter into such agreement." Contract law governs the enforcement and
interpretation of valid settlement agreements. Schmitendorf, 58 Kan. App. 2d at 302.
K.S.A. 2021 Supp. 59-2249 permits the trial court to distribute an estate under a
will, the laws of intestate succession, or a valid settlement agreement. "The only
reasonable construction of these provisions, read together, is that the Kansas Legislature
intended all family settlement agreements to be in writing." In re Estate of Leathers, 19
Kan. App. 2d 803, 804, 876 P.2d 619 (1994).
Katherine advances our inquiry on whether the trial court erred in finding that a
valid settlement agreement occurred on September 24, 2020, by citing In re Estate of
Doffing v. House, No. 95,911, 2007 WL 3341742 (Kan. App. 2007) (unpublished
opinion). Thomas also cites Doffing to argue against its application, stating that it is an
unpublished opinion and that our Legislature has not amended K.S.A. 59-102(8) to
conform to its holding. But we conclude that Doffing is more like Rector v. Tatham, 287
Kan. 230, 196 P.3d 364 (2008), than it is to this case. A comparison, however, between
9
the Rector and Doffing cases helps to vividly illustrate the legal principles in Rector and
Doffing are not warranted in this appeal.
For example, Mary Rector had ongoing disputes with her brother and two sisters
in competing actions for guardianship and conservatorship of their mother. The siblings
signed a handwritten agreement which specified, among other things, that Rector would
buy their mother's home from their mother. If Rector could not raise the needed funds,
then the home would be sold, and the money used for the mother's benefit. The
agreement also stated that if the mother died, the remaining balance of the
conservatorship would be payable to Rector. But when the mother died, $50,000
remained in the conservatorship and it was distributed evenly among the siblings per their
mother's will.
Rector sued, alleging entitlement to the amounts distributed to her siblings. The
siblings defended by arguing that K.S.A. 59-2249(a) permitted only three ways to
distribute a decedent's estate: by will, by intestate succession, or by valid K.S.A. 59-
102(8) settlement agreement. And in the siblings' view, the handwritten agreement did
not meet the statutory requirements of a K.S.A. 59-102(8) settlement agreement. The
siblings cited the plain language of K.S.A. 59-102(8) and Leathers, which held that a
settlement agreement is not valid until it is written and signed by all parties. The siblings
noted that the agreement Rector sought to enforce was not signed and acknowledged by
all parties, failing to meet the K.S.A. 59-102(8) requirements. Nevertheless, the Rector
court pointed out a factual distinction that Rector was making between her case and the
Leathers holding:
"The first problem with this argument is that it misses the point of Rector's
petition and ignores a pivotal factual distinction between this case and Leathers. Rector
does not assert that the agreement signed by herself and two of her siblings on
January 31, 2003, is a valid family settlement agreement under K.S.A. 59-102(8); she
10
does assert that it is an enforceable contract independent of its probate context. And,
unlike the agreement at issue in Leathers, the agreement before us here was not entered
into after the death of the testator; it was entered into months before the parties' mother
died. Rector may sue for what she regards as a breach of contract, specifically, the
defendants' failure to abide by their assignment of their expectancy interests, as long as
such a cause of action is viable in Kansas." (Emphasis added.) Rector, 287 Kan. at 233-
34.
The Rector court determined that Rector could pursue a breach of contract claim
against her siblings. The disputed agreement did not fall under the probate code and did
not need to meet the requirements of K.S.A. 59-102(8). Thus, the trial court had erred in
ruling that the agreement failed the K.S.A. 59-102(8) requirements because K.S.A. 59-
102(8) simply did not apply to the cause of action.
This court in In re Estate of Doffing was less explicit than the Rector court. For
example, unlike the Rector court, the Doffing court did not state that it was dealing with
"an enforceable contract independent of its probate context." Rector, 287 Kan. at 234. But
the facts of Doffing are similar.
Some of Clement Doffing's assets were within his probate estate; the rest were in
two individual retirement accounts (IRAs). Before his death, Doffing distributed assets to
five of his seven children as an advance against later distribution upon his death. After his
death, all parties approved a settlement agreement whereby the pre-death distributions
were credited against post-death distributions. But the flaw in the settlement agreement
was that it did not specify whether the credits and offsets would come out of the probate
assets, the IRAs, or some combination.
Jo Ann House, as executor, filed the will for probate of Doffing's estate. Five of
the children filed written defenses to the probate action. But those same five children also
filed suit against the other two children and the corporate holders of the IRAs, seeking to
11
prevent distribution of assets until all the claims were resolved. The trial court
consolidated the probate action with the civil lawsuit.
Attorney Monte Vines made a settlement offer on behalf of all defendants (Vines
letter). Generally, the agreement provided that the children who received an advance
from Doffing while he was alive would receive a lower contribution after his death, with
an attached spreadsheet. Plaintiffs' counsel accepted the defendants' offer and began
drafting a family settlement agreement. Plaintiffs' counsel realized that the Vines letter
did not specify where the deductions would come from—whether the children receiving
less would receive less in probate assets or would receive less from the IRAs.
In In re Estate of Doffing, the Vines letter and accompanying spreadsheet showed
that some children already received advances and showed an agreement that those
children would now receive less. But the Vines letter was incomplete because it did not
show where to make those deductions.
Here, the 15-point acknowledgment of settlement also provides broad strokes for
dividing assets but without specifying, for example, which assets would be liquidated
before distribution. And the trial court found a valid settlement agreement was executed
on September 24, 2020, before Thomas had signed the settlement agreement. In Doffing,
plaintiffs' counsel accepted the Vines letter, but the parties did not sign it. For this reason,
Katherine argues that we should arrive at the same conclusion as the Doffing court and
hold that there is a valid settlement agreement.
So, Katherine contends that the parties agreed to all material terms and thus have a
valid settlement agreement under In re Estate of Doffing. Thomas argues, however, that
we should instead apply the rule from the published Leathers decision requiring a signed
writing rather than the unpublished Doffing exception. But the holding in Rector of "an
12
enforceable contract independent of its probate context" helps explain why Doffing will
not bear the weight of reliance that Katherine places on it.
The Doffing court addressed the signed writing requirement of K.S.A. 59-102(8)
from Leathers as follows:
"Jo Ann argued that based on Leathers, the [trial] court had no choice but to distribute the
probate estate equally because the parties had not individually signed the Vines letter or
any document containing its terms. The district court said that Jo Ann's 'interpretation
may be more sweeping tha[n] the Court of Appeals intended,' but it chose to distribute
the probate estate equally, thus leaving no possible violation of the Leathers rule. The
district court then ordered that the IRAs be distributed after making the adjustments
agreed to in the Vines letter." (Emphasis added.) In re Estate of Doffing, 2007 WL
3341742, at *3.
In short, the trial court in Doffing completely sidestepped the K.S.A. 59-102(8)
requirement for a valid settlement agreement under the probate code. The plaintiffs in
Doffing proposed equaling out the advances some children had received by unequal
distribution of probate assets, for tax purposes. But the trial court could not distribute
probate assets that way without a valid settlement agreement signed by the parties. So,
the trial court distributed the probate estate equally. But the IRAs were the subject of a
civil dispute, brought in by consolidating the civil and probate cases. On appeal, the
Doffing court did not analyze whether the parties had entered into a valid settlement
agreement under K.S.A. 59-102(8), but instead applied general contract principles to their
agreement about the IRAs. Seemingly, the Doffing court did the same thing as the Rector
court and analyzed whether the parties had "an enforceable contract independent of its
probate context." Thus, Katherine's and Thomas' reliance on Doffing will not resolve the
issue in this appeal.
13
On the other hand, Kansas law favors the settlement of legal disputes. Absent bad
faith or fraud, litigants who agree to resolve disputes may not subsequently repudiate
their agreements. In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979);
see James Colborn Revocable Trust v. Hummon Corp., 55 Kan. App. 2d 120, 128, 408
P.3d 987 (2017). In interpreting settlement agreements, it is important to remember that
"'[t]he law favors settlement of disputes'" over prolonged litigation. O'Neill v. Herrington,
49 Kan. App. 2d 896, 903, 317 P.3d 139 (2014).
Indeed, our Supreme Court declared this: "[F]amily settlement agreements are
favorites of the law and when fairly made, are to be given liberal interpretation and
should not be disturbed by those who entered into them or by those claiming under or
through them." In re Estate of Thompson, 226 Kan. at 441; Cassity-Hauck v. Hauck,
No. 120,022, 2019 WL 1497083, at *5 (Kan. App. 2019) (unpublished opinion).
"Hindsight, buyer's remorse, or other after-the-fact impulses cannot invalidate a
settlement." Schmitendorf, 58 Kan. App. 2d at 305.
Our Supreme Court has found that family settlement agreements are favored
because they prevent litigation between heirs "which is so often wasteful and which
engenders such bitter feeling between people who should have a tender regard for each
other. The desire that family harmony should not be destroyed by an unequal distribution
[of assets] has been held sufficient consideration to support a family settlement." Mills v.
Purdy, 142 Kan. 133, 135-36, 45 P.2d 1049 (1935).
Unlike Rector and In re Estate of Doffing, Katherine's and Thomas' dispute
revolves around whether the trial court correctly determined that a valid settlement
agreement had been executed by the parties under K.S.A. 59-102(8). The trial court's
journal entry declares: "There is no question, then, that the Court found that a valid
settlement agreement existed as of September 24, 2020." But Thomas had yet to sign the
agreement on September 24, 2020. So, the trial court's finding is obviously wrong
14
because K.S.A. 59-102(8) requires "a written and acknowledged instrument" signed by
all interested parties. Indeed, the Leathers court established that an acknowledged
instrument is one signed by all parties. 19 Kan. App. 2d at 804. Nevertheless, if a trial
court reaches the correct result, albeit for the wrong reason, the trial court's decision will
be upheld even though it relied on the wrong ground or assigned erroneous reasons for its
decision. See Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015).
Obviously, the requirements for a valid settlement agreement had yet to be fully
performed on September 24, 2020; that is, one party or both parties to the settlement
agreement had something yet to perform. Here, although Katherine had already signed
the settlement agreement, Thomas had yet to sign the settlement agreement on
September 24, 2020. Thus, the settlement agreement was partially executory as to
Thomas but executed as to Katherine. Wagstaff v. Peters, 203 Kan. 108, Syl. ¶ 2, 453
P.2d 120 (1969) ("An executory contract is one the obligation of which relates to the
future. A contract may be partly executed and partly executory.").
The trial judge explicitly acknowledged this lack of performance on Thomas' part
at the September 24, 2020 hearing when he stated: "It [a settlement agreement] remains
to be memorialized and in a written format and formally executed." Then, the trial judge
explained that he was removing from his docket the September 28, 2020 contested
hearing matter, revolving around the remaining material terms of the settlement
agreement, because he determined that both parties had assented to all the material terms
for a valid settlement agreement during the September 24, 2020 hearing. After this
determination, the trial judge stated this: "And the only contest that would exist
thereafter would be as to any nonmaterial terms to the agreement that's been announced
here today." Based on the trial judge's quoted language, he concluded that the parties had
agreed to all the essential material terms of the settlement agreement. And so, the only
remaining thing that needed to be done was Thomas' execution of the settlement
agreement.
15
Thus, the trial court here was correct that a valid settlement agreement existed, but
not because the parties had executed a valid settlement agreement on September 24,
2020. Nevertheless, Thomas' signing of the settlement agreement on September 28, 2020,
is of far more consequence in determining whether Katherine and Thomas had executed a
valid settlement agreement than the trial court wrongly finding a settlement agreement
had occurred on September 24, 2020. So, we conclude that a valid settlement agreement
was executed when Thomas performed his part of the settlement agreement when he
added his signature to Katherine's signature to the settlement agreement on September 28,
2020. And thus, we affirm the trial court's judgment as right for the wrong reason.
Fawcett Trust v. Oil Producers Inc. of Kansas, 315 Kan. 259, 288, 507 P.3d 1124 (2022)
(affirming trial court as reaching right result for wrong reason).
Next, we will consider Katherine's motion for attorney fess under K.S.A. 59-1504,
or in the alternative, under K.S.A. 59-2214. In her motion, Katherine maintains that she
"responded to Thomas James' appeal in good faith and with just cause, and is entitled to
an award of her fees and expenses, together with compensation for her services, pursuant
to K.S.A. 59-1504."
We are guided in our inquiry with this court's decision in In re Estate of Gardiner,
29 Kan. App. 2d 158, 23 P.3d 902 (2001). In Gardiner, the court broke down the
language of K.S.A. 59-1504 into four numbered elements that
"must be met before attorney fees may be recovered: (1) The party who may be allowed
the fees by the court must be an heir at law or a beneficiary under a will; (2) the party
must have exercised good faith and have had a good cause for incurring such fees; (3) the
party must be successful in his or her action; and (4) the action must ultimately benefit
the recipients of the estate. When the requirements are met, the court must exercise its
discretion to allow fees." 29 Kan. App. 2d at 163.
16
Three of these four elements were clearly met: (1) Katherine was a beneficiary
under the will; (2) she exercised good faith and had good cause for incurring the appellate
attorney fees here; and (3) she was successful in her action by showing that a valid
settlement agreement was entered into between herself and Thomas.
But there might be a question as to whether the fourth element was met: whether
the action ultimately benefited all the recipients of the estate. There is no question that
Katherine herself benefited from the action because she was successful in showing that a
valid settlement agreement was entered into between herself and Thomas. We note,
however, that Thomas challenged in his appeal whether he and Katherine had entered
into a valid settlement agreement. But we also note that Thomas did not file a response to
Katherine's motion for attorney fees under K.S.A. 59-1504.
As stated earlier, Kansas courts prefer that parties settle their disputes rather than
engage in prolonged litigation. In In re Estate of Thompson, our Supreme Court held that
"in the absence of bad faith or fraud, when parties enter into an agreement settling and
adjusting a dispute, neither party is permitted to repudiate it." 226 Kan. at 440. Here, the
partially executory settlement agreement between Katherine and Thomas became
executed when Thomas signed the settlement agreement on September 28, 2020.
Although Thomas may not have received everything he wanted, he did receive the
benefit of those things which led him to sign the settlement agreement on September 28,
2020. The word "settlement" must necessarily recall the notion of compromise.
We find that Katherine's request for $60,065 in appellate attorney fees are
reasonable and that these fees should be paid by John R. James' estate under K.S.A. 59-
1504.
17
Because we have affirmed the judgment of the trial court, it is not necessary for us
to consider the mootness issue.
Affirmed.
18 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487702/ | NOT DESIGNATED FOR PUBLICATION
Nos. 124,839
124,840
124,841
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THERESA MICHELLE MILLER,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed November 18,
2022. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2021 Supp. 21-
6820(g) and (h).
Before ARNOLD-BURGER, C.J., HILL and SCHROEDER, JJ.
PER CURIAM: Theresa Michelle Miller appeals the revocation of her probation and
order sending her to prison in three Shawnee County cases. We consolidated her appeals
and granted her motion for summary disposition under Supreme Court Rule 7.041A
(2022 Kan. S. Ct. R. at 48). We find no abuse of discretion by the district court and we
affirm.
In Shawnee County case No. 18CR2907, Miller pled guilty to possession of
methamphetamine, a severity level 5 nonperson felony. Her presumptive sentencing
1
range was in a border box. In May 2020, the court sentenced Miller to 18 months of
probation with mandatory drug treatment through Senate Bill 123 and an underlying 24-
month prison term.
In June 2020, in Shawnee County case No. 20CR643, Miller pled guilty to
burglary of a nondwelling with intent to steal a firearm, a severity level 5 nonperson
felony. The court granted her a downward dispositional departure to 36 months' probation
with a 57-month underlying prison sentence.
In September 2020, the State moved to revoke Miller's probation in 18CR2907
alleging that she violated her probation by:
• failing to report to her supervisor;
• failing to report to Senate Bill 123 drug treatment; and
• breaking the law—she was arrested for burglary and theft.
At the violation hearing, Miller stipulated to the first two technical violations. The
court sanctioned Miller with 60 days in the county jail with the possibility of release to
treatment when a bed became available. The court ordered her to take her medication as
prescribed.
In January 2021, in Shawnee County case No. 20CR2107, Miller pled no contest
to attempted burglary to a vehicle, a severity level 10 nonperson felony. The court
sentenced her to 12 months' probation with an underlying 10-month prison term.
In February 2021, the State filed a motion to revoke Miller's probation in
18CR2907 and 20CR643 alleging Miller violated her probation by:
• failing to report to her supervisor;
• using drugs;
2
• breaking the law—she was arrested for disobeying a direct order, criminal
trespass, and lurking and prowling with the intent to commit a crime; and
• failing to keep her supervisor apprised of her address.
At the violation hearing, Miller stipulated to the violations. The court sanctioned
her to 60 days in jail, with a possibility of early release to inpatient treatment.
In August 2021, Miller admitted to violating her probation by failing to remain
law abiding due to an arrest on August 5. She waived a hearing and accepted a three-day
jail sanction.
In August and September 2021, the State filed motions in all cases to revoke
Miller's probation alleging she violated her probation by:
• failing to report to her supervisor;
• breaking the law—she was arrested on August 22 on municipal charges for
pedestrian in roadway with sidewalk available and disobeying a lawful police
order;
• failing to report for drug treatment; and
• failing to keep her supervisor apprised of her address.
At the violation hearing in December 2021, Miller's probation officer testified that
Miller failed to report for supervision on several occasions, she did not live at the address
provided, and she did not report to her scheduled intake for outpatient treatment. Miller
had previously successfully completed inpatient treatment. The probation officer
explained the alleged new law violation was that Miller was walking in the street and did
not respond when officers ordered her to get out of the street.
3
The court found Miller violated the terms and conditions of her probation by
failing to report for supervision, failing to remain law abiding, failing to report for
treatment, and failing to keep her supervisor apprised of her address. The court agreed
with the defense that the alleged law violation was a "de minimis item or issue." And the
court understood that Miller was homeless and therefore conveying her location to her
supervising officer was difficult. But the court found that "looking at these things in
totality and combination, they rise to the level where the Court finds that she is in
violation of the terms and conditions of her probation."
The court revoked Miller's probation and ordered her to serve her underlying
sentences. The court reasoned that considerable resources had already been expended on
Miller and she had simply not changed her behavior. Miller timely appeals.
On appeal, Miller simply contends "the district court erred in revoking her
probation and in imposing the underlying prison sentence."
The State must establish that a probationer violated the terms of probation by a
preponderance of the evidence—or that the violation is more probably true than not true.
State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). We review the district
court's factual findings for substantial competent evidence. State v. Inkelaar, 38 Kan.
App. 2d 312, 315, 164 P.3d 844 (2007).
Here, Miller tried to mitigate the importance of her violations, but did not
seriously dispute the allegations. The district court's finding that she violated her
probation was supported by substantial competent evidence.
Once a probation violation has been established, the district court's decision to
revoke the offender's probation and impose the original sentence is discretionary unless
otherwise limited by statute. The court abuses its discretion if the decision is (1) arbitrary,
4
fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. The offender bears the burden of establishing such abuse of discretion. State v.
Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022).
Miller's underlying crimes were committed in October 2018, April 2020, and
September 2020. Therefore, the district court's decision to revoke her probation and order
her to serve her underlying sentences must have been exercised within the statutory
framework of K.S.A. 2018 Supp. 22-3716, K.S.A. 2019 Supp. 22-3716, and K.S.A. 2020
Supp. 22-3716. The court abuses its discretion when it does not follow the statutory
procedure. See State v. Wilson, 314 Kan. 517, 520-21, 501 P.3d 885 (2022).
Under K.S.A. 2018 Supp. 22-3716(c), the district court must impose a series of
intermediate, graduated sanctions before ordering a probation violator to serve their
underlying sentence, unless certain exceptions apply. The first sanction is a two- or three-
day jail sanction. The second is a 120- or 180-day prison sanction. The district court need
not impose any intermediate sanction if the court finds and sets forth with particularity
the reasons for finding that the safety of members of the public would be jeopardized, the
probation was originally granted as the result of a dispositional departure, the offender
committed "a new felony or misdemeanor" while on probation, or the offender absconded
while on probation. K.S.A. 2018 Supp. 22-3716(c)(8)-(9).
Under K.S.A. 2019 and 2020 Supp. 22-3716(c), the district court may revoke an
offender's probation after the offender has received at least one two- or three-day jail
sanction, or if the court finds one of the exceptions to the intermediate sanctioning
scheme listed above.
Here, the district court did not make an error of law or fact. The court had the
statutory authority to revoke Miller's probation in the 2020 cases because she already
served a three-day jail sanction. The court had the statutory authority to revoke Miller's
5
probation in 18CR2907 because she committed a new misdemeanor while on probation.
A reasonable person could agree with the district court's decision to revoke her probation.
Miller had been given the opportunity for treatment. But she continued to rack up
probation violations and break the law. Though the violations supporting this revocation
hearing were not serious, the standard is whether no reasonable person would have
agreed with the district court. And the burden is on the offender. Miller did not meet her
burden to show an abuse of discretion.
Affirmed.
6 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487697/ | Case: 21-2310 Document: 44 Page: 1 Filed: 11/18/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
INTELLIGENT INVESTMENTS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2310
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01221-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: November 18, 2022
______________________
WILLIAM J. FLEISCHAKER, Fleischaker & Williams, Jop-
lin, MO, argued for plaintiff-appellant.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
Case: 21-2310 Document: 44 Page: 2 Filed: 11/18/2022
2 INTELLIGENT INVESTMENTS, INC. v. US
TARANTO, Circuit Judge.
In 2011, the government contracted with Intelligent In-
vestments, Inc. to clear debris generated by a tornado that
struck Joplin, Missouri. After the government terminated
the contract for convenience, Intelligent Investments sued
the United States in the U.S. Court of Federal Claims
(Claims Court), seeking payments sometimes available to
a contractor after a termination for convenience. During
discovery, Intelligent Investments obtained several unop-
posed extensions of deadlines. Eventually, after not receiv-
ing responses to some of its discovery requests, the
government moved to dismiss the case, but the Claims
Court denied the motion and instead instructed Intelligent
Investments to respond to the government’s requests by a
specified date. On the due date, Intelligent Investments
sought additional time to respond, and four days later, it
responded to the government’s requests. At a status con-
ference, the government argued that the responses to seven
document requests were insufficient, and the Claims Court
directed Intelligent Investments to search for and to pro-
duce any documents responsive to those requests by May
15, 2021.
Intelligent Investments missed the deadline, but five
days later, it told the government that its principal officer
was in the hospital and could not assist in document re-
view. Twelve days later, the parties informed the Claims
Court of this development in a joint status report. Nine
days after that filing, on June 10, 2021, Intelligent Invest-
ments moved for a sixty-day stay—relying on its principal
officer’s mental-health and other medical conditions, an ur-
gent emergency room visit around May 15, and a statement
from the officer’s psychologist, and seeking more time to
obtain more medical information. J.A. 153–57. The gov-
ernment did not file an opposition.
On June 22, 2021, the Claims Court denied Intelligent
Investments’s stay request and sua sponte dismissed the
Case: 21-2310 Document: 44 Page: 3 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 3
case with prejudice, pointing to Intelligent Investments’s
noncompliance with three discovery orders. J.A. 1–6. In
light of the medical reasons advanced by Intelligent Invest-
ments, we conclude that the Claims Court abused its dis-
cretion by dismissing the case without finding that the
noncompliance was willful or in bad faith and without fur-
ther inquiry into the asserted medical reasons. We there-
fore vacate the Claims Court’s judgment of dismissal.
I
A
After a tornado struck Joplin, Missouri, on May 22,
2011, the U.S. Army Corps of Engineers contracted with
Intelligent Investments, on June 24, 2011, to remove and
dispose of tornado-generated debris. The contract was a
set-aside contract for small businesses owned by service-
disabled veterans. Intelligent Investments, owned and led
by Raul Gonzales, met the set-aside preconditions.
On August 19, 2011, the government terminated the
contract for convenience under 48 C.F.R. § 52.249-2, which
the contract incorporated. Almost a year later, on August
17, 2012, Intelligent Investments submitted a proposal for
settling accounts upon the termination for convenience,
seeking $4,670,264.82 (a request increased to
$4,905,667.71 in a June 2013 supplement). In September
2012, the Corps informed Intelligent Investments that, un-
der 48 C.F.R. § 33.210(b), the Corps could not then negoti-
ate or settle the matter because the contract was the
subject of a fraud investigation.
In June 2016, a grand jury of the Western District of
Missouri indicted Mr. Gonzales on ten counts based on al-
leged fraud or false statements relating to the contract. On
August 15, 2018, while the criminal case was pending, In-
telligent Investments filed a complaint in the Claims Court
seeking, among other things, termination-for-convenience
costs of $4,905,667.71 under the Tucker Act, 28 U.S.C.
Case: 21-2310 Document: 44 Page: 4 Filed: 11/18/2022
4 INTELLIGENT INVESTMENTS, INC. v. US
§ 1491(a), and the Contracts Dispute Act, 41 U.S.C.
§§ 7101–7109, 7104(b). On October 16, 2018, the Claims
Court granted the government’s unopposed motion to stay
the case until the criminal case ended. On December 7,
2018, the criminal-case jury acquitted Mr. Gonzales on all
counts, and a judgment of acquittal was entered the same
day.
In the Claims Court, on January 10, 2019, the govern-
ment successfully moved unopposed to continue the stay
until funding for the Department of Justice, which had
lapsed, was restored. The Claims Court lifted the stay on
February 4, 2019. The government finally answered the
complaint on July 8, 2019, the court entered an unopposed
scheduling order on August 19, 2019, and the parties ex-
changed initial disclosures on October 15, 2019.
B
The government served its first set of requests for doc-
ument production about six months later, on April 17, 2020
(soon after the disruptions associated with the COVID-19
virus began). Because nonexpert discovery was set to close
on April 24, 2020, under the original discovery schedule,
the government moved, unopposed, on April 20, 2020, to
extend nonexpert discovery by 150 days. The Claims Court
granted the motion, extending nonexpert discovery
through September 21, 2020.
The response to the first set of document requests was
originally due May 17, 2020. But the parties agreed to
three extensions, totaling 150 days, that resulted in a due
date of October 16, 2020. Relatedly, the parties also agreed
to, and obtained from the Claims Court, an extension of
nonexpert discovery to February 18, 2021.
On September 4, 2020, the government served its first
set of requests for admissions and first set of interrogato-
ries. The government wrote to Intelligent Investments on
October 26, 2020, to say that it had “not received any
Case: 21-2310 Document: 44 Page: 5 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 5
responses” and to ask that the parties “meet and confer.”
J.A. 99–100. It also stated: “If the responses to our discov-
ery requests and documents are not received by November
5, 2020, we will be forced to file a motion to compel and/or
take other actions.” J.A. 100.
On November 24, 2020, the government moved to dis-
miss the case under Claims Court Rule 41(b) for failure to
prosecute or, alternatively, for an order compelling Intelli-
gent Investments to respond to all outstanding discovery
requests. Intelligent Investments did not timely respond
to the motion, and on December 16, 2020, the Claims Court
directed Intelligent Investments, by January 8, 2021, to re-
spond to the dismissal motion and to show cause “why it
ha[d] not timely filed [a response] to the government’s mo-
tion to dismiss.” J.A. 158.
Intelligent Investments filed its response on January
8, 2021. It said that the discovery delay had resulted from
Mr. Gonzales’s high COVID-19 risk (stemming from “Con-
strictive Bronchiolitis . . . as a result of environmental haz-
ards [that he was exposed to] in Iraq”). J.A. 102 ¶ 6. It
asserted that “approximately [ten] file boxes of records . . .
located in [its] office,” J.A. 103–04 ¶¶ 13–22—later as-
serted to “contain every piece of paper that [it had] relating
to the [contract],” J.A. 134, lines 12–14—had to be reviewed
by new lead counsel (chosen because of proximity to the In-
telligent Investment office in Joplin) with Mr. Gonzales’s
assistance. J.A. 103–04. Mr. Gonzales’s health risk im-
peded that review, but, Intelligent Investments added,
[d]espite the risks involved, on January 6, 2021[,]
Raul Gonzales met with counsel to review the doc-
uments . . . . After meeting with Raul Gonzales [it]
now appears to counsel that virtually all of the in-
formation requested by the government is already
in its possession . . . . Having had the opportunity
to meet with [Mr. Gonzales], counsel is now in a
Case: 21-2310 Document: 44 Page: 6 Filed: 11/18/2022
6 INTELLIGENT INVESTMENTS, INC. v. US
position to respond to [the government’s] discovery
requests within [ten] days.
J.A. 104–05 ¶¶ 23, 25, 27.
On February 8, 2021, the Claims Court denied the gov-
ernment’s motion to dismiss. The Claims Court stated:
“The government’s concerns about [Intelligent Invest-
ments’s] outstanding discovery responses and the conduct
of [Intelligent Investments’s] counsel are well-founded.
But, given [Intelligent Investments’s] representation to the
Court that it will respond to the government’s outstanding
discovery requests, the Court is reluctant to dismiss this
case with prejudice at this time.” J.A. 112–13. The Claims
Court directed Intelligent Investments to respond to all of
the government’s outstanding requests by March 8, 2021.
Finally, the Claims Court warned: “Should [Intelligent In-
vestments] fail to comply with this Order, the Court shall
dismiss this matter pursuant to [Claims Court] Rule 41(b).”
J.A. 113.
C
On March 8, 2021, Intelligent Investments moved for
four extra days to respond to the government’s outstanding
discovery requests, a motion the government opposed the
same day. Intelligent Investments asserted good cause
based on winter weather in Joplin and counsel’s commit-
ments on March 8 through 11. On March 12, 2021, Intelli-
gent Investments responded to all the government’s
outstanding discovery requests: the interrogatories, docu-
ment requests, and requests for admissions. Three days
later, on March 15, 2021, the parties filed a joint status re-
port, stating in part:
While [Intelligent Investments] has provided writ-
ten responses to all of [the government’s] outstand-
ing discovery requests, [Intelligent Investments]
did not produce any documents. Instead, every one
of [Intelligent Investments’s] responses to [the
Case: 21-2310 Document: 44 Page: 7 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 7
government’s] nineteen document requests claims
that all responsive documents are attached to
plaintiff’s termination for convenience proposal,
dated August 17, 2012, which is already in the
[g]overnment’s possession. . . . [The government]
notes that it is extremely unlikely that all respon-
sive documents were attached to [Intelligent In-
vestments’s] termination proposal. For instance,
in its document requests, [the government] re-
quested copies of drafts and internal communica-
tions, but [Intelligent Investments’s] termination
proposal does not appear to include any internal
communications or drafts. . . . Counsel for [Intelli-
gent Investments] has offered to confer and resolve
this discovery issue.
J.A. 114–15.
On March 22, 2021, the Claims Court scheduled a sta-
tus conference for April 15, 2021. Two days before that
conference, Intelligent Investments wrote to the govern-
ment, stating in part:
[A]ll of the records of Intelligent Investments per-
taining to this [contract] are stored in a group of
boxes that are now in [Intelligent Investments’s
counsel’s] office. There are eight file size contain-
ers, a larger box and documents in a plastic storage
container. . . . You are free to send a representative
to my office to go through these documents and to
copy any or all of them at your expense. You are
free to depose Mr. Gonzales and ask him to explain
any of the documents. . . . I do not believe that the
rules of discovery require that I go through all of
these boxes and organize and index their contents.
J.A. 118.
At the status conference on April 15, 2021, Intelligent
Investments stated that it was “ready to go to trial,” J.A.
Case: 21-2310 Document: 44 Page: 8 Filed: 11/18/2022
8 INTELLIGENT INVESTMENTS, INC. v. US
125, line 6, noting that it had “not submitted any discovery
requests” because it “believe[d] that [its] case [was] well
documented,” J.A. 124, line 25, through J.A. 125, line 2.
When the government then said that Intelligent Invest-
ments had not adequately responded to the government’s
April 17, 2020 first set of document requests, Intelligent
Investments referred to its termination-for-convenience
proposal with its 450 pages of documents attached, see J.A.
115, and said that “everything that [the government] [was]
looking for . . . [was] contained in” that proposal with its
attachments, already in the government’s possession, J.A.
139, lines 4–7. The Claims Court asked for specific “exam-
ples of documents that [the government] believe[d] [were]
responsive . . . [and] that were not included.” J.A. 133,
lines 6–9. The government pointed to document requests
13 through 19, which “go to some of the more fraud de-
fenses that the [g]overnment may have here.” J.A. 133,
lines 14–16. The government elaborated:
We asked about internal correspondence, we asked
about communications with [Intelligent Invest-
ments’s] subcontractors, we asked about the divi-
sion of labor between Intelligent Investments and
its subtractors during performance. Things like
that. Those are things that could not possibly be
attached to [Intelligent Investments’s] termination
for convenience proposal. There aren’t emails at-
tached to that. Presumably they email with their
subcontractors. There should be emails, there
should be communications about work performed,
who’s doing what and things like that.
J.A. 133, line 16, through J.A. 134, line 1. Intelligent In-
vestments responded that it was not aware of any such
emails, after which the Claims Court asked if “there [had]
been an effort . . . to search for responsive emails and in-
ternal communications.” J.A. 135, lines 1–2. Intelligent
Investments answered “no.” J.A. 135, line 8.
Case: 21-2310 Document: 44 Page: 9 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 9
The Claims Court then “direct[ed] [Intelligent Invest-
ments] to conduct a search and to produce any responsive
documents to the [g]overnment’s requests for document
production 13 through 19 on or before May 15th, 2021.”
J.A. 144, lines 10–13; see also J.A. 149 ¶ 1 (April 15, 2021
order stating the same). The Claims Court also denied, as
moot, Intelligent Investments’s March 8, 2021 motion for
extension of time in light of Intelligent Investments’s
March 12, 2021 response. The Claims Court concluded:
[T]he Court wants to also remind both parties to
please take a look at Rule 16 and Rule 37 regarding
failure to comply with a court order and proper dis-
covery requests. Those are actions that can result
in sanctions from the Court as well as dismissal of
the case, and there has already been a motion to
dismiss filed, which the Court has denied. So if a
pattern emerges in this case where discovery is not
being complied with and the Court’s orders are not
being complied with, the Court will entertain such
a motion pursuant to those rules.
J.A. 145, line 18, through J.A. 146, line 3.
D
On May 20, 2021, five days after the May 15, 2021
deadline set by the Claims Court in its April 15, 2021 order,
Intelligent Investments emailed the government, stating:
Raul [Gonzales’s] wife texted me today and said
that he is in the hospital at the Veterans Admin-
istration facility in Fayetteville Arkansas and has
been unable to come in and go through the docu-
ments in order to respond to the request for produc-
tion. I told her that it would need to be documented
with medical records and a physician’s report. I do
not have any details and will be out town the 21st
to the 24th. If I get additional information I will let
you know.
Case: 21-2310 Document: 44 Page: 10 Filed: 11/18/2022
10 INTELLIGENT INVESTMENTS, INC. v. US
J.A. 151.
The parties filed a joint status report on June 1, 2021,
summarizing the May 20, 2021 email and stating that
counsel for Intelligent Investments was planning to seek a
stay and anticipated doing so later that day. On June 10,
2021, Intelligent Investments moved to stay proceedings
for sixty days. In its motion to stay, Intelligent Invest-
ments stated:
On the morning of May 14, 2021 Raul Gonzale[s]
contacted counsel and advised that he was not feel-
ing well and would be unable to come to the office
to go through the documents. As a result of Raul
Gonzales’[s] reluctance to review the documents,
and due to his mental health history, counsel began
to suspect he was suffering from [a] form of depres-
sion or anxiety that was preventing him from un-
dertaking the task of reviewing the documents. . . .
Mr. Gonzales’[s] wife responded that she had taken
him to the Emergency Room and sent counsel a
message . . . [about Mr. Gonzales’s medical prob-
lems, citing Gulf War syndrome].
J.A. 155 ¶¶ 12–13, 15. Attached to Intelligent Invest-
ments’s motion to stay was a statement from a psycholo-
gist, Dr. Anna Ross Hertel, obtained by counsel after he
told Mr. Gonzales’s wife that he “would need medical doc-
umentation of Mr. Gonzales’[s] condition to present to the
court in order to seek a stay.” J.A. 156 ¶ 16. Dr. Hertel’s
statement said:
I am writing this letter regarding the above-named
veteran patient, Mr. Raul R. Gonzales. At present,
I am treating Mr. Gonzales for PTSD and depres-
sion. It is my professional opinion [that] Mr. Gon-
zales’s current symptoms and difficulties are
creating clinically significant distress and impair-
ment in all areas of his function. Of most
Case: 21-2310 Document: 44 Page: 11 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 11
importance, Mr. Gonzales will continue treatment
to address present symptoms.
Cl. Ct. Dkt. No. 44-1; see J.A. 156.
On June 22, 2021, the Claims Court denied Intelligent
Investments’s motion to stay and sua sponte dismissed the
case with prejudice, invoking Claims Court Rules 16(f) and
37(b)(2)(A)(v). J.A. 1–6. The Claims Court explained: “A
careful review of the litigation history for this matter
shows that [Intelligent Investments] has repeatedly failed
to comply with the Court’s scheduling orders governing the
completion of discovery and that [Intelligent Investments]
has also failed to respond to the government’s long out-
standing discovery requests.” J.A. 4. The Claims Court
pointed specifically to Intelligent Investments’s noncompli-
ance with (1) “the Court’s April 20, 2020, Scheduling Order
setting the close of non-expert discovery for September 21,
2020, by failing to respond to the government’s discovery
requests by that date”; (2) “the Court’s February 8, 2021,
Order, because [Intelligent Investments] did not respond to
the government’s outstanding discovery requests by March
8, 2021, as directed by the Court”; and (3) “the Court’s April
15, 2021, Scheduling Order, because [Intelligent Invest-
ments] did not provide the documents responsive to the
government’s discovery request by May 15, 2021, as di-
rected by the Court.” J.A. 4. Finally, the Claims Court
said:
[Intelligent Investments] represents to the Court
that the delay in responding to the outstanding dis-
covery has been due to the COVID-19 pandemic,
severe winter weather, and the recent hospitaliza-
tion of the sole officer of Intelligent [Investments].
But, these understandable challenges do not justify
a delay of more than one year in responding to the
government’s discovery requests.
J.A. 4 n.1 (citations to the record omitted).
Case: 21-2310 Document: 44 Page: 12 Filed: 11/18/2022
12 INTELLIGENT INVESTMENTS, INC. v. US
The Claims Court entered final judgment on June 23,
2021. Intelligent Investments timely filed a notice of ap-
peal on August 20, 2021, within the sixty days allowed by
28 U.S.C. § 2107(b). We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
“[T]rial courts are given wide discretion to manage the
course” of litigation. Hendler v. United States, 952 F.2d
1364, 1380 (Fed. Cir. 1991). Rule 16 embodies this discre-
tion in part and empowers the Claims Court, “[o]n motion
or on its own,” to “issue any just orders, including those
authorized by [Claims Court Rule] 37(b)(2)(A)(ii)–(vii), if a
party or its attorney . . . fails to obey a scheduling or other
pretrial order.” Cl. Ct. Rule 16(f)(1). Rule 37 provides:
If a party or a party’s officer, director, or managing
agent . . . fails to obey an order to provide or permit
discovery, including an order under [Claims Court
Rule] 16(b) . . . , the court may issue further just
orders. They may include the following:
....
(ii) prohibiting the disobedient party from
supporting or opposing designated claims
or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the
order is obeyed;
(v) dismissing the action or proceeding in
whole or in part;
(vi) rendering a default judgment against
the disobedient party; or
(vii) treating as contempt of court the fail-
ure to obey any order except an order to
Case: 21-2310 Document: 44 Page: 13 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 13
submit to a physical or mental examina-
tion.
Cl. Ct. Rule 37(b)(2)(A). For a sanction of dismissal with
prejudice, at least for the issue presented here, the Rule 37
standard governs, even if Rule 41 (or a court’s inherent
power) is invoked, as the Supreme Court made clear long
ago in addressing the Federal Rules of Civil Procedure,
which are indistinguishable from the Claims Court’s Rules
in the respects at issue here. See Societe Internationale
Pour Participations Industrielles Et Commerciales, S. A. v.
Rogers, 357 U.S. 197, 207 (1958) (explaining that dismissal
of a case as a discovery sanction “depends exclusively upon
Rule 37”; that “[t]here is no need to resort to Rule 41(b),
which appears in that part of the Rules concerned with tri-
als and which lacks such specific references to discovery”;
and that “[r]eliance upon Rule 41, which cannot easily be
interpreted to afford a court more expansive powers than
does Rule 37, or upon ‘inherent power,’ can only obscure
analysis of the problem before us”); Progressive Industries,
Inc. v. United States, 888 F.3d 1248, 1253 n.4 (Fed. Cir.
2018) (“[T]he precedent interpreting the Federal Rules of
Civil Procedure applies with equal force to the comparable
Rules of the Court of Federal Claims.”).
We review the Claims Court’s dismissal with prejudice
for abuse of discretion. Hendler, 952 F.2d at 1380 (citing
National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 642 (1976)). An abuse of discretion exists if
“(1) the court’s decision is clearly unreasonable, arbitrary,
or fanciful; (2) the decision is based on an erroneous con-
clusion of the law; (3) the court’s findings are clearly erro-
neous; or (4) the record contains no evidence upon which
the court rationally could have based its decision.” Id. (cit-
ing Western Electric Co. v. Piezo Technology, Inc., 860 F.2d
428, 430–31 (Fed. Cir. 1988)).
Case: 21-2310 Document: 44 Page: 14 Filed: 11/18/2022
14 INTELLIGENT INVESTMENTS, INC. v. US
A
Dismissal of a case with prejudice as a discovery sanc-
tion is a “harsh remedy,” Ingalls Shipbuilding, Inc. v.
United States, 857 F.2d 1448, 1451 (Fed. Cir. 1988); “se-
vere,” National Hockey League, 427 U.S. at 643; and “uni-
versally recognized as a sanction of last resort,” Genentech,
Inc. v. U.S. International Trade Commission (ITC), 122
F.3d 1409, 1423 (Fed. Cir. 1997); see also 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2369 (4th ed. updated Apr. 2022). In Genentech, which
interpreted Federal Rule of Civil Procedure 37 in applying
the counterpart ITC rule, we held that “courts are required,
before imposing that sanction, to consider fully all the sur-
rounding circumstances, such as the degree of culpability,
the amount of prejudice, and the availability of less drastic
sanctions.” 122 F.3d at 1423; see id. at 1411, 1418 (explain-
ing the ITC rule’s relationship to Rule 37).
It is enough for us, in this appeal, to focus on an aspect
of the culpability component. Specifically, following the
Supreme Court, we have long held that dismissal as a dis-
covery sanction “is authorized only when the failure to com-
ply with [a] court order is due to willfulness or bad faith
and not from the inability to comply with the order.” Hen-
dler, 952 F.2d at 1382 (citing National Hockey League, 427
U.S. at 640); see Societe Internationale, 357 U.S. at 212;
Ingalls Shipbuilding, 857 F.2d at 1451; Adkins v. United
States, 816 F.2d 1580, 1582 (Fed. Cir. 1987) (citing Na-
tional Hockey League, 427 U.S. at 640); 8B Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2283 (3d ed. updated Apr. 2022) (“[T]he holding of Societe
Internationale is that a failure to respond to a court order
to produce [discovery] is a noncompliance, and brings Rule
37 into play, . . . but that the sanction of dismissal cannot
be imposed if the failure was due to inability to comply.”).
The Claims Court’s decision here departed from that legal
rule.
Case: 21-2310 Document: 44 Page: 15 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 15
B
In dismissing the case, the Claims Court cited three
discovery orders—dated April 20, 2020; February 8, 2021;
and April 15, 2021—as ones with which Intelligent Invest-
ments was not in compliance. J.A. 4. But the Claims Court
made no finding of willfulness or bad faith behind the non-
compliance. At oral argument, the government acknowl-
edged even the lack of evidence of willfulness or bad faith.
Oral Arg. at 16:20–16:25 (counsel stating that “[t]here was
not a finding of willfulness or bad faith”); id. at 17:34–17:41
(Judge: “Are you contending that there was evidence here
of willfulness or bad faith?” Counsel: “I am not.”).
The Claims Court pointed first to its April 20, 2020
scheduling order, which granted the government’s unop-
posed motion to extend the close of nonexpert discovery by
150 days to September 21, 2020. The government sought
that extension, after a period of little if any activity in the
case, just three days after the government served its first
set of document requests, with thirty days to respond. But
before September 21, 2020, the government agreed to ex-
tensions of the document-request response date totaling
150 days, and on September 16, 2020, the government
moved to reset the close of nonexpert discovery to February
18, 2021, and the Claims Court granted that motion on Oc-
tober 1, 2020, without admonishment to either party.
Then, before the February 18, 2021 date arrived, the gov-
ernment filed a motion to dismiss, and in an order dated
February 8, 2021, the Claims Court denied the motion to
dismiss and gave Intelligent Investments until March 8,
2021, to respond to the government’s outstanding discovery
requests. In these circumstances, it is not clear precisely
what violation of the April 20, 2020 scheduling order itself
even occurred, but in any event, there is no finding of will-
fulness or bad faith in any violation.
The Claims Court separately pointed to its February 8,
2021 order, which directed Intelligent Investments to
Case: 21-2310 Document: 44 Page: 16 Filed: 11/18/2022
16 INTELLIGENT INVESTMENTS, INC. v. US
respond to the government’s outstanding discovery re-
quests by March 8, 2021, and to the court’s April 15, 2021
order, which directed Intelligent Investments to conduct a
search and to produce any documents responsive to re-
quests 13 through 19 on or before May 15, 2021. But Intel-
ligent Investments offered explanations for its
noncompliance with both orders. First, Intelligent Invest-
ments represented—by motion for an additional four days
filed on March 8, 2021—that it was unable to comply with
the court’s February 8, 2021 order because of weather in
Joplin and counsel’s commitments on March 8 through 11,
and it filed responses on March 12. The Claims Court did
not rule on the extension request, declaring it moot in light
of the March 12 response. Second, Intelligent Investments
represented—in the June 1, 2021 joint status report and
the June 10, 2021 motion to stay, the latter attaching a let-
ter from Mr. Gonzales’s treating physician—that it was un-
able to comply with the court’s April 15, 2021 order because
Mr. Gonzales was experiencing medical conditions that im-
paired his functioning. J.A. 150–51, 153–57; Cl. Ct. Dkt.
No. 44-1.
The Claims Court characterized these explanations as
reflecting “understandable challenges” and said, without
additional explanation, that they did not justify the discov-
ery delay. J.A. 4 n.1. But that determination is not a find-
ing of willfulness or bad faith. And the Claims Court
denied the requested opportunity for further development
of the evidence regarding Mr. Gonzales’s medical condi-
tions that would bear on any determination regarding will-
fulness or bad faith or inability to comply with a discovery
order. In these circumstances, we conclude, the Claims
Court did not “make the specific findings necessary to jus-
tify the ultimate sanction of dismissal,” Genentech, 122
F.3d at 1423, and abused its discretion in dismissing the
case with prejudice. We vacate the dismissal and remand
the case. We do not preclude the Claims Court, on remand,
from imposing a lesser sanction if appropriate or even from
Case: 21-2310 Document: 44 Page: 17 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 17
dismissing the case if a supported finding of willfulness or
bad faith is made and other applicable standards are met.
III
For the foregoing reasons, the judgment of the Claims
Court is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
Costs awarded to appellant.
VACATED AND REMANDED | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487696/ | 20-3772
Stegemann v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of November, two thousand twenty-two.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges,
MARY KAY VYSKOCIL,*
District Judge.
_____________________________________________
JOSHUA G. STEGEMANN,
Petitioner-Appellant,
v. No. 20-3772
UNITED STATES OF AMERICA,
Respondent-Appellee.
___________________________________________
*Judge Mary Kay Vyskocil, of the United States District Court for the Southern District of New
York, sitting by designation.
FOR PETITIONER-APPELLANT: RICHARD W. LEVITT (Zachary
Segal, on the brief), Levitt &
Kaizer, New York, NY.
FOR RESPONDENT-APPELLEE: RAJIT S. DOSANJH (Richard D.
Belliss, on the brief), Assistant
United States Attorneys, for
Carla B. Freedman, United
States Attorney for the
Northern District of New York,
Syracuse, NY.
Appeal from an order of the United States District Court for the Northern
District of New York (Gary L. Sharpe, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Joshua Stegemann appeals from the district court’s order denying his
motion to vacate his sentence under 28 U.S.C. § 2255. On appeal, Stegemann
argues that he received ineffective assistance of counsel from his retained counsel,
Elizabeth Quigley, who represented him for portions of the pre-trial proceedings
and at trial, and from the Assistant Federal Defenders who represented him at the
post-trial proceedings, at sentencing, and on direct appeal. As to Quigley,
Stegemann argues that she erred by advising him to forgo a favorable plea deal
2
and by failing to move to suppress evidence seized from his residence pursuant to
a search warrant on the grounds that the police unlawfully detonated a flash-bang
device upon entering his home. As to the Assistant Federal Defenders,
Stegemann argues that they erred post-verdict, by failing to seek the release of his
funds that were seized as substitute property under 21 U.S.C. § 853(p), which
allegedly prevented him from retaining the counsel of his choosing, and by
declining to challenge the use of his prior Massachusetts drug conviction as a
predicate for the career-offender enhancement under section 4B1.1 of the
Sentencing Guidelines. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
On appeal from the denial of a section-2255 motion, we review the district
court’s “factual findings for clear error and questions of law de novo.” Triana v.
United States, 205 F.3d 36, 40 (2d Cir. 2000) (internal quotation marks and emphasis
omitted). The question of whether counsel provided ineffective assistance is a
mixed question of law and fact, which we review de novo. Id.
To establish ineffective assistance of counsel, Stegemann must show that his
attorneys’ performance was both objectively unreasonable and prejudicial to his
defense. See Strickland v. Washington, 466 U.S. 668, 687–88, 692 (1984).
3
Stegemann can satisfy the first prong by demonstrating that his attorneys’
performance fell below an objective standard of reasonableness under “prevailing
professional norms.” Id. at 688. He can satisfy the second prong by
demonstrating that there is a “reasonable probability” that, but for his attorneys’
“unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. When determining whether counsel was ineffective, a court need not
address both prongs if the defendant fails to make a showing on either one. Id. at
697.
First, Stegemann argues that Quigley’s advice to reject the government’s
plea deal was deficient. To be sure, the decision of whether to plead guilty is
often the “most important single decision in any criminal case.” Cardoza v. Rock,
731 F.3d 169, 178 (2d Cir. 2013) (internal quotation marks omitted). In advising a
client on this decision, defense counsel must “communicate to the defendant the
terms of the plea offer[] and should usually inform the defendant of the strengths
and weaknesses of the case against him, as well as the alternative sentences to
which he will most likely be exposed.” Purdy v. United States, 208 F.3d 41, 45 (2d
Cir. 2000) (citation omitted). But the decision of whether to plead guilty
ultimately belongs to the defendant, and the “lawyer must take care not to coerce
4
a client into either accepting or rejecting a plea offer.” Id. Because defense
counsel must balance, “on the one hand, failing to give advice and, on the other,
coercing a plea,” defense counsel’s determination as to how best to advise a client
“enjoys a wide range of reasonableness.” Id.
