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https://www.courtlistener.com/api/rest/v3/opinions/8488263/	United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-1800 ___________________________ Carine Fuatabreh Adongafac lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: June 15, 2022 Filed: November 21, 2022 ____________ Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.* ____________ LOKEN, Circuit Judge. The Department of Homeland Security commenced removal proceedings after Carine Fautabreh Adongafac, a citizen of Cameroon, entered the United States on November 30, 2019, in Laredo, Texas. She conceded removability and applied for * The Honorable Katherine M. Menendez, United States District Judge for the District of Minnesota, sitting by designation. asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Following a hearing, the Immigration Judge (IJ) denied her application, finding that she failed to establish past persecution or a well-founded fear of future persecution. The Board of Immigration Appeals (BIA) dismissed Ms. Adongafac’s appeal in a four-page opinion. She now petitions for judicial review of the final order of removal. The BIA’s decision is the final agency action we review; we review the IJ’s decision “to the extent that the BIA adopted the findings or reasoning of the IJ.” Barrera Arreguin v. Garland, 29 F.4th 1010, 1015 (8th Cir. 2022) (quotation omitted). Ms. Adongafac raises three issues on appeal. She first argues the BIA improperly applied Fifth Circuit instead of Eighth Circuit law in denying her application. Ms. Adongafac was in Louisiana during her asylum hearing, conducted by video conference, but the case was docketed in Minnesota. Venue is proper “where the administrative hearings were completed.” Llapa-Sinchi v. Mukasey, 520 F.3d 897, 901 (8th Cir. 2008) (citation omitted); see Matter of R-C-R-, 28 I. & N. Dec. 74, 74 n.1 (B.I.A. 2020). Thus, Minnesota appears to be the proper venue. But Ms. Adongafac’s appeal to the BIA did not argue the IJ erred in applying Fifth Circuit law, so failure to exhaust deprives us of jurisdiction to consider that issue. See Molina v. Whitaker, 910 F.3d 1056, 1061 (8th Cir. 2018), citing 8 U.S.C. § 1252(d)(1). Moreover, Ms. Adongafac fails to identify how Eighth Circuit law differs from the Fifth Circuit authorities cited by the IJ and the BIA, so any error by the BIA is harmless. The government’s brief to our court relied on Eighth Circuit precedents, as will we. -2- Ms. Adongafac’s other two asylum issues require careful review.1 She argues (i) the BIA erred in upholding the IJ’s ruling that she failed to provide reasonably obtainable evidence corroborating her otherwise credible testimony, see 8 U.S.C. § 1158(b)(1)(B)(ii); 8 C.F.R. § 1208.13(a); and (ii) the IJ and the BIA erred in finding that she did not demonstrate a well-founded fear of future persecution based on a pattern and practice of persecuting similar persons. To be eligible for asylum, Ms. Adongafac must prove that she is a “refugee,” 8 U.S.C. § 1158(b)(1)(A), meaning that she is unwilling or unable to return to Cameroon “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. 1101(a)(42)(A). Ms. Adongafac claims that she was subjected to past persecution in Cameroon and has a well-founded fear of future persecution because she is an Anglophone -- that is, an English speaker -- and because the Cameroon government and military impute to her a political opinion, support of those engaging in “Separatist” activities. We review “the ultimate question of past persecution or well-founded fear of future persecution, as well as the findings underlying that determination . . . under the substantial evidence standard that applies to agency findings of fact.” Barrera Arreguin, 29 F.4th 1010 at 1015 (quotation omitted). To obtain reversal of the BIA’s determinations, Ms. Adongafac “must show that the evidence [s]he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 1 Ms. Adongafac does not separately challenge the denial of withholding of removal and relief under the CAT. The asylum officer who conducted her credible fear interview found that she was not eligible for asylum because she transited through at least one other country before entering the United States and did not apply for protection from persecution or torture. See 8 C.F.R. § 1208.13(c)(4)(i). The IJ questioned Ms. Adongafac about her extended travels before entering the United States but did not address this issue. -3- 478, 483-84 (1992); see 8 U.S.C. § 1252(b)(4)(B). Applying this highly deferential standard, we deny the petition for review. I. The Hearing Evidence Ms. Adongafac was the only person who testified at the February 24, 2020 asylum hearing. She identified herself as an Anglophone who lived in the village of Muyuka in the Southwest Region of Cameroon. According to the November 7, 2019 online edition of The Economist (part of Exhibit 4 in the Certified Administrative Record),2 after the First World War, Britain and France took over different parts of the German colony of Cameroon. Upon independence in 1961, the larger French territory joined the southern part of the British colony to form modern Cameroon. In 2016, The Economist reported, Anglophone Separatists in the smaller Northwest and Southwest Regions, claiming decades of “marginalisation,” declared independence from Cameroon. The French-dominated government hit back, beginning a still- ongoing violent conflict between the Separatists and the Cameroonian military, a conflict referred to as the “Anglophone crisis.” Hundreds of thousands of people have been forced to leave their homes. Tens of thousands have fled to Nigeria, “but most are in the bush.” The Economist reported that both sides “share some of the blame” for the violence and chaos. Ms. Adongafac testified that she operated a restaurant in Muyuka. On April 27, 2019, she heard gunshots outside in the street. One customer went out to investigate. He was shot and killed. Cameroonian military officers entered the restaurant, demanding to know if anyone knew the man who had been shot. The officers ordered everyone on the ground. They pushed Ms. Adongafac over and 2 “A War of Words,” The Economist (Nov. 7, 2019), found at https://www.economist.com/middle-east-and-africa/2019/11/07/english-speaking- villages-are-burning-in-cameroon. -4- kicked her, then asked if she knew the man or the location of “his friends,” claiming they were Separatist fighters. Ms. Adongafac said she knew nothing about him. The officers ordered the eight people in the restaurant to walk to a military truck parked outside. Ms. Adongafac was pushed onto the truck and taken to “public security in Mallorca,” where the military took her name and address and threw her in a cell. Ms. Adongafac related that she was held in a cell for ten days with some twenty other people. They were forced to sleep on the floor, given only a banana to eat every day, and had to use a bucket in the corner as a bathroom. Officers interrogated Ms. Adongafac ten times over five days about the man who was shot outside her restaurant. Though never politically active, she stated they thought she was a Separatist because she is an Anglophone and Separatists ate at her restaurant. They kicked her, whipped her with belts and batons, pushed her head into the bathroom bucket, and called her a separatist and “Anglo fool.” On the tenth night of detention, one officer forced her to undress and raped her at gunpoint, causing her to bleed and eventually pass out. She testified she was two months pregnant and believed the bleeding was from having a miscarriage. Ms. Adongafac woke up in the local district hospital where she spent five days “guarded by a village man.” On the fifth day, her Uncle came to the hospital and told her to come with him, telling her not to worry about the guard, who was not at his post. She was taken to the home of her friend, who cared for her for nine days. Her Uncle then brought her 2018 passport, an ID, money, and a Turkish airline ticket to Ecuador. He told her the military had come to her house looking for her and beaten her husband and daughter; she needed to flee the country. She went to the airport in Douala with her Uncle and boarded the plane to Ecuador with the help of an immigration official. Her direct testimony concluded: [Counsel]: What do you believe would happen if you returned to Cameroon? -5- Ms. Adongafac [to counsel]: I will be rearrested, detained, tortured, raped again. I’ll probably be killed because official[s] accused me of feeding the Separatist fighters and that will happen because I am an Anglophone. And I had escaped from prison. I escaped from the hospital. I was not released legally. In response to questions from the IJ, Ms. Adongafac testified that she escaped from the hospital without her medical records and had no medical treatment after leaving the hospital. No one requested her records “because it’s a government hospital.” She has no photos of her injuries. Her Uncle arranged her travel to Ecuador. “It was his plan. He just surprise[d] me with it.” On arriving, her plan was to hide in Ecuador for some time, “but the situation there was not favorable.” She further testified on cross examination that she did not attempt to contact her husband or her daughter before leaving Cameroon. She told her Uncle she needed to see them before leaving; he said he did not know where they were. Ms. Adongafac told the credible fear interviewer that, from Ecuador, her Uncle arranged for her to travel through Columbia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico to reach the United States. At the hearing, she testified that her passport and a cell phone that she acquired in Mexico were stolen in Mexico, but she did not report the incident. She did not attempt to contact anyone in her family with that cell phone and has not spoken to any family in Cameroon since leaving. She knows her daughter is with her older sister in Cameroon but does not know where her husband is. Following the hearing, Ms. Adongafac submitted several documents to support her testimony including: her declaration dated July 7, 2020; declarations of her Uncle dated July 17, 2020, her friend dated July 20, 2020, and two of her sisters, one who remains in Cameroon and the other who lives in Maryland, dated July 7 and 8, 2020; mental health notes; declarations from two mental health professionals addressing Ms. Adongafac’s claims of mental health issues while in detention in the United -6- States; and what Ms. Adongafac labels “Country Conditions Evidence” -- four news articles and two Human Rights Watch reports describing violence and atrocities committed during Cameroon’s Anglophone crisis. II. The Decisions under Review Based on “the totality of the circumstances presented,” the IJ “reluctantly” found that Ms. Adongafac “testified credibly with respect to the matters before it.” However, while her testimony was consistent with prior statements, including the credible fear interview, it was “so consistent, regularly using . . . indicia of having been memorized . . . that it does not appear to this Court that many of the details provided, to the limited extent that there were details provided, arose from personal experiences of [Ms. Adongafac].” When the IJ or DHS counsel “attempted to elicit any detail outside the parameters of the limited detail provided . . . [Ms. Adongafac] stumbled, faltered, and essentially was unable to provide any other detail.” Accordingly, the IJ made a positive credibility finding but found that her credible testimony “is weak” and therefore the testimony alone was “not sufficiently detailed” to support Ms. Adongafac’s burden of proof and “require[d] corroboration.” The IJ expressly considered all of the evidence and testimony “regardless of whether specifically mentioned.” The IJ found that Ms. Adongafac “failed to submit corroborative evidence in the form of any medical records or any objective evidence with respect to the physical injuries . . . that she stated were inflicted upon her because she was an Anglophone and [her] imputed support of the Separatists.” She did submit numerous statements from family members and friends in support of her application for relief. But those statements “lack sufficient detail [and] most if not the majority of the information within those statements was not based upon personal knowledge of the facts stated. . . . [N]one of the individuals who provided statements provide any specific details concerning their observations of [Ms. Adongafac], including her Uncle and her friend.” The IJ observed that no efforts were made to -7- obtain medical records and that her injuries required no further treatment after she left the hospital. Because she did not sufficiently corroborate her injuries, the IJ found that Ms. Adongafac had not met her burden of demonstrating past persecution. The IJ further found that Ms. Adongafac had likewise failed to establish a well-founded fear of future persecution. She “has not presented sufficient evidence to demonstrate that any government official in Cameroon, including the military, has searched for her, or continues to search for her, thus making her fear of return there objectively reasonable.” To the contrary, the IJ explained, Ms. Adongafac testified that when under guard at the hospital, the military “looked the other way when she, accompanied by her Uncle, simply walked out of the hospital into a waiting car and traveled to a nearby home of a friend where she stayed for several days before being able to leave without being impeded by any member of the military using her identification and a passport, and a ticket in her name.” Nor did Ms. Adongafac establish “there is a pattern or practice of persecution of a group of persons similarly situated to her on account of a protected ground . . . such that her fear of persecution upon return is reasonable.” In dismissing Ms. Adongafac’s administrative appeal, the BIA discussed in detail her claims of adequate corroborating evidence and concluded: Based on the foregoing, [Ms. Adongafac] did not adequately corroborate her claim with reasonably available evidence, and the portion of her asylum claim based on her imputed political opinion fails on this basis. We also affirm the [IJ’s] determination that [Ms. Adongafac] did not demonstrate a pattern or practice of persecution against Anglophone separatists because [she] did not establish that her fear of persecution is reasonable. These are dispositive issues, and we need not address [Ms. Adongafac’s] other arguments on appeal relating to her asylum claim. -8- III. Discussion A. An Evidentiary Issue. Ms. Adongafac first contends that the BIA “committed legal error in affirming the [IJ’s] denial of relief without considering all corroborative evidence,” namely, a declaration from her sister in Maryland that was in the administrative record, and “the extensive articles and reports that Ms. Adongafac submitted regarding the country conditions in Cameroon.” An alien seeking asylum has a due process right to a fair hearing in removal proceedings and “must be given the opportunity to fairly present evidence, offer arguments, and develop the record.” Tun v. Gonzalez, 485 F.3d 1014, 1025 (8th Cir. 2007); see 8 U.S.C. § 1229a(b)(4)(B). But on this administrative record, we conclude the contention is without merit. Regarding the sister’s declaration, the IJ questioned Ms. Adongafac’s testimony that she had no plan to come to the United States when she left Cameroon, noting she made an inconsistent statement to the asylum officer. But the IJ could not further examine the issue because “the Court does not have an affidavit from that sister.” The BIA noted on appeal that the sister’s declaration was in the record but “deem[ed] this mistake harmless error.” We note that the IJ may not even have made a “mistake” because there is some difference between a declaration sworn “under penalty of perjury” and an affidavit subscribed and sworn to in the presence of a notary public. But in any event, the sister’s declaration did not address Ms. Adongafac’s inconsistent statements that concerned the IJ, and the declaration falls squarely within what the IJ referred to as “numerous statements . . . from family members [that] lack sufficient detail [and were] not based upon personal knowledge of the facts stated.” The IJ is entitled to a “presumption of regularity” and need not “mention every piece of evidence that it considered.” Doe v. Holder, 651 F.3d 824, 831 (8th Cir. 2011). Here, the BIA addressed this issue. It did not abuse its discretion “by wholly failing to consider evidence [Ms. Adongafac] presented.” Kanagu v. Holder, 781 F.3d 912, 918 (8th Cir. 2015). -9- Regarding Ms. Adongafac’s “country conditions” evidence, she did not submit United States Department of State country reports that we have found significant in asylum cases such as Tegegn v. Holder, 702 F.3d 1142, 1146-47 (8th Cir. 2013). Rather, she submitted articles by journalists and Human Rights Watch reports describing the circumstances facing civilian victims on both sides of the Anglophone crisis. The IJ expressly stated she considered all the record evidence. The BIA did not err in concluding that this type of country conditions evidence did not establish the objective reasonableness of Ms. Adongafac’s subjective fear of future persecution on account of her imputed political opinion or her Anglophone identity. See Njong v. Whitaker, 911 F.3d 919, 924 (8th Cir. 2018). Nor did these unofficial publications establish a “pattern or practice of persecution,” which must be “systematic, pervasive, or organized.” He v. Garland, 24 F.4th 1220, 1226 (8th Cir. 2022). B. The Merits. Ms. Adongafac next argues the BIA erred in concluding that she failed to adequately corroborate her asylum claim. She argues she adequately established the lack of available medical records by credibly testifying that “nobody could have obtained the [medical] records from the hospital from which she escaped.” When the IJ “determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ may require supporting evidence “for material facts that are central to [an asylum] claim and are easily subject to verification.” Matter of L-A-C-, 26 I. & N. Dec. 516, 519 (B.I.A. 2015). If supporting evidence is not produced, the petitioner must have an opportunity to explain its unavailability, ensuring the explanation is in the record. Id. at 521-22; see Barrera Arreguin, 29 F.4th at 1016. “[T]he REAL ID Act place[s] the burden on the petitioner to corroborate otherwise credible testimony.” Uzodinma v. Barr, 951 F.3d 960, 967 (8th Cir. 2020), cert denied sub nom. Uzodinma v. Garland, 141 S. Ct. 2511 (2021). We -10- may not reverse the BIA’s determination that corroborating evidence was available “unless a reasonable trier of fact would be compelled to conclude that the evidence is unavailable.” Omondi v. Holder, 674 F.3d 793, 800 (8th Cir. 2012) (quotation omitted); accord Ntangsi v. Holder, 554 F.3d 1142, 1148 (8th Cir. 2009); Eta-Ndu v. Gonzales, 411 F.3d 977, 985-86 (8th Cir. 2005). Here, Ms. Adongafac’s asylum claim was based in large part on the alleged detention, beatings, and rape that Cameroonian military officers inflicted upon her following the shooting incident at her restaurant. Thus, when the IJ required corroborating evidence, the absence of medical records supporting hospitalization and treatment of those injuries was an important issue. The IJ found Ms. Adongafac’s explanation for not providing medical records and other evidence corroborating her injuries “not persuasive”: The Court has tak[en] into consideration [Ms. Adongafac’s explanation]. However, the Court notes that Respondent [lacked] any information of any assistance to the Court concerning how multiple people appear to have been bribed by her Uncle to facilitate [her] exodus from the hospital . . . and facilitate[d] and procure[d] the unlawful and illegal conduct by Immigration officials and other individuals at the international airport in Douala, [yet] no efforts have been made to obtain any of those medical records . . . including by bribing someone at the hospital or facility. Ms. Adongafac argues the IJ erred in finding her explanation unreasonable. We conclude that a reasonable trier of fact would not be compelled to agree. While her claim that no one requested her records “because it’s a government hospital” is plausible, in that many cases have observed that a petitioner should not be required to provide corroboration “from the persecutor,”3 the record only shows that the 3 Gontcharova v. Ashcroft, 384 F.3d 873, 878 (7th Cir. 2004), quoting In re S- M-J-, 21 I. & N. Dec. 722, 725 (B.I.A. 1997). -11- facility was a “district hospital,” not necessarily controlled by the military, and that Ms. Adongafac was able to walk away, allegedly because her Uncle had bribed a “guard” to leave his post while she did so. This hardly establishes that medical records of her injuries were not available at the hospital. Moreover, the absence of medical records was only one reason the IJ gave for finding that Ms. Adongafac did not provide adequate corroborating evidence for weak testimony that she could not support with “any detail outside the parameters of the limited detail provided.” There was no objective corroborating evidence regarding the other persons arrested with Ms. Adongafac at the restaurant; how her Uncle arranged her “escape” from the hospital and secured the help of a government official for her departure; whether she could have located her husband; whether she had no contact with her husband, daughter, and sister in Maryland before entering the United States; and the details of her apparently extensive travels en route to the United States. Ms. Adongafac’s explanation for each of these evidentiary omissions, standing alone, was perhaps understandable. But the IJ and the BIA were required to look at the record as a whole. Applying the governing deferential standard of review, we will not reverse the BIA’s ruling that the credible but weak testimony supporting her asylum claim was not adequately corroborated. We are not “compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4). Accordingly, Ms. Adongafac failed to establish her eligibility for asylum relief. III. Conclusion For the foregoing reasons, we deny the petition for review. ______________________________ -12-	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488286/	J-A17026-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RODNEY EVANS : : Appellant : No. 1936 EDA 2021 Appeal from the PCRA Order Entered August 23, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012651-2009 BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.* MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 21, 2022 Appellant Rodney Evans appeals pro se from the order dismissing his timely first Post Conviction Relief Act1 (PCRA) petition. Appellant contends that his trial counsel and direct appeal counsel were ineffective. We affirm. The underlying facts and procedural history of this case are well known to the parties. Briefly, Appellant was charged with third-degree murder and related offenses after a shooting outside of a bar in 2009. PCRA Ct. Op., 11/18/19, at 2. At trial, the Commonwealth presented evidence establishing that Appellant had an argument with another man at the bar, and this man was identified only as a man wearing a red shirt. Id. While the two men were still inside the bar, Appellant pulled out a gun, pointed it at the man in the red ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-A17026-22 shirt, and “walked him outside.” Trial Ct. Op., 8/1/11, at 4. This confrontation escalated into a gunfight, and during the gunfight between Appellant and the man in the red shirt, Mr. Peter Lyde, Jr., who was working security for the bar that night, was struck and killed by one of the bullets. Id. Appellant was convicted of third-degree murder, possessing an instrument of crime (PIC), persons not to possess firearms, and firearms not to be carried without a license.2 The jury convicted Appellant on a theory of transferred intent. See id. at 6-7 (citing Commonwealth v. Gaynor, 648 A.2d 295 (Pa. 1994)). On September 13, 2010, the trial court sentenced Appellant to a term of twenty to forty years of incarceration on the murder conviction, one to two years of incarceration for PIC, a sentence of guilt without further penalty for persons not to possess firearms, and two-and-one-half to five years of incarceration for firearms not to be carried without a license. Sentencing Order, 9/13/10, at 1. The trial court ordered Appellant to serve all sentences concurrently. See id. On direct appeal, this Court affirmed Appellant’s judgment of sentence. See Commonwealth v. Evans, 55 A.3d 131, 354 EDA 2011 (Pa. Super. filed July 11, 2012) (Evans I) (unpublished mem.). Appellant filed a PCRA petition on March 18, 2013, which the PCRA court ultimately denied as untimely. See Order, 5/24/19. On appeal, a prior panel of this Court explained that Appellant’s March 18, 2013 PCRA petition was filed ____________________________________________ 2 18 Pa.C.S. §§ 2502(c), 907(a), 6105(a), and 6106(a)(1) respectively. -2- J-A17026-22 within one year from the date Appellant’s judgment of sentence became final. Therefore, the Court concluded that the PCRA court erred in dismissing Appellant’s petition as untimely.3 Commonwealth v. Evans, 1743 EDA 2019, 2021 WL 2394589, at 1-2 (Pa. Super. filed June 9, 2021) (Evans II) (unpublished mem.). The Court also found that remand was necessary for the PCRA court to address the status of Appellant’s representation and his request to proceed pro se. Id. at 4. Therefore, we vacated the PCRA court’s order and remanded the matter to the PCRA court for further proceedings. Id. at 5. Following this Court’s remand, the PCRA court conducted a Grazier4 hearing on July 23, 2021. On July 27, 2021, the PCRA court granted Appellant’s request to proceed pro se and PCRA counsel’s motion to withdraw. Appellant did not file nor seek to file an amended PCRA petition, and on August 2, 2021, the PCRA court issued a notice of intent to dismiss Appellant’s ____________________________________________ 3 This Court affirmed Appellant’s judgment of sentence on July 11, 2012. See Evans I. Accordingly, Appellant had one year from August 10, 2012, the date on which the time for seeking an appeal in the Supreme Court of Pennsylvania expired, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(3) (explaining that for purposes of the PCRA, a petitioner’s judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of United States, or at the expiration of time for seeking review); see also Pa.R.A.P. 1113 (stating that “a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed.”). Accordingly, Appellant had until August 10, 2013, to file a PCRA petition, and his March 18, 2013 PCRA petition was timely filed. 4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). -3- J-A17026-22 PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On August 19, 2021, Appellant filed a response to the PCRA court’s Rule 907 notice, and on August 23, 2021, the PCRA court dismissed Appellant’s PCRA petition. Appellant filed a timely notice of appeal on September 14, 2021. The PCRA court did not order Appellant to file a Rule 1925(b) statement. The PCRA court subsequently issued an order incorporating prior opinions denying PCRA relief and concluding that Appellant’s PCRA petition was properly dismissed as meritless. PCRA Ct. Order, 9/14/21, at 1. On appeal, Appellant raises the following issues for review: 1. Did the PCRA court err in denying Appellant’s claim that trial counsel was ineffective for failing to adequately investigate Appellant’s point of law and understand a ballistics expert with an accurate measurement was needed to expose a forensic contradiction between the evidence and the Commonwealth’s expert witness’s testimony? 2. Did the PCRA court err in denying Appellant’s claim that trial counsel was ineffective for failing to object and request a mistrial to the court’s unrecorded ex parte instruction, and that direct review counsel was ineffective for failing to raise the claim? 3. Did the PCRA court err in denying Appellant’s claim that trial counsel was ineffective for failing to object, and that direct review counsel was ineffective for failing to raise the trial court’s improper mandatory presumption instruction which removed the choice from the jury to choose an independent intervening cause? Appellant’s Brief at 3-4. -4- J-A17026-22 Failure To Call Ballistics Expert In his first claim, Appellant argues that trial counsel was ineffective for failing to call a ballistics expert at trial. Appellant’s Brief at 14-29. Appellant claims that testimony from ballistics expert Carl Leisinger would have shown to the jury that it was impossible for discharged shell casings to eject over fifty feet from where Appellant was allegedly standing. Id. at 23. Appellant contends that Mr. Leisinger’s expert testimony would have bolstered the defense, and trial counsel had no reasonable basis for not calling him as a witness at trial. Id. at 23-25. [O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions. Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and formatting altered). It is well settled that counsel is presumed to be effective, and Appellant bears the burden of proving otherwise. Commonwealth v. Thomas, 270 A.3d 1221, 1226 (Pa. Super. 2022). This Court has explained: [T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her -5- J-A17026-22 action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. * * Boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness. Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered). To satisfy the arguable merit prong for a claim of ineffectiveness based upon trial counsel’s failure to call an expert witness, the petitioner must prove that an expert witness was willing and available to testify on the subject of the testimony at trial, counsel knew or should have known about the witness and the defendant was prejudiced by the absence of the testimony. Prejudice in this respect requires the petitioner to show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case. Therefore, the petitioner’s burden is to show that testimony provided by the uncalled witnesses would have been helpful to the defense. Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016) (citations and footnote omitted and formatting altered). Trial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony [that] was presented by the prosecution. Thus, the question becomes whether or not [defense counsel] effectively cross- examined [the Commonwealth’s expert witness]. Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. 2002) (citations omitted and formatting altered). -6- J-A17026-22 Here, the PCRA court addressed this issue as follows: In support of this claim, Appellant presented a report of a newly hired expert, Carl Leisinger. Specifically, Appellant alleged that Mr. Leisinger’s opinion was that location of the 9mm discharged shells demonstrated that the shooter of the fatal bullet could not have been where Appellant was alleged to have been since it was about 50 feet from where those shells were recovered. This claim, too is meritless, as the proposed testimony was consistent, not inconsistent with the testimony of the Commonwealth’s testifying expert, Officer Walsh, who also testified that the casings could not have traveled such a distance on their own. N.T., 6/18/10, 50- 51. In fact, this issue was not in dispute. The evidence was not that Appellant’s gun killed the victim. Instead, it was alleged that Appellant’s conduct, which began inside the bar, escalated into the gunfight in which the man in the red shirt fired the fatal bullet. Accordingly, this new witness, even if called would not have changed the verdict and, accordingly, counsel could not have been ineffective. PCRA Ct. Op., 11/18/19, at 7-8. After review, we conclude that although Appellant attached a copy of Mr. Leisinger’s report to his amended PCRA petition,5 Appellant failed to establish that Mr. Leisinger was willing and available to testify at Appellant’s trial. Accordingly, Appellant’s claim fails. See Williams, 141 A.3d at 460; see also Commonwealth v. Williamson, 2022 WL 2127289, at *3 (Pa. Super. filed June 14, 2022) (unpublished mem.) (explaining that a claim that counsel was ineffective for failing to call an expert witness is facially defective when the petitioner fails to show that the expert was available and willing to ____________________________________________ 5 See Am. PCRA Pet., 10/6/14, at Ex. B. -7- J-A17026-22 testify for the defense (citing Commonwealth v. Selenski, 228 A.3d 8, 17 (Pa. Super. 2020)).6,7 In any event, were we to reach the merits of this issue, we would affirm on the basis of the PCRA court’s opinion. See PCRA Ct. Op., 11/18/19, at 7- 8. Had this issue been properly presented, we would find no error in the PCRA court’s conclusions. See Sandusky, 203 A.3d at 1043. As noted by the PCRA court, the evidence at trial established that Appellant engaged in a gunfight, and this gunfight resulted in the death of Mr. Lyde. Appellant was convicted of murder on a theory of transferred intent. See PCRA Ct. Op., 11/18/19, at 8; Trial Ct. Op., 8/1/11, at 6-7. The Commonwealth’s evidence also established that the 9mm shell casings at issue could not have travelled more than fifty feet from where one witness placed Appellant. See PCRA Ct. Op., 11/18/19, at 8 (citing N.T. 6/18/10, at 50-51). Appellant’s argument that Mr. ____________________________________________ 6We may cite to unpublished memorandum decisions of this Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b). 7 Additionally, much of Appellant’s argument on this first issue directly challenges the weight of the evidence rather than counsel’s stewardship. See Appellant’s Brief at 17-29. We note that Appellant thoroughly, but unsuccessfully, litigated a challenge to the weight of the evidence on direct appeal. See Evans I, 354 EDA 2011 at 6-10. We are cognizant that an issue presented as a claim of ineffective assistance of counsel is distinct from a weight claim raised on direct appeal. See, e.g., Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011). Here, however, Appellant directly challenges the weight of the evidence throughout his argument, and because this issue was raised and addressed on direct appeal, we conclude that it was previously litigated, relief was denied, and further review of this issue is precluded. See 42 Pa.C.S. § 9544(a)(2) (providing that an issue is previously litigated where “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue[.]”). -8- J-A17026-22 Leisinger would have testified to this same conclusion would not benefit Appellant’s defense. In other words, Appellant cannot establish prejudice because the proposed testimony was cumulative, and it concerned facts that were not in dispute and would not have changed the outcome of the trial. See Williams, 141 A.3d at 460. Therefore, were we to reach this issue, we would agree with the PCRA court that the claim fails. See PCRA Ct. Op., 11/18/19, at 7-8. Ex Parte Jury Instruction In his next issue, Appellant argues that both trial counsel and direct appeal counsel were ineffective for failing to challenge the trial court’s alleged ex parte jury instruction. Appellant’s Brief at 29-38. Appellant contends that the trial court answered two questions from the jury outside the presence of Appellant and trial counsel, and that trial counsel and direct appeal counsel were ineffective for failing to raise the issue. See id. The Commonwealth responds that Appellant’s entire claim is based on the fact that the challenged jury questions and the trial court’s answers were not included in the notes of testimony, and further that Appellant has not established that any ex parte communication occurred. Commonwealth’s Brief at 9. Therefore, the Commonwealth contends that Appellant’s claim is meritless. Id. at 10. When a defendant claims that current counsel was ineffective for failing to challenge prior counsel’s effectiveness, the defendant must present a -9- J-A17026-22 layered claim of ineffectiveness. See Commonwealth v. McGill, 832 A.2d 1014, 1022-23 (Pa. 2003). This Court has explained: Where the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney. Layered claims of ineffectiveness are not wholly distinct from the underlying claims, because proof of the underlying claim is an essential element of the derivative ineffectiveness claim. In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue. Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations omitted and formatting altered), abrogated in part by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). However, it is well settled that “counsel cannot be deemed ineffective for failing to raise a meritless claim.” Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citation omitted). Here, the PCRA court concluded that Appellant’s claim lacked arguable merit because Appellant did not establish that the alleged unrecorded ex parte jury instruction actually occurred. PCRA Ct. Op., 9/28/20, at 8. Based on our review of the record, we agree with the PCRA court’s conclusion. The notes of testimony reflect that the trial court received and answered the jury’s “third” question on July 1, 2020. See N.T., 7/1/10, at 2. The notes of testimony clearly reflect that trial counsel was present at that time. See - 10 - J-A17026-22 id. at 2. However, there is no indication in the record that an ex parte communication by the trial court to the jury occurred or that trial counsel believed that an ex parte communication took place. Further, as noted by the PCRA court, Appellant failed to present any evidence, establishing that the trial court gave an ex parte instruction to the jury. Instead of providing an affidavit from trial counsel that would support his claim, Appellant presents a letter from court reporter Kim Kendall which states that there are no notes of testimony from June 30, 2010, which was the date that the trial court allegedly answered the jury’s first two questions, but the letter does not indicate that the trial court conducted ex parte communications with the jury. Second Am. PCRA Pet., 8/5/15, at Ex. B. Accordingly, even if there were no notes of testimony from that date, there is no support for Appellant’s accusation that trial court conducted the proceedings while Appellant and trial counsel were absent from the courtroom. For these reasons, we find no error in the PCRA court’s conclusion that Appellant’s claim is meritless. See Sandusky, 203 A.3d at 1043. Therefore, because there is no arguable merit to Appellant’s contention, his ineffectiveness claims fail. See Treiber, 121 A.3d at 445; Rykard, 55 A.3d at 1190. Accordingly, Appellant is not entitled to relief. Causation Instruction In his final issue, Appellant argues that trial counsel was ineffective for failing to challenge the trial court’s jury instruction regarding the causation element for third-degree murder. Appellant’s Brief at 38-39. Appellant claims - 11 - J-A17026-22 that the jury instruction prevented the jury from finding that there was an independent intervening cause and created a mandatory presumption. Id. at 39-42. Appellant asserts that trial counsel had no reasonable basis for failing to raise the claim, and direct appeal counsel had no reasonable basis for failing to present the claim on direct appeal. Id. at 42-43. As stated previously, “counsel cannot be deemed ineffective for failing to raise a meritless claim.” Treiber, 121 A.3d at 445. Therefore, Appellant must show a reasonable probability that counsel’s objection to the challenged instruction would have led to a more favorable outcome. See generally Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). With regard to jury instructions, our Supreme Court has explained: The trial court possesse[s] broad discretion in phrasing its instructions to the jury and [is] permitted to choose its own wording so long as the law was clearly, adequately and accurately presented to the jury for consideration. Furthermore, a trial court need not accept counsel’s wording for an instruction, as long as the instruction given correctly reflects the law. It is axiomatic that, in reviewing a challenged jury instruction, an appellate court must consider the charge in its entirety, not merely isolated fragments, to ascertain whether the instruction fairly conveys the legal principles at issue. Instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations. Commonwealth v. Fletcher, 986 A.2d 759, 802 (Pa. 2009) (citation omitted). Further, this Court has stated: A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to - 12 - J-A17026-22 fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (citations omitted). “In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” See id. (citation omitted). A mandatory presumption “tells the trier of fact that he must find the elemental fact upon proof of the basic fact.” Commonwealth v. Hall, 830 A.2d 537, 544 (Pa. 2003). When determining whether a charge created a mandatory presumption, the analysis is as follows: The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. Francis v. Franklin, [471 U.S. 307, 314 (1985)] (quoting Speiser v. Randall, 357 U.S. 513, 514 (1958)). This Court must determine whether the challenged portion of the instruction creates a mandatory presumption, or merely a permissive inference. A mandatory presumption instructs the jury that it must infer the presumed fact if the state proves certain predicate facts. On the other hand, a permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but [it] does not require the jury to draw that conclusion. In determining whether a mandatory presumption or a permissive inference has been created, a reviewing court must assess the challenged instruction from the viewpoint of a reasonable juror and declare it to create a “mandatory presumption” if such a juror could reasonably believe that proof of the predicate facts automatically shifts the burden of persuasion on the relevant element to the defendant. See id., 471 U.S. at 315. A mandatory presumption is the more troublesome of the two evidentiary devices, “for it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that - 13 - J-A17026-22 burden; it tells the trier that he or she must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Ulster County Court v. Allen, 442 U.S. 140, 157 (1979). If a jury instruction contains a mandatory presumption, a reviewing court must examine the presumption on its face to determine the extent to which the basic and elemental facts truly coincide. If these facts do not coincide, then the presumption will be deemed violative of due process, regardless of whether an independent evaluation of the facts presented by the state supports the mandatory inference. See id. If, on the other hand, a jury instruction contains a permissive inference, then the totality of evidence in the record other than the presumption will be germane in an analysis of the inference’s constitutional validity. See id. Thus, the first step for this Court is to decide whether the instruction given by the trial court created either a mandatory presumption or a permissive inference. Commonwealth v. Kelly, 724 A.2d 909, 911-12 (Pa. 1999) (formatting altered). Here, as stated previously, Appellant was convicted of third-degree murder, and the standard jury instruction for causation provides, in relevant part, as follows: 1. The defendant has been charged with killing [or] causing the death of [name of victim]. To find the defendant guilty of this offense, you must find beyond a reasonable doubt that the defendant’s conduct was a direct cause of his . . . death. 2. In order to be a direct cause of a death, a person’s conduct must be a direct and substantial factor in bringing about the death. There can be more than one direct cause of a death. A defendant who is a direct cause of a death may be criminally liable even though there are other direct causes. 3. A defendant is not a direct cause of a death if . . . the actions of a third person [or] the occurrence of another event plays such an independent, important, and overriding role in bringing about the death, compared with the role of the defendant, that the - 14 - J-A17026-22 defendant’s conduct does not amount to a direct and substantial factor in bringing about the death. 4. A defendant’s conduct may be a direct cause of a death even though his or her conduct was not the last or immediate cause of the death. Thus, a defendant’s conduct may be a direct cause of a death if it initiates an unbroken chain of events leading to the death of the victim. Pa. SSJI (Crim), § 15.2501C(1)-(4) (some formatting altered). Moreover, the standard jury instruction for transferred intent states: The Commonwealth has alleged that while the defendant intended to kill . . . [name of intended victim], he . . . actually caused the death of [name of deceased]. If you find beyond a reasonable doubt that the defendant intended to kill . . . [name of intended victim] and was . . . acting with that intent at the time he . . . in fact killed [name of deceased], you may find the defendant acted with the specific intent to kill under what the law calls the doctrine of transferred intent. What this means is that if the actual result the defendant intended differs from what he . . . contemplated only because a different person than the one actually intended was killed, the element of causing the death with specific intent to kill is still established. Pa. SSJI (Crim), § 15.2501C.1. The record reflects that the trial court conducted a charging conference at which both trial counsel and the Commonwealth discussed the proposed jury instructions. See N.T., 6/28/10, at 5-38. At that time, trial counsel reiterated the defense theory that the actions of the man in the red shirt constituted an independent intervening cause of the victim’s death and therefore an affirmative defense to the third-degree murder charge. See id. at 12. Specifically, trial counsel argued that if Appellant “did not shoot or demonstrate his intent to shoot,” then the actions by the man in the red shirt - 15 - J-A17026-22 were not “self defensive” and “would be an independent intervening cause of death.” Id. at 15. Therefore, trial counsel requested an instruction stating that the jury could only reject the independent intervening cause theory if it specifically found that Appellant not only chased the man in the red shirt while “brandishing” a gun, but also gave chase “while pointing a gun with the intent to shoot.” See id. at 12-19. Ultimately, the trial court instructed the jury that Appellant was charged with causing the death of Mr. Lyde. The court informed the jury that before it may find Appellant guilty of third-degree murder, it must find that Appellant’s actions constituted a direct cause of Mr. Lyde’s death, and that Appellant acted with malice. N.T. 6/29/10, at 132, 136-37. The trial court further stated: In order to be a direct cause of a death a person’s conduct must be a direct and substantial factor in bringing about the death. There can be more than one direct cause of the death. A defendant who is a direct cause of the death may be criminally liable even though there are other direct causes. However, a defendant is not a direct cause of the death if the actions of the third person or the occurrence of another event played such an independent important and overriding role in bringing about the death compared with the role of the defendant that the defendant’s conduct does not amount to a direct and substantial factor in bringing about the death. A defendant’s conduct may be a direct cause of the death even though his conduct was not the last or immediate cause of the death. Thus, a defendant’s conduct may be a direct cause of the death if it initiates an unbroken chain of events leading to the death of the victim. When the defendant with a conscious disregard of life intentionally commits an act that is likely to cause death and his intended victim - 16 - J-A17026-22 or someone else kills in reasonable response to such act the causation element has been satisfied[.] Id. at 133 (formatting altered). The trial court included the following examples of where an independent intervening cause cannot be established: [F]or example, by initiating a gunfight or participating in mutual gunfights or while chasing someone while brandishing a gun with the intent to shoot or by some other similar aggressive conduct which demonstrates to the jury that the defendant had a conscious disregard for life. Under those circumstances a self- defense killing by someone other than the defendant cannot be considered an independent intervening cause. Id. at 133-134 (formatting altered). Here, the PCRA court rejected Appellant’s claim that trial counsel and direct appeal counsel were ineffective for failing to challenge the jury instruction for causation. See PCRA Ct. Op., 11/18/19, at 7. Based on our review of the record, we agree with the PCRA court’s conclusion. The record reflects that trial court provided the standard jury instruction for both causation and transferred intent. As part of the charge for third- degree murder, the jury was instructed to determine if Appellant’s conduct was the cause of Mr. Lyde’s death or if there was an independent intervening action of another person that was the direct cause of Mr. Lyde’s death. N.T., 6/29/10, at 133. Because there was evidence that the man in the red shirt may have fired shots at Appellant in self-defense, the trial court instructed the jury to consider whether Appellant initiated the gunfight or if Appellant pursued the man in the red shirt with the intent to shoot him. Id. at 134. The trial court then stated that if the evidence showed that Appellant engaged - 17 - J-A17026-22 in either action, they could not find that the actions by the man in the red shirt were an independent intervening cause of the victim’s death. See id. Following our review of the record, we find no error in the PCRA court’s conclusion on this issue. See Sandusky, 203 A.3d at 1043. On this record, there is no basis to conclude that the trial court’s instruction created a mandatory presumption regarding the causation element for third-degree murder. As noted previously, the trial court gave the standard instruction for causation and accurately described the circumstances where an independent intervening cause may exist. Therefore, we conclude that the trial court’s instructions, when read as a whole, did not relieve the Commonwealth of its burden of proving the elements of the crime beyond a reasonable doubt. See Fletcher, 986 A.2d at 803; see also Sandusky, 203 A.3d at 1099. Further, trial counsel was not ineffective in failing to object to jury instructions that, when viewed as a whole, properly informed the jury on the law and which did not create a mandatory presumption. See Fletcher, 986 A.2d at 803; Kelly, 724 A.2d at 911-12. Similarly, because the underlying issue was meritless, direct appeal counsel was not ineffective for failing to raise the issue on appeal. See Treiber, 121 A.3d at 445. For these reasons, Appellant is not entitled to relief. Order affirmed. - 18 - J-A17026-22 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 - 19 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488278/	J-E03001-21 2022 PA Super 197 AISHA MONROE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CBH20, LP, D/B/A CAMELBACK SKI : No. 1862 EDA 2019 RESORT D/B/A CAMELBACK SKI : CORPORATION : Appeal from the Order Dated May 16, 2019 In the Court of Common Pleas of Monroe County Civil Division at No.: 8184-CV-2016 BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J. DISSENTING OPINION BY STABILE, J.: FILED NOVEMBER 21, 2022 I respectfully dissent from my learned colleagues. I would affirm the trial court’s grant of judgment on the pleadings, or alternatively grant summary judgment, in favor of the Appellee CBH20, LP (“Camelback”) and against Appellant Aisha Moore (“Appellant” or “Plaintiff”), as requested in Camelback’s motion for judgment on the pleadings, and its supplemental motion for summary judgment (“the “Motion”). In my opinion, the Majority fails to consider a crucial part of the pleadings in its review of the motion for judgment on the pleadings and relies upon facts not supported by the record in its review of summary judgment. A. The Motion for Judgment on the Pleadings Plaintiff filed a claim for negligence to which Camelback asserted as a defense in its answer and new matter, inter alia, that the action was barred J-E03001-21 by Plaintiff’s execution of an “Activity Release and Agreement Not To Sue” (“the “Activity Release”). The issue to be decided was whether Plaintiff pled or sufficiently pled that Camelback engaged in “reckless” conduct so that the fact of the Activity Release would not bar a potential recovery. The trial court, like the Majority, identified only paragraph 21 in Plaintiff’s amended complaint that averred “recklessness” for examination. The trial court granted Camelback’s motion for judgment on the pleadings concluding that while Plaintiff used the term “recklessness” in this sole paragraph, none of the allegations in support of that term approach the type of conduct necessary to prove or plead a claim for reckless conduct. Trial Court’s Pa.R.A.P. 1925(a) Statement (the “Statement”), 8/16/19, at 9. Paragraph 21, which I reproduce again for ease of reference, provided as follows: 21. [Camelback’s] recklessness, carelessness and negligence included, but was not limited to: a. Failing to properly monitor the speed of the zipline, in disregard of the safety of [Ms. Monroe]; b. Failing to use reasonable prudence and care by leaving [Ms. Monroe] to land with no help, in disregard of the safety of [Ms. Monroe]; c. [Left blank] d. Failing to use reasonable prudence and care to respond to [Ms. Monroe]’s safety concerns during the zip[-]lining, specifically when [Ms. Monroe] as[ked Camelback] to slow down the zip[-]lining machine, in disregard of the safety of Ms. Monroe; and, -2- J-E03001-21 e. Failing to inspect and/or properly monitor the zip[-]lining machine engine, in disregard of the safety of [Ms. Monroe]. Amended Complaint, 1/25/17, at ¶ 21. The court concluded that Plaintiff’s list of alleged wrongs included within this paragraph such as “properly” and “reasonable prudence” and the omission of terms reserved for recklessness, such as “conscious disregard” or “reckless disregard” or “extreme departure from ordinary care” were insufficient to support a recklessness claim. The Statement at 9. The Majority finds error with the trial court concluding instead that the pleading requirements under Pa.R.Civ.P. 1019 do not render Plaintiff’s amended complaint insufficient. Rule 1019 provides in relevant part: Rule 1019. Contents of Pleadings. General and Specific Averments (a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. (b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally. Pa.R.Civ.P. 1019. The Majority interprets the plain language of this Rule to instruct that while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind. Majority Opinion at 18. The Majority thus frames the question, not as one of pleading sufficiency, but whether recklessness constitutes a state of mind or a material fact upon which a cause of action is based, id., impliedly signaling -3- J-E03001-21 that a general allegation of recklessness alone is sufficient to defeat Camelback’s motion. The Majority concludes that the specific allegations of negligence and general allegations of recklessness are sufficient to meet the requirements of Rule 1019(a) and (b), and hence, judgment on the pleadings should not have been granted. Id. at 23. While the trial court and the Majority reach differing conclusions on whether judgment on the pleadings should be granted, I believe both failed to recognize how and when “recklessness” should have been pled in this case and hence, how that should have affected the outcome of the Motion. Rule 1034 governs motions for judgment on the pleadings and provides in relevant part: (a) After the relevant pleadings are closed, but within such time as not to unreasonably delayed the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings. Pa.R.Civ.P. 1034. Pleadings allowed are limited to a complaint and answer, a reply if the answer contains new matter, a counterclaim or cross-claim, a counter-reply if the reply to a counterclaim or cross-claim contains new matter, and a preliminary objection and a response thereto. Pa.R.Civ.P. 1017. In my opinion, the Majority, like the trial court, improperly focused solely upon the allegations of the amended complaint, to decide if judgment on the pleadings should have been granted. Both fail to recognize that the issue of recklessness was introduced into this case by virtue of Camelback pleading -4- J-E03001-21 the Activity Release as an affirmative defense in its new matter to the amended complaint. It is in this context that the sufficiency of the pleadings with respect to the issue of “recklessness” had to be considered. The Majority correctly notes that gross negligence and recklessness have not historically been identified as independent causes of action. Instead, they are aggravated forms of negligence. Majority Opinion at 19, citing PROSSER AND KEATON ON TORTS (5th ed. 1984) at § 34, 208-14. I agree. Plaintiff asserted a single cause of action for negligence. She was not required to separately plead a cause of action for “recklessness”. In fact, she did not even have to plead recklessness in her count for negligence for that cause of action to survive. Her amended complaint sufficiently sets forth a cause of action for negligence and could not be dismissed for failure to state a cause of action. Camelback however, in its answer, by way of asserting new matter, pled the Activity Release executed by Plaintiff as a bar to her claim, as she expressly agreed to release Camelback and not sue for any alleged negligence, including gross negligence, or any other improper conduct. Camelback’s Answer, New Matter and Counterclaim at ¶¶ 41, 42. Camelback’s pleading of the Activity Release constituted an affirmative defense raised as new matter to Plaintiff’s amended complaint. See Pa.R.Civ.P. 1030. Camelback was obligated to raise the issue of the release as new matter otherwise that affirmative defense would be considered waived. Pa.R.Civ.P. 1032. With the release pled as an affirmative defense, Plaintiff in turn, at that pleading -5- J-E03001-21 juncture, was obligated to meet this affirmative defense with an appropriate response, i.e., that the release does not bar reckless conduct by pleading specifically that conduct by Camelback was reckless conduct. In her reply to this new matter, Plaintiff responded identically to both paragraphs 41and 42 with “Denied. This is a conclusion of law to which no response is required; nonetheless, such averment is denied and strict proof thereof is demanded.” Plaintiff did not aver that the Activity Release could not bar reckless conduct, nor did she aver further facts to demonstrate that Camelback’s conduct was reckless. It was at this point in the pleadings that the issue of recklessness became relevant and Plaintiff, if not before, needed to plead the manner in which Camelback’s conduct was “reckless”, since an exculpatory clause in a contract does not release a defendant from liability arising out of recklessness. See Tayar v. Camelback Ski Corp. Inc., 47 A.3d 1190, 1203 (Pa. 2012). Plaintiff was not required to plead reckless conduct to sustain a cause of action for negligence, but was obligated to assert recklessness as a defense to Camelback’s affirmative defense that her action was barred by execution of the Activity Release. This pleading dynamic was explained in Goldman v. McShain, 247 A.2d 455 (Pa. 1968) as follows: [T]o say that a possible affirmative defense exists to a complaint is not to say that such a complaint is legally insufficient on its face. It may still state a claim upon which relief can be granted, even though the relief itself will eventually be denied should defendant prove his affirmative defense. Surely, for example, we would not hold that a complaint in trespass failed to state a claim upon -6- J-E03001-21 which relief could be granted simply because the defendant's new matter raised the defense of contributory negligence. To prevail, defendant would still have to prove that defense at trial or somehow succeed in having plaintiff admit it in his own pleadings. Id. at 461 (emphasis added). Instantly, no one challenges that Plaintiff stated a cause of action for negligence. Neither the trial court nor the Majority recognize that it was by virtue of Camelback’s new matter and Plaintiff’s response thereto that the issue of “recklessness” became material to this action. Both limited their examination to the averments of the amended complaint under which recklessness was not an essential element to Plaintiff’s negligence action. Plaintiff in her brief argues that she did not have to plead “recklessness” because it is a conclusion of law. Appellant’s Brief at 26. Regardless, once the release became an issue as an affirmative defense, Plaintiff was obligated to respond in a legally sufficient manner in her reply to new matter and no longer could rest in the belief that her cause of action for negligence did not have to plead recklessness to survive a sufficiency challenge. She did not do so. A defendant is entitled to judgment on the pleadings when a plaintiff’s reply to new matter is insufficient as a matter of law. Pisiechko v. Diaddorio, 326 A.2d 608, 611-12 (Pa. Super. 1974). Moreover, a defendant is entitled to judgment on the pleadings when a plaintiff fails to reply sufficiently to new matter raising an affirmative defense. Wimbish v. School District of Penn Hills, 430 A.2d 710, 711-12 (Pa. Cmwlth. 1981). Averments in a pleading to which a responsive pleading is required are -7- J-E03001-21 admitted when not denied specifically or by necessary implication. Pa.R.Civ.P. 1029(b). Further, a general denial or a demand for proof shall have the effect of an admission. Id. Here, Camelback averred at paragraphs 41 and 42 of its new matter: 41. Plaintiff’s claims are barred by the terms of the “ACTIVITY RELEASE AND AGREEMENT NOT TO SUE.” (See a true and correct copy of the “ACTIVITY RELEASE AND AGREEMENT NOT TO SUE” incorporated herein, attached hereto and marked as Exhibit “A.”) 42. Plaintiff’s claims are barred by the “ACTIVITY RELEASE AND AGREEMENT NOT TO SUE” where Plaintiff specifically released defendant Camelback from suit for any alleged negligence, including gross negligence, of defendant Camelback: I agree that I will not sue camelback resort, its operating divisions, owners and operators and their officers, directors, agents, servants and employees… and will release camelback from any and all liability if I am or ever was injured… while using any of Camelback’s facilities or while present on Camelback’s property, even if I contend that such injuries are the result of negligence, including gross negligence, or any other improper conduct… I further agree that I will indemnify and hold harmless Camelback from any loss, liability damages or costs of any kind that may occur as the result of any injury to myself or to any persons for whom I am signing this agreement, even if I contend that such injuries are the result of negligence, including gross negligence, or any improper conduct… Answer, New Matter and Counterclaim at ¶¶ 41, 42. As stated, Plaintiff responded to both these paragraphs with the identical response - “Denied. This is a conclusion of law to which no response is required; nonetheless, such averment is denied and strict proof thereof is demanded.” To the extent -8- J-E03001-21 Plaintiff was required to admit or deny each averment of fact under paragraphs 41 and 42, the responses given were insufficient, as the responses simply denied the averments and demanded proof. These responses constituted an admission of facts pled by Camelback in these two paragraphs. Pa.R.Civ.P. 1029(b). Consequently, Camelback was entitled to have the factual averments in these paragraphs admitted. The facts deemed admitted would include the authenticity of the release and that Plaintiff specifically agreed to release Camelback from suit for any alleged negligence, including gross negligence.1 More importantly, to avoid the application of the release, Plaintiff was obligated to respond in some manner that the release did not bar her action because of Camelback’s reckless conduct. Plaintiff did not do so and consequently, recklessness was not averred as a defense to the release. In essence, Plaintiff failed to respond sufficiently to Camelback’s assertion of the Activity Release as a bar to her action. Plaintiff’s amended complaint could not be dismissed for failure to state a cause of action. Judgment on the pleadings could have been granted however, if Plaintiff failed to respond or sufficiently respond to new matter ____________________________________________ 1 Determining whether averments constitute facts or conclusions of law is not always an easy exercise. See Gotwalt v. Dellinger, 577 A.2d 623, 626-27 (Pa. Super. 1990) (in evaluating whether an averment contained in a new matter requires a response, courts must consider whether the averments are fact-based or are merely conclusions of law. As a component of this analysis, courts consider complex and abstract legal principles and utilize a large degree of discretion). -9- J-E03001-21 allegations that would defeat her action. Neither the trial court nor the Majority examined the issue of recklessness in the proper pleading context it had to be considered, focusing instead only upon the amended complaint and ignoring that the issue of recklessness was a product of new matter and that it only became relevant in that context. Nonetheless, Rule 1034 requires that a court review all the relevant pleadings in a case when deciding whether to grant a motion for judgment on the pleadings. Despite Plaintiff’s failure to adequately plead recklessness in response to the Activity Release raised as new matter, Rule 1034 still requires a comprehensive review of all the pleadings to determine whether Plaintiff pled recklessness elsewhere even though pleading recklessness was not required to assert a negligence cause of action. This returns us to paragraph 21 of Plaintiff’s amended complaint, the only paragraph where “recklessness” was averred. While I end by examining the amended complaint, the point where the Majority begins its analysis, this is not merely form over substance. The question is not whether recklessness is a state of mind that may be generally pled in a complaint as framed by the Majority. Rather, the question is whether the pleadings sufficiently allege reckless conduct as a response to Camelback’s affirmative defense that Plaintiff’s action is barred by the Activity Release. I conclude the pleadings are not sufficient to overcome the affirmative defense of the Activity Release. In Tayar, our Supreme Court discussed at length the difference between negligent and reckless conduct that I find to be more on point than - 10 - J-E03001-21 the Majority’s resort to treatise that attempts to explain recklessness in the context of comparing “willful, wanton, and reckless” conduct. See Majority Opinion at 18-20. Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, [] 69 A.2d 76 ([Pa.] 1949) we cited with approval the Restatement (Second) of Torts definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines “reckless disregard” as follows: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” Id., cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness: Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose - 11 - J-E03001-21 this danger to any reasonable man.... The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind. Id., cmt. g; see also AMJUR Negligence § 274 (“Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others”). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk,” while a person acts negligently when he “should be aware of a substantial and unjustifiable risk”). This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. Tayar, 47 A.3d at 1200-1203 (emphasis added). Distilled to a few simple concepts, reckless conduct may be characterized as conduct falling just short of intentional conduct where there is conscious action by an actor with knowledge that their conduct may pose an unreasonable risk of harm or a serious danger to others. In other words, an actor must know that their conduct presents an unreasonable risk or serious harm to another, but the actor decides nonetheless, to continue in their conduct despite knowing of the risk and potential serious injury to another. To fully appreciate the level of culpability that must be pled to demonstrate reckless conduct, one need only consider that recklessness is conduct that demonstrates such an indifference - 12 - J-E03001-21 to the rights of others that, in an appropriate case, punitive damages may be awarded. See Feld v. Merriam, 485 A.2d 742 (Pa. 1984) (punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. Punitive damages must be based on conduct which is malicious, wanton, reckless, willful, or oppressive). Paragraph 21 of Plaintiff’s amended complaint falls far short of averring egregious conduct that may be considered as reckless. Plaintiff averred Camelback was reckless, careless, and negligent for failing to monitor the speed of the zip line, it left Plaintiff to land without help, did not respond to Plaintiff’s request to slow down the zip lining machine, and failed to monitor the zip lining machine engine. Absent from all these averments, individually or collectively, is any suggestion that Camelback was consciously aware that its conduct would pose a serious risk of injury to Plaintiff and that it decided nonetheless to proceed in its conduct. Despite attaching the label of “recklessness” to her averments, Plaintiff only has averred facts, if proven, that may establish inadvertence or negligence. In my opinion, judgment on the pleadings was properly entered by the trial court in Camelback’s favor. I believe it also is important to recognize that, when considering whether reckless conduct is present, the nature of the venture must be placed in context. Some sports are inherently dangerous, i.e., sky diving, car racing, downhill skiing, scuba diving, etc. Zip lining also is a sport sought after by - 13 - J-E03001-21 thrill seekers that presents inherent dangers.2 A person, properly equipped with protective equipment, voluntarily agrees to launch themselves from the top of a platform falling at whatever speed gravity dictates over some distance on a length of line to arrive at a distant point where a landing is required. These environs present inherent risks. While precautions must be taken, a charge of reckless conduct cannot be made out in a vacuum ignoring the risk of injury inherent in the sport. Falling at whatever speed gravity dictates and perfecting a safe landing present risks voluntarily assumed by a participant. Even the exercise of all reasonable care by an operator cannot rule out the possibility of sustaining some injury when performing those tasks. Given its interpretation of Rule 1019, the Majority emphatically states that its ruling removes any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the defendant acted recklessly, the latter state-of- mind issue may only be resolved as a matter of law after discovery has closed. ____________________________________________ 2 See https://www.robsonforensic.com/articles/zip-line-safety-expert. “According to a 2015 study by the American Journal of Emergency Medicine, the number of zip line injuries in the United States reached 3,600 in 2012, 11.64 per 1 million population. This compares with 0.0127/1 million population for amusement park rides (2015). Reported injuries included broken bones (46%), bruises (15.2%), strains/sprains (15.1%), and concussions/closed head injuries (7%). Ohio State University researchers found that approximately 12% of zip line injuries resulted in hospitalization. Between 2006 and 2016 there were 16 zip line fatalities reported in the United States, predominantly from falls (77%), material failures, collisions, and entanglements.” - 14 - J-E03001-21 Majority Opinion at n. 6. Respectfully, I strongly disagree and find this statement of principles not to be supported by our case law. When relevant, Rule 1019(b) allows a condition of mind to be averred generally, but this does not eliminate the requirement of pleading factual circumstances giving rise to an inference as to the state of an actor’s mind. See Goodrich Amram 2d § 1019(b)(11). To this end, I am in full agreement with the dissent of my colleague Judge Bender wherein he documents cases extending back almost 50 years through the near present establishing the requirement that while recklessness may be averred generally, the material facts constituting the conduct that demonstrate recklessness also must be pleaded. See Dissent, Judge Bender at 3-10, citing Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973) and related cases. The Majority’s logic divorces the conduct that must be alleged to support a claim of recklessness from the conclusion of recklessness that it suggests can be asserted by label alone to survive a sufficiency challenge. While some liberality may be tolerated in our rules, see Pa.R.Civ.P. 126, the Majority’s proposed interpretation of pleading states of mind generally under Rule 1019 would make pleading states of mind farcical. Under the Majority’s logic, any complaint that alleges mere negligence can be converted into a claim alleging recklessness by merely averring that state of mind, even in the most obvious of cases where only mere inadvertence is alleged or can be inferred. The Majority also, without citation to authority, would permit a party to remedy defective pleadings by engaging in discovery as a fishing expedition - 15 - J-E03001-21 to see if any facts could be discovered to support the claim, even when a pleading is insufficient to permit such inquiry. See Majority Opinion at 22-23. Our case law does not permit this practice. See Berkeyheiser v. A-Plus Investigations, 936 A. 2d 1117, 1127 (Pa. Super. 2007) (the court must ensure appellee’s discovery requests are tailored to her specific negligence cause of action and not permit a mere "fishing expedition); McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006) (under no circumstance should a plaintiff be allowed to embark upon a “fishing expedition,” or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to pre-complaint discovery); Cooper v. Frankford Health Care System, 960 A.2d 134 (Pa. Super. 2008) (citing McNeil); Land v. State Farm Mut. Ins. Co., 600 A.2d 605 (Pa. Super. 1991) ( while discovery should be liberally allowed, “fishing expeditions” are not to be countenanced under the guise of discovery). While Rule 1019(b) permits averring states of mind generally, Rule 1019(a) also requires that the material facts supporting an action or defense be pled as well. Averring states of mind generally is by necessity, see Ammlung, supra, but facts also must be alleged from which a state of mind may be inferred. Only in this manner can subdivisions (a) and (b) of Rule 1019 be given effect and reconciled together. Our analysis on the issue of granting judgment on the pleadings however, does not end here. At the time Camelback filed its Motion, all discovery was completed and the matter was set for trial. If a defect appeared in Plaintiff’s amended complaint that could be cured by amendment, the court - 16 - J-E03001-21 should not have granted the Motion without granting Plaintiff an opportunity to amend her pleadings. Williams By and Through Williams v. Lewis, 466 A.2d 682 (Pa. Super. 1983). However, where there is no apparent possibility that a plaintiff will be able to set forth a better case by amendment, there is no abuse of a court’s discretion in refusing an opportunity to amend. Id.; Wimbish, supra. With the record fully developed in this case and aided by the parties’ summary judgment submissions, the court was well informed to determine whether Plaintiff would be able to amend her pleadings to sufficiently plead recklessness. The trial court’s review of the record demonstrates she could not. Leave to amend need not have been considered, and but for the trial court exercising caution respecting the appropriateness of the timing of the motion for judgment on the pleadings, it would not have been necessary to decide summary judgment. B. The Motion for Summary Judgment On April 16, 2019, Camelback filed its Motion. By its order of March 20, 2019, the court expressly granted permission for Camelback to file a motion for summary judgment.3 In its Motion, Camelback went beyond that expressly ____________________________________________ 3 Citing the procedural history of this case, the Majority is highly critical of Camelback filing a motion for judgment on the pleadings which it deemed to be unnecessary and without justification at a time to unnecessarily delay trial. Majority opinion at n.7. Respectfully, I do not believe this criticism to be warranted, because the trial court expressly exercised its discretion to allow the filing of a summary judgment motion. The landscape of this case changed significantly when, on March 20, 2019, the court granted Camelback’s unopposed motion to preclude evidence of negligence in light of the fact that (Footnote Continued Next Page) - 17 - J-E03001-21 permitted by the court by also requesting judgment on the pleadings. It was in the alternative that it sought summary judgment if the court determined Plaintiff sufficiently pled recklessness in her amended complaint. The court granted Camelback’s motion for judgment on the pleadings, but out of caution, considering that judgment on the pleadings may be considered untimely, decided the summary judgment motion as well. With both a motion for judgment on the pleadings and a motion for summary judgment before the court, presented after all discovery was complete and the case ready for trial, the court would have been within its rights to simply consider the matter as one for summary judgment. See Demmler v. Smithkline, 671 A.2d 1151 (Pa. Super. 1996) (a trial court’s order dismissing a case prior to trial is properly characterized as either a summary judgment or a judgment on the pleadings. Since discovery was fully conducted the order entered was treated as one for summary judgment.). Regardless, the court agreed Plaintiff failed to establish evidence on the record sufficient to support a claim for reckless conduct. The Statement at 14. In granting summary judgment, the court held: According to Tayar . . . “recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to ____________________________________________ Plaintiff could succeed only if she could prove recklessness. With the triable issues substantially narrowed, it was within the court’s discretion to decide whether considering a motion for summary judgment would further facilitate disposition of this case. Although the trial court did not grant permission to file a motion for judgment on the pleadings, I can discern no prejudice in doing so, since it also found merit to Camelback’s motion for summary judgment. - 18 - J-E03001-21 others whereas negligence suggests unconscious inadvertence.” . . . Zip-lining is highly regulated and the operation and maintenance of a zip-line requires regular inspections and corresponding permits. There is nothing in the record to support or suggest Camelback failed to exercise reasonable care in the maintenance and operation of the zip-line on the day of Plaintiff’s accident. There is nothing of record to establish that any manufacturing or industry specification, standard or regulation was violated or breached by Camelback. Moreover, Plaintiff has not established any evidence to show Camelback (1) engaged in conduct that involved a risk of harm to Plaintiff substantially in excess of that necessary to make it negligent, (2) intentionally did an act or intentionally failed to do an act in reckless disregard for Plaintiff’s safety, or (3) engaged in conduct that constituted an extreme departure from ordinary care. Id. (citations omitted). As Judge Bender in his dissent sadly recognizes, Appellant’s brief does not advance its case well, as it lacks any cogent discussion of the record under the standard governing summary judgment. The Majority was at the same disadvantage. Without development by Appellant in her brief, the Majority takes on the task of providing its own detailed review of the record, focusing principally upon Plaintiff’s expert report, submitted for the first time in response to Camelback’s Motion, to analyze whether Plaintiff set forth sufficient proof of recklessness to survive dismissal of her action. I believe Judge Bender has analyzed and corrected the record misrepresentations in this case well to demonstrate that recklessness has not been sufficiently established to allow this case to survive summary judgment. I join completely in his analysis. However, I too wish to add several - 19 - J-E03001-21 observations in support of my opinion that the trial court did not err in granting summary judgment in favor of Camelback. Plaintiff’s shifting theories of harm have complicated review of the record and the determination as to what precisely is Plaintiff’s theory of reckless harm. As we already recognized, paragraph 21 of the amended complaint constitutes the only reference to reckless conduct in all of the Plaintiff’s pleadings. Under that paragraph, Plaintiff claimed harm as a result of Camelback not monitoring the speed of the zip line, leaving her to land with no help, failing to slow down the zip lining machine, and failing to inspect the zip lining machine engine. In her March 14, 2019 pretrial statement, Plaintiff presented a different picture. She stated that due to her weight, a ripple effect was created in the zip line which then slammed her into the ground resulting in significant physical harm. She claimed Camelback’s former employees testified they were aware of the ripple effect when heavy individuals ride the line. She further claimed they were aware of this so that when Plaintiff approached the end of the line she was not able to lift her feet high enough to avoid injury. Plaintiff concluded Camelback recklessly allowed a greater weight limit than appropriate. See Plaintiff’s Pre-Trial Statement, 3/14/19 at 1-2 (unpaginated). A completely different picture then surfaced in Plaintiff’s response to Camelback’s Motion where Plaintiff for the first time, some 16 months beyond the court’s case management deadline of January 8, 2018, and as a last resort, produced the May 13, 2019 expert report of Stephen Wolf that set forth different theories to demonstrate reckless harm. - 20 - J-E03001-21 Plaintiff’s Memorandum of Law in Opposition to Camelback’s Motion for Judgment on then Pleadings/Supplemental Motion for Summary Judgment, 5/16/19. The Wolf report represented that Plaintiff was unable to sufficiently pick up her feet due to her weight and that her body impacted the landing deck twice. First, when her feet impacted the mats/carpets that were in front of the landing deck that concealed the front face of the deck, and then after her body swung and spun due to the first impact after which she then impacted the deck a second time. Wolf claims Camelback was aware of potential harm due to impacting the front of the landing deck by virtue of placing a sign stating “Lift your feet” at the bottom of the zip line. Camelback further instructed its employees to yell “pick up your feet” as the customer was speeding down the zip line. The Wolf report states that Camelback thus was aware a customer could impact the face of the landing deck that protrudes significantly above ground level as it was aware customers may not be able to lift their feet. The report then describes the landing platform as having a face that protrudes sharply and vertically from the ground making the deck perfectly positioned to cause an injury. Wolf concludes that Camelback recklessly ignored the gross risks of the face of the landing deck protruding above ground level and actually attempted to conceal the risk by placing soft mats/carpeting over the face of the landing. Id. at 1-4 (unpaginated). Fortunately, when deciding a motion for summary judgment, a court is bound to examine what is actually reflected in the record. Here, the record - 21 - J-E03001-21 dispels much of counsel’s evolving theories as to how the harm occurred in this case and many of the factual assumptions underlying the Wolf report. Unfortunately, the Majority seems to accept at face value the Wolf report without examining whether the facts assumed in that report have support in the record for purposes of deciding summary judgment. It would have been of great assistance to this Court had Plaintiff taken the laboring oar to accurately set forth the material record facts for us to consider under this appeal. To begin, there is no zip lining “machine” or “engine” that controls the speed a person runs the zip line as admitted by Plaintiff in her deposition and contrary to what was stated in her amended complaint. N.T., Plaintiff’s Deposition, 10/12/17, at 79. Instead, as described by Camelback employee Brett Dunphy, a zip line attendant, the ride begins when a person is clipped to a trolley that attaches to the zip line. N.T., Dunphy Deposition, 12/20/17, at 7-8. From that point forward, the ride down the line is governed only by gravity. Id. Near the end of the ride there is a braking system that slows the rider down until they come to a stop. Id. This was confirmed by Camelback employee, Clinton Frantz, a supervisor of all adventure park rides that includes the zip lines. N.T., Clinton Frantz Deposition, 10/9/17, at 12. The zip line is a gravity zip line that uses a braking system at the end of the ride to slow the rider down near the end of the ride. Id. at 971-72. The braking mechanism, known as a zipSTOP braking system, is made by Head Rush Technologies. Id. It slows the rider down progressively near the end of the ride when a bumper - 22 - J-E03001-21 on the line is contacted. Id. The system then brings the rider to a complete stop once the rider is upon the landing deck. Id. The zipSTOP system is not a powered system, i.e., run by gas or electricity. Id. at 993. Nothing in the record contradicts the description of the zip line or its braking system as testified to by Camelback employees Dunphy and Frantz. Nor is there any testimony, lay, expert or otherwise, to support a claim that the speed of the zip line was governed by anything other than gravity or that there was any malfunction in the braking system. These factual realities effectively negate three of the four bases pled in Plaintiff’s amended complaint:4 that Camelback failed to monitor the speed of the zip line, it failed to slow down the “zip lining machine,” and failed to properly monitor the zip lining “machine engine.” See Plaintiff’s Amended Complaint, 1/25/17, at ¶ 21(a), (d), and (e). This leaves only one basis in the amended complaint upon which liability is asserted. Subparagraph (b) asserts Camelback failed to use reasonable care by leaving Plaintiff to land with no help. This last claim requires that we examine the record to see how this accident occurred. Plaintiff testified that, while coming down the line and while she already was over the top of the landing deck, she asked the attendant if he could slow it down. N.T., Plaintiff’s Deposition 10/12/17, at 50-51. His only response was that it was almost done. Id. She then very clearly testified that she was ____________________________________________ 4 Plaintiff’s amended complaint at paragraph 21 contains 5 subparts (a) through (e), but subpart (c) is blank leaving only 4 subparts with averments respecting liability. - 23 - J-E03001-21 over the top of the landing deck at the bottom when she was pushed back a little, came backwards a little, her body pivoted, spun around, and then her leg dropped onto the landing deck whereupon she felt a crunch. Id. at 51- 53. Up until that point, her foot had not struck anything and she had not done anything with her foot. Id. at 52. She specifically testified that it was when her leg landed on top of the landing deck that she heard the crunch. Id. at 53. Plaintiff testified that she kept her legs up at the beginning of the ride as she was told, and that at no time were her feet dragging on the ground prior to landing on top of the deck and that she made sure to have her legs up. Id. at 52, 54. Plaintiff’s recollection of her accident, with minor exception, was corroborated by Dunphy, the zip line attendant. He observed how Plaintiff hit her leg when she landed. He testified that her feet first kind of dragged along the anti-fatigue mats and then the impact came when she stopped, swung up, and hit the deck to land. N.T., Dunphy Deposition 12/20/17, at 886. Her leg broke when it hit the landing deck. Id. He recalls telling Plaintiff to lift up her feet, that she attempted to do so, but due to her weight her feet dragged along the mats. Id. at 15-16. She, however, was within the weight limits of the zip line. Id. Each rider is weighed at the top of the ride before sending them down the line. Id. at 16. At counsel’s suggestion, Plaintiff’s feet dragging was referred to as the “first” impact and the landing on top of the deck as the “second”. Id. at 11. It was the second that caused Plaintiff’s injury. Id. - 24 - J-E03001-21 The combination of Plaintiff’s, Dunphy’s, and Frantz’s testimony do not lend support to Plaintiff’s remaining averment in her amended complaint that Camelback failed to use reasonable care by leaving Plaintiff to land with no help. To the contrary, the ride was monitored from beginning to end, with the zip line attendant reminding Plaintiff to lift her feet and monitoring her until the ride came to a complete stop. In her pretrial statement, Plaintiff’s counsel introduced the theory that heavy people cause the zip line to ripple up and down so that at the end of the ride people are not able to lift their feet high enough to avoid injury and that Camelback allowed a greater weight limit than appropriate. Certainly, Plaintiff’s testimony lends no factual credence to this theory, as it was her testimony she held her feet up and that her injury did not occur until she was over the landing deck. Nor does the record support any claim that Plaintiff was over the weight limit for her line. Not surprisingly, Plaintiff finally resorts to her late-filed Wolf report to construct another theory of liability to argue that Camelback acted recklessly. Expert testimony is proper only if the facts upon which the testimony is based are of record. Commonwealth v. Rounds, 542 A.2d 997 (Pa. 1988). It is clear . . . that expert opinion testimony is proper if the facts upon which it is based are of record. This requirement for admissibility of opinion testimony is crucial. The purpose of expert testimony is to assist the factfinder in understanding issues which are complex or go beyond common knowledge. An expert’s function is to assist the jury in understanding the problem so that the jury can make the ultimate determination. If a jury disbelieves the facts upon which the opinion is based, the jury undoubtedly will disregard the expert’s opinion. Likewise, if a jury accepts the veracity of the - 25 - J-E03001-21 facts which the expert relies upon, it is more likely that the jury will accept the expert’s opinion. At the heart of any analysis is the veracity of the facts upon which the conclusion is based. Without the facts, a jury cannot make any determination as to validity of the expert’s opinion. To hold otherwise would result in a total and complete usurpation of the jury’s function in our system of justice. Id. at 999 (emphasis added; case references omitted). The Majority errs by accepting the Wolf report without questioning whether the facts underlying his report respecting Plaintiff’s injury have any support in the record. The Wolf report posited that Camelback’s zip line was low enough that a rider’s legs might have contacted the ground before the pulley carriage contacted the braking device. Wolf Report, 5/13/19, at 2. If the ground was free of imperfections, a rider’s feet would drag smoothly up a wooden platform causing a reduction in speed with the rider’s forward movement arrested by a combination of manual braking by physical engagement of an employee and a mechanical impact attenuation device at the end of the line. Id. at 2-3. Wolf contended that, because of the risk of injury, all employees instructed participants to raise their legs so their legs did not touch the ground until they had been brought to a stop. Id. at 3. Wolf concluded it was not reasonable for a participant’s safety to be contingent on being able to perform a physical feat, such as raising legs or being able to listen and follow directions, when experiencing an adrenaline inducing thrill ride. Id. The fact Camelback required its staff to yell at participants to raise their legs reveals they were aware that contacting the ground was a potential cause of injury. Id. at 4. Wolf stated that what was more dangerous than sliding one’s feet along the - 26 - J-E03001-21 ground was having them hit something hard. Id. He then criticized the leading edge of the wooden deck that he claimed protruded sharply and vertically at a 90° angle to the ground, as being perfectly positioned to cause an injury. Id. He surmised that Camelback must have known of this condition, because it covered the protruding edge with a piece of carpet that concealed rather than removed this risk. Id. He also opined that there was risk in the design by requiring a rider to comply with a strenuous physical task and willingly allowing participants to be subject to an unnecessary and preventable danger. Id. at 5. He stated that gross risks were intentionally hidden under a carpet. Id. He thus opined, within a reasonable degree of certainty, that the injury sustained by Plaintiff was directly attributable to the failure of Camelback to prevent injury by its intentional disregard for safety by concealing rather than removing an obvious threat to the safety of their clients. Id. Wolf’s conclusion is without any factual basis in the record. Wolf leveled criticism at the design of the landing platform that may permit a rider to collide with the face of the landing platform. Regardless of whether this may constitute a design defect, there is absolutely no evidence of record that Plaintiff collided with the 90° angle of the face of the platform. To the contrary, the record only supports facts that either Plaintiff held her legs up until she reached a stop, or once upon the landing platform, dragged her foot or feet before coming to a stop and traveling backwards. In this latter scenario, Wolf contradicted himself as he found no fault with foot dragging, as - 27 - J-E03001-21 he indicated in his report that foot dragging was part of the way in which a rider could cause a reduction in speed before stopping. Id. at 2. Furthermore, there is no support in the record that covering the face of the platform with carpeting concealed the vertical face of the platform. I find this particularly curious because there is no indication in the record that Plaintiff, or anyone else, was unaware of the platform’s location. Even if concealed, the observation is completely irrelevant because there is no testimony Plaintiff collided with the face of the platform. Likewise, I fail to see how requiring participants to lift their feet when engaging on this thrill ride to land constitutes reckless conduct. This especially is so where Plaintiff indicated she did so at all times and was instructed to do so by Camelback numerous times before landing, measures obviously designed to assure a safe ride. It is unclear to me how requiring someone to lift their legs when approaching a landing is an unreasonably strenuous task presenting a threat of serious harm considering the sport being engaged in as suggested by Wolf in his report. Regardless, even if Plaintiff dragged her feet (something she disputes) before coming to a stop and then traveling backwards, there is no indication in the record that this had any effect on her leg hitting the platform with such force to cause her injury so that requiring a rider to raise their legs demonstrates reckless conduct by Camelback. Even if Wolf’s report could support triable negligence issues, it is completely lacking in record support to demonstrate that Camelback engaged in conscious action knowing that its - 28 - J-E03001-21 conduct would or may pose an unreasonable risk of harm or a serious danger to Plaintiff. The material facts as to how Plaintiff sustained her injury are largely uncontradicted. Upon arriving on the landing deck during the braking process, she rose up to a stop, spun around, traveled backwards, and then her leg forcefully contacted the landing deck causing her injury. The record is completely devoid of any evidence that a condition of the zip line was known to Camelback that would cause serious injury to a rider, notwithstanding any inherent risks in the sport, but that it allowed its customers to ride the zip line knowing that to do so would expose them to an unreasonable or serious risk of injury. Wolf’s report that opined Camelback acted intentionally to conceal a condition that caused Plaintiff’s injury is without any factual foundation in the record. In summary, I agree with the trial court when it stated: “Plaintiff has not established any evidence to show Camelback (1) engaged in conduct that involved a risk of harm to Plaintiff substantially in excess of that necessary to make it negligent, (2) intentionally did an act or intentionally failed to do an act in reckless disregard for Plaintiff’s safety, or (3) engaged in conduct that constituted an extreme departure from ordinary care.” The Statement at 14. The record quite simply is bare of any evidence that Camelback acted recklessly. In my opinion, the trial court did not err in granting summary judgment in Camelback’s favor. For the foregoing reasons, I respectfully dissent from the Majority’s Opinion, and would affirm judgment in favor of Camelback. - 29 - J-E03001-21 President Judge Emeritus Bender and Judge Olson concur in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 - 30 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494482/	ORDER MICHAEL E. ROMERO, Bankruptcy Judge. THIS MATTER comes before the Court on the Complaint for Declaratory Relief (the “Complaint”) and Motion for Entry of Default Judgment Against Sally J. Ze-man, in Her Capacity as Standing Chapter IS Trustee (the “Motion”) filed by the Debtor and Plaintiff herein, Daniel Joseph Diaz (the “Debtor”). BACKGROUND Procedural History The Debtor filed his chapter 13 bankruptcy petition and plan (the “Plan”) on June 10, 2010. The Plan used the standard chapter 13 form adopted in this district and referred to as Local BANKRUPTCY FoRm 3015-1.1 (the “Form Plan”). Included as part of the Form Plan is a provision addressing post-confirmation modifications. The provision is designated as Part VIII and is titled “Post-Confirmation Modification” (“Part VIII”). Part VIII provides: VIII. POST-CONFIRMATION MODIFICATION The debtor must file and serve upon all parties in interest a modified plan which will provide for allowed priority and allowed secured claims which were not filed and/or liquidated at the time of confirmation. The value of property to satisfy 11 U.S.C. § 1325(a)(4) may be increased or reduced with the modification if appropriate. The modification will be filed no later than one year after the petition date. Failure of the debtor to file the modification may be grounds for dismissal.1 The Debtor included the Part VIII language in his Plan, but inserted the words, “Not Applicable” or “N/A” in the relevant blanks.2 Further, the Debtor turned to Part V of the Form Plan titled “Other” and incorporated into his Plan, among other concepts, the following: Note to any creditor holding a deed of trust secured by the Debtor(s)’s real property: the proposed plan provides for the Debtor(s)’s best estimate of the mortgage arrears owed to your company (if applicable), as set forth in Class 11(a). If you disagree with the amount provid806ed, it is your obligation to file an objection to the plan. In the absence of an objection, the amount set forth in the plan is controlling, and will have a res judicata effect subsequent to the entry of the order of confirmation.3 The above proviso incorporated as Part V.G.3 of the Plan is a construct of the Debtor. It is not drawn from the Form Plan adopted by this district nor referenced or otherwise suggested in that form’s official commentary. On July 15, 2010, the Trustee filed an Objection to Motion to Confirm Chapter 13 Plan (the “Objection”) arguing, in part: 1. Debtor’s plan failed to fully provide for the priority claim of the IRS as required by 11 U.S.C. §§ 507(a)(8), 1322(a)(2), 1325(a)(1).4 2. The Trustee could not determine if Debtor’s plan satisfied the “best-interest-of-creditors” test under § 1325(a)(4). 3. The Trustee objected to Debtor designating Part VIII as “not applicable.” 5 On November 9, 2010, the Debtor filed an Amended Plan (the “Amended Plan”), again noting Part VIII was “Not Applicable.” 6 The Amended Plan also contained the Debtor’s proposed additions to Part V as set forth above. No objections to the Amended Plan were filed and it was confirmed on December 28, 2010. The Debtor’s Complaint The Debtor initiated this adversary proceeding after the filing of the Trustee’s initial Objection, but before the Amended Plan was on file. In his Complaint, the Debtor states Part VIII of the Form Plan violates the Bankruptcy Code and the Bankruptcy Rules. The Debtor further argues the Trustee’s decision to object to Part VIII when marked “not applicable,” and then withdraw her objection later when other objections are resolved, precludes a debtor from having an opportunity to fully litigate the propriety of Part VIII. Nonetheless, the Debtor argues the Trustee’s initial filing of the objection obligates a debtor to respond to that objection as if the Trustee will pursue her argument to its conclusion. By Order entered April 14, 2011, the Court found the relief requested in the Complaint and Motion extraordinary and atypical of adversary proceedings before this Court.7 The Court further noted the issues underlying the Debtor’s requested relief were raised in the absence of a pending objection to his Plan and, in fact, the Debtor had obtained confirmation of his Amended Plan. Thus, the Court ordered the parties to file legal briefs setting forth the authority, if any, this Court has to find a Local Bankruptcy Rule and portions of a Local Bankruptcy Form invalid and whether other, less drastic remedies are appropriate in this proceeding. The Debt- or timely filed Debtor’s Brief Re: Indicating Paragraph VIII is “Not Applicable” in the Proposed Chapter 13 Plan (the “Brief’).8 The Trustee did not file a re807sponse brief.9 DISCUSSION In the Complaint and Motion, the Debt- or asserts three primary arguments: • Congress and the Supreme Court permit bankruptcy courts to promulgate their own local rules for the purpose of administering cases. However, local rules may not conflict or substantially interfere with rights reserved and assigned by the Bankruptcy Code; • The Court is without standing to require debtors to accommodate post-confirmation proofs of claim with a post-confirmation modification; and • Although the Court has only requested that Debtors brief the issue of listing Paragraph VIII of the plan as “Not Applicable,” the issue is inextricably intertwined with the concept of res judicata.10 Specifically, the Debtor argues § 1329(a) states a post-confirmation modification of the plan may be requested by the “debtor, the trustee, or the holder of an allowed unsecured claim;”11 but nowhere does it grant the Court authority, sua sponte, to order modification of a confirmed plan, nor do priority and/or secured claimants have standing thereunder to seek a post-confirmation modification of the plan. Thus, the Debtor asserts Local BANKRUPTCY Rule 3015-112 and Local BANKRUPTCY Form 3015-1.1 are inconsistent with, and contradict § 1329, and therefore violate Fed. R. Bankr.P. 9029. The Debtor also argues Local Bankruptcy Rule 3015-1 and Local Bankruptcy Form 3015-1.1 are inconsistent with, and contradict § 1327(a), which provides: [t]he Parts of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.13 The Debtor argues Local Bankruptcy Rule 3015-1 allows creditors to sit on their rights, not objecting to confirmation, with knowledge the Debtor will be forced to modify the plan post-confirmation to provide for their claims. The Debtor describes this as getting “two bites at the apple,” when §§ 1327(a) and 1329(a) give creditors only one. A. Recent Decisions in this District This Court benefits from the wisdom of two of its sister divisions which recently addressed the issues now presently before this Court.14 While both opinions are extremely well written and reasoned, they 808arrived at different conclusions. As a result, and so the bar in this district is informed of this Court’s position on the matter, a brief discussion of these rulings is appropriate. 1. In re Gordon, 10-13885-EEB, March 25, 2011 (“Order Approving Plan Language”) Gordon focuses on three categories of caselaw interpreting the effect of a confirmed plan on the rights of secured creditors. The three categories are loosely identified as the “majority position,” the “alternate process (res judicata),” and the “middle of the road (due process).” Those categories can be described in their salient terms as follows: • Majority Position: The chapter 13 plan confirmation is not, by itself, sufficient to alter a secured creditor’s lien rights. Liens pass through a bankruptcy unaffected, thus permitting a secured creditor to elect not to participate in a bankruptcy case and instead rely on its lien rights. In order to alter lien and/or claim rights, a debtor must invoke some process other than plan confirmation, such as the claims allowance process or a separate adversary proceeding. • Alternate Process (Res Judicata): A secured creditor’s failure to object to a plan can result in modification of a claim or a lien. A secured creditor who elects not to participate in a bankruptcy case or file a plan objection does so at its own risk, because a plan can and may modify the creditor’s lien. Cases in this category acknowledge the claims allowance process, but characterize it as an “alternate” process to determine a secured claim, and stress secured creditors cannot rely on this alternative and ignore the confirmation process without risking modification of their rights. • Middle of the Road (Due Process): A lien may be modified through the confirmation process, but only if the creditor receives adequate notice that its lien would be adversely affected by the proposed modified plan. After considering those three interpretations, Gordon appears to have adopted a hybrid of the “alternate process” and “middle of the road” lines of cases and approved the debtors’ plan. That Court agreed with those cases “giving emphasis to the res judicata effect of a properly served plan.15 If a proposed plan unambiguously informs a creditor its claim will be affected, disallowed or valued in a certain way, the creditor may not ignore the confirmation process just because the claims bar date has not expired.”16 Gordon concluded the debtors’ striking of Part VIII and use of “non-standard language” in Part V, positing an inference contrary to Part VIII, was permissible and consistent with the Bankruptcy Code. Specifically, Judge Brown stated, “Thus, the Court agrees with Debtors that, to the extent [Looal BaNkruptcy FORM 3015-1.1 Part VIII] amounts to a bankruptcy court order to modify a confirmed Chapter 13 plan, it is inconsistent with the [Bankruptcy] Code and invalid.”17 2. In re Butcher, 2011 WL 1.382127 (September 20, 2011 Bankr.D.Colo.) (11-10515-HRT) (“Order Denying Plan Confirmation”) The Court in Butcher considered six factors in its review of the effect of a con809firmed plan on the rights of secured creditors: • The Court’s Duty is to Read the Different Sections of the Bankruptcy Code in Harmony: There is no irreconcilable contradiction between a speedy chapter 13 plan confirmation and the claim allowance process set out in §§ 501 and 502. Nothing in chapter 13 prevents a court from confirming a chapter 13 plan in accordance with the accelerated time frame set forth in the BAPCPA amendments without cutting off a creditor’s right to receive payment based on a timely filed and allowed proof of claim. • Part VIII Does Not Exceed the Court’s Rule-Making Authority Because it Does Not Violate § 1329: Although § 1329 does not permit a court to seek modification of a confirmed plan, it is incumbent upon bankruptcy courts to avoid confirming plans that do not comply with the Bankruptcy Code. Absent Part VIII, courts could confirm plans which imper-missibly modified a creditor’s rights before filing a claim. To avoid this result, § 105(a) grants the Court broad authority to take steps necessary to “prevent an abuse of process.” • Section VIII Does Not Conflict with the Res Judicata Effect of a Confirmed Plan: It is the terms of the of the confirmed plan which bind the parties. The terms of the Form Plan require a debtor to substantiate his version of a claim by prosecuting an objection to a timely filed and allowed claim where the proof of claim differs from the plan term, by conforming the plan to the proof of claim, or by negotiating a resolution satisfactory to both parties. That obligation is binding upon debtors by operation of res judicata and § 1327 under the current Form Plan. • By Eliminating Part VIII, Debtors’ Plan Violates §§ 501 and 502, and Fed. R. Bankr.P. 3002: Proofs of claim may be timely filed after plan confirmation. For the court to confirm a plan not containing a saving provision such as Part VIII would illegally modify a claim secured by the debtor’s principal residence in contravention of § 1322(b)(2). To conclude otherwise would be to abrogate the claim filing, objection, and allowance process set out in §§ 501 and 502 and Rule 3001 et seq. Additionally, cutting off a creditor’s rights through the plan confirmation process would also abrogate Rule 3002(a) because the deadline for filing proofs of claim set forth in the Court’s corresponding notice to creditors upon the filing of a chapter 13 case would be rendered disingenuous and misleading. Moreover, this position shifts the claim objection burden to creditors by forcing a creditor to object to a proposed plan rather than requiring a debtor to object to a presumptively allowed claim. This shift in burden would make the presumption of the validity of a properly filed claim meaningless. • Language Incorporated in Violation of the Local Rules and Part VIII: Part V of the Form Plan allows the debtor to list “Other” provisions not included in the form. If permitted to insert language in Part V that is contrary to Part VIII,18 a debtor is effectively nullifying § 502 and avoiding § 1322(b)’s prohibition against modifying a home mortgage in the event the debtor’s estimate of the mortgage arrears is less than the figure reflected on the creditor’s allowed claim. That approach then eliminates a debtor’s obligation to modify the plan post-confirmation and “bootstraps” the res judicata argument requiring a creditor to object to a plan or risk being bound by the debtors’ estimation of a secured creditor’s claim. 810• Other Jurisdictions: Fifty-nine of the ninety-three judicial districts have a positive indication in local rules or in local chapter 13 plan forms indicating distributions to creditors are made based on amounts appearing in allowed proofs of claim. Based on the foregoing, Butcher rejected the debtors’ arguments, as well as the reasoning underlying the decision in Gordon, and denied confirmation of the debtors’ plan. It concluded: [Part] VIII gives effect to the time frames set out in Rule 3002(c) for the timely filing of proofs of claim; it gives effect to the presumption of validity accorded to timely filed claims by § 502; and it gives effect to the Bankruptcy Code’s allocation of the burden of objecting to a timely filed and presumptively valid claim. It also serves the purpose of insuring that the secured claims of home mortgage creditors are not imper-missibly modified in contravention of § 1322(b)(2) and that the cure amounts in the plan are in compliance with § 1322(e).19 B. The Instant Adversary Proceeding As mentioned above, this adversary proceeding presents issues of law identical to those raised in Gordon and Butcher. The Court has carefully reviewed those opinions and finds their reasoning instructive in its own deliberation. In Gordon, Judge Brown accepted the debtors’ treatment of Part VIII as “not applicable” and concluded the language in Part V of the debtors’ plan was permissible and not inconsistent with the Bankruptcy Code.20 This Court does not disagree with that conclusion, but finds the analysis does not end there. While the specific language may be satisfactory, using the plan process to adjudicate claims issues is a license for mischief and may result in the approval of a plan with a provision inserted by counsel which is contrary to anything authorized by the Bankruptcy Code. Such a scenario recently came before the U.S. Supreme Court in United Student Aid Funds, Inc. v. Espinosa.21 In that case, the Court allowed the offensive provision; but directed all bankruptcy courts to fulfill its obligations under § 1325(a), instructing those courts to review and scrutinize all aspects of a debtor’s proposed plan in order to correct any defect it contains.22 While the courts will undoubtedly give their best efforts to comply with this mandate, because of the huge number of cases that have been filed in this economy, there will undoubtedly be an occasional instance wherein an improper provision is incorporated in a confirmed plan. In Butcher, Judge Tallman rejected the debtors’ attempt to jettison the claims process and emphasized the harmony required to give effect to all processes prescribed by the Bankruptcy Code, the Bankruptcy Rules, and the Local Bankruptcy Rules and Forms of this district.23 811This Court is persuaded by this reasoning. The adoption of Local Baneruptcy Rule 3015-1 and Local BANKRUPTCY FoRM 3015-1.1 (particularly its Part VIII) reflects a preference in this district to use the claims filing and challenge process rather than the chapter 13 plan confirmation process for determining the amount of a secured creditor’s claim.24 These parallel procedures do not eliminate any substantive rights. Rather, they set forth a means of dealing with claims which provides all parties with predictability and continuity, while at the same time giving due effect to the statutes and rules passed by Congress. Indeed, this process enables the court to achieve closer compliance with the Supreme Court’s Espinosa mandate as it prevents debtors from sliding through provisions in a plan which are inconsistent with the Bankruptcy Code. CONCLUSION After reviewing the well-reasoned opinions of its colleagues in this district, the dictates of the Bankruptcy Code and Rules, the Proposed Rule and associated committee comments presently before Congress, as well as the policy considerations underlying this district’s adoption of Local BanKRuptoy Rule 3015-1 and Looal BaNkruptcy Form 3015-1.1, and particularly its Part VIII, this Court agrees with the reasoning set forth in Butcher and adopts its analysis and conclusion for purposes of this proceeding.25 Accordingly, it is hereby ORDERED the Debtor’s Motion for Entry of Default Judgment Against Sally J. Zeman, in Her Capacity as Standing Chapter IS Trustee is DENIED; and it is further ORDERED the Plaintiffs request for declaratory judgment finding that Local Bankruptcy Rule 3015-1(a)(1) and Local Bankruptcy Form 3015-1.1, Section VIII, are invalid is DENIED. . Local Bankruptcy Form 3015-1.1, Part VIII. . See Plan filed June 10, 2010, p. 8 (Docket # 2). The official “Commentary” to the Form Plan provides, in part: "Do not delete any provision of this form. Mark provisions that do not apply as n/a. Any additional provisions must be recited in Part V.G.” . Id. at p. 6 ("Part V.G.3”). . Unless otherwise specified, all future statutory references in the text are to Title 11, the United States Code. All future references to the “Bankruptcy Code” shall mean Title 11, the United States Code, and any reference to “Bankruptcy Rules” shall mean the Federal Rules of Bankruptcy Procedure. . See Objection filed July 15, 2010 (Docket # 11). . See Amended Plan filed November 9, 2010, p. 8 (Docket # 28). . See Order entered April 14, 2011 (Docket #7). . See Brief filed May 2, 2011 (Docket # 9). . It should also be noted the Trustee has not filed an answer to the Complaint. On March 9, 2011, the Debtor filed his Motion for Entry of Default Judgment Against Sally J. Zeman in her Capacity as Standing Chapter 13 Trustee (Docket # 6). . Brief, pp. 5-7. . § 1329(a). . Local Bankruptcy Rule 3015-1 provides, in relevant part: (a) Chapter 13 Confirmation Process— Forms: The court has developed the following Local Bankruptcy Forms in connection with this L.B.R. 3015-1. (1) L.B. Form 3015-1.1 — Chapter 13 Plan: The Chapter 13 Plan form must be used when filing the original plan, as well as with any amendment to the plan.... (b) Filing of die Chapter 13 Plan: (1) The chapter 13 plan must be filed in accordance with Fed. R. Bankr.P. 3015. The form of the plan must conform to L.B. Form 3015-1.1. . § 1327(a). . It should be noted counsel for the Debtor in this case is the same counsel representing the debtors in the other two divisions of this district which previously addressed the issues presented here. In both these other cases, the exact scenario was presented to those courts as exists herein. Specifically, the use of the term “not applicable” was used in connection with Part VIII in the proposed plans and the language here in Part V was also incorporated into those proposed plans. . The Court emphasized the difference between "notice” and "service” reflected in Fed. R. Bankr.P. 2002(b) and 7004, respectively. . Gordon, page 15. Gordon also addressed three other cases before Judge Brown at that time: In re Pahs, 10-15557-EEB, In re Osterman, 10-11492-EEB, and In re Renner, 10-17975-EEB. .Id., page 15. . Language referred to in Gordon as "NonStandard Language.” . Butcher, page 4. . Gordon, page 15. . — U.S.-, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). . Id. at 1381 n. 14. . Butcher’s acknowledgment of the need to respect different facets of the Bankruptcy Code and Rules is bolstered by the Supreme Court of the United States’ recent submission of proposed Bankruptcy Rule amendments to Congress based on the recommendation of the Judicial Conference of the United States and its Advisory Committee on Bankruptcy Rules (the "Advisory Committee”). In those amendments, the Advisory Committee recommended the adoption of a new rule, Rule 3002.1, titled, "Notice Relating to Claims Secured by Security Interest in the Debtor's Principal Residence.” Rule 3002.1 (the "Proposed Rule”) would apply in a chapter 13 case to claims that are (1) secured by a security interest in the debtor’s principal residence, and (2) provided for under § 1322(b)(5) of the *811[Bankruptcy] Code in the debtor’s plan.” The Proposed Rule expressly provides for the filing of a secured creditor’s proof of claim, the form of the claim, the manner by which a debtor is provided notice of the claim, and the treatment of the claim. Specifically, the Proposed Rule is designed to address issues related to a debtor’s prepetition arrearage. In support of the Proposed Rule, the Advisory Committee noted, "This is a new rule.” It is added to aid in the implementation of § 1322(b)(5), which permits a chapter 13 debtor to cure a default and maintain payments on a home mortgage over the course of the plan.” The Advisory Committee went on to say, "In order to be able to fulfill the obligations of § 1322(b)(5), a debtor and the trustee have to be informed of the exact amount needed to cure any prepetition ar-rearage, see Rule 3001(c)(2), and the amount of the postpetition payment obligations. If adopted by Congress, the Proposed Rule will be effective as of December 1, 2011. The Proposed Rule is not only timely, it is on point with the challenges presented in Gordon and Butcher, as well as in this adversary proceeding. Indeed, it is clear from the Proposed Rule, adopted by our Supreme Court and recommended to Congress, that issues concerning the intersection of §§ 1322(b)(5), 501 and 502, and Rules 3001 et seq. must be reconciled and given equal effect through the chapter 13 plan process. . Butcher also reminds us of the lengthy and open discussions held in this district over a period of years to encourage the exchange of concepts and concerns, both from the judiciary and the practicing bar, in formulating and adopting the local rules now in use. . While not having any impact on this Court’s evaluation herein, on October 7, 2011, Judge Sidney B. Brooks entered an order in Patrick Dean Williams v. Sally J. Zeman, Adversary Proceeding No. 10-1716 SBB in which he adopted the reasoning in Butcher without discussion.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494483/	ORDER MICHAEL E. ROMERO, Bankruptcy Judge. THIS MATTER comes before Court on the Motion to Prohibit Use of Cash Collateral filed by Zions First National Bank (“Zions”), and the Motion for Order Authorizing Use of Cash Collateral filed by Debtor HT Pueblo Properties, LLC (“Debtor”). Having considered the pleadings, the facts to which the parties agreed, and the legal arguments presented, the Court makes the following findings of fact and conclusions of law. JURISDICTION The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and (b) and 157(a) and (b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(M), as it concerns the use of cash collateral. 813BACKGROUND FACTS The Debtor filed its voluntary Chapter 11 petition on June 21, 2011 (the “Petition Date”). The Debtor owns a Ramada Inn in Pueblo, Colorado, which it values at approximately $2.1 million. According to the Debtor’s schedules, it has approximately $5.2 million of debt on the property, of which $3.1 million is held by Zions, and $1.7 million is held by the Small Business Administration. It is undisputed Zions holds a first lien on all the Debtor’s real and personal property, as well as an assignment of rents. Zions claims room rents are cash collateral subject to its lien interest and does not consent to the Debtor’s use of these room rents to fund operating expenses. Zions has also filed a notice of its non-consent under 11 U.S.C. § 546(b).1 The Debtor, however, asserts its use of room rents and other income is necessary and proper.2 The Debtor’s Motion for Authorization for Use of Cash Collateral seeks leave to use room rents and other income (“Operating Capital”) on deposit in its debtor-in-possession account, stating its business depends upon uninterrupted access to those funds. The Debtor proposes an operating budget, and plans to continue operation of the motel throughout this case, anticipating a plan of reorganization providing for the continuation of the Debt- or’s business. According to the Debtor, on the Petition Date it had approximately $8,000 in its checking account, and as of June 29, 2011, it had approximately $26,141.88 in its debtor-in-possession account. The Debtor anticipates it will replace the cash and cash equivalents in the course of its daily operations and, therefore, the collateral base will remain stable. The Debtor filed a new Motion to Use Cash Collateral on August 26, 2011. According to that motion, the Debtor had not yet completed its investigation to determine whether Zions held a perfected security interest against the Operating Capital on the Petition Date, and specifically preserved the argument that the Operating Capital is not cash collateral under the provisions of § 363. Zions has indicated its willingness to continue the interim use of cash collateral pending resolution of the matter. The parties do not dispute Zions holds a Promissory Note dated May 30, 2007, in the face amount of $2,614,800.3 The Promissory Note is secured by a Deed of Trust also dated May 30, 2007 and was recorded in the office of the Pueblo County Clerk and Recorder on June 4, 2007.4 Zions also holds an Assignment of Rents dated May 30, 2007, which was recorded with the Pueblo County Clerk and Recorder on June 7, 2007.5 Additionally, as part of this transaction, the Debtor executed a Commercial Security Agreement (“Security Agreement”).6 In connection with the Security Agreement, financing statements were filed with the Colorado Secretary of State’s office on June 5, 2007 (the “Financing Statements”).7 Zions asserts, and the Debtor 814does not dispute, that the Note was originally made payable to Choice Bank. However, the Note was sold, endorsed, and delivered to Zions on June 8, 2007, pursuant to an Assignment of Deed of Trust and Assignment of Assignment of Rents, both of which were recorded in Pueblo County, and pursuant to assignments of the Financing Statements, which assignments were filed with the Colorado Secretary of State’s office.8 THE LOAN DOCUMENTS • The Deed of Trust provides: For valuable consideration, Grantor [Debtor] hereby irrevocably grants, transfers, and assigns to [the Pueblo County Public Trustee] for the benefit of Lender [Zions] as Beneficiary all of Grantor’s right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures, all easements, rights of way, and appurtenances; all water, water rights and ditch rights, (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all mineral, oil, gas, geothermal, and similar matters (the “Real Property”) located in Pueblo County, State of Colorado [legal description omitted]. Grantor presently assigns to Lender (also known as Beneficiary in this Deed of Trust) all of grantor’s right, title, and interest in and to all present and future leases of the property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents.9 The Deed of Trust goes on to define “Personal Property” as all equipment, fixtures, and other articles of personal property, now or hereafter owned by Grantor, and now or hereafter attached or affixed to the real property; together with all accessions, parts, and additions to, all replacements of, and all substitutes for, any such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the property.10 Further, the Deed of Trust defines “Rents” to mean “all present and future rents revenues, income, issues, royalties, profits, and other benefits derived from the [subject] Property.”11 • The Assignment of Rents provides in relevant part: For valuable consideration, Grantor hereby assigns, grants a continuing security interest in, and conveys to Lender all of Grantor’s right, title, and interest in and to the Rents from [the Property].12 The Assignment of Rents defines “Rents” as meaning: all of Grantor’s present and future rights, title, and interest in, to and under any and all present and future leases, including, without limitation, all rents, revenue, income, issues, royalties, bonuses, accounts receivable, cash or security deposits, advance rentals, profits and proceeds from the Property, and other payments and benefits derived or to be derived from such leases of every kind and nature, whether due now or later, including without limitation Grant- 815or’s right to enforce such leases and to receive and collect payment and proceeds thereunder.13 • The Security Agreement provides in part: COLLATERAL DESCRIPTION. The word “Collateral” as used in this Agreement means the following described property, whether now owned, hereafter acquired, whether now existing or hereafter arising, and wherever located, in which Grantor is giving to Lender a security interest [unreadable] the payment of the indebtedness and performance of all other obligations under the Note and this Agreement: All Furniture, Fixtures and Equipment In addition, the word “Collateral” also includes all the following, whether now owned or hereafter acquired, whether now existing or herea[unreadable] arising, and wherever located: (A) All accessions, attachments, accessories, tools, parts, supplies, replacements of and additions to any of the collateral described her[unreadable] whether added now or later. (B) All products and products of any of the property described in this Collateral section. (C) All accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, con-signm[unreadable] or other disposition of any of the property described in this Collateral section. (D) All proceeds (including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the property described in [unreadable] Collateral section, and sums due from a third party who has damaged or destroyed the Collateral of from that party’s insurer, whether [unreadable] to judgment, settlement or other process. (E)All records and data relating to any of the property described in this Collateral section, whether in the form of a writing photogr[unreadable] microfilm, microfiche, or electronic media, together with all of Grantor’s right, title, and interest in and to all computer software required [unreadable] utilize, create, maintain, and process any such records or data on electronic media.14 POSITIONS OF THE PARTIES CONCERNING WHETHER ZIONS POSSESSES A SECURITY INTEREST IN THE ROOM REVENUES The Debtor asserts the Security Agreement does not grant Zions a security interest in room revenue as cash collateral because Zions’ debt is not subject to a security interest as provided in § 552(b). Specifically, the Debtor states the description of the collateral in the Security Agreement is insufficient to create an enforceable security interest in the room revenue. The Debtor argues a plain reading of the description leads to the conclusion the interest was granted in the Debt- or’s physical assets, not “accounts” or “payment intangibles.” In support of its position, the Debtor highlights the case of In re Tri-Growth Ctr. City, Ltd.15 wherein 816a similar description of “furniture, fixtures, and equipment” and “all proceeds thereof’ was found not to cover a hotel’s room revenue.16 In addition, the Debtor contends any alleged interest in the room revenue is not perfected under Colo.Rev.Stat. § 4-9-109 and 309, because the Financing Statements do not adequately identify room rents as collateral. The Financing Statements contain descriptions of furniture, fixtures, and equipment and all related proceeds. However, the Debtor asserts: [S]ueh descriptions cannot be reasonably interpreted to encompass the room revenue or put the world on notice of Zions’ alleged security interest in accounts or payment intangibles for use of occupancy of rooms at the Property. Thus, even if the description of collateral in the Security Agreement is sufficient to create a security interest in the room revenue, the descriptions in the UCC-1 Financing Statements are inadequate and Zions’ alleged security interest is subject to avoidance pursuant to 11 U.S.C. § 544.17 Moreover, the Debtor argues the recording of the Assignment of Rents did not perfect Zions’ security interest because such assignments should have been recorded with the Secretary of State and not with the Pueblo County Clerk and Recorder, pursuant to Colo.Rev.Stat. § 4-9-310. The Debtor maintains the room rents are personal property and must be secured by a financing statement filed with the Secretary of State. Lastly, the Debtor contends since Zions’ interest in the room revenues must be perfected pursuant to the provisions of Article 9 of the Uniform Commercial Code, the notice Zions filed under § 546(b) is also ineffective with respect to the room revenue. Zions, on the other hand, maintains the ease law relied upon by the Debtor is outdated in light of the Bankruptcy Reform Act of 1994 (the “1994 Act”).18 Zions points out the 1994 Act included a new § 552(b)(2), intended to benefit lenders on motel and hotel properties. According to Zions, under § 552(b)(2), if a secured creditor’s security agreement against the real property of a hotel or motel is valid and perfected, and the security agreement extends to amounts paid as “fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties,” then the security agreement extends to all such revenues acquired by the estate after the commencement of the case — regardless of state perfection laws— unless the court, after notice and a hearing, and based on the equities of the case, orders otherwise. Zions also asserts, even if the Vickers rule still applies, the descriptions in the Deed of Trust and the Assignment of Rents clearly extend to the motel and to amounts paid as rents. Zions cites cases from the Colorado Court of Appeals for the proposition that security interests in hotel revenues created under deeds of trust and assignments of rights are effective.19 817DISCUSSION Section 363(a) defines “cash collateral” as follows: (a) In this section, “cash collateral” means cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property and the fees, charges, accounts or other payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.20 In turn, § 552(b)(2) provides: (2) Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, and notwithstanding section 546(b) of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to amounts paid as rents of such property or the fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties, then such security interest extends to such rents and such fees, charges, accounts, or other payments acquired by the estate after the commencement of the case to the extent provided in such security agreement, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.21 Does Zions Have an Enforceable Security Interest? Rents are “cash collateral” when they are “subject to a security interest as provided in 552(b).”22 The concept of “cash collateral” includes the notion a creditor has an enforceable, non-avoidable security interest in the subject collateral.23 The fact the 1994 Act gave preference to security interests in rents and room payments held by hoteliers does not create a blanket rule that all hotel room revenues constitute such rents and payments. In order for them to be so, an enforceable security interest must exist. The first question the Court must determine, therefore, is whether Zions has an enforceable security interest in the room revenues. If it does not have an enforceable security interest, its interest in the room revenues is avoidable under § 544 and thus excepted from § 552(b)(2). Here, the Deed of Trust and Assignment of Rents state the Lender has a security interest in rents, and define rents as “all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the [subject] Property” (Deed of Trust), and “all rents, revenue, income, issues, royalties, bonuses, accounts receivable, cash or security deposits, advance rentals, profits and proceeds from the Property” (Assignment of Rents). Although expansive, such language does not provide a description that creates a clear security interest in “fees, charges, accounts, or other payments for the use or occupancy of rooms and other 818public facilities in hotels, motels, or other lodging properties” for purposes of § 552(b)(2). As an initial observation, the United States Bankruptcy Court for the District of New Jersey recently evaluated the following similarly broad language, arguably even more expansive than the language in the Loan Documents in this case: “Rents” include “... all revenues and credit card receipts collected from guest rooms, restaurants, bars, meeting rooms, banquet rooms and recreation facilities, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or any operator or manager of the hotel or the commercial space located in the Improvements or acquired from others ... license, lease, sublease and concession fees and rentals, health club membership fees, food and beverage wholesale and retail sales, service charges, vending machines sales and process, if any ... whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code.”24 However, the Court found the mere use of the word “rents” in the loan documents before it did not remove the transaction from the application of Article 9 of the Uniform Commercial Code, stating it was “wary of lending support to a creditor’s ability to draft itself outside of Article 9’s integral protections for obligors and debtors, e.g., redemption rights.”25 This Court is similarly cautious in using § 552 to remove a transaction from the general conduct of business reflected in the Uniform Commercial Code. However, of greater significance, the Court notes a careful reading of § 552(b) indicates a security agreement is the critical instrument that must contain the key language creating the lien interest. Such an interest may not be established in ancillary documents. The Security Agreement in this case links the collateral described to the disposition26 of the Property, not to the operation of the property.27 In this Court’s opinion, revenue derived from operating a hotel does not constitute the “disposition” of property and therefore does not fall within this collateral description.28 Accordingly, the Court finds Zions does not have an enforceable security agreement in the room revenues. Therefore, § 552(b)(2) does not apply, and the Court must return to the question in Vickers, 819that is, whether the room revenues may be considered rents, which may be assigned, or personal property, which is subject to the Colorado Uniform Commercial Code. Are the Room Revenues Rents or Personal Property? In Vickers, the Court concluded under Colorado law, profits consisting of room revenues from a debtor’s motel business were “personalty,” which could be secured by an Article 9 financing statement, rather than “rents,” which could be assigned.29 It noted: The bankruptcy court ... observed that certain Colorado statutes refer to hotel fees as “rents.” However, in these statutes, the term is used as a verb to describe the action of providing shelter, and not as a noun to describe the fees for providing such shelter. See, e.g. Colo.Rev.Stat. § 38-20-102(2)(1982)(“keeper of hotel ... or any other person who rents temporarily shelter” entitled to lien for amount due for lodging)(emphasis added); id. § 12-44-101(3)(1985)(statute dealing with public accommodations defining “public establishment” to include “any establishment leasing or renting overnight sleeping accommodations”). A more recently enacted statute defines the term “hotel facility” as “an establishment engaged in the business of furnishing overnight room accommodations primarily for transient persons,” and refers to the fees charged by hotel facilities as “rates.” Id. §§ 18-14-102, 18-14-103 (1986).30 Zions contends the 1994 passage of § 552(b)(2) effectively overruled Vickers and similar cases, making hotel room revenues “rents,” and hence an interest in real property which may be assigned, by definition. However, even in the absence of problems with the enforceability of Zions’ security interest, as discussed above, the Court does not believe such an absolute conclusion can be reached. Specifically, in Ocean Place Development, the Court found: The significance of the plain meaning of the statutory language ... lies in the general rule that “... guests in a hotel ... are mere licensees and not tenants, and ... they have only a personal contract and acquire no interest in the realty. ...” In re Greater and Atlantic and Pacific Inv. Group, 88 B.R. 356, 359 (Bankr.N.D.Okla.1988) (quoting from 49 Am.Jur.2d Landlord and Tenant 6 (1970)). See also DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527, 530 (1908)(con-cluding a room in an inn is not, in a legal sense, the “dwelling house” of a guest, and the relation is not that of landlord and tenant, for notwithstanding the guest’s occupancy, it is the house of the innkeeper) ... It simply would distort the statutory language to hold that a guest in a hotel is a lessee and that the fee paid, although perhaps referred to in common parlance as rent, is rent attributable to a lease.31 The Court went on to find: [T]he hotel room revenues are “accounts” or “payments intangible” as defined by Article 9. See also In re Northview Corp., 130 B.R. 543 (9th Cir. BAP 1991) (characterizing hotel revenues as personal property characterized as an “account” or “payment intangibles” rather than rent). The hotel occupants of 820Ocean Place are not “tenants” who possess an interest in real property, but merely licensees. Therefore, as a secured creditor, all the Debtor must do is establish that AFP’s interests are adequately protected. Moreover, the Official Comments to the UCC, which clarify and relate the philosophy undergirding Article 9, further support the Court’s construction. In particular, the Official Comment to Section 9-101 states: The growing complexity of financing transactions forces us to keep piling new statutory provisions on top of our inadequate and already sufficiently complicated nineteenth-century structure of security law ... The aim of this Article is to provide a simple and unified structure within which the immense variety of present-day secured financing transactions can go forward with less cost and with greater certainty. Under this Article the traditional distinctions among security devices, based largely on form, are not retained; the Article applies to all transactions intended to create security interests in personal property and fixtures. Id. (emphasis added). Furthermore, with respect to the scope of Article 9, the Official Comment to Section 9-109 provides: “When a security interest is created, this Article applies regardless of the form of the transaction or the name that the parties have given to it.” Id. The Court is persuaded that the preceding commentary suggests that the UCC drafters intended that courts look beyond the labels given by the parties when determining whether the UCC, specifically Article 9, is applicable in any given proceeding.32 This Court agrees with the reasoning set forth in Ocean Place, and finds, based on the analysis of the Loan Documents set forth above, the room revenues in the instant case constitute personal property, subject to the Uniform Commercial Code, not real property, which can be assigned. It should be noted this finding is specific to the facts of this case and the documents involved. In light of the great diversity of financial transactions entered into by debtors and creditors, it would be premature, if not foolhardy, to create a hard and fast rule that is not dependent on the particular circumstances and documentation of each case. It should also be noted the Deed of Trust and Assignment of Rents in this case contain the description including “rents” in the sections of the documents devoted to describing personal property collateral.33 Lastly, the Court finds unpersuasive Zions’ contention the Colorado Court of Appeals’ Greair-West Life case repudiates Vickers.34 Specifically, the Greair-West Court stated: The question presented is one which has not been previously addressed by Colorado courts, i.e., a determination of the scope of the specific language contained in the documents here. See In re Vick-ers, 111 B.R. 382 (D.Colo.1990) Resolution of this question must turn upon a determination of the parties’ intent as expressed in those documents. Accordingly, appropriate rules of contract construction will be employed to decide the rights and liabilities of the 821parties. See Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 317 [371] (Colo. 1900). When the language of a contract is clear and unambiguous, rules of construction cannot be applied to vary the meaning of its terms. Alexander Dawson, Inc. v. Fling, 155 Colo. 599, 396 P.2d 599 (1964). The object of construction is rather to ascertain and effectuate the parties’ mutual intent based on the language of the contract itself. In re May, 756 P.2d 362 (Colo.1988). The mere fact that the parties dispute the legal effect of contract terms, however, does not render their meaning uncertain for purposes of construction. Rodriguez v. Safeco Insurance Co., 821 P.2d 849 (Colo.App.1991). Only when reasonably susceptible of more than one interpretation are contract terms considered to be uncertain or ambiguous. Davis, v. M.L.G. Corp., 712 P.2d 985 (Colo.1986). A similar approach in the interpretation of assignment clauses has been displayed by a bankruptcy court in proceedings to adjudicate rights to hotel revenues. In re Drake Hotel Associates, 131 B.R. 156 (Bankr.N.D.Cal.1991). According to this holding, a lien exists when language of the assignment (or deed of trust) plainly reflects an intent to include those revenues directly arising from the conduct of business operations on mortgaged premises. This principle is based on a desire to assure payment of the underlying debt from sources the parties reasonably would anticipate to arise from actual use of the property. We are aware of the considerable line of cases in the bankruptcy field which address the nature of hotel revenue and its character under a deed of trust or assignment of rents. As a general rule, these cases hold that hotel revenues are personal property, and not rents. Accordingly, the usual language of a commercial mortgage or deed of trust which provides for an assignment of the “rents, issues, and profits” of the mortgage property to the lender does not create a security interest in such revenues. In re Tri-Growth Centre City, Ltd., 133 B.R. 524 (Bankr.S.D.Cal.1991); In re Nendels-Medford Joint Venture, 127 B.R. 658 (Bankr.D.Or.1991); In re Shore Haven Motor Inn, Inc., 124 B.R. 617 (Bankr.S.D.Fla.1991); In re Sacramento Mansion, Ltd., 117 B.R. 592 (Bankr. D.Colo.1990) (applying California law); In re M. Vickers, Ltd., supra; In re Investment Hotel Properties, Ltd., 109 B.R. 990 (Bankr.D.Colo.1990) (applying Missouri law); In re Ashkenazy Enterprises, Inc., 94 B.R. 645 (Bankr.C.D.Cal. 1986); In re Greater Atlantic & Pacific Investment Group, Inc., 88 B.R. 356 (Bankr.N.D.Okla.1988). However, these cases generally address competing claims of creditors and the application of Article Nine of the Uniform Commercial Code in support of some of those competing claims, or are based on long recognized distinctions between the relation of landlord-tenant on the one hand and innkeeper and guest on the other, and the fact that the language of the assignment clause at issue was narrowly drafted so as not to encumber the mortgagor’s business.35 The documents before this Court contain language different from the language evaluated in Great West. The language in the Loan Documents in this case, by its clear meaning did not create a security interest in the room revenues of the subject property. Rather, here the Loan Documents treated room revenues as personalty, even if described as “rents.” In addition, as discussed above, the language of the Loan 822Documents does not plainly reflect an intent to include in the lien those revenues directly arising from the conduct of business operations. Therefore, neither Great-West nor Drake Hotel can be used for the blanket proposition that all hotel room revenues constitute “rents” for purposes of Colorado law. Therefore, in this case, the room revenues are not subject to an enforceable security interest that would bring them within the application of § 552. In addition, they are not real property subject to assignment. For these reasons, the room revenues do not constitute cash collateral. IT IS THEREFORE ORDERED Zions’ Motion to Prohibit Use of Cash Collateral is DENIED. IT IS FURTHER ORDERED the Debtor’s Motions for Authority to Use Cash Collateral are denied as moot. . Unless otherwise specified, all future statutory references in the text are to Title 11 of the United States Code. . The Debtor cites the well-known case, Chaussee v. Morning Star Ranch Resorts Co., 64 B.R. 818, 821 (Bankr.D.Colo.1986). . Debtor’s Brief, Exhibit 1. . Zions’ Brief, Exhibit 2. . Debtor’s Brief, Exhibit 2; Zions’ Brief, Exhibit 3. . Debtor’s Brief, Exhibit 3; Zions' Brief, Exhibit 4. . Zions’ Brief, Exhibits 5 and 6. . Zions’ Brief, Exhibits 7, 8, and 9. . Zions’ Brief, Exhibit 2, page 1. . Id., p. 8. . Id. . Debtor’s Brief, Exhibit 2, p. 1; Zions’ Brief, Exhibit 3, p. 1. . Id., p. 5. . Debtor’s Brief, Exhibit 3; Zions' Brief, Exhibit 4, p. 1 (emphasis added). It is obvious from the direct quotations from the Exhibit that part of the text is missing. However, for purposes of the matter before the Court, the Court believes the critical words and meanings are discernable, and the missing portions could be "reconstructed” without offense to the critical words and meanings, as more fully described herein. .In re Tri-Growth Ctr. City, Ltd., 133 B.R. 524, 526 (Bankr.S.D.Cal.1991). . Id., at 526. . Debtor's Brief, Docket No. 89, pp. 4-5. . The Debtor cited Super 8 Motels v. M. Vickers, Ltd. (In re M. Vickers, Ltd.), 111 B.R. 332 (D.Colo. 1990). In Vickers, Judge Kane of the United States District Court for the District of Colorado concluded room revenues were personalty. However, it should also be noted the Debtor, in support of its assertion hotel room revenue constitutes personal property, also cited a much more recent case, In re Ocean Place Development, LLC, 447 B.R. 726, 732 (Bankr.D.N.J.2011). . Bank of Am. Nat’l Trust & Savings Ass’n v. Denver Hotel Ass’n Ltd. P’ship, 830 P.2d 1138, 1141 (Colo.App.1992); Great-West Life Assurance Company v. Raintree Inn, 837 P.2d 267, 270 (Colo.App.1992). . 11 U.S.C. § 363(a). . 11 U.S.C. § 552(b)(2). . Id. . In re Wright Group, Inc., 443 B.R. 795, 805 (Bankr.N.D.Ind.2011) (citing In re Fricks, 58 B.R. 883 (Bankr.N.D.Ala. 1986)). . Ocean Place Development, LLC, supra, 447 B.R. at 733-734. . Id., at 734. . According to the Merriam-Webster dictionary, "disposition” is defined as: The act or the power of disposing or the slate of being disposed: as a: administration, control b: final arrangement: settlement <the disposition of a case> c: (1) transfer to the care or possession of another (2) the power of such transferal d: orderly arrangement. . Debtor’s Brief, Exhibit 3; Zions’ Brief, Exhibit 4, p. 1, supra. Specifically, this document provides the collateral includes: "All accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, consignment or other disposition of any of the property described in this Collateral section.” . It is also important to note the Security Agreement does not include any language which incorporates or adopts any other ancillary document within its coverage. . Vickers, supra, at 335. . Id. It should be noted the Colorado Revised Statute sections cited by Vickers have not changed since the date the Vickers opinion was issued. .Ocean Place Development, supra., at 732 (quoting In re Kearney Hotel Partners v. Richardson, 92 B.R. 95 (Bankr.S.D.N.Y.1988)). . Id., at 732-733. . See the discussion of the effect of expansive language contained in Ocean Place, above, in which the Bankruptcy Court determined the expansive definition of "rents” was not dispositive. .Great-West Life Assur. Co. v. Raintree Inn, 837 P.2d 267 (Colo.App.1992). . Id., at 270-271	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488190/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Molina Healthcare of Texas, Inc. v. ACS Primary Care Physicians Southwest, P.A. and Emergency Services of Texas, P.A. Appellate case number: 01-21-00727-CV Trial court case number: 2017-77084 Trial court: 113th District Court of Harris County Appellant, Molina Healthcare of Texas, Inc. appealed from the trial court’s December 30, 2021 amended final judgment. The appellate record was due to be filed with the Clerk of this Court on or before January 25, 2022. See TEX. R. APP. P. 35.1. No reporter’s record was filed by the deadline, and after several extensions of the deadline to file the reporter’s record, on September 6, 2022, appellees, ACS Primary Care Physicians Southwest, P.A. and Emergency Services of Texas, P.A., filed a motion requesting that the Court direct the trial court to conduct a hearing to determine the reason for the failure to file the reporter’s record. On September 20, 2022, the Court granted appellees’ motion, abated the appeal, and directed the trial court to conduct a hearing to: (1) determine the reason for the failure to timely file the reporter’s record; (2) determine whether the trial court’s official court reporter, Suzanne Saulsberry, is able to assist the former official court reporter, Delicia Struss, with completing and filing the reporter’s record for this appeal; and (3) to set a deadline by which the reporter’s record will be filed with the Clerk of this Court. The Court’s September 20, 2022 order notified the parties that the appeal would be reinstated on the Court’s active docket when the trial court clerk filed a supplemental clerk’s record with this Court containing the trial court’s findings of fact, conclusions of law, and recommendations as to the issues referenced in the Court’s order. On November 2, 2022, the trial court clerk filed a supplemental clerk’s record, containing the trial court’s findings, conclusions, and recommendations. Additionally, the reporter’s record was filed on October 12, 2022. Accordingly, this appeal is reinstated on the Court’s active docket. Appellant’s brief is due no later than thirty days from the date of this order. It is so ORDERED. Judge’s signature: April Farris  Acting individually Date: November 17, 2022	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488192/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Holly Dawn Ruthven v. D. Elaine Wike Appellate case number: 01-22-00696-CV Trial court case number: 22-CV-0969 Trial court: 122nd District Court of Galveston County Appellant has filed a motion to appeal as indigent. In this motion, appellant claims that on October 6, 2022 she filed in the trial court a statement of inability to afford court costs. But neither the clerk’s record nor the supplemental clerk’s record, both filed on October 14, 2022, contains appellant’s statement of inability. Accordingly, the trial court clerk shall file a supplemental clerk’s record containing appellant’s statement of inability filed on October 6, 2022, any opposition to this statement of inability, and the trial court’s order, if any, concerning appellant’s statement of inability. The supplemental clerk’s record shall be filed in this Court within 15 days of the date of this order. It is so ORDERED. Judge’s signature: _____/s/ Peter Kelly______  Acting individually  Acting for the Court Date: __November 17, 2022____	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488191/	Order issued November 17, 2022 In The Court of Appeals For The First District of Texas NO. 01-22-00819-CV MARGARITA ANGELINO TRUJILLO, Appellant V. SHAFAII INVESTMENSTS, LTD., Appellee On Appeal from Co Civil Ct at Law No 3 Harris County, Texas Trial Court Cause No. 1182578 MEMORANDUM ORDER OF REFERRAL TO MEDIATION The Court determines that it is appropriate to refer this appeal for resolution by mediation. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021, 154.022(a), 154.023 (Vernon 2011). Accordingly, the Court orders that this appeal be referred to mediation unless any party to the appeal files an objection with the Clerk of this Court within ten days after receiving this order. See id. § 154.022(b). The parties shall choose a qualified mediator and agree on a reasonable fee for the mediator’s services. 1 See id. §§ 154.052, 154.054(a) (Vernon 2011). The Court sets the following deadlines: • No later than 15 days from the date that this order is issued, the parties shall file with the Clerk of this Court a completed “Parties’ Notification to Court of Mediator.” This document can be downloaded from the forms page of the Court’s website at http://www.txcourts.gov/1stcoa. • No later than 45 days from the date that this order is issued, the parties shall conduct the mediation. • No later than two days from the conclusion of the mediation, the parties and the mediator shall advise the Clerk of this Court in writing whether the parties did or did not settle the underlying dispute. All parties, or their representative with full settlement authority, shall attend the mediation with their counsel. The mediator shall encourage and assist the parties in reaching a settlement of their dispute, but may not compel or coerce the parties to enter into a settlement agreement. See id. § 154.053(a) (Vernon 2011). All communications relating to the mediation are confidential and not subject to disclosure, except as set forth by law. See id. § 154.073 (Vernon 2011). The Clerk of this Court, however, will file this order, any objection to this order, and the 1 The Court does not recommend mediators. Mediation information is available from the Dispute Resolution Center of Harris County ((713) 755- 8274 and https://drc.harriscountytx.gov/), the Fort Bend Dispute Resolution Center ((281) 342-5000), the Alternate Dispute Resolution Section of the State Bar of Texas (http://www.texasadr.org/), and other groups. The parties are not required to use a mediator recommended or listed by these groups. completed “Parties’ Notification to Court of Mediator” with the other documents filed in this appeal that are available for public inspection. Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. See id. § 154.053(b). Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including this Court. See id. § 154.053(c). The Court will consider the agreed fee for the mediator’s services to be reasonable and tax that fee as a cost of the appeal unless the parties agree to another method of payment. See id. § 154.054. /s/ Gordon Goodman Justice Gordon Goodman Acting Individually	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488189/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: USPLS, LC v. Patrick Gaas and Daniel Shank Appellate case number: 01-20-00604-CV Trial court case number: 2019-42530 Trial court: 129th District Court of Harris County Appellant USPLS, LC has filed an unopposed motion to substitute counsel. See TEX. R. APP. P. 6.5(d). USPLS’s motion requests that the Court substitute James Wilson as USPLS’s counsel of record in place of Ross Spence and Spence Desenberg & Lee, PLLC. USPLS’s motion includes the required information. See id. Accordingly, the Court grants the motion and directs the Clerk of this Court to substitute James Wilson as counsel of record for USPLS. It is so ORDERED. Judge’s signature: /s/ April L. Farris  Acting individually Date: November 17, 2022	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488193/	Opinion issued November 17, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00393-CV ——————————— IN RE JACOB R. COX AND SERVICEPLUS, LLC, Relators Original Proceeding on Petition for Writ of Mandamus MEMORANDUM OPINION Relators, Jacob R. Cox and ServicePlus, LLC, filed a petition for a writ of mandamus challenging two discovery orders signed by the trial court on April 25, 2022, including: (1) an “Order Compelling Production,” which granted the motion to compel of real party in interest, Bestway Oilfield, Inc., and (2) an order denying relators’ motion to compel.1 In connection with their mandamus petition, relators also filed an “Emergency Motion for Temporary Relief,” requesting that, pending consideration of their mandamus petition, the Court stay enforcement of the trial court’s April 25, 2022 “Order Compelling Production.” The Court granted relators’ motion on May 26, 2022, staying enforcement of the “Order Compelling Production.” We deny relators’ petition for writ of mandamus and lift the stay imposed by our May 26, 2022 order. Any pending motions are dismissed as moot. PER CURIAM Panel consists of Justices Goodman, Hightower, and Guerra. 1 The underlying case is Bestway Oilfield, Inc. v. Jacob R. Cox and ServicePlus, LLC, Cause No. 2020-32320, in the 270th District Court of Harris County, Texas, the Honorable Dedra Davis presiding. 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488195/	Opinion issued November 17, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-21-00475-CV ——————————— TEXAS INSURANCE NETWORK, INC. D/B/A CORE BENEFITS AND MICHAEL W. STEPHENS, LLC, Appellants V. DANIEL D. GARTNER AND GARTNER LAW FIRM, PC, Appellees On Appeal from County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1083087 MEMORANDUM OPINION In this case, appellees, attorney Daniel D. Gartner and his law firm, Gartner Law Firm, PC (together, Gartner), sued Dennis Michael McLaughlin, a non-party to this appeal, seeking to recover Gartner’s unpaid legal fees for services that Gartner had provided in an earlier lawsuit to appellants Texas Insurance Network, Inc. doing business as Core Benefits (TIN) and Michael W. Stephens, LLC (MWS). Gartner claimed that McLaughlin had agreed to pay the attorney’s fees incurred by TIN and MWS in the earlier suit but had failed to pay all of Gartner’s fees. In the trial court, TIN and MWS, which were aligned with McLaughlin, intervened in the instant suit, asserting claims against Gartner, including claims for breach of fiduciary duty and negligence. Following a jury trial, the trial court rendered judgment in favor of Gartner Law Firm against McLaughlin, awarding the firm actual damages and attorney’s fees. The judgment also ordered that TIN and MWS recover nothing against Gartner on their breach-of-fiduciary-duty claim and that MWS recover nothing on its negligence claim. However, the jury found that Gartner was liable to TIN for negligence, and the judgment ordered Gartner Law Firm to pay TIN damages. On appeal, TIN and MWS contend that the trial court abused its discretion by excluding a portion of their legal expert’s testimony. Because any error in excluding the testimony was harmless, we affirm the trial court’s judgment. Background In 2010, TIN, which was owned solely by McLaughlin, purchased nearly all of MWS’s assets. McLaughlin then became MWS’s managing director. After the asset purchase, MWS sued its former employee, Brent Young, for allegedly taking MWS’s proprietary information (hereafter referred to as the Young 2 litigation). McLaughlin hired Daniel Gartner and his law firm to represent MWS in the suit, and McLaughlin agreed to pay Gartner’s legal fees incurred by MWS. As the litigation progressed, TIN was added as a plaintiff. Among their claims, MWS and TIN alleged that Young had violated the Texas Theft Liability Act (TTLA). The 2016 final judgment from the Young litigation reflects that all claims, including the TTLA claim, were resolved in favor of Young. Under the TTLA, Young, as the prevailing party, was entitled to his “reasonable and necessary attorney’s fees,” and the judgment reflects that Young was awarded attorney’s fees of $50,500 against MWS and TIN.1 Later, MWS and TIN signed a settlement agreement with Young, agreeing to pay Young $20,000 in exchange for his release of the right to collect the $50,500 attorney’s-fee award from MWS and TIN. Although TIN had paid some of Gartner’s legal fees incurred in the Young litigation, Gartner sent McLaughlin a demand letter informing him that he owed the law firm $71,275.09 in unpaid legal fees for Gartner’s representation of MWS and TIN in that litigation. The letter requested payment within 30 days. 1 See TEX. CIV. PRAC. & REM. CODE § 134.005(b) (“Each person who prevails in a suit under [the TTLA] shall be awarded court costs and reasonable and necessary attorney’s fees.”); Agar Corp., Inc. v. Electro Cirs. Int’l, LLC, 580 S.W.3d 136, 148 (Tex. 2019) (holding that defendant “prevailed” under TTLA when it obtained summary judgment on plaintiff’s TTLA claim, entitling defendant to recover its attorney’s fees for defending against the claim). 3 When McLaughlin did not pay the legal fees, Daniel Gartner sued McLaughlin, asserting, inter alia, that McLaughlin breached his agreement to pay MWS’s and TIN’s fees. Shortly after filing suit, Daniel Gartner filed an affidavit. Attached to the affidavit were business records from Gartner Law Firm, itemizing the legal services that the firm had performed for MWS and TIN and the corresponding charges for those services. Gartner stated that he was the custodian of the firm’s business records and attested that “[t]he amount which was charged for the services and costs was reasonable at the time and place that the services and costs were provided and the services and costs were necessary.” Gartner Law Firm also joined the instant suit as a plaintiff. In the trial court, attorney Michael West represented McLaughlin, and he also represented MWS and TIN. West filed petitions in intervention on behalf of MWS and TIN. As intervenors, MWS and TIN sought actual damages, asserting causes of action against Daniel Gartner and Gartner Law Firm for negligence and breach of fiduciary duty, among others. MWS also asserted a fraud claim. In conjunction with their breach-of-fiduciary-duty claim, MWS and TIN sought disgorgement of Gartner’s legal fees. To support its claims, TIN alleged that, in the Young litigation, Gartner had advised TIN to join the litigation as a plaintiff and to file a claim under the TTLA. TIN asserted that Gartner, however, “did not advise TIN that if TIN did not prevail 4 in its claim under the [TTLA], then it would be responsible to pay the defendants’ costs and attorneys’ fees.” TIN indicated that it had not had a meritorious TTLA claim despite Gartner’s assurance that it did. TIN explained that Gartner did not non- suit TIN’s TTLA claims and did not submit a jury question on the issue. As a result, the trial court in the Young litigation “determine[d] that TIN was not successful on its [TTLA] claim” and that TIN was liable to Young “under the fee shifting provision” of the TTLA for his attorney’s fees of $50,500. TIN explained that it then settled with Young, agreeing to pay him a lesser amount, “which TIN then paid to resolve the judgment against it.” TIN also alleged that Gartner had overbilled for their legal services. Specifically, TIN alleged that Gartner charged TIN for services that Gartner had not performed and for services that Gartner “had agreed and represented that they would not charge for.” Similarly, MWS alleged in its intervention petition that Gartner overbilled for their legal services. MWS alleged that Gartner billed for services that were performed by another attorney and not performed by Daniel Gartner. And, like TIN, MWS asserted that Gartner billed MWS for “legal services which were not performed by Gartner” and for legal services that MWS had been told it would not be charged. The case was tried to a jury. During trial, West—the attorney representing McLaughlin, MWS, and TIN—called a legal expert—attorney Jess Mason—to 5 testify. Gartner immediately objected that Mason should not be permitted to testify about the reasonableness and necessity of Gartner’s attorney’s fees from the Young litigation, which Gartner sought to recover from McLaughlin. The record indicated that Mason planned to testify that Gartner’s attorney’s fees were not reasonable and necessary because Gartner had overbilled for their services and had billed for services that Gartner had not performed. Gartner pointed out that, early in the instant suit, Daniel Gartner had filed a business records affidavit in which he attested to the reasonableness and necessity of the attorney’s fees reflected in his firm’s billing records attached to the affidavit. Gartner also pointed out that the other side had not filed a counter-affidavit controverting the reasonableness and necessity of the attorney’s fees. Gartner asserted that, because no counter-affidavit affidavit had been filed, Mason was prohibited from testifying about the reasonableness and necessity of Gartner’s attorney’s fees under Civil Practice and Remedies Code section 18.001.2 The trial court agreed with Gartner and prohibited Mason from testifying that the legal fees reflected in Gartner’s billing records, which had been admitted into evidence, were not reasonable and necessary charges for the legal work that Gartner had performed in the Young litigation. But the trial court did permit Mason to testify about whether McLaughlin had agreed to pay the legal fees and to testify about 2 See TEX. CIV. PRAC. & REM. CODE § 18.001. 6 whether Gartner had been negligent in advising TIN to file a TTLA claim against Young. After Mason had provided some testimony, West argued to the trial court that, even though the court had ruled that Mason could not testify that the legal fees charged in Gartner’s billing records were not reasonable and necessary, Mason should be permitted to testify about the charges to the extent that they evidenced a breach of fiduciary duty to MWS and TIN. The trial court agreed with West. The trial court reiterated that Mason could not testify about the reasonableness and necessity of the legal fees in Gartner’s billing records, but it also ruled that Mason could testify about the entries in the billing records as they related to MWS’s and TIN’s breach-of-fiduciary-duty and fraud claims. The trial court stated that, for example, Mason could testify about whether an entry was fraudulent or whether an entry reflected work that Gartner never performed. Mason could also testify if an entry demonstrated a breach of fiduciary duty because it reflected a breach of the attorney’s duty of loyalty by showing that the legal work was in the best interest of the lawyer rather than in the client’s best interest. To support TIN’s and MWS’s breach-of-fiduciary-duty claim, Mason then provided testimony about certain entries in Gartner’s billing records. For instance, Mason testified that Gartner billed for services for which Gartner had previously represented they would not bill, overbilled for their legal services, and failed to be specific in their billing entries. 7 The jury found that McLaughlin had agreed to pay Gartner Law Firm for the legal services rendered in connection with the Young litigation and that McLaughlin had failed to comply with that agreement. The jury awarded Gartner Law Firm $71,275 in actual damages, representing the unpaid fees that the law firm was owed by McLaughlin for the legal services it had performed in the Young litigation. And the jury found that Gartner Law Firm had incurred $148,840 in reasonable and necessary legal fees in this case. The trial court also submitted liability questions to the jury for MWS’s and TIN’s claims of negligence and breach of fiduciary duty.3 In Question 11, the jury answered affirmatively for both MWS and TIN when asked whether “the negligence, if any, of Dan[iel] Gartner proximately cause[d] financial injury to [MWS] and [TIN].” While it found that he had been negligent, the jury found in Question 12 that Daniel Gartner had not breached his fiduciary duty to either MWS or to TIN. In Question 13, the trial court instructed the jury that, if it had found liability on either the negligence or breach-of-fiduciary-duty claim, then it should determine what damages were owed to MWS and to TIN. The trial court also instructed the jury that, to determine MWS’s and TIN’s damages, the jury should “[c]onsider only the money reasonably paid in settlement of [the Young litigation].” The jury found that MWS was entitled to $0 in damages, but that TIN was entitled to $50,500. 3 MWS’s fraud claim was not submitted to the jury. 8 Gartner filed a motion for judgment notwithstanding the verdict. In the motion, Gartner asserted that the jury’s award of damages to TIN should be reduced from $50,500 to $20,000. Gartner acknowledged that TIN had been ordered to pay $50,500 in attorney’s fees to Young in the earlier litigation but pointed out that “the evidence also showed conclusively and without contradiction that after the rendition of judgment [in the Young litigation], the parties entered into a settlement agreement under which TIN paid Young the sum of $20,000, thus fully discharging the judgment debt of TIN.” Gartner argued that “as matter of law, TIN’s damages in the case at bar were limited to the sum of $20,000.” Gartner also pointed out that West had told the jury in his closing argument that it should award $20,000 in response to Question 13. The trial court granted Gartner’s motion.4 The trial court signed a final judgment ordering that Gartner Law Firm recover from McLaughlin: (1) $71,275.09 for breach of contract, (2) $148,840 in attorney’s fees through proceedings in the trial court, and (3) conditional appellate attorney’s fees. The judgment also ordered that TIN and MWS recover nothing against Gartner on their breach-of-fiduciary-duty claim and that MWS recover nothing on its negligence claim. But, based on the jury’s affirmative negligence finding in TIN’s 4 Gartner also complained of the jury’s award of $0 for conditional appellate attorney’s fees in the motion for judgment notwithstanding the verdict. The trial court also granted the motion as to those jury findings and awarded Gartner Law Firm conditional appellate attorney’s fees in the final judgment. 9 favor, and the jury’s damages finding as reduced by the trial court, the trial court’s judgment ordered Gartner Law Firm to pay TIN $20,000, plus pre- and post- judgment interest. MWS and TIN now appeal the trial court’s judgment. McLaughlin has not appealed. Harmless Error In one issue, MWS and TIN (hereafter together, Appellants) contend that the trial court erred when it did not permit their legal expert, Jess Mason, to testify that Gartner’s attorney’s fees in the Young litigation were not reasonable or necessary because Gartner had engaged in “wrongful billing practices.” Appellants argue that the trial court excluded the testimony based on “an incorrect interpretation” of Civil Practice and Remedies Code section 18.001. Appellants assert that they should have been permitted to introduce Mason’s testimony regarding the reasonableness and necessity of the attorney’s fees to establish their breach-of-fiduciary-duty claim. In response, Gartner asserts that, regardless of whether the trial court erred in excluding Mason’s testimony regarding the reasonableness and necessity of the attorney’s fees, such error would be harmless error as to MWS and TIN. We agree. “Trial court error is reversible only when harmful, that is, if the error ‘probably caused the rendition of an improper judgment.’” Diamond Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 551 (Tex. 2018) (quoting TEX. R. APP. P. 44.1(a)); 10 State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (“For the exclusion of evidence to constitute reversible error, the complaining party must show that (1) the trial court committed error and (2) the error probably caused the rendition of an improper judgment.”). Because “[t]his standard is less a precise measurement and more a matter of judgment,” courts “review the entire record to assess the importance of the excluded evidence.” Williams, 542 S.W.3d at 551. The record shows that Mason’s testimony regarding Gartner’s alleged overbilling, as reflected in Gartner’s billing records, was being offered for two purposes. First, the testimony was being offered to defend against Gartner’s breach- of-contract claim against McLaughlin by showing that the attorney’s fees from the Young litigation, which Gartner sought to collect from McLaughlin, were not reasonable and necessary. Second, Mason’s testimony was offered to support Appellants’ breach-of-fiduciary-duty claim against Gartner. The record shows that, while Mason was prohibited from testifying about Gartner’s alleged overbilling as related to the reasonableness and necessity of the attorney’s fees, the trial court permitted Mason to testify about the overbilling issues as they related to proving Appellants’ breach-of-fiduciary-duty claim. Had McLaughlin appealed, the excluded expert testimony regarding the reasonableness and necessity of the attorney’s fees may have been of significance as to him. But McLaughlin did not appeal. The substance of the testimony that 11 Appellants complain was excluded—that is, testimony about Gartner’s alleged “wrongful billing practices”—was in fact admitted for the very purpose that they complain it was not admitted: to prove that Daniel Gartner and his firm breached their fiduciary duties to Appellants. Thus, the record shows that the exclusion of Mason’s testimony regarding the reasonableness and necessity of Gartner’s attorney’s fees did not result in the rendition of an improper judgment as to Appellants. See TEX. R. APP. P. 44.1(a); Williams, 542 S.W.3d at 551; Cent. Expressway Sign Assocs., 302 S.W.3d at 870; see also Benavides v. Cushman, Inc., 189 S.W.3d 875, 880 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that there was no harm in excluding expert’s testimony regarding incidents that were similar to incident that injured plaintiff because jury heard evidence concerning other incidents from other sources); Stergiou v. Gen. Metal Fabricating Corp., 123 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (recognizing that, where two timelines were essentially identical, holding that any error in excluding appellant’s timeline was harmless because appellant did not show how excluded timeline substantially differed from properly admitted one); Wilson v. John Frantz Co., 723 S.W.2d 189, 194 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (“If there was any error in excluding the evidence proffered by the appellee, the error was harmless because other evidence that was admitted revealed the [same] facts . . ..”). In short, as relevant to this appeal, the error, if any, was harmless and 12 does not require reversal. See Williams, 542 S.W.3d at 551; Cent. Expressway Sign Assocs., 302 S.W.3d at 870. We overrule MWS’s and TIN’s sole issue. Conclusion We affirm the judgment of the trial court. Richard Hightower Justice Panel consists Chief Justice Radack and Justices Landau and Hightower 13	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488344/	Filed 11/21/22 In re Z.R. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- In re Z.R. et al., Persons Coming Under the Juvenile C095642 Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP- AGENCY, 2020-0000117) Plaintiff and Appellant, v. S.V. et al., Defendants and Respondents. The San Joaquin County Human Services Agency (Agency) appeals from the juvenile court’s order finding the Agency did not provide reasonable reunification services to S.V. (mother) and J.F. (father), parents of the minors, and extending the parents’ services an additional six months. (Welf. & Inst. Code, §§ 366.21, 395.) 