Stegemann’s argument fails because he cannot show that Quigley’s advice
was objectively unreasonable. Stegemann contends that Quigley provided
ineffective assistance by advising him to reject the government’s plea offer simply
because it exceeded Stegemann’s stated preference for a plea deal of no more than
twelve-to-fourteen years’ imprisonment – a cap that Stegemann now concedes was
unrealistic. But the allegation that Quigley based her advice solely on
Stegemann’s unrealistic preference is contradicted by Quigley’s affidavit, in which
she averred that she and Stegemann fully discussed the terms of the deal,
including the risks and benefits of accepting the offer as well as its mandatory
minimum and maximum terms. In denying Stegemann’s motion, the district
court credited Quigley’s version of events, rendering it reasonable for the district
court to conclude that Quigley’s performance did not fall below the objective
standard of reasonableness under the first prong of the Strickland test.
5
Stegemann further argues that the district court erred by making its
credibility determination without holding an evidentiary hearing. We disagree.
A district court’s decision to resolve a section-2255 motion without a hearing is
reviewed for abuse of discretion. See Chang v. United States, 250 F.3d 79, 82 (2d
Cir. 2001). Where, as here, the district court presided over the underlying
proceedings, a “full-blown evidentiary hearing” is often unnecessary. Raysor v.
United States, 647 F.3d 491, 494 (2d Cir. 2011). In light of the district court’s
familiarity with Stegemann and Quigley, gained over the course of trial and
subsequent proceedings, including an evidentiary hearing at which Stegemann
testified, we find that the district court’s decision to resolve the motion on the basis
of written submissions falls squarely within the zone of its discretion. See Chang,
250 F.3d at 86 (explaining that a district court’s decision to not hold an evidentiary
hearing avoids “the delay, the needless expenditure of judicial resources, the
burden on trial counsel and the government, and perhaps the encouragement of
other [litigants] to make similar baseless claims that would have resulted from a
full testimonial hearing”).
Stegemann next argues that Quigley provided ineffective assistance when
she failed to move to suppress the evidence seized from Stegemann’s home.
6
Under the Fourth Amendment, search warrants must “particularly describ[e] the
place to be searched[] and the persons or things to be seized.” U.S. Const. amend.
IV. Nothing in the Fourth Amendment, however, requires warrants to describe
“the precise manner in which they are to be executed.” Dalia v. United States, 441
U.S. 238, 257 (1979); see, e.g., Richards v. Wisconsin, 520 U.S. 385, 395–96 (1997)
(upholding a no-knock search even without a no-knock warrant). Instead, “the
manner in which a warrant is executed is subject to later judicial review as to its
reasonableness.” Dalia, 441 U.S. at 258.
Although Stegemann argues that Quigley should have challenged the
search on the ground that the warrant did not authorize the use of a flash-bang
device, the Fourth Amendment imposes no such requirement. See id. at 257 n.19
(noting that the Supreme Court has never held that the Constitution requires
officers requesting a warrant to set forth the anticipated means for executing it).
Indeed, courts have long recognized that flash-bang devices may be used without
prior authorization where, as here, “it was reasonable for the officers to fear for
their safety in conducting the search.” United States v. Boulanger, 444 F.3d 76, 84–
85 (1st Cir. 2006); see also Terebesi v. Torreso, 764 F.3d 217, 238 (2d Cir. 2014)
(explaining that it “is more likely that using a stun grenade will be considered
7
reasonable if the subject of the search or arrest is known to pose a high risk of
violent confrontation”). In this case, it was reasonable for law enforcement
officers to fear for their safety because they had reason to believe that Stegemann
possessed multiple firearms and knew that Stegemann had threatened to kill
anyone who tried to enter his home. Since the officers’ use of the flash-bang
device was clearly reasonable under the circumstances, Quigley’s strategic
decision not to challenge the search on those grounds did not fall below
“prevailing professional norms.” Strickland, 466 U.S. at 688.
Stegemann next contends that his court-appointed counsel erred by failing,
post-verdict, to seek the return of funds that had been seized, arguing for the first
time in his section-2255 motion that he would have retained new counsel for
sentencing were those funds made available to him. The Sixth Amendment
allows “a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The
deprivation of the right to counsel of choice is a “structural error,” for which a
defendant need not demonstrate prejudice. Id. at 150 (internal quotation marks
omitted). But even if it could be argued that Stegemann’s counsel should have
moved to release his funds – which the government now concedes were not
8
forfeitable as the proceeds of unlawful activity – Stegemann’s claim nevertheless
fails because he has not demonstrated that he was in fact deprived of the right to
the attorney of his choosing. Stegemann offers no evidence to suggest that he
would have procured retained counsel in the event that his funds had been
returned. Indeed, although Stegemann asked the district court to “appoint [him]
counsel” after Quigley filed her motion to withdraw, Gov’t App’x at 642 (emphasis
added), Stegemann never stated or implied that the seizure of his assets prevented
him from retaining “his preferred representational choice,” Luis v. United States,
578 U.S. 5, 12 (2016). And while Stegemann did advise the district court that he
was “completely indigent,” that comment was in response to the district court
questioning why it should “not compel [Stegemann] to go out and hire another
lawyer.” Gov’t App’x at 642–43. Stegemann certainly never said that he had
contacted a lawyer – or even that he had one in mind – who, but for Stegemann’s
lack of ready funds, was prepared to take the case on short notice, post-verdict, to
wrap up the sentencing. In short, Stegemann has not demonstrated any link
between his counsel’s asserted failure to move for the return of his funds and the
denial of his right to choose who will represent him. Absent such a showing,
9
Stegemann is not entitled to a presumption of prejudice, and this claim of
ineffective assistance fails.
Finally, Stegemann argues that his counsel, both at sentencing and on direct
appeal, rendered ineffective assistance by failing to challenge the district court’s
consideration of his 1999 Massachusetts state-court conviction as a basis to
adjudge him a career offender under section 4B1.1 of the Sentencing Guidelines.
Under the Sentencing Guidelines, a defendant is subject to the career-offender
enhancement when, among other things, he has “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). A court tasked with determining whether a particular
conviction qualifies as a career-offender predicate must employ a “modified
categorical approach,” which generally considers the elements of the statute of
conviction, rather than the facts underlying that offense. United States v. Savage,
542 F.3d 959, 964 (2d Cir. 2008).
Here, Stegemann’s counsel did not err by declining to challenge the 1999
conviction as a predicate under the career offender enhancement. Stegemann
cites to no authority to support his claim that, at the time of his sentencing, his
1999 conviction under Mass. Gen. Laws ch. 94C, § 32E(b) did not qualify as a
10
predicate under the career offender enhancement. To the contrary, while
Stegemann’s conviction was on direct appeal, the First Circuit expressly held that
this statute was “unarguably a conviction for a controlled substance offense and,
thus, a proper predicate offense under the career offender guideline.” United
States v. Montoya, 844 F.3d 63, 72 (1st Cir. 2016). On that basis alone, counsel’s
decision to forego such a legal argument cannot be said to fall below prevailing
professional norms. See United States v. Regalado, 518 F.3d 143, 149–50 n.3 (2d Cir.
2008) (explaining that it is “beyond any doubt” that an attorney’s “failure to make
a meritless argument” cannot “amount to ineffective assistance” (internal
quotation marks and alteration omitted)). Nor can it be argued that Stegemann
was prejudiced by that decision, since it is not reasonably probable that the district
court would have credited the argument and reached a conclusion at odds with
the First Circuit’s subsequent holding on the same issue. See Strickland, 466 U.S.
at 694 (“The defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.”). Accordingly, we find that Stegemann has failed to show that he
received ineffective assistance of counsel in connection with his sentencing.
11
We have considered Stegemann’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
12 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487783/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) I.D. No.: 30604628DI
)
v. )
)
BENJAMIN F. WHITEMAN, )
)
Defendant. )
ORDER
Submitted: September 27, 2022
Decided: November 18, 2022
AND NOW TO WIT, this 18th day of November 2022, upon consideration
of Benjamin F. Whiteman (“Defendant”)’s pro se Motion for Postconviction Relief,
the sentence imposed upon Defendant, and the record in this case, it appears to the
Court that:
1. In 1987, Defendant pled guilty to Burglary in the Second Degree. After
declaring him a habitual offender under 11 Del. C. § 4214(a),1 the Court sentenced
him to ten years at Level V, suspending seven years of the sentence for decreasing
levels of probation.2 Defendant was declared a habitual offender though not
sentenced as such.3 Although the Court could have imposed a harsher sentence,
1
11 Del. C. § 4214(a) (1987) (current version at 11 Del. C. § 4214(a) (effective July 11, 2018)).
2
See Sentence, State v. Benjamin Whiteman, Crim. I.D. No. 30604628DI, D.I. 10 (Del. Super.
June 19, 1987).
3
See Whiteman v. State, 2013 WL 5346310, 77 A.3d 273 (TABLE). at *1 (Del. Feb. 4, 2013);
Whiteman v. State, 2009 WL 3086567, 981 A.2d 1173 (TABLE), at *1 (Del. Sept. 28, 2019).
1
Defendant was spared and sentenced to three years in prison.4 And he was warned
not to re-offend.5
2. In 1989, Defendant was charged with multiple sexual offenses against
two young girls, ages three and eight.6 After a jury found Defendant guilty of
Unlawful Sexual Penetration in the Third Degree, the Superior Court sentenced him
to life imprisonment as a habitual offender.7 The Supreme Court affirmed
Defendant’s conviction on direct appeal.8
3. Defendant filed his first and second Motions for Postconviction Relief
related to his Burglary sentence under Delaware Superior Court Criminal Rule 61 in
2006 and 2012, respectively. Both Motions were denied by the Superior Court and
affirmed by the Supreme Court.9
4
Crim. I.D. No. 30604628DI, D.I. 9–10.
5
See also Crim. I.D. No. 30604628DI, D.I. 12 (“You have a very long record of misbehavior. You
were extremely fortunate to be treated lightly by me. I only hope that when you do get out you
commit no other felonious crime because it will mean a life sentence in all probability. Please
don’t —Motion for reduction denied.”).
6
The circumstances of these charges are well described by the Delaware Supreme Court: “In
February, 1989, Whiteman was living at the home of the parents of two young girls-one age eight,
the other age three. On February 19, the parents of the two girls went out to dinner, leaving the
children at home with Whiteman. After the parents left, Whiteman and the two girls began
watching television. Whiteman asked the older girl to sit on the couch next to him. He then began
to rub her leg. Next, he lifted her robe and placed his finger in her vagina. Whiteman then went
over to the younger girl and inserted his finger in her vagina. Whiteman threatened to harm the
older girl if she told anyone what happened.” Whiteman v. State, 586 A.2d 1203 (Del. 1991).
7
See Sentence, State v. Benjamin Whiteman, Crim. I.D. No. 30901716DI, D.I. 14 (Del. Super. Oct.
27, 1989).
8
Whiteman v. State, 1991 WL 12112, 586 A.2d 1203 (TABLE) (Del. Jan. 11, 1991).
9
In his first Postconviction Motion filed in 2006, Defendant argued that his Motion should be
granted as “1) he never admitted that he was a habitual offender under 11 Del. C. § 4214(a) as part
of any agreement with the State in 1987;” “2) his counsel was ineffective”—specifically, his
counsel failed to object at sentencing to the State’s introduction of an order declaring him a habitual
2
4. Defendant has also unsuccessfully filed multiple motions for
corrections/modifications of that burglary sentence under Rule 35.10
5. Now, Defendant files this third Motion for Postconviction Relief again
challenging his habitual offender status and his plea colloquy related to his burglary
sentence.11
6. Since Defendant is not currently in custody for the burglary sentence,
he is not entitled to Rule 61 considerations.12 Even if applicable, Defendant’s
offender; “and 3) an illegal hearing was held by a judge in Chancery Court.” State v. Whiteman,
2006 WL 1579781, at *1–2 (Del. Super. Apr. 5, 2006).
The Superior Court denied his Motion. The Court found that Defendant’s first claim was time-
barred and was formerly adjudicated. As to the second claim, the Court found that Defendant’s
counsel’s representation was reasonable. The Court found that the third contention was meritless
as the plea hearing was held by The Honorable Alfred J. Stiftel in the Superior Court, not in the
Court of Chancery. The Supreme Court affirmed the Superior Court’s judgment. Id. at *1–3.
In 2012, Defendant filed his second Motion for Postconviction Relief. The Superior Court denied
his Motion for Postconviction Relief, finding that Defendant’s Motion was time-barred, repetitive,
and raised claims that were procedurally defaulted or previously adjudicated. See Crim. I.D. No.
30604628DI, D.I. 72. Defendant appealed, and the Supreme Court affirmed the Superior Court’s
order. See Crim. I.D. No. 30604628DI, D.I. 90.
10
See Crim. I.D. No. 30604628DI, D.I. 14, D.I 35, D.I 43, D.I. 53, D.I 67, D.I 73, D.I 76, D.I 79,
D.I. 83, D.I. 101, D.I 108, D.I. 111, D.I. 120.
11
Defendant claims that: (1) Judge Stiftel abused discretion because defense counsel failed to
inform him that Defendant’s “statutory rights to remain silent and have State prove he’s [a]
Habitual Offender”; (2) during the plea colloquy, the Court failed to ask Defendant if he admitted
that he was guilty of three prior felony convictions; (3) the Court has no jurisdiction over the claims
on the plea agreement; and (4) the Court violated Defendant’s due process rights as failed to
satisfy “ABA Standards” throughout the plea colloquy. See Motion for Postconviction Relief,
Crim. I.D. No. 30604628DI, D.I. 123.
12
Del. Super. Ct. Crim. R. 61(a)(1) (“This rule governs the procedure on an application by a person
in custody under a sentence of this court seeking to set aside the judgment of conviction . . . .”).
3
Motion is also procedurally barred because it is untimely13 and successive.14 This
Court hopes that, if appealed, the Supreme Court enjoins Defendant’s future
untimely and successive Rule 61 filings without leave of the Court.15
7. For the reasons stated above, Defendant’s Motion for Postconviction
Relief is SUMMARILY DISMISSED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services Office
13
Defendant challenges his conviction that became final in 1987. The Motion was filed more than
one year after the judgment of conviction was final, and Defendant does not assert a newly
recognized, retroactively applicable right. See Super. Ct. Crim. R. 61(i)(1).
14
Defendant filed two Motions for Postconviction Relief before filing this Motion. Defendant
does not claim, with particularity, that new evidence exists that creates a strong inference that he
is innocent. Nor does Defendant claim, with particularity, that a rule of constitutional law renders
his conviction invalid retroactively. See Super. Ct. Crim. R. 61(i)(2).
15
See Carter v. State, 221 A.3d 914, 2019 WL 5446020, at *1 (Del. Oct. 23, 2019) (TABLE)
(providing a warning that the Supreme Court will enjoin the defendant/appellant’s appeals from
the Superior Court’s orders if he repetitively files appeals from the Superior Court’s orders
dismissing his untimely and repetitive Rule 61 claims); Russell v. State, 134 A.3d 759 (Del. Mar.
4, 2016) (TABLE) (noting that the Supreme Court will not use “scarce judicial resources” to
address the defendant’s fourth untimely and successive postconviction relief claims).
4 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487720/ | 11/18/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 29, 2022 Session
SARAH BOREN v. DAVID WADE JR.
Appeal from the Circuit Court for Shelby County
No. CT-005064-06 Jerry Stokes, Judge
___________________________________
No. W2020-01560-COA-R3-CV
___________________________________
This case involves a post-divorce modification of the parties’ parenting plan for their minor
child. The trial court suspended Appellant/Father’s visitation. Because the trial court
failed to make any findings concerning the child’s best interest, Tenn. R. Civ. P. 52.01,
Tenn. Code Ann. §§ 36-6-404(b), 36-6-106(a), we vacate the trial court’s order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and CARMA DENNIS MCGEE, JJ., joined.
Abigail D. Hall and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant, David
Wade, Jr.
Charles W. McGhee, Memphis, Tennessee, and Monica A. Timmerman, Bartlett,
Tennessee, for the appellee, Sarah Boren.
MEMORANDUM OPINION1
Appellee Sarah Boren (“Mother”) and Appellant David Wade, Jr. (“Father”) were
married in August 2004. The minor child at issue in this case, Madeline Wade, was born
1
Rule 10 of the Rules of the Court of Appeals states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be
cited or relied on for any reason in any unrelated case.
on December 4, 2004. In late 2007, the parties were divorced. On November 28, 2007, a
permanent parenting plan was entered for Madeline. Under the initial plan, the parties were
granted joint custody. Three consent orders were subsequently entered in 2010; these
orders include: (1) April 16, 2010 order memorializing the parties’ agreement that Father’s
parenting time would be supervised, that Father would have no overnight visits, and that
all visit would be agreed upon by the parties pending further orders of the trial court; (2)
May 11, 2010 order memorializing the parties’ agreement that Father would submit to a
Tennessee Rule of Civil Procedure 35 psychological evaluation; and (3) October 8, 2010
order memorializing the parties’ agreement to modify the existing parenting plan.
On July 8, 2013, the trial court entered a consent order removing the supervised
visitation requirement and allowing Father’s unsupervised visits with Madeline. In August
2017, Father filed a petition to modify the parenting plan. Mother filed an answer and
counter-petition to modify Father’s child support obligation. The cross-petitions were
continued several times for various reasons before being heard in September and October
of 2018. The trial court granted Mother’s Tennessee Rule of Civil Procedure 41.02 motion
for involuntary dismissal of Father’s petition for modification of the parenting plan. The
matter of child support was referred to a divorce referee. By order of August 1, 2019, the
trial court adopted the referee’s recommendation on child support and subsequently denied
Father’s petition to set aside that order.
On September 13, 2019, Mother filed an amended motion for immediate injunctive
relief, wherein she first alleged that Father had sent inappropriate emails and
correspondence to the child’s school, and had made inappropriate social media posts
regarding the child’s participation on the school’s dance team. Father opined that the
music, uniforms, routines, etc. were lewd and otherwise inappropriate. Mother also moved
for an injunction to stop such communication with the child’s school and asked the trial
court to modify visitation. By order of October 4, 2019, the trial court granted Mother’s
request for injunction. On November 19, 2019, the trial court granted Mother’s petition to
modify visitation. The trial court held that Father’s visitation would be supervised and that
he would participate with the child’s therapist in an effort to repair his relationship with
Madeline. On December 20, 2019, the parties entered a consent order, wherein Father
agreed to participate with Madeline’s therapist, Dr. Lou Martin. On January 3, 2020,
Mother filed a petition for relief from the December 20, 2019 order. Father did not submit
to the Rule 35 evaluation as agreed in the consent order of 2010. Suffice to say, the disputes
between the parties regarding child support, visitation, and parenting have been ongoing
and highly contentious.
Giving rise to the immediate appeal, on January 1, 2020, Father filed “Father’s
combined petition to I) set a hearing to establish attorney fees awarded to Monica
Timmerman in November 7, 2017; II) to set a hearing to reset child support; III) to reinstate
the parenting plan dated October 2010 and to grant Father fall break and Thanksgiving
break 2020; IV) respond to Mother’s January 3, 2020 petition to respond and hold Father
-2-
in criminal and civil contempt; V) hold mother in criminal and civil contempt of court and
cite Mother for child abuse; VI) petition for immediate injunctive relief; and VII)
Amendment to Father’s December 6, 2019 petition for immediate relief”; Father filed an
amended petition on July 7, 2020.
By order of January 17, 2020, the trial court set aside the consent order of December
20, 2019 and ordered Father to cooperate with Dr. Martin and to arrange family therapy.
On January 27, 2020, the trial court entered an order lifting the requirement that Father’s
visits be supervised.
On March 4, 2020, Mother filed an amended petition requesting that Father be
required to submit to a Tennessee Rule of Civil Procedure 35 evaluation.2 On June 18,
2020, Mother and the guardian ad litem filed separate motions for criminal contempt
against Father; Mother filed an amended motion for criminal contempt on July 10, 2020.
On June 30, 2020, Mother filed a petition for immediate injunctive relief to suspend
Father’s parenting time; she also moved for an order on her Rule 35 motion. On July 13,
2020, the trial court entered an order on Mother’s Rule 35 motion, wherein it held that
Father would submit to the psychological evaluation.
All pending matters were heard over four days, August 19, 20, 24, and 27, 2020.
The trial court entered its final order on October 12, 2020, wherein it: (1) held that Father’s
parenting time would be suspended pending his cooperation with the Rule 35 examination;
(2) suspended the counseling requirements involving Madeline and Father; (3) denied
Father’s petition for contempt against Mother; (4) ordered Father to cease and desist
communication with or about the child’s school; and (5) awarded Mother attorney fees and
costs. Father appeals.
Father raises the following issues as stated in his brief:
1. Whether the Circuit Court of Shelby County, Tennessee committed
reversible error to the extent that it found a material change in circumstance
existed which warranted a modification of the parties’ parenting schedule.
2. Whether the Circuit Court of Shelby County, Tennessee committed
2
Tennessee Rule of Civil Procedure 35 provides:
When the mental or physical condition (including the blood group) of a party, or of a person
in the custody or under the legal control of a party, is in controversy, the court in which the
action is pending may order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination the person in custody
or legal control. The order may be made only on motion for good cause shown and upon
notice to the person to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or persons by whom it is
to be made.
-3-
reversible error to the extent that it failed to analyze the relevant best interest
factors prior to modifying Father’s parenting time.
3. Whether the Circuit Court of Shelby County, Tennessee committed
reversible error to the extent that it found Father’s parenting time should be
suspended until he completed a Rule 35 psychological evaluation, is
diagnosed, a treatment plan is developed, and Father follows all
recommendation steps.
4. Whether the Circuit Court of Shelby County, Tennessee committed
reversible error in awarding attorney fees to Mother rather than Father and
whether Father should be awarded attorney fees on appeal.
Mother asks for appellate attorney fees and costs.
We do not reach the substantive issues in this case because the trial court failed to
make any findings concerning the child’s best interest before suspending Father’s parenting
time. Tenn. R. Civ. P. 52.01 (“In all actions tried upon the facts without a jury, the court
shall find the facts specially and shall state separately its conclusions of law and direct the
entry of the appropriate judgment.”).
Tennessee courts apply a two-step analysis for requests for either a modification of
the primary residential parent or the residential parenting schedule. See, e.g., In re T.R.Y.,
No. M2012-01343-COA-R3-JV, 2014 WL 586046, at *12 (Tenn. Ct. App. Feb. 12, 2014)
(primary residential parent modification); In re C.R.D., No. M2005-02376-COA-R3-JV,
2007 WL 2491821, at *6 (Tenn. Ct. App. Sept. 4, 2007) (parenting time modification); see
also Brunetz v. Brunetz, 573 S.W.3d 173, 179 (Tenn. Ct. App. 2018). The threshold issue
is whether a material change in circumstances has occurred since the court adopted the
current parenting plan. Tenn. Code Ann. § 36-6-101(a)(2)(B)(i), (C). If a material change
has occurred, the court must then determine whether modifying the parenting plan is in the
child’s best interest by examining the statutory best interest factors. Armbrister v.
Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 2013); see Tenn. Code Ann. § 36-6-106(a).
Here, the trial court failed to conduct a best interest analysis. See Tenn. Code Ann.
§ 36-6-404(b), -405(a). In a best interest analysis, the court “shall consider all relevant
factors.” Id. § 36-6-106(a); see Burden v. Burden, 250 S.W.3d 899, 910 (Tenn. Ct. App.
2007) (reasoning that the court “shall consider” best interest factors “if they are relevant”);
Burnett v. Burnett, No. E2002-01614-COA-R3-CV, 2003 WL 21782290, at *6 (Tenn. Ct.
App. July 23, 2003) (explaining that a trial court must “consider all of the listed factors
which are applicable”); accord Dishman v. Dishman, No. M2008-01194-COA-R3-CV,
2009 WL 1181341, at *3 (Tenn. Ct. App. May 1, 2009). As this Court has explained:
This Court has previously held that a trial court must comply with Rule 52.01
with regard to a hearing on a petition to modify a parenting plan. See Iman
v. Iman, No. M2012-02388-COA-R3-CV, 2013 WL 7343928, at *13 (Tenn.
-4-
Ct. App. Nov. 19, 2013) (concluding that without findings of fact and
conclusions of law as to the factors the trial court considered, this Court is
unable to conduct a meaningful appellate review of decision regarding a
decision to modify a parenting schedule).
Spigner v. Spigner, No. E2013-02696-COA-R3-CV, 2014 WL 6882280, *10 (Tenn. Ct.
App. Dec. 8, 2014). Rule 52.01 requires the court to make these findings regardless of a
request by either party. Id. As succinctly explained by the Tennessee Supreme Court Rule
52.01 findings and conclusions serve three purposes:
First, findings and conclusions facilitate appellate review by affording a
reviewing court a clear understanding of the basis of a trial court’s decision.
See Estate of Bucy v. McElroy, No. W2012-02317-COA-R3-CV, 2013 WL
1798911, at *3-4 (Tenn. Ct. App. Apr. 26, 2013) (noting that the Rule 52.01
requirement facilitates appellate review); Hardin v. Hardin, No. W2012-
00273-COA-R3-CV, 2012 WL 6727533, at *5 (Tenn. Ct. App. Dec. 27,
2012) (same); In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
1362314, at *8 (Tenn. Ct. App. May 15, 2009) (recognizing that without
findings and conclusions appellate courts are left to wonder about the basis
of a trial court’s decision); In re M.E.W., No. M2003-01739-COA-R3-PT,
2004 WL 865840, at *19 (Tenn. Ct. App. Apr. 21, 2004) (same); 9C [Charles
A. Wright et al.,] Federal Practice and Procedure § 2571, at 219 [ (3d
ed.2005) ] [hereinafter 9C Federal Practice and Procedure] (recognizing that
specific findings by the trial court facilitate appellate review). Second,
findings and conclusions also serve “to make definite precisely what is being
decided by the case in order to apply the doctrines of estoppel and res judicata
in future cases and promote confidence in the trial judge’s decision-making.”
9C Federal Practice and Procedure § 2571, at 221-22. A third function served
by the requirement is “to evoke care on the part of the trial judge in
ascertaining and applying the facts.” Id. at 222. Indeed, by clearly expressing
the reasons for its decision, the trial court may well decrease the likelihood
of an appeal. Hardin, 2012 WL 6727533, at *5.
Lovlace v. Copley, 418 S.W.3d 1, 34-35 (Tenn.2013).
In Spingner, this Court held:
While the trial court’s orders do indicate that the trial court found a material
change in circumstances . . . the trial court’s order contains no indication that
the trial court considered any of the fifteen factors outlined in Tennessee
Code Annotated Section 36-6-106(a) that “shall” be considered by the trial
court in determining the best interests of the children. This Court has
previously held that the failure to articulate any factors considered in a
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decision to change a parenting plan requires this Court to vacate the decision
and remand for the entry of an order that “specifically address[es] the best
interest of the child and should articulate the factors relied on by the trial
court in reaching its decision.” See Iman [v. Iman, No. M2012-02388-COA-
R3-CV,] 2013 WL 7343928, at *13 [(Tenn. Ct. App. Nov. 19, 2013)].
Spingner, 2014 WL 6882280 at *10. The same is true here.
For the foregoing reasons, we vacate the trial court’s order. Wife’s request for
appellate attorney’s fees and costs is denied. The case is remanded for such further
proceedings as may be necessary and are consistent with this opinion, including, but not
limited to, findings concerning the child’s best interest. Costs of the appeal are assessed to
the Appellant, David Wade, Jr., for all of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
-6- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487719/ | [Cite as In re Z.D.Y., 2022-Ohio-4115.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
IN RE: Z.D.Y. :
:
: Appellate Case No. 2022-CA-37
:
: Trial Court Case No. 2020-C-00038-0D
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
:
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
MEGAN A. HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee, Greene County Children Services
GARY C. SCHAENGOLD, 4 East Schantz Avenue, Dayton, Ohio 45409
Attorney for Defendant-Appellant, Mother
.............
WELBAUM, J.
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{¶ 1} Appellant Mother appeals from a judgment granting permanent custody of
her minor son, Z.D.Y., to Appellee, Greene County Children Services (GCCS). Mother
contends that the juvenile court abused its discretion in awarding custody to GCCS
because she had made substantial progress on her case plan. In addition, Mother
argues that GCCS’s concerns involved little more than “odor” from Mother’s medically-
prescribed marijuana use and potential transportation issues.
{¶ 2} After reviewing the record, we conclude that the court’s decision was based
on competent, credible evidence and that the court did not abuse its discretion in awarding
permanent custody to GCCS. Accordingly, the judgment will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} Z.D.Y. was born in February 2020. Initially, Montgomery County Children
Services (MCCS) handled the case involving Z.D.Y. After accepting an abuse and
neglect referral, MCCS placed Z.D.Y. on a safety plan with a Greene County foster parent
who was fostering Z.D.Y.’s half-sibling. A short time later, MCCS placed Z.D.Y. with
Mother, so long as she stayed in the Family Violence Prevention Center (FVPC) in Xenia,
Ohio. MCCS then transferred the case to GCCS.
{¶ 4} On March 4, 2020, GCCS filed a complaint in the juvenile court, alleging that
Z.D.Y. was abused and dependent. According to the complaint, Mother was homeless
and was residing at FVPC. Both Mother and Z.D.Y. had also tested positive for
marijuana at the child’s birth. Before giving birth, Mother had been living in her car. In
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the original complaint, GCCS requested a disposition of protective supervision or
temporary custody.
{¶ 5} The juvenile court initially scheduled the case for pretrial and an adjudication
hearing on April 5, 2020, and appointed counsel for the child. The court also appointed
a Court Appointed Special Advocate (CASA) for Z.D.Y. Previously, GCCS had filed a
case plan, and the court approved the plan on March 10, 2020.
{¶ 6} On March 13, 2020, GCCS filed a neglect and dependency complaint and
asked for an emergency hearing. The complaint alleged that FVPC had asked Mother
to leave the shelter because she was smoking marijuana in her room with Z.D.Y. present.
The shelter was concerned for the child’s safety, as Mother had left him alone in the room,
on his stomach and crying, when she went downstairs. Mother had also called Z.D.Y.
an “assh***” and said that she “wished she would have had an abortion, or words to that
effect.” Complaint (March 13, 2020), R. 1-36.1
{¶ 7} When the GCCS caseworker and supervisor contacted Mother, she denied
the marijuana allegations but admitted to having called her child the name and leaving
him alone upstairs. Because Mother had to leave the shelter and had nowhere to go,
GCCS called for an ex parte hearing and was granted emergency custody of Z.D.Y. Id.
The complaint asked for temporary custody or, alternatively, an order for protective
supervision.
{¶ 8} On March 13, 2020, the magistrate granted temporary custody to GCCS.
The magistrate also set a pretrial and adjudication hearing for April 3, 2020, and a
1 Each page in the lower court record is labeled and numbered. As a result, we will refer
to particular pages by “R,” followed by page numbers.
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disposition hearing for May 6, 2020. In addition, the magistrate ordered Mother to: sign
all releases; complete a mental health examination and follow all recommendations;
complete a drug and alcohol assessment and follow all recommendations; complete
parenting classes; comply with random drug screens; and obtain safe and stable housing.
The magistrate further ordered that Z.D.Y. be assessed by “Help Me Grow,” and all its
recommendations were to be followed. Magistrate’s Order (Mar. 13, 2020), R. 1-50 – 1-
51. Another order was filed the same day, noting that the magistrate had granted GCCS
emergency custody on March 12, 2020, pursuant to R.C. 2151.31 (which allows children
to be taken into custody when certain factors are present).
{¶ 9} On March 18, 2020, GCCS filed an updated family case plan, which included
Z.D.Y. and his sister, A.Y., who had been born in December 2018. According to the case
plan, Mother would have restricted and supervised visitation twice a week for two hours
at GCCS, due to Mother’s drug use and the persons around Mother. The court approved
the plan on April 1, 2020.
{¶ 10} Although Mother had been properly served, she did not appear for the April
3, 2020 adjudication hearing. At that time, the magistrate granted GCCS’s motion to
dismiss the March 4, 2020 complaint and proceed on the March 13, 2020 complaint.
Based on the matters presented, the magistrate found Z.D.Y. neglected and dependent,
and maintained temporary custody with GCCS. The judge adopted the magistrate’s
decision the same day. No objections to the magistrate’s decision were filed.
{¶ 11} On May 6, 2020, the magistrate held a disposition hearing. While Mother
had also been notified of this hearing, she again failed to appear. Based on the evidence
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presented, the magistrate found that Mother had a substance abuse disorder, had not
cooperated with GCCS, and had stopped engaging with GCCS after April 8, 2020,
although the agency had reached out to her. Magistrate’s Decision (May 7, 2020), R. 1-
72. The magistrate then found that awarding temporary custody to GCCS was in
Z.D.Y.’s best interest. Id. at R. 1-73. The judge adopted the magistrate’s decision the
same day. Again, Mother did not file objections to the decision.
{¶ 12} A case plan update was filed on July 30, 2020, and was approved on August
6, 2020. A semi-annual administrative review (SAR) was then filed on August 18, 2020.
According to the SAR, Mother had not had any contact with GCCS or Z.D.Y. since April
8, 2020, and Z.D.Y.’s father was unknown. SAR, R. 1-98. GCCS recommended that
temporary custody continue for 180 days, with a supplemental plan of permanent custody
to the agency with a goal of adoption. Id. at R. 1-100.
{¶ 13} On January 25, 2021, GCCS filed a motion seeking to modify temporary
custody to permanent custody. This was based on claims that Z.D.Y. could not be
placed with either parent within a reasonable time and that Z.D.Y. had been abandoned,
because Mother had not visited with him for at least 90 days. The court then set a
permanent custody hearing for March 5, 2021. On January 28, 2021, the court
appointed an attorney for Mother.
{¶ 14} The CASA filed a report on February 1, 2021, recommending that the court
grant permanent custody to GCCS. The CASA noted that Mother had had only 15
minutes of contact with Z.D.Y. in the previous 11 months and had failed to maintain
contact with GCCS. The report further noted that Mother’s progress on the case plan
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was unknown. Report and Recommendations of CASA, R. 1-118.
{¶ 15} On February 2, 2021, the court approved GCCS’s January 25, 2021
updated case plan. A SAR filed on February 11, 2021, again indicated that Mother had
seen the child for only 15 minutes since April 2020. The SAR did note that Mother had
begun to re-engage with GCCS in January 2021 and had been scheduled to complete
her visitation orientation on February 10, 2021. SAR, R. 1-133. A CASA report filed on
February 18, 2021, stated that Mother had cancelled the orientation and had rescheduled
for February 22, 2021. Mother had also failed to participate in the agency’s February 10,
2021 administrative review. Report and Recommendations of CASA, R. 1-141. In
addition, the CASA noted that Z.D.Y. was being treated for a saccadic eye movement
disorder that prevented normal visual interaction. Id.
{¶ 16} On February 24, 2021, the CASA filed another report, again recommending
that the court award permanent custody to GCCS. The CASA noted that she had tried
to contact Mother but had had no success. Z.D.Y. had been exposed to drugs in utero
and had tested positive for THC at birth. Mother had also not attended any medical visits.
At the time of the report, Z.D.Y. was receiving visual therapy for his eye disorder and
occupational therapy for developmental delays. Id., R. 1-144.
{¶ 17} The CASA further noted that Mother had struggled with housing since 2019
and had been homeless at times. Mother was employed at Wendy’s but had been
evicted from her rental in February 2021. Mother had lived in that rental only since
October 2020. The CASA spoke with another rental complex on January 29, 2021, and,
reportedly, Mother had obtained a two-bedroom apartment. The CASA further
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commented that Mother had been a no-show for two orientations at the visitation center
in October 2020, and repeated follow-up calls had been ignored. Mother had not
attended a February 23, 2021 orientation. In addition, Z.D.Y. had not bonded with
Mother, and Mother had not maintained consistent contact with the child, the foster
parents, or parties to the case. Id. at R. 146.
{¶ 18} Mother did finally appear in court for a review hearing on February 25, 2021.
Magistrate’s Decision (Feb. 25, 2021), R. 1-148. In this decision, the magistrate noted
that Mother had not been in continuous contact with GCCS until recently, had seen the
child once virtually in April 2020 and once face-to-face in October 2020, and had made
sporadic progress on her case plan. Id. The magistrate recommended continuation of
GCCS’s temporary custody pending the March 5, 2021 permanent custody hearing. Id.
at R. 1-149. The judge signed the order the same day, and no objections were filed.
{¶ 19} On March 5, 2021, the court conducted a pretrial and set the permanent
custody hearing for May 18, 2021. An updated case plan approved by the court on
March 10, 2021, noted that Mother often turned to THC to cope with daily stressors and
“had acknowledged that her THC use is not a healthy way to cope with her stress or
trauma.” Family Case Plan, R. 1-155. The case plan further observed that “[Mother]
has stated that she would like to learn new coping skills so she is not putting herself or
the children at risk. However, [Mother] plans to obtain her medical marijuana card soon.”
Id. At that time, Mother had not visited with the Z.D.Y. since April 2020.2 Id. The case
2 The October 2020 encounter previously mentioned was a brief face-to-face encounter
on October 15, 2020, when Z.D.Y. was taken to the hospital. SAR (Feb. 10, 2021), R.
1-133; Magistrate’s Decision (Feb. 25, 2021), at R. 1-148.
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plan included, among other things, Mother’s consistent visitation with the child,
attendance at his medical visits to understand his medical needs, reliable transportation
and employment, testing negative for illegal and non-prescribed medications, safe and
stable housing free from drugs, and a “healthy way of coping with stress.” Id.
{¶ 20} On March 10, 2021, the parties filed an agreed entry granting GCCS a first
extension of temporary custody, vacating the permanent custody hearing set for May 18,
and setting a review hearing for August 5, 2021. Agreed Entry (March 10, 2021), R. 1-
164 – 1-165.
{¶ 21} On July 1, 2021, GCCS filed a motion to extend temporary custody, and the
court scheduled a hearing for August 5, 2021. The CASA then filed an updated report
on August 3, 2021. In the report, the CASA noted that from March 22, 2021 through
June 16, 2021, Mother had been scheduled to receive visits of two hours on one day a
week at the Visitation Center. Mother had cancelled four visits and was a no-show on
three others. Of the six successful visits, three ended early, and 16 violations of policy
occurred. Updated CASA Investigation Facts and Findings, R. 1-171.
{¶ 22} Visits then occurred at Mother’s home on the same schedule for a month
and were increased to twice a week for two hours. Six visits were successful, with
Mother having cancelled two and GCCS having cancelled one. The CASA observed two
visits and found that Z.D.Y. had demonstrated no attachment to Mother. Mother also
accepted phone calls during the visits, had no toys for the child, and had the apartment
sparsely furnished. Z.D.Y.’s room was empty, and Mother had no furnishings or
equipment for him. Id. at R. 1-171 – 1-172.
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{¶ 23} Between March 3, 2021, and the date of the report (August 3, 2021), Mother
had attended two of seven “Help Me Grow” visits, none of eight occupational therapy
visits, and two specialist/well-child visits. Id. at R. 1-172. Drug screens had been
administered in February and July 2021, and Mother had tested positive on both. Id.
The CASA recommended that Z.D.Y. remain in the agency’s temporary custody. Id.
{¶ 24} After the hearing on August 5, 2021, the magistrate found Mother had
substantially complied with the case plan, granted a second extension of GCCS’s
temporary custody, and set a review hearing for January 27, 2022. Magistrate’s
Decision (Aug. 5, 2021), R. 1-179 – 1-180; Corrected Magistrate’s Decision (Aug. 5,
2021), R. 1-182. At that time, the court stressed that Mother had to make every effort to
complete the case plan objectives, as no further extensions could be granted, and GCCS
needed to make alternate arrangements to finalize permanency. Id. at R. 1-182. No
objections to these decisions were filed.
{¶ 25} The SAR filed on August 13, 2021, indicated that Mother was engaging in
services and had made significant progress on demonstrating stability. However,
concerns still existed over Mother’s drug use, Z.D.Y.’s medical issues (which had
increased), and the need for Mother to increase her attendance at medical appointments.
SAR, R. 1-186. An update of the Family Case Plan, which was approved by the court
on August 24, 2021, stated that visitation had been going well and would be
unsupervised. Family Case Plan, R. 1-195.
{¶ 26} In September 2021, the review hearing was rescheduled to January 24,
2022, and on October 12, 2021, the court substituted a new CASA because the original
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CASA could no longer continue. An updated Family Case Plan filed on October 15,
2021, indicated that visitations had gone back to being supervised because a police event
had occurred at Mother’s home. Specifically, a male had overdosed, and Mother had
been asked to leave her home as a result. Updated Family Case Plan, R. 1-205.
Mother was then living with a friend and did not have independent housing. Mother had
also tested positive for THC. Id. at R. 1-206. In mid-November 2021, Mother’s visits
were changed again to unsupervised.
{¶ 27} On January 6, 2022, GCCS filed a motion asking to modify temporary
custody to permanent custody. The motion was based on Mother’s instability,
inconsistency, and lack of knowledge of Z.D.Y.’s special needs. Due to these issues,
GCCS could not guarantee that Mother would follow through with the child’s special
needs or have a safe place for him to live. According to the motion, Mother did not have
stable housing, as she had been evicted from her prior housing due to the drug incident
and had also been asked to leave her friend’s house in December 2021.
{¶ 28} In addition, Mother had attended only 27 of 55 “Help Me Grow” visits, four
of 35 therapy appointments, and three of 16 doctor’s appointments. Mother also
continued to test positive for THC on drug screens. While Mother had provided GCCS
with a medical marijuana card on December 21, 2021, GCCS was concerned that Mother
and her friends had been using marijuana around Z.D.Y., as he had returned from visits
having a strong marijuana smell. Motion for Permanent Custody (Jan. 6, 2022), R. 1-
230. An affidavit filed the same day stated that Mother was no longer living at her
reported address and had not given GCCS a new address. Affidavit, R. 1-233.
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{¶ 29} On January 14, 2022, the court set a permanent custody hearing for March
15, 2022. The court further noted that Mother had retained an attorney. Judgment, R.
1-234. The same day, the CASA filed an updated report. Essentially, the report
indicated that, on January 3, 2022, when the CASA had tried to schedule a visit, Mother
had misrepresented where she was living. Ultimately, the CASA learned that Mother’s
roommate had kicked Mother out over a month earlier; GCCS had not been told and was
unaware of where Mother had taken the child on three visits during December 2021.
Upon learning these facts, the CASA asked GCCS to initiate supervised visitation for
future visits. Updated CASA Investigation and Findings, R. 1-238.
{¶ 30} On January 19, 2022, GCCS filed an updated Family Case Plan, stating
that visits would occur at the Visitation Center because the agency did not know where
Mother was living. The visits would also be supervised because of concern that Mother
and her roommates were using THC around Z.D.Y. during visits. Update to Family Plan,
R. 1-241. The court approved the plan on January 20, 2022.
{¶ 31} The CASA submitted a preliminary report on January 28, 2022,
recommending that GCCS be given permanent custody. On January 31, 2022, the
magistrate filed a decision following a January 24, 2022 review hearing. The decision
noted that Mother had not visited Z.D.Y. since December 29, 2021, and the Visitation
Center had not been able to reach Mother to establish a visitation schedule. Magistrate’s
Decision (Jan. 31, 2022), R. 2-153. In addition, Mother had no independent stable
housing, her last drug screen in October 2021 had been positive for marijuana, Mother
had obtained a medical marijuana card in December 2021, and Z.D.Y.’s paternity had not
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been established. Id.
{¶ 32} The magistrate continued temporary custody with GCCS pending the
permanent custody hearing, because “[t]he child cannot be placed with Mother due to her
lack of stable housing and lack of consistent visitation and cannot be placed with father
as paternity has yet to be established.” Id. at R. 1-253 – 1-254. The judge adopted the
decision the same day, and no objections were filed.
{¶ 33} On February 14, 2022, GCCS filed a SAR, which was approved. The next
day, the court, on its own motion, continued the permanent custody hearing to April 26,
2022. Shortly before the hearing date, the CASA filed a detailed report recommending
that the court award permanent custody to GCCS. Report and Recommendations of
CASA (Apr. 18, 2022), R. 1-312 – 1-323.
{¶ 34} The permanent custody hearing was held on April 26, 2022, as scheduled.
During the hearing, the juvenile judge heard testimony from the following individuals:
Z.D.Y.’s foster mother; a speech pathologist at Dayton Children’s Hospital; a
developmental specialist from Four Oaks Early Intervention; the CASA; the GCCS
caseworker assigned to Mother’s case; and Mother. Various exhibits were also
admitted. After hearing the evidence, the judge filed a judgment entry on June 10, 2022,
granting permanent custody of Z.D.Y. to GCCS and terminating Mother’s parental rights.
Mother then appealed from the court’s judgment.
II. Alleged Abuse of Discretion
{¶ 35} Mother’s sole assignment of error states that:
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The Trial Court Erred in Granting the Motion of Greene County
Children’s Services for Permanent Custody.
{¶ 36} Mother contends that the juvenile court erred in granting permanent custody
because she had made significant progress on her case plan. According to Mother,
GCCS’s concerns amount to little more than an “odor” of marijuana and potential
transportation issues. Before addressing Mother’s arguments, we will first outline the
relevant standards that apply.
A. Applicable Standards for Terminating Parental Rights
{¶ 37} “The United States Supreme Court has stated that parents’ interest in the
care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty
interests recognized by this Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21
N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000). Ohio has also held that “parents who are ‘suitable’ have a
‘paramount’ right to the custody of their children.” B.C. at ¶ 19, quoting In re Perales, 52
Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). (Other citations omitted.)
{¶ 38} However, “ ‘the natural rights of a parent are not absolute, but are always
subject to the ultimate welfare of the child, which is the polestar or controlling principle to
be observed.’ ” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),
quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). “Ultimately, parental interests
are subordinate to the child's interest when determining the appropriate resolution of a
petition to terminate parental rights.” B.C. at ¶ 20.
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{¶ 39} GCCS's permanent custody motion was brought pursuant to R.C.
2151.413. Motion Requesting Modification of Temporary Custody to Permanent
Custody (Jan. 6, 2022), R. 1-230. The grounds alleged were that Z.D.Y. could not or
should not be placed with either parent within a reasonable time, and that Z.D.Y. had
been in GCCS’s temporary custody for 12 or more months of a continuous 22-month
period. Id.
{¶ 40} As pertinent here, R.C. 2151.413(D)(1) provides that “if a child has been in
the temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period,
the agency with custody shall file a motion requesting permanent custody of the child.”
The purpose of the “12 of 22” requirement is to “balance the importance of reuniting a
child with the child's parents against the importance of a speedy resolution of the custody
of a child.” In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 22.
{¶ 41} Here, there is no dispute that Z.D.Y. was in GCCS’s custody for the needed
period of time. The court granted GCCS temporary custody on May 6, 2020, and when
the agency filed for permanent custody on January 6, 2022, Z.D.Y. had continuously been
its custody for 20 months. In such situations, “the agency still must prove by clear and
convincing evidence, that it is in the child's best interest to grant permanent custody to
the agency.” In re N.M.P., 160 Ohio St.3d 472, 2020-Ohio-1458, 159 N.E.3d 241, ¶ 26,
citing R.C. 2151.414(B)(1).
{¶ 42} The juvenile court did not consider the alternate ground under R.C.
2151.413(A) and R.C. 2151.414(B)(1)(a), i.e., that “the child cannot be placed with either
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of the child's parents within a reasonable time or should not be placed with the child's
parents.” Instead, the court’s decision was based on the “12 of 22” standard. Judgment
Entry (June 10, 2022) (“Final Judgment”), R. 1-445. The court did say, after discussing
GCCS’s reasonable efforts, that Z.D.Y. could not be returned home within a reasonable
time. Id. at R. 1-450. However, that was not the ground on which the court relied, and
we need not consider the alternate basis for GCCS’s permanent custody motion.
{¶ 43} As relevant here, R.C. 2151.414(B)(1) states that:
[T]he court may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this section, by
clear and convincing evidence, that it is in the best interest of the child to
grant permanent custody of the child to the agency that filed the motion for
permanent custody and that any of the following apply:
***
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period * * *.
{¶ 44} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
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{¶ 45} In deciding a child’s best interest, courts analyze factors set forth in R.C.
2151.414(D)(1)(a)-(e) and (E). These include, but are not limited to: “1) the interaction
and interrelationship of the child with the child's parents, relatives, foster parents and any
other person who may significantly affect the child; (2) the wishes of the child; (3) the
custodial history of the child, including whether the child has been in the temporary
custody of one or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period; (4) the child's need
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody to the agency; and (5) whether any of the
factors in R.C. 2151.414(E)(7) through (11) are applicable.” In re S.J., 2d Dist.
Montgomery No. 25550, 2013-Ohio-2935, ¶ 15, citing R.C. 2151.414(D).
{¶ 46} We will not overturn a juvenile court's decision to terminate parental rights
“if the record contains competent, credible evidence by which the court could have formed
a firm belief or conviction that the essential statutory elements for a termination of parental
rights have been established.” In re E.D., 2d Dist. Montgomery No. 26261, 2014-Ohio-
4600, ¶ 7, citing In re Forrest S., 102 Ohio App.3d 338, 344-345, 657 N.E.2d 307 (6th
Dist.1995). “We review the trial court's judgment for an abuse of discretion.” Id., citing
In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48 (which applied an
abuse of discretion standard to the trial court's findings under R.C. 2151.414).
{¶ 47} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), quoting Huffman
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v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). “[M]ost instances
of abuse of discretion will result in decisions that are simply unreasonable,” rather than
being “unconscionable or arbitrary.” Id.
{¶ 48} A further point is that “[t]he discretion which a trial court enjoys in custody
matters should be accorded the utmost respect, given the nature of the proceeding and
the impact the court's determination will have on the lives of the parties concerned.”
Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Specifically, since “[t]he
knowledge a trial court gains through observing the witnesses and the parties in a custody
proceeding cannot be conveyed to a reviewing court by a printed record[,] * * * the
reviewing court in such proceedings should be guided by the presumption that the trial
court's findings were indeed correct.” (Citations omitted.) Id. This discretion, while
broad, is “not absolute,” however, and is guided by statutory language. Id.
{¶ 49} With these standards in mind, we will consider the court’s analysis of
Z.D.Y.’s best interest, as that is the only matter at issue.
B. Best Interest of the Child
{¶ 50} In concluding that granting permanent custody to GCCS was in Z.D.Y.’s
best interest, the juvenile court discussed each factor in R.C. 2151.414(D)(1)(a)-(d) in
detail and also stated that it had considered R.C. 2151.414 (E)(7)-(11) (which is required
by R.C. 2151.414(D)(1)(e)). Final Judgment at R. 445-450. We will take the same
approach.
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1. The Child’s Relationships
{¶ 51} In its decision, the court considered the relationship between Z.D.Y. and
various people, including Mother, the father, siblings, the foster family, and other relevant
persons. First, the court found that the interrelationship between Mother and Z.D.Y. was
detrimental to Z.D.Y. Id. at R. 445. After reviewing the evidence, including the custody
transcript, we agree and find that competent, credible evidence supported the court’s
decision.
{¶ 52} The juvenile court focused on the lack of bonding, the nine-month period
during which Mother had no contact with Z.D.Y., Mother’s failure to regularly participate
in Z.D.Y.’s exhaustive list of medical appointments to address developmental and medical
issues, Mother’s lack of ownership of her lack of contact with Z.D.Y. for months, and
Mother’s history of homelessness and transportation and substance abuse issues.
{¶ 53} Mother was homeless while pregnant with Z.D.Y. and was either living in
her car or with an ex-girlfriend when Z.D.Y. was born. Transcript of Apr. 26, 2022
Permanent Custody Hearing (“Tr.”), p. 110. After Z.D.Y.’s birth, Mother moved into a
shelter, but she was ejected a few weeks later for the reasons previously mentioned.
See also id. at p. 111.
{¶ 54} As a result of being ejected, Mother again became homeless, and on March
12, 2020, Z.D.Y. was placed in foster care. Id. at p. 7. Mother was then homeless for
eight months, living in her car and other places. Id. at p. 211-212. GCCS had no idea
where Mother was between April 2020 and January 2021, and Mother did not contact the
agency during that time; she also did not visit Z.D.Y. Id. at p. 112 and 190.
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{¶ 55} Notably, Mother’s explanation for her lack of contact was not credible. She
claimed she had no phone. Id. at p. 191. Even if this were true, Mother was employed
during that time, id. at p. 212, and she could also have asked to borrow a phone to let
GCCS know where she was or to arrange visitation. Mother could even have written to
let the agency know of her whereabouts. Instead, she did nothing for at least nine
months.
{¶ 56} Even after Mother resumed contact with GCCS in January 2021, she
continued to struggle with maintaining stable housing. Tr. at p. 108-109, 113-114, and
122. Mother had an apartment from January or February 2021 until August or
September 2021, when she was forced to leave because a man had overdosed while at
her apartment. Id. at p. 113 and 199-200. Mother was also jailed at that time as a result
of the incident, although she ultimately was not charged. Id. at p. 200. This issue
caused Mother’s visitation to be moved back to supervised from unsupervised, although
unsupervised visits had only been instituted in the middle of 2021, i.e., a few months
earlier. Id. at p. 123 and 135.
{¶ 57} Mother then lived at a friend’s home in Fairborn, Ohio, between September
2021 and December 2021. However, she was forced to leave that home as well. Id. at
p. 79 and 113-114. Mother also concealed the fact that she was not living at the Fairborn
home, which caused GCCS to unknowingly leave Z.D.Y. with Mother for unsupervised
visitation. Id. at p. 124-125. This caused both the CASA and GCCS to be concerned
for Z.D.Y.’s safety, because they did not know where he had been taken. Id. at p. 81
and 125.
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{¶ 58} Subsequently, in January 2022, Mother was temporarily living in an
apartment on Republic Street in Dayton, Ohio. Id. at p. 114. Mother then signed a lease
in late February 2022 for an apartment on Linden Avenue in Dayton. She was living
there at the time of the April 2022 custody hearing, meaning she had only been in that
place for about two months. Id. at p. 115. During that time, Mother asked GCCS to pay
her April apartment rent of $600, which GCCS did. Although Mother claimed she had
asked for help so that she could save money, the fact that she requested help almost
immediately caused concern that Mother would not be able to maintain stability. Id. at
p. 178. Although GCCS had worked with Mother for two years, the concern over
instability in housing that initially caused agency involvement remained the same. Id. at
p. 146 and 148.
{¶ 59} Concerning substance abuse, GCCS’s concern was not simply over an odor
of marijuana. While Mother had apparently completed a drug program and parenting
classes in 2019 (due to the agency’s involvement with another of Mother’s children), these
interventions were apparently not successful, as Mother tested positive for cocaine and
THC during her pregnancy with Z.D.Y. and used alcohol until August 2019 (also during
her pregnancy). Report and Recommendations of CASA (Feb. 24, 2021), at R. 1-144;
Report and Recommendations of CASA (Apr. 18, 2022), at R. 1-313 – 1-314; Ex. 11, p.
17 (Oct. 16, 2019 Lab Report), p. 19 (Sept. 29, 2019 Lab. Report); and p. 21 (August 29,
2019 Lab Report). See also Tr. at p. 130 and 213. As previously noted, Mother and
Z.D.Y. also both tested positive for marijuana at Z.D.Y.’s birth in February 2020.
{¶ 60} Mother discounts GCCS’s concern over Z.D.Y.’s having access to Mother’s
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medical marijuana because Z.D.Y. has “never actually been around mother when she
takes her prescribed marijuana.” Appellant’s Brief, p. 10. This statement is inaccurate
for several reasons. First, Mother had only had a medical marijuana card since
December 2021. Consequently, nothing would have been “prescribed” before that time.
{¶ 61} Mother also testified that she smoked marijuana three to seven times a day.
Tr. at p. 228. She did not testify that she refrained from smoking marijuana while in
Z.D.Y.’s presence. In fact, Z.D.Y. had come home from visits with Mother smelling of
marijuana. Id. at p. 75. Obviously, Z.D.Y. had been around Mother when she used
marijuana. This also was the reason FVPC ejected Mother in March 2020.
{¶ 62} Furthermore, even if an individual has a medical marijuana card, “[t]he
smoking or combustion of medical marijuana is prohibited.” R.C. 3796.06(B)(1). As a
result, Mother was not taking marijuana as recommended by a physician, and her use
was and had been illegal.
{¶ 63} GCCS also had concerns about Mother’s ability to “pay attention, be
attentive, and be able to acknowledge” Z.D.Y.’s needs while on marijuana. Tr. at p. 177.
As a result, the concern was not merely over “odor.” Mother’s testimony in this regard
was that “I get their concern as far as the effect on me, but let’s be honest, since they’ve
met me, I’m high every day off weed and it doesn’t affect me at all. I still work. I still
meet with them.” Mother’s personal belief that being “high” did not affect her was
irrelevant and most likely misplaced. Moreover, there were substantial periods of time
when Mother did not meet with GCCS. Her attendance at both visitation and Z.D.Y.’s
medical and therapy appointments had also been erratic.
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{¶ 64} For example, out of 66 scheduled visitations with Z.D.Y., Mother had
attended only 32. Tr. at p. 18-19. This did not include visits that were cancelled for
some reason other than Mother’s own cancellations or no-shows. Id.
{¶ 65} Moreover, Z.D.Y. has special needs, and he had been seen every two
weeks since June 2020 by a developmental specialist in the Four Oaks Early Intervention
program. Id. at p. 46-47. In this program, developmental specialists work with children
from birth to age three on developmental milestones. Id. at p. 46. According to the
developmental specialist who testified, a caregiver’s consistent participation in these
sessions is essential for the child’s development. Id. at p. 54 and 58.
{¶ 66} Notably, Mother did not attend any sessions in 2020. Her first attendance
was in March 2021; she then failed to attend again for almost six months. Id. at p. 51-
52. Mother’s attendance thereafter was sporadic, with a few more sessions in 2021 and
more than a three-month gap until her attendance in mid-March 2022, shortly before the
permanent custody hearing. Id. at p. 53.
{¶ 67} Z.D.Y. also began seeing a speech therapist at Children’s Medical Center
in October 2021, due to global delays in language. Tr. at p. 36-37. According to the
speech therapist, it was essential for caregivers to attend these therapy sessions because
they needed to know what worked and needed to set up their day at home to conduct
exercises with the child. Id. at p. 38 and 41. Z.D.Y.’s foster mother brought him to 20
appointments between October 21, 2021, and the April 2022 custody hearing; Mother
attended only about nine appointments. Id. at p. 41.
{¶ 68} Z.D.Y. also attended the Neonate Abstinence Syndrome Clinic, which
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addresses problems that children exposed to drugs in utero can have. Id. at p. 8. In
addition, Z.D.Y. had been seen at a low-vision clinic in Cincinnati due to problems with
his eyesight and by a neurologist for low muscle tone. Id. at p. 9-11. Of 20 doctor’s
visits, which included the low-vision clinic and neurologist, Mother attended only five. Id.
at p. 22.
{¶ 69} Mother claimed that she did not have transportation. However, she was
able to obtain transportation to doctor’s appointments through CareSource. Id. at p. 174,
196, and 206-207. GCCS also gave Mother gas cards, bus tokens and tickets, gift cards,
and Uber cards. Id. at p. 143. In view of the above facts, competent, credible evidence
supported the juvenile court’s conclusion that Mother had failed to regularly participate in
the medical and therapy appointments required to address Z.D.Y.’s needs.
{¶ 70} As to the court’s finding about the lack of bonding, competent, credible
evidence also supported this conclusion. As noted, Mother had been absent for much
of Z.D.Y.’s life. Even when Mother had resumed contact with GCCS, she failed to
exercise quite a few opportunities to visit Z.D.Y. and to attend therapy and medical
appointments (which would have given her additional chances to bond with the child). In
fact, after visitation was reinstated in January 2022 (after Mother was asked to leave her
Fairborn housing), Mother had nine opportunities for visitation before the custody hearing.
However, she cancelled three visits and was a no-show for another. Tr. at p. 177.
{¶ 71} GCCS also assisted Mother with transportation in connection with visitation.
In addition to the bus tokens and so forth, Greene County or the caseworker transported
Z.D.Y. to Mother’s home for visitation. Id. at p. 32, 123, and 143.
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{¶ 72} The CASA appointed in October 2021 had observed Mother and Z.D.Y.
twice at the Visitation Center. The CASA stated that Z.D.Y. tended to play by himself,
and she did not observe much interaction between Mother and Z.D.Y. Id. at p. 75. The
CASA contrasted this with Z.D.Y.’s behavior at his foster home, where he was more at
ease, interacted very playfully with his foster siblings, and was more loving with his foster
mother, giving her hugs and having fun. Id. The report of the CASA, who
recommended that the court grant permanent custody to GCCS, expressed concern over
the lack of bonding and attachment between Mother and Z.D.Y. Id. at p. 81. The lack
of bonding was also one reason why GCCS filed for permanent custody in January 2022.
Id. at p. 138. Had Mother consistently exercised visitation, a bond might have
developed.
{¶ 73} Because there had not seemed to be a bond between Mother and Z.D.Y.,
the development specialist had worked on trying to create a bond. She reported that she
had recently made “some” progress. Tr. at p. 64-65. This specialist stated, however,
that the pandemic had not necessarily been the reason for the lack of a bond; instead,
the cause had been the large gaps between appointments. Id. at p. 65. Again, Mother
had chosen to attend less than half the therapy appointments that were available after
she resumed contact with GCCS in 2021. She also let months at a time lapse between
her attendance at appointments. Id. at p. 60. Accordingly, the court’s conclusion about
the lack of bonding was supported by the evidence.
{¶ 74} Based on the preceding discussion, the juvenile court’s finding that Mother’s
relationship with Z.D.Y. was detrimental to Z.D.Y. was supported by competent, credible
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evidence.
{¶ 75} Concerning the remaining relationships, the court found that no father was
known, that Z.D.Y. had no relationship with any siblings, that Z.D.Y. had a relationship
with his foster family, with whom he had lived with since he was two weeks old, that the
foster mother had overseen an extensive schedule of regular and medical therapy
appointments, that the foster mother had considered adopting Z.D.Y., and that no
relationships with other relatives were relevant. Final Judgment at R. 1-446.
Competent, credible evidence supported these findings. See Tr. at p. 7-15, 24, 41, 50,
71, 76, 91, 141-143, and 179-181.
2. The Child’s Wishes
{¶ 76} The next factor concerns the child’s wishes. The court stated that it did not
conduct an in camera interview due to the child’s young age. Mother has not challenged
this finding.
3. Custodial History
{¶ 77} In discussing the custodial history, the court focused on the fact that Z.D.Y.
had been in agency custody since he was two weeks old, that Z.D.Y. had had infrequent
visitation with Mother since, and that stable housing had been an issue until recently.
Based on the preceding discussion, these findings were supported by competent, credible
evidence.
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4. The Need for Legally Secure Placement
{¶ 78} In discussing the child’s need for a legally secure placement, the juvenile
court focused on many items, including the matters previously discussed. The court
further stressed that while a Covid-19 emergency had been declared on March 9, 2020,
and Covid-19 restrictions had affected case planning, Mother had not been prevented
from accessing case plan services. The pandemic also had not precluded Mother from
abstaining from smoking marijuana three to seven times per day, had not prevented
Mother from participating in medical and therapy appointments and visitation via Zoom,
had not prevented Mother from addressing her own substance abuse issues, and had not
prevented Mother from being reunified with Z.D.Y. Instead, Mother had not been
reunified due to her “own actions and choices.” Final Judgment at R. 1-447. Based on the
preceding discussion, these findings were supported by competent, credible evidence.
{¶ 79} While discussing this factor, the court also questioned Mother’s judgment.
First, the court was concerned about Mother’s judgment in posting a social media request
for help with installing a baby gate and allowing a stranger (who then overdosed) into her
home. The court also focused on Mother’s lack of honesty with GCCS. Id. at R-1-448.
Again, these observations were supported by competent, credible evidence. See Tr. at
p. 113 and 199-201,
{¶ 80} In addition, the court stressed Z.D.Y.’s special needs, which were
substantial, and Mother’s inability to meet his needs. This resulted from Mother’s
inconsistency in participating in medical appointments and learning skills needed to help
the child. Final Judgment at R. 1-448 – 1-449. The court noted that Mother had been
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made aware of these medical issues and had been asked to engage in programs and
parenting classes. However, she had made no progress in achieving these case plan
objectives. The court further found that Z.D.Y. could “not be placed in the mother’s home
within a reasonable time because she does not have the requisite knowledge to address
at home the child’s medical issues and has not shown the ability to maintain ongoing
medical appointments for the child in order for him to reach his developmental milestones
while keeping him safe.” Final Judgment at R. 1-449. These findings were supported
by competent, credible evidence.
5. R.C. 2151.414(E)(7)-(11)
{¶ 81} The final issue related to R.C. 2151.414(D)(1)(e), which asks courts to
consider if R.C. 2151.414(E)(7)-(11) pertains to the child. These parts of the statute
concern whether a parent has been convicted of or has pled guilty to various offenses,
has withheld food or medical treatment, has placed the child at substantial risk due to
alcohol or drug abuse, has abandoned the child, or has had parental rights previously
terminated with respect to a sibling. The juvenile court did not specifically discuss these
matters but did say it had considered them. Final Judgment at R.1-450.
{¶ 82} Mother has not argued that these factors were relevant. Furthermore, a
review of the record does not indicate that they applied, although the court may have
been permitted to assume that Mother had abandoned Z.D.Y. See R.C. 2151.011(C)
(stating that for purposes of R.C. Chap. 2151, “a child shall be presumed abandoned
when the parents of the child have failed to visit or maintain contact with the child for more
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than ninety days, regardless of whether the parents resume contact with the child after
that period of ninety days”).
{¶ 83} As GCCS points out, the Supreme Court of Ohio has held that juvenile
courts do not have “to expressly discuss each of the best-interest factors in R.C.
2151.414(D)(1)(a) through (e). Consideration is all the statute requires.” In re A.M., 166
Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 31. Here, the court stated that it had
considered all the factors, and that was sufficient.
{¶ 84} Accordingly, there was no abuse or discretion or error in the juvenile court’s
decision. Mother’s sole assignment of error is overruled.
III. Conclusion
{¶ 85} Mother’s assignment of error having been overruled, the judgment of the
juvenile court is affirmed.
.............
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Megan A. Hammond
Gary C. Schaengold
Brianna Britton, GAL
Hon. Amy H. Lewis | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487718/ | [Cite as R.Y.D. v. M.M., 2022-Ohio-4116.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
[R.Y.D.] :
(on behalf of M.M.) :
: Appellate Case No. 2022-CA-14
Petitioner-Appellant :
: Trial Court Case No. 2021-DV-233
v. :
: (Appeal from Common Pleas
[M.M. – FATHER] : Court – Domestic Relations Division)
:
Respondent-Appellee :
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
BYRON K. BONAR, Atty. Reg. No. 0002602 & CARA J. WILLIAMS, Atty. Reg. No.
0085921, 20 South Limestone Street, Suite 220, Springfield, Ohio 45502
Attorney for Petitioner-Appellant
M.M. – Father, Ohio
Respondent-Appellee, Pro Se
.............
DONOVAN, J.
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{¶ 1} Petitioner-Appellant Mother, on behalf of her daughter, M.M., appeals from
the trial court’s denial of Mother’s petition for a domestic violence civil protection order
against M.M.’s father (Father). In considering Mother’s objections to the magistrate’s
decision, the trial court listened to the recording of the hearing before the magistrate and
specifically found M.M.’s testimony that her father had molested her to be credible and
Father’s testimony not to be credible. Accordingly, the trial court abused its discretion in
denying the petition; the judgment of the trial court is reversed and remanded for
proceedings consistent with this opinion.
{¶ 2} Mother filed her petition for a protection order on September 14, 2021. The
petition stated that M.M. had disclosed to her brother that their father had sexually abused
her while he thought she was sleeping. The petition further stated that no charges had
been filed because of a lack in physical evidence, but that M.M. had been having
nightmares was “having to see sleep specialist for meds to sleep now.” The petition
concluded: “Yet Judge is still wanting me to continue shared parenting!” Mother
requested temporary parental rights and responsibilities for M.M. and her brother, I.M.,
and indicated that there was an open custody case involving the children in Miami County.
{¶ 3} An emergency hearing on the petition occurred the same day. At the
hearing, Mother testified that M.M. was 14 years old and again stated that M.M. had told
her son, M.M.’s brother, that Father “had been sexually abusing her while she was
sleeping”; the son had told Mother about the alleged abuse in June 2021. Mother further
testified that M.M. was “having to see a sleep specialist,” was taking anxiety medicine,
and couldn’t sleep at night. Mother reported that she had filed for “full custody” and was
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told that shared parenting had to continue until the order was changed, but M.M. was
“begging” Mother not to let her go. Mother further testified that the issue had been
“presented to the Juvenile Court,” which ordered her to continue shared parenting,
unsupervised.
Q. This hearing this afternoon is only for one purpose and that’s.
This is something you learned about back in June and - -
A. Well, I consider it an emergency because they’re expecting me
to drop her off this coming weekend like nothing even happened.
{¶ 4} The magistrate stated that the sole purpose of the hearing was to determine
“whether there’s an emergency that exists right now,” noting that Mother had learned of
the abuse allegation a few months earlier. Mother responded that it was an emergency
because she was supposed to “drop M.M. off this coming weekend like nothing ever
happened.” However, the magistrate concluded that he could not enter an emergency
order because Mother have an obligation under a court order (the shared parenting
order), and the court that issued that order had been made aware of the allegation. The
magistrate concluded that a trial would have to be help before granting a protection order,
and a trial was scheduled. The magistrate advised Mother that these “are not easy
cases to prove” and that “this would be an even more difficult case to prove since they’ve
already tried once to prove it in Juvenile Court.”
{¶ 5} On December 15, 2021, Mother filed a “First Trial Memorandum,” in which
she argued that the trial court had jurisdiction to issue a civil protection order to protect
an abused child even if the court could not address custody or visitation regarding the
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protected child.
{¶ 6} After Father requested two continuances, the hearing occurred on December
17, 2021. Several witnesses testified at the hearing.
{¶ 7} Andrea King, a mental health therapist and licensed social worker at
Samaritan Behavioral Health, testified to her credentials and that she had been trained in
interviewing abused children and had several years of experience doing so. King
testified that the protocol for interviewing abused children was to ask them open-ended
questions and non-leading questions to “let them tell their story.” She stated that she
asked M.M. non-leading and open-ended questions and did not “have any pre-conceived
notions” before the interview process.
{¶ 8} King stated that, on October 1, 2021, she received a referral from the
guidance counselor at M.M.’s school advising her that M.M. was present and “having a
panic attack,” and then M.M. “disclosed what had happened to her.” She stated that
M.M. and her mother then came in for “an intake”; when asked why Mother was present,
King responded that she had needed input from Mother and Mother had to be there “for
the intake to be completed.” At the time of the hearing, King had interviewed M.M. six
times, the first time being October 25, 2021. King testified that the purpose of the
interviews was to assess M.M.’s needs, to diagnose, and then to form a treatment plan.
She testified that the first interview lasted an hour, and the next five were between 40 and
60 minutes.
{¶ 9} King testified that M.M.’s statements were spontaneous, “very consistent,”
and did not vary when Mother was present and when she was not. According to King,
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throughout the interview, M.M. became “extremely anxious, especially when talking about
the incident that happened between her and her father.” She also stated that she
believed that M.M. knew the difference between the truth and a falsehood because her
story “ha[d] been consistent each time that it [was] brought up in conversation.”
{¶ 10} King stated that, in the first interview, M.M. “physically appeared anxious,”
was “very soft spoken,” and was “fidgety.” When asked if M.M. had a motive to fabricate,
King responded, “I don’t believe that she does.” She testified that M.M. used terminology
appropriate for a 14-year-old girl.
{¶ 11} When asked if, based upon her training and experience, she suspected that
something had happened to M.M., King responded, “Yes, I believe that something did
happen, yes.” When King was asked what it was she believed had happened, Father’s
attorney objected, stating that King was “going to bolster the credibility” of M.M., and it
was the court’s job to assess her credibility after hearing her testimony. The magistrate
responded by asking Mother’s attorney if the point of the testimony was to get King to
express an opinion about “whether she believed what the client told her”; Mother’s
attorney then suggested asking what M.M. had said first, “and then we can get into that.”
{¶ 12} King then testified that M.M. had stated that, while she was in her room at
her father’s residence, he had come into her bedroom and laid in bed with her, touched
her on the outside of her clothing as she pretended to be asleep, and then had “penetrated
his fingers into her vagina” as she continued to pretend to be asleep; then he got up and
got ready for work.
{¶ 13} When asked if M.M. could have dreamed the experience, King responded
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that she did not believe so, “[b]ecause of how it impacted her since that event.” She
stated that it happened in August 2020, and that M.M. had not yet disclosed “how that
made her feel emotionally.” King testified that M.M. reported not wanting to have a
relationship with her father and that she was uncomfortable, fearful, and anxious around
him. King stated that M.M. reported having a “very trusting, good relationship” with
Mother.
{¶ 14} Regarding having continued contact with Father, King testified that
continued contact could be harmful to M.M. because, in her opinion, “it would impact her
mental and emotional health in a negative way,” because M.M. already felt extremely
anxious about even having a conversation with Father. She stated that even meeting
Father in a public place would impact M.M.’s mental health in a negative way.
{¶ 15} When asked if she believed M.M. was credible, King answered affirmatively.
When she was asked to elaborate on how she arrived at that conclusion, Father’s attorney
objected to King’s rendering an opinion as to the credibility of a witness who had not yet
testified. The magistrate sustained the objection. Mother’s attorney asked another
question about whether M.M.’s “mental state indicate[d] trustworthiness,” and Father’s
attorney objected again. Mother’s attorney responded that the question called for “a
description of [M.M.’s] mental state,” which was within King’s area of expertise. The
magistrate rejected the argument, finding that counsel had not laid a foundation that King
had “any particular knowledge; expertise; training; or experience that makes her an expert
in the area of trustworthiness or truthfulness.” Mother’s attorney then asked King
whether she had had any such training (in determining whether clients are trustworthy or
-7-
being truthful), and Father’s attorney objected again. The exchange continued as
follows:
MAGISTRATE: I’m going to let her answer that, but I think we’re
going to end up in the same place.
A [KING]. It’s impossible to predict behavior from the children, but
if there is enough evidence that is stated in a case, I would feel that they
are trustworthy.
Q. Do you study factors that would indicate whether a child is
truthful or not? Do you study factors that would indicate that?
A. What would those factors be?
Q. That’s what I’m asking. That’s my question.
A. I would have to say no.
Q. If someone molested a child, and you said that you had studied
pedophiles, if someone had molested a child, how likely are they to
reoffend?
A. Very high.
Q. Even if they received treatment, how likely are they to reoffend?
A. It is still high.
Q. What dangers are there if a pedophile has contact with a child?
ATTORNEY KING: Your honor, I hate to interrupt again, but may
we know what this training consisted of about which the witness is
testifying?
-8-
MAGISTRATE: Well, he hasn’t established that, but she did testify
earlier that she’s had some treatment and has some knowledge about the
characteristics of pedophiles, but we haven’t had any testimony about what
- - - she says she’s studied pedophiles, but I think you need to go into that.
Q. Can you go into more details about the studies regarding
pedophiles? What training and education have you received regarding
that?
A. As far as specific trainings, I can’t recall what the actual names
of them are, but I have been to seminars and I’ve also done online trainings.
Q. So you are familiar with the characteristics and behavior of
pedophiles, is that correct?
A. Yes.
{¶ 16} King testified that she “absolutely [would] not” recommend that a pedophile
live with or have contact with a child. She was not familiar with any charges pending
against Father. King testified that Mother’s actions after her son told her about M.M.’s
disclosure had been appropriate.
{¶ 17} On cross-examination, King acknowledged that allegations of abuse should
be viewed with some suspicion when they arise in the context of a domestic relations
case. King testified that she had not had any contact with Father; her training would
permit her to examine Father and make a diagnosis regarding pedophilia, but she had
not done so.
{¶ 18} King testified that Mother told her that there had been no physical findings
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of abuse as a result of M.M.’s examination at the hospital because “too much time * * *
had passed”; Mother also reported that the matter had been investigated by law
enforcement “but there was not any evidence.” King did not find those conclusions
“persuasive,” but she did not talk to any of the investigating officers. King stated that she
was aware that contempt proceedings had been initiated due to Mother’s failure to provide
parenting time to Father.
{¶ 19} King testified that, based on Mother’s and M.M.’s statements, King believed
that Father was a pedophile and that M.M. should not live with or even have any contact
with him, because M.M. was not comfortable with that and “expressed extreme anxiety”
about even public, limited contact with Father. King noted that M.M. had not had contact
with Father for “months.” Although King acknowledged that she had not spoken to
Father in making her “diagnosis,” she felt that the information provided by M.M. and
Mother was “adequate,” even considering that Mother was involved in “a contentious
domestic relations case” with Father.
{¶ 20} M.M. testified that she was 14, lived with her mother and two older brothers,
and got mostly As and Bs in school. M.M. testified that she knew that truth is “[w]hen
you’re stating a fact” and a lie is “[w]hen you’re dishonest.” M.M. stated that if one fails
to tell the truth, one gets “in trouble,” and that an “oath” is “[w]hen you’re swearing that
you would tell the truth,” which she stated she was doing.
{¶ 21} M.M. stated that she also knew the difference between dreams and reality,
noting that “[r]eality is when you’re awake and its real.” She testified that she had asked
Mother to file the petition for a protection order for her because she is “scared” of Father,
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who she described as “abusive.” M.M. described an incident in August 2020, when she
was at Father’s home with her brother, her sister, her grandparents, and Father. M.M.
testified that she had been pretending to be asleep on the floor of the living room when
Father “inappropriately touched” her; she described that he had touched her “private
parts” with his hand, “rubbing his fingers.” M.M. further testified that Father had put his
fingers “in her crotch” for “about 20 minutes.” M.M. stated that this could not have been
a dream because she was awake. Then Father got up and got ready for work. M.M.
denied that anyone had “suggested” that she tell this story and that she felt “very anxious
and scared” when she repeated the story. She testified that she told her bother, I.M.,
about the incident months later; I.M. then told Mother about the alleged abuse, and Mother
took her to Dayton Children’s Hospital.
{¶ 22} M.M. expressed concern that Father would abuse her again, “[b]ecause
once you do it, you will probably do it again.” When asked how she had been affected
by the alleged abuse, M.M. stated, “I’m very anxious and I have multiple panic attacks a
day;” she was fearful of Father and had received treatment from King at school. She
stated that she did not want to have contact with Father.
{¶ 23} On cross-examination, M.M. stated that in August 2020, she resided at
Father’s home; her grandparents, with whom she had a good relationship, also lived
there, and her brother and sister “would sometimes come over.” She stated that her
brother I.M. was 15 years old. She acknowledged that, although the alleged abuse was
traumatic for her, she did not tell her grandparents about it. There had been no prior
incidents with Father. M.M. stated that her step-father had sexually abused her “a couple
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years” earlier, but that there “wasn’t enough evidence.”
{¶ 24} M.M. stated that she had a week on/week off parenting schedule with her
parents; while she was at Father’s house, phones and television were not allowed a lot
and they had to play outside, whereas at Mother’s house, they could have their phones,
watch TV, and hang out with friends. M.M. testified that her school performance was
important to Father, and his rules were stricter than Mother’s. M.M. stated that she
preferred to be at Mother’s home. She testified that she had spoken one time to two
detectives from the Dayton Police Department about Father’s alleged abuse. She stated
there had been significant periods of time when Mother had been away, and M.M. did not
like it. M.M. stated that Mother had lived in Indiana for a period of time.
{¶ 25} Mother testified that she had filed the petition for a protection order
because her “kids were in fear of their father.” She stated that she knew to ask an
abused child “non-leading questions.” Mother stated that on June 20, 2021, her son had
told her that his sister had told him that Father had been touching her while she was
“asleep.” Mother stated that M.M. did not visit with Father after that. When asked if she
had noticed anything unusual about M.M.’s behavior prior to learning of the alleged
abuse, Mother replied that when the police had tried to make M.M. go to Father’s prior to
the disclosure, “she had a mental breakdown panic attack,” was crying, shaking, and “just
very distraught”; Mother did not know why at the time.
{¶ 26} Mother testified that, after she learned of the abuse, her lawyer suggested
that she “wait a couple days” and see if M.M. told Mother anything, but when M.M. did not
do so, Mother eventually brought it up to M.M. Mother stated that M.M. had confirmed
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the truth of what I.M. had told Mother and said that she had been afraid to tell anyone.
According to Mother, M.M. was crying and “very distraught and anxious” during this
conversation, her tone of voice was shaky, and she was fidgeting with her hands and
“very scared.” Mother testified that she had asked M.M. non-leading questions about the
alleged abuse, that M.M.’s statements about the incident were consistent, and that she
used the terminology of a 14-year-old girl.
{¶ 27} Mother testified that M.M. did not supply details about the alleged abuse
until they were at the hospital, specifically Care House. Regarding counseling, Mother
stated that M.M. need counseling very much because of her panic attacks and not being
able to sleep at night; she got counseling through her school. Mother also took M.M. to
a sleep specialist , who put her on anxiety medication to help her sleep at night.
{¶ 28} Mother testified that she did not think that M.M. should see Father due to
her fear and panic attacks and because M.M. was old enough to say who she wanted to
spend time with. Mother stated that she had not discussed the issue with Father. She
asked the court to allow her children to have protection orders until they were 18.
{¶ 29} On cross-examination, Mother testified that in October 2020, there had
been an agreement for a one-year protection order with respect to I.M., but it did not apply
to M.M. because “[t]hat’s what the lawyers talked me into agreeing to.” Mother admitted
that, after the agreement was entered with respect to I.M, and knowing nothing about the
alleged abuse of M.M. by Father, she did not return to the week on/week parenting
schedule with M.M., because M.M. “refused to go without her brother.” Mother testified
that she had tried to get M.M. to go and had “call[ed] the cops,” who told her she did not
-13-
have to make M.M. go. Mother acknowledged that M.M. had not seen Father since
October 2020. Mother also testified that I.M. wanted “nothing to do with” Father.
{¶ 30} Mother testified that detectives in Dayton Police Department had
investigated M.M.’s allegation but no charges had been filed. Mother also confirmed that
there had been “a similar situation before” in which M.M.’s stepfather had been charged
with rape, but the case “went away.” With respect to residing in Indiana, Mother
responded that she had had a job at the casino there, but that she Face Timed with M.M.
every day and saw her every other weekend during that period. Mother had “no
relationship at all” with Father at the time of the hearing.
{¶ 31} Father testified in opposition to the protection order. Father had been
employed by the same company for four years. He stated that he had a criminal history,
most recently for two felony burglaries out of Darke and Miami Counties, but that he had
served his sentences from 2011 to 2015O and had finished his parole. He also
acknowledged some prior felony forgeries for which he had served a sentence but said
he had never been convicted of a sex offense.
{¶ 32} Regarding I.M., Father testified that their relationship with “great” and that,
for a long time, the week on/week off shared parenting of M.M. and I.M. had worked well.
According to Father, then one week he went to pick up the children from Mother, and
neither child was bathed or had brushed their teeth, and they were “pretty dirty.” Father
stated that he “kind of got on them,” about this, and then I.M. “decided to rebel” and say
that he did not want to live with Father; Father immediately returned I.M. to Mother, and
M.M. continued her visit with him because she “said she wanted to come home.”
-14-
{¶ 33} According to Father, I.M. stayed away for about two weeks before Mother
called Father and asked him to come and get I.M. because she couldn’t handle him.
When Father went to get I.M., law enforcement went with him and told I.M. he must go
with Father because Mother was telling him to go. When Father and I.M. arrived at
Father’s home, they talked outside and I.M. “decided to cuss at” Father. Father stated
that he had “reached back with [his] right arm and * * * smacked [I.M.] with the back of
[his] hand” in the mouth. Father returned I.M. to Mother the following Sunday, and on
the following Tuesday Father was arrested at his mother’s house for domestic violence
against I.M. The charge was dropped Wednesday morning and Father was released,
but he had not seen I.M. since then, because Mother had “been fighting” with him. Father
testified that he had agreed to a one-year protection order regarding I.M. because he
knew he had been wrong to smack I.M. in the mouth. According to Father, his father
had ”definitely smacked [him] in the mouth plenty of times,” so he “was wrong and * * *
admitted to it and * * * took that year of punishment away from” I.M., but at the time of the
hearing he wanted to “get [his] kid” back.
{¶ 34} With respect to M.M., Father testified that he had never touched her
inappropriately or hurt her, but he was a strict and demanding father because he had not
had one himself, and he attributed his time ‘in the system” to this fact. When asked how
M.M. responded to the discipline in his home, Father testified that she didn’t like it or
agree with it; she wanted more phone and TV time. But other than that, he also testified
that M.M. was “totally fine” with “coming back and forth and the discipline.” He stated
that he had never hit or spanked either of the children except for the time I.M. cussed at
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him.
{¶ 35} Regarding the sleeping arrangements at the home, Father testified that he
and his children -- I.M., M.M., and a two-year old daughter – generally slept in a
downstairs living room on the floor, where they often watched movies and the children
“all fall asleep in [his] arms.” He said that this sleeping arrangement had been in place
“ever since their stepfather was accused of inappropriateness” with M.M. and Father “got
full custody of them” from Mother; the children always wanted to sleep with him and be
around him, so they all slept on “folded out blankets” on the floor in a makeshift bed in
the living room.
{¶ 36} Father stated that, prior to the investigation into M.M.’s allegations, Mother
“had been ordered to give” him M.M., but she hadn’t done so as of April 1, 2021; on that
date, they had a court date, but Mother did not show up. According to Father, that was
Mother’s “second no show to court for this same thing,” so the judge granted him full
custody of M.M. He stated that he picjed M.M. up at the Piqua police, and while “she
might have cried and been distraught,” she got into his car willingly and then stayed with
him for a month. Father testified that he let Mother see M.M. on weekends until their
court date in the middle of May for a full custody hearing; the Friday before the Monday
court date, he took M.M. to Mother at the Huber Heights police station, and he had not
seen M.M. since then.
{¶ 37} Father stated that on Saturday night around 10:30 p.m., he started getting
texts from the mother of his other child telling him that Mother was saying that she was
taking M.M. to “get a rape kit” in anticipation of pressing charges against Father for
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“molesting” his daughter. This was the Saturday before the final custody hearing on
Monday, “[n]ot before; not after; not when [I.M.] was told; not when [M.M.] was crying with
the cops there that she could have said, hey, mom, no, he raped me, none of those times
was anything said” until late Saturday right before the hearing in a desperate last attempt
by Mother to keep custody of M.M.
{¶ 38} Father stated that he had been awarded “full custody” of M.M. on April 1,
2021, and then the report of abuse happened by mid-May before the court date, so “the
magistrate didn’t believe it and ordered a quick resolve.” However, nothing had been
quickly resolved; almost six months later, at the hearing in this matter, he was “very upset”
because the detectives had “talked to everybody” and the “only person you have is a
school guidance counselor that took an online course on a computer.”
{¶ 39} Father testified that Mother had not given him visitation with M.M. as she
had been ordered to do, until the judge finally told her “either you give him the daughter
or else,” but she still did not. According to Father, he “had to take the cops over there”
with the April 1 order, but when they got to Mother’s house, she “wasn’t even there” and
“she tried to leave, so the cops had to pull her over and bring her back” for Mother to give
him M.M. At that point, M.M. “cried and made a little scene,” as would be expected under
the circumstances, but she was fine once they got to his house. Later that week, M.M.
asked for $70 to get her nails done, and Father refused; “[t]he next day she went home
and then this happened.”
{¶ 40} On cross-examination, Father testified that it was not appropriate for a
father to molest or rape his daughter. When asked about whether such a father should
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get visitation or have contact with the child, Father said it would depend whether the claim
was a lie, and he and Mother’s attorney quibbled about whether it was a lie in this case.
The magistrate eventually said that the record should reflect Father’s refusal “to answer
[an] appropriate question” and instructed the parties to move on.
{¶ 41} The magistrate denied Mother’s petition for a protection order on behalf of
M.M. The magistrate noted that the case arose in the context of a contested custody
proceeding in the Miami County Juvenile Court and that neither party had called I.M. to
testify about when M.M. had told him about the allegation of abuse, when he told Mother,
or why he waited until he was at a lawyer’s office with Mother in June 2021 to mention
that his sister had been sexually abused ten months earlier. The magistrate also noted
that, although there was testimony that the one-year protection order issued in October
2020 had pertained only to I.M., the record of that case showed that the one-year consent
agreement filed on October 22, 2020, named both I.M. and M.M. as protected parties.
{¶ 42} Additionally, the magistrate found that Mother’s September 2020 petition for
a protection order was based on I.M. and M.M.’s report to Mother about Father’s assault
of I.M.; in light of that information, Mother did not think it was safe to send either child to
Father. The magistrate reasoned:
* * * Since [Mother] was allegedly attempting to protect [M.M.] from
her father, it raises a question as to why [M.M.] did not tell her mother at
that time that she had been abused by her father barely a month earlier.
[M.M.] testified she never told her mother about the incident. In contrast,
[Mother] said that she discussed it with [M.M.] a few days after [I.M.] told
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her about it at the lawyer’s office.
At the trial on the petition, [M.M.], now age 14, was the only witness
to testify about the alleged incident. She was obviously very reluctant to
talk about the incident, although her reluctance can have multiple
explanations. She used the phrase “touched me inappropriately” three
times when asked to explain what happened. Her affect during her
testimony was flat and she did not display any outward signs of emotion in
response to the questions. She also showed that she could easily be led
to change her testimony when suggested there was another answer. It
was also clear the allegation attributed to [M.M.] was divulged during a time
of contentious custody litigation. If [Father] is correct, it was revealed on
the eve of a final custody hearing and after he had previously been given
temporary custody of [M.M.].
The testimony of the counselor, Andrea King, was apparently offered
to corroborate that [M.M.] told King about this incident during their
counseling sessions in October of 2021. King testified quite specifically
that [M.M.] told her that [Father] came “into her bedroom” and that he “laid
in bed with her.” At the trial, [M.M.] described the location as being “in the
living room” and “on the floor”. King’s testimony also contradicted
[Mother’s] in the particulars of how [M.M.] came into counseling. [Mother]
testified that she called the school to ask for counseling for [M.M.]. [M.M.]
and King testified [M.M.] was referred to King by the guidance counselor
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because [M.M.] [was] having a panic attack at school. Also, [Mother]
testified [M.M.] had been having panic attacks and trouble sleeping while
she had been staying at her father[’]s, but she had not seen her father since
June of 2021. However, [Mother] apparently did not seek counseling for
[M.M.] if she did at all, until October of 2021 when she claims she called the
school for help about the panic attacks.
While the Magistrate has concerns about the testimony in support of
the petition, it should not be inferred that the respondent’s testimony was
accepted at face value. The respondent has multiple felony convictions,
including offenses of dishonesty. [Father] was argumentative, defiant and
disrespectful when being cross-examined, and at one point refused to
answer a question from counsel for the petitioner.
* * * While a delay in reporting an incident of this nature is not
uncommon, there was never any explanation provided by [M.M.] as to why
she couldn’t tell her mother or her grandmother to whom she was also close.
Or why she couldn’t tell her mother about the alleged incident at the time
when [Mother] was trying to get a protection order to keep [M.M.] and [I.M.]
away from [their] father.
* * * Also, as noted, [M.M.] showed herself to be amenable to
changing her testimony in response to suggestions (or testimony) from
counsel. While the leading questions may have provided more accurate
information, they had the perhaps unintended consequence of also
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demonstrating how easily the child can be influenced by an adult.
The testimony offered in support of the petition raises many
questions which preclude it from outweighing even the diminished credibility
of the respondent. In this case, the magistrate is unable to find the
evidence offered in support of the petition outweighs the evidence offered
by the respondent. The court finds in favor of the respondent on the
petition for a domestic violence civil protection order. The petition is
dismissed, with prejudice.
{¶ 43} The trial court’s judgment entry (attached to the magistrate’s decision)
stated that the court had reviewed the decision and found no error of law or other defect
on the face of the magistrate’s decision. The court adopted the decision and signed the
entry, citing Civ.R. 65.1.
{¶ 44} Mother filed objections on January 13, 2022, along with a request to file
supplemental objections once the transcript had been completed. In her objections,
Mother asserted that the magistrate had erred in denying the petition for three reasons.
First, she asserted that the “weight of the evidence” showed that M.M. had been raped
by her father; M.M.’s conduct was consistent with being a rape victim, she was and is
“deathly afraid of him,” she had sought counseling and therapy for her fear, and, since
she had first disclosed the rape, she had consistently maintained that she had been raped
even during and after cross-examination. Second, Mother asserted that an “error of law
occurred” in that King testified “forcefully” that M.M., in her opinion, should not be
compelled to have further contact with Father. According to Mother, this “critical piece
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of evidence” was ignored by the magistrate. Finally, citing Evid. R. 704, Mother argued
that the magistrate erred in refusing to admit King’s opinion as to M.M.’s truthfulness and
trustworthiness solely on the basis that it embraced the ultimate issue to be decided by
the trier of fact. King’s attached an affidavit from King stating that King “absolutely finds
[M.M.] to be credible for a number of reasons.”
{¶ 45} Father responded to Mother’s objections on February 7, 2022. He argued
that King’s testimony was properly excluded because it did not establish “any educational
background in psychology or forensics or hands on experience with any former alleged
rape victims.” Father also asserted that there was no “independent evidence” that M.M.
feared being around Father or that her panic attacks somehow verified that a rape had
occurred. Father argued that Mother misinterpreted Evid.R. 704, because “[e]xpert
testimony often embraces the ultimate issue if properly presented,” but it does not permit
one witness to testify about the credibility of another witness Finally, Father asserted
that King’s claim that M.M.’s reporting of the incident had been “consistent all along” was
“suspect,” given that the testimony at the hearing wasn’t even consistent as to where the
alleged rape occurred and who was in the room. Father pointed out that the magistrate
noted this inconsistency in its decision.
{¶ 46} In supplemental objections filed on February 16, 2022, Mother repeated the
three arguments described above; additionally, she objected to the magistrate’s failure to
recognize that R.C. 3113.31 is remedial in nature and failure to construe the evidence in
favor of M.M.
{¶ 47} In its decision overruling Mother’s objections, the trial court noted in a
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footnote that its adoption of the magistrate’s order on January 4, 2022, did not preclude
Mother from filing objections, citing Civ.R.53(D)(4)(b) and (d). The trial court also noted
that, under Civ.R. 65.1(F)(3)(d)(i), a party has 14 days to file written objections to a trial
court’s adoption of a protection order. However, the court pointed out that, “unlike Civ.R.
53, a party may not object to the magistrate’s grant or denial of a protection order under
Civ.R. 65.1,’ ” citing Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170, ¶ 26 (2d Dist.).
{¶ 48} The trial court found that the magistrate had appropriately applied the law.
Regarding the weight of the evidence, the court noted that Mother’s argument was
primarily based on whether M.M. was credible in the absence of physical evidence, a
criminal charge or conviction, witnesses, or an admission to the alleged conduct. The
court stated that it had reviewed the written transcript and listened to the audio recording
of the hearing on the petition and that it was not required to defer to the magistrate’s
determinations of witness credibility. The court did not find that M.M. had been
influenced by counsel or was “led” in her answers; rather, she had “responded
appropriately to each question” had not simply repeated or rephrased an answer, and
had not appeared to be coached on how to answer. The trial court observed that M.M.
had testified in a “calm and monotone manner” and had quickly responded to questions.
{¶ 49} With respect to Father’s testimony, the court found that he “lacked
credibility.” The court noted that he would not answer questions, “was rude,
argumentative, and disrespectful of counsel.” The court found that Father “expressed
clear anger” and his tone was “demanding” as he testified, “ ‘now I’m here to get my kid.’ ”
The court noted that, while Father asserted that M.M. had created a story because she
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did not like the rules at his house, he had been “just as culpable in not having a strong
relationship with his daughter.” With respect to Father’s testimony that M.M. had asked
to get her nails done, in response to which Father had turned off her phone, the court
commented that Father’s “anger was obvious” on the audio recording and his behavior
was “intentional,” revealing “a very controlling personality.” The court did not find that
M.M. lacked credibility and rejected Father’s argument that M.M. had a motive to lie
because she did not like her father’s rules. The court pointed out that M.M. “also had a
history that prevented her from being completely open about the incident and finding the
need to report the incident”; it was undisputed that M.M. had previously been sexually
abused by her stepfather and, while that incident had been reported and investigated,
“charges for rape were filed and then nothing happened.”
{¶ 50} The court concluded that, although it found M.M. to be credible, her
testimony alone did “not rise to the level necessary to grant the civil protection order.”
The court had no doubt that M.M. was having panic attacks, but it found no evidence from
which to conclude that those panic attacks were the result of “inappropriate” touching by
Father. The court found that there was undisputed testimony of prior sexual conduct by
the stepfather that had not been taken into consideration regarding M.M.’s issues.
Finally, the trial court stated that the therapist’s role was to address the panic attacks, not
to determine if Father had committed sexual abuse, and that a police investigation
“presumably did not rise to a level of probable cause.”
{¶ 51} Regarding the alleged error of the magistrate in not considering “critical
evidence,” i.e., King’s assessment of M.M.’s truthfulness, the court found that Evid.R.
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701, which governs opinion testimony by lay witness, applied. The court rejected
Mother’s argument that King should have been permitted to testify as to her personal
observations of M.M.’s fear of her father, because “while there was personal observation,
it was based on M.M.’s conclusive statement that her father had ‘penetrated’ her with his
fingers”; King had not explored any other reason for the panic attacks or fear, and she
did not speak to Father or law enforcement officers. Because King’s testimony was
based only on what M.M. had told her, the court concluded that King had not testified as
an expert witness, and her opinions had not been admissible as lay testimony because
“rather than being personal observations, they were based on the statements of M.M.”
{¶ 52} Further, the court rejected Mother’s arguments that King’s testimony was
admissible pursuant to Evid.R. 704. Noting that King was never qualified as an expert
witness and that even an expert could not be permitted to testify about the veracity of a
child, the court questioned how a lay witness “could testify to such opinion.” The court
emphasized that King’s testimony was The court found that “the testimony prohibited was
solely related to the truthfulness of M.M. There is no error in prohibiting tnot based on
her personal observations but on what M.M. had relayed to her.
{¶ 53} As to Mother’s argument with regard to R.C. 3113.31, the trial court did not
disagree ith Mother that the statue was remedial in nature, but it found no evidence that
the magistrate had not recognized the remedial nature of the statute. Despite its
remedial nature, the petitioner (Mother) has the burden to establish by a preponderance
of the evidence that the abuse occurred in order to obtain a protection order. The trial
court agreed with the magistrate that this burden had not been satisfied. The court found
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no error, noting that Mother had “other means” of addressing the visitation and/or custody
issue.
{¶ 54} In conclusion, the court noted the following factors, which it found to be
determinative: there was no medical evidence of any abuse, no criminal charges had
been filed despite an investigation, the abuse was never reported by M.M. to Mother or
to her grandmother, with whom M.M. had a close relationship, M.M.’s account of the
incident had “very little description”; while Father was “an unlikeable person,” he
presented evidence that M.M. had a motive to lie (Father’s strictness an discipline); M.M.
agreed she preferred [Mother’s] home due to the lack of rules and discipline * * *), and
the incident “allegedly took place with M.M.’s brother and half-sister present.” The court
also concluded that, while M.M.’s hesitancy and lack of openness about the “alleged
single incident” may likely be explained by the fact that her report o prior sexual abuse by
her stepfather had led to a charge of rape but “then the case disappeared without an
outcome,” that prior incident could also explain why M.M. was having panic attacks,
anxiety, and trouble sleeping. The court noted that there had been no evidence offered
about the timing of the incident with the stepfather or M.M.’s emotional or psychological
issues after that incident, notwithstanding a finding of probable cause for rape. NO
charges had been filed against Father. Moreover, Mother stated that she had requested
the protection order because M.M. was “old enough” to make her own decision about with
whom she wanted to spend time.
{¶ 55} Mother appeals from the trial court’s denial of a protection order on behalf
of M.M.
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{¶ 56} Mother asserts one assignment of error with multiple subparts, which largely
mirror the arguments raised in her objections. Additionally, Mother argues that finding
“that a victim was abused and then refusing to give that victim a remedy under R.C.
3113.31 because that victim is a non-marital child, denies that non-marital child due
process and equal protection of the law” and that the court erred in failing to “liberally
interpret” domestic relations laws as required by R.C. 1.11. Father did not file a brief.
{¶ 57} Mother argues that , insofar as the trial court found M.M.’s testimony to be
credible and claimed to have applied the preponderance of the evidence standard, it erred
in not granting the civil protection order. Mother also argues that King’s testimony should
have been admitted as expert testimony under Evid.R. 702 or lay opinion under Evid.R.
701, and the trial court abused its discretion in failing to consider this evidence. Citing
R.C. 1.11, Mother further asserts that the trial court “recognized that domestic violence
laws were remedial statutes but did not apply a liberal interpretation to any domestic
violence law or to this proceeding,” which was error.
A.
{¶ 58} Mother argues that she was held to a higher standard of proof than the
preponderance of the evidence standard. She argues that, in a civil protection order
case, the standard of proof “is just more likely than not,” and the Ohio Supreme Court has
expressly rejected the position that corroborating evidence must be presented. Citing
Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), Mother argues that M.M.’s
testimony alone, if credible, was sufficient to meet the preponderance of the evidence
standard, and the trial court did find M.M. to be credible. Mother points out that therapist
-27-
King also corroborated M.M.’s testimony and that the trial court specifically found Father’s
testimony not to be credible. Thus, Mother asserts that there was “more than sufficient
evidence” to support the issuance of a protection order and the court should have issued
such an order.
B.1.
{¶ 59} Citing R.C. 3113.31(G), Mother argues that the “remedies available in R.C.
3113.31 are in addition to any other civil or criminal remedy.” Noting that one of the
reasons given by the trial court for the denial of the civil protection order was the potential
availability of other civil remedies, she argues that the court’s reasoning was “contrary to
the explicit language in R.C. 3113.31(G)” and its intent. Mother asserts that M.M. had
been raped and that she was reasonably fearful of her abuser and of being raped again,
that civil protection orders are available to other rape victims, and that it was arbitrarily
denied in this case.
B.2.
{¶ 60} Mother also asserts that interpreting R.C. 3113.31 “to deny recovery to non-
marital children for a civil protection order” despite a finding that domestic violence
occurred, “unlawfully discriminates against non-marital children * * *.” She argues that
the trial c essentially held “that every victim of domestic violence is entitled to a remedy
under R.C. 3113.31 except children,” because it “would deny every non-marital child the
possibility of a remedy under domestic violence laws because they would have a remedy
for custody or visitation.” According to Mother, the trial court denied M.M., a non-marital
child, “even the possibility of a remedy under R.C. 3113.31,” despite “egregious” domestic
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violence, by denying the petition because there was “a possibility of a remedy available
through custody or visitation. She concludes that the trial court thereby unconstitutionally
discriminated against a non-marital child, although the United States Supreme Court has
enunciated constitutional protections for such children.