1 Subsequent to the Agency filing its opening brief on appeal, and after provision of the additional six months of reunification services, the juvenile court issued an order terminating reunification services as to both parents. “It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) A question becomes moot when, during the pendency of an appeal, events transpire that prevent a court from granting any effectual relief. (See In re Anna S. (2010) 180 Cal.App.4th 1489, 1498; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) In such cases, the court will not proceed to a formal judgment, but will dismiss the appeal. (Consol, etc. Corp., at p. 863; see Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [“An appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.”].) In a supplemental letter brief, the Agency conceded that the juvenile court’s July 21, 2022, order renders the appeal moot, and the appeal must therefore be dismissed. We conclude the appeal is moot. We cannot provide any meaningful relief and there remains no justiciable controversy on the issue of reunification services. (In re Pablo D. (1998) 67 Cal.App.4th 759, 761; In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) 2 DISPOSITION The appeal is dismissed. /s/ HOCH, J. We concur: /s/ ROBIE, Acting P. J. /s/ EARL, J. 3	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488194/	Opinion issued November 17, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00159-CV ——————————— TRISTAN THOMPSON, Appellant V. MARALEE NICHOLS, Appellee On Appeal from the 507th District Court Harris County, Texas Trial Court Case No. 2021-43397 MEMORANDUM OPINION On March 1, 2022, appellant, Tristan Thompson, filed a notice of appeal from the trial court’s December 16, 2021 “Order Granting Dismissal.” On October 14, 2022, appellant filed an “Unopposed Motion to Dismiss Appeal Pursuant to Settlement.” In the motion, appellant states that the “parties have reached a settlement agreement disposing of the subject of th[e] appeal,” and pursuant to that agreement, appellant requests that “the Court dismiss this appeal.” See TEX. R. APP. P. 42.1(a)(1). Appellant’s motion further requests that “each party be ordered to pay their own costs on appeal” and that the mandate be immediately issued. Appellant’s motion includes a certificate of conference stating that appellee, Maralee Nichols, is not opposed to the relief sought in appellant’s motion. See TEX. R. APP. P. 10.1(a)(5), 10.3(a)(2). No opinion has issued. See TEX. R. APP. P. 42.1(c). Accordingly, we grant appellant’s motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1). We direct the Clerk of this Court that costs are to be taxed against the party who incurred the same. See TEX. R. APP. P. 42.1(d). We further direct the Clerk of this Court to issue the mandate immediately. See TEX. R. APP. P. 18.1(c). We dismiss all other pending motions as moot. PER CURIAM Panel consists of Justices Goodman, Hightower, and Guerra. 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488196/	Opinion issued November 17, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00538-CR ——————————— GUIDO I. HERRERA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Case No. 2393914 MEMORANDUM OPINION Appellant, Guido I. Herrera, filed a notice of appeal from the trial court’s July 14, 2022 final judgment. Appellant has filed a motion to dismiss his appeal, representing that he “does not wish to continue to prosecute this appeal.” Appellant and his attorney have signed the motion, and this Court has not issued a decision. See TEX. R. APP. P. 42.2(a). Further, more than ten days have passed and the State has not expressed opposition to appellant’s motion. See TEX. R. APP. P. 10.3(a)(2). Accordingly, we grant appellant’s motion and dismiss the appeal. See TEX. R. APP. P. 42.2(a), 43.2(f). We dismiss any other pending motions as moot. PER CURIAM Panel consists of Justices Goodman, Hightower, and Guerra. Do not publish. TEX. R. APP. P. 47.2(b). 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488205/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00270-CV ___________________________ IN THE INTEREST OF F.M., A CHILD On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-698664-21 Before Kerr, Wallach, and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION F.M. (Father) appeals from the trial court’s order terminating his parental rights to his son F.M. (Finn)1 and awarding permanent managing conservatorship of Finn to the Department of Family and Protective Services. 2 See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), (Q), (b)(2). We will affirm. Father’s appointed appellate counsel has filed a brief asserting that Father’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003, order) (holding that Anders procedures apply in parental-rights-termination cases), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583, at 2–3 (Tex. App.—Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). Father’s counsel has also moved to withdraw as Father’s counsel. The brief meets Anders’s requirements by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Father’s counsel provided Father with copies of the Anders brief and the withdrawal motion and has informed Father of his rights to request and to review the 1 We use aliases to identify the parties. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2). The trial court also terminated Finn’s mother’s parental rights, but Finn’s 2 mother has not appealed. 2 appellate record3 and to file a pro se response in this court. We also informed Father that his appointed appellate counsel had filed an Anders brief and gave him an opportunity to examine the appellate record and to file a pro se response to the Anders brief. Father filed a motion for pro se access to the record. We, in turn, sent him copies of the appellate record and the Anders brief and gave him an opportunity to file a response. Father filed a pro se response. The Department notified us that it agrees with Father’s counsel that no meritorious grounds for appeal exist and thus has declined to file a responsive brief. In assessing the correctness of a compliant Anders brief’s conclusion that an appeal from a judgment terminating parental rights is frivolous, we must independently examine the appellate record to determine if any arguable grounds for appeal exist. In re C.J., No. 02-18-00219-CV, 2018 WL 4496240, at 1 (Tex. App.— Fort Worth Sept. 20, 2018, no pet.) (mem. op.); see also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.— Fort Worth 1995, no pet.). We also consider the Anders brief itself and any pro se response. In re K.M., No. 02-18-00073-CV, 2018 WL 3288591, at *10 (Tex. App.— To that end, Father’s counsel explained to Father the process of obtaining the 3 appellate record; furnished him with a motion for pro se access to the record, which lacked only Father’s signature and date; and provided him with our mailing address and the motion’s filing deadline. 3 Fort Worth July 5, 2018, pet. denied) (mem. op.); see In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008) (orig. proceeding). We have carefully reviewed counsel’s Anders brief, the appellate record, and Father’s pro se response. Finding nothing in the record that could arguably support an appeal, we agree with counsel that Father’s appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). We will thus affirm the trial court’s order terminating Father’s parental rights to Finn. But we deny Father’s counsel’s motion to withdraw because counsel did not show good cause for withdrawal independent from counsel’s conclusion that the appeal is frivolous. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order); In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied). Accordingly, Father’s counsel remains appointed in this case through proceedings in the Texas Supreme Court unless otherwise relieved from her duties for good cause in accordance with Texas Family Code Section 107.016(2)(C). See P.M., 520 S.W.3d at 27–28; see also Tex. Fam. Code Ann. § 107.016(2)(C). /s/ Elizabeth Kerr Elizabeth Kerr Justice Delivered: November 17, 2022 4	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488211/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00246-CV ___________________________ REBECCA LITTLE, Appellant V. AVA CHESSER, Appellee On Appeal from County Court at Law No. 1 Tarrant County, Texas Trial Court No. 2022-000502-1 Before Kerr, Birdwell, and Bassel, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION AND JUDGMENT On September 22, 2022, we notified appellant that her brief had not been filed as the appellate rules require. See Tex. R. App. P. 38.6(a). We stated that we could dismiss the appeal for want of prosecution unless, within ten days, appellant filed with the court an appellant’s brief and an accompanying motion reasonably explaining the brief’s untimely filing and why an extension was needed. See Tex. R. App. P. 10.5(b), 38.8(a)(1), 42.3(b). We have received no response. Because appellant has failed to file a brief even after we afforded an opportunity to explain the initial failure, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b), 43.2(f). Per Curiam Delivered: November 17, 2022 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488210/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00294-CR ___________________________ RYAN DELGADO, Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1513165D Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION I. Introduction A jury found Appellant Ryan Delgado guilty of aggravated robbery with a deadly weapon. See generally Tex. Penal Code Ann. § 29.03. The jury assessed Delgado’s punishment at nineteen years’ imprisonment, and the trial court sentenced him in accordance with the jury’s assessment. On appeal, Delgado raises two issues, arguing (1) that it was reversible error to allow evidence of two extraneous robberies in a trial for aggravated robbery and (2) that the two additional acts of robbery, which allegedly occurred within a five-hour time frame of the main offense, were not contextual to the offense of aggravated robbery for which he was on trial. The State argues that Delgado’s issues were not preserved by his objection at trial because the objection was not made on the same basis on which he now appeals. Because we hold that Delgado failed to preserve his arguments for our review, we affirm the trial court’s judgment. II. Background Delgado was arrested and tried for the aggravated robbery of Bobbie Davis, a deaf man who was eighty-four years old at the time of the trial. Delgado was allegedly involved in two other robberies that occurred shortly before and after the aggravated robbery in this case. Before trial, Delgado objected to the introduction of evidence related to the other robberies. Specifically, Delgado stated, 2 Your Honor, I do object to the State[’s] being allowed to go into these extraneous acts -- excuse me -- one of which is alleged to have occurred prior to the primary offense, and it is uncharged. The other of which is alleged to have occurred shortly after the primary offense, and they intend to proceed on that without carrying that case along with the primary. And so, arguably, I guess they could prosecute him later for that. They’ve charged him with it, and I’m concerned about punishment issues if he’s convicted of that as well in addition to this case. I mean, if they’re going to bring it in, why don’t they carry them together[,] and that way the punishment runs concurrent? The trial court overruled Delgado’s objection on the basis that “those two extraneous offenses [we]re contextual with the cause number that [they were] proceeding on” and thus allowed the State to introduce evidence of them throughout Delgado’s trial. III. Analysis In the argument section of Delgado’s brief, he combines his two issues, arguing that the “EVIDENCE PERTAINING TO 2 UNCHARGED[1] ROBBERIES WAS NOT ‘SAME TRANSACTION, CONTEXTUAL EVIDENCE’ AND [THAT] THE ADMISSION OF SUCH EVIDENCE CONSTITUTES REVERSIBLE ERROR.” Specifically, Delgado argues that the charged offense was a “discrete act wholly independent of” the other robberies and that evidence of the other two robberies should not have been admitted under Texas Rule of Evidence 404(b) as Although Delgado describes the two robberies as “uncharged,” the record 1 demonstrates that only one of the two robberies was uncharged. 3 same transaction, contextual evidence. 2 Before we consider Delgado’s combined argument on its merits, we must first determine whether his argument was preserved at trial. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020). An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g); see also Fierro v. State, 706 S.W.2d 310, 317–18 (Tex. 2 Texas Rule of Evidence 404(b) states, (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief. Tex. R. Evid. 404(b) (emphasis added). 4 Crim. App. 1986) (holding that general objection is insufficient to apprise trial court of complaint urged and thus preserves nothing for review). A general or imprecise objection suffices to preserve error only if the objection’s legal basis is obvious to the trial court and opposing counsel. Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). We determine whether the specific grounds for the objection were apparent from the objection’s context by looking at each situation individually. Heidelberg v. State, 144 S.W.3d 535, 538 (Tex. Crim. App. 2004). While no “hyper-technical or formalistic use of words or phrases” is required in order for an objection to preserve an error, the objecting party must still “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (quoting Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). As set forth above, Delgado objected to the admission of evidence regarding two extraneous robberies, one charged and one uncharged. Delgado’s objection can best be characterized as a request for the trial court to join the trials on the charged robbery and the aggravated robbery, paired with a general objection to the admission of the evidence as to the uncharged robbery. While Delgado was not required to identify the rule of evidence on which his objection was based, his objection preserved only the specific grounds cited. See Rivas v. State, 275 S.W.3d 880, 887 (Tex. 5 Crim. App. 2009); see also Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Mosley, 983 S.W.2d at 265. Delgado’s imprecise objection sufficed to preserve only the grounds that were obvious to the trial court and opposing counsel. See Resendez, 306 S.W.3d at 313. Accordingly, to determine whether the specific grounds for the objection were apparent from the objection’s context, we look at this situation individually. See Heidelberg, 144 S.W.3d at 538. Delgado argued in the trial court that evidence of the charged extraneous robbery should not be admitted in the aggravated-robbery trial because he was “concerned about punishment issues if he [were] convicted of [the charged extraneous robbery] in addition to this case.” The trial court overruled Delgado’s objection on the basis that the extraneous robberies “[we]re contextual with the cause number that [they were] proceeding on.” Following the trial court’s ruling, Delgado did not object to the trial court’s ruling or dispute the admission of the evidence on the ground that the robberies were not contextual. In fact, as Delgado acknowledges in his brief, there is no discussion in the record, other than the trial court’s ruling, as to whether the evidence was admissible under Rule 404(b) as same transaction, contextual evidence. Due to Delgado’s failure to object to the trial court’s ruling and the lack of any other discussion on the matter, the trial court could not have inferred that Delgado intended his objection to the charged robbery and the uncharged robbery to be an objection that the two robberies did not constitute same transaction, contextual evidence. See generally Tran v. State, No. 74040, 2003 WL 1799013, at *5 6 (Tex. Crim. App. Apr. 2, 2003) (not designated for publication) (holding that appellant failed to preserve error for review when he did not object to trial court’s ruling and noting that even constitutional error may be waived on appeal if not preserved by objection); Caron v. State, 162 S.W.3d 614, 618–19 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that error was not preserved because defendant did not object to trial court’s ruling about “the Rule”). Therefore, because Delgado did not object to the trial court’s ruling, or to the use of such evidence throughout the trial, 3 Delgado failed to preserve for review the argument that he raises on appeal.4 Accordingly, we overrule both of Delgado’s issues, which were encompassed within his sole argument on appeal. 3 We note that even if we concluded that Delgado’s general objection encompassed an objection that the extraneous-offense evidence did not constitute same transaction, contextual evidence, Delgado failed to obtain a running objection or object each time the objectionable evidence was offered. See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991). Therefore, assuming arguendo that Delgado initially preserved error, his subsequent failure to object to the use of the evidence—which was mentioned from the State’s opening statement through closing arguments— constitutes forfeiture of that error. See Geuder, 115 S.W.3d at 13; Ethington, 819 S.W.2d at 858–59. 4 Furthermore, we note that while Delgado’s summary of the argument dedicates one sentence to mentioning that there was no discussion of whether the extraneous robberies were relevant or prejudicial, Delgado similarly failed to present that argument to the trial court. See Tex. R. App. P. 33.1(a)(1)(A). 7 IV. Conclusion Having overruled Delgado’s two issues, we affirm the trial court’s judgment. /s/ Dabney Bassel Dabney Bassel Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: November 17, 2022 8	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488207/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00411-CV ___________________________ WILLIE LEWIS, Appellant V. CITY OF FORT WORTH, TARRANT COUNTY, FORT WORTH INDEPENDENT SCHOOL DISTRICT, TARRANT COUNTY COLLEGE DISTRICT, TARRANT COUNTY HOSPITAL DISTRICT, AND TARRANT REGIONAL WATER DISTRICT, Appellees On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-B43868-11 Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION In August 2016, the trial court entered judgment that Appellees were owed delinquent property taxes, and it authorized Appellees to seek the sale of the corresponding piece of real property, which was partially owned by Appellant. In May 2018, the real property was sold to pay the outstanding tax bill. More than four years later, in October 2022, Appellant filed a notice of appeal to challenge the sale. Generally, a notice of appeal must be filed within 30 days after the appealable judgment or order is signed. Tex. R. App. P. 26.1. Although an appellant may postpone this deadline by filing a qualifying postjudgment motion or seeking an extension, these options postpone the notice-of-appeal deadline by days—not years. See Tex. R. App. P. 26.1(a) (shifting deadline to within 90 days of judgments signing if qualifying postjudgment motion is filed), 26.3 (shifting deadline 15 days if extension is implicitly or explicitly requested). “[T]he time for filing a notice of appeal is jurisdictional in this court, and absent a timely[ ]filed notice of appeal . . . we must dismiss the appeal.” Manning v. Funimation, No. 02-22-00145-CV, 2022 WL 1573486, at 1 (Tex. App.—Fort Worth May 19, 2022, no pet.) (mem. op.) (quoting Mitchell v. Estrada, No. 02-22-00005-CV, 2022 WL 1183342, at 1 (Tex. App.—Fort Worth Apr. 21, 2022, no pet.) (mem. op.)); see Tex. R. App. P. 25.1(b). Because Appellant filed his notice of appeal multiple years after the judgment and order he sought to challenge were signed, we notified Appellant that his notice of appeal appeared untimely and expressed our concern that we lacked jurisdiction over 2 the appeal. We warned that we would dismiss the appeal for want of jurisdiction unless Appellant (or any other party) filed a response showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3. Appellant sent a response explaining why he was unavailable in the months leading up to the sale and why he believes the sale was improper. But these allegations address the anticipated substance of Appellant’s appellate issues—they do not identify any legal grounds for our exercise of jurisdiction. Because Appellant failed to file a timely notice of appeal, we must dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); Manning, 2022 WL 1573486, at *2 (holding similarly where appellant filed untimely notice and response did not show grounds for continuing appeal). /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Delivered: November 17, 2022 3	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488215/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00177-CR ___________________________ IKEEM ELIJAJUAN SHAW, Appellant V. THE STATE OF TEXAS On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 58,982-B Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION Ikeem Elijajuan Shaw appeals from his convictions for one count of aggravated assault with a deadly weapon and for two counts of deadly conduct. See Tex. Penal Code Ann. §§ 22.02(a)(2), 22.05(b)(1). In a single issue, Shaw argues that the trial court abused its discretion by admitting over his objection video-surveillance footage of the events giving rise to his conviction because the video had not been properly authenticated. See Tex. R. Evid. 901(a). Because the trial court did not abuse its discretion by admitting the video, we will affirm the trial court’s judgments. I. Background In May 2017, Entonyo Jones had recently been released from prison. During Jones’s incarceration, he learned that Shaw had been having an affair with Jones’s girlfriend, Kisaya Manuel-Greer. On May 19, 2017, Jones contacted Shaw through Facebook Messenger to confront him about the alleged affair, and after the conversation became heated, Jones and Shaw agreed to meet on Red Fox Road, a residential street in Wichita Falls. 1 Jones, along with Manuel-Greer and their small child, drove to Red Fox Road in Jones’s Dodge Challenger. Jones’s brother, Montrail Sanders, lived on Red Fox Road. When Jones arrived on Red Fox Road, he briefly parked in front of Sanders’s This wasn’t Jones and Shaw’s first meeting on Red Fox Road. Before Jones’s 1 prison stint, he and Shaw had a disagreement and had met there to have “a man-to- man talk.” 2 house and told Sanders, who was standing in the doorway of his home, that he was “fixing to fight.” Jones then backed up his car and parked two houses down from Sanders’s house. According to Jones, Shaw arrived “[l]ike a thief in the night.” Both men got out of their cars. Shaw started shooting at Jones, and Jones threw himself back into his car. But Shaw kept shooting at Jones, and multiple shots hit Jones. Sanders testified that by this time, he had started throwing objects at the shooter to distract him and to stop him from shooting. The shooter then fired at Sanders. According to Sanders, Manuel-Greer repeatedly screamed “stop” during the shooting while using a name that sounded like “Akeem” or “Ikeem.” Manuel-Greer drove Jones to the hospital in his car. Jones’s treating physician asked Jones who had shot him, and according to the physician, Jones responded, “Akeem Shaw, Shawl.” Wichita Falls Police Department detectives Marisa Cervantes and John Laughlin were assigned to investigate the case. Both detectives went to the hospital that evening. 2 Detective Cervantes interviewed Manuel-Greer and Sanders among others but was unable to interview Jones because he was receiving medical treatment. Detective Laughlin processed Jones’s Dodge Challenger for evidence and then went to the crime scene. He saw cartridge cases in the roadway near 1608 Red Fox Road. 2 The shooting occurred around 7:00 p.m. 3 Officers at the scene informed Detective Laughlin that the house at 1609 Red Fox Road had surveillance cameras attached to it. Detective Laughlin called in another detective, Jason Jones, to talk with the homeowner about getting the video footage from those cameras. Meanwhile, Detective Cervantes arrived at the crime scene and was notified that one of the cameras had recorded the shooting. She went with her supervisor and Detective Jones to meet with the homeowner about the video. Detective Cervantes watched the video recording “from the time that we were called, moments before then, and then until the incident happened.” She concluded that the video footage corroborated the statements she had taken. Specifically, she saw a car in the video (a white SUV) that matched the description of the suspect’s car. The video was downloaded off of the homeowner’s digital video recorder that was connected to the camera. Five days after the shooting, Detective Cervantes and Detective Laughlin interviewed Jones in the hospital. Jones identified Shaw in a photographic lineup. The State charged Shaw in a single indictment with one count of aggravated assault with a deadly weapon against Jones (Count One) and with three counts of deadly conduct by knowingly discharging a firearm at Sanders (Count Two), Manuel- Greer (Count Three), and Jones and Manuel-Greer’s child 3 (Count Four), with each 3 According to Detective Cervantes, the child was in the back seat of Jones’s car during the shooting. 4 count enhanced by the same prior felony conviction. Tex. Penal Code Ann. §§ 12.42(a), (b), 22.02(a)(2), (b), 22.05(b)(1), (e). Shaw pleaded not guilty to each count, and the case was tried to a jury. During trial, Detective Cervantes and Detective Laughlin testified about their investigations, including Jones’s identifying Shaw in a photographic line up and the video-surveillance footage. Regarding the surveillance footage, Detective Cervantes agreed that the video showed “unique characteristics” from the scene—the video showed the street outside the house and a tree in the homeowner’s front yard, which she had seen while walking up to the house. Detective Cervantes testified that the video’s date stamp matched the date of the shooting but that the time stamp was “off a little bit,” which was “not uncommon due to . . . Daylight Savings Time and stuff like that.” Detective Laughlin had also viewed the video. Like Detective Cervantes, Detective Laughlin recognized unique characteristics in the homeowner’s front yard and beyond that matched his observations at the scene: in the front yard of 1609, there’s a bush or a tree that’s kind of off to one side that you can see on the camera angle that points into the street, as well as the houses across the street and the vehicles that were positioned in the driveway at the time that we were there and the time that the recording was made. Detective Laughlin further testified that although the date stamp on the video was correct, the time stamp was off by more than an hour. 5 Both detectives also testified about the video’s clarity and coloration. Detective Cervantes admitted that the video was not clear enough to identify facial features, articles of clothing, or the make of the vehicles. Detective Laughlin similarly admitted that he was unable to determine from the video the make and model of the suspect’s white SUV. But he could see the suspect getting out of the SUV, and the Dodge Challenger in the video was “obviously” a Dodge Challenger. Regarding the video footage’s coloration, both detectives admitted that it was discolored. Both detectives saw Jones’s Dodge Challenger at the hospital the evening of the shooting. Detective Cervantes described the car’s color as “bluish-green”; Detective Laughlin testified that the car was “kind of iridescent, sort of a black or bluish-green kind of a paint job” and agreed with the prosecutor that the car “had a weird color depending on how you looked at it.” Both detectives agreed that not only did the video not accurately reflect the Dodge Challenger’s color but that the video did not accurately reflect the color of the crime scene and its surroundings. When Detective Cervantes was questioned by the State, she agreed that it was “common for videos to have [a] different tint or not be the exact color as in real life.” She explained that “sometimes there’s different settings, especially when it is facing the sun. Is it out of the sun? Is it under a porch? So sometimes the colors aren’t true depictions of what it actually looks like . . . .” Detective Laughlin similarly explained that 6 [t]here can be color discrepancies on video cameras from my training and experience of looking at lots and lots of crime scene videos. . . . [I]t just depends on the environment, how old the camera or equipment is and whether or not the user takes the time to adjust things like saturation, hue, contrast, brightness, all those things will impact what -- what the quality of the video you’re looking at is. Despite the video’s coloration issues, neither detective doubted the video’s authenticity. Detective Cervantes stated that the tint did not give her any reason to doubt the accuracy of the images depicted in the recording; that she could still discern unique shapes and sizes, including physical traits of individuals appearing in the recording; and that the recording would help the jury understand the events that had occurred during the shooting. Detective Laughlin agreed that the video would help the jury better understand the scene and what happened that day. He acknowledged that while there was a color discrepancy between the video and the actual colors at the scene, the color variation did not affect his opinion that the images on the video were accurate. Jones testified regarding the events leading up to the shooting, the shooting itself, and his injuries and resulting hospitalization and surgeries. At trial, he identified Shaw as the shooter. Jones had previously watched the video and confirmed that it depicted what he had seen and experienced the day of the shooting and that “it looks like it had [not] been altered or changed in any way from what [he] remember[ed].” Jones stated that he recognized his car in the video. He did not recall the video 7 “having a different tint to it” and stated that his car—which he testified was teal green in color—was the same color in the video as “it is typically.” When the State offered the video into evidence, Shaw’s defense counsel took Jones on voir dire. Jones maintained that the video’s coloration was accurate but admitted that the images were somewhat blurry and that it was somewhat difficult to discern the facial features of the people in the video due to the video’s low resolution. When defense counsel asked, “because the colors are messed up and you’re not able to determine the identity of people on the video, it’s not a true and accurate copy of the events . . . that occurred that day, are they?” Jones responded, “I don’t know.” Shaw’s defense counsel then objected to the video’s admission into evidence, arguing that [t]he State has failed to prove proper predicate. In fact, the only real testimony that we’ve had is that it’s not a true and accurate copy. I’m sorry -- that the video does not accurately depict the events as they occurred, which would include the color. Uh, just like any other photograph, it’s not an accurate copy -- or it’s not an accurate video and, therefore, Judge, it should not be admitted. .... Uh, but in the larger matter, what we’re talking about here is, again, the accuracy of the video. It’s not enough to have someone watch the video. The video, itself, has to be accurate. And the video, itself, has to, in every respect -- You don’t get to have a video that’s only -- that only has 50 percent of the accuracy. It has to be 100 percent of the accuracy. And the testimony has been consistent throughout this case that both Detective Laughlin and Detective Cervantes viewed the video, and they both indicated that there are color discrepancies throughout the 8 video, not in isolated incidence of the vehicle, which is really more of an example, but the rest of the video as well. The accuracy of it absolutely goes to its admissibility. The trial court overruled the objection, granted Shaw a running objection, and admitted the video into evidence. The State then played the video, which does not have audio, to the jury. The video shows Jones’s car4 and then a white SUV arriving at the scene. The shooter gets out of the white SUV, walks around the front of it, and approaches the driver’s side of Jones’s car. The shooter then appears to shoot Jones as he is getting out of the car. A woman5 gets out of the passenger’s side of Jones’s car, runs around the back of the car, and gets into the driver’s side as the shooter returns to the SUV and starts to drive away. The SUV quickly stops, and the shooter gets out, runs down the street, and shoots toward someone or something offscreen.6 The shooter walks back toward Jones’s car before walking back to the SUV, getting into the SUV, and driving away. Jones’s car drives away shortly thereafter. Jones’s car appears purple in the video, and the surrounding neighborhood has a greenish tint. The video’s date stamp is “05/19/2017,” and the time stamp when Jones’s car first appears is “08:50:10.” 4 As the video was played, Jones confirmed that the car depicted in the video was in fact his. Jones identified this woman as Manuel-Greer. 5 According to Jones, the shooter was aiming at Sanders. 6 9 After the State played the video, the jury heard additional evidence from the State, including Jones’s physician’s testimony regarding Jones’s identification of the shooter at the hospital and Sanders’s testimony regarding Manuel-Greer’s yelling at the shooter by name. After the parties rested and closed, the jury found Shaw guilty of Counts One, Two, and Three and found him not guilty of Count Four. Shaw pleaded true to the sentence-enhancement allegation as to each count, and after hearing punishment evidence and arguments, the jury assessed Shaw’s punishment at 25 years’ confinement for Count One, five years’ confinement for Count Two, and two years’ confinement for Count Three. The trial court sentenced him accordingly. 7 Shaw has appealed. In his sole issue, Shaw challenges the trial court’s admission of the video into evidence, arguing that the trial court abused its discretion by admitting the video and that the video’s admission was harmful. See Tex. R. App. P. 44.2(b). II. Standard of Review We review the trial court’s decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Merrick v. State, 567 S.W.3d 359, 375 (Tex. App.—Fort Worth 2018, pet. ref’d). A trial court abuses its discretion if its decision falls outside the zone of reasonable disagreement. Henley, 493 S.W.3d at 83; The trial court signed an acquittal judgment on Count Four. 7 10 see Merrick, 567 S.W.3d at 375. We cannot reverse a trial court’s decision unless we find that “the trial court’s ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Henley, 493 S.W.3d at 83 (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim App. 2008)). III. Applicable Law To properly authenticate or identify an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Tex. R. Evid. 901(a). Rule 901(a)’s admissibility threshold is liberal. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). “Conclusive proof of authenticity before allowing admission of disputed evidence is not required.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim App. 2018). Rule 901 “merely requires some evidence sufficient to support a finding that [the] evidence in question is what the proponent claims.” Id. (quoting Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App. 1991)). Rule 901 identifies numerous means of authentication. See Tex. R. Evid. 901(b). Regarding video recordings, testimony from a person who personally witnessed what is on a video is one means of authentication. See Tex. R. Evid. 901(b)(1); Fowler, 544 S.W.3d at 849; Standmire v. State, 475 S.W.3d 336, 344–45 (Tex. App.—Waco 2014, pet. ref’d). A video can also be authenticated by “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Fowler, 544 S.W.3d at 849 (quoting Tex. R. Evid. 11 901(b)(4)). “Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue.” Id. (citing Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988)). In a jury trial, the trial court’s role is to make a preliminary determination whether the proponent has supplied enough facts to allow the jury to reasonably conclude that the proffered evidence is authentic. Butler, 459 S.W.3d at 600; Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). After the trial court admits the evidence, the jury ultimately determines whether the item is indeed what its proponent claims. Butler, 459 S.W.3d at 600; Tienda, 358 S.W.3d at 638. IV. Analysis Here, Shaw argues that the trial court abused its discretion by admitting a video that “both parties agreed had badly inaccurate coloration.” Shaw complains that not only was the video’s coloration distorted but that the video’s time stamp was wrong, the homeowner was unavailable to testify about the recording, and there was no evidence regarding the type of recording equipment used, whether that equipment was properly set up, how the video was created, or whether the recording had been altered. Shaw thus asserts that the video was not a fair and accurate depiction of the shooting and that the trial court’s finding that the video was authentic was thus outside the zone of reasonable disagreement. 12 To authenticate a video, a video’s proponent is not required to present evidence from the equipment’s owner 8 or evidence regarding how the video was recorded, the equipment that was used, or whether the equipment was working properly. See Fowler, 544 S.W.3d at 849–50; Standmire, 475 S.W.3d at 344–45; see also Hudson v. State, No. 14-16-00581-CR, 2017 WL 5472626, at 2–3 (Tex. App.— Houston [14th Dist.] Nov. 14, 2017, pet. ref’d) (mem. op., not designated for publication). Instead, a video can be authenticated through the testimony of a witness who personally witnessed the events depicted in the video. See, e.g., Standmire, 475 S.W.3d at 344–45 (“[I]f the sponsoring witness was present when the photographs or video were taken or has personal knowledge of what the photographs or video depict, it is unnecessary for the sponsoring witness to also testify regarding the reliability of the system.”). A video can also be authenticated through circumstantial evidence regarding “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Fowler, 544 S.W.3d at 849–50 (quoting Rule 901(b)(4) and concluding that the officer’s testimony regarding his in-person request of the store manager to pull the surveillance video on a certain date at a certain time, the video’s time and date stamp matching the time and date of the offense, and the video’s containing the defendant’s image at the date and time of the offense was sufficient circumstantial The State could not have authenticated the video at trial through the 8 homeowner’s testimony because the homeowner died before trial. 13 evidence to authenticate the video; testimony from the store employee responsible for maintaining surveillance system was not required); see Verdine v. State, No. 01-18- 00884-CR, 2020 WL 1584468, at 8–9 (Tex. App.—Houston [1st Dist.] Apr. 2, 2020, pet. ref’d) (mem. op., not designated for publication). Here, Jones took part in and personally witnessed the events depicted in the video, and he confirmed that the video accurately depicted what he had seen and experienced the day of the shooting. Jones was thus a person with knowledge, and his testimony authenticated the video. See Tex. R. Evid. 901(b)(1); Standmire, 475 S.W.3d at 344–45. Detective Cervantes testified about going to the crime scene, talking to the homeowner whose surveillance camera had recorded the shooting, and viewing the video, which corroborated the witness statements she had taken. She further testified that the date stamp on the video matched the date of the crime and that the video accurately reflected the yard and street outside the homeowner’s home. Detective Laughlin, who had also been to the crime scene, similarly testified that he had viewed the video, which had the correct date stamp and accurately depicted the home’s surroundings. The detectives’ testimony provided additional support for concluding that the video was what the State claimed it was. See Tex. R. Evid. 901(b)(4); Fowler, 544 S.W.3d at 849–50. Both detectives admitted that video’s time stamp was inaccurate and that the video footage was discolored. But the fact that the video’s time stamp was off does not defeat authentication here. See, e.g., Bolden v. State, No. 14-17-00411-CR, 14 2019 WL 1030168, at 8 (Tex. App.—Houston [14th Dist.] Mar. 5, 2019, pet. ref’d) (mem. op., not designated for publication) (concluding that one-hour time discrepancy did not by itself defeat video’s authentication); Razo v. State, No. 02-11- 00161-CR, 2012 WL 3207271, at 7 (Tex. App.—Fort Worth Aug. 9, 2012, no pet.) (mem. op., not designated for publication) (holding video was properly authenticated where store employee testified the time was accurate except being off by one hour). Nor does the video’s discoloration preclude authenticity here. Cf. McClinton v. State, No. 02-02-435-CR, 2003 WL 22725543, at 2 (Tex. App.—Fort Worth Nov. 20, 2003, no pet.) (per curiam) (mem. op., not designated for publication) (holding that arresting officer’s testimony was sufficient to establish the authenticity of video recorded by officer’s in-car camera even though the film quality was poor and the frames “jump[ed]”). Both detectives testified about the possible reasons for the video’s discoloration, and neither detective doubted the video’s authenticity because of its discoloration. Based on the record before us, we conclude that the trial court’s decision— that the State had supplied sufficient facts to allow the jury to reasonably conclude that the video was authentic—was within the zone of reasonable disagreement.9 See Shaw principally relies on Johnson v. State, 970 S.W.2d 716 (Tex. App.— 9 Beaumont 1998, no pet.) to support his argument. There, when a child victim was asked whether a recording of her victim interview was accurate, she responded, “‘Not everything,’ and then said she did not remember it at all.” Id. at 719. On appeal, the court held that the trial court erred by admitting the video. Id. 15 Butler, 459 S.W.3d at 600 (“In a jury trial, it is the jury’s role ultimately to determine whether an item of evidence is indeed what its proponent claims; the trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.”); see also Fowler, 544 S.W.3d at 849–50; Standmire, 475 S.W.3d at 345. That is, the State produced evidence sufficient to support a finding that the video was what it claimed it to be: discolored video footage of the shooting. See Tex. R. Evid. 901(a). We hold that the trial court did not abuse its discretion by admitting the videotape into evidence, and we overrule Shaw’s only issue.10 V. Conclusion Having overruled Shaw’s single issue, we affirm the trial court’s judgments. Here, however, Jones testified that the video showed what he saw and experienced the day of the shooting and that the video had not been altered or changed from what he remembered. But he later responded “I don’t know” when asked whether the video was “a true and accurate copy of the events . . . that occurred that day” because the “colors are messed up” and he was unable “to determine the identity of people on the video.” We presume the trial court resolved the conflict in Jones’s testimony, if any, in favor of its ruling. Plus, the trial court’s ruling did not depend only on Jones’s testimony; both detectives provided testimony to authenticate the video. We thus conclude that Johnson is inapposite. 10 We need not address Shaw’s remaining arguments regarding harm. See Tex. R. App. P. 47.1; Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at 7 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem. op., not designated for publication) (citing Tex. R. App. P. 47.1; Morales v. State, 32 S.W.3d 862, 866 n.7 (Tex. Crim. App. 2000)). 16 /s/ Elizabeth Kerr Elizabeth Kerr Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: November 17, 2022 17	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488206/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00411-CV WILLIE LEWIS, Appellant § On Appeal from the 236th District Court V. CITY OF FORT WORTH, TARRANT § of Tarrant County (236-B43868-11) COUNTY, FORT WORTH INDEPENDENT SCHOOL DISTRICT, TARRANT COUNTY COLLEGE § November 17, 2022 DISTRICT, TARRANT COUNTY HOSPITAL DISTRICT, AND TARRANT REGIONAL WATER DISTRICT, § Memorandum Opinion by Chief Justice Appellees Sudderth JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS By /s/ Bonnie Sudderth Chief Justice Bonnie Sudderth	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488243/	20-2991 Gu v. Garland BIA Wright, IJ A200 181 197 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 XIAOLING GU, 15 Petitioner, 16 17 v. 20-2991 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 FOR PETITIONER: Aleksander Boleslaw Milch, Esq., 26 The Kasen Law Firm, PLLC, 27 Flushing, NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Mary Jane 3 Candaux, Assistant Director, 4 Office of Immigration Litigation; 5 Stephen Finn, Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC. 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Xiaoling Gu, a native and citizen of the 14 People’s Republic of China, seeks review of an August 14, 15 2020, decision of the BIA affirming an August 20, 2018, 16 decision of an Immigration Judge (“IJ”) denying her 17 application for asylum, withholding of removal, and relief 18 under the Convention Against Torture (“CAT”). Xiaoling Gu, 19 No. A200 181 197 (B.I.A. Aug. 14, 2020), aff’g No. A200 181 20 197 (Immig. Ct. N.Y. City Aug. 20, 2018). We assume the 21 parties’ familiarity with the underlying facts and procedural 22 history. 23 We have reviewed the IJ’s decision as supplemented and 24 modified by the BIA’s decision. See Xue Hong Yang v. U.S. 25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen 2 1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 2 standards of review are well established. “[T]he 3 administrative findings of fact are conclusive unless any 4 reasonable adjudicator would be compelled to conclude to the 5 contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, we 6 review the agency’s decision for substantial evidence and 7 must defer to the factfinder’s findings based on such relevant 8 evidence as a reasonable mind might accept as adequate to 9 support a conclusion. . . . By contrast, we review legal 10 conclusions de novo.” Singh v. Garland, 11 F.4th 106, 113 11 (2d Cir. 2021) (internal quotation marks omitted); see also 12 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) 13 (reviewing adverse credibility determination “under the 14 substantial evidence standard”). 15 “[A] trier of fact may base a credibility determination 16 on the . . . consistency between the applicant’s . . . 17 written and oral statements.” 8 U.S.C. 18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 19 credibility determination unless . . . it is plain that no 20 reasonable fact-finder could make such an adverse credibility 21 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 3 1 2008); accord Hong Fei Gao, 891 F.3d at 76. 2 Substantial evidence supports the adverse credibility 3 determination in this case. In a written statement attached 4 to her application for asylum, withholding of removal, and 5 CAT relief, Gu alleged that police raided a meeting of her 6 underground Christian church and arrested her and others, and 7 that she was “beaten and insulted and detained for three 8 days.” However, she testified before the IJ that she was not 9 beaten. This contradiction about the sole incident of 10 alleged persecution provides substantial evidence for the 11 adverse credibility determination. See Xian Tuan Ye v. Dep’t 12 of Homeland Sec., 446 F.3d 289, 294 (2d Cir. 2006) (“Where 13 the IJ’s adverse credibility finding is based on specific 14 examples in the record of inconsistent statements . . . about 15 matters material to his claim of persecution . . . a reviewing 16 court will generally not be able to conclude that a reasonable 17 adjudicator was compelled to find otherwise.” (quotation 18 marks omitted)). 19 Gu’s explanation that she was not referring to a physical 20 attack when she wrote the word beaten, but instead meant that 21 she was exhausted and demoralized, does not compel a contrary 4 1 conclusion. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2 2005) (“A petitioner must do more than offer a plausible 3 explanation for his inconsistent statements to secure relief; 4 he must demonstrate that a reasonable fact-finder would be 5 compelled to credit his testimony.” (quotation marks 6 omitted)). Gu does not support this explanation with 7 evidence that the statement she wrote in Chinese should have 8 been translated differently. Id.; see also Siewe v. 9 Gonzales, 480 F.3d 160, 167–68 (2d Cir. 2007) (“Where there 10 are two permissible views of the evidence . . . a reviewing 11 court must defer to . . . [the factfinder’s] choice so long 12 as the deductions are not illogical or implausible.” 13 (quotation marks and citation omitted)). Gu did not exhaust 14 her argument that the IJ had a responsibility to further 15 develop the record, see Steevenez v. Gonzales, 476 F.3d 114, 16 117 (2d Cir. 2007) (“To preserve an issue for judicial review, 17 the petitioner must first raise it with specificity before 18 the BIA.”), and counsel for the Department of Homeland 19 Security questioned her extensively about the discrepancy. 20 In sum, the inconsistency about the sole incident of 21 alleged harm provides substantial evidence for the adverse 5 1 credibility determination. See Xiu Xia Lin, 534 F.3d at 167; 2 Xian Tuan Ye, 446 F.3d at 294. The adverse credibility 3 determination is dispositive because asylum, withholding of 4 removal, and CAT relief were based on the same factual 5 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 6 Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 6	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488212/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00068-CV OBADIAH KINARA, Appellant § On Appeal from Probate Court No. 2 V. § of Tarrant County (2021-PR00264-2) § November 17, 2022 DAVID ONGERA, Appellee § Memorandum Opinion by Justice Womack JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed. It is further ordered that appellant Obadiah Kinara shall bear the costs of this appeal, for which let execution issue. SECOND DISTRICT COURT OF APPEALS By /s/ Dana Womack Justice Dana Womack	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488214/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-21-00177-CR IKEEM ELIJAJUAN SHAW, Appellant § On Appeal from the 78th District Court § of Wichita County (58,982-B) V. § November 17, 2022 § Memorandum Opinion by Justice Kerr THE STATE OF TEXAS § (nfp) JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgments. It is ordered that the trial court’s judgments are affirmed. SECOND DISTRICT COURT OF APPEALS By _/s/ Elizabeth Kerr__________________ Justice Elizabeth Kerr	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488216/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00390-CV ___________________________ DEVIN SCOTT, Appellant V. CREEKWOOD ROSEMEADE, LLC, Appellee On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2022-02818-JP Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION AND JUDGMENT On October 6, 2022, and October 19, 2022, we notified Appellant Devin Scott, in accordance with rule of appellate procedure 42.3(c), that we would dismiss this appeal unless Appellant paid the $205 filing fee. See Tex. R. App. P. 42.3(c), 44.3. Appellant has not done so. See Tex. R. App. P. 5, 12.1(b). Because Appellant has not complied with a procedural requirement and the Texas Supreme Court’s order of August 28, 2015, 1 we dismiss the appeal. See Tex. R. App. P. 42.3(c), 43.2(f). Appellant must pay all costs of this appeal. See Tex. R. App. P. 43.4. Per Curiam Delivered: November 17, 2022 See Supreme Court of Tex., Fees Charged in the Supreme Court, in Civil Cases 1 in the Courts of Appeals, and Before the Judicial Panel on Multi-District Litigation, Misc. Docket No. 15-9158 (Aug. 28, 2015) (listing courts of appeals’ fees). 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488217/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00179-CV ___________________________ DERRICK LANARD FORD, Appellant V. GINGER RENEE DARDEN-FORD, Appellee On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-706417-21 Before Wallach, J.; Sudderth, C.J.; and Walker, J. Per Curiam Memorandum Opinion MEMORANDUM OPINION AND JUDGMENT On October 18, 2022 we notified appellant that his brief had not been filed as the appellate rules require. See Tex. R. App. P. 38.6(a). We stated that we could dismiss the appeal for want of prosecution unless, within ten days, appellant filed with the court an appellant’s brief and an accompanying motion reasonably explaining the brief’s untimely filing and why an extension was needed. See Tex. R. App. P. 10.5(b), 38.8(a)(1), 42.3(b). We have received no response. Because appellant has failed to file a brief even after we afforded an opportunity to explain the initial failure, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b), 43.2(f). Per Curiam Delivered: November 17, 2022 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488219/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00377-CV ___________________________ DAISY CHOU, Appellant V. ACCLAIM PHYSICIAN GROUP, INC., Appellee On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-332744-22 Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION On September 29, 2022, Appellant Daisy Chou filed a notice of appeal from the trial court’s September 2, 2022 order granting the plea to the jurisdiction filed by Appellee Acclaim Physician Group, Inc. The case style indicates that Tarrant County Hospital District d/b/a JPS Health Network is also a defendant in the case, but the trial court’s order did not dispose of any claims against that party. Accordingly, the order appeared to be interlocutory, making Chou’s notice of appeal due no later than September 22, 2022. See Tex. R. App. P. 26.1(b), 28.1. Concerned that we lacked jurisdiction over the appeal, we cautioned Chou that we could dismiss the appeal unless she or another party filed with this court a reasonable explanation for the late filing. See Tex. R. App. P. 25.1(b), 26.3, 42.3(a). Chou did not file a response with this court. She did, however, file with the trial court a “Withdrawal of Notice of Appeal” stating that she was withdrawing her notice of appeal of “the [t]rial [c]ourt’s interlocutory order.” Because Chou’s notice of appeal was untimely and she has not shown any ground for continuing the appeal, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). /s/ Mike Wallach Mike Wallach Justice Delivered: November 17, 2022 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488220/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00448-CV ___________________________ IN RE MIGUEL ANGEL BACILIO, Relator Original Proceeding Criminal District Court No. 1 of Tarrant County, Texas Trial Court No. 0630576B Before Birdwell, Womack, and Walker, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus is denied. Per Curiam Delivered: November 14, 2022 2	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488245/	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 October 25, 2022 Decided November 21, 2022 Before DIANE S. SYKES, Chief Judge DIANE P. WOOD, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge No. 21-2620 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, South Bend Division. v. No. 3:20CR89-001 ANDREW LINDSEY, Defendant-Appellant. Damon R. Leichty, Judge. ORDER Andrew Lindsey pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The district judge sentenced him to 87 months in prison and 2 years of supervised release. Lindsey appealed, but his appointed attorney asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Lindsey did not respond to counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses potential issues that an appeal of this kind would typically involve. Because the analysis appears thorough, we limit our review to the subjects she discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). No. 21-2620 Page 2 Lindsey went to his uncle’s South Bend, Indiana, apartment to pay back money he owed. While there, Lindsey saw his cousin, pulled out a firearm, and fired one shot into the floor. Police officers responded to a call of shots fired and arrested Lindsey not far from the apartment. He told the arresting officers that he had a gun for his own protection and that he had fired it because he was afraid his cousin was going to beat him up for not paying his uncle on time. Lindsey was charged with violating § 922(g)(1), and in March 2021, he pleaded guilty without a plea agreement. At the sentencing hearing, the district judge adopted the recommendations in the presentence investigation report (PSR) about the applicable ranges under the Sentencing Guidelines. Neither party objected. Lindsey’s base offense level was 20 because he had a prior conviction for a controlled substance offense. See U.S.S.G. § 2K2.1(a)(4)(A). Concluding that Lindsey committed the felony of criminal recklessness under Indiana law when he fired the shot into the floor with at least three other people present, the judge added four offense levels for using or possessing the firearm in connection with that offense. See id. § 2K2.1(b)(6)(B). The judge calculated Lindsey’s criminal-history category to be V based on 3 convictions with sentences exceeding 13 months and another conviction for which he received 30 months’ probation. This resulted in a guideline imprisonment range of 70 to 87 months, with a statutory maximum of 10 years under the 2018 version of 18 U.S.C. § 924(a)(2), and a guidelines supervised-release range of 1 to 3 years, U.S.S.G. § 5D1.2(a)(2), with a statutory maximum of 3 years, 18 U.S.C. § 3583(b)(2). The judge then weighed the factors under 18 U.S.C. § 3553(a). He noted that Lindsey grew up in an impoverished neighborhood and was surrounded by widespread drug use and gang activity, leading to his affiliation with a gang from the 1970s to the 1990s. His personal background was punctuated by tragedy: he lost his father when he was 15 years old, lost his mother in 2017 to illness, and lost his sister to homicide the week before the change of plea hearing. He “escaped” a criminal history category of VI because some convictions, including a 1988 murder and a 2000 controlled substance delivery, were too old. His various prison sentences exceeded 40 years, and the judge noted that alternative forms of correction had been hit or miss. The judge also considered Lindsey’s need for treatment for a heroin addiction and observed that Lindsey’s education and employment background were mixed. Counsel first informs us that she consulted with Lindsey and confirmed that Lindsey wishes to challenge only his sentence, not his conviction. Counsel thus properly refrains from discussing the validity of the guilty plea. United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). No. 21-2620 Page 3 Counsel next considers whether the district judge correctly calculated Lindsey’s guidelines range. We agree that it would be frivolous to argue that the judge erred in setting Lindsey’s base offense level at 20 because of one prior “controlled substance offense”: an Illinois conviction in 2007 for possession with intent to deliver cocaine within 1000 feet of a church. 720 ILCS 570/401(d), 570/407(b)(2) (2005); see United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020). Challenging the four-level increase for using the firearm in connection with another felony would also be futile. See U.S.S.G. § 2K2.1(b)(6)(B). Lindsey admitted that he fired a gun into an inhabited dwelling, which is criminal recklessness punishable by at least one year imprisonment under Indiana law. See IND. CODE §§ 35-42-2-2(b)(2)(A), 35-50-2-6(b); U.S.S.G. § 2K2.1, cmt. n. 14(C). Counsel also rightly concludes that it would be frivolous to challenge the calculation of Lindsey’s criminal-history category. Lindsey correctly received 3 points for each of his 3 convictions with a sentence greater than 1 year and 1 month and 1 point for a conviction resulting in 30 months’ probation. See U.S.S.G. § 4A1.1(a), (c). With a total of 10 criminal-history points, the judge appropriately placed Lindsey in category V. Counsel identifies no other potential procedural errors to raise on appeal. See Gall v. United States, 552 U.S. 38, 51 (2007). Counsel next correctly asserts that a substantive reasonableness challenge to Lindsey’s sentence would be frivolous. We would presume his sentence is not unreasonably high because it fell within the properly calculated guideline range. United States v. Major, 33 F.4th 370, 384 (7th Cir. 2022). Counsel finds no basis for rebutting that presumption because the judge adequately explained his reasoning with reference to the § 3553(a) factors. See United States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019). He considered Lindsey’s difficult personal background; the potential for unwarranted disparities; and Lindsey’s need for treatment. We also agree with counsel that there are no nonfrivolous challenges to the term or conditions of Lindsey’s supervised release. Lindsey did not object to either, and he repeated at sentencing that he had no objection to the conditions, despite having the opportunity to contest them, and he thus waived any appellate challenge to them. United States v. Anderson, 948 F.3d 910, 910–11 (7th Cir. 2020). In the course of reviewing counsel’s motion, we noted an error on the written judgment form. Although the parties correctly determined that Lindsey did not qualify as an armed career criminal subject to 18 U.S.C. § 924(e), the judgment states that Lindsey was “adjudicated guilty” under that provision. As reflected in the sentencing hearing transcript, however, Lindsey’s sentence fell under the 2018 version of § 924(a)(2), which at the time carried a 10-year maximum sentence, as compared to No. 21-2620 Page 4 § 924(e)’s 15-year minimum. The discrepancy in the written judgment therefore is a clerical error, correctable at any time under Rule 36 of the Federal Rules of Criminal Procedure. See United States v. Anobah, 734 F.3d 733, 739 (7th Cir. 2013). After giving the parties notice and receiving no objection, we order the district court to enter an amended judgment that omits reference to § 924(e) and request counsel’s cooperation in ensuring that this is done. We GRANT counsel’s motion to withdraw and DISMISS the appeal.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488281/	J-A10037-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH PHYSICIAN : IN THE SUPERIOR COURT OF NETWORK, LLC : PENNSYLVANIA : : v. : : : CHARLES M. MANGANIELLO, M.D. : : No. 175 MDA 2021 Appellant : Appeal from the Order Entered December 29, 2020 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2020-04496 BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J. DISSENTING MEMORANDUM BY PANELLA, P.J.:FILED NOVEMBER 21, 2022 While I agree that discovery is to be liberally allowed so long as it may reasonably lead to the revelation of admissible evidence, it is equally true that “no effective system of discovery can be designed which is not subject to abuse.” Explanatory Comments to the Rules of Civil Procedure, Depositions and Discovery – 1978. Abuse prevention relies primarily on self-discipline amongst the bar. See id. However, where attorneys are not disciplined, the courts must act to prevent abuse. See id. At the outset, I emphasize that I do not conclude that Commonwealth is attempting to abuse the system, nor that the majority is condoning such conduct. Rather, I write to highlight that abuse prevention is impossible where courts do not exercise at least a modicum of control over the system. As a baseline, then, courts must scrupulously ensure that all discovery requests J-A10037-22 comply with Pa.R.Civ.P. 4003.1(b): that all discovery requests must be reasonably calculated to lead to the discovery of admissible evidence. While this hurdle is quite low, it is not non-existent. After reviewing the record here, I conclude that Commonwealth is unable to clear the Rule 4003.1(b) hurdle, and I therefore dissent. Here, Manganiello challenges the trial court’s orders granting Appellee's discovery requests, despite, upon my review, Appellee's failure to establish a compelling need for the discovery documents requested, which purportedly include privileged materials and private information relating to Manganiello’s patients and unrelated business decisions. Manganiello argues that the discovery requests in issue are impermissibly vague, overly broad because they address factual matters which are not relevant at this stage of the litigation, and are therefore not reasonably calculated to lead to the discovery of evidence admissible at this time. Most importantly, in my opinion, until there is a disposition by the trial court that Manganiello breached the contracts with Commonwealth, as alleged by Commonwealth in its Second Amended Complaint, the discovery requests are premature and are designed to invade Manganiello’s personal business dealings and handling of his patients. Simply stated, Commonwealth’s requests seek information not discoverable until Commonwealth establishes that Manganiello breached the contracts; until that time, this personal and business information is protected by Manganiello’s privacy rights. “Our Supreme Court has recognized that the -2- J-A10037-22 privacy interests protected by the federal Constitution receive the same protections from Pennsylvania's Constitution.” Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super.2004). Cases concerning the constitutional right to privacy involve two separate interests: (1) the individual interest in avoiding disclosure of personal matters; and (2) the interest in making certain kinds of important decisions. Id. at 1205–06. However, “the right [to privacy] is not an unqualified one; it must be balanced against weighty competing private and state interests.” Id. at 1207 (quoting Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 434, 609 A.2d 796, 800 (1992)). Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1125–26 (Pa. Super. 2007). This interlocutory appeal arises from Commonwealth’s Second Amended Complaint, which alleged that Dr. Manganiello breached several contracts with Commonwealth. The first contract is an asset purchase agreement, which includes a non-compete clause. The second contract is an employment contract which contains a confidentiality agreement. The asset purchase agreement directly referenced the employment agreement. Commonwealth alleged that Dr. Manganiello breached the employment agreement by, among several other allegations, using a non-licensed person to authorize his prescriptions to patients. As a result, Commonwealth notified Dr. Manganiello on January 14, 2020, that it was suspending his employment pending an investigation. Shortly thereafter, Commonwealth concluded that Dr. Manganiello was not cooperating with its investigation and notified Dr. -3- J-A10037-22 Manganiello that it would terminate his employment after the appropriate notice period. Commonwealth subsequently initiated this action, seeking to enjoin Dr. Manganiello’s continued practice of medicine within the area covered by the asset purchase agreement’s non-compete clause. Commonwealth also sought liquidated damages for the breach of each agreement. Dr. Manganiello has conceded that he continued to practice medicine after Commonwealth’s notice. He contends that since it was Commonwealth who first breached the contracts, he was no longer bound by the non-compete agreement. So, right from the start, the universe of relevant evidence in this matter is constricted. The only legal issue in dispute which is relevant at this stage of the litigation is whether there was a breach of the contract by either party. As such, the only material factual issues in dispute are Commonwealth’s allegations that Dr. Manganiello materially breached the employment contract before Commonwealth suspended his employment. The universe of relevant evidence is further restricted by Commonwealth’s election of liquidated damages: [P]arties who agree to include a liquidated damages clause in their contract, and do so properly, cannot later claim entitlement to actual damages; rather, in keeping with the law of contracts, the parties must be bound by their bargain. This is true whether the complaint avers that the amount of liquidated damages is insufficient to fully compensate or excessive in light of the actual damage caused. -4- J-A10037-22 Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 162 (Pa. Super. 1997). Combined with Commonwealth’s election to seek an injunction pursuant to the non-compete clause, the amount of monetary damages should Commonwealth prevail is not in material dispute.1 With this knowledge in mind, I turn to Commonwealth’s proposed discovery requests. In Request for Production 1, Commonwealth requested “all employee time and payroll records of [Dr. Manganiello’s current office] reflecting time that you or any individual working to support your medical practice … have worked or payments made to any employee working to support your medical practice from January 1, 2020, to the present.” Based on the pleadings of both parties, there is no indication that Dr. Manganiello operated out of his current office until well after January 14, 2020. Therefore, this information cannot lead to admissible evidence on the issue of whether Commonwealth had cause to suspend Dr. Manganiello on January 14, 2020. This request is not reasonably calculated to lead to admissible evidence. In Request for Production 2, Commonwealth requested “a copy of any appointment diary, chronology, log, calendar, appointment book, or schedule reflecting medical care that you provided or were scheduled to provide which ____________________________________________ 1Even in the absence of a conclusion that the “gist” of Commonwealth’s action sounds in contract, the election of liquidated damages would foreclose Commonwealth’s claim for tortious interference with contractual relations. -5- J-A10037-22 was kept by you or any individual on your behalf from January 1, 2020 to the present.” Given the only material dispute of fact concerns whether Dr. Manganiello breached the contracts prior to January 14, 2020, this request is overbroad. While there is some remote possibility that patient appointments after January 14, 2020, could lead to admissible evidence, that is not the standard set forth in the Rules. The standard is whether the request appears reasonably calculated to lead to admissible evidence. Without more justification from Commonwealth, I conclude the request for information about patients beyond January 14, 2020, does not appear to be reasonably calculated to lead to admissible evidence. In Request for Production 3, Commonwealth sought “all documents concerning, evidencing or reflecting any communication between you (or any individual on your behalf) and any current or former CPN employee, including without limitation Cheri Rash, from January 1, 2020, to the present.” The trial court concluded that this request was relevant to the question of whether Dr. Manganiello solicited Commonwealth’s clients in contravention of the non- compete clause. As I have already noted, this is not a subject of material dispute. Without a different rationale from Commonwealth, I cannot conclude that this request is reasonably likely to lead to admissible evidence on the sole factual dispute of whether Dr. Manganiello breached the employment agreement prior to January 14, 2020. -6- J-A10037-22 In Request for Production 4, Commonwealth requested “all documents concerning, evidencing, or reflecting any communication from January 1, 2020, to the present between you (or any individual on your behalf) and any individual whom you treated while employed by CPN.” Once again, only communications to patients from January 1 to January 14 could reasonably be expected to lead to admissible evidence. Without more justification from Commonwealth, the request for documents generated after January 14, 2020 does not appear to be reasonably calculated to lead to admissible evidence. In Request for Production 5, Commonwealth requested “all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any media outlet, including without limitation any print or digital publication, from January 1, 2020 to the present.” Similar to Request 3, the trial court ruled that this request was relevant to Commonwealth’s claims that Dr. Manganiello was soliciting clients for his separate practice after January 14, 2020. However, as noted previously, this is not in dispute. I fail to see how this request could be reasonably calculated to lead to admissible evidence on the issue of whether Dr. Manganiello breached the employment contract before January 14, 2020. In Request for Production 6, Commonwealth sought “all documents reflecting the status of your employment with [Commonwealth] that you or any person on your behalf received from any agent, employee or representative of [Commonwealth] from January 1, 2020 to the present.” At -7- J-A10037-22 the outset, I once again fail to see how this request is reasonably calculated to lead to admissible evidence on the issue of whether Dr. Manganiello breached the employment agreement prior to January 14, 2020. Above and beyond this issue, however, is that even if it were reasonably calculated to lead to admissible evidence, it is improper. See Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179, 1189 n.14 (Pa. Super. 2005) (noting that discovery does not require “a party to supply, at its own expense, information already under the control or readily available to the opposing party”). This request seeks documents generated by Commonwealth agents and sent to Dr. Manganiello. These documents are at least as available to Commonwealth as they are to Dr. Manganiello, and to request them from Dr. Manganiello through discovery is an abuse of the process. Request for Production 7 is the reciprocal of Request 6: it seeks all documents Dr. Manganiello or his agents sent to Commonwealth regarding his employment with Commonwealth from January 1, 2020, to the present. For all of the reasons just discussed regarding Request 6, I would conclude this request cannot lead to admissible evidence and is further an abuse of the discovery process seeking documents equally in the possession of Commonwealth. Request for Production 8 sought “all documents concerning … any communication between you (or any individual on your behalf) and any insurance agent, broker, or provider regarding insurance coverage for your -8- J-A10037-22 medical practice[.]” The trial court overruled Dr. Manganiello’s objection to this request, concluding the request was relevant to establishing whether Dr. Manganiello established a practice in contravention of the non-compete provision. As noted previously, that issue is not in dispute. And, in the absence of another reason for its relevance, I cannot conclude the request is reasonably calculated to lead to admissible evidence. In Request for Production 9, Commonwealth requested “all documents concerning … any communication between you [or any agent] and any accountant regarding your medical practice from January 1, 2020, to the present.” Once again, the trial court overruled Dr. Manganiello’s objection to this request by concluding that it was relevant to the issue of whether Dr. Manganiello sought to establish a medical practice in contravention of the non- compete clause. As before, I conclude this was error, as there is no dispute that Dr. Manganiello in fact established such a practice – the only factual issue is whether he was entitled to do so due to his allegation that Commonwealth was already in breach of the contract. Request for Production 10 fails for similar reasons. Request 10 sought “all documents concerning … any communication between you [or any agent] and any business consultant regarding your medical practice from January 1, 2020, to the present.” The trial court found that this request was relevant to the issue of whether Dr. Manganiello opened a new medical practice and solicited clients in violation of the non-compete provision. As set forth before, -9- J-A10037-22 this is in fact not relevant to any factual dispute in this matter, and the trial court’s reasoning constitutes error. Requests 11 and 12 sought all documents pertaining to office or medical supplies and equipment from January 1, 2020, through January 14, 2020. I conclude that these requests are generally relevant, as they are limited in time to a period before January 14, 2020. However, they are still overbroad, in that any documents relating to business and medical supplies that were left in Commonwealth’s possession when Dr. Manganiello was suspended are not relevant to whether Dr. Manganiello was breaching the employment contract during that time. The proper scope of this request is for documents from January 1 to 14, 2020, pertaining to office or medical supplies later used in Dr. Manganiello’s separate practice. Request for Production 13 is similarly generally relevant but overbroad. It sought “all documents concerning … any communication between you [or your agent] and any agent or employee of Geisinger Health System regarding your medical practice from January 1, 2020, to the present.” For the period of January 1 to 14, 2020, this request is relevant and reasonably calculated to lead to admissible evidence. Beyond January 14, 2020, however, these documents become only remotely likely to lead to relevant, admissible evidence. Without more justification, I would conclude that this request is properly limited to January 1 to 14, 2020. - 10 - J-A10037-22 Request for Production 14 requested “all documents concerning … any efforts by you [or your agent] to incorporate any business between January 1, 2020 and the present.” For all the reasons I have already set out above, this request is only relevant to the period of January 1 to 14, 2020. For the period after January 14, 2020, this request is not reasonably calculated to lead to admissible evidence. Request 19 sought “all documents … that you believe support your belief that [Commonwealth] “further materially breached the Agreement on January 14, 2020[.]” Dr. Manganiello identified two such documents, one of which has already been produced to Commonwealth. The remaining document is the January 14, 2020 letter from Commonwealth to Dr. Manganiello informing Dr. Manganiello that he was suspended. Dr. Manganiello was not required to produce this document as it was equally available to Commonwealth. See Eigen, 874 A.2d at 1189 n.14. In Request 24, Commonwealth sought “all documents … that you believe support your denial “that [you were obligated, or refused to participate in [Commonwealth’s] purported ‘compliance investigation,’” as alleged in Paragraph 55 of your Answer to Motion for Preliminary Injunction.” Dr. Manganiello identified 11 total documents, which he alleged are already in the possession of Commonwealth. Ten of these documents are letters from Dr. Manganiello’s then counsel addressed to Commonwealth. The remaining document is the “suspension letter” of January 14, 2020. All are likely in the - 11 - J-A10037-22 possession of Commonwealth. If Commonwealth asserts that it does not have any record of these documents, then it may request that Dr. Manganiello produce in discovery. Absent that assertion of record, these documents are equally available to Commonwealth under Eigen. Request 25 sought “all documents … that you believe support your belief that [Commonwealth’s] “protectable business interests are outweighed by [your] interest in earning a living in [your] chosen profession and the general interest of the public,” as alleged in Paragraph 61 of your Answer to Motion for Preliminary Injunction.” Dr. Manganiello objected to this request by asserting it violated his attorney client privilege and the work product doctrine. To the extent that he did answer this request, he asserted that “responsive Pennsylvania caselaw is equally accessible to [Commonwealth] as it is to [Dr. Manganiello].” I agree with the trial court here, as Dr. Manganiello’s answer is non-responsive. Clearly, Commonwealth is seeking any additional documents which might provide factual support for Dr. Manganiello’s claim. In his appellate brief, Dr. Manganiello asserts that he “already provided the factual basis supporting his legal conclusion as well as documents[.]” If this is true, Dr. Manganiello can offer this statement as his answer, and be subjected to any remedies reasonably constructed by the trial court if the court finds this answer to be untruthful or incomplete. - 12 - J-A10037-22 In Interrogatories 15 and 20, Commonwealth wanted information about any attempts at soliciting Commonwealth patients for Dr. Manganiello’s separate practice. As set forth in detail above, I believe this interrogatory must be restricted to communications occurring before January 14, 2020. There is no factual dispute that Dr. Manganiello subsequently solicited his former patients for his separate practice. For all these reasons, I dissent from the majority’s memorandum affirming the trial court’s blanket refusal to entertain Dr. Manganiello’s objections to Commonwealth’s discovery requests. - 13 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488283/	J-S37010-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHALIL PUGH : : Appellant : No. 310 EDA 2022 Appeal from the PCRA Order Entered January 21, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007367-2017 BEFORE: BOWES, J., LAZARUS, J., and OLSON, J. MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2022 Khalil Pugh appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm. Appellant’s underlying charges stem from an incident where he entered a residence, “poured lighter fluid on the first floor and ignited it. The resulting fire caused the death of the victim, who was in the second[-]floor bedroom at the time.” Commonwealth v. Pugh, 236 A.3d 1131 (Pa.Super. 2020) (non- precedential decision at 2). The fire marshal determined that the fire was a result of arson and a forensic pathologist concluded that inhalation of products of combustion caused the victim’s death. Id. Seven days after the fire, Appellant met with police and provided a video statement. Therein, he confessed to going into the home, pouring lighter fluid on a couch, and lighting it on fire. Id. “Appellant's girlfriend also gave a written statement to police J-S37010-22 that she observed Appellant take a bottle of lighter fluid and walk outside saying ‘that he was going to light the house on fire.’” Id. Prior to trial, counsel filed several motions based on a defense that the above-referenced confession and statement were coerced by then-detective James Pitts. See Motion to Suppress, 5/2/18; Motion to Compel Disclosure of Impeaching Information, 5/23/18; Motion to Admit Prior Bad Acts of Detective James Pitts Pursuant to Pa.R.E. 404(b), 6/18/18; Motion to Dismiss for Prosecutorial Misconduct, 6/18/18; Motion to Compel Disclosure of the Philadelphia District Attorney’s Office Second List of Problematic Police Officers and Detectives, 6/19/18. On June 25, 2018, the day set for trial, the Commonwealth offered a plea deal to Appellant. In exchange for a guilty plea to third-degree murder and possessing an instrument of crime (“PIC”), the Commonwealth would recommend a sentence of fifteen to thirty years of incarceration and withdraw the remaining charges, which included first and second-degree murder. Appellant had the opportunity to speak with counsel regarding the plea offer for approximately three hours that morning. Appellant rejected the plea offer because he had not had time to discuss it with his family. See N.T. Guilty Plea Volume 1, 6/25/18, at 15-16. The court offered additional explanation surrounding pleas and trials generally and as it pertained specifically to Appellant’s case and granted Appellant additional time to discuss with counsel. See id. at 8-18. Thereafter, Appellant decided to accept the plea offer and forgo proceeding on the pre- -2- J-S37010-22 trial motions. See id. at 18-19. The court began to conduct a colloquy of Appellant’s decision. See id. at 19-28. However, the court rejected the plea once Appellant disagreed with the Commonwealth’s summary of the alleged facts. See id. at 35-36. As a result, the court declared that it would consider Appellant’s motion to suppress and motion under Rule 404(b) following a lunch break. See id. at 46. Additionally, trial counsel had requested assistance with unanswered subpoenas from the City Solicitor’s Office for information regarding various detectives. The court noted that after the lunch break it would consider counsel’s offer of proof as to those and suggested that counsel contact the City Solicitor’s Office regarding their failure to comply with the subpoenas. See id. at 47-49. Following the lunch break, Appellant stated that he wanted to plead guilty. See id. at 49. The court picked up where it had left off and finished conducting a thorough colloquy, with Appellant agreeing with the underlying recitation of facts, stating that he was satisfied with trial counsel’s representation, forgoing the issues in the pre-trial motions, and verifying that he was voluntarily pleading guilty. See id. at 51-60. The trial court sentenced Appellant based upon the recommendation to concurrent sentences of fifteen to thirty years of incarceration for third-degree murder and one to two years of incarceration for PIC. On July 11, 2018, Appellant filed pro se a petition to withdraw his guilty plea, claiming that trial counsel was ineffective. As a result, trial counsel filed a motion to withdraw, which the court granted. New counsel was appointed -3- J-S37010-22 but was subsequently permitted to withdraw due to irreconcilable differences. While the motion to withdraw his guilty plea remained pending, Appellant filed pro se a PCRA petition. New counsel was appointed to represent Appellant. At a hearing, counsel withdrew Appellant’s PCRA petition and chose to proceed on the pending motion to withdraw Appellant’s guilty plea. Although untimely filed, the trial court granted counsel’s request to accept Appellant’s motion to withdraw his guilty plea as timely filed nunc pro tunc. At the hearing, Appellant “contended that his plea was involuntary because his attorney was not prepared for trial and had not conducted an adequate investigation.” PCRA Court Opinion, 3/4/22, at 2. The court denied Appellant’s motion. Appellant filed a direct appeal to this Court. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Counsel explained that Appellant wished to argue that “his confession was coerced by a corrupt Philadelphia Police detective, James Pitt, and his plea was involuntary because plea counsel had not properly subpoenaed a known witness and City of Philadelphia files on Detective Pitts.” Pugh, supra (non-precedential decision at 6) (cleaned up). This Court granted counsel’s petition to withdraw and affirmed Appellant’s judgment of sentence. Appellant did not seek further direct review. Thereafter, Appellant retained instant counsel and filed the underlying timely PCRA petition. Within the petition, Appellant raised an ineffective assistance of counsel claim against trial counsel, arguing that he “was -4- J-S37010-22 ineffective for failing to properly pursue a claim against corrupt Philadelphia Detective James Pitts and the suppression of the false confession he coerced from [Appellant] and the false statement he secured from [Appellant’s girlfriend].” PCRA Petition, 2/26/21, at 8. Additionally, Appellant argued that counsel was ineffective for failing to follow Appellant’s chosen defense based on the misconduct of Detective Pitts. Id. at 25-26. The Commonwealth filed a motion to dismiss and Appellant filed a brief in opposition. On December 3, 2021, the PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Specifically, the court found that the basis for Appellant’s claims of ineffective assistance of counsel were identical to the basis for Appellant’s previously litigated motion to withdraw his guilty plea. As the court had held an evidentiary hearing on that motion and concluded Appellant was not coerced into pleading guilty, the court found that Appellant’s PCRA claim was without merit. See Rule 907 Notice, 12/3/21. As to Appellant’s claim that counsel was ineffective for failing to pursue Appellant’s chosen defense, the court found that claim frivolous because Appellant entered a knowing, intelligent, and voluntary plea. Id. Appellant did not respond, and on January 21, 2022, the PCRA court dismissed Appellant’s petition. This timely appeal followed. The PCRA court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) by February 15, 2022. Appellant filed his statement one day late. However, because the PCRA court addressed the issues Appellant raised in his concise statement in its Rule -5- J-S37010-22 1925(a) opinion, the issues are ripe for our review.1 On appeal, Appellant presents the following issue: “Did the PCRA court err by denying, without a hearing, Pugh’s claim of ineffective assistance of plea counsel?” Appellant’s brief at 4. On appeal from a PCRA court’s decision, our scope of review is “limited to examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party.” Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa.Super. 2020) (en banc) (cleaned up). The PCRA court’s credibility determinations are binding on this Court when supported by the certified record, but we review its legal conclusions de novo. Id. (citation omitted). Appellant raised two PCRA claims, both of which challenge the effective assistance of trial counsel. We observe that counsel is presumed to be effective and the petitioner bears the burden of proving otherwise. Id. (citation omitted). To do so, he must establish the following three elements: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. ____________________________________________ 1 See Commonwealth v. Williams, 245 A.3d 710, 715 (Pa.Super. 2021) (“‘When counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues, we need not remand [pursuant to Rule 1925(c)(3)] and may address the merits of the issues presented.’ Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).”). -6- J-S37010-22 Id. (citations omitted). Failure to prove any of the three elements will result in dismissal of the ineffectiveness claim. Id. (citation omitted). Appellant first argues that trial counsel was per se ineffective for failing to pursue Appellant’s desired defense at trial. See Appellant’s brief at 15. In support thereof, Appellant relies on McCoy v. Louisiana, 138 S.Ct. 1500 (2018), wherein the Supreme Court of the United States held as follows: [A] defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life— at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt. Id. at 1505 (emphases in original). According to Appellant, trial counsel was aware that Appellant wanted to pursue a defense based on the misconduct of Detective Pitts, and in fact attempted to pursue the defense by filing the above-noted pre-trial motions. However, Appellant argues that counsel’s failure to diligently pursue that defense resulted in a functional abandonment of the defense, thereby forcing Appellant to plead guilty. See Appellant’s brief at 16 (“[Appellant] showed up on the day of trial with a lawyer who was not ready to effectuate his desired defense and was faced with the choice between proceeding with an unprepared lawyer or accepting a plea bargain.”). -7- J-S37010-22 The PCRA court dismissed this claim, finding that McCoy was “completely inapposite[.]” PCRA Court Opinion, 3/4/22, at 7. The court elucidated as follows: In McCoy, trial counsel for defendant in the guilty phase of a capital murder trial, told the jury that the defendant committed three murders and was guilty. Counsel did this as part of his strategy for defendant to avoid the death penalty, even though defendant adamantly denied his guilt and instructed counsel not to concede defendant’s guilt. The Supreme Court held that by conceding defendant’s guilt, notwithstanding defendant’s adamant insistence o[f] his innocence, trial counsel denied defendant the effective assistance of counsel. McCoy provides no support for defendant in the case at bar. Unlike the defendant in McCoy, who went to trial and wished adamantly to assert his innocence, [Appellant] admitted his guilt in a thorough colloquy under oath. Moreover, as stated above, after reviewing the record of the guilty plea hearing, our Superior Court concluded, in rejecting [Appellant’s] direct appeal, that “the record establishes that [Appellant] knowingly and voluntarily entered his guilty plea. The Superior Court agreed with [Appellant’s] counsel, who had filed an Anders brief, that [Appellant’s] claim that he was coerced into pleading guilty because trial counsel did not properly prepare for trial was frivolous. Of course, once [Appellant] has knowingly and voluntarily pled guilty, he has abandoned any claim of innocence, and there are no trial strategies to pursue. Id. at 7 (citations and footnote omitted). We agree with the cogent analysis of the PCRA court. As the certified record supports the conclusions of the PCRA court, we affirm as to this issue on the basis of the above-stated analysis of the PCRA court. See id. Finally, Appellant argues that the PCRA court erred in concluding that he could not prove his PCRA claims of ineffective assistance of counsel because he did not prevail on his motion to withdraw his guilty plea. See Appellant’s -8- J-S37010-22 brief at 17. In support, Appellant notes that the standards of review for the withdrawal of a guilty plea and collateral review of ineffective assistance of counsel claims are not the same. See id. at 17-18. Whereas Appellant had to demonstrate manifest injustice to withdraw his plea, to succeed on his PCRA petition Appellant needed only to show that “but for counsel’s errors, he would not have pleaded guilty and would have gone to trial.” Id. at 18. Appellant further argues that the question of why Appellant pleaded guilty “is a purely factual question and thus the PCRA court abused its discretion in failing to hold an evidentiary hearing to resolve that question.” Id. at 22. The PCRA court elaborated on its reasoning for dismissing this PCRA claim as follows: Here, the gravamen of [Appellant’s] claim on appeal is that the [c]ourt erred by denying his ineffective assistance of counsel claim on the basis of the previously litigated motion to withdraw his guilty plea. He alleges that the court failed to consider that the two claims are distinct and covered by different legal standards. However, [Appellant’s] claim completely misrepresents the basis for the court’s decision. At no time did the court apply the legal standard for withdrawal of a guilty plea to reject [Appellant’s] claim of ineffective assistance of counsel. What the court found, which is fully supported by the record, is that in the case at bar, the factual basis for [Appellant’s] ineffective assistance of counsel claim was identical to the factual basis that [Appellant] had asserted in support of his motion to withdraw the guilty plea. In particular, [Appellant’s] motion to withdraw his guilty plea was premised upon the factual contention that [Appellant] was coerced into pleading guilty by trial counsel’s failure to prepare for trial and counsel’s failure to subpoena necessary witnesses and documents. [Appellant] claims that this coercion rendered his guilty plea to be involuntary. That same alleged coercion was the entire factual basis for [Appellant’s] claim in his -9- J-S37010-22 PCRA petition, that is, counsel’s identical lack of preparation for trial coerced [Appellant] to plead guilty, thereby depriving [Appellant] of the effective assistance of counsel. That factual issue was fully litigated, during a plenary hearing on [Appellant’s] motion to withdraw guilty plea, with the court finding that [Appellant] was not coerced into pleading guilty by his trial attorney’s alleged lack of preparation. That finding of the court was affirmed by the Superior Court in rejecting [Appellants’] direct appeal. As [Appellant] was not, in fact, coerced into pleading guilty by trial counsel’s lack of trial preparation, [Appellant] cannot now prove that counsel’s alleged ineffectiveness caused an involuntary or unknowing plea. As a result, the existing record refuted [Appellant’s] ineffective assistance of counsel claim, and it was correctly rejected without a further evidentiary hearing on the identical factual issue. PCRA Court Opinion, 3/4/22, at 5-6 (citations and unnecessary capitalization omitted). Upon review, the certified record once again supports the conclusions of the PCRA court. Accordingly, we affirm as to this issue on the basis of the above-quoted analysis. See id. Based on the foregoing, we affirm the order dismissing Appellant’s PCRA petition. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 - 10 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488200/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00392-CV IN THE INTEREST OF N.J., A CHILD § On Appeal from the 360th District Court § of Tarrant County (360-716584-22) § November 17, 2022 § Memorandum Opinion by Justice Kerr JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS By __/s/ Elizabeth Kerr________________ Justice Elizabeth Kerr	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488218/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00377-CV DAISY CHOU, Appellant § On Appeal from the 348th District Court § of Tarrant County (348-332744-22) V. § November 17, 2022 ACCLAIM PHYSICIAN GROUP, INC., Appellee § Memorandum Opinion by Justice Wallach JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS By _/s/ Mike Wallach___________________ Justice Mike Wallach	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488202/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00284-CV IN THE INTEREST OF J.H., S.V., AND § On Appeal from the 325th District Court C.V., CHILDREN § of Tarrant County (325-695108-21) § November 17, 2022 § Memorandum Opinion by Justice Womack JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed. SECOND DISTRICT COURT OF APPEALS By /s/ Dana Womack Justice Dana Womack	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488198/	In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-22-00269-CV IN THE INTEREST OF T.B., H.B., J.B., § On Appeal from the 325th District AND G.B., CHILDREN Court § of Tarrant County (325-680549-20) § November 17, 2022 § Per Curiam Memorandum Opinion JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed. SECOND DISTRICT COURT OF APPEALS PER CURIAM	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488225/	********************************************* The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ********************************************* ATLANTIC ST. HERITAGE ASSOCIATES, LLC v. ATLANTIC REALTY COMPANY ET AL. (AC 43857) Elgo, Moll and Pellegrino, Js. Syllabus The plaintiff, an entity that owned commercial real property, sought, inter alia, injunctive relief enjoining the defendants, various entities that owned or leased commercial property located to the south of the plain- tiff’s property within the same city block, from interfering with the plaintiff’s right to use a claimed easement area. The plaintiff acquired its real property in 1982, and the defendants, which were all owned or controlled by members of the same family, purchased their respective real properties between 1988 and 2014. Since the acquisition of its property, the plaintiff’s members, employees, tenants, and invitees have used a twelve foot wide alleyway located between two of the properties owned by certain of the defendants and a portion of the paved area behind the defendants’ properties to access its own gated parking lot. In 2015, the defendants erected a gate at the end of the alleyway that connected to the street and installed a chain barrier across the end of the alleyway that abutted the paved area. During the hours when the retail business that operated out of the defendants’ properties was closed, the defendants locked the gate and put the chain barrier in place. After the defendants refused to provide the plaintiff with a key to the gate, the plaintiff commenced the present action, alleging, in its operative complaint, that it had a prescriptive easement over the alleyway and a portion of the paved area. The defendants asserted five special defenses to the plaintiff’s complaint prior to its filing of the operative complaint. Thereafter, the plaintiff filed a motion for summary judgment, and the defendants filed a cross motion for summary judgment. The trial court heard oral argument on the parties’ cross motions. Thereafter, without seeking leave of the court, the defendants filed an answer to the plaintiff’s operative complaint and filed amended special defenses, which reas- serted the five original special defenses and also asserted five new special defenses. The trial court granted the plaintiff’s motion for sum- mary judgment and denied the defendants’ cross motion for summary judgment. On the defendants’ appeal to this court, held: 1. The trial court improperly granted the plaintiff’s motion for summary judg- ment: a. To invoke the trial court’s authority to grant the plaintiff’s motion for summary judgment, the plaintiff was obligated to address any special defenses to its operative complaint that the defendants had properly asserted in accordance with the rules of practice and, in moving for summary judgment, the plaintiff addressed only one of the defendants’ five original special defenses: the trial court improperly adjudicated, sua sponte, the defendants’ other four original special defenses that asserted waiver, estoppel, unclean hands, and laches; moreover, the plaintiff was not obligated to address the defendants’ new special defenses and the trial court did not err in rejecting the same on procedural grounds because those defenses were not properly before the court, as the defen- dants did not file them until approximately three weeks after the date of oral argument on the parties’ motions for summary judgment, which was beyond the filing period prescribed by the applicable rule of practice (§ 10-61), and they did so without obtaining the trial court’s permission. b. The defendants’ claim that the trial court improperly determined that there were no genuine issues of material fact as to the plaintiff’s prescrip- tive easement claim was unavailing: the trial court properly rejected the relevant portion of the affidavit submitted in connection with the defendants’ cross motion for summary judgment by M, one of the family members who controlled the defendants, because it did not constitute competent evidence pursuant to the applicable rule of practice (§ 17- 46), as M’s averments regarding the frequency with which the plaintiff used the alleyway were conclusory rather than factual, in that they lacked any indication of the regularity and frequency of M’s observations of the vehicular traffic in the alleyway and over the paved area and evidenced his limited familiarity with the plaintiff and his inability to recognize vehicles driven by any of the plaintiff’s owners, employees, clients or tenants, other than two individuals; moreover, the trial court did not err in concluding that there were no genuine issues of material fact that the plaintiff’s use of the alleyway was under a claim of right because the plaintiff’s failure to respond to occasional closures of the alleyway during the prescriptive period did not, on its own, imply that the plaintiff recog- nized a superior right of the defendants to the alleyway and the defen- dants’ evidence that the parties were friendly with one another and shared parking spaces under certain circumstances was too speculative to infer implied permission on behalf of the defendants, as those facts were disconnected from the plaintiff’s use of the alleyway; furthermore, the trial court did not err in concluding that there were no genuine issues of material fact as to whether the plaintiff’s use of the claimed easement area was distinguishable from the public’s use of that area, and, by comparing the use of both the alleyway and the paved area, the court conducted the correct analysis in making that determination because the plaintiff alleged in its operative complaint that it had acquired a prescriptive easement over both the alleyway and a portion of the paved area, and the defendants’ special defense that asserted that the trial court should have considered only the use of the alleyway was procedurally improper because it was raised in the pleading that was filed in violation of Practice Book § 10-61. 2. The defendants’ claim that the trial court improperly denied their cross motion for summary judgment was unavailing: the defendants’ claim that the plaintiff could not seek to establish both deeded and prescriptive easements was not properly before the trial court because the defendants did not include such claim in their summary judgment submissions and, instead, asserted it for the first time at oral argument on the parties’ motions for summary judgment and reasserted it in the pleading that the trial court deemed was procedurally improper pursuant to Practice Book § 10-61; moreover, because the defendants did not challenge on appeal the trial court’s rejection of the claim on procedural grounds, this court did not reach the merits of the claim; furthermore, even if this court assumed that the defendants had properly raised the claim before the trial court, it would still fail because the plaintiff abandoned its deeded easement claims by withdrawing those counts from its com- plaint and by filing its operative complaint, which alleged only a prescrip- tive easement over the claimed easement area. Argued September 9, 2021—officially released November 22, 2022 Procedural History Action for, inter alia, a temporary and permanent injunction prohibiting the defendants from restricting the plaintiff’s access to a claimed easement area, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Povodator, J., granted the plaintiff’s motions to cite in 200 Atlantic, LLC, and 210 Atlantic, LLC, as party defendants; thereafter, the court, Hon. Kenneth B. Povodator, judge trial referee, granted the plaintiff’s motion for summary judgment, denied the defendants’ cross motion for summary judgment, and rendered judgment thereon, from which the defendants appealed to this court. Reversed in part; further proceedings. Arthur N. Chagaris, pro hac vice, with whom was John R. Harness, for the appellants (defendants). Michael J. Cacace, with whom, on the brief, was Nicholas W. Vitti, Jr., for the appellee (plaintiff). Opinion MOLL, J. The defendants, Atlantic Realty Company, 200 Atlantic, LLC, 210 Atlantic, LLC, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, appeal from the judg- ment of the trial court granting a motion for summary judgment filed by the plaintiff, Atlantic St. Heritage Associates, LLC, and denying their cross motion for summary judgment vis-à-vis the plaintiff’s second amended complaint claiming a prescriptive easement over certain property at issue.1 As to the summary judg- ment rendered in favor of the plaintiff, the defendants claim that the court (1) lacked the authority to grant the plaintiff’s motion for summary judgment because, in moving for summary judgment, the plaintiff failed to address their special defenses, and (2) improperly determined that no genuine issues of material fact exist as to the plaintiff’s prescriptive easement claim.2 We agree in part with the defendants’ first claim that the court lacked the authority to grant the plaintiff’s motion for summary judgment, such that we reverse the sum- mary judgment rendered in favor of the plaintiff and remand the case for further proceedings. Additionally, because it is sufficiently likely to arise on remand, we will address the defendants’ second claim that the court incorrectly determined that there are no genuine issues of material fact regarding the plaintiff’s prescriptive easement claim. As to the denial of their cross motion for summary judgment, the defendants claim that, as a matter of law, the plaintiff is precluded from asserting both deeded and prescriptive easement rights simulta- neously. This claim is untenable. Accordingly, insofar as the defendants appeal from the denial of their cross motion for summary judgment, we affirm the judgment of the trial court. The following facts, which are undisputed, and proce- dural history are relevant to our resolution of this appeal. In 1982, the plaintiff acquired commercial prop- erty located at 184 Atlantic Street in Stamford. Between 1988 and 2014, the defendants, which are entities owned or controlled by several nonparty family members, acquired parcels of commercial property situated to the south of the plaintiff’s property on the same city block. Specifically, Atlantic Realty Company acquired 234 Atlantic Street in 1988; 252 Atlantic Street, LLC, acquired 252 Atlantic Street in 1994; and 200 Atlantic, LLC, and 210 Atlantic, LLC, acquired 200 Atlantic Street and 210 Atlantic Street, respectively, in 2014.3 Safavieh Atlantic, LLC, is a retail rug and furniture business, owned by the family members who own or control the other defendants, that leases the premises at those locations. Located between 234 Atlantic Street and 252 Atlantic Street is a twelve foot wide alleyway (alleyway) provid- ing a route from Atlantic Street to a paved area behind 200 Atlantic Street, 210 Atlantic Street, and 234 Atlantic Street (paved area), which connects to a gated parking lot that services the plaintiff’s property.4 In 2015, the defendants erected a gate at the western end of the alleyway facing Atlantic Street and installed a chain barrier across the eastern end of the alleyway abutting the paved area. The defendants lock the gate and put the chain barrier in place during the hours when Safavieh Atlantic, LLC, is closed for business. The defendants have refused to provide the plaintiff with a key to the gate. In July, 2016, the plaintiff commenced the present action against Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC. In count one of its original, three count, verified complaint, the plaintiff alleged that it owned a deeded easement right to the alleyway. In count two, the plaintiff alleged that, pursu- ant to General Statutes § 47-37, it had acquired a pre- scriptive easement over the alleyway. In count three, the plaintiff alleged that it owned a deeded easement right to a thirty foot right-of-way in the paved area linking the alleyway to the plaintiff’s parking lot. On October 28, 2016, Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, filed a verified answer denying the plaintiff’s material allegations. Additionally, these defendants asserted five special defenses directed to all three counts of the original complaint, namely, (1) failure to state a claim on which relief can be granted, (2) waiver, (3) estoppel, (4) unclean hands, and (5) laches.5 On November 14, 2017, the plaintiff filed a motion to cite in 200 Atlantic, LLC, and 210 Atlantic, LLC, as additional defendants and requested permission to file an amended, verified complaint. On December 8, 2017, after the trial court, Povodator, J., had granted its motion without objection, the plaintiff filed an amended, three count, verified complaint, which was identical to the original complaint other than (1) setting forth the interests of 200 Atlantic, LLC, and 210 Atlantic, LLC, and (2) expanding the scope of count two by alleging a prescriptive easement over both the alleyway and a portion of the paved area connecting the alleyway to the plaintiff’s parking lot. Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, did not plead further in response to the amended complaint, whereas 200 Atlantic, LLC, and 210 Atlantic, LLC, filed an answer and special defenses that tracked the other defendants’ October 28, 2016 pleading. On April 26, 2019, the plaintiff filed a motion for summary judgment, accompanied by a supporting mem- orandum of law, exhibits, and affidavits, as to count two of its amended complaint alleging a prescriptive easement. Among the affidavits submitted by the plain- tiff were personal affidavits of Richard A. Silver and David S. Golub, two of the plaintiff’s members, and of Jonathan A. Blauner, an employee of the plaintiff. On June 18, 2019, the defendants filed a memorandum of law in opposition to the plaintiff’s motion for summary judgment, accompanied by exhibits and affidavits, and, on June 21, 2019, they filed a cross motion for summary judgment, which incorporated their June 18, 2019 mem- orandum of law and the accompanying exhibits and affidavits, as to the plaintiff’s amended complaint. Among the affidavits submitted by the defendants were the personal affidavits of Michael Yaraghi (Michael) and Arash Yaraghi (Arash), two of the family members who own or control the defendants. On August 5, 2019, the plaintiff filed a combined memorandum of law reply- ing to the defendants’ objection to its motion for sum- mary judgment and objecting to the defendants’ cross motion for summary judgment. On August 27, 2019, the plaintiff withdrew counts one and three of its amended complaint, which had alleged deeded easement rights to the alleyway and to a portion of the paved area, respectively. The same day, the plaintiff moved for permission to file a second amended complaint, submitted with its motion, which the court granted without objection on September 9, 2019. The sole count of the second amended complaint (operative complaint) alleged that the plaintiff had acquired in 1997 a prescriptive easement over the alley- way and a portion of the paved area leading to its parking lot (claimed easement area). As relief, the plain- tiff sought (1) a declaratory judgment establishing that it has prescriptive rights to use the claimed easement area without interference from the defendants and (2) preliminary and permanent injunctions barring the defendants from interfering with its use of the claimed easement area. On September 12, 2019, the plaintiff filed a revised motion for summary judgment, which relied solely on its prior summary judgment submis- sions, seeking summary judgment as to the prescriptive easement claim raised in its operative complaint. On September 23, 2019, the court heard oral argument on the parties’ cross motions for summary judgment. On October 15, 2019, without seeking leave of the court, the defendants filed an answer to the plaintiff’s operative complaint denying the plaintiff’s material alle- gations. Additionally, the defendants filed amended spe- cial defenses, reasserting the original five special defenses set forth in their prior pleadings and asserting five new special defenses. The amended third, fifth, sixth, seventh, and eighth special defenses substan- tively tracked the original five special defenses asserted previously as to count two of the plaintiff’s prior com- plaints. The amended first special defense alleged that the plaintiff was precluded from claiming a prescriptive easement over the claimed easement area because, in its original complaint and in its amended complaint, it had asserted deeded easement rights to the same. The amended second special defense alleged, affirmatively, that the plaintiff has a deeded easement right to a por- tion of the paved area located behind 200 Atlantic Street and 210 Atlantic Street, thereby precluding the plaintiff from simultaneously claiming a prescriptive easement over the same. The amended fourth special defense alleged that the plaintiff used the claimed easement area with the permission of the prior owner of the defendants’ properties and that such permission was revoked subsequently. The amended ninth special defense alleged that the plaintiff had used the claimed easement area with the implied permission of the defen- dants because, through its conduct, the plaintiff had recognized the defendants’ superior claim to the claimed easement area. The amended tenth special defense alleged that the plaintiff had failed to state a claim on which relief can be granted in light of its recognition of the defendants’ superior claim to the claimed easement area. On November 15, 2019, the plaintiff filed a reply denying the allegations of the amended special defenses. On January 15, 2020, the court issued a memorandum of decision granting the plaintiff’s motion for summary judgment, as revised, and denying the defendants’ cross motion for summary judgment. The court concluded that ‘‘the plaintiff has established its right to summary judgment as to its claim of prescriptive easement; it has established that there is no material issue of fact and that it has used the claimed easement area in a manner that was open, visible, continuous, and uninter- rupted for fifteen years and made under a claim of right.’’ With regard to the defendants’ cross motion for summary judgment, the court concluded that the defen- dants had failed to negate any element of the plaintiff’s prescriptive easement claim.6 As to the defendants’ ten amended special defenses, the court rejected the five defenses asserted for the first time in the defendants’ October 15, 2019 pleading as procedurally improper; nevertheless, the court proceeded to discuss, and reject, the merits of all ten defenses. As relief, the court (1) declared that the plaintiff had a prescriptive easement extending through the alleyway and over a portion of the paved area leading to the parking lot located behind its property,7 and (2) enjoined the defendants from ‘‘unreasonably interfering with the use of the prescrip- tive easement,’’ which included ‘‘locking access to any portion of the easement in a manner that interferes with the plaintiff’s use of the easement area,’’ although ‘‘brief closures for maintenance type activities and for construction type activities [were] presumptively per- missible . . . .’’ This appeal followed. Additional facts and procedural history will be set forth as necessary. Before addressing the defendants’ claims, we set forth the standard of review applicable to this appeal and relevant legal principles. ‘‘In seeking summary judg- ment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evi- dence must be viewed in the light most favorable to the opponent. . . . When documents submitted in sup- port of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non- moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demon- strates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to estab- lish the existence of a material fact and, therefore, can- not refute evidence properly presented to the court under Practice Book § [17-45].8 . . . Our review of the trial court’s decision to grant [or to deny a] motion for summary judgment is plenary.’’ (Footnote in original; internal quotation marks omitted.) Kinity v. US Banc- orp, 212 Conn. App. 791, 835–36, 277 A.3d 200 (2022). The plaintiff’s operative complaint alleged a prescrip- tive easement claim pursuant to § 47-37, which pro- vides: ‘‘No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.’’ ‘‘The well established statutory elements necessary to establish an easement by prescription are that the use is (1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right.’’ (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). I With respect to the trial court’s decision granting the plaintiff’s motion for summary judgment, the defen- dants claim that the court (1) lacked the authority to grant the plaintiff’s motion because, in moving for sum- mary judgment, the plaintiff failed to address their spe- cial defenses, and (2) improperly determined that no genuine issues of material fact exist vis-à-vis the plain- tiff’s prescriptive easement claim. We agree in part with the defendants’ first claim that the court lacked the authority to render summary judgment in the plaintiff’s favor, and, therefore, the court’s decision granting the plaintiff’s motion for summary judgment must be reversed and the case must be remanded for further proceedings. Although our resolution of the defendants’ first claim is dispositive of the portion of the appeal taken from the summary judgment rendered in the plaintiff’s favor, because it is sufficiently likely to arise on remand, we will also address the defendants’ second claim. See Budlong & Budlong, LLC v. Zakko, 213 Conn. App. 697, 714 n.14, 278 A.3d 1122 (2022) (‘‘[a]lthough our resolution of the defendant’s first claim is dispositive of this appeal, we also address the defendant’s second claim because it is likely to arise on remand’’). A The defendants claim that the court lacked the authority to grant the plaintiff’s motion for summary judgment because, in moving for summary judgment, the plaintiff did not address their special defenses. For the reasons that follow, we agree in part with the defen- dants. The following additional procedural history is rele- vant to our resolution of this claim. By the time that the court heard oral argument on the parties’ cross motions for summary judgment on September 23, 2019, the defendants had asserted the following five special defenses directed to the prescriptive easement claim set forth in the plaintiff’s operative complaint: (1) failure to state a claim on which relief can be granted on the basis of the public’s use of the alleyway; see part I B 2 b of this opinion; (2) waiver; (3) estoppel; (4) unclean hands; and (5) laches (original special defenses). In its memorandum of law in support of its motion for summary judgment, the plaintiff argued that the original special defense asserting failure to state a claim was meritless; however, the plaintiff did not address the four other special defenses. On October 15, 2019, approximately three weeks fol- lowing oral argument, the defendants filed an answer accompanied by amended special defenses directed to the plaintiff’s operative complaint (October 15, 2019 pleading). In addition to reasserting the five original special defenses, the defendants asserted five new spe- cial defenses, which we summarized previously in this opinion (new special defenses). The defendants did not seek leave of the court to file the October 15, 2019 pleading. In granting the plaintiff’s motion for summary judg- ment, the court discussed the ten amended special defenses asserted in the October 15, 2019 pleading. At the outset, the court determined that the October 15, 2019 pleading was procedurally improper because the defendants had failed either (1) to comply with Practice Book § 10-619 by filing it within ten days after the plain- tiff had filed its operative complaint or (2) to seek permission to file it pursuant to Practice Book § 10-60.10 Additionally, insofar as the defendants had asserted the five new special defenses, the court noted that the defenses were raised after the court had heard oral argument on the parties’ cross motions for summary judgment, such that ‘‘the parties did not brief the issues in the [new] special defenses . . . did not have an opportunity to submit evidence relating to the new [spe- cial defenses] (or identify ‘old’ evidence already before the court that would be relevant), and did not have an opportunity to argue the issues presented by the new special defenses.’’ The court further noted that, although the plaintiff had filed a reply denying the alle- gations of the amended special defenses, it had not consented in advance to the amendment and had no opportunity to address the new special defenses in its summary judgment submissions. The court continued: ‘‘Under these unique if not bizarre circumstances, the court believes it appropriate to reject the new special defenses that were added as a matter of fundamental fairness.’’11 Notwithstanding its rejection of the new special defenses as procedurally defective, the court discussed, and rejected, the merits of all ten defenses. On appeal, relying chiefly on Nationstar Mortgage, LLC v. Mollo, 180 Conn. App. 782, 185 A.3d 643 (2018), the defendants claim that the court lacked the authority to grant the plaintiff’s motion for summary judgment because, in moving for summary judgment, the plaintiff failed to address their special defenses either by (1) challenging the legal sufficiency of the defenses or (2) submitting competent evidence to demonstrate that no genuine issues of material fact exist vis-à-vis the defenses. The defendants further contend that, insofar as the court rejected the merits of their special defenses, the court committed error by considering the defenses sua sponte, that is, without the plaintiff having addressed them in its summary judgment submissions. We agree with the defendants only with regard to the four original special defenses asserting waiver, estop- pel, unclean hands, and laches. In Mollo, which involved an appeal taken from a judg- ment of strict foreclosure, the dispositive issue was whether the trial court lacked the authority to grant the plaintiff’s motion for summary judgment as to liabil- ity only on the ground that, in moving for summary judgment, the plaintiff had failed either to attack the legal sufficiency of the defendant’s special defenses or to submit competent evidence establishing that there were no genuine issues of material fact with regard to the defenses. Id., 784. In its operative motion for summary judgment and supporting memorandum of law, the plaintiff asserted that there were no genuine issues of material fact with respect to the allegations of its complaint. Id., 786. The motion for summary judg- ment appeared on the short calendar of March 14, 2016, for argument. Id., 787. Three days prior to the short calendar hearing, on March 11, 2016, the defendant filed (1) an answer, in which he denied that the plaintiff was entitled to any relief or that the plaintiff could establish that it was entitled to the equitable remedy of foreclo- sure, (2) special defenses asserting unclean hands, fraudulent inducement, and equitable estoppel, (3) a counterclaim, and (4) an objection to the motion for summary judgment, which was untimely pursuant to Practice Book (2016) § 17-45. Id., 787–88. In his objec- tion to the plaintiff’s motion for summary judgment, the defendant argued that his special defenses were legally sufficient and there were genuine issues of mate- rial fact relating thereto. Id., 788. At the short calendar hearing, the court overruled the defendant’s objection and granted the plaintiff’s motion for summary judg- ment.12 Id., 789. In doing so, ‘‘[t]he court made only passing references to the defendant’s special defenses . . . . The court indicated that it did not ‘see anything wrong in the making of [the promissory note at issue] except that [the defendant] made a bad bargain.’ ’’ Id., 789–90. The court subsequently rendered a judgment of strict foreclosure, from which the defendant appealed. Id., 790. On appeal, this court observed that rendering sum- mary judgment as to liability only in the plaintiff’s favor would have been proper ‘‘if the complaint and support- ing affidavits had established an undisputed prima facie case and the defendant had failed to assert any legally sufficient special defense.’’ Id., 793. This court then concluded that ‘‘the [trial] court lacked authority to render summary judgment as to liability in favor of the plaintiff with respect to the factual or legal viability of the defendant’s special defenses because the issues relating to the special defenses remained outside the scope of the plaintiff’s motion for summary judgment.’’ Id., 796. This court recognized that, as a consequence of the defendant’s ‘‘last-minute filing,’’ the plaintiff had not addressed the defendant’s special defenses in its summary judgment submissions. Id., 797. Nevertheless, in light of the defendant’s special defenses, this court determined that the plaintiff should have marked off argument on the motion for summary judgment so as to permit it to file ‘‘a new pleading addressing the special defenses with an accompanying brief and/or competent evidence sufficient to establish their legal insufficiency or that no genuine issue of material fact exists.’’13 Id., 798. As summarized by this court, ‘‘on the basis of the facts of [the] case . . . the [trial] court acted in excess of its authority when it raised and considered, sua sponte, grounds for summary judgment not raised or briefed by the plaintiff.’’ Id.; see also id., 790 n.11 (‘‘[w]e disagree with the plaintiff’s position that, despite the fact that its . . . motion for summary judgment did not address the defendant’s special defenses, the court had the authority to [decide] whether the defendant suffi- ciently [pleaded] his special defenses . . . and whether any deficiency could not be cured by replead- ing’’ (internal quotation marks omitted)). Accordingly, this court reversed the judgment rendered in favor of the plaintiff and remanded the case for further proceed- ings according to law. Id., 798. Applying the rationale of Mollo to this appeal,14 we conclude that, to invoke the trial court’s authority to grant the plaintiff’s motion for summary judgment, the plaintiff was obligated to address any special defenses to its operative complaint that the defendants had asserted properly in accordance with our rules of prac- tice. The only special defenses meeting this requirement were the five original special defenses, those being (1) failure to state a claim on which relief can be granted on the basis of the public’s use of the alleyway, (2) waiver, (3) estoppel, (4) unclean hands, and (5) laches. In its memorandum of law supporting its motion for summary judgment, the plaintiff expressly addressed the original special defense sounding in failure to state a claim; however, the plaintiff’s summary judgment sub- missions were silent as to the other four defenses. Accordingly, the court improperly adjudicated, sua sponte, the four original special defenses asserting waiver, estoppel, unclean hands, and laches, such that the court committed error in granting the plaintiff’s motion for summary judgment.15 We reach a different conclusion, however, with respect to the five new special defenses that the defen- dants asserted in the October 15, 2019 pleading. The court rejected the new special defenses on, inter alia, procedural grounds because the defendants had filed them approximately three weeks after oral argument on the parties’ cross motions for summary judgment, well beyond the filing period prescribed by Practice Book § 10-61, and without the court’s permission. In other words, the new special defenses were not prop- erly before the court, thereby absolving the plaintiff of any obligation to address them in order to invoke the court’s authority vis-à-vis its motion for summary judg- ment.16 In sum, because the plaintiff did not address the defendants’ four original special defenses asserting waiver, estoppel, unclean hands, and laches in its sum- mary judgment submissions, we conclude that the plain- tiff failed to invoke the court’s authority to grant its motion for summary judgment and that the court improperly addressed these defenses sua sponte. Accordingly, we conclude that the court improperly granted the plaintiff’s motion for summary judgment.17 B The defendants also claim that the court improperly determined that there are no genuine issues of material fact as to the plaintiff’s prescriptive easement claim. There are two subsets to this claim. First, the defen- dants assert that the court committed error in ‘‘disre- gard[ing]’’ a portion of the personal affidavit of Michael (Michael affidavit) that they filed as part of their sum- mary judgment submissions. Second, the defendants contend that, even if the court properly ‘‘disregarded’’ the relevant portion of the Michael affidavit, there are genuine issues of material fact as to whether (1) the plaintiff’s use of the alleyway was under a claim of right, and (2) the plaintiff’s use and the public’s use of the alleyway were indistinguishable. These contentions are unavailing. Before continuing with the merits of each of these contentions, we first highlight that the court did not disregard, or ignore, a portion of the Michael affidavit. To the contrary, the court expressly considered it. As we set forth in more detail in part I B 1 of this opinion, the court explained that it rejected any evidentiary value of Michael’s statement as to frequency of use because it was conclusory rather than factual and that, as a result of the lack of foundation, Michael’s opinion as to frequency of use did not constitute competent evi- dence for purposes of Practice Book § 17-46. Thus, mindful of the court’s actual treatment of the Michael affidavit, we consider the defendants’ contentions. 1 The defendants argue that the court erred in rejecting a portion of the Michael affidavit on the basis that it did not constitute competent evidence pursuant to Practice Book § 17-46.18 We disagree. Practice Book § 17-46 provides in relevant part: ‘‘Sup- porting and opposing affidavits shall be made on per- sonal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . .’’ Section 17-46 ‘‘sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on ‘personal knowledge’; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.’’ Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). ‘‘Affidavits that fail to meet the criteria of . . . § 17-46 are defective and may not be considered to support the judgment. Defects in affidavits include such things as assertions of facts or conclusory statements.’’ U.S. Bank Trust, N.A. v. Dal- las, Superior Court, judicial district of Litchfield, Docket No. CV-XX-XXXXXXX-S (May 24, 2021) (reprinted at 213 Conn. App. 487, 491, 278 A.3d 1141), aff’d, 213 Conn. App. 483, 278 A.3d 1138 (2022); see also Stuart v. Freiberg, 316 Conn. 809, 828, 116 A.3d 1195 (2015) (averments in affidavit that are conclusory are ‘‘inade- quate to defeat a summary judgment motion’’); Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793–94, 749 A.2d 1144 (2000) (‘‘[a] conclusory assertion . . . does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of a motion for summary judgment’’); Black’s Law Dic- tionary (8th Ed. 2004) p. 308 (defining ‘‘conclusory’’ as ‘‘[e]xpressing a factual inference without stating the underlying facts on which the inference is based’’). The question before us is whether the court properly rejected the relevant portion of the Michael affidavit on the basis that the averments contained therein were conclusory. The following additional procedural history is rele- vant to our disposition of this claim. In support of the plaintiff’s motion for summary judgment, the plaintiff submitted personal affidavits of Silver, Golub, and Blauner. Silver and Golub averred that they had been members of the plaintiff since 1982 and were partners at a law firm now known as Silver Golub & Teitell LLP (SGT), which moved its offices into the plaintiff’s property in 1982. Silver and Golub further averred, indi- vidually or collectively, that, between 1982 and 2014, (1) they used the claimed easement area to access the plaintiff’s parking lot ‘‘on a daily basis,’’ and (2) the claimed easement area was used ‘‘on a daily basis’’ by (a) the plaintiff’s members and employees, (b) SGT’s personnel, business invitees, family, and friends, and (c) the plaintiff’s other tenants and their invitees. Blauner averred that, since 1990, he has been employed either by the plaintiff or by SGT and that, during his years of employment prior to 2015, (1) he used the claimed easement area ‘‘regularly and routinely’’ to access the plaintiff’s parking lot and (2) other SGT personnel uti- lized the claimed easement area ‘‘on a regular daily basis . . . .’’ In opposing the plaintiff’s motion for summary judg- ment, the defendants submitted, inter alia, the Michael affidavit. Michael averred that, beginning in June, 1988, he was ‘‘primarily responsible for the day-to-day man- agement of . . . Safavieh Atlantic, LLC,’’ and that he was present at the 234 Atlantic Street and 252 Atlantic Street properties ‘‘almost daily until the early 2000s,’’ after which he ‘‘frequently visited’’ the properties, ‘‘although not on a daily basis.’’19 Michael further averred that, ‘‘during [his] time on the [d]efendants’ propert[ies], [he] saw [Silver and Blauner] use the [a]lleyway to access [the plaintiff’s property] only a couple of times,’’ that ‘‘[a]t some point, [the defendants] learned that . . . Silver would use the [a]lleyway from time to time and that . . . Blauner would use the [a]lleyway on occasion to access [the] [p]laintiff’s park- ing lot,’’ and that he ‘‘[did] not know of any additional or unique use of the [a]lleyway by [the] [p]laintiff.’’ Moreover, Michael averred that (1) other than with respect to Silver and Blauner, he did not know what vehicles the plaintiff’s owners, employees, clients, or tenants drove, and (2) there are no windows in the defendants’ buildings that overlook the alleyway. In granting the plaintiff’s motion for summary judg- ment, the court determined that Michael’s averments regarding the frequency with which the plaintiff, through its representatives, used the alleyway did not constitute competent evidence pursuant to Practice Book § 17-46 because they were ‘‘conclusory rather than factual, absent any indication of regularity and frequency of observations.’’ The court further explained: ‘‘An assertion that the principals of the defen- dants—chiefly Michael—have seen only occasional (rare) use of the claimed easement20 by principals of the plaintiff is intended to suggest, without explicitly stating, that the usage is sporadic. Stating that an observer has only seen an event infrequently does not, without more (e.g., some sense of frequency and inten- sity of observation), support a reasonable inference that the event occurs only infrequently. ‘‘From a different perspective, this is a variation of the difficulties in proving a negative—this is an attempt to prove an almost negative. Merely stating only occa- sional observations of the plaintiff’s principals or staff using the claimed easement area does not, without more, imply negation of regular use. Absent some level of monitoring of use of the alleyway and rear of the defendants’ buildings, or some equivalent ability to assert some absolute quality to the ‘occasional-ness’ of the observations, the statement of only occasional observations is essentially anecdotal rather than factual in a general sense. It may be rare to see a neighbor from the far end of the street drive past one’s residence, but that would not support a reasonable inference that that neighbor only rarely or sporadically does drive on the street—except perhaps if accompanied by a state- ment that the observer regularly spends the day in a chair facing and observing the street. There is nothing in the record suggesting much less establishing that the defendants’ principals spend extensive periods of time watching persons driving through the alleyway and into the [paved] area behind their buildings. Indeed, [Michael and Arash] testified that there are no windows on the sides of the buildings providing a direct view of the alleyway, and that there are no windows in the rears of the buildings, such that observations would only be made at times they were physically outside and presum- ably to the rear of the buildings (since there would not seem to be much reason to stand in the alleyway). Without more, it would be unreasonable to infer that someone working in a commercial enterprise with no windows facing in the relevant directions can character- ize the frequency of use of blocked from view passage- ways by specific drivers of vehicles. ‘‘Additionally, [Silver and Blauner] are only a small percentage of the class of claimed users—other employ- ees of the law firms with offices in the plaintiff’s building and their clients and invitees. And, almost trivially, per- sons going to the plaintiff’s building early in the morn- ing, before the defendants’ principals arrive, would be unseen. The defendants indicated very limited familiar- ity with the plaintiff’s personnel—apparently knowing/ recognizing only [Silver and Blauner] . . . . Therefore, they would have no way of knowing whether someone seen driving over the claimed easement area was a client or employee or otherwise an invitee to the plain- tiff’s premises unless they made a conscious effort to watch the person so as to determine the eventual desti- nation.’’21 (Emphasis omitted; footnoted added.) In sum, the court concluded that, ‘‘[a]bsent a foundation, a state- ment as to frequency of use (and, especially, [one that is] limited to only two of the people who worked in the building, and ignoring the unknown drivers [Michael] might have seen heading to the plaintiff’s building as actual or potential clients) is no better than conclusory if not speculative. Absent a foundation, statements as to claimed frequency of use must be rejected pursuant to Practice Book § 17-46.’’ The defendants maintain that the court improperly rejected Michael’s averments regarding the frequency of the plaintiff’s use of the alleyway. They argue that, in light of the evidence reflecting that Michael was present at 234 Atlantic Street and 252 Atlantic Street almost daily between 1988 and the early 2000s and charged with managing the premises, there is a ‘‘logical inference that [he] was not only inside of the premises during his work week, [but that] in order to maintain the propert[ies], he necessarily was frequently and regu- larly outside and about the grounds of the propert[ies], on the sidewalk in front of the propert[ies], in the alley- way, and outside in the parking lot and the rear of the defendants’ properties,’’ such that, ‘‘on a daily basis, he was capable of and in fact made frequent observations as to the vehicular traffic moving through the alleyway and towards the rear of the building[s].’’ The defendants also contend that Blauner’s affidavit buttresses their position, as Blauner averred that, while he was driving to and from the plaintiff’s parking lot, he ‘‘often’’ saw Michael.22 We are not persuaded. First, we do not agree that Michael’s averments logi- cally infer that he was ‘‘frequently and regularly outside’’ observing vehicles traversing the alleyway. Although Michael’s regular presence on the premises in his role as the day-to-day manager of the defendants’ business may infer that he witnessed some vehicular traffic around the defendants’ properties, we are not con- vinced that it follows, without more specific averments, that he was making ‘‘frequent observations’’ daily as proposed by the defendants. Additionally, we do not consider Blauner’s averment that he ‘‘often’’ encoun- tered Michael while driving to and from the plaintiff’s parking lot as providing a sufficient foundation to ren- der Michael’s averments as to the plaintiff’s frequency of use competent under Practice Book § 17-46. Second, assuming arguendo that the record demon- strates that Michael was making ‘‘frequent observa- tions’’ of vehicular traffic on a daily basis, the defen- dants cannot overcome the other flaw recognized by the court, namely, that Michael’s averments focused only on two individuals associated with the plaintiff, Silver and Blauner. Michael did not aver that he wit- nessed Golub or others with connections to the plaintiff utilize the alleyway infrequently; rather, he averred that he ‘‘[did] not know of any additional or unique use of the [a]lleyway by [the] [p]laintiff.’’ Moreover, Michael averred that, although he recognized the vehicles driven by Silver and Blauner, he did not know which vehicles the plaintiff’s other owners, employees, clients, or ten- ants drove. Given his limited familiarity with the plain- tiff, Michael’s averments as to the plaintiff’s frequency of use did not constitute competent evidence under Practice Book § 17-46. In sum, we conclude that the court properly rejected the relevant portion of the Michael affidavit pursuant to Practice Book § 17-46. 2 The defendants next assert that, even if the court properly rejected the relevant portion of the Michael affidavit, there are genuine issues of material fact regarding whether the plaintiff’s use of the alleyway was (1) under a claim of right, and (2) indistinguishable from the public’s use of the same.23 We disagree. a The defendants contend that the court improperly determined that there are no genuine issues of material fact as to whether the plaintiff’s use of the alleyway was under a claim of right.24 We are not persuaded. ‘‘Use made under a claim of right means use that is made without recognition of the rights of the owner of the servient tenement. . . . To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use. . . . ‘‘The claim of right requirement serves to ensure that permissive uses will not ripen into easements by pre- scription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement. . . . Nevertheless, it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified. . . . Instead, the essential quality is that the use not be made in subordination to those against whom it is claimed to be adverse.’’ (Citations omitted; internal quotation marks omitted.) Crandall v. Gould, 244 Conn. 583, 590–91, 711 A.2d 682 (1998). ‘‘The requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner . . . . It means nothing more than a [use] as of right, that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be under a claim of right.’’ (Internal quotation marks omitted.) Cirinna v. Kosciuszkiewicz, 139 Conn. App. 813, 822, 57 A.3d 837 (2012); see also Wadsworth v. Zahariades, 1 Conn. App. 373, 376, 472 A.2d 29 (1984) (‘‘[t]he term ‘under a claim of right’ denotes a user who does not recognize the rights of an owner of a servient estate’’). ‘‘[When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an infer- ence from the circumstances of the parties and the nature of the [use].’’ (Internal quotation marks omitted.) Cirinna v. Kosciuszkiewicz, supra, 822. It is well established that a ‘‘[u]se by express or implied permission or license cannot ripen into an ease- ment by prescription.’’ (Internal quotation marks omit- ted.) Gallo-Mure v. Tomchik, 78 Conn. App. 699, 705, 829 A.2d 8 (2003). ‘‘There is a distinction made in our case law between the terms ‘permission’ and ‘acquies- cence’ in the context of a prescriptive easement claim. On this point, the following excerpt from Phillips v. Bonadies, [105 Conn. 722, 726, 136 A. 684 (1927)] is particularly illuminating: ‘In the very nature of [pre- scriptive easement] case[s] . . . every such user is by permission of the owner of the servient tenement in the sense that he permits it to continue without exercis- ing his right to terminate it. A permissive user therefore as distinguished from one exercised under a claim of right is not to be inferred from mere passive acquies- cence. The facts and circumstances must be such as to warrant the inference of a license exercised in subor- dination to the rights of the owner of the soil and which he may revoke at any time.’ . . . As the Phillips court admonished, permissive use should not be confused with ‘passive acquiescence.’ The two terms have vastly different impacts. If there is permission granted to use the contested property, then the user of the land is acting in subordination to the ownership rights of the servient landowner, and the claim of prescriptive ease- ment arising out of his use is negated. In contrast, pas- sive acquiescence does not indicate such subordination and permits the finding of a prescriptive easement. Id. For this reason, Phillips emphasized the importance of an indication of subordinate conduct in determining whether there was permissive or acquiescent conduct.’’ (Emphasis omitted.) Gallo-Mure v. Tomchik, supra, 707–708. The following additional procedural history is rele- vant to our resolution of this claim. In support of the plaintiff’s motion for summary judgment, Silver and Golub averred, individually or collectively, in relevant part as follows. In 1982, the plaintiff purchased 184 Atlantic Street by way of a warranty deed recorded on the Stamford land records. Prior to purchasing 184 Atlantic Street, the plaintiff was told by the prior owner that whoever owned 184 Atlantic Street also possessed deeded easement rights to use the claimed easement area to access the property’s parking lot. After acquiring 184 Atlantic Street in 1982, and with the understanding that they had deeded easement rights to do so, Silver, Golub, and the plaintiff’s other members used the claimed easement area to access the plaintiff’s parking lot. Additionally, for more than thirty years thereafter and without seeking or receiving permission from the defendants, the plaintiff’s members, employees, busi- ness invitees, tenants, and invitees of its tenants used the claimed easement area to access the plaintiff’s park- ing lot. The plaintiff relied on this evidence to claim that there was no genuine issue of material fact that it had used the claimed easement area under a claim of right. In support of the defendants’ objection to the plain- tiff’s motion for summary judgment, Michael and Arash averred, individually or collectively, in relevant part as follows. During renovations performed on 234 Atlantic Street in 1988 and on 252 Atlantic Street in 1994, which occurred immediately after each property had been pur- chased, the defendants blocked the alleyway on several occasions for periods ranging from one day to one week. In addition, the defendants closed the alleyway periodically to perform maintenance and repaving. The plaintiff never objected to or inquired as to the alley- way’s closures. This evidence, the defendants argued, raised a genuine issue of material fact as to whether the plaintiff’s use was under a claim of right because it indicated that the plaintiff had recognized their superior right to the alleyway. In addition, the defendants argued that there was a genuine issue of material fact as to the claim of right requirement in light of evidence indicating that they gave implied permission to the plaintiff to use the alley- way as a neighborly accommodation. In support of this argument, the defendants relied on affidavits and depo- sition testimony indicating that, inter alia, (1) Michael and Arash were aware of, and did not object to, the plaintiff’s use of the alleyway, (2) Blauner exchanged pleasantries with Michael, (3) the plaintiff often allowed the defendants to use its parking lot during weekends, and (4) the defendants permitted the plaintiff to use parking spots located behind 200 Atlantic Street and 210 Atlantic Street. In granting the plaintiff’s motion for summary judg- ment, the court concluded that there were no genuine issues of material fact that the plaintiff had used the claimed easement area under a claim of right. The court determined that, irrespective of whether the plaintiff owned valid deeded easement rights to the claimed easement area, there was no genuine issue of material fact that the plaintiff believed that it owned such rights. Additionally, the court rejected the defendants’ argu- ments that the evidence indicated that (1) the plaintiff had recognized their superior right vis-à-vis the alley- way and (2) they had given the plaintiff implicit permis- sion to use the alleyway as a neighborly accommoda- tion. On appeal, the defendants assert that there are genu- ine issues of material fact as to whether the plaintiff used the alleyway under a claim of right in light of the evidence demonstrating that they occasionally closed the alleyway during the prescriptive period, thereby restricting the plaintiff’s access to the alleyway, without objection or inquiry from the plaintiff. The defendants maintain that the plaintiff’s inaction following the alley- way’s closures indicated that the plaintiff acknowl- edged their superior right to the alleyway. We disagree with the supposition that the plaintiff’s failure to respond to the alleyway’s closures, which were inter- mittent, implies that the plaintiff recognized the defen- dants’ ability to stop the plaintiff’s use. See, e.g., Frech v. Piontkowski, 296 Conn. 43, 59, 994 A.2d 84 (2010) (rejecting defendants’ claim that there was insufficient evidence adduced at trial supporting trial court’s deter- mination that plaintiffs used defendants’ reservoir under claim of right when evidence demonstrated, inter alia, that plaintiffs did not respond to defendants’ ‘‘inter- mittent attempts’’ to prevent plaintiffs’ use of reservoir). Given that ‘‘[p]rescriptive easements, unlike title gained by adverse possession, do not require exclusive use by the claimant’’; Gallo-Mure v. Tomchik, supra, 78 Conn. App. 706 n.4; we cannot conclude that the defendants’ sporadic, temporary closures of the alleyway to perform maintenance and repairs, even to the sole benefit of the defendants, operated to undermine the plaintiff’s claim of right, particularly when the record, viewed in the light most favorable to the defendants, reflects that the plaintiff resumed use of the alleyway when it reopened and the closures prevented all users, not only the plaintiff, from traveling across the alleyway. The defendants also claim that there are genuine issues of material fact because of evidence indicating that they had granted the plaintiff implied permission to use the alleyway as a neighborly accommodation. The defendants cite evidence reflecting that they did not object to the plaintiff’s known use of the alleyway, that the parties were friendly with one another, and that the parties shared parking spaces under certain circumstances. None of this evidence creates genuine issues of material fact. A landowner’s mere failure to object to a claimant’s use, notwithstanding knowledge of the claimant’s use, does not signify implied permis- sion. See id., 707–708 (discussing difference between permission and passive acquiescence). Moreover, we deem it far too speculative to infer implied permission from evidence indicating that the parties had a friendly relationship and shared parking spaces at times, which are wholly disconnected from the plaintiff’s use of the alleyway.25 In sum, we conclude that the court did not err in concluding that there were no genuine issues of mate- rial fact that the plaintiff’s use of the alleyway was under a claim of right.26 b The defendants also assert that the court improperly determined that there are no genuine issues of material fact as to whether the plaintiff’s use and the public’s use of the alleyway were indistinguishable. We reject this claim. ‘‘Where the use of a right-of-way is in common with the public, the common use is considered to negate a presumption of grant to any individual use. In such a case, the individual user must, in order to establish an independent prescriptive right, perform some act of which the servient owner is aware and which clearly indicates his individual claim of right. . . . A finding that the use made by the claimant and his predecessors in title was not different from that made by the general public is fatal to the establishment of any prescriptive right in the claimant.’’ (Citation omitted; internal quota- tion marks omitted.) Gioielli v. Mallard Cove Condo- minium Assn., Inc., 37 Conn. App. 822, 829–30, 658 A.2d 134 (1995). The following additional procedural history is rele- vant to our disposition of this claim. In its memorandum of law in support of its motion for summary judgment, acknowledging that the defendants had raised the ‘‘pub- lic use’’ doctrine as a special defense, the plaintiff argued that there was no genuine issue of material fact that its use of the claimed easement area was distin- guishable from the public’s use because, unlike the plaintiff, the public never used the entirety of the claimed easement area for the purpose of reaching the plaintiff’s parking lot. In support of the defendants’ objection to the plain- tiff’s motion for summary judgment, Arash and Michael averred that, following the purchase of 234 Atlantic Street in 1988, they observed members of the general public use the alleyway (1) to access parking spaces located in a portion of the paved area behind 200 Atlan- tic Street and 210 Atlantic Street, some of whom would then walk to patronize businesses fronting on Atlantic Street, or (2) as a shortcut to reach a nearby mall via the driveway providing ingress and egress to the paved area. They further averred that they did not observe the plaintiff use the alleyway in any ‘‘distinct’’ manner relative to the general public. The defendants relied on this evidence to argue that there were genuine issues of material fact as to whether the plaintiff’s use of the alleyway was indistinguishable from the public’s use. In granting the plaintiff’s motion for summary judg- ment, the court determined that there were no genuine issues of material fact that the plaintiff’s use of the alleyway and the paved area, collectively, was distin- guishable from the public’s use of the same. The court reasoned that, although there was a partial overlap in the routes used by the plaintiff and the public to traverse the alleyway and the paved area, there was a segment of the paved area adjacent to the plaintiff’s parking lot that the public did not utilize, which was sufficient to distinguish the plaintiff’s use of the alleyway and the paved area from that of the public’s.27 On appeal, the defendants do not contest the court’s determination that the plaintiff used a portion of the paved area that the public did not, which was the foun- dation of the court’s conclusion that there was no genu- ine issue of material fact that the plaintiff’s use of the alleyway and the paved area was distinguishable from the public’s use. Instead, the defendants contend that the court committed error by failing to compare the plaintiff’s use and the public’s use of the alleyway only, without considering the manner in which the paved area was utilized. The defendants iterate their position that the plaintiff owns a deeded easement right to a portion of the paved area and, as such, the plaintiff cannot establish a prescriptive easement over the same. See footnote 23 of this opinion. Consequently, the defen- dants posit, any usage of the paved area is irrelevant to the issue of whether a prescriptive easement exists as to the alleyway. The defendants further contend that, when the issue is properly framed, there are genuine issues of material fact as to whether the plaintiff’s use and the public’s use of the alleyway were indistinguish- able. The defendants’ claim merits only a brief discussion. In its operative complaint, the plaintiff alleged that it had acquired a prescriptive easement over both the alleyway and a portion of the paved area for the purpose of accessing its parking lot from Atlantic Street, and the plaintiff’s revised motion for summary judgment sought summary judgment as to that claim. At no point prior to asserting their amended second special defense in the October 15, 2019 pleading did the defendants claim that the plaintiff has a deeded easement right to a portion of the paved area,28 and the court deemed that defense to be procedurally improper.29 Thus, the court conducted the correct analysis in comparing the uses by the plaintiff and the public of the alleyway and the paved area collectively, and, therefore, we reject the defendants’ claim. II In addition to challenging the trial court’s decision granting the plaintiff’s motion for summary judgment, the defendants claim that the court improperly denied their cross motion for summary judgment. The limited basis of this claim is that, as a matter of law, the plaintiff is precluded from asserting both deeded and prescrip- tive easement rights, and, therefore, the defendants are entitled to summary judgment. We reject this claim. The following additional procedural history is rele- vant here. After withdrawing counts one and three of its amended complaint, which alleged deeded easement rights to the alleyway and a portion of the paved area, respectively, the plaintiff filed its operative, one count complaint alleging a prescriptive easement right to the claimed easement area. The operative complaint set forth certain allegations referencing deeded rights vis- à-vis the claimed easement area. Paragraph 7 alleged that the prior owner of 184 Atlantic Street informed the plaintiff ‘‘that 184 Atlantic [Street] had deeded rights of access to Atlantic Street over the [claimed easement area].’’ Paragraphs 8 and 9 alleged that the deeds of prior owners of 184 Atlantic Street contained ‘‘easements authorizing [the] use of the [claimed easement area] . . . .’’ Paragraph 25 alleged: ‘‘The plaintiff’s original warranty deed from [the prior owner of 184 Atlantic Street] inadvertently failed to properly reflect the plain- tiff’s right to use the [claimed easement area] to travel between Atlantic Street and the 184 Atlantic [Street] parking lot. Although the inadvertent error in the deed was corrected by a subsequent deed from [the prior owner of 184 Atlantic Street] recorded on the Stamford land records in 2015, the defendants take the position that the easement rights provided in the plaintiff’s 2015 (corrected) deed are invalid and that the plaintiff has no deeded right to use the [claimed easement area].’’ During oral argument on the parties’ cross motions for summary judgment, for the first time, the defendants argued that the plaintiff’s prescriptive easement claim was untenable in light of the allegations in paragraphs 7, 8, 9, and 25 of its operative complaint, which, according to the defendants, indicated that the plaintiff was alleging deeded easement rights. The defendants maintained that the plaintiff could not assert both pre- scriptive and deeded easement rights, as the deeded easement right would negate the adversity element of a prescriptive easement claim. In response, the plaintiff argued that the purpose of paragraphs 7, 8, 9, and 25 of the operative complaint was to set forth ‘‘the belief of [the plaintiff] that [it] had rights to use [the claimed easement area] and that [such use] was adverse to the other property owner[s] and that [the plaintiff] didn’t need permission [and] never asked for permission.’’ The plaintiff further iterated that it ‘‘[chose] to proceed solely on the prescriptive easement matter here.’’ On the record, the court questioned whether the plaintiff was asserting deeded easement rights, observ- ing that the plaintiff had withdrawn and abandoned counts one and three of its prior complaints. The court further construed the allegations in the operative com- plaint referencing deeded easement rights as indicating that (1) the plaintiff held a belief that it had deeded easement rights to the claimed easement area and (2) there is a dispute as to whether such deeded easement rights exist, such that the plaintiff decided not to pursue a claim seeking to establish deeded easement rights. Additionally, the court rejected, as speculative, an argu- ment raised by the defendants that the plaintiff could seek to resurrect its deeded easement claims if its pre- scriptive easement claim failed. Approximately three weeks following argument on the parties’ cross motions for summary judgment, the defendants filed the October 15, 2019 pleading directed to the plaintiff’s operative complaint. In their amended first special defense, the defendants alleged that the plaintiff’s prescriptive easement claim failed because, in its original complaint and in its amended complaint, the plaintiff affirmatively alleged that it had deeded easement rights to the claimed easement area. In granting the plaintiff’s motion for summary judg- ment, the court rejected the October 15, 2019 pleading, including the defendants’ amended first special defense, as procedurally improper. See part I A of this opinion. In further discussing the amended first special defense, the court determined that (1) the plaintiff was not pro- hibited from pleading both prescriptive and deeded easement rights as alternative theories, and (2) the plaintiff had abandoned its deeded easement claims, instead pursuing its prescriptive easement claim only, such that the existence of deeded easement rights was no longer an issue before the court and the ‘‘historical existence of past claims of deeded easement rights is not a defense to the prescriptive easement claim before the court.’’ On appeal, the defendants assert that, as a matter of law, the plaintiff cannot seek to establish both deeded and prescriptive easements, and, therefore, they are entitled to summary judgment vis-à-vis their cross motion for summary judgment.30 This claim is untenable for two reasons. First, this issue was not properly raised before the trial court. Nowhere in their summary judgment submis- sions did the defendants assert that they were entitled to summary judgment on this ground. The defendants presented this issue for the first time during oral argu- ment on the parties’ cross motions for summary judg- ment, and they later raised it in their October 15, 2019 pleading by way of their amended first special defense, which the court deemed to be procedurally improper. The defendants do not challenge on appeal the court’s rejection of this claim on procedural grounds, and, thus, we need not reach the merits of this claim. Second, assuming arguendo that the defendants prop- erly raised this claim before the trial court, the claim fails because the plaintiff abandoned its deeded ease- ment claims by withdrawing counts one and three of its amended complaint and, thereafter, by filing its oper- ative complaint alleging a prescriptive easement over the claimed easement area. Whether the plaintiff pre- viously had alleged deeded easement rights is of no moment.31 Moreover, insofar as the operative complaint contained allegations referencing deeded easements, we construe those allegations as (1) evincing a belief by the plaintiff that it possessed deeded easement rights during the prescriptive period, which was germane to the claim of right element of the plaintiff’s prescriptive easement claim, and (2) recognizing that there is a dis- pute as to whether the plaintiff owns deeded rights, such that the plaintiff was abandoning its pursuit of its deeded easement claims in favor of a prescriptive easement claim. Thus, after it had filed its operative complaint, the plaintiff was not alleging both deeded and prescriptive easement rights simultaneously. In sum, we reject the defendants’ claim that the court improperly denied their cross motion for summary judg- ment. The judgment is reversed only as to the decision granting the plaintiff’s motion for summary judgment and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects. In this opinion the other judges concurred. 1 ‘‘The denial of a motion for summary judgment is ordinarily not an appealable final judgment; however, if parties file cross motions for summary judgment and the court grants one and denies the other, this court has jurisdiction to consider both rulings on appeal. See Misiti, LLC v. Travelers Property Casualty Co. of America, 132 Conn. App. 629, 630 n.2, 33 A.3d 783 (2011), [aff’d, 308 Conn. 146, 61 A.3d 485 (2013)].’’ Hannaford v. Mann, 134 Conn. App. 265, 267 n.2, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42 A.3d 391 (2012). 2 For ease of discussion, we address the defendants’ claims in a different order than they are presented in the defendants’ principal appellate brief. 3 We note that there is evidence in the record suggesting that 210 Atlantic Street was purchased sometime between 2005 and 2007. In their respective summary judgment submissions filed in this matter, however, the parties appeared to agree that the defendants acquired 210 Atlantic Street in 2014. Thus, we consider it to be undisputed that 210 Atlantic Street was acquired in 2014. 4 The parties do not appear to dispute that, in addition to the alleyway, there is a driveway that provides ingress to and egress from the paved area, although that driveway does not connect directly to Atlantic Street. 5 The second, third, fourth, and fifth special defenses were identical with respect to all three counts of the plaintiff’s original complaint. The first special defense set forth distinct allegations as to each count. 6 The court also determined that, insofar as the defendants had moved for summary judgment on the first and third counts of the plaintiff’s amended complaint, which had been withdrawn, the defendants’ cross motion for summary judgment was moot. 7 Specifically, the court ruled that the plaintiff had a prescriptive easement over (1) the full width of the entire alleyway and (2) a ten foot path in the portion of the paved area behind 210 Atlantic Street and 234 Atlantic Street that continued through the portion of the paved area behind 200 Atlantic Street, excluding a segment that had been used for parking, and up to the boundary of the plaintiff’s property. 8 ‘‘Practice Book § 17-45 (a) provides: ‘A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents.’ ’’ Kinity v. US Bancorp, 212 Conn. App. 791, 836 n.14, 277 A.3d 200 (2022). 9 Practice Book § 10-61 provides: ‘‘When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.’’ 10 Pursuant to Practice Book § 10-60 (a), except as provided in Practice Book § 10-66, which governs amendments to statements of amounts in demand, a pleading may be amended ‘‘(1) [b]y order of judicial authority; or (2) [b]y written consent of the adverse party; or (3) [b]y filing a request for leave to file an amendment . . . .’’ 11 The court determined that the five original special defenses reasserted by the defendants in the October 15, 2019 pleading were not procedurally improper. 12 In Mollo, the plaintiff’s counsel was present at the beginning of the short calendar hearing, but the defendant’s counsel was not. Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 788. The plaintiff’s counsel argued that the defendant’s objection to its motion for summary judgment as to liability only was untimely. Id., 788–89. Alternatively, if the court were to consider the defendant’s objection, the plaintiff’s counsel argued that the plaintiff should be granted additional time to amend its motion for summary judg- ment. Id., 789. Without the defendant’s counsel present, the court overruled the defendant’s objection and granted the plaintiff’s motion. Id. Later that day, while the plaintiff’s counsel was still present, the defendant’s counsel arrived, and the court agreed to rehear argument. Id. After hearing additional argument, the court again overruled the defendant’s objection and main- tained its decision granting the plaintiff’s motion. Id. 13 This court noted that it did not countenance the defendant’s late filing of his objection to the plaintiff’s motion for summary judgment as to liability only, but that the defendant’s conduct did ‘‘not justify the [trial] court’s consideration of the plaintiff’s motion as having adequately raised and refuted the special defenses so as to justify granting summary judgment.’’ Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 795 n.14. 14 Although Mollo concerned an appeal filed in a foreclosure action; Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 783; we do not read Mollo as limiting its rationale to foreclosure matters only. 15 The plaintiff argues that any error with respect to the four original special defenses is harmless because the court rejected them on the merits, which the defendants do not address on appeal. This argument is unavailing, however, because Mollo instructs that the court could not consider, sua sponte, the merits of these special defenses without the plaintiff addressing them in its summary judgment submissions. See Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 798. 16 The defendants do not challenge on appeal the court’s rejection of the new special defenses as procedurally improper and, thus, we do not discuss the propriety of that ruling. Additionally, we note that the amended ninth and tenth special defenses, individually or collectively, alleged that the defendants had given the plaintiff implied permission to use the claimed easement area and that the plaintiff had recognized the defendants’ superior claim to the claimed easement area. Although these issues were not properly asserted as special defenses, such that the plaintiff was not obligated to discuss them to invoke the court’s authority as to its motion for summary judgment, these issues were addressed in the parties’ respective summary judgment submissions and analyzed elsewhere in the court’s decision. See part I B 2 a of this opinion. 17 Consistent with this court’s rescript in Mollo, we reverse the judgment of the trial court granting the plaintiff’s motion for summary judgment and remand the case for further proceedings according to law. It will remain within the trial court’s discretion on remand as to whether to grant leave for the filing of (1) an amended answer and special defenses to the extent leave is requested and required under Practice Book § 10-60 (a) (3) and/or (2) any additional motions for summary judgment under the circumstances of the present case. 18 The defendants also claim that the court improperly concluded that the portion of the Michael affidavit at issue could be disregarded pursuant to the ‘‘sham affidavit’’ rule, which ‘‘refers to the trial court practice of disregarding an offsetting affidavit in opposition to a motion for summary judgment that contradicts the affiant’s prior deposition testimony’’ and which has yet to be adopted expressly by our appellate courts. (Internal quotation marks omitted.) Kenneson v. Eggert, 176 Conn. App. 296, 310, 170 A.3d 14 (2017). Briefly, we note that, in replying to the defendants’ objection to its motion for summary judgment, the plaintiff asserted that the Michael affida- vit conflicted with Michael’s prior deposition testimony, which was elicited on December 12, 2018, and, thus, constituted a sham affidavit. In its decision, the court stated in a footnote that, ‘‘[w]ere the sham affidavit rule [to] be adopted in Connecticut . . . the court would have no hesitation about determining it to be applicable here’’; however, the court expressly declined to adopt and to apply the rule in this case, instead ‘‘prefer[ring] to rely on established rules of evidence’’ and determining that the relevant portion of the Michael affidavit was not competent evidence pursuant to Practice Book § 17-46. Accordingly, we need not address the defendants’ claim regarding the sham affidavit rule, and we leave for another day the question of whether the rule is a viable doctrine in Connecticut. 19 The defendants also submitted the transcript of Michael’s deposition taken on December 12, 2018, which contains testimony in line with his averments regarding his responsibilities as to Safavieh Atlantic, LLC, and his presence on the defendants’ properties. 20 Although the court used the phrases ‘‘claimed easement’’ and ‘‘claimed easement area’’ in its analysis, we note that Michael’s averments concerned only the plaintiff’s use of the alleyway rather than the claimed easement area as a whole. 21 The court also stated that, in asserting its prescriptive easement claim, the plaintiff was not contending that the claimed easement area was the sole means providing access to its parking lot but, rather, that, as a result of the configuration of the surrounding roads, the claimed easement area provided the only reasonable route to the plaintiff’s parking lot for drivers traveling southbound on Atlantic Street. As the court further explained, ‘‘[t]he failure to observe particular drivers using the alleyway . . . could only be of any significance if it were known that the driver was headed southbound on Atlantic Street—a northbound driver likely would never be seen by the defendants’ principals or witnesses but the failure to observe such individuals would be of no significance to the regularity of use.’’ 22 Blauner averred in relevant part that, ‘‘[i]n or about the late 1990s, I became acquainted with Michael . . . . I often saw [Michael] as I was driving on over the paved area behind 234 Atlantic [Street] to or from the [plaintiff’s] parking lot. . . . We frequently exchanged pleasantries . . . . There is no question that he observed me driving over his properties (includ- ing up and down the alleyway) to and from [the plaintiff’s] parking lot.’’ 23 The defendants also assert that there are genuine issues of material fact as to whether the plaintiff has a deeded easement right to a portion of the paved area, which, the defendants posit, would defeat the plaintiff’s prescriptive easement claim. The defendants raised this issue for the first time by way of their amended second special defense asserted in their October 15, 2019 pleading, which the court rejected as procedurally improper. See part I A of this opinion. The defendants do not claim on appeal that the court committed error in rejecting this issue on procedural grounds. Thus, although the court discussed the merits of the amended second special defense after it had deemed the defense to be procedurally defective and determined that there was no evidence of a deeded easement, we decline to address the defendants’ claim that there exist genuine issues of material fact regarding a deeded easement because of their failure to challenge the other, procedural basis for the court’s disposition of this issue. 24 The defendants limit their claim to the alleyway as opposed to the claimed easement area as a whole. 25 In support of their argument, the defendants rely in part on evidence reflecting an agreement reached by the parties that enabled the defendants to use the plaintiff’s parking lot in exchange for the plaintiff using parking spaces located to the rear of 200 Atlantic Street. Such evidence, however, is irrelevant because it is undisputed that 200 Atlantic Street was purchased in 2014, well after the plaintiff had acquired the prescriptive easement in 1997. 26 The defendants claim that Sachs v. Toquet, 121 Conn. 60, 183 A. 22 (1936), supports their claim. We disagree. In Sachs, the parties were abutting landowners who, by way of deed, had the right to use a common, ten foot driveway without interference from one another. Id., 62–63. One of the issues addressed by our Supreme Court on appeal was whether the trial court’s subordinate findings supported its conclusion that the plaintiff had acquired a prescriptive right ‘‘to permit vehicles to stand upon the driveway for such reasonable length of time as would reasonably permit the loading and unloading of goods at the rear door of his store.’’ Id., 65–66. Our Supreme Court concluded that ‘‘[t]he trial court ha[d] not found that [the] plaintiff’s use was exercised under a claim of right or that it was adverse. It ha[d] found facts which clearly establish that it was not of that character. The temporary parking of vehicles in the driveway while loading or unloading might have continued for years without interfering with the use of the driveway by the defendants, and such parking would be more consistent with a permissive use as a matter of neighborly accommodation than an invasion of the defendants’ rights under a claim of right.’’ Id., 66–67. More- over, the trial court found that, except for one instance that occurred shortly before the filing of the action, the plaintiff moved vehicles parked on the driveway on request to allow other vehicles to pass, which, our Supreme Court determined, ‘‘disclose[d] that [the] plaintiff’s use of the driveway for parking was accompanied by a recognition of the right of the defendants to pass and repass without interference by such parking, and it is inconsistent with the claim that such parking was exercised under a claim of right.’’ Id., 67. In short, we do not construe the circumstances of the present case to be akin to the facts in Sachs demonstrating permissive use and recognition of the defendants’ right as to the property. 