C.1.
{¶ 61} Mother asserts that “at least some or all” of the evidence from M.M.’s
therapist, King, should have been considered and admitted by the trial court. Mother
points to King’s testimony about her qualifications and experience and about working with
M.M.
C. 2.
{¶ 62} Mother asserts that the trial court should not have “ignored” King’s
testimony that M.M. should not be forced to have further contact with Father because
such contact could be detrimental to M.M.’s mental health and cause her continued fear
and panic attacks. She argues that King should have been treated as an expert, citing
Evid.R. 702 and Ohio Adm.Code 4757-21-02, which “defines the scope of practice for a
licensed social worker.” Mother also cites State v. Blanton, 4th Dist. Adams No.
16CA1031, 2018-Ohio-1275, arguing that other courts have “recognized licensed social
workers as experts in interviewing abused children and determining the truthfulness of
their patients.”
C.3.
{¶ 63} Mother asserts that King was not precluded from opining on M.M.’s
truthfulness, because a social worker “is licensed by the State of Ohio to provide therapy,”
-29-
which includes determining whether the patient is telling the truth. Mother asserts that
the court cited criminal cases that prohibit a therapist from giving an opinion as to a
victim’s truthfulness, but those cases cited State v. Boston, 46 Ohio St.3d 108, 128, 545
N.E.2d 1220 (1989). According to Mother, King’s testimony should not have been
excluded “because of the Sixth Amendment’s Confrontation Clause.”
C.4.
{¶ 64} Citing Evid. R. 701, Mother alternatively argues that King’s testimony should
have been considered and admitted as lay testimony, because King was “qualified to give
her lay opinion as to M.M.’s fear of her father and the consistency of her story.” Mother
argues that one does not need to be a trained and licensed therapist “to recognize fear in
a person’s face.”
D.
{¶ 65} Mother argues that the trial court “did not liberally interpret domestic
violence laws or this case as required by R.C. 1.11,” again pointing out that R.C. 3113.31
is a “remedial statute” under R.C. 1.11. She argues that, because the object of R.C.
31113.31 is to prevent further abuse, and that the statute specifically states that the
remedies provided therein are in addition to, and not in lieu of, any other available civil
remedy, whether another court was considering custody and visitation issues was
irrelevant to the issuance of a civil protection order. According to Mother, “[c]ustody and
visitation are not the same as a civil protection order or an adequate remedy for a rape
victim. A civil protection order is enforceable by the police.” Mother argues that a civil
protection order enforceable by the police is better suited to protecting a victim from
-30-
further domestic violence.
{¶ 66} On July 28, 2022, Mother filed a citation to additional authority, R.C.
3109.051(A); she argues that although custody was awarded in the Miami County
Juvenile Court, the trial court had jurisdiction to make a finding of domestic violence and
to issue a protection order for M.M.
{¶ 67} Civ.R. 65.1(F)(3)(d)(iii) provides:
A party filing objections under this division has the burden of showing
that an error of law or other defect is evident on the face of the order, or that
the credible evidence of record is insufficient to support the granting or
denial of the protection order, or that the magistrate abused the magistrate's
discretion in including or failing to include specific terms in the protection
order.
{¶ 68} We have observed:
R.C. 3113.31(E)(1) authorizes a trial court to issue a CPO “to bring
about the cessation of domestic violence against [ ] family or household
members.” To obtain a CPO, a petitioner must demonstrate by a
preponderance of the evidence that the person for whom protection is
sought is in danger of domestic violence. Tyler v. Tyler, 2d Dist.
Montgomery No. 26875, 2016-Ohio-7419, ¶ 18, citing Felton v. Felton, 79
Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus.
K.A. v. A.V., 2d Dist. Champaign No. 2018-CA-12, 2018-Ohio-4144, ¶ 16.
{¶ 69} R.C. 3113.31(A)(1)(a)(iv) defines domestic violence in part as “[c]ommitting
-31-
a sexually oriented offense.”
{¶ 70} We further noted:
To assess whether a protection order should have been issued, “the
reviewing court must determine whether there was sufficient credible
evidence to prove by a preponderance of the evidence that the petitioner
was entitled to relief.” Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170, ¶ 45
(2d Dist.), quoting Weismuller v. Polston, 12th Dist. Brown No. CA2011-06-
014, 2012-Ohio-1476, ¶ 19. “Under the civil manifest-weight standard, ‘[i]f
competent, credible evidence exists to support the trial court's decision, it
must be affirmed.’ ” Id., quoting Wise v. Wise, 2d Dist. Montgomery No.
23424, 2010-Ohio-1116, ¶ 9. To perform a civil manifest-weight analysis,
the appellate court reviews the trial court's rationale and the evidence cited
in support of its decision, remaining mindful of the trial court's primary role
in evaluating evidence and assessing witness credibility. Id.
K.A. at ¶ 15.
{¶ 71} We agree with Mother’s assertion that the trial court held her to a higher
standard of proof than the preponderance of the evidence. The trial court found M.M.
“to be credible in her testimony” and that she had not been influenced by counsel or led
in her answers. The court found that she had “responded appropriately to each question”
and that it did not appear that “she had to be coached on how to answer.” The court
found that M.M. testified in a calm manner. The court further found that Father “lacked
credibility.” Despite specifically finding that the victim was credible and the respondent
-32-
was not credible, the court found that M.M.’s testimony alone did “not rise to the level
necessary to grant the civil protection order,” pointing out that there was “undisputed
testimony of prior sexual conduct by the stepfather.”
{¶ 72} Based upon the foregoing, we conclude that the trial court erred when it
found that there was not sufficient credible evidence to prove by a preponderance of the
evidence that M.M. was in danger of domestic violence and entitled to a civil protection
order. Hence, the trial court’s judgment was against the manifest weight of the evidence
and an abuse of discretion. M.M. was not required to establish the molestation beyond
a reasonable doubt, as seems to be suggested by the trial court’s noting of no criminal
prosecution.
{¶ 73} Given our determination that the trial court erred in denying Mother’s
petition, we need not address her argument that the trial court failed to comply with the
requirements of R.C. 3113.31(G). We also decline to address Mother’s argument that
the trial court violated M.M.’s equal protection and due process rights by treating M.M., a
non-marital child, differently from marital children, because Mother raises it for the first
time on appeal. “The ‘[f]ailure to raise at the trial court level the issue of the
constitutionality of a statue or its application, which is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state’s orderly procedure, and
therefore need not be heard for the first time appeal.’ ” Trammel v. Powell, 2d Dist.
Montgomery No. 23832, 2011-Ohio-2978, ¶ 15.
{¶ 74} Regarding the admissibility of King’s testimony, we note that “[t]he
admission of evidence lies within the sound discretion of the trial court, and the trial court’s
-33-
ruling will not be reversed absent an abuse of discretion.” Googash v. Conrad, 2d Dist.
Montgomery Nos. 20184, 20191, 2004-Ohio-5796, ¶ 16. We have stated:
* * * To constitute an abuse of discretion, a trial court's action must
be arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees
of Ohio State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). “It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark No. 2011-CA-
21, 2012-Ohio-2664, ¶ 24. A court's decision is unreasonable “if there is
no sound reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de novo, would
not have found that reasoning process persuasive.” AAAA Ents., Inc. v.
River Place Community Urban Redevelopment, Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990).
Wilkes v. Wilkes, 2d Dist. Montgomery No. 29456, 2022-Ohio-3080, ¶ 11.
{¶ 75} Evid.R. 702 governs testimony by experts and provides:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge
or experience possessed by lay persons or dispels a misconception
common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
-34-
testimony;
(C) The witness' testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports the
result of a procedure, test, or experiment, the testimony is reliable only if all
of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is
objectively verifiable or is validly derived from widely accepted knowledge,
facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the
theory;
(3) The particular procedure, test, or experiment was conducted in a way
that will yield an accurate result.
{¶ 76} Evid.R. 701 governs opinion testimony by lay witnesses and states: “If the
witness is not testifying as an expert, the witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue.”
{¶ 77} We conclude that Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-
1275, which recognized licensed social workers as experts in interviewing abused
children and determining their truthfulness, is distinguishable. In that case, the Fourth
District determined as follows:
Whether a victim's statements are “consistent with” a sex crime is
-35-
beyond the knowledge and experience possessed by lay persons.
Ordinary citizens in their everyday affairs do not typically interview,
evaluate, and analyze sex victims. See State v. Stowers, 81 Ohio St.3d
260, 262, 690 N.E.2d 881 (1998) (Internal quotations omitted.) (“Most jurors
would not be aware, in their everyday experiences, of how sexually abused
children might respond to abuse. * * * [T]he common experience of a juror
may represent a less-than-adequate foundation for assessing whether a
child has been sexually abused.”) Colliers [a social worker] provided the
jury with her professional insight to allow the jury to better assess, examine,
and scrutinize [the victim] J.S.'s statements about the incident, as well as
understand the overall evidence of the case and the issue of consent.
***
A review of the transcript reveals that Colliers is a licensed social
worker at the Mayerson Center, where she regularly conducts forensic
interviews of children victimized by sex crimes. She has been employed
in this capacity since 2005—specifically at the Mayerson Center since
2012—and has a Master's Degree in social work from the University of
Cincinnati. She estimated that, since 2005, she has conducted over 1,000
interviews of sexually-victimized children. Moreover, prior to Blanton's trial,
Colliers had testified as an expert witness in Ohio on two other occasions.
Given this record of specialized training and professional experience, we
conclude that Colliers did not lack the requisite qualifications under Evid.R.
-36-
702(B) to render an expert opinion. See State v. Barnes, 12th Dist. Brown
No. CA2010-06-009, 2011-Ohio-5226, ¶¶ 51-53 (social worker was
qualified expert in forensic interviewing where witness had master's degree,
interviewed over 800 children in alleged sexual abuse cases, and provided
prior expert testimony).
* * * In addition to J.S.'s statements, Colliers was able to observe
J.S.'s demeanor during the interview. She was also able to rely on her vast
experience interviewing victims of sexual abuse. Thus, we conclude that
Collier's opinion was supported by specialized information in addition to the
statements made by J.S. See State v. Coleman, 2016-Ohio-7335, 72
N.E.3d 1086, ¶ 29 (6th Dist.) (an expert may not base his or her opinion that
a child was sexually abused solely on the child's statements, but instead
must analyze the statements in conjunction with the physical evidence, the
expert's observations of the child's demeanor, or other indicators tending to
show the presence of sexual abuse); State v. Lawson, 4th Dist. Highland
No. 14CA5, 2015-Ohio-189, ¶ 21 (“During the interview [the expert] had the
opportunity to observe the children's behavior and speech patterns. Often
the physical reactions to questioning provide important clues to determining
whether the conduct alluded to in statements have a basis in fact.”).
***
While an expert witness may not testify as to the veracity of the
child's statements, State v. Boston, 46 Ohio St.3d 108, 545 N.E.3d 1220
-37-
(1989), syllabus, the expert may offer testimony that provides “additional
support for the truth of the facts testified to by the [victim], or which assists
the fact finder in assessing the [victim's] veracity.” (Emphasis sic.) Stowers,
81 Ohio St.3d at 262-263, 690 N.E.2d 881. “Therefore, an expert in child
sexual abuse can testify as to his or her opinion on whether the child was
abused, but the expert may not testify as to the veracity of the child's
statements.” Coleman at ¶ 29.
Blanton at ¶ 50, 52-53, 55.
{¶ 78} King was not designated as an expert in childhood sexual abuse, and she
testified that she had not studied factors that indicate whether a child is truthful. She did
not have a master’s degree or testify to previous experiences of being qualified to provide
expert testimony. She testified that she was “informed * * * yesterday” that the conduct
that M.M. alleged constituted rape and not touching. King worked in a high school setting
for Samaritan Behavioral Health, and she testified that she received a referral for M.M.
from the guidance department. While King is a licensed social worker, her testimony
was not adduced in the context of attempting to help a jury/factfinder better understand
the characteristics of child sexual abuse in general. Her testimony was limited to her
interaction with M.M. and Mother, and she improperly bolstered M.M.’s credibility by
stating that she found M.M. to be credible. We see no abuse of discretion in the trial
court’s prohibiting King’s testimony as to whether M.M. was being truthful, as such a
determination was for the trier of fact to make.
{¶ 79} Finally, we note that R.C. 1.11 provides: “Remedial laws and all
-38-
proceedings under them shall be liberally construed in order to promote their object and
assist the parties in obtaining justice. The rule of the common law that statutes in
derogation of the common law must be strictly construed has no application to remedial
laws * * *.” The trial court acknowledged that R.C. 3113.31 “not only addresses a
particular act but is to stop future abuse” and that it is remedial in nature. This portion of
Mother’s assignment of error lacks merit.
{¶ 80} Mother’s assignment of error is sustained in part and overruled in part.
Having found that Mother established, by a preponderance of the evidence, that M.M.
had been sexually abused by Father, an abuse of discretion in the denial of the civil
protection order is demonstrated.
{¶ 81} The judgment of the trial court is reversed, and the matter is remanded for
proceedings consistent with this opinion, with instructions to include appropriate
conditions in the protection order.
.............
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Byron K. Bonar
Cara J. Williams
M.M. - Father
Hon. Stacy M. Wall | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487713/ | [Cite as State v. Snowden, 2022-Ohio-4119.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29355
:
v. : Trial Court Case No. 2016-CR-1809
:
DEONTE DWAYNE SNOWDEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DEONTE DWAYNE SNOWDEN, Inmate No. 746-838, Allen-Oakwood Correctional
Institution, P.O. Box 4501, Lima, Ohio 45802
Defendant-Appellant, Pro Se
.............
WELBAUM, J.
-2-
{¶ 1} Defendant-appellant, Deonte Dwayne Snowden, appeals pro se from a
judgment of the Montgomery County Court of Common Pleas overruling his petition for
postconviction relief and motion for leave to file a motion for new trial. For the reasons
outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 14, 2016, a Montgomery County grand jury returned an indictment
charging Snowden with two counts of felony murder, two counts of felonious assault, one
count of having weapons while under disability, and four attendant firearm specifications.
The charges stemmed from allegations that on June 6, 2016, Snowden engaged in a
physical altercation with William Sarver during which Snowden pulled out a handgun and
fatally shot Sarver in the abdomen. It was alleged that the altercation began while Sarver
was outside talking to Snowden’s aunt by marriage, Theodora Watson. Watson and her
three grandsons, D.O. (then 16 years old), D.E. (then 13 years old), and D.S. (then 10
years old), witnessed the altercation while they were in a vehicle parked in Watson’s
driveway.
{¶ 3} Snowden pled not guilty to all the indicted charges and waived his right to a
jury trial on the charge for having weapons while under disability. The charges for felony
murder and felonious assault and their attendant firearm specifications were then tried to
a jury in November 2017. The jury could not reach a verdict, and the trial court declared
a mistrial.
-3-
{¶ 4} Following the mistrial, it was discovered that in late November 2017,
Snowden had called D.E. from jail and offered him $2,500 to give testimony at trial that
favored Snowden’s case. It was also discovered that on November 30, 2017, Snowden
had called and asked Watson to change her story regarding the events surrounding
Sarver’s shooting. After this conduct was discovered, Snowden was additionally
charged with one count of bribery in a “B Indictment.”
{¶ 5} On July 9 through 11, 2018, Snowden was tried by a jury a second time on
the felony murder and felonious assault charges and their firearm specifications. The
new bribery charge in the “B indictment” was also tried at that time. Following trial, the
jury found Snowden guilty of all the offenses and specifications. The trial court thereafter
held a bench trial and found Snowden guilty of having weapons while under disability as
well.
{¶ 6} At sentencing, the trial court merged all the felony murder and felonious
assault charges and the firearm specifications. Following the merger, the State elected
to have Snowden sentenced for felony murder, which carried a mandatory sentence of
15 years to life in prison and a consecutive three-year prison term for the attendant firearm
specification. The trial court also sentenced Snowden to three years in prison for having
weapons while under disability and ordered that sentence to be served concurrently to
the sentence for felony murder. Lastly, the trial court sentenced Snowden to three years
in prison for bribery and ordered that sentence to be served consecutively to the sentence
for felony murder. Therefore, Snowden received an aggregate term of 21 years to life in
prison.
-4-
{¶ 7} Snowden appealed from his convictions and raised nine assignments of error
for review. The assignments of error concerned: (1) the trial court’s failure to suppress
cell phone pinging evidence; (2) the trial court’s failure to sever the bribery count from the
trial of the other offenses; (3) the trial court’s evidentiary rulings on certain parts of
Watson’s trial testimony and the admission of Snowden’s jail telephone call to D.E.; (4)
whether the jury’s verdict was against the manifest weight of the evidence; (5) the trial
court’s imposition of consecutive sentences; (6) Snowden’s present and future ability to
pay the financial sanctions imposed at sentencing; (7) whether Snowden received
ineffective assistance of counsel; (8) whether the State committed prosecutorial
misconduct; and (9) whether the doctrine of cumulative error necessitated the reversal of
Snowden’s conviction.
{¶ 8} Upon review, this court overruled all of Snowden’s assignments of error,
except for the one pertaining to the imposition of consecutive sentences. Specifically,
we found that the trial court did not make all the required consecutive-sentence findings
set forth in R.C. 2929.14(C)(4). As a result, we remanded the matter to the trial court for
the sole purpose of resentencing Snowden. In all other respects, Snowden’s judgment
of conviction was affirmed. State v. Snowden, 2019-Ohio-3006, 140 N.E.3d 1112 (2d
Dist.) (“Snowden I”).
{¶ 9} On remand, the trial court held a resentencing hearing and reimposed the
same aggregate sentence of 21 years to life in prison while making the required
consecutive-sentence findings. Snowden appealed from the trial court’s resentencing
judgment, which this court affirmed. State v. Snowden, 2d Dist. Montgomery No. 28608,
-5-
2020-Ohio-5412 (“Snowden II”).
{¶ 10} While the appeal in Snowden II was pending, on April 14, 2020, Snowden
filed a pro se petition for postconviction relief and a motion for leave to file a motion for
new trial.1 In the petition and motion, Snowden claimed that he had newly discovered
evidence demonstrating that Watson, D.E., and D.S.2 had lied at his trial and that their
testimony had been “coached” by the State. Specifically, Snowden claimed that the
newly discovered evidence established that Watson, D.E., and D.S. had falsely testified
to seeing him shoot Sarver on the night in question and to D.W.’s being absent during the
shooting. (D.W. was Watson’s son and the father of D.O., D.E., and D.S.) Snowden also
claimed that the newly discovered evidence demonstrated that his trial counsel
suppressed evidence provided by a private investigator that established that D.W. and
the police coerced D.O., D.E., and D.S. to falsely identify him as the shooter.
{¶ 11} Snowden argued that the false testimony and suppression of evidence had
denied him his constitutional rights to compulsory process and effective assistance of
counsel. Snowden also claimed that the suppressed evidence was exculpatory and
constituted a Brady violation that denied him his constitutional right to due process.
1 Snowden’s petition for postconviction relief and motion for leave to file a motion for new
trial were filed separately, but the petition relies on exhibits that were attached only to the
motion for leave and the motion for leave relies on arguments that were raised only in the
petition. Although Snowden filed the petition and motion for leave separately, we find
that, in the interest of justice and for ease of discussion, it is appropriate to treat them as
a combined filing since they were filed on the same day and were based on the same
supporting exhibits and arguments. We also reach this conclusion because Snowden
stated in the motion for leave that it was “to be read and adjudicated in conjunction with
his Petition for [Postconviction] Relief.”
2 The third grandson, D.O., did not testify at Snowden’s second jury trial.
-6-
Snowden further argued that he had been denied his right to compulsory process
because the trial court had failed to admit evidence of a letter written by D.O. on October
30, 2017, wherein D.O. recanted his original statement to police identifying Snowden as
the shooter.
{¶ 12} Snowden attached D.O.’s letter and the other “newly discovered evidence”
to his petition and motion for leave. The evidence consisted of information contained in
affidavits executed by Adale Wilkins, Dayana Snowden, and Ciara Watson. It also
included two letters written by private investigator Wayne Miller. 3 The following is a
description of the information provided in those documents.
D.O.’s Recantation Letter
(Motion for Leave, Exhibit H)
{¶ 13} Prior to Snowden’s first trial, D.O. allegedly submitted a handwritten letter
to the trial court that was dated October 30, 2017. In the letter, D.O. stated that he had
not seen who had a gun or who shot Sarver on the night in question because he was
playing on his cell phone and not paying attention. D.O. also stated that his father “has
something against [Snowden]” and forced him to lie and say that he saw Snowden with a
gun. D.O. also stated that the prosecutors threatened to take him to jail when he tried to
3 In his petition and appellate brief, Snowden refers to Miller’s letters as “investigative
reports.” One of the letters, dated September 24, 2017, was not attached to Snowden’s
petition or his motion for leave to file a motion for new trial. Instead, Snowden attached
the letter to a “Motion for Recusal Relief,” which he filed the same day he filed his petition
and motion for leave. In the “Motion for Recusal Relief,” Snowden stated that the motion
was “to be read and adjudicated in conjunction with [his] Petition for Postconviction relief
and Motion for New Trial[.]” In the interest of justice, and for ease of discussion, we will
proceed as though the September 24, 2017 letter was attached to Snowden’s petition
and motion for leave.
-7-
tell the truth.
Affidavits of Adale Wilkins and Dayana Snowden
(Motion for Leave, Exhibits D and E)
{¶ 14} On January 16, 2020, Adale Wilkins and Dayana Snowden executed
affidavits averring that in October 2017, they had accompanied D.E., D.S., and the boys’
mother, L.R., to a meeting with their attorney. Wilkins and Dayana4 averred that while
waiting for the meeting, they overheard D.E. and D.S. say that they did not know who had
shot Sarver and that they had never seen Snowden possess or discharge a firearm on
the night in question. Wilkins and Dayana also averred that D.E. and D.S. had indicated
that they had been coerced to falsely accuse Snowden of shooting Sarver and that they
were afraid to name the person who had coerced them. They further averred that they
had been present when D.E., D.S., and L.R. received a speakerphone call from the boys’
father, D.W. Wilkins and Dayana both averred that D.W. had angrily shouted at D.E. and
D.S. and had told them that they had better say what they had been told to say.
{¶ 15} Wilkins additionally averred that she had relayed all the foregoing
information to Snowden’s attorney and had advised him that she was willing to testify in
court about what she had heard. Dayana additionally averred that she had “personal,
firsthand knowledge” of D.O.’s submission of his recantation letter to the trial court judge.
Both Wilkins and Dayana also averred that they had listened to the audio recording of the
9-1-1 call made on the night of the shooting and that, in contrast to what the State’s
4We refer to Dayana Snowden by her first name, to avoid confusion with the Defendant-
Appellant. Similarly, we will refer to Ciara Watson as Ciara to avoid confusion with
Theodora Watson.
-8-
witnesses testified to at trial, D.W.’s voice could be heard in the background of the call.
Affidavit of Ciara Watson
(Motion for Leave - Exhibit F)
{¶ 16} On December 13, 2019, Ciara Watson executed an affidavit averring that
she had been an eyewitness to the physical altercation between Snowden and Sarver.5
Ciara averred that there had been a small crowd of 10 to 15 people hanging around when
the altercation started and that any one of those individuals could have been the shooter.
Ciara stated that she was “100% positive” that Snowden had not shot Sarver because
she had been trying to stop the fight and standing close to both Snowden and Sarver.
Ciara averred that when shots were fired, everyone started running, and that Watson,
D.E., and D.S. were not outside during the fighting or the shooting. Ciara further stated
that, at the time of the shooting, she had thought someone simply fired shots in the air to
break up the fight and did not know that anyone had been shot during the incident. Ciara
averred that she had returned home to Michigan the morning after the incident and would
have come forward with her information earlier had she known that someone had been
shot. In addition, Ciara stated that she was then incarcerated at the Ohio Reformatory
for Women.
September 24, 2017 Letter from Wayne Miller
(Motion for Recusal – Exhibit A)
5 In her affidavit, Ciara refers to the shooting victim as “Carl Lewis,” rather than William
Sarver. At Snowden’s trial, it was established that Sarver had used the name “Carl
Lewis” as a nickname. See Trial Tr. Vol. I (July 9, 2018), p. 120. For purposes of
consistency, we will refer to the victim as Sarver when discussing Ciara’s affidavit.
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{¶ 17} On September 24, 2017, private investigator Wayne Miller wrote a letter to
Snowden’s first trial counsel to provide counsel with an “investigation update.” In the
letter, Miller wrote that on September 7th, he had received a call from L.R., the mother of
D.E. and D.S. Miller reported that during the call, L.R. had told him that her sons had
not actually witnessed Sarver’s shooting and that she was upset because her sons had
given witness statements to the police that indicated otherwise. According to the letter,
L.R. also told Miller that the police and her son’s grandparents had pressured her sons to
make the witness statements at issue. Miller also wrote that L.R. had told him that D.E.
had been inside the house telling his father about the fight between Snowden and Sarver
when the gunshots were fired and therefore had not seen the shooting.
{¶ 18} Miller’s letter further explained that L.R. had never followed up with him at
his office the next day as promised, but that he had reached L.R. by telephone on a later
date. Miller wrote that during that second call, L.R. told him that her sons had been
arrested for not appearing at court as ordered. L.R. also told Miller that her son, D.E.,
insisted that he did not remember what had happened on the night of the shooting and
that the police detectives had shouted at him in a threatening manner and had told him
that he had to testify. L.R. further advised Miller that she was considering hiring an
attorney to protect her sons because she felt that they might be in jeopardy if they did not
testify as the police wanted.
June 9, 2018 Letter from PI Wayne Miller
(Motion for Leave - Exhibit G)
{¶ 19} On June 9, 2018, Miller wrote a letter to Snowden’s second trial counsel
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advising counsel that on June 8, 2018, D.O.’s mother, D.P., had visited him. Miller
reported that during the visit, D.P. advised him that D.O. had told her that he, D.E., and
D.S. had been inside a house at the time of Sarver’s shooting and therefore had not
witnessed the shooting. D.P. also advised Miller that D.O. had said that his father, D.W.,
had instructed him to lie and say that he witnessed the shooting. D.P. further advised
Miller about a speakerphone call that she had overheard between D.W. and L.R. during
which D.W. said in a threatening manner that D.O., D.E., and D.S. had better say what
he had told them to say. D.P. also specifically claimed that D.W. had instructed D.O.,
D.E., and D.S. to say that they had witnessed Snowden shoot Sarver. Miller further
reported that D.P. had told him that D.W. had said that he had not been present at the
time of the shooting, but that D.W.’s voice could be heard in the background of the 9-1-1
call that was made on the night of the shooting.
The State’s Response and the Trial Court’s Decision
{¶ 20} In response to Snowden’s petition for postconviction relief, the State argued
that the trial court lacked jurisdiction to rule on the petition because it was untimely and
because the untimeliness could not be excused, given that Snowden had failed to
establish that he had been unavoidably prevented from discovering the alleged new
evidence on which his petition was based. As for the motion for leave to file a motion for
new trial, the State similarly argued that the time for filing such a motion had expired and
that Snowden’s motion for leave failed to establish that he had been unavoidably
prevented from discovering the new evidence on which he would have based his motion
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for new trial.
{¶ 21} After taking the matter under advisement, on April 9, 2021, the trial court
issued an entry overruling Snowden’s petition and motion for the reasons argued by the
State. Snowden now appeals from that decision, raising five assignments of error.
First, Second, Third, and Fourth Assignments of Error
{¶ 22} Under his first four assignments of error, Snowden raises several
overlapping arguments, most of which are reiterations of the arguments raised in his
petition for postconviction relief and motion for leave to file a motion for new trial. Upon
review, we construe these assignments as arguing that the trial court erred by failing to
find that Snowden had been unavoidably prevented from discovering the evidence on
which his petition and motion for leave were based, and that said evidence had required
the trial court to hold an evidentiary hearing on his petition and to grant him leave to file
a motion for new trial.
Petition for Postconviction Relief
{¶ 23} When a defendant has pursued a direct appeal of his or her conviction, as
Snowden did, a petition for postconviction relief must be filed no later than 365 days “after
the date on which the trial transcript is filed in the court of appeals in the direct appeal of
the judgment of conviction or adjudication.” R.C. 2953.21(A)(2). Trial courts lack
jurisdiction to consider an untimely or successive petition for postconviction relief unless
the untimeliness is excused under R.C. 2953.23(A). State v. Morris, 2d Dist.
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Montgomery No. 27875, 2018-Ohio-4527, ¶ 16.
{¶ 24} R.C. 2953.23(A)(1)(a) allows a trial court to consider an untimely,
successive petition if the petitioner shows that: (1) he was unavoidably prevented from
discovering the facts upon which he relies to present his claim for relief; or (2) the United
States Supreme Court recognized a new federal or state right that applies retroactively to
his situation, and his petition asserts a claim based on that right. State v. Baker, 2d Dist.
Montgomery No. 27596, 2017-Ohio-8602, ¶ 13, citing R.C. 2953.23(A)(1)(a). “The
petitioner must also show by clear and convincing evidence that, if not for the
constitutional error from which he suffered, no reasonable factfinder would have found
him guilty.” Id., citing R.C. 2953.23(A)(1)(b).
{¶ 25} “This court reviews the denial of a petition for post-conviction relief for which
no hearing was held under an abuse-of-discretion standard.” State v. Crossley, 2d Dist.
Clark No. 2020-CA-10, 2020-Ohio-6640, ¶ 17, citing State v. Harden, 2d Dist.
Montgomery No. 23617, 2010-Ohio-3343, ¶ 10. “A trial court abuses its discretion when
it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation
omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
An abuse of discretion most often involves an unreasonable decision that is not supported
by a sound reasoning process. AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “[W]hen a trial
court lacks jurisdiction to hear a petition under R.C. 2953.23(A)(1), it is not an abuse of
discretion to not conduct an evidentiary hearing.” (Citations omitted.) State v. Stefan,
8th Dist. Cuyahoga No. 108487, 2020-Ohio-1276, ¶ 29.
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{¶ 26} In this case, the record establishes that Snowden’s petition for
postconviction relief was untimely. Snowden filed the trial transcript in his direct appeal
on September 20, 2018, meaning that he had until September 20, 2019, to file his petition.
Snowden, however, filed his petition on April 14, 2020, approximately seven months after
the statutory deadline. Therefore, for the trial court to have had jurisdiction to review the
petition, Snowden had to show either that he had been unavoidably prevented from
discovering the facts upon which he relied to present the claims in his petition for
postconviction relief or that the claims in the petition were based on a new or federal or
state right that applied retroactively to him.
{¶ 27} In this case, Snowden’s petition was not based on a new federal or state
right but on alleged newly discovered evidence set forth in affidavits executed by Adale
Wilkins, Dayana Snowden, and Ciara Watson, and letters written by D.O. and private
investigator Wayne Miller. Accordingly, Snowden was required to show that he had been
unavoidably prevented from discovering the information in those affidavits and letters.
{¶ 28} “ ‘The phrase “unavoidably prevented” in R.C. 2953.23(A)(1)(a) means that
a defendant was unaware of those facts and was unable to learn of them through
reasonable diligence.’ ” State v. Oglesby, 2d Dist. Montgomery No. 27626, 2018-Ohio-
871, ¶ 13, quoting State v. Turner, 10th Dist. Franklin No. 06AP-876, 2007-Ohio-1468,
¶ 11. A defendant fails to satisfy this requirement when the facts the defendant relied
upon in his petition “were in existence and discoverable well before the time of his trial.”
State v. McCleskey, 2d Dist. Montgomery No. 17419, 1999 WL 218168, *1 (April 16,
1999).
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{¶ 29} Also, “[t]he affidavit of a witness who is ‘known to the defense at trial’ does
not fall under the exception of R.C. 2953.23(A)(1)(a) as evidence that the defendant was
unavoidably prevented from discovering.” Turner at ¶ 17, quoting State v. Stanishia,
10th Dist. Franklin No. 03AP-476, 2003-Ohio-6836, ¶ 16. For example, a defendant is
not unavoidably prevented from discovering the facts in an affidavit when the affiant was
on a witness list and subpoenaed to testify at trial. See Stanishia at ¶ 16, citing State v.
Saban, 8th Dist. Cuyahoga No. 73647, 1999 WL 148482, *5 (Mar. 18, 1999). “Also,
information contained in an affidavit that establishes facts discoverable before trial fails
to satisfy R.C. 2953.23(A)(1)(a).” (Citation omitted.) Turner at ¶17.
{¶ 30} Upon review, we find that Snowden failed to allege any facts establishing
that he was unavoidably prevented from discovering the information in the three affidavits
attached to his petition. Regardless, Snowden was not unavoidably prevented from
discovering that information because all three affiants were known to Snowden prior to
his trial. Specifically, the record establishes that the affiants were on witness lists that
Snowden filed in advance of his trials. See Dkt. Nos. 82, 143, and 206. The affiants
were also subpoenaed to appear at court for at least one of Snowden’s trials. See Dkt.
Nos. 38, 203, and 205.
{¶ 31} In addition, affiants Adale Wilkins and Dayana Snowden both averred to
information that they had known well before Snowden’s trial—information which Snowden
could have discovered using reasonable diligence since Wilkins and Dayana were known
to Snowden. Affiant Ciara Watson’s information also could have been discovered using
reasonable diligence, as the record indicates that Ciara had not only been a known
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defense witness, but that she had been interviewed by the police and that her police
interview had been turned over to the defense in discovery. See Dkt. No. 236. The
record also establishes that Snowden made phone calls to Ciara from jail. See Id.
Because all three affiants were known to Snowden prior to trial, Snowden was not
unavoidably prevented from discovering the information in their affidavits and could have
learned about it well before his trial.
{¶ 32} The record also establishes that Snowden was not unavoidably prevented
from discovering D.O.’s recantation letter and that Snowden failed to allege any facts
establishing otherwise. As previously discussed, the letter was dated October 30, 2017,
meaning that it had been written a month before Snowden’s first trial and eight months
before his second trial. Furthermore, Dayana Snowden, who was known to Snowden,
averred to having personal, firsthand knowledge of D.O.’s writing the letter and submitting
it to the trial court. D.O. was also known to Snowden prior to trial, as he was listed as a
State’s witness, subpoenaed to appear at both of Snowden’s trials, and testified at
Snowden’s first trial but not at his second. See Dkt. Nos. 142, 123, 199, and 213; Trial
Tr. Vol. II (Nov. 27, 2017), p. 175-195. For all these reasons, we find that Snowden could
have, through reasonable diligence, discovered D.O.’s recantation letter prior to trial.
{¶ 33} It is also worth noting that Snowden raised an ineffective assistance claim
based on D.O.’s letter in his direct appeal and attached the letter to his appellate brief
filed on January 14, 2019. See Snowden I, 2019-Ohio-3006, 140 N.E.3d 1112, at ¶ 100.
This court issued its opinion on Snowden’s direct appeal two months prior to the petition’s
filing deadline, and in that opinion, we specifically advised Snowden that D.O.’s letter was
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outside the record on appeal and that a petition for postconviction relief was the proper
avenue for raising an ineffective assistance claim based on the letter. Id. Despite
having all this information, Snowden still did not file a timely petition based on D.O.’s
letter.
{¶ 34} The two letters written by private investigator Miller are the only items of
alleged “newly discovered evidence” for which Snowden provides some explanation
about why he had been unavoidably prevented from discovering them. Specifically,
Snowden claims that his trial counsel “suppressed” the information in the letters because
counsel did not provide him with the letters until December 19, 2019. However, even if
we were to accept that Snowden did not know about the letters until December 19, 2019,
the fact remains that Snowden had not been unavoidably prevented from discovering the
information contained in the letters; both letters contain information provided to Miller by
D.P. and L.R.—individuals who were listed as defense witnesses and known to Snowden
prior to his trial. Moreover, the pertinent information set forth in the letters mirrored the
information that was provided in the affidavits and D.O.’s recantation letter, i.e., that D.O.,
D.E., and D.S. had not witnessed the shooting and had been coerced to identify Snowden
as the shooter.
{¶ 35} Even if we were to assume that Snowden was unavoidably prevented from
discovering Miller’s letters due to his trial counsel’s withholding them, Snowden has not
demonstrated by clear and convincing evidence that, but for counsel’s alleged ineffective
assistance, no reasonable factfinder would have found him guilty at trial as required by
R.C. 2953.23(A)(1)(b). Therefore, Snowden failed to satisfy either of the requirements
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under R.C. 2953.23(A)(1). Because of this failure, the trial court did not have jurisdiction
to consider Snowden’s untimely petition for postconviction relief and thus did not abuse
its discretion by overruling Snowden’s petition without an evidentiary hearing.
Motion for Leave to File Motion for New Trial
{¶ 36} Under Crim.R. 33(B), a motion for a new trial on account of newly
discovered evidence must be filed within 120 days after the verdict. If, as here, the 120-
day period has expired, the defendant must first seek leave of the trial court to file a
delayed motion for a new trial. State v. Harwell, 2d Dist. Montgomery No. 28104, 2019-
Ohio-643, ¶ 16. “To obtain leave, [a] defendant must demonstrate by clear and
convincing evidence that he or she was unavoidably prevented from timely filing the
motion for a new trial or discovering the new evidence within the time period provided by
Crim.R. 33(B).” (Citations omitted.) State v. Warwick, 2d Dist. Champaign No. 2001-
CA-33, 2002 WL 1585663, *2 (July 19, 2002). “If it is not found that the defendant was
unavoidably prevented from discovering the new evidence or from filing his motion for a
new trial, the trial court is precluded from considering the untimely motion.” (Citations
omitted.) State v. Wilson, 2d Dist. Montgomery No. 17515, 1999 WL 173551, *1 (Mar.
31, 1999); State v. Warren, 2d Dist. Montgomery No. 26112, 2015-Ohio-36, ¶ 13.
{¶ 37} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the
party had no knowledge of the existence of the ground supporting the motion for new trial
and could not have learned of the existence of that ground within the time prescribed for
filing the motion for new trial in the exercise of reasonable diligence.’ ” State v. Parker,
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178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d Dist.), quoting State v.
Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984); State v. Reed,
2d Dist. Montgomery No. 28272, 2019-Ohio-3295, ¶ 30. “Conversely, a defendant fails
to demonstrate that he or she was unavoidably prevented from discovering the new
evidence or the basis of the claim when he or she would have discovered that information
earlier with due diligence and some effort.” (Citations omitted.) State v. Smith, 2d Dist.
Montgomery No. 28307, 2019-Ohio-3591, ¶ 11.
{¶ 38} Like petitions for postconviction relief, “we review a trial court’s denial of
leave to file a motion for a new trial for an abuse of discretion.” State v. Hayden, 2d Dist.
Montgomery No. 29490, 2022-Ohio-3574, ¶ 14, citing State v. Devaughns, 2d Dist.
Montgomery No. 25826, 2015-Ohio-452, ¶ 15.
{¶ 39} Here, Snowden’s motion for leave to file a motion for new trial was based
on the same affidavits and letters attached to his petition for postconviction relief. As
previously discussed, those affidavits and letters contained information that Snowden
could have discovered before his trial in the exercise of reasonable diligence. As a
result, we find that Snowden’s motion for leave failed to clearly and convincingly establish
that Snowden had been unavoidably prevented from discovering the information at issue
within the time prescribed by Crim.R. 33(B). Accordingly, the trial court did not abuse its
discretion by overruling Snowden’s motion for leave to file a motion for new trial.
{¶ 40} Snowden’s first, second, third, and fourth assignments of error are
overruled.
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Fifth Assignment of Error
{¶ 41} Under his fifth assignment of error, Snowden argues that his petition for
postconviction relief was not untimely because his resentencing in 2020 created a new
judgment that restarted the clock for purposes of filing a petition for postconviction relief.
This argument lacks merit; this court has previously explained that “a resentencing
hearing does not restart the clock for postconviction relief purposes in relation to any
claims attacking the conviction underlying the sentence.” (Emphasis sic.) State v.
Yates, 2d Dist. Montgomery No. 25308, 2013-Ohio-3388, ¶ 9, citing State v. Dawson, 2d
Dist. Greene No. 2012-CA-54, 2013-Ohio-1817, ¶ 11-13. Here, Snowden’s petition
challenged his original conviction, not his resentencing. Therefore, the time limit for filing
a petition for postconviction relief ran from the original appeal of Snowden’s conviction.
See Dawson at ¶ 11.
{¶ 42} As previously discussed, Snowden was required to file his petition no later
than 365 days “after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication.” R.C. 2953.21(A)(2). In
this case, Snowden filed the trial transcript in his direct appeal on September 20, 2018,
and thus had until September 20, 2019, to file his petition. Snowden filed his petition
approximately seven months later on April 14, 2020. Therefore, Snowden’s petition was
untimely.
{¶ 43} Snowden’s fifth assignment of error is overruled.
Conclusion
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{¶ 44} Having overruled all of Snowden’s assignments of error, the judgment of
the trial court is affirmed.
.............
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Deonte Dwayne Snowden
Hon. Robert G. Hanseman | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487715/ | [Cite as State v. Rimi, 2022-Ohio-4117.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29414
:
v. : Trial Court Case No. 2021-CR-3398
:
EDWARD RIMI : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
LEWIS, J.
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{¶ 1} Defendant-Appellant Edward Rimi appeals from his conviction for domestic
violence. Rimi contends that the jury’s verdict was against the manifest weight of the
evidence and was not supported by sufficient evidence. Rimi also contends that the
evidence presented by the State of a prior conviction for domestic violence was
insufficient to elevate his conviction from a misdemeanor to a felony. For the reasons
that follow, we affirm the trial court’s judgment of conviction.
I. Facts and Course of Proceedings
{¶ 2} On October 21, 2021, a Montgomery County grand jury indicted Rimi on one
count of domestic violence in violation of R.C. 2919.25(A) and one count of resisting arrest
in violation of R.C. 2921.33(A). The two counts in the indictment arose from an incident
on October 12, 2021, involving Rimi and his girlfriend, M.L.1 The indictment also alleged
that Rimi had previously pled guilty to or been convicted of domestic violence on January
12, 1999.
{¶ 3} On December 6, 2021, Rimi filed a “Motion To Strike/Motion In Limine
Regarding Prior Conviction.” In this motion, Rimi contended that his prior conviction had
been without counsel or an effective waiver of counsel and therefore had been
constitutionally infirm. Attached as Exhibit A to this motion was an affidavit of Rimi that
stated, in part, “I have no recollection of having had the benefit of counsel when a plea
was entered in Dayton Municipal Court Case No. 1998-CRB-15639.” Attached as
Exhibit B to the motion was a certified copy of the conviction in Case Number 98 CRB
1 To protect the privacy of the victim, we will refer to her as M.L.
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15639 in the Dayton Municipal Court. The trial court denied the motion.
{¶ 4} A jury trial was held on January 12 and 13, 2022. Jay Wheeler testified first
for the State. He is a supervisor at the Regional Dispatch Center of the Montgomery
County Sheriff’s Department. He testified about the authenticity of the 911 emergency
call M.L. placed at 2:09 p.m. on October 12, 2021. Trial Transcript, p. 35-36, 39.
{¶ 5} M.L. testified next for the State. As of October 12, 2021, she had lived with
Rimi and their 3-year-old daughter on Gummer Avenue in Dayton for over a year. M.L.
and Rimi had been dating on and off for approximately six years. Id. at 41, 43. On the
afternoon of October 12, 2021, Rimi started screaming and yelling at her inside the
residence. Id. at 48-50. He said that she was worthless and had ruined his life and that
he was better off without her. Id. at 51. Rimi began throwing toys at her. One of the
objects, a hard plastic-like ball, hit her above her eye and caused her to bleed. Id. at 48-
50. According to M.L., Rimi also kicked her in the leg with his steel-toed boots and
punched her in the ribs and the back of her head. Id. at 48-50. Rimi then left the house.
M.L. called 911 about two or three minutes after Rimi left the house. Id. at 50-51, 54.
At that moment, she felt embarrassed, helpless, and nervous. Id. at 54.
{¶ 6} M.L. was shown several pictures taken of the room in which the incident
happened. She testified that all the items on the floor of the bedroom were items that
Rimi had thrown at her. Id. at 69-70. On cross-examination, M.L. testified that she had
not gone to the hospital after the incident or received medical treatment. Id. at 67-68.
M.L. was able to stop the bleeding herself using a bed sheet. Id. at 69.
{¶ 7} City of Dayton Police Officer Paul Harris testified next for the State. He had
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responded to the 911 call on October 12, 2021. When he arrived at the residence, M.L.
had a gash above her eye, blood on her and her clothes, and appeared frightened and
scared. Id. at 78-80. Officer Harris was in the home for only three or four minutes
before Rimi entered the residence from the rear door. At that time, M.L. took her
daughter out the front door. Id. at 81. Rimi came into the house yelling, and Officer
Harris readied his taser. When Rimi entered, Officer Harris ordered him to his knees.
Rimi put his hands partially behind his back but did not comply with the order to drop to
his knees. Officer Harris took this as a sign that Rimi was aggressive and wanted to
fight, so he tased Rimi. Id. at 83-86. Shortly after tasing Rimi, another police officer
arrived at the scene, and they arrested Rimi. Id. at 98.
{¶ 8} Detective Daniel O’Neill with the City of Dayton Police Department testified
last for the State. He had been assigned to be the lead detective on the case. Based
on the information he reviewed, he determined that Rimi had a prior domestic violence
conviction. Id. at 133. He went to the Dayton Municipal Court and got a certified copy
of this prior conviction, which was admitted into evidence as State’s Exhibit 14. Id. at
133-135. Detective O’Neill also reviewed the camera recording from the police cruiser,
noting that Rimi referred to the residence as “my house” and the child as “my daughter.”
Id. at 146, 150-151, 157-158. On cross-examination, Detective O’Neill conceded that he
had not interviewed any neighbors about the incident. Id. at 162-164.
{¶ 9} Rimi testified on his own behalf. Id. at 172-224. He stated that he had
never pleaded guilty to or been convicted of domestic violence. Id. at 175, 202. Rimi
conceded that his name and social security number on Exhibit 14 were correct. Id. at
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201. He testified that the original charge in the 1999 case had been for domestic
violence, a first-degree misdemeanor, but he had pled guilty to a reduced, fourth-degree
misdemeanor charge. Rimi believed that the fourth-degree misdemeanor was
“disorderly conduct or something like that.” Id. at 176, 203. Rimi stated that he would
have remembered if he had pled guilty to a domestic violence charge. Id. at 223. He
agreed that Exhibit 14 noted a fourth-degree misdemeanor of domestic violence. Id. at
219-220.
{¶ 10} Rimi testified that he had lived with M.L. and their daughter on October 12,
2021. Id. at 178. He had been fighting verbally with M.L. that day. Eventually, he
kicked the toy rack and the toys scattered everywhere. Then Rimi picked up some of
the toys and started throwing them at M.L. Id. at 180-181. He did not believe his throw
hit M.L. directly, but it may have hit her on a ricochet off the wall. Id. at 181. Rimi
conceded that he knew throwing things at someone could cause an injury but contended
that he had not wanted to hurt M.L. Id. at 181, 192. He agreed that he hurt M.L. with
the toy and that she had not been bleeding or injured before he hit her with the toy. Id.
at 192-193.
{¶ 11} The jury found Rimi not guilty of resisting arrest but guilty of domestic
violence. Also, the jury found that Rimi previously had been convicted of a domestic
violence charge. The trial court sentenced Rimi to 12 months in prison. Rimi filed a
timely notice of appeal.
II. Manifest Weight and Sufficiency of the Evidence
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{¶ 12} Rimi’s sole assignment of error states:
THE JURY’S VERDICTS WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 13} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence
to support a conviction, the relevant inquiry is whether any rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”
Id.
{¶ 14} In contrast to the sufficiency of the evidence standard, “a weight of the
evidence argument challenges the believability of the evidence and asks which of the
competing inferences suggested by the evidence is more believable or persuasive.”
Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight
of the evidence, the appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such
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a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
{¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.
22, 1997). The fact that the evidence is subject to different interpretations does not
render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A
judgment of conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin at 175.
{¶ 16} Rimi was convicted of domestic violence in violation of R.C. 2919.25(A),
which provides that “[n]o person shall knowingly cause or attempt to cause physical harm
to a family or household member.” “A person acts knowingly, regardless of purpose,
when the person is aware that the person's conduct will probably cause a certain result
or will probably be of a certain nature.” R.C. 2901.22(B). The term “physical harm” is
defined as “any injury, illness, or physiological impairment, regardless of its gravity or
duration.” R.C. 2901.01(A)(3). The term “family or household member” includes “a
person living as a spouse.” R.C. 2919.25(F)(1)(a)(i). “Person living as a spouse” is
someone who “has cohabited with the offender within five years prior to the date of the
alleged commission of the act in question.” R.C. 2919.25(F)(2).
{¶ 17} The evidence presented at the trial established that Rimi had committed
domestic violence in violation of R.C. 2919.25(A). Both he and M.L. confirmed that they
-8-
had been living together at the time of the offense, along with their child. Further, both
testified that Rimi had thrown objects at M.L. that resulted in her being physically harmed.
Although Rimi testified that he had not intended to injure her, he agreed that he had known
that throwing objects at someone could result in an injury. M.L. also testified that Rimi
had kicked her and punched her. Moreover, the pictures admitted into evidence at trial
showed the physical injury suffered by M.L. Based on the record before us, we conclude
that the guilty verdict for domestic violence was supported by sufficient evidence and was
not against the manifest weight of the evidence.
{¶ 18} Rimi next contends that the jury incorrectly found that he had a prior
domestic violence conviction. Rimi explains:
The purported prior Domestic Violence conviction does not indicate
that Rimi was represented by counsel or that he was [in] fact convicted of
Domestic Violence (something he denied on the stand). Further, there was
a line for Defendant’s signature but it is blank. The prior conviction was not
valid and/or did not prove beyond a reasonable doubt that Rimi had a prior
Domestic Violence conviction.
Appellant’s Brief, p. 9.
{¶ 19} The State disagrees. According to the State, there was overwhelming
evidence presented at trial to connect Rimi to the prior conviction for domestic violence.
Appellee’s Brief, p. 10. Further, Rimi failed to establish, by a preponderance of the
evidence, his prima facie case that his prior conviction had been constitutional infirm. Id.
at 11. Instead, the State contends that Rimi did nothing more than make a conclusory
-9-
statement that he did not remember being represented by counsel or pleading guilty to a
domestic violence charge. Id.
{¶ 20} The dispute over whether Rimi previously had been convicted of domestic
violence was relevant to whether Rimi’s domestic violence conviction in this case was a
misdemeanor or a felony. Whoever violates R.C. 2919.25(A) is guilty of domestic
violence, which is a misdemeanor of the first degree. R.C. 2919.25(D). However, if the
offender previously pled guilty to or was convicted of domestic violence, then a violation
of this section is a felony of the fourth degree. R.C. 2919.25(D)(3).
{¶ 21} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,
¶ 9, the Ohio Supreme Court held that “[a] conviction obtained against a defendant who
is without counsel, or its corollary, an uncounseled conviction obtained without a valid
waiver of the right to counsel, has been recognized as constitutionally infirm.” (Citations
omitted.) Generally, a past conviction cannot be attacked in a subsequent case; there
is, however, “a limited right to collaterally attack a conviction when the state proposes to
use the past conviction to enhance the penalty of a later criminal offense.” Id.
{¶ 22} R.C. 2945.75(B) lays out the procedure for situations in which the State is
using a prior conviction in an attempt to enhance an offense. R.C. 2945.75(B)(1)
provides “[w]henever in any case it is necessary to prove a prior conviction, a certified
copy of the entry of judgment in such prior conviction together with evidence sufficient to
identify the defendant named in the entry as the offender in the case at bar, is sufficient
to prove such prior conviction.” Further, R.C. 2945.75(B)(3) provides that, “[i]f the
defendant claims a constitutional defect in any prior conviction, the defendant has the
-10-
burden of proving the defect by a preponderance of the evidence.”
{¶ 23} At trial, the State introduced Exhibit 14, which was a certified copy of an
Order and Entry in Case Number 98 CRB 15639 in the Dayton Municipal Court. The
document listed Edward T. Rimi as the defendant and stated his correct social security
number and date of birth. The document noted that Rimi had pled guilty to domestic
violence, a fourth-degree misdemeanor in violation of R.C. 2919.25(A)(1). State’s
Exhibit 14 also contained an official seal from the Clerk of Courts for the Dayton Municipal
Court. This evidence was sufficient to establish the prior conviction for domestic
violence.
{¶ 24} Further, Rimi’s only evidence submitted contrary to Exhibit 14 was his
conclusory testimony that he did not remember pleading to a domestic violence charge
and did not remember being represented by an attorney in that case. However, he did
recall that, in the 1999 case, he was originally charged with a first-degree misdemeanor
domestic violence charge and pled down to a fourth-degree misdemeanor charge.
State’s Exhibit 14 is consistent with that testimony. Rimi’s testimony that he believed the
fourth-degree misdemeanor was “disorderly conduct or something like that” was
insufficient, without more, to overcome the evidence presented by the State that the
fourth-degree misdemeanor was for domestic violence, not disorderly conduct.
{¶ 25} We conclude that the jury’s finding that Rimi had been previously convicted
of domestic violence was supported by sufficient evidence and was not against the
manifest weight of the evidence. Rimi’s sole assignment of error is overruled.
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III. Conclusion
{¶ 26} Having overruled Rimi’s assignment of error, the judgment of the trial court
is affirmed.
.............
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Lucas W. Wilder
Hon. Susan D. Solle | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487709/ | NOT DESIGNATED FOR PUBLICATION
No. 124,412
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF WICHITA, KANSAS,
Appellee,
v.
GABRIELLE GRIFFIE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed November 18, 2022.
Affirmed.
Dylan P. Wheeler, of Depew Gillen Rathbun & McInteer, LC, of Wichita, for appellant.
Nathaniel Johnson and Jan Jarman, assistant city attorneys, and Jennifer Magana, city attorney,
for appellee.
Before SCHROEDER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.
MALONE, J.: The City of Wichita (City) charged Gabrielle Griffie with unlawful
assembly under Wichita Municipal Code of Ordinances (W.M.O.) § 5.73.030 (2020)
several days after she organized and participated in a protest on the streets of Wichita and
the steps of its federal courthouse. The City's theory of the case was that Griffie planned
the protest for the purpose of engaging in "disorderly conduct"—more specifically,
engaging in "noisy conduct tending to reasonably arouse alarm, anger or resentment in
others." W.M.O. § 5.24.010(c) (2020). After the municipal court found Griffie guilty, she
appealed to the Sedgwick County District Court and requested a jury trial. Griffie argued
1
that the district court should strike down the "disorderly conduct" provision used to
support the unlawful assembly charge as unconstitutionally overbroad because it
prohibits a wide range of expressive conduct protected under the First Amendment to the
United States Constitution. The district court denied Griffie's request, and a jury found
her guilty of unlawful assembly under the "noisy conduct" definitional ordinance. Griffie
appeals, renewing her constitutional challenge to the "noisy conduct" provision of
W.M.O. § 5.24.010(c). For the reasons stated in this opinion, we reject Griffie's facial
challenge to the constitutionality of the ordinance and affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2020, a group called Project Justice ICT held a protest in downtown
Wichita as a symbol of the group's solidarity with protesters in Portland, Oregon, who
were engaging in ongoing protests over the murder of George Floyd by a Minneapolis,
Minnesota police officer. Griffie served as the executive director of Project Justice ICT,
helping the group to organize food drives, protests, and other community events.
Project Justice ICT advertised the event on Facebook, telling its supporters to
"Bring shields, umbrellas, and other protective gear. We will be marching." The Wichita
Police Department monitored the group's online activity and prepared for the event.
Project Justice ICT failed to obtain a community event permit to close off the streets for
its demonstration; this raised concerns by the police that the demonstration could obstruct
traffic or even cause a pedestrian/vehicle collision. Despite the group's lack of a permit,
the police decided not to interfere with the protest, and instead tried to block off the
streets around the group's demonstration to limit the amount of contact with motorists.
On the day of the demonstration, about 40 to 60 people showed up at Century II in
downtown Wichita to participate in the protest. They marched en masse, chanting various
slogans—such as "No justice, no peace" and "Black lives matter"—as they walked down
2
the almost entirely empty streets. Griffie carried a megaphone and a homemade shield as
she marched at the front of the group, chanting and leading the other protestors.
Despite the efforts by police to divert traffic away from the protest, during the
group's march down the street, a man named Jeremy McTaggart came across the group
while driving. The protestors were walking in the middle of the street obstructing the
center two lanes of traffic leaving the outer lanes clear and unimpeded, but McTaggart
did not move to the right lane because he was trying to make a left turn. At least one of
the protesters—not Griffie—touched McTaggart's car and shouted at him. Griffie was a
couple of car lengths ahead of the encounter and later testified that she did not see or hear
it. After about 30 seconds, McTaggart drove away without further incident.
The protestors continued to march until they arrived at the federal courthouse in
downtown Wichita. The group walked around to the front of the building and stayed on
the footsteps of the courthouse for about 30 minutes, during which Griffie and others
gave speeches to the crowd over megaphones. The group finally dispersed when it began
to heavily rain. The police made no arrests during the protest, nor does it appear that the
group had any interaction with police other than hurling insults at some of the officers
who were blocking traffic and monitoring the march.
The entire protest was videotaped and posted on Facebook. Detective Marianna
Hoyt reviewed the videotape and another officer, Lieutenant Drew Sielor, helped Hoyt
identify Griffie out of the crowd of protestors. Hoyt eventually decided to charge Griffie
with unlawful assembly under W.M.O. § 5.73.030. The complaint alleged that Griffie had
"participat[ed] in the meeting or coming together of at least five persons for the purpose
of engaging in conduct constituting disorderly conduct . . . by blocking traffic."
Griffie proceeded to a bench trial before the Wichita Municipal Court and was
found guilty. She then appealed her conviction to the Sedgwick County District Court. At
3
the de novo trial, the assistant city attorney noted that the City was not relying on the
brawling, fighting, or disturbing an assembly varieties of disorderly conduct in W.M.O.
§ 5.24.010(a) and (b), and instead had "really honed [the case] down [to] fighting words
or conduct" under W.M.O. § 5.24.010(c). Griffie's attorney argued that the particular
provision in the ordinance on noisy conduct needed to be construed to only encompass
fighting words under State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980). The district
court disagreed, finding Griffie's argument was "not consistent with the law" and that
both her words and conduct could be considered separately.
McTaggart was the first witness to take the stand. Sielor and Hoyt also testified for
the City and the two-hour videotape of the entire protest was played for the jury. After
the City rested its case-in-chief, Griffie moved for acquittal. The district court denied her
motion after walking through the elements of the unlawful assembly offense stating, "The
simple fact that she was engaged in this meeting of not less than five people, for purpose
of this meeting was for the engagement of noisy conduct in such a nature it would tend to
reasonably arouse alarm, anger, or resentment in others." Griffie's attorney requested
permission to submit a trial brief requesting reconsideration, which the court granted.
The next morning, before Griffie presented evidence, the district court addressed
the arguments raised in her brief. Griffie argued that the "noisy conduct" portion of the
definition of disorderly conduct was "either so unconstitutionally broad and vague that it
should either be struck down, or we can . . . authoritatively construe it in such a matter
[sic] that it only encapsulates unprotected speech." Essentially, Griffie asked the court to
instruct the jury that the City was required to show that she "used fighting words and
unprotected form[s] of speech during [the] assembly" and to drop the "noisy conduct"
portion of the subsection defining the offense to prevent the possibility of incidentally
criminalizing her for engaging in protected speech.
4
In response to these arguments, the City clarified that it was only arguing that
Griffie's conduct constituted disorderly conduct, not that she had used fighting words.
The City elected to proceed under the "noisy conduct" portion of W.M.O. § 5.24.010(c),
omitting the "fighting words" provision. Griffie again alleged the City was trying to stifle
the free expression of ideas, but the district court denied her motion for reconsideration,
explaining that her conduct was "well past any expressive activities, and that played no
role in the expression of the ideas." The court also denied Griffie's motion regarding the
constitutionality of the "noisy conduct" portion of the disorderly conduct ordinance.
After the district court rendered its decision, Griffie testified on her own behalf.
Griffie, who owns a vintage shop in downtown Wichita, stated that she got involved in
organizing political activist groups and was eventually asked to serve as the executive
director of Project Justice ICT. The group held distribution events as well as organized
protests. Griffie stated that before any protests, she would tell participants that they were
not going to engage in or cause fights or otherwise agitate people, and that their job was
simply to "march down the street, do some chants, bring awareness or whatever." On
cross-examination, Griffie admitted that on July 29, 2020, the protest group intentionally
tried to block the streets of Wichita and that was one of the reasons they were there.
Griffie's attorney submitted a proposed instruction that required the jury to find
that she personally engaged in conduct constituting disorderly conduct and argued that
she could not be found guilty based on the actions of the other protesters that she did not
actively encourage, but the district court denied the requested instruction. As for the
elements of the offense of unlawful assembly, the district court instructed the jury:
"The defendant is charged with Unlawful Assembly. The defendant pleads not
guilty. To establish this charge, each of the following claims must be proved:
5
"1. Defendant engaged in a meeting or coming together of not less than five
persons.
"2. The purpose of the meeting or coming together was for engaging in conduct
constituting disorderly conduct.
"3. This act occurred on or about the 29th day of July, 2020, in Wichita, Kansas.
"Disorderly conduct is defined as engaging in noisy conduct of such a nature that it
would tend to reasonably arouse alarm, anger or resentment in others and that one knew
or should have known that the conduct would alarm, anger, or disturb others or provoke
an assault or other breach of the peace."
In closing argument, the City emphasized that Griffie was being prosecuted for her
disorderly conduct and not the content of her speech. The City's main argument was that
Griffie was guilty of unlawful assembly based on her conduct of blocking traffic. The
City clarified that Griffie had intended to block the streets, that she had admitted to
engaging in noisy conduct during the demonstration, and that any reasonable person
would have been upset by her conduct during the protest. Griffie's attorney stressed that
Griffie had intended for the demonstration to be peaceful and that she had not directed
anyone to engage in any violent conduct. He concluded that the City had failed to
establish that Griffie's intent was for the group to engage in disorderly conduct.
The jury found Griffie guilty of unlawful assembly as charged by the City under
the noisy conduct provision of W.M.O. § 5.24.010(c). The district court ordered Griffie
to pay a $200 fine with no jail term and authorized community service instead of the fine.
Griffie timely appealed the district court's judgment.
IS WICHITA MUNICIPAL ORDINANCE § 5.24.010(C)
UNCONSTITUTIONALLY OVERBROAD?
Griffie claims that the "noisy conduct" provision of municipal ordinance W.M.O.
§ 5.24.010(c), which defines disorderly conduct and was used to support her conviction
6
for unlawful assembly, is facially unconstitutional because it broadly prohibits noisy
conduct regardless of whether the conduct is also expressive and protected under the First
Amendment. Griffie asserts that W.M.O. § 5.24.010(c), or at least part of it, should be
struck down as it is not possible to construe the ordinance to comport with First
Amendment protections afforded to expressive conduct. Griffie makes clear that she is
bringing only a facial challenge to the constitutionality of the ordinance, and she is not
challenging the constitutionality of the ordinance as applied to her conduct in this case.
Likewise, Griffie is not challenging the sufficiency of the evidence to support her
conviction, nor is she challenging on appeal the jury instructions given by the district
court at her trial. An issue not briefed is waived or abandoned. State v. Davis, 313 Kan.
244, 248, 485 P.3d 174 (2021).
The City asserts that W.M.O. § 5.24.010(c) is not unconstitutionally overbroad.
Alternatively, the City argues that even if the ordinance is unconstitutionally overbroad, it
need not be stricken and can be saved with a proper jury instruction. The City emphasizes
that it prosecuted Griffie for her disorderly conduct on July 29, 2020, not for the content
of her speech, and that her First Amendment rights were not violated.
The constitutionality of a statute or ordinance is a question of law subject to
unlimited review. State v. Boettger, 310 Kan. 800, 803, 450 P.3d 805 (2019). Appellate
courts presume statutes are constitutional and must resolve all doubts in favor of a
statute's validity—that is, courts must interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the Legislature's
apparent intent. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018). Griffie
carries the burden to establish that the ordinance is unconstitutional. See State v.
Williams, 299 Kan. 911, 920, 329 P.3d 400 (2014).
The parties agree that Griffie has standing to raise this challenge and that she
preserved the matter by raising it before the district court. A party challenging a law as
7
unconstitutionally overbroad need not establish personal injury arising from that law
when First Amendment rights are affected. 299 Kan. at 919. This is "'because the mere
existence of the statute could cause a person not before the Court to refrain from
engaging in constitutionally protected speech or expression.'" 299 Kan. at 919.
The First Amendment to the United States Constitution provides: "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances." U.S.
Const. amend. I. "'[A]s a general matter, the First Amendment means that government
has no power to restrict expression because of its message, its ideas, its subject matter, or
its content.'" United States v. Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577, 176 L. Ed. 2d
435 (2010) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122
S. Ct. 1700, 152 L. Ed. 2d 771 [2002]). And the First Amendment's protections extend to
state laws through the Equal Protection Clause of the Fourteenth Amendment. See Police
Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).
"The First Amendment overbreadth doctrine may be implicated when a criminal
statute makes conduct punishable, which under some circumstances is constitutionally
protected from criminal sanctions." City of Wichita v. Trotter, 316 Kan. 310, Syl. ¶ 3, 514
P.3d 1050 (2022). Almost every law is potentially applicable to constitutionally protected
acts. A successful overbreadth challenge can thus be made only when (1) the protected
activity is a significant part of the law's target, and (2) there is no satisfactory method of
severing the law's constitutional from its unconstitutional applications. State v. Whitesell,
270 Kan. 259, Syl. ¶ 6, 13 P.3d 887 (2000). "Where a potentially overbroad statute
regulates conduct, and not merely speech, the overbreadth must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep." Trotter,
316 Kan. 310, Syl. ¶ 4. "The overbreadth doctrine should be employed sparingly and only
as a last resort." Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005).
8
Griffie was convicted of unlawful assembly under W.M.O. § 5.73.030(1), which
defines the offense as
"the meeting or coming together of not less than five persons for the purpose of engaging
in conduct constituting either disorderly conduct as defined by Section 5.24.010 of this
Code and amendments thereto, or a riot, as defined by Section 5.73.050 of this Code and
amendments thereto; or when in a lawful assembly of not less than five persons, agreeing
to engage in such conduct." (Emphasis added.)
Although Griffie was convicted of unlawful assembly, she makes no direct claim
that her conviction violates her First Amendment right to peaceably assemble. She only
challenges the City's disorderly conduct ordinance, used to support the unlawful
assembly charge. W.M.O. § 5.24.010 provides:
"Disorderly conduct is, one or more of the following acts that the person knows
or should know will alarm, anger or disturb others or provoke an assault or other breach
of the peace:
(a) Engaging in brawling or fighting; or
(b) Disturbing an assembly, meeting, or procession, not unlawful in its
character; or
(c) Using fighting words or engaging in noisy conduct tending to
reasonably arouse alarm, anger or resentment in others.
"As used in this section, 'fighting words' means words that by their very utterance
inflict injury or tend to incite the listener to an immediate breach of peace." (Emphasis
added.)
The language of W.M.O. § 5.24.010 is virtually identical to K.S.A. 2021 Supp. 21-
6203, previously codified at K.S.A. 21-4101. This statute has been part of the Kansas
criminal code since 1969. Over 40 years ago, the Kansas Supreme Court addressed an
overbreadth challenge to a similarly worded disorderly conduct statute in Huffman, 228
Kan. 186. The statute, and subsection, at issue in that case—K.S.A. 21-4101(c)—was
9
later amended by the Legislature and replaced with K.S.A. 21-6203 in response to the
ruling in Huffman, which found that the phrase "[u]sing offensive, obscene, or abusive
language" must be construed as meaning solely "fighting words" in order to survive
constitutional scrutiny for overbreadth. 228 Kan. at 193. Thus, K.S.A. 2021 Supp. 21-
6203, as well as W.M.O. § 5.24.010, are both missing the offending language and have
inserted "fighting words" in their place. Unfortunately, for the question now before this
court, the Huffman court did not address the second half of subsection (c) prohibiting
"noisy conduct"—primarily because the defendant's conviction in that case was based on
his language, not his conduct.
Griffie's attack focuses on the "noisy conduct" portion of W.M.O. § 5.24.010(c).
Griffie makes clear that she is bringing only a facial challenge to the constitutionality of
the ordinance. She is trying to strike the ordinance, or at least part of it, because she
asserts it is impossible to construe the ordinance to comport with First Amendment
protections afforded to expressive conduct. Griffie could have—but is not—challenging
the constitutionality of the ordinance as applied to her conduct in this case.
We begin by observing that W.M.O. § 5.24.010(c) is content neutral. That is, it is
immaterial what the conduct is—aside from it being noisy and tending to reasonably
arouse alarm, anger, or resentment. There is nothing in the plain language of the
ordinance that suggests it was enacted to target the content of any constitutionally
protected speech or the expression of any constitutionally protected conduct. But we also
observe that "content neutrality does not immunize an ordinance from overbreadth
scrutiny." Trotter, 316 Kan. at 313.
W.M.O. § 5.24.010(c) does not simply prohibit "noisy conduct." Such a
proscription would likely be constitutionally overbroad. But we believe the language of
the ordinance includes three components that allow it to withstand facial constitutional
scrutiny for overbreadth. First, the ordinance includes a scienter or mens rea component.
10
The ordinance is only violated when the person "knows or should know" that this conduct
is prohibited. Second, the ordinance has a focused actus reus component. It only applies
to noisy conduct "tending to reasonably arouse alarm, anger or resentment in others."
Third, the ordinance includes an objective component. Griffie argues that the ordinance
can be applied subjectively by law enforcement officers depending on their personal
beliefs about what conduct may arouse alarm, anger, or resentment in others. But
subsection (c) of the ordinance expressly includes the word "reasonably" which provides
an objective standard for application by law enforcement officers and the courts.
Griffie relies heavily on a decision rendered by the Supreme Court of Minnesota
in State v. Hensel, 901 N.W.2d 166 (Minn. 2017). In Hensel, the defendant was convicted
of disorderly conduct for disturbing a city council meeting by displaying signs that
depicted dead and deformed children and by refusing to move her chair back into the
public-seating area. The defendant brought an overbreadth challenge against a state
statute nearly identical to subsection (b) of W.M.O. § 5.24.010—defining disorderly
conduct as an act that "disturbs" a meeting or assembly. 901 N.W. 2d at 171. After
determining that the provision was unconstitutionally overbroad, the Hensel court found
that the subsection could not be cured by any possible construction. 901 N.W.2d at 176-
81. But Hensel provides little support for Griffie's claim that W.M.O. § 5.24.010(c) is
unconstitutionally overbroad because the case addresses language found in subsection (b)
and does not address the "noisy conduct" portion in subsection (c) of the disorderly
conduct ordinance.
The City asserts that disorderly conduct statutes and ordinances specific to noisy
conduct "have been on the books for decades" and cites five unpublished cases from this
court upholding convictions for disorderly conduct. The closest case factually is State v.
Vehige, No. 116,202, 2017 WL 3203381 (Kan. App. 2017) (unpublished opinion). In that
case, Vehige, a self-described political activist, routinely videotaped encounters with
Emporia police officers and posted the videos on Facebook and YouTube as his way to
11
promote police accountability and transparency and to stop police brutality. In one
incident, Vehige interfered with three off-duty officers who were present during a bar
fight. Vehige held his camera about 2 to 2 1/2 feet from the officers and shouted
questions at them while they were trying to follow one of the men involved in the fight.
The State charged Vehige with disorderly conduct in violation of K.S.A. 2016
Supp. 21-6203 that criminalizes "using fighting words or engaging in noisy conduct
tending reasonably to arouse alarm, anger or resentment in others." 2017 WL 3203381 at
*7. Vehige argued that his actions consisted of constitutionally protected speech and
could not have aroused alarm, anger, or resentment in the officers. A jury convicted
Vehige of disorderly conduct, and he challenged the sufficiency of the evidence on
appeal. Finding that Vehige failed to designate a sufficient record for the court to review
his claim, this court affirmed the disorderly conduct conviction. 2017 WL 3203381 at *7-
8. See also State v. Hughs, No. 118,281, 2018 WL 2374766, at *2 (Kan. App. 2018)
(unpublished opinion) (affirming disorderly conduct conviction of defendant who
engaged in fighting and brawling); State v. Mead, No. 115,989, 2017 WL 4082240, at *4-
5 (Kan. App. 2017) (unpublished opinion) (affirming disorderly conduct conviction
stemming from defendant's brawl at motorcycle rally); City of Paola v. Ammel, No.
96,301, 2007 WL 2767953, at *3 (Kan. App. 2007) (unpublished opinion) (affirming
disorderly conduct conviction where defendant had insulted and fought police officers in
a public library); State v. Heyder, No. 82,810, 2000 WL 36745844, at *1-2 (Kan. App.
2000) (unpublished opinion) (affirming disorderly conduct conviction arising from
defendant's verbal altercation with toll booth operator and highway patrol trooper).
Griffie points out that all the unpublished opinions from this court cited by the
City address only the sufficiency of the evidence to support the disorderly conduct
convictions. None of the cases address challenges against the Kansas disorderly conduct
statute based on unconstitutional overbreadth. But even without the court addressing
12
constitutional challenges, the cases appear to provide examples where courts have
enforced the Kansas disorderly conduct statute's plainly legitimate sweep.
Neither party cites any caselaw that directly addresses the constitutionality of
criminal statutes or ordinances prohibiting a person from engaging in noisy conduct, and
there does not appear to be many such cases in any jurisdiction. But the few cases we
have found that directly address statutes or ordinances prohibiting noisy conduct uphold
the constitutionality of such laws. See Idaho v. Cobb, 132 Idaho 195, 199-200, 969 P.2d
244 (1998) (disorderly conduct ordinance proscribing "violent, noisy, or riotous conduct"
did not regulate a significant amount of constitutionally protected conduct and thus
satisfied overbreadth standards); City of St. Louis v. Tinker, 542 S.W.2d 512 (Mo. 1976)
(ordinance proscribing verbal conduct which is noisy, riotous or disorderly and which is
calculated to provoke breach of peace is neither vague nor constitutionally overbroad);
New Jersey v. Besson, 110 N.J. Super. 528, 536, 266 A.2d 175 (1970) (statute providing
that any person who by noisy or disorderly conduct disturbs or interferes with any place
of assembly is valid on its face and not unconstitutional as void for vagueness).
Finally, in a letter submitted under Kansas Supreme Court Rule 6.09 (2022 Kan.
S. Ct. R. at 40), Griffie points to City of Wichita v. Trotter, 316 Kan. 310, as constituting
"the most recent, controlling Kansas authority to-date addressing the overbreadth doctrine
under the First Amendment." Trotter concerned a Wichita licensing ordinance for "after-
hours establishments," generally defined as "any venue for a series of events or ongoing
activity or business . . . to which the public is invited or allowed [to attend] . . . between
midnight and 6:00 a.m." 316 Kan. at 315. Our Supreme Court struck down the ordinance
because its plain language was broad enough to penalize citizens hosting gatherings in
private residences in violation of the First Amendment guarantee of freedom of assembly.
The court found that while the city "has not attempted to ban all gatherings between
midnight and 6 a.m., the broad sweep of its regulation captures the lion's share of such
activity—including much activity within private homes, residentially zoned or not." 316
13
Kan. at 320. The court also found that it was unable to "sever the ordinance's
unconstitutional applications from its constitutional ones." 316 Kan. at 320.
Trotter does not control the outcome of Griffie's case. As we have already noted,
Griffie makes no direct claim that her conviction violates her First Amendment right to
peaceably assemble. She challenges only the definitional portion of the disorderly
conduct ordinance as violating her constitutionally protected right of "expressive
conduct." There is nothing about Griffie's conviction that infringes upon her right to
peaceably assemble in her own home. More importantly, the Trotter court found that the
language of the licensing ordinance was so sweeping that it "purports to control most
activity between midnight and 6 a.m." 316 Kan. at 317. Griffie fails to establish that the
language of the disorderly conduct ordinance is so broad that it criminalizes most
expressive conduct that is generally protected under the First Amendment.
W.M.O. § 5.24.010(c) plainly has a legitimate sweep. In a typical scenario, the
ordinance would prohibit a person from playing loud music outside at night in a
residential area preventing neighbors from getting any sleep. Or the ordinance might be
used to prohibit an inebriated person from yelling and hurling insults at citizens trying to
walk along a public sidewalk. But enforcement of the ordinance becomes problematic
when it might be viewed as an attempt by the government to suppress political protest.
The First Amendment prohibits the government from passing laws abridging the
freedom of speech or the right of the people to peaceably assemble. Griffie and the
members of Project Justice ICT were engaged in a form of political protest in Wichita on
July 29, 2020, and the City cannot pass a law that infringes on their right to peaceably
assemble to protest. But W.M.O. § 5.24.010(c), on its face, does not make it unlawful for
a person to engage in political protest. Griffie and the members of her group were free to
protest in a public forum against police misconduct provided their own conduct did not
reasonably arouse alarm, anger, or resentment in others—an objective standard of
14
enforcement. Griffie did not engage in disorderly conduct unless she knew or should have
known that her acts would "alarm, anger or disturb others or provoke an assault or other
breach of the peace." W.M.O. § 5.24.010. Whether Griffie crossed this line when her
group intentionally blocked traffic on the streets of Wichita was a question presented for
the jury to decide. As we noted before, Griffie does not argue that the City's disorderly
conduct ordinance violates the First Amendment as applied to the facts of her case.
Griffie's sole claim on appeal is that the language of W.M.O. § 5.24.010(c) is so
overbroad that we must declare the ordinance unconstitutional on its face.
Finally, we reiterate that the City prosecuted Griffie because she and her group
blocked traffic on the streets of Wichita; the volume of the protest chants was not the
focus of the evidence at trial. Indeed, the facts do not present a classic "noisy conduct"
case. Blocking traffic is not a specified or defined form of disorderly conduct. But Griffie
is not challenging the sufficiency of the evidence to support her conviction.
To begin to wrap up, does W.M.O. § 5.24.010(c) contain broad language? Yes. Is
the ordinance applicable to constitutionally protected acts? Potentially. But this is not the
test we apply to Griffie's facial challenge to the constitutionality of the ordinance. Almost
every law is potentially applicable to constitutionally protected acts. To bring a
successful overbreadth challenge, Griffie must first show that the protected activity is a
significant part of the law's target. Whitesell, 270 Kan. 259, Syl. ¶ 6. Stated another way,
the overbreadth must not only be real, but substantial as well, judged in relation to the
law's plainly legitimate sweep. Trotter, 316 Kan. 310, Syl. ¶ 4.
We find that Griffie fails to satisfy this first step in meeting her burden to show
that W.M.O. § 5.24.010(c) is unconstitutional on its face. As a result, we need not address
whether there is any satisfactory method of severing the law's constitutional from its
unconstitutional applications. Because Griffie's facial constitutional challenge to the
15
City's ordinance is the only claim she brings on appeal, we find no basis to overturn her
conviction or to disturb the district court's judgment.
Affirmed.
***
LAHEY, J., dissenting: For engaging in "noisy conduct tending to reasonably
arouse alarm, anger or resentment in others," Griffie was found guilty of unlawful
assembly. Her conviction should not stand because the ordinance at the core of her
conviction, Wichita Municipal Ordinance (W.M.O.) § 5.24.010(c) (2022), applies to a
vast array of speech and expressive conduct protected by the First Amendment.
The conduct on which the conviction is based was clearly political in nature. The
"noisy conduct" consisted of marching, chanting slogans such as "No justice, No peace,"
"No Trump, No KKK, No Fascist USA," "Black Lives Matter," and speeches given in
support of the protestors' views via megaphone. The speech and conduct were inherently
expressive and intended to convey a plainly political message. The City asserts that the
particular conduct deemed offensive was "blocking traffic," not the political messaging of
the protestors. But blocking traffic is not a specified or defined form of disorderly
conduct, and neither the city ordinance nor the jury instructions mention "blocking
traffic." Rather, the ordinance and instructions required the jury to find "noisy conduct,"
and the only noise on the nearly vacant streets of Wichita on July 29, 2020, was that
produced by Griffie's political protest. Noise of that sort is protected by the First
Amendment.
The constitutional problem with the "noisy conduct" form of disorderly conduct is
not that the ordinance was passed with the intention of targeting a specific political
message. The problem is that it is overbroad and includes within its scope, without
exception, protected First Amendment speech and conduct. Under the ordinance, a
criminal penalty attaches to noisy conduct whether it occurs in a private home or in the
16
public square—it applies to political debates, meetings, and conventions, and at all times
of the day or night. The scope is constitutionally significant and unmistakably chills free
speech and expressive conduct. I would find the "'mere existence of the statute could
cause a person not before the Court to refrain from engaging in constitutionally protected
speech or expression.'" State v. Williams, 299 Kan 911, 919, 329 P.3d 400 (2014). The
recent Supreme Court decision of City of Wichita v. Trotter, 316 Kan. 310, 514 P.3d 1050
(2022), involves a First Amendment freedom of association challenge, something not
argued here. But the present ordinance suffers from the same overbreadth problem as the
ordinance struck down in Trotter—it subjects important and significant protected First
Amendment conduct to criminal prosecution.
The majority opinion concedes that a proscription simply prohibiting "noisy
conduct" would likely be constitutionally overbroad but cites three components in the
language of the ordinance that allows it to withstand facial scrutiny for overbreadth.
First, the majority notes the ordinance includes a scienter or mens rea
component—the ordinance is only violated when the person "'knows or should know'"
that his or her conduct would arouse alarm or anger in others. Slip op at 11. Second, the
majority finds the ordinance has a narrowly focused actus reus component because it only
applies to noisy conduct "'tending to reasonably arouse alarm, anger or resentment in
others.'" Slip op at 11. And third, the majority finds use of the term "'reasonably'"
provides the ordinance with an objective standard by which noisy conduct can be
evaluated. Slip op at 11. "Griffie and the members of her group were free to protest in a
public forum against police misconduct provided their own conduct did not reasonably
arouse alarm, anger, or resentment in others—an objective standard of enforcement." Slip
op at 14-15. I respectfully disagree with the majority's rationale.
The objective standard identified by the majority applies only to the effect the
conduct has on others rather than the conduct itself. And the standard contained in the
17
ordinance includes conduct "tending" to reasonably arouse alarm. The inclusion of
conduct which tends to arouse alarm or anger operates to increase the breadth of
protected First Amendment conduct subject to criminal prosecution and undercuts the
reasonableness standard. The ordinance is not narrowly focused; it is impossibly broad
and vague. "Tend" means: "1. To be disposed toward (something). 2. To serve,
contribute, or conduce in some degree or way; to have a more or less direct bearing or
effect. 3. To be directed or have a tendency to (an end, object, or purpose)." Black's Law
Dictionary 1770 (11th ed. 2019). Any person who participates in a noisy political rally
becomes subject to criminal prosecution when they should know that their First
Amendment protected speech could contribute in some way to anger or disturb another
person. The range of prohibited speech and conduct is unacceptably broad—something as
common and ordinary as hypocrisy in speech or action by a politician can meet this test.
Talking about or protesting all sorts of controversial topics tends to disturb or anger
others and is the reason it is advisable to avoid talking about politics in social settings.
But the government has no business restricting such speech or conduct.
Political speech and conduct are routinely and intentionally used to arouse anger,
alarm, or resentment in others in order to bring attention to a political problem or to
prompt a desired political result—and such intentional conduct is legitimate and
protected by the First Amendment. United States Supreme Court precedents recognize
that a principal "'function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger.'" Texas v.
Johnson, 491 U.S. 397, 408-09, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)
(quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 93 L. Ed. 1131 [1949]).
I disagree with the majority that the reasonableness standard somehow restricts the
scope of conduct subject to criminal prosecution or insulates it from being overbroad.
The inclusion of the negligence standard—holding a person criminally responsible
18
because he or she "should know" their conduct or speech will tend to cause alarm or
anger—significantly enlarges the broad swath of conduct subject to the ordinance. The
Minnesota case relied upon by Griffie, State v. Hensel, 901 N.W.2d 166 (Minn. 2017), is
not a perfect analogue for the present case and distinguishable in many respects. But
Hensel got it right in finding that allowing a statute to reach all types of acts, intentional
or not, that merely have a tendency to disturb others, makes it more likely the statute will
"have a chilling effect on expression protected by the First Amendment." 901 N.W.2d at
174.
Given the overbreadth of the City ordinance, the appropriate remedy to preserve
First Amendment protections is to suspend enforcement of W.M.O. § 5.24.010(c):
"The showing that a law punishes a 'substantial' amount of protected free speech,
'judged in relation to the statute's plainly legitimate sweep,' Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), suffices to
invalidate all enforcement of that law, 'until and unless a limiting construction or
partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression' . . . . See also Virginia v. Black, 538 U.S.
343, 367, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003); New York v. Ferber, 458
U.S. 747, 769, n. 24, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Dombrowski v.
Pfister, 380 U.S. 479, 491, and n. 7, 497, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).
"We have provided this expansive remedy out of concern that the threat of
enforcement of an overbroad law may deter or 'chill' constitutionally protected
speech—especially when the overbroad statute imposes criminal sanctions. See
Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S. Ct.
826, 63 L. Ed. 2d 73 (1980); Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S.
Ct. 2691, 53 L. Ed. 2d 810 (1977); NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct.
328, 9 L. Ed. 2d 405 (1963). Many persons, rather than undertake the
considerable burden (and sometimes risk) of vindicating their rights through case-
by-case litigation, will choose simply to abstain from protected speech,
19
Dombrowski, [380 U.S. at 486-87]—harming not only themselves but society as a
whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth
adjudication, by suspending all enforcement of an overinclusive law, reduces
these social costs caused by the withholding of protected speech." Virginia v.
Hicks, 539 U.S. 113, 118-19, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003).
Political speech is central to the First Amendment's meaning and purpose. Citizens
United v. Federal Election Comm'n, 558 U.S. 310, 329, 130 S. Ct. 876, 175 L. Ed. 2d 753
(2010). Because the noisy conduct portion of the City's disorderly conduct ordinance
does not exclude any protected First Amendment speech or conduct from its scope, all
protected First Amendment speech and conduct is subject to criminal penalty if it
constitutes "noisy conduct." This broad application of a criminal penalty will likely cause
other people to refrain from engaging in constitutionally protected speech and conduct.
Short of rewriting the ordinance, there exists no satisfactory method of severing the
ordinance's constitutional applications from its unconstitutional applications. I would
reverse Griffie's conviction, find the "noisy conduct" portion of W.M.O. § 5.24.010(c)
constitutionally overbroad, and suspend all enforcement of that portion of the law.
20 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487716/ | [Cite as State v. Hanners, 2022-Ohio-4114.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29375
:
v. : Trial Court Case No. 2020-CRB-3626
:
SHAWN A. HANNERS : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
STEPHANIE L. COOK, Atty. Reg. No. 0067101 & ALISSA SCHRINER, Atty. Reg. No.
0089388, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, Appellate
Division, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
V. GAYLE MILLER, Atty. Reg. No. 0091528, 120 West Second Street, Suite 320, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
LEWIS, J.
-2-
{¶ 1} Defendant-Appellant Shawn A. Hanners appeals from his conviction
following a jury trial for one count of menacing, a misdemeanor of the fourth degree. For
the reasons that follow, the judgment of the trial court will be affirmed.
I. Procedural History and Facts
{¶ 2} On November 24, 2020, Hanners was charged by way of complaint in the
Dayton Municipal Court with one count of aggravated menacing in violation of R.C.
2903.21(A), a misdemeanor of the first degree, and one count of menacing in violation of
R.C. 2903.22, a misdemeanor of the second degree. The charges arose from an
incident that was alleged to have occurred on November 21, 2020, in the City of Dayton.
{¶ 3} Hanners entered a plea of not guilty at his arraignment and was appointed
counsel. Jessica Musselman was charged as a co-defendant as a result of the same
incident for similar offenses. Consequently, the State filed a motion to consolidate the
two cases for trial, which was granted. The case proceeded to a joint jury trial on October
20-21, 2021. Dayton Municipal Court Magistrate Colette Moorman presided over the
trial as acting judge.
{¶ 4} Duiene Stanfield testified first for the State. She stated that on the evening
of November 21, 2020, she was in a car with her husband, Christopher Stanfield, near
the intersection of Linden and Smithville heading toward their home. 1 While at the
stoplight, she observed four unknown black teenagers in the parking lot of a gas station,
which was on one of the corners of the intersection. She also saw two white males, one
of whom was later identified as Hanners, and a white female, later identified as
1
For ease of discussion, we will refer to the Stanfields by their first names throughout
this opinion.
-3-
Musselman, in a yard behind a white house that sat behind the gas station. Duiene saw
the teenagers and the adults yelling at each other. Although Duiene and Christopher
turned at the light to head home, they decided to turn around and go back to intervene.
When Duiene and Christopher returned to the gas station parking lot, Christopher got out
of the car and told Duiene to call 911, which she did. Duiene observed the two white
males throwing things (chairs, lighter fluid, and bricks) and observed Musselman with a
butcher knife. While the teenagers were standing in the parking lot, Hanners hit one of
them in the chest with a brick, resulting in some bleeding. Christopher got the teenagers
further away from the yard to talk to them and to tend to the teenager who was injured.
{¶ 5} While Duiene was standing just outside her car on the phone with 911,
Musselman began screaming at Duiene. Musselman yelled profanities at Duiene, told
her to stay out of their business, and stated “I’ll kill you b****.” Trial Tr. 56. Additionally,
while holding the butcher knife above her head and moving it side to side, Musselman
repeatedly told Duiene “I see you,” that she could see her car, and that she could see her
license plate. They did not know each other prior to their interaction that evening.
{¶ 6} Although the unknown white male had gone into the house, he returned
outside with a large white pit bull. Hanners, who was holding the dog’s chain, let the
chain go and told the dog to “get the kids.” Duiene testified she was scared and
concerned for her husband’s safety, because he was standing near the kids when the
dog was let loose. Meanwhile, Musselman continued to yell derogatory insults at Duiene
and again screamed that she would kill her even after the police arrived at the scene. Id.
at 58.
-4-
{¶ 7} According to Duiene, while police were at the scene, Hanners put the dog
back inside the house and then came outside and threw a chair. During that time,
Hanners was screaming “I don’t give a f***. I’ll f*** all of you up.” Id. at 59. Duiene
stated that the threats from Hanners scared her and that she was still scared while
testifying at court. Duiene explained that she was very afraid because even after the
police arrived, she had been scared that Hanners and Musselman were going to charge
her and that she would get hit. Id. at 60.
{¶ 8} Christopher Stanfield also testified for the State. He stated that he and
Duiene were driving home and saw the group of kids and the two adults “jawing” at each
other, and they all appeared angry. Based on what he saw, he and Duiene turned their
car around and parked in the gas station parking lot to intervene. Once they parked their
car, they could hear the teenagers and the adult males screaming back and forth.
Christopher got out of the car and yelled at the kids to get back and told his wife to call
911. Two of the kids came back toward Christopher, but the other two stayed up by the
backyard and continued yelling with the adults. According to Christopher, one of the
male adults threw a rock and hit one of the kids in the chest. At that point, Christopher
was scared for his own safety. Christopher also observed Musselman outside with a
knife, screaming and yelling. Christopher heard Musselman threaten to kill his wife.
Although Christopher saw a chair get thrown, he did not identify who threw the chair. He
also observed the dog outside but was unaware of how it got outside.
{¶ 9} The last witness for the State was Dayton Police Officer Christopher White.
White testified that he had responded to the 911 call around 4:30 p.m. to the gas station
-5-
on Smithville Road. When he arrived, he observed the parties yelling at each other, and
they were all very agitated. Although he did not recall specifically what anyone had been
yelling, he did recall that Hanners had yelled at him to leave the property and had stated
that they did not want police help. White testified that both Musselman and Hanners
were very unpleasant and angry. White observed an abrasion on the side juvenile who
had been injured.
{¶ 10} At the conclusion of the State’s case, Hanners made a Crim.R. 29 motion
for acquittal, which was overruled. He also requested a jury instruction for the lesser
included offense of disorderly conduct, in violation of R.C. 2917.11(A)(1), a minor
misdemeanor. The trial court denied Hanners’ requested instruction.
{¶ 11} Hanners elected not to testify, but Musselman testified on her own behalf.
Musselman claimed that she had not seen the Stanfields until after the police arrived and
that she had not been paying any attention to them because her focus was on the
juveniles. Musselman indicated she was terrified for herself and her child’s life, who
remained inside the house. She did not see any weapons on the Stanfields, and they
never approached her property. Musselman denied doing anything Duiene testified to
during trial, although she later admitted that she was outraged and yelled profanities
during the incident.
{¶ 12} The jury found Hanners not guilty of aggravated menacing but guilty of
menacing. After a presentence investigation report was completed, Hanners was
sentenced to 30 days in jail, all of which was suspended, was ordered to: complete six
months of community control under basic supervision, complete “PAC” and anger
-6-
management, and pay a fine of $100 and court costs. That same day, a “Final
Appealable Entry & Order” was filed reflecting the above-imposed sentence.
{¶ 13} Hanners filed a request to stay his sentence for purposes of appeal, which
the trial court granted. Hanners then filed a timely notice of appeal.
II. No Consent Needed for Jury Trial
{¶ 14} In his first assignment of error, Hanners alleges that the trial court erred in
failing to obtain his written consent before proceeding to a jury trial before a magistrate.
However, because the record reflects that he was tried before an acting judge, there was
no requirement to obtain consent, and his argument lacks merit.
{¶ 15} Although Hanners couched his argument in terms of Civ.R. 53(C)(1)(c),
Crim.R. 19(C)(1)(h) governs criminal trials presided over by magistrates in municipal
court. In criminal cases, magistrates are authorized to “conduct the trial of any
misdemeanor case that will not be tried to a jury. If the offense charged is an offense for
which imprisonment is a possible penalty, the matter may be referred only with unanimous
consent of the parties in writing or on the record in open court.” Crim.R. 19(C)(1)(h).
{¶ 16} Meanwhile, R.C. 1901.121 addresses the appointment of an acting judge in
a municipal court. R.C. 1901.121(C) provides that when there is a vacancy in a
municipal court with three or more judges (such as the Dayton Municipal Court), “the
court's presiding judge has the option to either appoint an appropriate substitute as ‘acting
judge’ or to request that the Supreme Court of Ohio assign a sitting judge of another court
or a retired judge to temporarily serve as an ‘assigned judge.’ ” State v. Armstrong-
Carter, 2d Dist. Montgomery Nos. 28571 and 28576, 2021-Ohio-1110, ¶ 65. Pursuant
-7-
to that statute, if a judge of the municipal court is incapacitated, unavailable, or temporarily
absent, the presiding judge may appoint a qualified substitute if no other judge of the court
is available to perform the duties of the judge. R.C. 1901.121(C)(1). The appointee
shall be designated as “acting judge” and “shall have the jurisdiction and adjudicatory
powers conferred upon the judge of the municipal court.” R.C. 1901.121(C)(1) and (E).
{¶ 17} In this case, Magistrate Moorman was appointed by the presiding judge to
act as acting judge of the Dayton Municipal Court on October 20, 2021, October 21, 2021,
and January 5, 2022. Collectively, the dates covered both the jury trial, the sentencing
hearing, and the sentencing entry. The entries appointing Moorman as acting judge
further indicated that the appointment of an acting judge was necessary for those dates
due to the absence of Judge Henderson. Because the jury trial was conducted by
Moorman in her capacity as acting judge and not in her capacity as magistrate, there was
no need to obtain unanimous consent of the parties to have her preside over the trial.
As such, Hanners’ first assignment of error is overruled.
III. Motion for Mistrial
{¶ 18} Hanners’ second assignment of error contends that the trial court erred in
refusing to grant a mistrial following the prosecutor’s improper statement during her
closing argument. Although the prosecutor’s statement was improper, it did not
prejudicially affect Hanners’ substantial right to a fair trial due to the swift corrective
measures taken by the trial court.
{¶ 19} “The test regarding prosecutorial misconduct in closing arguments is
whether the remarks were improper and, if so, whether they prejudicially affected
-8-
substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d
883 (1984), citing United States v. Dorr, 636 F.2d 117, 120 (5th Cir.1981). “Prosecutors
are granted wide latitude in closing argument, and the effect of any conduct of the
prosecutor during closing argument must be considered in light of the entire case to
determine whether the accused was denied a fair trial.” (Citation omitted.) State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149. “Prosecutorial
misconduct should only result in a mistrial if, after a curative instruction, the effect of the
comments would still result in a miscarriage of justice.” State v. Ward, 2d Dist.
Montgomery No. 18211, 2001 WL 220244, *4 (Mar. 2, 2001), citing State v. Gardner, 127
Ohio App.3d 538, 540, 713 N.E.2d 473 (5th Dist.1998). “The touchstone * * * is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶ 20} The grant or denial of a motion for a mistrial rests in a trial court's sound
discretion and should not be disturbed on appeal absent an abuse of that discretion.
State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). To establish an abuse
of discretion for failing to grant a mistrial, a defendant must demonstrate material
prejudice. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198.
“Mistrials need be declared only when the ends of justice so require and a fair trial is no
longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).
Reviewing courts grant “great deference to the trial court's discretion in this area, in
recognition of the fact that the trial judge is in the best position to determine whether the
situation in his courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio
-9-
St.3d 18, 19, 517 N.E.2d 900 (1988).
{¶ 21} Hanners’ motion for a mistrial was based on the prosecutor’s statement
during closing argument that “Miss Stanfield also told you about how Shawn Hanners
threatened to kill her.” Trial Tr. 140. Hanners immediately objected. The jury left the
courtroom, and the parties replayed the testimony of Duiene. A review of the testimony
revealed that Duiene testified that Hanners stated “I’ll f*** you all up” and did not state “I
will kill you.” Id. at 141. Hanners immediately requested a mistrial. The trial court
denied the motion for a mistrial and provided the following additional instructions upon
the jury’s return to the courtroom:
The Court: * * * To members of the jury, final arguments of counsel are an
opportunity for each side’s attorney to summarize the evidence and argue
their respective positions. They are not evidence and the side with the
burden of proof will be the state. The attorney[s] have to argue the facts
that are in evidence and the court is going to tell you we went back to play
a portion of the tape to make sure that I had heard everything correctly.
There is no testimony on the record that the defendant, Mr. Hanners, said
the words […]
[Defense attorney]: That I will kill you[.]
The Court: That I will [sic] you. The prosecutor has misstated that. That
is not in evidence and it was very improper for her to say so. I’m going to
ask you to disregard that. It is not in the evidence. It’s not in the record.
You, as the jury, decides what facts you believe and you want to find to be
-10-
credible, the witnesses to be credible, and what facts you want to ugh
commenting recollection [sic] with each other believe what you heard. That
is not going to be one of them. It’s gonna be stricken from the record and
there is no allegation there that he said those words. I’m going to caution
the prosecutor to not misstate what was said and I will allow you to continue.
Id. at 142-143. Thereafter, the prosecutor apologized and continued with closing
arguments.
{¶ 22} After reviewing the record, we conclude that the prosecutor improperly
attributed the statement to Hanners, which was prejudicial. Although Duiene Stanfield
did not testify that Hanners made the statement, she did testify that Hanners’ co-
defendant, Musselman, made the statement multiple times. Christopher also testified
that he heard Musselman threaten to kill Duiene. Thus, the statement was in evidence
but, unfortunately, the prosecutor attributed it to the wrong defendant.
{¶ 23} Even though we find the statement by the prosecutor to have been improper
and prejudicial, we must still determine whether the remark was so prejudicial as to deny
Hanners a fair trial. We are unpersuaded that the prosecutor’s misstatement so infected
Hanners’ trial with unfairness that his conviction violated his due process rights. Notably,
the court's instructions immediately following the prosecutor's misstatement mitigated any
harm caused by it. “Curative instructions are generally viewed as sufficient to remedy
the risk of undue prejudice.” State v. Gray, 2d Dist. Darke No. 2019-CA-7, 2020-Ohio-
1402, ¶ 48. The jury was informed prior to closing arguments and again in the jury
instructions that the arguments of counsel were not to be considered as evidence. “It is
-11-
presumed that the jury obeys the instructions of the trial court.” State v. Hancock, 108
Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 54. While not all misconduct can be
cured by an instruction, in this case, not only did the trial court instruct the jury to disregard
the statement, but it also corrected the statement, ordered that the misstatement be
stricken from the record, and admonished the prosecutor in front of the jury immediately
following the misconduct. The significant steps taken in this case by the trial court
minimized any prejudice caused by the prosecutor’s isolated misstatement. Therefore,
the trial court did not abuse its discretion in overruling Hanners’ request for a mistrial.
His second assignment of error is overruled.
IV. Jury Instructions
{¶ 24} In his final assignment of error, Hanners claims that the trial court erred
when it refused to instruct the jury on the lesser included offense of disorderly conduct.
Although Hanners requested the instruction, the trial court found that the evidence did not
warrant giving it. We agree with the trial court.
{¶ 25} Both Crim.R. 31(C) and R.C. 2945.74 provide that a jury may find a
defendant not guilty of the offense charged but guilty of a lesser included offense.
Deciding whether a lesser included offense jury instruction is warranted involves a two-
step analysis. State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986,
¶ 6. The first step is a purely legal question wherein the court must determine whether
one offense constitutes a lesser included offense of the charged offense. Id., citing State
v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second step requires the
court to considers the evidence presented in the particular case and determine whether
-12-
“a jury could reasonably find the defendant not guilty of the charged offense, but could
convict the defendant of the lesser included offense.” Id. at ¶ 6, quoting State v. Evans,
122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. Thus, “[e]ven though an
offense may be statutorily defined as a lesser included offense of another, a charge on
such lesser included offense is required only where the evidence presented at trial would
reasonably support both an acquittal on the crime charged and a conviction upon the
lesser included offense.” State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988),
paragraph two of the syllabus. When making that determination, “the trial court must
view the evidence in the light most favorable to the defendant.” State v. Monroe, 105
Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37.
{¶ 26} “A trial court has broad discretion to decide how to fashion jury instructions,
but it must ‘fully and completely give the jury all instructions which are relevant and
necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’ ”
State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State
v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “A
defendant is only entitled to have his proposed jury instructions given when they are
correct statements of the law, pertinent to the evidence in the record or to material issues,
and are timely presented and not already included in the substance of the jury charge.”
State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 23, citing State v.
Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981). “When reviewing the trial court's
jury instructions, the proper standard of review is whether the trial court's decision to give
or exclude a particular jury instruction was an abuse of discretion under the facts and
-13-
circumstances of the case.” (Citation omitted.) State v. Fair, 2d Dist. Montgomery No.