27 The court also seemed to question whether the defendants’ evidentiary submissions as to whether there was a consistent public use of the alleyway and the paved area were conclusory rather than factual. Insofar as the court deemed their evidentiary submissions to be conclusory, the defendants argue that the court’s determination was improper. We do not construe the court’s decision to reflect that the court, in fact, rejected the defendants’ evidentiary submissions in this regard. Indeed, the court’s analysis focused on whether there was a distinction between the public’s use and the plaintiff’s use. Thus, we need not address this claim. 28 In their principal appellate brief, the defendants represent that they never disputed that the plaintiff has a deeded easement right to use a portion of the paved area to access its parking lot. As the court recognized in its memorandum of decision, however, that representation is belied by the record. 29 As we explained in footnote 23 of this opinion, we decline to examine whether there is a genuine issue of material fact as to whether the plaintiff has a deeded easement right to a portion of the paved area. 30 This claim is distinct from the defendants’ separate claim, concerning the summary judgment rendered in favor of the plaintiff, that there are genuine issues of material fact as to whether the plaintiff owns a deeded easement right to a portion of the paved area. See footnote 23 of this opinion. This distinction is further delineated by the amended first and second special defenses asserted by the defendants. In the amended first special defense, the defendants alleged that the plaintiff could not maintain a prescriptive easement claim because, in its original complaint and in its amended com- plaint, the plaintiff pleaded that it owned deeded easement rights. In the amended second special defense, the defendants alleged that, in fact, the plaintiff owned deeded easement rights. 31 The defendants reassert their argument that the plaintiff could seek to reinstate its deeded easement claims in the event that its prescriptive ease- ment claim is unsuccessful. Like the trial court, we reject this contention as purely speculative.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488221/	********************************************* The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ********************************************* DAVID TAYLOR v. COMMISSIONER OF CORRECTION (AC 44665) Prescott, Suarez and Bishop, Js. Syllabus The petitioner, a citizen of the United Kingdom who had been convicted of murder, sought a writ of habeas corpus, claiming, inter alia, that his constitutional rights to procedural due process and equal protection were violated when the respondent Commissioner of Correction assigned a certain risk level to him, classified him as a public safety risk and limited his access to certain prison rehabilitative programs and other services. The habeas court dismissed the petition, concluding that it lacked subject matter jurisdiction over the petitioner’s claims. On the granting of certification, the petitioner appealed to this court. Held: 1. The habeas court properly dismissed the habeas petition with respect to the petitioner’s procedural due process claim, the petitioner having failed to sufficiently allege, under the stigma plus test, a cognizable liberty interest over which the court had subject matter jurisdiction; contrary to the petitioner’s contention that being assigned a certain risk level and classified as a public safety risk satisfied the stigma portion of the stigma plus test, he failed to sufficiently allege facts that, if taken as true, established stigma, as it appeared that the respondent was mindful that the petitioner was a British citizen subject to deportation upon completion of his sentence, and it was likely that his conviction of murder itself was the source of any stigma of being a public safety risk. 2. The habeas court improperly dismissed the petitioner’s equal protection claim, in which he sufficiently alleged that he was treated differently from similarly situated prisoners because of his alienage and British citizenship; in the present case, because the habeas petition alleged that the respondent denied the petitioner access to rehabilitative programs and other services that were available to inmates who are United States citizens, the petitioner sufficiently alleged a cognizable violation of his right to equal protection, and, as alienage and national origin are suspect classifications, he sufficiently pleaded that the applicable statutes (§§ 18- 81w, 18-81x and 18-81z), as applied, burdened a suspect class of persons, notwithstanding the respondent’s narrow interpretation of the habeas petition as asserting a class of one claim. 3. The habeas court improperly dismissed the petitioner’s claim that he was subjected to cruel and unusual punishment as a result of the respondent’s management of the COVID-19 virus at the correctional facility in which the petitioner was incarcerated; the petitioner sufficiently pleaded that the COVID-19 virus and the conditions of his confinement put his life at risk because of his preexisting medical conditions and that the respon- dent was deliberately indifferent to and disregarded that risk because social distancing and the use of personal protective equipment were not enforced among inmates or prison staff. Argued May 10—officially released November 22, 2022 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Bhatt, J., granted the respon- dent’s motion to dismiss the petition and rendered judg- ment thereon, from which the petitioner, on the granting of certification, appealed to this court; thereafter, the court, Bhatt, J., issued an articulation of its decision. Reversed in part; further proceedings. Alexander T. Taubes, assigned counsel, for the appel- lant (petitioner). Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent). Opinion BISHOP, J. The petitioner, David Taylor,1 appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus pursuant to Practice Book § 23-29 (2) and (5).2 On appeal, the petitioner claims that the court incorrectly dismissed his claims that the respondent, the Commis- sioner of Correction, violated his constitutional rights to (1) procedural due process, (2) equal protection of the law, and (3) freedom from cruel and unusual punish- ment. We disagree that the court improperly dismissed the petitioner’s first claim. We agree, however, that the court improperly dismissed his second and third claims. We therefore affirm, in part, and reverse, in part, the judgment of the habeas court and remand the case for further proceedings consistent with this opinion. The following procedural history and facts, as alleged in the petitioner’s second amended petition (operative petition),3 or as otherwise undisputed in the record, are relevant to this appeal.4 The petitioner, a citizen of the United Kingdom, is currently incarcerated at the Osborn Correctional Institution (Osborn) in Somers, serving a term of twenty-five years of incarceration for the crime of murder. In his operative petition, the petitioner asserts, in essence, three claims. The first claim asserts that the respondent violated the petitioner’s right to procedural due process. According to the petition, the respondent assigned the petitioner an overall risk score of three and a detainer score of three.5 The respondent also labeled the peti- tioner ‘‘a public safety risk.’’ An Immigration and Natu- ralization Service and Immigration and Customs Enforcement detainer6 was issued against the petitioner in 2010. As a result of this detainer, the petitioner faces deportation upon the completion of his sentence. The petitioner alleges that, by classifying him as ‘‘a public safety risk’’ and improperly assigning him a detainer score of three, the respondent has violated his right to procedural due process. Specifically, the petitioner contends that those classifications are false, stigmatiz- ing, and result in punishment that is qualitatively differ- ent from that characteristically suffered by a person convicted of a crime. According to the petitioner, because he has been improperly classified, he has been denied rehabilitative programs, and his reputation has been, and will continued to be, injured. The petitioner’s second claim asserts an equal protec- tion violation.7 The petitioner claims that he is being denied equal protection of the laws because the respon- dent has limited his access to rehabilitative programs that are available to all inmates pursuant to General Statutes §§ 18-81w,8 18-81x9 and 18-81z10—including reentry and discharge planning, and community release—because he is a British citizen. The petitioner’s third claim asserts that the respon- dent has violated his right under the eighth amendment to be free from cruel and unusual punishment. The petitioner, who is almost sixty-seven years old, alleges that the COVID-19 virus poses a sufficiently and objec- tively serious risk to his life because the virus has been particularly deadly for institutionalized populations and because he has numerous preexisting medical condi- tions. The petitioner further alleges that the respondent has acted with deliberate indifference toward him by failing to follow Centers for Disease Control and Pre- vention (CDC) guidelines—specifically, by failing to enforce mask wearing and social distancing.11 In his prayer for relief, the petitioner ‘‘ask[ed] the court to order the commissioner to: ‘‘(1) Reduce [his] detainer score to a 1 and [his] over- all score to a 2, which would make [him] eligible for community release and other relevant programs. ‘‘(2) Grant [him], as a low risk offender, and future deportee with over 85 [percent] of [his] sentence served, with a positive institutional record, community release here or in the [United Kingdom] under [General Stat- utes] § 18-91a, because of [his] deteriorating health, age, and high risk for COVID-19 with complications. ‘‘(3) [Afford him] [a]ny other relief the court deems just and proper under the circumstances.’’ On September 14, 2020, the respondent filed a motion to dismiss the petition pursuant to Practice Book § 23- 29 (1), (2) and (5).12 In his memorandum of law in support of the motion, the respondent claimed that the court lacked subject matter jurisdiction over the petition because the petitioner did not have a protected liberty interest in a certain classification and because the petition failed to state a claim on which habeas relief could be granted.13 On October 16, 2020, the peti- tioner filed an objection to the respondent’s motion to dismiss in which he argued that the court had subject matter jurisdiction over his petition because he suffi- ciently had alleged that the respondent had violated his rights to procedural due process, equal protection, and freedom from cruel and unusual punishment. On December 8, 2020, a virtual hearing on the respondent’s motion to dismiss was held. On January 19, 2021, the court issued a memorandum of decision in which it dismissed, pursuant to Practice Book § 23-29 (2) and (5), the entirety of the operative petition.14 On January 27, 2021, the petitioner filed a petition for certification to appeal, which the court granted. On February 16, 2021, the petitioner filed a motion to reargue, which the court denied on February 17, 2021. This appeal followed.15 Before turning to the petitioner’s claims, we first set forth the relevant standard of review and legal princi- ples that guide our analysis. ‘‘The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. . . . In order to invoke the trial court’s subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty.’’ (Internal quotation marks omitted.) Byrd v. Commissioner of Correction, 177 Conn. App. 71, 82, 171 A.3d 1103 (2017). ‘‘[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . However, [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. . . . It is fundamen- tal in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings . . . to decide claims not raised.’’ (Citation omitted; internal quotation marks omitted.) Vitale v. Commissioner of Correction, 178 Conn. App. 844, 850–51, 178 A.3d 418 (2017), cert. denied, 328 Conn. 923, 181 A.3d 566 (2018). To the extent the respondent claims that the petition is legally insufficient, our review requires us to interpret the pleadings. The interpretation of pleadings involves an assessment of whether they are legally sufficient, and, therefore, our review is plenary. See, e.g., Woods v. Commissioner of Correction, 197 Conn. App. 597, 607, 232 A.3d 63 (2020) (‘‘[T]he interpretation of plead- ings is always a question of law for the court . . . . Our review of the [habeas] court’s interpretation of the pleadings therefore is plenary. . . . [T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it pro- ceeded, and do substantial justice between the parties. . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the [petition] is insufficient to allow recovery.’’ (Emphasis omitted; internal quotation marks omitted.)), appeal dismissed, 341 Conn. 506, 267 A.3d 193 (2021). Practice Book § 23-29, which governs motions to dis- miss habeas petitions, ‘‘serves, roughly speaking, as the analog to Practice Book §§ 10-30 and 10-39, which, respectively, govern motions to dismiss and motions to strike in civil actions.’’ Gilchrist v. Commissioner of Correction, 334 Conn. 548, 561, 223 A.3d 368 (2020). ‘‘[A]s it would do in evaluating the allegations in a civil complaint, in evaluating the legal sufficiency of allega- tions in a habeas petition, a court must view the allega- tions in the light most favorable to the petitioner, which includes all facts necessarily implied from the allega- tions.’’ Finney v. Commissioner of Correction, 207 Conn. App. 133, 142, 261 A.3d 778, cert. denied, 339 Conn. 915, 262 A.3d 134 (2021). ‘‘Whether a habeas court properly dismissed [the operative petition] for a writ of habeas corpus presents a question of law over which our review is plenary.’’ Gilchrist v. Commissioner of Correction, supra, 334 Conn. 553. We therefore must ‘‘decide whether the court’s conclusions are legally and logically correct and supported by the facts in the record.’’ (Internal quota- tion marks omitted.) Boria v. Commissioner of Correc- tion, 186 Conn. App. 332, 342, 199 A.3d 1127 (2018), rev’d on other grounds, 345 Conn. 39, 282 A.3d 433 (2022). I The petitioner first claims that the court improperly dismissed his petition for a writ of habeas corpus because the allegations within his petition regarding his classification status established the denial of a pro- tected liberty interest without due process. Specifically, the petitioner contends that the petition’s allegations sufficiently alleged a claim under the stigma plus test, and, therefore, sufficiently alleged a cognizable liberty interest invoking the subject matter jurisdiction of the court. We are unpersuaded. We first set forth the legal principles underlying our determination of the petitioner’s first claim. ‘‘In order to state a claim for a denial of procedural due process . . . a prisoner must allege that he possessed a pro- tected liberty interest, and was not afforded the requi- site process before being deprived of that liberty inter- est. . . . A petitioner has no right to due process . . . unless a liberty interest has been deprived . . . . Our first inquiry, therefore, is whether the petitioner has alleged a protected liberty interest. That question impli- cates the subject matter jurisdiction of the habeas court.’’ (Citation omitted; internal quotation marks omitted.) Anthony A. v. Commissioner of Correction, supra, 326 Conn. 674–75. In Anthony A., our Supreme Court adopted the stigma plus test used by federal courts to determine whether the petitioner had alleged a cognizable liberty interest in a prison classification.16 Id., 680–81. In that case, the petitioner sought a writ of habeas corpus, claiming that the Department of Correction (department) improperly had classified him as a sex offender without providing him with procedural due process. Id., 672. Our Supreme Court observed that, ‘‘in certain situations, a different inquiry is appropriate to determine whether the due process clause directly confers a liberty interest on inmates.’’ (Internal quotation marks omitted.) Id., 679. ‘‘Specifically . . . where a state action has stigmatizing consequences for a prisoner and results in a punishment that is qualitatively different from that characteristically suffered by a person convicted of crime, the protected liberty interest arises from the due process clause directly.’’ (Citation omitted; internal quotation marks omitted.) Id. The court explained that ‘‘an inmate raising a due process claim pursuant to the stigma plus test . . . also must allege the falsehood of the stigmatizing label or classification.’’ Id., 680. The court in Anthony A. determined that the stigma plus test was applicable in the case before it, in which the petitioner had ‘‘alleged that he was stigmatized when the respondent wrongfully classified him as a sex offender, and allege[d] as the ‘plus’ that he suffered various negative consequences, including being com- pelled to participate in treatment or risk forfeiting good time credits and parole eligibility . . . .’’ Id. Thus, the court continued, its inquiry ‘‘focuse[d] on whether the allegations of the petition demonstrate[d] that the clas- sification was wrongful and stigmatized the petitioner, and that the consequences suffered by the petitioner were ‘qualitatively different’ from the punishments usu- ally suffered by prisoners, so that they constituted a major change in the conditions of confinement amounting to a grievous loss.’’ Id., 680–81. The court determined that the petitioner sufficiently had alleged a claim under the stigma plus test and, thus, sufficiently had alleged a protected liberty interest to invoke the habeas court’s subject matter jurisdiction. Id., 686. Accordingly, to plead a stigma plus claim, a petitioner must allege facts demonstrating that a ‘‘classification was wrongful and stigmatized the petitioner, and that the consequences suffered by the petitioner were ‘quali- tatively different’ from the punishments usually suf- fered by prisoners, so that they constituted a major change in the conditions of confinement amounting to a grievous loss.’’ Id., 681. Following Anthony A., this court has held that the stigma plus test was satisfied only where, like in Anthony A., a petitioner improperly was classified as a sex offender. Compare Carolina v. Commissioner of Correction, 192 Conn. App. 296, 302, 217 A.3d 1068 (petitioner sufficiently alleged protected liberty interest under stigma plus test because he was classified as sex offender, which court determined implicated liberty interest), cert. denied, 334 Conn. 909, 221 A.3d 43 (2019), with Vitale v. Commissioner of Correction, supra, 178 Conn. App. 870–71 (petition failed to sufficiently allege stigma plus claim because petition did not allege classi- fication as sex offender was false and because labeling inmate as sex offender and providing recommendation for treatment, in absence of negative consequences for failure to participate in such treatment, was insufficient to show consequences petitioner suffered were qualita- tively different from punishments usually suffered by prisoners), and Stephenson v. Commissioner of Correc- tion, 203 Conn. App. 314, 327–31, 248 A.3d 34 (petition failed to sufficiently allege stigma plus claim where crux of petition constituted attempt by petitioner to advance his parole eligibility and where petition did not identify consequences qualitatively different from punishments usually suffered by prisoners), cert. denied, 336 Conn. 944, 249 A.3d 737 (2021). In the present case, the petitioner contends that being classified as a ‘‘public safety risk’’ and being assigned a certain classification score is sufficient to satisfy the ‘‘stigma’’ portion of the stigma plus test because these classifications injure his reputation. The petitioner alleged, in his operative petition, that the classifications placed on him by the respondent ensure that he will be known as a public safety risk in the United Kingdom for years to come, which, according to the petitioner, will potentially have negative effects on him and his family, including potentially ‘‘disenfranchising’’ him and ‘‘making [him] a ward of the state . . . .’’ Although the petitioner alleges that the classifications are stigmatizing and will result in harm to his reputation, he fails to sufficiently allege that these classifications are ‘‘uniquely stigmatizing’’ or akin to being classified as a sex offender. See Anthony A. v. Commissioner of Correction, supra, 326 Conn. 681 (‘‘[T]he first part of the test—whether it is stigmatizing to be classified as a sex offender—may be dispatched with ease and rela- tively little analysis. That classification is uniquely stig- matizing. . . . We can hardly conceive of a state’s action bearing more stigmatizing consequences than the labeling of a prison inmate as a sex offender. . . . One need only look to the increasingly popular Megan’s Laws, whereby states require sex offenders to register with law enforcement officials who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender.’’ (Internal quotation marks omitted.)); see also Carolina v. Commissioner of Correction, supra, 192 Conn. App. 301 (‘‘classification as a sex offender is ‘uniquely stigmatizing’ ’’); id., 301 n.6 (‘‘[c]onstitutional privacy interests are implicated . . . because . . . [t]he damage to [citizens’] reputa- tions resulting from [disclosure] stigmatizes them as currently dangerous sex offenders, can harm their earn- ing capacities, and can cause them to be objects of derision in the community’’ (internal quotation marks omitted)).17 Here, it appears that the respondent assigned a risk level to the petitioner, mindful that he is a British citizen subject to deportation once his sen- tence is complete. We do not believe that such action facially meets the stigma plus test. We also do not believe that the respondent’s labeling of the petitioner as ‘‘a public safety risk’’ is sufficient to constitute stigma. Indeed, given that the petitioner was convicted of murder, it is likely that his conviction itself, rather than any assessment of a risk level, is the source of any stigma of being ‘‘a public safety risk.’’ Accordingly, we conclude that the petitioner has failed to allege facts, which, if taken as true, establish ‘‘stigma’’ under the stigma plus test.18 Therefore, with respect to the peti- tioner’s procedural due process claim, he has not suffi- ciently alleged a cognizable liberty interest over which the habeas court had subject matter jurisdiction, and the habeas court properly dismissed the petition with respect to this claim. II The petitioner next asserts that the court improperly dismissed his equal protection claim. The petitioner argues that his petition sufficiently alleges that he has been treated differently from similarly situated prison- ers because of his alienage and national origin, namely, because he is a British citizen. Specifically, the peti- tioner contends that he has sufficiently alleged that he has been denied rehabilitative programs, reentry ser- vices, discharge planning, and community release because he is not a citizen of the United States. In response, the respondent interprets the petition as asserting a ‘‘class of one’’ equal protection claim because the petition does not allege membership in a protected class. The respondent also asserts that the petition fails to ‘‘allege facts showing a reasonably close resemblance between [himself] and a proffered compa- rator.’’ (Internal quotation marks omitted.) See Hsin v. City of New York, 779 Fed. Appx. 12, 15 (2d Cir. 2019). The respondent further contends that the petition does not allege that the petitioner was treated differently because of his British citizenship or alienage. We do not read the petition so narrowly. We understand the petition to allege disparate treatment on the basis of his alienage and national origin and, thus, to allege membership in a protected class. We therefore do not construe the petitioner’s equal protection claim as a ‘‘class of one’’ claim. ‘‘The equal protection clause of the fourteenth amendment to the United States constitution, § 1, pro- vides in relevant part: No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ (Internal quotation marks omitted.) Hunter v. Commissioner of Correction, 271 Conn. 856, 862 n.7, 860 A.2d 700 (2004). ‘‘The Equal Protection Clause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike. . . . Conversely, the equal pro- tection clause places no restrictions on the state’s authority to treat dissimilar persons in a dissimilar man- ner. . . . Thus, [t]o implicate the equal protection [clause] . . . it is necessary that the state statute [or statutory scheme] in question, either on its face or in practice, treat persons standing in the same relation to it differently. . . . [Consequently], the analytical predi- cate [of consideration of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated. . . . The similarly situated inquiry focuses on whether the [petitioner is] similarly situated to another group for purposes of the challenged government action. . . . Thus, [t]his initial inquiry is not whether persons are similarly situated for all pur- poses, but whether they are similarly situated for pur- poses of the law challenged.’’ (Citations omitted; foot- note omitted; internal quotation marks omitted.) Stuart v. Commissioner of Correction, 266 Conn. 596, 601–602, 834 A.2d 52 (2003). After this initial inquiry, the court ‘‘must . . . deter- mine the standard by which the challenged statute’s constitutional validity will be determined. If, in distin- guishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard [under which] the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. . . . If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to with- stand an equal protection challenge.’’ (Footnote omit- ted; internal quotation marks omitted.) Hammond v. Commissioner of Correction, 259 Conn. 855, 877, 792 A.2d 774 (2002). ‘‘Although the federal constitution does not expressly enumerate any suspect classes, the United States Supreme Court has identified three such classifications, namely, race, alienage and national ori- gin.’’ Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 159, 957 A.2d 407 (2008). ‘‘[A]n equal protection claim based on unequal appli- cation of the law . . . must be established by . . . showing . . . intentional or purposeful discrimina- tion.’’ (Internal quotation marks omitted.) Tuchman v. State, 89 Conn. App. 745, 759, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). ‘‘[T]he plaintiff must prove that the state discriminated against him based on an impermissible, invidious classification. . . . Therefore, the plaintiff must prove that the action had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . Put another way, the plaintiff must establish that he, compared with others similarly situated, was selectively treated . . . and . . . that such selective treatment was based on imper- missible considerations . . . .’’ (Citations omitted; internal quotation marks omitted.) DiMartino v. Rich- ens, 263 Conn. 639, 673, 822 A.2d 205 (2003); see also Hunt v. Prior, 236 Conn. 421, 443, 673 A.2d 514 (1996) (‘‘[w]hen, as here, a claimed equal protection violation arises from the alleged selective application of a facially neutral state [law], it must be shown that (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermis- sible considerations’’ (internal quotation marks omit- ted)). In the present case, we conclude that the petitioner has alleged sufficient facts, when properly construed in the light most favorable to him, to constitute an equal protection claim. The crux of the petitioner’s claim is that the respondent has limited his access to rehabilita- tive programs, including reentry and discharge plan- ning, and community release—programs he alleges are available to inmates who are United States citizens— because he is a British citizen. When construed broadly and realistically, the petition asserts that §§ 18-81w, 18-81x and 18-81z, as applied by the respondent, violate the petitioner’s right to equal protection of the law.19 The petitioner alleges that he is similarly situated to inmates who are citizens of the United States. The petitioner pleads that, although he is similarly situated to inmates who are citizens of the United States, unlike those inmates, he has been denied access to rehabilitative programs because he is a citizen of the United Kingdom. The petition also sufficiently alleges that §§ 18-81w, 18-81x and 18-81z, as applied, burden him as a member of a suspect class of persons. In particular, the petition alleges that the statutes burden him because he is not a United States citizen. According to the petitioner, he has been ‘‘denied equal protection of the laws as a British citizen.’’ Because alienage and national origin are suspect classifications; see Kerrigan v. Commis- sioner of Public Health, supra, 289 Conn. 159; we con- clude that the petition sufficiently pleads that the stat- utes, as applied, burden a suspect class of persons. See Hammond v. Commissioner of Correction, supra, 259 Conn. 877. Last, the petition, read in its entirety and broadly construed, asserts that the respondent, by denying the petitioner access to rehabilitative programs, intention- ally and purposefully discriminated against him based on his alienage and national origin.20 Specifically, the petitioner avers that he has completed only six pro- grams during his incarceration, despite requesting more, and has been told that he does not need further programs. The petitioner claims that the respondent ‘‘will provide no reentry and discharge planning,’’ and alleges in the habeas petition that the respondent is ‘‘illegally using [the] detainer to limit [his] access to rehabilitative programs, including reentry, discharge planning, and community release.’’21 The petition fur- ther states that the respondent ‘‘has chosen to hinder the limited chances [the petitioner] already [has] to reintegrate into [his] own community after twenty- seven years absence, and [that this] is completely anti- thetical to the purpose of modern corrections.’’ (Inter- nal quotation marks omitted.) According to the petition, the respondent is ‘‘set on punishing [the petitioner] further when [he] return[s] to England.’’ The petition, read in its entirety, and construed broadly and realistically, rather than narrowly and tech- nically, sufficiently alleges a cognizable violation of the petitioner’s right to equal protection. We therefore con- clude that the court improperly dismissed this claim on the basis of Practice Book § 23-29 (2) and (5). III The petitioner next claims that the court improperly dismissed his petition because it did not sufficiently allege a valid cruel and unusual punishment claim. Spe- cifically, the petitioner contends that the petition ade- quately stated a claim of cruel and unusual punishment based on the serious risk that COVID-19 poses to his health and the respondent’s deliberate indifference to that risk.22 We agree with the petitioner that the court improperly dismissed this claim, as we believe that he sufficiently alleged facts to support this constitu- tional claim. ‘‘The [c]onstitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the [e]ighth [a]mendment. . . . The [a]mendment also imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates . . . . ‘‘In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), the United States Supreme Court concluded: [D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the [e]ighth [a]mendment. . . . ‘‘These elementary principles establish the govern- ment’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . The inflic- tion of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself. . . . ‘‘A prisoner seeking habeas relief on the basis of his conditions of confinement, which includes the medical care made available to him, bears the burden of estab- lishing both aspects of his claim.’’ (Internal quotation marks omitted.) Jolley v. Commissioner of Correction, 98 Conn. App. 597, 599–600, 910 A.2d 982 (2006), cert. denied, 282 Conn. 904, 920 A.2d 308 (2007). ‘‘In order to establish an [e]ighth [a]mendment claim arising out of inadequate medical care, a prisoner must prove delib- erate indifference to [his] serious medical needs. . . . The standard of deliberate indifference includes both subjective and objective components. First, the alleged deprivation must be, in objective terms, sufficiently seri- ous. . . . Second, the [government official] must act with a sufficiently culpable state of mind. . . . An offi- cial acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. . . . Thus, an official’s failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment]. . . . ‘‘Accordingly, to establish a claim of deliberate indif- ference in violation of the eighth amendment, a prisoner must prove that the officials’ actions constituted more than ordinary lack of due care for the prisoner’s inter- ests or safety. . . . [D]eliberate indifference is a strin- gent standard of fault . . . requiring proof of a state of mind that is the equivalent of criminal recklessness.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correc- tion, 288 Conn. 326, 338–39, 952 A.2d 764 (2008). In other words, ‘‘the evidence must show that the respon- dent had actual knowledge of a substantial risk of seri- ous harm facing the petitioner and disregarded that risk by failing to take reasonable measures to abate that risk.’’ Fuller v. Commissioner of Correction, 75 Conn. App. 133, 137, 815 A.2d 208 (2003). In the present case, we conclude that the petitioner has alleged sufficient facts, if properly construed in the light most favorable to him, to constitute a claim of cruel and unusual punishment in violation of his eighth amendment right and to thus invoke the subject matter jurisdiction of the habeas court because the gravamen of the petitioner’s claim concerns the transmission of the COVID-19 virus, the adequacy of the preventative measures instituted by the respondent, and the serious risk to health attendant to the respondent’s manage- ment of the virus as it applies to the petitioner’s particu- lar circumstances. As to the first prong—a sufficiently serious depriva- tion—the petitioner alleged that the COVID-19 pan- demic was a ‘‘seriously precarious situation,’’ and has ‘‘wreaked havoc across the world and has been particu- larly deadly for institutionalized populations.’’ This court previously has recognized the seriousness of the COVID-19 virus. See Gonzalez v. Commissioner of Cor- rection, 211 Conn. App. 632, 646 n.9, 273 A.3d 252 (‘‘[B]ecause incarcerated inmates are necessarily con- fined in close quarters, a contagious virus represents a grave health risk to them—and graver still to those who have underlying conditions that render them medically vulnerable. . . . The COVID-19 virus is highly infec- tious and can be transmitted easily from person to per- son. . . . If contracted, COVID-19 can cause severe complications or death.’’ (Citation omitted; internal quotation marks omitted.)), cert. denied, 343 Conn. 922, 275 A.3d 212 (2022). The petitioner further alleged that the COVID-19 virus posed a serious risk specifically to him because of his preexisting medical conditions. These preexisting conditions include chronic obstruc- tive pulmonary disease, pneumonia, tuberculosis, atel- ectasis, high blood pressure, and being at high risk for colon cancer. Thus, the petitioner alleged, he was at high risk for serious symptoms associated with COVID- 19, and the conditions at Osborn were putting his life at risk. Based on these allegations, we conclude that the petitioner has sufficiently pleaded that his conditions of confinement are, ‘‘in objective terms, sufficiently seri- ous.’’ (Internal quotation marks omitted.) Faraday v. Commissioner of Correction, supra, 288 Conn. 338. We also conclude that the petitioner has pleaded sufficient facts as to the second prong of the deliberate indifference test—namely, that the officials involved had a sufficiently culpable state of mind, because they knew of and disregarded an excessive risk to his health and safety. See id., 338–39. In his petition, the petitioner alleged that the respondent was not handling the COVID-19 pandemic according to CDC guidelines. In particular, he alleged that the use of personal protective equipment was not enforced among inmates or prison staff.23 He similarly alleged that social distancing was not being enforced, resulting in inmates being com- pelled to dine in close proximity, specifically, within two feet of each other. Based on these allegations, the petitioner claimed that the prison staff ‘‘clearly do not care about [his health and safety] at all,’’ and had adopted a ‘‘policy of continual delay, denial and deceit [which was] compounding an already seriously precari- ous situation, putting [his] deteriorating health and well- being in further danger.’’ We note that ‘‘[w]ith respect to deliberate indiffer- ence . . . [t]he key inquiry is whether the [commis- sioner] responded reasonably to th[is] risk.’’ (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, supra, 211 Conn. App. 652. In determining whether a response to COVID-19 was reasonable, courts have found relevant, among other things, policies relat- ing to social distancing and masks. See id., 652 (court focused its inquiry on whether respondent ‘‘took pre- ventative measures, including screening for symptoms, educating staff and inmates about COVID-19, cancelling visitation, quarantining new inmates, implementing reg- ular cleaning, providing disinfectant supplies, and pro- viding masks’’ (internal quotation marks omitted)); see also Valentine v. Collier, 993 F.3d 270, 284–89 (5th Cir. 2021) (deeming relevant to deliberate indifference anal- ysis whether respondent implemented testing, social distancing, mask use, handwashing, and sanitation or cleaning); see also Hope v. Warden, 972 F.3d 310, 327–28 (3d Cir. 2020) (discussing whether prison staff wore masks and enforced social distancing in determining whether respondent warden was deliberately indiffer- ent to inmates’ medical needs); Swain v. Junior, 961 F.3d 1276, 1291 (11th Cir. 2020) (‘‘[b]y taking other measures, besides release—including, among many other things, implementing some social-distancing mea- sures, distributing face masks, screening inmates and staff, and providing cleaning and personal hygiene sup- plies—[the director of corrections] has responded rea- sonably to the risk of the virus’’). Furthermore, ‘‘[o]ur Supreme Court consistently [has] held that reasonable- ness is a question of fact for the trier to determine based on all of the circumstances. . . . Recklessness likewise presents a question of fact.’’ (Citation omitted; internal quotation marks omitted.) Gonzalez v. Com- missioner of Correction, supra, 653 n.14. Although ultimately, it may prove that the petitioner is unable to produce evidence to support his allegations of cruel and unusual punishment,24 such a possibility cannot support the granting of a motion to dismiss. See Finney v. Commissioner of Correction, supra, 207 Conn. App. 144. We emphasize that, at the pleading stage, the allegations in the petition must be viewed in the light most favorable to the petitioner. See id., 146. Viewing the petition in such a light, we conclude that the petitioner has raised allegations sufficient to state a cognizable claim for cruel and unusual punishment.25 The judgment is reversed with respect to the claims of equal protection and cruel and unusual punishment, and the case is remanded for further proceedings in accordance with law; the judgment is affirmed in all other respects. In this opinion the other judges concurred. 1 The petitioner was self-represented throughout the proceedings before the habeas court but is represented by counsel on appeal. 2 Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: ‘‘(1) the court lacks jurisdiction; ‘‘(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted; ‘‘(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition; ‘‘(4) the claims asserted in the petition are moot or premature; ‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’ 3 The petitioner filed his first petition for a writ of habeas corpus on July 15, 2020, and his first amended petition on September 17, 2020. Subsequently, on December 11, 2020, the petitioner filed a ‘‘motion for permission to file additional pages to the amended petition,’’ which was docketed as a second ‘‘amended application for writ of habeas corpus.’’ Thus, the petitioner’s second amended petition is the operative petition, which we review to determine whether the habeas court had subject matter jurisdiction. 4 ‘‘Because this appeal arises from the habeas court’s ruling dismissing the petition on the basis that the court lacked jurisdiction, we [assume] the facts [as] alleged in the petition, including those facts necessarily implied from the allegations, construing them in favor of the petitioner for purposes of deciding whether the court had subject matter jurisdiction.’’ Anthony A. v. Commissioner of Correction, 326 Conn. 668, 670, 166 A.3d 614 (2017). 5 The respondent assigns each inmate an overall classification assessment score of one to five, with one representing the lowest security level and five representing the highest. See Conn. Dept. of Correction, Administrative Directive 9.2 (6) and (8) (effective July 1, 2006) (Administrative Directive 9.2). In determining an inmate’s overall classification assessment score, the inmate’s risks and needs are assessed. Id., 9.2 (8). Seven factors determine an inmate’s overall risk score. Id. Each individual factor is assigned a rating from one to five, with one representing the least risk and five representing the highest risk. See Office of Legislative Research, OLR Research Report: Department of Correction Inmate Classification (March 1, 2000) available at https://www.cga.ct.gov/2000/rpt/2000-R-0257.htm (last visited November 17, 2022). One of these factors is the presence of a detainer. See Administra- tive Directive 9.2 (8) (A) (5). ‘‘After independently rating each factor, [the respondent] establishes an overall risk level. The highest rating assigned to any of the seven factors determines the inmate’s overall risk level. Thus if an inmate has a two on six of the factors and a four on one factor, his overall rating is a four.’’ OLR Research Report: Department of Correction Inmate Classification, supra. Because the petitioner has a detainer lodged against him, he has been assigned a detainer score that affects his overall risk score. 6 According to the petitioner, the detainer is a civil detainer. An immigra- tion detainer ‘‘serves to advise another law enforcement agency that the [United States Department of Homeland Security (Department)] seeks cus- tody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Depart- ment to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.’’ 8 C.F.R. § 287.7 (a) (2022). 7 We note that the court did not address the petitioner’s equal protection claim in its memorandum of decision and that, generally, this court is not required to review issues not considered at the habeas proceeding. See, e.g., Leon v. Commissioner of Correction, 189 Conn. App. 512, 528, 208 A.3d 296, cert. denied, 332 Conn. 909, 209 A.3d 1232 (2019). We also note, however, that ‘‘a reviewing court properly may address jurisdictional claims that neither were raised nor ruled on in the trial court.’’ Ajadi v. Commis- sioner of Correction, 280 Conn. 514, 535, 911 A.2d 712 (2006). In the present case, the petitioner did raise his equal protection claim in his operative petition, but the court did not address the claim. The petitioner attempted to rectify this deficiency by filing a motion to reargue, asserting that the court failed to address his equal protection claim; however, the court denied the motion. Nevertheless, we address this claim because the parties have fully briefed the merits of the jurisdictional issue as it pertains to the petitioner’s equal protection claim. Additionally, the claim is based on undisputed procedural facts and, therefore, does not require a review of any factual determinations, and the petition can reasonably be read broadly to include such a claim. 8 General Statutes § 18-81w (a) provides: ‘‘The Criminal Justice Policy and Planning Division within the Office of Policy and Management shall develop and implement a comprehensive reentry strategy that provides a continuum of custody, care and control for offenders who are being supervised in the community, especially those offenders who have been discharged from the custody of the Department of Correction, and assists in maintaining the prison population at or under the authorized bed capacity. The reentry strategy shall support the rights of victims, protect the public and promote the successful transition of offenders from incarceration to the community by (1) maximizing any available period of community supervision for eligible and suitable offenders, (2) identifying and addressing barriers to the success- ful transition of offenders from incarceration to the community, (3) ensuring sufficient criminal justice resources to manage offender caseloads, (4) identi- fying community-based supervision, treatment, educational and other ser- vices and programs that are proven to be effective in reducing recidivism among the population served by such services and programs, and (5) estab- lishing employment initiatives for offenders through public and private ser- vices and partnerships by reinvesting any savings achieved through a reduc- tion in prison population.’’ 9 General Statutes § 18-81x provides: ‘‘For the fiscal year ending June 30, 2007, and each fiscal year thereafter, the sum of $350,000 from revenue derived by the Department of Administrative Services from the contract for the provision of pay telephone service to inmates of correctional facilities shall be transferred to the Department of Correction, for Other Current Expenses, for expanding inmate educational services and reentry program initiatives.’’ 10 General Statutes § 18-81z provides: ‘‘The Department of Correction, the Board of Pardons and Paroles and the Court Support Services Division of the Judicial Branch shall develop a risk assessment strategy for offenders committed to the custody of the Commissioner of Correction that will (1) utilize a risk assessment tool that accurately rates an offender’s likelihood to recidivate upon release from custody, and (2) identify the support pro- grams that will best position the offender for successful reentry into the community. Such strategy shall incorporate use of both static and dynamic factors and utilize a gender-responsive approach that recognizes the unique risks and needs of female offenders. In the development of such risk assess- ment strategy, the department, board and division may partner with an educational institution that has expertise in criminal justice and psychiatry to evaluate risk assessment tools and customize a risk assessment tool to best meet the state’s needs. On or before January 1, 2009, and annually thereafter, the department, board and division shall report to the Governor and the joint standing committee of the General Assembly on judiciary, in accordance with section 11-4a, on the development, implementation and effectiveness of such strategy.’’ 11 The respondent’s appellate brief addresses only the first two of the petitioner’s three claims— the due process claim and the equal protection claim. The respondent does not address the petitioner’s third claim, namely, that the respondent violated his right to be free from cruel and unusual punishment. 12 Although the petitioner twice amended his petition after the respondent filed his motion to dismiss, the respondent did not file an objection to either of the amended petitions; nor did the respondent seek to amend his motion to dismiss after the petitioner filed the amended petitions. 13 The respondent also argued that the petitioner’s COVID-19 claim had been released and was barred based on a settlement agreement reached in McPherson v. Lamont, United States District Court, Docket No. 3:20-CV- 0534 (JBA) (D. Conn. July 20, 2020). In its memorandum of decision, the court concluded that the claim was not barred by the McPherson settlement because the settlement was approved on July 20, 2020, whereas the habeas petition was filed on July 15, 2020. The respondent does not reassert this argument on appeal. 14 In its memorandum of decision, the court stated that it had subject matter jurisdiction over the petitioner’s cruel and unusual punishment claim, and yet the court dismissed the petition in its entirety without providing a specific reason relating to that particular claim. On review, we see no basis for the court to have dismissed this claim, without a hearing on the merits, on the basis of either Practice Book § 23-29 (2) or (5). 15 On July 21, 2021, this court ordered, sua sponte, that the habeas court articulate whether it had considered the petitioner’s second amended peti- tion for a writ of habeas corpus when ruling on the respondent’s motion to dismiss. In its articulation, dated July 27, 2021, the habeas court explained that it had reviewed and considered the petitioner’s second amended petition when ruling on the motion to dismiss. 16 Both parties, in their appellate briefs, have analyzed the petitioner’s due process claim under the stigma plus test. 17 We also note that no court has extended the stigma plus test to apply beyond instances in which the petitioner is labeled a sex offender. The petitioner neglects to set forth any argument that the stigma plus test should be extended beyond the context of cases involving classification as a sex offender. 18 ‘‘The stigma plus test is conjunctive and, therefore, we need not consider whether the petitioner sufficiently alleged facts satisfying the remaining portions of the test.’’ Stephenson v. Commissioner of Correction, supra, 203 Conn. App. 331 n.12. 19 Because §§ 18-81w, 18-81x and 18-81z do not expressly limit rehabilita- tive programs to citizens of the United States, the petitioner’s claim can be understood only as a claim of an equal protection violation as applied to him, and not on its face. See State v. Jason B., 248 Conn. 543, 558 n.12, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). 20 To the extent that the respondent argues that the petitioner is not being treated differently than similarly situated inmates, namely, those inmates also with detainers lodged against them, we emphasize that this argument goes to whether the petitioner can prove his claim rather than whether he has sufficiently alleged an equal protection claim. 21 Also of import, we acknowledge that the detainer itself does not make the petitioner ineligible for rehabilitative programs, including reentry, dis- charge planning, and community release. As described in footnote 6 of this opinion, a civil immigration detainer serves, in short, as a request that the respondent notify the United States Department of Homeland Security prior to the release of the petitioner. See 8 C.F.R. § 287.7 (a) (2022); see also General Statutes § 54-192h (a) (2) (C). Rather, it is the respondent’s own inmate classification system that is limiting the petitioner’s access to rehabili- tative programs, such as reentry, discharge planning, and community release. See Conn. Dept. of Correction, Administrative Directive 9.2 (11) (effective July 1, 2006). 22 The respondent’s appellate brief fails to address the petitioner’s cruel and unusual punishment claim. At oral argument, however, counsel for the respondent argued that no habeas court in this jurisdiction has granted a petition for a writ of habeas corpus based on a COVID-19 claim of cruel and unusual punishment. We find this argument unpersuasive. Simply because no habeas court in this jurisdiction has granted such a petition does not mean that the Superior Court, sitting on habeas matters, lacks the subject matter jurisdiction to do so. 23 The petitioner alleged that the lack of enforcement of the use of personal protective equipment violated Executive Order No. 7BB issued by Governor Ned Lamont on April 22, 2020, relating to the use of face masks, an April 21, 2020 memorandum from then Commissioner Rollin Cook to all depart- ment staff regarding the wearing of masks, and the terms of a settlement agreement between the department and the American Civil Liberties Union Foundation of Connecticut in McPherson v. Lamont, United States District Court, Docket No. 3:20-CV-0534 (JBA) (D. Conn. July 20, 2020). See footnote 13 of this opinion. 24 This may, of course, be true as to the entirety of the petition. 25 We also note that the court could grant relief on the petitioner’s equal protection and cruel and unusual punishment claims if the petitioner is able to prove them. The petitioner, in his prayer for relief, sought ‘‘[a]ny other relief the court deems just and proper under the circumstances.’’ ‘‘[T]he habeas court has considerable discretion to frame a remedy that is commen- surate with the scope of the established constitutional violations . . . .’’ (Emphasis omitted; internal quotation marks omitted.) Marshall v. Commis- sioner of Correction, 206 Conn. App. 461, 471, 261 A.3d 49, cert. denied, 338 Conn. 916, 259 A.3d 1180 (2021).	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488227/	People ex rel. Campbell v Molina (2022 NY Slip Op 06630) People ex rel. Campbell v Molina 2022 NY Slip Op 06630 Decided on November 18, 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 18, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. DEBORAH A. DOWLING HELEN VOUTSINAS LILLIAN WAN, JJ. 2022-08984 [1]The People of the State of New York, ex rel. Marion Elizabeth Campbell, on behalf of Elvis Tzintzun, petitioner, vLouis Molina, etc., respondent. Twyla Carter, New York, NY (Enrico Purita of counsel), for petitioner. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Travis Atkinson of counsel), for respondent. Writ of habeas corpus in the nature of an application to release Elvis Tzintzun upon his own recognizance or, in the alternative, to set reasonable bail, in effect, upon Richmond County Indictment No. 70919/2022. ADJUDGED that the writ is sustained, without costs or disbursements, to the extent that bail upon Richmond County Indictment No. 70919/2022 is set in the sum of $50,000 posted in the form of an insurance company bail bond, the sum of $100,000 posted in the form of a partially secured surety bond, with the requirement of 10% down, or the sum of $25,000 either deposited as a cash bail alternative or paid with a credit card, on condition that, in addition to posting an insurance company bail bond or depositing the cash alternative or paying with a credit card as set forth above, Elvis Tzintzun shall (1) wear an electronic monitoring bracelet, with monitoring services to be provided by a qualified entity pursuant to CPL 510.40(4)(c), and any violations of the conditions set forth herein relating to the electronic monitoring shall be reported by the electronic monitoring service provider to the Office of the District Attorney of Richmond County, and further proceedings pursuant to CPL 510.40(4)(d), if any, shall be conducted by the Supreme Court, Richmond County; (2) remain confined to his residence, except for visits to his place of worship, his attorney, his medical providers, or court, and must travel directly from his residence to his place of worship, his attorney, his medical providers, or court, and directly back to his residence, when conducting those visits; (3) surrender all passports, if any, he may have to the Office of the District Attorney of Richmond County, or, if he does not possess a passport, he shall provide to the Office of the District Attorney of Richmond County an affidavit, in a form approved by the Office of the District Attorney of Richmond County, in which he attests that he does not possess a passport, and shall not apply for any new or replacement passports; and (4) provide to the Office of the District Attorney of Richmond County an affidavit, in a form approved by the Office of the District Attorney of Richmond County, in which he attests that if he leaves the jurisdiction he agrees to waive the right to oppose extradition from any foreign jurisdiction; and it is further, ORDERED that upon receipt of a copy of this decision, order and judgment together with proof that Elvis Tzintzun has given a partially secured surety bond in the sum of $100,000, with the requirement of 10% down, or has given an insurance company bail bond in the sum of $50,000, or has deposited the sum of $25,000 either as a cash bail alternative or paid with a credit card and (1) has arranged for electronic monitoring with a qualified entity pursuant to CPL 510.40(4)(c); (2) [2]has surrendered all passports, if any, he may have to the Office of the District Attorney of Richmond County, or, if he does not possess a passport, has provided to the Office of the District Attorney of Richmond County an affidavit, in a form approved by the Office of the District Attorney of Richmond County, in which he attests that he does not possess a passport, and shall not apply for any new or replacement passports; and (3) has provided to the Office of the District Attorney of Richmond County an affidavit, in a form approved by the Office of the District Attorney of Richmond County, in which he attests that if he leaves the jurisdiction he agrees to waive the right to oppose extradition from any foreign jurisdiction, the Warden of the facility at which Elvis Tzintzun is incarcerated, or his or her agent, is directed to immediately release Elvis Tzintzun from incarceration. CHAMBERS, J.P., DOWLING, VOUTSINAS and WAN, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488226/	In the United States Court of Federal Claims No. 22-1335C (Filed: November 18, 2022) ) SOMONA LOFTON, ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ) Somona Lofton, Fairfield, CA, pro se. Elizabeth B. Villarreal, Trial Attorney, Court of Federal Claims Section, Tax Division, U.S. Department of Justice, Washington, DC, for defendant. ORDER OF DISMISSAL Plaintiff pro se Somona Lofton filed this calendar year 2021 federal income tax refund case against the United States on September 14, 2022. 1 See ECF No. 1. Plaintiff alleges she filed a 2021 Form 1040-X, Amended U.S. Individual Income Tax Return, on May 18, 2022, claiming a federal income tax refund in the amount of $5,362. 2 See ECF No. 1 at 2; ECF 1-2 at 20. Plaintiff seeks to challenge the IRS’s 1As explained in the Court’s October 6, 2022 Order, the complaint also alleged that employees of the State of California Health and Human Services Agency, Department of Social Services, harassed plaintiff and withheld her state benefits. See ECF No. 9. In granting plaintiff’s application to proceed in forma pauperis under 28 U.S.C. § 1915(a), the Court dismissed these allegations for lack of subject matter jurisdiction. See ECF No. 9. On November 14, 2022, plaintiff filed a notice of appeal of the partial dismissal. See ECF No. 12. Nevertheless, this Court retains jurisdiction over this case for at least two reasons: the Court’s October 6, 2022 Order is a non-appealable non-final order; and the tax refund issue addressed herein was not the subject of the October 6, 2022 dismissal. See, e.g., Lopez v. United States, No. 2022-2096, 2022 WL 10225320, at 1 (Fed. Cir. Oct. 18, 2022) (discussing non-appealable orders issued by Court of Federal Claims); Gilda Indus., Inc. v. United States, 511 F.3d 1348, 1350–51 (Fed. Cir. 2008) (same). 2According to plaintiff’s complaint, she filed her original 2021 Form 1040, U.S. Individual Income Tax Return, on April 8, 2022, claiming a federal income tax refund in the amount of $6,668. See ECF No. 1 at 2; ECF No. 1-2 at 21. On or about May 16, 2022, the U.S. Department of the Treasury, Internal Revenue Service (IRS), notified plaintiff of an error in her 2021 Form 1040 related to her “refus[al] to process [her] Amended Tax return.” See ECF No. 1 at 2. Plaintiff claims the following relief: “$5,362.00 [t]ax refund amount.” Id. at 3. Pending before the Court is defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). See ECF No. 13. Specifically, defendant asserts plaintiff’s complaint was filed prematurely–i.e., before the expiration of the six-month waiting period required under 26 U.S.C. § 6532(a)(1), which allows the IRS time to investigate and process tax refund claims. The Court agrees. “To maintain a tax refund suit against the United States, taxpayers must first file a refund claim with the [IRS].” Weston v. United States, No. 2022-1179, 2022 WL 1097361, at 1 (Fed. Cir. Apr. 13, 2022) (citing 26 U.S.C. § 7422(a)). In turn, Title 26, United States Code, Section 6532(a)–titled “Suits by taxpayers for refund”–provides in relevant part: No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time . . . . 26 U.S.C. § 6532(a)(1). The filing of the refund claim begins the six-month clock codified in § 6532(a). Unless the IRS issues a notice of decision during the six-month period, the filer must await the end of the statutory period before filing suit in this Court. Plaintiff filed this tax refund suit on September 14, 2022; by the Court’s calculation: 3 months and 27 days after purportedly filing her 2021 Form 1040-X. In alleging the IRS has not yet processed her refund, plaintiff concedes the IRS did not issue a decision prior to her filing suit. Because the six-month statutory waiting period had not expired at the time plaintiff filed her complaint, this Court lacks jurisdiction to adjudicate this action. See Weston, 2022 WL 1097361, at *1 (“[T]he failure to file a timely complaint under § 6532(a)(1) deprives the [Court of Federal Claims] of subject matter jurisdiction.”) (citing cases); e.g., Gaynor v. United States, 150 Fed. Cl. 519, 538 (2020) (dismissing tax refund claims for lack of jurisdiction because the “requisite waiting period had not yet elapsed” when plaintiff filed the initial complaint). The irony is not lost on the Court that this Order of Dismissal is being issued on the precise date that Ms. Lofton’s statutory six-month waiting period expires. As claimed Refundable Child Tax Credit, and adjusted (reduced) her refund to $3,918. See ECF No. 1 at 2; ECF No. 1-2 at 15–16. Although not material to the jurisdictional issue presented, the complaint is silent as to whether plaintiff received the $3,918 refund. 2 noted by the government, however, the jurisdictional requirements of § 6532(a) must be satisfied at the time a tax refund suit is filed. See Gaynor, 150 Fed. Cl. at 537–38 (“[O]ur jurisdiction is assessed at the time at which a complaint is filed – not subsequently, after a plaintiff already has filed an action. Concluding otherwise would render the statutory waiting period a dead letter.”). Accordingly, plaintiff’s complaint must be dismissed, albeit without prejudice. Indeed, plaintiff may refile her tax refund complaint as early as today, though she could not have so as late as yesterday. For the reasons set forth above, (1) Defendant’s Motion to Dismiss plaintiff’s complaint for lack of subject matter jurisdiction (ECF No. 13) is GRANTED; (2) Plaintiff’s Complaint filed on September 14, 2022 (ECF No. 1) is DISMISSED without prejudice; (3) The Clerk is directed to ENTER Judgment DISMISSING this case without prejudice; and (4) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. No costs. It is so ORDERED. s/ Armando O. Bonilla Armando O. Bonilla Judge 3	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488230/	IN THE COMMONWEALTH COURT OF PENNSYLVANIA Donna Kilgallon, : Petitioner : : v. : : The Village at Palmerton Assisted : Living and Laundry Owners Mutual : Liability Insurance Association of : Pennsylvania (Workers’ : Compensation Appeal Board), : No. 165 C.D. 2022 Respondents : Submitted: July 15, 2022 BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE STACY WALLACE, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: November 21, 2022 Petitioner Donna Kilgallon (Claimant) seeks review of the February 1, 2022, decision and order of the Workers’ Compensation Appeal Board (Board), which affirmed the May 5, 2021, decision and order of the Workers’ Compensation Judge (WCJ) that denied Claimant’s October 2020 reinstatement, review, and penalty petitions based on Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II). Upon review, we affirm. I. Factual and Procedural Background The relevant facts are not in dispute. Claimant sustained a disabling work-related injury on March 3, 2007 and began receiving temporary total disability (TTD) benefits in the fall of 2007 from The Village at Palmerton Assisted Living and its workers’ compensation insurer, Laundry Owners Mutual Liability Insurance Association of Pennsylvania (together, Employer). Board Decision, 2/1/22, at 1; Reproduced Record (R.R.) at 182a. On July 27, 2011, Claimant underwent an impairment rating evaluation (IRE) under former Section 306(a.2) of the Workers’ Compensation Act.1 Id. (citing former 77 P.S. § 511.2). Id. at 1; R.R. at 182a. The 2011 IRE returned an impairment rating of less than 50%, and Claimant’s benefits were modified to temporary partial disability (TPD) status with a 500-week limit as of November 28, 2009, the date when Claimant had reached 104 weeks of TTD since her injury. Id. at 1; R.R. at 182a. In Protz II, our Supreme Court invalidated former Section 306(a.2) as an unconstitutional delegation of legislative authority to the American Medical Association, which produces the Guides to the Evaluation of Permanent Impairment (AMA Guides). Thereafter, Claimant filed petitions in July 2017 seeking reinstatement of her TTD status. Board’s Decision, 2/1/22, at 1; R.R. at 182a. The WCJ issued an October 27, 2017, decision (not included in either the agency or reproduced records) granting Claimant’s petitions and reinstating her TTD benefits as of December 16, 2009.2 Id. at 1-2; R.R. at 182a-83a. In June 2018, during the pendency of Employer’s appeal to the Board, this Court issued Whitfield v. Workers’ 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section 306(a.2) was added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the Act of October 24, 2018, P.L. 714, No. 111 (Act 111). 2 It is unclear why Claimant’s TTD status was not reinstated as of November 28, 2009, when it was first changed to TPD, but the 19-day difference is not substantial or at issue here. 2 Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc), which held that in order to secure reinstatement of TTD benefits after Protz II, a claimant “must testify that her work-related injury continues, and the WCJ must credit that testimony over any evidence that an employer presents to the contrary.” 188 A.3d at 617. The General Assembly also passed Act 111 of 2018, which effectively reinstated the IRE process as of October 24, 2018.3 The Board therefore remanded the matter to the WCJ to reopen the record and address the recent changes in the law. WCJ Decision, 6/18/19, at 4; R.R. at 121a (discussing a February 27, 2019, Board decision that is not included in either the agency or reproduced records). A hearing was held, presumably for Claimant’s testimony as to her ongoing condition, but Claimant advised the WCJ through counsel that she would not present any additional evidence or testimony. Id.; R.R. at 121a. The WCJ, relying on Whitfield, concluded Claimant had not met her burden to show that her injury was ongoing and denied her reinstatement petitions in a June 2019 decision and order. Id. at 5; R.R. at 122a. The WCJ also concluded that Act 111 was not relevant as the modification of Claimant’s benefits had taken place under former Section 306(a.2) of the Act. Id. at 4; R.R. at 121a. Also relying on Whitfield, the Board affirmed the WCJ’s decision in a September 2020 decision and order.4 Board Decision, 9/29/20, at 3; R.R. at 128a. 3 Act 111 of 2018 repealed former Section 306(a.2) and replaced it with Section 306(a.3) of the Act, 77 P.S. § 511.3. Under Section 306(a.3), an IRE must be conducted in accordance with the Sixth Edition of the AMA Guides, and a claimant’s impairment rating must be less than 35% in order for the claimant to be moved from total to partial disability status. 77 P.S. § 511.3. 4 The September 2020 Board decision mentioned but did not address the applicability of Act 111 of 2018 to this matter. See Board Decision, 9/29/20, at 1 n.2; R.R. at 126a. 3 On Claimant’s appeal, this Court affirmed. Kilgallon v. The Village at Palmerton Assisted Living (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 1063 C.D. 2020, filed July 13, 2021) (unreported), 2021 WL 2934766 (Kilgallon I). We noted that Weidenhammer v. Workers’ Compensation Appeal Board (Albright College), 232 A.3d 986 (Pa. Cmwlth. 2020), held that Protz II was not intended to be given a fully retroactive effect such that all claimants on TPD status pursuant to pre-Protz II IREs warranted reinstatement to TTD without showing proof of ongoing injury. Kilgallon I, slip op. at 5-6; 2021 WL 2934766, at 3. In Kilgallon I, we also reaffirmed Whitfield’s post-Protz II standard of proof for reinstatement of TTD status as requiring the claimant’s testimony of ongoing injury, which we described in Whitfield as analogous to the standard for reinstatement of benefits following a suspension, which requires credible claimant testimony but not formal medical evidence. Id., slip op. at 6-7; 2021 WL 2934766, at 3. Finding Claimant had not presented either evidence or a persuasive legal argument for overturning Whitfield, we upheld the WCJ’s denial of reinstatement. Id., slip op. at 7-8; 2021 WL 2934766, at 4. Our Supreme Court ultimately denied Claimant’s petition for allowance of appeal of Kilgallon I. Kilgallon v. The Village at Palmerton Assisted Living (Workers’ Comp. Appeal Bd.) (Pa., No. 469 MAL 2021, filed May 17, 2022) (unreported). While the foregoing litigation was active, Claimant filed the present reinstatement, review, and penalty petitions on October 14, 2020.5 R.R. at 1a-9a. The petitions, which contain identical wording, assert that as of September 30, 2020, Employer wrongfully stopped Claimant’s benefits on the basis of former Section 306(a.2) of the Act, which was repealed after being found unconstitutional in Protz 5 The Board’s previous decision was issued on September 29, 2020, and Claimant filed her Petition for Review with this Court on October 28, 2020. 4 II. The petitions also maintain that Employer cannot rely on new Section 306(a.3) of Act 111 of 2018 for stopping benefits because that section was not in effect when Claimant’s status was changed from TTD to TPD after the 2009 IRE. Id. Employer answered the petitions, asserting that Claimant’s claims in her October 2020 petitions were identical to those she raised in the previous (and still active at that time) litigation and therefore were barred by res judicata and collateral estoppel principles. Id. at 10a-18a. At a November 18, 2020, hearing in this litigation, counsel for Claimant acknowledged that the gist of the current petitions is that Whitfield was wrongly decided. R.R. at 26a. Claimant testified that in March 2007, when a nursing home patient she was helping to walk collapsed, she sustained injuries to her back and right leg. Id. at 31a. She received wage loss benefits through September 30, 2020,6 and has been treating continuously for her injuries, including a right knee surgery. Id. at 32a. She currently sees Dr. Mahli for her back, Dr. Grob for her knee and left hip, and also Dr. Mauthe and her family doctor, Dr. Follweiller. Id. at 33a. Due to the COVID-19 pandemic, she had not been able to see them regularly in person, but she has had telephone appointments with them. Id. Notably, Claimant’s counsel did not ask her on direct examination to describe her current condition or the extent of her ongoing injuries, nor did Employer’s counsel ask any questions on cross- examination in that regard. See id. at 31a-38a. In a May 5, 2021, decision and order, the WCJ restated this Court’s determination in Whitfield that in order to have TTD status restored in the post-Protz II context, the claimant must, at the least, testify credibly that her work-related injury 6 Employer entered into the record a payment log showing total wage loss benefits paid to Claimant (including both TTD and TPD) through September 30, 2020, for dates from October 4, 2007, through September 6, 2020. R.R. at 77a-117a. 5 continues. WCJ Decision, 5/5/21, at 5; R.R. at 155a. Given that standard, the WCJ noted that while Claimant had been given “multiple opportunities” to do so, she had not provided sufficient personal testimony of an ongoing injury and therefore had failed to meet her burden for reinstatement of her TTD status, which meant that the 500-week limit for her TPD continued to run. Id. at 5; R.R. at 155a. As such, and since the record established that Claimant had received the full 500 weeks of TPD to which she was entitled, reinstatement to TTD was not warranted, and Employer did not violate the Act by stopping her TPD in September 2020 after over 500 weeks had elapsed. Id. at 6; R.R. at 156a. The WCJ therefore denied and dismissed Claimant’s petitions.7 The Board affirmed, concluding that Claimant’s arguments concerning Whitfield had been raised and addressed in her appeal based on her 2017 petitions, which concluded with Kilgallon I, and therefore were precluded pursuant to res judicata principles. Board Decision, 2/1/22, at 4 & n.6; R.R. at 185a. Claimant now appeals to this Court. 7 Claimant’s current petitions also assert that Employer wrongly sought to justify Claimant’s TPD status under new Section 306(a.3) of Act 111 of 2018. However, as the WCJ pointed out, all of the relevant actions here, including the change in Claimant’s status from TTD to TPD after the 2009 IRE, occurred prior to the enactment of Act 111. WCJ Decision, 5/5/21, at 5; R.R. at 155a. The WCJ therefore found Act 111 not relevant to this dispute. R.R. at 155a. Claimant mentions Act 111 in her brief’s “statement of the case,” but does not develop an argument concerning it; her argument is limited to her challenge to Whitfield. Claimant’s Br. at 7 & 8-16. Any arguments Claimant may have based on Act 111 are therefore waived for lack of development. Ward v. Potteiger, 142 A.3d 139, 143 n.7 (Pa. Cmwlth. 2016). Moreover, this Court has consistently held that while Act 111 may not be used to revive a previously invalidated IRE, the portions of Act 111 that permit employers to claim credit for weeks of TTD or TPD paid prior to its enactment in October 2018, which Employer did here, are valid. See, e.g., DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp. Appeal Bd.), 278 A.3d 430, 440-41 (Pa. Cmwlth. 2022). Although the record here includes an IRE conducted in August 2019 at Employer’s behest, Employer took no action on it. R.R. at 67a; Board Decision, 2/1/22, at 3; R.R. at 184a. We therefore conclude the WCJ did not err in finding Act 111 not relevant to this dispute. 6 II. Discussion The doctrine of res judicata encompasses two related, yet distinct, principles: technical res judicata (claim preclusion) and collateral estoppel (issue preclusion).8 Maranc v. Workers’ Comp. Appeal Bd. (Bienenfeld), 751 A.2d 1196, 1199 (Pa. Cmwlth. 2000). Technical res judicata, the principle applicable in the instant case, provides that when a final judgment on the merits exists, a future suit between the same parties on the same cause of action is precluded.9 Id. Technical res judicata applies when the following four factors are present: (1) identity in the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Id. This doctrine applies to claims that were actually litigated as well as those matters that could and should have been litigated. Id. The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Callery v. Mun. Auth. of Blythe Twp., 243 A.2d 385, 387 (Pa. 1968). Claimant does not address the Board’s finding of res judicata. She argues, as she did previously, that Whitfield wrongly shifts the burden of proof in post-Protz II cases to claimants by requiring them to testify that their work-related injuries continue even though their TTD status was changed to TPD under a statutory regime held in Protz II to be unconstitutional. Claimant’s Br. at 8. She emphasizes that workers’ compensation benefits have been determined to be vested rights that “This Court’s review in workers’ compensation appeals is limited to determining whether 8 necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated.” DiPaolo, 278 A.3d at 433 n.5. 9 Collateral estoppel, on the other hand, acts to foreclose litigation in a later action of issues of law or fact that were actually litigated and necessary to a previous final judgment. Maranc v. Workers’ Comp. Appeal Bd. (Bienenfeld), 751 A.2d 1196, 1199 (Pa. Cmwlth. 2000). 7 may not be disturbed by subsequent legislation without violating the Remedies Clause of the Pennsylvania Constitution. Id. at 9 (citing Pa. Const. art. I, § 11). She avers that Protz II’s conclusion that the previous IRE statutes were unconstitutional rendered her prior IRE and the ensuing change of her status from TTD to TPD void ab initio and that she cannot be forced to establish her eligibility for TTD again. Id. at 12-13. She asserts that Whitfield’s adoption of the evidentiary protocol for reinstatement after a suspension of benefits, which requires the claimant’s credible testimony of ongoing injury, wrongly imports a claimant-side burden into post- Protz II reinstatement of TTD status, which should be automatic based on the unconstitutionality of the former IRE statutes. Id. at 13-14. Employer responds that Claimant wrongly seeks to relitigate the claims she raised in the previous litigation that arose from her 2017 petitions and concluded in May 2022 when our Supreme Court did not accept Kilgallon I for further review. Employer’s Br. at 10-14. Employer points out that after the Board remanded the previous matter in February 2019 with specific instructions to address the advent of Whitfield in 2018, Claimant had a full and fair opportunity to testify as to her ongoing injury, but she declined to do so, which led the WCJ, Board, and this Court to reject her claims for post-Protz II reinstatement of her TTD status in Kilgallon I. Id. at 11. As such, Employer asserts that Claimant’s identical claims here are precluded. We agree. As noted, technical res judicata or claim preclusion applies when the following four factors are present in both a prior and subsequent litigation: (1) identity in the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Maranc, 751 A.2d at 1199. The first element, the thing sued upon or for by Claimant in the previous litigation, was reinstatement 8 of her TTD status pursuant to Protz II. Kilgallon I, slip op. at 4-5, 2021 WL 2934766, at 2. Here, Claimant again seeks reinstatement of her TTD status. Claimant’s Br. at 8. We note that whereas in the previous litigation, Claimant declined to testify at all, here Claimant did testify, but only as to her current treatment and doctors. Compare Kilgallon I, slip op. at 1, 2021 WL 2934766, at 2 with R.R. at 32a-33a. Although Claimant may have considered this sufficient, the WCJ properly disagreed in light of Whitfield’s clear directive that in order to be eligible for post-Protz II reinstatement of TTD status, the claimant must credibly testify that the work-related injury continues. WCJ Decision, 5/5/21, at 5, R.R. at 155a (citing Whitfield, 188 A.3d at 615). This is a low burden, as neither expert medical evidence nor testimony that the claimant’s ability to work has worsened is required. Whitfield, 188 A.3d at 615. Here, however, Claimant did not specifically testify that her work injury continues, and accordingly, the WCJ again found that Claimant had not met her burden. WCJ Decision, 5/5/21, at 5; R.R. at 155a. Claimant has neither argued to this Court that her testimony in the proceedings underlying this appeal was sufficient nor challenged the Board’s res judicata determination in any way.10 R.R. at 187a-99a; Claimant’s Br. at 8-15. There is therefore identity in the thing being sued upon and, moreover, no new evidence from Claimant that would substantively distinguish this matter from Kilgallon I. There is also identity in the previous and current causes of action because in both instances, the ultimate issue was Claimant’s argument that she should be reinstated to TTD status because Whitfield was wrongly decided. 10 Even if Claimant had presented sufficient testimony in this matter, her claims would likely still be precluded, as she had a full and fair opportunity in the previous litigation to testify pursuant to Whitfield (which the Board directed in its initial remand decision) but declined to do so. As stated above, res judicata precludes not only claims and issues that were previously litigated, but also those where the party had an opportunity to litigate but failed to do so. Maranc, 751 A.2d at 1199. 9 Kilgallon I, slip op. at 4-5, 2021 WL 2934766, at 2; Claimant’s Br. at 8; see also Fields v. Workmen’s Comp. Appeal Bd. (Duquesne Light Co.), 539 A.2d 507, 508 (Pa. Cmwlth. 1988) (stating that for purposes of res judicata, “there is identity of causes of action when in both the old and new proceedings the subject matter and the ultimate issues are the same[.]”). In Kilgallon I, as here, Claimant argued that Whitfield should be overturned because it wrongly shifts the reinstatement burden to the claimant and violates the Remedies Clause of the Pennsylvania Constitution. Kilgallon I, slip op. at 4-5, 2021 WL 2934766, at 2. There is also identity of the persons and parties to the action in both Kilgallon I and here. Claimant in both matters brought suit against Employer and its insurer. Kilgallon I, slip op. at 1, 2021 WL 2934766, at 1; Claimant’s Petition for Review, R.R. at 187a-89a. The final element, the “quality or capacity” of the parties, concerns the ability to sue and be sued; it is not at issue here and, in any event, is also the same as in Kilgallon I. See Kilgallon I, slip op. at 1, 2021 WL 2934766, at 1; Claimant’s Petition for Review, R.R. at 187a-89a; see also Kreider v. Kleinfelter, 461 A.2d 304, 307-08 (Pa. Super. 1983) (stating that identity of capacity to sue or be sued is required for res judicata). Therefore, all four elements for claim preclusion have been met here. Further, we note that this Court has already considered and rejected, on the merits, the same arguments against Whitfield that Claimant asserts here. Weidenhammer, 232 A.3d at 996; see also Kilgallon I, slip op. at 5-8, 2021 WL 2934766, at 3-4 (citing Weidenhammer’s reaffirmance of Whitfield). As our Supreme Court has stated, “[t]he doctrine of res judicata is based on public policy and seeks to prevent an individual from being vexed twice for the same cause.” Stevenson v. Silverman, 208 A.2d 786, 788 (Pa. 1965). Here, 10 Claimant asks this Court to rule again on a claim that she had a full and fair opportunity to (and did) litigate in 2020-21. It is not clear why Claimant decided to relitigate these issues with new petitions in October 2020 when her previous litigation on similar petitions was still active,11 but her failure to testify that her injury is ongoing, both then and now, dictates the same unsuccessful outcome here on the merits. We therefore affirm the Board’s decision and order affirming the WCJ’s denial and dismissal of Claimant’s petitions. __________________________________ CHRISTINE FIZZANO CANNON, Judge 11 Presumably the new petitions were filed when Employer ceased benefits payments at the end of September 2020, which the WCJ calculated as comprising more than 500 weeks of TPD. WCJ Decision, 5/5/21, at 6; R.R. at 156a. While that may have been a triggering event, the nature of Claimant’s challenge here is that her status should not have been modified to TPD at all, which is the same claim and issue she pursued in the litigation that concluded unsuccessfully with Kilgallon I. 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Donna Kilgallon, : Petitioner : : v. : : The Village at Palmerton Assisted : Living and Laundry Owners Mutual : Liability Insurance Association of : Pennsylvania (Workers’ : Compensation Appeal Board), : No. 165 C.D. 2022 Respondents : ORDER AND NOW, this 21st day of November, 2022, the February 1, 2022, order of the Workers’ Compensation Appeal Board is AFFIRMED. __________________________________ CHRISTINE FIZZANO CANNON, Judge	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488232/	USCA11 Case: 21-14388 Date Filed: 11/21/2022 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14388 Non-Argument Calendar ____________________ BRAULIO PEGUEROS MAGANA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A208-549-355 ____________________ USCA11 Case: 21-14388 Date Filed: 11/21/2022 Page: 2 of 5 2 Opinion of the Court 21-14388 Before JILL PRYOR, BRANCH, and TJOFLAT, Circuit Judges. PER CURIAM: Braulio Pegueros Magana seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigra- tion Judge’s (“IJ”) denial of his application for asylum as untimely. Before the IJ, Pegueros Magana argued that the changed circum- stances exception to the one-year filing deadline applied because his prior attorneys had erroneously advised him that he would not qualify for asylum unless a close family member had been killed, and after his brother was killed by the same cartel that had kidnapped and threatened him, he promptly applied for asylum. The IJ rejected this argument, noting that he had not been repre- sented by counsel until after the one-year deadline passed; he had not filed a claim for ineffective assistance of counsel against his prior attorneys; the death of his brother, without more, did not qualify as a changed circumstance; and that the evidence he pre- sented did not establish that his brother’s killing was plausibly re- lated to Pegueros Magana’s own threats and kidnapping. Before the BIA, Pegueros Magana argued that the IJ erred in finding his asylum claim was not timely under the changed cir- cumstances exception, that the IJ was wrong that the evidence did not link his brother’s death to his own claim of persecution, that the IJ’s finding placed “an insurmountable burden” on him to “show unequivocally” that all the events of persecution were re- lated, and that after he learned of his brother’s murder, he “had USCA11 Case: 21-14388 Date Filed: 11/21/2022 Page: 3 of 5 21-14388 Opinion of the Court 3 every right to feel that things had changed” and that despite his prior attorneys’ advice, he should seek asylum relief in the United States. The BIA affirmed the IJ’s finding for the same reasons the IJ stated, and noted that Pegueros Magana had not shown that his brother’s death was related to his claim. Pegueros Magana peti- tioned us for review, and now argues that the BIA and IJ commit- ted a legal error when they determined that the changed circum- stances exception did not apply because they did not consider his testimony that he received erroneous advice from his attorney because Pegueros Magana had not filed an ineffective assistance of counsel claim. We review the decision of the BIA as the final agency deci- sion, and we also review the decision of the IJ to the extent the BIA expressly adopted or explicitly agreed with it. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). We review our own subject-matter jurisdiction de novo. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). We are obliged to consider our own jurisdiction sua sponte. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). An application for asylum must be filed within one year af- ter the applicant’s arrival in the United States. Immigration and Nationality Act (“INA”) § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). However, an untimely application may be considered if the appli- cant “demonstrates to the satisfaction of the Attorney General ei- ther the existence of changed circumstances which materially af- fect the applicant’s eligibility for asylum or extraordinary circum- USCA11 Case: 21-14388 Date Filed: 11/21/2022 Page: 4 of 5 4 Opinion of the Court 21-14388 stances relating to the delay in filing an application within the [re- quired] period.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Pursuant to the asylum statute, “[n]o court shall have juris- diction to review any determination of the Attorney General” re- garding the timeliness of an application or an exception to the time-bar. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). Although this Court retains jurisdiction to consider questions of law or constitu- tional claims raised in a petition for review, INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), whether an asylum application was timely filed, or whether extraordinary or changed circumstances excuse an untimely filing, are not questions of law that this Court can re- view, Chacon-Botero, 427 F.3d at 956–57; see Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th Cir. 2006) (explaining that § 1252(a)(2)(D) “enables judicial review of a petitioner’s constitu- tional claims and questions of law,” but if a petitioner challenges the denial of an asylum application as time-barred without raising a constitutional claim or question of law, the petition must be dismissed). If a petitioner has failed to exhaust his administrative rem- edies with respect to a claim, we lack jurisdiction to consider it. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006). To exhaust a claim, a petitioner must have previously argued “the core issue now on appeal” before the BIA. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (quotation marks omitted). Ex- haustion does not require a petitioner to use precise legal termi- USCA11 Case: 21-14388 Date Filed: 11/21/2022 Page: 5 of 5 21-14388 Opinion of the Court 5 nology or to provide well-developed arguments in support of his claim but does require that he “provide information sufficient to enable the BIA to review and correct any errors below.” Id. Here, we lack jurisdiction to review Pegueros Magana’s ar- gument. Even assuming Pegueros Magana presented a constitu- tional claim or question of law that would survive 8 U.S.C. § 1158(a)(3)’s jurisdictional bar, 1 we lack jurisdiction to hear it be- cause he failed to exhaust his administrative remedies. The core of Pegueros Magana’s argument is that the IJ, in determining whether an exception to the one-year deadline applied, erred by failing to consider his testimony that he received erroneous ad- vice from his prior attorneys. But Pegueros Magana did not raise that argument before the BIA, and therefore did not give the BIA a meaningful opportunity to correct the alleged error. As such, we lack jurisdiction to review the argument. PETITION DISMISSED. 1 To the extent that Pegueros Magana’s argument could be construed as challenging the BIA’s and IJ’s findings that he did not establish a changed cir- cumstance to excuse the untimely filling of his asylum petition, it is barred by § 1158(a)(3).	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488231/	USCA11 Case: 22-10695 Date Filed: 11/21/2022 Page: 1 of 2 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10695 ____________________ KENNETH JOHANSEN, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff-Appellant, versus BLUEGREEN VACATIONS UNLIMITED, INC., a Florida corporation, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Southern District of Florida USCA11 Case: 22-10695 Date Filed: 11/21/2022 Page: 2 of 2 2 Opinion of the Court 22-10695 D.C. Docket No. 9:20-cv-81076-RS ____________________ Before WILSON, JILL PRYOR, and HULL, Circuit Judges. PER CURIAM: In this civil action, plaintiff-appellant Kenneth Johansen appeals the district court’s denial of his motion for class certification of claims brought under the Telephone Consumer Protection Act (“TCPA”). Johansen’s complaint alleged that the defendant-appellee Bluegreen Vacations Unlimited, Inc. violated the TCPA’s do-not-call provisions. Johansen sought class certification to assert TCPA claims on behalf of a nationwide class. The district court denied class certification, finding that Johansen had failed to satisfy the typicality and adequacy requirements of Federal Rule of Civil Procedure 23(a). The only issue on appeal is the district court’s denial of class certification. We review a district court’s class certification order for an abuse of discretion. Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Id. (quotation marks omitted). After review and with the benefit of oral argument, we conclude that Johansen has not carried his burden to show that the district court abused its discretion in denying Johansen’s motion for class certification. AFFIRMED.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488233/	IN THE SUPREME COURT OF THE STATE OF DELAWARE PATRICIA O’ROURKE, § § No. 91, 2022 Plaintiff Below, § Appellants, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No: N20C-08-064 PNC BANK, § § Defendants Below, § Appellees. § Submitted: November 2, 2022 Decided: November 21, 2022 Before SEITZ, Chief Justice; VAUGHN and TRAYNOR, Justices. ORDER This 21st day of November, 2022, after consideration of the parties’ briefs and the record on appeal, it appears to the Court that the judgment of the Superior Court should be affirmed on the basis of and for the reasons stated in its February 15, 2022 Memorandum Opinion. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED. BY THE COURT: /s/ Gary F. Traynor Justice	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488237/	21-1962-cr United States v. Close UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 21st day of November, two thousand twenty-two. 4 5 PRESENT: 6 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 __________________________________________ 12 United States of America, 13 14 Appellee, 15 16 v. No. 21-1962-cr 17 18 Philip M. Close, 19 20 Defendant-Appellant. 21 __________________________________________ 22 23 FOR DEFENDANT-APPELLANT: JAY S. OVSIOVITCH, Assistant Federal Public 24 Defender, Federal Public Defender’s Office, 25 Western District of New York 26 27 FOR APPELLEE: KATHERINE A. GREGORY, Tiffany H. Lee, 28 Assistant United States Attorneys, for Trini 29 E. Ross, United States Attorney for the 30 Western District of New York 31 32 1 Appeal from a judgment of the United States District Court for the Western District of New 2 York (Charles J. Siragusa, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the August 6, 2021 judgment of the district court is AFFIRMED. 5 Defendant Philip Close pled guilty to 61 counts of production of child pornography and 6 13 counts of possession of child pornography. Most of the counts were based on recordings Close 7 made of children’s genitalia while the unsuspecting victims used the bathroom at his music 8 school. The district court imposed sentences totaling 600 months of imprisonment and ten years 9 of supervised release, a variance below the 25,080 months of imprisonment recommended under 10 the Sentencing Guidelines. Close appeals certain of his convictions and his sentence, arguing 11 that: (1) the recordings Close produced and some of the videos he possessed do not constitute child 12 pornography under 18 U.S.C. §§ 2251(a) and 2256(2)(A)(v); and (2) Close’s 50-year sentence of 13 imprisonment is substantively unreasonable. We assume the parties’ familiarity with the 14 underlying facts, procedural history, and the issues for review, which we discuss only as necessary 15 to explain our decision to affirm. 16 I. Close’s Appeal of His Convictions 17 The basis for Close’s challenge to his production convictions and several of his possession 18 convictions is unclear. Although, in his briefs, Close characterizes his argument as an as-applied 19 constitutional challenge, Close neither identifies the constitutional provision that was allegedly 20 violated nor articulates a theory of violation. Although a “criminal defendant who enters an 21 unconditional guilty plea may still appeal his conviction on the ground that the statute of conviction 22 is unconstitutional,” United States v. Alarcon Sanchez, 972 F.3d 156, 166 n.3 (2d Cir. 2020), 2 1 Close’s failure to identify the nature of any unconstitutionality makes it impossible to treat his 2 argument as based on the Constitution. 3 Instead, Close’s argument is properly construed as a challenge brought pursuant to Fed. R. 4 Crim. P. 11(b)(3) and directed at the factual basis of his guilty plea. See Oral Arg. at 4:51–5:13 5 (Close’s counsel acknowledging this claim as “possible challenge to his guilty plea”). So 6 construed, we review Close’s challenge for plain error, because, in the district court, Close did not 7 withdraw or object to his plea, nor did he claim it lacked a factual basis. See United States v. 8 Balde, 943 F.3d 73, 95–96 (2d Cir. 2019). 9 The district court did not err, let alone plainly err, in accepting Close’s guilty plea because 10 Close’s recordings depicted sexually explicit conduct constituting child pornography within the 11 meaning of the relevant statutes. Close pled guilty to crimes that prohibit the use of a minor to 12 engage in “any sexually explicit conduct for the purpose of producing any visual depiction of such 13 conduct” and the “knowing[] possess[ion]” of materials containing an image of “a minor engaging 14 in sexually explicit conduct.” 18 U.S.C. §§ 2251(a), 2251(e), 2252A(a)(5)(B), 2252A(b)(2), 15 2256(2)(A). “Sexually explicit conduct” is defined in the statute with five different categories of 16 behavior, and the parties agree that only one is at issue here: “lascivious exhibition of the anus, 17 genitals, or pubic area of any person.” Id. § 2256(2)(A)(v). “Lascivious exhibition” is not 18 defined, but this Court and several other circuit courts have applied the following six-factor test in 19 determining whether a recording depicts a minor engaging in “lascivious exhibition”: 20 1) whether the focal point of the visual depiction is on the child’s 21 genitalia or pubic area; 22 2) whether the setting of the visual depiction is sexually suggestive, 23 i.e., in a place or pose generally associated with sexual activity; 24 3) whether the child is depicted in an unnatural pose, or in 3 1 inappropriate attire, considering the age of the child; 2 4) whether the child is fully or partially clothed, or nude; 3 5) whether the visual depiction suggests sexual coyness or a 4 willingness to engage in sexual activity; 5 6) whether the visual depiction is intended or designed to elicit a 6 sexual response in the viewer. 7 United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (quoting United States v. Dost, 8 636 F. Supp. 828, 832 (S.D. Cal. 1986)); cf. United States v. Spoor, 904 F.3d 141, 149–51 9 (2d Cir. 2018) (approving use of the factors in jury instructions, but warning that additional 10 instruction may be warranted to clarify that the sixth factor alone is insufficient to find a recording 11 to be a “lascivious exhibition”). 12 As Close acknowledges, this Court has squarely held that videos such as those Close 13 produced and possessed can constitute child pornography. See Spoor, 904 F.3d at 149–51. 1 In 14 Spoor, this Court concluded that a secret recording of children’s genitalia and pubic areas while 15 they use the bathroom—the exact type of videos at issue here—can be considered lascivious and, 16 therefore, can constitute “sexually explicit conduct” within the scope of the statutes to which Close 17 pled guilty. Id. at 149–50. 2 The Court explained that whether a video depicts “lascivious 18 exhibition” depends on the overall content of the material and that “suggestive posing, sex acts, or 19 inappropriate attire” are not necessary to conclude that a recording or image is child pornography. 20 Id. at 149. Like the defendant in Spoor, Close here positioned the camera so the pubic area of the 21 children would be the focus of the shot, he hid cameras in a bathroom setting that could be the 1 Close acknowledges that “[t]hese issues have previously been addressed by this Court in [Spoor] and are thus foreclosed from review by this panel.” Appellant’s Br. 34. He raises this issue to preserve it for further appeal. 2 We acknowledge that a recent D.C. Circuit case found similar videos not to constitute “lascivious exhibition.” See United States v. Hillie, 14 F.4th 677, 680–692 (D.C. Cir. 2021), amended by United States v. Hillie, 39 F.4th 674, 677 (D.C. Cir. 2022). As the D.C. Circuit acknowledged, its analysis was inconsistent with our precedent and the precedent of numerous sister circuits. Id. at 689. We are bound by our prior precedent. 4 1 subject of sexual fantasy, and he intended to create a video to elicit a sexual response from the 2 viewer. Id. at 148–50. Close’s intent is further demonstrated by his meticulous actions, 3 including taking the cameras’ memory cards home, cropping and editing the videos to remove 4 unwanted content, and creating files with names corresponding to his victims. Authorities also 5 found videos showing Close touching nine children inappropriately or masturbating behind others. 6 Finally, at Close’s plea hearing, he admitted facts supporting his guilty plea, including that every 7 recording in his indictment constituted child pornography and that he had reviewed with his 8 attorney the legal definition of child pornography and the meaning of “sexually explicit conduct.” 9 This evidence was sufficient to conclude, under Spoor, that there was a factual basis for Close’s 10 plea. See id. 11 II. Close’s Appeal of His Sentence 12 Close argues that his sentence is substantively unreasonable because a term of 50 years 13 should be reserved for the worst child pornography defendants, which he is not. We consider “the 14 substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall 15 v. United States, 552 U.S. 38, 51 (2008). We will “‘set aside a district 16 court’s substantive determination only in exceptional cases where the trial court’s decision cannot 17 be located within the range of permissible decisions.’” United States v. Ingram, 721 F.3d 35, 37 18 (2d Cir. 2013) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)). 19 “Our review of a sentence for substantive reasonableness is governed by the factors set forth in 20 18 U.S.C. § 3553(a).” United States v. Jenkins, 854 F.3d 181, 187 (2d Cir. 2017). District courts 21 are instructed to impose a sentence that is “sufficient, but not greater than necessary,” to effectuate 22 the purposes of sentencing. See 18 U.S.C. § 3553(a). Applying these principles here, we identify 5 1 no abuse of the district court’s sentencing discretion. 2 The district court provided several reasons for its sentencing decision, following the factors 3 of § 3553(a), and deemed the sentence sufficient, but not longer than necessary. The district court 4 imposed concurrent 30-year sentences for all 61 production counts, to run consecutively with 5 concurrent 20-year sentences for all 13 possession counts. The sentence accounted for the 6 unusually high number of victims, as well as the seriousness of the offenses and their nature and 7 circumstances. The district court considered the intentionality of Close’s actions as to his 61 8 victims and the videos depicting Close abusing at least nine students, explaining the length of the 9 sentence on the basis of the unusually large number of victims. Some of the victims he recorded 10 were as young as four. The reasonableness of the sentence is also supported by Close’s abuse of 11 the trust of his victims and their parents. See United States v. Broxmeyer, 699 F.3d 265, 295 12 (2d Cir. 2012). 13 We recognize “the need to avoid unwarranted sentence disparities among defendants with 14 similar records who have been found guilty of similar conduct,” as § 3553(a)(6) requires, but this 15 is not an “exceptional case” where the district court’s decision “‘cannot be located within the range 16 of permissible decisions’” given the analysis of the remaining § 3553(a) factors. See Ingram, 17 721 F.3d at 37 (quoting Cavera, 550 F.3d at 188). We also do not accept Close’s arguments 18 distinguishing himself based on his purportedly limited physical contact with his victims, because 19 the record demonstrates that Close did inappropriately touch his victims and the Court has 20 previously rejected the notion “that non-contact production of child pornography is categorically 21 less harmful than sexual abuse involving physical contact.” United States v. Muzio, 22 966 F.3d 61, 66 (2d Cir. 2020). 6 1 Given our deferential standard of review and the district court’s explanation of the 2 § 3553(a) factors, Close’s sentence falls within the range of reasonable sentences in this case. 3 Accordingly, we conclude that the district court did not abuse its discretion. 4 We have considered Close’s remaining arguments and find them to be without merit. 5 Accordingly, the judgment of the district court is AFFIRMED. 6 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court 7	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488236/	22-690-cr United States of America v. Gurung UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 21st day of November, two thousand twenty-two. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 REENA RAGGI, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. No. 22-690-cr 17 18 Nijesh Gurung, 19 20 Defendant-Appellant. 21 22 _____________________________________ 23 24 FOR DEFENDANT-APPELLANT: MARTIN J. VOGELBAUM, Federal Public Defender’s 25 Office, Western District of New York, Buffalo, NY. 26 27 FOR APPELLEE: TIFFANY H. LEE, Assistant United States Attorney, 28 United States Attorney’s Office for the Western 29 District of New York, Buffalo, NY. 30 1 Appeal from a judgment of the United States District Court for the Western District of New 2 York (Frank P. Geraci, Jr., J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Defendant Nijesh Gurung appeals a special condition of his supervised release imposed by 6 the district court. On October 14, 2021, Gurung pled guilty to manufacturing and dealing in 7 firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). On 8 March 28, 2022, the district court sentenced Gurung to, principally, a one-year-and-one-day term 9 of imprisonment and a two-year term of supervised release, with special conditions. On appeal, 10 Gurung challenges a special condition requiring that he participate in a program for substance 11 abuse, including substance abuse testing; that if testing indicates substance abuse, he undergo a 12 drug and alcohol evaluation and treatment; that if treatment is required, he abstain from the use of 13 alcohol for the full term of supervised release; and that he contribute to the costs of any services 14 (the “special condition”). 1 We affirm the special condition because we conclude that the district 15 court made a sufficient individualized assessment in determining to impose the special condition 16 and stated its reasoning on the record. We assume the parties’ familiarity with the underlying 17 facts, the procedural history of the case, and the issues on appeal, which we discuss only as 18 necessary to explain our decision to affirm. 1 Before reaching this issue, Gurung first argues that the appeal waiver in his plea agreement is unenforceable as to his challenge to the special condition. The United States “concedes that the appeal waiver does not foreclose challenges to that aspect of the sentence pertaining to the validity of the special condition of supervised release.” Appellee Br. 8–9. 2 1 I. Legal Standards 2 Where, as here, a defendant with notice does not object to a special condition of supervised 3 release before the district court, we review the imposition of the special condition for plain error. 4 United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015). A court may impose special conditions 5 “so long as they are ‘reasonably related’ to: (A) ‘the nature and circumstances of the offense and 6 the history and characteristics of the defendant’; (B) ‘the need for the sentence imposed to afford 7 adequate deterrence to criminal conduct’; (C) the protection of the public; and (D) the rehabilitative 8 and medical care needs of the defendant.” United States v. Parisi, 821 F.3d 343, 348 (2d Cir. 2016) 9 (quoting United States v. Brown, 402 F.3d 133, 136–37 (2d Cir. 2005)); see also U.S. Sent’g 10 Guidelines Manual § 5D1.3(b); 18 U.S.C. § 3583(d). The special condition “must also involve 11 ‘no greater deprivation of liberty than is reasonably necessary for the purposes’ of sentencing, and 12 it must be ‘consistent with any pertinent policy statements’ in the [U.S. Sentencing] Guidelines.” 13 Brown, 402 F.3d at 137 (quoting 18 U.S.C. § 3583(d)). When determining whether to impose a 14 special condition of supervised release, the district court is required to make an “individualized 15 assessment” and to “state on the record the reason for imposing it.” United States v. Betts, 16 886 F.3d 198, 202 (2d Cir. 2018). 17 II. Analysis 18 The district court made an individualized assessment sufficient to support imposition of 19 the special condition. At Gurung’s sentencing, the district court adopted the United States 20 Probation Office’s Presentence Investigation Report (the “PSR”), which set forth Gurung’s 21 substance abuse history. The district court also reviewed the parties’ sentencing statements. 22 Gurung began using marijuana at age 16, smoking two blunts per day, throughout the day; he 3 1 began using alcohol at age 17, drinking one or two beers or glasses of wine, when he could access 2 it. He withdrew from school, which his sentencing statement attributes, in part, to his early 3 marijuana use. At age 18, Gurung manufactured and dealt firearms without a license. The 4 Probation Office noted Gurung’s substance abuse history, that he had never participated in any 5 substance abuse treatment, and recommended the special condition. After considering the 6 applicable sentencing factors, the district court stated on the record that it was imposing the special 7 condition based upon Gurung’s history of drug use. Accordingly, we find that the district court 8 made a sufficient individualized assessment when determining whether to impose the special 9 condition and stated its reasoning on the record. We also find that, based on that individualized 10 assessment, the special condition reasonably related to the sentencing factors. Finally, we find 11 that the special condition involved no greater deprivation of liberty than reasonably necessary for 12 the purposes of sentencing because the special condition imposes treatment only if continued 13 substance abuse is indicated by testing, and prohibits alcohol use only if treatment is imposed. 14 15 For the above-stated reasons, we AFFIRM the district court’s imposition of the special 16 condition. 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court 4	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488238/	20-1855 Singh v. Garland BIA A206 443 847 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 JOSEPH F. BIANCO, 9 BETH ROBINSON, 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 GURDEV SINGH, 15 Petitioner, 16 17 v. No. 20-1855 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jagbir S. Terkiana, San Jose, CA. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Senior Litigation Counsel; Margot 29 L. Carter, Senior Litigation 1 Counsel, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is GRANTED. 10 Petitioner Gurdev Singh, a native and citizen of India, 11 seeks review of a May 21, 2020 decision of the BIA denying 12 his motion to reopen his removal proceedings based on 13 ineffective assistance of counsel. In re Gurdev Singh, No. 14 A 206-443-847 (B.I.A. May 21, 2020). We assume the parties’ 15 familiarity with the underlying facts and procedural history. 16 Our review is limited to the BIA’s denial of reopening 17 because Singh timely petitioned for review of only that 18 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 19 F.3d 83, 89–90 (2d Cir. 2001). In considering challenges to 20 the BIA’s denial of reopening, “we review the factfinding 21 below for abuse of discretion” and “we review de novo 22 constitutional claims and questions of law.” See Luna v. 23 Holder, 637 F.3d 85, 102—03 (2d Cir. 2011). 24 In the removal proceeding context, “[i]neffective 25 assistance of counsel . . . occurs when counsel’s performance 2 1 impinged upon the fundamental fairness of the hearing in 2 violation of the fifth amendment due process clause[,]” that 3 is “when (1) competent counsel would have acted otherwise, 4 and (2) the alien was prejudiced by counsel’s performance.” 5 Iavorski v. INS, 232 F.3d 124, 128–29 (2d Cir. 2000) (internal 6 quotation marks omitted). 7 The BIA erred in concluding that Singh failed to 8 establish ineffective assistance of counsel. The immigration 9 judge (“IJ”) found that Singh was not credible because he 10 claimed in his asylum application that he stopped working as 11 a farmer in India in June of 2013 and that he left India in 12 July of 2013. These dates contradicted one of the central 13 claims in Singh’s various petitions for relief: that he was 14 attacked in India in August of 2013. Singh testified to the 15 IJ that he departed India in September of 2013. When the IJ 16 flagged that this testimony was inconsistent with the dates 17 provided in his asylum application, Singh testified that he 18 did not understand, could not explain the discrepancy, and 19 reiterated that he left India in September of 2013. Singh’s 20 testimony that he was attacked in August of 2013 and fled 21 India in September of 2013 is consistent with a written 22 declaration provided by Singh in this matter, the oral 3 1 testimony he gave during his credible fear interview, 2 affidavits from family members, and an affidavit of a 3 physician who claims to have treated Singh for “[b]lunt 4 injuries of back and legs and nasal bleedings” in a hospital 5 in Jalmana, India on August 18, 2013. 6 Singh’s former counsel, Mukta Chand (“Chand”) informed 7 the IJ that the June and July dates in the asylum application 8 were errors. The IJ rejected this explanation, found Singh’s 9 testimony about the attacks in India to lack credibility, and 10 denied asylum, withholding of removal, and CAT relief. Singh 11 appealed, but the BIA affirmed the IJ’s decision. Singh did 12 not petition for review in this Court. 13 Instead, Singh filed a timely motion to reopen with the 14 BIA, arguing that his former counsel, Chand, was ineffective. 15 As is relevant here, Singh alleges that he knew Chand had 16 entered incorrect dates in his asylum application concerning 17 the end of his employment and his departure from India, that 18 he had asked her to correct the errors, and that she failed 19 to do so. In response to the bar complaint that Singh filed 20 against her, Chand claims that Singh himself provided her 21 with the disputed dates, and that she simply relied on Singh’s 22 representations. 4 1 The BIA denied Singh’s motion to reopen, finding that he 2 did not persuasively demonstrate that Chand introduced the 3 alleged errors into the application. The BIA weighed Singh’s 4 allegations in his motion against Chand’s statements and the 5 fact that Singh swore at his immigration hearing that the 6 contents of his application were read to him in his native 7 language and were correct. The BIA credited Chand’s version 8 of events and concluded that because Singh gave Chand the 9 incorrect dates, he did not suffer from ineffective 10 assistance of counsel. 11 While the BIA did not abuse its discretion in crediting 12 Chand’s version of events over Singh’s, the BIA erred as a 13 matter of law in concluding that Singh had not established 14 that he received ineffective assistance of counsel. Even 15 assuming that Chand’s version of events is accurate, Chand’s 16 representation of Singh was inadequate. In Chand’s telling, 17 Singh provided her with incorrect dates, and she simply 18 recorded those dates in the application notwithstanding that 19 the dates plainly rendered his timeline impossible. She then 20 realized during the IJ hearing that the dates were erroneous, 21 and argued in her brief on appeal to the BIA that the dates 22 included in the asylum application were erroneous. 5 1 Chand’s failure to address the plainly inconsistent dates 2 to fix what she herself claims were errors renders her 3 performance incompetent. Competent counsel would have 4 realized when preparing the application, and in preparing for 5 the hearing, that the dates included in the asylum application 6 did not make sense. Competent counsel would have recognized 7 that one cannot have fled India in July of 2013 and then have 8 been attacked in India in August of 2013. Competent counsel 9 would have worked with their client to confirm the correct 10 timeline and fix the error before submitting the application. 11 While even “unwise” tactical or strategic decisions “that 12 ultimately fizzle and redound to the client’s detriment” do 13 not necessarily constitute ineffective assistance of counsel, 14 see Jiang v. Mukasey, 522 F.3d 266, 270–71 (2d Cir. 2008), 15 there is no possible strategic or tactical reason for allowing 16 a client to submit an asylum application that presents a 17 timeline that is facially impossible. And while an attorney 18 can be forgiven for overlooking minor inconsistencies, an 19 attorney’s failure to flag and resolve a factual error that 20 renders their client’s claims for relief incomprehensible is 21 the kind of mistake that “self-evident[ly]” constitutes 22 ineffective assistance of counsel. Cf. Aris v. Mukasey, 517 6 1 F.3d 595, 596 (2d Cir. 2008) (explaining that it is “self- 2 evident” that failing to properly advise a client as to the 3 date of their immigration hearing constitutes ineffective 4 assistance of counsel). 5 Chand’s failure to flag and resolve the mistaken dates, 6 furthermore, plainly prejudiced Singh. As the government 7 concedes, the IJ based the adverse credibility finding solely 8 on the inconsistency between Singh’s testimony regarding the 9 August 2013 attack and the dates listed in Singh’s asylum 10 application. Singh has therefore established that he was 11 deprived of effective assistance of counsel during his 12 removal proceedings in violation of his due process rights. 13 See Iavorski, 232 F.3d at 128–29. 14 For the foregoing reasons, the petition for review is 15 GRANTED. The BIA’s decision is VACATED, and the case is 16 REMANDED to the BIA for proceedings consistent with this 17 order. 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court 7	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488235/	21-2511-cr United States v. Mingo UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECENDTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 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 21st day of November, two thousand twenty-two. PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, JOSEPH F. BIANCO, Circuit Judges. ______________________________________ United States of America, Appellee, v. 21-2511-cr Anthony Torres, Yadira Polanco, Juan P. Montalvo, Omar Astacio, Jonathan Gordon, Joey Corretjer, Jr., Morris Alvarez, AKA Morris Alverez, Sean Torres, Joan Ogando-Ramiriz, Jean C. Gonzalez, Charles Nix, AKA Gutter, FKA Sealed Defendant 11, Ryan David, Jermaine Ivey, AKA Spade, Noyka Gonzalez, Jamel Broadus, AKA Mel, Ricardo Rowley, AKA Braisy, Hassan Stewart, AKA Ja, Lucien Batiste, AKA Sticks, Shenoll Bruno, AKA Ambush, Jason Ohare, Gus Lynch, AKA SHA, Ezekial McLain, AKA X, Tashawn Vailes, AKA Freaky, Richard Duval, AKA Breeze, Defendants, Jermaine Mingo, AKA V.I.P. Defendant-Appellant. * ______________________________________ FOR APPELLEE: Steven D. Clymer, Paul D. Silver, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, NY. FOR DEFENDANT-APPELLANT: Molly Corbett, Assistant Federal Public Defender, for Lisa Peebles, Federal Public Defender for the Northern District of New York, Albany, NY. Appeal from orders of the United States District Court for the Northern District of New York (Scullin, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED. Defendant-appellant Jermaine Mingo appeals from the orders, entered on September 22, 2021, and September 28, 2021, of the United States District Court for the Northern District of New York (Scullin, J.), denying his motions to terminate or reduce his term of supervised release. In 2008, a jury convicted Mingo of conspiring to possess with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 841, 846 and 851. In April 2009, the district court imposed a below-guidelines sentence of 200 months, followed by eight years of supervised release. In January 2019, Mingo filed a motion, pro se, pursuant to Section 404(b) of the First Step Act, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018), for a reduction in his sentence as to both his term of imprisonment and supervised release. In April 2019, Mingo filed a counseled * The Clerk of Court is respectfully directed to amend the official caption as set forth above. 2 supplemental submission in support of his Section 404(b) motion. In July 2020, while the motion was still pending, Mingo was released from custody and began his eight-year term of supervised release. Mingo’s release mooted his request for a reduction in his term of imprisonment, but his request for a reduction in his term of supervised release remained pending. Within a year of his release, Mingo violated the terms of his supervised release twice. 1 The district court first modified his supervision to add a sixty-day curfew condition in June 2021 after he travelled out of the district without permission and was ticketed for speeding. Approximately one month later, Mingo tested positive for marijuana, which resulted in the district court imposing an additional six-month curfew condition in August 2021. On September 9, 2021, Mingo filed a motion pursuant to 18 U.S.C. § 3583(e)(1), seeking early termination of his remaining term of supervised release. On September 22, 2021, the district court entered a one-page form order denying Mingo’s Section 404(b) motion for a reduction in his remaining term of supervised release. On September 28, 2021, in a text minute entry, the district court denied Mingo’s Section 3583(e)(1) motion for early termination of supervised release. On appeal, Mingo argues that the summary denials of his motions to terminate or reduce his supervised-release term were an abuse of discretion. Specifically, he contends that the district court abused its discretion in denying his request to reduce his term of supervised release under Section 404(b) because the summary order “fails to demonstrate a determination of Mr. Mingo’s eligibility, nor does the order address sentence calculation changes flowing from section 2 of the Fair Sentencing Act.” Appellant’s Br. at 13. Mingo also contends that in denying his motions, the district court abused its discretion by failing to explain its reasoning in the summary orders, including its consideration of the 18 U.S.C. § 3553(a) factors as applicable to those motions. We 1 Mingo did not contest either violation, but rather consented on each occasion to the United States Probation Office’s proposed modification of his supervised release conditions. 2 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm. “We typically review the denial of a motion for a discretionary sentence reduction for abuse of discretion.” United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020). A district court has exceeded the bounds of its discretion “if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotations marks and citations omitted). Moreover, “[w]e cannot uphold a discretionary decision unless we have confidence that the district court exercised its discretion and did so on the basis of reasons that survive our limited review.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc). A. Eligibility under Section 404(b) A district court must proceed in two steps when resolving a motion for a sentence reduction pursuant to Section 404(b) of the First Step Act. “First, the court must determine whether the defendant is eligible for a reduction. Second, if the defendant is eligible, the court must determine whether, and to what extent, to exercise its discretion to reduce the sentence.” United States v. Moore, 975 F.3d 84, 89 (2d Cir. 2020). As a threshold matter, Mingo argues that the district court abused its discretion because “the order of the district court fails to demonstrate a determination of Mr. Mingo’s eligibility” and thus the district court may have denied the motion because it mistakenly concluded that he was ineligible for relief under Section 404(b). Appellant’s Br. at 13. However, Mingo has failed to demonstrate that the denial was based on an erroneous eligibility determination. 3 The record reflects that, after Mingo moved for a reduction in his sentence pursuant to Section 404(b), the government, via a letter, advised the district court that this Court’s pending decision in United States v. Davis, 961 F.3d 181 (2d Cir. 2020), would resolve the question of whether Mingo was eligible for a reduction in sentence under the First Step Act. After this Court issued the Davis decision, the district court requested that the parties submit letter briefs addressing how Davis impacted Mingo’s motion. The government and Mingo both submitted letter briefs to the district court explaining that Davis resolved the question concerning Mingo’s eligibility for Section 404(b) relief and confirmed that he was, in fact, eligible. Given that the district court had the parties’ letter briefs, which agreed that Mingo was eligible for relief under Section 404(b), there is no basis upon which to conclude that the district court did not understand that Mingo was eligible for relief when it denied his Section 404(b) motion. See United States v. Banks, 464 F.3d 184, 190 (2d Cir. 2006) (“In the absence of contrary indications, courts are generally presumed to know the laws that govern their decisions and to have followed them.”). Instead, as discussed more fully below, it is apparent from the record that the district court exercised its discretion in denying the Section 404(b) motion to reduce the term of supervised release, as well as the motion seeking termination under Section 3583(e)(1), due to Mingo’s two supervised release violations committed shortly before the district court’s summary denial of both motions. B. Failure to Provide Reasoning for Denial of the Motions Mingo also argues that the district court abused its discretion by failing to explain its decisions to deny his motions to terminate or reduce his term of supervised release. Specifically, Mingo asserts that the orders provide neither explanation for the denials nor any basis upon which we can review the district court’s exercise of discretion. 4 The First Step Act does not require the district court to hold a “plenary resentencing” hearing. Moore, 975 F.3d at 92. Moreover, the district court is not required to discuss each and every sentencing factor in exercising its discretion. See United States v. Christie, 736 F.3d 191, 196 (2d Cir. 2013); see also Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“[T]he First Step Act [does not] require a district court to make a point-by-point rebuttal of the parties’ arguments.”). However, we have emphasized that “this does not relieve the district court of its obligation to provide, at a minimum, enough explanation of how it exercised its sentencing discretion to permit meaningful appellate review.” Christie, 736 F.3d at 196. Therefore, “[t]he explanation required need not be lengthy. But absent some indication of the rationale for the ruling, we are precluded from conducting meaningful appellate review.” Id. Under Section 3583(e)(1), a district court may, after considering certain factors set forth in 18 U.S.C. § 3553(a), terminate or reduce a term of supervision after one year of supervised release if “such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). As with motions under the First Step Act, we do not “require district courts to make specific findings of fact with respect to each of [the Section 3553(a)] factors,” but rather “have held that a statement that the district court has considered the statutory factors is sufficient.” United States v. Gammarano, 321 F.3d 311, 315–16 (2d Cir. 2003) (internal quotation marks and citation omitted) (alteration accepted). Moreover, the district court should provide some explanation for its decision with respect to such a motion. See United States v. Young, 998 F.3d 43, 55–56 (2d Cir. 2021). Here, the district court failed to state any reasons for its denial of Mingo’s motions as required by our precedent. Although such failure would generally require remand to allow for meaningful appellate review, we have not required remand where a failure is harmless because 5 “the reasons for the district court’s actions may be obvious from the history of the case,” and are “apparent from the record.” Christie, 736 F.3d at 196; see also United States v. Mathis-Gardner, 783 F.3d 1286, 1289 (D.C. Cir. 2015) (“Where clear and compelling reasons to deny relief leap out from the record, requiring an explanation from the district court to avoid reversal for abuse of discretion would elevate form over substance.”). We conclude that such a situation exists here. The record reflects that Mingo commenced his term of supervised release on July 24, 2020. In less than one year, on May 9, 2021, Mingo was ticketed by New York State Police for driving 101 m.p.h. in a 65-m.p.h. zone. In connection with this ticket, Mingo admitted that he violated the conditions of his release by traveling outside of the Northern District of New York without the permission of the Probation Office or the district court. In response, on June 1, 2021, the district court imposed a 60-day curfew. Shortly thereafter, on July 19, 2021, Mingo tested positive for marijuana, as was later confirmed by laboratory analysis. As a result, on August 26, 2021, the district court imposed a six-month curfew. Approximately one month after the district court modified the supervised release conditions for the second time due to Mingo’s violations, it summarily denied his motions to terminate or reduce his supervised release. Given that these decisions were so close in time to Mingo’s failure to abide by the conditions of his release on two occasions, as well as the fact that the district court’s order denying the Section 3583(e)(1) motion expressly referenced that it was giving Mingo “leave to reapply in one year” for early termination of his supervised release, App’x at 17, it is apparent from the record that the district court’s reason for denial was, at a minimum, based upon these recent supervised release violations. Moreover, Mingo does not contest that the district court can properly consider these violations as grounds for denying his motions in its exercise of discretion under the Section 3553(a) factors, including Mingo’s history and 6 characteristics, and the need to provide him with correctional treatment in the most effective manner. 18 U.S.C § 3553(a)(1)–(2)(D). Accordingly, because the reason for the denial of the motions is apparent from the record under the particular circumstances of this case and could be considered by the district court in its discretion, we conclude that remand is unnecessary. 2 * * * We have considered all of Mingo’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the orders of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 2 We note that, because it has been more than one year since the denial of the Section 3583(e)(1) motion on September 28, 2021, Mingo may renew his motion for early termination of supervised release pursuant to the district court’s order. If such a motion is filed, we fully expect that the district court will provide an explanation for its decision on the motion as to whether Mingo is eligible for a reduction and whether he should have his sentence reduced—as our precedent requires. 7	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488248/	Case: 21-1764 Document: 66 Page: 1 Filed: 11/21/2022 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ VIRENTEM VENTURES, LLC, Appellant v. GOOGLE LLC, Appellee ______________________ 2021-1764, 2021-1765, 2021-1804, 2021-1822 ______________________ Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2019- 01237, IPR2019-01239, IPR2019-01241, IPR2019-01243. ______________________ JUDGMENT ______________________ DENISE MARIE DE MORY, Bunsow De Mory LLP, Red- wood City, CA, argued for appellant. DANIEL ZEILBERGER, Paul Hastings LLP, Washington, DC, argued for appellee. Also represented by NAVEEN MODI, STEPHEN BLAKE KINNAIRD, JOSEPH PALYS. ______________________ THIS CAUSE having been heard and considered, it is Case: 21-1764 Document: 66 Page: 2 Filed: 11/21/2022 ORDERED and ADJUDGED: PER CURIAM (NEWMAN, REYNA, and CHEN, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT November 21, 2022 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488234/	18-2281 Garcia-Aranda v. Garland United States Court of Appeals For the Second Circuit August Term 2021 Argued: January 20, 2022 Decided: November 21, 2022 No. 18-2281 KARLA IVETH GARCIA-ARANDA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. Petition from the Board of Immigration Appeals No. A206-716-166. Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges. Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. DENIED IN PART, GRANTED IN PART, VACATED IN PART, AND REMANDED. HEATHER AXFORD (Rebecca Press, Paola Donovan, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner. BEAU BAUMANN (Joseph H. Hunt, Patricia A. Smith, Victor M. Lawrence, on the brief), United States Department of Justice, Washington, DC, for Respondent. Christopher P. Malloy, Sophia M. Mancall- Bitel, Amber R. Will, New York, NY, for Amici Curiae Brooklyn Defender Services, The Bronx Defenders, Erie County Bar Association Volunteer Lawyers Project, The Legal Aid Society, and The Prisoners’ Legal Services of New York. RICHARD J. SULLIVAN, Circuit Judge: Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and 2 relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the BIA’s decisions are VACATED IN PART to the extent that they denied CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. 3 I. BACKGROUND A. Factual Background 1 Prior to fleeing Honduras, Garcia-Aranda lived with her husband and two children in the village of San Juan, in the municipality of Tela and in the department of Atlantida. Although Garcia-Aranda and her parents were law- abiding citizens, she acknowledged that most of her extended family was involved in drug trafficking in Honduras – led by her great uncle, Jorge Valerio. Beginning in 2008, members of the Mara 18 gang began killing members of the Valerio family, including Jorge Valerio, because of their involvement in drug trafficking and their refusal to pay a “war tax” to the gang. The gang also killed Garcia-Aranda’s stepfather, who was not involved in the Valerio drug operation, due to his relationship with the family. After the gang murdered her aunt in 2010, Garcia-Aranda moved with her husband and children to Tegucigalpa, Honduras to escape the violence. They returned to San Juan three years later, after hearing that the Valerio family had ceased selling drugs and that the dispute with the gang had subsided. Back in San Juan, Garcia-Aranda and her husband opened two businesses, one selling food 1The factual background presented here is derived from the Certified Administrative Record and factual findings of the IJ, which are not disputed on appeal. 4 and one transporting local children to school. But the Mara 18 gang soon approached Garcia-Aranda – first to gain information on the whereabouts of an uncle involved in drug trafficking, and later to demand that Garcia-Aranda and her husband pay a “quota,” or extortion payment, based on the belief that the couple had money from their businesses and from an inheritance from Jorge Valerio. For about six months, Garcia-Aranda and her husband paid the “quota,” but then stopped after their businesses’ sales declined. Garcia-Aranda and her husband then fled to Mexico, but in 2014, they returned to San Juan after being deported. Almost immediately thereafter, a group of Mara 18 gang members kidnapped Garcia-Aranda, her husband, and her children and again demanded money in light of her purported inheritance from Jorge Valerio. The gang held Garcia-Aranda and her family for three days, during which time they deprived her of food and repeatedly beat her husband. During her captivity, Garcia-Aranda recognized the voice of a local police officer, whom she knew because he had previously come to Jorge Valerio’s home to collect money. After Garcia-Aranda’s mother paid a portion of the ransom, the gang released the family. B. Procedural History In June 2014, following the kidnapping, Garcia-Aranda and her two 5 children entered the United States without inspection. They were apprehended at the border and were served by the Department of Homeland Security with notices to appear charging them with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, and with Garcia-Aranda participating as lead applicant, the family conceded removability as charged and timely applied for asylum, withholding of removal, and protection under CAT. 2 At a later merits hearing before the IJ, Garcia-Aranda testified to the events discussed above. Garcia- Aranda also submitted exhibits pertaining to the country conditions in Honduras – including the U.S. Department of State’s 2015 Country Report on Human Rights Practices for Honduras and Douglas Farah’s “Central America’s Northern Triangle: A Time of Turmoil and Transition,” which chronicled the sources of corruption, violence, criminal activity, and governmental abuse in Honduras. On September 6, 2016, despite finding that Garcia-Aranda had testified credibly, the IJ denied the family’s applications for asylum, withholding of removal, and CAT relief and ordered their removal to Honduras. The IJ found 2As alluded to above, Garcia-Aranda’s two children were included as derivative beneficiaries in her removal proceedings. They were also originally included as petitioners here, but their cases have been severed and remanded. 6 that Garcia-Aranda failed to satisfy her burden for asylum or withholding of removal because her proposed social group (members of the Valerio family in San Juan, Tela, Atlantida, Honduras) did not constitute a “particular social group,” as required by 8 U.S.C. § 1101(a)(42). Alternatively, the IJ found that, even if the Valerio family did qualify as a “particular social group,” Garcia-Aranda did not establish that her affiliation with the family was “at least one central reason” why gang members had targeted her, as required by 8 U.S.C. § 1158(b)(1)(B)(i). Instead, the IJ concluded that the gang had targeted her due to a perception that she was wealthy. Finally, as for CAT relief, the IJ noted Garcia-Aranda’s “credible testimony that there was a police officer who was involved in some of the past incidents,” but determined that Garcia-Aranda failed to “demonstrate that it is ‘more likely than not’ that she would be harmed by governmental forces or forces the government is unable or unwilling to control in a way that constitutes torture as that term has been defined.” Certified Admin. Record at 90–91. Garcia-Aranda appealed to the BIA, which dismissed the appeal on June 30, 2017. With respect to her asylum and withholding of removal claims, the BIA agreed with the IJ that Garcia-Aranda did not show the legally required nexus between her membership in her proposed social group and her fear of harm. With 7 respect to CAT relief, the BIA concluded that Garcia-Aranda’s “testimony, along with the evidence of widespread corruption and violence . . . , does not establish that a public official of the government of Honduras would acquiesce in [Garcia- Aranda’s] torture, or that she faces a more likely than not chance of torture in the first place.” Id. at 30. Garcia-Aranda timely petitioned for review of the BIA decision pursuant to 8 U.S.C. § 1252, but the parties subsequently stipulated under Federal Rule of Appellate Procedure 42(b) to dismiss the petition and remand to the BIA so that it could reconsider certain aspects of its CAT analysis, which we so-ordered. On remand, the BIA again dismissed Garcia-Aranda’s appeal in a July 9, 2018 decision. Because the parties’ stipulation and our ensuing order did not reference the BIA’s prior asylum and withholding of removal determinations, the BIA addressed only relief under CAT. Ultimately, the BIA concluded that, “[a]ssuming that the kidnapping and other past mistreatment . . . described [by Garcia-Aranda] constitutes torture, we agree [with the IJ] that she has not shown a likelihood of future torture by or with the acquiescence (including willful blindness) of a government official upon return.” Certified Admin. Record at 4. The BIA explained that “the evidence does not support a finding that the police 8 officer in question or any Honduran official has an interest in torturing the respondent at this time or that members of the police, either alone or in connection with gangs or cartels, routinely engage in kidnapping for ransom and associated mistreatment and that higher officials know or remain willfully blind to the conduct and breach their responsibility to prevent it.” Id. (citing Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)). Garcia-Aranda now again timely petitions for review of the BIA’s decision pursuant to 8 U.S.C. § 1252. 3 II. DISCUSSION Because the BIA did not expressly adopt the IJ’s decision, but “its brief opinion closely track[ed] the IJ’s reasoning,” we have reviewed the opinions of both the IJ and the BIA “for the sake of completeness.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (internal quotation marks omitted). We review the IJ’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted). We review de novo questions 3The parties do not dispute that the BIA’s June 30, 2017 decision (with respect to the asylum and withholding of removal determinations) and the BIA’s July 9, 2018 decision (with respect to the CAT determination) are both properly before us. Gov’t Br. at 3. 9 of law and the application of law to undisputed facts, but the BIA’s interpretations of immigration regulations are reviewed with substantial deference, unless an interpretation is plainly erroneous or inconsistent with the regulation. See Bah v. Mukasey, 529 F.3d 99, 110–11 (2d Cir. 2008). Before this Court, Garcia-Aranda advances two main arguments. First, she contends that, for her asylum and withholding of removal claims, the BIA erred in concluding that (even assuming the validity of her proposed social group, the Valerio family) she had failed to establish the legally required nexus between her membership in that group and her fear of harm. Second, she argues that, for her CAT claim, the BIA erred in concluding that she had failed to establish that she would more likely than not be tortured in Honduras by or with the acquiescence of a public official upon her return. We address each of these arguments in turn. A. Asylum and Withholding of Removal An applicant for asylum and withholding of removal “must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v. Garland, 52 F.4th 103, 105–06 (2d Cir. 2022); Matter of C-T-L-, 25 I. & N. Dec. 341, 344–48 (B.I.A. 2010). In cases where there is more than one motive for mistreatment (also known as 10 mixed-motive cases), the “at least one central reason” statutory requirement still stands; in other words, an applicant’s status as a member of a particular social group still must be at least one of the central reasons, rather than a minor reason, for why that individual is being targeted. See Acharya v. Holder, 761 F.3d 289, 296– 98 (2d Cir. 2014); Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010); Matter of N-M-, 25 I. & N. Dec. 526, 530–31 (B.I.A. 2011). When a proposed social group is based on family ties, these same basic principles apply. See Matter of L-E-A-, 27 I. & N. Dec. 40, 43–47 (B.I.A. 2017), rev’d in part on other grounds, 27 I. & N. Dec. 581, 596–97 (A.G. 2019). “[T]he fact that a persecutor has threatened an applicant and members of his [or her] family does not necessarily mean that the threats were motivated by family ties.” Id. at 45. Instead, because membership in the family cannot be a minor, incidental, or tangential reason for the harm, “the fact that a persecutor targets a family member simply as a means to an end is not, by itself, sufficient to establish a claim, especially if the end is not connected to another protected ground.” See id. at 44– 46; see also, e.g., Arias-Avila v. Garland, 855 F. App’x 54, 55 (2d Cir. 2021); Gonzalez- Carias v. Garland, 855 F. App’x 52, 53 (2d Cir. 2021); Barrera Pacheco v. Barr, 836 F. 11 App’x 22, 24 (2d Cir. 2020). 4 Here, the agency did not err in finding that Garcia-Aranda failed to show that her membership in the Valerio family was a central, rather than tangential or incidental, reason that the Mara 18 gang targeted her. The record reflects that gang members killed several Valerio family members on account of their involvement in the drug trade and refusal to pay extortion, and that Garcia-Aranda and her husband were targeted several years later because the gang perceived them to have wealth based on their ownership of two businesses and inheritance from Valerio family members. This supplies substantial evidence for the agency’s conclusion that Garcia-Aranda was targeted for extortion and kidnapping based on her perceived ability to pay, and that animus toward the Valerio family was at most an incidental reason for her targeting. See Matter of L-E-A-, 27 I. & N. Dec. at 44–47; see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (“[H]arm motivated purely by wealth is not persecution.”). Similarly, the fact that the gang also killed Garcia-Aranda’s stepfather, who was not involved in drug trafficking, and once approached Garcia-Aranda seeking the whereabouts of an uncle 4Numerous other circuits have adopted this standard. See, e.g., Thalayan v. Att’y Gen. of U.S., 997 F.3d 132, 142–44 (3d Cir. 2021); Orellana-Recinos v. Garland, 993 F.3d 851, 856–59 (10th Cir. 2021); Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286–88 (11th Cir. 2021); Fuentes v. Barr, 969 F.3d 865, 871–72 (8th Cir. 2020). 12 involved in drug trafficking – without more to indicate that these occurrences were due to animus against the Valerio family and not the perceived wealth of the Valerio family – does not undermine the substantial evidence supporting the agency’s conclusion. Accordingly, we deny the petition for review as to Garcia-Aranda’s claims for asylum and withholding of removal. B. CAT Claim Unlike asylum and withholding of removal, CAT relief does not require a nexus between the alleged torture and an applicant’s membership in a protected group. Instead, Article III of CAT, as implemented by the United States, prohibits the government from removing an applicant if it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2022); 8 C.F.R. § 1208.16(c)(2) (2018) (same); 5 see also Mu-Xing Wang 5For the purposes of this case, whether considering the current version of CAT-implementing regulations (labeled with a 2022 parenthetical), or the version in effect at the time of the IJ’s and the BIA’s decisions (labeled with a 2018 parenthetical), we would reach the same conclusions. After the IJ’s and the BIA’s decisions in this case, a new version of the CAT-implementing regulations was promulgated in December 2020, with a set effective date of January 11, 2021. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274 (Dec. 11, 2020). But on January 8, 2021, before the new version of the regulations could take effect, a district court in California preliminarily enjoined their implementation, enforcement, and application. See Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966 (N.D. Cal. 2021). The current version of the CAT-implementing regulations was then promulgated in March 2022, with an effective date of May 31, 2022. See 13 v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003). Analysis of a CAT claim boils down to a two-step inquiry. See, e.g., Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014). First, the applicant must show that, in his or her particular situation, it is more likely than not that he or she will be harmed upon removal in a way recognized by section 1208.18(a). See, e.g., Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 203–05 (2d Cir. 2021); Banegas Gomez v. Barr, 922 F.3d 101, 109–10 (2d Cir. 2019); Mu Xiang Lin v. U.S. Dep't of Just., 432 F.3d 156, 160 (2d Cir. 2005). Generally speaking, this means that the applicant must show that he or she will more likely than not be subject to “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . intimidating or coercing him or her or a third person.” 8 C.F.R. § 1208.18(a)(1) (2022); see also id. § 1208.18(a)(2)–(6) (2022); 8 C.F.R. § 1208.18(a) (2018) (same); Zelaya-Moreno, 989 F.3d at 204 (“Whether . . . acts of violence rise to the level of torture depends on the interplay between many factors, including severity, duration, effects, and means of carrying them out.”). In assessing the likelihood of future harm, the agency must consider “all evidence relevant to the possibility Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022). 14 of future torture . . . including, but not limited to: (i) [e]vidence of past torture . . . ; (ii) [e]vidence that the applicant could relocate . . . ; (iii) [e]vidence of gross, flagrant or mass violations of human rights . . . ; and (iv) [o]ther relevant information regarding conditions in the country of removal.” 8 C.F.R. § 1208.16(c)(3) (2022); 8 C.F.R. § 1208.16(c)(3) (2018) (same). Second, for an applicant to be eligible for CAT relief, the applicant must also show that sufficient state action, as defined in section 1208.18(a), would be involved in his or her likely future harm. In other words, the applicant must show that his or her likely future harm will be “inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2022); 8 C.F.R. § 1208.18(a)(1) (2018) (materially similar). Acquiescence is satisfied where the government actor “know[s] of or remain[s] willfully blind to an act and thereafter breach[es] their legal responsibility to prevent it.” Khouzam, 361 F.3d at 171; see also De La Rosa v. Holder, 598 F.3d 103, 109–10 (2d Cir. 2010); Delgado v. Mukasey, 508 F.3d 702, 708–09 (2d Cir. 2007); 8 C.F.R. § 1208.18(a)(7) (2022). As for who qualifies as a government actor, the Attorney General and our sister circuits have interpreted the regulation’s reference to public officials (or 15 other persons) “acting in an official capacity” to mean any public official at any level of government (or any other person) acting “under color of law,” as that phrase is used in the civil-rights context. See Matter of O-F-A-S-, 28 I. & N. Dec. 35, 39–42 (A.G. 2020); In re Y–L, 23 I. & N. Dec. 270, 279, 285 (A.G. 2002); see also, e.g., Garcia, 756 F.3d at 891–93; United States v. Belfast, 611 F.3d 783, 808–09 (11th Cir. 2010); Ramirez-Peyro v. Holder, 574 F.3d 893, 899–901 (8th Cir. 2009); Bankole v. INS, 126 F. App’x 503, 504 (2d Cir. 2005).6 We agree and thus now hold that the CAT state-action requirement mandates that an applicant’s likely future torture be performed by, or with the acquiescence of, any public official (or other person) “exercis[ing] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Screws v. United States, 325 U.S. 91, 111 (1945) (“It is clear that under ‘color’ of law means under ‘pretense’ of law.”). Although acts of officials in the ambit of 6 The current version of section 1208.18(a)(1) makes the connection between the concepts of “official capacity” and “color of law” even more explicit, explaining that “[p]ain or suffering inflicted by a public official who is not acting under color of law shall not constitute pain or suffering inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity, although a different public official acting in an official capacity or other person acting in an official capacity could instigate, consent to, or acquiesce in the pain or suffering inflicted by the public official who is not acting under color of law.” 8 C.F.R. § 1208.18(a)(1) (2022). 16 their personal pursuits are plainly excluded, whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry, as “there is no bright line test for distinguishing ‘personal pursuits’ from activities taken under color of law.” Pitchell v. Callan, 13 F.3d 545, 547–49 (2d Cir. 1994); see also, e.g., United States v. Giordano, 442 F.3d 30, 42–47 (2d Cir. 2006); Monsky v. Moraghan, 127 F.3d 243, 245–46 (2d Cir. 1997). Here, based primarily on the past kidnapping incident in which a local police officer was present, see Certified Admin. Record at 163–67, 171–77, and country-conditions evidence allegedly showing regular collusion between gangs and police, see, e.g., id. at 417, 431, Garcia-Aranda seeks CAT protection on the theory that, upon her return to Honduras, the Mara 18 gang will likely subject her to harm cognizable as torture under section 1208.18(a). Thus, applying the standards articulated above to this theory of CAT relief, the agency must answer two key questions based on the evidence: whether, if Garcia-Aranda were to be removed to Honduras, it is more likely than not (1) that the gang will intentionally inflict severe pain or suffering to intimidate or coerce her, including meeting all the harm requirements for torture under section 1208.18(a); and (2) that local police acting under color of law will either (i) themselves participate in those likely 17 gang actions or (ii) acquiesce in those likely gang actions. See Ramirez-Peyro, 574 F.3d at 901–06 (the Eighth Circuit conducting requisite color-of-law analysis on facts similar to this case). Thus far, the agency at all levels has failed to make these required determinations. For her part, the IJ found that Garcia-Aranda failed to “demonstrate that it is ‘more likely than not’ that she would be harmed by governmental forces or forces the government is unable or unwilling to control in a way that constitutes torture as that term has been defined,” seemingly applying the “unable or unwilling to protect” acquiescence standard applicable to asylum and withholding of removal claims, rather than the standard applicable to CAT claims. Certified Admin. Record at 90–91; see also Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir. 2020) (remanding for the agency to explain how the distinct unable-or- unwilling standard “might translate to identifying government acquiescence in torture under the CAT”). To be sure, the BIA came closer to the standard we announce today when it required Garcia-Aranda to show “a likelihood of future torture by or with the acquiescence (including willful blindness) of a government official upon return.” Certified Admin. Record at 4. But the BIA then fatally erred when, parroting 18 language from Khouzam, 361 F.3d 161, it faulted Garcia-Aranda for failing to show either that “the police officer in question or any Honduran official has an interest in torturing the respondent at this time” or that “members of the police, either alone or in connection with gangs or cartels, routinely engage in kidnapping for ransom and associated mistreatment and that higher officials know or remain willfully blind to the conduct and breach their responsibility to prevent it.” Certified Admin. Record at 4 (emphases added). In other words, the BIA failed to analyze whether it is likely that the Mara 18 gang has an interest in torturing Garcia-Aranda at this time and whether it is likely that any member of the local police who is acting under color of law will participate in, or acquiesce in, that conduct. In Khouzam, we analyzed whether a man accused of murder in Egypt, where torture was regularly used as an interrogation tactic, was eligible for CAT relief. 361 F.3d at 163–64, 169. Although we indicated that section 1208.18(a)’s state- action requirement was likely met because the interrogating police officers were themselves “acting in their official capacities . . . as [was] strongly suggested by the fact that their goal [was] to extract confessions,” we also held that, to the extent that the interrogating police officers were not acting in their official capacities, evidence of the “‘routine’ nature of the torture and its connection to the criminal 19 justice system” meant that other police officers – in that case higher-level police officers – would meet section 1208.18(a)’s state-action requirement through acquiescence. Id. at 171. But we never indicated that such facts are necessary. Where, as here, the primary perpetrator of likely harm is a gang, the relevant state- action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a). Because of these legal errors, we grant the petition as to Garcia-Aranda’s claim for protection under CAT and vacate the BIA’s decisions regarding CAT protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a CAT claim for proper application of Khouzam). On remand, we direct the agency to consider, in light of all testimony and documentary evidence, whether Garcia- Aranda will more likely than not be tortured by, or at the instigation of, or with the consent or acquiescence of, any public official (or other person) acting under color of law. As more fully described above, that means considering questions such as whether it is more likely than not that the gang will torture Garcia-Aranda, including meeting all the harm requirements for torture under section 1208.18(a), 20 and whether it is more likely than not that local police acting under color of law will themselves participate in those likely gang actions or acquiesce in those likely gang actions. The BIA is also instructed to remand to the IJ for any additional factfinding that is necessary for the BIA to make its determination. III. CONCLUSION For the foregoing reasons, we DENY IN PART and GRANT IN PART the petition for review, VACATE the BIA’s decisions regarding CAT protection, and REMAND the case to the BIA for further proceedings consistent with this opinion. 7 7On September 10, 2018, Garcia-Aranda filed a motion seeking a stay of removal during the pendency of her claim before this Court. Doc. No. 15. We hereby deny that motion as moot. 21	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488260/	[Cite as Siliko v. Miami Univ., 2022-Ohio-4133.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY JENNIFER SILIKO, et al., : Appellants, : CASE NO. CA2021-12-162 : OPINION - vs - 11/21/2022 : MIAMI UNIVERSITY, et al., : Appellees. : CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2021 10 1467 Mendenhall Law Group, and Thomas W. Connors and Warner Mendenhall, for appellants. Jackson Lewis P.C., and Patricia Anderson Pryor and Adair M. Smith, for appellees. HENDRICKSON, J. {¶1} Appellants, Jennifer Siliko, Ronald Siliko, and Judy Vest, appeal from a decision of the Butler County Court of Common Pleas dismissing their complaint seeking declaratory and injunctive relief against appellees, Miami University and David H. Budig, Sandra D. Collins, Rod Robinson, John C. Pascoe, Zachary Haines, Mary Shell, and Deborah Feldman in their official capacity as members of the board of trustees of Miami University (collectively, "Miami University") regarding a COVID-19 vaccination policy Butler CA2021-12-162 implemented on August 31, 2021. The trial court dismissed appellants' complaint after finding that they lacked standing to challenge Miami University's vaccination policy as, at the time of filing the complaint, they either had obtained an exemption to the vaccine requirement or had failed to request an exemption despite exemptions being offered for medical reasons, sincerely held religious beliefs, or reasons of conscience. We agree that appellants have not established standing to bring their claims that Miami University's COVID-19 vaccination policy violates Article I, Section I of the Ohio Constitution, R.C. 2905.12, 3709.212, or 3792.04(B)(1) and find dismissal of those claims proper. However, as appellants have sufficiently alleged facts establishing standing to bring a discrimination claim under R.C. 3792.04(B)(2), we find dismissal of this claim improper and reverse the trial court's judgment to this extent. I. FACTS AND PROCEDURAL HISTORY {¶2} On August 31, 2021, Miami University implemented the "COVID-19 Vaccination Program and Policy," for all students and employees who had "any on-campus presence on any Miami University owned or controlled property." The vaccination policy provided that "[u]nless exempted * * * all employees and students must be fully vaccinated by November 22, 2021. Requests for exemption must be submitted by October 15, 2021. Faculty, staff and students must receive at least their first COVID-19 vaccine dose by October 25, 2021." The policy further provided that "[e]xemptions may be granted for medical reasons, sincerely held religious beliefs or reasons of conscience (philosophical or ethical reason) and a deferral granted for pregnancy or nursing. * * * Individuals with an approved exemption shall be required to comply with COVID-19 testing and other educational and preventative health and safety measures." Students who had not been fully vaccinated or received an exemption or deferral would not be permitted to attend in- person classes, events, or access campus facilities, including housing, after January 1, -2- Butler CA2021-12-162 2022. As for employees, the policy provided that "[e]mployees who choose not to be vaccinated and who do not receive an approved exemption will face disciplinary action." {¶3} On October 4, 2021, Jennifer Siliko, an employee of Miami University, filed a complaint for declaratory and injunctive relief against the university and its board of trustees seeking an injunction against enforcement of the vaccination policy. Jennifer Siliko also sought declaratory judgment that the vaccine policy violated her constitutional right to refuse medical treatment in violation of Article I, Section I of the Ohio Constitution, violated R.C. 2905.12 by coercing her, by means of taking or withholding official action, to accept medical treatment which she has the legal freedom to refuse under the Ohio Constitution, and violated R.C. 3792.04 by requiring her to receive a vaccine for which the United States Food and Drug Administration (FDA) had not granted full approval and by discriminating against her by requiring her to "engage in activities and precautions different from those of individuals who have received non-FDA approved vaccines." {¶4} On October 14, 2021, an amended complaint for declaratory and injunctive relief was filed which added Ronald Siliko and Judy Vest, also employees of Miami University, as plaintiffs. The amended complaint again set forth claims that the vaccination policy violated Article I, Section I of the Ohio Constitution, R.C. 2905.12, and R.C. 3792.04. With respect to the claim under R.C. 3792.04, appellants included the following allegations as to how the vaccination policy discriminated against them: 31. Defendants' religious exemption form requires all those who apply for exemption to agree to release defendants from certain liabilities and to agree to comply with testing and preventative measures, including masking. The release provision unlawfully limits plaintiffs' right to a religious exemption. To the extent that the preventative measures provision treats plaintiffs differently than those vaccinated with vaccines that are not FDA-approved, it discriminates in violations [sic] of R.C. 3792.04. -3- Butler CA2021-12-162 32. On or about October 4, 2021, defendants announced a bonus program available only to their employees who have taken Covid-19 vaccines, including taking the first dose by October 25, 2021. This treats plaintiffs differently than employees of defendants who have taken vaccines that are not FDA-approved, and therefore the [vaccine policy] violates R.C. 3792.04. The amended complaint also added a fourth claim asserting that Miami University lacked statutory authority to implement the vaccine policy based on R.C. 3709.212, which limited the authority of health boards to issue orders or regulations for the prevention or restriction of disease only to those diagnosed with the disease, those who have come in direct contact with someone medically diagnosed with the disease, or those who have had a documented incident in the building of the disease. Attached to appellants' amended complaint was a copy of Miami University's COVID-19 vaccination policy. Notably, however, copies of the exemption request form and the bonus program were not attached to the amended complaint. {¶5} A few days after filing their amended complaint, appellants moved for a temporary restraining order ("TRO") and preliminary injunction to preclude Miami University from enforcing the vaccination policy. A hearing on the request for a TRO was held on October 20, 2021. At the hearing, Miami University argued appellants could not meet the burden for a TRO and, for the first time, raised the issue of standing. Miami University argued that none of the appellants had standing as they "don't have any harm to them because they have the right and ability to ask for an exemption. Two of them have and they have [the] exemption. One has chosen not to. * * * [Case law has] held that if you didn't ask for the exemption or you already got the exemption, you don't have a standing to bring a claim, and that would apply here as well." Appellants' counsel informed the trial court of appellants' status, explaining that as of the filing of the amended complaint Ronald Siliko and Judy Vest had applied for and received COVID-19 vaccine exemptions but Jennifer -4- Butler CA2021-12-162 Siliko had not applied for the exemption. {¶6} At the conclusion of the hearing, the trial court denied appellants' request for a TRO upon finding that there was not any irreparable harm caused by implementation of the vaccination policy. The trial court did not address the standing argument raised by Miami University. {¶7} On October 27, 2021, Miami University filed a memorandum in opposition to appellants' request for a preliminary injunction. In addition to arguing that appellants could not meet the standard for the issuance of a preliminary injunction, it argued that the "[a]mended [c]omplaint does not set forth sufficient facts to establish standing or a justiciable controversy. [Appellants] fail to assert whether they have requested an exemption, and what harm they have or will suffer." Attached to the memorandum in opposition was the affidavit of Dawn Fahner, the Associate Vice President for Miami University. Fahner described the university's COVID-19 vaccination policy, stating "[e]mployees are required to be vaccinated unless they request and are approved for an exemption, which we are currently allowing for medical reasons, sincerely held religious beliefs, and reasons of conscience, or a deferral due to pregnancy or nursing." Fahner attested that "[c]urrently, our employee safety protocols, including masking and testing, do not distinguish between vaccinated and unvaccinated status." Though the vaccination policy required employees to request exemptions by October 15, 2021, Fahner stated that "[e]mployees where advised they could still submit a request for exemption until October 25, 2021." She advised that Ronald Siliko and Judy Vest had both "timely requested and received an exemption" to the vaccination policy and though "Jennifer Siliko initially did not request an exemption * * * she subsequently requested an exemption on October 21, 2021, which has now been granted." {¶8} Appellants filed a reply memorandum in support of their motion for preliminary -5- Butler CA2021-12-162 injunction in which they argued they had standing to pursue their claims. Appellants admitted that Ronald Siliko and Judy Vest "had applied for and received religious exemptions prior to the filing of th[e] case" and that Jennifer Siliko had been granted an exemption to the vaccine requirement after the TRO hearing, despite her "refusal to agree to the exemptions' required conditions." Appellants contended, however, that despite being granted exemptions, they still suffer an injury from Miami University's vaccination policy. They argued "[c]onstitutional violations are the injury, and they include the efforts by [Miami University] to chill or impermissibly burden [appellants'] constitutional rights." As evidence that they are injured by the university's vaccination policy, even with received exemptions, appellants submitted unsworn and uncertified copies of Miami University's non-medical exemption form, entitled "Faculty and Unclassified Staff Request for Non-Medical Exemption from COVID-19 Vaccination," and an "Exemption Process and FAQs" document that explained the exemption process and answered frequently asked questions. {¶9} On November 30, 2021, Miami University filed a motion to dismiss appellants' amended complaint pursuant to Civ.R. 12(B)(6), arguing the amended complaint failed to state a claim upon which relief could be granted. Miami University argued that appellants did not have standing to bring their claims and, even if they did, their amended complaint did not set forth sufficient facts to assert a cause of action for a violation of R.C. 2905.12, 3792.04, 3709.212, or Article I, Section I of the Ohio Constitution. Miami University contended appellants failed to allege facts demonstrating that they were injured by the university's vaccination policy. It further contended, with respect to appellants' R.C. 3709.212 claim, that the plain language of the statute limited its applicability to boards of public health and that it did not have any application to a university or its board of trustees. With respect to appellants' R.C. 2905.12 claim, Miami University argued that under Ohio law, a claim of coercion under the statute is not a cognizable civil cause of action. As for -6- Butler CA2021-12-162 appellants' claim that the vaccination policy violates R.C. 3792.04 and Article I, Section I of the Ohio Constitution, Miami University argued that the vaccination policy is not a mandate that requires employees to receive a non-FDA approved drug or a policy that denies them the right to decline medical treatment. Rather, under the express terms of the vaccination policy, employees can exempt out of receiving the vaccine for medical reasons, sincerely held religious beliefs, or reasons of conscience. {¶10} Appellants filed a memorandum in opposition to Miami University's motion to dismiss. On December 6, 2021, the trial court issued a decision granting Miami University's motion to dismiss upon finding that appellants lacked standing to challenge the vaccination policy as "[n]one of the [appellants] in this case are being forced to receive a COVID-19 vaccination." The court noted that at the time the amended complaint had been filed, Ronald Siliko and Judy Vest had applied for and received an exemption to the vaccine requirement. The court found that "as unvaccinated employees Ronald Siliko and Judy Vest are subject to the same testing and safety measures as vaccinated employees. They are not subject to any additional requirements * * * [and] have not established an injury." As for Jennifer Siliko, the court noted that at the time of filing the amended complaint, Jennifer Siliko had not requested an exemption. "By failing to request an exemption Jennifer Siliko cannot show she is injured by the policy exemptions." II. ANALYSIS {¶11} Appellants appealed the dismissal of their complaint for lack of standing, raising the following as their sole assignment of error: {¶12} THE TRIAL COURT ERRED IN DISMISSING PLAINTIFFS' FIRST AMENDED COMPLAINT FOR FAILURE TO STATE FACTS ESTABLISHING STANDING, SINCE THERE IS A SET OF FACTS CONSISTENT WITH THE COMPLAINT WHICH WOULD ESTABLISH SUCH STANDING. -7- Butler CA2021-12-162 {¶13} Appellants argue that the trial court erred by dismissing their complaint for lack of standing as "at least one of the plaintiffs plead[ed] facts sufficient to establish standing to bring any of the claims in the complaint." A. Standard of Review {¶14} "Whether a party has established standing to bring an action before the court is a question of law, which we review de novo." Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 20. See also Honeywell Internatl., Inc. v. Vanderlande Industries, Inc., 12th Dist. Warren No. CA2021-12-114, 2022-Ohio-2986, ¶ 6. Likewise, a trial court's order granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim is subject to de novo appellate review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. {¶15} "In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). As long as there is a set of facts, consistent with the plaintiffs' complaint, that would allow them the relief sought, a court may not grant the defendants' motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). With regards to standing, though "the court must presume that all the factual allegations in the complaint are true * * * 'legal conclusions, even when cast as factual assertions, are not presumed true for purposes of a motion to dismiss.'" (Emphasis sic.) State ex rel. Ames v. Portage Cty. Bd. of Revision, 166 Ohio St.3d 255, 2021-Ohio-Ohio-4486, ¶ 13, quoting State ex rel. Martre v. Reed, 161 Ohio St.3d 281, 2020-Ohio-4777, ¶ 12. B. General Principles of Standing {¶16} Standing is a "jurisdictional requirement" and, before an Ohio court can consider the merits of a legal claim, the person or entity seeking relief must establish standing to sue. Ohioans for Concealed Carry, Inc. v. Columbus, 164 Ohio St.3d 291, 2020- -8- Butler CA2021-12-162 Ohio-6724, ¶ 12 and 42. "Standing is defined at its most basic as '[a] party's right to make a legal claim or seek judicial enforcement of a duty or right.'" Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶ 27, quoting Black's Law Dictionary 1442 (8th Ed.2004). "Standing does not turn on the merits of the plaintiffs' claims but rather on 'whether the plaintiffs have alleged such a personal stake in the outcome of the controversy that they are entitled to have a court hear their case.'" Ohioans for Concealed Carry at ¶ 12, quoting ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio- 2382, ¶ 7. {¶17} "'[S]tanding is to be determined as of the commencement of the suit.'" Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 24, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-571, 112 S.Ct. 2130, fn. 5 (1992). "'While the proof required to establish standing increases as the suit proceeds, * * * the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.'" Ohioans for Concealed Carry at ¶ 35, fn. 3, quoting Davis v. Fed. Election Comm., 554 U.S. 724, 734, 128 S.Ct. 2759 (2008). "Standing 'is not dispensed in gross,' it must be demonstrated for each claim and each form of relief." Id. at ¶ 13, quoting Preterm-Cleveland, Inc. v. Kasich, 153 Ohio St.3d 157, 2018-Ohio-441, ¶ 30. However, for purposes of jurisdiction, only one plaintiff must have standing for the claims of the remaining plaintiffs to be heard and the court to proceed to decide the case on the merits. Beaver Excavating Co. v. Testa, 134 Ohio St.3d 565, 2012-Ohio-5776, ¶ 16. Here, appellants claim to have standing to bring their claims under traditional common-law standing principles and under the Declaratory Judgment Act. 1. Common-Law Standing {¶18} "[C]ommon-law standing requires the litigant to demonstrate that he or she has suffered (1) an injury, (2) that is fairly traceable to the defendant's allegedly unlawful -9- Butler CA2021-12-162 conduct and (3) is likely to be redressed by the requested relief." Ohioans for Concealed Carry at ¶ 12, citing Moore, 2012-Ohio-3897 at ¶ 22. "These three factors—injury, causation, and redressability—constitute the 'irreducible constitutional minimum of standing.'" Moore at ¶ 22, quoting Lujan at 560. Though "threatened injuries, including threatened discrimination may serve as an 'injury' for common-law standing purposes * * * [the] threatened injury cannot be so remote as to be 'merely speculative.'" Hamilton v. Ohio Dept. of Health, 10th Dist. Franklin No. 14AP-1035, 2015-Ohio-4041, ¶ 19, quoting Wurdlow v. Turvy, 10th Dist. Franklin No. 12AP-25, 2012-Ohio-4378, ¶ 15. Further, "[a]n injury that is borne by the population in general, and which does not affect the plaintiff in particular, is not sufficient to confer standing." State ex rel. Food & Water Watch v. State, 10th Dist. Franklin No. 14-AP-958, 2016-Ohio-3135, ¶ 59. Standing requires a "concrete injury in fact, rather than an abstract or suspected injury." State ex rel. Consumers League of Ohio v. Ratchford, 8 Ohio App.3d 420, 424 (10th Dist.1982). See also Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320 (1994). 2. Standing Under the Declaratory Judgment Act {¶19} "In addition to standing authorized by common law, standing may also be conferred by statute." ProgressOhio.org, 2014-Ohio-2382 at ¶ 17. To that end, appellants have argued that they have standing under R.C. 2721.03, the Declaratory Judgment Act, to seek a declaration that the university's vaccination policy is unlawful. R.C. 2721.03 states, in pertinent part, the following: Subject to division (B) of section 2721.02 of the Revised Code, any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, - 10 - Butler CA2021-12-162 contract, or franchise and obtain a declaration of rights, status, or other legal relations under it. "The three prerequisites to declaratory relief include '(1) a real controversy between the parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the parties' rights.'" Ohioans for Concealed Carry at ¶ 30, quoting ProgressOhio.org at ¶ 19. {¶20} Appellants argue they have standing under R.C. 2721.03 and, therefore, do not need to show that they have been injured or have suffered any particularized harm to bring their claims. They contend that they are not required to "assert an actual injury beyond the violation of [their] personal legal rights" – that is, their legal right to refuse medical treatment. However, as the Ohio Supreme Court recently explained, "[a]lthough a declaratory-judgment action generally contemplates that the action is brought before an injury-in-fact has occurred, a plaintiff must nonetheless demonstrate 'actual present harm or a significant possibility of future harm to justify preenforcement relief.'" Ohioans for Concealed Carry at ¶ 32, quoting Peoples Rights Org., Inc. v. Columbus, 152 F.3d 522, 527 (6th Cir.1998). "Certain impending injury is sufficient to obtain preventative relief; a plaintiff need not wait for an injury to actually occur." Id. However, "an 'idealistic opposition to a challenged law is insufficient to establish standing under the Declaratory Judgment Act.'" Id. at ¶ 36, quoting ProgressOhio.org at ¶ 19. {¶21} With the foregoing principles in mind, we turn to the claims set forth in appellants' amended complaint. C. Appellants' Claims 1. Constitutional Claim under Article I, Section I {¶22} Appellants allege that Miami University's vaccination policy violates their constitutional right to refuse medical treatment pursuant to Article I, Section I of the Ohio Constitution. This provision provides that "[a]ll men are, by nature, free and independent, - 11 - Butler CA2021-12-162 and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety." {¶23} The Ohio Supreme Court has recognized an Ohioan's fundamental right to refuse medical treatment on the basis that "personal security, bodily integrity, and autonomy are cherished liberties." Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 180 (2000). "These liberties were not created by statute or case law. Rather, they are rights inherent in every individual." Id. at 180-181, citing Section I, Article I, Ohio Constitution. The court further recognized that "'every human being of adult years and sound mind has a right to determine what shall be done with his own body.'" Id. at 181, quoting Schloendorff v. Soc. of N.Y. Hosp., 211 N.Y. 125, 129 (1914). {¶24} Looking at the amended complaint, we find that appellants have failed to set forth facts demonstrating standing under traditional common-law principles or under the Declaratory Judgment Act. Appellants' complaint alleges that Miami University's vaccination policy requires its employees "who are not exempted, [to] take a first Covid-19 vaccine dose by October 25, 2021 and be fully vaccinated by November 22, 2021. * * * Employees who do not meet these requirements will face disciplinary action." {¶25} By its express terms, Miami University's vaccination policy allows employees to obtain exemptions for medical reasons, for sincerely held beliefs, or for reasons of conscience (philosophical or ethical reasons). The amended complaint does not contain any allegations as to appellants' exemption status. The complaint does not indicate whether appellants applied for and received an exemption, applied for and were denied an exemption, had an open application for an exemption, or had refused to apply for an - 12 - Butler CA2021-12-162 exemption from Miami University's vaccination policy.1 To obtain this information, this court, like the trial court, must rely on information obtained from outside the face of the amended complaint. {¶26} Normally, when considering a motion to dismiss under Civ.R. 12(B)(6), a court is limited to the allegations set forth in the complaint. "When a Civ.R. 12(B)(6) motion depends on extrinsic evidence, the 'proper procedure is for the court to convert the motion to dismiss into a motion for summary judgment and provide the opposing party with notice and an opportunity to respond.'" State ex rel. Evans v. Mohr, 155 Ohio St.3d 579, 2018- Ohio-5089, ¶ 5, quoting Jefferson v. Bunting, 140 Ohio St.3d 62, 2014-Ohio-3074, ¶ 12. However, where a party repeatedly admits to facts in their written filings and when appearing before the court, we find it appropriate for the court to rely on such admissions in ruling on a Civ.R. 12(B)(6) motion to dismiss for lack of standing.2 {¶27} At the TRO hearing, in their memorandum in support of their motion for preliminary injunction, in their memorandum in opposition to Miami University's motion to dismiss, and during appellate oral arguments, appellants, through counsel, represented that at the time of filing the amended complaint, two of the plaintiffs (Ronald Siliko and Judy Vest) had sought and obtained exemptions to the vaccination policy. As for the third plaintiff, Jennifer Siliko, she had not applied for an exemption as of the filing of the complaint or amended complaint. After the October 20, 2021 TRO hearing, Jennifer Siliko applied for and received a religious exemption, despite her "refusal to agree to the exemptions' 1. Other than specifying appellants' ages, their addresses, their status as employees of Miami University, and their belief that they had recovered from COVID-19 and have natural immunity, the amended complaint does not set forth any specific facts about appellants. The positions appellants hold or the job responsibilities they have at Miami University are not set forth in the amended complaint. 2. Our reliance on appellants' exemption status is limited to those facts admitted by appellants. This court will not rely on evidence submitted by Miami University. This court, therefore, will not rely on the affidavit of Fahner, as doing so is improper under the standard governing Civ.R. 12(B)(6) motions to dismiss. - 13 - Butler CA2021-12-162 required conditions." Given appellants' respective statuses at the time the complaint was filed, we find that they lacked standing to bring a claim under Article I, Section I of the Ohio Constitution. Our conclusion is guided by existing case law discussing challenges to employer- and university-implemented COVID-19 vaccination policies. {¶28} In Wade v. Univ. of Conn. Bd. of Trustees, 554 F.Supp.3d 366 (D.Conn.2021), the United States District Court for the District of Connecticut considered whether two students and the parents of a third student had standing to challenge the constitutionality of a COVID-19 vaccination policy implemented by the University of Connecticut ("UConn"). UConn's vaccination policy required all students to be fully vaccinated against COVID-19 for the 2021-2022 school year and stated that the "[f]ailure to comply with the policy may result in loss of privileges and/or sanctions." Id. at 372. The policy allowed for exemptions "under certain circumstances," and permitted students to apply for medical or non-medical exemptions by filling out an online form. Id. At the time the lawsuit was filed against UConn, the two student plaintiffs had applied for non-medical exemptions under the policy, but the exemptions had not been granted. Id. at 373. Subsequently, these two students were granted exemptions. Id. The third student, represented by her parents, had not sought an exemption at the time the suit was filed. Id. UConn filed a motion to dismiss contending the plaintiffs lacked standing. The district court agreed, stating in relevant part the following: Two of the three plaintiffs have applied for and received exemptions from the UConn vaccination requirement. Having received exemptions, their claims are moot because they are unlikely to face any continuing injury form the vaccination requirement. The third plaintiff has declined even to seek an exemption. Having failed to avail herself of a simple process that may allow her to avoid the vaccination requirement, she has not suffered an injury that the law recognizes as the basis for a right to complain in federal court. (Emphasis added.) Id. at 368. {¶29} In Klassen v. Trustees of Ind. Univ., 549 F.Supp.3d 836 (N.D.Ind.2021) - 14 - Butler CA2021-12-162 ("Klassen I"), eight Indiana University students challenged the university's COVID-19 vaccine policy, which required all students to be fully vaccinated before returning to campus in August 2021. Id. at 843 and 848. The vaccine policy allowed exemptions for religious reasons and medical reasons. Id. at 848. Additionally, students who were enrolled in online courses, with no on-campus components, were not required to receive the vaccine. Id. at 849. If a student received an exemption from vaccination, the university's policy imposed additional safety requirements, such as more frequent mitigation testing, quarantining if exposed to someone who had tested positive for COVID-19, wearing a mask in public spaces, and returning to their permanent address or quarantining if there was a serious outbreak of COVID-19. Id. Before ruling on the merits of the plaintiffs' request for a preliminary injunction against the implementation of the vaccine policy, the district court examined whether the students had standing to bring suit. Id. at 857-859. The court noted that six of the student-plaintiffs had been granted exemptions, a seventh student-plaintiff qualified for an exemption if one was sought, and the eighth student-plaintiff did not qualify for an exemption. Id. at 858. The court found that this eighth student had standing, allowing the entire case to move forward. Id. However, the court ultimately denied the students' request for a preliminary injunction after finding they had not established a likelihood of success on the merits of their claims. Id. at 843. The case was appealed to the Seventh Circuit Court of Appeals, which noted that the eighth student who had been ineligible for an exemption had withdrawn from the university with no plans to return. Klassen v. Trustees of Ind. Univ., 24 F.4th 638, 639 (7th Cir.2022) ("Klassen II"). The court found that the case was no longer justiciable and ordered that the district court's judgment be vacated and the matter remanded with instructions to dismiss the case as moot. Id. at 640. {¶30} In Bare v. Cardinal Health Inc., E.D.Tenn. No. 3:21-CV-00389-DCLC-DCP, 2022 U.S. Dist. LEXIS 40759 (Mar. 8, 2022), an employee sought to challenge the COVID- - 15 - Butler CA2021-12-162 19 vaccination policy his employer implemented. The policy required all salaried employees to receive a COVID-19 vaccine by October 4, 2021 and provided a process for employees to request a medical or religious accommodation. Id. at 3. Bare's initial request for a religious accommodation was denied; however, Bare's employer later granted the religious accommodation exempting him from needing to get the vaccine. Id. at 4. Bare nonetheless maintained suit against his employer, claiming the COVID-19 vaccine policy was discriminatory as it provided a "sham" religious accommodation process. Id. The employer moved to dismiss the complaint for lack of standing and the district court granted the motion, holding that "[b]ecause plaintiff has not been injured, he lacks standing." Id. at 2. Bare argued that despite being granted a religious accommodation exempting him from the vaccine requirement, he was nonetheless injured because his employer intended to review his religious accommodation in six months. Id. The district court found "[t]he purported expiration of his religious accommodation is not a sufficient injury for standing because it is unclear whether [the employer] will revoke his accommodation at that time. Moreover, Bare has not suffered any adverse employment action since requesting his accommodation." Id. at 3. {¶31} Just like the plaintiffs in Wade, Klassen I and II, and Bare, appellants do not have standing due to lack of injury or a real justiciable controversy between the parties. Ronald Siliko and Judy Vest received exemptions to Miami University's COVID-19 vaccination policy before filing suit. They are not being forced to undergo medical treatment and, therefore, have not been injured by Miami University. No real controversy exists between the parties with respect to this claim. {¶32} Jennifer Siliko, like the third student in Wade, had not sought an exemption to Miami University's COVID-19 vaccination policy at the time she filed suit. She therefore failed to avail herself of the process that would allow her to avoid the vaccination - 16 - Butler CA2021-12-162 requirement and has not suffered an injury that the law recognizes. Wade, 544 F.Supp.3d at 377 ("a plaintiff who fails to submit to the procedural requirements of a law or policy that offers an exemption or other relief from its mandate does not have standing to challenge the restrictions imposed by the law or policy"). {¶33} Furthermore, even if Jennifer Siliko had standing at the time she initiated the suit, her constitutional claim became moot when she applied for and was granted an exemption from Miami University. "If the plaintiff ceases to have standing, such that a live case or controversy no longer exists, the case becomes moot." Barry v. Lyon, 834 F.3d 706, 715 (6th Cir.2016). See also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944 (1969) ("a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome"). Because Jennifer Siliko requested and obtained an exemption to the vaccination requirement, she can no longer claim a real or expected imminent injury from the university's policy. See Wade at 376 ("In light of the granting of their exemption requests, [the two students] have no continuing real or expected imminent injury from UConn's vaccination requirements. In such circumstances, where a plaintiff seeks to challenge a government requirement that no longer burdens or applies to the plaintiff, a federal court lacks jurisdiction to adjudicate the plaintiff's claims").3 {¶34} Accordingly, for the foregoing reasons, appellants' claims under Article I, Section I were properly dismissed for lack of standing. 2. R.C. 2905.12 Claim {¶35} Appellants' amended complaint sets forth a claim that Miami University 3. An exception to the mootness doctrine exists for cases that are capable of repetition, yet evading review. State ex rel. Sawyer v. Cendroski, 118 Ohio St.3d 50, 2008-Ohio-1771, ¶ 9. "This exception applies when the challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 64 (2001). We do not find this exception applicable to the case before us. - 17 - Butler CA2021-12-162 engaged in coercion in violation of R.C. 2905.12 through its implementation of the vaccination policy. R.C. 2905.12, a criminal statute, provides in relevant part that [n]o person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall * * * [t]ake, withhold, or threaten to take or withhold official action, or cause or threaten to cause official action to be taken or withheld. R.C. 2905.12(A)(5). Appellants' amended complaint alleges Miami University's COVID-19 vaccination policy "involves taking or withholding official action to coerce plaintiffs to accept medical treatment which plaintiff has the legal freedom to refuse under Section 1, Article I of the Ohio Constitution and therefore violates R.C. 2905.12." {¶36} As noted above, appellants were not required or coerced into taking a COVID- 19 vaccine. All three appellants were granted exemptions to the vaccine and therefore cannot show any injury. Though appellants claim they have standing as the university's COVID-19 vaccination policy injured them by "threaten[ing] those exempted with masking, surveillance testing, and activity limitation requirements," the amended complaint did not contain any such allegations. {¶37} Furthermore, appellants do not have standing to bring their coercion claim as R.C. 2905.12 does not create a private right of action. "[A] claim of coercion is not a 'cognizable civil cause of action.'" Simpson v. Voiture Nationale La Societe Des Quarante Hommes, 2d Dist. Montgomery No. 29016, 2021-Ohio-2131, ¶ 25, quoting Heskett v. Van Horn Title Agency, Inc., 10th Dist. Franklin No. 06AP-549, 2006-Ohio-6900, ¶ 26. See also Edwards v. Madison Twp., 10th Dist. Franklin No. 97APE06-819, 1997 Ohio App. LEXIS 5397, 17-18 (Nov. 25, 1997). "In the absence of a specific provision to the contrary, criminal statutes generally do not create a private cause of action, but give rise only to a right of prosecution by the state." George v. State, 10th Dist. Franklin Nos. 10AP-4 and 10AP-97, 2010-Ohio-5262, ¶ 32. - 18 - Butler CA2021-12-162 {¶38} Appellants' reliance on Peltz v. South Euclid, 11 Ohio St.2d 128 (1967), in arguing that they can maintain an action for declaratory relief based on a criminal statute is misplaced. In Peltz, a plaintiff filed an action seeking a declaration that the city of South Euclid's ordinance that prohibited placing political signs on public and private property was unconstitutional as it violated his First Amendment rights. Id. at 130. Under the ordinance, violators were subject to a penalty of $500 per day. Id. The supreme court found that an actual controversy existed because the plaintiff was a candidate for public office, intended to place a political sign on his property, and the municipality had announced its intention to enforce the ordinance. Id. at 131. The court further found that "[t]he validity, construction, and application of criminal statutes and ordinances are appropriate subject for a declaratory judgment action." Id. The court ultimately found that the city's ordinance, to the extent that it prohibited the use of all political signs, violated the First Amendment to the United States Constitution and Section 11, Article I of Ohio's Constitution and permanently enjoined the city from enforcing the ordinance. Id. at 134. {¶39} The circumstances in Peltz differs significantly from those in the present case. In Peltz, a plaintiff sought a declaration of his rights under a criminal ordinance (i.e., whether his placement of a political sign in his yard would violate the ordinance and subject him to penalties). Here, appellants are not seeking to have the court rule on the validity, construction, or application of R.C. 2905.12. Instead, appellants seek to use a perceived violation of a criminal statute by Miami University as a basis for a claim under R.C. 2905.12. However, as a claim of coercion is not a cognizable civil cause of action, appellants do not have standing to bring a claim under R.C. 2905.12 and the claim was properly dismissed. 3. R.C. 3709.212 Claim {¶40} Appellants' amended complaint also alleges that Miami University acted beyond its statutory authority by implementing the COVID-19 vaccination policy. Appellants - 19 - Butler CA2021-12-162 acknowledge Miami University's Board of Trustees' authority to administer the university pursuant to R.C. 3339.01 and 3345.021.4 Nonetheless, appellants' amended complaint alleges that a recently enacted statute, R.C. 3709.212, limits the university's board of trustees from implementing the COVID-19 vaccination plan.5 {¶41} R.C. 3709.212, which became effective on March 24, 2021, provides as follows: Any order or regulation for the public health or for the prevention or restriction of disease issued by a board of health of a city or general health district under section 3709.20 or 3709.21 of the Revised Code may apply to only the following persons: (A) Those who have been medically diagnosed with the disease that is the subject of the order or regulation; (B) Those who have come in direct contact with someone who has been medically diagnosed with the disease that is the subject of the order or regulation; (C) Those that have had a documented incident in the building of the disease that is the subject of the order or regulation. As used in this section, “person” has the same meaning as in section 1.59 of the Revised Code. (Emphasis added.) Appellants argue that with the enactment of R.C. 3709.212, the General Assembly made it clear that local health departments, not state universities, are charged with issuing orders and regulations affecting public health. {¶42} By its express terms, R.C. 3709.212 applies to orders or regulations issued 4. R.C. 3339.01 establishes Miami University's Board of Trustees. R.C. 3345.021 provides that the "board of trustees of any college or university, which receives any state funds in support thereof, shall have full power and authority on all matters relative to the administration of such college or university." 5. Appellants also argue, for the first time on appeal, that Miami University's "unauthorized actions" of implementing the COVID-19 vaccination policy outside the authority of R.C. 3709.212 are a "violation of the non-delegation doctrine." Neither appellants' amended complaint nor any of their filings in the trial court contain reference to the nondelegation doctrine. It is well established that a party cannot raise a new issue or legal theory for the first time on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 65 Ohio St.3d 175, 177 (1992). - 20 - Butler CA2021-12-162 by a board of health or a general health district. It has nothing to do with the authority of Miami University's Board of Trustees to administer the university. The university's vaccination policy is not a public health order or regulation and the university's board of trustees is not a local health department. {¶43} Additionally, by enacting R.C. 3792.04, which limits the authority of state universities to require vaccination to those vaccines that have been granted full FDA approval, the General Assembly implicitly recognized the authority of state university boards of trustees to adopt policies such as Miami University's COVID-19 vaccination policy. {¶44} As alleged, appellants' amended complaint has failed to identify an injury or a justiciable controversy that resulted under R.C. 3709.212 from the board of trustees' implementation of Miami University's COVID-19 vaccination policy. Dismissal of appellants' R.C. 3709.212 claim was, therefore, proper. 4. R.C. 3792.04 Claims {¶45} Appellants' amended complaint alleges that Miami University's COVID-19 vaccination policy violated R.C. 3792.04 by two means. First, by "require[ing] [appellants] to take a vaccine not approved by the FDA" and, second, by discriminating against them by treating them differently than those who had received a "non-FDA approved" or Emergency Use Authorization ("EUA") COVID-19 vaccine. {¶46} R.C. 3792.04, which became effective on October 13, 2021, provides in pertinent part as follows: (B) Notwithstanding any conflicting provision of the Revised Code, a public school or state institution of higher education shall not do either of the following: (1) Require an individual to receive a vaccine for which the United States food and drug administration has not granted full approval; (2) Discriminate against an individual who has not received a - 21 - Butler CA2021-12-162 vaccine described in division (B)(1) of this section, including by requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine. a. Non-FDA approved vaccine requirement {¶47} Appellants' amended complaint alleges that the university's COVID-19 vaccination policy forces them to take a vaccine that has not been granted full FDA approval. Appellants assert that at the time the university's vaccination policy was implemented, the only COVID-19 vaccines that were available had received only emergency use authorization from the FDA. {¶48} We find that appellants do not have standing to bring a claim pursuant to R.C. 3792.04(B)(1) due to lack of injury or a real justiciable controversy between the parties. Miami University's COVID-19 vaccination policy does not force or require appellants to be vaccinated. As previously discussed, all three appellants were granted exemptions from vaccination. Two of the appellants, Ronald Siliko and Judy Vest, were granted exemptions prior to the amended complaint being filed. The third appellant, Jennifer Siliko, failed to seek an exemption before filing suit. However, after the hearing on appellants' TRO, Jennifer Siliko requested and was granted an exemption from Miami University's vaccination policy. For the reasons set forth in our discussion of appellants' Article I, Section I constitutional claim, we find that appellants have not been injured and no real justiciable controversy exists. Appellants' claim under R.C. 3792.04(B)(1) was properly dismissed for lack of standing. b. Discrimination claim {¶49} Appellants' amended complaint also alleged that Miami University's vaccination policy unlawfully discriminated against them in violation of R.C. 3792.04(B)(2) as the policy "requires unvaccinated individuals such as [appellants] to engage in activities - 22 - Butler CA2021-12-162 and precautions different from those of individuals who have received non-FDA approved vaccines." Specifically, appellants alleged in their amended complaint that to obtain an exemption, they had to agree to release Miami University from certain liabilities, agree to comply with testing, and agree to comply with preventative measures such as masking. "To the extent that the preventative measures provision treats [appellants] differently than those vaccinated with the vaccines that are not FDA-approved, it discriminates in violations [sic] of R.C. 3792.04." Appellants further alleged they are treated differently than employees who took the EUA COVID-19 vaccines as Miami University implemented a "bonus program available only to their employees who have taken COVID-19 vaccines." {¶50} In finding that appellants did not have standing to bring their R.C. 3792.04(B)(2) discrimination claim, the trial court found that "as unvaccinated employees Ronald Siliko and Judy Vest are subject to the same testing and safety measures as vaccinated employees. They are not subject to any additional requirements * * [and] have not established an injury." In making this finding, the trial court improperly went beyond the information set forth in the amended complaint. Specifically, the court relied upon the affidavit of Fahner, who attested that "[c]urrently [Miami University's] employee safety protocols, including masking and testing, do not distinguish between vaccinated and unvaccinated status." {¶51} "[A] court cannot rely upon evidence outside the complaint when considering a Civ.R. 12(B)(6) motion to dismiss." Tankersley v. Ohio Fair Plan Underwriting Assn., 12th Dist. Clermont No. CA2018-01-003, 2018-Ohio-4386, ¶ 34. Only the complaint, and those documents attached to the complaint, may be considered by the court. Id. "If facts beyond those alleged in the complaint are necessary to dispose of a case, those facts must be developed and appropriately brought before the court utilizing the proper procedural vehicle." Ward v. Graue, 12th Dist. Clermont No. CA2011-04-032, 2012-Ohio-760, ¶ 15. - 23 - Butler CA2021-12-162 As the trial court did not convert the motion to dismiss to a motion for summary judgment, with notice to the nonmoving party and the opportunity to respond, we find the trial court erred in considering Fahner's affidavit. {¶52} Limiting ourselves to the allegations set forth in the amended complaint, we find that appellants have sufficiently alleged facts establishing standing to bring their discrimination claim under R.C. 3792.04(B)(2).6 Appellants' amended complaint sets forth allegations addressing the three factors of common-law standing – injury, causation, and redressability. Appellants allege that Miami University implemented a COVID-19 policy that treats them, as unvaccinated employees, differently than those employees who have taken the EUA COVID-19 vaccines. Appellants' amended complaint specifically mentions that they have been injured as they, unlike their vaccinated coworkers, must sign a release "releas[ing] [Miami University] from certain liabilities," comply with different preventative measures than their coworkers, including testing and masking, and are not able to participate in a bonus program that Miami University has been made available to vaccinated employees.7 Appellants amended complaint specifically seeks relief, or redressability, in the form of "[p]reliminary and permanent injunctive relief prohibiting [Miami University], their officers, agents, employees, successors and attorneys and all those in active concert or participation with them, from enforcing the [vaccination policy] and from discriminating against [appellants] in violation of R.C. 3792.04." 6. We note that in addition to excluding consideration of Fahner's affidavit, we also excluded consideration of the unsworn and uncertified exemption request form and Exemption Process and FAQs document relied upon by appellants. 7. Miami University contends that "[a]ppellants have not alleged any action taken after the effective date of the statute. They have not alleged that any [a]ppellant suffered an adverse action or was treated differently than a vaccinated person after the effective date of the statute." R.C. 3792.04 went into effect on October 13, 2021. The amended complaint was filed the following day, on October 14, 2021. In ruling on a Civ.R. 12(B)(6) motion, we must "make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). This includes the inference that Miami University has taken actions on or after October 13, 2021 that discriminate against appellants in the manner alleged by appellants in their amended complaint. - 24 - Butler CA2021-12-162 {¶53} We make no ruling as to the merits of appellants' discrimination claim. Rather, our holding is limited to finding that at this stage of the proceedings, appellants' amended complaint has alleged such a personal stake in the outcome of the controversy that they are entitled to have the court hear the claim that Miami University's COVID-19 vaccination policy discriminates against them in violation of R.C. 3792.04(B)(2). We therefore find that the trial court erred in dismissing this claim for lack of standing. III. CONCLUSION {¶54} For the reasons discussed above, we sustain appellants' assignment of error in part and overrule it in part. To the extent that appellants have sufficiently alleged facts establishing standing to bring their discrimination claim under R.C. 3792.04(B)(2), we reverse the trial court's decision as to this claim only and remand the matter for further proceedings. In all other respects, the trial court's judgment is affirmed, as appellants lack standing, under common-law principles and under the Declaratory Judgment Act, to bring their claims that Miami University's COVID-19 vaccination policy violates Article I, Section I of the Ohio Constitution, R.C. 2905.12, 3709.212, or 3792.04(B)(1). {¶55} Judgment affirmed in part, reversed in part, and the matter remanded for further proceedings. M. POWELL, P.J., concurs. PIPER, J., concurs in part and dissents in part. PIPER, J., concurring in part and dissenting in part. {¶56} I concur with the majority opinion that appellants lack standing to bring their claims that the COVID-19 vaccination policy violates Article I, Section I of the Ohio Constitution, R.C. 2905.12, 3709.212, or 3792.04(B)(1). However, I disagree with the majority opinion that appellants have sufficiently alleged facts demonstrating standing to - 25 - Butler CA2021-12-162 bring a claim for discrimination under R.C. 3792.04(B)(2). I therefore respectfully dissent in part. {¶57} While a court evaluating a complaint pursuant to a Civ.R. 12(B)(6) motion must presume all factual allegations in the complaint as true and make all reasonable inferences in favor of the non-moving party, I find that appellants' amended complaint has not set forth facts that would allow them the declaratory or injunctive relief they seek due to a lack of standing to bring their discrimination claim. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). "At a minimum, common-law standing requires the litigant to demonstrate that he or she has suffered (1) an injury (2) that is fairly traceable to the defendant's allegedly unlawful conduct and (3) is likely to be redressed by the requested relief." Ohioans for Concealed Carry, Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio- 6724, ¶ 12. Within their amended complaint, appellants' discrimination claim fails to identify an injury that is fairly traceable to Miami University's implementation of the COVID-19 vaccination policy. Appellants rely on a general and vague suggestion of injury as a result of receiving a vaccine exemption and being required to sign a release, engage in preventative measures to stop the spread of COVID-19, and being deemed ineligible under a separate bonus program. Appellants seek to have the trial court and this court assume injuries that were not pled or identified in their complaint. "[A] plaintiff must * * * demonstrate 'actual present harm or significant possibility of future harm to justify preenforcement relief.'" Id. at ¶ 32, citing Peoples Rights Org., Inc. v. Columbus, 152 F.3d 522, 527 (6th Cir.1998). Here, the complaint is simply devoid of any allegation on which this court can conclude the significant possibility of future injury. {¶58} To "discriminate" means to "make an unjust or prejudicial distinction in the treatment of different categories of people." Murray v. UBS Sec., LLC., 43 F.4th 254, 259 (2d Cir.2022), citing The New Oxford American Dictionary (2001). Appellants' amended - 26 - Butler CA2021-12-162 complaint does not allege unjust or prejudicial distinction in their treatment. Merely being treated differently does not equate to being treated unlawfully from similarly situated persons. {¶59} Accordingly, for the reasons stated above, I would affirm the trial court's dismissal of appellants' R.C. 3792.04(B)(2) discrimination claim as the amended complaint does not sufficiently set forth facts establishing standing. - 27 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488254/	[Cite as In re B.T.-H., 2022-Ohio-4139.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE ) IN RE: B. T-H. C.A. No. 21AP0036 APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2014 JUV-G 000561 DECISION AND JOURNAL ENTRY Dated: November 21, 2022 TEODOSIO, Presiding Judge. {¶1} Appellant, S.P., f.k.a. S.H. (“Mother”), appeals the July 30, 2021, judgment of the Wayne County Court of Common Pleas, Juvenile Division, which overruled her objections to the magistrate’s decision naming J.T. (“Father”) the sole residential parent of B.T-H. (“the Child”). This Court affirms. I. {¶2} Mother and Father are the biological parents of the Child, born out of wedlock on November 3, 2008. When their relationship ended, Father moved to Indiana and married the Child’s stepmother. They live with the two children they have together and one child from the stepmother’s previous marriage. Mother remained in Ohio and married the Child’s stepfather. They live together with their four children: two from Mother’s previous relationships, one from the stepfather’s previous relationship, and the Child. 2 {¶3} An agreed judgment entry was filed on March 19, 2015, which did not specifically grant custody to either Mother or Father or designate either as the residential parent, but instead addressed other matters and set forth parenting time rights for Father. See Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 31 (stating that the designation of a residential parent or legal custodian must be made in a court’s order or decree). Pursuant to R.C. 3109.042(A), because the Child had resided with unmarried Mother since birth, Mother was presumed to be the sole residential parent of the Child by operation of law. The magistrate issued a decision approving the agreed judgment entry, and the trial court issued a judgment entry adopting the magistrate’s decision and making the parties’ agreed judgment entry an order of the court. {¶4} Father filed a motion to show cause/contempt and a motion for parenting time in July 2019, a motion to show cause in October 2019, and several other motions in January 2020. Meanwhile, Mother filed a motion to show cause in August 2019. The matter was set for final hearings and the Child was interviewed in camera by the trial court in December 2019, but multiple continuances and the worldwide Covid-19 pandemic resulted in significant delays before the hearings were actually held. {¶5} Three hearings were then held in January and February of 2021, in which Mother, Father, their respective spouses, and the guardian ad litem (“GAL”) all testified. Many exhibits from both parties, including four reports from the GAL and a report from clinical psychologist Dr. Robin Tener were all admitted into evidence. {¶6} The magistrate issued her findings and decision on March 13, 2021, designating Father as the residential parent of the Child and finding Mother guilty of contempt of court. Two days later, the trial court adopted the magistrate’s decision and entered judgment on the matter. Mother filed timely objections and supplemental objections to the magistrate’s decision, and 3 Father responded in opposition. The trial court conducted an independent review of the record and issued a judgment entry on July 30, 2021, overruling Mother’s objections, save for certain non-determinative factual findings. {¶7} Mother now appeals from the trial court’s July 30, 2021, judgment and raises two assignments of error for our review. II. ASSIGNMENT OF ERROR ONE THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES TO THE FATHER. {¶8} In her first assignment of error, Mother argues that the trial court erred when it incorrectly determined what was in the best interest of the Child and allocated parental rights and responsibilities by designating Father as the residential parent of the Child. We disagree. {¶9} “This Court reviews a trial court’s action with respect to a magistrate’s decision for an abuse of discretion.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio- 3139, ¶ 17. “In so doing, we consider the trial court’s action with reference to the nature of the underlying matter.” Id. at ¶ 18. An abuse of discretion means more than an error of law or judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). {¶10} “[C]ustody issues are some of the most difficult and agonizing decisions a trial judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997). A trial court therefore possesses broad discretion with respect to its determination of the allocation of parental rights and responsibilities, and its decision will not be overturned absent an abuse of discretion. Kokoski v. 4 Kokoski, 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, ¶ 26. “[A] trial court’s determination in custody matters ‘should be accorded the utmost respect’ because ‘[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.’” Armbruster v. Armbruster, 9th Dist. Lorain No. 19CA011531, 2020-Ohio-3833, ¶ 6, quoting Baxter v. Baxter, 9th Dist. Lorain No. 10CA009927, 2011-Ohio-4034, ¶ 6, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988); See also Davis at 418 (recognizing that a witness’s demeanor, attitude, and credibility “does not translate well on the written page”). {¶11} “When a court designates a residential parent and legal custodian, the court is allocating parental rights and responsibilities.” Fisher, 116 Ohio St.3d 53, 2007-Ohio-5589, at ¶ 23. “‘When allocating parental rights and responsibilities, the court must take into account the best interest of the child[].’” Giovanini v. Bailey, 9th Dist. Summit Nos. 28631 and 28676, 2018- Ohio-369, ¶ 8, quoting Bentley v. Rojas, 9th Dist. Lorain No. 10CA009776, 2010-Ohio-6243, ¶ 19, citing R.C. 3109.04(B)(1). In determining the best interest of a child under R.C. 3109.04, whether on an original decree allocating parental rights and responsibilities for the care of the child or a modification of a decree allocating those rights and responsibilities, the trial court is required to consider all relevant factors, including, but not limited to: (a) The wishes of the child’s parents regarding the child’s care; (b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child's best interest; (d) The child’s adjustment to the child’s home, school, and community; 5 (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; (h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state. R.C. 3109.04(F)(1). While the trial court need not explicitly reiterate its findings with regard to each best interest factor under R.C. 3109.04(F)(1), it must be apparent from the record that the court considered the factors in its decision. Herron v. Herron, 9th Dist. Summit No. 29264, 2019- Ohio-5095, ¶ 8, citing Matis v. Matis, 9th Dist. Medina No. 04CA0025-M, 2005-Ohio-72, ¶ 6, and Phillips v. Phillips, 9th Dist. Lorain No. 13CA010358, 2014-Ohio-248, ¶ 8. 6 {¶12} “[A]s to the trial court’s findings with respect to the statutory best interest factors, ‘[t]his Court has held that what is in the best interest of a child is primarily a question of fact that should be reversed only if it is against the manifest weight of the evidence.’” Smith v. Smith, 9th Dist. Summit No. 29754, 2021-Ohio-3016, ¶ 7, quoting Kokoski at ¶ 26. “Manifest weight of the evidence pertains to the burden of persuasion.” In re A.A., 9th Dist. Wayne No. 18AP0035, 2019- Ohio-902, ¶ 17. When reviewing the manifest weight of the evidence in a civil case, we must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Smith at ¶ 7. “[T]his Court must affirm individual factual conclusions of the trial court if they are supported by competent, credible evidence.” Id. “‘If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978). In weighing the evidence, we must always be mindful of the presumption in favor of the finder of fact, Eastley at ¶ 21, which arises because the trial judge had an opportunity “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal at 80. While “[a] finding of an error in law is a legitimate ground for reversal, [] a difference of opinion on credibility of witnesses and evidence is not.” Id. at 81. “Only in the exceptional case, where the evidence presented weighs heavily in favor of the party seeking reversal, will the 7 appellate court reverse.” Boreman v. Boreman, 9th Dist. Wayne No. 01CA0034, 2002-Ohio-2320, ¶ 10. {¶13} On appeal, Mother challenges the trial court’s findings with respect to several best interest factors, including those under R.C. 3109.04(F)(1)(c)-(f) and (i)-(j). In her decision, which was adopted by the trial court, the magistrate explicitly listed and addressed each best interest factor in detail. Compare Herron v. Herron, 9th Dist. Summit No. 29683, 2021-Ohio-2223, ¶ 21 (“The trial court’s current judgment entry not only states that it considered the statutory factors regarding the best interest of the child, but it also cited the relevant statutory factor and provided a brief statement related to the statutory factor.”). {¶14} Regarding R.C. 3109.04(F)(1)(c) (i.e., the Child’s interaction and interrelationship with the Child’s parents, siblings, and any other person who may significantly affect the Child’s best interest), the magistrate found that the Child had an appropriate and loving relationship with Father, the Child’s stepmother, and others on Father’s side of the family. Contrarily, while she also found the Child’s relationship with Mother to be loving, she found it to be “dysfunctional” based on the evidence presented of role reversal and the Child’s mimicking of detrimental coping skills, such as using threats of suicide to address relationship problems. She found that the Child loves his siblings on Mother’s side, but that the Child did not have much of a relationship with Mother’s extended family, and his relationship with his stepfather “seem[ed] to be overshadowed by Mother[.]” The trial court adopted the magistrate’s decision and, in overruling Mother’s objections to that decision, explicitly found these findings to be well-established in the record. {¶15} Mother argues that the evidence demonstrated good relationships and common interests between the Child and the members of Mother’s side of the family, yet it revealed the Child’s fear of his stepmother because he saw her yell at the children and smack his stepbrother’s 8 face. She also references an allegation that the Child was inappropriately touched by one of his stepsiblings on Father’s side of the family, but she concedes that the allegation was “unsubstantiated.” {¶16} As for R.C. 3109.04(F)(1)(d) (i.e., the Child’s adjustment to the Child’s home, school, and community), the magistrate found that Mother changed residences an “unclear” number of times and changed the Child’s school district four times in seven school years (kindergarten through sixth grade) despite residing in the same geographic area. She found the Child to be social and well-adjusted to both families and communities, and fully capable of living in either community. She further found that the Child had friends in both communities and that sports were available to him in both communities, while recognizing the limitations and restrictions imposed on such activities due to the Covid-19 pandemic. The trial court found these findings to be well-established in the record. {¶17} Mother admits that the Child changed from private schooling to homeschooling to public schooling, but contends that the Child adjusted well to the changes and is involved in sports, clubs, and church. She asserts that the Child is “better adjusted” in her home because, unlike at Father’s home, the Child has his own room, is walked to the bus stop every morning, and is not forced to wake up at 4:00 A.M. to be transported to childcare before school. {¶18} When considering R.C. 3109.04(F)(1)(e) (i.e., the mental and physical health of all persons involved in the situation), the magistrate found that Father, the Child’s stepmother, and their children did not have any reported physical or mental health issues, while Mother has “significant mental health issues that require intensive and lengthy therapy, counseling, and medications[,] which have gone untreated.” The magistrate noted that the details of Mother’s mental health issues were interwoven throughout her 48-page decision, but she found that Mother 9 had attempted suicide and experienced suicide ideation resulting in hospitalizations. The magistrate further found that Mother had enmeshed the Child into her own adult life, creating an “unhealthy[,] dysfunctional relationship that is harmful to the [C]hild.” The trial court found the magistrate’s findings to be well-established in the record. {¶19} Mother argues that, despite Father’s denial at the hearing, Dr. Tener’s report indicated that Father admitted to leaving the Child under the supervision of his bedridden father- in-law. Mother also claims to have been consistently engaged in counseling for her borderline personality disorder (“BPD”) diagnosis since 2006. She admits that she was not engaged in Dialectical Behavior Therapy (“DBT”) despite Dr. Tener’s recommendation, but she claims to have since taken active steps to set up intake appointments to start DBT. She further claims to have maintained her counseling and DBT appointments since the hearing in this matter. She acknowledges the validity of the court’s concerns regarding enmeshment and her mental health issues, but then minimizes their effect by claiming the Child is “very sensitive” to Mother’s feelings and moods, is “doing well in school,” is “engaged in activities,” and is “a thoughtful and young man.” {¶20} As for R.C. 3109.04(F)(1)(f) (i.e., the parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights), the magistrate found Father to be compliant with court orders, even when he is frustrated. Contrarily, she found Mother to be repeatedly non-compliant with court orders and likely non-compliant with any future orders issued by the court. The trial court found these findings to be well-established in the record. {¶21} Mother contends that she only denied Father’s parenting time with the Child on two occasions. First, she admits to not providing Father parenting time on July 11, 2019, because of her unallayed concern that the Child would be supervised by Father’s bedridden father-in-law. 10 Second, Mother contends that the Child did not want to visit with Father on September 13, 2019, which resulted in a “regrettable and emotional” incident in which the parties remained in a McDonald’s parking lot for 45-60 minutes while the Child read Father a letter about his feelings (which Mother claims was written at the Child’s counselor’s request, not at Mother’s request). {¶22} While the magistrate did not find the R.C. 3109.04(F)(1)(i) factor (i.e., whether the residential parent has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court) to be applicable in this case, the trial court disagreed with the magistrate and found that this factor weighed against an award of custody to Mother. The court found that while Mother was the Child’s residential parent by operation of law, she willfully and repeatedly denied Father parenting time despite the court’s order. {¶23} Mother rejects the finding that she willfully and repeatedly denied Father parenting time with the Child. She argues that the two isolated incidents in 2019 were the only times she denied Father his parenting time. She contends that she has otherwise always been prompt and timely for parenting exchanges, and therefore argues that this factor weighed in her favor. {¶24} The magistrate found the factor under R.C. 3109.04(F)(1)(j) (i.e., whether either parent has established a residence, or is planning to establish a residence, outside this state) to be inapplicable, but the trial court again disagreed and found that Father had established a residence outside the state of Ohio, which the court found to weigh neither favorably nor unfavorably to Mother or Father. The magistrate did, however, afford considerable weight to the fact that the Child has resided with Mother since birth, and the trial court agreed. {¶25} Mother simply reiterates that the Child has lived with her in Ohio for his entire life, he has family living nearby, and is involved in sports, groups, and school in Ohio. She argues that 11 the Child does not have these connections in Indiana, and thus claims that this factor weighs in her favor. {¶26} Mother further argues that some additional best interest factors listed under R.C. 3109.04(F)(2) weighed in her favor, specifically: (b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent; (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. We note, however, that the best interest factors under R.C. 3109.04(F)(2) are triggered when, unlike here, a request for shared parenting has been made. See Maran v. Clark, 9th Dist. Lorain No. 21CA011796, 2022-Ohio-3175, ¶ 32. A request for shared parenting has not been made in this matter, and Mother has not explained how consideration of any of these additional factors would have impacted the trial court’s best interest determination. See In re G.D-M., 9th Dist. Summit Nos. 30069, 30070, 30071, and 30072, 2022-Ohio-3023, ¶ 25, citing App.R. 16(A)(7). {¶27} The trial court found that “the totality of the analysis supports a finding that the [C]hild’s best interest would best be served by an award of custody to Father.” Though Mother strongly disagrees with the trial court’s determinations in this matter, the crux of her argument on appeal is that the weight of the evidence demonstrated that it was in the best interest of the Child for Mother, not Father, to be named the residential parent of the Child. She believes the trial court should have weighed select evidence (which was favorable to her) more heavily while she either ignores or attempts to minimize the evidence that weighed in Father’s favor. Compare King v. King, 9th Dist. Medina Nos. 11CA0006-M, 11CA0023-M, and 11CA0069-M, 2012-Ohio-5219, ¶ 21. As a reviewing court, however, we must again stress that the trial court, as finder of fact, is 12 best able to “view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal, 10 Ohio St.3d 77, 80. The decision to credit the testimony of witnesses who testified contrary to Mother or presented evidence favorable to Father was a determination inherent in the responsibilities of the trial court in this matter. See Phillips v. Phillips, 9th Dist. Lorain No. 13CA010358, 2014-Ohio-248, ¶ 13. {¶28} Our thorough review of the record reveals that the trial court’s findings regarding the best interest of the Child in this matter are supported in the record by competent, credible evidence. See Smith, 2021-Ohio-3016, at ¶ 7. Evidence was presented that Mother suffers from significant and sometimes untreated mental health issues. Apart from attending sporadic counseling, there was evidence that Mother had not taken the recommended steps to obtain help or treatment for her mental health issues. As noted by the trial court, Mother received treatment and therapy only intermittently, and generally only following crises, suicide ideations, and hospitalizations. Her disagreements with other adults (e.g., Father, the parents of other school children, and counselors) led to less interaction with Father and to the Child’s removal from both school and counseling. Despite Mother’s denials, evidence was presented that both Mother and the Child were exposed to and traumatized by domestic violence by the fathers of Mother’s other children, and that any loud noises and people yelling now frighten the Child. Evidence was also presented that court-ordered counseling was helpful to the Child, and both Father and the Child’s stepmother testified that they were committed to continuing the Child’s counseling in Indiana. {¶29} Evidence was presented that Mother does not follow court orders and has engaged in what could certainly be described as a “systematic interference” in Father’s relationship with the Child over an extended period of time. Evidence was presented of Mother, among other things, 13 hindering or blocking the Child’s ability to continue playing video games remotely online with Father, not providing the Child’s sports schedules to Father, scheduling events during Father’s parenting time, denying Father his parenting time, prompting the Child to write a “feelings” letter and then read it aloud in front of his parents and stepparents, hindering or denying the Child’s telephone contact with Father (despite a court order), falsely claiming the Child had games and practices to explain missed visitations with Father, removing Father’s surname from the Child’s hyphenated surname for no reason except to possibly denigrate Father and minimize his role in the Child’s life. Contrarily, no evidence was presented to suggest that Father has significant and untreated mental health issues, or that he has ever interfered with Mother’s relationship with the Child. While the evidence showed that the Child loves both of his biological parents and that his parents love him, there was also evidence that the Child was, at times, seemingly parenting Mother (not the other way around) and was being made by Mother to choose between loving either Mother or Father (but not both). {¶30} The magistrate, and ultimately the trial court, both set forth very careful and measured analyses in consideration of the evidence presented and the best interest factors in this case. There can be no doubt that the trial court conducted a thorough, independent review of the entire record before overruling Mother’s objections to the magistrate’s decision, as evinced by its 24-page judgment entry which at times even disagreed with certain findings made by the magistrate. The painstaking detail in which the court poured over the evidence and made its determinations indicates that sincere thought and consideration was given to the best interest factors in this case. {¶31} Our thorough review of the record before us reveals competent, credible evidence supporting the trial court’s determination regarding the best interest of the Child. While evidence 14 was certainly introduced that could be weighed in favor of designating Mother as the residential parent of the Child, the record is replete with evidence that could be weighed in favor of designating Father as the residential parent. Accordingly, we cannot say that the trial court abused its discretion in this matter or that its determination regarding the best interest of the Child was against the manifest weight of the evidence. Mother has also not shown this to be the exceptional case where the evidence presented weighs heavily in her favor. See Boreman at ¶ 10. {¶32} Mother’s first assignment of error is overruled. ASSIGNMENT OF ERROR TWO THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING [MOTHER] IN CONTEMPT OF COURT. {¶33} In her second assignment of error, Mother argues that the trial court abused its discretion when it found her in contempt of court for failing to abide by visitation orders. {¶34} Pursuant to Civ.R. 53(D)(3)(b)(iv): “Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(ii) further requires objections to magistrate’s decisions to state with particularity all grounds for objection. Haddox v. Haddox, 9th Dist. Summit Nos. 29582 and 29588, 2020-Ohio-4673, ¶ 9. “‘Where a party fails to raise an issue in its objections to a magistrate’s decision, that issue is forfeited on appeal.’” Herron v. Herron, 9th Dist. Summit No. 29683, 2021-Ohio-2223, ¶ 15, quoting Bass-Fineberg Leasing, Inc. v. Modern Auto Sales, Inc., 9th Dist. Medina No. 13CA0098-M, 2015-Ohio-46, ¶ 24. {¶35} While Mother raised many objections to the magistrate’s decision in this matter, none of them challenged the magistrate’s contempt findings as they related to the denial of 15 parenting time on July 11, 2019. The trial court also explicitly noted that Mother “does not dispute [the] findings of contempt.” Thus, upon review, we conclude that Mother has failed to preserve this issue and has therefore forfeited all but plain error on appeal. See Haddox at ¶ 11. She has not argued plain error on appeal, and this Court declines to construct such an argument on her behalf. See id. {¶36} In her 25-page supplemental objections to the magistrate’s decision, Mother only referenced the issue of contempt as it related to the September 13, 2019, incident by summarizing the evidence as showing that she arrived at the exchange location with the Child, she did not interfere, and that Father left without the Child. She stated: “[T]he [m]agistrate’s finding of [c]ontempt for the [m]otion to [s]how [c]ause on October 25, 2019[,] was an abuse of discretion” and “Mother abided by the court order and should not have been held in contempt * * *.” Presuming this was sufficient to preserve her challenge to the finding of contempt on appeal, we again note that Mother did not actually challenge any of the trial court’s findings related to contempt. {¶37} Furthermore, we must note that, in her supplemental objections, Mother only asserted that the magistrate’s contempt finding “was an abuse of discretion.” In accordance with Civ.R. 53(D)(4)(d), however, when ruling on objections to a magistrate’s decision trial courts are required to “undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Yet, the abuse of discretion standard embodies presumptions of validity and deference to an independent fact-finder, which is inappropriate in a trial court’s independent review of a magistrate’s decision under Civ.R. 53. See Kovacs v. Kovacs, 6th Dist. Erie No. E-03-051, 2004-Ohio-2777, ¶ 7. It would have therefore been reversible error for the trial court in this matter to utilize the appellate 16 standard of review of abuse of discretion when ruling on Mother’s objections to the magistrate’s decision. See Weber v. Devanney, 9th Dist. Summit Nos. 28876 and 28938, 2018-Ohio-4012, ¶ 21. See also Sheehan v. Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 12; Calhoun v. Calhoun, 7th Dist. Jefferson No. 20 JE 0014, 2021-Ohio-4551, ¶ 14-15; In re M.R., 12th Dist. Butler Nos. CA2018-07-145, CA2018-07-146, and CA2018-07-147, 2018-Ohio-5047, ¶ 17. Accordingly, we cannot say that the trial court erred in neglecting to find, as Mother requested, that the magistrate abused her discretion in finding Mother to be in contempt for the September 13th incident. {¶38} For the above reasons, Mother’s second assignment of error is overruled. III. {¶39} Mother’s first and second assignments of error are both overruled. The judgment of the Wayne County Court of Common Pleas, Juvenile Division, is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. 17 Costs taxed to Appellant. THOMAS A. TEODOSIO FOR THE COURT CALLAHAN, J. SUTTON, J. CONCUR. APPEARANCES: BENJAMIN R. SORBER, Attorney at Law, for Appellant. CHRISTOPHER A. SCHMITT, Attorney at Law, for Appellee.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488261/	[Cite as Davis v. Royal Paper Stock Co., Inc., 2022-Ohio-4135.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY JULIE DAVIS, et al., : Appellant, : CASE NO. CA2021-09-028 : OPINION - vs - 11/21/2022 : THE ROYAL PAPER STOCK CO., INC., : et al., : Appellees. CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CVH19000202 Davidson Law Offices Co. LPA, and David T. Davidson; Chappars Law Office, and Timothy S. Chappars, for appellant. Surdyk, Dowd & Turner Co., LPA, and Edward J. Dowd and Christopher T. Herman, for appellees The Royal Paper Stock Company, Inc. and RPS Leasing, Inc. Lewis, Brisbois, Bisgaard & Smith, LLP, and Joseph Fiorello, for appellee Beauty Systems Group, LLC. BYRNE, J. {¶1} This case involves a collision between a semi-tractor driven by Shawn Davis and a stationary, docked semi-trailer on a warehouse lot. The collision resulted in Shawn's death. The parties agree that Shawn's own negligence was a proximate cause of the collision and of his death. But Shawn's wife, Julie Davis, and Shawn's estate, filed a lawsuit Clinton CA2021-09-028 alleging that the Defendants' negligence also caused or contributed to Shawn's death. The Defendants moved for summary judgment, which the Clinton County Court of Common Pleas granted. Julie appealed. For the reasons described below, we affirm the trial court's summary judgment decision. I. Factual Background and Procedural History A. Royal and Beauty's Business Arrangement {¶2} Defendants, Royal Paper Stock Company, Inc. and RPS Leasing, Inc. (collectively "Royal"), purchase scrap paper and cardboard and sell it to paper mills. Another company and defendant, Beauty Systems Group LLC ("Beauty"), operates a warehouse facility in Greenville, Ohio, which it uses in its business of distributing beauty supplies. Royal and Beauty had an arrangement in which Royal agreed to purchase Beauty's leftover scrap paper and cardboard by the ton. {¶3} To collect the scrap paper and cardboard, Royal left one of its semi-trailers docked at Beauty's warehouse. Using a forklift, Beauty would load the trailer with scrap paper and cardboard until it was full. Royal would then have the fully loaded trailer transported to its facility. At the same time, Royal would replace the full trailer with an empty trailer so that Beauty could continue loading scrap paper and cardboard. Royal retained R&L Carriers, a freight shipping company, to drop off and pick up Royal's trailers from Beauty's facility. B. The Accident {¶4} On June 20, 2017, Shawn, an R&L Carriers driver, drove to Beauty's warehouse in his semi-tractor to deliver an empty Royal semi-trailer and to pick up Royal's docked semi-trailer ("docked trailer"),1 which contained approximately 28,000 pounds of 1. RPS Leasing, Inc. was the title owner of the trailer and Royal Paper Stock Company, Inc. used the trailer in its business. Both companies are commonly owned. -2- Clinton CA2021-09-028 scrap paper and cardboard. {¶5} The undisputed facts show that Shawn's tractor, with the empty semi-trailer still attached, and with the empty trailer's wheels locked (causing 32 feet of skid marks), collided with the nose of the docked trailer. Shawn's tractor and its empty semi-trailer were positioned perpendicularly to the docked trailer, with the driver side window of the tractor's cab facing towards the nose of the docked trailer. The impact was a sideswipe. But somehow, the tractor lifted the front end of the docked trailer up in the air by a few inches, despite the docked trailer being fully loaded. Sometime during the incident, either before or after the collision, Shawn exited the tractor. He became pinned between the docked trailer, the door of the tractor, and the tractor's door frame. At some point, the docked trailer collapsed. Tragically, Shawn died from the injuries he sustained that day. {¶6} There were no witnesses to the collision or to the chain of events that led to Shawn being pinned between the docked trailer and his tractor. However, several witnesses did see and testified about the immediate aftermath of the collision in discovery depositions. Troy Patterson – another truck driver who was on Beauty's property – testified that he heard a "crash. A crash, bang." He then saw that there was a man – Shawn – being crushed between the docked trailer and the door of Shawn's tractor. Shawn was facing towards the front of the tractor. Patterson approached, entered the cab through the passenger side, tapped on Shawn's hand, and got no response. Shawn did not "look good." Patterson decided he needed to free Shawn by backing up the tractor. At first, he found he could not move the tractor in reverse because the air supply lines between the tractor and the empty trailer were disconnected. (A semi-trailer's wheels will lock in place if the trailer is not being supplied by air from the semi-tractor.) Patterson reconnected an air supply line and was then able to reverse the tractor two to three feet. This action freed Shawn, who then fell to the ground. -3- Clinton CA2021-09-028 {¶7} A second witness, Sherry Waymire, was a Beauty employee. Waymire testified that she was standing in front of the tractor when Patterson was trying to back up the tractor to free Shawn. She watched the tractor "hop" or move forward several feet. She described the motion as "like somebody just learning to drive, that hop with the clutch thing." It appeared to her that this forward motion caused the tractor to go "into the trailer * * * even a little bit more." Within a minute, however, Patterson managed to reverse the tractor. Waymire said that when the tractor reversed, Shawn fell to the ground. Waymire testified that the docked trailer remained upright until the tractor backed up. Immediately after the tractor backed up, Waymire observed the docked trailer collapse to the ground. {¶8} A third witness, Randy Gunkle, testified that he also saw the aftermath of the accident. When he saw Shawn pinned, the docked trailer had not yet collapsed. Like Waymire, Gunkle testified that the docked trailer collapsed either immediately after or shortly after the tractor reversed. {¶9} Photographs submitted with summary judgment filings show damage to the tractor's driver's-side mirror and door, as well as damage to the fender above the driver's- side wheel and tire. {¶10} The docked trailer had "landing gear" or "landing legs," which were structural legs located towards the nose of the docked trailer that could be lowered to support the docked trailer when it was unhooked from a tractor. The legs were lowered and supporting the docked trailer before the collision. When the docked trailer collapsed, the landing gear legs both fell to the ground. {¶11} A police detective who investigated the accident believed that Shawn may have been outside of the tractor, unhooking the empty trailer, when the tractor started moving forward on its own, perhaps because Shawn left the tractor in gear. The detective surmised that Shawn then tried to board the moving tractor to stop it when the impact with -4- Clinton CA2021-09-028 the docked trailer occurred, pinning him between the cab door and the door frame. C. The Complaint {¶12} In 2019, Julie Davis, individually and as the administrator of Shawn's estate, filed a complaint against Royal and Beauty. Julie alleged that the docked trailer's landing gear were "rusted, weakened, and in a state of disrepair susceptible to collapse." Julie alleged that the trailer's landing gear collapsed after Shawn's tractor "grazed" the docked trailer, pinning Shawn between the driver's door and driver's side of the cab of the tractor. {¶13} Julie alleged that Royal, as the owner of the docked trailer, breached a duty of care to Shawn to keep the docked trailer in a reasonably safe condition and was negligent by failing to adequately inspect, maintain, and repair the docked trailer. Julie also alleged that Beauty owed Shawn a duty to keep its warehouse in a reasonably safe condition and to warn of hidden dangers. The complaint alleged that Beauty knew that the docked trailer presented a dangerous condition and was negligent by allowing the docked trailer to be present at the warehouse and by not warning others of the dangerous condition. D. Expert Witnesses {¶14} The parties engaged in extensive discovery, including deposing the witnesses described above, along with others. In addition to these lay witnesses, three expert witnesses—two retained by Julie and one retained by Beauty—provided written reports and were deposed. Because the issues in this appeal largely concern the expert witnesses, we will summarize their written reports and deposition testimony here. 1. Dr. Mariusz Ziejewski, Ph.D. {¶15} Julie retained Dr. Mariusz Ziejewski, a mechanical engineer with a Ph.D. in high viscosity flow dynamics (fluid analysis), to offer his opinion about the causes of the accident. -5- Clinton CA2021-09-028 a. Dr. Ziejewski's Written Report {¶16} Dr. Ziejewski issued a written report in which he summarized his investigation and conclusions. Dr. Ziejewski wrote that he reviewed various written material associated with the accident, including the police report and an investigation by the Occupational Safety and Health Administration ("OSHA"). He also reviewed the deposition testimony of multiple witnesses to the accident. Finally, he physically examined the accident site, the docked trailer, and the collapsed landing legs. He reviewed various photographs of the damage to the tractor. {¶17} Dr. Ziejewski offered his opinion about the sequence of events. Dr. Ziejewski believed that Shawn was unhooking his empty trailer and in doing so attempted to disconnect the trailer's king pin from the tractor. But, unbeknownst to Shawn, the king pin re-engaged, and the empty trailer was not decoupled when Shawn got back into the tractor and began moving the tractor.2 Shawn then began dragging the trailer with its wheels locked, which was evident because there were around 32 feet of drag marks behind the empty trailer leading up to the collision site. {¶18} Dr. Ziejewski further believed that the first interaction between the tractor and docked trailer was that the tractor's left front fender "interacted with the underside of the docked trailer resulting in the left front fender being brought in contact with the left front wheel." This occurred while Shawn was still in the tractor. While he did not specify it in his written report, Dr. Ziejewski later clarified at his deposition that this "interaction" resulted in the docked trailer being lifted and effectively perched and balanced like a "teeter totter" on the tractor's left front fender/wheel. {¶19} Following this event, Dr. Ziejewski believed that Shawn exited the cab. Due 2. There was evidence in the summary judgment record to establish that king pin re-engagement after disconnection was not an unusual occurrence in commercial trucking. -6- Clinton CA2021-09-028 to his weight (454 pounds), Shawn contributed to the "counterclockwise roll of the cab." The docked trailer then slipped off the left front fender/wheel and collapsed onto the tractor as Shawn was exiting the tractor. {¶20} Dr. Ziejewski stated that the "biomechanical analysis of the event are consistent with the trailer collapsing and pinning [Shawn] between the driver's door and the frame of the cab, followed by release and subsequent head strike into the pavement." Ultimately, Dr. Ziejewski stated that "[t]he trailer fell due to the failure of the supporting legs, not as a result of contact with the tractor." b. Dr. Ziejewski's Deposition {¶21} At his deposition, Dr. Ziejewski admitted that he did not perform any failure testing on the landing legs and did not determine why the legs failed. He also did not perform any testing to determine the level of corrosion of the legs. He did not determine whether the condition of the landing legs violated any applicable standards. {¶22} Dr. Ziejewski explained that he had some expertise in metallurgy and had experience in failure analysis of metals but had not found it necessary to conduct any tests. He also said that he could have x-rayed the legs to determine how much metal there was as opposed to rust and that "we do it on a regular basis." {¶23} Dr. Ziejewski did not consider the weight or distribution of the scrap paper and cardboard in the tractor in his analysis. According to Dr. Ziejewski, the weight and distribution of the materials in the trailer did not affect his opinion because he "simply accepts the fact that the legs didn't maintain the upright position of the trailer." {¶24} Dr. Ziejewski confirmed that he performed no calculations to determine the forces between the tractor and docked trailer. He admitted that he could not say whether a new trailer would have collapsed under the same circumstances because he could not perform those calculations without knowing the weight distribution of the contents of the -7- Clinton CA2021-09-028 docked trailer. He also did not know the specification of lateral forces that the docked trailer was designed to withstand. He could not testify that the landing legs did not follow their designed characteristics. {¶25} During his deposition, Dr. Ziejewski expanded upon what he believed happened before and after the crash. He believed that Shawn was probably surprised that the king pin had not disengaged and opened the door of his tractor and was looking around, asking "what happened" when the tractor impacted the docked trailer. {¶26} Dr. Ziejewski believed that when the impact occurred, the trailer was lifted around two to four inches off the ground and was resting on the tractor's fender/wheel and was angled to the west. Dr. Ziejewski believed that one of the landing gear legs was on the ground and one was off the ground, though there was no explanation at his deposition for how he made this determination. Dr. Ziejewski stated that when Shawn exited the tractor, a shift in weight in a westerly direction occurred, causing the docked trailer to slide off its "perch" on the tractor's fender. The docked trailer then dropped 2-4 inches, the legs collapsed, and Shawn was pinned. {¶27} Dr. Ziejewski noted photographs of the tractor's driver door that showed marks or scratches that were horizontal and then angled downwards at ten degrees. He testified that this change in angle of the scratches or marks showed the landing gear legs collapsing. {¶28} Dr. Ziejewski's opinion was that what occurred was a minor "side-swipe" accident coupled with a ten-degree tilting of the docked trailer. Dr. Ziejewski believed that what occurred was so minor that it should not have resulted in the landing gear collapsing. {¶29} When asked whether, if the docked trailer had been empty, it would have changed his analysis, Dr. Ziejewski responded, "No. I am basing my analysis on that scratch pattern that we discussed. That's all." When asked if it was his opinion then that the trailer would have collapsed even had it been empty, Dr. Ziejewski clarified that he did not know -8- Clinton CA2021-09-028 if an empty trailer would have collapsed or not. He then admitted that weight and distribution of the docked trailer was a relevant factor, but that he did not know that information and referred to his earlier testimony in which he had repeatedly said he could not perform various force calculations without knowing the weight distribution of the trailer. {¶30} As to how he arrived at the opinion in his written report that "[t]he trailer fell due to the failure of the supporting legs, not as a result of contact with the tractor," Dr. Ziejewski explained that if the trailer had collapsed towards the east (the direction that the tractor was moving at impact), then his opinion would be that the collision with the tractor caused the legs to collapse. But it "[w]ent to the west, and ten-degree tilt, this was enough."3 2. Timothy Bussard {¶31} Julie also retained Timothy Bussard, a commercial transportation specialist who worked at a forensic consulting firm. Bussard had once been a commercial truck driver and the director of safety at several trucking companies. a. Bussard's Written Report {¶32} Bussard issued a written report that described his investigation and opinions on whether the actions or inactions of Beauty or Royal caused or contributed to Shawn's injuries and death. He wrote that he inspected the docked trailer, and specifically the undercarriage area around the landing legs and found that it was "severely rusted and had not been maintained" by Royal. Bussard further wrote that Beauty had created an unsafe condition by allowing Royal to bring and leave a "dangerously defective trailer" on its property. {¶33} Bussard further believed that Beauty had failed to follow OSHA regulations as 3. The record is not entirely clear on what Dr. Ziejewski meant about the trailer collapsing towards the east or west. We believe that this refers to the direction the trailer collapsed relative to the landing gear. That is, if the trailer had collapsed towards the east, the landing gear would have oriented to the west, and vice versa. The landing gear collapsed towards the east, and thus the trailer fell in the opposite westerly direction. -9- Clinton CA2021-09-028 well as nationally recognized standards of care related to its failure to use trailer jack stands, which are portable jacks that can be placed underneath a parked trailer as another support structure. Bussard wrote that if Beauty had placed a trailer jack stand underneath the docked trailer, this "may have prevented the trailer collapse upon being struck." Bussard wrote that Beauty's failure to use a jack stand was a contributing cause that led to the incident. b. Bussard's Deposition Testimony {¶34} At his deposition, Bussard testified that he was not trained or certified in accident reconstruction, metallurgy, on the effects of corrosion on the thickness or integrity of steel or other metals and had no training in why steel components may fail. He added that he did not know of any industry or manufacturing standards for lateral movement that landing gear should be able to absorb. Bussard agreed that rust on a trailer is not unusual, and he was unfamiliar with any guides or publications that would specify when landing gear must be replaced or serviced due to corrosion. He did not know how much steel thickness had been lost to corrosion on the docked trailer. {¶35} Bussard clarified that he was not offering an opinion that the rust that he observed on the underside of the trailer negatively affected the trailer's structural integrity. He believed that scientific testing was available that could determine the structural integrity of the trailer. {¶36} Bussard believed that a new trailer's landing legs would not have buckled under the same circumstances. His opinion was based on the condition of the undercarriage and his review of the docked trailer's maintenance records. He also offered that "these trailers are normally solid" and that the landing legs are "solid enough to withhold a large impact, a lot of damage." He later added that in his experience, trailers have been dropped "in a higher fashion than 4 inches." - 10 - Clinton CA2021-09-028 {¶37} Bussard did not know when the landing gear collapsed during the incident and did not know what forces caused the landing gear to collapse. He agreed that the primary purpose of landing gear was to support a trailer when in its parked position. Bussard agreed that the trailer was loaded with 28,000 pound of scrap paper and cardboard and that the legs had functioned properly while it was being loaded with that material. He also agreed that the only factor that changed was Shawn's tractor striking the trailer and then the tractor backing off it. {¶38} Bussard conceded that Royal had inspected the docked trailer within the previous 12 months and had complied with applicable Federal Motor Carrier Safety Administration ("FMCSA") regulations. {¶39} As for Beauty, Bussard stated that there were no FMCSA regulations imposing an obligation to use jack stands. He also admitted that OSHA only recommended jack stands, and that there no standards requiring their use. That said, he was critical of Beauty for failing to use jack stands. {¶40} Bussard stated that he had conducted no experiments involving crashing a tractor into a docked trailer with a jack stand underneath it and agreed that there was no way to know what would have happened had there been a jack stand underneath the docked trailer. {¶41} When asked to clarify what he believed to be the defect in the docked trailer, Bussard stated that "it could have been the landing legs were not sufficient." (Emphasis added.) 3. Dr. Ashley Dunn, Ph.D. {¶42} Beauty retained Ashley Dunn, Ph.D., a mechanical engineer, to investigate the accident. - 11 - Clinton CA2021-09-028 a. Dr. Dunn's Written Report {¶43} In his report, Dr. Dunn wrote that Shawn drove his tractor into the docked trailer while trying to disconnect his semi-trailer. Dr. Dunn believed that the docked trailer maintained an upright position until Patterson reversed the tractor. The eventual collapse of the docked trailer's landing gear resulted from the reversing of the tractor, which imparted a horizontal force high above the ground. That lateral force, in turn, generated a "moment" sufficient to overload the legs of the landing gear. {¶44} Whether or not Shawn drove his tractor into the docked trailer, or the tractor rolled into the docked trailer, Dr. Dunn wrote that the docked trailer and its landing gear did not cause the accident or contribute to the accident. Nor did the collapse of the docked trailer cause or contribute to Shawn's injuries. The docked trailer successfully supported being loaded with about 28,000 pounds of scrap paper/cardboard. Therefore, Dr. Dunn believed that the legs were functioning properly and as designed before the tractor hit the docked trailer. {¶45} As for Dr. Ziejewski's report and deposition testimony, Dr. Dunn believed that Shawn exiting the tractor cab would not have deflected the tractor's suspension significantly. If Shawn was exiting the cab at the time of the accident, his movement onto the steps did not put any new weight on the tractor or cause it to disengage from the docked trailer. Dr. Dunn believed that Dr. Ziejewski trivialized the collision forces between the moving tractor (weighing around 34,000 pounds) and the docked trailer (with an approximate weight of 40,000 to 50,000 pounds). Dr. Dunn contended that the structure of the docked trailer, including landing gear legs, was not designed or intended to remain intact following a vehicle crash. {¶46} Dr. Dunn believed that it was speculative to say that the initial impact of the tractor into the docked trailer resulted in the docked trailer being lifted enough to perch atop - 12 - Clinton CA2021-09-028 the left-front fender and steer-axle tire of the tractor. He believed that the left-front fender and steer-axle tire would not support one end of the partially loaded docked trailer. Dr. Dunn wrote that Dr. Ziejewski provided no scientific evidence, testing, modeling, or other analysis that provided any support for his opinion that the docked trailer collapse did not result from the contact with the tractor. {¶47} As for Bussard's opinions, Dr. Dunn stated that because of the lateral forces imparted upon the docked trailer during the collision and subsequent reversing of the tractor, it was speculative to conclude that portable trailer jacks would have prevented the collapse of the docked trailer. b. Dr. Dunn's Deposition Testimony {¶48} At his deposition, Dr. Dunn testified as to his belief regarding the chain of events. He, like Dr. Ziejewski, agreed that it was more likely that Shawn drove the tractor into the docked trailer. He found this more likely than the investigating detective's theory that the tractor rolled into the docked trailer on its own because it would have required power to move the empty trailer. He believed that after impacting the docked trailer, Shawn probably attempted to back his tractor up, just enough so that he could exit the cab and get partially out of the door. Then, Dr. Dunn believed, the tractor lurched forward on its own, crushing Shawn between the door and the cab. Dr. Dunn explained that if Shawn had left the tractor in reverse after backing up, then removed himself from the tractor controls, the clutch may have disengaged itself and allowed the truck to roll forward. {¶49} As to why he did not believe that Shawn's weight was significant in terms of him getting out of the tractor cab, Dr. Dunn explained that the suspension system of this tractor was statically and dynamically designed to support 50,000 pounds. Thus, Shawn's weight of 400-plus pounds was not a significant addition to that suspension. But most importantly, Shawn's weight was not an added factor to the suspension. - 13 - Clinton CA2021-09-028 E. Summary Judgment Motions and Trial Court Decision {¶50} In March 2021, Royal and Beauty each moved for summary judgment, which they supported with the filing of various depositions and other evidence. After the summary judgment motions were fully briefed, the trial court issued a decision granting summary judgment in favor of Beauty and Royal. {¶51} The trial court found that the summary judgment evidence showed that the proximate cause of Shawn's injuries and death was the lateral collision between Shawn's tractor and the docked trailer, and that the rust on the docked trailer's landing gear was not an additional proximate cause of Shawn's injuries and death. {¶52} In reaching this conclusion, the trial court found that Julie had submitted no evidence establishing that the rust on the docked trailer's landing gear was the proximate cause of Shawn's injuries and death. The court observed that neither Dr. Ziejewski nor Bussard performed any testing on the landing gear's structural integrity. The trial court concluded that "without [such] tests and expert testimony it is impossible to conclude that the amount of rust on the legs of this [docked] trailer was the proximate cause of the accident." The court noted that Bussard stated that it "could have been" possible that the accident was caused because the landing gear "were not sufficient." The court found this testimony not sufficiently definitive. {¶53} As for the existence of a duty of care, the trial court further found that it was not foreseeable that the stationary docked trailer would cause injuries or death and thus neither Beauty nor Royal owed Shawn a duty to warn him. {¶54} Finally, the court held that "even if the Defendants were negligent, which the Court concludes they were not, the negligence of [Shawn] clearly exceeded it, and therefore, bars recovery." {¶55} Julie appealed, raising two assignments of error. - 14 - Clinton CA2021-09-028 II. Law and Analysis {¶56} This court reviews a trial court's summary judgment decision under a de novo standard. Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7. Summary judgment is appropriate under Civ.R. 56 when (1) there is no genuine issue of material fact remaining to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in her favor. BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, ¶ 17, (12th Dist.), citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370 (1998). {¶57} The party requesting summary judgment bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292- 293 (1996). Once a party moving for summary judgment has satisfied its initial burden, the nonmoving party "must then rebut the moving party's evidence with specific facts showing the existence of a genuine triable issue; it may not rest on the mere allegations or denials in its pleadings." Sexton at ¶ 7; Civ.R. 56(E). A. Assignment of Error No. 1 {¶58} Julie's Assignment of Error No. 1 states: {¶59} THE TRIAL COURT ERRED IN CONCLUDING THAT THE SOLE PROXIMATE CAUSE OF MR. DAVIS' DEATH WAS THE INITIAL SIDESWIPE COLLISION, RATHER THAN CONCLUDING THAT A JURY QUESTION EXISTED AS TO WHETHER DEFENDANTS' ACTIONS AND INACTIONS WERE CONCURRENT PROXIMATE CAUSES TO THE EVENTUAL COLLAPSE OF THE TRAILER THAT PINNED SHAWN P. DAVIS. - 15 - Clinton CA2021-09-028 {¶60} Julie argues that the trial court erred in granting Royal's and Beauty's motions for summary judgment. In Assignment of Error No. 1, Julie argues that the trial court erred in its determination that Shawn's action of crashing into the docked trailer was the sole proximate cause of his injuries and death. Julie does not dispute that Shawn caused the accident that led to his injuries and death. Rather than disputing that Shawn's actions caused the accident, she contends that the trial court failed to consider her expert's opinions that the docked trailer's landing legs were — because of rust — defective and were an additional proximate cause of Shawn's injuries and death. {¶61} "In order to establish an actionable negligence claim, a plaintiff must establish that (1) the defendant owed [the] plaintiff a duty, (2) the defendant breached that duty, and (3) the defendant's breach proximately caused the plaintiff's injuries." Perelman v. Meade, 12th Dist. Warren No. CA2021-06-054, 2021-Ohio-4247, ¶ 15. {¶62} "'"The proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which, that event would not have occurred."'"4 Towles v. MillerCoors, LLC, 12th Dist. Butler No. CA2019-12-207, 2021-Ohio-34, ¶ 20, quoting Valentine v. PPG Industries, Inc., 158 Ohio App. 3d 615, 2004-Ohio-4521, ¶ 16 (4th Dist.), in turn quoting Aiken v. Indus. Comm., 143 Ohio St. 113, 117 (1944). "Proximate cause 'contemplates a "probable" or "likely" result, not merely a "possible" one,' and therefore, the issue of proximate cause is not subject to speculation or conjecture." Orren v. BWF Corp., 12th Dist. Warren No. CA2013- 11-112, 2015-Ohio-62, ¶ 16, quoting Morgan v. Ramby, 12th Dist. Warren Nos. CA2010- 10-095 and CA2010-10-101, 2012-Ohio-763, ¶ 25. {¶63} Here, Royal and Beauty satisfied their initial burden in summary judgment 4. We address duty and breach of duty in the second assignment of error. - 16 - Clinton CA2021-09-028 proceedings by submitting summary judgment evidence, including expert depositions and layperson depositions demonstrating that Shawn's injuries and death were caused by his own actions and that Julie had offered only speculation, not summary judgment evidence, regarding her theory that the docked trailer's landing legs collapsed because of rust. Remember, Julie does not dispute that Shawn caused the accident that led to his injuries and death. Julie instead, relying on her experts' testimony, argues that she met her reciprocal burden under Civ.R. 56(E) to demonstrate a genuine issue of fact on causation. That is, Julie argues that she produced evidence of a different proximate cause for Shawn's injuries, i.e., that the docked trailer's landing legs were "severely rusted and corroded," and that the landing legs collapsed "because they lacked adequate structural integrity." Julie attempts to rebut Royal and Beauty's summary judgment argument by arguing that, given her experts' testimony about the inadequate structural integrity of the landing legs, there are genuine issues of material fact related to proximate cause that should have prevented the trial court from awarding summary judgment to Royal and Beauty. If Julie's experts had testified in such a way that there were genuine disputes over material fact, we would agree. But we have thoroughly reviewed Dr. Ziejewski's report and deposition testimony and Bussard's report and deposition testimony, and we find that they do not, in fact, create genuine issues of material fact barring summary judgment. {¶64} We first turn to Dr. Ziejewski's written report and testimony. Dr. Ziejewski testified that factors like the weight and distribution of scrap paper and cardboard in the trailer were "relevant" to the trailer's collapse. Despite this acknowledgment of the factors at play, Dr. Ziejewski testified that the speed of the tractor when it hit the docked trailer, the weight of the docked trailer, the kind of forces at play during the collision, the weight of the paper material in the docked trailer and its distribution in the trailer, and the amount of force applied to the west leg of the trailer at the moment it collapsed were all irrelevant to his - 17 - Clinton CA2021-09-028 analysis. He explained that this information was unimportant because he "simply accept[ed] the fact that the legs didn't maintain the upright position of the trailer." What is more, Dr. Ziejewski admitted that it really did not matter to his analysis, one way or the other, whether there was any problem with the landing legs: Defense counsel: Would the weight or distribution have any impact on your opinion? Dr. Ziejewski: No. Because my opinion simply accepts the fact that the legs didn't maintain the upright position of the trailer. So whether or not there's something wrong with the leg, or weight distribution was wrong, or too much weight, or one side versus another, this is not of relevance to me. What's of relevance to me is relatively mild contact, sideswiped contact, and probably some lifting, a little bit of the trailer, resulted in that collapse. (Emphasis added.) Consistent with Dr. Ziejewski's admission that it was irrelevant to his analysis "whether or not there's something wrong with the leg," he admitted more than once during his deposition that he performed no investigation at all in order to determine the structural integrity of the landing legs or the reason the legs collapsed.5 For example: Defense counsel: Okay. Did you attempt to ascertain the reason why the undercarriage or the landing gear failed on the date of this accident?? Dr. Ziejewski: No, not why. It simply did fail, but the reason for it, no. {¶65} Dr. Ziejewski acknowledged that he could have performed scientific failure testing on the landing legs and could have performed corrosion testing to determine the effects of rust corrosion on the landing legs. He simply chose not to. He explained this choice when he testified that when he was retained for this litigation, he was not asked to 5. Dr. Ziejewski also admitted that he performed no scientific analysis of the lateral forces at play when the approximate 34,000-pound tractor impacted the docked trailer. This, as he explained repeatedly during his deposition, was because he did not know the weight distribution of the docked trailer. - 18 - Clinton CA2021-09-028 assess the docked trailer's structural integrity: Defense counsel: Okay. And again, you likewise were not asked to evaluate the structural integrity of the [docked trailer], correct? Dr. Ziejewski: Correct. {¶66} When defense counsel asked Dr. Ziejewski whether the result of the collision would have been different if the docked trailer were replaced with a new trailer—that is, one in which there was no rust or corrosion on the landing legs—he testified that he did not know. More specifically, Dr. Ziejewski stated that it was "possible" that the same type of collapse would have occurred with a new trailer, but he "personally" did not think the new trailer would collapse. Dr. Ziejewski not only admitted that he did not conduct any analysis to determine whether the result of the collision would have been different if the docked trailer were replaced with a new trailer without rust, but he also testified that there was no way to do this analysis because he lacked the necessary information about weight distribution within the docked trailer: Defense counsel: But you can't tell me [the docked trailer] collapsed where a new truck trailer wouldn't have collapsed under the same circumstances because these legs, for instance, 10 percent weaker than brand-new legs, correct? Dr. Ziejewski: Well, I cannot do this calculations [sic] by not knowing the weight distribution. You will be making a bunch of assumptions, which doesn't lead to anything. In other words, in this situation, you cannot perform those kind of calculations. They won't be reliable. Defense counsel: And that's what I'm getting at. There's no reliable scientific study you can point me to that says, this trailer collapsed where another one wouldn't have based on these legs? Dr. Ziejewski: I don't know how to answer your question. Again, I just expressed my opinion on that topic a number of times, and I have nothing more to add. {¶67} Dr. Ziejewski also testified that the force with which Shawn's tractor struck the - 19 - Clinton CA2021-09-028 docked trailer was a "minor interaction." But he said it was unnecessary to perform any calculations to determine that the force was minor because he determined that the scrapes and other damage on the trailer showed that the force was minimal. He also did not know how many hundreds of pounds of force would be needed to break the tractor's fiberglass fender, but he believed that "not much" force was needed. {¶68} Dr. Ziejewski's written opinion concluded that the docked trailer collapsed due to the "failure" of the landing legs. Dr. Ziejewski's testimony establishes that he did not attempt to calculate the forces involved or whether the rust on the landing legs decreased the structural integrity of the legs because his analysis simply presumed that the landing gear were defective. In other words, Julie asks us to find that a genuine issue of material fact exists based solely on Dr. Ziejewski's presumption. This cannot avoid summary judgment, for reasons we will further explain below. {¶69} We next turn to Bussard's written report and deposition testimony. Bussard maintained that the docked trailer's landing legs were not properly maintained, and that if they had been properly maintained then Shawn would not have died. That said, despite blaming Shawn's death on the landing legs, Bussard admitted that he had no opinion on whether the corrosion or rust on the landing legs had negatively impacted the structural integrity of the legs. He admitted that an analysis of the legs' structural integrity was "beyond my scope." He also admitted that the fact the legs collapsed did not signal Royal or Beauty had violated any rules related to the legs. {¶70} Bussard admitted that it is "not unusual" for rust to form on a trailer's undercarriage and legs, and in fact it should be expected. Bussard also stated that while he viewed the rust on the docked trailer's undercarriage and legs as extensive, this was his own subjective, non-scientific opinion. Bussard admitted that he did not know how much of the landing legs' metal was lost to rust, and that he was not offering any opinion that the - 20 - Clinton CA2021-09-028 rust appearing on the trailer negatively impacted the trailer's structural integrity. Finally, Bussard was unable to identify any actual defect in the trailer or its landing gear; he simply stated that it "could have been the landing legs were not sufficient" to prevent the trailer's collapse. (Emphasis added.) In other words, Bussard only offered a possibility. {¶71} Bussard offered generic testimony that he was aware of other trailers that had not collapsed after being dropped from greater heights than four inches or that had not collapsed after being impacted by tractors. He also stated his belief that a new trailer would not have collapsed in the same situation. But Bussard offered only generic, non-specific descriptions of other trailer collision incidents—descriptions having so little detail they do not even rise to the level of "anecdotes"—in support of this belief, and Bussard admitted that he had never seen a collision situation involving a "similar scenario" as that in this case. Bussard's testimony was essentially an invitation to speculate that the landing gear of the docked trailer must have been defective. {¶72} When examining Dr. Ziejewski's and Bussard's written reports and testimony in a light most favorable to Julie, her experts offered nothing more than speculation to support their positions that the docked trailer's landing legs were deficient as a result of rust corrosion. Mere speculation cannot create a genuine issue of material fact. See Holbrook v. Kingsgate Condominium Assn., 12th Dist. Butler No. CA2009-07-193, 2010-Ohio-850, ¶ 27, citing Schutt v. Rudolph-Libbe, Inc., 6th Dist. Wood No. WD-94-064, 1995 WL 136777, 6 (Mar. 31, 1995) (finding expert testimony too speculative to create a genuine issue of fact and noting that summary judgment on proximate cause is appropriate where evidence of causation is so meager and inconclusive that a finding of proximate cause would rest on speculation and conjecture); Gouhin v. Giant Eagle, 10th Dist. Franklin No. 07AP-548, 2008-Ohio-766, ¶ 12 (holding that despite export report, the court would have to rely on speculation and inference stacking to find a genuine issue of fact). In addition, unsupported - 21 - Clinton CA2021-09-028 factual assertions and anecdotal allegations are insufficient to create genuine issues of fact. Adkins v. Yamaha Motor Corp., U.S.A., 4th Dist. Lawrence No. 14CA2, 2014-Ohio-3747, ¶ 17; DiPenti v. Park Towers Condominium Assn., 10th Dist. Franklin No. 19AP-384, 2020- Ohio-4277, ¶ 25. {¶73} These principles are well established, and we have applied them to expert testimony in summary judgment cases many times. See Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., Inc., 12th Dist. Butler No. CA2016-05-098, 2017-Ohio- 1091, ¶ 30 (affirming summary judgment when expert's testimony was speculative and did not raise genuine issues of material fact); State Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No. CA2007-08-025, 2008-Ohio-4436, ¶ 24-29 (affirming summary judgment to defendant when plaintiff's experts testified about origin and cause of fire but relied on assumptions not supported by the evidence, and noting that "a trial court may find an expert's opinion unreliable where the expert lacks all of the necessary facts prior to formulating his opinion"); Fink v. J-II Homes, Inc., 12th Dist. Butler No. CA2005-01-021, 2006-Ohio-3083, ¶ 30-31 (affirming summary judgment to defendant when plaintiff's expert did not give the cause of the breakage of a window, and instead offered possible causes for the breakage, and noting speculation as to causation "is not permitted in the law"); Millard v. Sisters of Mercy, 12th Dist. Butler No. CA98-10-216, 1999 WL 296754, 2 (May 10, 1999) (where plaintiff alleged that defendant negligently applied sealer to driveway and failed to inspect the premises, we affirmed summary judgment to defendant, in part because the expert's testimony was based on impermissible speculation and conjecture when expert offered only theoretical explanations and conclusive statements); Goens v. Torco Cos., 12th Dist. Butler No. CA89-06-092, 1990 WL 4259, 5 (Jan. 22, 1990) (affirming summary judgment on plaintiff's negligence claim, which was based on a claim of negligent inspection, when expert "could not say with certainty whether termites were present at the - 22 - Clinton CA2021-09-028 time of sale" and plaintiff relied on "speculation and conjecture" that because termites were present in 1987, they must have been present in 1982); Commercial Union Ins. Cos. v. GE, 12th Dist. Clermont No. CA86-01-009, 1986 WL 7984, 2 (July 21, 1986) (affirming summary judgment to defendant when plaintiff relied on speculation, without evidence to support contention that fryer was cause of fire). As a result, we find that Royal and Beauty satisfied their initial burden in summary judgment proceedings by showing that there is no disputed issue of material fact. Meanwhile, Julie failed to satisfy her reciprocal burden under Civ.R. 56(E) to demonstrate a genuine issue of material fact as to causation. There is no genuine issue of material fact with regard to the proximate cause element of Julie's negligence claims, and the trial court properly granted Royal and Beauty's motions for summary judgment. {¶74} Julie makes a few additional arguments about proximate cause that we will briefly address. First, Julie argues that the trial court ignored a genuine issue of fact on whether the impact was "significant" or "minor." She points to the opinions of Dr. Ziejewski, who characterized the impact as "minor" and Dr. Dunn, who contended that semi-trailer landing gear were not designed to withstand a "significant" impact. The severity of the crash is ultimately irrelevant. Once Royal and Beauty met their summary judgment burden of demonstrating that Shawn proximately caused his own death and that there are no genuine issues of material fact with respect to causation, it was incumbent upon Julie to produce evidence to show a genuine issue of fact as to whether the trailer was in a defective condition and that the defective condition caused or at least contributed to the collapse. Sexton, 2010-Ohio-4802 at ¶ 7. As explained above, she did not do so. {¶75} Next, Julie cites Young v. Clark, 8 Ohio L. Abs. 172, 2d Dist. Franklin No. 1774, 1929 WL 2306 (Nov. 8, 1929), which she argues presents a similar case and required the trial court to deny summary judgment. In Young, the defendant parked his vehicle and - 23 - Clinton CA2021-09-028 set the emergency parking brake before leaving the vehicle. Id. at 1. The vehicle was subsequently "dislodged" from its parking space by the removal of a Ford parked next to it, or when it was bumped by a Buick. As a result, the vehicle ran down a sharp grade on its own momentum and struck and injured the plaintiff. After a trial, the jury found that the emergency brake was not in proper repair and had it been, it would have held the vehicle in place. Id. {¶76} The appeals court found that from these facts, it was permissible and logical for the jury to conclude that the defendant was negligent in parking his vehicle with inefficient brakes and that in the exercise of ordinary care, he should have known that such a vehicle could be released from its position and proximately result in an injury to someone. Id. The court observed that the "brake would not and did not accomplish the result which it was designed to effect" and that it was a jury question to determine whether in the exercise of ordinary care the defendant should have anticipated that the accident could occur. Id. at 2. The court also rejected the defendant's argument that it was the Buick driver's actions that were the proximate cause of the accident. The court noted that there can be more than one proximate cause of an accident, and the act of the Buick driver and the failure to have effective brakes were both proximate causes of the accident. Id. {¶77} Julie argues that like the brakes in Young, the landing legs in this case did not accomplish the result which they were designed to effect because "the structurally defective and corroded undercarriage and dolly legs did not support a mere 2-4 inch vertical drop when the tractor-trailer shifted resulting in a complete collapse." Thus, Julie argues that Royal's and Beauty's negligence partially contributed to the accident as concurrent proximate causes. {¶78} We do not find Young on point. Young was not a summary judgment case. In Young the jury found that the brakes were ineffective. Here, however, and as described - 24 - Clinton CA2021-09-028 above, Royal and Beauty provided evidence establishing that there was no genuine issue of material fact with regard to Shawn causing the accident nor with regard to the rusty landing legs, and Julie did not present evidence that the rust on the undercarriage and legs rendered the landing legs defective. Julie's experts offered only presumptions and speculation regarding the landing legs and their level of corrosion, not specific facts demonstrating a genuine issue of fact as to a defective condition. Sexton, 2010-Ohio-4802 at ¶ 7. {¶79} Finally, Julie notes that Bussard contended that Beauty's failure to use jack stands was a contributing cause to Shawn's injuries. But again, Bussard was not an accident reconstructionist, and he testified that there was no way to determine what would have happened had jack stands been in place. Bussard also admitted during his deposition that there were no regulations or standards requiring the use of jack stands. Therefore, Bussard's suggestion about jack stands is only speculative and does not create any genuine issue of material fact. {¶80} Having reviewed all the summary judgment evidence, including the reports and testimonies of Dr. Ziejewski and Bussard, we find that Royal and Beauty have demonstrated the absence of a genuine issue of material fact as to proximate cause, while Julie has not presented specific facts showing the existence of a genuine issue of material fact as to proximate cause. Neither Dr. Ziejewski nor Bussard undertook any investigation into the structural integrity of the landing legs. And there was no other evidence put forth that would establish that the trailer was defective and that the collapse was potentially due, at least in part, to the rust and potential corrosion on the docked trailer's landing legs, rather than solely caused by the horizontal impact with the tractor and Shawn's negligence. Without such evidence or testimony, the trial court correctly concluded there was no genuine issue of material fact, and that the sole proximate cause of Shawn's injury and - 25 - Clinton CA2021-09-028 death was his own negligence. Reed v. Weber, 83 Ohio App.3d 437, 442 (1st Dist.1992) (holding that the issue of proximate cause may be determined in summary judgment proceedings as a matter of law if the summary judgment record demonstrates no genuine issue of material fact that remains to be litigated). See Ornella v. Robertson, 14 Ohio St.2d 144, 151 (1968); Reese v. Minor, 2 Ohio App.3d 440, 441 (1st Dist.1981); Zawlocki v. Houtz, 40 Ohio App.2d 118, 123-124 (3d Dist.1974). {¶81} The dissent argues that we have weighed the evidence, evaluated the relative credibility of Dr. Ziejewski and Bussard as opposed to Dr. Dunn, and improperly decided the question of proximate cause, which should be left to the jury. We agree that proximate cause is normally an issue for the finder of fact to decide, but we disagree with the remainder of the dissent's characterization of our analysis. As explained above, we simply find that Royal and Beauty presented evidence demonstrating the absence of a genuine issue of material fact and that Julie has not pointed to any evidence creating a genuine issue of material fact with regard to proximate cause. Julie points to the testimony of Dr. Ziejewski and Bussard with respect to the landing legs, but as we have explained they offer only speculation regarding the condition of the landing legs. Such speculative testimony is not evidence creating a genuine issue of material fact, and an appellate court may determine the issue of proximate cause in the summary judgment context when there is no genuine issue of material fact. ¶ 72 above (citing cases). {¶82} Finally, the dissent focuses on Dr. Dunn's testimony, and faults us for believing Dr. Dunn while not believing the other two experts. In fact, we make only one brief reference to Dr. Dunn in our analysis above, and only then in the context of describing one of Julie's arguments and concluding that that argument was irrelevant. ¶ 74 above. The dissent further argues that there is a genuine issue of material fact because Dr. Dunn opined that the docked trailer was not lifted in the air, but rather the tractor lurched forward - 26 - Clinton CA2021-09-028 on its own volition, causing the docked trailer to collapse. But while there may be testimony supporting competing theories about the precise sequence of events leading to Shawn's death, we are not called on in this case to decide the precise sequence of events. Nor would the jury need to decide this question if we were to reverse and remand for trial. Instead, here the parties agree that Shawn's negligence caused a series of events which, by some mechanism, led to his death. Julie and the estate brought negligence claims based on the theory that the docked trailer's rusty landing legs also contributed to Shawn's death. Because Julie points to no summary judgment evidence—only speculation offered by Dr. Ziejewski and Bussard—in support of her theory that the landing legs collapsed because of the rust, she cannot prove proximate cause with respect to her negligence claim and summary judgment is proper. Potentially disputed issues of fact related to Dr. Dunn's testimony about the precise mechanism leading to Shawn's death are thus not genuine issues of material fact. Wallace v. S. Ohio Med. Ctr., 4th Dist. Scioto No. 10CA3383, 2011- Ohio-3570, ¶ 25, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986) (holding that substantive law identifies the material facts in a case and that "[n]ot every factual dispute precludes summary judgment. Rather, only disputes as to the material facts preclude summary judgment." [Emphasis sic.]) {¶83} We overrule Julie's first assignment of error. B. Assignment of Error No. 2: {¶84} Julie's Assignment of Error No. 2 states: {¶85} THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANTS WERE NOT NEGLIGENT OR, ALTERNATIVELY, THAT THE NEGLIGENCE OF MR. DAVIS CLEARLY EXCEEDED DEFENDANTS' NEGLIGENCE. {¶86} In support of Assignment of Error No. 2, Julie reiterates many of her arguments presented in support of Assignment of Error No. 1. To the extent Julie reiterates - 27 - Clinton CA2021-09-028 her arguments, we have already addressed those arguments above with respect to Assignment of Error No. 1. {¶87} That said, Julie does make two arguments in support of Assignment of Error No. 2 that she did not make with respect to Assignment of Error No. 1. First, Julie argues that the evidence, viewed in a light most favorable to her, proves that Royal and Beauty had a duty to ensure the structural integrity of the docked trailer's landing legs and breached that duty either by not inspecting the landing legs, or by not using a jack stand to provide the docked trailer with additional support. In other words, while Julie only addressed the proximate cause element of a negligence claim in her discussion of Assignment of Error No. 1, she now addresses the other two elements—duty and breach of duty—in her discussion of Assignment of Error No. 2. Second, Julie argues that the trial court erred when it found that even if Royal and Beauty were negligent, Shawn's negligence exceeded their negligence and therefore barred Julie's recovery. {¶88} Even if we were to find, as Julie urges, that the trial court's holding about the duty and breach of duty elements of negligence was in error, our holding as to Assignment of Error No. 1—that is, that there is no genuine issue of material fact with respect to the proximate cause element of her negligence claims—would still require that we affirm the trial court's summary judgment decision. In other words, our holding as to proximate cause requires that we affirm the trial court's decision, whether or not the trial court was correct about duty and breach of duty. Julie's arguments about duty and breach of duty are moot, and we therefore decline to consider those arguments. See Holcomb v. Holcomb, 12th Dist. Clermont No CA2013-10-080, 2014-Ohio-3081, ¶ 28 (holding that defendant's failure to establish a material fact as to duty rendered any argument concerning proximate cause moot). {¶89} Likewise, because we hold that there is no genuine issue of material fact and - 28 - Clinton CA2021-09-028 Julie cannot prove the proximate cause element of her negligence claims, Julie's argument related to the trial court's comparative negligence holding is also moot and we need not consider the second assignment of error. III. Conclusion {¶90} We hold that there is no genuine issue of material fact related to proximate cause and, as a result, the trial court properly granted Royal's and Beauty's motions for summary judgment. Julie's remaining arguments are moot. {¶91} Judgment affirmed. HENDRICKSON, J., concurs. PIPER, P.J., dissents. PIPER, P.J., dissenting. {¶92} I respectfully dissent from an analysis of the summary judgment evidence that determines the sequence of events, as they unfolded, isn't significant in determining who is primarily responsible, and that expert opinions offered in summary judgment are not accorded equal consideration. Respectfully, I find it inappropriate to discredit the nonmoving party's experts without first analyzing the evidence the moving parties produced in meeting their initial burden. With no analysis or details my colleagues simply conclude the defendants' initial burden has been met. ¶ 73, 78, 81 above. Similarly, I disagree with the majority's determination that plaintiff does not dispute what caused Shawn's death. ¶ 63 above. With a battle of experts, and considering the evidence in favor of the nonmoving party, it is possible for plaintiff to prove causation of Shawn's death is not attributed to Shawn. {¶93} Furthermore, I disagree with the judgment call that focuses only upon the - 29 - Clinton CA2021-09-028 opinions of plaintiff's experts and determines both are mere speculation. The insinuation that the opinions of plaintiff's experts are meager and inconclusive is unwarranted. ¶ 72 above. If such an evaluation is due plaintiff's experts, then the same should be applied defendants' expert. The experts disagree as to who ultimately is responsible for Shawn's death. Since the opinions are based upon reviewing the same material (photographs, witness descriptions, depiction of physical evidence, etc.) one opinion cannot be given more weight than the other. Yet the defendants' expert is spared the microscope, where plaintiff's experts are not. This creates an unlevel playing field. A. CAUSATION {¶94} I agree with my colleagues that normally causation is a question of fact to be determined by a jury. I fail to see why this is not the typical case of experts disagreeing. A genuine question exists as to whose negligence was the primary cause of Shawn's death— his own, Royal's, Beauty's, or some combination thereof? We must examine the physical evidence, along with the lay witness testimony, in conjunction with the experts' opinions. A jury must resolve factual issues to determine which expert more reasonably explains the cause of Shawn's death in order to determine who is primarily responsible.6 {¶95} Generally, the issue of causation is a question of fact "and cannot be resolved by means of summary judgment." Arnett v. Mong, 12th Dist. Fayette No. CA2015-10-022, 2016-Ohio-2893 ¶ 18. Furthermore, "[w]hether the intervening act or cause constituted a concurrent or superseding cause, and whether the intervening cause was reasonably foreseeable by the original party guilty of negligence, present questions for submission to a 6. The majority's summary review of the events acknowledges that although there was an initial low impact sideswipe, whether the fully loaded and docked trailer was somehow lifted, and if so how, is disputed by the experts. Also disputed is when Shawn exited his tractor, and when, in the sequence of events, the docked trailer collapsed. However, the reasoning of the majority concludes the expert opinions, although "competing" do not need to be considered because the details of how the events unfolded is unimportant and need not be determined. ¶ 72 above. Yet the parties disagree as to what caused the trailer to collapse. - 30 - Clinton CA2021-09-028 jury which generally may not be resolved by summary judgment." Cascone v. Herb Kay Co., 6 Ohio St.3d 155, paragraph two of the syllabus (1983). "[T]he totality of the causal negligence must be examined and is a question to be submitted to the jury whose duty it is to apportion negligence." Case v. Norfolk & W. R. Co., 59 Ohio App.3d 11, 15 (6th Dist.1988). Summary judgment is not appropriate where there may be a question of fact as to whether the defendants' negligence may be greater than the negligent actions of the plaintiff. Baldwin's Ohio Personal Injury, Section 7:16 (2022 Ed.). B. DE NOVO REVIEW OF EXPERT OPINIONS {¶96} Since a trial court's decision to grant summary judgment involves only a question of law, an appellate court conducts a de novo review and "stands in the shoes of the trial court." Cooke v. Sisters of Mercy, 12th Dist. Butler No. CA97-09-181, 1998 WL 221320, at 2 (May 4, 1998). A summary judgment analysis on a matter of law must not weigh the evidence or judge the credibility of witness testimony. "[W]here the parties present conflicting experts' opinion, the credibility of one expert opinion over another is not a proper determination in ruling on a summary judgment motion." DiBlasi v. First Seventh- Day Adventist Community Church, 11th Dist. Geauga No. 2013-G-3169, 2014-Ohio-2702, ¶ 32. When considering summary judgment motions, expert opinions are to be accepted as true. Id. Sherritt v. Leath, 5th Dist. Stark No. 2021 CA 00094, 2022-Ohio-2367, ¶ 37 (With expert opinions to be accepted as true, "conflicting expert opinions regarding the defendant's liability raise a genuine issue of material fact, precluding summary judgment"). C. SUMMARY JUDGMENT SHIFTING BURDENS {¶97} Importantly, as the moving parties, the defendants have the initial burden to produce evidentiary materials demonstrating the nonmoving party cannot produce evidence of causation. Dresher v. Burt, 75 Ohio St. 3d 280, 285 (1996). Only after the moving party meets its initial burden does the nonmoving party have a reciprocal burden to point to - 31 - Clinton CA2021-09-028 contrary evidence which supports their claim. Therefore, any analysis must begin with examining the summary judgment material produced by the defendants, the parties moving for summary judgment. D. ANALYSIS {¶98} The majority determines Shawn's estate points to no evidence of causation which can be attributed to defendants, and analyzes the nonmovant's evidence opposing summary judgment. ¶ 81-82 above. Notably, the same discussion is not first given to what evidence the moving parties point to. While referencing plaintiff's reciprocal burden as the nonmoving party, ¶ 63 above, the majority gives no analysis to the defendants' evidence offered in satisfying their initial burden as the moving party. There is no explanation as to what defendants "point to" to satisfy their initial burden demonstrating a reasonable jury could not possibly determine the sideswiped trailer should not have collapsed as it did. {¶99} Similarly, the majority's analysis fails to acknowledge the eyewitness factual observations which support the opinions of Dr. Ziejewski, and the commercial transportation specialist, Bussard. Both attributed the inadequacy of the docked trailer's stabilization as a cause, offered reasonable opinions as to how the collapse occurred, and explained how they determined sequence of events that ultimately caused Shawn's death. While asserting it is not judging the credibility of the different experts and attributing weight to any particular expert, the majority finds plaintiff has failed to meet her reciprocal burden. However, it should have first determined whether the defendants met their initial burden. {¶100} The majority scrutinizes the opinions of Dr. Ziejewski and Bussard. My colleagues conclude that both of plaintiff's experts have no merit as to causation because their opinions are "speculative". Yet while the conclusions of plaintiff's and defendants' experts are different, their respective opinions are premised upon review of the same evidence. There is no explanation why one is "speculative" and the other not. - 32 - Clinton CA2021-09-028 {¶101} Noticeably, the same scrutiny is not given to Dr. Dunn's testimony which summarily concludes the docked trailer's stabilization was adequate and never left the ground. Dr. Dunn reaches his conclusions with no testing, no calculation of collision impact force, and instances of equivocal opinion like, "I think" the loaded docked trailer supports were still in place. Some of Dr. Dunn's conclusions actually contradict eyewitness perceptions of the events. 1. Defendants' Initial Summary Judgment Burden {¶102} The defendants produced Dr. Dunn's testimony to support their theory as to causation. Defendants produced Dr. Dunn's testimony in support of their initial burden in moving for summary judgment. However, Dr. Dunn's testimony leaves many unanswered questions as to the chain of occurrences which caused Shawn's death. As expected, Dr. Dunn disagrees with plaintiff's experts which results in an often-observed battle of experts. Interestingly, Dr. Dunn's conclusions do not give significance to unfavorable eyewitness observations and to important circumstantial evidence from the scene. His testimony gives no explanation for this. It would appear to be either from oversight or because he finds such testimony not credible. {¶103} For example, Dr. Dunn believes that Shawn was negligent in failing to thoroughly detach the empty trailer he was delivering. However, Dr. Dunn does not explain, despite Shawn's alleged initial negligence, why the trailer subsequently collapsed from a slight lateral impact. Dr. Dunn, not having the benefit of instructions of law, gives no application of concepts like intervening cause, superseding cause, or apportionment of negligence. Dr. Dunn's assumption is that such concepts are not applicable. {¶104} Waymire's testimony indicates that after the sideswipe Patterson caused the - 33 - Clinton CA2021-09-028 tractor to lurch forward several feet into the docked trailer.7 Patterson then backed the tractor releasing Shawn; afterwards the docked trailer collapsed. Patterson acknowledges he reversed the tractor, unpinning Shawn, thereby permitting Shawn to fall to the ground. Upon Shawn becoming unpinned, he fell to the ground because the docked trailer had not yet collapsed. The question then remains—why did the fully loaded and already docked trailer subsequently collapse, particularly if its landing gear supports remained in place, as Dr. Dunn suggests? {¶105} Dr. Dunn assumes it was the lurching of the tractor on its own volition that caused the docked trailer to eventually collapse but not because the trailer supports gave out. This disputes eyewitness testimony that the docked trailer collapsed after Patterson backed the tractor up and after Shawn was unpinned and fell to the ground. Dr. Dunn's opinion involves numerous assumptions such as Shawn attempting to back the tractor up, that the tractor lurched forward on its own, that Shawn left the tractor in reverse, and the tractor clutch disengaged itself. None of these are inferences drawn from known facts; they are assumptions in the absence of evidence. {¶106} Dr. Dunn indicates that the docked trailer supports never left the ground, yet gives no explanation founded in facts as to why the trailer collapsed. In other words, Dr. Dunn does not address plaintiff's complaint that the landing gear supports were unsafe, had been inadequately inspected, failed due to their condition, and should have been reinforced with the use of temporary stabilizing jacks in the exercise of reasonable caution. Dr. Dunn considers stabilizing jacks to be unnecessary because they are only recommended by OSHA, not mandated. However, plaintiff did not argue it was negligence per se to not use 7. Dr. Dunn assumes the trailer lunged itself, with no driver, into the loaded docked trailer causing a "crash." But a jury could reasonably determine Shawn is not liable for Patterson lurching the tractor into the docked trailer, and beyond that, a reasonable jury could determine that a trailer with a safe support system would not have collapsed. - 34 - Clinton CA2021-09-028 them, only that reasonable safety and due regard required their use. {¶107} OSHA recommendations represent best practices – it is for a jury to determine if such best practices were warranted. A reasonable jury could find that a docked trailer, no longer attached to a tractor, fully loaded, and standing with its existing support system, could foreseeably undergo some lateral shifting and that using OSHA recommended temporary braces (reinforcing existing "landing gear" supports) would be prudent. {¶108} The same tests plaintiff's experts are criticized for not performing, were also not performed by Dr. Dunn. Dr. Dunn's testimony does not explain whether the existing supports were adequate to absorb some limited amount of lateral movement or shifting, nor does he explain the cause of Shawn's death. Yet one expert is deemed speculative and the other is not. Dr. Dunn does, however, contend that the trailer supports are not designed to remain intact following a vehicle crash. Whether this was in fact a vehicular crash as Dr. Dunn describes it, or merely a low-speed sideswipe is something that falls within the province of a jury.8 2. Dueling Allegations {¶109} Unfortunately, my colleagues find that a jury's resolution of the details is insignificant in determining causation. ¶ 82 above. Although plaintiff's experts suggest the docked trailer was susceptible to collapse due to its condition, the majority implies that the sole cause of Shawn's death was his failure to successfully unhitch his tractor from the trailer he was delivering and that everything which occurs thereafter is his liability. ¶ 60 above. Without articulating what is meant by "the accident," the majority's de novo review suggests it is undisputed Shawn is liable for the stationary docked trailer collapsing on top 8. Braces, as recommended by OSHA, are for stationary trailers and do not pertain to vehicular crashes. They are added for the purpose of detached stationary trailer stabilization, not for preventing damage in vehicular crashes. - 35 - Clinton CA2021-09-028 of himself. ¶ 60 above. Simultaneously, and somewhat inconsistently, the majority finds the sequence of events is not material and the details don't need to be determined in their analysis. {¶110} My de novo review determines the cause of Shawn's death is very much disputed. The defendants' summary judgment evidence does not meet their initial burden in demonstrating that as a matter of law, a reasonable jury could not believe the stationary, docked trailer was in an unsafe condition and shouldn't have collapsed on top of Shawn. The only way such a conclusion can be reached is if the defendants' allegations are believed and plaintiff's are not. {¶111} While plaintiff's experts suggest rust was a contributing cause to the condition of the supports (not the cause) being unsafe, they are criticized for not having the metal supports scientifically tested as to strength. However, the moving party had no scientific tests performed and cannot say rust wasn't a factor contributing to metal fatigue. This leaves only dueling allegations which makes summary judgment inappropriate as a matter of law. One side says the docked trailer supports were inadequate and shouldn't have been without support braces. The other side says support braces weren't necessary suggesting the docked trailer supports were intact and never left the ground. {¶112} Despite the suggestions of Dr. Dunn's testimony, we know from an eyewitness account that the docked trailer only collapsed after Patterson backed the trailer up. No one indicated the docked trailer collapsed simultaneously as the tractor backed up (not even Dr. Dunn). If the docked trailer would have collapsed simultaneously with Patterson backing up the tractor, Shawn would have remained pinned and unable to freely fall to the ground as the witnesses described. In other words, there was no testimony that Shawn stayed pinned the entire time and continued to be crushed by the docked trailer as the tractor backed up. The facts from eyewitnesses severely undermine Dr. Dunn's assumptions. - 36 - Clinton CA2021-09-028 {¶113} As a way of discrediting the opinions of plaintiff's experts, the majority finds plaintiff's expert opinions are "speculative." ¶ 17, 22, 23, 26 above. I adamantly disagree. Cases such as these are almost always proved, or disproved, with the use of circumstantial evidence and inferences—which inferences should be deemed reasonable is a jury determination. Both experts made inferences based upon their respective expertise and from factual assessments derived from the evidence. If not considering plaintiff's experts, then defendants' expert should not be considered either. If neither set of experts are considered, we are left with just dueling allegations and summary judgment must not be entered for either. Dresher v. Burt, 75 Ohio St. 3d 280, 285 (1996). 3. Battle of the Experts {¶114} Characterizing inferences as "speculative" is a roundabout way of judging the weight or credibility of the reasonableness of the inferences. In deciding a summary judgment motion, an appellate court standing in the shoes of the trial court may not weigh or assess the credibility of the evidence. DiBlasi, 2014-Ohio-270 at ¶ 32; Sherritt, 2022- Ohio-2367 at ¶ 37. "Even the inferences to be drawn from the underlying facts * * must be construed in the nonmoving party's favor." Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). {¶115} In Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio- 4208, ¶ 30-36, appellate review rejected arguments that an expert's opinion fell into the realm of speculation and conjecture. The court noted that expert disagreements are simply part and parcel of a battle of experts and "go to credibility of, and the weight to be given, an expert's opinions, rather than their admissibility." Id. at ¶ 35. The court in Walker concluded that reasonable minds could have reached more than one conclusion and that judgment as a matter of law was inappropriate. Id. at ¶ 49. The majority's conclusion as to the state of the evidence may be the same as a jury's conclusion, however, it is not the only conclusion - 37 - Clinton CA2021-09-028 that a reasonable jury could reach if considering all of the available evidence. {¶116} Basically, Dr. Dunn believes something other than the inadequacy of the docked trailer's support system caused the trailer to collapse. Yet, Dr. Dunn's criticism of plaintiff's expert opinions is nothing more than a suggestion of disagreement. Dr. Dunn's different characterizations and conclusions do not demonstrate the absence of a genuine issue of material fact as to causation. Dr. Dunn merely suggests that since Shawn initiated the initial event, he is responsible for everything that follows in the sequence of events. However, we know the law does not operate the same in every case because the law is applied uniquely to different facts and circumstances. Dr. Dunn's suggestion alone does not meet defendants' initial burden, as the moving parties, to present evidentiary materials demonstrating that the nonmovant, plaintiff, has no evidence capable of proving the essential element of causation. Dresher v. Burt, 75 Ohio St. 3d at 285. {¶117} But even though plaintiff had no reciprocal burden as the nonmoving party to disprove Dr. Dunn's assumptions, plaintiff did reciprocate with sufficient opposing evidentiary material. The eyewitness testimony, combined with the assessment of physical evidence incorporated into the expert opinions, demonstrates evidentiary support of causation. For example, Bussard testified to a reasonable degree of certainty a new trailer would not have collapsed. A reasonable jury could infer a used trailer properly maintained and adequately inspected for safety would not have collapsed from the impact. Bussard expounded that if collapsing due to the force of the impact, the trailer would fall in the opposite direction of the impact, not toward the direction of a forceful impact. Bussard's commonsensical reasoning would permit a reasonable jury to conclude Dr. Dunn's opinion has failed to consider significant factors. {¶118} In Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio- 1041, the court indicated "this case represents the classic battle between expert witnesses" - 38 - Clinton CA2021-09-028 and the trier of fact must weigh the evidence and decide which expert to believe. Id. at 308. Where the summary judgment proceedings dispute who is the correct party responsible for causing the injury, issues of credibility must be decided by the jury. Carter v. Vivyan, 10th Dist. Franklin No. 11AP-1037, 2012-Ohio-3652, ¶ 21 (plaintiff only needed to present evidence demonstrating a genuine issue of material fact regarding the proximate cause of injury). Where the purpose of summary judgment is to filter out claims that cannot succeed at trial (as a matter of law) it is error for the trial court to conclude the expert opinion was not sufficient to survive summary judgment. Roberts v. Fraiser, 2d Dist. Montgomery No. 20989, 2006-Ohio-312, ¶ 13, 30 (proximate cause was a pivotal question and the nonmoving party could rely on the opposing party's expert opinion.) 9 E. CONCLUSION {¶119} At this stage of the proceedings, it is difficult to conclusively determine the actual sequence of events. The sequence of events is material because it aids an understanding of the step-by-step occurrences coming together to create the incident that ultimately occurred—Shawn's death. The value of an expert opinion is founded upon the validity of the facts and circumstances incorporated therein and ultimately believed by the finder of fact. The difficulty in unraveling which facts and circumstances are to be believed and which experts are believable, lies best in the hands of a jury, not dismissed by way of summary judgment. {¶120} With the facts and circumstances demonstrated within the record, there is a viable claim that the unattached, fully loaded stationary trailer wasn't adequately inspected, existed in an unsafe condition, and should have been temporarily braced to prevent 9. The battle of experts is often found in other aspects of negligence claims other than those dealing with proximate cause. Opposing experts with differing opinions as to whether the standard of care was breached falls within the province of the trier of fact to weigh. Gysegem v. Ohio State Univ. Wexner Med. Ctr., 10th Dist. Franklin No. 20AP-477, 2021-Ohio-4496, ¶ 74. - 39 - Clinton CA2021-09-028 collapse due to minimal impact. Despite Dr. Dunn's insinuation to the contrary, a slow speed lateral sideswipe, or impact, would not reasonably be expected to cause a trailer to topple over, particularly in the direction of the sideswipe or impact. Furthermore, if a jury believed Shawn acted negligently in detaching his empty trailer from his tractor, only a jury can evaluate and apportion the degree of his liability. {¶121} In a case such as this one, we are best reminded summary judgment is to be used with caution resolving all doubts in favor of the nonmoving party. This is because it precludes the nonmovant's access to a jury's determination upon a full presentation of the evidence for resolution of disputed issues. State ex rel. Yost v. Settlers Walk Home Owners Assn., 12th Dist. Warren No. CA2021-11-102, 2022-Ohio-3106, ¶ 24. Due to the nature of summary judgment as a truncated proceeding, Ohio courts have routinely determined it must be used "sparingly." Id. {¶122} Summary judgment is only appropriate upon a "tripartite demonstration," where: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party who is entitled to have the evidence construed most strongly in their favor of not having summary judgment awarded against them. Cooke, 1998 WL 221320 at *2, citing Civ. R. 56(E) and Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The significance of that "tripartite demonstration" has not been meaningfully applied in the granting of summary judgement to defendants. In finding plaintiff has no evidence going to proximate cause, my concern is for a decision which invades the province of a jury (regarding a question of fact) and denies the plaintiff a full presentation of evidence. {¶123} Therefore, I respectfully dissent from my colleagues deciding as a matter of law, the plaintiff cannot prove causation attributed to the defendants. One expert opinion - 40 - Clinton CA2021-09-028 cannot be given more weight or credibility than another. If neither set of experts is to be considered, then we are left with dueling allegations and summary judgment is inappropriate. In regard to the trailer collapsing, what caused it, and who is responsible for it — is clearly material, clearly disputed, and only to be revealed by determining the sequence of the events that led to Shawn's death. {¶124} I also do not find the second assignment of error as to comparative negligence moot. Plaintiff's arguments as to comparative negligence, duty and breach of duty are well taken for much of the same reasons as expressed herein addressing the first assignment of error. Let the experts defend their respective opinions in open court before a jury. I find plaintiff's assignments of error well taken and would reverse the trial court judgment awarding summary judgment to the defendants. - 41 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488279/	J-E03001-21 2022 PA Super 197 AISHA MONROE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CBH20, LP, D/B/A CAMELBACK SKI : No. 1862 EDA 2019 RESORT D/B/A CAMELBACK SKI : CORPORATION : Appeal from the Order Dated May 16, 2019 In the Court of Common Pleas of Monroe County Civil Division at No(s): 8184-CV-2016 BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J. DISSENTING OPINION BY BENDER, P.J.E.: FILED NOVEMBER 21, 2022 I respectfully dissent. Though I agree that Ms. Monroe waived any argument that Camelback’s motion for judgment on the pleadings/motion for summary judgment was untimely or otherwise improper, unlike the Opinion Per Curiam, I would conclude that Ms. Monroe failed to adequately plead recklessness in her complaint. As such, I would determine that the trial court properly entered judgment on the pleadings in favor of Camelback and correctly dismissed Ms. Monroe’s claims with prejudice. Moreover, even if judgment on the pleadings was inappropriate, I would affirm the trial court’s entry of summary judgment in favor of Camelback, as I disagree that Ms. Monroe produced sufficient evidence to enable a fact-finder to conclude that Camelback acted recklessly in this matter. I address each of these points further in turn. J-E03001-21 I. Upon examining whether Ms. Monroe adequately pleaded recklessness in her complaint, I would ascertain that she did not do so, such that Camelback’s motion for judgment on the pleadings should have been granted.1 I recognize that an apparent split in authority as to the proper pleading of recklessness has developed, which has led to inconsistent rulings in the trial courts and understandable confusion amongst litigants. See Daniel E. Cummins, PLEADING FOR CLARITY: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters, Vol. XCIII, No. 1 P.B.A. QUARTERLY 32 (Jan. 2022). Due to this controversy, I think it useful to briefly review the current state of the law on this issue. As the Opinion Per Curiam acknowledges, Pennsylvania Rule of Civil Procedure 1019 addresses the contents of pleadings and the specificity required for factual averments. Pertinent to this matter, Rule 1019(a) provides that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.Civ.P. 1019(a). Additionally, Rule 1019(b) sets forth that “[a]verments of fraud or mistake ____________________________________________ 1 I am mindful that, when ruling on a motion for judgment on the pleadings, this Court may only consider the pleadings and any documents properly attached to them. See Commonwealth v. All that Certain Lot or Parcel of Land Located at 4714 Morann Avenue, Houtzdale, Clearfield County, 261 A.3d 554, 559-60 (Pa. Super. 2021); see also Pa.R.Civ.P. 1017(a). Accordingly, I do not consider Mr. Wolf’s expert report in my analysis, as his expert report was not attached to a pleading, but instead was produced by Ms. Monroe in opposition to Camelback’s motion for judgment on the pleadings/motion for summary judgment. -2- J-E03001-21 shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.” Pa.R.Civ.P. 1019(b). Thus, although Pennsylvania is a fact-pleading jurisdiction, our Rules of Civil Procedure permit parties to aver conditions of the mind generally. Nearly fifty years ago, this Court confronted the issue of how to properly plead a condition of the mind in Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973). In that case, the plaintiff pleaded the following in her complaint: At about 11:00 p.m. on January 24, 1970, Russell G. Ammlung, Jr., an 18-year-old[] of whose estate [the] plaintiff is administratrix, was discovered out of doors in subfreezing weather, semi-clothed and only partly conscious. He was arrested by an officer of the Chester City Police Department, defendant Lawrence Platt, for being drunk and disorderly in spite of the fact that he was, and appeared to be, simply ill. Mr. Ammlung was removed to the Chester City Police Station by Officer Platt and Officers Joseph Friel and Michael Brown of the Chester Police Department, also defendants, and there confined to a cell. No medical examination was afforded him; no effort was made to ascertain his identity or to notify his relatives. He died the following morning, sometime after 10 o’clock, in his cell. In the interim, he remained in a chilled state and without adequate clothing; he was unattended until 8:45 of the morning following his arrest. A[t] some point, water was thrown upon, or otherwise applied to, him in an effort to revive [him]; the water caused him to contract pneumonia. At 8:45 of the morning following his arrest, he was observed to be still unconscious by Sergeant Paul L. Morgan of the Chester Police Department, a defendant, who heard a gurgling sound in his throat. The incident was not reported. Shortly before his death, mucus was seen coming from his mouth. Death resulted from the ‘grossly negligent and wanton’ treatment of the defendants, who were acting within the scope of their employment and who included Captain John Welc, in -3- J-E03001-21 charge of the police station, and Roy Dixon, an employee of the police department in whose custody the decedent was while confined. Id. at 493-94 (emphasis added). The defendants filed preliminary objections in the nature of a demurrer to the plaintiff’s complaint, which the trial court sustained. Id. at 492. In sustaining the defendants’ preliminary objections, the trial court determined that “the defendants named in the complaint would not be liable in the absence of ‘intentional, wanton, [or] malicious conduct’ and that such conduct had not been sufficiently alleged.” Id. at 494 (footnote omitted). The plaintiff appealed, and we reversed the trial court’s decision, explaining: Under Pa.R.C[iv].P. … 1019(b), ‘(m)alice, intent, knowledge, and other conditions of mind may be averred generally.’ Wantonness, being in principle a state of mind, has been regarded as included within the rule.[2] The permissibility of pleading a condition of the mind generally, in a fact[-]pleading state, is, of course, founded upon necessity. The allowance of such pleading was not meant, however, to dispense with the requirement that material facts constituting the conduct of a defendant also be pleaded. The plaintiff has alleged that the decedent was in the custody of the defendants, that he was ill and semiconscious, that he was allowed to lie in that state a full night, without adequate clothing and without medical care, that he died the next morning in his cell, and that the defendants in so confining and treating him acted wantonly—i.e., with a realization of the danger he was in and with a reckless d[i]sregard of that danger. Although it may be that the ____________________________________________ 2 “‘(W)antonness,’ in Pennsylvania, ‘exists where the danger to the (injured party), though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.’” Ammlung, 302 A.2d at 497 (citation omitted). -4- J-E03001-21 amended complaint lacks sufficient specificity, and is thus susceptible to the motion for a more specific pleading included in [the] defendants’ preliminary objections, we do not believe that a demurrer should have been sustained and the amended complaint dismissed. A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless ‘the law says with certainty that no recovery is possible.’ Under the facts alleged, we are not prepared to say that no recovery is possible. Id. at 497-98 (citations and footnotes omitted; emphasis added). Hence, following Ammlung, this Court has issued decisions determining that — even though conditions of mind may be pled generally — supporting factual allegations must also be pled. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 489 (Pa. Super. 2016) (en banc), aff’d by equally divided court, 209 A.3d 941 (Pa. 2019) (ascertaining that the plaintiff’s allegations in her complaint “averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous behavior or a conscious disregard for risks confronted by [t]riathlon participants”); Toney v. Chester Cnty. Hosp., 961 A.2d 192, 203 (Pa. Super. 2008) (concluding that the complaint did not supply any factual allegations to support the legal conclusion of recklessness or intentional acts); Cable & Assocs. Ins. Agency, Inc. v. Commercial Nat’l Bank of PA, 875 A.2d 361, 365 (Pa. Super. 2005) (“Pennsylvania Rule of Civil Procedure 1019(b) provides that malice, intent, knowledge, and other conditions of mind may be averred generally, but this permissive pleading rule did not obviate the central requirement of our fact-pleading system, i.e., that the pleader must define the issues and every act or performance essential to -5- J-E03001-21 that end must be set forth in the complaint.”) (citations omitted); Waklet- Riker v. Sayre Area Educ. Ass’n, 656 A.2d 138, 141 (Pa. Super. 1995) (“[The a]ppellant insists that bad faith is a state of mind, and thus, may be pled generally. However, her failure to plead any material facts upon which a claim of bad faith could be based is fatal to her cause of action.”) (citations omitted). Despite this line of cases, confusion about how to properly plead recklessness began to emerge following this Court’s decision in Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010). There, the plaintiff brought a negligence action against a fellow hockey player in his adult “no-check” ice hockey league after the fellow player allegedly checked the plaintiff in violation of the league’s rules, causing injuries to the plaintiff. Id. at 515. The trial court granted summary judgment in favor of the defendant, noting that “[i]n order to recover the relief requested, recklessness or intentional conduct must be shown. Had the words ‘reckless’ or ‘intentional conduct’ even appeared within [the plaintiff’s c]omplaint, [the d]efendant’s position that [the plaintiff has] failed to state a cause of action for which relief can be granted would be erroneous.” Id. at 517 n.1. The plaintiff appealed. Initially, we held that the defendant must have engaged in reckless conduct to be subject to liability for the injuries sustained by the plaintiff. Id. at 517. Next, we considered whether the plaintiff was required to specifically plead recklessness in his complaint, which he had not -6- J-E03001-21 done, instead pleading only negligence. See id. at 515-16, 519. We explained: The Restatement provides: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.[3] … Special Note: The conduct described in this Section is often called “wanton or willful misconduct” both in statutes and judicial opinions. On the other hand, this phrase is sometimes used by courts to refer to conduct intended to cause harm to another. Restatement (Second) of Torts § 500 (1965). ____________________________________________ 3 As I discuss further infra, in addition to the lesser degree of risk involved, negligence differs from recklessness in that negligence suggests “unconscious inadvertence” or “mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency[.]” Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1200 (Pa. 2012); see also id. (“Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”); Pa. Suggested Standard Civil Jury Instructions 13.60 (“Reckless conduct is significantly worse than negligent conduct. The risk that harm will be caused by conduct that is reckless is higher than the risk that harm will be caused by conduct that is negligent.”); Subcommittee Note to Pa. Suggested Standard Civil Jury Instructions 13.60 (“Pennsylvania decisions clearly differentiate between ordinary negligence and recklessness, not only in degree but also in kind, with the emphasis on the knowledge and intent of the perpetrator with respect to the risk of substantial physical harm.”). -7- J-E03001-21 Recklessness, or willfulness, or wantonness refers to a degree of care Prosser describes as “aggravated negligence.” Nevertheless, “[t]hey apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be treated in many respects as if it were so intended.” W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 34 (5th ed. 1984). In this case, even though we hold [the plaintiff] must prove [the defendant] acted recklessly, the cause of action remains sounding in negligence. Cf. Stubbs v. Frazer, … 454 A.2d 119 ([Pa. Super.] 1982). Therefore, merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations. The trial judge was correct in ruling the degree of care is recklessness. He erred in concluding that [the plaintiff’s] cause of action was not subsumed within the negligence count pled in [his] Complaint. Pennsylvania Rule of Civil Procedure 1019(b) provides: “Malice, intent, knowledge, and other conditions of the mind may be averred generally.” An example of a condition of the mind that may be averred generally is wanton conduct. See Ammlung…, … 302 A.2d [at] 497 … (citations and quotation marks omitted) (explaining “[u]nder Pa.R.C[iv].P. … 1019(b), (m)alice, intent, knowledge, and other conditions of mind may be averred generally. Wantonness, being in principle a state of mind, has been regarded as included in this rule[]”). Because recklessness is also known as “wanton and willful misconduct,” “recklessness” is a condition of the mind that may be averred generally. In acknowledging the burden is recklessness, [the plaintiff’s] Complaint is not being changed at all[,] let alone being changed to add new facts or new parties. [The defendant] suffers no prejudice because he is already aware of the facts. The heightened burden from simple negligence to recklessness hinders [the plaintiff], not [the defendant]. Lastly, [the defendant] is not prejudiced considering in his Answer and New Matter [he] provided: “[The defendant] was not negligent, reckless or careless with respect to any conduct regarding the injuries and damages alleged by [the p]laintiff….” Id. at 519-20 (footnote and citation omitted; emphasis in original). Having concluded that the standard of care was recklessness, and that the plaintiff’s negligence count subsumed his recklessness claim, we then -8- J-E03001-21 examined the record and discerned that the plaintiff had produced evidence to support each element of his cause of action. Id. at 520-21. Accordingly, we vacated the trial court’s order granting summary judgment in favor of the defendant and remanded the case for further proceedings. Id. at 521. Since Archibald, it has been advanced that negligence actions encompass recklessness claims, such that recklessness and the material facts supporting a defendant’s recklessness need not be pled. I disagree and, to the extent Archibald stands for this proposition, I think it should be overruled. See Commonwealth v. Morris, 958 A.2d 569, 580 n.2 (Pa. Super. 2008) (“It is well-settled that this Court, sitting en banc, may overrule the decision of a three-judge panel of this Court.”) (citation omitted). I disagree with Archibald for the following reasons. First, Archibald’s suggestion that recklessness need not be pled conflicts with Rule 1019(b). Although Rule 1019(b) allows for conditions of the mind to be averred generally, such conditions must nevertheless be averred. See Pa.R.Civ.P. 1019(b) (“Malice, intent, knowledge, and other conditions of mind may be averred generally.”); see also Valentino, 150 A.3d at 489 (noting that a complaint must, inter alia, “give the defendant notice of what the plaintiff’s claim is”) (citation omitted). While I do not espouse that any certain magic words must be used to plead recklessness, I do not think that it should be enough to plead only negligence and say that those allegations inherently incorporate claims of recklessness. -9- J-E03001-21 Second, I believe a plaintiff must plead facts supporting a defendant’s reckless state of mind. As this Court declared nearly fifty years ago, “[t]he permissibility of pleading a condition of the mind generally, in a fact[-]pleading state, is, of course, founded upon necessity. The allowance of such pleading was not meant, however, to dispense with the requirement that material facts constituting the conduct of a defendant also be pleaded.” Ammlung, 302 A.2d at 497-98 (citation and footnotes omitted). Therefore, contrary to Archibald, I opine that a complaint sounding only in negligence does not sufficiently plead recklessness. Instead, a plaintiff should have to supply factual allegations to support recklessness claims. Accord Valentino, supra; Toney, supra; Cable & Assocs. Ins. Agency, Inc., supra; Waklet-Riker, supra; Ammlung, supra. Thus, based on the foregoing, I would determine that a plaintiff must plead recklessness, and the material facts supporting a defendant’s reckless state of mind, in the complaint. In my opinion, if the facts alleged do not support a claim for recklessness, the recklessness claim should not be permitted to proceed.4 Having reached that conclusion, I turn now to Ms. Monroe’s complaint to evaluate if she sufficiently pled recklessness. Our Supreme Court has explained the difference between recklessness and negligence as follows: ____________________________________________ 4 In contrast, under the Opinion Per Curiam’s position, a plaintiff would be able to plead recklessness in any negligence case, regardless of the facts underlying the matter. - 10 - J-E03001-21 Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, … 69 A.2d 76 ([Pa.] 1949), we cited with approval the Restatement ([First]) of Torts definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines “reckless disregard” as follows: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” Id., cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness: Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind. Id., cmt. g; see also AMJUR Negligence § 274 (“Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or - 11 - J-E03001-21 not wrong is done, and an indifference to the rights of others[.]”). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.[] § 302(b)(3), (4) (providing that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk,” while a person acts negligently when he “should be aware of a substantial and unjustifiable risk”). This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. Tayar, 47 A.3d at 1200-01 (emphasis in original). Here, Ms. Monroe alleged that Camelback acted recklessly by: failing to properly monitor the speed of the zip-line; failing to use reasonable prudence and care by leaving her to land with no help; failing to use reasonable prudence and care to respond to her safety concerns during the zip-lining, specifically when Ms. Monroe asked Camelback to slow down the zip-lining machine; and failing to inspect and/or properly monitor the zip-lining machine’s engine. See First Amended Complaint, 1/25/17, at ¶ 21(a)-(e). She also averred that Camelback’s employees — “knowing that there was a high risk of injuri[es] during the landing process” — failed to assist her in those ways and that, as a result of Camelback’s “consciously disregarding” her safety, she suffered injuries. Id. at ¶¶ 12, 17. While Ms. Monroe employed the terms ‘recklessness,’ ‘knowing,’ ‘high risk,’ and ‘consciously disregarding’ in her complaint (i.e., language typically associated with recklessness), the factual allegations she advanced therein do not amount to reckless conduct in my opinion. For example, she averred that, “[a]t the end of the [zip-lining] trip, [a] spotter is supposed to help customers - 12 - J-E03001-21 land safely on a square wooden platform[,]” that Camelback left her “to land with no help[,]” and that as a result of Camelback’s failing to assist her, she “severely hit her legs.” Id. at ¶¶ 11, 12, 21(b). While Ms. Monroe vaguely claimed that Camelback knew that there was a ‘high risk’ of injury ‘during the landing process,’ she did not allege that Camelback knew, or had reason to know, that it needed a spotter to help riders land or riders would face a substantial risk of injury, and that it consciously withheld such help. In addition, she did not set forth how the spotter was supposed to help her land safely on the platform, what exactly the spotter did instead, and how such lack of assistance caused her injuries. Similarly, with respect to her request to slow down the zip-line, Ms. Monroe did not allege that Camelback knew, or had reason to know, that the zip-line was going so fast as to be dangerous and consciously elected to not slow down the zip-line. Instead, Ms. Monroe simply alleged that she noticed the zip-line was going faster than it was on her first ride and that she consequently made a request that it be slowed down. Therefore, to me, the facts alleged by Ms. Monroe do not support that Camelback exhibited a reckless state of mind at the time of her injuries. Moreover, in my view, any of Camelback’s purported lapses in properly monitoring the speed of the zip-line, prudently responding to Ms. Monroe’s safety concerns, and using reasonable care in helping her land safely, without more, do not establish “an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others.” See Tayar, 47 - 13 - J-E03001-21 A.3d at 1201 (citation omitted). Instead, based on Ms. Monroe’s factual allegations, I would characterize Camelback’s alleged conduct as constituting “mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency….” Id. (citation omitted). Accord Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 984-86 (Pa. Super. 2018) (concluding, on summary judgment, that the defendants did not engage in grossly negligent or reckless conduct as the defendants’ employees were only careless in operating an ATV on a ski slope and creating the wheel ruts that caused the plaintiff’s injuries); see also Valentino, 150 A.3d at 488-89 (determining that the trial court properly dismissed the plaintiff’s allegations of outrageous and reckless conduct where the plaintiff alleged that a triathlon organizer “was inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees”). Indeed, Ms. Monroe herself claims that Camelback’s “negligence” — not recklessness — was “the proximate and sole cause of the injuries and damages to [her]….” First Amended Complaint at ¶ 22. Accordingly, I would determine that Ms. Monroe failed to plead recklessness and affirm the trial court’s order granting Camelback’s motion for judgment on the pleadings. II. - 14 - J-E03001-21 Even if I had ascertained that judgment on the pleadings was improper, I would affirm the trial court’s entry of summary judgment in favor of Camelback. With respect to the trial court’s grant of summary judgment in favor of Camelback, Ms. Monroe argues that the trial court erred in finding that Mr. Wolf’s expert report was impermissible because it was not properly attached to her response to Camelback’s motion for summary judgment. See Ms. Monroe’s Brief at 28-29. Interestingly, while she insists that the trial court should have considered Mr. Wolf’s expert report, she includes no discussion of the content of Mr. Wolf’s expert report in her appellate brief. Instead, Ms. Monroe argues that the record supports a finding of recklessness because: [Ms.] Monroe was below the weight limit for the zip-line. The zip- line was known to bob up and down for heavier people. [Ms.] Monroe requested the zip-line engine be slowed down by the first spotter. The second spotter abandoned that spotter’s job duty to help [Ms.] Monroe land safely. Thereafter[, Ms.] Monroe land[ed] unsafely and suffered severe injury. [Ms.] Monroe was refused medical attention — the employee ran off. See[] Morningstar v. Hoban, 55 Pa.D[.]& C[.] 4th 225 ([Allegheny Cty.] 2002) (post-accident callousness warranting punitive damages as reckless). The operative Complaint (e.g., Motion for Judgment on the Pleadings), all record facts (e.g., Motion for Summary Judgment), in the light most favorable to [Ms.] Monroe (i.e., the operative standard), finds [Ms.] Monroe presented (a simple case of) [Camelback’s] recklessness. Rubin v. CBS Broadcasting, Inc., 170 A.3d 560, 564 (Pa. Super. 2017) (citing Pa.R.C[iv].P. 1034); Com. by Shapiro[ v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1030 (Pa. 2018)] (citing Yac[o]ub [v. Lehigh Valley - 15 - J-E03001-21 Med. Assocs., P.C., 805 A.2d 579, 589 (Pa. Super. 2002) (en banc)]); Pa.R.C[iv].P. 1034 & 1035. Even if not factually simple (i.e., not requiring an expert), [Ms.] Monroe supplied a trial court-directed expert: further amplifying her recklessness claim. The complaint merged with the record facts — which the trial court originally held recklessness an issue of fact for the jury. See generally[] Sullivan v. City of Phila., 460 A.2d 1191, 1192 (Pa. Super. 1983) (citing Pa.R.C[iv].P. 1033)); see[] Bloom v. Dubois v. Reg’l Med. Ctr., 597 A.2d 671, 677 n.7 (Pa. Super. 1991). Both the pleadings and the record evidence evidenced an issue of fact of recklessness for the jury — as was held upon the original dispositive motion (denied by the Court of Common Pleas). The trial court committed an error of law in granting [Camelback’s] renewed dispositive motion. Ms. Monroe’s Brief at 30-31. Examining the arguments advanced by Ms. Monroe, both on appeal and before the trial court, I would determine that the trial court did not err in granting summary judgment in favor of Camelback. Assuming arguendo that the trial court should have considered Mr. Wolf’s expert report and other exhibits, Ms. Monroe does not discuss any of the substance of his report, explaining how it establishes Camelback’s recklessness and connects to her injuries, in her appellate brief. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to present arguments that are sufficiently developed for our review. … This Court will not act as counsel and will not develop arguments on behalf of an appellant.”) (citations omitted). - 16 - J-E03001-21 Further, in my view, even upon looking back in the record, the arguments Ms. Monroe made to the trial court with respect to Mr. Wolf’s report also do not establish Camelback’s recklessness in this matter. There, Ms. Monroe claimed, in relevant part, that: [Ms. Monroe] was injured on her second run down the zip[-]line. See Exhibit B, 37:1-37:6. On the second run, [Ms. Monroe] attempted to sufficiently pick-up her feet, but was unable to do so due to her weight. See Exhibit C, 15:18-15:24. [Ms. Monroe’s] body impacted the landing deck twice. See Exhibit C, 11:14- 11:19. The first impact occurred when [Ms. Monroe’s] feet impacted the mats/carpets that were placed in front of the landing deck to conceal the front face of the landing deck. See Exhibit C, 11:7- 11:13. See also Exhibit D (photograph). See also Exhibit A. [Ms. Monroe’s] body swung and spun, due to the first impact, when [Ms. Monroe] then impacted the landing deck a second time, resulting in significant physical injuries. See Exhibit C, 11:4- 11:13. [Camelback] is aware of the potential harm to a customer due to impacting the front of the landing deck. [Camelback] placed a sign, stating “Lift your fee[t]” at the bottom of the zip[-]line. See Exhibit C, 26:17-26:18. [Camelback] also instructs its employees to yell “Pick up your feet” as the customer is speeding down the zip-line. See Exhibit C, 15:4-15:5. See also Exhibit E, 17:22- 18:1. Further, [Camelback] is aware that a customer can impact the face of the landing deck, which protrudes above ground level significantly. In fact, [Camelback] placed mats/carpets on the front face of the landing deck. See Exhibit D (photograph). However, [Camelback] admitted that the mats are not designed to prevent injury from a customer[’s] hitting the face of the landing deck. See Exhibit F, 17:2-17:5. Finally, [Camelback] is aware that customers may not be able to lift their feet. See Exhibit C, 16:1-16:5. [Ms. Monroe] has produced an expert report, authored by Steve Wolf. See Exhibit A. Expert Wolf has built and operated numerous private, industrial, and commercial zip[-]lines and, in - 17 - J-E03001-21 fact, owns a recreational park that operates three zip[-]lines. Id. at 1. Expert Wolf explained that a zip[-]line is constructed with the intention that no part of the rider is to collide with any hard surface until the rider comes to a stop at the bottom of the zip[-]line. Id. at 2. In fact, this is in line with [Camelback’s] agent’s testimony that the rider should come to a complete stop, after which the zip[-]line attendant walks the rider up the ramp to a point in which the zip[-]line attendant can unhook the rider from the zip[-]line. See Exhibit F, 51:22-54:24. However, the landing platform at Camelback had a face that “protrudes sharply and vertically from the ground around it, at a 90[-]degree angle to the ground”; making the landing deck “perfectly positioned to cause an injury[.”] See Exhibit A, at 4. Expert Wolf explained that: Given that contact with the ground prior to reaching the end of the zip[-]line was likely to create injury, the solution to that problem should have been an engineered solution, rather than a solution requiring instruction and active compliance…. It’s not reasonable to base a participant’s safety on having them be able to perform a physical feat such as raising their legs, or to be able to reliably listen to and follow directions when in a heightened state of arousal from experiencing an adrenaline[-]rich experience, especially in cases where an engineered solution could have easily been implemented. An engineered solution takes the ability to cause an accident, by virtue of an inability to execute a command, away from the rider, and builds the safety into the equipment. Id. at 3-4. [Camelback] could have engineered a solution simply by lowering the face of the landing deck to ground level or filling in the gap between the ground and the face of the landing deck with an aggregate material (dirt, sand, etc[.]). Id. at 4. In fact, Expert Wolf determined that [Camelback] intentionally concealed the risk. Expert Wolf explained that: This must have been noted by one or more members of the Camelback staff, because the condition was “remedied” by covering the protrusion with a piece of carpeting. But the - 18 - J-E03001-21 carpeting, being supple, conformed to the shape of the underlying danger, rather than fixing it. It concealed, rather than removed, the risk. Id. Expert Wolf opined that [Camelback] recklessly ignored the gross risks as a result of the face of the landing deck protruding above ground level and actually attempted to conceal the risk by placing a soft mat/carpet over the face of the landing. Id. at 5. See also Exhibit D (photograph). Ms. Monroe’s Memorandum of Law in Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment, 5/16/19, at 2-4 (unnumbered pages; emphasis in original). Relying on Mr. Wolf’s expert report, Ms. Monroe argued that, “[h]ad [Camelback] taken a reasonable course of conduct in addressing the risk of riders impacting the face of the landing pad, [she] would not have been injured.” Id. at 9 (unnumbered pages; citation omitted). However, to support that her initial impact with the face of the landing deck caused her injuries, Ms. Monroe advanced the following argument: [Ms. Monroe’s] body impacted the landing deck twice. See Exhibit C, 11:14-11:19. The first impact occurred when [Ms. Monroe’s] feet impacted the mats/carpets that were placed in front of the landing deck to conceal the front face of the landing deck. See Exhibit C, 11:7- 11:13. See also Exhibit D (photograph). See also Exhibit A. [Ms. Monroe’s] body swung and spun, due to the first impact, when [Ms. Monroe] then impacted the landing deck a second time, resulting in significant physical injuries. See Exhibit C, 11:4-11:13. Ms. Monroe’s Memorandum of Law in Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at 2 (unnumbered pages; emphasis added). - 19 - J-E03001-21 The portion of Exhibit C referenced by Ms. Monroe in her above-stated argument sets forth the deposition testimony of Brett Dunphy, a former Camelback employee who was working on the day of Ms. Monroe’s accident, describing how she hit her feet. Mr. Dunphy testified: [Ms. Monroe’s counsel:] Okay. Do you actually remember seeing [Ms.] Monroe hit her feet in some way? [Mr. Dunphy:] When she landed. That was it. Only when she landed. And -- only when she landed really. [Ms. Monroe’s counsel:] I understand -- I have seen your statement. Can you just describe how [Ms. Monroe’s] feet impacted whatever they hit? [Mr. Dunphy:] So, first, they kind of dragged against the anti- fatigue mats.[5] You saw that there. And then the impact really came when she stopped and she swung up and when she actually, like, hit the deck to land. Like, the actual landing part -- that’s when her -- whatever it was broke. [Ms. Monroe’s counsel:] Okay. … I am glad you said that because that’s what I am going to want you to clarify. So[,] there were two impacts. So, you are saying it was the second impact that was the rough impact? [Mr. Dunphy:] Yes. See Dep. of Dunphy at 10:23-11:19. Despite Ms. Monroe’s assertion, this testimony does not establish that her initial impact with the landing deck’s mats caused her body to swing and spin, leading to the second impact where she says she sustained her injuries. ____________________________________________ 5 Mr. Dunphy described the anti-fatigue mat as “a mat that … you would just walk on, kind of. It’s mats at the bottom of the zip[-]line that we would pretty much just walk on.” See Ms. Monroe’s Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment, 5/16/19, at Exhibit C (“Dep. of Dunphy”) at 19:8-19:11. - 20 - J-E03001-21 Instead, Mr. Dunphy said that her injuries occurred when she came to a stop, swung upward, and tried to land.6 Further, Mr. Dunphy testified that, upon braking at the end of the trip, every zip-line rider proceeds forward and pendulums up to a certain degree, and that he did not know if Ms. Monroe’s dragging her feet on the mats would be a factor in causing her to pivot up at the end of the zip-line. Dep. of Dunphy at 30:1-31:1. Thus, Mr. Dunphy’s testimony does not establish to me that Ms. Monroe’s impact with the mats on the front face of the landing deck caused her body to swing and spin, or otherwise led to the second impact that she says resulted in her injuries. Moreover, my review of the record shows that Ms. Monroe herself denied at her deposition ever hitting the front face of the landing deck or otherwise dragging her feet. There, she testified: [Camelback’s attorney:] [Y]ou come to the end [of the zip-line] and stop, and now you’re pushed backwards a little bit? [Ms. Monroe:] Yes. [Camelback’s attorney:] Is that what happened? [Ms. Monroe:] Yes. [Camelback’s attorney:] Before that point, had you hit your foot or struck your foot or done anything with your foot as you were coming in? [Ms. Monroe:] No. [Camelback’s attorney:] Okay. ____________________________________________ 6 See also Ms. Monroe’s Brief at 18 (stating that Mr. Dunphy “testified that the incident occurred because the zip-line lifted up and slammed [Ms. Monroe] back to the ground (which broke her leg)”) (citation omitted). - 21 - J-E03001-21 [Ms. Monroe:] The gentleman did tell me to lift my legs up at the beginning of it and I [did] that. I was holding them up. [Camelback’s attorney:] Okay. So[,] I don’t want to jump ahead, but after you landed and -- we call it “landed” when you come into the bottom, and you come backwards a little bit, does your body pivot and your foot go up in the air, or does it go down and strike the platform? … [Ms. Monroe:] … It [spun] around, and I thought I was going back, so my leg dropped, and I just felt a crunch. I can’t remember if it was still moving back and forth or what happened. I just know it [spun] around and I felt my leg crunch when it landed. [Camelback’s attorney:] And when you say[,] “it landed,” it landed on the top of the deck? [Ms. Monroe:] Yes. * [Camelback’s attorney:] Do you recall as you were coming down dragging your foot along the ground at any point in time before you were on the deck? [Ms. Monroe:] I had both my legs up. I was holding them up. I made sure of that. * [Camelback’s attorney:] Okay. … I’m trying to … picture in my mind, since I wasn’t there. Did your leg go in an up[-]and[-]down motion and strike the deck, or did it catch the deck? What’s your recollection of how that contact was made? [Ms. Monroe:] I came down with my legs up, and when I spoke to the gentleman and he said, “It’s almost over,” it came down and jerked up and I [spun] back around and came back down, and the force of me coming down, my leg was broken. I heard the crunch. - 22 - J-E03001-21 See Ms. Monroe’s Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit B (“Dep. of Monroe”) at 52:8-53:20, 54:14-54:20, 84:8-84:22.7 Finally, Michael Baldaccini, another Camelback employee working on the day of the incident, testified: [Ms. Monroe’s attorney:] Okay. All right. Now, [Ms. Monroe and her companion] were both coming down, and just if you remember, tell me what happened. [Mr. Baldaccini:] We were instructing them to lift their legs verbally and physically, which they did, so they followed our instructions. The braking system caught them, just like it always does. There was no visible malfunction with that whatsoever. The braking system caught them, and it’s up to the customer to land on their feet when they get to the bottom, which we instruct them at the top of the zip-line, we show them physically how to land on their feet. ____________________________________________ 7 In Ms. Monroe’s medical records, there are also various descriptions of how her injuries occurred, none of which mention that her initial impact with the front face of the landing deck caused her second impact with the landing deck. See Ms. Monroe’s Response in Opposition to Camelback’s First Motion for Summary Judgment, 3/12/18, at Exhibit B at 9 (stating that Ms. Monroe “was out zip[-]lining with her husband when she failed to break [sic] the line prior to arrival at a station within the trees and struck her leg up against the landing platform where she was noted to have suffered a significant injury…”); id. at 36 (providing that Ms. Monroe “did not break [sic] the zip[-]line in time and she was tossed around at the end of the cord with her extremities moving quite violently in multiple different directions. She states that during this time frame and that [sic] her right foot struck the platform while she was being whipped around”); id. at 40 (“According to EMS, [Ms. Monroe] was coming to the end of the [zip-]line when she didn’t get her right leg up high enough and hit it against a board.”); id. at 140 (“The patient was on a zip[-]line. She had difficulty at the end when she went back and forth and[,] at some point[,] she had her right leg caught. It was twisted and she felt a snap.”). - 23 - J-E03001-21 She landed on her feet. I guess she must have landed awkwardly, because everything seemed to be normal when they came down and when they landed. So[,] there was no malfunction from the employee’s standpoint, there was no malfunction of the braking system, the customer[s] seemed to be pretty coherent with what we were saying to them, they followed our instructions of lifting their legs and preparing to be stopped by our braking system. [Ms. Monroe’s attorney:] So what happened, though? [Mr. Baldaccini:] Braking system caught her, she landed on her feet just like she’s supposed to, and apparently she injured her leg, which I’m not sure how she did it. *** [Camelback’s attorney:] So[,] let me read this typewritten statement [you gave with respect to this incident], and I’ll read it slowly and then … I will have a couple questions about it. It says, [a]t approximately 5:05 p.m., at the bottom deck of the 1,000-foot zip-line, a guest on our left zip-line cable, which we call lodge side, came in contact with our braking system, period. Did this accident happen on the 1,000-foot zip-line? [Mr. Baldaccini:] Yes. [Camelback’s attorney:] Okay. Let me continue on. As she did that, her left foot slightly hit the beginning of our bottom deck. When this occurred, her shoe came off. Do you recall that or does that refresh your -- [Mr. Baldaccini:] Seeing it -- [Camelback’s attorney:] Well, let me ask you -- [Mr. Baldaccini:] Seeing it myself, no. That’s I was told [sic]. [Camelback’s attorney:] Does that refresh your recollection at to this incident? [Mr. Baldaccini:] If I know what incident we’re talking about, yes. - 24 - J-E03001-21 [Camelback’s attorney:] Okay. When this happened, our braking system did its normal procedure of braking and she swung up approximately three feet in a pendulum motion. Do you recall seeing that? [Mr. Baldaccini:] No. [Camelback’s attorney:] Okay. [Mr. Baldaccini:] That is normal procedure, though. See Ms. Monroe’s Response in Opposition to Camelback’s First Motion for Summary Judgment at Exhibit C (“Dep. of Baldaccini”) at 22:23-24:2, 32:24- 34:7. To me, none of the above-stated evidence supports Ms. Monroe’s claim that her initial contact with the mats or the front face of the landing deck caused her to swing and spin, leading her to impact the landing deck a second time, sustaining injuries. Rather, even if Ms. Monroe’s feet dragged on the mats or slightly hit the bottom of the landing deck, the deposition testimony of witnesses to the incident — including Ms. Monroe’s own testimony — indicates that she was injured after the zip-line came to a stop at the end of the trip, at which point she swung and tried unsuccessfully to land on her feet. Moreover, Ms. Monroe proffered no evidence to suggest that her initial contact with the mats or landing deck caused her to swing more upon stopping, land with greater force, etc. Thus, based on the argument advanced by Ms. Monroe below, the evidence she cited in support, and my own review of the record, I discern no connection between Ms. Monroe’s initial contact with the mats on the front face of the landing deck and her subsequent injuries that she said she sustained from her second impact with the landing deck. - 25 - J-E03001-21 Consequently, even if Mr. Wolf’s report should have been considered, I do not see a factual basis for Mr. Wolf’s opinion that “[t]he injuries sustained by Ms. Monroe are attributable directly to [the] failure of Camelback to act to prevent injury, and the intentional disregard for safety taken by Camelback in [its] decision to conceal rather than to remove an obvious threat to the safety of their trusting clients.” Ms. Monroe’s Memorandum of Law in Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at 8 (quoting Mr. Wolf’s expert report) (unnumbered pages); see also id. at 9 (arguing that “the record is sufficient to support a jury finding that [Camelback’s] reckless course of conduct in attempting to make the zip[-]line safe for riders caused [Ms.] Monroe’s injuries. Had [Camelback] taken a reasonable course of conduct in addressing the risk to riders impacting the face of the landing pad, [she] would not have been injured”) (citations omitted; unnumbered pages). As such, and contrary to the Opinion Per Curiam’s conclusion, I do not think Mr. Wolf’s report would help Ms. Monroe establish Camelback’s recklessness in this matter, as she has not shown that her initial contact with the front face of the landing deck led to her second impact with the landing deck, which she explicitly claimed caused her injuries below. Finally, in my view, the actual argument Ms. Monroe advances on appeal as to why the record supports a finding of recklessness also fails. See pages 15-16, supra (setting forth Ms. Monroe’s argument). Initially, Ms. Monroe provides no citations to the record for many of the factual assertions in her - 26 - J-E03001-21 argument. See Ms. Monroe’s Brief at 30-31; see also Pa.R.A.P. 2119(c) (“If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears….”); Pa.R.Civ.P. 1035.3(a)(2) (“[T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying … evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.”); Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) (“We shall not develop an argument for an appellant, nor shall we scour the record to find evidence to support an argument….”) (citation omitted). Even more troublesome, though, Ms. Monroe does not meaningfully discuss authority pertaining to what constitutes reckless conduct, and how the purported facts on which she relies establish Camelback’s recklessness in connection to her injuries. See Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014) (“We need not reach the merits of this issue because the argument section of [the a]ppellant’s brief merely consists of general statements unsupported by any discussion and analysis of relevant legal authority.”); In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (“[I]t is an appellant’s duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities.”) (citation - 27 - J-E03001-21 omitted). Unlike the Opinion Per Curiam, I would decline to do such work for her. See Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J., concurring) (“This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter. … The practice of fashioning arguments for a party is also unfair to the would-be responding party, which will only learn upon receipt of the Opinion that the Court perceived the argument, and thus will have been deprived of an opportunity to respond.”).8 ____________________________________________ 8 Moreover, even if not waived for failure to develop an argument on appeal, I would deem meritless the argument concerning the weight limit that Ms. Monroe advanced below in opposition to Camelback’s first motion for summary judgment. There, she contended that Camelback “knew there was a dangerous condition for heavy people on the zip[-]line, and knowingly ignored that condition. Specifically, the weight limit was not low enough. There was a known risk that the line would be rippling up and down for heavy people, so that when [Ms. Monroe] approached the end of the line[, she] would not be able to lift her feet high enough to avoid injury.” See Ms. Monroe’s Memorandum of Law in Opposition to Camelback’s First Motion for Summary Judgment, 3/12/18, at 9 (unnumbered pages). I would reject this argument. First, as I have discussed supra, Ms. Monroe has not established that her feet’s initial contact with the front face of the landing deck led to her second impact with the landing deck, which she claimed caused her injuries. Second, while Ms. Monroe averred that Camelback was reckless because Mr. Dunphy and Mr. Baldaccini knew that the zip-line regularly rippled and/or swung up for heavy people, posing a serious danger, my review of the record belies that assertion. See Dep. of Dunphy at 23:18-25:24 (Mr. Dunphy’s stating that the zip-line did not regularly swing up for heavy people, but would regularly swing up for someone over the weight limit of 265 pounds); id. at 12:10-13:2, 23:10-23:17 (Mr. Dunphy’s testifying that he only saw one other person get injured on the zip-line, and that injury took place a year after Ms. Monroe’s incident); id. at 23:1-23:4 (Mr. Dunphy’s recounting how surprised he was (Footnote Continued Next Page) - 28 - J-E03001-21 Thus, even if judgment on the pleadings was improper, I would affirm the trial court’s entry of summary judgment in favor of Camelback. It is well- established that the “[f]ailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof … establishes the entitlement of the moving party to judgment as a matter of law.” See Finder v. Crawford, 167 A.3d 40, 45 (Pa. Super. 