24388, 2011-Ohio-4454, ¶ 65. An “abuse of discretion” has been defined as an attitude
that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
{¶ 27} In this case, Hanners was charged and convicted of menacing, in violation
of R.C. 2903.22(A), a misdemeanor of the fourth degree.2 That statute provides that
“[n]o person shall knowingly cause another to believe that the offender will cause physical
harm to the person or property of the other person, * * * or a member of the other person's
immediate family.” R.C. 2903.22(A).
{¶ 28} Hanners requested a jury instruction for disorderly conduct, in violation of
R.C. 2917.11(A)(1), a minor misdemeanor. R.C. 2917.11(A)(1) provides that “[n]o
person shall recklessly cause inconvenience, annoyance, or alarm to another by * * *
[e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent
behavior.” We first consider whether disorderly conduct under R.C. 2917.11(A)(1)
constitutes a lesser included offense of menacing.
{¶ 29} The Ohio Supreme Court has articulated a three-pronged test to determine
whether a criminal offense is a lesser included offense of another. “An offense may be
a lesser included offense of another if (i) the offense carries a lesser penalty than the
other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the
lesser offense, as statutorily defined, also being committed; and (iii) some element of the
2 We acknowledge that Hanners was also charged with aggravated menacing, but
considering he was found not guilty of that charge, we find the argument moot as to that
offense.
-14-
greater offense is not required to prove the commission of the lesser offense.” State v.
Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the syllabus.
Using this analysis, we find that disorderly conduct, as specified in R.C. 2917.11(A)(1), is
a lesser included offense to menacing.
{¶ 30} First, disorderly conduct is a minor misdemeanor, which carries a lesser
penalty than menacing, a fourth-degree misdemeanor. See, generally, R.C. 2929.27
and R.C. 2929.28. Second, menacing contains the element of threatening physical
harm, which cannot be committed without at the same time causing annoyance or alarm
to the victim. See State v. Shumaker, 2d Dist. Darke No. 1332, 1994 WL 47676, *7 (Feb.
18, 1994) (finding that threatening serious physical harm under an aggravated menacing
charge cannot be committed without at the same time causing annoyance or alarm to the
victim by threatening harm). Third, “the greater mental state of knowingly is required for
menacing, but not for disorderly conduct and for menacing, the offender must cause
another to believe that the offender will cause physical harm, while disorderly conduct
requires only that inconvenience, annoyance or alarm be caused.” State v. Ozias, 12th
Dist. Butler No. CA2003-04-102, 2003-Ohio-5431, ¶ 14.
{¶ 31} Nonetheless, a trial court is not always required to instruct the jury on a
lesser included offense even if the elements of the offense would be met. Rather, it is
only required when “the evidence presented at trial would reasonably support an acquittal
on the crime charged and a conviction on the lesser included offense.” State v. Allen,
73 Ohio St. 3d 626, 637, 653 N.E.2d 675 (1995). Thus, we must consider whether the
jury could have reasonably acquitted Hanners of menacing but convicted him of disorderly
-15-
conduct.
{¶ 32} We conclude that the evidence presented at trial cannot reasonably support
a conviction for disorderly conduct under R.C. 2917.11(A)(1) and an acquittal on
menacing. A conviction for disorderly conduct and an acquittal for menacing would have
required the jury to find that Hanners recklessly caused inconvenience, annoyance, or
alarm to Duiene by engaging in fighting, in threatening harm to Duiene or her property, or
acting in a violent or turbulent behavior, but that Hanners did not knowingly cause Duiene
to believe that Hanners would cause her physical harm. The culpable mental states for
“knowingly” and “recklessly” are defined in R.C. 2901.22(B) and (C), respectively, as
follows:
(B) A person acts knowingly, regardless of purpose, when the person is
aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
(C) A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk
that the person's conduct is likely to cause a certain result or is likely to be
of a certain nature. A person is reckless with respect to circumstances
-16-
when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are
likely to exist.
{¶ 33} As it relates to Hanners’ conduct and statements, the jury was only
presented with one version of events – that testified to by the Stanfields. Considering
the conduct and statements of Hanners during the entirety of the incident, the evidence
presented demonstrated that Hanners acted knowingly, not recklessly. Thus, if the jury
believed the Stanfields, Hanners was guilty of menacing.
{¶ 34} The incident occurred around 4:30 p.m. in broad daylight. Duiene testified
she was approximately 20 feet away from Hanners during the incident and was located
near her husband and the juveniles in the gas station parking lot. Hanners was observed
by both the Stanfields throwing chairs and lighter fluid, as well as a brick/rock that struck
one of the teenagers in the chest and resulted in an injury. Additionally, Hanners
released a large pit bull and told the dog to “get the kids.” The 911 call was consistent
with Duiene’s testimony that chairs, lighter fluid, and bricks were being thrown and that
the dog was sent out to get the kids. Duiene testified she was scared for herself and
concerned for her husband’s safety as well. Significantly, while police were on the
scene, Hanners threw a chair and screamed “I don’t give a f***. I’ll f*** all of you up.”
Trial Tr. 59. This conduct occurred after having already injured one of the juveniles by
throwing other objects and telling police he did not need their help. Duiene stated that
the threats from Hanners scared her and she was afraid that he was going to charge
toward her and hit her. Id. at 60.
-17-
{¶ 35} Based on the facts in evidence in this case, a reasonable jury would not
have acquitted Hanners of the menacing charge but convicted him of disorderly conduct.
Accordingly, we conclude that the trial court did not abuse its discretion by refusing to
give an instruction on disorderly conduct. We overrule Hanners’ third assignment of
error.
V. Conclusion
{¶ 36} Having overruled all of Hanners’ assignments of error, the judgment of the
trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Stephanie L. Cook
Alissa Schriner
V. Gayle Miller
Hon. Colette Moorman, Acting Judge | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487721/ | 11/18/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 21, 2022
BALMORAL SHOPPING CENTER, LLC v. CITY OF MEMPHIS ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-4731-21 Carol J. Chumney, Judge
___________________________________
No. W2022-01488-COA-T10B-CV
___________________________________
This is an appeal of a trial judge’s denial of a Tennessee Supreme Court Rule 10B motion
for the recusal of the trial judge from the case. We affirm the trial court’s denial of the
recusal motion.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER
and KRISTI M. DAVIS, JJ., joined.
Christopher L. Vescovo and Isaac S. Lew, Memphis, Tennessee, for the appellant, City of
Memphis.1
OPINION
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Balmoral Shopping Center, LLC (“Balmoral”) owns the Balmoral
Shopping Center in Memphis. The shopping center is located in close proximity to
Ridgeway High School (“Ridgeway”). According to Balmoral’s complaint, which was
filed in November 2021 against the City of Memphis (“the City”) and the Shelby County
Board of Education (“the Board”), parents that pick their children up from Ridgeway park
their vehicles in the shopping center parking lot, blocking driveways, parking spaces, and
other traffic. Balmoral has alleged that the “City and the Board have allowed the
unmitigated overflow of foot and vehicular traffic to continue onto the Property at issue
and refused to use personnel on the school property to deter and or prohibit the flow of
students and automobiles.” In pursuing relief against these Defendants, Balmoral has
1
The other parties in this case have not participated in this appeal due to this appeal being
considered solely on the City’s submissions and without oral argument.
specifically asserted claims for nuisance, writ of mandamus, inverse condemnation,
negligence, and gross negligence. Although previously assigned to another division of the
Shelby County Circuit Court, the case was eventually transferred to Division Two. As is
of particular relevance to this appeal, Division Two is now presided over by newly elected
Judge Carol Chumney.
Although the recusal issue was first broached by the City during a status conference
on September 7, 2022, shortly after Judge Chumney began her term as judge, the City filed
a formal motion requesting the judge’s recusal on September 13, 2022. As grounds for the
motion, the City averred that it feared biased treatment due to Judge Chumney’s prior
representation of clients adverse to the City during her time as an attorney in private
practice. In large part, the City relied upon Judge Chumney’s prior participation as legal
counsel in the “Beale Street Bucks Case,” a federal case in which Judge Chumney’s clients
had challenged the constitutionality of a program that prohibited citizens from entering
Beale Street on Saturday nights after 10 p.m. unless they paid a $10 fee. The City noted
that, during her involvement in the Beale Street Bucks Case, Judge Chumney had made
statements at an injunction hearing alluding to “security lapses” regarding crowds on Beale
Street. According to the City, the allegations in the present case implicated similar issues
as these former statements, giving it a reason for fearing biased treatment of its legal
arguments. The City further specifically noted that Judge Chumney had represented a
client adverse to the City as temporary substitute counsel during a period when the client’s
regular attorney was suspended from the practice of law. Although the City’s filing
ultimately tacitly acknowledged that Rule 2.11(A)(6)(a) of the Code of Judicial Conduct
does not address recusal under the circumstances at issue here, the City’s filing nonetheless
devoted significant attention to interpreting the language in that rule, which requires
disqualification when a judge “served as a lawyer in the matter in controversy.” (Emphasis
added).
Balmoral opposed the City’s motion for recusal,2 arguing that the City had advanced
a “flawed argument” that “strains reasonableness.” Balmoral noted that the matter in
controversy in this litigation is “totally distinct” from the other cases referenced by the
City, and it further contended that “bias and prejudice are only improper when they are
personal.” The trial court subsequently entered an order denying the City’s motion to
recuse, and the City then filed a petition for recusal appeal in this Court as is allowed by
the Rules of the Supreme Court of Tennessee. See Tenn. Sup. Ct. R. 10B, § 2.01 (allowing
for an accelerated interlocutory appeal as of right following the trial court’s entry of an
order denying a motion for the judge’s disqualification or recusal). We proceed to address
the appeal summarily based on the City’s submissions alone and without oral argument.
See Tenn. Sup. Ct. R. 10B, § 2.05 (providing that the appellate court may act summarily
on the appeal if it determines that no answer is needed); Tenn. Sup. Ct. R. 10B, § 2.06
2
Insofar as the materials submitted on appeal indicate, the Board has abstained from taking a
specific position on the recusal issue.
-2-
(providing that the accelerated interlocutory appeal shall be decided on an expedited basis
and, in the court’s discretion, without oral argument).
DISCUSSION
The only order this Court may review in an appeal pursued under Tennessee
Supreme Court Rule 10B is the trial court’s order denying the motion to recuse. Dougherty
v. Dougherty, No. W2021-01014-COA-T10B-CV, 2021 WL 4449649, at *2 (Tenn. Ct.
App. Sept. 29, 2021) (citing Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012)).
The general principles undergirding recusal issues are well settled:
“The right to a fair trial before an impartial tribunal is a fundamental
constitutional right.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)). Preserving
public confidence in judicial neutrality, however, requires more than
ensuring that a judge is impartial in fact. Kinard v. Kinard, 986 S.W.2d 220,
228 (Tenn. Ct. App. 1998). It is also important that a judge be perceived to
be impartial. Id. In keeping with this principle, Tennessee Supreme Court
Rule 10, Code of Judicial Conduct Rule 2.11 provides that “[a] judge shall
disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned[.]” Even when
a judge sincerely believes that he or she can preside over a matter in a fair
and impartial manner, recusal is nonetheless required where a reasonable
person “in the judge’s position, knowing all of the facts known to the judge,
would find a reasonable basis for questioning
the judge’s impartiality.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564-
65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim.
App. 1994)).
Hawthorne v. Morgan & Morgan Nashville PLLC, No. W2020-01495-COA-T10B-CV,
2020 WL 7395918, at *2 (Tenn. Ct. App. Dec. 17, 2020).
As briefly referenced earlier in this Opinion, the City’s motion to recuse devoted
much initial effort to construe the meaning of “matter” within Rule 2.11(A)(6)(a) of the
Code of Judicial Conduct, which disqualifies judges who have “served as a lawyer in the
matter in controversy.” So too does the City’s petition for recusal appeal filed in this Court.
This focus on Rule 2.11(A)(6)(a) is ostensibly3 in an attempt to suggest that Judge
Chumney’s prior representation of clients against the City as a private attorney, in other
litigation, could require disqualification under the rule. To the extent that the City is
3
The invocation of this authority and focus on it is ultimately somewhat confusing, however, given
other statements by the City that serve to discount the possibility of applying it to the present facts and
circumstances.
-3-
attempting to suggest that this case can be shoehorned under the disqualifying parameters
of Rule 2.11(A)(6)(a), we respectfully reject its position. Very simply, none of the cited
litigation history involving Judge Chumney as a private attorney establishes her
participation in the “matter in controversy.” In our view, there can be no reasonable debate
surrounding this conclusion, and we observe that the balance of the City’s arguments in
the trial court and on appeal actually appear to have been developed in recognition of this
fact. For instance, despite the ink spilled by the City on Rule 2.11(A)(6)(a), we observe
that the City argues as follows in its petition on appeal:
Even though Tennessee’s disqualification rule does not specifically address
recusal under the circumstances here presented . . . Comment 1 to Rule 2.11
clarifies that “a judge is disqualified whenever the judge’s impartiality might
reasonably be questioned, regardless of whether any of the specific
provisions of paragraphs (A)(1) through (6) apply.”
Although the City therefore does ultimately appear to correctly acknowledge that Judge
Chumney’s prior participation in the Beale Street Bucks Case and others did not involve
her service as an attorney in the “matter in controversy” here, there is still the general
question of whether there are any circumstances causing Judge Chumney’s impartiality to
reasonably be questioned. The City is correct that recusal would be required under such
circumstances if they existed, but for the reasons stated below, we agree with the trial
court’s conclusion that recusal under this standard is not required in the case at bar.
As a preliminary observation, we note that the City does not appear to maintain that
Judge Chumney has any type of intrinsic absolute bias against the City, or the objective
appearance of such. In fact, in connection with seeking recusal of Judge Chumney in the
trial court, the City qualified its prayer for relief by stating that it was “cognizant that it
may appear before [Judge Chumney] in future cases, and it does not take the position that
recusal will always be necessary.” As best as we can understand, outside of its tempered
reliance on Rule 2.11(A)(6)(a), the City is maintaining that recusal is required simply
because allegedly similar issues were involved in the Beale Street Bucks Case and because,
in other litigation where Judge Chumney temporarily served as counsel for a client
represented by an attorney suspended from the practice of law, papers and pleadings filed
by the suspended attorney accused the City of fraud and of being involved in a conspiracy.
We fail to see how Judge Chumney’s prior participation in this other litigation as a private
attorney should necessitate her disqualification from presiding over the present case.
Although the City divines some type of mirroring of allegations against the City in the
present case and in the Beale Street Bucks Case so as to make it fear prejudiced treatment
against it in this action, the two cases, and the underlying claims themselves, are entirely
different. Indeed, the Beale Street Bucks Case, which was concerned with the
constitutionality of the Beale Street Bucks program that charged a fee for admission to
Beale Street, involved substantive claims not implicated in any respect here. It is unclear
to us how Judge Chumney’s advocacy in that case demonstrates that her impartiality in the
-4-
present case should reasonably be questioned.
The City further relies on the fact that Judge Chumney briefly became counsel of
record for a client otherwise represented by a suspended attorney who had made serious
allegations against the City. In its petition on appeal, the City generally references Judge
Chumney’s participation in this other litigation as providing “[a]dditional compelling
facts” supporting recusal. As best as we understand this argument, the City appears to
assume that such allegations against the City were so charged or serious that they would
provide a reasonable basis for questioning Judge Chumney’s impartiality in the present
case. Even ignoring the limited nature of Judge Chumney’s participation in the litigation
involving the suspended attorney and the fact that the complained-of filings were not
submitted by Judge Chumney, it “must . . . be remembered that an attorney may not
necessarily agree with an opinion expressed or a position advocated on behalf of his or her
client.” Caudill v. Foley, 21 S.W.3d 203, 215 (Tenn. Ct. App. 1999). Moreover, just
because serious allegations may have previously been pursued against the City, it is not
clear to us how this, in and of itself, should foreclose Judge Chumney’s present judicial
oversight. By way of analogy, we take note of the multiple examples in Tennessee
jurisprudence where judges, in their prior positions as prosecutors, have prosecuted
defendants for crimes, and then, in their subsequent careers as judges, have been allowed
to preside over other cases involving the same subject defendants. See, e.g., State v. Dixon,
No. M2010-02382-CCA-R3-CD, 2012 WL 2356523, at *13 (Tenn. Crim. App. June 21,
2012) (discussing other cases on the topic and finding the defendant at issue was not
entitled to any relief with respect to claim that the “judge’s participation as a prosecutor in
her prior conviction precluded his participation in the current trial, especially since her
prior conviction was used to enhance her sentence”).4 Obviously, a judge’s prior
participation as counsel in litigation involving a particular party could, depending on the
particular facts and circumstances, present a reasonable basis to question the judge’s
impartiality in subsequent separate litigation involving that same party. We simply hold
here, as the trial court did, that Judge Chumney’s prior service as an attorney in the cases
cited by the City do not satisfy this standard.
4
Although of course not binding on this Court, we also take stock of a Sixth Circuit decision cited
by Balmoral in the trial court, U.S. v. Hurst, 951 F.2d 1490 (6th Cir. 1991). Of note, somewhat similar to
the complained-of litigation involving the suspended attorney referenced in this case, the prior litigation at
issue in the Hurst case involved the fact that the Hurst judge, in his prior life as a private attorney, had filed
a lawsuit against the defendant on behalf of clients and alleged fraud. The Sixth Circuit concluded it was
“satisfied that a reasonable person would consider the trial judge to be impartial . . . and find no prejudice
toward [the] defendant.” Id. at 1503.
-5-
CONCLUSION
For the reasons stated herein, we affirm the trial court’s denial of the City’s motion
to recuse.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
-6- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487722/ | 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 1
Decided November 18, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1958
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 08-CR-188-C-01
KENNETH R. SMITH,
Defendant-Appellant. James D. Peterson,
Chief Judge.
ORDER
Kenneth R. Smith is a federal prisoner appealing the denial of what he called a
motion for compassionate release. The district court addressed the motion on the
1
The United States filed a notice of noninvolvement and is not participating in
this appeal. We have agreed to decide the case without oral argument because the
appeal is frivolous. See FED. R. APP. P. 34(a)(2)(A).
No. 22-1958 Page 2
merits, but we conclude that it was an unauthorized successive collateral attack. Thus,
we vacate and remand with instructions to deny the motion for lack of jurisdiction.
In 2009, Kenneth Smith pleaded guilty to producing child pornography.
See 18 U.S.C. § 2251(a). Under a written plea agreement, he waived his right to a direct
appeal (but not to collateral attacks) and was sentenced to 20 years’ imprisonment.
Smith later moved to vacate the sentence under 28 U.S.C. § 2255 on the ground that
18 U.S.C. § 2251(a) does not reach the conduct that he engaged in. The district court
denied that motion, Smith v. United States, No. 15‐cv‐755‐bbc, 2015 WL 7721845
(W.D. Wis. Nov. 30, 2015), as well as Smith’s request to reconsider and then a “motion
for clarification,” No. 15‐cv‐755‐bbc, 2015 WL 9484522 (W.D. Wis. Dec. 29, 2015). Shortly
thereafter, the district court denied a second request for reconsideration and warned
Smith that further requests would likely be denied without explanation. No. 15‐cv‐755‐
bbc (W.D. Wis. Feb. 23, 2016).
In the years since, Smith has continued to challenge his conviction—to no avail—
through filings such as one “motion for hearing to correct illegal sentence,” United States
v. Smith, No. 08-cr-188-bbc (W.D. Wis. May 23, 2016), one ”motion to file plain error,”
No. 15-cv-755-bbc (W.D. Wis. March 27, 2018), and two applications in this court for
leave to file a successive collateral attack, No. 16‐1918 (7th Cir. April 26, 2016); No. 19-
2063 (7th Cir. June 4, 2019). All were unsuccessful.
Smith filed his first motion for compassionate release in 2021, once again
asserting the illegality of his conviction and citing it as an extraordinary and compelling
reason to reduce his sentence. See 18 U.S.C. § 3582(c)(1)(A)(i). The district court 1 denied
the motion for failure to exhaust administrative remedies and further noted that Smith’s
arguments had been heard and rejected previously. United States v. Smith, No. 08-cr-188-
bbc, slip op. at 1 (W.D. Wis. Mar. 25, 2021). We affirmed, No. 21-1640 (7th Cir. Mar. 7,
2022), and acknowledged that even if Smith had exhausted administrative remedies, the
district court rightly denied relief because prisoners cannot use motions for
compassionate release to remedy supposed errors in a conviction or sentence, United
States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022).
Smith then filed what he styled as another motion for compassionate release—
again raising arguments challenging his conviction—asserting that his due process
rights were violated because his conduct aligned with “manufacture of child
1
Judge Barbara B. Crabb was originally assigned to this case and handled all
prior motions until the one currently under review, which was ruled upon by Chief
Judge James D. Peterson.
No. 22-1958 Page 3
pornography” but he was convicted of “sexual exploitation of a minor.” The district
court summarily denied his motion, citing Thacker and noting that Smith was yet again
raising similar, if not the same, arguments about his conviction.
To the extent that Smith’s motion was one for compassionate release, the district
judge was correct that § 3582(c)(1) is not the mechanism to challenge an illegal
conviction. Thacker, 4 F.4th at 574; see also United States v. Brock, 39 F.4th 462 (7th Cir.
2022); United States v. Martin, 21 F.4th 944 (7th Cir. 2021).
In light of the clear pattern of behavior that Smith’s filings have displayed, we do
not think Smith’s request should be treated as a compassionate-release motion. The
substance, not the label, of a request for relief controls how a court should treat it.
United States v. Carraway, 478 F.3d 845, 848–49 (7th Cir. 2007). Smith raises the same
theory regarding the unconstitutionality of his conviction that he raised in his original
§ 2255 motion, his § 2255(h) requests to file subsequent motions, and his first
compassionate-release motion. Because Smith’s post-conviction motion seeks to vacate,
set aside, or correct a sentence, it substantively falls within the scope of § 2255. Gonzalez
v. Crosby, 545 U.S. 524, 531 (2005); Carraway, 478 F.3d at 848. It might be the rare
compassionate-release case in which we strictly apply this rule, but we do so here
because Smith’s record leaves no doubt.
As Smith is aware, permission from the court of appeals is required to file a
successive collateral attack in district court. 28 U.S.C. § 2255(h); Carraway, 478 F.3d
at 849. But he did not to seek or obtain permission before filing the “compassionate
release” motion under review. Labelling a collateral attack as a different kind of motion
does not allow Smith to circumvent the jurisdictional limitation on successive habeas
actions. Curry v. United States, 507 F.3d 603, 605 (7th Cir. 2007); Melton v. United States,
359 F.3d 855, 857 (7th Cir. 2004). The district court lacked jurisdiction to address the
merits. Curry, 507 F.3d at 605–06; United States v. Lloyd, 398 F.3d 978, 980 (7th Cir. 2005).
As for the appeal, we can construe Smith’s notice of appeal as an implicit request
for permission to mount a successive collateral attack. See Melton, 359 F.3d at 858; Lloyd,
398 F.3d at 981. It is denied. Smith’s challenge does not meet the statutory criteria under
28 U.S.C. § 2255(h) for successive collateral attacks: He has presented no newly
discovered evidence nor a new, retroactive decision by the Supreme Court of the United
States. He is rehashing arguments that this court and the district court have rejected
multiple times; including in a properly labeled (first) motion to bring a successive
collateral attack. See No. 16‐1918 (7th Cir. May 9, 2016).
Smith has been warned repeatedly about his pattern of filings: The district court
told him in 2016—after three motions for reconsideration of the denial of his § 2255
No. 22-1958 Page 4
motion—that any more would likely be denied without explanation. No. 15‐cv‐755‐bbc
(W.D. Wis. Feb. 23, 2016). After he filed more motions and wrote directly to the court
seeking a response, the court again told him that “any motion attacking your sentence
will be reviewed and, unless it is accompanied by an order of the Court of Appeals for
the Seventh Circuit permitting the filing, [the district judge would] place the document
in the file of this case and make no response to it.” No. 15‐cv‐755‐bbc (W.D. Wis.
Aug. 22, 2016). Neither warning stopped Smith from filing, between 2016 and 2020, four
additional motions, variously labelled, challenging the validity of his conviction. In
February 2020, Smith received yet another warning from the district court that “[u]nless
and until the law changes to permit [Smith] to file a successive collateral attack under
28 U.S.C. § 2255(h)(2), any documents, including motions, that [Smith] files in 08-cr-188
or in 15-cv-755 will be added to his court file, but not acknowledged or docketed.”
No. 15‐cv‐755‐bbc, 2020 WL 5414895, slip op. at 1 (W.D. Wis. Feb. 24, 2020). It is
apparent that these warnings have not stopped Smith from seeking to set aside, vacate,
or correct his criminal sentence by mislabeling his motions and requests for relief.
We therefore conclude by warning Smith that he risks monetary sanctions and a
filing bar under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997) if he files another
motion, no matter how labeled, challenging the validity of his conviction or sentence.
We VACATE the decision of the district court and REMAND with instructions to
deny the motion for want of jurisdiction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487723/ | 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 18, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1048
SHANE D. JOHNSON, Appeal from the United States District
Petitioner-Appellant, Court for the Western District of
Wisconsin.
v. No. 19-cv-673-wmc
RANDY KEYES, William M. Conley,
Respondent-Appellee. Judge.
ORDER
Shane Johnson appeals from the district court’s denial of his petition for
habeas corpus relief under 28 U.S.C. § 2241 and the saving clause of § 2255(e). He
argues that at his federal sentencing, a prior Michigan cocaine conviction was wrongly
deemed a predicate “serious drug offense,” which triggered an enhancement under the
*
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. 22-1048 Page 2
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We affirm because Johnson has
not satisfied our circuit’s saving-clause test.
Most challenges to a federal conviction or sentence must be brought on direct
appeal or in a motion to vacate. See 28 U.S.C. § 2255(e). But under § 2255(h), only one
motion to vacate may be adjudicated in the sentencing court, with exceptions for when
new evidence proves factual innocence or the prisoner relies on a new constitutional
rule that the Supreme Court has made retroactive. The language of that statute
precludes new rules of statutory interpretation from providing the basis for a successive
§ 2255 motion. See Mangine v. Withers, 39 F.4th 443, 447 (7th Cir. 2022).
Yet we have held that when a successive motion is barred by § 2255(h), the
saving clause of § 2255(e) permits some federal prisoners to seek habeas corpus review
in the district where they are confined, on the ground that § 2255 has proven
“inadequate or ineffective.” Our saving-clause test requires several showings: the claim
rests on a new decision interpreting a statute; the claim could not reasonably have been
raised in earlier proceedings because, for instance, circuit precedent foreclosed it; the
new interpretation applies retroactively on collateral review; and the error amounts to a
miscarriage of justice. See Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016);
In re Davenport, 147 F.3d 605 (7th Cir. 1998). This test may soon change, because on
November 1, 2022, the Supreme Court heard oral argument in Jones v. Hendrix,
No. 21-857 (U.S.), to evaluate the scope of saving-clause review. But because neither
party here asks us to hold Johnson’s case for Jones, we proceed under our current test.
Back in 2011, a federal jury in the Western District of Michigan convicted
Johnson of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). Because of prior
convictions, Johnson was sentenced as an armed career criminal, id. § 924(e), a status
that carried a 15-year minimum sentence (as opposed to the then-10-year maximum for
an unenhanced § 922(g) count). The court also ruled that Johnson was an armed career
criminal under the advisory Sentencing Guidelines, U.S.S.G. § 4B1.4, and imposed
292 months’ imprisonment.
On direct appeal, the Sixth Circuit affirmed. See United States v. Johnson,
No. 11-2598 (6th Cir. Aug. 21, 2013) (unpublished). Later, Johnson failed to obtain relief
under § 2255. See Johnson v. United States, No. 15-2554, 2016 WL 10674029
(6th Cir. Aug. 29, 2016) (denying certificate of appealability).
No. 22-1048 Page 3
Then, in 2019, while at FCI Oxford in Wisconsin, Johnson filed a saving-clause
petition raising two arguments. First, he claimed innocence under Rehaif v. United States,
139 S. Ct. 2191, 2194 (2019), which holds that a § 922(g) conviction requires proof that
the defendant knew he was a member of the relevant class (here, individuals convicted
of a crime punishable by imprisonment for a term exceeding one year) at the time he
possessed the gun. Second, Johnson challenged his ACCA designation.
The Wisconsin-based district court dismissed the petition as meritless. It rejected
the Rehaif claim because Johnson’s prior felonies (including other gun offenses, a drug
crime, and assaults) ruled out any reasonable probability that he did not know he was a
felon when he possessed the gun. The district court also saw in the motion a challenge
to Johnson’s advisory guidelines range, which the court recognized was not cognizable.
See Hanson v. United States, 941 F.3d 874, 878 (7th Cir. 2019); Hawkins v. United States,
706 F.3d 820, 824 (7th Cir.), supplemented on denial of reh’g, 724 F.3d 915 (2013).
What the district court did not discuss was Johnson’s main sentencing argument:
that his statutory enhancement under the ACCA was unlawful. Johnson’s appeal
focuses on this overlooked ACCA challenge. We say no more about the Rehaif theory or
the advisory Guidelines because Johnson’s appellate briefs omit those issues.
As for the ACCA challenge, it fails under our saving-clause test and affords no
basis for remand, regardless of the gap in the district court’s discussion. Recall that our
saving-clause test requires Johnson to point to a relevant change in the interpretation of
a statute. See Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019). To be sure, he cites
Mathis v. United States, 579 U.S. 500 (2016), a Supreme Court decision applying the
burglary clause of the ACCA. But his actual argument does not depend on any change
that Mathis made to the law.
Johnson says that at his federal sentencing, he falsely admitted to having a prior
conviction for delivering cocaine, MICH. COMP. LAWS § 333.7401(1), (2)(a)(iv) (2003),
whereas his real conviction was for simple possession. (The state charging instrument
and plea colloquy refer mainly to delivery, contrary to Johnson’s position—although
the colloquy does include a single reference by the prosecutor to simple possession.)
And simple possession likely is not a predicate “serious drug offense” under 18 U.S.C.
§ 924(e)(2)(A)(ii), the ACCA provision on crimes “involving manufacturing,
distributing, or possessing with intent to manufacture or distribute” an illegal drug.
No. 22-1048 Page 4
Yet if the flaw in Johnson’s federal enhancement is that he admitted to the wrong
prior conviction, then his claim is about the facts and does not depend on any change in
the interpretation of a statute. It therefore does not meet our saving-clause test.
Still, Johnson contends that his petition somehow rests on Mathis’s discussion of
“divisibility.” Mathis and similar precedents sort the parts of criminal statutes into two
categories. Divisible provisions create distinct offenses with distinct elements, such that
jurors at a trial would need to agree on the mode of commission; indivisible provisions
define a single offense that can be committed in multiple ways, such that jurors need
not agree on the means of commission. Mathis, 579 U.S. at 504–05. For instance, in
Mathis the Court held that Iowa’s burglary statute is indivisible with respect to the sort
of space a suspect has broken into; jurors need not agree on whether it was a building or
a vehicle. Id. at 507. And because burglary of a vehicle does not satisfy the burglary
clause of the ACCA (i.e., vehicular burglary covers conduct that federal generic
burglary does not), the indivisibility of the Iowa burglary statute means it is not an
ACCA predicate, even if in real life no vehicle was involved. Id. at 509–14.
In theory, Mathis’s logic can shed light on the divisibility of a state drug law. If
one activity (say, simple possession) covered by an indivisible drug statute is a
mismatch with the federal definition in 18 U.S.C. § 924(e)(2)(A)(ii), then no violation of
the state statute will count as a valid ACCA predicate. But as Johnson concedes, even
after Mathis the Michigan statute at issue remains divisible into distinct crimes based on
the specific drug-related act. United States v. House, 872 F.3d 748, 753 (6th Cir. 2017).
Mathis did not render the Michigan statute indivisible or otherwise change the proper
interpretation of it, so it does not afford Johnson a path to saving-clause review.
True, Johnson’s appellate brief observes that when federal sentencing courts face
a divisible statute, Mathis reminds them to look at the state charging instrument and
plea colloquy to see which variant underpins the prior conviction. Mathis, 579 U.S. at
505–06. From there, Johnson reasons that he may relitigate the meaning of his state
records today and cure the alleged factual error committed at his federal sentencing.
But the reminder he cites from Mathis—about the use of state records when a statute is
divisible—was not a new legal principle. As Mathis explains, reviewing this limited set
of state records was already the practice for federal courts dealing with divisible
statutes. Id. What Mathis corrected was the Eighth Circuit’s improper practice of
applying this approach to indivisible statutes—which is not an issue here. Johnson’s
theory does not depend on a change in law and thus does not satisfy the saving clause.
No. 22-1048 Page 5
Finally, for the first time in his reply brief, Johnson flags a district-court holding
that a Michigan cocaine conviction is not a “controlled substance offense” under certain
federal sentencing provisions because Michigan’s definition of cocaine includes all
stereoisomers while the federal definition is limited to optical and geometric isomers.
See United States v. Lofton, No. 20-20221, 2021 WL 5494782, at *2 (E.D. Mich. Nov. 23,
2021). But Johnson never mentioned isomers in the district court or in his opening brief
here, so any argument along those lines is waived. See Segid v. USCIS, 47 F.4th 545, 548
(7th Cir. 2022). In any event, we have held that similar decisions about drug isomers do
not depend on the Supreme Court’s holding in Mathis. See Gamboa v. Daniels, 26 F.4th
410, 418 (7th Cir. 2022). Instead, a claim along these lines involves a straightforward
comparison between the state definition (here, Michigan’s) and the federal definition of
cocaine. We are aware of no Sixth Circuit precedent that would have foreclosed this
type of argument at the time of Johnson’s conviction, direct appeal, or first § 2255
motion. So, waiver aside, this contention, like the ones in Johnson’s opening brief, does
not open the door to saving-clause review.
AFFIRMED | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487726/ | 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
* 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
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.
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.
No. 22-1969 Page 3
§§ 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
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.
No. 22-1969 Page 4
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
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 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487728/ | IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ELUTIONS CAPITAL VENTURES )
S.A.R.L., NBL FUND I, LP and )
HASHMINE LLC, )
)
Plaintiffs, )
v. )
)
JOHN BETTS, ) C.A. No. 2020-0455-NAC
)
Defendant, )
)
and )
)
NOBLE TALENTS, LLC, )
)
Nominal Defendant. )
ORDER DENYING DEFENDANTS’ APPLICATION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL
1. Plaintiffs are preferred members of Nominal Defendant Noble Talents,
LLC (the “Company”). Defendant John Betts founded the Company and served as
its CEO. Plaintiffs allege that Betts breached his fiduciary duties during the
Company’s sale process and interfered with and ultimately thwarted a potential deal.
2. Betts has embarked on a campaign of scorched-earth litigation that has
been delaying the case and taxing judicial and party resources. This has included 61
non-party subpoenas, six motions for commission, a motion for judgment on the
pleadings, a motion to dismiss, a motion for reargument, and most relevant here,
three requests for leave to amend or add counterclaims.
3. In their latest effort to prevent the case from advancing beyond the
pleading stage, Defendants 1 have applied for certification of an interlocutory appeal
(the “Application”).2 Defendants seek review of my October 24, 2022, oral decision
granting them leave to amend their answer and denying their third attempt to amend
and add counterclaims (the “Order”).3 Plaintiffs oppose the Application.4
4. The Application quotes from the wrong transcript, mischaracterizes the
Order’s scope and reasoning, and asserts grounds for appellate review that were not
raised previously. The Order did not decide a substantial issue of material
importance and none of the certification factors would support immediate appeal
anyway. The Application, if granted, would reward Defendants’ over the top
conduct and freeze this two-year-old case at the pleading stage. So I will deny it.
1
Betts’s counsel also acts as Company counsel and has filed papers indicating that the
Company, although named as a Nominal Defendant, joins Betts in defending the case. So
I refer to them together where apt. When asked about this unusual posture, Betts’s counsel
stated that the Company is insolvent and has no source of funds to engage separate counsel.
2
See Dkt. 131 (Defs.’ Appl. for Certification of Interlocutory Appeal) (cited as “Appl.”).
3
See Ex. 1 to id. (Tr. of Oral Ruling Granting in Part and Den. in Part Defs.’ Mot. to Amend
Ans. and to Add Countercls.) (cited as “Order”).
4
See Dkt. 132 (Pls.’ Opp’n to Appl.).
2
FACTUAL BACKGROUND
5. On March 30, 2021, Betts answered the complaint, raised defenses, and
brought four counterclaims.5 Then he served over five dozen subpoenas.6 Some of
those subpoenas were served in June 2021 (the “June Subpoenas”). The documents
yielded by the June Subpoenas allegedly were not produced until the first week of
October 2021 (the “October Records”).
6. Plaintiffs moved under Rule 12(b)(6) to dismiss Betts’s counterclaims.
Before the June Subpoenas returned, Betts opposed the motion. Betts alternatively
requested dismissal without prejudice. The request was unelaborated; it did not raise
the possibility that the June Subpoenas might uncover supportive evidence.7
7. On November 8, 2021, the Court heard argument on Plaintiffs’ motion
to dismiss.8 Betts did not discuss the October Records at the hearing.
5
See Dkt. 30 (Ans. and Verified Countercls.).
6
See Dkt. 127 (Notice of Service of Defs.’ Third-Party Subpoena Accounting); see also
Dkt. 122 ¶ 2 (Order Granting in Part and Den. in Part Pls.’ Mot. for Protective Order).
7
See Dkt. 53 at 48 (Def.’s Combined Br. in Opp’n to Pls.’ Mot. to Dismiss and in Supp. of
Def.’s Mot. to Dismiss and Mot. for J. on Pleadings).
8
See Dkt. 72 (Hr’g Tr.). The Court also heard argument on Betts’s motion to dismiss and
motion for judgment on the pleadings. Id.
3
8. On February 2, 2022, the Court dismissed all Betts’s counterclaims
with prejudice. 9 At no point between November and February did Betts alert the
Court to the October Records.
9. Betts moved for reargument five days later. 10 He also renewed his
request for leave to amend. As support for leave, Betts averred elliptically that he
had received information from conversations with Company insiders that could
support his counterclaims. 11 Again, he did not reference the October Records.
10. The Court denied reargument. 12 Citing Court of Chancery Rule
15(aaa), the Court also denied Betts’s second request for leave to amend.13
11. Undeterred, Defendants tried once more. On July 1, 2022, they moved
to amend their answer and to add six counterclaims (the “Motion”).14 Two of the
proposed counterclaims were concededly dismissed back in February.15 The four
9
See Dkt. 76 (Tr. of Oral Ruling Den. Def.’s Mot. to Dismiss and Mot. for J. on Pleadings
and Granting Pls.’ Mot. to Dismiss). The Court also denied Betts’s motions. Id.
10
See Dkt. 77 (Def.’s Mot. for Rearg.).
11
See id. ¶ 35.
12
See Dkt. 80 (Order Den. Def.’s Mot. for Rearg.).
13
See id.
14
See Dkt. 94 (Defs.’ Mot. to Amend Ans. and to Add Countercls.) (cited as the “Motion”).
15
See id. ¶ 32.
4
remaining counterclaims repackaged Betts’s dismissed allegations by adding words
like “conspiracy” and splitting his former theories into separate counts.16
12. As support for their unabashed attempt to circumvent Rule 15(aaa) and
the Court’s rulings, Defendants cited the October Records. The Motion was the first
time Defendants ever mentioned the October Records. At that point, Defendants
possessed the October Records for nine months.
13. Defendants contended that the October Records contained “new
evidence” to support their counterclaims. But Defendants did not identify anything
“new” or material in the October Records. They still have not.17
14. On October 7, 2022, I heard oral argument on the Motion. 18
15. I issued the Order on October 24, 2022.
16. As to the concededly dismissed counterclaims, the Order held that
Defendants did not demonstrate a “compelling reason” within the meaning of settled
precedent to vacate the prior dismissals with prejudice.19 The Order explained that
See id. ¶¶ 26–41; compare App. 1 to id. ¶¶ 103–18, 126–37 (Proposed Countercls.), with
16
Dkt. 30 ¶¶ 55–76 (Verified Countercls.).
17
See, e.g., Appl. ¶ 2 (generally referencing “newly-discovered evidence” without
explaining whether or in what ways the October Records contained or led to discovery of
information unknown or unsuspected at the time of the original counterclaims).
18
See Ex. 2 to Appl. (Tr. of Oral Arg. on, inter alia, the Motion).
19
See Order at 8–10.
5
this result was fact-specific and based on Defendants’ failure to articulate the
significance of the October Records or to introduce them at any time during the nine
months that preceded the Motion.
17. As to the “new” counterclaims, the Order held that Rule 15(aaa) barred
Defendants from recasting dismissed allegations in the guise of renamed counts. 20
18. The Application followed. The Application omits the procedural
history recited above. It misleadingly quotes from the October 7 oral argument
transcript as if it were the Order.21 And it deploys hyperbolic rhetoric in an effort to
portray a straightforward procedural decision as a catastrophe that will imperil the
future of Delaware corporate law. 22 This approach enables Defendants to sidestep
the Order’s reasoning, raise arguments that were not presented in the Motion, and
misattribute to the Order legal conclusions that are nowhere to be found.
20
See id. at 11–15. The Order therefore did not reach the parties’ Rule 15(a) arguments.
21
See, e.g., Appl. ¶ 30.
22
See, e.g., id. ¶ 10 (“The Order serves to erode public faith . . . and causes upheaval in the
defense bar.”); id. ¶ 44 (“Moreover, the Order threatens irreparable harm to litigants . . . .
If Delaware Courts [sic] will not protect the ability of plaintiffs and defendants to have
equal opportunity to prepare and amend claims in fiduciary duty cases, potential corporate
defendants will have an incentive to use the laws of other states . . . to protect their
interests.”); id. ¶ 44 [sic] (“If the Order stands, any future defendants in [sic] a fiduciary
duty claim will face an impossible decision . . . .”).
6
19. Even so, the Application fails. The Order did not decide a substantial
issue of material importance. And none of the certification factors Defendants
invoke would outweigh the costs that interlocutory appeal would impose.
LEGAL ANALYSIS
20. Supreme Court Rule 42 governs certification of interlocutory appeals.
“The purpose of Rule 42 is to prevent wasteful piecemeal litigation from
overwhelming the docket of the Supreme Court.” 23 As a result, Rule 42 “is not an
appropriate vehicle for re-litigating unsuccessful arguments preserved for . . . direct
appeal.” 24 “Otherwise, interlocutory review would be appropriate in every case in
which a losing party contends the Court committed legal error.”25
21. Interlocutory appeals are “generally not favored.” 26 They “disrupt the
normal procession of litigation, cause delay, and can threaten to exhaust scarce party
and judicial resources.” 27 So a Rule 42 application cannot be certified unless it clears
23
In re Del. Pub. Schs. Litig., 2022 WL 1220075, at *9 (Del. Ch. Apr. 26, 2022) (alteration
and internal quotation marks omitted), appeal refused, 277 A.3d 296 (Del. 2022) (TABLE).
24
Northrop Grumman Innovation Sys., Inc. v. Zurich Am. Ins. Co., 2021 WL 772312, at
*2 (Del. Super. Mar. 1, 2021), appeal refused sub nom., Nat’l Union Fire Ins. Co. v.
Northrop Grumman Innovation Sys., Inc., 248 A.3d 922 (Del. 2021) (TABLE).
25
Legion P’rs Asset Mgmt., LLC v. Underwriters at Lloyds London, 2020 WL 6875211, at
*3 (Del. Super. Nov. 23, 2020), appeal refused, 242 A.3d 601 (Del. 2020) (TABLE).
26
Supr. Ct. R. 42 cmt.
27
Supr. Ct. R. 42(b)(ii).
7
two “rigorous” hurdles. 28 First, the order must have “decide[d] a substantial issue
of material importance that merits appellate review before a final judgment.”29
Second, there must be “substantial benefits” to granting the application that “will
outweigh the certain costs that accompany an interlocutory appeal.”30
The Substantial Issue Requirement
22. “The ‘substantial issue’ requirement is met when an interlocutory order
decides a main question of law which relates to the merits of the case, and not to
collateral matters.”31 The Order does not meet the substantial issue requirement.
23. A decision granting or denying leave to amend is not part of a merits
determination.32 It is collateral to a merits determination. In the Rule 15(aaa)
context, denial of leave to amend or re-add a previously dismissed claim is collateral
to a merits determination on the claim that was made in the motion to dismiss.
28
TowerHill Wealth Mgmt., LLC v. Bander Fam. P’ship, L.P., 2008 WL 4615865, at *2
(Del. Ch. Oct. 9, 2008), appeal refused, 962 A.2d 256 (Del. 2008) (TABLE).
29
Supr. Ct. R. 42(b)(i).
30
Supr. Ct. R. 42(b)(ii).
31
Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. Ch. July 22, 2008),
appeal refused, 956 A.2d 31 (Del. 2008) (TABLE); accord Donald J. Wolfe, Jr. & Michael
A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery §
18.04[d], at 18-15 (2d ed. & Dec. 2020 Supp.) (“Only a ruling by the Court of Chancery
on the merits of the controversy is likely to meet the requirements of Rule 42.”).
32
See, e.g., Phillips v. State, 282 A.2d 618, 618 (Del. 1971); AluminumSource, LLC v.
LLFlex, LLC, 2021 WL 2416563, at *3 (Del. Super. June 24, 2021), appeal refused, 254
A.3d 397 (Del. 2021) (TABLE); Brown v. Wilm. Zoning Bd., 2007 WL 2122046, at *2
(Del. Super. July 23, 2007), appeal refused, 947 A.2d 1120 (Del. 2007) (TABLE).
8
24. A decision holding otherwise would endorse immediate appeals from
any adverse outcome on a Rule 12(b)(6) motion that does not result in a final
judgment.33 That type of appellate springboard would undermine the purpose of
Rule 15(aaa) and Rule 42. Rule 15(aaa) is designed to curb seriatim motions to
amend.34 Rule 42 is designed to avoid “fragmentation” of cases into multiple
appeals.35 Together, both Rules are designed to conserve litigant and judicial
resources. Granting the Application would do the opposite.
25. “Interlocutory appeals should be exceptional, not routine . . . .”36 The
Delaware Supreme Court reserves interlocutory review for “extraordinary” cases.37
This is not one of them. Accordingly, I would deny the Application on the
substantial issue requirement alone.
33
See US Dominion, Inc. v. Fox News Network, LLC, 2022 WL 100820, at *4 (Del. Super.
Jan. 10, 2022) (identifying analogous concern about non-final pleading-stage motion
decisions and denying certification), appeal refused, 270 A.3d 273 (Del. 2022) (TABLE).
34
See, e.g., Braddock v. Zimmerman, 906 A.2d 776, 783 (Del. 2006); La. Mun. Police
Emps.’ Ret. Sys. v. Pyott, 46 A.3d 313, 334 (Del. Ch. 2012), rev’d on other grounds, 74
A.3d 612 (Del. 2013); Stern v. LF Cap. P’rs, LLC, 820 A.2d 1143, 1146 (Del. Ch. 2003).
35
Castaldo v. Pittsburgh-Des Moines Steel Co., 301 A.2d 87, 87 (Del. 1973).
36
Supr. Ct. R. 42(b)(ii).
37
Ryan v. Gifford, 2008 WL 43699, at *4 (Del. Ch. Jan. 2, 2008) (internal quotation marks
omitted).
9
The Multi-Factor Balancing
26. The Order did not address a substantial issue of material importance.
Even if it did, that would not necessarily mean that the Order “merits appellate
review before a final judgment.” 38 If the substantial issue requirement is met, the
Court next must consider whether the benefits of interlocutory review would
outweigh its costs. Rule 42(b)(iii) specifies eight factors to guide this assessment.39
27. Having devoted the bulk of their energy to mischaracterizing the Order,
Defendants give little attention to the Rule 42 factors. On the last full page of the
Application, Defendants list three factors as supporting certification. 40 None does.
28. Defendants first invoke Rule 42(b)(iii)(A). This factor considers
whether the Order resolved a novel question of law for the first time in Delaware. It
did not. The Order applied settled Rule 15(aaa) precedent to a tattered procedural
history involving parties who repeatedly tried to revive counterclaims that were
dismissed with prejudice. “The mere application of long-held precedent to new facts
38
Supr. Ct. R. 42(b)(i).
39
See Supr. Ct. R. 42(b)(iii)(A)–(H).
40
See Appl. ¶¶ 45–47. By selecting only three of eight factors, Defendants concede that
the remaining five do not support certification. See, e.g., In re Carvana Co. S’holders
Litig., 2022 WL 4661841, at *2 (Del. Ch. Oct. 3, 2022), appeal refused sub nom., Garcia
v. Franchi, 2022 WL 11121788 (Del. Oct. 19, 2022) (TABLE). So I do not discuss those.
10
does not make an order worthy of [interlocutory] appeal.”41 Accordingly, Rule
42(b)(iii)(A) does not support certification.
29. Defendants next invoke Rule 42(b)(iii)(B). This factor considers
whether the Order conflicts with other trial court decisions. It does not. The Order
applied settled law to reach a result that is consistent with decisions of this Court.
30. To create a conflict, Defendants suggest that the Order overlooked
Sciabacucchi v. Malone. 42 It did not. The Order analyzed Sciabacucchi and
explained why it was distinguishable.43 The Order’s analysis tracks Rule 15(aaa)
decisions rebuffing efforts to restyle dismissed claims as new counts. 44 Defendants’
disagreement with the Order’s reasoning is not a basis for interlocutory review.
31. Facing an absence of conflicting trial court decisions, Defendants pivot
to an appellate decision, RBC Capital Markets, LLC v. Education Loan Trust IV,45
and Court of Chancery Rule 13. But Defendants did not argue either one in the
Motion.46 And a party cannot on appeal “attack[] a judgment on a theory [that the
41
In re Carvana Co. S’holders Litig., 2022 WL 4661841, at *3 (quoting Ryan, 2008 WL
43699, at *6).
42
2021 WL 3662394 (Del. Ch. Aug. 18, 2021).
43
See Order at 18–19.
44
See In re USG Corp. S’holder Litig., 2021 WL 930620, at *2–3 (Del. Ch. Mar. 11, 2021).
45
87 A.3d 632 (Del. 2014).
46
Much like they did in the Motion, it appears that Defendants recognized “better”
arguments after their initial arguments were rejected. See Order at 11:20–23 (observing,
11
party] failed to advance before the trial judge.”47 Accordingly, neither RBC Capital
nor Rule 13 supplies a valid basis for interlocutory appeal.
32. The Order does not conflict with RBC Capital or Rule 13 anyway.
33. RBC Capital is not a Rule 15(aaa) decision. In RBC Capital, the
Delaware Supreme Court considered whether contract claims brought in the
Superior Court were barred under res judicata when this Court previously dismissed
claims arising from the same agreement. In examining the elements of res judicata,
the Supreme Court observed that dismissals with prejudice operate as final
judgments. 48 On the case’s facts, Rule 15(aaa) required dismissal with prejudice.
So the Supreme Court found that this Court’s decision was a final judgment.49 That
conclusion is the only place where RBC Capital references Rule 15(aaa).
34. In Defendants’ view, RBC Capital held that Rule 15(aaa) does not
apply “where the underlying evidence needed for the party to ‘discover its claim’
was not available until briefing began.”50 Defendants misread RBC Capital.
as to the “new” counterclaims, that “[D]efendants appear to have used [the Court’s
dismissal] rulings as a roadmap for correcting the deficiencies in their original
counterclaims.”). This guess-and-test method is a recurring theme in Defendants’ filings.