2017) (citation omitted). Here, in my opinion, Ms. Monroe failed to demonstrate that Camelback acted recklessly in this matter, and therefore Camelback would be entitled to judgment as a matter of law. Accordingly, I dissent. ____________________________________________ about Ms. Monroe’s incident); Dep. of Baldaccini at 26:13-28:9 (Mr. Baldaccini’s acknowledging that there can be a “ripple effect” from a heavy person going down the zip-line, but explaining that he has never seen anyone sustain injuries from the zip-line’s “ripple effect” or be injured in the same way as Ms. Monroe); see also Ms. Monroe’s Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit E (“Dep. of Susan Wiley”) at 13:14-15:16 (Ms. Wiley’s — a Camelback employee — stating that she has never observed anyone else get injured on the zip-line in a way similar to Ms. Monroe); Ms. Monroe’s Response to Camelback’s Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit F (“Dep. of Clinton Frantz”) at 33:20-34:3 (Mr. Frantz’s — a Camelback employee — testifying that he is aware of no other injuries on the zip-line other than Ms. Monroe’s injuries). Further, if Camelback did not actually know of the danger posed to heavy people by the rippling/swinging, Ms. Monroe did not develop an argument as to why Camelback had reason to know that the rippling/swinging created a substantial risk of harm. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). Thus, I would be unconvinced by Ms. Monroe’s argument that Camelback knew that the rippling or swinging created a dangerous condition for heavy people, and that Camelback knowingly ignored that condition. See Kibler, 184 A.3d at 984-86 (determining, as a matter of law, that the record does not reflect gross negligence or reckless conduct on the part of the defendants, and affirming the entry of summary judgment in the defendants’ favor). - 29 - J-E03001-21 Judge Olson Joins. Judge Stabile Concurs in the Result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 - 30 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488339/	Filed 11/21/22 P. v. Castillo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H049829 (Monterey County Plaintiff and Respondent, Super. Ct. No. 21CR004365) v. DIEGO CASTILLO, Defendant and Appellant. Diego Castillo pleaded no contest to one count of felony assault and one count of misdemeanor grand theft. In exchange, he was sentenced to two years of formal probation including various gang-related conditions. On appeal, Castillo argues the trial court abused its discretion under Penal Code section 1203.11 by imposing the gang-related conditions because they are not reasonably related to his future criminality, pursuant to People v. Lent (1975) 15 Cal.3d 481 (Lent). Alternatively, he argues that the condition precluding him from being present at certain gang-related criminal court proceedings is overbroad and he asks this court to modify it. We determine that the trial court did not abuse its discretion by imposing the gang-related conditions. However, we agree with Castillo that the condition regarding his presence at gang-related criminal court proceedings is unconstitutionally overbroad. Accordingly, we modify the probation order. As modified, we affirm. 1 Undesignated statutory references are to the Penal Code. I. FACTUAL AND PROCEDURAL BACKGROUND On June 6, 2021, Salinas Police responded to a report of an armed robbery outside a convenience store. The victim informed police that he was sitting in his parked vehicle with the window down when he heard a bottle break behind him. A man later identified as Castillo then struck the vehicle with a metal pipe, informed the victim that he had a gun, and demanded all of his money. He took $29 from the victim and fled. Police soon located Castillo hiding in a parked truck with $29 in cash, and detained him. On December 3, 2021, Castillo was charged by first amended information with one count of second-degree robbery (§ 211), one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and one count of grand theft from the person (§ 487, subd. (c)). Castillo pleaded no contest to counts 2 and 3, in exchange for felony probation. A. Probation report The probation report recommended imposition of 34 conditions, including six specific gang-related conditions. According to the underlying police report, Castillo was quoted as admitting his Norteño gang affiliation. The police also noted Castillo’s attire “to be heavily gang related.” During the interview with probation, Castillo denied any gang affiliation and claimed the police must have made assumptions. However, during the same interview, Castillo “divulged being placed on full gang terms as a juvenile,” and “probation had him documented as an active Sureño gang member.” Castillo denied that he had any personal Sureño affiliation, but acknowledged that his family has ties to the group. Monterey County jail records indicate that Castillo and his family are Sureño associates. The probation report also stated that on August 29, 2021, Castillo participated in a group assault on another inmate while housed in the Monterey County jail. Castillo was ultimately tased due to his refusal to stop fighting. He claimed he was acting in self-defense and did not discuss the incident in detail. The probation report stated that 2 Castillo’s “decision to participate in a group assault, coupled with his previously documented affiliations suggests [he] is actively engaged in the gang lifestyle.” B. Gang-related probation conditions The trial court imposed all 34 recommended probation conditions, which included the general mandates that Castillo “obey all laws” and “not commit same or similar offense,” as well as the following gang-related conditions: “26. Not visit or remain in any known gang-gathering area. (The term ‘gang’ in these conditions refers to ‘criminal street gang as’ defined in PC § 186.22.) “27. Not associate with any individuals who are gang members, or illegal drug users, who are on any form of probation, mandatory supervision, post release community supervision, or parole supervision. “28. Not possess, wear, use or display any item associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia including the color blue. “29. Do not obtain any new tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement. “30. Not go upon the premises of any local or state correctional facility for the duration of the probationary term. “31. You shall not be present at any criminal court proceeding where a member of a criminal street gang is present or where the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.” Castillo objected to these conditions at the sentencing hearing, arguing that “there is nothing about the nature of this case that would indicate that gang terms are 3 appropriate [because] [i]t is not a gang-related offense at all . . . so based on that lack of nexus, we would ask those terms not be imposed.” The trial court determined the conditions were justified under Lent. The court stated: “although the offense that [Castillo] is currently being placed on probation for may not have had a gang-related motivation, that is only one aspect of the [Lent] test. [¶] The Court finds that the prong under [Lent] to prevent future criminal conduct is a basis given this particular defendant’s prior personal history and to include apparently the jail fight that he had in August, to include the fact that jail records indicate that him being a Sureño associate. [¶] Also, noting he, at one point according to the police officer’s report, admitted associating with Norteño, although I understand he has denied having now made that statement to the police officer. [¶] The Court does find that those facts in addition to the other facts that were listed on page 10 do support the gang terms in order to prevent future criminal conduct. And that is a very individualized determination, what the Court is making.” Castillo was formally sentenced on January 5, 2022. He then timely appealed. II. DISCUSSION A. Applicable law and standard of review Section 1203.1 authorizes a sentencing court to “ ‘impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal), quoting § 1203.1, subd. (j).) A trial court has broad discretion pursuant to section 1203.1 to impose probation conditions to advance various legitimate purposes including public safety and rehabilitation. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) If it “serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise 4 enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez), quoting People v. Peck (1996) 52 Cal.App.4th 351, 362.) A court’s discretion, though, “is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (Carbajal, supra, 10 Cal.4th at p. 1121, quoting Lent, supra, 15 Cal.3d at p. 486.) We review probation conditions for abuse of discretion. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118.) “Specifically, we review a probation condition ‘for an indication that the condition is “arbitrary or capricious” or otherwise exceeds the bounds of reason under the circumstances.’ ” (Ibid.) Under the test established in Lent, a reviewing court may not strike a probation condition as unreasonable unless it “ ‘ “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Ibid.; Lent, supra, 15 Cal.3d at p. 486.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a . . . term.” (Olguin, supra, 45 Cal.4th at p. 379.) The third Lent prong requires a “degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (In re Ricardo P., supra, 7 Cal.5th at p. 1122.) A court “imposing such a condition must consider whether, in light of ‘the facts and circumstances in each case’ [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation.” (Id. at p. 1127.) 5 B. The trial court did not abuse its discretion imposing the gang-related probation conditions Castillo argues the gang conditions are not reasonably related to future criminality.2 Specifically, he claims the evidence presented to the trial court “does not establish that [he] was a member of a particular street gang.” Instead, he argues, the probation report contained contradictory evidence that Castillo was both a Norteño and a Sureño, “which is impossible, seeing as these gangs are legendary rivals.” (See, e.g., People v. Valdez (1997) 58 Cal.App.4th 494, 502 [expert testimony regarding Norteños and Sureños as rival gangs].) According to Castillo, because the evidence was contradictory, it “failed to demonstrate he was a member of a specific gang,” so that “there is merely an abstract or, at the most, hypothetical relationship between the gang probation conditions and preventing future criminality.” It is true that the probation report included information showing Castillo’s association with both rival gangs. According to the report, Castillo admitted to associating with Norteño gang members and also acknowledged that his family has ties to the Sureños. In addition, Monterey County jail records indicate that Castillo and his family are Sureño associates. Castillo seems to imply—albeit without expressly making the argument—that the allegedly contradictory nature of the information undermines its reliability, so it was an abuse of discretion for the trial court to rely on any of it. First, though, the information is not necessarily contradictory. Contrary to how Castillo characterizes it, the probation report does not document him as “being both a Norteño and a Sureño.” Instead, it reports 2 The People do not dispute Castillo’s argument that the gang conditions satisfy the first two prongs of the Lent test and we agree. The conditions have no relationship to the offenses to which Castillo pleaded no contest in the trial court, and they relate to conduct that is not inherently criminal in itself. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Accordingly, we address only the third Lent prong. 6 that he admitted to associating with Norteño gang members and acknowledged that his family has ties to the Sureños. Although they are rival gangs, such associations are not “impossible,” and it is not inconceivable that an individual might switch gang affiliations. Second, and more importantly, the trial court relied chiefly on the other evidence in the probation report of Castillo’s gang affiliation. For instance, it emphasized Castillo’s prior personal history, the jail fight, and the jail records showing him to be a Sureño associate. In addition, the court pointed to the portion of the probation report noting that (1) Castillo acknowledged he was placed on full gang terms as an active Sureño street gang member as a juvenile, and (2) he was “dressed in several gang related articles of clothing” at the time of his arrest. Castillo also objects to the probation officer’s statement that Castillo’s “decision to participate in a group assault, coupled with his previously documented affiliations suggests [he] is actively engaged in the gang lifestyle.” According to Castillo, that is “pure speculation on the part of the probation officer, where [Castillo] ‘was adamant he was acting out of self-defense. . . .’ ” Castillo argues that the probation report contains “no details” showing that the assault was gang related. However, the probation report did not rely solely on Castillo’s participation in the group assault in jail; instead, it was “coupled with his previously documented affiliations” and other indicia of gang involvement. Consequently, we do not view the statement as “pure speculation.” In light of the information contained in the probation report, we find that the gang-related conditions reasonably relate to Castillo’s future criminality. (Lent, supra, 15 Cal.3d at p. 486.) In addition, they contain a “degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (In re Ricardo P., supra, 7 Cal.5th at p. 1122.) The conditions preclude Castillo from visiting or remaining in any known gang-gathering area, associating with gang members, wearing items associated with gang 7 membership, obtaining tattoos while on probation, entering correctional facilities during probation, and being present at any criminal proceeding involving a criminal street gang, subject to specified exceptions. The trial court properly based these conditions on the information contained in the probation report that raised concerns about future criminality. (Lopez, supra, 66 Cal.App.4th at p. 626 [prevention of future criminality was served by prohibitions because they “insured [the defendant] would not be present at confrontational situations between rival gangs; hostility among different gangs is often an underlying cause of criminal activity”; “restriction on the display of gang indicia was reasonable because it removed from [the defendant] the visible reminders of his past gang connection”].) In sum, the imposed gang-related conditions promote section 1203.1’s goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (Lopez, supra, 66 Cal.App.4th at p. 626.) C. The probation condition precluding attendance at gang-related criminal proceedings is unconstitutionally overbroad As noted above, condition No. 31 provides: “You shall not be present at any criminal court proceeding where a member of a criminal street gang is present or where the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.” Castillo argues this condition “should be modified, as it constitutes an overbroad restriction of [his] first amendment guarantee of access to court proceedings.” He notes that “a general ban on being present at any courthouse or court proceeding, except when scheduled for a hearing or subpoenaed as a witness, may impinge upon a host of constitutional rights,” and that the general public’s right to attend criminal trials “is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech 8 and of the press could be eviscerated.” (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon).) Castillo requests that we order modification of condition No. 31 to include an exception where he “or a member of his immediate family is a victim of the activity charged in the case [or] a party’s attorney has asked [him] to testify or speak to the court.” We review constitutional challenges to probation conditions de novo. (People v. Salvador (2022) 83 Cal.App.5th 57, 63; People v. Appleton (2016) 245 Cal.App.4th 717, 723.) A probation condition “ ‘that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ ” (Salvador, supra, at pp. 62-63, quoting In re Sheena K. (2007) 40 Cal.4th 875, 890.) “ ‘The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ ” (Salvador, supra, at p. 63, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).) Castillo analogizes to Leon and E.O. In Leon, the defendant challenged a probation condition that prohibited him from appearing at “ ‘any court proceeding’ ” unless he was a party, subpoenaed as a witness, or had the permission of the probation officer. (Leon, supra, 181 Cal.App.4th at p. 952.) He argued the condition was an overbroad restriction of his First Amendment right of access to court proceedings and asked this court to strike or modify the condition so that it referred to court proceedings involving gang members only. (Ibid.) This court found the condition overbroad, stating that “[t]here can be a variety of legitimate reasons for being at a court proceeding, other than to intimidate or threaten a party or witness. For example, defendant may need to file a document regarding a family matter or he may, as a member of the public, wish to 9 observe a newsworthy trial not involving a gang member or himself.” (Id. at p. 953.) Accordingly, this court narrowed the restriction on appearing at court proceedings to only those proceedings “ ‘concern[ing] a member of a criminal street gang’ ” or in which “ ‘a member of a criminal street gang is present.’ ” (Id. at p. 954.) The condition at issue here is distinct from the one in Leon because it is already narrowly tailored to apply to criminal street gang-related proceedings only. In fact, the condition imposed here closely resembles the modified condition in Leon. We find E.O. more helpful to Castillo’s argument. In that case, the defendant, a minor, challenged a condition that precluded him from coming within 25 feet of a courthouse when he “ ‘knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.’ ’’ (E.O., supra, 188 Cal.App.4th at p. 1152.) This court explained that “the prohibition on being near a building in which gang-related proceedings are known to be underway would prevent appellant not only from attending a gang-related trial but also from attending other proceedings in the same, and perhaps adjacent, buildings, or indeed from entering such a building for any reason, other than as a party or witness, without his probation officer’s permission, unless he ‘needs’ to enter for ‘a legitimate purpose.’ ” (E.O., supra, 188 Cal.App.4th at p. 1155.) The condition therefore interfered with the defendant’s “specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime” and that it “would also prevent [the defendant] from testifying voluntarily or addressing the court in a setting, such as a sentencing hearing, where comments from members of the public might be received.” (Ibid.) Accordingly, this court held the condition to be overbroad. (Id. at p. 1157.) 10 Castillo argues that condition No. 31 similarly “lacks an exception for him to attend and participate in court proceedings if he or a family member is a victim of a crime.” Although condition No. 31 is distinct from the condition in E.O. because it does not preclude Castillo from coming within a certain distance of a courthouse, we nevertheless agree that the condition is unconstitutionally overbroad because it precludes Castillo from participating in court proceedings where he or an immediate family member is a victim of a crime. As this court explained in E.O., the state Constitution provides the right to attend and participate in court proceedings if an individual or his or her family member is a victim of a crime. (See Cal. Const., art. I, § 28, subd. (b)(7); see id., subd. (e).) Here, condition No. 31 interferes with these rights. (E.O., supra, 188 Cal.App.4th at p. 1155.) As we have noted, a probation condition may impinge upon a probationer’s constitutional rights. (Lopez, supra, 66 Cal.App.4th at p. 624.) However, any such condition “must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant.” (People v. Jungers (2005) 127 Cal.App.4th 698, 704.) The People argue that condition No. 31 is carefully tailored and reasonably relates to the compelling state interests of rehabilitating Castillo “by limiting his gang association and of preventing witness intimidation at court proceedings.” They seek to distinguish E.O. on the basis that “in the limited situations in which condition No. 31 may prevent appellant from attending a court proceeding where he or a family member are victims of a crime, the condition only requires him to seek permission from his probation officer.” If, as the People state, the objective of the condition is to prevent witness intimidation, they have not demonstrated that a condition that prohibits Castillo from being present at gang-related criminal court proceedings where he or an immediate family member is a victim is narrowly tailored to that objective. To the extent there is a concern that Castillo would be inclined to use such exceptions as an opportunity to 11 engage in gang association or witness intimidation, the other approved probation conditions proscribe both general and gang-related conduct (e.g., obey all laws; do not commit a similar offense, associate with gang members, or possess/wear/display gang paraphernalia, etc.). For example, any attempt to intimidate a witness at any court proceeding which involves him or a family member as a victim would be a violation of the probation condition to “obey all laws.”3 The People also argue that the condition is narrowly tailored to its objective because Castillo “need only seek permission from his probation officer” to be present at gang-related criminal proceedings where he or an immediate family member is a victim. But the requirement that he obtain such permission operates as a restriction on Castillo’s constitutional rights, one that we do not believe is necessary to achieve the objective of the condition.4 III. DISPOSITION The probation order is hereby modified. Probation condition No. 31 shall read as follows: “You shall not be present at any criminal court proceeding where a member of a criminal street gang is present or where the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you or a member of your immediate family is a victim of the activity charged in the case, you are 3 Section 136.1, subdivision (a), makes it a crime to “(1) Knowingly and maliciously prevent[] or dissuade[] any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law [or] (2) Knowingly and maliciously attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” (§ 136.1, subd. (a)(1), (2).) 4 Castillo suggests that we further modify condition No. 31 to include an exception where “a party’s attorney has asked you to testify or speak to the court.” We deny the request because Castillo has not articulated any basis for the modification and because condition No. 31 already provides an exception where Castillo is subpoenaed as a witness. 12 subpoenaed as a witness, or you have the prior permission of your probation officer.” As modified, the order is affirmed. 13 ___________________________________ Wilson, J. WE CONCUR: __________________________________________ Bamattre-Manoukian, Acting P.J. ______________________________________ Danner, J. People v. Castillo H049829	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488280/	J-A10037-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH PHYSICIAN : IN THE SUPERIOR COURT OF NETWORK, LLC : PENNSYLVANIA : Appellee : : v. : : CHARLES M. MANGANIELLO, M.D. : : Appellant : No. 175 MDA 2021 Appeal from the Order Entered December 29, 2020 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2020-04496 BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J. MEMORANDUM BY KING, J.: FILED NOVEMBER 21, 2022 Appellant, Charles M. Manganiello, M.D., appeals from the order entered in the Luzerne County Court of Common Pleas, which granted the motion to compel filed by Appellee, Commonwealth Physician Network, LLC (“CPN”), and directed Appellant to respond fully to CPN’s interrogatories and request for production of documents. We affirm. The trial court set forth the relevant facts and procedural history of this case as follows: [Appellant] previously worked as a physician for [CPN]. The Asset Purchase Agreement (“Agreement”) reached between [CPN] and [Appellant] included a non-compete and non- solicitation clause prohibiting [Appellant] from practicing medicine within twenty miles of either his office with [CPN] or Wilkes-Barre General Hospital, and prohibited [Appellant]’s solicitation of former clients with [CPN], for two years following the Agreement’s termination. If either party breached the terms of the Agreement, the other party J-A10037-22 could immediately terminate it. [CPN] alleges that it notified [Appellant] in January 2020 of his suspension and review following alleged non-compliance with other terms of the Agreement. However, [CPN] further alleges that not until March 2, 2020 did [CPN] actually terminate [Appellant]’s employment. When precisely [CPN] terminated [Appellant]’s employment is a matter of dispute between the parties. The alleged termination letter of March 2, 2020 also advised [Appellant] that his violations of the Agreement resulted in an obligation to pay [CPN] $518,000.00. On March 21, 2020, [Appellant] sent [CPN] a letter advising that he intended to resume practice of medicine in his local community. [CPN] believed that by March 23, 2020, [Appellant] was actively seeking local medical office space from Guy M. Fasciana, M.D. less than nine miles from Wilkes-Barre General Hospital and less than four miles from [Appellant]’s prior medical office with [CPN]. On March 28, 2020 [Appellant] issued an advertisement in a local newspaper indicating his return to medical practice and soliciting inquiries. [CPN] also alleges that the advertisement appeared [in] a Change.org Petition shared with approximately 2,109 people. [CPN] sought to enjoin [Appellant] from further private medical practice and solicitation in violation of the Agreement restrictions and also sought liquidated damages. The injunction request became moot when [Appellant] voluntarily discontinued his private medical practice in late 2020. Earlier, when attempting to proceed with discovery, [CPN] filed a Motion to Compel Answers to [CPN]’s Interrogatories, Request for Production, and Request for Admission on July 7, 2020. An Order dated September 24, 2020 denied [Appellant]’s previously filed Motion for Protective Order and directed [Appellant] to respond to the Interrogatories, Request for Production and Request for Admission within thirty days. The court further footnoted that the same Order addressed [CPN’s Motion to Compel] thereby rendering said motion moot. On October 20, 2020 [CPN] filed a Second Motion to Compel Answers to [CPN]’s Interrogatories and Request for Production via Rule to Show Cause. The court scheduled the Rule to Show Cause for December 11, 2020 via -2- J-A10037-22 telephone. The Rule to Show Cause did not include a deadline for [Appellant] to file a response. [CPN] served the Rule to Show Cause upon [Appellant] via email on November 10, 2020…. [Appellant] eventually filed an Answer on December 10, 2020 and served a copy on this court via email after closing hours that same day. (Trial Court Opinion, filed July 20, 2021, at 1-3) (internal citations omitted). Appellant raised objections to the following of CPN’s interrogatories: 10. When did you first communicate with Guy Fasciana, M.D. regarding opening a medical practice after January 1, 2020? Describe the communication in detail, including without limitation, the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, and any actions that you took as a result of the communication. 11. Between January 1, 2020 and the opening your medical practice at 605 Main Street, Duryea, Pennsylvania, did you speak to any third party other than Fasciana LLP regarding the possibility of leasing space for a medical practice? If so, describe the communication in detail, including without limitation, the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, and any actions that you took as a result of the communication. 12. Set forth the date and time of the first patient encounter in which you participated at 605 Main Street, Duryea, Pennsylvania. 13. From January 1, 2020, to March 2, 2020, did you provide medical care to any individual at a location other than 1099 South Township Boulevard, Pittston, Pennsylvania? If so, and without disclosing any information protected from disclosure by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), describe each such patient interaction in detail, including without limitation the date, time, and exact location (e.g., the address) of the interaction, the participants in the interaction (without identifying the patient), any witnesses to the interaction, and any actions that you took as a result -3- J-A10037-22 of the interaction. 14. From January 1, 2020 to the present, have you (or are you aware of any individual on your behalf having) communicated with any present or former CPN employee regarding your new medical practice? If so, describe each such communication in detail, including without limitation the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, any actions that you took as a result of the communication, and any response that you received from any employee of CPN regarding the communication (or of which you are aware from the individual identified). 15. From January 1, 2020 to the present, have you (or are you aware of any individual on your behalf having) communicated with any patient whom you treated while you were employed by CPN about providing medical care or the prospect of providing medical care to the patient/individual? If so, and without disclosing any information protected from disclosure by [HIPAA], describe each such communication in detail, including without limitation the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, and any actions that you took as a result of the communication. 16. From January 1, 2020 to the present, have you (or are you aware of any individual on your behalf having) communicated with any media outlet, including, without limitation, any print or digital publication, regarding your medical practice? If so, describe each such communication in detail, including without limitation the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, whether the communication concerned CPN or any other medical practice, and any actions that you took as a result of the communication. * * * 18. Have you or has anyone on your behalf incorporated a business (in any corporate form, e.g. a “corporation,” “limited liability partnership” or any other form) from January 1, 2020 to the present? If so, identify -4- J-A10037-22 the name of the business or business entity, the date of incorporation, the location of the business and any other individuals with whom you are in partnership? * * * 20. From January 1, 2020, to the present, have you communicated with Janet Caputo or Attilio Laschi, Jr., regarding (1) your medical practice or (2) any petition or organizing effort? If so, describe each such communication in detail, including without limitation the date, time, and exact location of the communication, the participants in the communication, any witnesses to the communication, and any actions that you took as a result of the communication. (CPN’s Second Motion to Compel, Exhibit B, filed 10/30/20, at 7-10). Appellant raised objections to the following of CPN’s request for production of documents: 1. Produce all employee time and payroll records of your current medical practice (i.e., at 605 Main Street, Duryea, Pa.) reflecting time that you or any individual working to support your medical practice (whether as an employee or contractor) have worked or payments made to any employee working to support your medical practice from January 1, 2020, to the present. 2. Produce a copy of any appointment diary, chronology, log, calendar, appointment book, or schedule reflecting medical care that you provided or were scheduled to provide which was kept by you or any individual on your behalf from January 1, 2020 to the present. In doing so, please redact the patient’s name, any other identifying information, his/her diagnosis (if any), and any other information protected from disclosure by [HIPAA]. 3. Produce all documents concerning, evidencing or reflecting any communication between you (or any individual on your behalf) and any current or former CPN employee, including without limitation Cheri Rash, from January 1, 2020, to the present. -5- J-A10037-22 4. Produce all documents concerning, evidencing or reflecting any communication from January 1, 2020, to the present between you (or any individual on your behalf) and any individual whom you treated while employed by CPN. In so doing, please redact the patient’s name, any other identifying information, his/her diagnosis (if any), and any other information protected from disclosure by HIPAA. 5. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any media outlet, including without limitation any print or digital publication, from January 1, 2020 to the present 6. Produce all documents reflecting or referencing the status of your employment with CPN that you or any person on your behalf received from any agent, employee or representative of CPN from January 1, 2020 to the present. 7. Produce all documents reflecting or referencing the status of your employment with CPN that you or any person on your behalf sent to any agent, employee or representative of CPN from January 1, 2020 to the present. 8. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any insurance agent, broker, or provider regarding insurance coverage for your medical practice, including without limitation medical malpractice coverage or general commercial liability. 9. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any accountant regarding your medical practice from January 1, 2020, to the present. 10. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any business consultant regarding your medical practice from January 1, 2020, to the present. 11. Produce all documents concerning, evidencing, or reflecting any communication between you (or any -6- J-A10037-22 individual on your behalf) and any medical supplier or equipment provider regarding your medical practice from January 1, 2020, to the present. 12. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any office supplier or equipment provider regarding your medical practice from January 1, 2020, to the present. 13. Produce all documents concerning, evidencing, or reflecting any communication between you (or any individual on your behalf) and any agent or employee of Geisinger Health System regarding your medical practice from January 1, 2020, to the present. 14. Produce all documents concerning, evidencing, or reflecting any efforts by you (or any individual on your behalf) to incorporate (in any form) any business between January 1, 2020 and the present. 15. Produce all documents concerning, evidencing, or reflecting any calls, text messages, email messages, multimedia messages, or other communications made to or from any mobile phone used by you from January 1, 2020 to the present which relate or refer to the status of your employment with CPN and/or your medical practice after January 15, 2020. 16. Produce all documents concerning, evidencing, or reflecting any communication between you and Eileen Reilly or any of her partners, associates, employees, or agents regarding the status of your employment with CPN as of January 14, 2020 to the present and/or efforts to open a private medical practice after January 15, 2020. * * * 19. Produce any and all documents (not otherwise produced) that you believe support your belief that [CPN] “further materially breached the Agreement on January 14, 2020 when it immediately terminated [your] employment without cause,” as alleged in Paragraph 6 of your Answer to Motion for Preliminary Injunction. -7- J-A10037-22 20. Produce any and all documents (not otherwise produced) that you believe support your belief that “[f]ollowing [CPN]’s material breaches of the Agreement, [you] had no obligation to continue performance under purported restrictive covenants contained in the Agreement,” as alleged in Paragraph 6 of your Answer to Motion for Preliminary Injunction. * * * 24. Produce any and all documents (not otherwise produced) that you believe support your denial “that [you were] obligated, or refused, to participate in [CPN]’s purported ‘compliance investigation,’ as alleged in Paragraph 55 of your Answer to Motion for Preliminary Injunction. 25. Produce any and all documents (not otherwise produced) that you believe support your belief that [CPN’s] “protectable business interests are outweighed by [your] interest in earning a living in [your] chosen profession and the general interest of the public,” as alleged in Paragraph 61 of your Answer to Motion for Preliminary Injunction. (CPN’s Second Motion to Compel, Exhibit C, filed 10/30/20, at 7-10). Following oral argument, the court issued an order on December 29, 2020, granting CPN’s motion to compel and directing Appellant to serve full and complete responses to CPN’s discovery requests. Appellant filed a notice of appeal on January 25, 2021. On February 8, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied on March 17, 2021. Appellant raises the following issues of our review: Whether the trial court erred in overruling [Appellant]’s objections to written discovery on the basis of the physician- patient privilege, Pennsylvania Rule of Civil Procedure -8- J-A10037-22 4003.6, and constitutional privacy rights when the written discovery requests sought the disclosure of third party medical and health information. Whether the trial court erred in overruling [Appellant]’s objections to written discovery on the basis of the attorney client privilege, the work product doctrine, and Pennsylvania Rule of Civil Procedure 4003.3 when the written discovery requests substantially and/or exclusively seek to discover communications between [Appellant] and his counsel of record as well as the mental impressions, conclusions, opinions, notes, and legal research of [Appellant]’s counsel of record. Whether the trial court erred in overruling [Appellant]’s objections to written discovery on the basis of constitutional privacy rights when the written discovery requests sought the disclosure of confidential financial records, proprietary business information, and private communications with accountants, insurance brokers, family members and friends. (Appellant’s Brief at 4).1 As a prefatory matter, “[a]n appeal may be taken only from a final order unless otherwise permitted by statute or rule.” Carbis Walker, LLP v. Hill, Barth and King, LLC, 930 A.2d 573, 577 (Pa.Super. 2007) (quoting Ben v. Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (1999)). Collateral orders are an exception to this general rule. See Pa.R.A.P. 313. To qualify as a collateral order under Rule 313, the order must be separate and distinct from the underlying cause of ____________________________________________ 1 We observe that the issues presented in Appellant’s statement of questions involved are phrased differently than those raised in his Rule 1925(b) statement. We caution Appellant that the failure to properly state the issues to be resolved could result in waiver on appeal. Nevertheless, because the issues presented on appeal were fairly suggested by those raised in the Rule 1925(b) statement, we decline to find waiver here. -9- J-A10037-22 action. Additionally, it is not sufficient that the issue under review is important to a particular party; it must involve rights deeply rooted in public policy going beyond the particular litigation at hand. Finally, there must be no effective means of review available after an Order requiring the production of documents is reduced to judgment. Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24 (Pa.Super. 2007) (internal citations and quotation marks omitted). “[R]ule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule. To that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral.” Meyer- Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 936 (Pa.Super. 2016), appeal denied, 641 Pa. 251, 167 A.3d 701 (2017) (internal citations and quotation marks omitted). “[T]he collateral order rule’s three-pronged test must be applied independently to each distinct legal issue over which an appellate court is asked to assert jurisdiction pursuant to Rule 313.” Rae v. Pennsylvania Funeral Directors Ass'n, 602 Pa. 65, 80, 977 A.2d 1121, 1130 (2009). “Generally, discovery orders are deemed interlocutory and not immediately appealable, because they do not dispose of the litigation. On the other hand, discovery orders requiring disclosure of privileged materials generally are appealable under Rule 313 where the issue of privilege is separable from the underlying issue.” Meyer-Chatfield Corp., supra. Significantly, Pennsylvania courts have held that discovery - 10 - J-A10037-22 orders involving potentially confidential and privileged materials are immediately appealable as collateral to the principal action. This Court has also recognized that an appellant’s colorable claim of attorney-client and attorney work-product privilege can establish the propriety of immediate appellate review. Berkeyheiser, supra (internal citations and quotation marks omitted). Here, Appellant claims error in the trial court’s discovery order on the grounds that CPN’s discovery requests were irrelevant, overly broad, unduly burdensome, and already in CPN’s possession. These claims are not separable from the main cause of action, however, because an analysis of the relevance and scope of the discovery requests necessitates examination of the parameters of the underlying breach of contract action. See Berkeyheiser, supra. Additionally, Appellant has failed to demonstrate that these issues are deeply rooted in public policy beyond the litigation at hand. Id. Therefore, Appellant’s objections based on relevance and the scope of the discovery requests do not meet the standard set forth in Rule 313 to qualify as immediately reviewable under the collateral order doctrine. See Meyer- Chatfield Corp., supra (holding that objections on grounds that discovery was overbroad and burdensome are not appealable as collateral order). See also Commonwealth v. Flor, 635 Pa. 314, 325 n.8, 136 A.3d 150, 156 n.8 (2016) (stating: “Litigants may not…rely upon Rule 313 to challenge discovery orders for reasons unrelated to privilege claims, without satisfying the requirements of Rule 313 as to each issue”). Accordingly, we are without jurisdiction to address Appellant’s objections based on relevance and scope of - 11 - J-A10037-22 discovery requests.2 Nevertheless, Appellant also raises assertions of physician-patient privilege, attorney-client privilege, attorney work product privilege and the right to privacy. These claims are separable from the main cause of action because this Court can address those issues without an analysis of the underlying breach of contract action. Additionally, the privileges asserted by Appellant implicate rights deeply rooted in public policy. See Berkeyheiser, supra. Further, enforcement of the order would require Appellant to disclose the disputed information and documents. Thus, there would be no effective means of review available absent our immediate review. Id. Accordingly, the order on appeal as it relates to Appellant’s assertions of privilege and privacy rights is collateral to the main cause of action and immediately reviewable. See Id. See also Jones v. Faust, 852 A.2d 1201 (Pa.Super. 2004) (reviewing discovery order as collateral to main cause of action where appellant asserted order violated rights to privacy and confidentiality). In his issues combined,3 Appellant argues that CPN’s interrogatories and request for production of documents seek information that is privileged. ____________________________________________ 2 Significantly, the dissent focuses primarily on the relevance and scope of the discovery requests at issue. Nevertheless, for the reasons discussed above, those claims are not properly before us under the collateral order doctrine. 3Pursuant to Pa.R.A.P. 2119(a), the argument shall be divided into as many parts as there are questions to be argued. See Pa.R.A.P. 2119(a). Nevertheless, Appellant purports to conflate some of his arguments (Footnote Continued Next Page) - 12 - J-A10037-22 Specifically, Appellant asserts that request for production #15 and #16 seek to discover privileged communication between Appellant and his attorney. Appellant further contends that request for production #20 requests Appellant’s counsel to produce her legal research and notes in support of Appellant’s claims. Additionally, Appellant claims that interrogatory #15 and #20 and request for production #2 and #4 request information about confidential communication between Appellant and his patients that is protected by the physician-patient privilege. Appellant maintains that redacting patient names and contact information does not guarantee anonymity because CPN “has access to many such patients’ unredacted prior medical records for comparison.” (Appellant’s Brief at 30). Further, Appellant asserts that the court failed to adequately consider his and his patients’ constitutionally protected privacy interests. Appellant argues that the court ordered the disclosure of confidential third-party medical records without adequately weighing competing interests and analyzing the actual need for disclosure of the requested information and documents. Appellant argues that the need to impeach a physician during civil litigation does not outweigh the privacy rights of a third-party patient. Similarly, Appellant contends that the court failed to properly consider his asserted privacy interests in avoiding disclosure of personal communication with his ____________________________________________ concerning each privilege asserted for the discovery requests at issue. Therefore, we will discuss Appellant’s issues together. - 13 - J-A10037-22 friends and associates, and confidential and proprietary business information. Appellant concludes the court erred by ordering Appellant to produce information that is privileged or in violation of his constitutional privacy rights and this Court should vacate the discovery order. We disagree. This Court has explained: “Whether the attorney-client privilege or the work product doctrine protects a communication from disclosure is a question of law.” In re Thirty-Third Statewide Investigating Grand Jury, 624 Pa. 361, [379,] 86 A.3d 204, 215 (2014). Indeed, the attorney-client privilege is now embodied in a statute. See 42 Pa.C.S. § 5928 (“In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.”). Where “the issue is the proper interpretation of a statute, it poses a question of law,” as well. Phoenixville Hosp. v. Workers' Compensation Appeal Board, 623 Pa. 25, [38,] 81 A.3d 830, 838 (2013). Thus, the standard of review is de novo, and the scope of review is plenary. [Commonwealth v. Flor, 635 Pa. 314, 322, 136 A.3d 150, 154 (2016)]; [Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 (Pa.Super. 2015)]. Brown v. Greyhound Lines, Inc., 142 A.3d 1, 8 (Pa.Super. 2016). The Rules of Civil Procedure set forth guidelines on discoverable materials as follows: Rule 4003.1. Scope of Discovery Generally. Opinions and Contentions (a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, - 14 - J-A10037-22 including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (c) Except as otherwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact. Pa.R.C.P. 4003.1. “Certain materials are privileged and beyond the scope of discovery.” Berkeyheiser, supra at 1126. “[T]he attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for confidential communications in common law.” Red Vision Systems, Inc. v. National Real Estate Information Services, L.P., 108 A.3d 54, 60 (Pa.Super. 2015), appeal denied, 632 Pa. 663, 116 A.3d 605 (2015). The privilege is defined by statute as follows: § 5928. Confidential communications to attorney In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. 42 Pa.C.S.A. § 5928. “Despite the language of the statute, communications from an attorney to a client—not just communications by a client to an attorney—are protected - 15 - J-A10037-22 under Pennsylvania law.” Office of Disciplinary Counsel v. Baldwin, ___ Pa. ___, ___, 225 A.3d 817, 849 (2020). “The purpose of the attorney-client privilege is to ‘foster a confidence between attorney and client that will lead to a trusting and open dialogue.’” Berkeyheiser, supra at 1126 (quoting Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super. 2003)). The attorney-client privilege is not absolute. See Red Vision Systems, supra at 62. “The privilege exists only to aid in the administration of justice, and when it is shown that the interests of the administration of justice can only be frustrated by the exercise of the privilege, the trial judge may require that the communication be disclosed.” Id. (quoting Cohen v. Jenkintown Cab Co., 357 A.2d 689, 693-94 (Pa.Super. 1976)). Unlike the attorney-client privilege, the work-product privilege “does not necessarily involve communications with a client.” Gillard v. AIG Ins. Co., 609 Pa. 65, 89 n.16, 15 A.3d 44, 59 n.16 (2011). Pennsylvania Rule of Civil Procedure 4003.3 governs attorney work product as follows: Rule 4003.3. Scope of Discovery. Trial Preparation Material Generally Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research - 16 - J-A10037-22 or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Explanatory Comment—1978 The amended Rule radically changes the prior practice as to discovery of documents, reports and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent. * * * There are, however, situations under the Rule where the legal opinion of an attorney becomes a relevant issue in an action; for example, an action for malicious prosecution or abuse of process where the defense is based on a good faith reliance on a legal opinion of counsel. The opinion becomes a relevant piece of evidence for the defendant, upon which defendant will rely. The opinion, even though it may have been sought in anticipation of possible future litigation, is not protected against discovery. A defendant may not base his defense upon an opinion of counsel and at the same time claim that it is immune from pre-trial disclosure to the plaintiff. As to representatives of a party, and sometimes an attorney, there may be situations where his conclusions or opinion as to the value or merit of a claim, not discoverable in the original litigation, should be discoverable in subsequent litigation. For example, suit is brought against an insurance carrier for unreasonable refusal to settle, resulting in a judgment against the insured in an amount in excess of the insurance coverage. Here discovery and inspection should be permitted in camera where required to weed out protected material. * * * Pa.R.C.P. 4003.3. - 17 - J-A10037-22 Further, the physician-patient privilege is codified as follows: § 5929. Physicians not to disclose information No physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries. 42 Pa.C.S.A. §5929. “Pennsylvania law distinguishes between information communicated to a physician by a patient and information acquired through examination and observation.” Stenger v. Lehigh Valley Hosp. Ctr., 530 Pa. 426, 434, 609 A.2d 796, 800 (1992). “The distinction originates in the rationale of the statute which was designed to create a confidential atmosphere in which a patient will feel free to disclose all possible information which may be useful in rendering appropriate treatment.” Grimminger v. Maitra, 887 A.2d 276, 279 (Pa.Super. 2005), appeal denied, 588 Pa. 789, 906 A.2d 1197 (2006). Therefore, “the patient-physician privilege is limited to information which would offend the rationale of the privilege, i.e., information directly related to the patient’s communication and thus tending to expose it.” Stenger, supra at 440, 609 A.2d at 803. Additionally, the privilege is intended to protect “a patient’s communications if doing so would release confidential information … which would blacken the character of the patient.” Grimminger, supra at 279-80. - 18 - J-A10037-22 Additionally, the U.S. and Pennsylvania Constitutions provide protection for an individual’s right to privacy. See Stenger, supra at 434, 609 A.2d at 800. However, this right is not absolute and must be balanced against weighty competing private and state interests. Id. Our Supreme Court has recognized “an individual interest in avoiding disclosure of personal matters…” Id. “The object of such a right is, in part, to protect an individual from revealing matters which could impugn his character and subject him to ridicule or persecution.” Id. Generally, this privacy interest is not offended by anonymous disclosures as the shield of anonymity protects an individual from disrepute. See id. at 435, 609 A.2d 801. Instantly, the court considered each of Appellant’s objections to CPN’s discovery requests and determined that they were without merit. Regarding Appellant’s objections based on the physician-patient privilege in his first appellate issue, the court found that the limited information requested by CPN did not encroach on the information protected by the privilege. Appellant asserts this privilege in response to CPN’s request for production #2 and #4 and interrogatories #15 and #20. Request for production #2 only requests information about patient scheduling, which does not require Appellant to reveal confidential patient communication protected by the privilege. See Grimminger, supra; Stenger, supra. Similarly, interrogatory #20 requests information about Appellant’s communication with two patients regarding Appellant’s medical practice and any petitions and organizing efforts they - 19 - J-A10037-22 undertook to support Appellant. Although this request seeks information about communication between Appellant and his patients, the communication in question is unrelated to providing medical care and thus, falls outside of the scope of the privilege. See id. Both request for production #4 and interrogatory #15 request information about any communication from January 1, 2020 to present that Appellant had with patients he treated while employed by CPN. CPN seeks this information to gather evidence on whether Appellant solicited CPN’s patients in violation of the Agreement. To limit the information sought to the desired purpose, CPN’s requests specifically direct Appellant to redact names and identifying information, medical diagnosis and any other information protected from disclosure by HIPPA.4 Therefore, the requested information ____________________________________________ 4HIPPA’s privacy rules prevent the disclosure of protected health information. See 45 C.F.R. § 164.502(a). Protected health information includes: Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (Footnote Continued Next Page) - 20 - J-A10037-22 on patient communication would exclude identifying information and information about medical history, diagnosis, and medical care provided to the individual. We agree with the trial court that the limited information sought does not fall within the purview of the physician-patient privilege. See Grimminger, supra; Stenger, supra. With identifying information and medical details redacted, it is unclear how the information produced could blacken the character of the patient.5 See id. Accordingly, we see no error by the trial court in ordering Appellant to provide complete answers to the discovery requests to which Appellant asserted the physician-patient privilege.6 See Berkeyheiser, supra. See also Brown, supra. Regarding Appellant’s objections based on attorney-client privilege and ____________________________________________ (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 C.F.R. § 160.103 5 Appellant’s assertion that anonymity is not guaranteed because CPN can compare the records to prior unredacted medical records in CPN’s possession is speculative at best. Additionally, even if patient identities were made known to CPN, the requested information does not include sensitive medical information protected by the privilege. 6 Appellant’s reliance on Rule 4003.6 is misguided. Rule 4003.6 states that “information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.” Pa.R.C.P. 4003.6. This rule governs the procedure by which medical information may be obtained about a party. As CPN has not sought to obtain medical information about Appellant, this rule is inapplicable to the instant matter. - 21 - J-A10037-22 work-product privilege presented in his second appellate issue, the court explained that it did not order Appellant to produce privileged information to CPN. Rather, the court noted that Appellant responded to the discovery requests with a bald assertion of privilege without following the procedure set forth in CPN’s requests on how to assert privilege. Specifically, CPN’s requests state that Appellant should identify the matter, describe the subject matter, specify the privilege asserted, and identify all persons who have had access to the matter. As such, the court’s order merely directed Appellant to provide full responses to CPN’s discovery requests and to assert the proffered privilege in the manner requested by CPN. Consequently, we see no error in the court’s order directing Appellant to provide complete answers to CPN’s discovery requests as it related to Appellant’s objections based on attorney-client privilege and work-product privilege. See Berkeyheiser, supra. See also Brown, supra. Further, with respect to Appellant’s third appellate issue, the court determined that Appellant’s objections to CPN’s requests based on his privacy interests were also without merit. Specifically, Appellant raised objections based on privacy rights to CPN’s interrogatories ##10-16 and ##18-20, and request for production ##1-14, 19, 24, and 25. Interrogatories ##10, 11, 14, 16, 18 and 19, and request for production ##1, 3, and 5-15, request information and records about conversations that Appellant had with peers, business consultants, insurance providers, accountants, suppliers, media - 22 - J-A10037-22 outlets and CPN’s former employees regarding the set up and operation of Appellant’s medical practice and Appellant’s employment with CPN and other entities. Request for production ##19, 24 and 25 request Appellant to produce documents that support various specific claims in Appellant’s answer to CPN’s complaint. Appellant’s brief fails to cite to any relevant authority to demonstrate that he has a recognized privacy interest in avoiding disclosure of the information requested in the discovery requests listed above. As such, Appellant has waived this argument. See In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013) (reiterating: “This Court will not consider the merits of an argument which fails to cite relevant case or statutory authority”). The only privacy interest properly identified by Appellant is a patient’s right to avoid disclosure of confidential medical information. Of the discovery requests to which Appellant objected, interrogatory ##12, 13, and 20, and request for production ##2 and 4 request information about Appellant’s patients. However, the right to privacy does not cover all patient information but is limited to confidential medical information which would impugn the character of the patient or subject the patient to ridicule if revealed. See Stenger, supra. As previously discussed, CPN only requested patient information with all identifying information and protected medical information redacted. As such, the limited, anonymous patient information requested by CPN does not implicate a protected privacy interest. See id. Therefore, we - 23 - J-A10037-22 see no error in the court’s decision to overrule Appellant’s objections to CPN’s discovery requests based on a violation of privacy rights. See Berkeyheiser, supra. See also Brown, supra. Accordingly, Appellant is not entitled to relief on any of his claims on appeal and we affirm. Order affirmed. Judge Kunselman joins this memorandum. President Judge Panella files a dissenting memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 - 24 -	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488285/	J-S35032-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN F. HENRY : : Appellant : No. 400 MDA 2022 Appeal from the Judgment of Sentence Entered December 29, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005280-2020 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 21, 2022 Appellant John F. Henry appeals from the judgment of sentence entered after Appellant pled guilty to Rape of a Child, Aggravated Indecent Assault of a Child, Incest, Photographing Child Pornography, Disseminating Child Pornography and related crimes. Appellant challenges the discretionary aspects of his sentence. We affirm. On September 14, 2021, Appellant pled guilty to multiple criminal offenses in relation to his repeated sexual assaults of his five-year old daughter as well as his recording and dissemination of child pornography. On December 29, 2021, after reviewing a pre-sentence investigation report (PSI), the trial court held a sentencing hearing, at which the trial court determined the prosecution had proven Appellant was a Sexually Violent Predator (SVP). ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S35032-22 Thereafter, the trial court imposed the following individual sentences: Count 1: Rape of a Child (F1) 10-20 years’ incarceration at a State Correctional Institute (SCI); Count 2: Sexual Assault (F2) Merged with Count 1; Count 3: Indecent Assault, person less than 13 (F3) 1½ - 3 years’ incarceration at SCI, concurrent to Count 1; Count 4: Aggravated Indecent Assault of a Child (F1) 10-20 years’ incarceration at SCI, consecutive to Count 1; Count 5: Indecent Exposure (M1) 1-2 years’ incarceration at SCI, concurrent to Count 1; Count 6: Incest of Minor, victim under 13 (F2) 4-8 years’ incarceration at SCI, consecutive to Count 4; Count 7: Corruption of Minors (F3) 1½ - 3 years’ incarceration at SCI, consecutive to Count 6; Count 8: Unlawful Contact with a Minor – Sexual Offenses (F1) 10-20 years’ incarceration at SCI, concurrent to Count 1; Count 9: Unlawful Contact with a Minor – Sexual Abuse (F1) 4-8 years’ incarceration at SCI, concurrent to Count 1; Count 10: Photographing Child Pornography (F1) 6-12 years’ incarceration at SCI, consecutive to Count 7; Count 11: Disseminating Child Pornography (F2) 5-10 years’ incarceration at SCI, consecutive to Count 10; Count 12: Possession of Child Pornography (F2) Merges with Count 10; -2- J-S35032-22 Count 13: Criminal Use of Communication Facility (F3) 1-3 years’ incarceration at SCI, consecutive to Count 11. Trial Court Opinion (T.C.O.), 4/8/22, at 1-2. As a result, Appellant received an aggregate sentence of 37½ - 76 years’ imprisonment. Appellant filed a timely post-sentence motion, which the trial court subsequently denied on February 2, 2022. This appeal followed. Appellant raises one issue for our review: Was an aggregate sentence of thirty-seven and one half to seventy-six years’ incarceration manifestly excessive under the circumstances and an abuse of the trial court’s discretion? Appellant’s Brief, at 12. Appellant claims his sentence is manifestly excessive based on the trial court’s decision to run several of his sentences consecutively instead of concurrently. Although Appellant admits that each of the individual sentences fall within the standard range of the sentencing guidelines, Appellant argues that the sentence is unreasonable and essentially a life sentence “because it does not offer [Appellant] a meaningful chance at rehabilitation and return to the community.” Appellant’s Brief, at 21. In addition, Appellant argues that the trial court did not into account his mitigating circumstances. While Appellant admits he has a prior criminal record, Appellant argues that the fact that he does not have any prior convictions for a sexual offense shows he is amenable to rehabilitation. Appellant also notes that the trial court did not consider that Appellant has a history of life trauma and intellectual disability. -3- J-S35032-22 Both challenges implicate the discretionary aspects of sentencing. In reviewing such challenges, we are mindful that: Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. Id. An appellant must satisfy all four requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013). Commonwealth v. Miller, 275 A.3d 530, 534 (Pa.Super. 2022). In this case, Appellant filed a timely notice of appeal, preserved his sentencing claims in a timely post-sentence motion, and his brief does not contain any fatal defects. Assuming arguendo that both claims raise substantial questions for review and all of these requirements have been met, we conclude Appellant’s sentencing issues are meritless. Our standard of review of a sentencing claim is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006). -4- J-S35032-22 The Sentencing Code sets forth general standards to guide the trial court’s sentencing determination, requiring the sentence imposed to be consistent with “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). In addition, “[w]hen imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant's prior criminal record, age, personal characteristics and potential for rehabilitation.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citations omitted). Although these principles promote individualized sentencing, the trial court “is not required to impose the minimum possible confinement.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (citation and internal quotation marks omitted). Section 9721(a) of the Sentencing Code gives the trial court discretion to impose its sentences consecutively or concurrently to other sentences being imposed at the same time or to sentences already imposed. See 42 Pa.C.S.A. § 9721(a); Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa.Super. 2022) (quoting Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003) (establishing that “in imposing a sentence, the trial [court] may determine whether, given the facts -5- J-S35032-22 of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed”). In reviewing whether a sentence should be vacated: Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is “clearly unreasonable” based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The weighing of factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the sentencing court, and an appellate court may not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c). Taylor, 277 A.3d at 593 (quoting Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa.Super. 2012) (citations omitted)). In this case, as Appellant concedes that the trial court correctly applied the guidelines and that all of his individual sentences fell within guideline ranges, this Court may only vacate his sentence if it is “clearly unreasonable.” Taylor, supra. In addition, we note that the trial court had the benefit of a presentence investigation report (PSI). This Court has held that when the trial court imposes a standard range sentence after reviewing a PSI report, the sentence cannot be considered excessive or unreasonable absent some indicia clearly evidencing the contrary. See id. -6- J-S35032-22 Upon reviewing the record, we find that the sentence imposed was not “clearly unreasonable.” At the sentencing hearing, the trial court noted that it had reviewed the PSI report, the Sexual Offenders Assessment Board (SOAB) evaluation, the counts for which Appellant was convicted, the applicable mandatory sentences, and the sentencing guidelines. Notes of Testimony (N.T.), 12/29/21, at 2-5, 26, 29. In imposing the sentence in this case, the trial court gave great weight to the gravity of the crimes committed, which the trial court characterized as “heinous,” and their impact of Appellant’s crimes on the life of the victim. Id. at 30. The trial court was appalled that Appellant repeatedly raped his five- year old daughter, video-recorded the sexual assaults, and disseminated the footage as child pornography. Id. at 30-31. The trial court highlighted that Appellant had “betrayed the duty of care, protection, and support to [his] daughter.” Id. at 31. The trial court emphasized Appellant’s lack of remorse and accountability for his crimes as the SVP Assessment indicated that Appellant first denied the sexual contact and then subsequently blamed the five-year- old victim for “coming on” to him as he suggested she enjoyed the contact. Id. at 15; Trial Court Opinion (T.C.O.), 4/8/22, 8. The trial court was concerned that Appellant exhibited a pedophilic disorder as reported by the SVP assessment given the sexual deviance and predatory nature of his brutal rape of a young, vulnerable child. T.C.O. at 8. The trial court found that Appellant’s memorialization of the assault on video -7- J-S35032-22 was a further aggravating factor “indicative of sustained sexual interest in children and a desire to relive or fantasize about the rape of one’s own child.” T.C.O. at 8-9. While Appellant pointed to the fact that he has never been convicted of a sexual offense, the trial court found there was little evidence to show that Appellant was amenable to treatment or rehabilitation. N.T. at 30; T.C.O. at 8. As noted by the trial court, Appellant already had an extensive history of serious crime including convictions in 2007 for aggravated assault (F2), resisting arrest, and obstruction of justice, a convictions in 2009 and 2012 for DUI, and convictions in 2017 for burglary (F2), conspiracy, and theft. With respect to Appellant’s claim that the trial court did not consider relevant mitigating factors, the record clearly shows otherwise. Where the trial court has the benefit of reviewing a PSI report, we may assume that the trial court “was aware of the relevant information regarding Appellant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (internal quotation marks and citation omitted). Moreover, the trial court expressly indicated that it had considered Appellant’s family history and mental health limitations, in which Appellant had been diagnosed with mild mental retardation as well as depression and anxiety. N.T. at 26. The trial court recognized Appellant had required special education all his life and only finished his education to the tenth grade. Id. at 29. The trial court also recognized that Appellant had a history of substance -8- J-S35032-22 abuse from the age of sixteen and had sought treatment for drug and alcohol abuse when charged with criminal offenses. Id. at 27. Nevertheless, the trial court found nothing in the record to show a “lack of intellectual ability that would prevent [Appellant] from understanding the difference between right and wrong.” N.T. at 30; T.C.O. at 7-8. The trial court also noted that as a thirty-seven year old male, Appellant was at an “age of [] maturity to understand the significance of [his acts].” N.T. at 29. For all of the foregoing reasons, the trial court found that Appellant was a “danger to society,” noted that a lesser sentence would depreciate the seriousness of Appellant’s crimes, and expressed concern of an undue risk that Appellant would reoffend upon release. N.T. at 32; T.C.O. at 9. Accordingly, our review of the record, briefs, trial court opinion, and relevant authority uncovers no reason to disturb the trial court's discretion in imposing Appellant’s sentence. See Shugars, supra (“[s]entencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion”). Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/21/2022 -9-	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488294/	In the United States Court of Federal Claims NEWIMAR, S.A., Plaintiff, v. No. 21-cv-1897 THE UNITED STATES, Filed Under Seal: November 14, 2022 Defendant, Publication: November 17, 2022 1 and J&J MAINTENANCE, INC., Intervenor-Defendant MEMORANDUM AND ORDER On May 12, 2022, this Court entered Judgment in favor of Defendants (ECF No. 61) in a bid protest action brought by Newimar, S.A. (Plaintiff or Newimar). Five months later, on October 12, 2022, Plaintiff filed a Motion for Stay of this Court’s Judgment Pending Appeal (Motion or Motion to Stay). See ECF No. 67 (Mot.). Specifically, Plaintiff seeks a stay while the United States Court of Appeals for the Federal Circuit (Federal Circuit) considers Plaintiff’s appeal, filed on June 22, 2022. Mot. at 30. 2 Plaintiff also urges this Court to enjoin Defendant United States (Defendant or the Government) and Intervenor-Defendant J&J Maintenance, Inc. (J&J) from 1 This Memorandum and Order was filed under seal in accordance with the Protective Order entered in this case (ECF No. 12) and was publicly reissued after incorporating all redactions proposed by the parties. (ECF No. 73.) The sealed and public versions of this Memorandum and Order are otherwise identical, except for the publication date and this footnote. 2 Citations throughout this Memorandum and Order reference the ECF-assigned page numbers, which do not always correspond to the pagination within the document. 1 taking further steps to implement or begin performance under the protested contract award pending Plaintiff’s Appeal. Id. Plaintiff’s Motion to Stay lacks merit. Accordingly, for the reasons described in this Memorandum and Order, Plaintiff’s Motion is DENIED. BACKGROUND The facts of this dispute are detailed in this Court’s May 12, 2022 Memorandum and Order. See Newimar S.A. v. United States, 160 Fed. Cl. 97 (2022) (Opinion); ECF No. 61 (Judgment). For context, the Court briefly summarizes below the procedural history pertinent to the Motion. The U.S. Department of the Navy (Navy) maintains the infrastructure for U.S. Naval Station (NAVSTA) Rota along the Bay of Cádiz in Rota, Spain, which includes “a 670-acre airfield, four active piers, hundreds of facilities, and approximately 373 family housing units.” Newimar, 160 Fed. Cl. at 107. Plaintiff, the incumbent civilian contractor at NAVSTA Rota for the last 25 years, filed this post-award bid protest on September 23, 2021 to challenge the Navy’s contract award to J&J for future base operations support (BOS) services at NAVSTA Rota. Id. at 107. On May 12, 2022, after consideration of the parties’ briefs and after a lengthy and thorough oral argument, this Court upheld the Navy’s award to J&J, denying Plaintiff’s Motion for Judgment on the Administrative Record (MJAR), and granting the Government’s and J&J’s Cross- MJARs. Id. at 142. On June 22, 2022, Plaintiff filed a Notice of Appeal. ECF No. 64. On September 15, 2022, Plaintiff subsequently filed its opening appellate brief in the Federal Circuit; Plaintiff, however, did not move the Federal Circuit for an expedited briefing schedule pursuant to Federal Circuit Rule 27(c). Newimar S.A. v. United States, No. 22-1949, D.I. 16 (Fed. Cir. Sept. 15, 2022); see also Mot. at 7 (stating Plaintiff is not “formally requesting expedited relief” before the Federal Circuit). 2 Since 2021, Plaintiff has continued to service NAVSTA Rota under a series of bridge contracts with the Navy. See Declaration of Erin R. Quimby, United States Contracting Officer (ECF No. 69-1) (Def.’s Aff.), ¶ 3. Plaintiff’s current bridge contract is set to terminate on December 31, 2022. Id.; Mot. at 8. The Navy declined to further renew Plaintiff’s bridge contract, and instead intends to proceed with its transition of the awarded contract to J&J, consistent with this Court’s ruling. Def.’s Aff., ¶ 3; Mot. at 8–9. The contract award incorporates a 45-day phase- in period for J&J, which the Navy intends to commence on November 16, 2022. Id.; see Defendant’s Response to Plaintiff’s Motion for a Stay Pending Appeal (ECF No. 69) (Def.’s Resp.) at 3. Plaintiff filed the present Motion to Stay only after it had received notice on September 30, 2022 of the Navy’s intention to transition the work to J&J and forgo renewal of another bridge contract with Plaintiff. Def.’s Aff., ¶ 3; see ECF No. 71-3 (Navy letter to Plaintiff, dated September 30, 2022). APPLICABLE LEGAL STANDARDS Plaintiff’s Motion seeks both a stay of this Court’s Judgment and entry of an injunction pending resolution of its appeal by the Federal Circuit. Mot. at 30. Rule 62(d) of the Rules of the United States Court of Federal Claims (Rule(s)) states that “[w]hile an appeal is pending from an interlocutory order or final judgment . . . the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Rule 62(d). The imposition of such relief pending appeal is an exercise of judicial discretion that depends upon the circumstances of the particular action. See ePlus, Inc. v. Lawson Software, Inc., 431 F. App’x 920, 920 (Fed. Cir. 2011) (citing Nken v. Holder, 556 U.S. 418, 433 (2009)) (noting that the decision to stay a permanent injunction pending appeal “is not a matter of right [b]ut instead an exercise of judicial discretion”). 3 The relief Plaintiff seeks here “is an ‘extraordinary and drastic remedy,’ which is not granted lightly.” ACI Techs., Inc. v. United States, 162 Fed. Cl. 39, 43 (2022) (quoting G4S Secure Integration LLC v. United States, 159 Fed. Cl. 249, 254–55 (2022)); see RLB Contracting, Inc. v. United States, 120 Fed. Cl. 681, 682 (2015) (“An injunction pending appeal is an extraordinary remedy and will not be lightly granted.”) (citing Acrow Corp. of Am. v. United States, 97 Fed. Cl. 182, 183 (2011)). As the movant, Plaintiff “bears the burden of showing the circumstances justify an exercise of the court’s discretion . . . .” Beard v. United States, 451 F. App’x 920, 921 (Fed. Cir. 2011); see also ACI Techs., 162 Fed. Cl. at 43 (quoting Telos Corp. v. United States, 129 Fed. Cl. 573, 575 (2016)) (noting that “the party moving for a stay ‘carries the burden of establishing the propriety of an injunction pending appeal . . . .’”). While trial courts have discretion to issue stays or other injunctive relief pending appeal, courts should consider: (1) whether the movant has made a strong showing that it is likely to succeed on the merits; (2) whether the movant will be irreparably injured absent an injunction; (3) whether issuance of the injunction will substantially injure the other interested parties; and (4) where the public interest lies. 3 ACI Techs., 162 Fed. Cl. at 43 (quoting Telos Corp., 129 Fed. Cl. at 575). Courts acknowledge that the first two factors are generally of primary importance to a court’s inquiry. See Acrow Corp. of Am., 424 F. App’x at 948 (noting the first two factors are “the most critical”); see also Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990) (noting courts need not afford the factors equal weight). Courts, however, “adopt a flexible approach to balancing the four factors,” as they “do not form a rigid set of rules for determining whether a stay is appropriate.” JWK Int’l Corp. v. United States, 49 Fed. Cl. 364, 366 (2001); see also ACI Techs., 3 Concerns over factor 3 (harm to other interested parties) and factor 4 (the public interest) “merge when the Government is the opposing party.” Nken, 556 U.S. at 435. 4 162 Fed. Cl. at 43 (quoting E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987)) (noting that the court must “assess[] [a] movant’s chances for success on appeal and weigh[] the equities as they affect the parties and the public”) (internal quotations omitted). In lieu of demonstrating a strong likelihood of success on the merits under factor 1, the movant may instead demonstrate a “substantial case” of success on the merits “provided the other factors militate in movant’s favor.” Standard Havens Prods., 897 F.2d at 513 (citing Hilton v. Braunskill, 481 U.S. 770, 778 (1987)) (emphasis in original); see also ACI Techs., 162 Fed. Cl. at 43. Thus, a court may still order a stay pending appeal if the moving party demonstrates a “substantial case” on the merits, and all other factors weigh “decidedly toward the moving party.” ACI Techs., 162 Fed. Cl. at 44 (quoting G4S Secure Integration, 159 Fed. Cl. at 255); see also JWK Int’l Corp., 49 Fed. Cl. at 366 (“The stronger the showing of likelihood of success on the merits, the less heavily the balance of harms need tip in [the movant's] favor. Conversely, if the harm factors weigh heavily in [the movant's] favor, [the movant] only needs to demonstrate a substantial case on the merits.”). Although the “substantial case” standard permits movants to demonstrate a lesser showing of success on the merits in particular circumstances, it “is no free ride.” ACI Techs., 162 Fed. Cl. at 44. A “substantial case” on the merits requires more than a “fair” or “better than negligible chance” of success. Standard Havens Prods., 897 F.2d at 515. The movant must demonstrate that the question raised “is novel or close” or that the movant has highlighted questions on the merits “so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation.” ACI Techs., 162 Fed. Cl. at 44 (internal citations omitted). Indeed, a mere allegation that the Government or a court erred does not alone satisfy the “substantial case” standard. Id. at 47. “A 5 party seeking a stay must do more than simply claim the trial court got it wrong; it must present a good faith argument that substantial doubt exists over the trial court's decision.” Obsidian Sols. Grp., LLC v. United States, No. 20-1602C, 2021 WL 1688892, at 4 (Fed. Cl. Apr. 27, 2021) DISCUSSION This Court must deny Plaintiff’s Motion to Stay. As an initial matter, Plaintiff’s delay in filing its Motion and its decision to forgo expedited briefing before the Federal Circuit provides sufficient justification to deny Plaintiff’s Motion. Even considering the merits, however, Plaintiff’s Motion to Stay must be denied, as Plaintiff fails to demonstrate a strong or substantial case on the merits that would warrant the entry of a stay or injunctive relief pending resolution of Plaintiff’s appeal before the Federal Circuit. I. Plaintiff’s Delayed Motion to Stay and Decision to Proceed Before the Federal Circuit on a Non-Expedited Basis After close review of both the record and the timing of Plaintiff’s filings, it is evident to this Court that Plaintiff’s Motion represents a last-minute effort by Plaintiff to recover from gamesmanship gone awry. It appears that Plaintiff made the strategic decision to delay filing a motion to stay this Court’s Judgment apparently in the hope, or with the expectation, that the Navy would further extend Plaintiff’s bridge contract for the duration of the appeal. See Def.’s Aff., ¶ 3 (“Soon after receiving notice of the Navy’s intent to proceed with transition [to J&J], Newimar filed with this Court a Motion to Stay Performance pending the appeal before the Federal Circuit.”). In doing so, Plaintiff chose to disregard the reasonably foreseeable financial and business risks frequently incurred when an incumbent loses a bid to renew a significant contract. See, e.g., Telos Corp., 129 Fed. Cl. at 578 (recognizing lost profits and adverse consequences to employees as “the unavoidable results of [a] contract coming to an end”). On September 30, 2022, Plaintiff learned from the Navy that its gamble had failed, and the latest bridge contract would not 6 be extended past December 31, 2022. See Def.’s Aff., ¶ 3; Mot. at 8. Yet, this outcome was foreseeable. Indeed, Plaintiff could have predicted this outcome as early as May 12, 2022, when this Court issued its Opinion and entered Judgment in favor of Defendants. See Newimar, 160 Fed. Cl. at 107–08. It was reasonably foreseeable from a business, strategic, and economic perspective that the Navy might opt not to renew Plaintiff’s bridge contract after this Court had upheld the propriety of the award to J&J. See Id. Plaintiff should have anticipated this risk and, by engaging in prompt motion practice, potentially could have mitigated the financial consequences of losing its incumbency. Plaintiff, however, failed to take these precautionary measures. Instead, Plaintiff waited for five months, until approximately two months before the bridge contract’s termination date, to file this Motion. See Mot. at 8–9. Plaintiff belatedly alleges that the financial strains it could and should have foreseen months ago now constitute irreparable harm warranting a stay of this Court’s Judgment and injunctive relief. See id. at 27–28. Plaintiff cannot have it both ways, and this Court will not so reward Plaintiff based on such a record. See, e.g., CRAssociates, 103 Fed. Cl. at 27 (noting that “self-inflicted harm . . . [is] not the sort of consideration that ought to give rise to a stay”). In reviewing the record, this Court identifies two primary timing issues which, taken together, compel this Court to deny Plaintiff’s Motion. First, the timing of Plaintiff’s Motion counsels strongly against entering injunctive relief. The timing of a party’s motion to stay pending appeal is a consideration in deciding whether entry of a stay or injunctive relief pending appeal is warranted. See, e.g., HVF West, LLC v. United States, 148 Fed. Cl. 45, 57 (2020) (noting movant’s seven-week delay in filing motion to stay pending appeal contributed to decision to deny the motion); Lawson Env’t Servs., LLC v. United States, 128 Fed. Cl. 14, 19 (2016) (holding movant’s two-month delay in filing motion to stay 7 pending appeal undermined its claim of irreparable harm). Plaintiff filed the present Motion to Stay on October 12, 2022, precisely five months after the Court had issued its Memorandum and Order and entered Judgment in favor of the Government and J&J. See ECF No. 67; Newimar, 160 Fed. Cl. at 108. Plaintiff’s five-month delay in filing its Motion to Stay far exceeds the seven- week and two-month intervals considered untimely in HVF West and Lawson Environmental Services, respectively. 4 HVF West, 148 Fed. Cl. at 57; Lawson Env’t Servs., 128 Fed. Cl. at 19. Had Plaintiff harbored sincere concerns over the allegedly catastrophic financial consequences that it could incur resulting from Judgment issued in favor of Defendants, it should have acted swiftly to file a Motion to Stay at that time. That Plaintiff did not file earlier — and waited for such a prolonged period to do so — suggests its choice to delay was strategic. It is evident that Plaintiff intended to prolong its ability to service NAVSTA Rota and only seeks injunctive relief now because the Navy recently informed Plaintiff that it would not further extend Plaintiff’s latest bridge contract. Second, Plaintiff’s portrayal of imminent and irreparable harm absent a stay is further belied by its failure to pursue an expedited appeal before the Federal Circuit. Federal Circuit Rule 27(c) permits a party to move for accelerated consideration of its appeal by filing a Motion to Expedite. Fed. Cir. Rule 27(c). The Practice Notes to Federal Circuit Rule 27 indicate that such a motion “should be filed immediately after docketing . . . [and] is appropriate where the normal briefing and disposition schedule may adversely affect one of the parties, as in appeals involving preliminary or permanent injunctions or government contract bid protests.” Fed. Cir. R. 27 Practice Notes (emphasis added). These Practice Notes reflect that a party in Plaintiff’s position (i.e., a party to a government contract bid protest allegedly harmed by delays inherent in the 4 While not binding, these decisions are instructive. 8 resolution of an appeal) may benefit from expedited briefing. Id. Yet, Plaintiff never filed a motion to expedite its appeal in the Federal Circuit, and apparently does not plan to do so. Mot. at 7 (acknowledging Newimar is not “formally requesting expedited relief” before the Federal Circuit). Plaintiff’s failure to do so further underscores the failed strategic choice that accompanies Plaintiff’s seemingly sudden allegations of irreparable harm. Such timing issues, alone, provide ample justification to deny Plaintiff’s Motion. Nevertheless, for purposes of completeness, this Court also considers Plaintiff’s merits-related arguments raised by its Motion, all of which fail to warrant entry of a stay or injunctive relief pending appeal. II. Plaintiff Fails to Demonstrate a Likelihood of Success on the Merits Even assuming arguendo that Plaintiff’s tardiness does not necessitate denial of the Motion to Stay, this Court must still deny Plaintiff’s Motion because it fails to raise any issue or question so novel or close as to warrant the extraordinary remedy of injunctive relief pending appeal. Plaintiff insists it has presented, if not a strong case, at least a substantial case on the merits because its Motion and appeal allegedly present issues of first impression. See Plaintiff’s Reply to Defendant’s and Intervenor-Defendant’s Oppositions to Motion to Stay (ECF No. 71) (Pl.’s Reply) at 3. Yet, Plaintiff fails to articulate which of its arguments represents an issue of first impression, and this Court is aware of none. Indeed, Plaintiff’s Motion merely reiterates the identical concerns and arguments that Plaintiff raised in its MJAR, all of which this Court previously addressed and rejected. See generally Newimar, 160 Fed. Cl. at 97. Plaintiff cannot demonstrate a strong or substantial case on the merits via either reiteration of its previously-asserted MJAR arguments or via general disagreement with this Court’s reasoning. See Lawson Env’t Servs., 128 Fed. Cl. at 17 (acknowledging that when a movant “seeks to ‘relitigate several issues that the opinion addressed 9 fully and resolved,’” the Court will deny an injunction) (internal citations omitted); Obsidian Sols. Grp., 2021 WL 1688892, at 4 (“A party seeking a stay must do more than simply claim the trial court got it wrong; it must present a good faith argument that substantial doubt exists over the trial court's decision.”). Plaintiff alleges this case is a close call and offers four arguments in support of its alleged strong or substantial case on the merits. This Court has closely reviewed the arguments presented by Plaintiff’s Motion and has additionally reviewed its Memorandum and Order in whole. After such review, this Court holds Plaintiff fails to demonstrate a strong or substantial case on the merits, and accordingly that its Motion to Stay must be denied. A. J&J’s Registration Status with the Spanish Registro Mercantil and Spanish “W” Tax Number Plaintiff argues that the Government, and this Court, erred in deeming J&J a responsible contractor because J&J allegedly failed to (1) register with the Spanish Registro Mercantil or (2) obtain a proper Spanish “W” tax number during the procurement process. Mot. at 10–19. Plaintiff asserted the identical arguments, however, in its MJAR, and this Court addressed and ultimately rejected such arguments. See Newimar, 160 Fed. Cl. at 124–28. Plaintiff’s arguments on the Registro Mercantil and the Spanish “W” tax number were rejected on two unique bases. Id. First, Plaintiff waived these arguments by asserting them for the first time in its reply brief. See id. at 124. Second, this Court held that even if such contentions were not waived, Plaintiff’s arguments would still be unavailing on the merits. Id. at 124 n.13 (citing Qwest Gov’t Servs., Inc. v. United States, 112 Fed. Cl. 24, 36–37 (2013)). Assuming arguendo that such arguments were not waived, the Court ultimately concluded compliance with the Spanish Registro Mercantil registration requirements and the Spanish “W” tax number constituted “contract administration matter[s] beyond this Court’s bid protest jurisdiction.” Id. at 125. 10 1. Waiver As noted, this Court held that Plaintiff waived its arguments on J&J’s Registro Mercantil registration status and the Spanish “W” tax number by failing to raise these arguments until its reply brief. Id. at 124. Plaintiff marginally addresses the waiver issue in its briefing for the present Motion to Stay, 5 vaguely pointing to arguments made in Plaintiff’s appellate brief to conclude that “there is a substantial likelihood that the Federal Circuit overrules the Court’s holdings on waiver as well as Newimar’s substantive arguments.” Pl.’s Reply at 4. Yet, Plaintiff’s argument is conclusory and does not explain how its waiver arguments support a strong or substantial case on the merits here or why the Federal Circuit would likely overrule this Court’s prior waiver determination. See id. Further, Plaintiff does not distinguish clear Federal Circuit precedent holding issues initially raised on reply before a trial court are waived. See Stauffer v. Brooks Bros. Grp., Inc., 758 F.3d 1314, 1322 (Fed. Cir. 2014) (citing Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1295–96 (Fed. Cir. 2009)) (appellant waived arguments initially raised in reply brief before the district court); Novosteel S.A. v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1273– 74 (Fed. Cir. 2002) (holding that appellant waived argument raised for the first time in a reply brief before the district court). This Court properly considered the Federal Circuit’s Novosteel decision in its May 12, 2022 Memorandum and Order and accordingly deemed Plaintiff’s arguments procedurally waived. Newimar, 160 Fed. Cl. at 124. 2. Merits As noted, even if Plaintiff had not waived its arguments concerning Spanish registration requirements, Plaintiff’s arguments would still fail on the merits. Plaintiff contends this Court 5 Plaintiff only addressed the Court’s waiver holding in its reply in support of its Motion to Stay, not in its initial Motion. See Pl.’s Reply at 4. 11 failed to adequately consider emails between the Navy and J&J which discuss Spanish registration requirements. See Mot. at 15–16. In its Memorandum and Order, however, this Court considered the full Administrative Record and the express terms of the Revised Solicitation and Amendment 0008, which were clear and unambiguous. Newimar, 160 Fed. Cl. at 119–20, 125–27. This Court accordingly held that the deadline for submission of requisite permits and licenses by the awardee was “[p]rior to the start of performance,” consistent with the Revised Solicitation and applicable law. Id. at 125–27 (internal quotations omitted). Far from suggesting an inadequate perusal of the Administrative Record, the Court’s May 12, 2022 Memorandum and Order explains in detail that the Government properly excluded consideration of these Spanish registration requirements from its responsibility assessment; simply put, the clear terms of the Revised Solicitation and Amendment 0008 did not require bidders to prove satisfaction of the registration requirement at the time of bid-submission. See id. at 125 (quoting Advanced Am. Constr., Inc. v. United States, 111 Fed. Cl. 205, 223 (2013)) (“Requirements that ‘are not required to be satisfied by the contractor until after the contract is awarded’ are therefore not considered responsibility requirements.”). Additionally, Plaintiff also reiterates concerns over the alleged significance of the Navy’s consideration of guidance from the U.S. Section of the Permanent Committee on the necessity of meeting Spanish registration requirements under the Agreement on Defense Cooperation (ADC). Mot. at 14–15. As explained in this Court’s Opinion, after the Spanish Section of the Permanent Committee objected that J&J had not yet registered with the Registro Mercantil, the U.S. Section of the Permanent Committee clarified that registration with the Registro Mercantil was not a prerequisite to awarding a contract under a solicitation. Newimar, 160 Fed. Cl. at 119 (citing AR 14789–91) (emphasis added). Instead, any awardee under the solicitation would need to have such 12 a license prior to the start of performance. Id. (emphasis added). The Navy appropriately relied on this clarification, and this Court remains unpersuaded by Plaintiff’s Motion to Stay that its holding is incorrect. Id. Finally, Plaintiff contends that this Court ignored important parts of the Administrative Record and incorrectly “conclude[ed] that the Navy could substitute the U.S. Section’s analysis under the limited vetting process for its own duty to affirmatively determine compliance” with all Responsibility criteria. Mot. at 19. As explained in this Court’s Opinion, this Court lacks jurisdiction to address any alleged non-compliance with the ADC or the specific “allegation that the Spanish Section [of the Permanent Committee] did not approve J&J as an offeror” due to J&J’s registration status at that time. Id. at 127–28. Those arguments “depend on interpretation of a specific provision of [the ADC] rather than anything in the Revised Solicitation.” Id. Because these arguments “derive[] [their] existence so exclusively and substantially” from the ADC, an “executive agreement that operates ‘in the framework of the North Atlantic Treaty,’” this Court lacks jurisdiction to consider these arguments at all. Id. (quoting the ADC, ch. 1, art. I, ¶ 1). This Court, therefore, exercised judicial restraint in declining to address Plaintiff’s arguments pertaining to the ADC. Again, the Court is unpersuaded by Plaintiff’s Motion. This Court reviewed its holding and analysis anew in considering Plaintiff’s Motion. The Opinion includes a thorough analysis of the Administrative Record and reflects that the Court correctly rejected, on two separate bases, Plaintiff’s merits argument that J&J was not qualified to be the awardee due to an alleged failure to meet the Spanish registration requirements. In sum, Plaintiff’s Motion to Stay rehashes unpersuasive arguments concerning Spanish registration requirements and does not demonstrate a strong or substantial case on the merits that would warrant the requested relief. 13 B. Undisclosed Evaluation Criterion Plaintiff disagrees with the Court’s holding that the Navy did not evaluate offers using an undisclosed criterion, specifically a criterion concerning the number of previously performed projects. See Mot. at 20–22. Again, Plaintiff’s Motion expresses discontent with the Court’s ruling but ultimately offers no new or compelling facts or law that could amount to a strong or substantial case on the merits. For example, the Revised Solicitation allowed the Navy to evaluate the “depth and breadth” of offerors’ relevant experience. Newimar, 160 Fed. Cl. at 129. Plaintiff contends in its Motion that the Court erred in interpreting the term “breadth” to connote numerosity, thereby finding the Navy properly considered the number of offerors’ past projects. Mot. at 20–21; see Newimar, 160 Fed. Cl. at 129. Yet, Plaintiff cannot present a strong or substantial case on the merits simply by expressing disagreement with this Court’s reasoning below; it must instead explain why the Federal Circuit would also likely disagree with this Court’s holding. See Obsidian Sols. Grp., 2021 WL 1688892, at 4. It has not done so. Further, as this Court noted, “[a]gencies have ‘great discretion in determining the scope of an evaluation factor.’” Newimar, 160 Fed. Cl. at 128 (quoting Maint. Eng’rs v. United States, 50 Fed. Cl. 399, 415 (2001)). For Plaintiff to succeed on the merits related to this issue, it must demonstrate, inter alia, that the agency used a “significantly different basis in evaluating the proposals than was disclosed.” Id. (quoting Harmonia Holdings Grp., LLC v. United States, 153 Fed. Cl. 245, 255 (2021)). Beyond making a few conclusory statements to this point, Plaintiff’s Motion fails to meet this burden. This Court also rejected Plaintiff’s argument that the Navy’s contract award involved undisclosed evaluation criterion because, even if true, Plaintiff suffered no prejudice. Id. at 131- 32. It is well-established that to succeed in a bid protest, a plaintiff must demonstrate that it suffered prejudice; namely that there was a “substantial chance it would have received the contract award but for [the Government’s] error.” Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 14 380 (2003) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed Cir. 1999)) (internal quotations omitted); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996) (alteration in original) (emphasis in original) (internal quotations omitted) (quoting C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1574–75 (Fed. Cir. 1983)) (“To establish competitive prejudice, a protester must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award—that it was within the zone of active consideration.”). Plaintiff’s Motion briefly discusses its concerns with this Court’s lack of prejudice holding but does not clarify why the holding was incorrect. Mot. at 22. Plaintiff merely makes the conclusory statement that because the procurement involved “only two bidders that were weighted equally on all the listed factors, the use of the undisclosed factor was clearly instrumental in J&J receiving the contract award . . . .” Mot. at 22. Plaintiff’s position, however, ignores the Administrative Record, which indicates that while the contractors received the same adjectival ratings across all four evaluation factors, the Government identified several significant advantages in J&J’s proposal that justified the award. Newimar, 160 Fed. Cl. at 131–32. In addition, J&J’s proposal offered a lower price, and the Revised Solicitation dictated “[t]he importance of price [would] increase if the Offerors’ non-price proposals [were] considered essentially equal in terms of overall quality.” Id. at 132 (citing Tab 50 at AR 10723, 10730–31). Thus, for the reasons explained in the Court’s Opinion, Plaintiff would have lost the award, regardless of whether the Government had considered the alleged unstated evaluation criterion. Id. Accordingly, even if the Federal Circuit were to agree with Plaintiff that the Government had applied an unstated evaluation criterion, for the reasons stated above and in this Court’s Memorandum and Order, Plaintiff nevertheless would be unsuccessful on the merits of its undisclosed criterion argument because it has failed as a matter of law to sufficiently demonstrate 15 prejudice stemming from the use of the criterion. Plaintiff’s argument concerning an unstated evaluation criterion, therefore, does not raise a strong or substantial case on the merits. C. Unbalanced Pricing Analysis and Consideration of ELINs Plaintiff argues that the Court erred in deeming the Navy’s unbalanced pricing analysis reasonable. Mot. at 22–27. Plaintiff’s Motion, once again, simply rehashes arguments this Court has already rejected. See Newimar, 160 Fed. Cl. at 139–41. A movant does not present a strong or substantial case on the merits when it “simply reiterates its objections to the [Government’s] decision and the Court’s denial of judgment on the administrative record in Plaintiff’s favor.” ACI Techs., 162 Fed. Cl. at 47. This is particularly true where, as here, the bid protest was a “routine” challenge to the agency’s evaluation and the issues “before the Court were neither ‘novel [n]or close.’” See id. (quoting Acrow Corp., 97 Fed. Cl. at 184). This Court engaged in a thorough review of the Government’s unbalanced pricing analysis. Newimar, 160 Fed. Cl. at 139–41. In reviewing the Navy’s methodology, this Court appropriately noted its role was “not to test whether there is a better, faster, or otherwise more correct way to analyze unbalanced pricing; rather it [was] the Court’s task to determine whether the Navy’s unbalanced pricing analysis is reasonable and its conclusions rational.” Id. at 139 (quoting IAP World Servs., Inc. v. United States, 153 Fed. Cl. 564, 567 (2021)). Acknowledging that an agency’s methodology is “a matter within the sound exercise of the agency’s discretion,” id. at 141 (quoting Logistics Health, Inc. v. United States, 154 Fed. Cl. 51, 85 (2021)), the Court limited its inquiry to “whether there is any statutory or regulatory provision that precludes [the adopted methodology].” Id. at 139–140 (quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1333 16 (Fed. Cir. 2009)). 6 Ultimately, Plaintiff failed to identify a single law or regulation prohibiting the pricing analysis technique the Navy adopted and has still yet to do so. 7 Id. at 140. The Court also specifically addressed and rejected Plaintiff’s assertion that the terms of the Revised Solicitation, the FAR, and relevant case law mandated an unbalanced pricing analysis at the exhibit line item number (ELIN) level. Id. This Court interpreted the definition of “line item” as employed in FAR § 2.101 and the Revised Solicitation, confirmed ELINs did not meet the stated definition, and held accordingly that the Navy’s unbalanced pricing analysis was reasonable and not contrary to law. Id. Plaintiff’s objections to the Court’s holding, therefore, amount to nothing more than a difference of opinion on statutory interpretation and do not raise a strong or substantial case on the merits. See Mot. at 24–25. 6 Plaintiff argues that this Court misapplied Tyler Construction Group v. United States, stating the standard articulated in the case is limited to a “far more specific determination restricted to IDIQ contracts for construction procurement.” Mot. at 22–23 (citing 570 F.3d 1329, 1333 (Fed. Cir. 2009)). Plaintiff raised this argument previously in its MJAR to no avail, and it proves equally unsuccessful here. Indeed, the U.S. Court of Federal Claims has previously applied the Tyler Construction standard to evaluate an agency’s unbalancing analysis. See, e.g., IAP, 153 Fed. Cl. at 569. Similarly, this Court did not err in applying the same standard to consider the Government’s unbalancing analysis in this bid protest. Plaintiff’s Motion does not raise a strong or substantial case on this basis that would merit a stay or injunctive relief. 7 Plaintiff points to Academy Facilities Management v. United States to argue that the Navy has previously considered ELINs to constitute “line items” for the purpose of unbalanced pricing analyses. See Mot. at 26 (citing 87 Fed. Cl. 144, 543–54 (2009)). As an initial matter, “this Court is not bound by the decisions of other judges on the Court of Federal Claims.” Almanza v. United States, 136 Fed. Cl. 290, 296 (2018). Further, presenting a single case demonstrating that an unbalanced pricing analysis may occur at the ELIN level does not establish that every unbalanced pricing analysis must occur at the ELIN level. Indeed, and as this Court noted, other U.S. Court of Federal Claims decisions have approved the use of unbalanced pricing methodologies examining CLIN-level pricing. See Newimar, 160 Fed. Cl. at 140 (citing IAP World Servs., 153 Fed. Cl. at 567–72) (endorsing the Navy's assessment of unbalanced pricing at the CLIN level, rather than the ELIN level, in a fixed-price procurement). The Navy had discretion to choose how to perform its unbalanced pricing analysis for this procurement, including the choice to analyze at the CLIN level, so long as the chosen methodology was reasonable. See Logistics Health, 154 Fed. Cl. at 83–86. Plaintiff’s reliance on Academy Facilities Management is uncompelling. 17 D. Plaintiff’s Successful Prior Protest of the Original Solicitation Perhaps most unconvincingly, Plaintiff suggests its previous, successful protest of the Original Solicitation “weighs in favor of the likelihood of Newimar’s success on the merits.” Mot. at 27. Plaintiff’s prior protest of a solicitation that was later amended has no bearing on Plaintiff’s likelihood of success on the merits in this appeal. Indeed, Plaintiff’s initial protest of the Original Solicitation was based on distinct grounds than those considered in this Court’s May 12, 2022 Memorandum and Order concerning the Revised Solicitation. Plaintiff’s Motion does not provide this Court with any reason to grant the requested relief on this basis. III. Plaintiff’s Alleged Irreparable Harm in the Absence of Injunctive Relief Does Not Outweigh Harms to the Government and J&J As Plaintiff failed to present a strong or substantial case on the merits, Plaintiff’s Motion could be denied absent consideration of the relative harms to the parties. See HVF West, 148 Fed. Cl. at 57 (noting that “the first factor—likelihood of success or, at a minimum, substantial case— is essential,” so harm to the movant is irrelevant if the movant fails to demonstrate a case on the merits). Nevertheless, even if Plaintiff could demonstrate a strong or substantial case on the merits, the balance of hardships between Plaintiff, the Government, and J&J still points decidedly against granting Plaintiff’s Motion. A. Plaintiff’s Harm A movant’s “burden of showing irreparable harm in this context is steep.” Obsidian Sols. Grp., 2021 WL 1688892, at 4. Any injury alleged must be “both certain and great,” and the movant must convey that the hardship will have an “immediate and substantial impact.” ACI Techs., 162 Fed. Cl. at 48 (internal quotations and citations omitted). “No federal contractor has a right to maintain its incumbency in perpetuity,” and the loss of an incumbent contract does not, on its own, constitute irreparable harm. CRAssociates, 103 Fed. Cl. at 26; see also G4S Secure 18 Integration, 159 Fed. Cl. at 262 (same proposition). The movant, therefore, must allege harms beyond those “any incumbent would experience upon the loss of a successor contract,” as losing a contract, even an important contract, is a risk that every incumbent contractor faces. CRAssociates, 103 Fed. Cl. at 26; see NetCentrics Corp. v. United States, 145 Fed. Cl. 371, 377 (2019) (quoting Navient Sols., LLC v. United States, 141 Fed. Cl. 181, 185 (2018)) (“NetCentrics's ‘financial strain,’ like that of any incumbent contractor that is unsuccessful in a new competition, ‘is the unavoidable result of its [contract] coming to an end.’”). Courts consider economic loss as evidence of irreparable harm if it “threatens the survival of a movant’s business.” Obsidian Sols. Grp., 2021 WL 1688892, at 4 (quoting Sierra Mil. Health Servs., Inc. v. United States, 58 Fed. Cl. 573, 582 (2003)). Yet, the movant must provide facts or evidence to support its assertions of harm and cannot rely only “on attorney argument to establish irreparable injury.” Id. (quoting Chromalloy San Diego Corp. v. United States, 145 Fed. Cl. 708, 744 (2019)). Plaintiff’s allegations of irreparable harm stem predominately from its dependence on the NAVSTA Rota contract as its main source of revenue. Plaintiff alleges it derives 90 percent of its revenue from the services it provides at NAVSTA Rota, and that 122 of Plaintiff’s 172 employees work exclusively under the bridge contract set to expire on December 31, 2022. Mot. at 27. Plaintiff argues it will face “catastrophic” harm and “may cease to exist” if “forced to halt work after the bridge contract without a decision on appeal.” Id. at 27–28. According to Plaintiff, it could not “financially absorb the costs associated with halting work” or recover any revenue lost between the bridge contract expiration date and the Federal Circuit’s decision. Id. These risks, Plaintiff argues, constitute irreparable harm worthy of injunctive relief pending appeal. 19 Plaintiff’s arguments are unavailing. Plaintiff fails to provide any meaningful evidence to support its contention that it would cease to exist without a stay pending appeal, and, in fact, evidence supports the contrary. 8 Instead, Plaintiff offers conclusory statements and bald assertions by its counsel, without further elucidating how the alleged harms are immediate or certain. See Obsidian Sols. Grp., 2021 WL 1688892, at 4. Further, Plaintiff acknowledges that in addition to the services it provided under the BOS Contract, it previously engaged in several construction 8 Plaintiff’s Motion mischaracterizes the holding in Swift & Staley Inc. v. United States. 159 Fed. Cl. 731 (2022). There, the court noted that a movant demonstrated irreparable harm where the protested contract made up a “significant percentage of [movant’s] revenue,” and the movant would lose its ability to compete without a stay. Id. at 735–36. Far from declaring that “the loss of a government contract constitutes irreparable harm . . . particularly when an incumbent contractor depends on the contract for its survival,” as Plaintiff suggests, the court in Swift & Staley reinforced the notion that the balance of harm must tilt decidedly in the movant’s favor to warrant injunctive relief. Mot. at 28; Swift & Staley, 159 Fed. Cl. at 735–36. That is not the case here, where Plaintiff has provided conclusory and unsupported statements concerning alleged harm. Plaintiff supports its claim of harm with an affidavit — referenced again only in Plaintiff’s Reply in support of the Motion to Stay — from its President. See Pl.’s Aff. This affidavit, however, is almost a year old and does not discuss Plaintiff’s current allegation of harm. Id. at 3 (affidavit executed November 23, 2021). Nor could it. Indeed, the affidavit does not account for intervening events that may minimize Plaintiff’s claimed harm, including the award of a $5 million DOD contract, which, Plaintiff acknowledges, “was not in effect at the time” it initially lodged its protest. Pl.’s Reply at 5. The affidavit’s weight has thus been substantially diluted by the passage of time. In contrast, the Government and J&J have provided recent declarations specifically documenting the robust harms they will experience should this Court grant a stay pending appeal. Plaintiff’s treatment of PDS Consultants, Inc. v. United States is similarly misleading, as Plaintiff ignores significant differences between the facts in PDS Consultants and the circumstances of this case. 133 Fed. Cl. 810 (2017). All parties and the court in PDS Consultants agreed that the movant’s appeal presented a question of first impression and constituted a substantial case on the merits. Id. at 817. As discussed above, the same cannot be said for Plaintiff’s Motion, which fails to allege a likelihood of success on appeal and is vigorously contested. Additionally, only the movant in PDS Consultants alleged any concrete harm that would occur absent a stay pending appeal: the government chose not to enumerate any harms that would occur under a stay, and the court considered the opposing party’s alleged harms highly speculative. Id. at 818. The court’s decision, therefore, did not depend on the percentage of movant’s revenue associated with the contract under protest; instead, the court determined that the evidence before it concerning balance of harms favored the movant. Id. Like the court in PDS Consultants, this Court has analyzed the evidence – as opposed to attorney argument – presented by Plaintiff’s Motion concerning balance of harms and finds in favor of the Government and J&J. 20 projects with the Navy at NAVSTA Rota. Declaration of Antonio Marcos Rodriguez, Newimar President (ECF No. 71-1) (Pl.’s Aff.), ¶¶ 5–9. Yet, Plaintiff fails to explain why, should it lose the BOS contract, Plaintiff could not pursue other similar construction projects in the future. Indeed, the calamitous tone of Plaintiff’s arguments on harm is further belied by the fact that the U.S. Department of Defense awarded Plaintiff a five-and-a-half-year custodial services contract worth over $5 million on June 14, 2022. See Defendant-Intervenor’s Opposition to Plaintiff’s Motion to Stay (ECF No. 70) (J&J’s Resp.) at 25; see Pl.’s Reply at 5 (acknowledging Plaintiff won this new contract). This contract not only ensures that Plaintiff will receive revenue over the next five years, but it also demonstrates that Plaintiff can sign new service contracts going forward. Accordingly, Plaintiff has not demonstrated sufficient irreparable harm to justify a stay or injunctive relief pending appeal. B. The Government’s Harm Unlike Plaintiff, the Government has alleged substantial harms incurred during Plaintiff’s bid protest that would continue under a stay. See Def.’s Aff. Injunctive relief pending appeal is disfavored where it would force the Government to endure additional costs or financial and operational burdens, such as resorting to other, more expensive contracts than the contract award under protest. See, e.g., NetCentrics Corp., 145 Fed. Cl. at 377 (denying an injunction which, if granted, would require the government to pursue six sole-source emergency contracts rather than the single contract award under protest); Sigmatech, Inc. v. United States, 136 Fed. Cl. 346, 354 (2018) (recognizing that an injunction would exacerbate harm to the government when the bid protest had already “delayed the [government’s] ability to obtain lower-priced and better-value services” elsewhere); Akima Intra-Data, LLC v. United States, 120 Fed. Cl. 25, 29 (2015) (denying 21 an injunction that would require the government to “conduct another procurement and incur unwarranted costs”). The Government filed a declaration supporting that it has experienced similar harms. See Def.’s Aff. Since January 2021, the Government and Plaintiff have operated under non- competitive, single-source bridge contracts that were $100,000 to $120,000 more expensive per month than J&J’s proposed pricing under the awarded contract. Id. ¶ 6. The bridge contracts’ price premiums resulted in approximately $2.5 million in additional costs that the Government would not have incurred absent Plaintiff’s protest, and which the Government anticipates will grow if the Court grants Plaintiff’s Motion. Id. ¶¶ 6–7. In this manner, Plaintiff has financially benefitted from its bid protest for nearly two years at the expense of the Government. See G4S Secure Integration, 159 Fed. Cl. at 263–64 (considering whether an incumbent contractor has benefitted from the delay caused by its protest in balancing the harms experienced by each party). Additionally, any negotiation process for a third bridge contract would likely introduce added administrative and financial burdens, as the Government must request special approval for each sole-source contract and procure funding on a more frequent basis than under the contract awarded to J&J. Def.’s Aff., ¶ 9. Furthermore, the Government has demonstrated that under the current bridge contract, Plaintiff is providing the Navy with a narrower scope of services than outlined in its Revised Solicitation and award to J&J. Def.’s Resp. at 9–10. The protested contract added several programs not previously included in the incumbent contract, which the Navy allegedly cannot accommodate under a bridge contract; these include an infrastructure condition assessment program, an inventory management program, and a new work order system for family housing projects. Id. Granting Plaintiff’s Motion would force the Government to procure a third bridge 22 contract and delay implementation of these programs for an additional six to twelve months pending the appeal. Id. Plaintiff’s Motion alleges that its harm far outweighs that experienced by either the Government or J&J because granting the “requested stay would merely maintain the status quo.” Mot. at 28; see Swift & Staley, 159 Fed. Cl. at 735 (granting a stay where the Government “expressed its willingness to maintain the status quo and has demonstrated that it is able to effectively continue operations . . . during the pendency of this litigation”). Yet the addition of these new programs to the Revised Solicitation signaled the Navy’s desire to deviate from the status quo and add new services to NAVSTA Rota, which it cannot efficiently do under a stay or bridge contract. 9 These constitute concrete, substantial harms, supported by evidence before this Court, that are likely to occur if this Court grants Plaintiff’s Motion. C. J&J’s Harm Plaintiff alleges that a stay would not inflict substantial harm on J&J because J&J has “performed no work at the Rota base” to date, and the stay would only delay J&J’s performance until the Federal Circuit issues its decision. Mot. at 29. However, “delay in performing and 9 Plaintiff argues that the “changes clause” incorporated in its bridge contract with the Navy would allow the Navy to alter the processes currently in place at NAVSTA Rota to implement newly desired programs. Pl.’s Reply at 8–9. Plaintiff does not cite to the specific provisions of the bridge contract to which it is referring, so it is difficult for this Court to assess the validity of this argument. See id. Nevertheless, the argument mischaracterizes the Government’s position. The Government does not allege that it cannot contractually implement these changes under a bridge contract. Def.’s Resp. at 10. Instead, the Government merely contends that “due to the significant effort involved in setting up these programs, the Navy cannot effectively add these programs to a short- term bridge contract.” Id. In other words, it would be inefficient for the Government to initiate this process under a bridge contract of limited duration, particularly when the Government already selected an offeror whose proposal offered the Government better value and to whom the Government would later have to transition these processes. The Government and the public have an interest in allowing the Government to “use the more efficient and less expensive contract while the matter is before the court of appeals.” NetCentrics Corp., 145 Fed. Cl. at 378. With respect to these new programs, the Government has demonstrated that its contract with J&J offers the “more efficient and less expensive” alternative. Def.’s Aff., ¶¶ 5–6. 23 profiting from” an awarded contract “weighs against injunctive relief.” G4S Secure Integration, 159 Fed. Cl. at 263 (citing Telos, 129 Fed. Cl. at 579 and CRAssociates, 103 Fed. Cl. at 28). Plaintiff’s stance also ignores the considerable administrative burden that J&J has already endured in preparing to assume the NAVSTA Rota services contract. See J&J’s Resp. at 37–40; Declaration of , Director of International Operations for J&J (ECF No. 70-2) (J&J’s Aff.). J&J has already hired key personnel for the NAVSTA Rota contract, J&J’s Resp. at 37–40; J&J’s Aff., ¶ 9; see Akima Intra-Data, 120 Fed. Cl. at 29 (recognizing harm where the awardee “has already begun hiring key personnel and incurred recruiting, compensation, training, and travel costs”). J&J reasonably contends that these employees “will be caught in limbo” if this Court grants a stay, with no work to do in Spain . J&J’s Resp. at 39; see J&J’s Aff., ¶ 9. Not only would a stay place a heavy toll on J&J, but it also would likely create administrative difficulties for J&J, which would need to determine where to send its employees and how to pay them. J&J’s Resp. at 39; see J&J’s Aff., ¶ 9. J&J’s demonstrated harm, therefore, weighs against issuing a stay pending appeal or injunctive relief. IV. Granting Plaintiff’s Motion Would Subvert the Public Interest Contrary to Plaintiff’s contentions, public interest counsels against granting Plaintiff’s Motion. Plaintiff alleges that public interest favors injunctive relief in this instance, in part, due to Plaintiff’s consistently favorable ratings as the incumbent contractor over the past 25 years. Mot. at 29. Plaintiff also suggests that public interest would disfavor the “wasted effort,” which, it contends, would occur if Plaintiff ultimately won its appeal after the Government had transitioned to another contractor. Id. at 29–30. These arguments are unpersuasive, as they imply that J&J did 24 not represent the “best value” offeror or that the award to J&J was somehow unlawful or improper. This Court already held the Navy’s contract award to J&J proper in its May 12, 2022 Memorandum and Order, and Plaintiff’s Motion has failed to raise any new issues or questions on the merits that meaningfully challenge this Court’s ruling. See Newimar, 160 Fed. Cl. at 121. The Navy concluded that J&J’s proposal represented a better value than Plaintiff’s proposal, and there is “a substantial public interest in allowing the government to proceed with contracts awarded . . . to the contractor offering the best value.” JWK Int’l Corp., 49 Fed. Cl. at 370. Further, the FAR promotes the use of “full and open competition” in government procurements, which cannot occur if the Government continues granting Plaintiff sole-source, non- competitive bridge contracts. See FAR, Part 6; JWK Int’l Corp., 49 Fed. Cl. at 370. As the Government is the opposing party in this matter, the Government’s harms factor into the Court’s assessment of public interest. Nken, 556 U.S. at 435 (“The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party.”). Plaintiff’s bridge contracts have already cost the Government an additional $2.5 million and cannot accommodate the new services the Navy sought in its Revised Solicitation and award to J&J. Def.’s Aff., ¶ 6. The public has an interest in permitting the Government to operate under the most efficient and cost-effective contract that satisfies its services needs during the appellate process. See NetCentrics Corp., 145 Fed. Cl. at 378 (“[T]he public interest would be served by allowing the government to use the more efficient and less expensive contract while the matter is before the court of appeals.”). Furthermore, Plaintiff is the only party that would benefit from a stay. See JWK Int’l Corp., 49 Fed. Cl. at 370 (expressing concern when “the only party to benefit” from granting the requested injunctive relief and further delaying contract performance “would likely 25 be the incumbent contractor”). Ultimately, the public interest does not favor granting Plaintiff a stay or injunctive relief. CONCLUSION For the reasons described above, Plaintiff’s Motion fails to establish that a stay or injunctive relief pending appeal is warranted. Accordingly, this Court DENIES Plaintiff’s Motion for Stay of Judgment Pending Appeal (ECF No. 67). The parties are directed to CONFER and FILE a Notice within three days of this Memorandum and Order, attaching a proposed public version of this Sealed Memorandum and Order, with any competition-sensitive or otherwise protected information redacted. IT IS SO ORDERED. Eleni M. Roumel ELENI M. ROUMEL Judge Dated: November 14, 2022 Washington, D.C. 26	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488301/	Filed 11/21/22 P. v. Carr CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C090713 Plaintiff and Respondent, (Super. Ct. No. 19FE000588) v. RADARRYL CARR, Defendant and Appellant. Defendant Radarryl Carr appeals a judgment entered after a jury found him guilty of negligent discharge of a firearm, being a felon in possession of a firearm, and that he had suffered a prior strike and a prior serious felony conviction. Defendant’s sole contention on appeal is that insufficient evidence supports his negligent discharge of a firearm conviction. We disagree. Nonetheless, our review of the record has disclosed the trial court’s failure to impose mandatory fees per count as required. We will modify the judgment to correct this error and will affirm the judgment as modified. FACTS AND HISTORY OF THE PROCEEDINGS The People’s second amended information charged defendant with felony negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a); count one; statutory 1 section citations that follow are found in the Penal Code unless otherwise stated ) and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count two). The information further alleged defendant had suffered a prior strike (§§ 667 subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and four prior prison commitments (§ 667.5, subd. (b)). At trial, the People presented evidence that on November 27, 2018, the ShotSpotter system alerted to gunshots in South Sacramento at three different times: 10:43 p.m., 11:03 p.m., and 11:32 p.m. The system triangulates gunfire and provides an approximate location of gunfire. When officers responded to the last alert, they saw a black Infinity sedan parked with one person in the driver’s seat and three people near the back of the car. As reflected in dashcam and bodycam footage played for the jury as well as officer testimony, once officers activated the overhead lights on the patrol car, the smallest of the group, who had dreadlocks and was wearing blue jeans and a blue hoodie, fled toward the side fence of 8160 Essen Way. The fleeing person jumped the fence and officers did not follow for safety reasons; they instead requested backup. One officer thought he heard the fleeing person jump the back fence. Officers spoke with the three individuals still at the scene and found that none of them had weapons. One of the three was defendant’s longtime girlfriend, Latisha Collins, who owned and was driving the Infinity sedan. Collins had been out of town that day and had left the Infinity parked on Essen Way. A search of the car revealed paperwork belonging to defendant and a records check yielded a photograph of defendant, which allowed officers to positively identify defendant as the individual who had fled that night. That defendant was the individual in the blue sweatshirt was further confirmed by a photograph from that night discovered on a cell found at the Essen Way location. A later search of the home at 8160 Essen Way and the people at that location, turned up no weapons or ammunition. However, it appeared defendant had been staying 2 there. Moreover, a .40-caliber semiautomatic pistol was recovered from a backyard that shared a fence with 8160 Essen Way. This gun had a single live round in its chamber which was of the same color, brand, and caliber as a live shell and shell casing recovered by authorities near the addresses for the Essen Way alerts. Subsequent investigation of the 11:03 p.m. alert yielded surveillance footage from individuals who lived on Essen way. This footage showed a black sedan similar to the Infinity parked on Essen Way. Two people left the car, and shortly thereafter, the driver’s door opened, and a third person fired a gun into the air. This location corresponded to where officers had recovered one of the .40-caliber shell casings, and the people who had left the car were wearing clothes similar to, and otherwise matched the appearances of, people interviewed following the 11:32 p.m. alert and defendant’s flight. The parties stipulated that defendant had been previously convicted of a felony. Thereafter, the jury found defendant guilty on both charged counts. Prior to defendant’s bifurcated court trial on the enhancement allegations, the court granted defendant’s request to reduce one of his prior felony convictions to a misdemeanor in light of changes brought about by Proposition 47 and further recognized that all one-year prior prison term enhancement allegations were no longer valid in light of other legislative amendments. Thereafter, the court determined defendant had suffered a prior strike and serious felony conviction. Defendant’s sentencing occurred the same day. The trial court denied defendant’s request to reduce his prior strike conviction to a misdemeanor, his request to reduce the current negligent discharge conviction to a misdemeanor, and his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strike and/or prior serious felony conviction. The court also denied defendant’s request for probation and sentenced him to an aggregate prison term of seven years eight months. This term was comprised of the lower term of 16 months for the negligent discharge, doubled because of the prior strike, plus five years for the prior serious felony conviction. The 3 court further imposed a midterm of two years for the possession of a firearm by a felon count but stayed that count in accordance with section 654. The court awarded defendant 277 actual days plus 276 conduct days for a total of 553 days’ custody credits. The court also imposed a $1,000 restitution fine (§ 1202.4), a $1,000 suspended parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment fee (Gov. Code, § 70373), and a $40 court operations assessment fee (§ 1465.8) but declined to impose the discretionary fines and fees from the probation report. The restitution fine and two assessment fees were stayed pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. Defendant timely appealed and appellate briefing in this matter was completed on August 24, 2022. DISCUSSION I The Substantial Evidence Challenge Defendant’s sole contention on appeal is that his actions as proven by the People were insufficient to support the jury’s determination that he committed gross negligence when he fired a gun into the air in a residential neighborhood in the late evening hours of November 27th. In deciding defendant’s sufficiency claim, we are guided by long-established principles. “The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Section 246.3 subdivision (a) provides: “Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by 4 imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.” This offense has three elements: “ ‘(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.’ (People v. Alonzo (1993) 13 Cal.App.4th 535, 538 (Alonzo); see CALCRIM No. 970.)” (People v. Ramirez (2009) 45 Cal.4th 980, 986 (Ramirez); accord People v. Thomas (2011) 52 Cal.4th 336, 363-364.) Defendant’s appellate argument focuses exclusively on the last element. He emphasizes that the only evidence presented by the People was that he fired the gun into the air in the late evening hours and that there was no evidence of individuals other than his friends and family that may have been endangered by his conduct. Moreover, defendant faults the People for failing to present any evidence on “the actual risks of firing a gun in the air late at night when no one was out.” (Italics added.) In so doing, defendant emphasizes the lack of evidence concerning any likelihood of injury or death and contends we must reverse this count and bar retrial given the double jeopardy rule. As mentioned, section 246.3 requires a showing of gross negligence resulting in a risk of great bodily injury or death. (Alonzo, supra, 13 Cal.App.4th at pp. 539-540.) “Gross negligence, as a basis for criminal liability, requires a showing that the defendant’s act was ‘ “such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.” ’ ” (Ibid.) The California Supreme Court has clarified that this requires a showing that “it was reasonably foreseeable that human injury or death might result under the circumstances.” (Ramirez, supra, 45 Cal.4th at p. 990.) We have no difficulty concluding the People presented substantial evidence that defendant’s conduct displayed a “reasonably foreseeable” risk of great bodily injury or death. (Ramirez, supra, 45 Cal.4th at p. 990.) Putting aside defendant’s apparent 5 concession that his friends and/or family were on the street when he fired the gun, as recognized by the California Supreme Court, section 246.3 does not require the prosecution to prove that an identifiable person was actually threatened by a defendant’s actions. (Ramirez, at p. 990; see also People v. Torres (2019) 39 Cal.App.5th 849, 857.) Rather, the legislative history associated with section 246.3 shows it was enacted to deter the senseless shooting of firearms in the air, including the risk that errant bullets might penetrate buildings and/or cars and injure innocent individuals. (Ramirez, at pp. 986-988; see also Alonzo, supra, 13 Cal.App.4th at p. 540.) Here, defendant does not dispute that he was recorded on a surveillance camera firing a .40-caliber pistol into the air in a residential neighborhood while at least two other individuals were on the street. Firing a gun into the air in a residential neighborhood is precisely the kind of behavior meant to be addressed by section 246.3. (Ramirez, supra, 45 Cal.4th at pp. 983-984, 990 [10 shots fired from an apartment, three of which struck other apartments]; People v. Torres, supra, 39 Cal.App.5th at p. 857 [shots fired into the air in a residential neighborhood scaring responding officers]; Alonzo, supra, 13 Cal.App.4th at pp. 537-538 [shots fired into the air at 2:00 a.m. in busy commercial area].) As such, defendant’s sufficiency challenge fails. II The Unauthorized Sentence Our review of the record has disclosed that the trial court imposed a $40 court operations assessment fee (§ 1465.8) and a $30 criminal conviction assessment fee (Gov. Code, § 70373) only once. However, because defendant was convicted of two counts, the trial court was required to impose the $40 court operations assessment fee (§ 1465.8) and the $30 court operations assessment fee (Gov. Code, § 70373) two times. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [Gov. Code, § 70373]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 [§ 1465.8].) We will correct the trial 6 court’s failure to impose these mandatory sentence choices. (People v. Smith (2001) 24 Cal.4th 849, 853-854 [Court of Appeal may correct errors associated with mandatory sentencing choices without the need to remand for further proceedings].) However, consistent with the trial court’s actions, we also will stay them. DISPOSITION The judgment is modified to reflect the imposition of two $30 criminal conviction assessment fees (Gov. Code, § 70373) and two $40 court operations assessment fees (§ 1465.8). These fees are stayed in accordance with the trial court’s prior order. The trial court shall prepare an amended abstract of judgment reflecting these changes and shall further take care to accurately record defendant’s two year eight-month prison sentence in section No. 1. The trial court shall forward a certified copy of that document to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified. HULL, Acting P. J. We concur: DUARTE, J. KRAUSE, J. 7	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488295/	Filed 11/21/22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada) ---- DARRELL L. HOLT, C091636 Plaintiff and Appellant, (Super. Ct. No. CU18-082951) v. CHARLES BROCK et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Nevada County, Thomas M. Anderson and S. Robert Tice-Raskin, Judges. Affirmed. Gavrilov & Brooks, Ognian Gavrilov, Sheila Wirkus Pendergast, and Eliezer M. Cohen for Plaintiff and Appellant. Carlson Law Group, Mark C. Carlson, Anne M. Watson, Nathan M. Kelfer, and Steven T. Knuppel for Defendants and Respondents. 1 The trial court in an action to partition real property appointed defendant Charles Brock, a real estate broker, to determine the listing price and sell the property. Plaintiff Darrell L. Holt, one of the real property’s owners, brought this action contending Brock violated fiduciary duties and committed other torts in the performance of his court- appointed role. The trial court granted summary judgment in favor of Brock, concluding he was protected under quasi-judicial immunity. We affirm the judgment. UNDISPUTED FACTS AND HISTORY OF THE PROCEEDINGS In 2003, Plaintiff and his sister, Darice Harlan each inherited a 50 percent share of real property in Nevada City. Plaintiff created the Holt Family Trust naming himself as trustee, and in 2013 transferred ownership of his share of the property into the trust. Darice and her husband, Duane Harlan (collectively the Harlans) filed an action in 2014 to partition the property. (Harlan v. Holt (Super. Ct. Nevada County, 2016, No. CU14-080702).) The parties were unable to agree to terms of partition. In 2016, the trial court ordered that the property be sold and the proceeds divided equally. The court directed the parties to select a licensed real estate broker to list the property. After the parties could not agree on a broker, the court ordered defendant Brock, a licensed broker with defendant Coldwell Banker Grass Roots Realty (collectively Brock), to list the property. The court ordered the parties to sign all listing agreements and other documents needed to list the property. The terms of the listing were to include an exclusive listing for a period of no less than six months with a broker commission of six percent. The property was to be sold “as is” with a listing price of at least $882,500, the actual listing price to be determined by the broker’s assessment of current market value. 2 The court ordered the parties to complete and submit all documentation the broker deemed necessary to effectuate the sale. The parties were to cooperate and not interfere with the broker’s performance of his duties. The court ordered the broker to provide a summary of the listing and marketing activity to the court and the parties each month. The broker could make recommendations regarding adjustments in the listing terms through the parties’ stipulated agreement or upon a court order. Any sale was subject to confirmation by the court. If any issue arose during the listing which the parties could not resolve, the court would determine the matter through ex parte procedures. The parties signed the listing agreement, with plaintiff signing for the trust on May 4, 2016. The agreement set a listing price of $925,000 cash to the sellers. Before or at the time of signing, plaintiff offered to purchase the property for $1 million and to represent himself if Brock agreed to reduce the commission to three percent or not charge plaintiff the three percent. Brock initially agreed, but on May 5 or 6, and the details are disputed, he informed plaintiff either he could not or would not change the listing agreement. Plaintiff filed an ex parte motion to have Brock removed as the listing agent and broker. The trial court denied the motion. By separate order, the trial court reconfirmed that Brock was authorized and ordered by the court to market and sell the property “in accordance with the terms and for the price he deems appropriate” and as set forth in the court’s original listing order. On July 29, 2016, the trial court appointed a receiver, attorney Stephen Haas, to manage and approve the sale. The court stated, “Due, in part, to the nature of the relationship between the parties and the expressed desire of one party to purchase the property, the appointed broker has been placed in a difficult situation.” The court instructed the receiver “to assume management of the property at issue in order to 3 facilitate the sale of the property. Mr. Haas will be the sole and final authority on management of the property pending sale and the sole authority [f]or approval and sale of the property.” The court specifically authorized the receiver to execute all documents necessary to convey the Holt Family Trust’s interest in the property to a buyer. On August 16, 2016, plaintiff submitted a formal offer to purchase Darice’s 50 percent share of the property for $462,500 (one-half of the listed $925,000 sale price). The offer’s terms were $100 down with the remainder of the purchase price to be financed. About one week later, the Harlans submitted a formal offer to purchase the Holt Family Trust’s interest in the property and certain personal property for $475,000. The offer was an all-cash offer, with a $10,000 deposit and the remainder to be paid into escrow. The receiver accepted the Harlans’ offer. In his opinion, plaintiff’s offer was not commercially reasonable, but the Harlans’ offer exceeded the property’s fair market value and was commercially reasonable. Brock obtained a back-up offer for the entire property in the amount of $1 million. The receiver used this later offer to enhance his negotiating position with the Harlans. Escrow closed on September 27, 2016. Plaintiff filed this action against Brock on May 31, 2018. The trial court granted in part a motion by Brock for judgment on the pleadings with leave to amend. Plaintiff filed a first amended complaint, which is the operative pleading. He alleged causes of action for breach of fiduciary duty, breach of contract, negligence, and intentional infliction of emotional distress. He contended that Brock, among other things, breached his agreement to sell the property to plaintiff at a discounted commission, undervalued the property, and unreasonably sold the property for a price lower than plaintiff had offered. Brock filed a motion for summary judgment or alternatively summary adjudication. The trial court granted summary judgment. The court ruled that Brock was 4 entitled to quasi-judicial immunity against plaintiff’s claims for damages. Acting under court appointment, Brock was fulfilling quasi-judicial functions integral to the judicial process in the underlying partition action and as an arm of the court. His role was indispensable in bringing the partition action to an equitable conclusion. The court noted that at least one federal district court in an unreported decision had granted quasi-judicial immunity to a real estate broker appointed by the court to dispose of the litigants’ property. (See Kramer v. Dane (E.D.N.Y., Sept. 19, 2018, No. 17-CV-5253 (JFB) (SIL)) 2018 U.S. Dist. Lexis 160240, at 9-10; 2018 WL 4489284, at 4.) The trial court also relied on policy reasons to support its decision. Qualified persons might not ever agree to judicial appointments if their exposure to liability would be greater than the fee they would receive for accepting the appointment. Sufficient accountability was imposed on court-appointed brokers by limiting immunity to acts within the scope of the broker’s authority, subjecting the broker to trial court supervision, and subjecting the trial court’s decision to appellate review. DISCUSSION Plaintiff contends the trial court erred in granting summary judgment. He claims that Brock (1) in violation of the Rules of Court, did not identify quasi-judicial immunity as an affirmative defense in his notice of motion or his separate statement of undisputed facts; and (2) was not entitled to quasi-judicial immunity because that immunity is available only to persons who function in a judicial role or as neutrals in an attempt to resolve disputes, not Brock who acted as an advocate and fiduciary for plaintiff. Plaintiff further contends (3) we should not affirm the judgment on the grounds Brock raised for summary adjudication, as material issues of disputed fact exist concerning each cause of action. 5 I Standard of Review “We review an order granting summary judgment de novo, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [].) “A defendant moving for summary judgment must show ‘that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.’ (Code Civ. Proc., § 437c, subd. (p)(2).) ‘In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.’ (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [].) We accept as true both the facts shown by the losing party’s evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 [].) “Summary judgment is appropriate only when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.) 6 II Rules of Court Violations Rule 3.1350 of the California Rules of Court requires a party moving for summary judgment to identify in its separate statement of undisputed material facts each affirmative defense to be raised in the motion. (Cal. Rules of Court, rule 3.1350(d)(1).) If the party moves for summary adjudication of issues, any affirmative defense must be stated specifically in the notice of motion and be repeated in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350(b).) Plaintiff contends the trial court erred in granting summary judgment because Brock did not identify quasi-judicial immunity as an affirmative defense in his separate statement of undisputed facts and his notice of motion. Plaintiff argues the omissions caused a due process violation, as no material facts were identified to support adjudication of the defense. As a result, Brock did not meet his burden on summary judgment to show that undisputed facts supported each element of the affirmative defense. “[T]he court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) The evidence in the record indicates the trial court did not abuse its discretion by granting summary judgment despite the procedural violations. Plaintiff did not raise this procedural issue before the trial court either in his written opposition to the motion or at oral argument. Instead, he argued against quasi- judicial immunity on the merits. The trial court ruled on the defense based on undisputed relevant facts and prior court rulings which were subject to judicial notice. There is no evidence plaintiff was not aware of the affirmative defense, was not given an opportunity to address the defense on its merits, or was impaired by the procedural defect from marshalling evidence of disputed facts. 7 Plaintiff asserts that the procedural defect caused a due process violation because “no material facts were identified to support adjudication of the affirmative defense.” We disagree. As we will explain below, the trial court’s orders authorizing and ordering Brock to list the property at a price he determined and requiring the court to approve any sale—all undisputed facts—were sufficient to determine the issue of quasi-judicial immunity as a matter of law. Indeed, at the hearing on the motion, plaintiff’s counsel effectively admitted there were no disputed material facts on the issue of quasi-judicial immunity. When the trial court at the hearing asked plaintiff’s counsel if there were any disputed facts on the issue of quasi-judicial immunity, counsel correctly stated that “[t]he only issues that really deal with quasi-judicial immunity are whether [Brock] was appointed and what his role would be in the process.” Counsel stated he did not know if there were “major” disputes on those issues, but “there were some back and forth in the separate statement about what exactly Mr. Brock’s role was vis-à-vis what the Court told him to do.” When the court pressed counsel again for any disputed material facts on the issue, counsel repeated only that there were disputes regarding the scope of the trial court’s orders. The partitioning court’s orders, however, were not ambiguous. Because plaintiff argued against the affirmative defense of quasi-judicial immunity on its merits and did not show how the procedural defect impaired his ability to oppose the defense, the trial court did not abuse its discretion by granting summary judgment despite violations of California Rules of Court, rule 3.1350. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1020 [no abuse of discretion where plaintiff did not explain how the alleged deficiency in the defendant’s separate statement impaired his ability to demonstrate that material facts were in dispute]; Truong v. Glasser, supra, 181 Cal.App.4th at p. 118 [no abuse of discretion in not denying summary judgment motion for violations of rule 3.1350 where facts critical to 8 the ruling were adequately identified, and plaintiffs did not explain how the procedural violations impaired their ability to marshal evidence of disputed material facts].) III Quasi-judicial Immunity Plaintiff contends that Brock does not qualify for quasi-judicial immunity. He argues that quasi-judicial immunity is available only to persons who function as neutrals in an attempt to resolve disputes or perform other judicial acts on behalf of the court. No reported California opinion has extended quasi-judicial immunity to court-appointed real estate brokers, and plaintiff asserts that in this instance, Brock did not execute a duty normally performed by a judge or attempt to resolve a dispute as a neutral. Plaintiff claims that Brock “undertook an ordinary commercial transaction as an advocate for his joint seller clients.” The listing agreement created an agency relationship in which Brock acted for the sellers to sell the property for the highest possible price, owed fiduciary duties to them, and relied upon their exercise of ultimate authority to set the listing price and sell the property. Brock was required to advocate for their interests in selling the property and could not act independently from their instructions. Plaintiff asserts that the court’s appointment of Brock did not change the standard of care or abrogate the duties Brock owed to the sellers. Quasi-judicial immunity is an extension of the doctrine of judicial immunity. Judicial immunity bars civil actions against judges for acts they perform in the exercise of their judicial functions. (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851 (Howard).) The immunity applies to all judicial determinations, “including those rendered in excess of the judge’s jurisdiction, no matter how erroneous or even malicious or corrupt they may be,” except when the judge acts in the clear absence of all jurisdiction. (Ibid.) Two policies support the doctrine of judicial immunity. The doctrine protects the finality of judgments and discourages inappropriate collateral attack. (Howard, supra, 9 222 Cal.App.3d at p. 852.) The doctrine also “ ‘protect[s] judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. [Citation.]’ [Citation.] With respect to the latter reason, the immunity is necessary in order to have an independent and impartial judiciary. The public is best served when its judicial officers are free from fear of personal consequences for acts performed in their judicial capacity.” (Ibid.) Quasi-judicial immunity extends judicial immunity “to persons other than judges if those persons act in a judicial or quasi-judicial capacity.” (Howard, supra, 222 Cal.App.3d at pp. 852-853.) The Howard court explained and held that quasi- judicial immunity exists for at least three classes of persons who are not judges. A first class of persons entitled to quasi-judicial immunity includes persons who perform functions normally performed by a judge, or who act in a judicial or quasi- judicial capacity. (Howard, supra, 222 Cal.App.3d at pp. 852-853.) Such persons include court commissioners acting as temporary judges or performing subordinate judicial duties ordered by the court, administrative hearing officers, arbitrators, organizations sponsoring an arbitrator, referees, prosecutors, and officials of the State Bar and the Committee of Bar Examiners. (Id. at p. 853; Regan v. Price (2005) 131 Cal.App.4th 1491, 1495 [referee].) This class also includes public officials who are connected with the judicial process through investigating crimes and instituting criminal proceedings. These persons include law enforcement officers, prosecutors, grand jurors, a building inspector charged with investigating an alleged violation of a building ordinance, a deputy fire marshal charged with investigating fires, and an assistant city engineer whose duties include the investigation of particular crimes. (Howard, supra, 222 Cal.App.3d at pp. 854-855; White v. Towers (1951) 37 Cal.2d 727, 730-732.) When determining whether a person is acting in a judicial or quasi-judicial capacity, courts look at the nature of the duty performed to determine whether the act is a 10 judicial act, not the name or classification of the person who performed it. (Howard, supra, 222 Cal.App.3d at pp. 853-854.) As with judges, immunity is necessary for these persons to perform their function independently and impartially. (Id. at p. 853.) A second class of persons entitled to quasi-judicial immunity includes persons who function apart from the courts but are engaged in neutral dispute resolution. (Howard, supra, 222 Cal.App.3d at pp. 858-859.) In addition to arbitrators and referees, such persons include persons conducting less-traditional alternative dispute resolution procedures such as volunteers working with a court through a local bar association who conduct voluntary settlement conferences, and party-selected mediators and “neutral fact- finders.” (Id. at p. 858.) These alternative methods of dispute resolution have become critical to the proper functioning of increasingly congested trial courts. (Ibid.) The justification for granting quasi-judicial immunity to persons in the other classes “applies with equal force to these neutral persons who attempt to resolve disputes.” (Id. at p. 859.) That neutral dispute resolution providers are retained privately and have duties to their clients does not preclude quasi-judicial immunity from protecting them. Rather, immunity is appropriate because these persons do not advocate for their clients. “The job of third parties such as mediators, conciliators and evaluators involves impartiality and neutrality, as does that of a judge, commissioner or referee; hence, there should be entitlement to the same immunity given others who function as neutrals in an attempt to resolve disputes.” (Howard, supra, 222 Cal.App.3d at p. 860.) A third class of persons entitled to quasi-judicial immunity includes persons connected to the judicial process who are not public officials, arbitrators, or referees but who serve functions integral to the judicial process and act as arms of the court. (Howard, supra, 222 Cal.App.3d at pp. 855-857.) This class includes (1) persons appointed by the courts for their expertise, such as mediators, guardians ad litem, therapists, receivers, Probate Code court investigators, custody evaluators, and bankruptcy trustees; and (2) persons not appointed by the courts but whose work product 11 comes into the judicial process to be used by the courts, such as probation officers who prepare presentencing reports and social workers and psychiatrists involved in terminating parental rights. (Ibid.; Bergeron v. Boyd (2014) 223 Cal.App.4th 877, 885- 889 [court appointed custody evaluator]; McClintock v. West (2013) 219 Cal.App.4th 540, 550-552 (McClintock) [guardian ad litem]; Fisher v. Pickens (1990) 225 Cal.App.3d 708, 712-715 [court investigator].) These persons fulfill quasi-judicial functions “ ‘intimately related to the judicial process.’ ” (Howard, supra, 222 Cal.App.3d at p. 857, quoting Myers v. Morris (8th Cir. 1987) 810 F.2d 1437, 1466-1467.) Without immunity, these persons “will be reluctant to accept court appointments or provide work product for the court’s use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs.” (Howard, at p. 857.) In marketing the property, Brock was not performing functions normally performed by a judge, nor was he engaging in neutral dispute resolution. He was, however, appointed by the court for his expertise to carry out the court’s order to sell the property. Mere appointment by the court is insufficient to establish quasi-judicial immunity. “The doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Accordingly, the ‘touchstone’ for the doctrine’s applicability has been ‘performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.’ [Citation.] When judicial immunity is extended to officials other than judges, it is because their judgments are ‘functionally comparable’ to those of judges—that is, because they, too, ‘exercise a discretionary judgment’ as a part of their function.” (Antoine v. Byers & Anderson, Inc. (1993) 508 U.S. 429, 435-436 [113 S.Ct. 2167, 2171; 124 L.Ed.2d 391, 399-400], fn. omitted [function performed by court reporters not entitled to quasi-judicial immunity].) 12 In the unique situation before us, the court’s listing orders did more than merely appoint Brock to sell the property. They vested an element of discretionary authority in Brock to assist the court in resolving the dispute between plaintiff and his sister Darice. In plaintiff’s words, Darice brought the partition action in 2014 because he and Darice were “at a standstill” over what to do with the property. Because the “impasse” remained unresolved more than a year later, the trial court ordered the property to be sold and the parties to select a real estate broker to market and sell the property. The parties could not agree on a broker, so the court selected one for them. Contrary to plaintiff’s characterization, Brock did not “under[take] an ordinary commercial transaction as an advocate for his joint seller clients.” He was ordered by the court to market the property as part of a partition action. And to effectuate the partition, the court gave Brock limited discretionary authority to resolve a key dispute between the sellers, the very disagreement that likely led to the partition action—the property’s value. Under the court’s original listing order, the actual listing price was to be determined by Brock’s assessment of current market value. By separate order, the trial court confirmed that Brock was authorized to market and sell the property “in accordance with the terms and for the price he deems appropriate . . . .” (Italics added.) In other words, the sellers had disputed the property’s value which led to the partition action, and the trial court vested the determination of the property’s fair market value and sales price with Brock notwithstanding disagreement by or between the sellers. By determining the sales price, Brock resolved the principal dispute between the sellers. In a sense, Brock also served as an agent of the court with limited authority. The court, and not the sellers, set Brock’s commission rate. Brock was authorized to adjust the listing terms upon a court order and without the sellers’ stipulation. The court required Brock to report his marketing activities to the court and the sellers on a monthly basis. And final approval of any sale negotiated by Brock rested with the court, not the sellers. In short, Brock was appointed by the court to exercise discretionary judgment in 13 serving a function integral to the partition action and as an arm of the court. As a result, he was entitled to quasi-judicial immunity. Contrary to plaintiff’s characterization, Brock was not appointed to advocate for the sellers. He was appointed to act in the sellers’ best interests, which is not necessarily advocacy and does not preclude application of quasi-judicial immunity. For example, in McClintock, supra, 219 Cal.App.4th 540, the court of appeal determined that a guardian ad litem appointed for an adult party in a divorce proceeding was entitled to quasi- judicial immunity. A guardian ad litem owes fiduciary duties to its ward. (See J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 964-965.) And although the guardian ad litem owes fiduciary duties and represents the ward in the litigation, “he or she does not act as an advocate, and does not simply represent the ward’s wishes.” (McClintock, at p. 549.) The court in effect is the guardian, and the guardian ad litem is an officer and representative of the court who must act in the ward’s best interests. (Id. at pp. 549, 551.) Brock’s roll as an advocate in this action is even less tenuous than the guardian ad litem in McClintock. Plaintiff and Darice were opposing parties in a litigation. Brock did not represent either in the partition action as a representative or an advocate. Instead, Brock was ordered by the court, despite the parties’ conflicts, to act in the parties’ best interest in marketing and selling the property. Brock reported to the trial court, and his authority to determine the property’s value and listing price was derived from the court’s order vesting him with that authority, not from the parties, whom the court ordered to sign the listing agreement. In a partition action, the court is the ultimate seller of the property, and Brock acted as a limited agent for the court in that process. He was not the parties’ advocate. Policy reasons that justify quasi-judicial immunity also support extending immunity to Brock. His determination of the property’s listing price and value should not be clouded by the possibility of legal action by one of the property owners contending the price is too low—which is what this action is. Without immunity, persons such as 14 Brock who are asked to perform a discretionary function on behalf of the court in the face of opposition from the affected parties “will be reluctant to accept court appointments or provide work product for the courts’ use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs.” (Howard, supra, 222 Cal.App.3d at p. 857.) We thus conclude the trial court correctly extended quasi-judicial immunity to Brock in this action and, as a result, correctly granted summary judgment in his favor. Because we affirm on this ground, we need not address plaintiff’s additional arguments against the motion for summary adjudication. DISPOSITION The judgment is affirmed. Costs on appeal are awarded to Brock. (Cal. Rules of Court, rule 8.278(a).) HULL, Acting P. J. We concur: MAURO, J. HOCH, J. 15	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488291/	NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 22-1049 _______________ EDITA APPLEBAUM, Appellant v. WILLIAM P. FABIAN; FRANK RAJS; LEAH E. CAPECE; LAURENCE W. GOLD; CECILIA KEH; THOMAS D’AMBROSIO; MAXINE MELNICK; MICHAEL LACKEY; GERALD MACKO; DEREK SCHUMACHER; JIMMY SAMAYOA; GARRETT APPLEBAUM; YOUSSEF ABDULAH YOUSSEF; VOYA FINANCIAL, INC.; INTAC ACTUARIAL; JOHN DOES 1-10; ABC CORP 1-10. _______________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:18-cv-11023) District Judge: Honorable Kevin McNulty _______________ Submitted Under Third Circuit L.A.R. 34.1(a) on November 18, 2022. Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Filed: November 21, 2022) ________ OPINION __________ KRAUSE, Circuit Judge.  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Edita Applebaum appeals the District Court’s dismissal of her claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., New Jersey’s equivalent racketeering statute, N.J. Stat. Ann. § 2C:41-1 et seq., and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., as well as her common law civil conspiracy claim. She also appeals the denial of her latest motion to amend her complaint to include a new claim under 17 C.F.R. § 240.10b-5 (Rule 10b-5) and a fraudulent-concealment claim, and to add two new defendants. For the reasons discussed below, we will affirm.1 I. DISCUSSION2 1. Applebaum’s New Jersey and Federal RICO Claims Are Time-Barred or Otherwise Insufficiently Pleaded. Applebaum asserts seven predicate violations under both RICO and New Jersey’s equivalent statute. But as the District Court correctly concluded, six are time-barred and the seventh is insufficiently pleaded. 1 Applebaum also brought state-law claims for common law fraud, defamation, violations of New Jersey’s Conscientious Employee Protection Act, negligence, conversion, intentional infliction of emotional distress, and tortious interference with prospective economic advantage. As she does not contest their dismissal, however, these claims are waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182–83 (3d Cir. 1993). 2 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s dismissal of Applebaum’s complaint de novo and the denial of her motion to further amend the complaint for abuse of discretion. See Lutz v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 326 (3d Cir. 2022). 2 The statute of limitations for both federal and New Jersey civil RICO claims is four years from the date a plaintiff first “[knows] or should have known of their injury. . . . [and] the source of their [RICO] injury.” Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 359 F.3d 226, 233 (3d Cir. 2004) (internal quotation marks omitted); accord Lee v. Carabetta, 2014 WL 4098012, at 8 (N.J. Super. Ct. App. Div. Aug. 21, 2014). Applebaum had knowledge of the factual bases underlying her first six alleged predicate violations by the time she included them in her state court complaint in March 2014, so Applebaum had until March 2018 to file her claim. Yet, she did not do so until June 2018, and she identifies no valid basis for tolling. Thus, Applebaum’s first six RICO claims are time-barred. See Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009). While timely, her seventh predicate offense—premised on Appellees’ alleged misrepresentations throughout state court proceedings—fails to state a claim, as it is well established that fraudulent litigation activity “cannot act as a predicate offense for a civil- RICO claim.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 525 (5th Cir. 2016); see also Kim v. Kimm, 884 F.3d 98, 104 (2d Cir. 2018); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088 (11th Cir. 2004); Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir. 2003). 2. Applebaum’s ERISA Claim Is Barred by the Probate Exception. Applebaum also seeks to reinstate her claim that Appellees’ “misappropriation of funds” from her late husband’s “Voya/ING 401K plan” (401(k) plan) into his estate 3 violated ERISA, App. 564,3 which would require us to decide whether these proceeds were rightly part of that estate. But we cannot “endeavor[] to (1) probate or annul a will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court.” Three Keys Ltd. v. SR Util. Holding Co., 540 F.3d 220, 227 (3d Cir. 2008). And while Applebaum argues that she was the valid beneficiary of her husband’s 401(k) plan and that its proceeds should have bypassed the probate system– Culwick v. Wood, 384 F. Supp. 3d 328, 341 (E.D.N.Y. 2019)–Applebaum’s beneficiary designation, and thus her right to estate property, is precisely what is disputed here. Bollenbach v. Haynes, 2019 WL 1099704, at 4 n.2 (S.D.N.Y. Mar. 8, 2019). As a result, this claim falls squarely within the “probate exception” to our jurisdiction. Three Keys Ltd., 540 F.3d at 227. 3. Applebaum Lacks Standing to Bring a Rule 10b-5 Securities Fraud Claim. Applebaum next argues that Appellees violated Rule 10b-5 by making false statements before the probate court in support of their efforts to secure an in-cash distribution of Applebaum’s shares of her late husband’s company. Although Applebaum concedes she neither sold nor purchased a security here and thus lacks standing to seek monetary damages, see, e.g., Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 485 (3d Cir. 1998), she contends she has standing to seek injunctive relief as a beneficial owner and “de facto seller” of the company’s stock. Appellant’s Br. 35. 3 Applebaum’s complaint also includes allegations that Appellees’ “deferred compensation scheme” violated ERISA. App. 563. But she does not challenge the District Court’s dismissal of that claim and thus waives it on appeal. Kost, 1 F.3d at 182. 4 Applebaum rests her argument on Norris v. Wirtz, in which the Seventh Circuit held that the beneficiary of a trust had standing to sue her trustees under Rule 10b-5 and 15 U.S.C. § 78j(b). 719 F.2d 256, 259–61 (7th Cir. 1983). But the Norris Court reached that conclusion because, in that case, “plaintiff’s approval was required [for the sale of the at- issue security] under the will.” Id. at 261. Here, by contrast, decedent’s will explicitly enabled the executor to distribute Applebaum’s shares in cash, and New Jersey law did not otherwise require her approval. In re Est. of Hope, 916 A.2d 469, 474 (N.J. Super. Ct. App. Div. 2007). Thus, Applebaum lacks standing to seek even injunctive relief. 4. Applebaum Cannot State a Claim for Fraudulent Concealment. According to Applebaum, the District Court also erred in dismissing her fraudulent concealment claim, which was based on Appellees’ state court litigation activities and, in particular, the actions of Defendant Thomas Howard, counsel for the estate. But New Jersey law requires that a plaintiff be “damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed,” Rosenblit v. Zimmerman, 766 A.2d 749, 758 (N.J. 2001), and Applebaum has not established that record. To the contrary, her complaint is replete with allegations demonstrating both personal knowledge and the probate court’s awareness of the allegedly concealed information, so she cannot state a claim for fraudulent concealment. For the same reason, the District Court correctly concluded that Applebaum’s request to join Howard as an indispensable party under Federal Rule of Civil Procedure 19 5 should be denied.4 See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (holding that leave to amend is futile if “the complaint, as amended, would fail to state a claim upon which relief could be granted”). 5. Applebaum Cannot State a Civil Conspiracy Claim. Lastly, Applebaum appeals the District Court’s dismissal of her civil conspiracy claim and denial of her motion to amend that claim. She alleged that Appellees conspired to (1) conceal information from the state court, and (2) “disinherit her” through the in-cash distribution of her share of her husband’s company. Appellant’s Br. 43–45. But as the District Court correctly observed, even if Appellees had conspired to achieve these objectives, Applebaum cannot plausibly allege that she has been damaged. Appellees’ purported concealment is belied by Applebaum’s knowledge of their supposedly concealed activities, as she attended various company meetings in which those activities were discussed and Appellees’ push for an in-cash distribution was made pursuant to the executor’s express authority under decedent’s will.5 4 Relatedly, Applebaum appeals the District Court’s denial of her request to join Appellee William Fabian’s alleged shell company, Morey La Rue, Inc. Appellant’s Br. 46. Though she claims that Morey La Rue was “used [by Fabian] to launder his off-the-books financials” in connection with the sale of certain property of the estate, id., Applebaum does not assert any independent claim against Morey La Rue and therefore could obtain complete relief for her various RICO and fraud claims without its joinder. 5 To the extent Applebaum asserts that Appellees conspired to lie to the probate court about Applebaum’s disruptive presence as a shareholder, she has failed to plausibly plead that claim. For example, she offers nothing but speculation for her allegations that various employee affidavits praising Appellees’ management of the business and highlighting the disruptive nature of Applebaum’s involvement were “frivolous,” “outdated,” and the product of collusion. Appellant’s Br. 32, 45; App. 263, 581. 6 II. CONCLUSION For the foregoing reasons, we will affirm the District Court’s dismissal of Applebaum’s complaint with prejudice, as well as its denial of her motion to amend. 7	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488296/	Filed 11/21/22 Vallejo v. Fire Insurance Exchange CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- JOSE VALLEJO, C091547 Plaintiff and Appellant, (Super. Ct. No. STKCVUIC20140008644) v. FIRE INSURANCE EXCHANGE, Defendant and Appellant. SUMMARY OF THE APPEAL In 2013, Jose Vallejo sought payment from Fire Insurance Exchange (Fire) of a default judgment he had secured against Fire’s insureds, Marsha and Franklin Savoy. Vallejo had secured the default judgment in 2009, in a personal injury action he had brought against the Savoys and Marsha’s father, Manual C. De La Garza. Fire denied Vallejo’s claim, and Vallejo filed this action, alleging he was entitled to benefits und er 1 Insurance Code section 11580, a breach of contract cause of action, and that Fire had breached the covenant of good faith and fair dealing when it denied his claim. A jury found in Vallejo’s favor, and the trial court awarded Vallejo contract damages in the form of the amount due to him under the policy plus interest, damages for emotional distress, and attorney fees expended to collect the amount he was due under the policy under Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt). On appeal, Fire argues that the Insurance Code section 11580 and breach of contract causes of action were time-barred by the time Vallejo filed this action. Central to Fire’s position is its argument that a bankruptcy proceeding the Savoys filed after Vallejo secured his personal injury judgment but before he submitted a claim to Fire did not toll the statute of limitations applicable to the filing of Vallejo’s claim under Insurance Code section 11580. On this point we agree with Fire. Because Vallejo secured a judgment against the Savoys before they filed for bankruptcy, the bankruptcy stay did not prevent him from filing an Insurance Code section 11580 or breach of contract action to collect funds from Fire during the pendency of the bankruptcy proceeding. Fire also argues that Vallejo should not have been able to maintain an action alleging Fire breached the covenant of good faith and fair dealing when it denied his claim. On this point, we disagree with Fire, because while the statute of limitations on the Insurance Code section 11580 and contracts causes of action lapsed before Vallejo filed this action, that statute of limitations had not passed at the time Fire denied his claim. Vallejo has raised a convincing argument that the statute of limitations on his bad faith cause of action is different than the one that applied to the other two causes of action, and Fire has not made a convincing argument that it acted reasonably at the time it denied Vallejo’s claim. In this appeal, we also consider two arguments regarding the calculation of damages owed to Vallejo: one raised by Fire and the other raised in a cross-appeal by 2 Vallejo. We will conclude that Fire correctly argues that the contract damages award needs to be recalculated, and that Vallejo correctly argues the Brandt award ought to have included litigation costs. FACTS AND HISTORY OF THE PROCEEDINGS Fire Issued a Policy on the Savoys’ Real Property covering the period from April 27, 2006, to April 27, 2007 In March 2005, De La Garza transferred interest in a house he owned (the property) to the Savoys. De La Garza continued to reside at the property after the transfer. Fire, a Farmers Insurance entity, issued a landlord’s protector insurance package (the policy) on the Savoy’s property which covered the period of April 27, 2006, to April 27, 2007. Though De La Garza was not specifically named as an insured under the policy, the jury found that he was an insured under the policy and neither party has challenged the jury’s finding on appeal. The policy included business liability coverage, under which Fire would pay “all damages from an occurrence which an insured is legally liable to pay because of bodily injury [or] personal injury . . . arising out of the ownership, maintenance, or use of the insured location covered by this policy.” The business liability coverage terms included a “Suit Against Us” provision, which stated, “[Fire] may not be sued unless there has been full compliance with the terms of this policy. No one shall have any right to make [Fire] a party to a suit to determine the liability of a person [Fire] insure[s]. [Fire] may not be sued under” the business liability coverage policy, “until the obligation of the insured has been determined by [a] final judgment or agreement signed by [Fire].” Under the terms of the business liability coverage, the “[b]ankruptcy of an Insured . . . will not relieve [Fire] of [their] duties under this policy.” 3 The policy also contained liability coverage designated as “medical pay to others” coverage with a $1,000 per person limit. With certain qualifications, this coverage would be used to pay, “the necessary medical expenses incurred by a person other than an insured within three years from the date of an occurrence causing bodily injury” if the bodily injury, “arises from a condition on the insured location, and [¶] . . . arises from an occurrence for which an insured is covered under this policy.” According to the policy, the Savoys resided in Las Vegas at the time the policy was issued. Vallejo’s Injury in May 2006, the Personal Injury Action, and Default Judgments During the policy coverage period, in May 2006, Vallejo was injured when he fell off a ladder while helping De La Garza remove a tree from the property. According to Vallejo, after the injury, De La Garza would go along with Vallejo to medical visits to treat the injury, and he visited Vallejo at home. Though De La Garza told Vallejo he had insurance that could cover Vallejo’s medical expenses, De La Garza told Vallejo he would pay for treatment, because De La Garza did not want to report the incident to the insurer and have the cost of insurance increase. When Vallejo needed to make a $300 deposit for surgery related to the injury, De La Garza covered the deposit with a credit card. When Vallejo received a medical bill showing a balance owing of over $14,000, he showed it to De La Garza, and De La Garza ceased contact with Vallejo and stopped paying for Vallejo’s medical bills. In July 2006, Vallejo retained an attorney, Jeffrey Silvia, to assist him in obtaining compensation for medical expenses incurred to treat the injuries he suffered. Vallejo represented to Silvia that De La Garza owned the property and had a homeowner’s insurance policy. Silvia’s office contacted De La Garza, who acknowledged that the policy existed but refused to provide the identity of the insurer. 4 On October 10, 2006, Vallejo filed a personal injury action against De La Garza for damages related to his injuries (underlying action). De La Garza did not file an answer, and on June 28, 2007, the trial court entered a default judgment in Vallejo’s favor against De La Garza awarding total damages of $125,184.84 (De La Garza judgment). When Silvia sought to record an abstract of judgment against the property, he learned that the Savoys owned the property at the time Vallejo was injured. As a result, in November 2007, Vallejo filed an amended complaint in the underlying action naming the Savoys as defendants. A process server served the Savoys at the property using substitute service on De La Garza who told the process server the Savoys lived at the property with him, but worked long hours; and then De La Garza represented to the process server that he would give the documents to the Savoys. The record does not tell us what, if anything, De La Garza, who died in September 2009, ever told the Savoys about the personal injury action. The Savoys did not file an answer, and on January 28, 2009, the trial court entered a default judgment in Vallejo’s favor against the Savoys awarding total damages of $125,184.84 (Savoy judgment). In 2009 and 2010, Silvia made various efforts to identify the property insurer to no avail. We note that in its opening brief, Fire describes these efforts—including how those efforts related to Vallejo’s own chapter 7 bankruptcy proceedings—in more detail. Fire then argues that Vallejo and his counsel’s alleged “diligence” did not toll the statute of limitations in this action. In his responsive brief, Vallejo does not argue that anything other than the Savoys’ bankruptcy proceedings and Fire’s representations regarding the impact of those proceedings tolled the statute of limitations. Ad ditionally, we find persuasive Fire’s argument that Vallejo did not need to know the name of the insurer to bring the action because (1) he was aware there was a liability insurer and that the predicate requirement—a judgment against the insured—for an Insurance Code section 5 11580 cause of action against that liability insurer existed when he secured the default judgments; and (2) he could have filed a timely action naming the insurer as a Doe defendant. (See Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932; see also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [“The discovery rule, as described in Bernson, allows accrual of the cause of action even if the plaintiff does not have reason to suspect the defendant’s identity. . . . As the court reasoned in Norgart[ v. Upjohn Co. (1999) 21 Cal.4th 383, 399], ‘[i]t follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does’ ”].) Thus, the minute details of Vallejo’s efforts to identify Fire are not important for our analysis. According to the trial court’s ruling on a motion for summary judgment in the instant action, “[t]he parties agree that between 2006 through 2012, [Vallejo] did not know where the Savoys were located and did not obtain any new information about any insurance policy.” In May 2017, Vallejo obtained a renewal of judgment as to all parties in the underlying action, adding $124,191.12 in interest accrued after the De La Garza judgment and a filing fee of $30 for the renewal application, for a total renewed judgment of $249,405.96. In an attachment to his application for renewal of judgment, Vallejo noted that if interest were calculated on the judgment entered as to the Savoys, it would have been $104,332.44, instead. Thus, if the total renewed judgment amount had been based on the Savoy judgment, the amount would have been $229,547.28. The Savoys Filed for Bankruptcy in Nevada in 2012 On July 13, 2012, the Savoys filed for chapter 7 bankruptcy in the U.S. Bankruptcy Court for the District of Nevada (Bankruptcy Court). The Savoys would later claim it was not until they began considering filing for bankruptcy that they learned Vallejo had secured a default judgment against them in the underlying action. 6 The Savoys identified Vallejo as a judgment creditor on their list of creditors holding unsecured nonpriority claims against them. The Savoys did not identify the Fire policy, or any interest in any insurance policy, on their schedule of assets. The Bankruptcy Court discharged the debtor—the Savoys—on October 15, 2012. On November 27, 2012, without Vallejo or his counsel ever learning about the Savoys’ bankruptcy proceeding, the Bankruptcy Court issued a final decree in the Savoys’ bankruptcy proceeding, closing the matter and discharging the trustee. Vallejo’s Efforts to Collect from Fire in 2013 and 2014 On July 9, 2013, after Silvia contacted American Bankers Insurance Co. of Florida (American) to see if it had been the liability insurer associated with the property in May 2006, American sent Silvia a letter, informing him that their records demonstrated the Fire policy was in effect on the date Vallejo was injured. This is the first time anyone told Silvia that Fire was the insurer. On July 18, 2013, Silvia wrote a letter to Fire in which he stated that a judgment had been entered against the Savoys in the amount of $125,184.84 and demanded that Fire satisfy the judgment. On July 30, 2013, Lisa Newton, a field claims representative with Fire, wrote back to Silvia and informed him that Fire was investigating coverage in the case. “[H]owever,” she added, “Mr. and Mrs. Savoy have indicated that they had the judgment discharged in bankruptcy in 2012 . . . in Clark County Nevada.” Silvia then asked Newton to provide him with the bankruptcy case number and the identity of the Savoys’ bankruptcy attorney. Newton provided Silvia with the requested information and, in her August 8, 2013, letter transmitting the information, wrote, “[a]s we have discussed, Mr. and Mrs. Savoy filed [for] bankruptcy in Clark County Nevada and discharged the judgment at that time. Neither were aware that Manual De La Garza was ever served naming them as defendants in this matter and Mr. De La Garza died in 2009.” The letters between Silvia and Newton identify claim unit number 8001847946-1-2. 7 In late August and early September 2013, Silvia communicated with another Fire representative who did process a medical-payment claim for Vallejo. Fire paid Vallejo $1,000, the maximum medical payment it concluded was allowed under the policy. In the September 20, 2013, cover letter transmitting the $1,000 payment and informing Vallejo that available medical benefits were exhausted with that payment, the Fire claims representative wrote, “California laws and regulations require that we provide you with the four year limitation period upon which we may rely to deny a claim.” The letters to Silvia from Fire regarding the medical payment are identified with claim unit number 8001847946-1-3. On October 24, 2013, Newton made a note to Fire’s file on Vallejo’s claim that as they had not “heard back” from Silvia or the Savoys, Fire would close the file, but they would reopen the file if Silvia sent “further correspondence and needs additional infor[m]ation.” Meanwhile, Silvia consulted with a bankruptcy counsel in California, and located a bankruptcy attorney in Nevada to assist him with navigating issues that stemmed from the Savoys’ bankruptcy case. On January 10, 2014, Vallejo’s Nevada bankruptcy counsel filed an ex parte motion to reopen the Savoys’ bankruptcy case, and a motion to modify the stay to allow Vallejo to name the Savoys nominally in order to pursue insurance policy proceeds under the policy. The Bankruptcy Court granted the request to reopen the matter. Fire learned about the motion to modify the stay, and initially considered opposing the motion, but no record of it filing an opposition is identified on the register of actions for the bankruptcy action. Notes from Fire’s file state that as of February 6, 2014, Fire had reopened communications with Silvia and Vallejo’s Nevada bankruptcy counsel, and Casey Corless, a claims supervisor with Fire, had communicated with them that it was her belief that there were some coverage and liability issues Fire needed to explore. More 8 specifically, she noted the Savoys had not given Fire any notice of the claims until the summer of 2013, and it was Fire’s belief that there had been some serious service of process issues in the underlying action against the Savoys. She advised Silvia that there had been a discharged bankruptcy action in Nevada, and there would be no active claim until and unless the Bankruptcy Court granted their motion for relief from the bankruptcy stay. The Bankruptcy Court heard the motion to lift the automatic stay on February 12, 2104. On February 19, 2014, Newton sent Silvia a letter denying Vallejo’s claim. She wrote, “[w]e have completed our investigation and have determined that there is no coverage available for this loss.” She provided no further explanation to Vallejo or his counsel in the letter. However, also on February 19, 2014, Stewart Lewis, Fire’s Northern California Litigation Manager, sent a letter to the Savoys, explaining why Fire had concluded “there is no coverage provided for this [Vallejo’s] loss” under the policy. This letter was also prepared by Newton. First, Fire concluded that De La Garza was a tenant of the Savoys on May 15, 2006, and, therefore, no coverage was available to him under the policy. With respect to the Savoys, Fire wrote, “Fire Insurance Exchange was not notified of the accident that occurred on May 15, 2006 until the claim was reported [to] us on July 18, 2013. Moreover, Fire Insurance Exchange was not notified that a lawsuit had been served on Franklin and Marsha Savoy or that a default judgment had been entered against Franklin and Marsha Savoy on January 28, 2009. Failure to notify Fire Insurance Exchange of the lawsuit and judgment entered against Franklin and Marsha Savoy is a material breach of your duties under the policy. [¶] Based on the foregoing, Fire Insurance Exchange does not owe you a defense of indemnity obligation under the referenced policy.” 9 Newton admitted at trial that the letter does not state Fire had identified any prejudice to it as a result of the Savoys’ failure to notify them, and that the letter would have included a comment about prejudice to Fire if she had identified any prejudice that had occurred to Fire as a result of the Savoys’ failure to notify Fire. She also admitted that while the letter did identify the Savoys’ failure to notify Fire of Vallejo’s claim before judgment was entered in the underlying action as a basis for the denial, it did not “identify the delay from the [entry of the] judgment” in the underlying action and the date the claim was submitted to Fire as a factor. On February 24, 2014, the Bankruptcy Court granted the motion to modify the automatic stay in the Savoys’ bankruptcy action. The order says, “IT IS HEREBY ORDERED the Motion to Modify the Automatic Stay to Name Debtors Nominally to Pursue Insurance Policy and Waive the 14-Day Stay under Rule 4001(a)(3) is GRANTED in its entirety; [¶ ] IT IS FURTHER ORDERED that the bankruptcy case shall be closed thirty (30) days after the entry of this Order; and [¶] IT IS FURTHER ORDERED that any ensuing pleadings filed by Mr. Vallejo against Farmers Insurance shall note in the caption that Debtors are only named nominally, and the pleadings shall state that the Discharge of the Debtors was entered in the Bankruptcy Court on October 15, 2012, as Docket No. 31.” This Action Complaints and Demurrers Vallejo first filed this action on August 26, 2014, alleging only one cause of action: a complaint for damages under Insurance Code section 11580. In a first amended complaint filed on March 30, 2017, Vallejo added two causes of action: one for breach of contract, and another for compensatory and punitive damages as a result of insurers’ breach of the covenant of good faith and fair dealing (bad faith) for refusing to pay the personal injury judgment. Fire demurred to the first amended complaint, and Vallejo 10 filed a second amended complaint, to which Fire also demurred. After the trial court sustained Fire’s demurrer to the second amended complaint with leave to amend, Vallejo filed the operative complaint, the third amended complaint, in September 2017, which also alleges an Insurance Code section 11580 cause of action, a breach of contract cause of action, and bad faith cause of action. Fire also demurred to the third amended complaint. Fire filed a supplemental brief in support of its demurrer responding to a request the trial court made to address whether the statute of limitations to bring the action ran from Vallejo providing notice of the claim in 2013 or from the date the Bankruptcy Court lifted the stay in the bankruptcy action. Fire argued that the stay in the bankruptcy case did not bar Vallejo from bringing an action against Fire—which Fire characterized as a non-debtor defendant—during the stay, and, therefore, the bankruptcy stay did not toll the statute of limitations for this action against Fire. The trial court overruled Fire’s demurer to the third amended complaint, and Fire filed an answer. Fire’s Other Efforts to Dismiss the Case Based on Statute of Limitations Issues Fire made other efforts to dismiss the action on the ground that Vallejo had failed to meet the statute of limitations. First, Fire filed a motion for summary judgment or summary adjudication, in which it argued Vallejo’s Insurance Code section 11580 cause of action was time-barred by the statute of limitations; that because his Insurance Code section 11580 cause of action was time-barred, so too was Vallejo’s breach of contract cause of action; and that Vallejo’s bad faith cause of action must fail because no benefits were due to Vallejo. Among other theories, in opposition to the motion for summary judgment, Vallejo argued his case against Fire would have been tolled from when the Savoys filed the 11 bankruptcy action in July 2012 to the date his motion for relief from the bankruptcy stay was granted on February 24, 2014. The trial court denied Fire’s motion for summary judgment or summary adjudication. In so doing, the court cited case law to support the proposition that a four-year statute of limitations under Code of Civil Procedure section 337 calculated from the date judgment was entered in the underlying action applied to the Insurance Code section 11580 cause of action, and then it—incorrectly—stated Vallejo filed this action within one year of the entry of the judgment in the underlying action. Next, Fire brought a motion for judgment on the pleadings, in which it argued that the lawsuit, filed 5.5 years after entry of judgment in the underlying personal injury action, was time-barred under a four-year statute of limitations that began to run when the personal injury judgment was final. Fire again argued the breach of contract cause of action was not separate from the Insurance Code section 11580 cause of action and was, therefore, subject to the same statute of limitations as the underlying Insurance Code section 11580 cause of action. Also, Fire argued Vallejo could not argue the statute of limitations was tolled by waiver or estoppel theories based on Fire’s representations in the September 20, 2013, cover letter regarding a four-year time frame to challenge the denial of a claim. Additionally, Fire argued Vallejo could not maintain a bad faith claim independent of the Insurance Code section 11580 claim. Fire reasoned that if Vallejo’s Insurance code section 11580 action was time-barred, Vallejo could have no separate claim for bad faith. In opposition to the motion for judgment on the plead ings, Vallejo once again argued the statute of limitations had, in fact, been tolled between July 13, 2012, and February 24, 2014, due to the bankruptcy action. The trial court denied the motion. Vallejo’s Motion in Limine Regarding the Bankruptcy Stay In contrast to Fire’s efforts to convince the trial court that the bankruptcy stay caused by the Savoys’ bankruptcy filing had no tolling impact on the applicable statute of 12 limitations, Vallejo sought to exclude “all requested arguments, evidence, etc. by [Fire] that the bankruptcy stay of 11 U.S.C. § 362 arising from the bankruptcy filing and case of Franklin Savoy and Marsha Savoy did not apply to the Farmers’ policy of insurance as to [Vallejo]” during the trial proceedings. At an initial hearing regarding the motion, the court reserved its ruling on the matter and gave the parties the opportunity to provide further briefing regarding the impact and length of the bankruptcy stay. At the second hearing on the motion, the trial court concluded the bankruptcy stay applied as a matter of law and created an injunction that prevented Vallejo from seeking payment under the policy. As such, the court tentatively stated it would rule in Vallejo’s favor on the motion and exclude any evidence Fire might produce to suggest the stay did not apply to the policy. After hearing additional argument from Fire, the court acknowledged that “the Ninth Circuit is not really consistent with all these things” when it comes to determining if bankruptcy stays would have tolled the action against an insurer, and “there’s some language that supports [Fire’s] side” of the argument. Yet, recognizing this issue had been presented to it “as a matter of law” the judge stated it had to “make a decision.” The court ruled, its decision “may be” one “of first impression or . . . might be limited to the facts of the case. If I’m wrong, then I’m wrong, but I have to make a decision. My decision is going to be to side with the plaintiff on this,” and it ruled the stay remained in place until it was lifted by the Bankruptcy Court, tolling the statute of limitations over 500 days, thereby tolling the statute of limitations to file this action beyond the date it was filed. Because it found that the stay had tolled the statute of limitations beyond the date this action was filed, the court excluded evidence that the bankruptcy stay should not apply as “irrelevant.” Trial and Judgment The court conducted a trial in this action in late July and early August 2019. 13 The jury found that De La Garza was an insured under the policy; that Fire had not been prejudiced by the Savoys’ failure to give them notice prior to July 18, 2013; that Fire’s failure to pay Vallejo’s judgment was unreasonable; that Vallejo was entitled to $165,000, in emotional distress damages covering the period of February 19, 2014—the date Fire denied the claim—to the date the verdict was entered; and that Vallejo did not prove by clear and convincing evidence that Fire had acted with malice, oppression, or fraud in its failure to pay Vallejo. After the jury reached its verdict, Vallejo made a request for an award of attorney fees and costs on the bad faith cause of action under Brandt, supra, 37 Cal.3d 813. At a hearing, the trial court determined that Vallejo was entitled to $445,092 in Brandt fees and did not award additional costs under Brandt. Regarding its decision to not award costs, the court explained, “I’ve read the cases. The cases talk about attorney’s fees. There’s only one reference in there that mentions costs, and it’s . . . in one of the cases that this happens to be quoting some other source and puts the word costs in there. I think it’s dicta. I don’t think it was discussed in that case. I d idn’t see any authority that would include the costs as you’ve described them . . . as part of the [Brandt] fees. . . . So you got an argument there, but I’m not going to award them at this point.” At the hearing when the court considered Brandt fees, the trial court granted a request Vallejo made for prejudgment interest on the renewed judgment, calculated from the date of renewal, May 30, 2017, to the date of the hearing, which was December 18, 2019. Applying an interest rate of 10 percent per annum, the trial court calculated the interested to be $24,940.59 per year, or $68.33 per day, for a total of $63,683.56 covering May 30, 2017, to December 18, 2019. On January 3, 2020, the trial court entered a judgment in which, pursuant to the jury’s verdict and its ruling following the hearing on Brandt and prejudgment interest fees, the court awarded Vallejo a total of $923,181.52, as follows: the amount due on the 14 renewed personal injury action totaling $249,405.96; pre-judgment interest totaling $63,683.56; emotional distress damages of $165,000; and attorney fees of $445,092. DISCUSSION I Timeliness of Vallejo’s Insurance Code Section 11580 Claim Fire argues that Vallejo failed to meet the statute of limitations to file an action against Fire pursuant to Insurance Code section 11580. Central to Fire’s argument is its position that the stay in the Savoys’ bankruptcy proceeding did not toll the statute of limitations for Vallejo to file this action. Though Fire preemptively makes arguments regarding why other possible theories Vallejo might offer as to why the statute of limitations was tolled would lack merit, in his responsive brief Vallejo makes only two arguments as to why the statute of limitations was tolled on the Insurance Code section 11580 cause of action. First, Vallejo argues that the bankruptcy stay that went into effect pursuant to 11 U.S.C. section 362 when the Savoys filed for bankruptcy in Nevada stayed Vallejo’s ability to bring this action against Farmers, and therefore tolled the applicable statute of limitations, from July 13, 2012, to February 24, 2014. Central to this argument is Vallejo’s position that the Fire policy was an asset of the Savoy’s bankruptcy estate. Second, Vallejo makes the argument that Fire should be equitably estopped from arguing the bankruptcy stay did not toll the action, because Fire represented to him that the stay did apply and “refused to even accept or deny the clam until relief from the automatic stay was obtained.” Here we conclude that because Vallejo obtained a judgment against the Savoys before they filed for bankruptcy, the stay in the Savoys’ bankruptcy action did not bar Vallejo from filing this action against Farmers and, therefore, the stay did not toll the statute of limitations for him to file this action. We also conclude that principles of equitable estoppel did not apply to toll the statute of limitations for Vallejo to file this 15 action. However, we do conclude Vallejo’s claims were not yet time-barred as to the Savoy judgment when he submitted his claim to Fire, and equitable tolling did apply from the date Vallejo submitted his claim to Fire to the day Fire denied his claim. Yet even with that equitable tolling, Vallejo still did not meet the statute of limitations to file his Insurance Code section 11580 cause of action. A. Nature of Insurance Code Section 11580 Actions Insurance Code section 11580, subdivision (b) requires liability insurance policies issued in California to contain: “(1) A provision that the insolvency or bankruptcy of the insured will not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of such policy[;]” and “(2) A provision that whenever judgment is secured against the insured . . . in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.” “ ‘The primary purpose of the statute is to protect an injured person when the insured is bankrupt or insolvent.’ ” (Barrera v. State Farm Mut. Automobile Ins. Co. (1969) 71 Cal.2d 659, 682.) This statute, “effectively makes an injured plaintiff who obtains a final judgment against a tort defendant a third party beneficiary of the defendant’s liability insurance policy.” (Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 367; see also Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847, 1856; Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 943.) Under the statute, “once having secured a final judgment for damages, the plaintiff becomes a third party beneficiary of the policy, entitled to recover on the judgment on the policy. At that point the insurer’s duty to pay runs contractually to the plaintiff as well as the insured.” (Hand, at p. 1858.) Thus, “[u]pon obtaining a judgment against the insured, the judgment creditor has an independent cause of action against the insurer to enforce the insurer’s obligation to 16 indemnify the insured. (Gonzalez v. St. Paul Mercury Ins. Co. (1976) 60 Cal.App.3d 675, 680-681.) ‘The judgment creditor’s right to sue is not derivative or dependent upon any assignment from the insured.’ (Croskey et al., Cal. Practice Guide: Insurance Litigation, supra, ¶ 15:1039, p. 15-187.)” (Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 68.) “[I]t is clear from the history of the statute that its purpose and effect were to create a right in the insurance contract.” (Hand, at pp. 1858-1859.) Consequently, Insurance Code section 11580 allows a judgment creditor to file a “direct action against an insurer based on the insured’s underlying insurance policy.” (Guastello v. AIG Specialty Ins. Co. (2021) 61 Cal.App.5th 97, 100, fn. 1; see also Clark v. California Ins. Guarantee Assn. (2011) 200 Cal.App.4th 391, 397.) The judgment creditor’s claim will be subject to the terms and limitations of the insurance policy. (Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, supra, 107 Cal.App.4th at p. 68.) B. Without Tolling Insurance Code Section 11580 Causes of Action Have a Four-Year Statute of Limitations An Insurance Code section 11580 cause of action against an insurer by an insured’s judgment creditor is governed by the four-year statute of limitations prescribed by section 337, former subdivision (1), now subdivision (a), of the Code of Civil Procedure. (Woolett v. American Employers Insurance Co. (1978) 77 Cal.App.3d 619, 624.) The cause of action arises, and the statute of limitations begins to run, when a final judgment against an insured has been entered. (Woolett, at p. 624; see also Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 662.) For purposes of determining when a cause of action arises under Insurance Code section 11580, a judgment is “ ‘final’ . . . after an appeal is concluded or the time within which to appeal has passed.” (McKee v. National Union Fire Ins. Co. (1993) 15 Cal.App.4th 282, 287.) Absent exceptions not 17 applicable here, the last day a party can possibly appeal a judgment is 180 days from the date of entry of the judgment. (Cal. Rules of Court, rule 8.104.) The trial court entered the De La Garza judgment on June 28, 2007. At the latest, for purposes of our calculations, the De La Garza judgment became final on December 26, 2007. (See Cal. Rules of Court, rules 1.10(b) & 8.104; see also Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741 [Code Civ. Proc., § 904.1, subd. (a) “authorizes appeal . . . from a judgment that is not intermediate or nonfinal but is the one final judgment. . . . Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a)”]; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437 [finding judgments were final and appealable as to plaintiff’s claims against some of the defendants in a multidefendant lawsuit even though claims remained pending against other defendants].) Without tolling, the last day Vallejo had to file an Insurance Code section 11580 action based on the De La Garza judgment was December 26, 2011. The trial court entered the Savoy judgment on January 28, 2009. At the latest, for purposes of our calculations, the Savoy judgment became final on July 27, 2009. (See Cal. Rules of Court, rule 8.104.) Absent tolling, the last day to file an Insurance Code section 11580 action based on the Savoy judgment would be July 29, 2013, because July 27, 2013, was a Saturday. (See Code Civ. Proc., § 12a.) When Vallejo made his claim to Fire on July 18, 2013, he had 11 days left to file an Insurance Code section 11580 action predicated on the Savoy judgment. C. Equitable Tolling Applied While Fire Considered the Claim Without wholly conceding the point, Fire allows that it is possible that equitable tolling applied to toll the statute of limitations while Fire considered Vallejo’s claim based on the Savoy judgment. Fire argues that equitable tolling would not have applied 18 to toll the statute of limitations as to an action related to the De La Garza judgment, because the statute of limitations on that claim had already lapsed by the time Silvia contacted Fire. The four years Vallejo had to bring his Insurance Code section 11580 action against Fire regarding the Savoy judgment was tolled from the time he sought to resolve the claim directly with Fire to the day Fire denied the claim. “In Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins), the Supreme Court held that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim during the period in which a plaintiff pursues another remedy for the harm that the plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded that ‘if the defendant is not prejudiced thereby, the running of the limitations period is tolled “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” ’ (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 (Myers).)” (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 746.) However, as Fire observes, only 11 days remained on the four-year statute of limitations to bring an action regarding the Savoy judgment when Vallejo made his claim, and Fire denied his claim on February 19, 2014. As Fire argues the February 19, 2014, denial would have restarted—but not reset—the clock on the statute of limitations, extending the deadline to file a suit against Fire based on the Savoy judgment to March 3, 2014, still months before Vallejo filed this action on August 26, 2014. We agree with Fire that equitable tolling would have had no impact on the statute of limitations for Vallejo to bring an action regarding the De La Garza judgment, because the statute of limitations on an action based on that judgment had passed well before Vallejo submitted a claim to Fire. 19 D. Impact of the Bankruptcy Stay 1. Basic Nature of a Bankruptcy Stay and Principles of Review When a person files a petition for bankruptcy, the petition “operates as a stay” of “the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title,” and of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” (11 U.S.C. § 362(a)(2)-(3), italics added.) Property of the estate is defined to include, “all legal or equitable interests of the debtor in property as of the commencement of the case,” and “[p]roceeds, product, offspring, rents, or profits of or from property of the estate . . . .” (11 U.S.C. § 541(a)(1) & (6).) It does not include, “any power that the debtor may exercise solely for the benefit of an entity other than the debtor.” (11 U.S.C. § 541(b)(1).) “ ‘Whether property is property of the [debtor’s] estate is a question of law reviewed de novo.’ ” (Shaoxing County Huayue Import & Export v. Bhaumik (2011) 191 Cal.App.4th 1189, 1196, quoting In re Mwangi (9th Cir. 2010) 432 B.R. 812, 818.) The parties cite to California appellate court opinions and decisions issued in bankruptcy and circuit courts throughout the United States in advancing their arguments. “As explained by one federal court, ‘while federal law defines in broad fashion what property interests are included within the bankruptcy estate, state law determines the nature and existence of a debtor’s rights.’ (In re Moffett (4th Cir. 2004) 356 F.3d 518, 521; see also In re O’Dowd (3d Cir. 2000) 233 F.3d 197, 202 [‘While federal law defines what types of property comprise the estate, state law generally determines what interest, if any, a debtor has in property.’]; 2 Cowans, Bankruptcy Law and Practice (7th ed. 1998) § 9.2(b), p. 342 [‘The question of what is “property of the estate” is a federal question, but state law determines the nature and quantum of interest’ (fns. omitted)].)” (Uecker v. Zentil (2016) 244 Cal.App.4th 789, 794.) 20 Additionally, when deciphering the federal laws at issue, “ ‘[o]n a federal question, the decisions of the United States Supreme Court are binding on state courts. However, the decisions of the lower federal courts, while persuasive, are not binding on us. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Thus, in the absence of a controlling United States Supreme Court opinion,’ ” which is the scenario we are faced with on the precise issue we address here, “ ‘we make an independent determination of federal law. Where the federal circuits are in conflict, the decisions of the Ninth Circuit are entitled to no greater weight than those of other circuits.’ (Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 520, fn. 8.)” (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-783; id. at p. 782 [“Jones also contends that there is no decision from the Ninth Circuit Court of Appeals on this issue, implying that we are bound to follow that court's lead on matters of federal law. That implication is mistaken”].) 2. The Savoys’ Bankruptcy Action Did Not Toll the Statute of Limitations to Bring this Action As a preliminary matter, to state the obvious, as “direct action[s] against an insurer based on the insured’s underlying insurance policy,” Insurance Code section 11580 actions are not actions against bankruptcy debtors. (Guastello v. AIG Specialty Ins. Co., supra, 61 Cal.App.5th at p. 100, fn. 1, italics added; see also McKee v. National Union Fire Ins. Co., supra, 15 Cal.App.4th at p. 289 [“[A]n action under section 11580, subdivision (b)(2), is not an enforcement action against the judgment debtor. It is a separate action against an insurance company, subject to different defenses . . . .”].) Thus, in order to determine if the bankruptcy stay in the Savoys’ bankruptcy action tolled the time in which Vallejo had to file the action against Farmers, we need to ask if, in bringing the action, Vallejo was seeking to (1) enforce “a judgment obtained before the commencement of the” bankruptcy proceeding “against property of the estate,” (2) to “obtain possession of property of the estate or of property from the estate,” 21 or (3) “to exercise control over property of the estate.” (11 U.S.C. § 362(a)(2)-(3), italics added.) We conclude he was not seeking to do any of those three things, and the statute of limitations was not tolled. “While the rights held by a debtor under insurance policies are property of the estate, whether the funds paid by the Insurers on account of the insurance policies are property of the estate is an entirely different question. A split of authority has developed regarding whether proceeds payable from such insurance are property of the estate.” (Landry v. Exxon Pipeline Co. (Bankr. M.D. La. 2001) 260 B.R. 769, 785 (Landry).) The analysis employed by the United States District Court for Middle District of Louisiana in Landry is on point and is, to us, persuasive. In Landry, supra, 260 B.R. at page 773, various plaintiffs had brought an action in Louisiana state court against the National Energy Group, Inc. (NEG) and other defendants alleging damages under Louisiana law. After plaintiffs filed their action, an involuntary Chapter 11 bankruptcy proceeding was commenced against NEG, and the plaintiffs had NEG dismissed from the state court action. (Id. at p. 774.) The plaintiffs then successfully moved to add, as defendants, NEG’s insurers under a Louisiana statute allowing for direct action against insurers, and sought “to recover against certain comprehensive general liability . . . insurance policies issued by the Insurers to NEG.” (Ibid.) Louisiana’s direct action statute provides that, “[n]o policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his survivors, . . . or heirs against the insurer.” (La. Rev. Stat. Ann. § 22:1269.) 22 The defendants to the NEG state court action removed the action to the United States District Court for the Middle District of Louisiana under the theory that the district court had jurisdiction under statutes conferring federal jurisdiction in bankruptcy actions and in actions related to bankruptcy actions. (Landry, supra, 260 B.R. at pp. 774, 775.) Plaintiffs, in turn, filed a motion to remand on equitable grounds as permitted by title 28 United States Code section 1452(b) or to abstain under title 28 United States Code section 1334(c). (Landry, at pp. 774-775.) In light of the fact that the matter potentially involved questions regarding bankruptcy court jurisdiction, the district court referred the matter to the United States Bankruptcy Court for the Middle District of Louisiana for resolution. (Id. at p. 775.) The bankruptcy court concluded that while the federal courts would not have exclusive jurisdiction over the action, removal jurisdiction under title 28 United States Code section 1452(a) and title 28 United States Code section 1334(b) would be permissible, because it was an action related to the bankruptcy proceedings. (Landry, supra, 260 B.R. at pp. 780-781.) However, the court observed, though the federal court could “take cognizance of the action,” the action also could “have proceeded with equal dignity in the state court.” (Id. at p. 781.) In order to decide whether it ought to remand the case to the Louisiana state court on equitable grounds as contemplated title 28 United States Code section 1452(b), the bankruptcy court conducted an exhaustive examination of the split in authority regarding whether insurance proceeds due to third parties under liability insurance policies, like proceeds collectible under Insurance Code section 11580, are property of a bankruptcy estate. (Landry, supra, 260 B.R. at pp. 783-794.) Ultimately, the court concluded, “[u]nder [Louisiana’s] state law, the debtor has no interests in the funds used by an insurance company to pay its own obligations which are separate and independent of the obligation owed by the debtor to pay that same debt. Therefore, the proceeds of liability insurance payable to non-debtor parties are not property of the debtor’s estate under 11 U.S.C. § 541, or any other provision of the Code.” (Id. at p. 801, fn. omitted.) 23 In carrying out its analysis, the bankruptcy court acknowledged that property of the bankruptcy estate is broadly defined, but not without limits: “[b]y choosing the phrase ‘all legal or equitable interests of the debtor in property,’ ” to define the property of the bankruptcy estate, “Congress intended to include a broad range of property within the estate. In essence, all economic rights the debtor holds at the commencement of the bankruptcy become property of the estate under 11 U.S.C. § 541. ‘Property of the estate,’ however, is not limitless. The term is measured by the interests held by the debtor as of, or up to, the commencement of the case, unless otherwise provided within the statute. As stated by the Fifth Circuit [in In re Louisiana World Exposition, Inc. (5th Cir. 1987) 832 F.2d 1391, 1399], ‘the estate’s legal and equitable interests in property rise no higher tha[n] those of the debtor.’ The estate includes only property to which the debtor would have a right if the debtor were solvent.” (Landry, supra, 260 B.R. at pp. 783-784, fns. omitted.) In considering a standard for determining if insurance proceeds under a policy are property of an estate, the Landry court favorably quoted In re Edgeworth (5th Cir. 1993) 993 F.2d 51, 55-56, for the rule that, “ ‘[t]he overriding question when determining whether insurance proceeds are property of the estate is whether the debtor would have a right to receive and keep those proceeds when the insurer paid on a claim. When payment by the insurer cannot inure to the debtor’s pecuniary benefit, then that payment should neither enhance nor decrease the bankruptcy estate. In other words, when the debtor has no legally cognizable claim to the insurance proceeds, those proceeds are not property of the estate.’ ” (Landry, supra, 260 B.R. at p. 786, boldface & underscoring added by Landry.) The bankruptcy court then observed that in the liability insurance context, “the debtor has no cognizable claim to the proceeds paid by an insurer on account of a covered claim.” (Landry, supra, 260 B.R. at p. 786.) The court also observed that the payment of proceeds under a liability policy could not be made available for distribution to the 24 creditors other than those with claims under the policies. (Ibid.) The proceeds that would be paid are “a component of the asset structure of the insurance company,” and the claim to them is an obligation of the insurance company. (Id. at p. 787.) “When a covered claim arises, the injured debtor may have an interest, albeit a self-serving interest, in having a third party (the insurance company) pay for its wrongdoing, but this is not a legal or equitable interest in the property used to pay the claim.” (Ibid., boldface & underscoring omitted.) And when liability insurance is used to pay an obligation, “the debtor’s estate will not be used to pay covered claims unless and until all coverage is exhausted.” (Id. at p. 789.) Additionally, while the estate may be enriched by reducing the estate’s liabilities when equitable and legal title to proceeds belongs to a third party, the estate does not actually increase. (Ibid.) “Property, however, does not become property of the estate merely because such property has the effect of reducing the estate’s liability, or because of some other beneficial effect such property has on the estate. The estate must have a legal or equitable interest in the property which benefits the estate.” (Id. at p. 790, boldface & underscoring omitted.) Here, by the time the Savoys filed for bankruptcy, the liability insurance proceeds at issue would have been payable from Fire to Vallejo under an independent cause of action against Fire under Insurance Code section 11580. Fire would not have owed any funds to the Savoys. Having secured the Savoy judgment before the Savoys filed for bankruptcy, the right to bring a cause of action to collect funds from Fire pursuant to Insurance Code section 11580 belonged to Vallejo as the Savoys’ judgment creditor, and Vallejo did not need to take any further actions against the Savoys to exercise that right. What is more, under the persuasive reasoning outlined in Landry, the proceeds Vallejo would have been paid under the policy were not an asset of the bankruptcy estate—they were due to Vallejo and the Savoys had no claim to them. Consequently, the bankruptcy stay did not apply to Vallejo’s action to collect those proceeds from Fire, and it did not 25 toll the statute of limitations applicable to Vallejo’s Insurance Code section 11580 action against Fire. 3. Vallejo’s Arguments Vallejo argues that in entering an order to lift the stay in the Savoys’ bankruptcy proceeding on February 24, 2014, the Bankruptcy Court made a determination that relief from the stay in that action was needed before Vallejo could pursue this action, and we are bound by that determination. We disagree with Vallejo’s interpretation of the Bankruptcy Court’s order. In the order, the Bankruptcy Court stated it was modifying the stay “to Name Debtors Nominally to Pursue Insurance Policy . . . .” Essentially, the Bankruptcy Court entered an order that would have allowed Vallejo to name the Savoys as defendants to an action if he needed to name them to collect proceeds under their insurance policy. The order does not make an explicit determination that either (1) the Savoys had to be named; or (2) that proceeds available under the policy could not be sought from Fire without lifting the stay. Vallejo argues that “[i]f there [was] no interest [in] the bankruptcy” at issue in this action, “the Bankruptcy Court would have denied the request to reopen [the] bankruptcy as moot, as there would be no automatic stay restricting the lawsuit,” but this assumes too much. The motion to lift the stay asked the Bankruptcy Court to lift a stay “for the sole purpose of permitting Vallejo to name Debtors nominally to allow Vallejo to proceed against Debtors’ insurance policy.” The supporting memorandum makes no mention of Insurance Code section 11580, and it states that Vallejo seeks to “name Debtors nominally to allow Vallejo to proceed against” Fire. Given the way the motion and its supporting memorandum were worded, it is equally likely that the bankruptcy judge, sitting in a state without a direct action statute, did not even consider the nature of insurance proceeds to be awarded and, instead, just created a clear path to bring an action 26 naming the Savoys if that would have been a prerequisite to bringing an action to collect the proceeds. Both of the parties rely on Jones v. Golden Eagle Ins. Corp. (2011) 201 Cal.App.4th 139 (Jones) to support their arguments, with Vallejo characterizing it as the “single California reported decision directly addressing the interaction of the automatic stay with an action under Insurance Code § 11580[, subdivision ](b)(2).” Fire cites Jones, supra, 201 Cal.App.4th at page 148, for the proposition that the rights granted to a judgment creditor by Insurance Code section 11580, subdivision (b)(2), “exist ‘without lifting the [bankruptcy] stay.’ ” Vallejo disagrees with Fire’s characterization of Jones. First, Vallejo argues that Fire’s use of the Jones decision is a misquote—i.e., Vallejo argues the quoted language does not actually stand for the proposition that a judgment creditor’s right to sue a bankruptcy debtor’s insurer under Insurance Code section 11580, subdivision (b)(2), exists without the need to lift the bankruptcy stay. Next, Vallejo argues that the Jones decision holds that an Insurance Code section 11580 action may be brought by lifting the stay as to the insurer, but not the bankruptcy debtor. Vallejo is correct on the first point. Fire’s use of the quoted language is misleading: the passage at issue does not state that, as a matter of law, a judgment creditor’s right to bring an action against a liability insurer of a bankruptcy debtor exists without lifting the bankruptcy stay. But Vallejo’s interpretation also misconstrues the subject passage of Jones and the central issues in Jones. A closer look at Jones and where the language at issue appears reveals that Jones does not dictate a result contrary to the one we reach here. In Jones, supra, 201 Cal.App.4th at pages 142-143, a series of individuals (tort action plaintiffs) had sued Golden Eagle Insurance Corporation’s (Golden Eagle) insured, Calsol, Inc. (Calsol), alleging they were harmed by exposure to one of Calsol’s products. Golden Eagle was one of multiple companies that had provided general liability insurance to Calsol during the timeframe in which Calsol was alleged to have harmed the 27 tort action plaintiffs. (Id. at p. 143.) Calsol was in bankruptcy, but the bankruptcy court had granted the tort action plaintiffs relief from the automatic bankruptcy stay to allow them to pursue claims against Calsol “on the condition any judgment could be enforced only against Calsol’s insurers, not against Calsol itself.” (Id. at p. 142.) Golden Eagle was placed in a conservatorship. (Jones, supra, 201 Cal.App.4th at p. 142.) As part of the conservatorship, the California Insurance Commissioner (Commissioner) established a procedure to handle claims against Golden Eagle, and sent notice of the procedure to counsel for the tort action plaintiffs. (Id. at p. 144.) When the tort action plaintiffs failed to file timely claims with the Commissioner, the Commissioner denied their claims. (Ibid.) Other companies that had provided Calsol general liability insurance during the timeframe at issue in the tort action filed claims in the Golden Eagle conservatorship proceeding seeking some of the costs of the defense and settlement of the tort action plaintiffs’ claims, which the Commissioner rejected. (Id. at pp. 144-145.) The other insurers then filed an order to show cause in superior court, challenging the Commissioner’s refusal, and the order to show cause was denied. (Id. at p. 145.) The insurers then appealed, and our First District Court of Appeal affirmed the trial court’s decision. (Id. at pp. 142-143.) Thus, the central issue in Jones was whether Golden Eagle was required to share costs of the defense of the tort action plaintiffs’ claims against Calsol. (Id. at p. 145.) In resolving the central issue, the Jones court considered aspects of bankruptcy law to provide part of the context in which the issue arose. (Jones, supra, 201 Cal.App.4th at p. 147.) The court explained, “[f]ederal law provides that whenever a corporation or individual files for bankruptcy, all legal proceedings against the bankrupt are stayed, a provision referred to as the ‘automatic stay.’ (11 U.S.C. § 362(a); [citation].) . . . [U]pon a showing of ‘cause,’ the bankruptcy court has discretion to grant relief from the automatic stay. (11 U.S.C. § 362(d); [citation].) As noted, the bankruptcy court granted the [tort action] plaintiffs relief from the automatic stay to pursue Calsol’s 28 insurers, but the plaintiffs continued to be barred from enforcing any judgment against Calsol itself.” (Jones, at p. 147, italics added.) The court continued, “Calsol’s bankruptcy did not release Golden Eagle and [other insurers] from their obligations under the insurance policies issued to Calsol. Insurance Code section 11580, subdivision (b)(1) expressly preserves the obligation of insurers to honor insurance policies issued to entities that become bankrupt. [Citation.] Further, section 11580, subdivision (b)(2) permits a plaintiff who has obtained a judgment against an insured defendant to pursue a cause of action directly against the insurer for enforcement.” (Jones, at p. 147, italics added.) It is in this context that the court considered the other insurers argument that they should be able to seek costs of a defense in the tort action from Golden Eagle because, even though the tort action plaintiff’s failure to file a claim against Golden Eagle may have extinguished Golden Eagle’s obligation to those plaintiffs, the failure did not extinguish the tort action plaintiffs’ claims against Calsol. (Ibid.) In responding to this argument, the court used the language Fire and Vallejo focus on in their arguments. (Jones, supra, 201 Cal.App.4th at p. 148.) The court noted the other insurers’ argument failed to take into account the situation created by Calsol’s bankruptcy. (Ibid.) In the excerpt provided by Vallejo, the court stated, “[t]he bankruptcy court’s order relieving the plaintiffs from the automatic stay restricted the enforcement of any judgment rendered in their lawsuits to Calsol’s insurers. In effect, the bankruptcy court permitted the plaintiffs to pursue their remedy against the insurers under the rights granted by Insurance Code section 11580, subdivision (b)(2), without lifting the stay with respect to claims against Calsol (or, rather, its bankruptcy estate).” (Jones, at p. 148, underlined language quoted by Fire.) In a sentence not quoted by Vallejo, the court further explained, “[a]s a result, the plaintiffs’ claims are only nominally against Calsol, being pleaded against Calsol only as a means to recover against the insurers. The [tort action] plaintiffs’ lawsuits do not, in fact, place any assets of Calsol at risk. [¶] Because Calsol is not threatened with loss by the plaintiffs’ lawsuits, the lawsuits did not 29 trigger Golden Eagle’s duty to defend.” (Ibid., italics added.) In short, as a step in reaching the conclusion that Golden Eagle did not need to share in the costs of defending Calsol, the Jones court concluded the actions to determine Calsol’s liability did not actually place any of Calsol’s assets at risk, because any payments would come from insurers. (Ibid.) The language quoted by the parties is not, as Fire suggests, a statement of law that a right to bring an Insurance Code section 11580 action against a bankruptcy debtor’s liability insurer exists without lifting a bankruptcy stay. However, it also is not a judicial acknowledgment that a party previously injured by a bankruptcy debtor must always secure an order “lifting the stay as to the insurer” before that party can bring an Insurance Code section 11580 action against the bankruptcy debtor’s insurer as Vallejo implies. Rather, it is an acknowledgment by the Jones court that under the facts of the Jones case, the tort action defendants had to obtain a stay in the bankruptcy action in order to bring an action against Calsol, which would serve as the statutory prerequisite for those defendants to then pursue their own rights against Calsol’s insurers. The reasoning employed by the Jones court supports our conclusion here. The right to bring an Insurance Code section 11580 direct action against a person’s or entity’s liability insurer is dependent on there being a judgment against that person or entity. In Jones, the bankruptcy stay prevented the tort action plaintiffs from bringing actions against Calsol, and, therefore, they needed to lift that stay to obtain judgments against Calsol. Once those judgments were obtained, those defendants could then collect from the insurers without “plac[ing] any assets of Calsol at risk.” (Jones, supra, 201 Cal.App.4th at p. 148.) In contrast, here, Vallejo did not need to lift a bankruptcy stay to obtain a judgment against the Savoys and secure his rights to bring an action against Fire under Insurance Code section 11580. This is so because by the time the Savoys filed for bankruptcy, Vallejo had already obtained a judgment against the Savoys. With that 30 judgment, he then had an independent right of direct action against Fire that did not “place any assets of [the Savoys] at risk.” (See Jones, supra, 201 Cal.App.4th at p. 148.) And, thus, he did not need to obtain relief from the bankruptcy stay to bring an action against Fire in which he sought to collect insurance proceeds under the policy. E. Equitable Estoppel Did Not Toll the Statute of Limitations in Which to Bring the Insurance Code Section 11580 Cause of Action In his responsive brief, Vallejo argues that even if the bankruptcy stay did not toll the statute of limitations for him to bring his Insurance Code section 11580 cause of action, Fire should be estopped from raising a statute of limitations defense based on its conduct while considering Vallejo’s claim—i.e., based on its representations between July 18, 2013, and February 19, 2014, when the cause of action was already being equitably tolled as Fire considered Vallejo’s claim for payment. Vallejo’s argument in his responsive brief is that Fire told Vallejo’s counsel that Vallejo could not claim benefits from Fire until Vallejo obtained relief from the bankruptcy stay, and this “affirmative statement that the automatic stay applied and precluded suit against Fire reasonably led Vallejo to believe that the statute of limitations was tolled based upon the automatic stay.” Vallejo additionally notes that Fire not only told Vallejo the stay applied, it also refused to accept or deny the claim until relief from the stay was obtained. In reply to this argument, Fire argues equitable estoppel did not apply in this instance, primarily because (1) the applicability of the stay in the Savoys’ bankruptcy proceedings to this action was a question of law not fact, and estoppel will not apply unless insurance companies misrepresent or fail to disclose material facts; (2) an insurance adjusters opinion’s about questions of law are irrelevant; and (3) the law particularly disfavors estoppels when the party raising an estoppel was represented by counsel. We directed the parties to submit supplemental briefing regarding a second possible basis equitable estoppel might have applied to toll the statute of limitations. 31 Specifically, we asked the parties to submit supplemental briefs on the following questions: “(1) Setting aside all consideration of whether the statute of limitations to file the action was tolled by the Nevada bankruptcy proceedings of the Savoys, what is the potential estoppel effect of the September 20, 2013, letter written by Elizabeth Croft to Jeffrey Silvia in which she wrote: ‘California laws and regulations require that we provide you with the four year limitation period upon which we may rely to deny a claim’?[; and ¶] (2) If the statute of limitations was not tolled by the bankruptcy proceeding, should this matter be returned to the trial court for consideration of the above question in appropriate proceedings?” In its supplemental opening brief, Fire made various arguments as to why the September 20, 2013, letter had no estoppel effect, the most persuasive of which were that it would not be reasonable to assume the letter’s representations applied to payments due under the policy’s business liability provisions, and it would not be reasonable for Vallejo’s counsel to rely on Fire’s representations about a legal issue. In his supplemental brief, Vallejo does not attempt to argue that the September 20, 2013, letter, standing alone, created an estoppel that would preclude Fire from arguing that statute of limitations ran on Vallejo’s claims. Instead, Vallejo’s primary estoppel argument in his supplemental brief is a reiteration of his position that Fire’s representations regarding the impact of the bankruptcy stay created an equitable estoppel. To the extent he considers the impact of the September 2013 letter regarding the medical payment, he notes that when Fire made a payment under the medical payments policy in September 2013, it “made no mention of the claim for the judgment,” then states that in the next communication regarding Vallejo’s general claim, Fire was back to asserting it would not address the liability claim unless and until relief from the bankruptcy stay was obtained. Having considered all these arguments and the record, we conclude estoppel principles did not toll the statute of limitations for Vallejo to file his action against Fire. 32 The following standards as recited in May v. City of Milpitas (2013) 217 Cal.App.4th 1307 (May) guide our analysis here: “ ‘Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel’ ” to effectuate a tolling of the statute of limitations in which to file an action: “ ‘(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations.]’ (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) The detrimental reliance must be reasonable. (See Lantzy v. Centex Homes [(2003)] 31 Cal.4th [363], 384; Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1152-1153.) ‘The defendant’s statement or conduct must amount to a misrepresentation bearing on the necessity of bringing a timely suit . . . . [Citations.]’ (Lantzy v. Centex Homes, supra, 31 Cal.4th at p. 384, fn. 18.) [¶] ‘As [the California Supreme Court] long ago explained in McKeen v. Naughton (1891) 88 Cal. 462, 467, “ ‘in order to work an estoppel,’ ” a representation “ ‘must generally be a statement of fact. It can rarely happen that the statement of a proposition of law will conclude the party making it from denying its correctness, except when it is understood to mean nothing but a simple statement of fact.’ [Citation.]” ’ (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315.) ‘[I]n the absence of a confidential relationship . . . where the material facts are known to both parties and the pertinent provisions of law are equally accessible to them, a party’s inaccurate statement of the law or failure to remind the other party about a statute of limitations cannot give rise to an estoppel.’ (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1496.)” (May, supra, 217 Cal.App.4th at p. 1338, italics added, original italics omitted.) “Moreover, ‘[i]n general, the law “particularly” disfavors estoppels “where the party attempting to raise the estoppel is represented by an attorney at law.” [Citation.] 33 For purposes of analyzing estoppel claims, attorneys are “charged with knowledge of the law in California.” (Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 679 [rejecting claim of estoppel to assert statute of limitations].)’ (Steinhart v. County of Los Angeles, supra, 47 Cal.4th at p. 1316.)” (May, supra, 217 Cal.App.4th at p. 1339.) With respect to the September 20, 2013, letter, we agree with Fire that it would not have been reasonable for Vallejo to treat this letter as tolling the statute of limitations to bring an action regarding his claim for benefits under the liability coverage beyond what was provided for under the law, and Vallejo has pointed to no evidence and proffered no argument that the letter suggested as much. The first sentence of the letter indicates it is in reference to “medical benefits” available to Vallejo under the policy, and the claim unit number used to identify in the heading of the letter ends is “-1-3.” That same number had been used in prior communications from Fire in which Fire explained the scope of potential medical coverage under the policy and is different from the number used by both Silvia and Newton, which ended in “-1-2,” in discussing a possible payment on the larger judgment liability. Second, the statement regarding the four-year statute of limitations says nothing about when the statute would have begun to run and what, if anything, might have tolled the statute. There is no evidence the letter could have reasonably led Vallejo to conclude he had more than the four years from the date the Savoy judgment became final to challenge Fire’s denial of his claim for liability payments. Therefore, the letter had no estoppel effect on the statute of limitations. As to Vallejo’s argument that Fire ought to be estopped from arguing the statute of limitations was not stayed by the bankruptcy in light of Fire’s representations about the bankruptcy during the negotiations phase, we find it significant that the question of the impact of the stay was a legal one and Vallejo was represented by California counsel and consulted with bankruptcy counsel while Fire was considering his claim. Simply put, Vallejo was in as good a position as Fire during this time to figure out the legal ramifications of the Savoys’ bankruptcy stay. Fire should not be estopped from arguing 34 the statute of limitations was not stayed by the bankruptcy because it took legal positions that Vallejo’s counsel should have been equipped to question and challenge. II Breach of Contract Cause of Action In its opening brief, Fire states that Vallejo’s breach of contract claim is really a redundant pleading of his Insurance Code section 11580 claim, and that, therefore, the same statute of limitations requirements apply to that claim. While Vallejo does make a case for why a different statute of limitations may have applied to his bad faith claim, he does not make a similar effort to differentiate the breach of contract claim from the Insurance Code section 11580 claim. Decisions describing the nature of a judgment creditor’s rights under Insurance Code section 11580, subdivision (b), tend to support the conclusion that a judgment creditor’s effort to collect funds due under a debtor’s liability policy through a breach of contract action against the insurer is really just a different way to state a cause of action under Insurance Code section 11580. (See Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. (1958) 160 Cal.App.2d 290, 298 [Ins. Code, § 11580, subd. (b) “is a part of every policy and creates a contractual relation which inures to the benefit of any and every person who might be negligently injured by the insured as completely as if such injured person had been specifically named in the policy”]; see also Murphy v. Allstate Ins. Co., supra, 17 Cal.3d at pp. 942-943 [Ins. Code, § 11580, subd. (b)(2) makes the judgment creditor a third party beneficiary of the insurance contract between the insurer and insured, and “[a] third party beneficiary may enforce a contract expressly made for his benefit”]; Escobedo v. Travelers Ins. Co. (1961) 197 Cal.App.2d 118, 127; Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 998.) As such, our conclusions here regarding the statute of limitations as applied to Vallejo’s Insurance 35 Code section 11580 claim also apply to his breach of contract claim. By the time he filed this action, the cause of action was time-barred. III Timeliness of Bad Faith Cause of Action In the above sections we concluded that by the time Vallejo contacted Fire, the statute of limitations for him to file an Insurance Code section 11580 action—or breach of contract action—with respect to the De La Garza judgment had already passed. With respect to the statute of limitations for those actions on the Savoy judgment, 11 days remained until he needed to file a lawsuit. The statute of limitations was then tolled until Fire denied his claim on February 19, 2014, giving him until March 3, 2014, to file his Insurance Code section 11580 and breach of contract causes of action. As a result, when Vallejo filed this action on August 26, 2014, his Insurance Code section 11580 and breach of contract causes of action were time-barred. This leaves us to consider whether Vallejo’s cause of action alleging bad faith and the judgment on that cause of action can stand. We conclude that they can. Fire has not raised a persuasive argument that either (1) the action was time-barred, or (2) its denial of payments on the Savoy judgment was reasonable. “The covenant of good faith and fair dealing is implied in every contract as a method to protect the interests of the parties in having the contractual promises and purposes performed.” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1147.) The covenant “ ‘imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, [and] also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.’ (Harm v. Frasher (1960) 181 Cal.App.2d 405, 417.)” (Hand v. Farmers Ins. Exchange, supra, 23 Cal.App.4th at p. 1854.) When a liability policy contains, “ ‘the usual promise to pay “on behalf of the insured . . . all sums which the 36 insured shall become legally obligated to pay as damages because of bodily injury or property damage. . . .” ’ (Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 511.) There can be no doubt that, pursuant to this express policy undertaking, the implied covenant of good faith and fair dealing imposes a duty not to withhold in bad faith payment of damages which the insured has become obligated by judgment to pay.” (Hand v. Farmers Ins. Exchange, at p. 1857.) When bad faith is alleged in the withholding of a payment by the liability insurer, the judgment creditor can bring a cause of action for bad faith nonpayment of a finally adjudicated claim. (See id. at p. 1860.) “[T]here are at least two separate requirements to establish breach of the implied covenant: (1) benefits due under the policy must have been withheld; and (2) the reason for withholding benefits must have been unreasonable or without proper cause. (See also California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1986) 184 Cal.App.3d 1428, 1433 [no award for bad faith can be made ‘without first establishing that coverage exists’]; Kopczynski v. Prudential Ins. Co. (1985) 164 Cal.App.3d 846, 849.)” (Love v. Fire Ins. Exchange, supra, 221 Cal.App.3d at p. 1151, fn. omitted.) In its opening brief, Fire argues that because Vallejo’s suit was barred by the statute of limitations, Fire did not owe Vallejo benefits under the policy, and there could be no bad faith by Fire in denying the claim. Fire further argues that even if this court were to conclude the statute of limitations was tolled during the Savoys’ bankruptcy proceeding, Fire’s denial still would not have been in bad faith because it would have been reasonable for Fire to believe the bankruptcy stay did not apply. Notably absent from this argument is any explanation as to why Fire did not owe benefits under the policy at the time it denied the claim when, regardless of the impact of the bankruptcy stay, the statute of limitations had not run as to the Savoy judgment at the time Vallejo submitted his claim, and that statute of limitations was tolled until Fire issued its denial. That is, Fire appears to be asking this court to believe that even if there was no good reason to deny Vallejo’s request for a payment on the day he made his claim, we should 37 find Fire did not act in bad faith because they would have had legal cause to deny the claim if he had submitted it 11 days later. In response, Vallejo argues that even if this court were to find the statute of limitations bars his Insurance Code section 11580 cause of action, the statute of limitations applicable to his bad faith cause of action did not begin to run until Fire allegedly denied his claim without cause, i.e., on February 19, 2014. Vallejo cites Code of Civil Procedure section 312 and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397, for the proposition that a statute of limitations does not commence until the cause of action has accrued. Then, citing Frazier v. Metropolitan Life Ins. Co. (1985) 169 Cal.App.3d 90, 103-104, Vallejo argues that his bad faith cause of action did not accrue until Fire denied his claim. In Frazier, supra, 169 Cal.App.3d at pages 95 and 97, a life insurance provider paid the wife of a decedent a basic death benefit, and later it denied her an accidental death double indemnity payment, stating it had concluded the decedent’s death had been the “ ‘result of self-destruction.’ ” On a motion to dismiss, the trial court dismissed the breach of contract claim as time-barred by the limitations period contained in the policy. (Id. at p. 98.) However, the trial court allowed the plaintiff to proceed with her breach of covenant of good faith and fair dealing claim on the basis that it was governed by the four-year limitation contained in Code of Civil Procedure section 337, former subdivision (1), now subdivision (a), that applied to actions on written contracts. (Frazier, at p. 98.) On appeal, the Second District Court of Appeal agreed that the plaintiff’s “[a]ction [did] not commence until [the insurer] denie[d] her claim on the ground of suicide. Prior to such time [plaintiff] ha[d] a right (so far as the policy limitation is concerned) to sit back and wait until denial of claim before urging bad faith. Because it is not until [the insurer] actually denies the claim on the ground of suicide that [plaintiff] can actually ascertain whether or not [the insurer] has acted in bad faith. So long as [the insurer] continues to tell [plaintiff] they are trying to uncover new evidence, they have not committed an 38 ultimate act of bad faith, and [plaintiff] has a right to rely upon their assurances.” (Id. at pp. 103-104, italics added.) The court also found that plaintiff was entitled to a four-year statute of limitations on the bad faith claim. (Id. at p. 102.) In its reply, Fire does not directly address Vallejo’s argument that the statute of limitations on the bad faith cause of action did not begin to run until Fire denied his claim, and Fire otherwise makes no argument that the bad faith cause of action was itself time-barred. Instead, Fire again argues that in order for Fire to have acted in bad faith in denying Vallejo’s claim, there needed to be an underlying contract obligation—or Insurance Code section 11580 obligation—from which the duty of good faith would flow. Then Fire makes more explicit its position that, regardless of Fire’s actual reasons for denying coverage on February 19, 2014, it “had an objectively reasonable basis to deny coverage eleven days later when the statute of limitations elapsed,” suggesting the passage of time can convert what is a bad faith decision into a good faith decision after the fact. This argument is not persuasive. Fire could not escape paying Vallejo’s claim due to the passage of the applicable statute of limitations at the time he submitted his claim: Vallejo still had 11 days left to submit it. And those 11 days remained every day Fire spent considering his claim. Had Fire waited another month to decide the claim, it still could not have denied the claim on the basis that it was time-barred. Based on the record and the arguments made, we find that Vallejo’s bad faith cause of action was not time-barred when Fire denied it, Fire has failed to raise a convincing argument that it could have reasonably believed the claim was time-barred when Fire denied it, and Fire has not persuasively countered Vallejo’s argument that the statute of limitations on the bad faith claim began to run the day Fire denied his claim. On this basis, we find there was no error in allowing the bad faith cause of action to proceed. 39 IV Calculation of Contract Damages In its opening brief, Fire argues the trial court miscalculated the “underlying- judgment-owed contract damages” Fire needed to pay Vallejo to compensate him for the amount Fire owed him under the policy when Fire denied the claim. Fire first observes that when the trial court calculated how much Fire owed Vallejo under the policy by the time judgment was entered in this action, it used the $249,405.96 figure from the May 30, 2017, renewed judgment in the underlying action as a starting point, and it added to that figure prejudgment interest at a rate of 10 percent per year from the date of renewal to the day of the hearing to calculate damages in this action, December 18, 2019. Fire then notes that the 2017 renewed judgment calculated the total amount due on the underlying lawsuit as of the date of renewal by adding interest to the De La Garza judgment from the date the De La Garza judgment was entered. Fire then correctly states that Vallejo’s ability to collect on the De La Garza judgment with an Insurance Code section 11580 claim or breach-of-contract cause of action expired in 2011, before the Savoys’ bankruptcy action—and before any other of the myriad possible tolling events we consider above occurred. Fire then argues that if Fire owed Vallejo funds at the time it denied his claim, those funds were owed to cover what the Savoys and not De La Garza owed in the underlying action, and, pursuant to the 2017 judgment renewal, that figure had reached only $229,517.28 by May 2017, because the Savoy judgment was entered later than the De La Garza judgment. Fire argues the $229,517.28 figure should have been used as the baseline for calculating damages based on the nonpayment of funds owing under the policy, and that, using that base figure, the total interest due as of December 18, 2019, was $58,605.46, making the total amount due to cover Fire’s obligation to pay the Savoy judgment $288,122.74, not $313,089.52. 40 In response to Fire’s argument regarding the amount owing under the policy, Vallejo does not quibble with Fire’s calculations and the basis for those calculations. Instead, Vallejo argues Fire waived this argument by failing to raise it below. In reply, Fire claims that it preserved its ability to bring this argument, unconvincingly pointing to two arguments it made below that none of the post-judgment interest added in the 2017 renewal ought to have been included to calculate prejudgment interest in this action. While we disagree with Fire’s position that it made an analogous argument below, “[a] legal argument may be raised for the first time . . . on appeal only ‘so long as the new theory presents a question of law to be applied to undisputed facts in the record.’ (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15; [citation].)” (Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 500.) Here, Fire is essentially asking us to resolve a legal issue: despite the fact that an action against Fire for failure to pay Vallejo under the De La Garza judgment was time-barred when Vallejo filed his claim with Fire, could the trial court award Vallejo interest owing on that judgment alone as if Fire had been legally required to pay on that judgment? We agree with Fire that the trial court had no legal basis to use the post- judgment interest awarded on the De La Garza judgment to calculate damages in this action, because Fire did not owe a payment on the De La Garza judgment. We direct the trial court to rely on amounts due under the Savoy judgment when recalculating damages on remand. V Cross Appeal: Collectability of Costs Under Brandt In a cross-appeal, Vallejo argues that the trial court incorrectly found that costs are not collectible under Brandt, supra, 37 Cal.3d 813, and as a result the trial court improperly failed to award him costs incurred in obtaining benefits owed to him under the policy. Fire counters that Brandt does not permit trial courts to award anything other 41 than attorneys’ fees. Fire also argues that if the trial court could have awarded costs under Brandt, Vallejo has failed to properly identify which costs would be collectible under the Brandt standard. Fire argues that because Vallejo failed to demonstrate, with evidence, which costs were incurred to obtain contract damages and which were incurred to obtain tort damages, Vallejo was not prejudiced by the trial court’s determination and, thus, cannot show he was prejudiced by the trial court’s ruling. We agree with Vallejo’s interpretation of Brandt and its progeny and find the trial court ought to have awarded Vallejo costs incurred to obtain the policy benefits. Though the trial court may have had discretion to review the evidence and calculate the distribution of amounts owed under Brandt (see Track Mortgage Group v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 868 [“We must affirm the award in the absence of a showing of a clear abuse of discretion”]), the question presented here is whether the trial court correctly interpreted the law when it decided it could not also consider the evidence and make an appropriate award of costs. “Questions of law are reviewed d e novo.” (American Contractors Indemnity Co. v. Hernandez (2022) 73 Cal.App.5th 845, 848.) “California adheres to the American rule, ‘which provides that each party to a lawsuit must ordinarily pay his own attorney fees.’ (Trope v. Katz (1995) 11 Cal.4th 274, 278.)” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 806; see also Code Civ. Proc., § 1021 [“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties”].) In Brandt, our Supreme Court “established a notable exception to this rule for insurance bad faith cases. [The Court] explained that if an insurer fails to act fairly and in good faith when discharging its responsibilities concerning an insurance contract, such breach may result in tort liability for proximately caused damages. Those damages can include the insured’s cost to hire an attorney to vindicate the insured’s legal rights under the insurance policy.” (Cassim, at p. 806.) 42 In finding Brandt does not extend to allow for the recovery of costs, the trial court observed that Brandt only talks about the collection of fees. This is a fair observation: Brandt does not articulate a rule which explicitly applies to costs. However, the reasoning employed in Brandt and the Court’s application of it in a subsequent decision both suggest that the underlying principles and policies that allowed for an award of fees should also extend to costs if and when a party has the foresight to seek them. In Brandt, the Court reasoned, “ ‘It is well settled that if an insurer, in discharging its contractual responsibilities, “fails to deal fairly and in good faith with its insured by refusing, without proper cause, to compensate its insured for a loss covered by the policy, such conduct may give rise to a cause of action in tort for breach of an implied covenant of good faith and fair dealing.” (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 574, original italics.) When such a breach occurs, the insurer is “liable for any damages which are the proximate result of that breach.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 925.)’ (Austero[ v. Washington National Ins. Co. (1982) 132 Cal.App.3d 408,] 419-420 [dis. opn. of Morris, P. J.].) [¶] When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney’s fees are an economic loss -- damages -- proximately caused by the tort. (Mustachio v. Ohio Farmers Ins. Co.[ (1975)] 44 Cal.App.3d [358,] 363.) These fees must be distinguished from recovery of attorney’s fees qua attorney’s fees, such as those attributable to the bringing of the bad faith action itself. What we consider here is attorney’s fees that are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action. [¶] ‘When a pedestrian is struck by a car, he goes to a physician for treatment of his injuries, and the motorist, if liable in tort, must pay the pedestrian’s medical fees. Similarly, in the present case, an insurance company’s refusal to pay benefits has required the insured to seek the services of an attorney to obtain those benefits, and the insurer, because its conduct was 43 tortious, should pay the insured’s legal fees.’ (Austero, supra, at p. 421.)” (Brandt, supra, 37 Cal.3d at p. 817.) The Court agreed with and adopted much of the dissenting opinion in Austero v. Washington National Ins. Co., supra, 132 Cal.App.3d 408, quoting it to explain that “ ‘when the insurer’s conduct is unreasonable, a plaintiff is allowed to recover for all detriment proximately resulting from the insurer’s bad faith, which detriment Mustachio has correctly held includes those attorney’s fees that were incurred to obtain the policy benefits and that would not have been incurred but for the insurer’s tortious cond uct.’ (Austero, supra, at p. 422.) The fees recoverable, however, may not exceed the amount attributable to the attorney’s efforts to obtain the rejected payment due on the insurance contract. Fees attributable to obtaining any portion of the plaintiff’s award which exceeds the amount due under the policy are not recoverable.” (Brandt, supra, 37 Cal.3d at p. 819, italics added, fn omitted.) In justifying awards of attorney fees as tort damages in insurance bad faith actions, the Brandt court also cited Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59 to support its observation that in malicious prosecution cases, damages “may include attorney’s fees incurred to obtain . . . dismissal of the unjustified charges.” (Brandt, supra, 37 Cal.3d at p. 818.) Notably, in Bertero, supra, 13 Cal.3d at page 59, the court stated that “the measure of compensatory damages for the malicious prosecution of a civil action includes attorney fees and court costs for defending the prior action.” (Italics added.) In short, in considering the question of whether attorney fees ought to be collectible, the court found they should be to the extent they were part of what might be considered “ ‘ “any damages which are the proximate result of that breach,” ’ ” or, “ ‘for all detriment proximately resulting from the insurer’s bad faith.’ ” (Brandt, supra, 37 Cal.3d at p. 817; id. at p. 819, italics added.) Because some costs incurred in litigation 44 are also arguably part of any or all detriment an insurance beneficiary suffers when an insurer wrongly denies benefits, Brandt’s reasoning should extend to include them. Moreover, shortly after the court decided Brandt, it issued a decision in which it did apply Brandt to allow for an award of litigation expenses other than just attorney fees. In White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, superseded by statute on other grounds as stated in Lee v. Fidelity National Title Ins. Co. (2010) 188 Cal.App.4th 583, 595-596, the court applied Brandt’s holding to uphold an award that included various non-attorney fee litigation expenses: “[In Brandt we] stated that ‘ “when the insurer’s conduct is unreasonable, a plaintiff is allowed to recover for all detriment proximately resulting from the insurer’s bad faith, which detriment . . . includes those attorney’s fees that were incurred to obtain the policy benefits and that would not have been incurred but for the insurer’s tortious conduct.” ’ ([Brandt, supra, ]37 Cal.3d 813, 819.) The same reasoning supports inclusion of witness fees and other litigation expenses as an element of damage.” (White, at p. 890.) To the extent costs incurred by Vallejo were the proximate result of Fire’s bad faith denial of Vallejo’s claim, Vallejo ought to be able to collect them as part of his damages using formulas articulated in Brandt and its progeny. With respect to Fire’s argument Vallejo failed to meet evidentiary burdens that would allow the trial court to allocate costs under Brandt, the trial court ought to be given the opportunity to consider the strength of the evidence submitted, applying our interpretation of the rule articulated in Brandt before we consider what the evidence might or might not show. Accordingly, we remand to the trial court to consider which costs incurred by Vallejo in bringing this action were incurred to collect the amount Fire owed him under the policy at the time it denied his claim. 45 DISPOSITION We remand to the trial court to recalculate damages consistent with this opinion, that is, the policy benefits due and interest thereon should be calculated assuming the judgment Fire was obligated to pay was the Savoy judgment, and not the De La Garza judgment. Additionally, the trial court should award Vallejo costs incurred to collect the amount owing to him under the policy, consistent with the reasoning articulated in Brandt and its progeny for calculating an award of attorneys’ fees. Each party is to pay its own costs on appeal. (Cal. Rules of Court, rule 8.278.) HULL, Acting P. J. We concur: DUARTE, J. EARL, J. 46	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488308/	IN THE SUPREME COURT OF THE STATE OF DELAWARE MARSHALL MARTIN,1 § § No. 401, 2022 Petitioner Below, § Appellant, § § Court Below–Family Court v. § of the State of Delaware § LONDON VALENTINE, § § File No. CK21-02925 Respondent Below, § Petition No. 22-20174 Appellee. § Submitted: October 31, 2022 Decided: November 18, 2022 Before VALIHURA, VAUGHN, and TRAYNOR, Justices. ORDER After consideration of the notice to show cause and the appellant’s response, it appears to the Court that: (1) On October 25, 2022, the appellant, Marshall Martin, filed a notice of appeal from the Family Court’s September 23, 2022 order dismissing his petition for custody. Under Supreme Court Rule 6, a timely notice of appeal was due on or before October 24, 2022.2 1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). 2 Del. Supr. Ct. R. 6(a)(i). Because the thirtieth day fell on a Sunday, the notice of appeal was due before the close of the next business day—Monday, October 24, 2022. Del. Supr. Ct. R. 11(a). (2) The Senior Court Clerk issued a notice directing Martin to show cause why his appeal should not be dismissed as untimely filed. In his response to the notice to show cause, Martin asks for a rehearing of the Family Court’s order and argues the merits of his appeal but does not explain why he did not file a timely notice of appeal. (3) Time is a jurisdictional requirement.3 A notice of appeal must be received by the Court within the applicable time period to be effective.4 An appellant’s pro se status does not excuse his failure to comply strictly with the jurisdictional requirements of Supreme Court Rule 6.5 Unless an appellant can demonstrate that his failure to file a timely notice of appeal is attributable to court- related personnel, the appeal cannot be considered.6 (4) The record does not reflect that Martin’s failure to file a timely notice of appeal in this case is attributable to court-related personnel. Consequently, this case does not fall within the exception to the general rule that mandates the timely filing of a notice of appeal, and this appeal must therefore be dismissed. To the extent that Martin wishes to pursue relief under Family Court Civil Procedure Rule 59, he must do so in the Family Court in the first instance. 3 Carr v. State, 554 A.2d 778, 779 (Del.), cert. denied, 493 U.S. 829 (1989). 4 Del. Supr. Ct. R. 10(a). 5 See Smith v. State, 47 A.3d 481 (Del. 2012). 6 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2 NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court Rule 29(b), that the appeal is DISMISSED. BY THE COURT: /s/ James T. Vaughn, Jr. Justice 3	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488305/	Filed 11/21/22 Casey v. City of Ojai CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX MONICA CASEY, 2d Civil No. B318580 (Super. Ct. No. 56-2019- Plaintiff and Appellant, 00531285-CU-PO-VTA) (Ventura County) v. CITY OF OJAI, Defendant and Respondent. Monica Casey appeals from the order granting summary judgment against her in favor of the City of Ojai (the City). She contends there was a triable issue of fact whether the City had constructive notice of the dangerous condition that caused her injury. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Casey was walking on an unpaved shoulder next to Del Monte Road in the City of Ojai. She tripped over a bent metal rod protruding from the ground, fell, and fractured her radius. She sued the City for injuries alleging a dangerous condition of 1 public property (Gov. Code, § 835). The exposed part of the rod was six to 10 inches long and lay one or two inches above the ground. The rod was an anchor associated with a utility pole owned and maintained by AT&T. The City did not install the rod, and it was not used in any of the City’s operations. The ground around the rod was covered with leaves and was “mottled” (spotted) with areas of sun and shade. Casey did not see the rod before she tripped on it. She stated the rod “was the same color as the dirt” and “given its shape, color and location, [was] not expected, readily apparent or easily visible to anyone who would be passing by on foot.” City workers “pass[ed] by” the area of the accident daily on their way to check the adjacent cemetery. The City routinely maintained the area around the accident site, but not the “exact site” where the exposed rod was located. The City cut the weeds on the shoulder in spring “if needed,” but not every year. String trimmers (Weedwackers) were used to cut the weeds down to ground level. The weed abatement did not necessarily occur in “the exact location” where Casey tripped. City workers were trained to report and remove “tripping hazard[s].” For example, the City ground down uneven surfaces between panels on concrete sidewalks. The City did not receive any reports about the rod before the accident, and did not see the rod during any inspections or repairs it performed. It first learned the rod was present when Casey filed her tort claim in Casey also sued AT&T Services, Inc., and the County of 1 Ventura, but resolved those claims. 2 this case. If the City had been aware of the rod, it would have wanted it removed and would have notified the utility company. The trial court granted the City’s motion for summary judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) DISCUSSION Summary judgment “[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant carries this burden, the burden of production shifts to the plaintiff to “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849- 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850, fn. omitted.) “On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that 3 party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) Constructive knowledge A public entity is liable for an injury proximately caused by a dangerous condition of its property if “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,” and either (a) “[a] negligent or wrongful act or omission of an employee of the public entity . . . created the dangerous condition,” or (b) “[t]he public entity had actual or constructive notice of the dangerous condition” but failed to “protect against” it. (Gov. Code, § 835; Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 513-514 (Martinez).) Casey does not contend the City had actual knowledge of the rod and relies solely on a theory of constructive knowledge. “A public entity had constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code, § 835.2, subd. (b).) The defect must be “sufficiently obvious, conspicuous, and notorious that a public entity should be charged with knowledge of the defect.” (Martinez, supra, 71 Cal.App.5th at p. 521.) The issue of constructive knowledge may be resolved as a matter of law on summary judgment. (Id. at p. 525.) Casey presented no evidence that the rod would have been visible to a passing vehicle or by a City employee standing on the dirt shoulder. It is telling that Casey did not see the rod before she tripped on it. As she admitted in discovery, it was not 4 “readily apparent or easily visible to anyone who would be passing by on foot.” Constructive knowledge was not shown by any prior reports or complaints to the City regarding the rod. (Martinez, supra, 71 Cal.App.5th at pp. 515, 521; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 319 (Heskel).) The declaration of the City’s public works maintenance supervisor was sufficient to establish the lack of reports or complaints. The City was not required to present a statement from every employee who might have had knowledge regarding that issue. (Martinez, at pp. 521- 2 522.) The fact that City workers had removed weeds in the general area did not establish constructive knowledge. (See Heskel, supra, 227 Cal.App.4th at pp. 315-316, 319 [summary judgment for city because city workers in area did not notice hazard].) The evidence does not establish what years the City abated weeds, or that City employees clearing weeds would have seen the rod in the exercise of due care. We examine de novo the photographs the trial court considered in the summary judgment motion and “reach our own independent conclusions” regarding them. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 15, 24- 25.) The photographs support the conclusion that the rod was not “obvious” and would not be discovered in the exercise of due care. 2Another employee the City designated as the person most knowledgeable regarding several issues stated in a deposition that she did not know if any City employee observed the rod before the accident. Casey cites no authority that a triable issue of fact is created when one employee has knowledge regarding an issue and another employee does not. 5 Photographs taken the day of the accident showed the rod was dark, appeared to be several yards from the street, and protruded one or two inches above the ground. The rod was concealed by scattered leaves and an uneven pattern of shadows, apparently from nearby trees. These photographs do not support the contention the rod was “obvious” or “was of a substantial size or so visible from public thoroughfares that the City, in the exercise of due care, should have become aware of it and taken corrective action to cure it.” (Heskel, supra, 227 Cal.App.4th at p. 321.) Casey submitted Google Maps photographs of the dirt shoulder purportedly taken six years before the accident. They contain a small dark spot that Casey declared is the rod. But based on the lack of contrast with the surrounding shadows and the limited quality of the photographs, it cannot be determined if they depict the rod or how long the rod was present. Even if the rod was present for several years, “‘its continued existence does not impart notice to the municipality.’” (Martinez, supra, 71 Cal.App.5th at p. 519 [divot present at least 18 months]; Heskel, supra, 227 Cal.App.4th at p. 316 [hazard present “‘about 2 years’”].) The sustained presence of a dangerous condition does not impart constructive knowledge, where, as here, the defect is not conspicuous. (Whiting v. National City (1937) 9 Cal.2d 163 [uneven sidewalk, six years]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47-50 [break in sidewalk, five to six years].) The court may consider whether the public entity had a “reasonably adequate” inspection system, and whether the dangerous condition was not discovered in operation of an inspection system with due care. (Gov. Code, § 835.2, subd. (b).) 6 But the City was not required to inspect a dirt shoulder with the “same precision” as a sidewalk. (Martinez, supra, 71 Cal.App.5th at p. 524 [alleyway different than sidewalk].) And even if the City’s inspection system was inadequate, constructive notice is not imputed here because the hazard was not obvious. (Id. at p. 520.) Casey cites Erfurt v. State of California (1983) 141 Cal.App.3d 837, 845, where the state was liable for a defective road design that existed for over 10 years. As drivers reached the crest of a hill, they were suddenly blinded by the sun at the same point the freeway lane split into two lanes with a concrete pillar directly in front of them. Unlike Erfurt, there is no evidence here the rod was “obvious.” This case is unlike Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, upon which Casey relies. There, trees and a sign obstructed the view of oncoming traffic. (Id. at pp. 838, 844.) The sign was “an obvious danger” that “was visible from a public roadway.” (Id. at pp. 842-844.) But there is no evidence here the rod was visible from the street or likely to be seen by City employees working on the shoulder. Because Casey did not rebut the City’s prima facie case by showing “the existing evidence created a reasonable inference that the condition was obvious or . . . present additional evidence proving that element,” summary judgment was properly granted. (Heskel, supra, 227 Cal.App.4th at p. 321.)3 3 The City also sought summary judgment based on the affirmative defense of trail immunity. (Gov. Code, § 831.4.) The trial court did not rule on this issue. We need not resolve this issue because summary judgment was appropriate given the lack 7 DISPOSITION The judgment is affirmed. The City shall recover its costs on appeal. NOT TO BE PUBLISHED. BALTODANO, J. We concur: GILBERT, P. J. YEGAN, J. of evidence the City had constructive knowledge of the dangerous condition. 8 Mark S. Borrell, Judge Superior Court County of Ventura ______________________________ Rose, Klein & Marias, William M. Grewe and Amelia A. Steelhead for Plaintiff and Appellant. Procter, Shyer & Winter, James N. Procter II, Kristine A. Tijam; Pollak, Vida & Barer, Daniel P. Barer and Rebecca E. Orloff for Defendant and Respondent.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488293/	In the United States Court of Federal Claims No. 22-887C (Filed Under Seal: November 10, 2022) (Reissued for Publication: November 21, 2022) ) VANQUISH WORLDWIDE, LLC, ) ) Plaintiff, ) v. ) ) THE UNITED STATES, ) ) Defendant, ) ) and ) ) AMENTUM SERVICES, INC., ) Defendant- ) Intervenor. ) ) Michael D. Maloney, Williams Mullen, Tysons, VA, for Plaintiff. Of counsel was Todd W. Miller, Miller & Miller, Golden, CO. Andrew Hunter, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director. Of counsel was Captain Natalie W. McKiernan, Contract Litigation & Intellectual Property Division, United States Army Legal Services Agency, Fort Belvoir, VA. Kevin P. Connelly, Vedder Price P.C., Washington, D.C., for Defendant-Intervenor. Of counsel were Kelly E. Buroker, Tamara Droubi, and Jeffrey M. Lowry. OPINION AND ORDER * SOLOMSON, Judge. This is a story not of a party sleeping on its rights but relinquishing them and then seeking a mulligan. In a previous action before this Court, Defendant-Intervenor, Amentum Services, Inc. (“Amentum”), challenged the award of a contract by Defendant, the United States — acting by and through the U.S. Department of the Army (the “Army”) — to Plaintiff, Vanquish Worldwide, LLC (“Vanquish”). In response to Amentum’s complaint, the government proposed corrective action to moot the dispute. All the parties — and this Court — agreed to the government’s approach, including the dismissal for mootness. Vanquish has since found the Army’s corrective action wanting and thus asks this Court to order the Army to stop or modify its ongoing corrective action process. As explained below, the fatal sand trap for Vanquish here is that it agreed to the Army’s selected course of action and cannot now restart at the first hole. I. FACTUAL BACKGROUND 1 A. The Procurement 1. The Solicitation This case concerns the Enhanced Army Global Logistics Enterprise (“EAGLE”) program. AR 1. The objective of the EAGLE program “is to provide global logistics services, primarily [m]aterial [m]aintenance [s]ervices, [r]etail/[w]holesale [s]upply [s]ervices, and [t]ransportation [s]upport [s]ervices, that meet the Army’s logistics mission needs in the most efficient and cost-effective manner.” AR 4. Pursuant to the protective order in this case, the Court initially filed this opinion under seal on November 10, 2022, and directed the parties to propose redactions of confidential or proprietary information by November 17, 2022. The parties have jointly submitted proposed redactions to the Court. ECF No. 37. The Court adopts those redactions, as reflected in this public version of the opinion. Words or phrases that are redacted have been replaced with [ * * ]. 1 This background section constitutes the Court’s findings of fact drawn from the administrative record. Rule 52.1 of the Rules of the United States Court of Federal Claims, covering judgment on the administrative record, “is properly understood as intending to provide for an expedited trial on the record” and requires the Court “to make factual findings from the record evidence as if it were conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356 (Fed. Cir. 2005). Citations to the administrative record, see ECF Nos. 21, 24, are denoted as “AR” followed by the page number. Additional findings of fact are made throughout Section V. 2 EAGLE is implemented through “a multi-step acquisition process,” via which the Army periodically awards basic ordering agreements (“BOAs”). AR 4. 2 The Army then issues competitive task order “requests for specific requirements that will result in one requirements task order per [Army] installation.” AR 4. The initial estimated value for the EAGLE program was $23.8 billion. AR 25; AR 30. 3 On September 1, 2016, the Army approved an “extension to the EAGLE acquisition strategy for a period of ten (10) years beyond the . . . expiration date of 27 September 2017.” AR 65. On October 28, 2019, the Army finalized a Source Selection Plan (“SSP”) for “a requirement for contract services to support logistics support services at Fort Polk, LA covering a five year period from [an] anticipated start date of May 2020 through May 2025.” AR 81. The anticipated contract (the “Task Order”) would cover “activities [that] directly and indirectly support training of forces, preparing forces for deployment, sustainment, redeployment in support of current conflicts, reset forces, and to rebuild readiness for future deployments and contingencies to meet the demands of a persistent conflict in the 21st Century.” AR 83. The Army estimated the total value of the procurement at approximately [ * * * ]. AR 83. The SSP indicated that the Task Order “will be solicitated on a competitive basis through a full and open competition to all [EAGLE BOA] holders utilizing a competitive best value source selection process,” in accordance with FAR 15.101-1. AR 83. On April 6, 2020, see AR 11150, the Army issued the request for proposals for the Task Order, Solicitation No. W52P1J-19-R-0081 (the “Solicitation” or “RFP”). AR 95–345. 4 The Solicitation informed potential offerors that the Army intends to award a cost-plus- fixed fee task order with a performance period of a one-year base period (including a sixty-day transition-in period), four one-year option periods, and one six-month option period in accordance with Federal Acquisition Regulation (“FAR”) 52.217-8. AR 96 (RFP § A.3). Amentum’s predecessor is the incumbent contractor for the services sought in the RFP. AR 96 (RFP § A.7); AR 1949 (Amentum Proposal). Proposals were due June 25, 2020. AR 1245 (RFP Amendment 0006). 2See AR 31 (explaining that, “[p]ursuant to Federal Acquisition Regulation 16.702(a)(2) BOAs are not contracts,” and “therefore, the contractual obligation occurs at task order execution”); AR 70 (Pre-Solicitation Notice) (delineating “the annual synopsis for requirements falling under the scope of the [EAGLE] program” for which additional BOAs would be awarded). 3As of May 9, 2016, only approximately $1.7 billion of the projected $23.8 billion had been awarded. AR 66. 4 The Army issued seven (7) amendments to the RFP between May 1, 2020, and June 23, 2020. See AR 346–597 (RFP Amendment 0001) (issued May 1, 2020); AR 597–645 (RFP Amendment 0002) (issued May 20, 2020); AR 646–47 (RFP Amendment 0003) (issued May 27, 2020); AR 648–1241 (RFP Amendment 0004) (issued June 4, 2020); AR 1242–43 (RFP Amendment 0005) (issued June 10, 2020); AR 1244–45 (RFP Amendment 0006) (issued June 22, 2020); AR 1246–1248 (RFP Amendment 0007) (issued June 23, 2020). 3 Section L of the RFP, as always, provided instructions for proposal preparation, with several instructions designated as “COMPLIANCE REQUIREMENT[S].” See, e.g., AR 154 (RFP § L.4.1.2(b)) (“COMPLIANCE REQUIREMENT: Failure to provide the most current versions of the RFP Attachments 0002, 0003, or 0005 shall render the Offeror[’]s proposal non-compliant and [it] will not be further considered for award.” (emphasis omitted)); AR 155 (RFP § L.5.1.1(d)) (“COMPLIANCE REQUIREMENT: Failure to provide the signed SF 33 will render the Offeror’s proposal non-compliant. The proposal will not be evaluated and will not be further considered for award.” (emphasis omitted)). 5 The RFP further warned offerors: Failure to provide proposals in compliance with the instructions specified as COMPLIANCE REQUIREMENTS in Section L of this RFP and in compliance with ALL instructions in Section M.3 of this RFP shall render the Offeror’s proposal non-compliant. The proposal will not be evaluated and will not be further considered for award. AR 153 (RFP § L.2.1). 6 With regard to the possibility of discussions, 7 Section L cautioned offerors as follows: [T]he Government intends to award a task order without discussions. Offerors are cautioned to examine this RFP in its entirety and to ensure that proposals contain all necessary information, provide all required documentation, and are complete in all respects. The Government is not obligated to make another request for the required information nor does 5 The Court counts at least fifteen (15) additional proposal instructions in Section L similarly designated as a “COMPLIANCE REQUIREMENT.” AR 154, 156–57, 159–61, 164–70; see also AR 173 (RFP § M.3.2.1) (“The Government will compare the Offeror’s proposal to Section L in order to perform a compliance review. Any Offeror’s proposal determined non-compliant per the terms noted in Section L or determined non-compliant per paragraphs M.3.2.1.1 through M.3.2.1.2(c) below[] will not be evaluated and will not be further considered for award.”). 6 The substance of this warning was repeated in Section L.4.1.2. AR 154 (RFP § L.4.1.2) (“To be considered for this requirement, the Offeror must submit a complete response to this RFP using the instructions provided in Section L. COMPLIANCE REQUIREMENT: If the Offeror’s proposal fails to meet the terms and conditions of the RFP or takes exception to any of the terms and conditions of the RFP, will render the Offeror’s proposal unacceptable and will not be further considered for award.”). 7 See FAR 15.306 (“Exchanges with offerors after receipt of proposals”); FAR 15.307 (“Proposal revisions”). 4 the Government assume the duty to search for data to cure problems it finds in proposals. The Government reserves the right to conduct discussions in the evaluation process and to permit Offerors to revise proposals, if deemed necessary. AR 152 (RFP § L.1.2) (emphasis added). The RFP further provided that “the Contracting Officer may limit the number of proposals in the competitive range,” and that “[a]ny Offeror eliminated from further consideration will be notified in writing.” AR 153 (RFP § L.1.2). The RFP in Section L did not expressly explain whether the government’s reservation of rights to conduct discussions “to cure problems it finds in proposals” and “to permit Offerors to revise proposals, if deemed necessary,” AR 152 (RFP § L.1.2), might apply to an initial proposal that failed a compliance requirement. On the other hand, despite the warnings cautioning offerors that a proposal that fails a specifically- designated compliance requirement “will not be evaluated” or be “further considered for award,” AR 153 (RFP § L.2.1), the RFP “reserve[d] the [Army’s] right to . . . waive the strict compliance review” and to “conduct discussions,” AR 172 (RFP § M.2); see also AR 172 (RFP § M.3) (“The Government reserves the right to waive the Strict Compliance Review if it is in the Government[’]s best interest.”). Section M of the RFP provided that the Army’s evaluation would proceed in stages, in accordance with the Army’s strict compliance review, “starting with the lowest total proposed priced offer” and progressing “to the highest total proposed priced offer, until at least five (5) or 20% of the proposals (whichever is greater) are determined to be compliant.” AR 172 (RFP § M.3.2). The RFP advised offerors “that initially only the pool of five (5) or 20% (whichever is greater) of the proposals found to be compliant will move” on in the process for further evaluation. AR 172; see also AR 173 (RFP § M.3.2.2) (“Only Offerors whose proposals are determined to be compliant will move to Step 1 of the evaluation process.”). Section M.4 of the RFP delineated the Army’s evaluation methodology. AR 173. It provided for “a competitive best value source selection in which competing Offerors will be evaluated against four evaluation factors: Technical, Past Performance, Cost/ Price, and Small Business Participation.” AR 173 (RFP § M.4.1). The Army had to “evaluate the Technical Factor on an Acceptable/Unacceptable basis.” AR 173. The RFP further required the Army to perform a “qualitative assessment” of past performance “by assigning confidence ratings.” AR 173. Although “Cost/Price will be an evaluated factor[,] . . . it will not be rated.” AR 173. Finally, the RFP provided that “[t]he Government will evaluate the Small Business Participation Factor on an Acceptable/ Unacceptable basis.” AR 173. In terms of relative weights and the ultimate best value decision, “[t]he Past Performance Factor is significantly more important than the Cost/Price Factor and Small Business Participation Factor” and “[a]ll non-cost factors, 5 when combined, are significantly more important than the Cost/Price Factor.” AR 173. Contradicting general best value trade-off principles, however, the RFP provided that “[a]ward will be made to the responsible Offeror with the lowest evaluated (fair and reasonable) priced proposal that is determined Technically Acceptable with Substantial Confidence in Past Performance and an Acceptable rating in Small Business Participation.” AR 173. For the proposals that made it past the strict compliance review, if performed, the RFP provided for a three-step evaluation process. In “Step 1,” the Army would evaluate offerors’ technical proposals “on an Acceptable/Unacceptable basis” in accordance with the evaluation criteria set forth in Section M.5. AR 173 (RFP § M.4.1). As part of Step 1, “the Government reserve[d] the right to conduct discussions [in accordance with Section] M.4.4 . . . if the Contracting Officer determines that discussions would be advantageous [to] the Government.” AR 173. Following the technical evaluation, “only the three (3) lowest proposed priced compliant offerors determined technically acceptable will move to Step 2.” AR 173. With respect to “Step 2,” the RFP provided that the Army would conduct evaluations of the past performance, cost/price, and small business participation factors. AR 173 (RFP § M.4.1). As noted above, only the three “compliant proposals” with the total lowest price “that are determined Technically Acceptable at Step 1 will be evaluated” in Step 2 per “the [evaluation] criteria detailed in Section M.5.” AR 173. At the end of Step 2, “[a]ll proposals which are determined to have Substantial Confidence in Past Performance, an Acceptable rating in Small Business Participation, with a realistic cost, will move to Step 3.” AR 174 (RFP § M.4.1.d). “Step 3” involved the Army’s making a task order to the “responsible” offeror whose proposal: (1) “complies with the RFP requirements” and is technically acceptable; (2) offers a “fair and reasonable” price and “is determined to be the lowest total evaluated priced proposal”; (3) receives a “Substantial Confidence” rating for the past performance factor; and (4) is assigned an “Acceptable” rating for the small business participation factor. AR 174 (RFP § M.4.1). Nothing in Sections M.5 or M.4.4 clearly precluded discussions for offerors found to be technically unacceptable following the evaluation of initial proposals. Indeed, the RFP appears to contemplate the possibility of discussions within both Step 1 and Step 2: M.4.4-Discussions M.4.4.1-The Government intends to award without discussions with respective Offerors. IF AND ONLY IF discussions are conducted, upon completion of the Technical Factor evaluations, the Government will make a subsequent competitive range determination, [in accordance with] FAR 6 15.306, based on the final ratings of each [t]echnical proposal against the Technical Factor evaluation criteria. Only Offerors determined Technically Acceptable will remain in this subsequent competitive range and proceed to the Past Performance, Cost/Price, and Small Business Participation evaluations identified in STEP 2 above. M.4.4.2-IF AND ONLY IF discussions are conducted in Step 2, upon completion of the Past Performance Factor and Cost/Price Factor evaluations, the Government will make a competitive range determination, [in accordance with] FAR 15.306. The Past Performance Factor will be evaluated using a qualitative assessment by assigning confidence ratings. The Cost/Price Factor will be evaluated for price reasonableness and cost realism, but it will not be assigned an adjectival rating. Only highly rated proposals or proposals not requiring a major rewrite will remain in the competitive range. Discussions will be held with all Offerors remaining in the competitive range. AR 174 (emphasis added). Notably, the RFP expressly reserved the Army’s right not to follow the three-step process at all: “The Government reserves the right to simultaneously evaluate Technical, Past Performance (if applicable), Small Business Participation (if applicable), and Cost/Price proposals.” AR 174 (RFP § M.4.1.f). 2. Proposals, Evaluations, and Contract Award The Army received nine proposals. AR 11050. Following the resolution of two pre-award bid protests, 8 the Army assessed the proposals and found them all “compliant with the instructions provided in Sections L and M of the RFP” such that they “move[d] to Step 1 of the evaluation process.” AR 10629 (Proposal Compliance Standings Memorandum). The compliant proposals included Vanquish Worldwide, LLC, as well as Amentum Services, Inc., and Vectrus Mission Solutions Corp. (“Vectrus”). AR 10629. On December 9, 2020, the Army requested that all offerors “extend and validate proposals through March 25, 2021.” AR 11060 (Source Selection Evaluation Board Report). Vectrus, however, failed to do so and thus “was removed from the competitive range voluntarily for not responding by the due date.” AR 11060. The Army, however, “decided to add 8Two GAO pre-award protests were filed prior to the final due date. See AR 11060 (Source Selection Evaluation Board Report). In response to the first protest, the Army took corrective action by amending the RFP. AR 11060. The GAO denied the other protest. See AR 11060. 7 Vectrus back into the competitive range as it was not expecting to be voluntarily removed” and for other reasons. AR 11060. 9 Following Step 1, Amentum received an overall technical evaluation factor rating of “Unacceptable” based on Amentum’s proposed “Staffing/Labor Mix.” AR 10630 (Amentum Technical Consensus Worksheets); AR 10840 (Amentum Technical Evaluation – Final Report); AR 11063 (Source Selection Evaluation Board Report). That overall technical rating was the result of an unacceptable rating for Amentum’s “Staffing/Labor Mix.” See AR 10840, 10845–49. In contrast, Vanquish received an overall technical factor rating of “Acceptable.” AR 10890 (Vanquish Technical Evaluation – Final Report); AR 11063. Amentum, however, was the lowest total proposed priced offeror at $253,830,413, while Vanquish was the second lowest at $258,798,380. AR 11051; AR 11061–62. On June 2, 2021, the Source Selection Authority issued her Source Selection Decision Document (“SSDD”), 10 AR 11049–55, selecting Vanquish as the “best overall value in accordance with the [RFP’s] criteria . . . to satisfy the U.S. Government’s requirement for Logistics Support Services at Fort Polk, LA,” AR 11055. Despite the Source Selection Evaluation Board’s reference to a competitive range which variously included or excluded Vectrus, see AR 11060, the SSDD makes no mention of any decision to form a competitive range or whether the Army even considered conducting discussions. The Army notified Vanquish of its award of the Task Order on June 8, 2021. AR 11080 (Notice of Contract Award). On that same date, the Army notified Amentum that it was unsuccessful and provided a written debriefing. AR 11148–50 (Unsuccessful Offeror Notice /Debriefing – Amentum). B. Amentum’s Bid Protest Three disappointed offerors, including Amentum, filed post-award GAO protests, all of which were denied or dismissed by September 30, 2021. See AR 20489–501 (GAO Protest Decision – Amentum & VS2, LLC); AR 20506–08 (GAO Protest Decision – Data Solutions & Technology, Inc.); see also Amentum Servs., Inc., B-418742.3, 2021 CPD ¶ 334, 2021 WL 4819074 (Comp. Gen. Sept. 30, 2021). On October 15, 2021, Amentum filed a complaint in this Court against the United States, pursuant to 28 U.S.C. § 1491(b)(1), challenging the Army’s contract award to 9 The Court could not locate documentary evidence of this competitive range determination in the administrative record. 10The SSDD has two different dates on it — June 2, 2022, appears to be the correct one. AR 11055. In addition, the Index to the Administrative Record, ECF No. 21-1, incorrectly lists the SSDD as contained at Tab 39, AR 11060. That citation, however, is to the first page of the Source Selection Evaluation Board Report (and not the SSDD). 8 Vanquish. Complaint, Amentum Servs., Inc. v. United States, 2021 WL 5871734 (Fed. Cl. 2021) (No. 21-2029C), ECF No. 1. On October 18, 2021, Vanquish intervened in the case. Motion to Intervene, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 16. On November 4, 2021, Amentum filed an amended complaint, asserting, inter alia, that: (1) the “Army unreasonably deviated from the stated proposal instructions and evaluation criteria set forth in the [S]olicitation by rejecting Amentum’s proposal as technically unacceptable”; and (2) the Army should have conducted discussions, pursuant to DFARS 215.306(c)(1), but failed to do so. Amended Complaint ¶¶ 131, 142, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 21. Amentum sought a declaration “that the Army violated the requirements of DFARS 215.306(c)(1) by failing to conduct discussions” and a “permanent injunction, requiring the Army to cancel its improper award to Vanquish.” Id. at 32. In response to Amentum’s amended complaint, the government, on December 3, 2021, filed an unopposed motion to stay the proceedings in that case and for a voluntary remand to the Army, pursuant to Rule 52.2 of the Rules of the United States Court of Federal Claims (“RCFC”). Motion to Remand, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 26. In that motion, the government represented that the Army “wishes to reconsider its award decision in light of the issues raised by Amentum’s complaint.” Id. at 3. The government therefore requested, inter alia, that the Court “remand this matter to [the Army] for reconsideration of the challenged decision and any further administrative actions consistent with that reconsideration.” Id. Additionally, the government asked the Court to “authorize . . . [the Army] to consider any further information that the agency may gather during the remand in accordance with any procedures that the agency may establish for that purpose.” Id. The government argued that “[a] remand is in the interest of justice because it will provide the agency with an opportunity to reconsider the award decision at issue in light of Amentum’s allegations and any new information gathered during the proposed remand.” Id. at 2. Moreover, the government asserted that “[d]uring the proposed remand, the agency potentially could make a decision that could moot this action, in whole or in part, and may obviate the need for further litigation in this Court.” Id. Finally, the government maintained that its request was made “in good faith” and that “[w]hen, as in this case, ‘the agency’s concern is substantial and legitimate, a remand is usually appropriate.’” Id. (quoting SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)). The government’s motion admitted no error and “[did] not commit to any particular course of corrective action.” Amentum Servs., Inc., 2021 WL 5871734, at 1. During a subsequent December 7, 2021, status conference to discuss the government’s motion, “the government disclosed the existence of an internal memorandum that addresses whether the agency planned to conduct discussions in the procurement at issue.” Amentum Servs., Inc., 2021 WL 5871734, at 1. Based on that memorandum, the government was “disinclined to defend the agency’s decision not to conduct discussions.” Id. But, “[b]ecause the remedy for a violation of DFARS 215.306, 9 in any event, would likely [have been] an injunction requiring the agency to consider in the first instance, under the proper standard, whether discussions should be conducted,” the government urged this Court to “permit a remand . . . for that very purpose.” Id. The government proposed that, on remand, “the agency will decide either (a) to conduct discussions (and accept final proposal revisions), thus rendering the . . . dispute moot, or (b) discussions are not warranted, but will memorialize its new decision for possible judicial review, should Amentum seek to amend its complaint further to challenge such a newly rendered decision.” Id. Applying Keltner v. United States, 148 Fed. Cl. 552 (2020), and SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001), this Court denied, in part, the government’s motion for a voluntary remand. Amentum Servs., Inc., 2021 WL 5871734, at 2–3. In particular, this Court explained: [S]uch a remand — at least as proposed — would likely “delay this case . . . and serve to only potentially improve the government’s litigation posture.” The government’s mere assertion that the agency desires another opportunity to review its decision is insufficient to justify granting the broad discretion the government seeks via its voluntary remand motion. In that regard, while the need for finality at this juncture perhaps is not overwhelming, the Court sees no reason to order a remand and have this case remain on the Court’s docket [pursuant to RCFC 52.2] while the agency broadly reassesses its position, all while having an unrestricted opportunity to effectively supplement the administrative record — something the government could not so easily accomplish during the litigation of this case. Id. at 2 (second alteration in original) (quoting Keltner, 148 Fed. Cl. at 565). The Court further found “that the scope of the government’s remand request [was] inappropriate” in light of the government’s having “propose[d] broad discretion in its remand request, including the right to take ‘any further administrative actions’ . . . and the right to ‘consider any further information that the agency may gather during the remand in accordance with any procedures that the agency may establish for that purpose.’” Amentum Servs., Inc., 2021 WL 5871734, at 2 (quoting Motion to Remand at 3, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 26). The Court concluded that “[s]uch latitude is neither appropriate nor just given the narrow issue the agency putatively seeks to address — whether the agency should have conducted discussions in the first instance.” Id. 10 In sum, this Court concluded that “the agency either stands by its award decision or it does not, and the procurement decision at issue is either ripe for review or it is not” but there was “no reason in this case [for the Court] to superintend a remand process by adopting the government’s proposed voluntary remand order.” Amentum Servs., Inc., 2021 WL 5871734, at 3. While the Court denied, in part, the government’s motion, and “decline[d] to exercise its discretion to order a remand,” the Court imposed a “brief stay of th[e] case for the government to reconsider its contract award decision — i.e., to determine whether discussions [were] warranted . . . (pursuant to DFARS 215.306).” Id. This Court noted that such an order represented “a fitting compromise, one to which no party raised a substantial objection during the December 7, 2021, status conference, when the Court proposed it.” Id. (emphasis added). The Court further ordered the parties to file a joint status report (“JSR”), on or before the conclusion of the stay, indicating whether: 1. The government has decided to rescind the disputed contract award for the purpose of engaging in discussions (and accepting final proposal revisions), thereby rendering th[e] case moot; 2. The government has decided not to rescind the . . . contract award, in which case the parties shall propose a schedule for further proceedings; or 3. The government proposes to rescind the disputed award decision for yet other reasons, in which case the parties shall provide their respective positions as to how the case should proceed, if at all. Amentum Servs., Inc., 2021 WL 5871734, at 3 (first emphasis added) (footnotes omitted). On January 24, 2022, the parties filed a JSR, selecting the Court’s first option. Joint Status Report, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 30. The parties, including Vanquish, jointly represented as follows: The [Army] has decided to rescind the disputed contract award to Vanquish, establish a competitive range, engage in discussions, and accept proposal revisions. The agency’s decision renders Amentum’s protest moot. The parties intend to file a joint stipulation of dismissal without prejudice with each party to bear its own costs and fees. Id. at 1. On January 28, 2022, the parties filed a joint stipulation of dismissal without prejudice, Joint Stipulation of Dismissal, Amentum Servs., Inc., 2021 WL 5871734 (No. 21- 2029C), ECF No. 31, and the Court, accordingly, dismissed the case that same day. 11 C. The Army’s Post-Remand Discussions Process Following the dismissal of Amentum’s protest, the government implemented the corrective action by establishing a competitive range. AR 20530 (Competitive Range Determination – Final). The Army decided, “[a]fter evaluating the original compliance review performed on each proposal,” that seven (7) offerors “will be within the competitive range during discussions.” AR 20532–33 (noting that “[t]he Strict Compliance memorandum for the record, dated 10 August 2020, provides details of the original compliance review”). The Army included both Amentum and Vanquish in the competitive range. AR 20533. On April 27, 2022, the Army transmitted letters to offerors regarding discussions. AR 20667–78. The letter to Vanquish, for example, advised that “[t]he Government evaluated your proposal dated 22 June 2020 and you are hereby afforded the opportunity to update your proposal.” AR 20675. Because Vanquish “was previously determined to be Technically Acceptable,” Vanquish did not receive any evaluation notices (“ENs”) critiquing its proposal for weaknesses or deficiencies. AR 20675. Amentum, however, was instructed to review and address ENs — to “correct deficiencies” — in a revised proposal. AR 20667; see also AR 20679–81 (Amentum ENs). Offerors were permitted to make changes “to the[ir] original Cost/Price Factor” proposal. AR 20676. On or about June 2, 2022, the Army issued the first-round answers to offeror questions regarding the discussions process (“Q&As”). AR 20540–628. Question number four asked: “Will the Government please confirm that in accordance with FAR 15.306 combined with Solicitation Section M.4.4 provisions, only Step-2 technically acceptable offerors were included in the competitive range and these Discussions?” AR 20616. The Army responded in the negative: “The Government is evaluating everyone that was evaluated for technical whether or not it was determined acceptable or unacceptable.” AR 20616. In that regard, the Q&A document specifically informed offerors that “[i]t’s possible [that an] offeror did not move on to step 2 or 3 and therefore parts of the proposal may not have been evaluated.” AR 20616 (Answer to Question No. 19). The Army contemplated requesting final provision revisions (“FPRs”) prior to the close of discussions. AR 20616 (Answer to Question No. 11). While the Q&A document set a deadline of June 8, 2022, for revised proposals, AR 20616 (Answer to Question No. 7), the Army’s transmittal email specified the deadline as June 17, 2022. See, e.g., AR 20624–25. A second, subsequent Q&A document transmitted to offerors on or about June 8, 2022, see, e.g., AR 20629, clarified that EN revisions would be due “COB 24 June 2022” with FPRs “due at a later date not yet identified.” AR 20630 (Q&A Round 2). On June 21, 2022, the Army issued a third Q&A document. AR 20642– 66. The Army maintained the previous deadline for EN revisions and set a deadline for FPRs, instructing as follows: “EN revisions are due by COB 24 June 2022” and “[f]inal 12 proposal revisions are due by COB 22 July 2022.” AR 20642. The offerors responded to ENs and submitted revised proposals. AR 20691–24210. On August 3, 2022, the Army notified offerors “that the Government is closing discussions and requesting” FPRs. AR 24237 (Amentum Close Discussion Letter); see also AR 24245 (Vanquish Close Discussion Letter). The Army notified Amentum that it did not have to submit a revised technical proposal because “[t]he Government considers the Technical ENs resolved in full.” AR 24237; see also AR 24221 (Amentum EN Responses Assessment) (“EVALUATOR ASSESSMENT OF OFFEROR RESPONSE: Updates have been verified and EN response is acceptable.”). The Army set the new date for FPRs as Monday, August 15, 2022. AR 24237. On August 12, 2022, however, the Army notified offerors that the Army is “aware that there are issues remaining that will require clarification” and thus, “[t]he due date for [FPRs] is being extended and will no longer be due on 15 August 2022,” with a “revised proposal submission date [to] be provided at a later time.” AR 24878 (Email to Contractors Regarding Updated FPR Date). On September 1, 2022, the Army received the offerors’ FPRs. See ECF No. 26 at 6 (“FPRs were not due at the filing of this protest, but were since received [by the Army] on September 1, 2022.”); ECF No. 34 at 66 (government confirming that FRPs “have been submitted” to the Army). D. Vanquish’s Agency Protests During the above-described discussions process, on May 23, 2022 — well in advance of the due date for EN responses, proposal updates, or FPRs — Vanquish filed a timely pre-award protest with the Army. AR 24250. Vanquish asserted that “if the Army has conducted discussions with offerors whose proposals were [originally] not determined to be technically acceptable, then the Army has violated the terms of the Solicitation.” AR 24251. Vanquish further argued that “[w]hile the Army has the discretion to conduct corrective action, it does not have the discretion to deviate from the terms of the Solicitation.” AR 24251. On June 10, 2022, Vanquish filed yet another agency-level protest, AR 24384, “[t]he purpose [of which] is to ensure that the Army’s corrective action is consistent” with the JSR filed in Amentum’s earlier protest before this Court, AR 24385 (“Recent communications from the Army demonstrate that it is engaging in corrective action that is different than the corrective action described in the JSR.”). More specifically, based on the Army’s June 2, 2022, Q&A document, Vanquish asserted that “[t]he Army’s response to Question 4 confirms that the Army is engaged in discussions with offerors whose proposals were determined to be technically unacceptable.” AR 24393. Vanquish contended that including such offerors in the discussions process “violates Section M[.]4.4.2 of the Solicitation.” AR 24393. 13 On June 22, 2022, while the first two-agency level protests pending before the Army, Vanquish filed a third, primarily reiterating variations on the arguments advanced in its first two agency-level protests. AR 24514; AR 24521 (“[I]n establishing the competitive range and engaging in discussions with technically unacceptable offerors, the Army is violating the terms of the Solicitation and the requirements of the FAR.”). On July 25, 2022, the Army denied all three of Vanquish’s protests. AR 24834–46.11 Undeterred, on July 28, 2022, Vanquish filed a request for reconsideration with the Army, AR 25062–81, which the Army summarily dismissed on August 25, 2022, AR 25082–83. II. PROCEDURAL HISTORY On August 10, 2022, Vanquish filed an action pursuant to 28 U.S.C. § 1491(b)(1), “challeng[ing] the Army’s implementation of corrective action.” ECF No. 1 (“Compl.”) ¶¶ 1, 7. Vanquish asserts that “[b]ut for the Army’s unlawful and arbitrary and capricious conduct in the corrective action, Vanquish would be selected for award of the contract, and is therefore an interested party with standing to bring an action under 28 U.S.C. § 1491(b)(1).” Compl. ¶ 9. Vanquish’s complaint before this Court asserts two counts with the same central theme: the Army improperly established a competitive range and conducted “discussions with technically unacceptable offerors,” Compl. ¶ 53, including Amentum, in violation of both FAR 15.306, Compl. ¶¶ 49–55 (Count I), and the Solicitation, Compl. ¶¶ 56–63 (Count II). Vanquish’s complaint requested a preliminary injunction and asserts that Vanquish is entitled to declaratory relief and a “permanent injunction, requiring the Army to follow the FAR, the DFARS, and all of the terms of its own Solicitation including the terms relating to the formation of a competitive range and discussions with offerors.” Compl. at 16 (“Prayer for Relief”). On August 15, 2022, Amentum filed a motion to intervene, ECF No. 8, which the Court granted, EFC No. 10. That same day, the Court issued a status report order that memorialized the government’s voluntary stay of the procurement to avoid the need for the parties to litigate, and the Court to decide, Vanquish’s request for a preliminary injunction. ECF No. 11. On August 26, 2022, the government filed the administrative record, ECF No. 21, which was subsequently amended on September 8, 2022, ECF No. 24. On September 12, 2022, the parties filed their respective motions for judgment on the administrative record (“MJAR”). See ECF No. 25 (“Pl. MJAR”); ECF No. 26; ECF No. 27 (“Intv. MJAR”). On September 21, 2022, the parties filed timely response briefs. See 11Separate from Vanquish’s protests, Amentum, on August 11, 2022, filed an agency-level protest with the Army, challenging an alleged “ambiguity that exists between the [S]olicitation . . . and conflicting statements from the Army regarding which versions of the relevant Collection Bargaining Agreements and Wage Determinations offerors should utilize.” AR 24849. There is no evidence in the record that the Army has decided or otherwise resolved that protest. 14 ECF No. 30; ECF No. 31 (“Pl. Resp.”); ECF No. 32. On September 29, 2022, the Court held oral argument. ECF No. 34 (“Tr.”). III. JURISDICTION AND STANDING The Tucker Act provides that an “interested party” may file an “action” in this Court “objecting [1] to a solicitation by a Federal agency for bids or proposals for a proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1); see also Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 559 & n.18 (2021) (“Section 1491(b) actions are typically referred to as ‘bid protests.’”). 12 “Standing is an integral part of jurisdiction.” Seventh Dimension, LLC v. United States, 160 Fed. Cl. 1, 14 (2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “The party invoking federal jurisdiction bears the burden of establishing standing.” CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018) (citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002)). “Where a plaintiff lacks standing, its case must be dismissed pursuant to RCFC 12(b)(1).” Aero Spray, Inc., 156 Fed. Cl. at 556 (citing Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003)). To establish standing in a § 1491(b) action, a plaintiff must demonstrate that it is an “interested party.” Id. at 559 (“[T]he Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, . . . defines not only this Court’s jurisdiction over what actions may be brought against the government, but also who has standing to pursue them.”). In a post-award protest action, an “interested party” is “[1] an actual or prospective bidder or offeror [2] whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps., AFL- CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)). In a pre-award protest action — typically involving a challenge to the terms of a solicitation — a plaintiff must allege facts that “demonstrate[] a ‘non-trivial competitive injury which can be addressed by judicial relief.’” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 12 Cf. Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 96–97 (2020) (“[A]lthough ‘[the Administrative Dispute Resolution Act] covers primarily pre- and post-award bid protests,’ the Federal Circuit in RAMCOR explicitly reversed this Court’s determination ‘that a [plaintiff] could only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the underlying contract award’ or the solicitation.” (third alteration in original) (quoting RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999))). 15 1362 (Fed. Cir. 2009) (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)). 13 Under either “interested party” test, “the question of prejudice goes directly to the question of standing,” and thus “the prejudice issue must be reached before addressing the merits.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003); see also Myers, 275 F.3d at 1370 (“[P]rejudice (or injury) is a necessary element of standing.”). Also, under either test, a plaintiff must allege facts — not mere conclusory assertions of law — demonstrating prejudice. See Blue Origin Fed’n, LLC v. United States, 157 Fed. Cl. 74, 89 (2021) (“[T]he court must decide whether those alleged facts show the protestor was prejudiced by the alleged errors.” (citing Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996))). The Court assumes the facts alleged in a plaintiff’s complaint are true for the purposes of evaluating standing but not for the purpose of resolving whether a plaintiff has demonstrated prejudice on the merits. See id. at 89 (“For the limited purpose of determining whether it has standing, a protestor’s allegations are assumed to be true.” (citing Am. Relocation Connections, L.L.C. v. United States, 789 F. App’x 221, 226 (Fed. Cir. 2019))); Am. Relocation Connections, 789 F. App’x at 226 (“For standing, we presume the party bringing a bid protest will succeed on the merits of its claim and ask whether it has alleged an injury (or prejudice) caused by the procuring agency’s actions.”); Yang Enterprises, Inc. v. United States, 156 Fed. Cl. 435, 444 (2021) (“The Court assumes well-pled allegations of error to be true for purposes of the standing inquiry.”).14 Amentum, but not the government, challenges Vanquish’s standing on the grounds that Vanquish has failed to allege facts demonstrating prejudice. See Intv. MJAR at 14–16. In any event, the Court has an independent duty to ascertain whether it possesses jurisdiction to decide Vanquish’s claims and whether it has standing to pursue them. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” (alteration in original) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))); see also RCFC 12(h)(3). 13Aero Spray, Inc., 156 Fed. Cl. at 562 (explaining that “[t]he Federal Circuit . . . modified that post- award standing test for pre-award cases” because “applying the [post-award] ‘substantial chance’ test makes little or even no sense” where “an agency is in the early stages of the procurement process and potential offerors have not even submitted proposals yet”). 14 To succeed on the merits, a plaintiff must prove its allegations. See L-3 Commc’ns Corp. v. United States, 99 Fed. Cl. 283, 289 (2011) (“[T]he prejudice determination for purposes of standing assumes all non-frivolous allegations to be true, whereas the post-merits prejudice determination is based only on those allegations which have been proven true.”). 16 Having considered Amentum’s arguments and Vanquish’s complaint, the Court concludes that Vanquish, by a hair, has alleged sufficient facts for a narrow ground of protest. 15 Vanquish’s allegations of prejudice are limited to a single paragraph in its complaint under a section entitled “Jurisdiction and Standing”: [1] The Army previously awarded a contract to Vanquish under this procurement prior to its current corrective action. [2] Vanquish should not be forced to compete in a procurement where an agency’s corrective action is unlawful and violates the Solicitation. [3] But for the Army’s unlawful and arbitrary and capricious conduct in the corrective action, Vanquish would be selected for award of the contract, and is therefore an interested party with standing to bring an action under 28 U.S.C. § 1491(b)(1)[.] Compl. ¶ 9. The first sentence in that paragraph is true and undisputed. The Court reads the second sentence very generously as asserting a harm from having to compete for a contract twice in violation of the Solicitation. Cf. Seventh Dimension, LLC, 160 Fed. Cl. at 35 (“[P]laintiff should not be made, quite unfairly, to compete twice for a procurement it has all but won already . . . .”). As to that assertion, the Court agrees that Vanquish adequately alleges prejudice pursuant to the pre-award “interested party” test, which the Court assumes, but does not definitively determine, applies here. 16 As to the third sentence of that above-quoted paragraph, however, Vanquish alleges zero facts demonstrating that “[b]ut for the Army’s unlawful . . . conduct[,] . . . Vanquish would be selected for award of the contract.” Compl. ¶ 9. Conclusory assertions of prejudice are not entitled to any weight, even at this stage. See Perry v. United States, 149 Fed. Cl. 1, 33 (2020) (“[T]he complete lack of any factual allegations contained in [the] Complaint to support an illegal exaction claim precludes this Court from 15The fact that a plaintiff may “successfully allege[] an injury (or prejudice) for standing purposes” — because if the plaintiff “succeeded on the merits . . . it would have a ‘greater than an insubstantial chance of securing the contract’” — does not excuse a plaintiff from proving prejudice on the merits based on the administrative record. Am. Relocation Connections, 789 F. App’x at 227 (quoting Info. Tech., 316 F.3d at 1319). 16 Vanquish, in its MJAR, argues that “the Army is forcing Vanquish to recompete for a contract on an unlevel playing field, where the ground rules have been changed.” Pl. MJAR at 23. Vanquish, however, does not allege or prove facts demonstrating either (1) an unlevel playing field, or (2) that the ground rules have been changed. Nor does Vanquish establish how any such changes impact Vanquish negatively or unfairly. 17 exercising subject-matter jurisdiction.”), aff’d, 2021 WL 2935075 (Fed. Cir. July 13, 2021).17 Moreover, that allegation of prejudice cannot possibly be ripe because (1) FPRs already have been submitted, and (2) Vanquish may still win the contract award as a result of the ongoing procurement process. See Coal. for Common Sense in Gov’t Procurement v. Sec’y of Veterans Affs., 464 F.3d 1306, 1315–16 (Fed. Cir. 2006) (“It is appropriate for us to consider ripeness even though it is not raised by the parties because ripeness is a jurisdictional consideration that the court may address sua sponte.”). Accordingly, the Court grants, in part, Amentum’s motion to dismiss pursuant RCFC 12(b)(1), with regard to the second category of prejudice Vanquish asserts. In any event, the Court rejects Vanquish’s entire protest as meritless. IV. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1491(b)(4), this Court applies the standard of review contained in the Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706. Nat’l Gov’t Servs., Inc. v. United States, 923 F.3d 977, 981 (Fed. Cir. 2019). In particular, in accordance with the APA, this Court reviews an agency’s procurement decisions to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “In applying the APA standard of review, this Court affords considerable deference to an agency’s procurement decisions.” IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 286 (2022) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)). In reviewing an agency’s procurement decision, the Court “determine[s] whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). A plaintiff succeeds on the merits where it demonstrates, based on a trial on the administrative record, 18 that either: “(1) the [agency]’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Id. at 1332. 17The “[d]etermination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Of course, “mere legal conclusions employing the right words to create a putative jurisdictional hook are pretextual and cannot create jurisdiction where none exists.” Wickramaratna v. United States, 2022 WL 1124872, at 5 (Fed. Cl. Apr. 15, 2022). 18 See Bannum, 404 F.3d at 1354–56. 18 V. DISCUSSION A. Vanquish Is Bound by Its Prior Agreement with the Parties During Amentum’s Bid Protest Action Vanquish’s challenge to the Army’s conduct here boils down to the assertion that Vanquish “should not be forced to compete with Amentum and other offerors whose proposals are technically unacceptable and . . . could not properly be placed in to [sic] the competitive range under the Solicitation as published to all offerors more than two years ago.” Pl. MJAR at 24. But Vanquish should have thought about all of this before it signed- on to the JSR ultimately resulting in the dismissal of Amentum’s protest. Here is the bottom line up front: the government is doing exactly what the parties agreed to; Vanquish cannot now ask this Court to tell the government to reverse course. As noted above, the parties, in response to Amentum’s earlier protest, jointly represented to the Court as follows: The [Army] has decided to rescind the disputed contract award to Vanquish, establish a competitive range, engage in discussions, and accept proposal revisions. The agency’s decision renders Amentum’s protest moot. The parties intend to file a joint stipulation of dismissal without prejudice with each party to bear its own costs and fees. Joint Status Report at 1, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 30 (emphasis added). Given that the parties agreed that Army’s corrective action would “render[] Amentum’s protest moot,” id., and that Amentum’s complaint challenged not only the Army’s general failure to conduct discussions but also the Army’s technical evaluation of Amentum’s proposal, Amended Complaint ¶¶ 121–132, Amentum Servs., Inc., 2021 WL 5871734 (No. 21-2029C), ECF No. 21, the Court’s ineluctable conclusion is that the parties must have agreed that Amentum would be included in the resulting discussions. An easy counterfactual demonstrates the Court’s reasoning is correct. Imagine if the Army’s corrective action did not include permitting Amentum to revise its proposal in a FPR via discussions. According to Vanquish, Amentum agreed to a process that cured nothing but rather left Amentum ineligible for award. 19 The absurdity of 19See Tr. 5:13–22 (Vanquish counsel agreeing that this Court should “read the joint status report” as requiring the government to “establish a competitive range that excludes Amentum”); Tr. 9:14– 18 (“THE COURT: Wait. You want me to read [the JSR as] Amentum[’s] agreeing to a joint status report that said the Government is going to go back [to conduct discussions] but exclude 19 Vanquish’s position is striking: Amentum gained literally nothing by agreeing to corrective action in the JSR and the subsequent joint stipulation of dismissal. More significantly still, such an interpretation would mean that the corrective action did not moot Amentum’s protest — as it sought to challenge its technical rating even in the absence of discussions. But we know that all the parties, and this Court, previously agreed that the agreed-upon corrective action did render Amentum’s complaint moot.20 Another way to think about the absurdity is this: were Amentum excluded from the competitive range (and hence discussions) during corrective action, we would be right back where we started — having to resolve Amentum’s complaint. Vanquish may now regret having agreed to the rescission of its award and to the reopening of the competition, but that is all water under the bridge. In the absence of a time machine, Vanquish is out of luck; Vanquish is bound by its agreement with the government and Amentum. “[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (alteration in original) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)); see also Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996) (“The doctrine of judicial estoppel is that where a party successfully urges a particular position in a legal proceeding, it is estopped from taking a contrary position in a subsequent proceeding where its interests have changed.”); City of Cleveland v. Ameriquest Mort. Sec., Inc., 615 F.3d 496, 501 (6th Cir. 2010) (finding that the plaintiff-appellant “waived its right to pursue [an] issue on appeal” where a joint motion contained language that was “a clear and unequivocal waiver of [the plaintiff-appellant]’s right to further pursue its motion to remand on appeal, and [the plaintiff-appellant] neither contest[ed] the validity of the [j]oint [m]otion nor suggest[ed] an alternative reading of th[e] clause”); Damato v. Sullivan, 945 F.2d 982, 987 n.3 (7th Cir. 1991) (“[S]ince the [Defendant] acquiesced in the magistrate’s recommendation for remand, the issue of whether it was within the district court’s authority to remand the case is not before us.”); Out of Line Sports, Inc. v. Rollerblade, Inc., 213 F.3d 500, 502–03 (10th Cir. 2000) (joint motion to release funds to satisfy judgment moots appeal of that judgment); Reeves v. Nicholson, 21 Vet. App. 66 (2006) (“[T]he appellant’s opening brief fails to acknowledge the prior joint motion for remand, much less make an argument that there is a reason that it should not be considered binding as to the facts agreed upon by the parties.”); Massicci v. Peake, Amentum? [VANQUISH COUNSEL]: Well, they did agree to that . . . .”); Tr. 12:18–21 (Vanquish counsel arguing that the JSR should be read as “establish[ing] a competitive range that follows the solicitation, and the effect of that is to exclude Amentum”). 20Indeed, Vanquish agreed with the Court during oral argument that, under Vanquish’s strained interpretation of the corrective action described in the JSR, only the discussions issue involving DFARS 215.306 would have been solved “but not the other count” regarding Amentum’s technical acceptability. Tr. 20:13–25. 20 2008 WL 4963401, at 3 (Vet. App. Mar. 17, 2008) (noting that “the parties’ joint motion for a remand . . . represent[s] an agreement by the parties” such that the appellant, “who was represented by counsel in crafting the agreement, cannot now disavow the agreement for which he bargained”). Vanquish, to support its strained interpretation of the parties’ agreement (as reflected in the January 24, 2022, JSR at issue), points to email communications among the parties that predate the filing of that JSR. AR 24926–69. In particular, Vanquish relies upon draft JSR language that Amentum proposed that would have expressly committed the government to including Amentum in the competitive range for discussions. Pl. MJAR at 8 (citing AR 24933–37); Pl. Resp. at 11 (citing AR 24935). Counsel of record for the government ultimately rejected Amentum’s proposed language; the Court knows this because the next draft lacks Amentum’s language. AR 24938–46. That said, the government responded to Amentum’s proposed language only in a private email to Amentum’s counsel, and thus Vanquish could not have relied upon it (even assuming there was some clear inference that could be drawn from that email). See AR 24938. Thereafter, Amentum suggested yet further revisions, AR 24941–46, which the government accepted, AR 24947, and Vanquish approved as well, AR 24956 (“This revised version is agreeable to the intervenor.”). This Court, however, cannot, by negative implication, infer from the government’s rejection of Amentum’s proposed language that somehow the parties all understood and agreed that Amentum would not be included in the competitive range. Such a speculative conclusion is not justified. For all the Court knows, the government simply preferred brevity in the JSR — a worthy goal the undersigned admittedly often fails to meet. More significantly, the administrative record all but demonstrates that Vanquish’s position is nothing more than a creative post hoc interpretation crafted by counsel in the heat of litigation and never reflected Vanquish’s actual, contemporaneous view of the corrective action when the parties first discussed it. In that regard, Vanquish reviewed the government’s initial draft JSR, which contained a description of the putative corrective action that was even more terse that what the parties ultimately adopted. AR 24927–31. Vanquish responded to the government’s proposed JSR in an email that conclusively shows that Vanquish understood that the Army intended to do precisely what Vanquish now challenges: We assume the agency’s corrective action will extend to Vanquish and will allow for Vanquish to submit a revised proposal. Please confirm that. We also assume the agency’s discussion will include Amentum and that Amentum also will be permitted to submit a revised proposal. Will any other offerors be included in the agency’s proposed corrective action? If so, 21 will that be limited only to those that were in the competitive range? Please let us know. AR 24931 (emphasis added). Indeed, the only real question Vanquish had was whether “any other offerors [would] be included in the agency’s proposed corrective action.” AR 24931. Accordingly, Vanquish understood quite well that Amentum’s prior protest could only be rendered moot by including Amentum in the corrective action. Vanquish could have made its position clear (or opposed the corrective action) but failed to do so.21 Permitting Vanquish to unravel its previous agreement with the parties (which resolved Amentum’s protest) would be remarkably prejudicial to both the government and Amentum for obvious reasons. Not the least of these reasons are (1) the passage of time and the government’s need to complete this procurement, (2) the government’s and the other offerors’ investments in the discussions process and the creation and submission of their respective FPRs, and (3) the fact that accepting Vanquish’s position here would mean all the parties are back to square one regarding Amentum’s protest action that the parties previously resolved (with the Court’s approval). B. The Government Did Not Violate FAR 15.306 or the Terms of the Solicitation In addition, the Court holds the government’s implementation of corrective action is consistent with the FAR and the Solicitation. FAR 15.306(c) governs the formation of the competitive range prior to conducting discussions and does not prohibit the government from engaging in discussions with technically unacceptable offerors, as this Court previously has explained: [T]he entire point of discussions is to permit offerors “[a]t a minimum” to address “deficiencies” and “significant weaknesses” (amongst other information not relevant here). FAR 15.306(d)(3); see also Aviation Ground Equip. Corp., B-417711.2, 2021 CPD ¶ 183, 2021 WL 2109102, at 8 (Comp. Gen. May 3, 2021) (“The FAR makes clear one of the purposes of discussions is to address deficiencies and significant weaknesses in proposals.” (citing FAR 15.306(d)(3))). The FAR further “encourage[s]” the contracting officer “to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award.” FAR 21During oral argument, the Court pointed out that, according to Vanquish’s argument here, Vanquish in its contemporaneous correspondence with the government should have said “by the way, Amentum should not be included.” Tr. 31:2–3. Counsel for Vanquish weakly responded only that “I wish we had.” Tr. 31:4. 22 15.306(d)(3). Thus, the FAR expressly distinguishes between, on the one hand, “deficiencies” and “significant weaknesses” — both of which “the contracting officer must . . . discuss” with offerors — and, on the other hand, “other aspects” of a proposal that may potentially impact the chance for award. Id. (emphasis added). IAP Worldwide Servs., Inc., 159 Fed. Cl. at 311 (second and third alterations in original). Accordingly, “the government has the discretion to include even technically unacceptable proposals in the competitive range.” Id. at 318 (citing Aviation Ground Equip., 2021 WL 2109102, at *8 (“[T]he determination whether a proposal should be included [in the competitive range] is principally a matter within the sound judgment of the procuring agency. While exclusion of technically unacceptable proposals is permissible, it is not required.” (citations omitted)); see also Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 996 (Fed. Cir. 2018) (explaining that offerors “deemed unacceptable” may improve their competitive position via discussions); Info. Tech., 316 F.3d at 1319 (holding that, to establish prejudice, a plaintiff must only demonstrate that its “chance of securing the award must not have been insubstantial,” and that a plaintiff demonstrates prejudice where the agency “improperly failed to conduct ‘discussions’ . . . [and] if it had, [the plaintiff] would have been able to cure deficiencies in its bid”). Moreover, even putting aside the parties’ agreement resolving Amentum’s protest, the Solicitation does not preclude the government’s including Amentum in the competitive range. To the contrary, the Solicitation contemplated discussions as part of Step 1 of the evaluation process. See AR 173 (RFP § M.4.1). Indeed, as part of Step 1, the Solicitation provides that “the Government reserves the right to conduct discussions [in accordance with] [§] M.4.4 . . . if the Contracting Officer determines that discussions would be advantageous to the Government.” AR 173 (describing “STEP 1: Technical Factor Evaluations”). In turn, nothing in Section M.4.4 requires the government to eliminate Amentum from the competitive range or requires the government to limit the competitive range only to technically acceptable proposals. In that regard, Section M.4.4.1 provides that “[o]nly Offerors determined Technically Acceptable will remain in [a] subsequent competitive range and proceed to [Step 2].” AR 173 (emphasis added). That provision necessarily implies that there is an earlier competitive range determination for the purposes of discussions within Step 1. Vanquish has an entirely different reading of the Solicitation. According to Vanquish, Section M.4.4.1’s references to “discussions” and a “subsequent competitive range determination” are not being used as those terms of art are defined in the FAR but rather simply refer to the agency’s down-select process from Step 1 to Step 2. Pl. MJAR at 15–16; Tr. 36:17–22. Thus, Vanquish contends that discussions may only take place as part of Step 2. Pl. MJAR at 2, 5, 16. But the Court cannot ignore the plain meaning of 23 those terms of art, particularly given the RFP’s reference to discussions in Step 1 (RFP § M.4.1), and to FAR 15.306 in Section M.4.4.1. See AR 173. Also, if the Solicitation really contemplated discussions only as part of Step 2, as Vanquish contends, then Section M.4.4.1 would be rendered superfluous because Section M.4.4.2 itself addresses Step 2 discussions. This Court should ordinarily read solicitations as a whole to avoid rendering some provisions meaningless. See Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004) (“[W]e must consider the solicitation as a whole, interpreting it in a manner that harmonizes and gives reasonable meaning to all of its provisions.”). In any event, the Solicitation expressly provided the government with the flexibility to dispense entirely with the two-step down-select process. See AR 174 (RFP § M.4.1.f) (“The Government reserves the right to simultaneously evaluate Technical, Past Performance (if applicable), Small Business Participation (if applicable), and Cost/Price proposals.”).22 Because the government could disregard the multi-step evaluation process, there is no necessary distinction between Step 1 and Step 2, and the government was free to form a competitive range and conduct discussions at any point during the evaluation process. VI. CONCLUSION For the above reasons, the Court DENIES Plaintiff’s motion for judgment on the administrative record and GRANTS Defendant’s and Defendant-Intervenor’s respective motions for judgment on the administrative record. Accordingly, the Clerk of the Court is directed to enter JUDGMENT for Defendant and Defendant-Intervenor, terminating this case. IT IS SO ORDERED. s/Matthew H. Solomson Matthew H. Solomson Judge 22 Vanquish conceded this point during oral argument. See Tr. 10:22–24 (“[T]here’s a reserved right in the RFP that the Government can review all of the evaluation factors at the same time.”). 24	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488298/	Filed 11/21/22 Sutton v. Youngman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX NANCY SUTTON, 2d Civ. No. B317811 (Super. Ct. No. 21CV02734) Plaintiff and Respondent, (Santa Barbara County) v. MARGARET YOUNGMAN, Defendant and Appellant. NANCY SUTTON, 2d Civ. No. B317812 (Consolidated with No. Plaintiff and Respondent, B317811) (Super. Ct. No. 21CV02733) v. (Santa Barbara County) LOREN YOUNGMAN, Defendant and Appellant. Margaret and Loren Youngman appeal from an order granting Nancy Sutton’s civil harassment restraining orders against them. The Youngmans contend the restraining orders must be vacated because (1) their right to cross-examination was violated when two declarations were not served before the evidentiary hearing, (2) the orders are unnecessary because the alleged harassment ceased before the hearing, (3) there was insufficient evidence of harassment, and (4) the restraining orders are overbroad. We affirm. FACTUAL AND PROCEDURAL HISTORY Sutton and the Youngmans are neighbors. In July 2021, Sutton requested a civil harassment restraining order against the Youngmans alleging that they installed outdoor speakers which “daily broadcasted intermittent loud noises throughout the night.” Sutton also alleged the Youngmans placed a strobe light in their kitchen window “directly facing [Sutton’s] bedroom which intermittently flashed at all hours of the night.” In December 2020, the Youngmans allegedly replaced the strobe light and noises with an “amplified telephone ring which would sound outside for 30 seconds on and 30 seconds off every day throughout the day and night.” In July 2021, the Youngmans also allegedly installed flood lights that were pointed directly into Sutton’s bedroom window and installed a device which broadcasted loud buzzing sounds intermittently. At the evidentiary hearing, Sutton presented evidence, including eight declarations, photographs, and a flash drive containing 99 videos documenting the disturbances. The court allowed the Youngmans the opportunity to cross-examine Sutton’s declarants regarding their declarations. 2 The Youngmans did not receive the declarations of Kathleen Hunt and Dino Ohanian before the hearing. With respect to Hunt, the trial court observed that the declaration was “very short” and allowed the Youngmans to “take a few minutes to read it” before asking Hunt any questions. The Youngmans did so and asked Hunt several questions about her declaration. The court also asked Hunt one question. With respect to Ohanian, the court asked the Youngmans if they were ready to ask questions and asked if they needed “to take a few minutes to clear your thoughts” and “go to the lobby.” Mr. Youngman responded: “No. I’m okay.” The court also suggested, “when it’s your time to put on your case, you might want to tell me your side of this dispute. Would you like to do it that way or did you want to ask [Ohanian] any questions?” Mrs. Youngman proceeded to ask Ohanian several questions. The next day, the court allowed the Youngmans to make a statement regarding the credibility of Hunt and Ohanian. The hearing proceeded with the presentation of the Youngmans’ case. At the conclusion of the hearing, the trial court ruled in favor of Sutton. The court stated, it “seems clear that [the Youngmans] were harassing [Sutton] the way the phone is in the window, the noises that are coming out of the devices. It’s sort of shocking. . . . Usually neighbor disputes arise from misunderstandings of what the neighbors are doing, but in this case it seems clear that it’s deliberate express harassment. . . . [¶] And I think one of the reasons why the case didn’t settle is that [the Youngmans] are just not willing to come clean even though the evidence presented in open court is obvious that that’s what [the Youngmans are] doing.” The court found that “the Youngmans have engaged in a course—a knowingly and willful 3 course of conduct directed at Ms. Sutton. I find that it seriously alarms, annoys, and harasses her and serves no legitimate purpose. [¶] I did not find the Youngmans credible in their explanations for the constant repetitive noise and I do think it’s reasonable for a person to be suffering from that.” The court reasoned: “I feel like—if you’re not willing to come clean and say, ‘What we did was wrong. We apologize. We won’t do it again. We were upset about these things,’ then I would agree with Ms. Sutton that there’s no guarantee that you won’t do it again as soon as you walk out the court door. [¶] So an order is necessary.” The trial court granted a three-year restraining order, prohibiting the Youngmans from harassing, disturbing the peace, and contacting Sutton. The court ordered the Youngmans to stay at least three yards away from Sutton and her home and car. The court also issued an additional order to “stop all noise and light disturbances. Noise disturbances which are broadcasted by devices including but not limited to telephone ringing, buzzing, alarms, animal sounds, podcasts. Light disturbances like strobe and flood lights directed at [Sutton’s] bedroom window.” DISCUSSION Deficiencies in the brief As Sutton observes, the opening brief fails to include legal analysis and does not contain any citation to case authority. “Whether legal or factual, no error warrants reversal unless the appellant can show injury from the error.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis.” (Id. at pp. 286- 287.) “[W]e may disregard conclusory arguments that are not 4 supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions [they] want[ ] us to adopt.” (Id. at p. 287.) Because the brief fails to include proper legal analysis, we may disregard the arguments. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [“To the extent [a party] perfunctorily asserts other claims without development . . . , they are not properly made, and are rejected on that basis”].) Despite the deficiencies in the brief, we nonetheless review the challenge to the restraining orders on the merits. Right to cross-examination The Youngmans contend their due process and Sixth Amendment right to cross-examination was violated because of Sutton’s failure to serve Hunt and Ohanian’s declarations before trial. We disagree. First, the Sixth Amendment right to confront witnesses only applies in criminal proceedings. (U.S. Const., 6th Amend.) “Although parties in civil proceedings have a right to confrontation under the due process clause, ‘[t]he Sixth Amendment and due process confrontation rights are not coextensive. [Citation.] Due process in a civil proceeding “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings.” [Citation.]’ [Citation.] In civil proceedings such as this one, ‘“‘[d]ue process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure.’” [Citation.]’ [Citation.]” (People v. Bona (2017) 15 Cal.App.5th 511, 520.) 5 Here, there was no due process violation. Although Sutton did not serve two declarations before the hearing, the Youngmans were given an opportunity to review the declarations and to cross-examine both declarants at the hearing. The court also offered them additional time for Ohanian’s declaration. The Youngmans also presented a statement regarding each of the declarants’ credibility. In any event, the Youngmans do not show prejudice as a result of Sutton’s failure to timely serve the declarations. “The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.” (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Cal. Const. art. VI, § 13.) Here, the Youngmans make no attempt to show prejudice. Ohanian and Hunt were only two of the eight declarations in support of the restraining order. Sutton also presented other evidence, including a flash drive with almost one hundred videos documenting the noise and light disturbances. Because of the overwhelming evidence in support of the restraining orders, we conclude there was no prejudice. Sufficiency of evidence The Youngmans contend there was insufficient evidence to support the trial court’s finding of harassment. We disagree. “Harassment” is defined as “[1] unlawful violence, [2] a credible threat of violence, or [3] a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” (Code of Civil Procedure, § 527.6, subd. (b)(3).) Before issuing a restraining order against a person, the trial court is required to find the harassment by clear and convincing evidence. (Schraer v. Berkeley Property Owners’ Assn. (1989) 207 6 Cal.App.3d 719, 730.) We review issuance of a civil harassment restraining order for abuse of discretion, and the factual findings necessary to support the protective order for substantial evidence. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.).) “‘We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings.’” (Parisi, at p. 1226.) Substantial evidence supports the finding that the Youngmans knowingly and willfully engaged in conduct directed to alarm, annoy, or harass Sutton. Here, the court considered evidence, including eight declarations, photographs, and a flash drive with 99 videos, many of which documented the harassing behavior. The court also found Sutton more credible than the Youngmans, telling them, “I didn’t believe you at all” and “I did not find the Youngmans credible in their explanations for the constant repetitive noise.” The court found it was “obvious” that the Youngmans’ conduct was “deliberate express harassment.” Because we must accept the court’s credibility findings and cannot reweigh the evidence, we accept the trial court’s resolution of conflicting evidence. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786; O.B., supra, 9 Cal.5th at p. 1008.) Necessity of the restraining order The Youngmans argue the restraining order is unnecessary because the alleged harassment ceased before the hearing and there was no threat of future harm. This argument lacks merit. Here, the trial court concluded a restraining order was “necessary” because it found the Youngmans presented a threat of future harm. Because Sutton and the Youngmans are 7 neighbors, substantial evidence supports this finding. (See Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499-501 [trial court’s implied finding that harassment was likely to recur was proper because petitioner, who was the principal of the school that defendant’s child attended, would likely have future interactions with defendant]; Russell v. Douvan (2003) 112 Cal.App.4th 399, 403 [restraining order is intended to prevent future harassment, not to punish past harassment].) As the court observed, the Youngmans refusal to “come clean” and admit their wrongdoing showed there was “no guarantee” they would not harass Sutton in the future. Overbreadth of the order Lastly, the Youngmans contend that the following order was overbroad: “A stop to all noise and light disturbances. Noise disturbances which are broadcasted by devices including but not limited to telephone ringing, buzzing, alarms, animal sounds, podcasts. Light disturbances like strobe and flood lights directed at [Sutton’s] bedroom window.” A restraining order is unconstitutionally overbroad if it impacts the restrained person’s constitutional rights more than reasonably necessary to protect the aggrieved party. (See Smith v. Silvey (1983) 149 Cal.App.3d 400, 407; People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 22.) We conclude that the order is not overbroad given the court’s finding there was clear and convincing evidence that the Youngmans harassed Sutton. The order specifically prohibits “noise and light disturbances.” It further specifies noise disturbances as those that are “broadcasted by devices,” and the order defines light disturbances as lights that the Youngmans directed at Sutton’s window. (Italics added.) The order also lists, 8 as examples, the types of disturbances the Youngmans previously used to harass Sutton. The order thus does not prohibit the Youngmans from receiving phone calls or otherwise using their property in a lawful and peaceful manner. The order does not prohibit more than reasonably necessary to prevent future harassment—which is the purpose of Code of Civil Procedure section 527.6. (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.). DISPOSITION The judgment is affirmed. Respondent shall recover costs on appeal. NOT TO BE PUBLISHED. BALTODANO, J. We concur: GILBERT, P. J. YEGAN, J. 9 Stephen Foley, Judge Superior Court County of Santa Barbara ______________________________ Law Offices of Scott H. Bentley and Scott H. Bentley for Defendants and Appellants. Nancy Sutton, in pro. per., for Plaintiff and Respondent.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488300/	Filed 11/21/22 P. v. Gomez CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F082873 Plaintiff and Respondent, (Super. Ct. No. BF180050A) v. CARLOS GOMEZ, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Kelly E. LeBel and Robert K. Gezi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION Defendant Carlos Gomez engaged law enforcement in a high-speed vehicle chase, and a jury convicted him of charges including shooting from a vehicle at a police officer with gang and firearm enhancements. Defendant argues that the evidence was insufficient to support the gang enhancements, the trial court erred in failing to bifurcate the gang enhancements from the underlying charges, and that we should overturn his convictions and remand for retrial in light of recently enacted Penal Code 1 section 1109, which requires bifurcation of gang enhancements from the trial of the underlying charges when requested by a defendant. The People concede that the gang enhancements are not supported by sufficient evidence but argue that the trial court did not abuse its discretion in denying defendant’s motion to bifurcate the trial of the gang enhancements, section 1109 is not retroactive, and the trial court’s decision not to bifurcate was harmless in any event. We reverse the true findings as to the gang enhancements and will remand for resentencing. We affirm the judgment in all other respects. PROCEDURAL BACKGROUND The District Attorney of Kern County filed an information on March 3, 2020, charging defendant with premeditated and deliberate attempted murder of a peace officer (§§ 187, subd. (a), 664; count 1), shooting at an occupied vehicle (§ 246; count 2), assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 3), felon in possession of a shotgun (§ 29800, subd. (a)(1); count 4), and evading a peace officer (Veh. Code, § 2800.2; count 5). The information also alleged that defendant personally discharged a firearm (§ 12022.53, subd. (c)) as to counts 1 through 3 and acted to benefit a criminal street gang (§ 186.22, subd. (b)(1)) as to counts 1 through 4. Defendant pleaded not guilty to the charges and denied all allegations. 1 Undesignated statutory references are to the Penal Code. 2. After a 15-day trial, the jury convicted defendant on April 16, 2021, of shooting at an occupied vehicle, assault with a firearm on a peace officer, felon in possession of a shotgun, and evading a peace officer as charged in counts 2 through 5. The jury also found true the enhancements that the crimes were committed for the benefit of a criminal street gang (counts 2–4) and that defendant personally and intentionally discharged a firearm (counts 2, 3). The jury acquitted defendant of premeditated and deliberate attempted murder of a peace officer. On June 4, 2021, the trial court denied defendant’s motion to strike the gang and firearm enhancements and sentenced defendant to a term of 27 years to life as to count 2 (§§ 246, 186.22, subd. (b)(1), (4)). As to count 3, the trial court sentenced defendant to the upper term of eight years, plus five years (§ 186.22, subd. (b)(1)), plus 20 years (§ 12022.53, subd. (c)), stayed pursuant to section 654. As to count 4, the trial court sentenced defendant to the upper term of three years, plus four years (§ 186.22, subd. (b)(1)), stayed pursuant to section 654. The trial court sentenced defendant to the upper term of three years as to count 5 and ordered that term to be served consecutively to count 2, for a total term of 30 years to life in prison. The court also imposed a $300 restitution fine (former § 1202.4), a stayed $300 parole revocation restitution fine (§ 1202.45, subd. (a)), victim restitution in an amount to be determined by probation (former § 1202.4, subd. (f)(2)), $160 in court operations assessments (§ 1465.8), and $120 in criminal conviction assessments (Gov. Code, § 70373). Defendant filed this timely appeal on June 4, 2021. FACTS I. The vehicle pursuit. On November 7, 2017, at approximately 11:15 p.m., Deputy Richard Santos of the Kern County Sheriff’s Office was working patrol when he observed defendant’s green 3. Nissan Altima (the vehicle) driving past him. Believing that the vehicle matched that of one reported stolen, Santos activated his emergency lights to stop it. Defendant initially slowed the vehicle and pulled into a gas station but then accelerated, drove over a curb, and sped off down the street. Santos did not notice any defects in the rear window of the vehicle when he initially attempted to stop it, and the rear window of the vehicle was still intact after driving off the curb. Defendant accelerated to approximately 65 miles per hour as Santos activated his siren and advised dispatch that he was in pursuit. Defendant turned the vehicle at an intersection and increased speed to approximately 85 miles per hour. Defendant ran the red light at the next intersection and entered the following intersection at approximately 85 miles per hour. Santos slowed through the intersection and, after checking for cars and pedestrians, saw “unknown projectiles” coming toward him as he refocused on the vehicle. Santos’s patrol vehicle was approximately 15 feet from the vehicle when the projectiles hit the patrol vehicle’s windshield. He immediately notified dispatch that the vehicle had cleared the intersection and was now missing its rear window. Due to the siren and radio noise inside his vehicle, Santos did not hear any noise from outside his patrol vehicle. He did not see a shotgun or notice any muzzle flash and was not looking at the vehicle just before its rear window shattered. In addition, Santos did not expect to see a muzzle flash due to the heavy tinting on defendant’s rear window, which obstructed his ability to see inside. Kern County Sheriff’s Deputies Timothy Monsibais and Christopher Gonzalez responded to assist Santos. While approximately three or four car lengths behind Santos, both deputies saw the vehicle’s rear window shatter as defendant drove over a gutter line in the intersection. Monsibais observed the rear window “blow out” while Gonzalez testified that he saw the rear window “shatter and fall.” Neither deputy saw a muzzle flash, and Monsibais testified that he did not hear a gunshot although he acknowledged 4. that the noise inside his vehicle was very loud. Gonzalez testified that he heard a loud “boom” before the rear window broke. The deputies described the gutter line as a dip in the road. Monsibais described it as shallower than the height of a curb and testified that he did not see either the vehicle or Santos’s patrol vehicle bounce as they crossed it. Nothing happened to their own patrol vehicles when they drove over the gutter line. Defendant, the only occupant of the vehicle, continued to flee from Santos through a residential area known as Rexland Acres. Defendant continued through the area at approximately 40 miles per hour on the 25-mile-per-hour residential streets, ignoring stop signs and making quick turns. Defendant then intentionally turned off the headlights and running lights of the vehicle eliminating any outside illumination. Defendant continued to run stop signs as he drove through the neighborhood. During the pursuit, E.S. called 911 and reported hearing gunshots near his residence, which was located along the route of the vehicle pursuit. E.S. testified that he heard one or two gunshots while lying in bed, went to the front window, then called the police. During the 911 call, E.S. reported three gunshots that he heard within 10 minutes of his call. He estimated that three or four minutes passed while he went to the window and another three or four minutes later, E.S. saw vehicles drive by, one without its lights on. E.S. saw the vehicle without its lights on twice, once with its lights on and a second time with its lights off and being followed by police. E.S. refused to provide his name to the operator and testified that it was dangerous for his family and he would not make a report again because he did not want to be in court. The vehicle eventually entered an alleyway near a church and defendant jumped from it while the vehicle was still moving at approximately 10 to 15 miles per hour. The vehicle ultimately stopped when it collided with a chain link fence. Santos saw defendant on the ground just after defendant jumped from the vehicle. Defendant ran through a fence into a residential area, and Santos chased him on foot. Santos 5. apprehended defendant after defendant ran through defendant’s own backyard and into a dirt field where he fell. The foot pursuit lasted approximately one minute. Deputies pursued the vehicle for approximately five to six miles, and six minutes elapsed from when Santos first contacted dispatch regarding the pursuit until defendant was in custody. Santos discovered that he had been injured during the pursuit when he found a piece of glass embedded in his right ear. His face was itchy and scratchy as well, most likely from tiny particles of glass. Santos testified that the hood of his patrol vehicle was missing paint and appeared to have been struck with pellets. He also observed several large impressions on the windshield consistent with pellet strikes from a shotgun shell and two circular dents over the left rear wheel well. In addition, the left passenger side spotlight faced backwards. The spotlight is very rigid and would not have repositioned itself unless something traveling “at a good amount of speed” impacted it. Santos observed the same type of pellet splatter to the lens and housing of the spotlight. After defendant’s arrest, Santos found a live 12-gauge Remington shotgun shell composed of birdshot pellets in the right front pocket of defendant’s pants. During a search of the vehicle, Monsibais saw unused shotgun shells in the back seat, and officers later seized a bag containing 12 live Remington and Winchester 12-gauge shotgun shells and a single shell that was outside of the bag. Although vehicle glass was found on the rear seat, no glass was found on top of the bag of shotgun shells. Based upon the damage to his patrol vehicle and the shotgun shell in defendant’s pocket, Santos believed that defendant fired on him during the pursuit. The circular pattern of the damage to the patrol vehicle was consistent with pellet shot. In addition, Santos participated in approximately 15 pursuits and never saw a rear window shatter like the vehicle’s did. 6. Senior Deputy Ryan Brock was working patrol when he heard that Santos was engaged in a vehicle pursuit. By the time he responded, defendant was already in custody and Brock was assigned to canvass the area for a possible weapon that was discarded from the vehicle. Retracing the path of the pursuit, Brock recovered a Mossberg shotgun, with its barrel shortened to 15 inches, from an intersection in Rexland Acres. The shotgun was lying in the middle of the road, consistent with having been thrown from a driver’s window. He did not see any used or live shotgun shells in the area, and the shotgun was not loaded. Because Santos used caution when traveling through intersections during the pursuit, he sometimes lost sight of the vehicle and would not have seen defendant throw anything from the vehicle. While set up at the perimeter, Gonzalez heard over the radio that Santos had defendant in custody. Gonzalez returned to the intersection where the windshield had shattered to preserve any evidence. He observed a large amount of glass shards held together by window tint in the intersection. The glass and window tint were found on the southbound side of the road, along the median and the west shoulder area. The area did not appear to have any potholes. Gonzalez blocked off the area and waited for technical investigators to arrive. Officers did not find any spent shotgun shells in the vehicle, near the shotgun, or in the area where the vehicle’s rear window broke. Officers did not find any birdshot during their searches, but birdshot is difficult to find due to its small size and the distance over which it can travel. II. Evidence relating to whether defendant shot at Santos. A. Prosecution Firearm and Accident Reconstruction Experts Santos’s patrol vehicle had damage to the front bumper, push bumper, hood, passenger side fender, light bar, GPS antenna, and windshield. Pieces of glass were found lodged in the front bumper, push bumper, light bar, and GPS antenna. The paint in 7. the areas where the glass was found was not scratched or damaged. The damage to the patrol vehicle was consistent with two or three shots from a shotgun. The windshield of the patrol vehicle had several circular marks, cracks, and indentations. The damage was consistent with shotgun birdshot and concentrated on the passenger side of the windshield. The hood and front of the patrol vehicle had several circular indentations where paint had been removed and was consistent with damage from birdshot. Similar circular indentations were found on the push bumper on the passenger side of the patrol vehicle, top of the bumper, and passenger side front fender. The passenger side spotlight on the hood of the patrol vehicle was pointing toward the ground. Spotlights cannot usually be moved without using the interior handles and will not move on their own even during a high-speed chase. Glass was embedded in the exterior of the spotlight and the lens was cracked. The spotlight of the patrol vehicle also exhibited damage from birdshot. An evidence technician for the Kern County Sheriff’s Office lifted latent prints from the shotgun that matched those of defendant. The shotgun had a pistol grip that allowed one to hold and shoot the shotgun with one hand, and its barrel had been illegally shortened to approximately 15¼ inches. It was possible for an individual to fire the shotgun while maintaining one hand on a steering wheel, rack the firearm to expel a spent casing, and shoot again while driving. The shotgun had a pump action, meaning that the forward grip on the barrel needed to be moved forward and backward to load or eject casings. Once a shotgun cartridge was placed in its chamber, the shotgun would fire by pulling the trigger. Pellets from a shotgun move faster toward a vehicle than broken glass. Lead pellets are softer than steel and will usually hit but not penetrate a steel target. Eight Remington and five Winchester 12-gauge shotgun shells were found in the vehicle. One shell of each brand was taken apart, photographed, and test-fired. Pellets 8. from each shotgun shell measured approximately two millimeters and matched the two- millimeter indentations on the hood of Santos’s patrol vehicle. Each cartridge had several hundred pieces of birdshot. The broken automobile glass collected from the roof tray under the patrol vehicle’s light bar and under the GPS antenna on its roof were not circular. The vehicle was missing its rear window after the pursuit, although portions of the glass and tint were intact at the window edge. The vehicle had a taped-over bullet hole in the trunk next to the passenger side taillight. A second bullet hole located just above the rear window showed evidence of rust. Sergeant John Kolter, employed by the California Highway Patrol and supervisor of the Multidisciplinary Accident Investigation Team, testified as one of the prosecution’s experts. He explained that windshield glass is laminated and composed of layers of glass sandwiching plastic that strengthens it. A windshield is meant to maintain structural integrity when impacted by something. In a crash, a windshield will shatter but remain intact unless the pillars and roof that hold it are impacted and deformed . Ammunition can penetrate a windshield due to its velocity. When an object hits the windshield, both layers of glass can fracture even if the object does not penetrate the glass. Safety glass is used for all other vehicle windows except for windshields. When safety glass breaks, it will spider web and shatter into thousands of tiny pieces. These pieces are irregularly shaped and will never be perfectly round. Window tint adheres to safety glass and will keep the glass together if it breaks. Structural deficiencies in a rear window that is tinted will cause the window to fall out in one piece. However, birdshot can tear the window tint. Kolter testified the bullet hole in the vehicle’s rear window appeared to have broken the upper part of the window and landed in the roof but did not shatter the glass. 9. The window tint would hold the glass together and an individual could drive the vehicle for a while. However, it is unlikely that driving at a high speed alone could cause the window to blow out. If the window fell out, he would also expect the window to remain in one piece. If a tinted window failed and hit the ground, the tint would cause the window to mangle or result in the glass breaking into large shards. The tint would tear only if something impacted it. Therefore, if the rear window splintered and cracked because the vehicle traveled over a bump or curb, it should remain in one piece due to the presence of the window tint and still retain its shape as a window. If the rear window were hit by a shotgun blast, each pellet would impact the window and the glass would break and shatter into small pieces of safety glass. The window would instantaneously shatter and not just cause a cause a crack. Birdshot flies at a faster velocity than glass and with much more force than broken glass. According to Kolter, glass pieces did not cause the small hole in patrol vehicle’s windshield and only a pellet could have caused that damage. A piece of glass would cause an abrasion. The circular damage to the windshield and the perfectly round indentations in the patrol vehicle were caused by birdshot and not by irregularly shaped glass. Shattered safety glass would be irregularly shaped and would not leave a circular mark. If a vehicle’s rear window failed, the safety glass is not substantial enough to crack the windshield of a vehicle behind it because the safety glass is flexible. B. Defense Josue A. lived with defendant and defendant’s mother, who Josue was dating. Josue was the registered owner of the vehicle and had given the vehicle to defendant a month prior to his arrest. Two days before defendant’s arrest, Josue observed that the vehicle had two bullet holes, one of which broke the rear window. Josue saw that window tint held the window together, and he advised defendant to repair the window because it would shatter and fall completely if defendant drove over a bump. 10. Defense counsel presented testimony that residue swabs from Santos’s patrol vehicle did not show the presence of lead. Defense counsel played a video that showed defendant’s flight from Santos at the gas station. The surveillance video showed the vehicle as defendant drove it off the curb while pursued by a patrol vehicle. The curb height was eight and three-eighths inches. Raymond Paladino, employed as a forensic examiner and accident reconstructionist, testified that the damage to Santos’s patrol vehicle was made by glass shards and showed no evidence that it had been impacted by birdshot. He further testified that the damage to the right side of the patrol vehicle showed impacts too large to have been birdshot. Regarding damage to the patrol vehicle’s push bumper, Paladino testified that it was not made by birdshot and was most likely caused by glass. In his opinion, the damage to Santos’s patrol vehicle was caused by glass from the vehicle. Paladino testified that the vehicle’s rear window was damaged from a bullet and could have been blown out as a result of driving over a bump at a high speed and with air pressure from an open window. On cross-examination, Paladino acknowledged that he worked on three cases involving shootings more than 15 years prior to his testimony. When the prosecutor showed Paladino a photograph of damage to a vehicle, he testified that it could have resulted from birdshot. Upon learning that the photograph depicted Santos’s patrol vehicle, Paladino testified that the damage was caused by glass. III. Gang evidence. A. Predicate Crimes 1. Assault on Carlos H. On June 6, 2013, Carlos H. was driving in Rexland Acres on his way to visit his son. A man in a wheelchair blocked the road and four other men surrounded Carlos H. When Carlos H. got out of his vehicle to ask the men to move, one man bearing a 11. Rexland tattoo beat Carlos H. and knocked him unconscious. He woke up in the hospital with a wound on the back of his head and a black eye. While Carlos H. testified that he did not remember additional details regarding the incident, at the time he told Senior Deputy Tanner Miller that a shirtless Hispanic man bearing a tattoo on his chest threw gang signals and ordered Carlos H. to leave the man’s “Varrio” and to get out before the man “kick[ed] [Carlos H.’s] ass.” Miguel Perez and defendant were arrested in Perez’s backyard and both men, along with Justin Valencia, were convicted of assault with force likely to cause great bodily injury. Deputy Brian Geherty, the prosecution’s gang expert, testified that the assault on Carlos H. occurred in territory claimed by the Varrio Rexland Park criminal street gang (VRP), the individuals claimed ownership of the neighborhood and ordered Carlos H. to leave, the assault was a crime commonly committed by VRP, and the assault was committed by several VRP members including Perez (moniker “Pistola”), Valencia (moniker “Frost”), and defendant (moniker “Black” or “Blacky”). Geherty concluded that this crime benefited VRP by instilling fear in members of the community to strengthen the reputation of VRP and prevent members of the community from working against VRP. 2. Church burglary In February 2015, police responded to a burglary at a church located in Rexland Acres, the same church where defendant abandoned the vehicle during the pursuit in the instant case. Perez and Louis Gomez tried to flee with electronics taken from the church. Both individuals were convicted of burglary. Geherty testified that burglary is a primary activity of VRP, the church was located within VRP’s territory, and the crime was committed by Perez and Louis Gomez who were both active VRP members. 12. 3. Shooting of Carlos U. In March 2015, officers responded to a residence where Carlos U. had been shot in the chest. The shooting occurred in territory claimed by VRP. Perez was arrested and convicted of charges including assault with a firearm and participation in a criminal street gang. Perez had several gang tattoos showing his association with VRP including “KC,” “South,” and a clown face on his hand; “fuck the cops” and bullet holes on his chest; “R” on one arm and “P” on the other; and “RP” on his right shin. Geherty testified that, in his opinion, this crime benefited VRP because assault with a firearm is one of the primary activities of VRP and the crime was committed within VRP’s territory by Perez, a VRP member. Geherty opined that Perez was a VRP member based upon his tattoos, the writings found in his residence during one of the searches, and his clothing. B. Evidence of Defendant’s Participation in a Criminal Street Gang Geherty concluded that defendant was an active VRP member based upon several factors, one of which was defendant’s tattoos that included “Rexland” across his chest and three dots under his ear symbolizing the Sureño gang of which VRP is a subset. Defendant’s Facebook account included photographs of defendant displaying “Rexland” and “Surenos” tattoos. Geherty also interpreted several messages within defendant’s Facebook account that reflected defendant’s membership in VRP. Geherty based his opinion upon several law enforcement contacts with defendant, commencing in 2011, as described below. In September 2011, Deputy Mario Magana responded to Rexland Acres and arrested defendant for public intoxication. He transported defendant to defendant’s residence and searched the residence. Magana observed gang graffiti for the Rexland area gang. When conversing with Magana, defendant said that he had been hanging out with VRP for three to four years and had been jumped into the gang by three members. 13. Also, in September 2011, a deputy contacted defendant who was with Antonio Gaytan and two other juveniles. The individuals attempted to flee from officers and were contacted near an inoperable car in which deputies later found drugs and a loaded firearm. Defendant was seated on a curb between two trash cans and a deputy found a pellet gun sitting next to him. The deputy saw graffiti on the trash cans, including the letters “VRP.” Antonio Gaytan was convicted of participation in a criminal street gang. In December 2012, Kern County Probation Officer Matthew Kundinger contacted defendant who was with Perez, Valencia, Antonio Gaytan, and Louis Gomez. Defendant had tattoos of a clown and “fuck you” on his left wrist and “CA” on his right arm. Deputy Daniel Garcia of the Kern County Sheriff’s Office responded to investigate a shooting at defendant’s residence in February 2013. He found a brick that had been thrown through a window and two spent .45-caliber shell casings. Defendant said that the individuals who did it waited until he was not present because they were afraid of him. When Garcia advised defendant that Garcia heard defendant was a VRP member, defendant asked Garcia why he asked what gang defendant was with if Garcia already knew. Defendant said that the police could do nothing to help and that he would handle the situation himself. In April 2013, Deputy Daniel Sanchez contacted Alexander Gaytan at his residence as part of a burglary investigation. During a search of the residence, Sanchez found the victim’s stolen property and observed gang writings in the bedroom and outside the residence. Alexander Gaytan had gang tattoos. During further investigation in May 2013, Sanchez contacted Perez at his residence and, during a subsequent search, located writings that referenced VRP and other VRP members. Sanchez reviewed telephone calls Alexander Gaytan made from jail and, in April 2013, overheard defendant discussing the burglary and referring to the victim as a snitch. 14. Sergeant Ryan Pitcher testified that that he responded to defendant’s residence to arrest defendant pursuant to a felony warrant in December 2016. While transporting defendant, defendant spontaneously suggested that Pitcher should search defendant again. When Pitcher pulled over and searched defendant again, he found a .32-caliber firearm, loaded with seven shots, tucked below defendant’s waistband. Defendant was convicted of being a convicted felon in possession of a firearm. C. Benefit of the Instant Offenses to VRP Geherty testified that VRP had a saying, “[F]uck the rest,” meaning that it rivaled with many other gangs. Although it rivaled with many other gangs, its number one rival was law enforcement. Geherty explained the meaning of graffiti found in defendant’s neighborhood. The graffiti included several writings that claimed the territory belonged to VRP. The graffiti was signed by VRP authors and included defendant who used the moniker “Black.” According to Geherty, the presence of defendant’s moniker on the graffiti indicated that he was claiming ownership of it and allegiance to VRP. The graffiti also included “fuck 12,” a derogatory reference to law enforcement. This reference was a declaration that law enforcement was one of VRP’s rivals. Defendant’s nickname was also displayed in graffiti in another part of the neighborhood alongside the names of Perez and defendant’s brother. Geherty explained that a gang member is driven by the need to acquire respect, which is earned by committing assaults and other crimes for the gang. The level of respect increases with the violent nature of the crime. A VRP member would earn a high level of respect for assaulting a member of law enforcement because it proves that they will go the distance for VRP, and “shooting or … killing … a cop, you are made. You are golden.” Fellow VRP member Perez displayed tattoos of “VRP” on his stomach and “fuck the cops” with a bullet hole on his chest, indicating Perez was willing to kill an officer as a VRP member and that law enforcement was an enemy of VRP. 15. Geherty concluded that the instant offenses benefitted VRP based upon several factors: (1) the nature of the offenses, which were primary activities of VRP; (2) possession of ammunition indicated that defendant was using the firearm for offensive and defensive reasons; (3) the shots defendant fired intimidated the 911 caller who only reported the crime anonymously due to his fear of VRP; and (4) defendant fled through VRP territory. Geherty concluded that defendant’s act of shooting at Santos benefitted defendant by increasing the respect shown to him by other VRP members and, therefore, increased the reputation of VRP itself. The violent nature of the offenses discouraged the community from cooperating with law enforcement against VRP by instilling fear and, in this way, assisted the VRP members in escaping punishment for their crimes. Possession of weapons by VRP members also strengthened VRP and increased its members’ ability to successfully accomplish crimes that benefitted VRP. DISCUSSION I. The trial evidence was insufficient to support the jury’s true findings as to the gang enhancements. Defendant argues that the jury’s true findings as to the gang enhancements on counts 2 through 4 are not supported by sufficient evidence. The People agree. Having reviewed the trial transcript, we agree with the parties that the evidence proved only that defendant was an active member in a criminal street gang, which is insufficient to prove that his crimes were intended to benefit the gang. (See People v. Perez (2017) 18 Cal.App.5th 598, 607 [“merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference the sole actor specifically intended to promote, further, or assist any criminal conduct by gang members”].) Defendant further argues that reversal of the gang enhancements requires that we also reverse the firearm enhancements. In this case, defendant was charged with, and the 16. jury found true, allegations that defendant personally discharged a firearm pursuant to section 12022.53, subdivision (c), which is independent of section 186.22, subdivision (b). Applicability of the firearms enhancements under section 12022.53, subdivision (c) is not affected by our conclusion that defendant’s enhancements pursuant to section 186.22, subdivision (b) must be vacated. Defendant’s argument relies upon People v. Lopez (2021) 73 Cal.App.5th at pages 347–348. However, that case is distinguishable because in Lopez the jury found true a section 12022.53, subdivision (e) enhancement, which provides for additional punishment even if the defendant did not personally use or discharge a firearm but another principal did and the offense was committed to benefit a criminal street gang pursuant to section 186.22. (Lopez, at p. 480.) In Lopez, the court vacated one of Lopez’s firearm enhancements because it was based upon another principal’s firearm discharge, and the court vacated the section 186.22, subdivision (b) finding. (Lopez, at p. 480.) However, section 12022.53, subdivisions (b) through (d) provide for sentence enhancements where the defendant personally uses or personally discharges a firearm regardless of whether section 186.22, subdivision (b) is applicable. The court, despite reversing the section 186.22 enhancement, left intact Lopez’s enhancements of 25 years to life pursuant to section 12022.53, subdivision (d) because the jury had found defendant personally discharged the firearm. (Lopez, at p. 481.) Because the jury here found true that defendant personally discharged a firearm pursuant to section 12022.53, subdivision (c) and not section 12022.53, subdivision (e), the applicability of section 186.22 has no effect on those enhancements. Therefore, we reverse the true findings on only the gang enhancements as to counts 2 through 4. In light of these reversals, we vacate the sentence in its entirety and remand the matter for a full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing 17. as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”]; see also People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant”].) II. The trial court did not err in denying defendant’s motion to bifurcate the gang enhancements from trial of the underlying charges. A. Background Defense counsel moved to bifurcate trial of the gang enhancements. During hearing on the motion on March 17, 2021, the prosecutor argued that gang evidence was admissible as to all charges during the case-in-chief. The prosecutor explained that an expert would testify that police officers are the number one rival of VRP and asked that gang evidence be admitted as proof of defendant’s motive and intent and absence of mistake in shooting at Santos. The prosecutor argued that such evidence was also relevant to explain defendant’s action in returning to his neighborhood (VRP’s territory) and discarding the firearm in an area where his associates could retrieve it. Defense counsel responded that gang evidence had very little relevance as to whether defendant discharged the shotgun at Santos’s patrol vehicle and argued that defendant chose a route to his residence, which just happened to be in VRP’s territory. The trial court found that the gang evidence would be highly relevant on the issue of motive: “From what you both represented in your statement of facts, this was going to be a traffic infraction stop, turns into a felony evading, and then turns into an attempted murder, which leaves one wondering why, and it would appear that the why can be answered by motive, which isn’t required to be proved or disproved by either side, but it is certainly helpful to understand how a felony evading or even a traffic stop could turn into an attempted murder.” 18. The trial court then addressed whether the gang evidence should be excluded as unduly prejudicial pursuant to Evidence Code section 352: “[T]his type of evidence is prejudicial, but it does explain a lot of things regarding this case given the fact scenario and the proposed testimony. “So the question is whether in this type of situation, that evidence is unduly prejudicial such that it would outweigh any probative value. “[¶] … [¶] “In this case, I don’t find that that outweighs its probative value. I find that the probative value outweighs that prejudicial effect.” Because the trial court found the evidence should be admitted as to the charged offenses, the court denied defendant’s motion to bifurcate. The trial court agreed, however, that the jury should be instructed regarding the limited use of the gang evidence in accordance with Evidence Code section 1101, subdivision (b). The jury was instructed with a modified version of CALCRIM No. 1403 as follows: “You may consider evidence of gang activity only for the limited purpose of deciding whether [] defendant acted with the intent, purpose and knowledge that are required to prove the gang-related enhancements charged or [] defendant had a motive to commit the crimes charged. “[¶] … [¶] “You may not consider this evidence for any other purpose. You may not conclude from this evidence that [] defendant is a person of bad character or that he has a disposition to commit crime.” B. Applicable Law and Standard of Review “Bifurcation of gang allegations is appropriate where the gang evidence is ‘so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.’ ” (People v. Franklin (2016) 248 Cal.App.4th 938, 952 (Franklin), quoting People v. Hernandez (2004) 33 Cal.4th 19. 1040, 1049 (Hernandez).) We review a trial court’s denial of a motion to bifurcate “for abuse of discretion, based on the record as it stood at the time of the ruling.” (Franklin, at p. 952 [refusal to bifurcate gang enhancement allegations]; see People v. Merriman (2014) 60 Cal.4th 1, 37 [an appellate court evaluates claims that the trial court abused its discretion in denying severance or ordering consolidation in light of the showings made and the facts known by the trial court at the time of the court’s ruling].) We do not consider trial evidence not made apparent to the trial court in limine or events that take place during the trial, such as the prosecutor’s argument, in deciding whether the trial court abused its discretion in denying bifurcation at the beginning of the trial. Our determination must be based “on the record as it stood at the time of the ruling.” (Franklin, at p. 952.) “To establish [a] criminal street gang enhancement, the prosecution must prove some facts in addition to the elements of the underlying crime, for example, that the criminal street gang has engaged in a ‘pattern of criminal gang activity.’ [Citation.] Accordingly, when the prosecution charges the criminal street gang enhancement, it will often present evidence that would be inadmissible in a trial limited to the charged offense.” (Hernandez, supra, 33 Cal.4th at p. 1044.) However, the Hernandez court noted that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense.” (Id. at p. 1049.) “Evidence of the defendant’s gang affiliation— including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Ibid.) Regarding motive, the court in Franklin observed that “ ‘ “[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” ’ ” (Franklin, supra, 248 Cal.App.4th at p. 953.) 20. Our Supreme Court recently affirmed the importance of gang evidence as evidence of motive even where no gang enhancements were charged: “ ‘In general, “[t]he People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.]” [Citation.] “[E]ven where gang membership is relevant,” however, “because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it.” [Citation.] On the other hand, “ ‘[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.]” [Citation.] On appeal, we review for abuse of discretion a trial court’s ruling on whether evidence is relevant, not unduly prejudicial, and thus admissible.’ ” (People v. Duong (2020) 10 Cal.5th 36, 64–65.) “Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) “[T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is … broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Ibid.) “ ‘Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.’ ” (Ibid.) Hernandez recognized the efficiencies achieved by a unitary trial in the bifurcation context. (See ibid.) C. Analysis 1. No error in denying motion to bifurcate In denying the motion to bifurcate, the trial court concluded that the evidence in the prosecution’s offer of proof established that the underlying charges involved gang 21. motives. In this regard, this case is similar to Hernandez, supra, 33 Cal.4th 1040, and Franklin, supra, 248 Cal.App.4th 938. Based upon the evidence of which the trial court was aware when it made its ruling, defendant was a VRP member fleeing from Santos into defendant’s own familiar neighborhood and VRP’s territory in order to avoid apprehension. By discarding the firearm in VRP territory, defendant increased the chances of recovering it later. Furthermore, testimony of a gang expert would establish that VRP viewed law enforcement as its number one rival and shooting at law enforcement would earn defendant tremendous respect. Evidence of gang graffiti and tattoos confirmed this testimony, and such evidence provided a motive for defendant to have shot at Santos rather than just fleeing to evade apprehension. The trial court did not abuse its discretion in determining that gang evidence was relevant to the non-gang charges in this case. The gang evidence explained defendant’s willingness to shoot a police officer. (See People v. Duong, supra, 10 Cal.5th at p. 65 [“The gang evidence explained [Duong]’s willingness to shoot a complete stranger minutes after a verbal spat, along with the apparent coordination among defendant’s associates to destroy the surveillance tape.”].) Defendant was also a felon in possession of a firearm when Santos attempted to stop him, and defendant may have feared being returned to prison. “Of course, other motivations could have been at play,” “[b]ut the possibility of other motivations did not preclude the prosecution from presenting evidence that gang affiliation was the precipitating factor.” (Ibid.) Therefore, we conclude that the trial court did not abuse its discretion in also denying defendant’s motion to bifurcate. Independent of the gang enhancement allegations, much of the subject evidence was relevant, among other things, to defendant’s motives in shooting at Santos and whether defendant intended to murder him. (See Hernandez, supra, 33 Cal.4th at p. 1049.) With the exception of the evidence relevant to the predicate offenses (two of which did not involve defendant), the gang 22. evidence was highly probative on these matters and inextricably intertwined with the underlying charges. As the trial court found, much of the evidence would have been admissible under Evidence Code section 1101, subdivision (b) even if the gang enhancement had not been alleged. (See People v. Valdez (2012) 55 Cal.4th 82, 131 [gang evidence admissible to show motive and identity and “because the gang-related evidence at issue was ‘relevant to prove some fact … other than [defendant’s] disposition to commit’ crimes [citation], Evidence Code section 1101, subdivision (a), did not preclude its admission” (second bracketed insertion added)].) Ultimately the gang evidence was insufficient to establish that defendant was acting with the specific intent to benefit VRP when he shot at Santos and fled to avoid apprehension. Defendant argues that because the evidence was insufficient to prove that defendant specifically intended to benefit VRP by his actions, such evidence was also insufficient to establish a motive for defendant’s crimes. We do not agree. Regardless of whether defendant committed his crimes to specifically benefit VRP, his membership in VRP, which viewed law enforcement as its number one rival, provided him with a personal motive to harbor animosity against Santos and to shoot at Santos to earn the respect of his fellow VRP members. That defendant’s gang membership reflected on only his personal motive does not make the evidence less relevant to motive as to the non-gang offenses. “ ‘ “[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” ’ ” (Franklin, supra, 248 Cal.App.4th at p. 953.) Gang evidence may be admissible if relevant to explain an otherwise inexplicable attack. (See People v. Beyea (1974) 38 Cal.App.3d 176, 194–195, disapproved on another ground in People v. Blacksher (2011) 52 Cal.4th 769, 807–808.) Considered against the context of all the evidence admitted in the case, any evidence admitted solely to prove the gang enhancement, and unnecessary to motive or 23. intent, “was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendant[’s] actual guilt.” (Hernandez, supra, 33 Cal.4th at p. 1051.) The predicate offenses as described by the gang expert included assault with force sufficient to result in great bodily injury, assault with a firearm, burglary, and a felon in possession of a firearm. These offenses were no more inflammatory than the charged offenses of attempted murder and shooting at a police officer from a vehicle, and only one of the predicate offenses involved defendant. As defense counsel noted, the only issue for the jury to decide was whether defendant fired his shotgun at the officer. Defense counsel agreed that defendant evaded police, possessed an illegal shotgun as a felon, possessed ammunition, and was a gang member. The primary focus of that issue would be the physical evidence as to whether Santos’s patrol vehicle was damaged by broken glass from defendant’s vehicle’s rear window or by birdshot from a shotgun blast, evidence not directly related to defendant’s gang membership. Furthermore, the trial court agreed to and did properly admonish the jury that gang evidence was only relevant as to defendant’s intent and motive and could not be used to conclude that defendant was a person of bad character or that he had a disposition to commit crime. Therefore, we conclude that defendant failed to carry his burden “ ‘to clearly establish that there [was] a substantial danger of prejud ice requiring that the charges be separately tried.’ ” (Hernandez, supra, 33 Cal.4th at p. 1051.)2 2. No denial of due process Even if a trial court does not abuse its discretion based on the record before it at the time it ruled on the motion, reversal is required “if the defendant shows the failure to 2 We further conclude that admission of such evidence was harmless as discussed further in part III of this Discussion. 24. bifurcate resulted in ‘ “ ‘gross unfairness’ amounting to a denial of due process.” ’ ” (People v. Burch (2007) 148 Cal.App.4th 862, 867; see also Franklin, supra, 248 Cal.App.4th at p. 953; People v. Ybarra (2016) 245 Cal.App.4th 1420, 1434 [severance analysis involves two steps; if the trial court did not abuse its discretion in denying severance based upon the evidence before it at the time of the ruling, “we look to whether the defendant has demonstrated that the joinder resulted in ‘gross unfairness’ amounting to a due process violation based on the trial evidence and other trial related matters, such as the prosecutor’s closing argument”].) Defendant relies upon People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), a case wherein Albarran did not request bifurcation but moved to exclude the gang evidence as irrelevant and unduly prejudicial under Evidence Code section 352. (Albarran, at p. 217.) At the Evidence Code section 402 hearing, the trial court ruled that the evidence was admissible to prove intent and motive even though the prosecution’s gang expert testified he did not know the reason for the shooting. (Albarran, at pp. 220, 227.) The expert also conceded at trial that there was no evidence that the shooters exhibited any gang signals or announcements during the crime. (Id. at pp. 221, 227.) After conviction, the trial court granted a new trial as to the gang enhancements but denied a new trial as to the underlying charges, having decided that the evidence was relevant to intent and motive. (Id. at pp. 217, 225, 226–227.) On appeal, the Albarran court held that Albarran was entitled to a new trial on the underlying charges because the gang evidence had no relevance except to show Albarran’s disposition to commit a crime. (Id. at p. 230.) The court concluded that the case “present[ed] one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.” (Id. at p. 232.)3 3 In Albarran, two men shot at a house where a birthday party was being held and then fled on foot after a failed attempt to commandeer a nearby vehicle. (Albarran, supra, 149 Cal.App.4th at pp. 217–218.) In finding a lack of evidence that the crime was motivated by 25. We have already concluded that evidence of VRP’s view of law enforcement as its number one rival was relevant to defendant’s motive and specific intent in committing the crimes, distinguishing the instant case from that of Albarran. This is not a case where “no permissible inferences” could be drawn from the challenged evidence. (Albarran, supra, 149 Cal.App.4th at p. 229.) Even if evidence of the predicate offenses would not have been admitted in a bifurcated trial, the gang evidence that would not have been admitted but for the gang enhancements was no more inflammatory than the evidence related to the other charged offenses. Significantly, the jury was instructed it could not infer bad character or criminal disposition from the gang evidence and that it could only use such evidence to determine whether defendant intended to kill Santos or had a motive to shoot or kill him. In the absence of any indication that the jury was unwilling or unable to follow the trial court’s limiting instructions, it is presumed to have done so. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196; Franklin, supra, 248 Cal.App.4th at p. 953.) Defendant has failed to show that an unbifurcated trial resulted in such gross unfairness as to amount to a due process violation. (See Franklin, supra, 248 Cal.App.4th at p. 953.) III. Assembly Bill No. 333 requiring bifurcation. Effective January 1, 2022, Assembly Bill No. 333 (2021–2022 Reg. Sess.) amended section 186.22 (Stats. 2021, ch. 699, § 3) and added section 1109 (Stats. 2021, ch. 699, § 5) to the Penal Code. Section 1109, subdivision (a) provides that, upon request by the defense, a gang enhancement charged under subdivision (b) or (d) of gang membership, the court noted that the shooters failed to announce their presence or purpose before, during, or after the shooting and there was no evidence that any gang members had bragged about their involvement or created graffiti and took credit for the crime. (Id. at p. 227.) However, given that defendant here was driving alone in a car when the crime occurred and was arrested immediately thereafter, we cannot find that the absence of similar evidence weighs against the relevance of a gang-related motive in shooting at Santos. 26. section 186.22 shall be tried separately after determination of the defendant’s guilt of the underlying charge. Section 1109, subdivision (b) provides that a violation of section 186.22, subdivision (a) shall be tried separately from all other charges that do not require gang evidence as an element of the offense. Defendant argues that the bifurcation requirement created by section 1109 applies retroactively to his conviction, which is not yet final. He further argues that the failure to bifurcate requires that we reverse the entire judgment so that his charges may be tried in a bifurcated proceeding in which the jury will first deliver a verdict on the underlying charges without being exposed to the evidence relating to the gang enhancements. The People disagree on both points. As our Supreme Court has recently noted, case law is split on the question of whether section 1109 applies retroactively to convictions that are not yet final. (People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran).) Some published opinions have held that section 1109 is not retroactive. (See, e.g., People v. Boukes (2022) 83 Cal.App.5th 937, 948 [majority holding § 1109 is not retroactive; concurrence holding it is retroactive], review granted Nov. 1, 2022, S277103; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same], review granted Aug. 17, 2022, S275341; People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted Aug. 17, 2022, S275090). Other published opinions, including our own, have held that section 1109 is retroactive. (See, e.g., People v. Montano (2022) 80 Cal.App.5th 82, 108; People v. Ramos (2022) 77 Cal.App.5th 1116, 1130 (Ramos); People v. Burgos (2022) 77 Cal.App.5th 550, 564–569 [majority holding § 1109 is retroactive; dissent holding it is not retroactive], review granted July 13, 2022, S274743.) In Tran, our Supreme Court found it unnecessary to take a position on whether section 1109 applies retroactively to convictions that are not yet final, as any error in failing to bifurcate the trial of the gang enhancements was harmless. (Tran, supra, 13 Cal.5th at p. 1208.) As we will explain, we take the same approach here. Even 27. assuming without deciding that section 1109 applies retroactively, the failure to bifurcate the trial of the gang enhancements was harmless error. In supplemental briefing filed prior to our Supreme Court’s issuance of Tran, defendant argues that the failure to bifurcate the trial of the gang enhancements constituted structural error that is not amenable to harmless error review and is therefore reversible per se. That position was rejected in Tran. (Tran, supra, 13 Cal.5th at p. 1208 [rejecting the defendant’s “contention that the failure to bifurcate constitutes structural error”].) In most instances, when an error is one of state law, reversal is not warranted unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836–837; People v. Lewis (2021) 11 Cal.5th 952, 973 [“Typically, when an ‘error is purely one of state law, the Watson harmless error test applies.’ ”].) The now-existing requirement to bifurcate gang enhancements arises from a state- law statute (§ 1109), and a failure to follow section 1109 therefore constitutes an error of state law. As Tran recognized, certain errors of state law may require the application of the Chapman4 harmless error standard if they rise to federal constitutional error under the due process clause by rendering the trial fundamentally unfair. (Tran, supra, 13 Cal.5th at p. 1209, citing People v. Partida (2005) 37 Cal.4th 428, 439.) However, like the defendant in Tran, defendant here has not persuaded us that the failure to bifurcate the gang enhancements created a fundamentally unfair trial within the meaning of the federal due process clause. (Tran, at p. 1209 [holding that “the prosecutor’s use of the gang evidence here did not render the trial ‘fundamentally unfair’ ”].) The trial was not fundamentally unfair due to the failure to bifurcate because, as we have discussed in part II.C.2., ante, most of the gang evidence presented at trial was relevant to the 4 Chapman v. California (1967) 386 U.S. 18, 26. 28. underlying charges and the limited amount of evidence relevant only to the gang enhancements was not particularly inflammatory. As in Tran, having rejected the contention that the failure to bifurcate the gang enhancements rendered the trial fundamentally unfair, we apply the Watson harmless error standard. (See Tran, supra, 13 Cal.5th at p. 1209.) Under that standard, we conclude that there is no reasonable probability of a different outcome were the gang enhancements to be bifurcated from underlying charges. This is because the vast majority of the gang evidence was relevant to prove the underlying charges and thus would have been presented to the jury even if the trial of the gang enhancements was bifurcated, as our Supreme Court explained in Hernandez, supra, 33 Cal.4th at page 1049. “[N]othing in Assembly Bill [No. ]333 limits the introduction of gang evidence … where the gang evidence is relevant to the underlying charges.” (Ramos, supra, 77 Cal.App.5th at p. 1132.) In this case, as we explained, defendant’s gang connection was relevant to defendant’s motive and intent in shooting Santos. While evidence as to the history of VRP or two of the three predicate acts may not have been admissible to prove motive, the trial court would have permitted the prosecution to admit evidence of VRP’s animosity toward law enforcement, VRP’s view of law enforcement as its number one rival, and the importance of violent crimes to a gang member attempting to gain respect from other gang members. As we already discussed, the other gang evidence that might not have been admitted had the trial been bifurcated was not so inflammatory that it likely biased the jury against defendant on the question of guilt. Because only the assault on Carlos H. involved defendant and the testimony did not specifically describe what defendant did during the offense, it is less likely that the evidence was unduly prejudicial to defendant. Furthermore, the three predicate acts were proved mostly by abbreviated testimony of law enforcement witnesses and conviction records. As the predicate acts involved assault 29. and burglary, those crimes were no more prejudicial than the attempted murder and shooting from a vehicle offenses charged against defendant. Defendant’s prior contacts with law enforcement would have been admissible because the evidence of motive was based upon defendant’s involvement with VRP and he admitted to gang association during these contacts. As discussed herein, the trial court provided a limiting instruction to the jury regarding its consideration of the gang evidence. Perhaps the most significant indication that the jury followed this instruction lies in its acquittal of defendant for the attempted murder of Santos. The jury’s ability to evaluate the evidence and acquit defendant of attempted murder demonstrates that it was not unfairly prejudiced against defendant based upon the gang evidence. (See Ramos, supra, 77 Cal.App.5th at pp. 1131–1132 [“Any inference of prejudice resulting from the gang evidence is dispelled by the fact the jury acquitted all the defendants of attempted murder and could not reach a verdict on the attempted voluntary manslaughter charges.”].) As we discussed above, defense counsel advised the jury that the only issue was whether defendant fired his shotgun at Santos. Therefore, the primary focus of the jury’s attention would be the physical evidence as to whether Santos’s patrol vehicle was damaged by broken glass from defendant’s vehicle’s rear window or by birdshot from a shotgun blast. The jury’s request for Santos’s and Monsibais’s testimonies regarding defendant’s rear window and Santos’s testimony regarding defendant’s front driver’s side window demonstrates its focus on the physical evidence to determine whether defendant fired at Santos. The jury’s consideration of the physical evidence relevant to whether defendant’s shotgun caused the damage to Santos’s patrol vehicle indicates that the jury considered all the evidence and was not unduly prejudiced by the gang evidence. We conclude that it is not reasonably probable that the outcome of the trial on the underlying charges would have been different in the absence of the gang evidence that 30. would not have been otherwise admissible. Even assuming section 1109 is retroactively applicable in this case, the failure to bifurcate the trial of the gang enhancements was not prejudicial error. DISPOSITION The true findings that counts 2 through 4 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) are reversed. Defendant’s sentence is vacated in its entirety and the matter is remanded for resentencing. In all other respects, the judgment is affirmed. HILL, P. J. WE CONCUR: POOCHIGIAN, J. DE SANTOS, J. 31.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488290/	NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 21-3043 JULIA HANKERSON, Appellant v. LEGACY TREATMENT SERVICES INC. On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1-19-cv-18927) The Honorable John R. Padova * Submitted Under Third Circuit L.A.R. 34.1(a) October 21, 2022 Before: GREENAWAY, JR., MATEY, and ROTH, Circuit Judges. (Opinion filed: November 21, 2022) OPINION † * The Honorable John R. Padova for the Eastern District of Pennsylvania sitting as trial judge in the United States District Court for the District of New Jersey. † This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge. Julia Hankerson claims that age and race drove Legacy Treatment Services to deny her a promotion and terminate her employment. Crediting the company’s explanation that policy and performance explained those decisions, the District Court granted Legacy summary judgment. Finding no error, we will affirm. I. A. The Job Hankerson began working for Legacy in 2018. Although hired for a staff position, she agreed to supervise clinical operations a few months later. She then applied to be director of Legacy’s outpatient program. But the posting pointed to Legacy’s preference for licensure as a Clinical Alcohol and Drug Counselor (otherwise known as “LCADC”), a credential Hankerson does not hold. Legacy began interviewing candidates selected by an external recruiting agency, including a few without an LCADC license. Meanwhile, Hankerson advised her supervisor that she intended to change Legacy’s client intake process. But when Hankerson’s boss denied her proposal, Hankerson said that she would “no longer Supervise the Interns effective immediately” and demanded reassignment to a new position. App. 10. Legacy then terminated Hankerson’s employment, citing her abrupt resignation as a supervisor and the lack of transition planning. After considering additional candidates for the director position, Legacy hired an LCADC for the position. 2 B. The Lawsuit Hankerson sued Legacy alleging race and age discrimination in violation of Title VII, the Age Discrimination in Employment Act (“ADEA”), and the New Jersey Law Against Discrimination (“NJLAD”). 1 Hankerson also filed a successful claim for state unemployment benefits. 2 Hankerson moved for partial summary judgment, citing the favorable benefits ruling. And Legacy moved for summary judgment on all claims. The District Court granted Legacy’s motion for summary judgment and denied Hankerson’s motion. Hankerson now appeals both orders. 3 II. We analyze Hankerson’s state and federal discrimination claims using the familiar McDonnell Douglas burden-shifting framework. See Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (applying McDonnell Douglas framework to Title VII discrimination claim); Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (ADEA claim); Viscik v. Fowler Equip. Co., 800 A.2d 826, 833 (N.J. 2002) (NJLAD claim). Under this framework, Hankerson bears the initial burden of showing a prima 1 Hankerson has exhausted her administrative remedies. She filed an EEOC complaint and received a right to sue letter before commencing this action. 2 At first, the state denied Hankerson unemployment benefits concluding she was fired for misconduct. But the New Jersey Department of Labor Board of Review reversed, concluding it was “not persuaded that [Hankerson’s conduct] . . . was improper and a disregard of the employer’s standards of behavior.” App. 195. 3 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment to Legacy de novo, affirming only if, considering the facts in the light most favorable to Hankerson and drawing all reasonable inferences in her favor, Waldron v. SL Indus., Inc., 56 F.3d 491, 496 (3d Cir. 1995), no reasonable jury could rule in her favor, Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). 3 facie case of unlawful discrimination by establishing membership in a protected class, qualification for the position sought, and an adverse employment action occurring “under circumstances that could give rise to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Then, “[t]he burden [of production] must shift to the employer to articulate some legitimate, nondiscriminatory reason for [its decision].” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Legacy does not challenge Hankerson’s prima facie case, but offers nondiscriminatory reasons for its decisions. Hankerson, they argue, was terminated after abandoning her supervisory duties without the immediate appointment of another supervisor. That conduct, along with Hankerson’s short tenure at Legacy and lack of an LCADC license, says Legacy, are the reasons she was not hired as director. These are “legitimate, nondiscriminatory reason[s],” id., so Hankerson faces the burden of showing pretext with evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Hankerson argues that the District Court made two errors when it awarded summary judgment to Legacy: 1) drawing unwarranted inferences in Legacy’s favor; and 2) ignoring the preclusive effect of the New Jersey Labor Board’s decision. We disagree. 4 A. Evidence and Inferences Hankerson first argues that a reasonable jury could have inferred that Legacy’s expressed preference for an LCADC was a post-hoc rationale for not hiring her. 4 But Legacy’s job posting explained that the ability to supervise employees in drug and alcohol services was a requirement. Only one candidate without an LCADC license was interviewed before Hankerson’s termination, when Hankerson remained under consideration for the position. After Hankerson’s termination, two other candidates without LCADC licenses were interviewed, neither of which had Hankerson’s negative employment history with the company. Nor is there anything in the record beyond speculation to suggest Legacy fired Hankerson only because it did not want to promote her. Rather, all the evidence points the other way: Hankerson’s decision to leave her supervisory duties without warning caused her termination. 5 Next, Hankerson argues that the District Court needed to infer “that Legacy was not particularly concerned” with Hankerson’s abrupt actions. Opening Br. 42. Not so, as Hankerson herself notes that Legacy’s COO had to “immediately . . . provid[e] clinical supervision” to the social workers Hankerson no longer supervised. Opening Br. 41–42. And, in any event, if the temporary loss of services associated with terminating an 4 Hankerson also argues that comparators are unnecessary because a jury could infer that Legacy’s policy required it to interview internal candidates before external ones. But that policy required posting new openings to allow employees to apply, not to invite all to interview. 5 Still, even if we considered the post-termination events, no reasonable inference of discrimination arises. The successful candidate was an LCADC and, of course, did not have Hankerson’s negative history with the company. 5 employee was itself evidence of pretext, then terminated employees would always carry their third-step McDonnell Douglas burden and summary judgment for the employer would never be appropriate. Finally, Hankerson argues that the District Court erroneously “broke apart the evidence” rather than considering the totality of the facts. Opening Br. 26–27 (citing Fuentes, 32 F.3d at 764). But the District Court did consider all the evidence and merely recognized that some evidence was relevant to discounting Legacy’s explanations, while some addressed Legacy’s possible motivations. Moreover, neither of Hankerson’s arguments about the District Court’s relevance determinations is enough to carry the day. She points to Legacy’s policy favoring internal promotion. But Hankerson identifies no logical connection between Legacy’s promotion policy and its reaction to her surprise email adjusting her own work responsibilities. Nor is the balance changed by testimony from Legacy’s human resource manager that she could not recall any employee previously being fired for merely “disagree[ing] with Legacy’s view of the standards of . . . professional responsibility.” App. 21. Legacy never claimed that it fired Hankerson for disagreeing with professional standards, but that she acted on that disagreement without warning. In sum, Hankerson identified no evidence that refutes the District Court’s findings that Legacy’s promotion and termination decisions were not discriminatory. B. Collateral Estoppel Hankerson also argues that because the New Jersey Department of Labor Board of Review found her eligible for state unemployment benefits, Legacy is estopped from 6 claiming her termination was lawful. The Board based its conclusion on factual findings that her job description “did not require her to supervise” other social workers, and that she had been supervising solely “as a professional courtesy to [Legacy].” App. 194. And the Board was “not persuaded that her request to continue working as a mental health therapist was improper and a disregard of the employer’s standards of behavior.” App. 195. But as the District Court explained, the Board’s factual findings are not entitled to preclusive effect. 6 Federal law requires federal courts to give a state administrative decision the same preclusive effect it would receive in that state. See Dici v. Pennsylvania, 91 F.3d 542, 547–48 (3d Cir. 1996). And New Jersey state law provides that, unlike most other state administrative proceedings, New Jersey Department of Labor unemployment decisions are not entitled to preclusive effect in state courts. Olivieri v. Y.M.F. Carpet, Inc., 897 A.2d 1003, 1014–15 (N.J. 2006). Hankerson offers two responses, both unavailing. First, she argues that Olivieri no longer controls because it rested on a lack of substantive and procedural safeguards in New Jersey unemployment compensation adjudications that has since been redressed. But a footnote in Olivieri expressly disclaims this reading of its decision: “even if the procedural effects we have noted were absent” from unemployment decisions, the “broad 6 Moreover, the Board never addressed pretext. At most, the Board concluded that Legacy misinterpreted its own standards when it fired Hankerson, and found that supervising other social workers was not a requirement of her job description. But this does not establish that Legacy’s claimed justifications for the termination were pretextual. 7 holding” “that unemployment compensation determinations are not entitled to collateral estoppel effect” “would [still] apply” because “fundamental differences abound between the unemployment compensation scheme and other adjudicative decisions.” Id. at 1013 & n.8. So changes in New Jersey’s process for adjudicating unemployment benefits have not displaced Olivieri’s holding. Second, Hankerson argues that Olivieri “must be strictly limited to its facts,” Opening Br. 45, because a subsequent New Jersey Supreme Court case, Winters v. North Hudson Regional Fire & Rescue, 50 A.3d 649 (N.J. 2012) (per curiam), stressed that state courts should liberally afford preclusive effect to state administrative decisions. But Winters only addressed the preclusive effect of a state Civil Service Commission adjudication, see id. at 651, and did not overrule Olivieri’s specific holding about state administrative unemployment actions. To the contrary, Winters cited Olivieri as controlling law. See id. at 659, 661. Because New Jersey law denies preclusive effect to the Board’s factual findings, so must we. IV. Finding no error in the District Court’s opinion, we will affirm. 8	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488299/	Filed 11/21/22 P. v. Sanchez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D079581 Plaintiff and Respondent, v. (Super. Ct. No. SCN423308) CARLOS ALBERTO SANCHEZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Pamela M. Parker, Judge. Affirmed. Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Robin Urbanski, Paige B. Hazard, and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent. Carlos Alberto Sanchez appeals the revocation of his probation. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On April 30, 2021, the San Diego County District Attorney filed a complaint charging Sanchez with one count of felony stalking (Pen. Code,1 § 646.9, subd. (b); count 1) and twelve misdemeanor counts of violation of a domestic violence order (§ 273.6, subd. (a); counts 2 - 13). As to each count, the complaint alleged that the victim was a person defined in Family Code section 6211.2 (Pen. Code, § 1203.94, subd. (a).) Pursuant to a plea bargain, Sanchez agreed to plead guilty to count 1 and admit the special allegation, and the prosecution agreed to dismiss counts 2 through 13. On July 20, 2021, per the plea bargain, the trial court sentenced Sanchez to the middle term of three years in prison but suspended the execution of the sentence and placed Sanchez on three years of formal probation, with the condition that he serve one year in local custody. The trial court issued a criminal protective order that prohibited Sanchez from using unlawful threats against another person, having any contact with his ex-girlfriend or his two children, or coming within 100 yards of their homes, schools, vehicles, or work places. The trial court explained to Sanchez that he had to go to family court to obtain orders for custody and visitation before he could have contact with his children. Further, the court cautioned Sanchez that even if he obtained such orders, his contact with his children “must be peaceful” and he could not “do anything to endanger their safety or wellbeing.” Also, the court made clear 1 Statutory references are to the Penal Code unless otherwise specified. 2 The victim was Amanda S., Sanchez’s ex-girlfriend. (See Fam. Code, § 6211, subd. (c).) Sanchez and Amanda have two children together. (See Fam. Code, § 6211, subd. (d).) 2 that Sanchez would be in violation of his probation if he contacted his children without getting the required orders from the family court. As to Sanchez’s ex-girlfriend, the court stated that if he obtained orders from the family court and then had to have contact with Amanda to see his children, he could not “threaten her in any manner or be aggressive toward her.” The court further clarified that Sanchez could not have direct or indirect contact with Amanda unless he had an order from the family court relating to custody and visitation of his children. The court explained the restrictions as follows: “Let me make sure I explicitly spell it out. You can’t have any personal, electronic, telephonic, or written contact with either of them. [¶] You must stay 100 yards away from each of them, their homes, their schools, their vehicles, or their places of employment. [¶] As I said, if you violate this order, you can be charged with a new crime and you can go to prison.” The court then reiterated that “if [Sanchez] go[es] to Family Court and . . . follow[s] whatever the Family Court orders, [he] will not be in violation of [his probation].” While he was incarcerated at the Vista Detention Facility, on July 22, 2021, Sanchez met with Alondra Muñoz, a social worker. Muñoz works for Project In-Reach Ministry, a re-entry service provider that offers substance abuse and mental health services. Sanchez had requested services from Project In-Reach Ministry. During his meeting with Muñoz, Sanchez referred to Amanda and her new husband, complaining: “ ‘They can’t tell me I can’t see my kids. I’m going to see my kids.’ ” Muñoz cautioned Sanchez about violating the terms of his probation by trying to see his children, to which Sanchez lamented that he could not violate his probation terms after he was released or he would have to serve additional time in prison. He then 3 said, “ ‘If I have to serve time I will take them out, him or her. I’m not going to do time for nothing.’ ” The next day, Sanchez called and talked with his mother. During that conversation, the following exchange occurred: “[Sanchez]: I just have a feeling that something is gonna happen. “[Sanchez’s mother]: Something like what [do] you mean? “[Sanchez]: We can discuss that when I get out. “[Sanchez’s mother]: Yeah. Okay. “[Sanchez]: So . . . but . . . you know? All right fuck. I may just end up snapping, you know. I don’t know. I just . . . (unintelligible) “[Sanchez’s mother]: Well, your—your biggest focus, you know what it is. It’s your kids. “[Sanchez]: Yeah. Well, I’m just saying (unintelligible) “[Sanchez’s mother]: They’ve -- they’ve suffered in this. They suffered— “[Sanchez]: I know - “[Sanchez’s mother]: —in this— “[Sanchez]: But, what I’m saying, what I’m saying, what I’m saying is there’s a certain point of I’m not gonna be able to handle so much shit when I get out, and if I’m gonna get fucked over, I’m gonna snap, and I will fucking take somebody with me, if I gotta go—if I get locked up, I’m gonna fuckin’ break somebody off. “[Sanchez’s mother]: Well . . . “[Sanchez]: ‘Cause if I’m gonna get in trouble, I’m gonna make sure I’m in trouble. 4 “[Sanchez’s mother]: I don’t—you know, I—I don’t know. I—I’m getting a little irritated because your number one concern, it has to be your kids and that’s it right now, and that’s enough. “[Sanchez]: Yeah, again, again, again, if I’m getting—if I got—I’m locked up right now for some bullshit— “[Sanchez’s mother]: I understand. I understand that— “[Sanchez]: And if I get in trouble for some bullshit again and I gotta go do prison, I’m gonna go fuck somebody up ‘cause if I’m gonna go to prison, I’m gonna fuck somebody up. I’m going to go for a reason, not for some bullshit reason, and that’s what, that’s what I’m saying. I’m not gonna go look for it. I’m not gonna go look for trouble, but if I’m gonna get in fuckin’ trouble for something that I didn’t do like this bullshit, someone is gonna go down, and that’s a promise. “[Sanchez’s mother]: Mm-kay, well. “[Sanchez]: You have to understand that like if I get violated for something that I’m not doing or some bullshit excuse that’s just bullshit (unintelligible), I’m gonna whack em both—I—fucking—I’m gonna—someone is gonna go— someone is gonna get it if I have to go to prison.” Sanchez was arrested again based on his comments to Muñoz and his mother. On August 13, 2021, the San Diego County Probation Department filed a report of Sanchez’s re-arrest, alleging that Sanchez had violated two conditions of his probation: conditions 10a3 and 10d.4 3 Condition 10a provides: “Do not unlawfully use force, threats, or violence on another person.” 4 Condition 10d provides: “Comply with any protective order issued pursuant to PC136.2 / PC1203.097(a)(2).” 5 On October 4, 2021, the trial court held an evidentiary hearing to determine whether Sanchez had violated the conditions of his probation. Muñoz and an investigator from the district attorney’s office testified at the hearing. In addition, a tape recording of a portion of the conversation between Sanchez and his mother was played at the hearing. The trial court found Sanchez to be in willful violation of the terms of his probation. To this end, the court explained: “Well, this isn’t, I’ll grant you, a straightforward violation case in the sense that we’re used to, you know, somebody is not supposed to use drugs when they’re out on probation and they use drugs, you know, it’s done. It’s not quite that simple. It’s a little more complex. The difference in this case, and what I think really seals it from my point of view as the—as the person who has to decide by only a preponderance of the evidence whether there was a violation, is that there were threats and the threats, the issuance of threats, not just thinking about taking someone out, not just thinking about going to see his children, but actually saying ‘no one’s going to keep me from seeing my kids,’ that’s a threat because he’s threatening to violate his probation. “Threatening to take someone out is a direct threat and under the circumstances it was very clear who he was thinking of and there’s no, really, dispute about what he said. Not making threats is a term of the probation and he violated his probation by making a very pretty specific threat against protected parties. So I don’t think it’s quite the case that defense counsel said well, all he’s doing is thinking about it and all these conditions have to come true before there’s anything he can do. Even in charge of a criminal threat you don’t actually have to be able to carry out the threat, if it seems like from an objective standpoint it’s a reasonable threat, if it seems reasonably credible. I’m oversimplifying, but you get the message. You don’t actually have to take steps to do it. 6 “The fact that you made it and made it knowingly, knowing that it was in this case a violation to even think about going near his kids or the mother or let alone harming someone I think really puts this over the line of just thinking about violating probation. So my finding is that there is a preponderance of the evidence that the defendant violated a term of his probation. He failed to remain law abiding and that was a condition of his—that was a condition of his probation in addition to not making threats and obviously needed to obey all laws. So the Court is formally revoking probation.” After revoking Sanchez’s probation, the court imposed the three-year prison sentence. In addition, the court noted that the fines and fees “were already imposed” and stated it was going to impose or confirm those fines and fees as well. Sanchez filed a timely notice of appeal. DISCUSSION I REVOCATION OF PROBATION A. Sanchez’s Contentions Sanchez claims substantial evidence does not support the trial court’s finding that he violated a probation condition, causing the court to revoke probation. We disagree. B. Relevant Law Probation is not a right but an act of leniency that allows a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402.) State law authorizes the sentencing court to impose probation conditions on release that are “fitting and proper to the end that justice may be done, that amends may be made to society for the breach of state law, for any injury done to any person resulting from the breach, and . . . for the reformation and rehabilitation of the probationer.” (§ 1203.1, subd. (j).) A trial court has 7 broad discretion in determining the conditions of probation necessary to serve the primary goals of probation: promoting rehabilitation and protecting the safety of the public. (Moran, at pp. 402-403; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) As such, the sentencing court may impose a probation condition regulating otherwise lawful conduct, provided the condition is reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380; People v. Lent (1975) 15 Cal.3d 481, 486.) Section 1203.2, subdivision (a) authorizes a trial court to revoke the supervision of a person released on probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation . . . officer or otherwise that the person has violated any of the conditions of their supervision . . . .” (People v. Leiva (2013) 56 Cal.4th 498, 504-505.) A trial court possesses “very broad discretion in determining whether a probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez).) A probation violation need only be proven by a preponderance of the evidence. (Id. at p. 447; People v. Jackson (2005) 134 Cal.App.4th 929, 935.) When a defendant challenges the sufficiency of the evidence supporting a trial court’s probation revocation decision on appeal, the reviewing court applies the substantial evidence standard of review. “[G]reat deference is accorded the trial court’s decision, bearing in mind that ‘[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.’ ” (People v. Butcher (2016) 247 Cal.App.4th 310, 318; People v. Urke (2011) 197 Cal.App.4th 766, 773.) A reviewing court views the evidence in the light most favorable to the judgment and does not reweigh the evidence, resolve conflicts 8 in the evidence, or reevaluate the credibility of witnesses. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “ ‘ “[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .” ’ ” (People v. Kingston (2019) 41 Cal.App.5th 272, 278 (Kingston), quoting Rodriguez, supra, 51 Cal.3d at p. 443.) C. Analysis Relying primarily on In re A.C. (2019) 37 Cal.App.5th 262 (A.C.) and arguing that substantial evidence does not show that he made a criminal threat, Sanchez contends substantial evidence does not support the court’s conclusion that he violated any of his probation conditions. However, A.C. is not helpful to Sanchez. In that case, the court sustained a Welfare and Institutions Code section 602 petition, and the minor was placed on probation. One of his probation conditions was that he could “ ‘not unlawfully threaten, hit, fight with, or use physical force on any person.’ ” (A.C., supra, 37 Cal.App.5th at p. 264.) During an in-home visit with a “ ‘child and family counselor,’ ” who was assigned to the minor’s family to “ ‘provid[e] linkages’ ” so the minor and his family could receive mental health services, the minor told the counselor that if he went to school, “ ‘and the kids teased him, he was going to react’; he was going to ‘basically stab them with whatever he had available’; and he ‘was serious about it.’ ” (Id. at p. 265.) The minor referred to two students, but he did not give the counselor their names. (Ibid.) The counselor contacted her supervisor to report the minor’s statements. A psychiatric emergency team came to the minor’s home and interviewed him. The minor 9 was eventually admitted to a hospital. (Ibid.) In addition, the People filed a notice of probation violation, and the juvenile court ultimately determined that the minor had violated his probation conditions. (Ibid.) On appeal, the minor argued, and the People conceded, that substantial evidence did not support the juvenile court’s finding that the minor had violated probation. (A.C., supra, 37 Cal.App.5th at p. 267.) The appellate court agreed, noting that the minor did not tell the counselor the name of the two students he would retaliate against, and there was no indication in the record that the counselor knew the identity of those students or would tell them about the minor’s statements. (Id. at pp. 267-268.) Moreover, among other things, the court concluded that, by making the statements to the counselor, the minor was trying to convince the counselor that he did not want to return to school (which he did not do). As such, the court concluded that the minor’s statements showed that he needed counseling but did not support a finding that he violated probation. (Id. at p. 268.) In contrast to the minor in A.C. who stated he would retaliate at school if he was bullied but did not identify any specific target by name, Sanchez told Muñoz that he was going to violate probation by seeing his children, when he was released from the Vista Dentition Facility. When Muñoz told Sanchez that such action would be in violation of his probation conditions, Sanchez responded that he would “ ‘take them out, him or her.’ ” It was clear to Muñoz as well as the trial court that Sanchez was threatening Amanda and her husband. Moreover, unlike the minor in A.C. who did not want to be placed in a situation where he could violate his probation conditions, Sanchez implied that as soon as he was released he would violate his probation conditions so he could see his children, then harm their mother, even though they were the very people protected under the restraining order. Moreover, 10 he made these comments to a person who he engaged to help him re-enter society once he was released. Making the threats in this context only heightened the trial court’s concerns about Sanchez’s conduct. In addition, the day after Sanchez conveyed his threats to Muñoz, he repeated the same type of threats to his mother on the phone. He told her he would “fuck somebody up” and “someone is gonna go down” when he was released. Again, based on the context of the conversation, Sanchez clearly was talking about Amanda and her husband, indicating he was going to “whack ‘em both” if he was going to prison anyway. Thus, rather than indicating he would comply with the court’s instructions to pursue visitation through family court, Sanchez focused on the control Amanda and her husband had over the children. Sanchez expressed concern about not having immediate access to visit his children, told Muñoz that Amanda and her husband could not restrict that access, and commented that if they tried, he would respond to the ensuing probation violation with violence. He reiterated this threat when he talked to his mother. In short, there is no dispute that Sanchez threatened violence if he was prevented from seeing his children. Sanchez’s comments are all the more concerning because he was on probation for stalking Amanda. The court also put in place a criminal protective order to protect Amanda and her children from Sanchez. Further, the court was clear that Sanchez could not “threaten [Amanda] in any manner or be aggressive toward her.” Yet, despite only being in custody for two days, Sanchez was telling a re-entry specialist that he was going to violate his probation and harm Amanda and/or her husband. He repeated the same type of threats to his mother the next day. In other words, Sanchez 11 was making it clear that he would not abide by his probation conditions once released. Taking the threats seriously, law enforcement arrested Sanchez. Against this background, we are satisfied that substantial evidence supported the trial court’s finding that Sanchez violated probation. When the record reveals that a defendant’s violation of the terms of probation was the result of irresponsible or willful behavior, termination of probation and imposition of a prison sentence is not an abuse of discretion. (Cf. People v. Zaring (1992) 8 Cal.App.4th 362, 379.) This is not an extreme case that justifies our interference with the court’s discretion to revoke probation. (See Kingston, supra, 41 Cal.App.5th at p. 278.) II The Fees and Fines A. Sanchez’s Contentions Sanchez argues that the trial court improperly imposed fines and fees a “second time.” Essentially, he maintains certain fines and fees were imposed twice. In addition, he argues the domestic violence fine imposed under section 1203.097 was unauthorized because it may only be imposed when probation is granted. Because probation was being revoked, Sanchez insists the court could not impose that fine. We reject these contentions. B. Background At the July 20, 2021 sentencing hearing, when Sanchez was granted probation, the trial court imposed the following fees and fines: an $820 criminal surcharge fee (§ 1465.7, subd. (a)), a $40 court operations fee (§ 1465.8), a $30 criminal conviction fee (Gov. Code, § 70373), a $500 domestic violence fee (§ 1203.097), a $300 restitution fine (§ 1202.4, subd. (b)), and a 12 $300 probation revocation fine (§ 1202.44). The court stayed the fines and fees pending a determination of Sanchez’s ability to pay.5 At the October 4, 2021 revocation hearing, the trial court ordered Sanchez to serve the previously imposed three-year prison term and pay the previously imposed fines and fees. The court stated, “We have—the fines and fees were already imposed. Those will be imposed as well or confirmed today.” The minutes from the hearing and the abstract of judgment reflect that, aside from the $820 criminal surcharge fee, which was not included, the fines and fees were imposed as the court had originally ordered at the July 20 sentencing. Sanchez did not object to the imposition of the fines and fees or request a determination of his ability to pay. C. Analysis Sanchez argues the instant matter is analogous to People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). In that case, the trial court imposed a $200 restitution fine when the defendant pled no contest and was placed on probation but imposed a $500 restitution fine when his probation was revoked, and he was sentenced to state prison. (Id. at p. 821.) The appellate court modified the judgment by striking the $500 fine. The court explained that although a restitution fine under section 1202.4 was mandatory, the trial court at the time had discretion whether to make it a condition of probation. (Chambers, at pp. 821-822.) The trial court could not, however, impose the fine as a condition of probation and then impose another restitution fine at the time of sentencing. (Ibid.) Subsequent amendments to section 1202.4 removed the discretion as to probation, and imposition of the fine as a condition of probation is now mandatory. (Chambers, at p. 822.) 5 The probation revocation fine was suspended pending Sanchez’s successful completion of probation. 13 However, the court noted that the restitution fine “survive[s]” a revocation of probation, and as such, should appear in the abstract of judgment. (Id. at pp. 822-823.) In People v. Cropsey (2010) 184 Cal.App.4th 961 (Cropsey), the appellate court considered and rejected a Chambers based argument similar to that made here by Sanchez. In Cropsey, the trial court placed the defendant on probation following a no contest plea, the conditions of which included a $200 restitution fine under section 1204.4, subdivision (b), and a $200 restitution fine under section 1202.44, which was suspended pending successful completion of probation. (Cropsey, at pp. 962-963.) Following a first probation violation, the $200 probation violation fine (§ 1202.44) was imposed. (Cropsey, at p. 963.) Following a third probation violation, the court sentenced the defendant to state prison but suspended execution of sentence, and reinstated probation. (Ibid.) At that time, the court “ ‘reimpose[d]’ ” the $200 restitution fine, “ ‘reimpose[d]’ ” the $200 probation violation fine and added a $200 restitution fine suspended unless parole was revoked. (Id. at p. 964.) The defendant contended the trial court had erred in imposing two restitution fines under sections 1202.4, subdivision (b) and 1202.44. Yet, the appellate court concluded the case was different from Chambers. To this end, the court observed that the trial court was attempting to comply with Chambers by stating the fines were “reimpose[d].” (Cropsey, supra, 184 Cal.App.4th at p. 965.) The court was not imposing a “new, prohibited second fine.” (Ibid.) The trial court’s intent was confirmed by the fact the clerk wrote “ ‘previously imposed’ ” in the minutes adjacent to the restitution fines. The appellate court therefore rejected the defendant’s suggestion that all references to the restitution fines should be deleted from the minutes as 14 “infeasible because it sets the stage for an extant but unpaid fine to be overlooked.” (Ibid.) The court noted, however, the trial court’s words “ ‘reimpose the restitution amounts’ ” was “inconsistent with the principle upon which Chambers was decided.” (Cropsey, supra, 184 Cal.App.4th at p. 965.) The “survival” of the restitution “made it unnecessary to ‘reimpose’ those still extant ‘restitution amounts.’ ” (Id. at p. 966.) “Where a restitution fine(s) has been previously imposed, the trial court should simply say, ‘The abstract of judgment should reflect the restitution fine(s) previously imposed.’ ” (Ibid.) Here, at the probation revocation hearing, the trial court did not use the term “reimpose” regarding the fines and fees. Nor did the sentencing minutes or the abstract of judgment include any notation that the fines and fees had been previously imposed. Nonetheless, the court acknowledged that “the fines and fees were already imposed” and stated that they would “be imposed as well or confirmed today.” Although perhaps not as clearly stated as the court suggested in Cropsey, we determine the trial court here was not imposing duplicative fines and fees but merely confirming the fines that had been previously imposed. Our conclusion is buttressed by our comparison of the fees and fines imposed before and after revocation; they are the same (except that it appears the court did not impose the $820 penalty assessment after revoking probation). As such, although it might have been preferable, as suggested in Cropsey, for the trial court to specifically order that the abstract of judgment reflect imposition of fines “previously imposed,” the imposition of the fines and fees below did not constitute a second set of fines and fees that must be struck. (See Cropsey, supra, 184 Cal.App.4th at p. 966.) 15 Sanchez also contends that the court erred in reimposing the domestic violence fee under section 1203.097 because that fee may only be imposed when a defendant is granted probation, and the court revoked probation in the instant matter. (See § 1203.097, subd. (a).) We disagree. A fee previously imposed during a grant of probation “remain[s] in force despite the revocation of probation.” (Chambers, supra, 65 Cal.App.4th at p. 823.) Moreover, section 1203.097, subdivision (a) provides that if a person is granted probation for a crime of domestic violence, the term of probation shall include a minimum payment by the defendant of $500. No provision relieves Sanchez of the responsibility to pay this fee if probation is revoked. In addition, we are not persuaded by Sanchez’s reliance on People v. Kirvin (2014) 231 Cal.App.4th 1507. There, the defendant was never granted probation, but the trial court still imposed a domestic violence fee at the time of conviction. (Id. at pp. 1513, 1520.) In contrast, here, the domestic violence fee was properly imposed when probation was granted.6 6 At the end of his opening brief, in a single sentence, Sanchez asserts “the domestic violence fund fee that was originally imposed at the grant of probation must again be stayed pending an ability to pay hearing.” However, Sanchez neither objected to the fees and fines at the revocation hearing nor requested an ability to pay hearing. As such, we determine that he forfeited this claim on appeal. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Moreover, there is no indication in the record that Sanchez lacked the ability to pay the domestic violence fine. The probation report indicates that he has been self-employed as a vehicle fabricator for the past four years. In addition, he has worked in the construction industry and as a heavy machine operator. And Sanchez represented that he earns about $1,000 a month from his business and receives $850 every two weeks for unemployment but pays $600 per month in rent and utilities. 16 DISPOSITION The judgment is affirmed. HUFFMAN, J. I CONCUR: McCONNELL, P. J. 17 Buchanan, J., Dissenting. Carlos Alberto Sanchez was accused of violating two conditions of his probation: conditions 10a and 10d. Condition 10a provides: “Do not unlawfully use force, threats, or violence on another person.” Condition 10d provides: “Comply with any protective order issued pursuant to PC136.2 / PC1203.097(a)(2).” In my view, there is no substantial evidence that Sanchez violated either of these conditions. The majority appears to conclude that Sanchez violated condition 10a by threatening to harm his ex-girlfriend and/or her husband in his conversations with a social worker and his mother. However, condition 10a applies only if Sanchez “unlawfully” threatened another person. In In re A.C. (2019) 37 Cal.App.5th 262 (A.C.), the court construed a nearly identical probation condition requiring that the probationer “ ‘must not unlawfully threaten’ any person.” (Id. at p. 267, italics added.) The court concluded that to establish a violation of this condition, the People had to prove the elements of a criminal threat under Penal Code section 422.1 (A.C., at p. 267.) Specifically, “the People must prove: (1) [the probationer] made the statements ‘with the specific intent [that they] be taken as a threat’ . . . ; (2) he communicated the statements directly or by a third party to the victims; and (3) the statements caused the victims to be in a state of ‘sustained fear.’ ” (Ibid.) The A.C. court further noted that when such a threat is conveyed to a third party, section 422 requires that the defendant must have intended it to be communicated to the victim. (A.C., supra, 37 Cal.App.5th at p. 267, citing People v. Felix (2001) 92 Cal.App.4th 905, 913; see also In re Ryan D. (2002) 100 Cal.App.4th 854, 861-862.) 1 Further undesignated statutory references are to the Penal Code. The majority here distinguishes A.C. factually, but does not address its holding that a standard probation condition prohibiting the probationer from “unlawfully” threatening another person requires proof of the elements of a criminal threat under section 422. (A.C., supra, 37 Cal.App.5th at p. 267.) In the respondent’s brief, the People have explicitly conceded that the evidence is insufficient to establish a violation of condition 10a under this standard. The People state: “Respondent agrees that the evidence does not show that appellant violated the standard term listed in the probation order that he not make ‘unlawful’ threats as defined [in] section 422.” As Sanchez persuasively argues, there is no substantial evidence to support the required elements that Sanchez intended the threats he made in conversations with the social worker and his mother to be communicated to his ex-girlfriend or her husband, or that his threats caused either of them to be in sustained fear. The majority does not discuss these elements of a criminal threat under section 422 and does not identify any other law that made Sanchez’s threats unlawful. Based on the People’s concession, and the failure of proof of the required elements, I would find no substantial evidence that Sanchez violated condition 10a. I would also find no substantial evidence that Sanchez violated condition 10d requiring him to comply with the criminal protective order. The protective order required Sanchez to have no contact with his children, his ex-girlfriend, or her husband, and not to come within 100 yards of them or their homes, places of employment, schools, or vehicles—except for “peaceful contact” to facilitate the safe exchange of children and court-ordered visitation as authorized in any subsequent court order. There is no evidence that Sanchez committed any of these prohibited acts. Although the majority 2 correctly notes that Sanchez threatened to contact his children, merely threatening to do so (or just thinking about it) is not one of the prohibited acts. Finally, I would reject the People’s argument that the trial court orally imposed additional conditions of probation beyond those listed in the written order granting formal probation. The court orally imposed the same conditions listed on the written order, referring to them by the specific paragraph numbers in the order. The court then went on to discuss the terms of the separate protective order. In its discussion of the protective order, the trial court explained to Sanchez that to have contact with his children in the future, the order required that he first get an order allowing visitation, and that any contact to facilitate visitation must be “peaceful contact,” which the court defined to mean that Sanchez “cannot do anything to endanger their safety or well[-]being” and “can’t threaten [the ex- girlfriend] in any manner or be aggressive toward her.” 2 In this discussion, the court merely explained the meaning of the exception to the protective order for “peaceful contact” to facilitate a future order authorizing visitation. Thus, the majority quite rightly does not rely on the theory that the court imposed additional conditions of probation beyond those listed in the written probation order—even though this is the only theory offered by the People as a basis for affirming the revocation order. Even assuming the court’s oral explanation of the written protective order could reasonably be construed to be part of its terms, I believe there 2 The protective order included a narrow “exception to the ‘no-contact’ or ‘stay-away’ provision[s]” for “peaceful contact with the protected persons named above . . . only for the safe exchange of children and court-ordered visitation as stated in . . . any Family, Juvenile, or Probate court order issued after the date this order is signed.” 3 would still be no substantial evidence of its violation. As noted, the court was discussing a narrow exception to the no-contact and stay-away provisions of the protective order for “peaceful contact” to facilitate implementation of a future visitation order. But there cannot be a violation of the protective order without a violation of its no-contact or stay-away provisions. And there is no evidence that Sanchez committed any such violation. Although the protective order applied to contact “through a third party,” there is no evidence that any third party communicated Sanchez’s threats to the protected persons or that Sanchez so intended. For these reasons, I would reverse the trial court’s orders revoking probation and imposing the previously suspended prison sentence. Although I agree that Sanchez’s conduct is disturbing, I do not believe there is substantial evidence that he violated any condition of his probation. Accordingly, I dissent. BUCHANAN, J. 4	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488297/	Filed 11/21/22 The Law Firm of Kallis & Associates v. Padgett CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE LAW FIRM OF KALLIS & H046063 ASSOCIATES, P.C. et al., (Santa Clara County Super. Ct. No. 16CV298149) Plaintiffs and Appellants, v. JOSEPH P. PADGETT, Defendant and Respondent. The Law Firm of Kallis & Associates, P.C. and Bustamante & Gagliasso, APC (collectively Law Firms) appeal a summary judgment ruling in their 2016 action to recover attorney fees from former client Joseph P. Padgett. Law Firms challenge the dismissal of their 2016 quantum meruit and restitution causes of action as time-barred. We reject Law Firms’ arguments that the quantum meruit cause of action accrued either in 2017 (when Padgett voided the retainer and general fee agreement) or in 2015 (when Padgett appealed a federal court attorney fees award for Law Firms’ services). As we will explain, the quantum meruit claim accrued when Padgett discharged Law Firms in 2013, and Law Firms forfeited their challenge to the statute of limitations ruling related to the restitution cause of action. Alternatively, we conclude that Law Firms failed to establish the elements of a restitution claim. We will affirm the judgment. I. BACKGROUND 1 Federal Court Proceedings In 2004, Padgett and his then wife filed a civil rights action in federal court against the City of Monte Sereno and several city officials. Law Firms and the Padgetts executed a retainer and general fee agreement in September 2008, and Law Firms substituted in as counsel in the federal court action. Several claims were dismissed or bifurcated, and certain claims against two individual defendants were tried to a jury in 2009. The jury returned a verdict in favor of Padgett on a claim against one defendant. Padgett was awarded $1 in nominal damages and $10,000 in remitted punitive damages. Padgett moved under title 42 United States Code section 1988 for $900,000 in costs and attorney fees exceeding $3.4 million (for pretrial work performed by a different firm, and for pretrial, trial, and appellate work performed by Law Firms). The district court ordered the liable defendant to pay $100,000 in costs and $500,000 in attorney fees. In February 2013, the Ninth Circuit Court of Appeals vacated the order and remanded the matter “for an explanation of how [the district court] used the lodestar method to reduce Padgett’s fees and how it calculated Padgett’s reduced costs.” In July 2013, Padgett notified Law Firms that he was terminating their services effective immediately, and instructed the firms “to take no further action in my name or on my behalf.” A status conference on remand was held in October 2013. The district court relieved Law Firms from representing Padgett at that time. At the same time, the district court informed Padgett that “once the client makes the request [for statutory attorney fees], the attorney’s fees actually belong to the attorneys,” citing a Ninth Circuit case involving attorney fees in qui tam actions. Padgett remained in the case as an 1 We grant Law Firms’ request for judicial notice of the superior court records in this case (items 1, 10, 11.1, 11.2, 14-19) and the district court records in underlying civil rights litigation (items 2-9, 20). (Evid. Code, § 452, subd. (d).) The request for judicial notice of statutes and case law (items 21-23) is denied as unnecessary. 2 unrepresented party, and Law Firms pursued their attorney fees in the federal case as real parties in interest. In March 2015, the district court awarded Padgett $100,000 in costs and $471,057 in attorney fees for Law Firms’ services. Using the lodestar method, the court found reasonable attorney fees to be $1,682,345 ($1,047,888 for the Bustamante firm’s services and $634,458 for the Kallis firm’s services). It adjusted the award downward to reflect Padgett’s limited success in the litigation (out of seven claims against eight defendants, only two claims against two defendants had survived summary judgment). Padgett appealed that order, challenging Law Firms’ standing to pursue attorney fees after being terminated. Distinguishing civil rights cases from qui tam actions, the Ninth Circuit remanded the matter for the district court to determine whether a contractual provision or attorney’s lien justified the award to counsel rather than to Padgett. On remand, the district court found that an enforceable fee agreement existed at the time it issued its March 2015 order, and the fee award was therefore required to be paid to counsel. The Underlying Superior Court Action While the federal appeal was pending, in July 2016 Law Firms filed the instant action in the superior court, seeking payment for services rendered. The first amended complaint alleged causes of action for breach of contract; restitution by unjust enrichment; quantum meruit; promissory estoppel; account stated; and declaratory relief. Law Firms sought $520,586 in “[a]ctual [d]amages,” which they alleged was the district court’s “ultimate[] award[] [of] fees and costs.” (We note the unexplained discrepancy between the $520,586 figure and the district court’s 2015 award of $471,057 in attorney’s fees and $100,000 in costs.) They also sought quantum meruit damages in the amount of $1,682,345. In January 2017, Padgett notified Law Firms in writing that the 2008 fee agreement violated Business and Professions Code section 6147 (governing contingency fee agreements between lawyers and clients), and Padgett declared the contract “void” 3 under subdivision (b) of that section. Padgett demurred to the operative first amended complaint and cross-complained for declaratory relief. The demurrer was sustained as to promissory estoppel. Padgett moved for summary judgment on the remaining causes of action on grounds that the fee agreement was void and unenforceable, and the equitable causes of action were either time-barred or otherwise not cognizable. While the summary judgment motion was pending, Kallis & Associates dismissed all claims against Padgett except for quantum meruit, and Bustamante & Gagliasso dismissed all claims except restitution by unjust enrichment and quantum meruit. In a written order, the trial court granted Padgett’s summary judgment motion in its entirety. The trial court invoked the rule in Leighton v. Forster (2017) 8 Cal.App.5th 467, 490: “Where the claim of quantum meruit is based upon services performed under a contract that was void or voidable, the limitations period commences to run on either the date the last payment was made toward the attorney fees, or the last date that the attorney performed services in the case.” It found the restitution and quantum meruit causes of action accrued in October 2013 when Padgett terminated Law Firms’ services, and were therefore time-barred. The court ruled that the fee agreement was void and did not create a lien. Judgment was entered accordingly. II. DISCUSSION Summary judgment is appropriate when there are no triable issues of any material facts and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) We review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) Quantum Meruit Cause of Action The statute of limitations for a quantum meruit claim is two years. (Code Civ. Proc., § 339, subd. 1 [“action upon a contract, obligation or liability not founded upon an instrument of writing”].) The trial court found the quantum meruit cause of action 4 accrued in October 2013 when Law Firms’ services were formally terminated. Law Firms first argue the quantum meruit cause of action accrued in January 2017 when Padgett elected to void the written fee agreement under Business and Professions Code section 6147, subdivision (b), which provides, “Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.” The contract was voidable because it omitted language required by section 6147, subdivision (a)(4) that “the fee is not set by law but is negotiable between attorney and client.” Law Firms argue that “[s]electing an accrual date for quantum meruit that allows the two-year limitations period to run while there is an existing fee agreement in place” is inconsistent with the rule that a legally enforceable written contract precludes a claim for quantum meruit and would render meaningless subdivision (b) of section 6147, which allows for quantum meruit recovery upon the voiding of a fee agreement. (See Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 460 [“the attorney remains ‘entitled to collect a reasonable fee’ ” where an agreement is voided under Bus. & Prof. Code, § 6147].) Alternatively, Law Firms argue the cause of action accrued in April 2015 after the district court awarded reasonable fees for their services and Padgett appealed that award knowing “how much he owed to Law Firms and was bound to pay.” Law Firms’ arguments rest on the premise that the existence of the parties’ fee agreement precluded a quantum meruit cause of action until Padgett voided that agreement. But our Supreme Court recognized 50 years ago that a client has the “right at any time to discharge his attorney with or without cause” and that “[s]uch a discharge does not constitute a breach of contract for the reason that it is a basic term of the contract, implied by law into it by reason of the special relationship between the contracting parties, that the client may terminate that contract at will.” (Fracasse v. Brent (1972) 6 Cal.3d 784, 790-791 (Fracasse).) The court emphasized the anomaly and 5 injustice that would result “to hold the client liable in damages for exercising that basic implied right.” (Id. at p. 791.) The Fracasse court recognized that a discharged attorney, although precluded from suing for breach of contract, is entitled to recover in quantum meruit “ ‘the reasonable value of services rendered to the time of discharge.” (Fracasse, supra, 6 Cal.3d 784, 790.) The court explained that a cause of action for the reasonable value of services to the time of discharge generally arises at that time. (Id. at p. 792.) Addressing the timeliness of an action filed by a discharged attorney who had been retained under a contingent fee contract, the court announced a different rule where it is impossible to determine “ ‘the amount involved and the result obtained’ ” until the matter has been finally resolved and where “it would be improper to burden the client with an absolute obligation to pay his former attorney regardless of the outcome of the litigation.” (Ibid.) In those circumstances, “the attorney’s action for reasonable compensation accrues when the contingency stated in the original agreement has occurred—i.e., the client has had a recovery by settlement or judgment.” (Ibid.) Law Firms would have us apply here the “different rule” announced in Fracasse, such that a quantum meruit cause of action has still not accrued because remuneration was contingent on Padgett actually receiving payment from the liable defendant, which has not yet occurred. But that interpretation is at odds with the plain terms of the parties’ fee agreement, which brings the quantum meruit cause of action within the general rule announced in Fracasse. Paragraph 9 of the fee agreement, which governs the agreement’s termination, states that either party may terminate the agreement by giving written notice to the other party. The provision continues: “Client may discharge Lawyer for any reason and at any time. Lawyer may terminate its representation of Client with Client’s consent or for cause or for ethical considerations. Cause includes, without limitation, Client’s breach of any provision of this Agreement; if terminated, Lawyers shall have a lien as set forth in 6 this paragraph on, but limited to, any recovery in the Litigation for the reasonable hourly value of their services. . . . If Client[s] dismiss this action against the advice of the Attorney or fires the Law Firm of Kallis & Associates p.c. or Bustamante, O’Hara and Gagliasso, client[s] agree in a contingency case, to pay attorney the hourly fee set forth in Paragraph 5A above for the time spent on the representation. Payment to be made within 10 business days of dismissal or termination. In all cases Client agrees that the lawyer(s) will have a contractual lien for either the contractual fees and costs due, or in a contingency fees case[] the reasonable value of the services and cost[s] provided.” Paragraph 5[A] sets forth the hourly rate for Law Firms’ attorneys, paralegals, and clerical staff. Paragraph 5[B] states that “the case will be handled as a modified [c]ontingency fee case,” whereby Padgett “agrees to pay [Law Firms] as follows: [¶] Should the case go to trial, [Law Firms] get their respective attorneys fees, and any load star [sic] and multiplier []. Attorneys also get 20% of the award as a contingency.” Under the terms of the fee agreement, if Padgett were to fire Law Firms, the parties agreed that Padgett would pay Law Firms, within 10 days of discharge, the hourly fee for services rendered. On the other hand, if Law Firms were to terminate the representation, they would not be immediately entitled under the contract to collect for their services but would have a lien for the reasonable value of their services against any judgment or settlement. The arrangement prevents Law Firms from demanding immediate payment after withdrawing from a contingency case. The arrangement also protects Law Firms from having to wait for a recovery in the event they are terminated from a contingency case. Significantly, Law Firms’ quantum meruit cause of action does not seek the district court’s attorney fees award or 20 percent of Padgett’s damages, but rather $1,682,345 in hourly compensation for work performed from the time Law Firms were retained in 2008 through October 2013, when the district court relieved Law Firms from representing Padgett in the litigation. By the terms of paragraph 9, the cause of action 7 accrued 10 days after Law Firms were discharged, when payment for their services was due. (Fracasse, supra, 6 Cal.3d 784, 792.) Whether that occurred in July 2013 when Padgett informed Law Firms of his decision, or in October 2013 when the district court relieved Law Firms from their representation, Law Firms’ 2016 complaint is untimely. We note, however, that the district court in 2019 ordered the fee award payable to Law Firms, and the circuit court affirmed the order, notwithstanding Padgett’s 2017 voiding of the fee agreement. Our decision does not disturb Law Firms’ entitlement to that award under the plain terms of the federal judgment. Law Firms’ appeal focuses on the voiding of a fee agreement under Business and Professions Code section 6147, but that statute is not implicated here. In light of Law Firms’ discharge in 2013—which under Fracasse cannot trigger a breach of contract cause of action—Padgett’s conduct in 2017 had no bearing on the accrual of Law Firms’ quantum meruit cause of action. Ultimately, the rule in Leighton v. Forster, supra, 8 Cal.App.5th 467 was properly applied here: The client in Leighton voided an unsigned fee agreement under Business and Professions Code section 6148 (governing non-contingency fee agreements between attorneys and clients) by refusing to pay an invoice allegedly authorized by the agreement. (Leighton, at p. 487.) The quantum meruit cause of action accrued the following month when the court granted the attorney’s request to be relieved as counsel. (Id. at p. 480.) Restitution Cause of Action The cause of action for restitution advanced by Bustamante & Gagliasso relates solely to the district court’s fee award. Bustamante & Gagliasso alleged in the operative complaint that Padgett agreed to pay to Law Firms the fees and costs awarded by the district court, but Padgett “has refused to do so and has taken steps contrary to the award of fees.” The Kallis Law Firm dismissed its restitution cause of action; Bustamante & Gagliasso (whether purposefully or inadvertently) did not oppose summary adjudication as to its restitution claim, apparently taking the position that its claim had also been 8 dismissed. Bustamante & Gagliasso now takes the position that the restitution cause of action, which is subject to the two-year statute of limitations for “[a]n action upon a contract, obligation or liability not founded upon an instrument of writing” (Code Civ. Proc., § 339, subd. 1), accrued either in April 2015 “when Padgett manifested his intent to keep the attorneys’ fees and costs for his own” by appealing the district court’s March 2015 fee order, or in 2017 when Padgett voided the fee agreement. Bustamante & Gagliasso forfeited the argument it now makes by abandoning its restitution claim in the trial court. (Johanson Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588.) Even considering the merits, we see no error in the trial court summarily rejecting the claim. We note the absence of evidence that the costs and fees awarded by the district court were actually received or retained by Padgett. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [“The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’ ”].) Law Firms neither alleged nor put forth evidence that the award—which the district court confirmed was an “award of fees to counsel rather than to the plaintiff” and was required to be paid to counsel—was disbursed to Padgett. Bustamante & Gagliasso argues its professional and competent legal representation in the federal case has value, and that Padgett was unjustly enriched by those services which were reasonably valued by the district court at $1,682,345.14. But the gravamen of the restitution cause of action was the district court’s attorney fees judgment, not the reasonable value of services rendered.2 The restitution claim therefore fails as a matter of law. (David v. Hermann (2005) 129 Cal.App.4th 672, 685 [“ ‘If the 2 Padgett is incorrect that the restitution cause of action is “identical in factual substance” to the quantum meruit cause of action. The quantum meruit claim seeks over $1.6 million for “[t]he reasonable value of the legal services provided,” whereas the restitution claim specifically relates to Padgett being unjustly enriched by the district court’s lesser award of attorney fees and costs. 9 decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.’ ”].) III. DISPOSITION The judgment is affirmed. Padgett is awarded costs on appeal by operation of California Rules of Court, rule 8.278(a)(1). 10 ____________________________________ Grover, Acting P.J. WE CONCUR: ____________________________ Lie, J. ____________________________ Wilson, J. H046063 – Law Firm of Kallis & Associates P.C. et al. v. Padgett	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488342/	Filed 11/21/22 P. v. Bates CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A163788 v. FRED ANDRE BATES, (Alameda County Super. Ct. No. 19CR016277) Defendant and Appellant. A jury convicted defendant and appellant Fred Andre Bates (Appellant) of attempted murder, assault with a firearm, and other charges. The trial court sentenced Appellant to seven years plus 25 years to life in state prison. On appeal, Appellant contends he received ineffective assistance of counsel (IAC), but the record is inadequate for this court to resolve his claims,1 with the exception of his claim based on trial counsel’s failure to request that the trial court exercise its discretion to strike or reduce the 25-year Penal Code2 Appellant also asserts his IAC claims in a separate petition for writ of 1 habeas corpus, case No. A165506. We have denied that petition by separate order filed this date. 2 All undesignated statutory references are to the Penal Code. 1 section 12022.53, subdivision (d) firearm enhancement. On that claim, we remand for resentencing. PROCEDURAL BACKGROUND In April 2021, the Alameda County District Attorney filed an information charging Appellant with attempted murder (§§ 187, subd. (a), 664; count one); assault with a firearm (§ 245, subd. (a)(2); count two); aggravated mayhem (§ 205; count three); shooting at an occupied motor vehicle (§ 246; count four); possession of a firearm by a person with a prior conviction (§ 29900; count five); possession of ammunition by a person prohibited from doing so (§ 30305, subd. (a)(1); count six); and carrying a loaded firearm on one’s person in a city (§ 25850, subd. (a); count seven). The information also included firearm and great bodily injury enhancement allegations, and alleged prior strike and serious felony convictions. In July 2021, a jury found Appellant guilty on all counts and found true several of the firearm allegations. The prior conviction allegations were dismissed on the People’s motion. In September 2021, Appellant moved for a new trial, and the motion was denied. In October, the trial court sentenced Appellant to seven years in state prison plus an indeterminate term of 25 years to life. The sentence was based on the count one attempted murder charge and a section 12022.53, subdivision (d) firearm enhancement on that charge. The sentences on the remaining counts and enhancements were imposed and stayed. The present appeal followed. FACTUAL BACKGROUND Prosecution Case Oakland Police Officer Christopher Buckhout was at Oakland’s Eastmont Substation at 3:29 a.m. on October 13, 2019, when a person 2 suffering from gunshot wounds appeared at the front door. The victim, Kimberly S., was leaning against a car with wounds to her right eye and left arm. Emergency personnel took Kimberly S. to a hospital. In video footage from Officer Buckhout’s body camera, Kimberly S. said she was shot in the area of the homeless encampment on International Blvd. near the Smart and Final store. She said she was shot before getting into her car, “[a]nd the person followed me . . . and shot me again.” When asked if she knew who shot her, she asked for help and for the police to call her husband, and then subsequently said “I can tell you everything,” she was “pretty sure” she knew who shot her, “I can get all the information,” and “I just can’t explain it right now . . . I just need help.” Later she added, “It’s a drug thing.” In a second video from Officer Buckhout’s body camera, Kimberly S. said she was shot on a one-way portion of a street near the Smart and Final. In a third video, Kimberly S. said the shooter was driving a tan and brown Ford F-150. In a fourth video, Kimberly S. said the owner of the truck was named “Dre,” but she did not know his last name. She also said he was the only one in the truck. In a fifth video she said Dre lived on the naval base in Alameda in an apartment that she helped him get. All the videos were filmed at the hospital. Kimberly S. testified she was homeless in 2016 and 2017 and knew many homeless people who lived in the area of International Blvd. and 42nd Avenue. In 2018 she obtained housing through the Bay Area Community Services (BACS) program. Afterwards, she returned to the homeless encampment to bring food to people, to help people find housing, and to purchase crack cocaine. Previously, in 2002 or 2003, she was arrested for shoplifting to support her drug habit. 3 Kimberly S. knows Appellant as “Dre.” In 2018 and 2019 she regularly purchased drugs from him. During that period of time, Appellant was living in a tent or in motels with his girlfriend and his two-year-old daughter. Kimberly S. wanted to help him, so she set up an appointment for him at BACS. Appellant got housing in Alameda and also got a Ford F-150 truck from the program. Kimberly S. acknowledged having periodic confrontations with Appellant. She wanted Appellant to refer people who needed housing to her for a business she was developing. She believed Appellant had not lived up to his agreement to promote her. She also believed Appellant was “ruining [her] reputation” because he was not using the truck to do landscaping, as he said he was going to do. She threatened to report Appellant to BACS, which could have resulted in him losing his housing. Kimberly S. said it is not normal for someone in the homeless community to disrespect their drug dealer the way she disrespected Appellant. At around 3:15 a.m. on October 13, 2019, Kimberly S. was at the homeless encampment near the corner of 42nd Avenue and International Blvd. She had purchased drugs and was looking for a man named “Doc” to give him some food. Earlier in the evening she had consumed vodka. Appellant pulled up in his truck; Doc was with him. She approached the truck; Doc got out and walked away. Kimberly S. was in a hurry because she needed to get home, but she asked Appellant to meet her in the evening to talk through their issues. Appellant agreed and she walked to her car, which was about 16 feet away. Kimberly S. heard a sound like a firecracker and got into her car. As she drove away, she felt a burning sensation and realized she was bleeding and had been shot. At the intersection of 42nd Avenue and International 4 Blvd. she looked in her rearview mirror and saw Appellant pulling up behind her. She turned right onto International Blvd. Appellant followed and pulled up on the left side of her car. Kimberly S. turned her head to the left, heard a loud noise, and was shot in the right eye. She did not see anyone else in Appellant’s car, and she did not see other traffic or pedestrians. Kimberly S. drove to a police station and was taken to a hospital, where she remained for ten days. She described the injuries caused by the two bullets, as did the doctor who treated her. The doctor also testified Kimberly S.’s blood-alcohol level at the hospital was 0.139 percent. The prosecution called an expert to testify regarding Oakland’s “ShotSpotter” system. ShotSpotter is “an acoustic gunshot detection and location system” that uses microphones to detect the sound of gunfire and determine its location. The locations given by the system are accurate to within 25 meters (82 feet). The system recorded a shot at 4201 International Blvd. at 3:17 a.m. on October 13, 2019. A second shot was recorded four minutes later at 5625 International Blvd.3 From noon on October 12 to noon on October 13, the system captured 28 gunshots in Oakland. Defense Case Appellant’s caseworker at BACS testified that Kimberly S. referred Appellant to BACS but did not play any other role in Appellant receiving benefits. An Oakland police officer testified he did not find a shell casing or any blood in the area of 42nd Avenue and International Blvd. on the morning of the shooting. 3 On its own motion, this court takes judicial notice of the facts that 4201 International Blvd. is near the corner of 42nd Avenue, and 5625 International Blvd. is between 56th and 57th Avenues. (Evid. Code, § 452, subd. (h).) 5 Defense witness Rachel B. testified she saw Appellant on the morning of the shooting at about 3:00 a.m. He was in his parked truck about three blocks away from 42nd Avenue and International Blvd. There was a male passenger in the truck. Rachel B. spoke to Appellant for five to ten minutes and then went to her tent in a homeless encampment. She returned about five minutes later and saw Kimberly S. talking to Appellant. The conversation was not friendly, and Kimberly S. appeared to be drunk. Rachel B. interrupted Kimberly S.’s conversation with Appellant and the two women argued. After less than five minutes, Kimberly S. left and walked in the direction of her car. Rachel B. spoke with Appellant for ten more minutes and then Appellant drove away. Rachel B. said that Kimberly S. is often drunk and that Kimberly S. is abrasive and starts arguments with people. Rachel B. has been friends with Appellant for several years; Appellant grew up with Rachel B.’s boyfriend. Eddie C., also known as “Doc,” knows both Appellant and Kimberly S. Between 2:00 to 3:00 a.m. on October 13, 2019, he arrived at the area of 42nd Avenue and International Blvd. in Appellant’s truck. Kimberly S. approached the truck; she was “hooping and hollering,” which was typical because she is very aggressive. She had a bottle in her hands and appeared to be intoxicated. Kimberly S. has a “history of harassing” Appellant. Appellant appeared to be insulted by the things she said, and Eddie C. suggested that Appellant go home. Eddie C. got out of the truck and Appellant drove off, turning right onto International Blvd. Sometime later, Eddie C. heard a gunshot near the Smart and Final store, but he did not focus on it because gunfire is common in the area. He testified he has known Appellant for over ten years and was “close” to Appellant’s wife. 6 DISCUSSION Appellant presents several IAC claims. We conclude the record is inadequate to permit consideration of two of his claims. The third claim has merit, and we remand for resentencing. “ ‘ “[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because [counsel’s] ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, [the defendant] must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.) First, Appellant contends trial counsel was ineffective because he failed to present body camera footage from an Officer Iniguez.4 In arguing the motion for a new trial below, trial counsel told the court that he had reviewed his file following trial and located a video of the officer speaking to Kimberly S. that he had previously overlooked. Counsel stated, “I felt that I needed to at least state for the record that had I been aware of that, I would have wanted to include that in the trial. I think that the statements are significant. ‘Who shot you?’ ‘I do not know the name,’ I think is pretty significant. So I’ll just submit to the Court and trust that the Court will know what to do with that.” The prosecutor said he was “familiar with the 4 The officer’s first name is not in the record. Appellant spells the officer’s last name “Iniquez,” but we use the spelling in the reporter’s transcript and video transcripts. 7 portion of [video] that [counsel] referenced.” The prosecutor continued, “I would just note that throughout the investigation [Kimberly S.] made it clear that she did not know the defendant as Fred Bates. She knew him by the nickname ‘Dre.’ I don’t think her statement there is inconsistent.” The trial court denied the motion for a new trial. On appeal, Appellant contends trial counsel was ineffective in failing to present the video from Officer Iniguez’s body camera to the jury. However, neither the video nor a transcript of the video are part of the appellate record. “The scope of an appeal is, of course, limited to the record of the proceedings below. [Citations.] An appellant who claims to have been denied constitutionally adequate assistance of counsel and relies on evidence outside the record may seek relief on this basis through a collateral attack on the judgment by petition for writ of habeas corpus.” (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12; see also People v. Kelly (2006) 40 Cal.4th 106, 126.) Appellant argues, “[t]he fact that the prosecutor agreed with defense counsel about the contents of the video . . . is sufficient to establish the record.”5 We disagree. The circumstance that the prosecutor said he was familiar with the portion of the video in question does not mean we may resolve Appellant’s IAC claim on direct appeal without viewing the video. Among other things, it is not possible for this court to conclude Appellant was prejudiced without 5 The two cases cited by Appellant to support this assertion do not support the point. In People v. McWhorter (2009) 47 Cal.4th 318, at page 370, the court merely recited that the prosecutor below accepted the defense counsel’s factual representations for the purpose of arguing a motion to exclude evidence. In In re S.C. (2006) 138 Cal.App.4th 396, at page 426, the issue was whether, in a dependency proceeding, representations of the minor’s counsel, to which there was no objection, were sufficient to support the juvenile court’s decision to allow the minor to testify outside of her stepfather’s immediate presence. Neither decision suggests a defendant may assert an IAC claim on appeal based on the type of record in the present case. 8 reviewing the video and whatever information it provides about Kimberly S.’s demeanor at the time the statement was made. Next, Appellant contends he received ineffective assistance because trial counsel failed to request a continuance after defense witness Kimberly L. had to be taken to the hospital before she was able to testify. In support of Appellant’s motion for a new trial, trial counsel filed a declaration stating, “I spoke with [Kimberly L.] two or three times about what her testimony would be. I have been unable to speak with her in the last month, so I cannot offer her declaration. But while it is my representations, I can offer what she said she would testify to.” Counsel averred she would have testified that on the morning of the shooting her truck was parked near where Kimberly S. said she parked, and that Kimberly L. did not see Kimberly S.’s car there that morning. Counsel further averred that Kimberly L. said she did not see Kimberly S. that morning and that Kimberly L. said there was no shooting at the homeless encampment that morning. The record contains no declaration from Kimberly L., and Appellant presents no authority a trial counsel’s declaration about what a witness would have testified to is sufficient to support an IAC claim on direct appeal. Although the prosecutor accepted defense counsel’s offer of proof for the purposes of arguing the motion for new trial, that does not mean we are required to accept that offer of proof for purposes of Appellant’s IAC claim on direct appeal. In particular, without a sworn declaration stating precisely what Kimberly L. would have testified, this court is unable to conclude Appellant was prejudiced by defense counsel’s failure to seek a continuance. As with Appellant’s first IAC claim, the record is inadequate for this court to review the IAC claim. 9 Finally, the parties agree trial counsel was ineffective because he failed to request that the trial court exercise its discretion to strike the 25-year section 12022.53, subdivision (d) enhancement, or replace it with a 10-year enhancement under subdivision (b) or a 20-year enhancement under subdivision (c). The relevant history is that, in 2017, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.), amending section 12022.53, subdivision (h) to allow a court to exercise its discretion to strike a 12022.53 enhancement. (Stats. 2017, ch. 682, § 2.) In 2019, this court held in People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), that a trial court may strike a section 12022.53, subdivision (d) enhancement and replace it with a lesser enhancement under subdivision (b) or (c). In People v. Tirado (2022) 12 Cal.5th 688, the California Supreme Court resolved a split of authority and held that Morrison “correctly described the scope of a trial court’s sentencing discretion under section 12022.53.” (Tirado, at p. 697.) Appellant was sentenced on October 4, 2021. The parties agree trial counsel provided deficient representation in failing to request that the trial court exercise its discretion under section 12022.53, subdivision (h), as interpreted in Morrison, supra, 34 Cal.App.5th 217. The parties also agree Appellant was prejudiced because it is reasonably probable the trial court would have elected to impose one of the lesser enhancements. Notably, the trial court expressed discomfort at the length of the sentence and commented “[m]y hands are pretty much tied.” We agree trial counsel provided ineffective assistance and we remand for resentencing. The parties agree that, at the time of resentencing, Senate Bill No. 81 (2021-2022 Reg. Sess.) will apply; that enactment amended section 1385 to include specific factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence 10 in the furtherance of justice. (Stats. 2021, ch. 721, § 1.) We agree that Senate Bill No. 81 (2021-2022 Reg. Sess.) will apply at resentencing. (People v. Sek (2022) 74 Cal.App.5th 657, 674.)6 DISPOSITION The judgment is reversed and the matter is remanded for resentencing. 6 Appellant also asserts the trial court erroneously imposed great bodily injury (§ 12022.7, subd. (a)) enhancements on counts one through three in its oral pronouncement of the sentence. Respondent points out that the minute order and abstract of judgment properly reflect no imposition of those enhancements. As the parties are in agreement regarding the lack of jury findings regarding those enhancements, there is no reason to think any section 12022.7, subdivision (a) enhancements will be imposed at the time of resentencing. 11 SIMONS, J. We concur. JACKSON, P. J. WISEMAN, J.* (A163788) * Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 12	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488341/	Filed 11/21/22 P. v. Burnette CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Trinity) ---- THE PEOPLE, C095741 Plaintiff and Respondent, (Super. Ct. No. 21F164) v. DEREK CHRISTOPHER BURNETTE, Defendant and Appellant. After defendant Derek Christopher Burnette pled no contest to inflicting corporal injury on a cohabitant (his girlfriend), the trial court denied probation and imposed a sentence of three years of imprisonment. On appeal, defendant contends the trial court violated his due process rights at sentencing by considering “facts that were excluded under the plea agreement,” denying probation based on improper aggravating factors, and failing to consider material facts supporting a grant of probation. We conclude these contentions are forfeited for failure to object in the trial court, and defendant has not 1 established ineffective assistance. Defendant also contends we should strike a $500 fee the trial court ordered defendant to pay, as that fee is applicable only when a trial court grants probation to a defendant. The People agree, and so do we. Accordingly, we will strike the $500 fee and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In November 2021, a complaint was filed accusing defendant of four offenses against his girlfriend: count one—making a criminal threat (Pen. Code, § 422, subd. (a)),1 count two—assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)), count three—battery of a cohabitant (§ 243, subd. (e)(1)), and count four—corporal injury to a cohabitant (§ 273.5, subd. (a)). Defendant pled no contest to count four in exchange for dismissal of the other counts. The parties stipulated to a report by the county sheriff’s office as providing the factual basis for the plea. The sheriff’s report detailed events on the evening of November 2, 2021, when sheriff deputies responded to defendant’s residence because of a report defendant was breaking things and making death threats against his girlfriend. Defendant told the deputies: “ ‘You guys can leave. I don’t even know why you’re here.’ ” Another man present replied to defendant: “ ‘Yes they should be here. You . . . hit her . . . . And you tried to burn the house down.’ ” Defendant’s visibly distressed girlfriend had apparent cuts on her face, which were bleeding. She said defendant “struck her in the face,” and “held a knife to her stomach and said that he was going to stab her.” The report explained how defendant’s girlfriend “lifted her shirt and said, ‘Well he said that he was going to stab me. And he held [the knife] like this, well there isn’t any marks or anything. Well that. But he didn’t really push anything in.’ [The girlfriend] pointed to a red mark on the center of her 1 Undesignated statutory references are to the Penal Code. 2 stomach. . . . [A deputy] observed the red mark. It did appear to be a fresh wound. [The girlfriend] said that [defendant] was holding the point of the knife to her stomach as if he was going to stab her.” At the plea hearing, after the trial court accepted the sheriff’s report as the factual basis for defendant’s plea and dismissed the other counts, defense counsel asked for an own recognizance (OR) release of defendant. The prosecutor objected and the trial court denied the defense request. Plea Form Item 2.h of the plea form memorializing defendant’s plea and waiver of rights, which was signed by defendant, defense counsel, a prosecutor, and the trial court, provides in relevant part: “I understand and agree that the sentencing judge may consider facts underlying dismissed counts . . . to sentence me on the counts to which I am entering a plea.” Defendant’s initials do not appear in the box corresponding to this provision. Rather, the box is crossed out. Psychiatrist’s Report After defendant’s plea and before sentencing, defense counsel expressed doubt regarding defendant’s mental competency. Accordingly, the trial court suspended proceedings and appointed a psychiatrist to examine defendant. In a written report, the psychiatrist opined defendant was competent to stand trial and observed he might “be a good candidate” for probation. Probation Officer’s Report A probation officer recommended formal probation. People’s Sentencing Memorandum In a December 2021 pleading, the People requested a three-year term in state prison, emphasizing defendant “[h]eld a butcher knife to his girlfriend’s stomach,” “[p]unctured [her] abdomen with” it and “threatened to kill her.” 3 Sentencing Hearing In a February 2022 hearing, defense counsel asked the trial court to grant probation in light of the psychiatrist’s report. The trial court disagreed, explaining “probation [was not] appropriate in th[e] matter” in light of, inter alia, defendant’s “being armed, the weapon.” The trial court explained: “[T]he facts of this case are quite serious, in terms of the fact [defendant] held a butcher knife to his girlfriend’s stomach and threatened to kill her; she actually was punctured by this butcher knife; that he grabbed and clawed at her face, causing wounds” The trial court imposed a sentence of three years of imprisonment. The trial court also imposed various costs, including a $500 “domestic violence fee, pursuant to [section] 1203.097.” Defendant timely appealed. DISCUSSION I Defendant argues the trial court violated his due process rights at sentencing by considering excluded facts, e.g., that defendant held a knife to his girlfriend’s stomach and threatened to kill her, in denying probation. Defendant contends the trial court improperly considered facts related to dismissed counts one and two since he did not initial the box on the plea form relating to consideration of dismissed counts as part of the plea agreement. The People argue defendant’s claim is forfeited on appeal because he did not raise it in the trial court and we agree. A. Background Legal Principles 1. Forfeiture “In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits . . . the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).) Accordingly, “all ‘claims involving the trial court’s failure to properly make or articulate 4 its discretionary sentencing choices’ raised for the first time on appeal are not subject to review.” (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Under a narrow exception to this forfeiture rule, an unauthorized sentence or a sentence entered in excess of jurisdiction is reviewable for the first time on appeal, as “these sentences ‘could not lawfully be imposed under any circumstances in the particular case.’ ” (Smith, supra, 24 Cal.4th at p. 852.) Importantly, this narrow exception exists “because [the unlawful sentence] is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Scott, supra, 9 Cal.4th at p. 354, italics added.) 2. Plea Agreements as Contracts “Plea negotiations and agreements are an accepted and ‘integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.’ [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments.” (People v. Segura (2008) 44 Cal.4th 921, 929.) “Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general contract principles,” and “[a]cceptance of the agreement binds the court and the parties to the agreement.” (Id. at p. 930.) “ ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and 5 subject matter of the contract; and the subsequent conduct of the parties. [Citation.]’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767, italics added.) B. Analysis Here, there is no dispute defendant’s trial counsel did not raise the instant claim in the trial court. Defendant contends we can review this claim because his sentence was unlawful. The problem with defendant’s argument is that the asserted unlawfulness of his sentence requires us to examine factual issues presented by the record at sentencing: the plea agreement, the surrounding circumstances, and the intent of the parties when they entered into this agreement. Thus, this is not an error that “is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Scott, supra, 9 Cal.4th at p. 354.) There is at least an arguable factual issue related to the intention of the parties to allow the trial court to consider facts related to the admitted offense. (See Crump v. Appellate Division of Superior Court (2019) 37 Cal.App.5th 222, 246 [In People v. Harvey (1979) 25 Cal.3d 754, 758, “the Supreme Court concluded it would be ‘improper and unfair’ to permit a sentencing court to consider any facts underlying a dismissed count ‘for purposes of aggravating or enhancing defendant’s sentence,’ ” but “d[id] not preclude the sentencing court ‘ “from reviewing all the circumstances relating to [the defendant’s] admitted offenses,” ’ ” “denominat[ing] such facts as ‘transactionally related to the offense to which defendant pleaded guilty’ ”]; People v. Bradford (1995) 38 Cal.App.4th 1733, 1737-1739 [the trial court “properly used defendant’s possession” of two loaded shotguns to impose the upper term, because the record contained substantial evidence showing such possession “was transactionally related to his crime of cultivation of marijuana”].) Beyond the reference and recitation of the facts surrounding the stabbing in the sheriff’s report that defendant stipulated would serve as the factual basis for his plea, that defendant did not initial the box authorizing the trial court to consider the facts 6 surrounding the dismissed counts does not negate case law that permits trial court consideration of facts that are transactionally related to an admitted offense. And the subsequent conduct of the parties suggests the parties agreed on this. Moments after the trial court accepted defendant’s plea, the prosecutor opposed defendant’s request for OR release, arguing defendant “took a kitchen carving knife, held it to his co-habitant’s belly as he broke the skin, and threatened to stab her.” Defense counsel did not object to the prosecutor’s factual recitation. Similarly, the appellate record reveals no objection, orally or in writing, by defense counsel to the prosecutor’s invocation of those facts in the prosecutor’s sentencing memorandum. Thus, it is at least arguable the subsequent conduct of the prosecutor and defense counsel reflected an objective manifestation of their mutual intent the trial court could consider facts transactionally related to defendant’s infliction of corporal injury to his girlfriend. Accordingly, defendant’s appellate argument implicates factual issues presented by the record at sentencing and is not “ ‘clear and correctable’ ” independent of factual issues presented by the record at sentencing. (Scott, supra, 9 Cal.4th at p. 354.) For this reason, the claim is forfeited on appeal.2 II Defendant argues the trial court violated his due process rights by denying probation based on unsupported and improper aggravating factors and by failing to consider facts supporting a grant of probation. Among the facts the trial court was 2 The parties had an opportunity to brief this issue that is fairly included within defendant’s claim of trial court error. (See People v. Alice (2007) 41 Cal.4th 668, 679 [“The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081”].) 7 purportedly “misinformed” about were the stabbing and the death threat, as those facts were “foreclosed by the plea agreement.” The People argue this claim is also forfeited on appeal because defendant did not raise it in the trial court. We agree. The trial court’s decision to deny probation is discretionary. (People v. Shenouda (2015) 240 Cal.App.4th 358, 369.) Accordingly, defendant’s failure to object to the trial court’s alleged errors in making this discretionary sentencing decision forfeits the claim on appeal. (See Smith, supra, 24 Cal.4th at p. 852.) Acknowledging his failure to object below, defendant asserts any failure to object was the result of ineffective assistance of counsel. We are not persuaded, as defendant has failed to demonstrate trial counsel’s omissions were not based upon a rational tactical basis. “To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.] ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (See People v. Samayoa (1997) 15 Cal.4th 795, 845.) Here, the record does not demonstrate affirmatively that counsel’s omissions were not based upon a rational tactical basis, such as the reasonable assumption that objecting to the trial court’s consideration of the facts that defendant stabbed his girlfriend with a knife and made a death threat would be overruled. (People v. Samayoa, supra, 15 Cal.4th at p. 848.) Such an assumption would have been reasonable in light of our discussion of 8 defendant’s first claim, above. Thus, defendant’s assertion of ineffective assistance of counsel fails. III The parties agree we should strike the domestic violence fee the trial court ordered defendant to pay, as that fine is applicable only when a trial court grants probation to a defendant. (See § 1203.97, subd. (a)(5)(A) [a “minimum payment by the defendant of a fee of five hundred dollars ($500)” is applicable “[i]f a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code”].) We agree and will strike this fine. DISPOSITION The $500 domestic violence fee is stricken. As modified, the judgment is affirmed. The trial court shall amend the abstract of judgment accordingly and provide a copy of the amended abstract to the Department of Corrections and Rehabilitation. /s/ BOULWARE EURIE, J. We concur: /s/ HULL, Acting P. J. /s/ MAURO, J. 9	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488340/	Filed 11/21/22 P. v. Carr CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D079869 Plaintiff and Respondent, v. (Super. Ct. No. FVI18002544) CHARLES BRUCE CARR, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Bernardino County, Debra Harris, Judge. Vacated and remanded. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kristen A. Ramirez and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. Charles Bruce Carr appeals the judgment sentencing him to prison for 43 years after a jury found him guilty of several felonies arising out of a shooting incident. Carr contends: (1) the trial court erred by refusing to adequately inquire into his request for appointment of new counsel to prepare and file a motion for a new trial on the ground of ineffective assistance of trial counsel; (2) he is entitled to resentencing because the court imposed upper prison terms on one of the convictions and all of the firearm enhancements without jury findings or admissions of aggravating circumstances supporting imposition of upper terms, as are required by legislation that took effect after sentencing; (3) the court erred by imposing an unstayed prison term on a conviction that was based on the same criminal act or course of conduct as other convictions; and (4) the court erred by imposing certain fines and fees he cannot pay. We vacate the order denying the request for appointment of new counsel and the sentence and remand the matter for further proceedings. I. BACKGROUND A. Shooting Incident Carr and T. have two children, and T. has two other children, Ki. and Ka., from another relationship. Carr, T., and the four children lived with Carr’s mother until July 2018, when T. and the children moved to live with Frank C. Carr began stalking T. and watching Frank’s house. On September 3, 2018, when Carr dropped off his children at Frank’s house, he learned T., Ki., and Ka. were out to dinner with T.’s friend. Carr telephoned T. during the dinner; called her racist slurs and obscene names; and said, “I am ex-ing you off the fking planet. You sorry, fking c**t.” Carr later sent T. a text message that threatened her with a gun. When T.’s friend dropped her and the children off at Frank’s house, Carr drove up, got out of his vehicle, and started yelling. He pulled out a 2 handgun and shot at T.’s friend’s car. Carr then shot at T. and the children as she was ringing the doorbell to get into the house. After Frank let them in, he heard five more gunshots, three of which hit the house. Frank called 911 to report the shooting. Carr fled the scene and was later apprehended. B. Charges, Verdicts, and Findings The People charged Carr with attempted willful, deliberate, and premeditated murder of T. (count 1; Pen. Code, §§ 187, subd. (a), 664, subd. (a); undesignated section references are to this code); two counts of child endangerment (counts 2 & 3; § 273a, subd. (a)); shooting at an inhabited dwelling (count 4; § 246); possession of a firearm by a felon (count 5; § 29800, subd. (a)(1)); and assault with a firearm of T. (count 6; § 245, subd. (a)(2)). The People included firearm enhancement allegations with count 1 (§ 12022.53, subds. (b), (c)) and counts 2, 3, and 6 (§ 12022.5, subd. (a)). They also alleged Carr had a prior conviction that qualified as both a serious felony and a strike under the Three Strikes law (§§ 667, 1170.12). The jury found Carr guilty of attempted voluntary manslaughter as a lesser included offense of count 1 (§§ 192, subd. (a), 664); guilty of grossly negligent discharge of a firearm as a lesser included offense of count 4 (§ 246.3, subd. (a)); and guilty of the offenses charged in counts 2, 3, 5, and 6. The jury found all firearm enhancement allegations true. In a separate bench trial, the trial court found Carr had a prior conviction that qualified as a serious felony and a strike. C. Post-trial Motions After the jury returned its verdicts and the trial court made its findings, Carr asserted his right to represent himself (Faretta v. California (1975) 422 U.S. 806) and the trial court relieved appointed counsel. 3 While he was representing himself, Carr filed a motion for new trial in which he complained, among other things, that all six attorneys who had been appointed to represent him “ha[d] been ineffective and disconcerting at best,” and not one of them “ha[d] shown or even implied one sign or attempt to be a loyal and zealous advocate[ ] for their client.” In written opposition to the motion, the People argued, in part, that Carr had not shown in what manner trial counsel’s performance was deficient. Before his new trial motion was heard, Carr asked the trial court to appoint counsel. The court appointed the public defender’s conflict panel to select an attorney to represent Carr, and set another hearing date for the motion and sentencing. At the next hearing, Stuart O’Melveny, the attorney who had represented Carr during trial, appeared on his behalf. Carr requested new counsel because he did not “feel comfortable” with the reassignment of O’Melveny. The court then held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to inquire into the reasons for Carr’s request. During the Marsden hearing, Carr stated he had motions he wanted to file and wanted help from an attorney to make sure they were in proper order. When the trial court asked Carr to explain why O’Melveny could not represent him, he responded, “Well, your Honor, throughout the trial, he’s provided ineffective assistance of counsel.” The court told Carr that claim would be reviewed on appeal. The court then asked O’Melveny whether Carr wanted to file a motion for new trial based on ineffective assistance of counsel. O’Melveny said he did not know; and Carr said, “That’s what I’m saying, your Honor.” Carr added that he had “fired” O’Melveny because he (Carr) felt O’Melveny conspired with the district attorney “[b]y not calling any of [Carr’s] witnesses.” The trial court told Carr that “unless [he] c[a]me 4 up with something else,” the court could not find ineffective assistance of counsel, and asked Carr to confer with O’Melveny about the motions Carr wanted to file. After Carr and O’Melveny conferred, the trial court stated it was going to continue the matter so that O’Melveny could discuss the motions with Carr, and again told Carr the adequacy of O’Melveny’s representation would be reviewed on appeal. The court then asked Carr whether he had any questions, and he responded, “I just don’t feel comfortable. I don’t feel like my best interest is on his mind.” The court again offered Carr time to talk to O’Melveny about the motions Carr wanted to file, and again told Carr the adequacy of O’Melveny’s representation would be reviewed on appeal. The court asked Carr what he wanted to do, and he answered, “I would think that I need help, your Honor.” The court stated that O’Melveny was there to help Carr with the motions; that if he did not want O’Melveny’s help he could again represent himself; and that no other attorney could effectively help with the motions because that attorney would not know what happened during trial and would have to read the entire trial transcript. After Carr conferred further with O’Melveny and offered no further grounds for substitution of counsel, the trial court denied the Marsden motion. The trial court returned to open session and provided O’Melveny with copies of the new trial and other motions Carr had filed. The court advised Carr it would hear further motions about his relationship with O’Melveny if necessary. The court set a hearing for sentencing. O’Melveny subsequently filed a motion for new trial on grounds of insufficiency of evidence and erroneous admission of evidence, but not ineffective assistance of counsel. At the hearing on the motion, O’Melveny informed the trial court that he had conferred with Carr about the motion 5 and Carr disagreed with the decision not to assert ineffective assistance of counsel as a ground for the motion. The court held a bench conference with O’Melveny and the prosecutor outside Carr’s presence to discuss his disagreement with O’Melveny’s strategy, and during the conference the court stated its willingness to hold another Marsden hearing if Carr felt O’Melveny was not adequately representing him on the new trial motion. After the conference, O’Melveny discussed it with Carr. Carr did not make another Marsden motion. O’Melveny and the prosecutor then argued the new trial motion, which the court denied. D. Sentencing At the sentencing hearing, the trial court considered the probation officer’s report, the parties’ sentencing memoranda, the oral arguments of counsel, a letter from T., and Carr’s statement. Based largely on the probation officer’s report, the court identified several aggravating circumstances to support the imposition of upper prison terms, including: (1) the crimes involved great violence; (2) Carr dissuaded a witness; (3) he engaged in violent conduct indicating a serious danger to society; (4) he had numerous prior convictions; (5) he served numerous prior prison terms; (6) he was on probation when he committed the crimes; and (7) his prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421.) The court found no mitigating circumstances. (Id., rule 4.423.) The trial court selected count 2 (child endangerment) as the principal count and sentenced Carr to the upper term of six years (§ 273a, subd. (a)), doubled to 12 years based on the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive upper term of 10 years for the attached firearm enhancement (§ 12022.5, subd. (a)). On count 1 (attempted voluntary manslaughter), the court imposed a consecutive term of one-third of one-half 6 the middle term of six years (§§ 192, subd. (a), 664, subd. (a), 1170.1, subd. (a)), i.e., one year, doubled to two years based on the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of one-third the upper term of 10 years, i.e., three years four months, for the attached firearm enhancement (§§ 12022.5, subd. (a), 1170.1, subd. (a)).1 On count 3 (child endangerment), the court imposed a consecutive term of one-third the middle term of four years (§§ 273a, subd. (a), 1170.1, subd. (a)), i.e., one year four months, doubled to two years eight months based on the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of one-third the upper term of 10 years, i.e., three years four months, for the attached firearm enhancement (§§ 12022.5, subd. (a), 1170.1, subd. (a)). On count 4 (grossly negligent discharge of a firearm), the court erroneously imposed a consecutive term of one-third the middle term of five years for shooting at an inhabited dwelling (§§ 246, 1170.1, subd. (a)), i.e., one year eight months, doubled to three years four months based on the prior strike (§ 667, subd. (e)(1)).2 On count 5 (possession of a firearm by a felon), the court imposed a consecutive term of one-third the middle term of two years (§§ 18, subd. (a), 29800, subd. (a)(1)), 1 Because attempted voluntary manslaughter is not a felony to which a firearm enhancement under section 12022.53 applies (see § 12022.53, subd. (a) [listing felonies to which section applies]), the trial court substituted an enhancement under section 12022.5, subdivision (a). (See People v. Tirado (2022) 12 Cal.5th 688, 697 [court may impose lesser firearm enhancement necessarily included in one found true by jury]; People v. Fialho (2014) 229 Cal.App.4th 1389, 1398-1399 [court may impose § 12022.5 enhancement when § 12022.53 enhancement found true by jury does not apply to offense of which defendant was convicted].) 2 The proper consecutive prison term is one year four months, which is one-third the middle term of two years for grossly negligent discharge of a firearm (§§ 246.3, subd. (a), 1170, subd. (h)(1), 1170.1, subd. (a)), i.e., eight months, doubled based on the prior strike conviction (§ 667, subd. (e)(1)). 7 i.e., eight months, doubled to one year four months based on the prior strike conviction (§ 667, subd. (e)(1)). On count 6 (assault with a firearm), the court imposed consecutive terms for the conviction and attached enhancement, but stayed their execution under section 654. The court added a consecutive term of five years for the prior serious felony conviction. (§ 667, subd. (a)(1).) Thus, the court sentenced Carr to an aggregate prison term of 43 years. The trial court also ordered Carr to pay fines and assessments. The court found he had no ability to reimburse the fees of appointed counsel or the costs of preparing the probation officer’s report. The court imposed on each conviction a court operations assessment of $40 (§ 1465.8, subd. (a)(1)) and a court facilities assessment of $30 (Gov. Code, § 70373, subd. (a)(1)). O’Melveny objected to imposition of the $10,000 restitution fine recommended by the probation officer, on the ground Carr had no ability to pay it. The court found $3,000 was an “appropriate” amount and imposed a restitution fine and a corresponding parole revocation restitution fine in that amount. (§§ 1202.4, subd. (b), 1202.45, subd. (a).) II. DISCUSSION A. Request for New Counsel to File Motion for New Trial Carr complains the trial court erred in its handling of his request for appointment of new counsel to file a motion for new trial, which was based in part on O’Melveny’s ineffective assistance at trial. Citing statements by the trial court at the Marsden hearing that Carr could raise his ineffective assistance of counsel claim on appeal after he was sentenced, Carr contends the court did not conduct an inquiry adequate to determine whether he had a “colorable claim” of ineffective assistance that he could present by motion for new trial, and the matter should be remanded to allow the court to conduct 8 further inquiry and to make the determination. On the record presented, it does not appear the trial court had the information needed to exercise informed discretion on Carr’s request, and a remand for further proceedings is therefore required. We begin by setting out the governing law as established by our Supreme Court. “When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a ‘colorable claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.” (People v. Diaz (1992) 3 Cal.4th 495, 573-574 (Diaz).) After the required hearing is held, “substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) We review a trial court’s conduct of a hearing on a new counsel request and its decision on the request for abuse 9 of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 488; Marsden, supra, 2 Cal.3d at pp. 123-124; People v. Whitmore (2022) 80 Cal.App.5th 116, 128.)3 We now turn to the record in this case. The court considered Carr’s request at the Marsden hearing it held when Carr objected to reappointment of O’Melveny. When the court asked Carr to state the reasons he thought O’Melveny could not represent him (Smith, supra, 6 Cal.4th at p. 694 [court must allow defendant to state specific complaints about attorney]; Marsden, supra, 2 Cal.3d at p. 123 [same]), Carr asserted O’Melveny “provided ineffective assistance of counsel” because “he didn’t properly go through the file . . . to find evidence in [Carr’s] behalf.” The court responded: “That would be reviewed on appeal Your appellate attorney will look at all that Mr. O’Melveny did or did not do, and an [a]ppellate [c]ourt will decide whether or not there was ineffective assistance of counsel, because we’re done with trial.” When the court asked whether Carr wanted to file a motion for new trial based on ineffective assistance of counsel, he responded affirmatively, and added: “I feel that [O’Melveny was] in conspiracy with the DA’s office . . . [b]y not calling any of my witnesses.” The court responded: “That’s over with. The trial is over with.” The court told Carr he needed to “come up with something else” before it would find ineffective assistance, but all Carr added was that he did not “feel comfortable” or “feel like [his] best interest is on [O’Melveny’s] mind.” The trial court then told Carr that unless he filed a motion for new trial, he was going to be sentenced at the next hearing, and his “other concerns” could not be addressed until after sentencing. The court then allowed Carr to confer with O’Melveny. When neither added anything of substance on Carr’s request for new counsel, the court denied the request. 3 We reject Carr’s assertion that “[t]his is purely a question of law that should be reviewed de novo.” 10 The record was not sufficiently developed for the trial court to exercise informed discretion. Carr’s primary complaint was that O’Melveny provided ineffective assistance by failing to call witnesses at trial. To be entitled to substitute counsel to prepare a motion for new trial on that ground, Carr would have had to describe the nature and relevance of the testimony of the witnesses and explain how it would have exculpated him. (See Diaz, supra, 3 Cal.4th at pp. 574-575 [no abuse of discretion in denial of motion to appoint new counsel to move for new trial or in conduct of hearing on motion when defendant complained counsel failed to call witnesses at trial but defendant failed to explain how testimony would have exonerated him].) Although Carr should have been familiar with his burden based on his prior Marsden motions,4 he neither identified the witnesses he believed O’Melveny should have summoned nor described their anticipated testimony. Carr might have thought it futile to do so, however, based on the trial court’s repeated statements the trial was over and his claim of ineffective assistance of counsel for failure to call witnesses would be reviewed after sentencing by an appellate court. Once Carr complained O’Melveny had not called witnesses, the court should have asked who they were and “endeavor[ed] to learn whether the testimony might have been material or even crucial” by “question[ing] [Carr] as to their expected testimony.” (People v. Stewart (1985) 171 Cal.App.3d 388, 398 (Stewart).) The court then should have allowed O’Melveny to respond by explaining why he did not call the 4 By the time of the hearing on his request for new counsel to prepare the new trial motion, Carr had been through six attorneys, all of whom he complained had provided ineffective assistance. As the trial court later observed: “Even before the pandemic, Mr. Carr would file a Marsden motion, then move to represent himself, then file motions. We’d come back and he would say[,] [‘]I can’t represent myself, and I want counsel back.[’] ” 11 witnesses. (Smith, supra, 6 Cal.4th at p. 694 [court must allow counsel to respond to defendant’s complaints].) O’Melveny, though present at the hearing, was not questioned and made no response on his own. “A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request.” (Marsden, supra, 2 Cal.3d at p. 123; accord, Stewart, at p. 398.) The court’s failure “to make a record that [Carr’s] complaint had been adequately aired and considered” was error. (People v. Eastman (2007) 146 Cal.App.4th 688, 696 (Eastman).) The appropriate remedy for this error is to vacate the order denying Carr’s request for substitution of counsel and to remand the matter for further proceedings on the request. If, after further inquiry, the trial court appoints new counsel to make a motion for new trial based on ineffective assistance of trial counsel and new counsel makes such a motion, the court shall rule on the motion and, if it grants the motion, conduct a new trial. If, after further inquiry, the trial court again denies the request for new counsel, or grants the request and new counsel does not make a motion for new trial or the court denies any such motion, the court shall resentence Carr as discussed below. (Eastman, supra, 146 Cal.App.4th at p. 699; Stewart, supra, 171 Cal.App.3d at p. 398.) We express no opinion on how the trial court should rule on Carr’s request after it conducts adequate further inquiry into the grounds for the request and allows O’Melveny to respond. B. Imposition of Upper Prison Terms Carr next contends post-sentencing legislative changes restricting a court’s discretion to impose upper prison terms to cases in which the trier of fact found or the defendant admitted aggravating circumstances require us to vacate the upper terms the trial court imposed on count 2 (child 12 endangerment) and on all the firearm enhancements and to remand the matter for resentencing. The People agree the legislative changes apply to Carr’s prison sentence, but contend no resentencing is required, because the jury would have found the aggravating circumstances the trial court relied on to be true beyond a reasonable doubt had they been presented to the jury. Carr has the better argument. While Carr’s appeal was pending, statutory amendments took effect that restrict a trial court’s discretion to impose an upper prison term based on aggravating factors identified by the court. As amended, section 1170, subdivision (b)(1) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).” (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.) The amendments allow the court to impose an upper term “only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) Similar amendments restrict the court’s discretion to impose the upper prison term on an enhancement. (§ 1170.1, subd. (d)(1), (2), as amended by Stats. 2021, ch. 731, § 2, eff. Jan. 1, 2022.) Thus, under the current versions of the determinate sentencing statutes, a court may impose an upper term prison sentence on a conviction or an enhancement only if aggravating circumstances have been found true beyond a reasonable doubt by the factfinder or admitted by the defendant. 13 We agree with the parties that these amendments reduce punishment and therefore apply to defendants, including Carr, whose cases were not final when the amendments took effect. (See In re Estrada (1965) 63 Cal.2d 740, 744-745; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109 (Zabelle); People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) As noted, the parties disagree on whether the amendments require us to vacate the sentence and to remand the matter for further proceedings. For reasons discussed below, we conclude they do. Several Courts of Appeal have addressed the effect of the statutory amendments and applied some form of harmless error analysis. (Zabelle, supra, 80 Cal.App.5th at p. 1110; People v. Lopez (2022) 78 Cal.App.5th 459, 465; Flores, supra, 75 Cal.App.5th at p. 500.) Under one form, “ ‘[i]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,’ the error is harmless.” (Flores, at p. 500, italics added, quoting People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval); accord, People v. Salazar (2022) 80 Cal.App.5th 453, 465, review granted Oct. 12, 2022, S275788.) Under another form, which this court adopted, the reviewing court “would have to conclude beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt every factor on which the court relied, because the amended statute requires that every factor on which a court intends to rely in imposing an upper term, with the exception of factors related to a defendant’s prior conviction(s), have been admitted by the defendant or proven to a jury (see § 1170, subd. (b)).” (Lopez, at p. 466; accord, People v. Wandrey (2022) 80 Cal.App.5th 962, 982, review granted Sept. 28, 2022, 14 S275942.)5 Until our Supreme Court resolves the conflict in favor of a different approach, we shall use that taken in Lopez. On the record presented, we cannot conclude beyond a reasonable doubt that a jury presented with evidence of the aggravating factors on which the trial court relied would have found each one true beyond a reasonable doubt. Carr’s prior convictions, prior prison terms, probation status, and poor performance on probation were documented in the probation officer’s report and could easily be proven by certified records. We are thus satisfied a jury presented with such records would have found those aggravating circumstances true beyond a reasonable doubt. (See Flores, supra, 75 Cal.App.5th at p. 501 [concluding beyond reasonable doubt that jury would have found similar aggravating factors true].) We do not reach the same conclusion about the other aggravating factors the trial court identified, namely, that the crimes “involved great violence,” that Carr “engaged in violent conduct[ ] that indicate[d] a serious danger to society,” and that he dissuaded T. from testifying. (Cal. Rules of 5 Other Courts of Appeal have used a third form of analysis: “The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court moves to the second step of Lopez, (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing consistent with section 1170, subdivision (b).” (People v. Dunn (2022) 81 Cal.App.5th 394, 409-410, fn. omitted, review granted Oct. 12, 2022, S275655; accord, Zabelle, supra, 80 Cal.App.5th at p. 1112.) 