47
Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Est. Fund, 68 A.3d
665, 678 (Del. 2013) (internal quotation marks omitted); see Supr. Ct. R. 8 (precluding
parties from raising new arguments on appeal).
48
See RBC Cap., 87 A.3d at 643.
49
See id.
50
Appl. ¶ 9 (quoting id. at 646).
12
35. The “discover its claim” language stems from a separate part of the
RBC Capital decision. RBC Capital used that language when considering whether,
under res judicata, the appellant brought the “same claim” in the Superior Court that
the appellant brought in this Court.51 The Superior Court claims involved unpaid
interest on a loan. The unpaid interest did not accrue until after the Court of
Chancery action was dismissed. The Supreme Court thus held that res judicata
would not “preclude [the] portion of [the appellant’s] claim arising from breaches
[of the interest provisions] that occurred after” the Court of Chancery action was
dismissed. 52 In other words, given the structure of the loan, the appellant may not
have “discover[ed] its claims” until after the Court of Chancery action was over.53
36. RBC Capital is a res judicata decision that addresses a situation where
a party brings claims in one court that are similar to claims that were dismissed by
another court. RBC Capital does not address a situation where a party tries to
reassert claims in one case that were dismissed earlier in the same case. Rule 15(aaa)
addresses that situation.
51
See RBC Cap., 87 A.3d at 645–46.
52
Id. at 647.
53
See id. at 646–47.
13
37. Defendants know that. Plaintiffs—not Defendants—cited RBC Capital
in their briefing on the Motion. 54 Defendants correctly replied that res judicata
would be irrelevant to my analysis:
Plaintiffs’ Opposition hinges on the argument that res judicata applies . . . . It
is axiomatic that res judicata applies to successive litigations, not within the
same case. The true question here is whether Rule 15(aaa) or Rule 15(a)
applies to the new counterclaims. 55
Indeed, counsel for Defendants reemphasized this point during oral argument:
In the opposition, [Plaintiffs] say[] . . . that res judicata applies. As we
mentioned in our reply, res judicata applies to successive litigations [not]
within a single litigation. There’s a mechanism built into the Chancery’s
rules. That’s Rule 15(a) and Rule 15(aaa).56
It is too late now to change course. The Order does not conflict with RBC Capital.
38. To propose a different conflict, Defendants offer Rule 13. They say
that the Order violates Rule 13 because the Order “stated that any claims that arise
from the same transaction or occurrence cannot be repleaded.”57 It did not. In fact,
the phrase “same transaction or occurrence” does not appear anywhere in the Order.
54
See Dkt. 107 ¶ 6 & n.20 (Pls.’ Opp’n to the Motion).
55
Dkt. 113 ¶¶ 1–2 (Defs.’ Reply in Supp. of the Motion).
56
Ex. 2 to Appl. at 4:17–23 (Tr. of Oral Arg. on, inter alia, the Motion).
57
Appl. ¶ 7; see Appl. ¶¶ 30–31 (blending Rule 13(a) and (e) and asserting the same).
14
39. Defendants, of course, could not find this language in the Order. So
they instead quote from the October 7 oral argument transcript. 58 Worse, they cite
the Order as if it were the source of the quote. 59 That is disappointing.
40. Aside from their misrepresentations, Defendants urge that the Order
misconstrued Rule 15(aaa) because Rule 13, not Rule 15, governs the procedure for
amending counterclaims. As observed, this argument was not raised in the Motion.60
Even so, this argument is meritless. As a matter of hornbook law, Rule 15 applies
equally to requests for leave to amend claims and counterclaims.61 Otherwise,
counterclaimants would be exempt from Rule 15(aaa). Now that would frustrate
“the settled expectations of parties who have incorporated under Delaware law
expecting equal procedural protections.”62
58
See id. ¶ 30. Adding insult to injury, Defendants’ quote does not contain the phrase
“same transaction or occurrence” either.
59
See id. (misattributing quote to “Ex. 1,” i.e., the Order).
60
If anything, Defendants’ new argument contradicts the Motion. See Motion ¶¶ 28–29
(“This Court has previously held that Rule 15(a) . . . applies to motions for leave to amend
[sic] to add claims . . . . Under Rule 15(a)’s liberal pleading standard, this Court should
grant . . . leave to add [the ‘new’] [c]ounterclaims.”).
61
See Charles Alan Wright & Arthur R. Miller, 6 Federal Practice and Procedure §§ 1430,
1475, 1479, Westlaw (3d ed. database) (last updated Apr. 2022); cf. Charter Commc’ns
Operating, LLC v. Optymyze, LLC, 2021 WL 1811627, at *20 (Del. Ch. Jan. 4, 2021)
(“This case does not implicate Rule 15(aaa) for the simple reason that [counterclaim
plaintiff] has not sought to amend its counterclaims.”).
62
Appl. ¶ 43 [sic].
15
41. In sum, Rule 42(b)(iii)(B) does not support certification.
42. Finally, Defendants invoke Rule 42(b)(iii)(H). This factor considers
whether certifying the Order would serve the public interest. It would not.
43. Defendants insist that interlocutory review would serve the public
interest because the Order “deprives [them] of their right[]” to bring counterclaims.63
But, as the Order recounted, Defendants filed their original counterclaims before
issuing the June Subpoenas. Then they opposed Plaintiffs’ Rule 12(b)(6) motion
instead of waiting for the October Records to be produced. Even when they were,
Betts did not mention them before or during the November 2021 hearing. Nor did
Betts cite them in his February 2022 reargument motion. And Defendants did not
claim that the October Records contained “new evidence” at any time prior to filing
the Motion in July 2022.
44. Litigation choices have consequences. By taking the steps they did,
Defendants ran the risk that their counterclaims would be dismissed with prejudice.
Defendants’ strategies, not the Order, caused any “injustice” alleged here.
45. After considering all the Rule 42 factors, I may deny the Application if,
based on my “own assessment of the most efficient and just schedule to resolve the
case,” I find that interlocutory review would not be in interests of justice.64
63
Id. ¶ 47.
64
Supr. Ct. R. 42(b)(iii).
16
46. Based on my own assessment of the most efficient and just route to
resolution of this case, I find that interlocutory appeal would not be in the interests
of justice. Given Defendants’ conduct throughout this litigation—including in the
Application itself—their bid for interlocutory review is best understood as a
“dilatory tactic, devoid of merit, that already has wasted trial court resources, would
waste appellate resources . . . and would open the door to piecemeal appeals that
would undermine the normal process of litigation.”65 Accordingly, and for all the
foregoing reasons, I DENY the Application.
IT IS SO ORDERED.
/s/ Nathan A. Cook
Vice Chancellor Nathan A. Cook
Dated: November 18, 2022
65
Deutsche Bank AG v. Devon Park Bioventures, L.P., 2019 WL 3227633, at *3 (Del. Ch.
July 15, 2019), appeal refused, 214 A.3d 449 (Del. 2019) (TABLE).
17 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487729/ | 2022 IL App (1st) 200600
FIFTH DIVISION
November 18, 2022
Nos. 1-20-0600 & 1-20-0601 (cons.)
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
In re APPLICATION OF ) Appeal from the Circuit Court
THE COUNTY TREASURER ) of Cook County.
)
(Wheeler Financial, Inc., )
)
Petitioner-Appellee, )
) No. 19 COVT 862
v. ) No. 19 COVT 865
)
Maria Pappas, Cook County Treasurer and ex officio)
Cook County Collector, )
) Honorable Patrick T. Stanton
Respondent-Appellant). ) Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Cunningham and Delort concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Wheeler Financial, Inc. (Wheeler), filed petitions for sales in error under section
21-310(a)(5) of the Property Tax Code (Code) (35 ILCS 200/21-310(a)(5) (West 2016)),
contending that the Cook County Treasurer and ex officio Cook County Collector made errors
relating to two properties on the delinquency list sold to Wheeler. The circuit court granted the
petitions, finding that the corresponding tax sales were sales in error. Respondent, the Cook County
Nos. 1-20-0600 & 1-20-0601 (cons.)
Treasurer and ex officio Cook County Collector (Collector), appeals, asserting that no error
occurred. We agree with the Collector and reverse.
¶2 I. BACKGROUND
¶3 Initially, there was some confusion about which document contained the alleged errors at
issue in this appeal. The parties ultimately agreed that the subject document was the delinquency
list, also called the delinquency bid list. This document is available for sale from the Collector’s
website (see Cook County Treasurer Official Tax Sale Auction Site, www.cooktaxsale.com (last
visited Nov. 9, 2022) [https://perma.cc/YJL3-48AE]) and contains a list of properties eligible for
sale at the Collector’s annual tax sale. Using the delinquency list, Wheeler purchased the
delinquent taxes of two properties at the tax sale for 2017 taxes that was held in 2019. Later,
Wheeler filed two petitions for sales in error under section 21-310(a)(5) of the Code (35 ILCS
200/21-310(a)(5) (West 2016)), contending that the delinquency list inaccurately stated the
classifications for two properties. The delinquency list stated that the properties were class 2-03,
meaning that they had residences, but in 2019, the properties were class 1-00, meaning that they
were vacant lots. Attached to the petitions were printouts of the following information from the
delinquency list for the two properties 1:
Volume Classification PIN TaxType TaxYear TaxCode
180 203 31-26-416- 0 2017 32021
008-0000
Volume Classification PIN TaxType TaxYear TaxCode
304 203 26-31-419- 0 2017 70002
002-0000
1
The tax payers’ names were also included, but that information is omitted for this appeal.
-2-
Nos. 1-20-0600 & 1-20-0601 (cons.)
Also attached to the petitions were copies of the assessor’s property characteristics in 2019 for
both properties, which indicated that the properties were vacant lots in 2019. Wheeler asserted that
if the Collector intended to provide a two-year-old classification for the properties advertised for
sale, she should say so.
¶4 In response, the Collector asserted in part that the alleged misdescription did not amount
to an error under section 21-310(a)(5) of the Code. The listed classification was correct for what
was sold—a lien that attached to the subject properties for the 2017 tax year, when the properties
were classified as 2-03. It appeared that between 2018 and 2019, the improvements on the
properties were demolished.
¶5 After a hearing, the court granted the petitions for sales in error. In an oral ruling, the court
stated in part that the Collector advertised property and not a lien. Nothing in the documentation
and sale made it clear that the classification was for the year of the tax sale. The court ordered the
Collector to issue refunds to Wheeler with interest. The Collector appealed.
¶6 II. ANALYSIS
¶7 On appeal, the Collector contends that the delinquency list has no legal role in the annual
tax sale and is a discretionary product offered by the Collector to anyone who wants to purchase
it. The Collector also argues that it has complete discretion on what, if any, property classification
information is provided in the delinquency list.
¶8 As context, each year, the Collector holds a tax sale that auctions tax liens on properties
with delinquent tax bills. Wheeler Financial, Inc. v. Law Bulletin Publishing Co., 2018 IL App
(1st) 171495, ¶ 4. In Cook County, the taxes offered at the tax sale are from two years before the
year in which the sale is held. 35 ILCS 200/21-150 (West 2016). So, the taxes that were delinquent
in 2017 were sold in 2019. At the tax sale, the tax buyers purchase a tax lien and pay the delinquent
-3-
Nos. 1-20-0600 & 1-20-0601 (cons.)
taxes owed by the property owner. Wheeler Financial, Inc., 2018 IL App (1st) 171495, ¶ 4. Tax
buyers receive a tax sale certificate, which is a form of negotiable instrument that represents a lien
on the property in favor of the tax buyer. In re Application of the County Treasurer of Cook County,
185 Ill. App. 3d 701, 703 (1989).
¶9 Section 21-310 of the Code sets out the process for a sale in error, which undoes a tax sale.
35 ILCS 200/21-310 (West 2016). A claimant seeking a sale in error “ ‘[asks] the circuit court to
undo the sale of a specific parcel’s taxes for an enumerated reason.’ ” In re Application of the
County Treasurer & ex officio County Collector of Warren County, 2017 IL App (3d) 160396, ¶ 8
(quoting Bueker v. Madison County, 2016 IL App (5th) 150282, ¶ 50). Here, Wheeler invoked the
reason found in section 21-310(a)(5) of the Code, which states:
“(a) When, upon application of the county collector, the owner of the certificate of
purchase, or a municipality which owns or has owned the property ordered sold, it appears
to the satisfaction of the court which ordered the property sold that any of the following
subsections are applicable, the court shall declare the sale to be a sale in error:
***
(5) the assessor, chief county assessment officer, board of review, board of
appeals, or other county official has made an error (other than an error of judgment
as to the value of any property)[.]” 35 ILCS 200/21-310(a)(5) (West 2016).
¶ 10 If a sale is declared to be a sale in error, the county collector refunds the amount paid to
the tax buyer. Id. § 21-310(d).
¶ 11 There is no dispute that the properties were correctly classified in 2017 as having
residences. The properties apparently became vacant lots before the tax sale held in 2019. The
issue is whether the use of the properties’ 2017 classifications in the delinquency list for the tax
-4-
Nos. 1-20-0600 & 1-20-0601 (cons.)
sale held in 2019 was an error under section 21-310(a)(5) of the Code, which raises a matter of
statutory interpretation that we review de novo. Tillman v. Pritzker, 2021 IL 126387, ¶ 17
(statutory interpretation is a question of law that is subject to de novo review).
¶ 12 Wheeler initially contends that this appeal is moot because the Collector already issued
refunds to Wheeler and cancelled the tax certificates. Wheeler also notes that the Collector did not
seek or obtain a stay of the circuit court’s judgment.
¶ 13 A case on appeal becomes moot when intervening events have made it impossible for the
reviewing court to grant effective relief to the complaining party. Felzak v. Hruby, 226 Ill. 2d 382,
392 (2007). Generally, Illinois courts “do not decide moot questions, render advisory opinions, or
consider issues where the result will not be affected regardless of how those issues are decided.”
In re Alfred H.H., 233 Ill. 2d 345, 351 (2009).
¶ 14 Though the Collector cannot recoup the money that was refunded, we will address the
merits of this appeal because the public interest exception to the mootness doctrine applies. This
exception allows a court to reach the merits of a case that would otherwise be moot “if the question
presented is of a public nature, an authoritative resolution of the question is desirable for the
purpose of guiding public officers, and the question is likely to recur.” Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 44. The exception is narrowly construed and requires a clear
showing of each criterion. People v. Horsman, 406 Ill. App. 3d 984, 986 (2011).
¶ 15 All three criteria are met here. The issue on appeal involves statutory construction, which
“is of broad public interest and therefore of a public nature.” Id. Also, as the Collector states, “[t]ax
revenues are literally the lifeblood of government.” Rosewell v. Chicago Title & Trust Co., 99 Ill.
2d 407, 416 (1984). The second criterion is met because our research has not found, and the parties
have not provided, any cases that consider whether information on a delinquency list can be the
-5-
Nos. 1-20-0600 & 1-20-0601 (cons.)
basis for a sale in error. Lastly, the issue is likely to recur. The Collector notes that in one week in
May 2022, there were 85 sale-in-error petitions on the sale-in-error call. Of those, 34 alleged an
error by a county official, and 11 of those 34 petitions were filed by Wheeler. The public interest
exception applies, and we will turn to the merits of the appeal.
¶ 16 When construing a statute, our aim is to ascertain and give effect to the legislature’s intent,
and the best indicator of that intent is the plain and ordinary meaning of the statutory language.
State ex rel. Leibowitz v. Family Vision Care, LLC, 2020 IL 124754, ¶ 34. If the language is clear
and unambiguous, it is given effect as written without using other aids of statutory interpretation.
Tillman, 2021 IL 126387, ¶ 17. We also consider the language in the context of the entire statute,
the reason for the law, the problem sought to be remedied, the goals to be achieved, and the
consequences of construing the statute one way or another. Carmichael v. Laborers’ & Retirement
Board Employees’ Annuity & Benefit Fund, 2018 IL 122793, ¶ 35.
¶ 17 The Code does not explicitly mention a delinquency list or detail the requirements for such
a list. Section 21-118 of the Code appears to refer to a different list, stating that at least 10 days
before a tax sale, the county collector may post on her website a list of all properties that are
eligible to be sold at the sale. 35 ILCS 200/21-118 (West 2016). That list must include the street
address on file and the property identification number assigned to the property. Id. A Cook County
ordinance makes note of a delinquency list, providing that the county treasurer “shall charge a fee
*** for furnishing a computer printout, ***, and a fee *** for the use of a magnetic tape ***, each
containing a listing of all properties delinquent in the payment of general property taxes and/or
special assessments, for both the annual general tax sale and the scavenger tax sale.” Cook County
Ordinance No. 82-O-26 (approved Sept. 20, 1982). Neither the Code nor the applicable ordinance
-6-
Nos. 1-20-0600 & 1-20-0601 (cons.)
states that a delinquency list must include a property’s classification, much less which
classification should be listed.
¶ 18 Whether to include a property’s classification, and which classification to include, falls
within the Collector’s discretion. The General Assembly gave county collectors the duty to collect
taxes, and the treasurers of all counties were designated as the collectors. Lake County Board of
Review v. Property Tax Appeal Board of Illinois, 119 Ill. 2d 419, 427 (1988). The General
Assembly’s directives are “sufficient to constitute a lawful delegation of authority to an
administrative agency.” Id. “The purpose of a tax sale is for the county to collect delinquent taxes
at the lowest cost of redemption.” Phoenix Bond & Indemnity Co. v. Pappas, 309 Ill. App. 3d 779,
787 (1999), aff’d, 194 Ill. 2d 99 (2000). When the General Assembly gave county collectors the
power to conduct tax sales, it also gave collectors “the authority to do all that is reasonably
necessary to execute that power.” Pappas, 194 Ill. 2d at 105. “[T]he word ‘necessary’ is a word of
great flexibility and may mean ‘absolutely necessary,’ ‘indispensable,’ or, less restrictively,
‘expedient’ or ‘reasonably convenient.’ ” Lake County Board of Review, 119 Ill. 2d at 427-28.
Including the properties’ classifications as of 2017 on the delinquency list was an expedient and
reasonably convenient means of selling delinquent taxes. As the Collector notes, a property’s
classification can change, and the decision to include the classification for the delinquent tax year
provides consistency for potential tax buyers. Such an approach is also logical, as the classification
matches the year for which the taxes were sold. To require that the Collector provide the property
classification as of the year the tax sale is held would impose an extra burden on the Collector,
who would have to investigate whether individual properties on a delinquency list had changed in
the two years since the taxes became delinquent. Given that the Code does not even mention a
delinquency list, much less what information should be included, creating such a requirement
-7-
Nos. 1-20-0600 & 1-20-0601 (cons.)
would exceed the bounds of both the law and fairness. Further, our interpretation is consistent with
the purpose of the sale in error statute, which relieves tax buyers “ ‘from the effect of caveat emptor
purchases at void tax sales.’ ” In re Application of the County Treasurer & ex Officio County
Collector of Warren County, 2017 IL App (3d) 160396, ¶ 10 (quoting La Salle National Bank v.
Hoffman, 1 Ill. App. 3d 470, 476 (1971)). Without the right of refund provided by the sale in error
statute, “ ‘the [tax buyer], caught by the failure of the County officers to delete from the delinquent
list properties exempt or on which the tax was already paid or doubly assessed or badly described,
would suffer the loss of his entire investment.’ ” Id. (quoting Hoffman, 1 Ill. App. 3d at 476). No
relief was needed here. The properties were correctly described as of the year that the taxes were
delinquent. The tax buyers received what they paid for—a tax lien for the 2017 tax year.
¶ 19 The 2017 classification was a proper piece of information to include on the delinquency
list for the tax sale held in 2019. There was no error under section 21-310(a)(5) that could be the
basis for a sale in error.
¶ 20 III. CONCLUSION
¶ 21 For the foregoing reasons, the judgment of the circuit court is reversed.
¶ 22 Reversed.
-8-
Nos. 1-20-0600 & 1-20-0601 (cons.)
In re Application of the County Treasurer, 2022 IL App (1st) 200600
Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 19-COVT-
862, 19-COVT-865; the Hon. Patrick T. Stanton, Judge,
presiding.
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil,
for Jonathon D. Byrer, and Kathleen A. Murphy, Assistant State’s
Appellant: Attorneys, of counsel), for the People.
Attorneys Jeffrey S. Blumenthal, of Slutzky & Blumenthal, and David R.
for Gray, of Gray Law Offices, both of Chicago, for appellee.
Appellee:
-9- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487730/ | Gen. 117] 117
PUBLIC FINANCE
STATE DEBT – WHETHER SUBJECT TO APPROPRIATION BONDS
AND LEASES QUALIFY AS STATE “DEBT” WITHIN THE
MEANING OF ARTICLE III, § 34 OF THE MARYLAND
CONSTITUTION
November 16, 2022
The Honorable Dereck E. Davis
Maryland State Treasurer
Article III, Section 34 of the Maryland Constitution places
certain restrictions on the State’s ability to incur debt. That
provision, broadly speaking, prohibits the General Assembly from
contracting debt unless the debt is authorized by a law that provides
for the collection of taxes “sufficient to pay the interest on such
debt as it falls due” and unless the debt is discharged within fifteen
years. Md. Const., Art. III, § 34. You have asked for an opinion
of the Attorney General as to whether that constitutional provision
prevents the State from either issuing bonds with a maturity longer
than fifteen years or entering into lease agreements with an
amortization period of longer than fifteen years if the payment of
principal and interest on those bonds or leases is made subject to
appropriation by the Legislature. In other words, is a bond or lease
“debt” within the meaning of Article III, § 34, if payment is
expressly contingent on the General Assembly’s future decision to
appropriate funds for payment on that bond or lease?
For the reasons discussed below, it is our opinion that subject-
to-appropriation obligations are generally not debt in the
constitutional sense and that, therefore, the restrictions contained
in § 34 of Article III generally would not apply to those
obligations. This is because the Court of Appeals of Maryland1
has, in a series of cases decided over the course of nearly a century,
taken an increasingly formalistic and narrow view of what the term
“debt” means in § 34. Under those cases, the Court has so far
concluded that obligations qualify as “debt” for purposes of the
State’s constitutional restrictions only if those obligations are
secured by a pledge of either (1) tax revenue or (2) valuable,
1
Last week, Maryland voters apparently voted to ratify a
constitutional amendment that will change the name of the Court of
Appeals to the Supreme Court of Maryland. But because the final steps
for the adoption of that amendment have not yet been completed, see
Md. Const., Art. XIV, § 1, we will continue to refer to the Court of
Appeals by its soon-to-be obsolete name.
118 [107 Op. Att’y
existing State property. Subject-to-appropriation obligations,
however, are not actually secured by either of those things. Instead,
they are typically secured only by a promise to seek appropriations,
with no guarantee that any funds will in fact be appropriated for
payment on the obligations.
Although the Court of Appeals has not yet considered the
precise question you ask, courts in other states have applied similar
reasoning to conclude that subject-to-appropriation obligations do
not create constitutional debts. Thus, under the framework used by
the Court of Appeals up to this point for determining whether an
obligation is debt under the State’s Constitution, our view is that §
34’s requirement that debts be discharged within fifteen years does
not apply to bonds or leases when payment of those obligations is
subject to appropriation by the Legislature.2
I
Background
A. History of Maryland’s Constitutional Debt Restrictions
In the mid-19th century, Maryland, like many states,
experienced a financial crisis caused by the State lending its credit
to railroad and canal companies as they expanded westward.
Const. Convention Comm’n, Report of the Constitutional
Convention Commission 214 (1967) (“Constitutional Convention
Report”); Richard Briffault, Foreword: The Disfavored
Constitution: State Fiscal Limits and State Constitutional Law, 34
Rutgers L. J. 907, 917 (2003) (“Disfavored Constitution”). In
many instances, the State transferred long-term State bonds to the
companies and, in turn, the companies sold those bonds to raise
capital. Constitutional Convention Report, supra, at 214-15. The
2
We stress that, even though we have determined that subject-to-
appropriation obligations are generally not “debt” within the meaning of
§ 34, we are speaking in generalities and cannot say unequivocally that
all such obligations are not debt in the constitutional sense. For example,
if a subject-to-appropriation obligation were nonetheless secured by an
interest in existing, valuable State property, that might raise a separate
question. Ultimately, each specific financing scheme that involves
subject-to-appropriation bonds or non-appropriation clauses must be
considered in light of its own provisions. It also bears noting that, if a
specific subject-to-appropriation obligation qualifies as constitutional
debt, then all of § 34’s restrictions apply. This means that, in addition to
providing for discharge within fifteen years, the law authorizing the debt
must also provide for the collection of an annual tax sufficient to service
the debt.
Gen. 117] 119
companies did not produce the revenue that they expected,
however, so the State was left to repay those bonds. Dan Friedman,
The Maryland State Constitution: A Reference Guide 116 (2006)
(“Reference Guide”). To do so, the State had to levy hefty property
taxes, which allowed Maryland to narrowly avoid financial ruin.
Constitutional Convention Report, supra, at 215.
In response to that fiscal catastrophe, the State adopted, in
1851, the predecessor of what is now Article III, § 34 of the
Maryland Constitution: Article III, § 22. See Goldsborough v.
Department of Transp., 279 Md. 36, 38 (1977) (tracing the history
giving rise to § 34); Dan Friedman, Magnificent Failure Revisited:
Modern Maryland Constitutional Law from 1967 to 1998, 58 Md.
L. Rev. 528, 584-85 (1999) (“Magnificent Failure”).
That Maryland provision—like the provisions of many other
states—was adopted chiefly for “the protection of present and
future taxpayers,” to defend them against “ever-spiraling taxes
necessary to finance a burgeoning debt.” Reuven Mark Bisk, State
and Municipal Lease-Purchase Agreements: A Reassessment, 7
Harv. J. L. & Pub. Pol’y 521, 526 (1984); see also Forrer v. State,
471 P.3d 569, 573-74 (Alaska 2020) (noting that, prior to 1840, “no
state constitution contained a restriction on incurring state debt,”
but that many states revised their constitutions to include such
restrictions after the Panic of 1837). Indeed, the debates of
Maryland’s Constitutional Convention of 1850 are rife with
“references to the difficulty of marketing state bonds due to the
depressed condition of the State’s credit” and “elaborate
expressions of regret that extraordinary taxes had to be levied in
order to meet the debt.”3 Constitutional Convention Report, supra,
at 215.
3
Although not expressly articulated in the records of the
Constitutional Convention’s debates, some have suggested that state
constitutional debt limitations may also be justified as “a means of
reconciling the conflict between short-term and long-term interests that
debt generates.” Richard Briffault, State and Local Finance, in 3 State
Constitutions for the Twenty-First Century 211, 216 (G. Alan Tarr &
Robert F. Williams eds., 2006) (“State and Local Finance”). On the one
hand, it may be appropriate to “spread the costs of [a capital] project over
the project’s useful life,” given the long-term benefits that capital
projects typically provide. Id. At the same time, “the ability to shift the
costs into the future may also induce elected officials to incur too much
debt,” because those elected officials “can get the credit for the new
project, but the blame for the additional taxes needed to pay off the debt
will be borne by their successors.” Id. at 217.
120 [107 Op. Att’y
Like § 34 does today, § 22 precluded the State from taking on
debt unless it was authorized by a law levying taxes sufficient to
repay the obligation. Md. Const., Art. III, § 22 (1851). The
provision also required that any debt be discharged within fifteen
years, and that “the amount of debts so contracted and remaining
unpaid shall never exceed one hundred thousand dollars.” Id.
Voters ratified another State Constitution in 1864, which
moved the debt provision to § 33 and eliminated the $100,000 debt
ceiling. Md. Const., Art. III, § 33 (1864). Then, in 1867, the State
adopted yet another constitution, which relocated the provision to
Article III, § 34, where it resides today. But aside from relocating
the debt restriction provision to § 34, the constitutional convention
of 1867 made no substantive changes to the provision’s debt
limitations. See Magnificent Failure, supra, at 585 & nn.324, 325
(explaining the “slight” modifications to debt limitations).
The provision has been amended several times since 1867.
One amendment in particular, ratified in 1972, is worth mentioning
here. See 1972 Md. Laws, ch. 372 (ratified Nov. 7, 1972). As
originally proposed by the General Assembly, the amendment
would have “chang[ed] the taxing requirement for bills that create
a State debt.” Id. Instead of requiring that debt-enabling acts
provide for the collection of taxes and the discharge of the debt
within fifteen years, the amendment would have allowed the State
to “incur indebtedness for any public purpose in the manner and
upon the terms and conditions that the General Assembly
prescribes by law.” Id. The proposed amendment as originally
introduced in the Legislature also explicitly stated that an
obligation would not be considered debt unless the law authorizing
it “include[d] an irrevocable pledge of the full faith and credit of
the State.” Id. A legislative committee struck that broad language
in the proposed constitutional amendment, however. 66 Opinions
of the Attorney General 234, 238 n.4 (1981) (noting that the
original bill, which was amended in committee, “provide[d] for
securing State debt by the general taxing power of the State, rather
than by specific taxes”).4 As enacted, the amendment permitted
that the taxes levied to service the debt are not to be collected “in
the event that sufficient funds to pay the principal and interest on
4
We have been unable to locate a bill file or any other historical
documents related to the legislation that proposed this constitutional
amendment, and we therefore do not know why the bill was amended in
the way it was during the legislative process. For that reason, we hesitate
to read much into the history. In any event, the final constitutional
amendment as adopted has no real effect on our analysis below.
Gen. 117] 121
the debt are appropriated for th[at] purpose in the annual state
budget.” 1972 Md. Laws, ch. 372 (ratified Nov. 7, 1972).5
Thus, even with the language added by the 1972 amendment,
§ 34’s debt restrictions today read essentially the same as they did
in 1851:
No debt shall be hereafter contracted by the
General Assembly unless such debt shall be
authorized by a law providing for the
collection of an annual tax or taxes sufficient
to pay the interest on such debt as it falls due,
and also to discharge the principal thereof
within fifteen years from the time of
contracting the same; and the taxes laid for
this purpose shall not be repealed or applied
to any other object until the said debt and
interest thereon shall be fully discharged. The
annual tax or taxes required to be collected
5
Over the years since § 34’s adoption, voters have ratified other
amendments to that section. In 1924, voters ratified an amendment that
allowed the State to “rais[e] funds for the purpose of aiding or
compensating . . . those citizens of the State who have served, with honor,
their Country and State in time of War.” 1924 Md. Laws, ch. 327
(ratified Nov. 4, 1924). Then, in 1960, voters approved an amendment
that broadened the State’s ability to borrow in order to “meet temporary
deficiencies in the treasury” and to “make and sell short-term notes for
temporary emergencies,” so long as the revenue from those notes went
only to “appropriations already made by the General Assembly.” 1959
Md. Laws, ch. 234 (ratified Nov. 8, 1960). And, in 1976, voters ratified
an amendment that removed the prohibition on appropriations to aid in
works of internal improvement, 1976 Md. Laws, ch. 551 (ratified Nov.
2, 1976), a change apparently proposed so that the State could “take
advantage of portions of the Federal Rail Service Continuance Subsidies
Program as provided in the Regional Rail Reorganization Act of 1973,”
Hearing on H.B. 2148 Before the Senate Budget & Taxation Comm.,
1976 Leg., Reg. Sess., at 1 (Apr. 1976) (written testimony of the
Maryland Department of Transportation). Finally, an amendment
ratified in 1982 made changes to the portion of § 34 that addresses
borrowing to meet “temporary deficiencies” or “temporary
emergencies,” and allowed the Treasurer to “issue short-term notes in
anticipation of revenue including bond revenues.” Reference Guide,
supra, at 117; see 1982 Md. Laws, ch. 600 (ratified Nov. 2, 1982). The
Legislature proposed the change in order to clarify an “ambiguity” in §
34 which “cast doubt on the constitutionality of borrowing on the credit
of the State in anticipation of the receipt of non-tax revenues.” See 63
Opinions of the Attorney General 95, 95 (1978) (discussing a bill
proposing a similar constitutional amendment).
122 [107 Op. Att’y
shall not be collected in the event that
sufficient funds to pay the principal and
interest on the debt are appropriated for this
purpose in the annual State budget.
Md. Const., Art. III, § 34. As discussed in more detail below, “[t]he
restrictions of Art. III, § 34 have, over time, forced the state to find
creative ways to finance necessary improvements,” and the courts
have “assisted in this enterprise by stretching the words of
restrictive constitutional provisions beyond their normal
meanings.” Reference Guide, supra, at 118.
B. General Obligation Debt and Subject-to-Appropriation Bonds
The State’s general obligation bonds are a clear example of
how § 34’s debt provisions work in practice. These bonds are
issued to fund, among other things, State-owned capital
improvements and are backed by the full faith and credit of the
State. See Dep’t of Legislative Servs., 4 Legislative Handbook
Series: Maryland’s Budget Process 86 (2018) (“Legislative
Handbook”); see also Maryland State Treasurer, General Obligation
Bonds, https://www.treasurer.state.md.us/debtmanagement/general-
obligation-bonds.aspx (last visited Nov. 1, 2022). Typically, the
General Assembly authorizes debt in the Maryland Consolidated
Capital Bond Loan—also known as the capital budget bill—which
provides that:
An annual tax is imposed on all assessable
property in the State in rate and amount
sufficient to pay the principal of and interest
on the bonds, as and when due and until paid
in full. The principal shall be discharged
within 15 years after the date of issue of the
bonds.
See, e.g., 2022 Md. Laws, ch. 344, § 1(4). The Board of Public
Works (“BPW”) must then authorize the issuance of bonds.
Legislative Handbook, supra, at 87.
Regarding the tax rate itself—which the capital budget bill
does not specify—each year the Commission on State Debt
recommends to the BPW a State property tax rate that will be
sufficient to service the State’s debts. See, e.g., Comm’n on State
Debt, Report to the Board of Public Works 5 (2022)
(recommending specific property tax rates); see also 39 Opinions
of the Attorney General 272, 274-75 (1954). Property tax revenue
Gen. 117] 123
is deposited into the State’s Annuity Bond Fund, which provides
the funds necessary to pay the principal and interest on the general
obligation bonds. Legislative Handbook, supra, at 89-90.
By contrast, subject-to-appropriation bonds—the topic of
your opinion request—differ from general obligation bonds in
significant ways. These bonds, also called “appropriation risk
bonds,” see, e.g., Letter from Richard E. Israel, Assistant Attorney
General, to Sen. Barbara A. Hoffman, at 2 (Feb. 9, 2000)
(“Hoffman Letter”), typically allow a state or local government to
make payment on an obligation subject to appropriation and then
specifically disclaim “any duty to make an annual appropriation,”
Disfavored Constitution, supra, at 920-21. Subject-to-
appropriation obligations tend to “assume the regular appropriation
of public funds to the authority issuing the debt,” but that
appropriation is not legally required. Id. at 922 (emphasis added).
Unlike general obligation bonds, then, subject-to-
appropriation bonds are not backed by a pledge of the taxing power
of the government issuing them, and the state or political
subdivision pledges neither tax revenue nor existing, valuable
property to secure the bonds. Rather, the issuing government
simply agrees to seek the appropriation of sufficient funds to repay
the obligation without actually promising to appropriate those
funds year over year. See, e.g., Schowalter v. State, 822 N.W.2d
292, 300 (Minn. 2012) (examining tobacco appropriation bonds
and explaining that, “[a]lthough the Legislature has created a
continuing appropriation to pay the principal and interest on the
bonds on an annual basis, the bond documents make clear that the
annual appropriation is subject to repeal, reduction, or
unallotment”).
Typically, if a non-appropriation occurs, the bondholders
have no legal course of action against the state or political
subdivision, because the government cannot be forced to pay or
otherwise honor its obligations. See, e.g., id. at 300-01 (“[T]he
bondholders have no remedy for the State’s failure to make
principal or interest payments.”). At most, the terms of a subject-
to-appropriation financing scheme might provide the
bondholder(s) with an interest in the property to be constructed or
improved with the bond proceeds, see, e.g., State v. School Bd. of
Sarasota County., 561 So.2d 549, 551 (Fla. 1990), but the taxing
power of the State is not implicated in any limited remedy for
default that such an interest might provide. Because subject-to-
appropriation bonds “present a slightly greater risk to investors,”
they typically carry a slightly higher interest rate than general
124 [107 Op. Att’y
obligation bonds do, thus potentially costing the State more to
issue. See Disfavored Constitution, at 926. In addition, subject-to-
appropriation bonds may also involve higher administrative and
legal costs, id., and may also have lower bond ratings, see, e.g.,
Moody’s Investors Serv., US States and Territories Methodology
34-36 (2022) (discussing “downward notches” for “contingent
obligations,” which include subject-to-appropriation bonds and
leases).6
Lease agreements with non-appropriation clauses, about
which you also asked, have similar characteristics.7 It is our
understanding that such leases, like subject-to-appropriation bonds,
do not pledge tax revenue, and are not secured by existing, valuable
property. See, e.g., Bruce v. Pikes Peak Library Dist., 155 P.3d
630, 633 (Colo. App. 2007) (examining leases that contained non-
appropriation clauses providing that the library district was “not
obligated to appropriate funds or make payments in future years”).
Rather, if the funds necessary to make a lease payment are not
appropriated, the lease agreement is generally subject to
cancellation, and the government has no obligation to ensure that
the lease payments are made. See, e.g., Haugland v. City of
Bismarck, 429 N.W.2d 449, 450-51 (N.D. 1988) (noting that,
although tax revenue was expected to contribute to the lease
payments in a municipal financing arrangement, tax revenue was
not pledged and the leaseback was subject to cancellation if the city
chose not to appropriate funds for lease payments).
II
Analysis
We now turn to your question: assuming that the State makes
the payment of principal and interest on bonds or other obligations
subject to appropriation, would the State violate § 34 of the State’s
6
Whether the use of subject-to-appropriation bonds is good policy
is, of course, beyond the scope of this opinion. We express an opinion
only about the permissibility of such financing mechanisms under the
Constitution.
7
Certain types of leases can arguably be viewed as paying off debt
on an installment basis, akin in some ways to a mortgage, especially
when the government will own title to the leased property when the lease
ends. For example, the Nevada Attorney General’s Office apparently
questioned whether a lease for computer equipment created a
constitutional public debt where the lease agreement provided a
“schedule of base payments,” the payment of which would result in the
state’s ownership of the equipment. Business Comput. Rentals v. State
Treasurer, 953 P.2d 13, 14-15 (Nev. 1998) (per curiam).
Gen. 117] 125
Constitution if it were to issue bonds, or enter into leases, that
mature or amortize over a span of more than fifteen years?
Although those types of subject-to-appropriation obligations might
seem like debt in the colloquial sense, the requirement in Article
III, § 34 that a debt be discharged within fifteen years applies only
to debt that is “debt” in the constitutional sense, as that term has
been interpreted by the Maryland courts. Thus, if subject-to-
appropriation bonds or lease terms do not qualify as debt within the
meaning of the State’s Constitution, they are not subject to the
fifteen-year limitation in § 34.8
The key question, therefore, is whether making the payment
of principal and interest on an obligation subject to appropriation
means that obligation is not “debt” for purposes of § 34.
Answering this question involves interpretation of the debt
limitations contained in § 34 of the State’s Constitution—in
particular, the meaning of the word “debt,” which the Constitution
does not define. Compare, e.g., Minn. Const., Art. XI, § 4 (defining
“public debt”), with Md. Const., Art. III, § 34. Ordinarily, to
interpret a provision of Maryland’s Constitution, we would engage
the same rules applicable to statutory interpretation. Bernstein v.
State, 422 Md. 36, 43 (2011). But we are not operating in a vacuum
here. The Court of Appeals has, on numerous occasions,
interpreted § 34 and—as explained below—given the term “debt”
a “highly specialized meaning[.]” Constitutional Convention
Report, supra, at 220.
The text of § 34 precludes the General Assembly from
authorizing State debt unless, in the same act enabling the debt, the
General Assembly also provides for taxes sufficient to pay the debt
and for the discharge of the debt within fifteen years. Md. Const.,
Art. III, § 34; see also 35 Opinions of the Attorney General 150,
151 (1950). Interpreted literally, the provision might mean that,
any time the General Assembly seeks to borrow money in some
form, it must also impose a tax to repay that money and ensure that
the money is repaid within fifteen years. Indeed, “debt” is
commonly understood as “a specific sum of money due by
8
Of course, even if subject-to-appropriation bonds or lease terms
were not constrained by § 34, they would still be subject to any statutory
limitations that the General Assembly placed upon them. Cf., e.g., Md.
Code Ann., State Fin. & Proc. (“SFP”) § 8-120(6) (permitting the BPW
to allow bonds authorized by an enabling act to “mature in certain
amounts at certain times . . . but not later than 15 years after their
respective dates of issue”). We note, however, that you have not asked—
and thus we do not consider—the extent to which any existing statutory
provision would impose such limits.
126 [107 Op. Att’y
agreement or otherwise,” Black’s Law Dictionary (11th ed. 2019),
or “something owed,” Merriam-Webster Dictionary,
https://www.merriamwebster.com/dictionary/debt (last visited
Nov. 1, 2022).
But, as detailed below, “[t]he words of the present
Constitution . . . do not mean what they appear to say.”
Constitutional Convention Report, supra, at 221. Rather, despite
the broad language of the provision, the Court of Appeals has
interpreted the term “debt” in § 34 more narrowly, focusing on
whether there is an actual pledge of tax revenue, or of existing,
valuable State-owned property. In doing so, the Court of Appeals
has taken an approach that examines the form of the financing
scheme at issue and does not emphasize or give great weight to
what the scheme might aim to do in practice.
A. How the Court of Appeals Has Defined Debt
In an early case addressing the meaning of debt in a
constitutional context, the Court of Appeals seemed inclined
toward a more literal and broad interpretation. See Mayor & City
Council of Baltimore v. Gill, 31 Md. 375 (1869). That case—which
was decided less than 25 years after the State financial crisis that
led to the enactment of what is now Article III, § 34, see
Constitutional Convention Report, supra, at 215—defined debt as
“money due upon a contract, without reference to the question of
the remedy for its collection.” Id. at 390.9 Working from this
understanding of debt, the Court of Appeals held that Baltimore
City created a constitutional debt when it enacted an ordinance that
authorized the City to borrow money, the repayment of which was
backed by a pledge of the City’s shares of Baltimore and Ohio
9
In Gill, the Court of Appeals was interpreting Article XI, § 7 of the
State Constitution, which contains the limitations on Baltimore City’s
ability to take on debt. Though the restrictions themselves are a bit
different—for instance, § 7 requires that the debt be “submitted to the
legal voters of the City of Baltimore,” and requires discharge of the debt
within forty years rather than fifteen years, Md. Const., Art. XI, § 7—
the judicial construction of the term “debt” is the same for both § 7 and
§ 34 of Article III, see Hall v. Mayor & City Council of Baltimore, 252
Md. 416, 424-25 (1969) (citing cases interpreting “debt” as used in § 34
to determine if a particular financing scheme created a debt for purposes
of Art. XI, § 7). Such parity make sense, given that similar financial
circumstances motivated municipal debt restrictions. See id. at 421
(noting that “[l]ocal debt increased very rapidly until the business crisis
of 1873 brought about many municipal defaults caused by excessive and
unwise debt” that, in many cases, were related to railroad financing).
Gen. 117] 127
Railroad Company stock. Id. at 391-92. In doing so, the Court of
Appeals stressed that it was “dealing with substance, not with
form,” and suggested that “[i]t is the thing to be done, or sought to
be accomplished, which must determine the question of the power
[to enact] the Ordinance.” Id. at 387. At bottom, Gill proceeded
from the understanding that the “plain intent” of the constitutional
debt provisions is to restrain the government from borrowing
money “either upon the general credit of the city, or by a pledge of
its revenues or assets.” Id. at 390.
But any inclination that the Court of Appeals may at first have
had toward a broad reading of § 34 has abated over the years as
subsequent decisions have limited Gill’s holding and narrowed the
meaning of debt under § 34. For instance, though initially there
was a question as to whether Gill would “prevent the issuance of
[so-called] revenue bonds in Maryland,” Constitutional
Convention Report, supra, at 218, it is now widely accepted that
such bonds—e.g., bonds that are issued to generate funds to build
or improve upon property or enterprise and for which the source of
repayment is generally the revenue produced by that property or
enterprise, Secretary of Transp. v. Mancuso, 278 Md. 81, 87
(1976)—do not create a constitutional debt.
One of the first cases to narrow the meaning of “debt” after
Gill involved such revenue bonds. In examining the
constitutionality of revenue bonds, the Court found it significant
that the obligation was “not one in which property or income
already existing and owned by the State is to be applied to
repayment of the cost.” Wyatt v. Beall, 175 Md. 258, 266 (1938)
(emphasis added). The Court of Appeals distinguished Gill,
observing that, there, “the pledge of the existing property was
indistinguishable . . . from a pledge of credit,” Wyatt, 175 Md. at
266, and thus held that revenue bonds “payable exclusively from
tolls to be charged on the bridges and tunnels” constructed with or
acquired by the bond proceeds did not create constitutional State
debt, id. at 261, 265.
The Court of Appeals continued over the next couple of
decades to enlarge the universe of revenue bonds (and,
consequently, constrict the universe of constitutional debt). In one
case, for example, the Court found that the bonds at issue—which
would help finance improvements to a market, part of which had
burned in a fire—were not “debt” when they were secured by the
revenues of the existing market that was not revenue-producing
prior to the improvements. Castle Farms Dairy Stores v. Lexington
Mkt. Auth., 193 Md. 472, 483 (1949). By stressing that the market
128 [107 Op. Att’y
had been “operat[ing] at a loss,” id., the Court of Appeals
distinguished Gill, which held that the “pledge of valuable
property, or assets, held by the city,” created a constitutional debt,
Gill, 31 Md. at 389 (emphasis added). Similarly, in another case,
the Court found that the bonds at issue were not debt when backed
by the trade center to be built with their proceeds. Lerch v.
Maryland Port Auth., 240 Md. 438, 462 (1965). In Lerch, the Court
emphasized the “majority view” that a debt is created when
“existing valuable, income-producing property” is mortgaged as
security for the payment of bonds used to finance a project and
further explained that, in the case of the trade center, the State was
not pledging any such existing property. Id. at 458. Instead, as the
Court explained, if the State defaulted on the bonds and the trade
center was sold for the benefit of the bondholders, “the State
w[ould] lose nothing which it now has.” Id. at 459; see also id. at
461-62 (discussing Wisconsin cases that were “based on the
rationale that a municipality can walk away from the obligation
none the poorer”) (citation omitted).
Notably, the decision in Lerch relied to a significant degree
on the specific historical circumstances leading to the adoption of
§ 34 to support a narrow interpretation of the word “debt” in that
constitutional provision. The Court in Lerch explained that what
is now § 34 was trained on a very specific “evil”—that it was meant
“to curb the reckless and improvident investment of public funds
in aid of railroads and canals, promoted by private corporations,
organized primarily for profit to their stockholders, although they
might eventually serve a public purpose.” Id. at 453 (quoting Johns
Hopkins Univ. v. Williams, 199 Md. 382, 398 (1952)). Thus, in the
Court’s view, the framers of § 34 could not have meant to
“foreclose[] [a financing scheme] which was not and could not
have been envisioned by them, and which had no relation whatever
to the problems they were facing.” Id. (quoting Johns Hopkins,
199 Md. at 399).
Then, in 1966, the Court of Appeals further extended this
doctrine and explicitly gave it a name—the “special fund doctrine.”
That doctrine applies where “the obligation incurred is payable
wholly out of the income and revenue of the enterprise which it
finances,” even including situations where the revenue derives
partly from existing, already-revenue-producing State property.
Lacher v. Board of Trs. of State Colls., 243 Md. 500, 506-08
(1966); see also Md. Op. Att’y Gen. No. 84-021, 1984 WL 251388,
at *4 (Sept. 5, 1984) (unpublished) (summarizing the special fund
doctrine). Explaining that Gill had been “limited in its effect,” the
Court of Appeals held that “the pledge of future revenues by a State
Gen. 117] 129
agency from an existing enterprise or building to sweeten the pot
available from the future revenues from the facility or building to
be constructed from the proceeds of the revenue bonds does not
amount to the creation of a debt by the state.” Lacher, 243 Md. at
508-09 (emphases added).10
The Court of Appeals has, however, set some limitations on
what qualifies as non-debt for purposes of § 34. Unlike courts in
some other states,11 the Court of Appeals has held that the special
fund doctrine applies only to the use of non-tax revenues to secure
an obligation and not to the “use of the taxing authority for debt
service payment,” Mancuso, 278 Md. at 89, 91, even if the debt is
serviced from a specially defined fund that receives only tax
revenue that is arguably related to the projects it finances. Thus, in
Mancuso, the Court of Appeals held that a law that authorized the
Maryland Department of Transportation (“MDOT”) to issue bonds
payable solely through the proceeds of excise taxes on fuel and title
certificates, as well as certain corporate taxes, created a debt to
which § 34 applied. Id. at 83, 91.
In reaching that conclusion, the court quoted a Washington
State case that also involved the use of specifically defined tax
revenue to service a debt, explaining that the “true test” of the
special fund doctrine’s application was:
[N]ot what comes out of the fund, but what
goes into it. If the revenues in it derive
exclusively from the operation of the device
or organ of government financed by the fund,
as in the case of a toll bridge . . . any securities
issued solely upon the credit of the fund are
not debts of the state, but debts of the fund
only. But if the state undertakes or agrees to
provide any part of the fund from any general
tax, be it excise or ad valorem, then securities
10
The plaintiffs in Lacher also argued that, because revenue from the
existing buildings—revenue that was used for maintenance of the
buildings—would be diverted to repayment of the bondholders, the
scheme ultimately created a debt because the State would need to use tax
revenue to maintain the buildings going forward. Lacher, 243 Md. at
509-510. The Court of Appeals rejected this argument, noting that the
State was under no legal obligation to maintain its property. Id. at 511.
11
See State and Local Finance, supra, at 218 for a discussion of the
“extension” of the revenue bond concept to “bonds backed by taxes on
activities that benefit from the project financed by the bond,” and
citations to cases approving such bonds.
130 [107 Op. Att’y
issued upon the credit of the fund are likewise
issued upon the credit of the state and are in
truth debts of the state.
Id. at 90 (alteration in original) (quoting State ex rel. Washington
State Fin. Comm. v. Martin, 384 P.2d 833, 842 (Wash. 1963) (en
banc)); Letter from Richard E. Israel, Assistant Attorney General,
to Del. Howard P. Rawlings, at 4 (Aug. 26, 1997) (concluding that
constitutional debt limitations likely applied to tax increment bonds
to be serviced by certain property tax revenues).
B. How to Apply the Court’s Definition of “Debt” to Subject-to-
Appropriation Obligations
Based on this history and the narrow view of constitutional
debt that the Court of Appeals has taken, the type of subject-to-
appropriation obligations about which you have asked do not
appear to be constitutional debt—at least not as the Court of
Appeals has defined the term so far. As the cases discussed above
illustrate, the Maryland courts have taken a “formalistic”—rather
than a “practical” approach—toward the definition of “debt” in
§ 34, see Hoffman Letter, supra, at 3, and have found § 34 to apply
only when the State pledges tax revenue or existing, valuable
property to secure its bonds or lease payments.12 Because subject-
to-appropriation obligations do not pledge either of those things,
they do not appear to qualify as “debt” within the meaning of
Article III, § 34. We elaborate on that conclusion below.
As an initial matter, the key cases finding that an obligation
did qualify as “debt”—Gill and Mancuso—are distinguishable.
The problem in Gill was that valuable government property was
used as security for the bonds. 31 Md. at 389-90. Presumably,
however, financing schemes that involve subject-to-appropriation
obligations will either be backed only by the promise to seek
appropriation of the money necessary to service the obligation or,
at the most, by an interest in the not-yet-existing property or
enterprise that the scheme seeks to finance. Although some of the
language in Gill is perhaps broad enough to suggest that subject-
to-appropriation bonds might qualify as debt, see id. at 390
(defining debt as “money due upon a contract, without reference to
the question of the remedy for its collection”), the Court of Appeals
has since made clear that Gill “has been limited in its effect . . . to
its precise holding that a pledge or mortgage of existing
We do not attempt to decide the limits of what “existing, valuable
12
State-owned property” would include, as it is not necessary to answer
the question asked.
Gen. 117] 131
governmental property creates or constitutes a debt,” Lacher, 243
Md. at 508.
Similarly, subject-to-appropriation bonds are also different
from the obligations at issue in Mancuso, which were backed by
pledged tax revenues. 278 Md. at 83. To be sure, it might be that
the funds used to pay the principal and interest on a subject-to-
appropriation obligation will, once appropriated, contain revenue
derived in part from various taxes. But such a scenario differs from
Mancuso in that, there, the bonds issued by the MDOT were legally
secured by a fund containing certain motor vehicle fuel and title
excise tax revenue—which were “irrevocably pledged” for the
payment of principal and interest on the bonds—and not merely the
promise to seek an appropriation from that fund. See id. (bonds
“shall be payable as to both principal and interest solely from the
proceeds of the tax and other revenues levied, imposed, pledged, or
made available for such purpose”). Indeed, the enabling law for
the bonds levied the pledged taxes, id., just as § 34 requires for the
creation of debt. Thus, there was a direct line between the debt
created and the taxes imposed and pledged to support that debt.
But, with subject-to-appropriation obligations, because the
State has not actually pledged any tax revenue or existing property,
the threat to future taxpayers—e.g., that their tax bills would
increase in order to pay back the debt—is mitigated, at least to
some degree. That is important because we know that the
protection of future taxpayers was one of the central purposes that
motivated the adoption of § 34. See id. at 86 (detailing past
imposition of taxes to “ameliorate the prior abuses of the State’s
credit,” and thus finding it “clear that one of the purposes of [§ 34]
was to guard against future credit abuses by including within its
purview any evidence of State indebtedness which is secured by its
taxing power”). Because there is no imposition of a tax, and no
direct recourse to tax revenue as a source of repayment, subject-to-
appropriation bonds do not implicate the same abuse-of-credit
concerns.
In addition, the rationales offered by the Court of Appeals in
sustaining other financing schemes against § 34 challenges further
support a conclusion that subject-to-appropriation obligations are
not constitutional debt. For instance, in Lerch, the court reasoned
that:
The pledge of the [Trade] Center, when built,
as security for the Authority’s bonds will not
jeopardize any property of the State which
132 [107 Op. Att’y
now exists. If there is a default in the bonds
and the Center is sold for the benefit of the
bondholders, the State will lose nothing which
it now has. The future burden on the
taxpayers will be no greater than if the Center
had never been built.
240 Md. at 459. That justification applies with equal—if not
greater—force to subject-to-appropriation obligations. If an
obligation is backed only by the State’s promise to seek the
appropriation, at regular intervals, of the funds necessary to pay the
principal and interest and nothing more, clearly no State property
is in jeopardy. The State can, at least in theory, decline to
appropriate the funds and “walk away from the obligation none the
poorer.” Id. at 462 (citation omitted).
Similarly, when considering whether the State’s obligation to
maintain property built with the proceeds of revenue bonds
qualifies as constitutional debt, the Court of Appeals emphasized
that, under those circumstances, the General Assembly was not
“forced” to authorize any expenditures:
The obligation of the State to maintain the
buildings at the State Colleges in the future is
exactly that it has to maintain any buildings it
owns and that of any provident owner of
property. It has not agreed with the
bondholders or with anyone else to pay any
amount in future years to maintain any
building. Whether it does maintain them
depends on whether the Legislature
appropriates the necessary funds, and it
cannot be forced to authorize such
expenditures. An obligation of this sort is not
in our view a debt within the meaning of the
Constitution.
Lacher, 243 Md. at 511 (emphasis added).
In doing so, the Court appeared to draw a distinction in this
context between a practical reason that the General Assembly
might decide to appropriate funds as a result of a financing
arrangement and a legal obligation to do so. Given that a similar
distinction exists between subject-to-appropriation obligations
(which the State might have a strong practical reason, but no legal
obligation, to honor) and general obligation debt, it is our view the
Gen. 117] 133
Maryland courts would likely find that subject-to-appropriation
obligations are generally not “debt” under Article III, § 34.
This conclusion that subject-to-appropriation obligations are
not constitutional debt is consistent with prior advice from this
Office, as well as the majority rule in other states. Our Office
previously examined a “modified tax increment financing” scheme
under which, rather than irrevocably pledging tax increment
revenue toward repayment of the bonds, “the revenues representing
the levy on the tax increment [we]re subject to annual
appropriation.” Hoffman Letter, supra, at 2. That letter concluded,
consistent with our view here, that “in the absence of a legally
enforceable obligation to pay debt service, the opinions of the
Court of Appeals suggest that appropriation-risk bonds would not
be considered debt” in the constitutional sense. Id. at 3.
In reaching that conclusion, we also looked to a Virginia case
that examined a scheme to finance a parkway that involved bonds
issued by a transportation commission, and for which a county
agreed to pay the annual principal and interest from the county’s
general revenues. Dykes v. Northern Va. Transp. Dist. Comm’n,
411 S.E.2d 1, 3 (Va. 1991). The contract provided that “[t]he
obligation of the County to make any payments . . . is contingent
upon the appropriation for each fiscal year by the Board of
Supervisors of the County of funds from which such payment can
be made.” Id. (alteration in original). The Supreme Court of
Virginia ultimately concluded that no constitutional debt existed
because the financing scheme “d[id] not impose any enforceable
duty or liability on the County.”13 Id. at 10, on reh’g.
Indeed, the vast majority of other states to consider the issue
have similarly held that subject-to-appropriation bonds, and leases
containing non-appropriation clauses, are not constitutional debts.
13
Initially, the Supreme Court of Virginia held that, in making
payment on the obligation subject to appropriation (and not submitting
the measure to the voters), the county and transportation commission
were “impermissibly seek[ing] to accomplish indirectly what they
c[ould] not do directly.” Dykes, 411 S.E.2d at 5. One motivating factor
in that decision was the county’s recognition of “the importance of its
fiscal integrity,” and the “disastrous effect that would follow any failure
by the board of supervisors to make an annual appropriation.” Id.
Noting the county’s assertion that “such a disaster would never be
permitted to occur,” the court found an implicit acknowledgement that
“the bond issue would have the practical effect of a long-term debt
binding the county.” Id. Upon rehearing, however, a majority of the
court reversed that initial decision. Id. at 10, on reh’g.
134 [107 Op. Att’y
For example, the Supreme Court of Iowa has held that no
constitutional debt was created when “[t]here [wa]s nothing in the
agreements creating the notes and bonds that b[ound] the city to
any particular future course of action.” Fults v. City of Coralville,
666 N.W.2d 548, 557-58 (Iowa 2003). This was so even if the
“practical effect” of the agreements was that the city would repay
its obligations to avoid negative financial consequences. Id.
Similarly, the Supreme Court of Florida has ruled that there was no
constitutional debt where “[m]oney from several sources, including
ad valorem taxation, will be used to make the annual facilities’
lease payments,” but “[i]f, in any year, a board does not appropriate
the money to pay the lease, the board’s obligations terminate
without penalty and it cannot be compelled to make payments.”
School Bd. of Sarasota County, 561 So.2d at 551.14
We recognize that, even though there is no legal obligation to
appropriate funds to satisfy a subject-to-appropriation obligation,
there would be significant pressure on the State to do so (and thus
significant pressure on the State to increase taxes if necessary to
satisfy such an obligation). As the Department of Legislative
Services has stated, “a cautious fiscal culture has evolved in
Maryland,” and “[h]aving earned a AAA bond rating from all three
major rating agencies (Fitch, Moody’s, and Standard & Poor’s), the
State makes few important decisions without considering the
potential impact on that treasured status.” Legislative Handbook,
supra, at 2. For that reason, one might argue that, from a practical
standpoint, the Legislature is extremely unlikely to risk the State’s
credit rating by declining to appropriate the necessary funds to
14
See also Lonegan v. State, 819 A.2d 395, 402 (N.J. 2003) (accepting
that there are “constitutionally significant differences between the
Legislature being ‘highly likely,’ rather than being ‘legally bound,’ to
repay its debts,” and holding that “only debt that is legally enforceable
against the State is subject to the Debt Limitation Clause”); Fent v.
Oklahoma Capitol Improvement Auth., 984 P.2d 200, 205, 208 (Okla.
1999) (per curiam) (financing scheme that involved “[a]t most . . .
appropriation-risk or moral obligation bonds” did not create
constitutional debt because there was “no legally enforceable contract
between [the Legislature] and either [the Capitol Improvement
Authority], the various agencies, etc. or the citizens of Oklahoma to
make the anticipated appropriations necessary to retire the bonds”);
Wilson v. Kentucky Transp. Cabinet, 884 S.W.2d 641, 642, 644 (Ky.
1994) (finding no constitutional debt created by road bonds issued for
road construction projects where the funds to pay bondholders were
subject to appropriation because “there [wa]s no legal obligation or debt
which the courts c[ould] enforce against future generations,” and
because “[t]he distinction between debt as a legal obligation and any
other type of financing is a real distinction”).
Gen. 117] 135
service bonds that are subject to appropriation and that thus such
bonds differ little in practice from general obligation bonds. Cf.
Disfavored Constitution, supra, at 922-23 (noting that, though
appropriation-backed bonds are “not considered debt under a strict
legal definition, Standard & Poor’s considers all appropriation-
backed bonds of an issuer to be an obligation of that issuer and a
failure to appropriate will result in a considerable credit
deterioration for all types of debt issued by the defaulting
government” (citation omitted)).
The Supreme Court of Alaska relied in part on a similar
argument when invalidating, under Alaska’s constitutional debt
provision, legislation that created a state corporation authorized to
issue subject-to-appropriation bonds to raise funds to pay off
certain state obligations. Forrer, 471 P.3d at 573, 579, 593.
Although that decision also relied on grounds that were unique to
Alaska and would not be relevant in Maryland15, the court appeared
to find some merit to the argument that the prospect of negative
credit ratings would have essentially the same effect as requiring
an appropriation, thus leaving no meaningful constitutional
difference between subject-to-appropriation obligations and other
forms of debt. See id. at 593 (concluding that the court “need not
decide whether a potential credit downgrade alone suffices to
create debt,” but explicitly noting that, while the scheme might not
require appropriations, in practice “legislatures would feel
enormous pressure to appropriate funds due to the potential negative
impact on Alaska’s credit rating”).
As discussed above, however, Maryland’s Court of Appeals
has so far taken a more “formalistic” approach to defining
constitutional debt. Hoffman Letter, supra, at 3. In fact, the Court
has expressly clarified that, despite the “broad language” of Gill
suggesting that any action that could directly or indirectly lead to
an increase in taxes might qualify as debt, “[t]he fact that action by
the [government] may result in increased taxation does not
necessarily mean that debt will be created.” Eberhart v. Mayor &
City Council of Baltimore, 291 Md. 92, 103 (1981). The Maryland
15
Forrer involved a constitutional provision adopted in 1956—much
later than Maryland’s—and accompanied by a rich, detailed, and well-
documented history that included discussion about the meaning of the
word “debt.” See, e.g., id. at 588. Alaska’s constitution also contains an
explicit exemption from its debt restrictions for revenue bonds but not
subject-to-appropriation bonds, see Alaska Const., Art. IX, § 11, and the
Alaska court found that “the constitution’s plain text draws a clear and
meaningful distinction between the terms ‘revenue’ and
‘appropriations,’” Forrer, 471 P.3d at 596-97.
136 [107 Op. Att’y
courts have instead, as described above, tended to look to the form
of the arrangement, including whether the State has pledged any
tax revenue or any valuable, existing State property.
In our view, then, the Maryland courts would more likely find
that “there are constitutionally significant differences between the
Legislature being ‘highly likely,’ rather than being ‘legally bound,’
to repay its debts.” Lonegan, 819 A.2d at 402. Indeed, that
distinction is more than just a formal one: When the State has not
actually pledged any tax revenues (or valuable existing property),
the Legislature has more discretion to weigh the harm of defaulting
on an obligation versus the harms that might be caused by honoring
the obligation. Cf. Wyatt, 175 Md. at 267 (explaining that “[t]he
[General] Assembly was given the chief part of the task of deciding
questions of financial policy”).
Thus, like many of the states that have considered this
“pressure to appropriate” argument, we conclude that, while credit
rating considerations are relevant to a legislative determination as
to the wisdom of authorizing a particular transaction, see Wilson,
884 S.W.2d at 645-46, they do not create a constitutional debt.
Lonegan, 819 A.2d at 402; see also Fults, 666 N.W.2d at 558
(explaining that, even if the “practical effect” of subject-to-
appropriation obligations is that the government will repay its notes
and bonds, this does not affect the analysis as long as the city
“cannot be held legally responsible for the debt”); Dykes, 411
S.E.2d at 375 (reasoning that “[e]xpectations of bondholders,
County officials, or bond rating agencies do not create County
‘debt’”), on reh’g.
C. Leases
A final point about lease financing bears mentioning and
provides an independent reason why leases containing subject-to-
appropriation payment terms likely do not create constitutional
debts. More specifically, in at least two cases, the Maryland courts
have held that certain types of lease financing schemes—schemes
that, as far as we know, did not contain non-appropriation
clauses—were not subject to § 34’s restrictions, based on the
separate rationale that an agreement to pay rent “creates no debt
until the time stipulated for the payment arises.” Hall v. Mayor &
City Council of Baltimore, 252 Md. 416, 424 (1969) (quotation and
citation omitted) (so holding in case involving Article XI, § 7);
Eberhart, 291 Md. at 107-08 (same); see also Wyatt, 175 Md. at
268 (“According to all decisions known to us, even if ascertained
amounts are now agreed to be paid in the future, as, for instance,
Gen. 117] 137
rentals, this would not be the contracting of a debt in the
constitutional sense.”). This common law rule—which was in
effect when § 34 came into being, Hall, 252 Md. at 423—reflected
the view that “rent issues from the land, is not due until the rent
day, and is due in respect of the enjoyment of the premises let,” id.
at 424 (quotation and citations omitted).
In Hall and Eberhart, the Court of Appeals held that the
challenged leases did not create constitutional debt because they
were “bona fide” leases, Hall, 252 Md. at 424-25—i.e., leases that
constituted “economically balanced transactions” involving “the
exchange of value for value,” Eberhart, 291 Md. at 107-08. In both
cases, the Court found it important that the rental payments
represented the fair rental value of the properties being leased.16
See id. at 107; Hall, 252 Md. at 427; see also 54 Opinions of the
Attorney General 351, 352 & n.1 (1969) (suggesting that the
legality of a sale-leaseback scheme depends on whether a court
determines that the lease is a “bona fide lease transaction,” and not
“a subterfuge for a plan of financing the purchase of a facility” that
would create a constitutional debt); Bisk, supra, at 531 & nn.55-56
(noting that “[c]ertain courts approving lease-purchase agreements
without the benefit of a nonappropriation mechanism have relied
heavily upon the reasonable and fair cost of rental payments under
lease-purchasing,” and citing Maryland cases).
We do not, however, need to decide the precise contours of
what would constitute a “bona fide” lease here, as that was not the
question that you asked. Rather, it is enough to say that, given that
at least some lease arrangements are not constitutional debt in the
first place under Hall and Eberhart, it is difficult to see how the
addition of a term that makes payment of lease obligations subject
to appropriation could transform such a “non-debt” into
constitutional debt.
16
The dissent in Eberhart is notable. Maintaining that the court must
“examine the transaction . . . as a whole, not its individual parts,”
Eberhart, 291 Md. at 118 (Smith, J., dissenting), the dissent opined that
“[s]tripped of all dross, trappings and camouflage, what we have here is
a municipal asset which the City is to pledge as security for money
advanced to it which it is to pay back over a thirty year period. That is a
debt,” id. at 123. Thus, according to the dissent, “the City’s obligation
to pay [wa]s not based upon the economic worth of the building, but
[wa]s to pay not less than the sum necessary to cover the debt
obligation.” Id. at 124. But that rationale was not, of course, adopted by
the majority.
138 [107 Op. Att’y
Moreover, for decades Maryland has utilized installment sale
and lease purchase arrangements to finance certain capital needs—
primarily equipment and real property. See SFP §§ 8-401 through
8-407; see also Floor Report, House Comm. on Appropriations,
S.B. 50, 1995 Leg., Reg. Sess. (noting that, for purposes of S.B. 50,
“capital lease means financing equipment purchase or the purchase
and improvement of real property”). Although the State must
consider capital leases as “tax-supported debt” for purposes of debt
affordability calculations, Legislative Handbook, supra, at 100, the
statute provides explicitly that capital leases are “contingent on the
availability of appropriated or other legally available funds,” “may
not be construed or deemed to be a debt of the State or a unit of
State government,” and “may not constitute a pledge of the full
faith and credit and taxing power of the State or a unit of State
government,” SFP § 8-404. Of course, these legislative caveats by
themselves do not guarantee constitutionality. See Mancuso, 278
Md. at 83, 91 (finding a bonding bill unconstitutional despite
similar disclaimers). But given that the scheme remains
unchallenged after close to thirty years17 and that any challenge
would have to contend with the “bona fide” lease precedent from
the Court of Appeals, our sense is that the General Assembly’s
classification of capital leases as non-debt is correct.
In any event, to answer the question that you asked, it suffices
to say that leases with subject-to-appropriation clauses or terms are
likely not debt—at least not for purposes of § 34—and, therefore,
there is likely no constitutional requirement that such leases
amortize within fifteen years.
III
Conclusion
In our opinion, the restrictions in Article III, § 34 of the State
Constitution do not apply to bonds or leases when repayment of the
obligations created by those bonds and leases is expressly made
subject to appropriation by the Legislature. The Court of Appeals
has so far found an obligation to be “debt” for purposes of § 34
only when the obligation is secured with tax revenue or when the
State pledges existing, valuable property as security. Subject-to-
17
In some cases, the fact that a state has long engaged in certain
methods of public finance may influence the conclusion as to what does
or does not constitute debt. See, e.g., Lonegan, 819 A.2d at 407 (“We
are unwilling to disrupt the State’s financing mechanisms in the
circumstances presented to us, and agree with the majority of state courts
interpreting their own constitutions that the restrictions of the Debt
Limitation Clause do not apply to appropriations-backed debt.”).
Gen. 117] 139
appropriation obligations, however, neither pledge the State’s tax
revenue nor require that existing, valuable property be used as
security. Therefore, in our view, the Constitution likely does not
preclude the State from issuing bonds that take longer than fifteen
years to mature, or leases that amortize over a period longer than
fifteen years, if payment of the obligations created by those bonds
and leases is made subject to appropriation by the General
Assembly.
Brian E. Frosh
Attorney General of Maryland
Sara Klemm
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions & Advice | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487725/ | 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 9, 2022 *
Decided November 17, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1809
PETER J. LONG, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 21-C-1210
JOHN F. MATZ, et al., William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Peter Long sued Wisconsin jail officials under 42 U.S.C. § 1983, raising two
claims about COVID-19. First, he says that, although the staff quarantined new inmates,
gave them cleaning supplies, and later tested them to protect them from the virus, the
Constitution required that the staff do more. Second, he accuses the staff of transferring
* The appellees were not served with process and have not participated in this
appeal. We have agreed to decide the case without oral argument because the
appellant’s brief and the 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. 22-1809 Page 2
him to another facility in retaliation for complaining about the level of protection. The
district court dismissed his complaint, correctly concluding that he failed to allege any
constitutional violation; thus we affirm.
We recount the facts alleged in the complaint, accepting them as true. Milchtein v.
Milwaukee Cty., 42 F.4th 814, 819 (7th Cir. 2022). Long was housed at Winnebago County
Jail from 2020 through early 2021, apparently on charges that he violated terms of his
extended supervision. When he arrived, he was quarantined alone in a cell for two
weeks—as were all new inmates during the COVID-19 pandemic. Afterward, he moved
to a pod with several dozen inmates, all of whom had successfully completed a two-
week quarantine. The jail began to test inmates for COVID-19 in November 2020, when
an inmate in the pod was hospitalized with an infection. Afterward, it tested all inmates
and staff. Long eventually tested positive for COVID-19 and experienced joint pain,
dizziness, and nausea for over two weeks. When about one-third of the jail’s inmates
also tested positive, the jail began conducting weekly tests of its employees.
All inmates were required to clean their housing units and the restrooms. Jail
staff provided the inmates with antibacterial cleaning supplies but not products
containing bleach, which Long wanted, believing that it would kill both the COVID-19
virus and bacteria. Two officials denied his request and refused to give him grievance
forms. One explained that bleach was banned because the jail regarded it as a safety and
security hazard; another said that “[n]o constitutional rights were violated.”
Long was transferred to a prison in 2021 when his supervision was revoked. He
says that, although other inmates were ahead of him on the transfer list, he was moved
to the top in retaliation for his complaints about the jail’s response to the pandemic.
Long next turned to federal court. He asserted that the defendants violated his
constitutional rights by failing to implement COVID-19 testing before November 2020,
refusing to provide him with bleach, denying him access to grievance forms, and
retaliating against him for complaining by moving him to the top of the transfer list. A
magistrate judge allowed Long to amend his complaint to specify who violated his
rights and how. After Long did so, a district judge handled the case because not all
parties had provided consent to magistrate judge jurisdiction.
The district judge dismissed Long’s amended complaint with prejudice. See
28 U.S.C. § 1915A. First, the court ruled that Long pleaded himself out of court on his
claim that the jail’s COVID-19 response was unreasonable, because he alleged that the
No. 22-1809 Page 3
staff quarantined new inmates and began testing staff weekly after an outbreak
occurred. Second, the court concluded, the jail’s staff did not violate Long’s rights by
denying his requests for bleach, because he did not plausibly allege that non-bleach
cleansers exposed him to an unreasonably high risk of contracting COVID-19. Third, the
court ruled that Long did not have a constitutional right to grievance forms. Finally,
regarding the retaliation claim, the court explained that Long had not alleged that his
transfer would likely deter an ordinary inmate from complaining about jail conditions.
On appeal, Long first raises an unfounded procedural challenge. He contests his
case’s transfer from the magistrate judge to the district judge. But Long did not serve
any of the defendants with process, and they never consented to allowing a magistrate
judge to enter judgment. Non-served defendants are “parties” under the Magistrate
Judges Act, see 28 U.S.C. § 636(b)–(c); FED. R. CIV. P. 73(b)(1), and they must consent to
allowing a magistrate judge to issue a final judgment. Coleman v. Labor and Indus. Review
Comm’n of Wis., 860 F.3d 461, 470–71 (7th Cir. 2017).
Next, Long contends that he adequately stated claims for relief. We review de
novo the dismissal of a complaint under 28 U.S.C. § 1915A, drawing all reasonable
inferences in Long’s favor and construing his pro se submission liberally to determine if
he pleaded a plausible claim. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); FED R. CIV. P. 8(a)(2).
We begin with his claim that the jail unreasonably failed to protect inmates
before the jail’s COVID-19 outbreak in November 2020 by not testing them for the virus
or supplying antiviral cleansers, like bleach, which Long says that the CDC
recommended. When a pretrial detainee complains about conduct at a jail, the claim
arises under the due-process clause, and we ask whether the conduct was “objectively
unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 392 (2015). The preventative
measures that Long alleges that the defendants used to address the risks of the virus
refute an inference that their measures were objectively unreasonable: Before the jail
even had a COVID-19 outbreak, staff quarantined new inmates for two weeks before
housing them together, supplied them with antibacterial cleansers, and required that
they use them. After the outbreak occurred, they tested inmates and, each week, tested
those people—the staff—who left the jail and could upon reentry infect others. Even if
other, potentially costlier measures, such as testing inmates before an outbreak
materialized and supplying them with bleach, might have been superior, due process
does not require superiority, just reasonableness, which occurred here. Because we
conclude that the defendants behaved reasonably, we need not and do not decide
No. 22-1809 Page 4
whether, and if so when, the Constitution requires public officials to take steps to
reduce the risk of infection within a prison or jail.
Long next argues that the defendants violated his due-process rights by
preventing him from accessing the jail’s grievance forms. But Long does not have a
liberty interest in a jail’s grievance procedures. Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011). A purported refusal to supply grievance forms may excuse inmates from the
need to exhaust administrative remedies, but it does not violate constitutional rights.
Id.; Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008).
That brings us to Long’s claim that the defendants violated his First Amendment
rights by accelerating his transfer to prison (after his supervision was revoked) to
punish him for complaining about the jail’s COVID-19 response. Long has not
presented a valid claim if the alleged punishment is unlikely to deter ordinary inmates
from raising similar complaints. See Towne v. Donnelly, 44 F.4th 666, 671 (7th Cir. 2022).
A transfer alone is not adverse enough to deter an ordinary inmate from protected
speech. Holleman v. Zatecky, 951 F.3d 873, 881 (7th Cir. 2020). And Long did not allege
that his prison—to which he was eventually going anyway after the revoked
supervision—was worse than his jail.
Finally, Long argues that the district court should have offered him a second
chance to amend his complaint. But Long did not ask to amend his complaint a second
time, and so the court was not required to offer an unsolicited, second chance for him to
do so. In any case, Long does not tell us how he would alter his complaint to cure its
deficiencies. See Gonzalez-Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015) (court may
dismiss complaint with prejudice when plaintiff fails to explain how proposed
amendment would cure deficiencies).
AFFIRMED | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487812/ | ABBATE, Judge
DECISION
On September 5, 1975, this Court rendered an interim opinion in the above-entitled matter solely because of the immediate urgency to settle this dispute, which arose between the Department of Education and the Guam Federation of Teachers, Local 1581. In this interim decision, the Court declared valid and in effect the three year agreement between the Territorial Board of Education and the Guam Federation of Teachers. It further determined that the acts of the defendants did not fall within the purview of Section 4376 defining strikes. It declared void Section 39 of Public Law 13-37 as violating Section 29(b) and Section 5(j) of the Organic Act of Guam. This Court further held that Executive Order No. 75-38 did not abrogate the terms of the three year agreement. A period of forty-five (45) days was provided to allow for a smooth transition in order that Department of Education may comply with the terms of the agreement.
*290FACTS
The plaintiff, the People of the Territory of Guam hereinafter referred to as the Government, commenced a civil action arising under Section 4378 of Chapter VI, Title V of the Government of Guam against the Guam Federation of Teachers alleging, among other things, that defendant’s Union members acted in concert announcing and stating their refusal to accept children in excess of the ratio as set forth in the agreement. (See Paragraph 8 of the complaint.) The complaint further alleges a refusal to instruct 300 minutes (see Paragraph 9 of the complaint), and the defendants inspired and incited others to assist in the conduct as set forth in Paragraphs 8 and 9 of the complaint (Paragraph 10).
The relief sought here by the Government is that they be granted a permanent restraining order from continuing the acts as set forth in the complaint.
The defendant Union thereafter on August 28, 1975, filed an answer to the complaint filed denying in substance the allegation of the complaint, and filed on August 29, 1975, a counterclaim. In the said counterclaim, the defendants seek specific, performance and observance of all the terms of the three year agreement. They also seek to enjoin the Government, its Board of Education, its Director of Education, agents, and servants from giving any directives, orders, or instructions which would be contra to the above aforementioned agreement.
This dispute arose as a result of the existence of an agreement called “Three Year Agreement.” The parties to the agreement are the Territorial Board of Education and the Guam Federation of Teachers. The agreement was ratified by the duly appointed representatives of the respective parties on October 1, 1972, and approved pursuant to law by Carlos G. Camacho, the then duly elected Governor of Guam on October 3, 1972. In the said *291agreement under Article XIII, it provides for the duration of the contract. In the article, it provides that it shall remain in effect until June 13, 1975, and renewable from year to year unless certain conditions are met. The most important sentence is the fact that the contract shall remain in effect until a new contract is ratified.
The 13th Guam Legislature passed Public Law 13-37, and it became law on June 27, 1975. In this public law, we find Section 39 (subsections A thru S), which dictates to the Department of Education certain directives regarding substitute teachers, librarians, counselors, assistant principals, and the entire spectrum of personnel administration. It further speaks of and establishes a teacher ratio, which is diametrically opposite to that provided in Chapter V of the Third Party Agreement. It also includes the transfer of Driver Education Program, travel, and various other and sundry matters concerning the administration of our public school system.
Our public schools opened their doors to commence another year and as school bells rang, registration of the pupils began. The defendant Union, armed with the contract, refused to accept any students beyond the ratio as set forth in the contract. On August 21, 1975, the Governor, under powers delegated to him (Section 29(b) Organic Act), issued Executive Order No. 75-38, wherein he cites that portion of the Organic Act giving him the power to establish, maintain, and operate public schools in the Territory of Guam. In this executive order, he re-affirms the authority of the Board of Education as a policy making body, which governs primary and secondary schools, and further re-affirms the principle of Collective Bargaining. There is a directive in the executive order to the Board of Education to use its best judgment in matters of class sizes, instructional time, administrative and personnel leave, determining curriculum. In this in*292strument, the Governor makes mention of the existing contract, budget limitations, and appropriations.
The defendants positioned themselves in the legal arena armed with a contract and seek enforcement of the provisions of this Three Year Agreement. The Government, on the other hand, seeks injunctive relief restraining activities of union members.
The Three Year Agreement between the Territorial Board of Education and the Guam Federation of Teachers Local is valid and subsisting.
A close examination of Article XIII entitled Duration as set forth in the Three Year Agreement, gives this Court no problem in reaching a conclusion that it is a valid and subsisting contract in full force and effect. The language is clear in the wording “notwithstanding the first sentence of this Article, the provisions of this contract will remain in effect until a new contract is ratified and put in effect.” The first sentence recites a termination date. What other interpretation could be given than that reached by the Court. To rule otherwise would do violence to reason.
That the activities of the defendants did not constitute a strike within the meaning of Section JpS76 of the Government Code of Guam.
On the opening of school day, students of our public schools entering in the halls of learning, were advised that the union member teachers would not register students in excess of that provided for under the terms of the contract (see Article V). The Government contends that these activities as set forth in their .complaint, Paragraphs 8, 9, and 10, constituted a strike. Section 4876 of the Government Code states that:
It shall be unlawful:
(a) For any government employee to participate in any strike against the government.
*293(b) For any person, by picketing or otherwise to instigate, induce, procure, order, direct, coerce, or incite any violation of this Chapter, or to undertake to concert with another to violate this Chapter.
In Section 4375 of the Government Code of Guam, the word strike is defined as temporary stoppage, slowdown or the retardation of work or services by concerted action of employees. How could it be said that the activities of the defendant members constituted a strike? In a careful examination of their activities, they embarked upon school registration insulated with the collective bargaining agreement, which was valid and in effect at the time of registration. Was there really a retardation of work or services by concerted action to fall within the strike definition? This Court thinks not. The chaotic condition, if one existed, was generated by the administrative guidelines and legislative intervention (Public Law 13-37, Section 39). To grant injunctive relief sought herein would cause a malignant growth to justice.
That a period of forty-five (l¡-5) days be allowed Government to comply with the Three Year Agreement.
This Court has set a period of time namely forty-five (45) days to allow the Government, the Director of Education, its agents and servants to re-arrange, alter, or modify classroom schedules and other instructional teaching consistent with the terms of the contract. This period of time, it is felt, is a reasonable period for compliance.
That Public Law 13-37, Section 39 is void as it violates Section 29(b) and Section 5(f) of the Organic Act of Guam.
The legislature of Guam saw fit to create legislation that invaded the power of those delegated to the Executive Branch of the territory. The Organic Act of Guam, Section *29411 grants powers to the legislature to all subjects of legislation of local application not inconsistent with the provisions of the Organic Act On reading Section 29 (b) of the Organic Act, this Court has little difficulty in reaching the conclusion that such legislative intervention invaded powers specifically delegated. Section 29(b) states:
(b) The Governor shall provide an adequate public educational system of Guam, and to that end shall establish, maintain, and operate public schools at such places in Guam as may be necessary.
The Government contends that a fiscal emergency existed and that there was an exercise of police powers in the passage of Section 39 of Public Law 13-37. This position is untenable. It is quite clear that exclusive power to maintain and operate the school system was delegated to the Governor and not in the halls of the legislature. It is therefore quite clear that the legislature is without any authority to involve itself in the internal affairs of the educational system.
That the Executive Order No. 75-88 did not abrogate any of the terms of the existing Three Year Agreement.
In the Governor’s Executive Order No. 75-38, it cites authority to maintain and establish the school systems. (See § 29 Organic Act supra.) The executive order is simply a display that all matters set forth in Section 39 of Public Law 13-37 is not within the power of the legislature. It further speaks of the existing contract and asks the Board to guide the Department in its operation and personnel matters, including actual class size and instructional time. The Attorney General, who appeared in this action, urged the Court that the Governor exercised his police powers in the issuance of this executive order. Once it is determined that the Executive Branch is the appropriate agency to exercise this residual power, the next matter *295to determine is whether or not this power was exercised. This Court is of the opinion that Executive Order No, 75-38 does not constitute such exercise. Rather, this order merely may be characterized as a general statement by the Governor of the relative relationship of the Executive and Legislative Branches, with respect to the educational system on Guam. It further demonstrates an equally general statement of the executive’s position with respect to the potential conflict between the existing agreement and budget limitations. Nowhere has this executive order displayed mention of emergency conditions, which requires him to nullify contract provisions, or that in fact any of the provisions were thereby invalidated. Therefore, it can be concluded that this order is equally found wanting as an exercise by a government entity to nullify certain contract provisions to preserve the common good. Because use of police powers can affect fundamental constitutionally, as well as organically, protected rights, it must be used with utmost caution and only upon showing a real genuine cause. (See Home Building and Loan Assn. v. Blaisdell, 290 U.S. 395.)
The Government further contends that the contract provisions is a nullity by operation of § 4411 of the Government Code of Guam.
Section 4411 states:
Government management officials shall retain the right and responsibility, in accordance with applicable law and. regulations to (a) maintain efficient government operations and direct public employees, (b) hire, promote, transfer and assign employees to government positions, (c) suspend, demote, discharge, or take other disciplinary action against employees for just cause, (d) to determine the methods, organization, and assignment of personnel for the conduct of operations, including necessary actions in emergency situations.
This section makes it unlawful for certain management responsibilities to be relinquished by those duly *296entrusted with them. The Government argues that the provisions set forth in Article V of the Three Year Agreement are contra to § 4411 of the Government Code of Guam. In support of this contention, the Government cites Jefferson Elementary School District v. Bert, 116 California Reporter 554 (1974). The Jefferson case has no value to support the position of the Government simply because the education structure of Guam and California are different. The educational system in California is unique. This Court can hold no other opinion than that the specific provisions, which are alleged to constitute “Ultra Vires” acts in conjunction with section 4411 of the Government Code of Guam, cannot be characterized as such. The only possible language in § 4411 subsection (d) “to determine the methods, organization, and assignment of personnel for the conduct of operations, including necessary actions in emergency situations.” This portion of the section, read in its broadest fashion, does not appear to this Court to preclude the bargaining away of authority over class sizes or number of hours taught.
Therefore in view of the foregoing, the motion to dismiss the complaint of the Government is hereby granted, to the extent that the temporary injunction will continue for a period of forty-five (45) days to allow the Government time to re-assess the personnel to comply with the contract. The interim decision made by this Court on September 5, 1975, is hereby incorporated in this decision by reference.
Submit findings of fact and conclusions of law, giving the Government ten (10) days notice of presentment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487733/ | 11/17/2022
1 IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0645
2 Cause No. DA 21-0645
3
4 STATE OF MONTANA,
5
Plaintiff and Appellee,
6 vs.
7 JUNE LEE WOLVERINE,
8
Defendant and Appellant.
9
______________________________________________________________________
10
11 ORDER
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13 Upon consideration of Appellant’s motion for extension of time, and good cause
14
appearing,
15
IT IS HEREBY ORDERED that Appellant has until February 10, 2023, to
16
17 prepare, file, and serve Appellant’s Opening Brief on appeal.
18
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24
25
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27
28
ORDER PAGEElectronically
1 OF 1 PAGES signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 17 2022 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487735/ | Wells Fargo Bank, N.A. v Pane (2022 NY Slip Op 06516)
Wells Fargo Bank, N.A. v Pane
2022 NY Slip Op 06516
Decided on November 16, 2022
Appellate Division, Second 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 November 16, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ANGELA G. IANNACCI
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2020-08114
(Index No. 609423/15)
[*1]Wells Fargo Bank, N.A., etc., respondent,
vSalvatore Pane, et al., defendants, Sophia Antonella 2009, LLC, appellant.
Young Law Group, PLLC, Bohemia, NY (Justin Pane and Daniel G. Eugene of counsel), for appellant.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Sophia Antonella 2009, LLC, appeals from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated March 2, 2020. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sophia Antonella 2009, LLC, to strike that defendant's answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sophia Antonella 2009, LLC, to strike that defendant's answer, and for an order of reference are denied.
On May 23, 2006, Salvatore Pane executed a note in the sum of $191,200 in favor of U.S.A. Mortgage Bankers of America, Inc. The note was secured by a mortgage on residential property in Medford (hereinafter the premises). The mortgage was later assigned to the plaintiff. By quitclaim deed dated June 23, 2011, Pane conveyed the premises to the defendant Sophia Antonella 2009, LLC (hereinafter the defendant). Pane died on November 15, 2014.
On September 1, 2015, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant interposed an answer dated October 16, 2015. In September 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In support of its motion, the plaintiff submitted, among other things, the affidavit of Elizabeth Gonzales, a "Default Document Manager" with Carrington Mortgage Services, LLC, the plaintiff's loan servicer and attorney-in-fact. Gonzales averred therein, based on her review of "the business records," that Pane failed to make the required payments due on April 1, 2014, and thereafter. The defendant opposed the motion, arguing that the plaintiff failed to submit admissible evidence of the alleged payment default. In an order dated March 2, 2020, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike its answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals.
"In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782; see BNH Milf, LLC v Milford St. Props., LLC, 192 AD3d 960, 962). "The plaintiff has the burden of [*2]establishing its prima facie entitlement to summary judgment by proof in admissible form" (Emigrant Bank v Cohen, 205 AD3d 103, 112; see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 782). "'Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form'" (Wells Fargo Bank, N.A. v Gross, 202 AD3d 882, 885, quoting Bank of N.Y. Mellon v DeLoney, 197 AD3d 548, 549).
Here, the plaintiff failed to establish, prima facie, Pane's default in payment under the note. In her affidavit, Gonzales did not demonstrate that she had personal knowledge of the alleged default. Moreover, she failed to identify the entity whose business records she reviewed and did not aver that she was familiar with that entity's record-keeping practices and procedures (cf. Nationstar Mtge., LLC v Koznitz I, LLC, 208 AD3d 500, 502). Further, Gonzales did not identify the records she relied upon in order to attest to the default, and did not attach them to her affidavit (see U.S. Bank N.A. v Ramanababu, 202 AD3d 1139, 1141-1142; Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702). Thus, Gonzales's assertions regarding the alleged default constituted inadmissible hearsay and lacked probative value (see Wells Fargo Bank, N.A. v Gross, 202 AD3d at 885; Bank of N.Y. Mellon v DeLoney, 197 AD3d at 550). Although the plaintiff submitted an additional affidavit by Gonzales along with the payment history for the subject loan with its reply papers, a party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply (see U.S. Bank N.A. v Kahn Prop. Owner, LLC, 206 AD3d 850, 851; Citibank, N.A. v Yanling Wu, 199 AD3d 43, 58).
Since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike its answer, and for an order of reference should have been denied without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Citibank, N.A. v Yanling Wu, 199 AD3d at 58).
CONNOLLY, J.P., IANNACCI, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487738/ | J-S23036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD RAY SHOOP, JR. :
:
Appellant : No. 322 MDA 2022
Appeal from the Judgment of Sentence Entered August 5, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000033-2019
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 18, 2022
Appellant, Ronald Ray Shoop, Jr., appeals from the judgment of
sentence of 8 years and 8 months to 17 years and 4 months’ incarceration,
imposed after he was convicted by a jury of four counts of burglary.1 After
careful review, we affirm.
Appellant was tried on five counts of burglary at a three-day jury trial
May 11, 13 and 14, 2021 for five burglaries of houses in rural Lycoming County
that occurred between October 12, 2016 and October 31, 2016. On the
second day of trial, Appellant requested to represent himself and the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3502(a)(2).
J-S23036-22
conducted a Grazier hearing2 at which Appellant was advised of his rights and
the risks of proceeding pro se and Appellant waived his right to counsel and
undertook to represent himself, with trial counsel acting as standby counsel.
N.T. Trial, 5/13/21, at 4-7, 53-57.
At trial, security camera recordings from one of the burglarized houses
were admitted in evidence and played to the jury showing two burglars driving
up to and near the house, moving around outside the house, and entering it
through a window. N.T. Trial, 5/11/21, at 26-68. In addition, photographs
from a trail camera near another of the burglarized houses showed one person
approaching the house at the time of the burglary. Id. at 136-41. There were
no recordings or photographs showing the participant or participants in the
other three burglaries. Id. at 103, 108, 119, 124, 131.
Appellant’s cousin, Wilbur Kramer, Jr., testified that Appellant
committed the five burglaries with him and identified himself as the person on
the trail camera photographs, identified himself as one of the burglars in the
security camera recordings, and identified Appellant as the other burglar in
the security camera recordings. N.T. Trial, 5/13/21, at 9, 20-35. Kramer also
testified that Appellant drove the car that belonged to Appellant’s former
girlfriend, Angel Hart, with whom Appellant was living at the time, to the
____________________________________________
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-2-
J-S23036-22
houses that they burglarized and identified the car in the security camera
recordings as Hart’s car. Id. at 10-14, 23, 26.
Hart testified that she was living with Appellant and let Appellant drive
her car in October 2016 and that she saw Appellant with jewelry that did not
belong to him and that she believed was stolen. N.T. Trial, 5/13/21, at 59-
61, 63-64, 68, 82, 86-87. Hart also testified that the car in the security
camera recordings looked like her car and that the person driving the car and
one of the two people at the front of the house “kinda” looked like Appellant,
but equivocated somewhat on these identifications on cross-examination and
testified that she previously told police that the person in the security camera
recordings also looked like another person. Id. at 64-68, 71-74, 79, 81-82,
89. The victims of two of the burglaries testified that jewelry was stolen from
their houses. Id. at 124-27, 136-37.
Items connected to the burglaries found in Kramer’s apartment had
Kramer’s DNA and DNA of one other male, but that other DNA was insufficient
to identify who that second man was. N.T. Trial, 5/14/21, at 12-19, 39.
Appellant testified in his own defense and admitted seeing Kramer with jewelry
and other items that he believed were stolen, but denied that he committed
or participated in any of the burglaries. Id. at 45-46, 52-53, 60-61. Appellant
admitted that the car in the security camera recordings was the same type of
car as Hart’s car and looked like the car in a photograph of Hart’s car. Id. at
72-77.
-3-
J-S23036-22
On May 14, 2021, the jury convicted Appellant of four of the five
burglary counts, the count involving the burglary that was captured on the
security camera and the three burglaries with no video or photographs of the
participants, and acquitted Appellant of the burglary where the trial cam
showed Kramer and no other participant. N.T. Trial, 5/14/21, at 154-61;
Verdict Sheet. On August 5, 2021, the trial court sentenced Appellant to
consecutive terms of 26 to 52 months’ incarceration for each of the four
burglary counts, resulting in an aggregate sentence of 8 years and 8 months
to 17 years and 4 months’ incarceration. N.T. Sentencing at 16-17;
Sentencing Order.
Appellant, represented by new counsel, filed timely post-sentence
motions, including a motion for a new trial on weight of the evidence grounds
and a motion for reconsideration and modification of sentence. Post-Sentence
Motions at 3-4, 6-7. On February 17, 2022, the trial court denied Appellant’s
post-sentence motions. Trial Court Opinion and Order, 2/17/22. This timely
appeal followed.
Appellant presents the following two issues for our review:
I. Was the jury’s finding of guilt at trial so against the weight
of the evidence presented as to shock one’s conscience and
sense of justice?
II. Did the Court abuse its discretion when imposing
consecutive sentences totaling 104 to 208 months?
Appellant’s Brief at 4 (suggested answers omitted). Neither of these issues
merits relief.
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A new trial may be granted on the ground that the verdict is against the
weight of the evidence only where the evidence at trial was so weak or the
verdict was so contrary to the evidence that the verdict shocks the trial court’s
sense of justice. Commonwealth v. Gilliam, 249 A.3d 257, 269-70 (Pa.
Super. 2021); Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super.
2014). Our review of the denial of a motion for a new trial based on weight
of the evidence is limited. We review whether the trial court abused its
discretion in concluding that the verdict was not against the weight of the
evidence, not whether the verdict, in this Court’s opinion, was against the
weight of the evidence. Commonwealth v. Clemons, 200 A.3d 441, 463-
64 (Pa. 2019); Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa.
Super. 2021).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge …. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049
(Pa. 2013)) (brackets omitted).
Appellant argues that the jury’s verdict was against the weight of the
evidence because Kramer’s and Hart’s testimony was not credible and the DNA
evidence identified only Kramer and not Appellant as a participant in the
burglaries. The trial court, however, had the opportunity to observe Kramer’s
and Hart’s testimony and the security camera recordings that showed the
-5-
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second burglar and Hart’s car at one of the burglary scenes, and found that
the jury’s conclusion that Kramer’s and Hart’s testimony was credible did not
shock its sense of justice. Trial Court Opinion and Order, 2/17/22, at 4-5.
The DNA evidence did not exclude Appellant, but was merely insufficient to
identify the man other than Kramer who had handled items involved in the
burglaries. N.T. Trial, 5/14/21, at 13-19, 39. In addition, as the trial court
noted, the absence of Appellant’s DNA would not be surprising, as the security
camera recording showed the perpetrators wearing gloves. Trial Court
Opinion and Order, 2/17/22, at 5. The trial court therefore did not abuse its
discretion in concluding that the jury’s guilty verdicts were not against the
weight of the evidence.
Appellant’s second issue is a challenge to the discretionary aspects of
Appellant’s sentence. Challenges to the discretionary aspects of a sentence
are not appealable as of right and may be considered only where the following
requirements are satisfied: 1) the appellant has preserved the issue in the
trial court at sentencing or in a motion for reconsideration of sentence; 2) the
appellant has included in his brief a concise statement of the reasons relied
on for his challenge to the discretionary aspects of his sentence in accordance
with Pa.R.A.P. 2119(f), and 3) the challenge to the sentence raises a
substantial question that the sentence is not appropriate under the Sentencing
Code. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)
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(en banc); Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super.
2018).
Appellant has satisfied the first two of these requirements. Appellant
filed a timely post-sentence motion for reconsideration of his sentence in
which he argued that the aggregate sentence that the trial court imposed was
excessive and manifestly unreasonable. Post-Sentence Motions at 6-7.
Appellant has also included a Pa.R.A.P. 2119(f) statement in his brief.
Appellant’s Brief at 9.
A substantial question exists where the appellant advances a colorable
argument that the sentencing judge’s actions were inconsistent with a specific
provision of the Sentencing Code or were contrary to the fundamental norms
of the sentencing process. Commonwealth v. DiClaudio, 210 A.3d 1070,
1075 (Pa. Super. 2019); Antidormi, 84 A.3d at 759. A claim that a sentence
was excessive coupled with claim that trial court did not consider defendant’s
rehabilitative needs presents a substantial question. Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc). Where the trial
court has imposed a guideline sentence in the standard range with the benefit
of a pre-sentence report, however, this Court will not consider the sentence
excessive or unreasonable. Commonwealth v. Corley, 31 A.3d 293, 298
(Pa. Super. 2011); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010).
-7-
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It is undisputed that the 26-to-52-month sentences that the trial court
imposed for each of Appellant’s burglary convictions were guideline standard
range sentences and that the trial court had reviewed a pre-sentence report
before sentencing Appellant. N.T. Sentencing at 2, 7, 16; Trial Court Opinion
and Order, 2/17/22, at 8; 204 Pa. Code § 303.16(a) (guideline standard
minimum sentence range for Appellant’s offense gravity and prior record score
is 24 to 30 months). The only excessiveness that Appellant asserts is that the
imposition of consecutive sentences for each of the convictions resulted in an
excessive aggregate sentence and that his sentence is excessive in
comparison to Kramer’s sentence for the same burglaries. Neither of these
arguments presents a substantial question that Appellant’s sentence is not
appropriate under the Sentencing Code.
A trial court has discretion to impose sentences consecutively to other
sentences imposed at the same time or to sentences already imposed in other
cases, and a challenge to the exercise of this discretion ordinarily does not
raise a substantial question. Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2014); Moury, 992 A.2d at 171. The imposition of consecutive,
rather than concurrent, sentences can raise a substantial question in only the
most extreme circumstances, where the aggregate sentence is unduly harsh
considering the nature of the crimes and the length of imprisonment.
Radecki, 180 A.3d at 469-70; Moury, 992 A.2d at 171-72. No such extreme
circumstances are present here. Appellant’s aggregate sentence of 8 years
-8-
J-S23036-22
and 8 months to 17 years and 4 months’ incarceration is not extreme in length
given the seriousness of the crimes, as it was less than the maximum sentence
of 20 years that can be imposed for the burglary offense that the jury found
that Appellant committed four times. 18 Pa.C.S. § 3502(a)(2), (c); 18 Pa.C.S.
§ 1103(1). Moreover, the convictions were for separate crimes committed at
different locations and against different victims. Because a defendant is not
entitled to a “volume discount” for separate crimes, the imposition of
consecutive sentences here does not raise a substantial question that the
sentence is not appropriate under the Sentencing Code. Radecki, 180 A.3d
at 468-71 (challenge to consecutive sentences for crimes against separate
victims that resulted in an 11 year 1 month to 22 year 2 month aggregate
sentence did not raise a substantial question); Zirkle, 107 A.3d at 129-31,
133-34 (challenge to consecutive sentences for three separate burglaries
committed on the same day that resulted in an 17 year 1 month to 40 year
aggregate sentence did not raise a substantial question).
Appellant’s contention that his sentence is excessive because it is
greater than the sentence that Kramer received for the same burglaries fails
to present a substantial question for two reasons. First, Appellant does not
point to anything in the record showing what sentence Kramer received.
Allegations of facts that are not in the certified record cannot be considered
on appeal. Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974);
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J-S23036-22
Moury, 992 A.2d at 174 n.9; Commonwealth v. Preston, 904 A.2d 1, 6
(Pa. Super. 2006) (en banc).
Second, even Appellant had shown that Kramer received a significantly
shorter sentence, that would not raise a substantial question that the sentence
is not appropriate under the Sentencing Code. The fact that a co-defendant
receives a lighter sentence as a result of a negotiated plea does not show that
an otherwise reasonable sentence is unreasonable. Commonwealth v. Ali,
197 A.3d 742, 764 (Pa. Super. 2018); Moury, 992 A.2d at 171, 174.
For the foregoing reasons, we conclude that the issues raised by
Appellant do not merit relief. Accordingly, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
- 10 - | 01-04-2023 | 11-18-2022 |
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