15 Court, rule 4.421(a)(1), (a)(6), (b)(1).) “[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) We cannot be confident the jury would have found, as the trial court did, that Carr’s crimes involve great violence and a serious danger to society had the jury been asked to make such subjective and imprecise assessments. A reviewing court also may not “assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Id. at p. 839.) Although the telephone call between Carr and T. was recorded and played for the jury, Carr was not charged with dissuading a witness. He “thus did not necessarily have reason—or the opportunity—during trial to challenge the evidence supporting [this] aggravating circumstance[ ] unless such a challenge also would have tended to undermine proof of an element of an alleged offense.” (Ibid.) In sum, “we cannot say that as to every [aggravating] factor ‘the evidence supporting that factor is overwhelming and uncontested, and there is no “evidence that could rationally lead to a contrary finding.” [Citation.]’ [Citation.] It would be entirely speculative for us to presume, based on a record that does not directly address the aggravating factors, what a jury would have found true in connection with these factors. We therefore cannot affirm [Carr’s] sentence on this basis.” (Lopez, supra, 78 Cal.App.5th at p. 466.) Instead, we must vacate the sentence and remand the matter for further proceedings. If the trial court does not grant a new trial as discussed above (see p. 12, ante), on remand “the People may elect to proceed under the 16 requirements of the newly-amended version[s] of section[s] 1170, subdivision (b) [and 1170.1, subdivision (d)], which would permit the People to prove the existence of aggravating factors beyond a reasonable doubt to a jury, unless the defendant waives the right to a jury and agrees to have the factors decided by the court beyond a reasonable doubt; alternatively, the People may accept resentencing on the record as it stands.” (Lopez, at p. 468.) C. Imposition of Separate Punishment on Count 4 As a third claim of error, Carr complains the trial court erred by imposing but not staying execution of a consecutive prison term on count 4 (grossly negligent discharge of a firearm). He argues a stay was required because the conviction was based on the same act or course of conduct (shooting at T. and the children) that underlay other convictions for which he had been sentenced to prison. We reject this complaint. Generally a defendant may not be punished for more than one crime arising out of the same act, omission, or course of conduct even though it violates more than one criminal statute. (§ 654, subd. (a); People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Fuentes (2022) 78 Cal.App.5th 670, 680.) Here, although the crimes of which the jury found Carr guilty occurred as part of one shooting incident, the evidence showed he fired multiple shots at multiple targets, including T.’s friend’s car, T. and two of her children, and Frank’s house. Each shot required a separate pull of the trigger, had a separate intent and objective, and posed a separate risk to the victims or their property. (People v. Phung (2018) 25 Cal.App.5th 741, 761; People v. Trotter (1992) 7 Cal.App.4th 363, 368.) Carr “ ‘should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim[s], he voluntarily resumed his . . . assaultive behavior.’ ” (Trotter, at p. 368.) Moreover, separate punishment is permitted when the 17 same violent act or course of conduct affects more than one victim. (People v. Oates (2004) 32 Cal.4th 1048, 1063; In re Ford (1967) 66 Cal.2d 183, 184; People v. Reyes-Tornero (2016) 4 Cal.App.5th 368, 377.) “The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) T.’s friend, at whose vehicle Carr shot, and Frank, at whose house Carr shot, were not victims of any of the other crimes for which the court sentenced him to prison. Hence, for firing multiple gunshots at multiple victims, Carr was subject to separate punishment on count 4 for discharging a firearm in a grossly negligent manner. (Phung, at p. 761; Garcia, at p. 1785.) The trial court, however, imposed punishment for the wrong crime on count 4. The court sentenced Carr for shooting at an inhabited dwelling, even though the jury found him guilty of the lesser included offense of negligently discharging a firearm. (See pp. 3, 7, ante.) We have already found it necessary to vacate the entire prison sentence. On remand, if the trial court does not grant a new trial as discussed above (see p. 12, ante), it must sentence Carr for the lesser included offense of which he was found guilty on count 4. D. Inability to Pay Fines and Assessments Carr’s final challenge is to the trial court’s imposition of a $3,000 restitution fine, a corresponding parole revocation restitution fine, and court operations and court facilities assessments totaling $70 per conviction. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Carr contends imposition of the fines and assessments deprived him of property without due process of law because the People did not prove he had the ability to pay them. He asks this court to vacate the fines and fees. The People argue Carr 18 forfeited his due process challenge to the fines and his inability-to-pay challenge to the assessments by failing to assert them in the trial court. They also argue imposition of the fines and assessments did not violate Carr’s constitutional rights, and any error in the trial court’s failure to consider his inability to pay was harmless because Carr can pay the fines and assessments from the wages he will earn during service of his lengthy prison term. As we shall explain, we find it appropriate to vacate the challenged fines and fees and to remand for reconsideration by the trial court. As a threshold matter, we conclude Carr did not forfeit his challenges. At the sentencing hearing, counsel objected Carr could not pay the $10,000 restitution fine recommended by the probation officer. In response, the court set the fine at $3,000. The court also found Carr had no ability to pay the fees of appointed counsel or the costs of preparation of the probation officer’s report. The court was thus well aware of Carr’s inability to pay, even though he did not specifically assert that inability with respect to the court operations and court facilities assessments. The issue was adequately preserved for appeal. (Cf. People v. Kopp (2019) 38 Cal.App.5th 47, 94, fn. 23 [issue of inability to pay fines and assessments was preserved when raised by codefendant and addressed by trial court], review granted Nov. 13, 2019, S257844 (Kopp).) The record, however, is not well developed on the issue. In such situations, appellate courts have remanded for the trial court to reconsider the amounts of fines and fees in light of the defendant’s ability to pay them. (See, e.g., People v. Montes (2021) 59 Cal.App.5th 1107, 1121-1122; People v. Son (2020) 49 Cal.App.5th 565, 591-592; Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) Reconsideration of the fines and assessments imposed on Carr is appropriate as part of the remand we have already found 19 necessary for the trial court to reconsider his prison sentence. In setting the amount of the restitution fine and the parole revocation restitution fine, one factor the court may consider is “the number of years of imprisonment the defendant is ordered to serve.” (§ 1202.4, subd. (b)(2); see § 1202.45, subd. (a) [court must set parole revocation restitution fine in same amount as restitution fine].) That number may change when the trial court reconsiders Carr’s prison term on remand. And if the court adjusts the amount of the restitution fine based on any change in Carr’s prison term, that adjustment may in turn affect Carr’s ability to pay the court operations and court facilities assessments. We therefore vacate the fines and assessments and remand for the trial court to reconsider them in the event it does not grant a new trial as discussed above (see p. 12, ante). In doing so, the court shall consider whatever additional evidence and argument on Carr’s ability to pay the parties may present. 20 III. DISPOSITION The order denying the request for appointment of new counsel to make a motion for new trial based on ineffective assistance of trial counsel and the sentence are vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion. IRION, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J. 21	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488345/	Filed 11/21/22 In re Hector R. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE In re HECTOR R. et al., B314373 Persons Coming Under the (Los Angeles County Juvenile Court Law. Super. Ct. No. 21CCJP00669) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JAMES R., Defendant and Appellant. APPEAL from orders of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent. _____________________ Father James R. (Father) appeals from the juvenile court’s dispositional orders removing his young two sons, Hector R. and Jaden R.,1 from his custody due to domestic violence between Father and mother, T.H. (Mother), and Father’s sexual abuse of his five-year-old stepdaughter, L.H. We conclude substantial evidence supports the juvenile court’s orders removing Father’s sons from his custody and that no reasonable means existed to protect the children absent removal. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND A. The Family Father and Mother began dating in 2017 or 2018. They have two children together, Hector and Jaden, who, at the time of the Welfare and Institutions Code2 section 300 petition in February 2021, were 22 months old and six months old, respectively. Mother also has two daughters from a relationship 1 The section 300 petitions refer to Jaden, but his name is spelled Jayden on the hospital’s birth certificate. 2Subsequent unspecified statutory references are to the Welfare and Institutions Code. 2 with Jorge V.,3 11-year-old P.H. and five-year-old L.H. Mother, Father, and the children lived together in Laughlin, Nevada, then in a shelter, and then in an apartment in Los Angeles County for which both Mother and Father were listed on the lease as tenants. Only Hector and Jaden are subjects of this appeal. Neither Mother nor Jorge is a party to this appeal. B. Child Welfare History In 2020, the Los Angeles County Department of Children and Family Services (DCFS) received three referrals involving Father. In January 2020, a caller reported sexual abuse by Father. The referral was evaluated out for investigation. In July 2020, a caller reported Father allegedly sexually abused P.H.4 That referral was closed as unfounded. In September 2020, DCFS received a referral that P.H. intervened during an episode of domestic violence between Mother and Father. The referral was closed as inconclusive. C. Events Giving Rise to DCFS’s Involvement On February 3, 2021, DCFS received a referral that Father sexually abused L.H. “about two weeks ago and also in June or July of 2020 and August 2020.” Law enforcement brought L.H. to a clinic for forensic examination, during which L.H. was observed 3 Jorge is a non-offending parent in these dependency proceedings. 4 Based on DCFS’s interviews during these proceedings, the July 2020 referral likely concerned L.H. and not P.H. 3 to have several bruises, including on her left hip and left mid- thigh, and brown spots indicating prior bruising.5 On February 4, 2021, Mother told a DCFS social worker that she and Father argued on February 3, 2021, regarding rent and disciplining the children. Father urged Mother to spank them; Mother told Father to leave. After he did so, Mother remembered her wallet was in his car. She claimed that Father refused to return it. Mother called the police and informed them of domestic violence between her and Father and that L.H. had told her that Father had touched her vagina. 1. Investigation of Domestic Violence During the social worker’s February 4, 2021 interview of Mother, Mother confirmed that she and Father have a history of domestic violence and that since December 2020, they have had three physical altercations. During one altercation at the end of last year, P.H. intervened. She was not physically injured. P.H. and the maternal grandmother also reported that five months before, when the family lived in a shelter, Mother and Father fought. The maternal grandmother reported that Father choked Mother and that P.H. had witnessed the incident. Father stated that Mother hit him when they lived in the shelter. He claimed that when he stood up after Mother hit him, P.H. thought he was going to hit Mother, so P.H. grabbed a stick 5 A DCFS social worker also observed brown marks on L.H.’s right knee, left outer thigh, and lower left side of the stomach. L.H. also had a greenish mark just below her hairline. L.H. denied being hit by anyone. Mother does not know the cause of L.H.’s bruises. She denied that any of the children were hit. 4 and came towards him. He took the stick from P.H. and left the shelter. He claimed that he never hit Mother and that Mother was always the aggressor.6 2. Investigation of Sexual Abuse Mother, a victim of childhood sexual abuse by the maternal grandfather and maternal great grandfather, told a DCFS social worker that in “July/August 2020,” L.H. told her that Father had touched her inappropriately. The results of a forensic sexual abuse exam conducted at the time at Olive View Medical Center were negative. As a result, both Mother and P.H. were not sure whether they believed L.H.’s allegations of sexual abuse. The social worker advised Mother that forensic examinations are not always able to confirm inappropriate sexual touching. Mother observed that the maternal grandmother “is always asking the girls if anyone is touching them inappropriately.” However, Mother recounted a recent incident that caused her to be concerned about L.H. She, Father, and L.H. went to a grocery store. While there, L.H. stated that Father promised to buy her an “LOL” toy during Christmas. Mother asked L.H. why Father had made that promise and observed Father had a serious look on his face. When L.H. saw the look on Father’s face, she became quiet. Mother later asked L.H. if Father touched her; L.H. would not answer the question. On February 3, Mother asked L.H. again if Father touched her. L.H. responded that Father rubbed her “private” with his fingers at Christmas time. Mother took L.H. to the hospital for 6 Father also told the DCFS social worker that he had been in prison from 1998 to 2015 for voluntary manslaughter, possession of a firearm, and gang activity. 5 an examination, but ended it before the vaginal examination was completed because she felt it was invasive and that L.H. was nervous. Mother reported that every other week since December 2020, L.H. has woken up with a bad dream. L.H. did not tell Mother what the dreams were about, but L.H. was afraid to sleep alone. In January 2021, Mother observed L.H. “grinding” on the sofa twice. Mother also reported that L.H. changes her underwear two to three times per day and states that she wants a boyfriend. Mother also participated in a forensic interview on February 3, 2021. During the forensic interview, Mother stated L.H. said Father touched her at night, while L.H. was sleeping. Mother reported that L.H. shares a room and a bed with her little brother. According to P.H., L.H. does not sleep alone; she sleeps in the same room as Hector. When Father goes in to check on Hector, the door is always open, and Father stays in the room for only a couple of minutes. The social worker asked L.H. if anyone touched her body on a place they are not supposed to. L.H. responded that Father did. When asked where he had touched her, L.H. pointed to her vagina. She stated that Father came into her room at night time and touched her under her pajamas and panties with his finger. She denied penetration and said Father touched her one time only. When asked if Father bought her anything, she stated he bought her an “LOL” toy, but did not know why he bought it. A nurse practitioner reported to the social worker that L.H. had twice reported Father touched her inappropriately in the last year, although the nurse did not know if L.H. reported the same incident twice. She claimed it was Mother, not L.H., who was 6 nervous during L.H.’s February 3, 2021 examination. The nurse observed redness around L.H.’s genitals, but concluded it may or may not be abuse related. The record includes notes, dated February 4, 2021, from a registered nurse that indicate L.H. told the nurse that Father touched under her clothes on her “private part” when he came in and told her “sweet dreams.” On February 5 and 6, 2021, the social worker interviewed Father by phone. He denied inappropriately touching L.H. He observed he is never alone with her; stated L.H. had acted inappropriately with him in front of Mother by attempting to hug and kiss him; and stated he bought her an “LOL” toy for Christmas and her birthday. Further, Father stated Mother, maternal grandmother, and maternal grandfather are “always” putting thoughts in the girls’ heads about being touched inappropriately. Maternal grandmother confirmed that she does ask the girls if they are being touched inappropriately. The girls have not disclosed any inappropriate touching to her. On February 10, 2021, a social worker interviewed P.H. and L.H.’s biological father, Jorge. He stated that he does not disbelieve L.H.’s allegations of sexual abuse, but noted L.H. has a vivid imagination and that in the past, maternal grandmother was responsible for putting thoughts in P.H.’s head that he touched her inappropriately. Jorge stated a lie detector test proved he did not. DCFS’s records indicate that the sexual abuse allegations against Jorge were deemed inconclusive in June 2012, and then, in November 2012, the same incident was investigated and deemed unfounded. 7 3. Additional Observations The social worker did not observe any marks on Hector or Jaden. The social worker recommended that Hector be assessed for speech delays. Neither Mother nor Father planned to stay in a relationship together. Mother signed a safety plan to, inter alia, protect the children from Father, seek an emergency protective order as soon as possible, and pending doctor approval, take L.H. in for a sexual abuse forensic exam.7 D. DCFS Detains the Children On February 8 and 9, 2021, the juvenile court issued orders permitting DCFS to remove P.H. and L.H. from Mother, and Hector and Jaden from Mother and Father pursuant to section 340. On February 10, 2021, the social worker, accompanied by law enforcement, removed the children from Mother’s custody. While the social worker was at Mother’s residence, the maternal grandmother, who was present, told the social worker than when Hector was one month old, maternal grandmother saw Father with Hector’s penis in his mouth. The maternal grandmother also recounted that on one occasion when she slept on the sofa in Mother’s apartment, she woke up with a bruise on her arm and her pants’ zipper broken. She believed Father was responsible for the bruise and the broken zipper. 7 On February 10, 2021, Mother stated she was waiting for the restraining order to be signed. A copy of the restraining order is not in the record and there is no indication whether Mother obtained the restraining order. 8 On February 10, 2021, a social worker spoke with Father by telephone to inform him that the children had been detained. Father cried and stated he now lived out of state and did not understand why the children were detained from Mother. Father denied the maternal grandmother’s allegations about Hector or that he put a bruise on her arm or tore the zipper on her pants. Father noted that when Hector was one month old, they lived in a shelter, and he was never alone with the children.8 P.H. and L.H. were placed with Jorge. On February 16, 2021, Hector and Jaden were placed in the home of maternal great cousin. In April 2021, Hector and Jaden were placed with a non-relative caregiver. E. The Petition On February 16, 2021, DCFS filed a section 300 petition. In counts a-1 and b-2, DCFS alleged that the four children were at substantial risk of suffering serious harm as a result of Mother and Father’s domestic violence, from which Mother failed to protect the children. The allegations included that on one occasion, “[P.H.] intervened and stopped the altercation.” DCFS further alleged in counts b-1, d-1, and j-1, that L.H. and her siblings were at substantial risk of suffering serious harm as a result of Father’s sexual abuse of L.H. and Mother’s failure to 8 The record does not disclose that the trial court relied on the maternal grandmother’s allegations of Father’s sexual abuse of Hector or of Father breaking her zipper while she slept, and we conclude that it is not necessary to determine the reliability of the maternal grandmother’s statements to affirm the juvenile court’s judgment. 9 protect the children from the sexual abuse that she allegedly knew about. F. Detention Hearing On February 17, 2021, the juvenile court found DCFS had made a prima facie showing that P.H., L.H., Hector, and Jaden were persons described by section 300 and ordered them temporarily removed from Mother and Father. The juvenile court also ordered monitored visitation for Mother, that DCFS to provide no- or low-cost referrals for educational programs for Mother and Father, and that L.H. participate in counseling (P.H. was already receiving counseling services). G. Jurisdiction and Disposition Report, Addendum Reports,9 and the First Amended Petition 1. Domestic Violence Allegations DCFS reported that on March 11, 2021, Mother acknowledged she had “an anger problem,” and that she has thrown things at Father, including a knife. When asked if Father hit her, Mother responded, “There was a time when I was asleep and I would feel him hit me. It happened after Jaden was born.” She also confirmed that she and Father fought while at the shelter. Father tried to leave, but Mother prevented him. Father was about to grab her neck when P.H. hit him in the back. Then, in their apartment in February 9 On March 29, 2021, DCFS filed a jurisdiction and disposition report. DCFS filed addendum reports on April 9, 2021 (attaching the transcripts of the forensic interviews of Mother and L.H.) and May 27, 2021. 10 2021, Mother told Father to leave. Mother pushed Father, and Father choked and punched her. Mother also acknowledged that she has spanked her kids “a couple of times.” She admitted, “I think I have left bruises.” She also threw a shoe at P.H. and threw a plastic chair in L.H.’s direction. Father acknowledged he and Mother argued and yelled, but claimed “I never laid hands on her.” He stated Mother “would get a little handsy with me, but she never punched me really hard or punched me on the face.” He also stated, “I’ve never seen her throw objects at the kids.” Jorge stated that when he and Mother were together, she broke his printer and 10 phones out of anger. L.H. stated that Mother and Father argued and that Father hit Mother. On March 24, 2021, P.H. told the social worker that Mother and Father constantly fought about cheating. She noted the same types of arguments happened between Mother and her father, Jorge. She explained that at the shelter, it looked like Father had Mother by the neck and started to choke her. In response, P.H. picked up a piñata stick and hit him on the back. P.H. also reported that Mother throws things when she gets angry, including an adult shoe thrown at Father that hit Hector and a “Minnie Mouse” chair thrown at Father that hit L.H. 2. Sexual Abuse Allegations On March 11, 2021, Mother admitted that “[L.H.] told me that [Father] never touched her.” “I lied that [L.H.] reported again that [Father] touched her. . . . The reason I did it because I didn’t want him to get full custody of the boys.” 11 Mother also told the Los Angeles Police Department investigating detective that she “made the whole thing up.” She said she told L.H. to lie and promised to get her a doll if she did. Mother also stated that one day, she left L.H. with Father’s stepmom and paternal grandfather (also named James) to drive Father to work. When she returned, L.H. was asleep, naked. When Mother asked L.H. why she was naked, L.H. responded she did not know. Later, maternal great uncle told Mother that L.H. had said that “James touched her.” Mother then asked L.H. about whether James touched her, and L.H. said no.10 Father continued to deny allegations of sexual abuse. He stated, “I was never left alone with the kids. [Mother] had some stuff happen to her in the past. She watches them closely. She is worried about that happening to her kids.” With respect to whether paternal grandfather did anything to L.H., Father said that Mother only told him after the fact what had happened. He asked her why she did not call the police. She responded, “Because I don’t know.” P.H. stated that she is unsure if her sister is telling the truth about Father touching her. Mother did not leave the children alone; she either took the children with her or P.H. would watch her siblings. As to the incident when L.H. woke up naked at paternal grandfather’s house, P.H. recalled that L.H. woke up with her pajama top and underwear on, but no pajama bottoms. L.H. did not tell her anything about being touched. When asked if there have been any changes in L.H.’s behavior, Jorge stated that L.H. has nightmares; has mentioned 10The record does not indicate whether “James” refers to Father or paternal grandfather. 12 Father, his finger, and her private parts; is extra clingy; and needs him by her side to fall asleep. The social worker did not interview L.H. about the sexual abuse allegations because she had been interviewed about it multiple times, including a forensic interview on March 9, 2021, and due to her young age. During L.H.’s forensic interview, she stated that while she was in her upper bunk bed, Father pulled down her clothes, touched her “vaginal,” and that it felt “ticklish.” She stated her sister slept in the lower bunk. L.H. attempted to avoid answering questions and did not provide clear details relating to the circumstances of the abuse. 3. The First Amended Petition On March 30, 2021, DCFS amended counts a-1 and b-2 to include allegations that during an altercation, Mother threw a shoe at Father while he was holding Hector. The shoe hit Hector. On another occasion, Mother threw a small plastic chair at Father and struck L.H. 4. Additional Information On April 1, 2021, Mother was admitted to the hospital for an involuntary 72-hour psychiatric hold and was diagnosed with severe depression. During the proceedings, Mother enrolled in domestic violence, parenting, and sexual abuse awareness counseling. By May 15, 2021, she had completed 9 out of 12 parenting classes, and 11 out of 12 domestic violence classes. She also attended individual counseling sessions and was assessed for Regional Center services. The DCFS social worker noted “that [Mother] may have an intellectual disability.” “[M]other has a difficult time concentrating, retaining information and understanding what is being told to her.” It was determined that Mother 13 required assistance from the Regional Center for daily functioning, including raising her children. DCFS requested further evaluation of Mother’s cognitive abilities and capacity to provide appropriate supervision for the children. L.H. and Hector were also referred for Regional Center assessments as there was concern surrounding their development. Mother visited all four children on a regular basis. At the time of the jurisdiction and disposition report, Father was residing in Arizona and had elected to not have any visits until the dependency proceedings were resolved because he did not want to be accused of improperly influencing the children. By May 26, 2021, however, Father had virtual calls with Hector and Jaden and planned to have a monitored visit on May 27, 2021. Father did not enroll in any programs. H. The Second Amended Petition On May 14, 2021, DCFS filed a second amended petition. In count b-3, DCFS alleged that Mother had mental and emotional problems, including severe depression, for which she had been involuntarily hospitalized, and that Mother failed to take the psychotropic medications that had been prescribed to her. I. Jurisdictional and Dispositional Hearing and Orders At the June 1, 2021, combined jurisdictional and dispositional hearing, Mother and Father argued Mother’s allegations of sexual abuse had been falsified. Father’s counsel argued L.H.’s statements were unreliable, pointing to, inter alia, inconsistencies in L.H.’s recounting of the circumstances surrounding the inappropriate touching and that the social worker observed that L.H. was highly impressionable. Mother’s 14 counsel also argued that Mother had been abused when she was young, so she was sensitive to her children’s safety and never left the girls alone with Father. Thus, Mother argued the sexual abuse allegation should be dismissed, or in the alternative, the allegations that Mother failed to protect the children from sexual abuse should be stricken. The juvenile court found it had jurisdiction over the children pursuant to section 300, subdivisions (a), (b), (d), and (j). It sustained counts a-1 and b-2, relating to domestic violence, but struck the failure to protect language in favor of finding the domestic violence was mutual. The court also sustained count b- 3, relating to Mother’s mental and emotional health. As to the sexual abuse counts, b-1, d-1, and j-1, the juvenile court discounted Mother’s recantation of the sexual abuse, noting that Mother has unresolved mental health issues. Further, the juvenile court found L.H.’s behaviors of having nightmares, being clingy, and changing her underwear frequently was consistent with sexual abuse. It struck Mother’s failure to protect from counts b-1, d-1, and j-1 and otherwise sustained those counts. The juvenile court then determined clear and convincing evidence relating to each sustained count supported removing the children from Mother and Father. It explained that it was concerned about the sexual abuse of a five-year-old girl, and that because Hector and Jaden were too young to be able to express themselves should Father engage in similar behavior with them, removal of the boys from Father was warranted. Father appealed. 15 DISCUSSION A. Legal Principles and Standard of Review To remove a child from the custody of a parent with whom the child resided at the time the petition was filed, the juvenile court must find by clear and convincing evidence 11 that one of five grounds exists pursuant to section 361, subdivision (c). (In re V.L., supra, 54 Cal.App.5th at p. 154.) Of relevance here, “[o]ne ground for removal is that there is a substantial risk of injury to the child’s physical health, safety, protection or emotional well- being if he or she were returned home, and there are no reasonable means to protect the child.” (Ibid., citing § 361, subd. (c)(1).) Another ground for removal is that “[t]he minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, . . . or member of his or her household, . . . and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse 11 The clear and convincing evidence standard “ ‘ “requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt.” ’ ” (In re V.L. (2020) 54 Cal.App.5th 147, 154.) “ ‘[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.’ ” (Id. at p. 155 [applying the standard of review articulated in a conservatorship matter to a dependency proceeding], quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.) 16 without removing the minor from his or her parent, guardian . . . .” (§ 361, subd. (c)(4).)12 “ ‘The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.’ ” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) “ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial 12 Father argues the juvenile court lacked authority to remove the children from his custody pursuant to section 361, subdivision (c) because Father “maintained a separate residence and did not reside with the children.” Father does not cite any evidence to support his contention that at the time the petition was initiated, the children did not reside with him. Rather, the record reflects the children, Mother, and Father lived together in an apartment for which Father was named as a tenant on the lease. Nonetheless, Father acknowledges section 361, subdivision (d) authorizes removal of children from a parent with whom the children did not reside at the time the petition was initiated if “the juvenile court finds clear and convincing evidence that would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent’s . . . right to physical custody.” (§ 361, subd. (d).) We observe that the juvenile court’s minute orders also cite to section 361, subdivision (d). 17 court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].” ’ [Citation.]” [Citation.]’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.) “In reviewing for substantial evidence to support a dispositional order removing a child, we ‘keep[ ] in mind that the [juvenile] court was required to make its order based on the higher standard of clear and convincing evidence.’ [Citations.]” (In re Nathan E. (2021) 61 Cal.App.5th 114, 123.) B. Substantial Evidence Supported Removal of Hector and Jaden from Father’s Custody Based on Father’s Sexual Abuse of L.H. Father argues there was not clear and convincing evidence of a substantial risk of injury necessitating removal of Hector and Jaden from his custody. He first argues that L.H.’s unreliable hearsay statements were the only evidence of the sexual abuse following Mother’s recantation of her earlier statements concerning Father’s inappropriate touching of L.H. This argument is without merit. As a preliminary matter, we observe that Father does not challenge the juvenile court’s jurisdictional findings, and thus does not contest that the juvenile court’s determination that Hector and Jaden were at substantial risk of harm as a result of Father’s sexual abuse as alleged in counts b-1, d-1 and j-1 of the 18 second amended petition was supported by a preponderance of the evidence. Father relies on In re Lucero L. (2000) 22 Cal.4th 1227. There, our Supreme Court considered the admissibility and substantiality of the hearsay statements of a three-year-old. The court held, in a plurality opinion, that “a juvenile court may not base its findings solely on the hearsay statements of a truth- incompetent child—that is, a child who may not testify because she is too young to separate truth from falsehood—unless the child’s statements bear ‘special indicia of reliability.’ ” (In re I.C. (2018) 4 Cal.5th 869, 875 [summarizing the holding of In re Lucero L., supra].) Father made similar arguments in the juvenile court, which the juvenile court rejected. The juvenile court determined it would not credit Mother’s recantation, observing Mother had been suffering from severe depression at the time she stated that she had made up the sexual abuse allegations and told L.H. to lie. We are not in a position to question the court’s credibility determinations or reweigh the evidence. (See In re I.J., supra, 56 Cal.4th at p. 773.) Thus, the juvenile court’s findings were not based solely on L.H.’s hearsay statements. Rather, the record also included corroborating statements from Mother and L.H.’s father, including statements about L.H.’s conduct that were consistent with sexual abuse. Mother and L.H.’s father observed that L.H.’s behavior had changed in that she had nightmares, could not sleep by herself, and was extra clingy. Mother also testified that L.H. engaged in sexualized behaviors such as grinding on the couch and that L.H. changed her underwear several times a day. Further, well before Mother claimed to have made up the sexual abuse allegations in 19 February 2021 to prevent Father from getting custody of the boys, another allegation of Father sexually abusing L.H. had been made in July 2020. Additionally, substantial evidence supports the conclusion that L.H. is not “truth incompetent.” The forensic interviewer established that L.H. knew when to say “I don’t know.” The forensic interviewer also established that L.H. was able to disagree and correct incorrect statements, and linked that practice to the question, “Will you tell me the truth?” Further, L.H.’s allegations bore an indicia of reliability. Her core allegations were consistent. She told a registered nurse, a forensic interviewer, the social worker, and her father that Father had touched her vagina or private part, under her clothes, with his finger. Next, Father argues that neither of his son’s experienced or was exposed to Father’s alleged sexual abuse, and that his sons are dissimilarly situated from L.H. in terms of age, gender, and biological connection. In In re I.J., our high court addressed the question of whether a father’s sexual abuse of his daughter supported the juvenile court’s exercise of jurisdiction over his sons under section 300, subdivision (j) relating to abuse of a sibling even when there was no evidence the father sexually abused or otherwise mistreated his sons. (In re I.J., supra, 56 Cal.4th at pp. 770, 772.) In holding the juvenile court’s dependency jurisdiction over the sons was proper, our Supreme Court explained, “ ‘[s]ome risks may be substantial even if they carry a low degree of probability because the magnitude of the harm is potentially great.’ ” (Id. at p. 778.) The court further explained that under subdivision (j) of section 300, the juvenile court is to consider the totality of the circumstances of the child 20 and his or her siblings, including “the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.’ (§ 300, subd. (j).)” (Id. at p. 774.) Subdivision (j) “thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance.” (Ibid.) Although In re I.J. concerned the juvenile court’s jurisdictional findings, and Father does not challenge the juvenile court’s jurisdictional findings, both Father and DCFS agree that it provides relevant guidance here. Given that In re I.J. concerns a fundamental question at issue in this appeal—i.e., whether sexual abuse of a sibling (or, here, half-sibling) can support removal of a child of the opposite sex—and that the same evidence that supports the juvenile court’s exercise of jurisdiction is sufficient to the removal of Hector and Jaden from Father’s custody, we agree. (See In re S.R. (2020) 48 Cal.App.5th 204, 207 [quoting In re I.J. for the proposition that “ ‘ “even . . . a low degree of probability” ’ can give rise to a substantial risk if ‘ “the magnitude of the harm is potentially great,” ’ ” and affirming removal].) Following the guidance of In re I.J. to consider the totality of the circumstances, we conclude substantial evidence supported the juvenile court’s removal order. We are not convinced that the difference between the age and gender of the children here alleviate the risk to Hector and Jaden. In In re P.A. (2006) 144 Cal.App.4th 1339, the appellate court considered whether five- and eight-year-old boys were at risk of sexual abuse after the father twice touched his nine-year- 21 old daughter’s vagina. The court concluded that “where . . . a child has been sexually abused, any younger sibling [including one of the opposite sex] who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse.” (Id. at p. 1347.) Here, like the children in In re P.A., L.H., Hector, and Jaden were sufficiently close in age to warrant removal. When Father sexually abused L.H. in December 2020, she was on the verge of turning five years old; Hector was approximately one-and-a-half years old; and Jaden was approximately half-a-year old. Further, Father contends his relationship with L.H. differs from that with his sons because he is not biologically related to L.H. However, Mother and Father had dated since approximately 2017 or 2018, at least two years before the abuse, and had lived together for some time in Laughlin, in a shelter, and then in their apartment. Given L.H.’s young age and her concomitant reliance on Father as the father figure in the household, Father’s sexual abuse of L.H. was abhorrent and unnatural. (See In re I.J., supra, 56 Cal.4th at p. 778 [“ ‘[S]exual or other serious physical abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations’ ”].) Additionally, the juvenile court’s observation that Hector and Jaden were too young to express themselves (and Hector may have developmental delays) and, thus, would be unable to indicate they needed help is well-taken. Because the children therefore could not cry for help, fight back, or report any inappropriate touching, the risk of abuse was greater than it would be for an older child. Moreover, a sibling need not be inappropriately touched to suffer a risk of substantial harm as 22 exposure to sexual abuse is also harmful. (See In re I.J., supra, 56 Cal.4th at p. 778 [“Also relevant to the totality of the circumstances surrounding the sibling abuse is the violation of trust shown by sexually abusing one child while the other children were living in the same home and could easily have learned of or even interrupted the abuse”]; In re Andy G. (2010) 183 Cal.App.4th 1405, 1412 [“ ‘We do not discount the real possibility that brothers of molested sisters can be molested [citation] or in other ways harmed by the fact of the molestation within the family. Brothers can be harmed by the knowledge that a parent has so abused the trust of their sister. They can even be harmed by the denial of the perpetrator, the spouse’s acquiescence in the denial, or their parents’ efforts to embrace them in a web of denial’ ”]; see also In re Karen R. (2001) 95 Cal.App.4th 84, 89-91 [finding son was also sexually abused because he had seen his sister beaten by the father and was told by his sister about the rape immediately thereafter].) Although Father claims Hector was not exposed to his inappropriate touching of L.H., the record demonstrates that L.H. and Hector shared a room and that at times, L.H. shared her bed with one of her brothers. Also relevant to the determination that removal of Hector and Jaden from Father was proper is that by the time of the combined jurisdictional and dispositional hearing, Father had not enrolled in any educational programs. Father’s failure to do so is probative of the fact that there were no other reasonable alternatives to removal because it strongly indicates Father has failed to confront and deal with the issues giving rise to the court’s jurisdiction. (See § 366.21, subd. (e)(1) [“The failure of the parent or legal guardian to participate regularly and make 23 substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental”].) C. Substantial Evidence Supported Removal of Hector and Jaden from Father’s Custody Based on Father’s Domestic Violence Against Mother Father argues that the evidence of a substantial risk of serious harm due to domestic violence was insufficient to support the juvenile court’s removal order. He contends that because he and Mother are no longer in a relationship and he lives in Arizona, there is no current risk of harm to his sons. In In re Daisy H. (2011) 192 Cal.App.4th 713, 717, this court explained that “[p]hysical violence between a child’s parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm.” In that matter, DCFS alleged the father choked the mother and pulled her hair. The record disclosed, however, that those incidents occurred seven years before DCFS filed the section 300 petition, and that none of the incidents occurred in the presence of the children. (Ibid.) Thus, there was no reason to believe the violence would continue into the future and place the children at risk of harm. Here, however, the incidents of violence were not so remote in time. Father choked and punched Mother on February 3, 2021, the day before DCFS initiated its investigation of the instant matter and a mere four months before the juvenile court ordered the children removed from Father. Moreover, the record reflects a pattern of violence and discloses that Father (and Mother) lack sufficient awareness of and impulse control to not 24 resort to physical violence. Mother acknowledged that she and Father had a history of violence and between December 2020 and February 3, 2021, she and Father had three physical altercations. Even a few months before December 2020, Father choked Mother while the family lived in a shelter. Also, unlike In re Daisy, the children were present both times Father choked Mother. In the first instance, P.H. felt compelled to intervene to protect Mother and hit Father with a stick.13 Further demonstrating his lack of awareness or interest to change, throughout the proceedings Father claimed he never laid a hand on Mother, minimized Mother’s violence against him (noting she gets a little handsy, but does not punch him in the face), and did not enroll in any educational programs. Father’s failure to acknowledge his violence and seek treatment is especially concerning when viewed in the context that Father spent 17 years in prison for voluntary manslaughter, suggesting a propensity for violence. Indeed, other courts have observed, “ ‘ “[P]ast violent behavior in a relationship is ‘the best predictor of future violence.’ Studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of those relationships. . . . Even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner.” [Citation.]’ [Citation.]” (In re R.C. (2012) 210 Cal.App.4th 930, 942, italics added.) 13 In criminal sentencing, strangulation is recognized as aggravated conduct reflecting an exceptionally callous disregard for human suffering. (See In re Scott (2004) 119 Cal.App.4th 871, 891-892.) While this is not a criminal matter, Father’s tendency to resort to choking Mother is concerning and reflects a lack of aversion to violence. 25 Accordingly, at the time of the dispositional hearing, Father demonstrated a tendency towards physical violence and provided no reason for the court to believe those tendencies would change. Moreover, the juvenile court need not consider Father’s sexual abuse of L.H. and domestic violence with Mother in isolation when considering whether Hector and Jaden were at substantial risk of serious harm. As a practical matter, the juvenile court evaluates the aggregate risk to Hector and Jayden if they were not removed from Father’s custody, including the risk occasioned by Father’s abuse of L.H., domestic violence with Mother, Father’s failure to acknowledge the domestic violence between him and Mother, and Father’s failure to pursue educational or treatment programs to assist him in addressing the issues that gave rise to the juvenile court’s jurisdiction. Finally, because Father lived in Arizona, there were no reasonable means by which Father could have custody of the children and be sufficiently monitored to ensure the children were not exposed to domestic violence or sexual abuse, especially given the continuing strain on child protective services resources during the Covid-19 pandemic. 26 DISPOSITION The June 1, 2021 dispositional orders removing Hector and Jaden from Father’s custody are affirmed. NOT TO BE PUBLISHED KELLEY, J.* We concur: CHANEY, J. BENDIX, Acting P. J. *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 27	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494484/	MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ROBERT D. BERGER, Bankruptcy Judge. Plaintiff IBD, Inc., and Defen-dani/Debtor Thomas Scott Jenkins both seek summary judgment in this proceeding to determine the dischargeability of a 825debt under 11 U.S.C. §§ 523(a)(4) and (a)(6). Plaintiffs motion is granted. Defendant’s motion is denied. Findings of Fact Debtor filed for bankruptcy on June 21, 2010. Prior to filing, Debtor and IBD litigated in state court over the demise of Debtor’s former employer, IBD. IBD successfully sued Debtor for conversion of IBD’s property and breach of fiduciary duty. The judgment includes an award for punitive damages. Debtor paid IBD approximately $415,000 after losing a state court appeal. Debtor owed IBD approximately $575,000 as of the petition date. IBD developed computer software for the agricultural industry. Debtor was IBD’s chief executive officer, a shareholder, and a member of the board of directors. IBD provided services to an estimated 40 customers, including customer website hosting. In 2001, IBD began to experience financial difficulties. Debtor, as IBD’s CEO, was charged with finding new investors or purchasers for IBD’s assets. However, Debtor and other IBD employees began to discuss forming a new company to serve IBD’s customers. Debtor resigned from IBD on September 28, 2001. Debtor did not disclose his plans to form a new company (named EBS) to IBD’s remaining board member. In October 2001, former IBD employees, at Debtor’s direction, copied IBD servers and transferred the information to EBS’s sewers. They then erased IBD’s servers. EBS did not pay IBD for the software. EBS informed IBD customers EBS would service their contracts. Some IBD customers opted to terminate their contracts and paid EBS the IBD termination fee. EBS continued to serve most of the customers previously served by IBD. EBS represented to IBD customers EBS was the same company operating under a new name. EBS did not assume or pay any of IBD’s debts. By the time the remaining IBD board member realized Debtor had started EBS, it was too late to salvage IBD’s assets for IBD’s creditors. IBD filed the state court suit against both Debtor and EBS in 2004 which culminated in a jury trial in 2006. The jury found against EBS and Debtor, jointly and severally, for conversion and awarded IBD $508,288 in damages. The jury also awarded IBD $400,000 in damages against Debtor for breach of fiduciary duty. The jury found punitive damages were appropriate because Debtor acted in a willful, fraudulent, or malicious manner. The trial court awarded IBD $162,623 in punitive damages. The appellate court upheld the judgments.1 Conclusions of Law This is a core proceeding over which this Court has jurisdiction pursuant to 28 U.S.C. § 157(b) and 1334. A. Summary Judgment Standard Summary judgment is appropriate when a moving party illustrates there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The court should construe all required inferences in favor of the non-moving party. Only when a reasonable person could not differ as to the import of the proffered evidence is summary judgment proper. The moving party carries the burden to establish that he or she is entitled to summary judgment. B. Collateral Estoppel Collateral estoppel applies in § 523 actions to determine the discharge-826ability of a debt.2 A party is collaterally estopped from relitigating facts which have been comprehensively litigated, finally adjudicated, and resulted in a state court judgment.3 The law of the state issuing the judgment applies.4 Kansas law requires: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity therein and (3) the issue litigated must have been determined and necessary to support the judgment.5 Debtor argues IBD’s statement of uncontroverted facts, which relies on the facts recounted in the Kansas Court of Appeals unpublished opinion, does not comply with D. Kan. LBR 7056.1. The judgment relied on by IBD is final, was affirmed by the Kansas Court of Appeals, and is entitled to full faith and credit.6 IBD has sufficiently complied with D. Kan. LBR 7056.1.7 Debtor also argues his fiduciary capacity and his intent have not been previously determined. C. Dischargeability under 11 U.S.C. § 523 An exception to discharge is narrowly construed with deference given to the fresh-start policy of the Bankruptcy Code.8 The party opposing a debtor’s discharge carries the burden of proof by a preponderance of the evidence. D. Fraud or Defalcation While Acting in a Fiduciary Capacity A claim under § 523(a)(4) requires fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. Fiduciary is narrowly defined to except a debt from discharge.9 The “general definition of fiduciary — a relationship involving confidence, trust and good faith — is too broad in the dischargeability context.”10 Thus, ordinary commercial relationships such as creditor-debtor or principal-agent do not rise to the level of the fiduciary relationship contemplated by the Bankruptcy Code.11 Rather, § 523(a)(4) requires a preexisting fiduciary relationship between the parties which imposed upon one party responsibility for and control of the other party’s assets or property.12 827The existence of a fiduciary duty for § 523(a)(4) is a question of federal law, not a fact to be pled. Outside the corporation-corporate officer context, § 523(a)(4) requires an express or technical trust. Most cases cited by Debtor are not corporation-corporate officer cases. Debtor cites a few cases finding a corporate officer or director is not a fiduciary of the corporation.13 However, these cases are in the minority. The vast majority hold corporate officers and directors are § 523(a)(4) fiduciaries of their corporations.14 The general § 523(a)(4) rule requiring an express or technical trust does not apply to corporate officers when the complaining party is the corporation which placed its assets within the officer’s responsibility and control.15 While federal law controls, state law is also important to the determination of a fiduciary relationship.16 Under Kansas law, a corporate officer is a fiduciary of the corporation and its assets.17 Debtor moves for judgment arguing a corporate officer cannot be found to act in a fiduciary capacity under § 523(a)(4) without an express or technical trust. Debtor’s motion is denied because while a corporate officer may not always stand in a fiduciary capacity in relation to a corporate creditor or an individual shareholder, the corporate officer is the steward of the corporation’s property and stands in a fiduciary capacity when the corporation itself objects to the officer’s mishandling of corporate property. IBD prevails on this issue as a matter of law. IBD moves for summary judgment based on its state court judgment. Debtor argues the state court breach of fiduciary duty claim is not identical to a § 523(a)(4) claim. However, if the state court determined factual issues using § 523(a)(4) standards in the course of adjudicating the state-law question, then collateral estoppel bars relitigation of those facts.18 The jury issued a general verdict without specific findings of fact. The Kansas Court of Appeals reviewed the trial court record for sufficient evidence to support the jury verdict and found the following. Breach of fiduciary duty is a tort and an injured party may recover such damages as will fairly and justly compensate the 828party for the injuries sustained as a result of the wrongful act.19 IBD’s conversion and breach of fiduciary duty claims were not based on the same facts and did not constitute double recovery for the same wrong. Under the breach of fiduciary duty claim, the evidence showed Debtor made misrepresentations to IBD’s board of directors. EBS generated $100,000 in revenue from IBD’s customers during EBS’s first three months of operation. EBS’s business was virtually indistinguishable from IBD’s business for the first year of its existence. Thus, the evidence supported the $400,000 jury award for breach of fiduciary duty. The award represented a year’s worth of lost IBD revenue caused by Debtor’s misrepresentations and breach of fiduciary duty.20 A review of the appellate court decision leaves nothing for this Court to determine under § 523(a)(4). The state courts have already determined Debtor’s misrepresentations caused IBD’s revenues to be misdirected to EBS. Under these facts, misrepresentation is fraud. Debtor stood in a fiduciary capacity with regard to IBD’s revenues by virtue of his position of control over IBD’s . assets. The appellate court found the evidence supported the conclusion Debtor’s actions amounted to an intentional tort compensable by an award against him, in his capacity as IBD’s fiduciary, in an amount equal to one year of IBD revenues misdirected to EBS. IBD prevails as a matter of law. E. Willful and Malicious Injury Caused by Debtor to the Property of Another In order to establish a debt is nondischargeable under § 523(a)(6), a plaintiff must prove debtor intended to cause the injury suffered by the plaintiff through his actions. The willful and malicious standard is stringent, and debts arising from recklessness or negligence fail to qualify for exception. Willful requires a deliberate or intentional injury, not merely a deliberate or intentional act that results in an injury. Malice requires proof the debtor knew or was substantially certain his actions would cause harm to the creditor.21 Conversion may constitute a willful and malicious injury depending upon the circumstances.22 “There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice.”23 Debtor argues the state court did not determine his conduct was willful and malicious. Debtor notes the punitive damages jury instruction was written in the disjunctive, allowing the jury to find punitive damages proper if they found Debtor acted either in a willful, fraudulent, or malicious manner. Regardless, all three standards except a debt from discharge under § 523(a).24 However, Debtor insists collateral estoppel cannot apply to the § 523(a)(6) claim. The state courts determined all elements necessary to sustain a § 523(a)(6) 829objection to dischargeability, and there are no undecided factual issues left for this Court. The state courts found Debtor and EBS converted IBD’s cash, customer lists, and software to the exclusion of IBD’s rights.25 IBD’s servers were wiped after the software was transferred to EBS’s servers, and the back-up copies were recycled. Debtor blocked IBD from either selling or using the software, and lured IBD’s technical employees to EBS.26 Debt- or had engaged in deceitful actions to prevent IBD from exercising its rights over the software.27 Debtor began converting IBD’s assets before IBD finally closed its business. Neither the jury nor the appellate court found IBD abandoned its assets. The appellate court’s opinion finds substantial evidence from the trial court not only to support the $508,288 verdict but also to establish Debtor’s intent to cause the harm associated with his actions. Conclusion For these reasons, judgment shall be entered in favor of Plaintiff IBD, Inc., and against Debtor Scott Thomas Jenkins. The debt is not discharged pursuant to 11 U.S.C. §§ 523(a)(4) and (a)(6). Plaintiffs motion for summary judgment is GRANTED. Debtor’s motion for partial summary judgment is DENIED. SO ORDERED. . Under Kansas law, a jury determines entitlement to punitive damages and the trial court determines the amount of punitive damages. . Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). . KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 670, 941 P.2d 1321 (1997). . Marrese v. American Acad. of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). . Williams v. Evans, 220 Kan. 394, 396, 552 P.2d 876 (1976). . 28 U.S.C. § 1738. . McCain Foods USA, Inc. v. Shore (In re Shore), 305 B.R. 559, 562-63 (Bankr.D.Kan. 2004). . In re Sweeney, 341 B.R. 35, 40 (10th Cir. BAP 2006) (quoting Bellco First Fed. Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997)). . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996). . Arnett, et al. v. Weiner (In re Weiner), 95 B.R. 204, 206 (Bankr.D.Kan. 1989) (citations omitted). . In re Young, 91 F.3d at 1372 (citing Allen, et al. v. Romero (In re Romero), 535 F.2d 618, 621 (10th Cir.1976)). A corporate officer may not be a fiduciary of the corporation’s creditors absent a statutory, technical or express trust. American Metals Corp. v. Cowley (In re Cowley), 35 B.R. 526, 529 n. 1 (Bankr.D.Kan. 1983) (citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Romero, 535 F.2d at 618). . In re Young, 91 F.3d at 1371-72. . In re Hutton, 117 B.R. 1009 (Bankr. N.D.Okla.1990); Bonito Land & Livestock, Inc. v. Green (In re Green), 386 B.R. 865 (Bankr.D.N.M.2008). Debtor also cites In re Twitchell, 91 B.R. 961 (D.Utah 1988). Twitchell reversed the bankruptcy court’s decision finding the officer acted in a fiduciary capacity. However, the Tenth Circuit reversed the district court and reinstated the bankruptcy decision without an accompanying opinion. In re Twitchell, 892 F.2d 86 (10th Cir.1989). . In re Johnson, 242 B.R. 283, 294 (Bankr. E.D.Pa.1999) (compiling 11 citations so holding with only 2 citations in opposition); In re Cowley, 35 B.R. at 528-29 (citing Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); John P. Maguire & Co. v. Herzog, 421 F.2d 419 (5th Cir.1970); Lawrence T. Lasagna, Inc. v. Foster, 609 F.2d 392 (9th Cir.1979)); M-R Sullivan Mfg. Co., Inc. v. Sullivan (In re Sullivan), 217 B.R. 670, 675 (Bankr.D.Mass.1998); Miramar Resources, Inc. v. Shultz (In re Shultz), 205 B.R. 952, 958 (Bankr.D.N.M.1997) (Delaware law); In re Cummins, 166 B.R. 338, 354 (Bankr.W.D.Ark. 1994); In re Jones, 445 B.R. 677, 708 (Bankr. N.D.Tex.2011). . Redmond v. Karr (In re Karr), 442 B.R. 785, 802-03 (Bankr.D.Kan.2011) (Nevada law) (citations omitted). . In re Karr, 442 B.R. at 801. . In re Cowley, 35 B.R. at 529 (citing Delano v. Kitch, 542 F.2d 550 (10th Cir.1976); Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P.2d 428 (1975); Newton v. Hornblower, 224 Kan. 506, 582 P.2d 1136 (1978)). . Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). . IBD, Inc. v. Enter. Bus. Solutions, LLC, 2009 WL 929072, at 9 (Kan.App.) Unpublished disposition. . Id., at 11. . In re Pasek, 983 F.2d 1524, 1527 (10th Cir.1993); Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). . Davis v. Aetna Acceptance Co., 293 U.S. at 330, 55 S.Ct. 151. . Id. . Debtor erroneously relies on cases including “reckless” behavior in a disjunctive jury instruction, and reckless and negligent torts may be discharged. Thus, the argument is that because the bankruptcy court may not be able to determine if the jury found the conduct merely negligent, rather than willful and malicious, the issue is deemed not finally determined. .IBD, Inc. v. Enter. Bus. Solutions, LLC, 2009 WL 929072, at 5. . Id., at *6. . Id.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494485/	MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS ROBERT D. BERGER, Bankruptcy Judge. Defendant Educational Credit Management Corp. (ECMC) moves to dismiss Debtor’s declaratory judgment action seeking to discharge his student loans under § 523(a)(8). Defendant’s motion is denied because Congress has provided a statutory discharge in the Bankruptcy Code separate and distinct from the discharge provided by the Federal Family Education Loan Program (FFELP).1 The administrative discharge for permanent and total disability under 20 U.S.C. § 1087(a) is not an exclusive remedy subject to the exhaustion doctrine when the Debtor chooses to seek relief under the Bankruptcy Code. Background Debtor owes ECMC approximately $94,000 for student loans associated with his undergraduate education dating from 1992. Debtor’s Complaint claims he suffers from “asthmatic bronchitis, severe sciatia [sic] and paresthesia of the legs, cervical osteoarthritis with bilateral radi-culopathy, chronic fatigue syndrome/fibro-myalgia, and renal colic from gout.” In 2007, Debtor claims his medical condition rendered him totally and permanently disabled. Debtor does not work or earn income. Debtor is married but without dependents. He relies on his wife’s income and Social Security for living expenses. 831Debtor did not apply for an administrative discharge. Discussion A. Motion to Dismiss Standard In considering a motion to dismiss, the court accepts all well-pleaded factual allegations, as opposed to conclusory legal allegations, as true and construes them in the light most favorable to the plaintiff.2 To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual allegations to state a plausible claim to relief.3 The issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.4 Debtor raises a Rule 12(b)(1) issue which pertains to subject matter jurisdiction and whether the matter is ripe for adjudication. The question depends on the fitness of the issues for judicial decision and the hardship to the parties by withholding court consideration. The first factor requires the controversy be definite and have an impact on the parties’ legal relationship. It is meant to safeguard against judicial review of hypothetical or speculative circumstances. The second factor considers the potential hardships to the litigants caused by delaying consideration. ECMC did not move to dismiss under Rule 12(b)(1). Under either Rule 12 subsection, ECMC’s argument is Debtor may not seek a judicial discharge of his students loans until he exhausts available administrative remedies. The question is whether Debt- or states a claim for a § 523(a)(8) hardship discharge or if the matter is not yet ripe for adjudication until Debtor has pursued an administrative discharge. B. A Bankruptcy Undue Hardship Discharge Is Separate and Distinct from a FFELP Disability Discharge. A FFELP discharge is an administrative matter, handled by the Department of Education (DOE), and is completely separate and distinct from a bankruptcy discharge based on § 523(a)(8)’s undue hardship standard.5 A student debtor could be entitled to a § 523(a)(8) discharge without qualifying for a 34 C.F.R. § 682.402(c) discharge and vice-versa.6 FFELP and its implementing regulations explicitly provide for bankruptcy as an alternative ground for a student loan debt discharge.7 Debtors who choose to pursue a FFELP discharge do not have a private right of action under 20 U.S.C. § 1087 in bankruptcy, but there is no prohibition on seeking a § 523(a)(8) discharge.8 The FFELP discharge applicable in this case requires the DOE to find the student loan debtor is totally and permanently disabled.9 A student debtor’s compliance with this regulation and his entitlement to 832an administrative discharge does not equate with the debtor’s right to receive an educational loan discharge in bankruptcy. Section § 523(a)(8) provides for the discharge of a student loan debt if the debtor’s continued repayment would result in an undue hardship on the debtor. To show undue hardship, the debtor must show (1) the debtor cannot maintain, based on current income and expenses, a minimal standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances exist indicating the state of affairs is likely to persist for a significant portion of the repayment period; and (3) the debtor has made good faith efforts to repay the loans.10 A debtor’s disability and his attempt (or lack thereof) to obtain an administrative discharge may be considered in an undue hardship analysis under § 523(a)(8). The good faith requirement is sufficiently malleable to cover a wide array of conditions. For example, the bankruptcy court may determine the debtor lacks a good faith attempt to repay the loan when administrative remedies are available to him but are not pursued.11 Likewise, where a debtor requests an administrative discharge before filing bankruptcy, the court may require the debtor to complete, or exhaust, the administrative process before making a § 523(a)(8) determination.12 On the other hand, a student loan debtor is free to resort to a discharge in bankruptcy under § 523(a)(8) at any time.13 C. Debtor Sufficiently States a Claim for an Undue Hardship Discharge Under § 523(a)(8). Viewing the facts in the light most favorable to Debtor, he sufficiently pleads each element of the Brunner test. Debtor has not requested a disability discharge under 20 U.S.C. § 1087(c). Debtor states a claim for a § 523(a)(8) discharge. The controversy is definite and is not hypothetical or speculative. As an alternative remedy contemplated by 20 U.S.C. § 1087(b) and 34 C.F.R. § 682.402(f), a § 523(a)(8) discharge is not prohibited by Debtor’s failure to pursue and exhaust the administrative remedy. Conclusion IT IS ORDERED the Defendant’s Motion to Dismiss the Complaint is DENIED. . 20 U.S.C. § 1071 et seq. . Lawence Nat’l Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir.1991). . Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). . Id. . 20 U.S.C. § 1087(a) and 34 C.F.R. § 682.402(c); Gregory v. U.S. Dep't of Educ. (In re Gregory), 387 B.R. 182, 189 (Bankr. N.D.Ohio 2008). . Id. (addressing a 34 C.F.R. § 682.402(d) discharge based on the school closing). . 20 U.S.C. § 1087(b) and 34 C.F.R. § 682.402(f). . Bega v. U.S. Dep’t of Educ. (In re Bega), 180 B.R. 642, 643 (Bankr.D.Kan.1995); Barton v. Educ. Credit Mgmt. Corp. (In re Barton), 266 B.R. 922, 923 (Bankr.S.D.Ga.2001). . In re Grove, 323 B.R. 216, 221 (Bankr. N.D.Ohio 2005). . Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987); Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302 (10th Cir.2004). . Scholl v. NSLP (In re Scholl), 259 B.R. 345, 348-49 (Bankr.N.D.Iowa 2001); VerMaas v. Student Loans of North Dakota (In re VerMaas), 302 B.R. 650, 660 (Bankr.D.Neb. 2003). . Furrow v. U.S. Dep’t of Educ. (In re Furrow), 2005 WL 1397156 (Bankr.W.D.Mo. 2005). . Pitts v. USA Servicing Co. (In re Pitts), 432 B.R. 866, 869 (Bankr.M.D.Fla.2010); In re Barton, 266 B.R. at 924.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494486/	834 ORDER ON OBJECTION TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION LEWIS M. KILLIAN, JR., Bankruptcy Judge. THIS MATTER came before the Court for an evidentiary hearing on October 28, 2011 on the Creditor Ron Phillips’ (“Creditor”) Objection to the Debtor’s Claim of Exemptions (the “Objection,” Doc. 74). The Objection seeks to disallow the homestead exemption claimed by the Debtor, Wayne Eugene Middleton (“Debtor”). Having considered the arguments of counsel, the evidence presented, and the relevant cases, the Creditor’s Objection is sustained for the reasons set forth herein. BACKGROUND The Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code on April 4, 2011. The Creditor filed a claim against the Debtor’s bankruptcy estate based on a money judgment rendered against the Debtor. The Creditor obtained the $785,000 money judgment in an action against the Debtor in Bay County, Florida. The Creditor objects to the Debtor’s claim of a homestead exemption on the property located at 16531 Front Beach Road, Panama City, Florida (“Panama City property”). The Debtor has claimed the exemption pursuant to Article X, Section 4 of the Florida Constitution and Florida Statutes §§ 222.01, 222.02 and 222.05. The Creditor’s Objection centers on the contention that the Panama City property is not eligible for the homestead exemption because the Debtor does not use the property in a manner consistent with the established standards for granting homestead status. The Debtor purchased the Panama City property in February of 1998 as the sole owner. Prior to the acquisition, the Debt- or lived with his wife (“Mrs. Middleton”) at their marital home in Blakely, Georgia (the “Blakely home”). At that time, the Mid-dletons had been married approximately 27 years and had lived in the Blakely home since 1979. On December 15, 2005, less than 30 days before defaulting on his obligation to the Creditor, the Debtor conveyed the Blakely home to Mrs. Middleton for no consideration. The Debtor claims to now reside in Panama City, Florida, but admits to spending approximately eight days a month in Georgia with his wife at the Blakely home. Mrs. Middleton continues to reside and work full-time in Blakely, Georgia and has never stated an intention of moving into the Panama City property with her husband. The Debtor and Mrs. Middleton both claim that their marriage is intact. The Debtor holds a Florida driver’s license and is registered to vote in Florida, but most of the Debtor’s financial affairs revolve around the Blakely home. The Debtor’s primary business is located in Blakely, Georgia. The business has a branch in Panama City, Florida, but is headquartered in Blakely, Georgia and the company car the Debtor drives is registered in Georgia. The Debtor’s paychecks are deposited in a joint bank account held by him and his wife and located in Blakely, Georgia. This account is the couple’s main bank account and is used to pay most of their bills, including the utility bills for the Panama City property. Aside from his financial affairs, the Debtor continues to associate himself with Georgia for various social and personal purposes. The Debtor both attends church and receives his primary healthcare in Georgia. He keeps much of his clothing, especially dress clothes, in Georgia. Additionally, when the Debtor’s son was married in 2007, the wedding announcements indicated that the Debtor was a resident of Blakely, Georgia. 835The Debtor contends that he has been a resident of Florida since January of 1999. The Debtor claimed the tax exemption under Florida’s homestead laws on February 26, 2007, soon after the Creditor’s lawsuit was initiated against the Debtor. The Creditor argues in the Objection that the Blakely home is the Debtor’s permanent residence and that the claim of the homestead exemption on the Panama City property is an attempt to keep the property from the reach of creditors. DISCUSSION State law determines the nature and existence of a debtor’s property interest. In re Sinnreich, 391 F.3d 1295, 1297 (11th Cir.2004) (citing Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)). Thus, the Debtor’s homestead exemption is determined under Florida law. 11 U.S.C. § 522(b); Fla. Stat. § 222.20. While it is well established that Florida’s homestead exemption is to be liberally construed in favor of granting the exemption, the purpose of the homestead law is to protect and preserve the family home. Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431, 432 (Fla.1968). In the instant case, I do not find the Panama City property to be the family home that Florida’s homestead laws are intended to protect. Florida case law is clear that the homestead laws are designed to protect the place of actual residence of the Debtor and his family. Although Florida’s homestead law has changed to no longer require the “head of the family” element, prior case law is still relevant to the extent that it addresses the tests for determining whether the property is being used in a manner that warrants homestead protection. In Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 891-92, 895, 13 So.2d 448 (1943), the court established that the determination of homestead eligibility is a fact-based inquiry that largely depends on the intention of the claimant to permanently reside on the property. In 1931, the Fifth Circuit stated that “[u]nder the Florida decisions, actual occupancy of a home with intention to remain there and make it the home of the family, the place of their actual use and occupancy, is essential to the homestead right.” Croker v. Croker, 51 F.2d 11, 12 (5th Cir.1931). Here, the totality of the circumstances establishes that the Debtor and his family do not intend to permanently reside on the Panama City property. The Debt- or’s financial and social affairs center on the Blakely home. The Debtor’s paychecks are deposited into the joint account located in Blakely, Georgia and the Debtor stated that his checkbook from this account remains in Georgia. Most of the bills for the Debtor and his wife, including the utility bill for the Panama City property, are paid using the checks from the joint account. The Debtor drives a company car registered in Georgia, attends church in Georgia, receives primary healthcare in Georgia and represents himself to be a resident of Georgia for numerous purposes. One court used the address listed on the Debtor’s voter registration and driver’s license as factors in its determination of a debtor’s homestead. See In re Alexander, 346 B.R. 546, 551 (Bankr. M.D.Fla.2006) (noting that the address listed on the debtor’s driver’s license, voter’s registration card and checking accounts are all factors to be considered). However, I find that these items are not dispositive. Further, the Debtor and his wife both claim to have an “intact marriage,” but only the Debtor states that he intends to permanently reside on the Panama City property. In Law v. Law, 738 So.2d 522 (Fla. 4th DCA 1999), the court addressed couples living separately in “intact marriages” for Florida’s homestead purposes. *836The court determined that when a couple is legitimately separated and lives apart in different residences, each person can claim a homestead exemption. However, the court stated that this can only be done if there is no fraudulent motive for the couple to live apart. In the case, the court held that a couple that was separated could each claim a homestead exemption when the separation was bona fide, but that “a husband and wife in an intact marriage cannot have two homesteads.” Id. at 525. Although Mrs. Middleton has not claimed a Georgia homestead exemption, the Blakely home is where she intends to permanently reside. Florida’s homestead laws were designed to protect the family home; they were not designed to be used as an instrumentality of fraud. In re Englander, 95 F.3d 1028, 1031 (11th Cir.1996) (“[T]he homestead exemption law is intended to be a shield, not a sword ... ”). The Debtor here is attempting to cloak the Panama City property under Florida’s homestead exemption in order to use the laws as a way to keep both the primary family home in Blakely, Georgia and the part-time residence in Panama City, Florida. Granting a homestead exemption for the Panama City property would be contrary to the public policies underlying Florida’s homestead laws. “A secondary or vacation home does not implicate the same acute public policy concerns relating to the establishment and protection of a stable, financially secure primary residence.” Reinish v. Clark, 765 So.2d 197, 210 (Fla. 1st DCA 2000). The evidence presented is persuasive that the Panama City property is not the primary residence of the Debtor. The Debtor’s financial and social affairs link the Debtor to the marital home in Blakely, Georgia. Because there can be only one homestead claimed by spouses in an “intact marriage,” and the evidence establishes that the Debtor has used the Panama City property only as a part-time residence, I find that the Debtor cannot claim a Florida homestead exemption. Accordingly, it is hereby ORDERED and ADJUDGED that the Creditor Ron Phillips’ Objection to the Debtor’s Claim of Exemptions (Doc. 74) is SUSTAINED. DONE and ORDERED.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494487/	MEMORANDUM OPINION ON CREDITOR’S MOTION TO REOPEN CASE TO ENFORCE REAFFIRMATION AGREEMENT MICHAEL G. WILLIAMSON, Bankruptcy Judge. In order for a reaffirmation agreement to be binding upon an individual debtor who is not represented by an attorney while negotiating the agreement, the court must hold a hearing at which the debtor appears in person and at which the court informs the debtor of the voluntary nature of the agreement and the legal consequences of entering into it. Even though most courts have long since dispensed with discharge hearings, and hearings are not required to approve reaffirmation agreements for consumer debt secured by real property, this Court finds that hearings apprising pro se debtors of their rights with respect to a reaffirmation agreement must still be held if the reaffirmation agreement is to be enforceable. Because no hearing was held in this case, the Court finds that the Reaffirmation Agreement at issue is not enforceable, and the Court will 845therefore deny the Creditor’s Motion to Enforce Reaffirmation Agreement. Factual and Procedural Background This case was filed under Chapter 13 on March 2, 2009 and later converted to a Chapter 7 case. Upon conversion, the Debtors decided to surrender their homestead, but sought to reaffirm a debt secured by rental property that had been in the Debtor’s family for over eighty years. The Debtors entered into a Reaffirmation Agreement with the Creditor regarding this property. This agreement, which was filed on July 27, 2009, mostly mirrors the requirements set forth in 11 U.S.C. § 524, but is missing Part E (the motion for court approval).1 The Debtors received their Chapter 7 discharge on November 19, 2009. There was no discharge hearing held in the case, as it is the practice of the court in the Middle District of Florida not to hold discharge hearings. Nor was there any hearing held to advise the Debtors of their rights with respect to the Reaffirmation Agreement. The case, having been fully administered, was thereafter closed. After the case was closed, the Creditor foreclosed on the rental property based on the Debtor’s failure to make payments under the Reaffirmation Agreement. The Creditor now seeks to enforce the Reaffirmation Agreement so that it may obtain a deficiency judgment. In response, the Debtors have asserted that their liability for any deficiency was discharged in their bankruptcy case notwithstanding the Reaffirmation Agreement. In this respect, they contend that the Reaffirmation Agreement is not binding because it was not entered into in strict compliance with the requirements of Bankruptcy Code § 524. The Creditor now moves the Court for an order confirming that the Reaffirmation Agreement is binding upon the Debtors. Conclusions of Law The Court has jurisdiction over this contested matter under 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), (I), and (O). The reaffirmation provisions are set forth in Bankruptcy Code § 524. While this section is, at its heart, a predominantly consumer provision, it is among the most complicated provisions of the Bankruptcy Code. Accordingly, in determining whether the Reaffirmation Agreement at issue complies with those provisions, the Court will walk through §§ 524(c) and (d) prior to reviewing the relevant case law. Section 52i(c) Under § 524(c), certain requirements must be satisfied in order for a reaffirmation agreement to be valid and binding on the debtor. To begin with, § 524(c)(1) requires that a reaffirmation agreement must be made before the discharge is granted.2 In this case, the Reaffirmation Agreement was made over three months before the discharge was granted, so this requirement is met. Next, § 524(c)(2) provides “the debtor must receive the disclosures described in subsection (k) at or before the time at which the debtor signed the agreement.”3 Subsection (k) requires a disclosure statement as described in § 524(k)(3), together with the reaffirmation agreement, and the statement, declaration, motion, and order described, respectively, in sub-paragraphs (4) through (8) of § 524(k). Relevant to this case, § 524(k)(3) requires a disclosure statement containing the following information. First, “[i]f you 846don’t have an attorney helping you, the judge will explain the effect of your reaffirming a debt when the hearing on the reaffirmation agreement is held.”4 This disclosure is included in the Reaffirmation Agreement filed in this ease, although the hearing was not held. Second, “[i]f you were not represented by an attorney during the negotiation of your reaffirmation agreement, you must have completed and signed Part E.”5 Part E includes a motion for approval and a form of order approving the motion.6 While this disclosure was included in the Reaffirmation Agreement, and while the front page of the agreement states it is included, Part E was not filed. For purposes of this Opinion, the Court concludes that any issue about the Debt- or’s technical failure to include the Part E motion for approval is subsumed in the issues dealt with in this Opinion. Finally, the disclosure statement required by § 524(k)(3), must contain the following additional statement: [i]f you were not represented by an attorney during the negotiation of your reaffirmation agreement, it will not be effective unless the court approves it. The court will notify you of the hearing on your reaffirmation agreement. You must attend this hearing in bankruptcy court where the judge will review your reaffirmation agreement. The bankruptcy court must approve your reaffirmation agreement as consistent with your best interests, except that no court approval is required if your reaffirmation agreement is for a consumer debt secured by a mortgage, deed of trust, security deed, or other lien on your real property, like your home.7 This disclosure is also included in the Reaffirmation Agreement. For purposes this Opinion, the Court assumes that this debt is a consumer debt secured by real property.8 As such, no Court approv-is necessary, and thus, no hearing for approval of the agreement was held in this case. Returning to the requirements under § 524(c), subsection (3) requires that the agreement must be filed with the court, and if the debtor is represented by an attorney, that the agreement is accompanied by a declaration or affidavit of the attorney that basically states that the attorney has informed the debtor of the debtor’s rights (and any legal consequences) and that the agreement will not impose an undue hardship on the debtor.9 Because the Debtors are not represented by an attorney in this case, that part is inapplicable. The filing requirement set out by the first part is met, as the Reaffirmation Agreement in this ease was filed on July 27, 2009. Subsection (4) of § 524(c) requires that the agreement not be rescinded by the debtor within the later of sixty days after filing such agreement or the date of discharge.10 The Reaffirmation Agreement in this case was never rescinded, so this requirement is met in this case as well. Subsection (5) of 524(c) requires that the provisions of § 524(d) have been complied with.11 The Court will address these requirements below. Finally, subsection 847(6)(A) of § 524(c) requires that in cases “concerning an individual who was not represented by an attorney during the course of negotiating an agreement under this subsection, the court approves such agreement as (i) not imposing an undue hardship on the debtor or a dependent of the debtor; and (ii) in the best interest of the debtor.” 12 This requirement of court approval under 524(c)(6)(A), however, “shall not apply to the extent that such debt is a consumer debt secured by real property.” Thus, this requirement is not applicable in this case.13 In summary, with one exception to be discussed below, it appears that the Reaffirmation Agreement complies with the requirements of § 524(c). That leaves for consideration the requirement contained in § 524(c)(5) that the Reaffirmation Agreement comply with § 524(d). Section 52b(d) Section 524(d) provides that in cases where the court has determined to grant a discharge to the debtor, the court may hold a discharge hearing to inform the debtor that either a discharge has been entered or the reasons why a discharge has not been entered. Most courts, including this one, have long dispensed with discharge hearings. In this respect, the language of that part of § 524(d) is not mandatory, and because of heavy case loads, most courts no longer hold discharge hearings. Section 524(d) also requires that if a discharge has been granted, and if the debtor desires to enter into a reaffirmation agreement and was not represented by an attorney while negotiating such agreement, then the court shall hold a hearing at which the debtor shall appear in person. At such a hearing, the court shall inform the debtor that such an agreement is not required and of the legal effect and consequences of entering into the reaffirmation agreement.14 In addition, if the consideration for such agreement is based in whole or in part on a consumer debt that is not secured by real property of the debtor, the court must determine whether the agreement that the debtor desires to make (i) imposes an undue hardship on; and (ii) is in the best interest of the debtor.15 Since the Court is dealing with a consumer debt secured by real property, the latter section does not apply in this case. Because no hearing to inform the Debtors about the legal effect and consequences of entering into the Reaffirmation Agreement was held in this case, the issue remaining for consideration is whether the failure to hold such a hearing is fatal to the enforceability of a reaffirmation agreement. Case Law Case law construing §§ 524(c) and (d) supports the conclusion that the requirements contained in those subsections must be strictly complied with in order for a reaffirmation agreement to be enforceable. A leading example of this interpretation is In re Marletter, a case decided by the Honorable Alexander L. Paskay dealing with substantially the same issue.16 In Marletter, the creditor had commenced garnishment proceedings against the debtor based on the debtor’s reaffirmation of a consumer debt secured by real property. The debtor contended that the reaffirmation agreement was invalid because there had not been a hearing held in 848compliance with §§ 524(c) and (d). The creditor responded that because the debtor owed a consumer debt secured by real property and no court approval was required for such agreements, its collection efforts did not violate the discharge injunction.17 In ruling in favor of the debtor, Judge Paskay concluded that while court approval is not required to reaffirm a consumer debt secured by real property, § 524(d) “still requires the court to advise the debtor of the voluntary character of the agreement and its legal effect and consequences.”18 Moreover, “strict compliance is essential and indispensable because of the concern that creditors will improperly coerce debtors to unwisely reaffirm debts that could compromise the debtor’s fresh start.” 19 This result is consistent with the theme enunciated by the Supreme Court in Grogan v. Garner that “a central purpose of the code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’”20 Because permitting a consumer to reaffirm debt is contrary to this policy of providing the debtor with a fresh start, courts have noted that §§ 524(c) and (d) set forth protections for the debtor, one of them being that a court must hold a hearing to advise a pro se debtor of his or her rights when such debtor seeks to reaffirm debt.21 The Court’s reading of this section leads it to the same conclusion. While there are persuasive arguments that can be made on both sides of this issue, the Court concludes that the requirements set forth in §§ 524(c) and (d) must be strictly adhered to in order for a reaffirmation agreement to be valid. And even though approval hearings on reaffirmation agreements regarding real estate are not held, a hearing apprising a pro se debtor of the debtor’s rights is nevertheless required if a real estate reaffirmation agreement executed by a pro se debtor is going to be enforceable. Understandably, creditors faced with similar situations will point out that it is the debtor’s own inaction and failure to obtain a valid and binding reaffirmation agreement that gives rise to the agreement’s unenforceability. Further, debtors will be able to reap the benefits of reaffirmation agreements and then seek to disavow their validity. But as succinctly stated by Judge Paskay in Marletter, “[i]t *849remains essential for creditors to monitor debtors’ attendance at [reaffirmation] hearings in order to make reaffirmation agreements enforceable, in personam against debtors post-petition and post-discharge, as well as in rem against their collateral.”22 Simply put—ultimately it is up to creditors to protect their own rights, and if the debtors do not fully and accurately proceed through the reaffirmation process, it is the creditor’s responsibility to bring that to light and to ensure that the agreement is properly executed. Conclusion Having found that pro se debtors executing reaffirmation agreements for real estate must attend a hearing to comply with the requirements under §§ 524(c) and (d), and that no such hearing took place with respect to the Reaffirmation Agreement before the Court, the Court concludes that the Reaffirmation Agreement does not comply with those sections and, as a consequence, is unenforceable. Therefore, the Court, having reopened the case to hear this issue, finds that the Reaffirmation Agreement is not binding and thus, the Debtors’ in personam liability is discharged. . Reaffirmation Agreement (Doc. No. 31). . 11 U.S.C. § 524(c)(1). . 11 U.S.C. § 524(c)(2). . 11 U.S.C. § 524(k)(3)(I). . 11 U.S.C. § 524(k)(3)(J)(i)(4). . 11 U.S.C. § 524(k)(7)-(8). . 11 U.S.C. § 524(k)(3)(J)(i)(7). . Belatedly, the Debtor did assert that this debt is not a consumer debt. The Court need not consider contention, of this ruling. . 11 U.S.C. § 524(c)(3). . 11 U.S.C. § 524(c)(4). . 11 U.S.C. § 524(c)(5). . 11 U.S.C. § 524(c)(6)(A). . 11 U.S.C. § 524(c)(6)(B). . 11 U.S.C. § 524(d)(1). . Id. at 283. . In re Marletter, 236 B.R. at 283-284 (internal citations omitted); see also In re Hovestadt, 193 B.R. 382, 386 (Bankr.D.Mass.1996); In re Johnson, 148 B.R. 532, 538 (Bankr. N.D.Ill.1992); In re Pendlebury, 94 B.R. 120, 123-24 (Bankr.E.D.Tenn.1988); In re Jackson, 49 B.R. 298, 302 (Bankr.D.Kan.1985); In re Bauer, 1997 WL 752652 (Bankr.E.D.Va. 1997); 4 Collier on Bankruptcy ¶ 524.04[4] (discussing similarly that “the court is not required to hold a discharge hearing unless the debtor desires to reaffirm a debt and was not represented by an attorney in negotiating the reaffirmation agreement”). . In re Marletter, 236 B.R. at 283; see also 4 Collier on Bankruptcy ¶ 521.17 (16th ed. 2011). . Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). . In re Minardi, 399 B.R. 841, 848 (Bankr. N.D.Okla.2009); see also In re Law, 421 B.R. 735, 738 (Bankr.W.D.Pa.2010); In re Bowling, 116 B.R. 659, 664 (Bankr.S.D.Ind.1990); In re Noble, 182 B.R. 854, 856 (Bankr.W.D.Wash.1995); In re Hovestadt, 193 B.R. 382, 386 (Bankr.D.Mass.1996). . 11 U.S.C. § 524(d)(2). . In re Marletter, 236 B.R. 281 (Bankr. M.D.Fla.1999). . In re Marletter, 236 B.R. at 284 (quoting In re Johnson, 148 B.R. 532, 540 (Bankr.N.D.Ill. 1992)).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494488/	MEMORANDUM OPINION DENYING MOTION FOR SUBSTANTIVE CONSOLIDATION OF NON-DEBTOR ENTITIES KAREN S. JENNEMANN, Chief Judge. Louis J. Pearlman and ten Pearlman-related entities are the debtors in these related cases which are both jointly administered and substantively consolidated. Several parties now seek to add numerous non-debtor entities to the cases relying on the legal theory of substantive consolidation. Because neither the Bankruptcy Code1 nor any other legal authority allows for the substantive consolidation of non-debtor entities with bankrupt parties, the Court will deny the request. Soneet Kapila is the Chapter 11 Trustee2 appointed in these cases. He was appointed due to Pearlman’s fraudulent acts in using the debtors to perpetrate a massive Ponzi scheme.3 The trustee, attempting to recover monies to pay creditors, has filed hundreds of fraudulent conveyance adversary proceedings seeking to avoid millions of dollars of transfers made by the debtors to individuals, law firms, banks, and vendor defendants, alleging they received payments from the debtors without receiving reasonably equivalent value.4 The trustee generally claims one Pearlman entity made transfers to an adversary proceeding defendant in repayment of another Pearlman entity’s preexisting debts. Thus the payor arguably received no value in exchange for its payment, one of the crucial prongs of a constructive fraudulent transfer claim.5 To avoid liability for these “wrong payor” claims, some defendants have moved to substantively consolidate not only the debtors but also other non-debtor, Pearl-man controlled entities. To insure all parties were given an opportunity to make a request for substantive consolidation, the Court previously set a deadline for anyone interested in substantively consolidating either the debtors only, or the debtors and Pearlman-related 852non-debtor entities to file the requisite motion.6 Numerous motions were filed.7 The Court quickly concluded that substantive consolidation of the debtors was appropriate due to the “inextricably interwoven state of the [d]ebtors’ financial affairs and the costs associated with unwinding this financial mess.”8 The effect was to eliminate the trustee’s “wrong payor” actions against defendants who received payment from one of the debtors on account of a liability owed to another debtor, because the consolidated estate will have received value in exchange for its transfer, and the consolidated estate will have realized a reduction in assets in exchange for its payment to the defendants.9 The issue remaining before the Court is whether to substantively consolidate the eleven now substantively consolidated debtors (the “Debtors”)10 with other Pearlman-related entities not in bankrupt- — the “Non-Debtors.”11 All of the requests to substantively consolidate the Non-Debtors with the Debtors are made defendants of the trustee’s fraudulent conveyance proceedings, arguing that the Debtors and Non-Debtors together consist “one intertwined enterprise,” and that substantive consolidation will reduce time and administrative costs associated with untangling their individual assets and liabilities.12 853The trustee opposes any substantive consolidation of Non-Debtors largely because it would render the trustee’s fraudulent conveyance adversary proceedings moot.13 The trustee also argues substantive consolidation of Non-Debtors would dilute unsecured creditors’ recovery due to the additional claims against the consolidated estate.14 The trustee further claims the Non-Debtors have no available assets to contribute to pay creditor claims and their inclusion would simply increase administrative costs and reduce collections.15 Essentially, the trustee argues that substantive consolidation of the Non-Debtors would impose extra cost on the estate, reduce the overall recovery for the creditors, and benefit only the defendants in the related adversary proceedings. The Court need not reach these factual issues, however, because, as a threshold legal issue, the Court concludes she simply lacks the authority to substantively consolidate the Non-Debtors. Substantive consolidation of multiple debtors is not a new or novel concept.16 Consolidation “involves the pooling of the assets and liabilities of two or more related entities; the liabilities of the entities involved are then satisfied from the common pool of assets created by consolidation.”17 Substantively consolidating debtors’ claims simplifies the administration of interrelated bankruptcies by eliminating inter-company claims between related debtors and amalgamating duplicative claims “filed against related debtors by creditors uncertain as to where the liability should be allocated.”18 The applicable test for substantive consolidation “requires a showing that (1) there is substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit.”19 Once this prima facie showing is made, the burden shifts to an objecting party, usually a creditor, to show it relied on the separateness of one of the entities in extending credit, or that it will be prejudiced by the consolidation.20 This analysis is an intense, fact-specific undertaking,21 and courts must carefully consider requests for substantive consolidation because of its potential, significant impact on parties’ rights.22 A bankruptcy court’s power to 854substantively consolidate related bankruptcy cases stems from its equitable powers and is a remedy unique to bankruptcy.23 There is a split of authority, however, as to whether a bankruptcy court has the authority to substantively consolidate non-debtors’ assets and liabilities into a bankrupt debtor’s estate.24 Some courts have granted motions to substantively consolidate debtors with non-debtors relying on § 105 of the Bankruptcy Code to “issue any order, process, or judgment that is necessary or appropriate to carry out the provision of this title,”25 to assert personal and subject matter jurisdiction over non-debtors,26 and to “ensure the equitable treatment of all creditors.”27 Other courts reject the legal conclusion that § 105 grants bankruptcy courts the authority to substantively consolidate non-debtors, or, in other words, force entities to join the bankruptcy case whether they agree or not. These courts conclude that substantive consolidation is purely a bankruptcy remedy and does not extend to the assets and affairs of a non-debtor.28 This Court agrees and declines to substantively consolidate the Non-Debtors. First, § 105 only gives bankruptcy courts the power to do what is necessary or appropriate to accomplish the goals of the Bankruptcy Code. The section does not give bankruptcy courts unfettered power. Bankruptcy courts cannot and should not simply drag unwilling entities that never chose to file bankruptcy into a bankruptcy forum simply because it is expedient and will help one party or another. Second, allowing substantive consolidation of non-debtors under § 105(a) circumvents the stringent procedures and protections relating to involuntary bankruptcy cases imposed by § 303 of the Bankruptcy Code. Section 303 authorizes an involuntary petition of an entity, provided specific rules are followed to protect the putative debtor.29 For example, a 855minimum claim amount is required to even initiate an involuntary proceeding.30 If the movant clears this first hurdle, and the number of claimholders is significant, the movant must obtain a consensus of at least three other claimholders to ensure the action is supported and justified.31 The stakes of hastily forcing a party into involuntary bankruptcy are high because if the protective requirements of § 303 are not met, a court can hold all petitioning creditors liable for costs, attorneys’ fees, and damages.32 Given the significant protections § 303 provides to debtors facing involuntary bankruptcy, and the lack of commensurate protections for substantive consolidation, “forcing a non-debtor into bankruptcy via substantive consolidation circumvents these strict requirements and is in contravention of [the Code].”33 Section 105 of the Bankruptcy Code only allows a bankruptcy court to take actions “necessary or appropriate” to achieve a stated statutory goal. The section certainly does not and should not allow a bankruptcy court to circumvent statutory protections built into the code. Third, state law provides remedies for parties who can establish that a non-debt- or entity truly is an “alter ego”34 of a voluntary debtor. In essence, by piercing the corporate veil, the party proves that the two entities legally are the same, not two different entities. Therefore, they are not really debtor and non-debtor, but one. Courts generally uphold the corporate form to maintain its limited liability purpose because “[e]very corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders.”35 But, when corporate separateness is improperly disregarded such that a corporation and its subsidiary act as “mere instrumentalities” of each other, litigants may pierce the veil of a corporation’s limited liability and hold a corporation’s owners responsible for its debts.36 To pierce the corporate veil under Florida law, the claimant has the heavy burden to prove, by a preponderance of the evidence, that: 856Florida’s high regard for corporate ownership requires a showing that the corporation was specifically organized or used to mislead creditors or to perpetrate fraud before a party can pierce a corporation’s veil.38 Absent such a showing, “every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.”39 Even though this proves to be a high bar, Florida’s alter ego remedy is an alternative to substantive consolidation that protects a non-debtor’s corporate identity without usurping the protections of the Bankruptcy Code. 855(1) the shareholder dominated and controlled the corporation to such an extent that the [corporation’s] independent existence, was in fact non-existent and the ... shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.37 856As such, this Court concludes any request to substantively consolidate non-debtors must fail under § 105(a) of the Bankruptcy Code because it is not an act that is “necessary or appropriate” to carry out any legitimate bankruptcy purpose. Rather, parties have other tools, albeit accompanied by stringent and befitting proof requirements, to force a non-debtor entity into bankruptcy. Parties can file involuntary bankruptcy petitions if they can plead and meet all the requirements of § 303 of the Bankruptcy Code. Alternatively,-they can rely on state law and the attendant legal theories of alter ego and piercing the corporate veil. But, they cannot get the shortcut of relying on § 105 to substantively consolidate non-debtors.40 Therefore, the parties’ factual disputes underlying the substantive consolidation requests of the Non-Debtors is irrelevant because, regardless of which party prevails, the Court lacks authority to order the substantive consolidation of the Non-Debtors. The motions to substantively are separate order consistent with this memorandum opinion shall be entered. DONE AND ORDERED. . All references to the Bankruptcy Code refer to 11 U.S.C. § 101 et seq. . Doc. No. 26 (Order Directing Appointment of Chapter 11 Trustee). . Doc. No. 228. . Doc. No. 3365, in which the trustee alleges “certain Debtors (the “Paying Debtors”) made transfers to pay the obligation of other Debtors. The Paying Debtors received no consideration for these transfers which they made on behalf of other Debtors. The Paying Debtors also made transfers to pay the obligations of certain non-debtors and received no consideration for these transfers which they made on behalf of the non-debtors.” . 11 U.S.C. § 548(a)(1)(B) sets forth the elements required to avoid a constructively fraudulent transfer, including that a debtor received less than reasonably equivalent value in exchange for such a transfer made within two years before filing a petition. . Doc. No. 3186. . Doc. Nos. 3245, 3246, 3250, 3253, 3265, 3266, 3267, 3269, 3271, 3272, 3273, 3276, 3277, 3278, 3279, 3281, 3284, 3285, 3286, 3289, and Doc. No. 484 in Case No. 6:07-bk-575-KSJ. . Doc. No. 3487, page 2. . Doc. No. 3489. . The debtors in these jointly administered cases are: Louis J. Pearlman; Louis J. Pearl-man Enterprises, Inc.; Louis J. Pearlman Enterprises, LLC; TC Leasing, LLC; Trans Continental Airlines, Inc. ("TCA”), Trans Continental Aviation, Inc.; Trans Continental Management, Inc.; Trans Continental Publishing, Inc.; Trans Continental Records, Inc.; Trans Continental Studios, Inc.; and Trans Continental Television Productions, Inc. (collectively, the '‘Debtors”). . Parties seek substantive consolidation of the following Non-Debtors with the Debtors: Planet Airways, Inc. (Doc. Nos. 3245, 3271, and 3284); Trans Continental Jet Shares, LLC (Doc. Nos. 3246, 3250, 3265, 3266, 3267, 3269, 3272, 3273, and Doc. No. 484 in F.F. Station); Trans Continental Talent (Doc. No. 3281); Trans Continental Media, Inc. (Doc. No. 3253); and a group of other non-debtor entities (including Fashion Rock, Trans Continental Entertainment, Trans Continental Pictures, Trans Continental, Inc., Trans Continental Companies, Trans Continental Leasing, Trans Continental Media, Backstreet Management, Trans-Action, Trans Continental Media, Shape, CD, and Trans Continental Talent) (Doc. No. 3271). A related Pearlman entity, F.F. Station, LLC ("F.F. Station”), filed a separate Chapter 11 bankruptcy on February 20, 2007, case no. 6:07-bk-575-KSJ. The trustee did not seek joint administration of this case in its Motion for Joint Administration (Doc. No. 165), and the Court did not jointly administer the F.F. Station bankruptcy with the bankruptcies of the other Debtors in its Order Granting Motion for Joint Administration (Doc. No. 228). F.F. Station also was not substantively consolidated with the Debtors in the Court’s Amended Order Granting Substantive Consolidation of the Joint Debtors’ Estates (Doc. No. 3489 (note 2)). Due to factual distinctions between F.F. Station and the consolidated Debtors, the Court will address all motions to substantively consolidate F.F. Station with the Debtors (Doc. No. 3277 and Doc. No. 484 in case no. 6:07-bk-575-KSJ) at a later time. The Court will separately notice the hearing. .See e.g., Doc. No. 3245, Exhibit A, pages 5-6. All of the defendants’ motions for substantive consolidation rely on the receiver’s report discussing the interwoven state of Pearlman’s financial affairs. Report of Gerard A. McHale, Jr., Ex. A to Doc. No. 3250 (describing how all of Pearlman’s companies shared books and records and transferred money without regard to corporate niceties). . See Amended Memorandum Opinion Granting Substantive Consolidation of Joint Debtor Estates (holding substantive consolidation of Debtors rendered moot the trustee’s claims of constructive fraud in its fraudulent conveyance action against Mercantile Bank) (Doc No. 3489). . The Trustee estimates eliminating its constructive fraud avoidance actions against Defendants has the potential to reduce the estate’s gross recovery for the estate by approximately $12 million. . Doc. No. 3366 (Affidavit of Soneet R. Kapila, p. 6). . In re S & G Financial Services of South Florida, 451 B.R. 573 (Bankr.S.D.Fla.2011) (citing In re MMH Automotive Grp., 400 B.R. 885 (Bankr.S.D.Fla.2008) (Chapter 7 estates substantively consolidated); Feltman v. Warmus (In re American Way Serv. Corp.), 229 B.R. 496 (Bankr.S.D.Fla.1999) (estates of debtor corporation and debtor subsidiary were substantively consolidated); In re Vecco Constr. Indus., 4 B.R. 407 (Bankr.E.D.Va. 1980) (substantive consolidation of debtor and four debtor subsidiaries)). . Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991). . In re DRW Property Co., 54 B.R. 489, 494 (Bankr.N.D.Tex.1985). See also In re Bonham, 229 F.3d 750, 764 (9th Cir.2000). . Eastgroup, 935 F.2d at 249. . Eastgroup 935 F.2d at 249-50. . Id at n. 14. . In re Reider, 31 F.3d 1102, 1109 (11th Cir.1994); In re Munford, 115 B.R. 390, 398 (Bankr.N.D.Ga.1990) (citing In re Parkway Calabasas, Ltd., 89 B.R. 832, 836-37 (Bankr.C.D.Ca.1988)). . In re Murray Industries, Inc., 119 B.R. 820, 829-30 (Bankr.M.D.Fla.1990); Amended Memorandum Opinion Granting Substantive Consolidation of the Joint Debtors’ Estates (Doc. No. 3489). . In re S & G Financial Services of South Florida, 451 B.R. 573 (Bankr.S.D.Fla.2011). . 11 U.S.C. § 105(a). . In re Munford, 115 B.R. at 397. . Id. at 395 n. 1 (citing In re Flora Mir Candy Corp., 432 F.2d 1060, 1062 (2d Cir. 1970)). See cases involving consolidation of debtors with non-debtors: In re Bonham, 229 F.3d 750, 765 (9th Cir.2000) (citing In re Creditors Serv. Corp., 195 B.R. 680 (Bankr. S.D.Ohio 1996); Matter of New Center Hospital, 187 B.R. 560 (E.D.Mich.1995); In re Munford, Inc., 115 B.R. 390 (Bankr.N.D.Ga. 1990); In re Tureaud, 45 B.R. 658 (Bankr. N.D.Okla.1985), aff'd, 59 B.R. 973 (1986); In re Crabtree, 39 B.R. 718 (Bankr.E.D.Tenn. 1984); In re Bolze, 2009 WL 2232802 (Bankr.E.D.Tenn. July 23, 2009) (failing to draw a distinction between sub con and piercing the corporate veil); In re Augie/Restivo Baking Co., Ltd., 860 F.2d 515 (2nd Cir. 1988); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987)). . See cases declining to substantively consolidate debtors and non-debtors; In re Circle Land and Cattle Corp., 213 B.R. 870, 877 (Bankr.D.Kan.1997) (citing In re Alpha & Omega Realty, Inc., 36 B.R. 416 (Bankr.D.Idaho 1984)); In re DRW Property Co. 82, 54 B.R. 489 (Bankr.N.D.Tex. 1985); In re R.H.N. Realty Corp., 84 B.R. 356 (Bankr.S.D.N.Y.1988); In re Julien Co., 120 B.R. 930 (Bankr. W.D.Tenn.1990); In re Lease-A-Fleet, 141 B.R. 869 (Bankr.E.D.Pa.1992); In re Ira S. Davis, Inc., 1993 WL 384501 (E.D.Pa. September 22, 1993); In re Hamilton, 186 B.R. 991 (Bankr.D.Colo.1995). These decisions question whether bankruptcy courts have subject matter jurisdiction over non-debtor corporations for purposes of substantive consolidation on the basis that it is contrary to the Bankruptcy Code and its limitations for involuntary bankruptcy petitions under § 303. . 11 U.S.C. § 303. . 11 U.S.C. § 303(b). . 11 U.S.C. § 303(b) requires the consensus of at least three claimants. See In re Ira S. Davis, 1993 WL 384501, 7 (E.D.Pa. September 22, 1993); In re Lease-A-Fleet, Inc., 141 B.R. at 873. . 11 U.S.C. § 303(i); In re Ira S. Davis, 1993 WL 384501, 7 (E.D.Pa. September 22, 1993). . In re Ira S. Davis, 1993 WL 384501 at 1. See also In re Lease-A-Fleet, 141 B.R. 869, 873 (Bankr.E.D.Pa. 1992). . In re Hillsborough Holdings Corp., 166 B.R. 461 (Bankr.M.D.Fla. 1994). . Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120 (Fla.1984). See also Anderson v. Abbott, 321 U.S. 349, 362, 64 S.Ct. 531, 88 L.Ed. 793 (1944). . Molinos Valle Del Cibao, 633 F.3d 1330 (11th Cir.2011) (citing the seminal veil piercing case of Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984)). . In re Hillsborough Holdings Corp., 166 B.R. 461 (Bankr.M.D.Fla.1994) (citing Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Mobil Oil Corp. v. Linear Films, Inc., 718 F.Supp. 260 (D.Del.1989)). . Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120 (Fla. 1984). . Id. (citing Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21, 24 (Fla.1955)). It is notable that the Court has already established that two of Pearlman’s three money-making schemes were fraudulent per se because "they fit the classic Ponzi scheme model.” Kapila v. TD Bank, NA, 09-AP-53, Doc. No. 157. . In re Owens Corning, 419 F.3d 195, 211 (3d Cir.2005).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488306/	IN THE SUPREME COURT OF THE STATE OF DELAWARE CRAIG DONALDSON, § § No. 118, 2022 Plaintiff Below, § Appellant, § § Court Below: Superior Court v. § of the State of Delaware § PROGESSIVE ADVANCED § C.A. No. N21C-10-203 INSURANCE COMPANY, § § Defendant Below, § Appellee. § Submitted: October 12, 2022 Decided: November 21, 2022 Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices. ORDER This 21st day of November 2022, the Court having considered this matter on the briefs filed by the parties has determined that the final judgment of the Superior Court should be affirmed on the basis of and for the reasons assigned by the Superior Court in its order dated March 29, 2022. NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED. BY THE COURT: /s/ James T. Vaughn, Jr. Justice	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488311/	DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT D.D., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM, Appellees. No. 4D22-1282 [November 21, 2022] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jose A. Izquierdo, Judge; L.T. Case No. 21-1137DP. D.D., the father, Miami, pro se. Carolyn Schwarz of Children’s Legal Services, Fort Lauderdale, for appellee Department of Children and Families. Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Krystle Cacci, Certified Legal Intern of Statewide Guardian ad Litem Office, Tallahassee, for appellee Guardian Ad Litem. PER CURIAM. Affirmed. WARNER, DAMOORGIAN and CONNER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488303/	Filed 11/18/22 Movrich v. Superior Court CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO TIFFANY MOVRICH, A166552 Petitioner, v. (Alameda County Super. Ct. THE SUPERIOR COURT OF No. 22-CR-004142) ALAMEDA COUNTY, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. BY THE COURT1: In accordance with our prior notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) Petitioner’s right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing, and oral 1 Before Richman, Acting P.J., Miller, J., and Van Aken, J.* * Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 1 argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236–1237, 1240–1241; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240– 1244.) Pursuant to section 170.6 of the Code of Civil Procedure, petitioner filed a written peremptory challenge to Judge C. Don Clay. The record reflects Judge Clay denied the challenge as untimely because the court clerk stamped the challenge as having been filed November 1, 2022, which was fewer than five days before the November 4, 2022 hearing on petitioner’s Penal Code section 995 motion. (Code Civ. Proc. § 170.6, subd. (a)(2) [judge known at least 10 days before hearing must be challenged at least five days before hearing].) Invited to respond to the petition, the Alameda County District Attorney concedes the November 1st file stamp was clerical error and petitioner’s challenge should have been stamped as timely filed on October 28, 2022. Because petitioner’s challenge was timely and in proper form, respondent was required to assign a different judge to hear petitioner’s section 995 motion. (Code Civ. Proc. § 170.6, subd. (a)(4).) Therefore, let a peremptory writ of mandate issue directing respondent superior court to (1) set aside and vacate its November 4, 2022 order denying petitioner’s peremptory challenge of Judge C. Don Clay as untimely and (2) enter a new order granting the peremptory challenge and assigning the above-captioned case to a different judge to rehear petitioner’s section 995 motion. In the interests of justice and to prevent further delays, this decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The remittitur will issue immediately upon the finality 2 of this opinion as to this court, should the parties so stipulate. (Cal. Rules of Court, rules 8.272(c)(1) and 8.490(d).) 3	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488313/	11/21/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0344 No. DA 22-0344 IN THE MATTER OF: A.R. A Youth in Need of Care. ORDER Upon consideration of Appellant K.R.’s motion for extension of time, and good cause appearing, IT IS HEREBY ORDERED that Appellant K.R. is granted an extension of time to and including December 30, 2022, within which to prepare, file, and serve Appellant’s opening brief on appeal. No further extensions of time will be granted. Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court November 21 2022	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488314/	[Cite as Morlatt v. Johnson, 2022-Ohio-4155.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY Kenneth Morlatt, II, et al., : Case No. 21CA1142 Plaintiffs-Appellees, : v. : DECISION AND JUDGMENT ENTRY Steve Johnson, et al., : Defendants-Appellants. : RELEASED 11/17/2022 ______________________________________________________________________ APPEARANCES: Christopher J. Mulvaney, The Mulvaney Firm, LLC, Cincinnati, Ohio, for appellants Steve and Denise Johnson. David E. Grimes, West Union, Ohio, for appellee Kenneth Morlatt II.1 ______________________________________________________________________ Hess, J. {¶1} Steve and Denise Johnson appeal from a judgment of the Adams County Common Pleas Court in favor of Kenneth Morlatt II and Tasha Morlatt on their claims against the Johnsons for invasion of privacy and absolute nuisance. In their first assignment of error, the Johnsons assert that the judgment on the invasion of privacy claim is against the manifest weight of the evidence. In their second assignment of error, the Johnsons assert that the judgment on the absolute nuisance claim is against the manifest weight of the evidence. And in what we will treat as their third assignment of error, the Johnsons assert that the trial court erred when it awarded attorney fees to the 1Attorney Grimes represented Kenneth Morlatt II and Tasha Morlatt at the trial level. On appeal, Attorney Grimes filed, on behalf of Mr. Morlatt, a notice of intent not to file an appellee’s brief. Attorney Grimes did not file a similar notice on behalf of Mrs. Morlatt, and she did not file an appellee’s brief. Adams App. No. 21CA1142 2 Morlatts. For the reasons that follow, we sustain the assignments of error, reverse the trial court’s judgment, and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY {¶2} The Johnsons and Morlatts own abutting properties in Adams County. The Morlatt property is north of the Johnson property. The boundary between the properties was the subject of Adams County case number 2008CVH0225, which Sharon Rivers, the Morlatts’ predecessor-in-interest, initiated against the Johnsons in 2008. Evidently, the Johnsons believed the boundary between the properties was in the same location as a fence north of Stoney Road, a public right-of-way. {¶3} On April 16, 2009, the trial court issued a judgment entry finding that the Rivers property “is connected to Stoney Road as evidenced by the language of each parties’ deed and the existence of a right-of-way,” that the Johnsons failed to establish that the fence line was the property line under the doctrine of acquiescence, but that the “remaining fence west of Stoney Road between the parties’ properties that does not parallel Stoney Road is the boundary line between the two properties.” The court found that Rivers “shall not enter her property at any location where the road right-of-way does not extend beyond the survey pins. Specifically, [Rivers] shall not access her property at the gate located closest to the [Johnsons’] residence.” On June 5, 2009, the Morlatts purchased the Rivers property. {¶4} In September 2019, the Morlatts filed a complaint against the Johnsons, Stephanie Myers (the Johnsons’ daughter), and Justin Myers (the Johnsons’ son-in-law) which contained the following allegations. In 2007 and 2008, the Johnsons made false statements that they owned land north of Stoney Road and that Rivers’s parcel was Adams App. No. 21CA1142 3 landlocked. As a result, Rivers filed a lawsuit, and the trial court rejected the Johnsons’ claims, including that a fence north of Stoney Road was the boundary between the properties of the Johnsons and Rivers. The Morlatts then bought Rivers’s property. In 2019, the Johnsons “renewed” their claims that they owned property north of Stoney Road and drove metal fence posts onto the Morlatt property in the approximate location of the fence line at issue in the prior litigation. The Morlatts removed the posts and tried to return them to the defendants. The defendants “repeatedly threatened and harassed” the Morlatts and their guests. {¶5} The Morlatts alleged a claim for invasion of privacy against all of the defendants asserting that they wrongfully and intentionally intruded, physically and otherwise, into the private activities, solitude, and seclusion of the Morlatts in a highly offensive manner. The Morlatts alleged a claim for malicious prosecution against Mr. Johnson asserting that he had signed an affidavit alleging that Mr. Morlatt deprived him of 12 “metal t-posts,” that the affidavit resulted in criminal mischief charges being filed against Mr. Morlatt, that Mr. Johnson lacked probable cause to institute that criminal prosecution, and that the charges had been dismissed. The Morlatts alleged a claim for trespass against all of the defendants for putting the posts on the Morlatt property without permission. Finally, the Morlatts alleged a claim for absolute nuisance against all of the defendants asserting that they had intentionally and unreasonably made threats to the Morlatts and their guests and made false claims that the Morlatts were trespassing, which caused annoyance and inconvenience to and endangered the comfort, health, and safety of the Morlatts and their guests. Adams App. No. 21CA1142 4 A. Bench Trial and Judgment {¶6} The matter proceeded to a bench trial during which the attorneys orally agreed that on an aerial map of the Morlatt and Johnson properties, which we have included as an appendix to this decision, the solid line running roughly west to east represents the boundary between the Morlatt and Johnson properties. Stoney Road is depicted below this property line. On the map, the eastern part of Stoney Road appears to be parallel to the property line but the western part is not because at a certain point, the road curves southwest. Stoney Road is gravel, but there is a grassy area north of the road/gravel which includes a ditch and is part of the public’s easement. The Johnsons own the property on which the easement is located. The attorneys orally agreed that the “Stoney Road easement runs up against the boundary line between the Morlatt property and the Johnson property.” In response to questioning by the court during opening statements, the defendants’ attorney acknowledged the southern edge of the Morlatt property abuts the northern edge of the Stoney Road easement until the road curves, at which point there is space between the Morlatt property and the easement. However, the attorney took the position that under the 2009 entry, the Morlatts could not access their property from Stoney Road because they had to show their property “doesn’t just abut to the right-of-way easement, but extends into” it. {¶7} Mr. Morlatt testified that in 2008, he and his wife were looking for property for a retreat for their family and began to consider the Rivers property. When they went to view the Rivers property, they had a problem entering it because Mr. Johnson accused them of trespassing. Mr. Morlatt told Rivers that he would not buy her property until the issue was resolved. After the court “settled the dispute,” the Morlatts bought the Rivers Adams App. No. 21CA1142 5 property. Mr. Morlatt testified that they bought the property with the intent of building their “future home” on it, but “that was all stopped when Mr. Johnson said he owns the property. And going through court with Sharon Rivers we wanted to build a home. Well, we didn’t get to build our forever home there so we had a problem with this, so we had to build out in Bethel.” Mr. Morlatt did not elaborate on how anything Mr. Johnson did after the Morlatts bought the property interfered with the Morlatts plans to build a home for themselves on it. {¶8} Mr. Morlatt testified that the Morlatts only went to their property two or three times a year, “just enough to bush hog it down when we got high.” Mr. Morlatt did not testify about any interactions with the Johnsons between the time the Morlatts bought their property in 2009 until 2018, when the Morlatts began to establish a home on the property for their daughter in order to shorten her commute to Shawnee State University. The Morlatts put a mobile home on the property, and Mr. Morlatt made efforts to get electric service on the property. Mr. Morlatt asked Mr. Johnson if he would let Mr. Morlatt get electricity via one of Mr. Johnson’s poles. Mr. Johnson said no. Mr. Morlatt testified that another neighbor agreed to let him “tap off” the neighbor’s pole, but Mr. Johnson “restrained” the electric company from accessing the Morlatt property. The trial court admitted into evidence a letter from the company’s general manager which states that a crew went to the Morlatt property on November 28, 2018 “to begin the construction of [a] primary line for a new service.” Mr. Johnson “confronted” the crew upon their arrival and said “they did not have permission to access the land and that he owned it.” The crew removed their equipment and left. The next day, Mr. Johnson told the company’s operations manager that he “owned the north side of Stoney Road,” and the company Adams App. No. 21CA1142 6 “could not access it to construct the lines for the new service for Mr. Morlatt.” Mr. Morlatt testified that the electric company had to find an alternate route and that he got electricity to his property, but “it took a long while.”2 {¶9} Mr. Morlatt testified that on May 8, 2019, he went to his property to pick a location to construct a driveway to Stoney Road. He knew that he could not place the driveway in the area where Stoney Road is not parallel to his property—which is where the gate referenced in the 2009 entry was—so he picked a spot east of where Stoney Road curves, between two oak trees. Evidently he left the property, and when he returned with a group to construct the driveway, Mr. Morlatt discovered that fence posts had been “driven down through the front” of his property. Mr. Morlatt decided to construct the driveway further east from the spot he had originally selected. The group began to clear and prepare the newly selected spot, and Mr. Morlatt directed his father and another man to remove the posts. {¶10} Mr. Morlatt and another member of the group wore body cameras during the construction, and the Morlatts introduced two videos into evidence. One video depicts Mrs. Myers standing on the road while having a disagreement with members of the group about her belief that there is no access to the Morlatt property from Stoney Road and that the group is trespassing on her father’s property. After that video was taken, Mrs. Myers left the road and contacted law enforcement at the request of Mr. Johnson. 2 Some of the testimony about the incident with the electric company is confusing. However, it appears that the electric company was trying to use the Stoney Road easement to access the Morlatt property to set up electric service to the property from the unnamed neighbor’s pole and was not trying to set up electric service from a pole on the Johnsons’ property or install equipment on the Johnsons’ property without their permission. Adams App. No. 21CA1142 7 {¶11} In the second video, Mrs. Myers has returned to Stoney Road and is yelling at Mr. Morlatt’s father, who is carrying about five posts down the road, and Mrs. Myers says they are “not his property to remove.” Mr. Myers asks for the posts. Mr. Morlatt’s father hands the posts to Mr. Myers, who throws them in the middle of the road and yells at Mr. Morlatt. Mr. Johnson walks down the road and accuses the group of pulling the fence posts out of his property line. A deputy arrives and has a discussion with Mr. Johnson and Mr. and Mrs. Myers. The deputy reviews a document, and Mr. Johnson can be heard saying the “road right-of-way is the property line.” The deputy tells Mr. Morlatt’s group, which is in the process of dumping gravel, to halt the driveway construction until the matter is resolved and says they are going to wait “about 30 minutes.” There is further discussion about whether Mr. Morlatt can access his property in the vicinity of the driveway construction. The video ends before the deputy leaves, but Mr. Morlatt testified that law enforcement concluded the dispute was a civil matter and allowed the construction to recommence, and the driveway was completed. Mr. Morlatt testified that he also had footage of Mrs. Johnson from the driveway incident, which was not introduced at trial, and that she said “if anybody put one shovel in the dirt it would be a big mistake.” {¶12} On May 20, 2019, Mr. Morlatt was charged with criminal mischief based on an affidavit in which Mr. Johnson alleged that “Kenneth Morlatt” had taken 12 metal t- posts which belonged to Mr. Johnson. According to Mr. Morlatt, the only posts his group removed were the ones in the video footage, and they were not exactly on the property line but were rather “going in and out” of it. Evidently the Johnsons did not retrieve the posts from where Mr. Myers threw them on the road. Pursuant to an officer’s instruction, Mr. Morlatt put them in the ditch, but he later moved them to his truck so “the county” Adams App. No. 21CA1142 8 would not “run over them and bush hog and tear their equipment up.” The criminal mischief charge was dismissed on the ground that the case involved “a property line dispute which is a civil matter.” {¶13} Mr. Morlatt testified that the Johnsons and Myerses had made it impossible for him to enjoy his property. Mr. Morlatt had not been there “in a long time” because he did not want problems with the Johnsons and feared additional criminal charges, which could jeopardize the Morlatts’ license to be foster parents. There was still a mobile home on the Morlatt property, but no one was living in it. Mr. Morlatt did not want his daughter living there “with all the problems.” He feared she would be treated like he was during the driveway incident. At one point, Mr. Morlatt implied that the decision to not let his daughter live on the Morlatt property resulted in her discontinuing her education at Shawnee State University. Mr. Morlatt testified that the issues with the Johnsons and Myerses impacted him financially because he has had to pay court costs and attorney fees. {¶14} Mr. Johnson testified that the 2009 entry prohibits the Morlatts from using Stoney Road to access their property because they do “not own property into the right- of-way,” so they must use State Route 73 to access their property. Mr. Johnson admitted that he made contact with an electric crew around November 28, 2018. Mr. Johnson testified that “[i]t was all muddy and they had the place all tore up. The ditch line tore up, the property line, getting those trucks in and out of there [sic].” He pointed the survey pins out to the crew. Stevie Hook, the crew leader, asked Mr. Johnson, “You own to Adams App. No. 21CA1142 9 there?” and Johnson evidently responded, “Yes, I do.”3 Hook told the crew, “Shut it down. Get them trucks out of there [sic].” Hook asked Mr. Johnson whether he cared if the crew left via Stoney Road. Mr. Johnson said, “Absolutely not. I don’t care if you boys bring those trucks back out here.” Later, someone from the electric company told Mr. Johnson they were not going to cross his property line anymore and would “go down to the old man in the trailer below.” On December 28, 2018, an attorney sent Mr. Morlatt a letter on behalf of the Johnsons stating that he was violating a court order by entering his property via Stoney Road and asking him to refrain from doing so. The letter led to further correspondence between the Johnsons’ and Morlatts’ attorneys which is not in evidence. {¶15} Mr. Johnson testified that on the day of the driveway incident, he saw a group bringing in equipment and asked Mrs. Myers to investigate. The Johnsons went to Stoney Road when they saw the group dumping gravel. Mr. Johnson denied initiating a criminal charge against Mr. Morlatt. Mr. Johnson believed the affidavit he signed about the fence posts related to Mr. Morlatt’s father, who has the same name as Mr. Morlatt but does not use the name suffix “II.” Mr. Morlatt’s father is the person Mr. Johnson saw removing his fence posts from the property line. The Johnsons introduced into evidence photographs of a metal post. Mr. Johnson testified that the post was in the same spot one of the removed posts had been, which was one or two inches south of a pin which marks the northern boundary of the easement and the Johnson property. Mr. Johnson testified that the fence at issue in the litigation with Rivers was about a foot and a half north of the pin. Mr. and Mrs. Myers also testified. 3While testifying about the conversation with Hook, Mr. Johnson stated: “And he says: ‘You own to there?’ And he said: ‘Yes, I do.’ ” The testimony suggests Hook answered his own question even though that does not make sense under the circumstances. Thus, it appears there was either an error in the transcript or Mr. Johnson made a misstatement. Adams App. No. 21CA1142 10 {¶16} On August 5, 2020, the trial court issued a judgment entry finding that the “Plaintiff’s [sic] have a legal right to access the easement in question where Plaintiff’s [sic] land meets/adjoins the easement boundary.” The court ruled in favor of the Morlatts on their claims against the Johnsons for invasion of privacy and absolute nuisance. The court ruled against the Morlatts on their remaining claims. The court ordered the Johnsons to pay the Morlatts $5,265.00, i.e., the amount of attorney fees which the court orally told the parties it planned to award at the end of the trial. The court also ordered the Johnsons to pay all court costs. B. Post-Judgment Proceedings {¶17} The docket contains a notation of the following event on August 7, 2020: “COPY OF JUDGMENT ENTRY MAILED TO THE FOLLOWING BY REGULAR U.S. MAIL: R AARON MAUS,” i.e., the defendants’ attorney. However, on July 27, 2021, an affidavit of the clerk of courts was filed in which the clerk averred that “[t]he Adams County Clerk of Courts office [p]rocessed the [August 5, 2020 judgment] entry on August 7th, 2020 and same was noted in the docket,” but “a Deputy Clerk held the mailing and it was not issued from this office until August 17th, 2020.” The trial court scheduled a hearing “in regards to the appropriateness of reopening the appeal period.” {¶18} On August 25, 2021, the court issued an entry stating that it had conducted the hearing, that “[t]here were concerns that the parties were not afforded all appellate rights due to questions about timeliness of mailing an appealable entry from the Clerk of Courts to the parties and counsel involved,” and that the clerk of courts had acknowledged “the inordinate delay in service of notice of the [August 5, 2020] judgment entry.” The court ordered that the appeal period “be renewed for thirty (30) days upon the filing of” its Adams App. No. 21CA1142 11 entry ordering the renewal. The Johnsons filed their notice of appeal from the August 5, 2020 entry on September 24, 2021. II. ASSIGNMENTS OF ERROR {¶19} The Johnsons present two assignments of error: I. The Trial Court’s Decision granting Judgment in favor of Plaintiffs and against Defendants Steve and Denise Johnson on Count I, Invasion of Privacy, was against the manifest weight of the evidence. II. The Trial Court’s Decision Granting Judgment in Favor of Plaintiffs and against Defendants Steve and Denise Johnson on Count 4— Absolute Nuisance, was against the manifest weight of the evidence. {¶20} Under the second assignment, the Johnsons state that one of the issues presented for review is: “The Trial Court Erred in awarding attorney’s fees to Plaintiffs/Appellees.” This issue is beyond the scope of the topic specified in the second assignment of error. Therefore, it should have been characterized as a separate assignment of error, and we will treat it as the Johnsons’ third assignment of error. See Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596, 946 N.E.2d 810, ¶ 8 (4th Dist.) (treating issue within one of appellant’s two assignments of error which bore “no relation to any of the topics specified in that assignment” and “should have been characterized as a separate assignment of error” as the appellant’s third assignment of error). III. TIMELINESS OF THE APPEAL {¶21} Initially, we consider the timeliness of this appeal. “App.R. 4 governs the timing of appeals and must be carefully followed because failure to file a timely notice of appeal under App.R 4(A) is a jurisdictional defect.” In re H.F., 120 Ohio St.3d 499, 2008- Ohio-6810, 900 N.E.2d 607, ¶ 17. App.R. 4(A)(1) states: “Subject to the provisions of Adams App. No. 21CA1142 12 App.R. 4(A)(3), a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.” The Johnsons filed their notice of appeal from the August 5, 2020 entry on September 24, 2021, i.e., more than 30 days after the entry. {¶22} Nothing in the appellate rules authorizes a trial court to enlarge the time for appeal in App.R. 4 based on a delay of clerk’s service; however, App.R. 4(A)(1) is subject to App.R. 4(A)(3), which states: “In a civil case, if the clerk has not completed service of notice of the judgment within the three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service.” Civ.R. 58(B) states: When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A). (Emphasis added.) “ ‘Pursuant to Civ.R. 58(B), the clerk must * * * indicate on the docket the names and addresses of the parties it is serving the judgment upon, the method of service, and the costs associated with the service. When these steps are followed, there is no question whether service was perfected according to rule.’ ” (Emphasis sic.) In re E.S., 4th Dist. Pickaway Nos. 17CA16, 17CA17, 2018-Ohio-1902, ¶ 20, quoting Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio St.3d 542, 2015-Ohio-241, 26 N.E.3d 806, ¶ 3. “[T]he thirty-day time to appeal does not Adams App. No. 21CA1142 13 begin to run until the clerk serves notice and notes service in the appearance docket in accordance with Civ.R. 58(B), as interpreted in Gator Milford.” Id. at ¶ 21. {¶23} In this case, there is a notation in the docket that the clerk sent a copy of a judgment entry—presumably the August 5, 2020 judgment entry—to the Johnsons’ attorney by regular U.S. mail on August 7, 2020. The notation is incomplete because it does not include counsel’s address or the costs associated with the service, and it is false because the clerk averred that a deputy clerk inexplicably “held the mailing,” so the clerk’s office did not in fact mail the August 5, 2020 entry until August 17, 2020. Because the clerk did not complete service of notice of the August 5, 2020 judgment within the three- day period prescribed in Civ.R. 58(B), App.R. 4(A)(3) applies, and the 30-day period in App.R. 4(A)(1) begins to run on the date the clerk actually completes service. {¶24} The clerk has not yet completed service of the August 5, 2020 entry in accordance with Civ.R. 58(B). Although the clerk averred that the entry was mailed on August 17, 2020, the clerk made no notation of service on that date in the docket. Therefore, the 30-day period in App.R. 4(A)(1) has not yet begun to run, and we consider the Johnsons’ appeal to be timely. IV. MANIFEST WEIGHT OF THE EVIDENCE A. Standard of Review {¶25} In reviewing whether a trial court’s decision is against the manifest weight of the evidence, an appellate court weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. Adams App. No. 21CA1142 14 Moreover, when reviewing the evidence under this standard, we are aware that the weight and credibility of the evidence are to be determined by the trier of fact; we thus defer to the trier of fact on these issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. The trier of fact is free [to] believe all, part, or none of any witness's testimony. Ultimately, a reviewing court should find a trial court’s decision is against the manifest weight of the evidence only in the exceptional case in which the evidence weighs heavily against the decision. (Citations omitted.) Wootten v. Culp, 2017-Ohio-665, 85 N.E.3d 198, ¶ 19-21 (4th Dist.). {¶26} App.R. 12(C)(1) provides that when a civil action is tried to the trial court and a majority of judges hearing the appeal find that the judgment or final order rendered by the trial court is against the manifest weight of the evidence and have not found any other prejudicial error of the trial court in any of the particulars assigned and argued in the appellant’s brief, and have not found that the appellee is entitled to judgment or final order as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and either weigh the evidence in the record and render the judgment or final order that the trial court should have rendered on that evidence or remand the case to the trial court for further proceedings. B. Invasion of Privacy {¶27} In their first assignment of error, the Johnsons contend that the judgment against them on the invasion of privacy claim is against the manifest weight of the evidence. The Johnsons assert the Morlatts “failed to establish the necessary legal predicates for any of their claims” because “the core of each claim centered upon three key allegations that are either false, or unproven: 1) that the Defendants/Appellants Johnsons do not own the land upon which the entirety of Johnson/Stoney Road is located, 2) that the Morlatts have proven a road right of way to Stoney Road that abuts the entire southern border of their property, and that 3) via the right of way, they have unrestricted Adams App. No. 21CA1142 15 ability to construct any improvement in the right of way that they choose to do.” [Id.] The Johnsons claim that the Morlatts “made no attempt to establish * * * where their property actually ends and whether they in fact have access to any road right of way that may exist.” [Id. at 14] The Johnsons also claim that the Morlatts presented no evidence “that they ever sought or obtained a permit to make the improvements they started May 8, 2019.” {¶28} In addition, the Johnsons contend that the denial of an electricity easement and the driveway incident do not support an invasion of privacy claim because “[e]very aspect of the matters testified to [was] in the public domain—and in fact occurred in actual public.” The Johnsons also claim they were “entirely within their rights” to question the removal of the posts and driveway construction. They assert that the Morlatts removed posts within the Johnsons’ property line without permission and that the Morlatts did not conduct “a survey to ensure their right of way abutted their property at the location where they placed the driveway,” obtain a permit, or advise the Johnsons of their plan. The Johnsons also assert that Mr. Johnson’s act of swearing out a criminal mischief complaint is not an invasion of privacy. {¶29} “The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), paragraph one of the syllabus. Relevant here, one actionable invasion of the right of privacy is “the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Id. at paragraph two of the syllabus. This “has also been called Adams App. No. 21CA1142 16 ‘intrusion upon seclusion.’ ” Lunsford v. Sterilite of Ohio, L.L.C., 162 Ohio St.3d 231, 2020-Ohio-4193, 165 N.E.3d 245, ¶ 32. The Supreme Court of Ohio has stated: “Intrusion upon seclusion” is based on the “right to be left alone.” People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 630, 895 P.2d 1269 (1995). It is “akin to trespass in that it involves intrusion or prying into the plaintiff’s private affairs.” Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 166, 499 N.E.2d 1291 (10th Dist.1985). “ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ ” Sustin v. Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982), quoting Restatement of the Law 2d, Torts, Section 652B (1977). Whether an invasion of privacy has occurred turns on the particular facts of the case. However, the right to privacy is not absolute. (Citations omitted.) Id. at ¶ 33. {¶30} In this case, there is no evidence that the Johnsons intruded upon the solitude or seclusion of the Morlatts or their private affairs or concerns. The activities intruded into—the electric crew’s work and the driveway construction—were not private. The activities occurred on or within view of a public right-of-way located on the Johnsons’ property. The Morlatts had no reasonable expectation of privacy in the area in which the intrusions occurred. Therefore, we conclude that the judgment on the invasion of privacy claim against the Johnsons is against the manifest weight of the evidence. The trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. We sustain the first assignment of error, and we reverse the trial court’s judgment with respect to the invasion of privacy claim against the Johnsons. C. Absolute Nuisance {¶31} In their second assignment of error, the Johnsons contend that the judgment against them on the absolute nuisance claim is against the manifest weight of the evidence. The Johnsons maintain that there is no evidence they engaged in any Adams App. No. 21CA1142 17 “unlawful/intentional” acts. The Johnsons assert that they had no duty to grant the Morlatts an electricity easement and that Mr. Morlatt admitted on cross-examination that Mr. Johnson did not prevent “ ‘Rural Electric from putting a utility easement, electricity to [the Morlatt] property.’ ” With respect to the driveway incident, the Johnsons assert that the Morlatts removed fence posts which “did not belong to them” and “began dumping gravel and constructing a driveway in land owned by the Johnsons.” The Johnsons argue that “[i]f by reason of a right of way the Morlatts are permitted to construct a driveway from Stoney Road to their property, they neither provided evidence of this right of way or that their property abutted it.” Therefore, the Johnsons maintain that “it was imminently reasonable for [them] to believe the Morlatts were trespassing, or at a minimum, that the Morlatts were making improvements in a right of way without appropriate permits.” The Johnsons also suggest that the Morlatts did not suffer harm which would support a nuisance claim because they “could not and did not prove diminished property value,” “they offered no evidence of physical harm,” and their “purported evidence of ‘emotional injury’ consisted of having to defend their attempt to conduct un-permitted, unfettered improvements on property either owned by the Johnsons, or subject to the road right of way.” {¶32} “ ‘There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ ” Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 712, 622 N.E.2d 1153 (1993), quoting Prosser & Keeton, The Law of Torts, Section 86, 616 (5th Ed.1984). “ ‘ “Nuisance” is a term used to designate the wrongful invasion of a legal right or interest.’ ” Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 17, quoting Taylor v. Cincinnati, 143 Ohio St. 426, Adams App. No. 21CA1142 18 431-432, 55 N.E.2d 724 (1944). “ ‘It comprehends not only the wrongful invasion of the use and enjoyment of property, but also the wrongful invasion of personal legal rights and privileges generally.’ ” Id., quoting Taylor at 432. “However, such right or interest may be invaded by any one of several types of wrongful conduct, and the liability of a defendant, in any case, depends upon the type of his wrongful conduct with respect to the right or interest invaded.” Taylor at 432. {¶33} A private nuisance is “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Brown at 712, citing Restatement of the Law 2d, Torts, Section 821D, at 100 (1979). “Unlike a public nuisance, a private nuisance threatens only one or few persons.” Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008- Ohio-7042, 903 N.E.2d 1284, ¶ 7, citing Taylor at 442. “A private nuisance may be categorized as either an absolute or a qualified nuisance.” Adkins v. Boetcher, 4th Dist. Ross No. 08CA3060, 2010-Ohio-554, ¶ 16. “As distinguished from a qualified nuisance involving negligence, an absolute nuisance consists of either a culpable and intentional act resulting in harm, or an act involving culpable and unlawful conduct causing unintentional harm, or a nonculpable act resulting in accidental harm for which, because of the hazards involved, absolute liability attaches notwithstanding the absence of fault.” Interstate Sash & Door Co. v. Cleveland, 148 Ohio St. 325, 74 N.E.2d 239 (1947), paragraph one of the syllabus. In this case, the Morlatts alleged a claim for absolute nuisance against the Johnsons. {¶34} “For there to be an action for nuisance, the injury must be real, material, and substantial.” Banford at ¶ 17, citing Eller v. Koehler, 68 Ohio St. 51, 55, 67 N.E. 89 (1903). Moreover, “[i]t has long been recognized that a nuisance must materially interfere Adams App. No. 21CA1142 19 with physical comfort.” (Emphasis added.) Id. at ¶ 28. See also id. at ¶ 22, quoting Antonik v. Chamberlain, 81 Ohio App. 465, 476, 78 N.E. 752 (9th Dist.1947), quoting 39 American Jurisprudence, Nuisance, Section 30 (explaining that in Antonik, the court “stated that a private nuisance ‘generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is “an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort” ’ ”). “ ‘ “The discomforts must be physical, not such as depend upon taste or imagination. But whatever is offensive physically to the senses, and by such offensiveness makes life uncomfortable, is a nuisance * * .” ’ ” Banford at ¶ 28, quoting Weishann v. Kemper, 27 Ohio N.P. (N.S.) 269, 278 (1928), quoting Cleveland v. Citizens Gas Light Co., 20 N.J.Eq. 201, 205-206 (1869). {¶35} “Damages for nuisance may include diminution in the value of the property, costs of repairs, loss of use of the property, and compensation for annoyance, discomfort, and inconvenience.” Id. at ¶ 17. However, the Supreme Court of Ohio has stated: “If the existence of a nuisance depends upon ‘an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort,’ then it logically follows that the element of physical discomfort must be present for a plaintiff to have been damaged by the nuisance. The same standard must apply whether evaluating the existence of a nuisance or evidence of the damages caused by the nuisance.” Id. at ¶ 25. Thus, in Banford, the court held that “in order to recover damages for annoyance and discomfort in a nuisance claim, a plaintiff must establish that the nuisance caused physical discomfort,” id. at ¶ 28, Adams App. No. 21CA1142 20 even though the defendant in that case had admitted the existence of a nuisance, id. at ¶ 24. In doing so, the court observed that “ ‘[c]ases supporting recovery for personal discomfort or annoyance involve either excessive noise, dust, smoke, soot, noxious gases, or disagreeable odors as a premise for awarding compensation.’ ” Id. at ¶ 26, quoting Widmer v. Fretti, 95 Ohio App. 7, 18, 116 N.E.2d 728 (6th Dist.1952). “These conditions affect one’s sight, sound, smell, hearing, or touch, which may cause a physical discomfort.” Id. {¶36} In this case, the Morlatts failed to present evidence that they suffered the requisite injury for the existence of a nuisance. There is evidence from which a trier of fact could conclude that the Johnsons’ conduct annoyed and inconvenienced the Morlatts because it resulted in a delay of unspecified duration in the Morlatts getting electric service to their property and a brief delay in the driveway construction. However, there is no evidence that the Johnsons created conditions that were offensive physically to the senses and materially interfered with the Morlatts’ physical comfort. Although there is evidence the Johnsons made Mr. Morlatt uncomfortable using his property and letting his daughter live on it, “it is important to distinguish uncomfortable as an emotion versus being physically uncomfortable.” Scott v. Nameth, 10th Dist. Franklin No. 14AP-630, 2015-Ohio-1104, ¶ 15. “The Supreme Court of Ohio in Banford is clear that ‘[i]t has long been recognized that a nuisance must materially interfere with physical comfort.’ ” Id., quoting Banford at ¶ 28. {¶37} We observe that in Banford, despite holding that a plaintiff must establish a nuisance caused physical discomfort to get damages for annoyance and discomfort, the court later stated that Adams App. No. 21CA1142 21 a person may recover for annoyance and discomfort for a nuisance, including fear and other emotions, without a physical component if the annoyance or discomfort are connected to the person’s loss of use or loss of enjoyment of property. In Stoll v. Parrott & Strawser Properties, Inc., Warren App. No. CA2002-12-133, 2003-Ohio-5717, 2003 WL 22427815, ¶ 25, the jury awarded damages for annoyance and discomfort that the plaintiffs experienced in the use and enjoyment of their property. The plaintiffs testified that they had been unable to leave their property when it flooded due to work in a nearby development. After each flooding incident, they spent two to three days cleaning up debris in their yard. Banford, 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, at ¶ 30. However, Stoll is distinguishable from this case. “In Stoll, the loss of use caused by flooding of the property was a real, physical loss of use.” Scott at ¶ 17, citing Banford at ¶ 30 (noting nuisance “involves a restriction or infringement upon the use and enjoyment of property” and “must cause damages that are real, material, and substantial”). In this case, Mr. Morlatt testified that he discontinued use of his property because he was afraid of having additional negative interactions with the Johnsons and being charged with another crime. There is no physical reason the Morlatts cannot use their property. Fear and emotional discomfort are “not enough under the controlling standard articulated in Banford.” Id. (qualified nuisance claim failed as matter of law where plaintiffs alleged they were uncomfortable in their home and yard because of defendants’ security cameras but failed to allege or demonstrate damages from physical discomfort, failed to allege any physical manifestation of discomfort, and there was no physical reason they could not use their property). {¶38} For the foregoing reasons, we conclude the trial court’s judgment on the absolute nuisance claim against the Johnsons is against the manifest weight of the evidence. The trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. We sustain the second assignment of error, Adams App. No. 21CA1142 22 and we reverse the trial court’s judgment with respect to the absolute nuisance claim against the Johnsons. V. ATTORNEY FEES {¶39} In what we are treating as their third assignment of error, the Johnsons contend that the trial court erred when it awarded the Morlatts attorney fees. The Johnsons assert that “Ohio follows the ‘American Rule,’ which provides that a prevailing party in a civil action may not generally recover its attorney fees as part of the ‘costs of litigation.’ ” The Johnsons assert no exception to the rule applies in this case. {¶40} “Ohio courts generally follow the ‘American rule’ with respect to attorney fees: each party is responsible for its own attorney fees.” Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 9. “[T]here are exceptions to this rule,” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7, but they “must be narrowly construed,” Dolan v. Glouster, 4th Dist. Athens Nos. 11CA18, 12CA1, 11CA19, 12CA6, 11CA33, 2014-Ohio-2017, ¶ 113. “Attorney fees may be awarded when a statute or an enforceable contract specifically provides for the losing party to pay the prevailing party’s attorney fees, * * or when the prevailing party demonstrates bad faith on the part of the unsuccessful litigant * * *.” Wilborn at ¶ 7. Another exception “allows an award of attorney fees to the prevailing party as an element of compensatory damages when the [finder of fact] finds that punitive damages are warranted.” Phoenix at ¶ 9. “[W]here a case presents a legal issue regarding the availability of attorney fees, our review is de novo.” Shamrock v. Cobra Resources, LLC, 2022-Ohio-1998, 191 N.E.3d 1197, ¶ 114 (11th Adams App. No. 21CA1142 23 Dist.), citing 2-J Supply, Inc. v. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9 (reviewing de novo “the legal issue of whether the trial court erred in refusing to apply a rule of law concerning the availability of attorney’s fees). {¶41} The trial court did not articulate the basis for the attorney fee award in its August 5, 2020 entry. The Morlatts did not assert any statutory basis for such an award, there is no evidence of a contract between the Morlatts and Johnsons, and the trial court did not award any punitive damages. Even if the trial court concluded that the Morlatts demonstrated bad faith on the part of the Johnsons, in light of our rulings on the first and second assignment of error, the Morlatts are no longer the prevailing party with respect to any of their claims against the Johnsons. See generally Black’s Law Dictionary (11th Ed.2019) (defining a “prevailing party” as one “in whose favor a judgment is rendered, regardless of the amount of damages awarded”). Therefore, we cannot discern any basis for deviation from the American Rule in this case, conclude the trial court erred when it awarded attorney fees, and sustain the third assignment of error. VI. CONCLUSION {¶42} For the foregoing reasons, we sustain the assignments of error, reverse the trial court’s judgment, and remand for further proceedings consistent with this opinion. JUDGMENT REVERSED AND CAUSE REMANDED. Adams App. No. 21CA1142 24 APPENDIX Adams App. No. 21CA1142 25 JUDGMENT ENTRY It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellees shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion. For the Court BY: ________________________ Michael D. Hess, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494490/	Order Denying Debtor’s Late-Filed Motion to Continue the Automatic Stay [ECF No. SI] JOHN K. OLSON, Bankruptcy Judge. The automatic stay terminated in this case thirty days post-petition by operation of 11 U.S.C. § 362(c)(3)(A). The Debtor did not file a § 362(c)(3)(B) motion to continue the stay until ninety-four days post-petition. The Debtor now asks this court to use its equitable power under § 105(a) to impose the automatic stay nunc pro 912tunc to the petition date. For the following reasons, the motion is denied. Background The Debtor filed a pro se Chapter 13 petition on October 8, 2010 which initiated Case No. 10-41685-RBR. That case was dismissed on November 5, 2010 with prejudice to refiling for 180 days because the Debtor did not file complete Chapter 13 schedules, a Chapter 13 plan, a statement of current monthly income, payment advices, or a credit counseling certificate. On May 20, 2011, after the expiration of the first ease’s 180-day prejudice period, the Debtor filed a second pro se Chapter 13 petition which initiated this case. Because the Debtor’s first case was pending and dismissed during the year preceding this second case, the automatic stay of 11 U.S.C. § 362(a) went into effect on May 20, 2011 but, pursuant to § 362(c)(3)(A), was scheduled to expire thirty days thereafter. The Debtor did not file a motion to extend the automatic stay under § 362(c)(3)(B) and the stay expired on June 19, 2011. On August 2, 2011, the Debtor retained counsel who filed a § 362(c)(3)(B) motion to continue the automatic stay on August 22, 2011. The motion was filed ninety-four days post-petition, twenty days after counsel was retained. Subsection (c)(3)(B) requires that such motions be noticed and heard within the first thirty days of case. For purposes of this motion, because the Debtor’s first case was dismissed for failure to file substantial documentation, this second case is presumptively not filed in good faith pursuant to § 362(c)(3)(C)(i)(II)(aa). The Debtor has not offered clear and convincing evidence to rebut this presumption under § 362(c)(3)(C). Discussion Bankruptcy Code § 362(a) creates a stay for “a broad range of actions against the debtor, property of the debtor, or property of the estate” when a bankruptcy petition is filed under 11 U.S.C. § 301, § 302, or § 303. In re Barr, 318 B.R. 592 (Bankr.M.D.Fla.2004). “It is well established that the stay created by § 362(a) is self-executing, or ‘automatic,’ upon the filing of the petition, and actions taken in violation of the stay are generally considered to be void.” In re Barr, 318 B.R. 592 (Bankr.M.D.Fla.2004). However, when a debtor has had a prior bankruptcy case dismissed within a year of a subsequent bankruptcy filing, a different result follows: (c) Except as provided in subsections (d), (e), (f), and (h) of this section— (3) if a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refilled under a chapter other than chapter 7 after dismissal under section 707(b)— (A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case; (B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest 913demonstrates that the filing of the later case is in good faith as to the creditors to be stayed ...” 11 U.S.C. § 362(c)(3) (emphasis added). The automatic stay is only effective for the first thirty days of the debtor’s second bankruptcy case when the first case was pending and dismissed within the previous year. To continue the stay beyond that initial 30-day period, a debtor must: “(1) file a motion for continuation; (2) there must be notice and a hearing on debtor’s motion; (3) the hearing must be completed within thirty days of the date of the petition; and (4) debtor must prove that the filing of the new case is in good faith.” In re Franzese, 2007 WL 2083650, 2-3, 2007 Bankr.LEXIS 2490, 5-6 (Bankr.S.D.Fla. July 19, 2007) (citing In re Garrett, 357 B.R. 128, 130 (Bankr.C.D.Ill.2006)); see also In re Toro-Arcila, 334 B.R. 224, 225-226 (Bankr.S.D.Tex.2005). “If the notice and hearing are not completed within this [30-day] period, the automatic stay terminates by operation of law pursuant to § 362(c)(3)(A).” Garrett, 357 B.R. at 131; see also Toro-Arcila, 334 B.R. at 226 (“Relief under § 362(c)(3)(B) may only be granted after notice and a hearing completed before the expiration of the 30-day period.”). Because termination of the automatic stay on the 30th day of the second case could subject the bankruptcy estate to irreparable injury, some courts have used 11 U.S.C. § 105 to continue the stay even when a properly noticed hearing did not occur within the 30-day period of § 362(c)(3)(B). See Whitaker v. Baxter (In re Whitaker), 341 B.R. 336, 348 (Bankr.S.D.Ga.2006). In Whitaker, the debtor’s § 362(c)(3)(B) motion was not filed timely due to “inadvertence of counsel” and the stay terminated under subsection (c)(3)(A). The debtor’s assets became susceptible to creditor action, and the Whitaker court concluded that the balance of hardship weighed in the debtor’s favor. Because the debtor’s plan provided for a 100% dividend to unsecured creditors, and because the automatic stay was needed to ensure orderly repayment, the court relied on § 105(a) in reimpose the automatic stay as to all creditors. Id. at 341, 348 (“before they filed this [chapter 13] case, both debtors established steady employment [and] because the debtors’ plan provides a 100% dividend to unsecured creditors, imposing the stay will permit the orderly payment of claims in full”). Utilizing the Whitaker analysis, Judge Ray identified three factors to address when determining whether § 105(a) may be properly used to override stay termination under § 362(c)(3)(A). See In re Franzese, 2007 WL 2083650, at 2-3, 2007 Bankr.LEXIS 2490, at 5-6 (Bankr. S.D.Fla. July 19, 2007) (citing Whitaker, 341 B.R. at 347). The factors are: (1) whether the filing by the debtor was in good faith; (2) the lack of objection by creditors; and (3) whether “... the inability to obtain a hearing date within the thirty day time frame was caused by the inadvertence of counsel.” Id. (citing Whitaker, 341 B.R. at 347). The Franzese order agreed with Whitaker’s holding that “making a party suffer because of the inadvertence of counsel is inequitable.” Id. at 3, 2007 Bankr.LEXIS 2490, at 7. Applying the Whitaker/Franzese factor analysis to the facts of this case, the late-filed motion to continue the automatic stay cannot be granted. The Debtor’s first case was dismissed for failure to file substantial documentation such that this second case is presumptively not filed in good faith under § 362(c)(3)(C)(i)(II)(aa). The Debtor has not offered clear and convincing evidence to rebut this presumption under § 362(c)(3)(C), and the first Whitaker/Franzese factor accordingly weighs in favor of denying the motion. The second factor also weighs in favor of denying the *914motion because this matter did not proceed on the Chapter 13 consent calendar without objection. And finally, the failure to obtain a hearing date within the first thirty days of this case was not due to the inadvertence of counsel. The Debtor did not hire counsel until long after the automatic stay terminated. The § 362(c)(3)(B) motion was filed ninety-four days post-petition and twenty days after counsel was retained. Subsection (c)(3)(B) requires that such motions be noticed and heard within the first thirty days of the second case. It appears that there is inadvertence of counsel here (by not filing the motion for twenty days after being retained), but counsels mistake is far overshadowed by the mistakes of his client. Congressional policy has determined that those mistakes are fatal. Conclusion While § 105(a) has been used by bankruptcy courts to ameliorate the harsh policy enacted in § 362(c)(3)(A), restraint must be shown when applying that equitable power. See In re Scrivner, 535 F.3d 1258, 1261 (10th Cir.2008). In Whitaker, Judge Dalis explained that “I do not employ § 105 lightly, but only to ‘prevent an abuse of process’ that is impermissibly severe.” Whitaker, 341 B.R. at 338. Applying the three Whitaker/Franzese factors to the facts of this case, the late-filed motion for continuation of the automatic stay cannot be granted. It is accordingly ORDERED that the Debtor’s late-filed motion to continue the automatic stay [ECF No. 31] is DENIED.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494491/	ORDER JOSEPH M. SCOTT, JR, Bankruptcy Judge. This matter is before the Court on the Defendant United Bank & Trust Compa3ny’s Motion to Alter and Amend [Doc. 52] the Court’s Memorandum Opinion [Doc. 50] and Order Overruling United Bank & Trust Company’s Motion for Summary Judgment, Granting Debtors’ Motion for Summary Judgment and Overruling Bank of America’s Motion for Summary Judgment [Doc. 51], the Court having considered the arguments of counsel and being otherwise sufficiently advised, finds as follows: Facts and Procedural History On December 17, 2010, this Court entered a Memorandum Opinion and Order denying United Bank and Trust Company’s (“United Bank”) and Bank of America’s Motion for Summary Judgment and granting the Debtors’ Motion for Summary Judgment. The Court found pursuant to Schlarman v. Chase Home Finance, LLC (In re Padgitt), 2008 WL 4191517, 2008 Bankr.LEXIS 3063 (Bankr.E.D.Ky. September 11, 2008) that Bank of America’s mortgage is not valid as to the Debtor John Gilchrist. The Court also concluded the following: Although John Gilchrist is not subject to Bank of America’s mortgage, Bank of America’s mortgage is not invalid as against the residence. Mary Gilchrist, while not a deeded owner of the property, does have a present dower interest valued at $14,648.60. The parties do not dispute that Mary Gilchrist is properly identified as a “Borrower.” Therefore, Bank of America’s mortgage is valid as against Mary Gilchrist’s interest. Because Bank of America’s mortgage is still valid as to Mary Gilchrist’s dower interest, Bank of America’s lien must be considered in the section 522(f) analysis. The sum of (1) United Bank’s judgment lien ($150,000.00); (2) all other liens on the property, or Bank of America’s lien ($228,000.00); and (3) the Debtors’ exemptions (collectively $20,150.00), a total of $385,150.00, exceeds the value of the Debtors’ interest in the property absent any liens, or $215,000.00. Because United Bank’s judgment lien of $150,000.00 impairs the Debtors’ exemptions, the judgment lien is avoided pursuant to 11 U.S.C. § 522(f). On December 23, 2010, United Bank filed its Motion to Alter and Amend. United Bank stated that while it agrees with the Court’s conclusions that Bank of America’s mortgage is invalid as to John Gilchrist’s property interest, it disagrees with the Court’s finding regarding the effect of Mary Gilchrist’s inchoate dower interest as it relates to Mrs. Gilchrist’s homestead exemption and the 11 U.S.C. § 522(f) analysis in the avoidance of United Bank’s lien. The same day, United Bank also filed in the Debtor’s Main Bankruptcy Case, Case No. 09-52235, an objection to Mary Gilchrist’s claimed homestead exemption based on her inchoate dower interest [Doc. 33 in the Main Case].1 In its objection, United Bank argued that an inchoate dower interest is not a present property interest that may be valued or may support a claimed homestead exemption pursuant to section 522(d)(1). This objection is incor4porated by reference in United Bank’s Motion to Alter and Amend. Bank of America and the Debtors have responded arguing that Mary Gilchrist may mortgage her inchoate dower interest and Bank of America’s lien was properly considered as part of the section 522(f) analysis.2 Analysis A. Bankruptcy Rule 9023 United Bank does not cite a basis for its Motion to Alter and Amend. The Court therefore presumes that United Bank brings its motion pursuant to Fed.R.Civ.P. 59(e), made applicable to this proceeding by Bankruptcy Rule 9023. A motion for reconsideration under Rule 59(e) is proper when the court has “patently misunderstood a party, or has made a decision outside the adversarial issues presented, or has made a mistake of reasoning but not of apprehension.” See E.E.O.C. v. Foothills Title Guar. Co., 1991 WL 61012, 3 (D.Colo.1991) (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)). See also GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). Reconsideration is not permitted (a) to assert new legal theories that could have been raised before the initial hearing; (b) to present new facts which could have been presented before the initial hearing; or (c) to rehash the same arguments made the first time or simply express an opinion that the court was wrong. In re Greco, 113 B.R. 658, 665 (D.Haw.1990), aff'd, 952 F.2d 406 (9th Cir.1991). B. Inchoate Dower Interest United Bank moves to alter and amend the Court’s Memorandum Opinion and Summary Judgment Order on the basis that the Court has made a mistake in its reasoning. United Bank asserts that the Court erroneously concluded that Mary Gilchrist’s inchoate dower interest has any bearing on the issue of whether United Bank’s judgment hen is avoidable for impairing the Debtors’ exemptions pursuant to 11 U.S.C. § 522(f). Specifically, United Bank argues that Mrs. Gilchrist’s inchoate dower interest in the property deeded solely in her husband’s name is not property for which an exemption may be claimed or to which a lien may attach. Thus, United Bank concludes that Bank of America’s mortgage lien cannot attach to Mary Gilchrist’s inchoate dower interest and the Debtors’ exemptions are not impaired by United Bank’s $150,000.00 judgment lien pursuant to 11 U.S.C. § 522(f). United Bank primarily relies on First Union Home Equity Bank v. Bedford Loan and Deposit Bank, 111 S.W.3d 892 (Ky.App.2003) in support its argument. In First Union, Sharron Wheatley purchased real property while married to Tony Wheatley. The property was deeded in her name alone. To secure payment, Sharron simultaneously executed a mortgage on the property to the lender, First Union. Tony Wheatley did not sign the mortgage, although both he and Sharron signed the promissory note secured by the mortgage. Id. at 893. Subsequently, another lender, Bedford, acquired a mortgage on the same property to secure a loan to Sharron and Tony Wheatley. The mortgage was signed by both Sharron and Tony and properly recorded. The Wheatleys later defaulted on 5both loans and First Union filed suit to collect on its note and have its mortgage adjudged as a valid first lien on the property. Bedford filed a cross-claim and maintained that its mortgage, although recorded after First Union’s mortgage, had equal priority because First Union never obtained a mortgage on Tony’s interest. Id. The trial court agreed with Bedford and First Union appealed. The Kentucky Court of Appeals reversed and held that First Union, as the purchase money mortgagee, had full interest in the property and thus priority over the second mortgage pursuant to K.R.S. § 392.040(1).3 Id. at 894. The court in First Union further noted that even in the absence of the exceptions to dower/curtesy interests in K.R.S. § 392.040(1), First Union would still have had mortgage priority in this case because Tony Wheatley had no present interest in the subject property at the time the mortgage was executed and the property was foreclosed upon. Although Tony Wheat-ley had a vested curtesy interest in the property at that time, a dower/curtesy interest, as an inchoate right, is merely an expectancy of an interest or a future interest contingent upon him surviving Sharron.... Hence, since the property was in Sharron’s name only and she was alive at the time of the foreclosure, First Union had a mortgage on the full interest in the property. Id. See also Whisman v. Whisman, 2009 WL 2971552 (Ky.App. Sept. 18, 2009) (unpublished) (“Our courts have long recognized that a spouse’s right of action for a dower or curtesy interest does not accrue until the death of the other spouse with the surviving spouse ‘not entitled to any interest until the happening of that event[.]’ ”); Tucker v. Grace Enterprises of Kentucky, LLC, 2004 WL 2566518 (Ky.App. Nov. 12, 2004) (unpublished) (holding a judgment lien does not attach to a husband’s curtesy interest in real estate). United Bank concludes that pursuant to Kentucky law, as illustrated by First Union, Whisman, and Tucker, Mary Gilchrist has no interest in real property to which a mortgage can attach, nor may it serve as the basis of a claimed homestead exemption, because dower does not come into being until the death of the spouse. Moreover, according to United Bank, if the homestead exemption may be applied to Mary Gilchrist’s inchoate right of dower, its value must be zero. The Court agrees with United Bank that its holding that Bank of America’s mortgage attaches to Mary Gilchrist’s inchoate dower interest is erroneous. Property interests in bankruptcy are defined under appropriate state law. See, e.g., In re Omegas Group, Inc., 16 F.3d 1443 (6th Cir.1994) (quoting In re Tenvilliger’s Catering Plus, Inc., 911 F.2d 1168, 1172 (6th Cir.1990)). While Kentucky has not directly addressed whether a spouse may mortgage his or her inchoate dower or curtesy interest alone, Kentucky law is clear that inchoate dower is treated as a mere expectancy. Furthermore, the 6court’s discussion of inchoate dower in First Union strongly suggests that a spouse has no present interest in property to which a lien can attach where that interest is merely an inchoate dower right. First Union, 111 S.W.3d at 894 (“[S]ince the property was in [the wife’s] name only and she was alive at the time of foreclosure, First Union had a mortgage on the full interest in the property.”). Bank of America argues that the Court was correct in holding that Mary Gilchrist’s inchoate dower interest is subject to its lien. Bank of America cites to Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 804 (6th Cir. BAF 2007) (applying Ohio law) and Strickfaden v. Park Place Mortg. Corp., 2008 WL 3540079, 5, 2008 U.S. Dist. LEXIS 61592, 13-14 (E.D.Mich.2008) (applying Michigan law) for support that an inchoate dower interest is an alienable interest that may be conveyed as security for a loan. Bank of America argues that Ohio law, the basis of the Sixth Circuit B.A.P.’s decision in Morgeson, is similar to Kentucky law in that both states view an inchoate dower right as a vested, contingent, and inchoate interest that does not arise until the spouse passes. See Reigles v. Urban, 2010 WL 3666976, 4, 2010 Ohio App. LEXIS 3772, 11 (Ohio Ct.App.2010) (vested dower was “inchoate and contingent” and would “not become an actual property interest unless ... the decedent dies ... ”); United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F.Supp. 40, 40-41 (W.D.Ky.1943) (in Kentucky, a dower interest is a vested, inchoate right); First Union, 111 S.W.3d at 894.4 While the Court agrees that Kentucky and Ohio treat inchoate dower similarly, the Court disagrees with Bank of America that Kentucky courts would hold that an inchoate dower interest may be subject to a lien. On the contrary, the case law cited by United Bank suggests that Kentucky courts would hold just the opposite. Furthermore, the Sixth Circuit has held that a wife’s inchoate right of dower in her husband’s real estate cannot be separated from the principal estate. See Pugh v. Lingafelter (In re Lingafelter), 181 F. 24 (6th Cir.1910) (applying Ohio state law). The Court in Lingafelter held that where a mortgage, given by the husband to secure a debt in which the wife joins for the purpose of releasing her dower interest, is set aside as a preferential transfer and the property restored to its general estate, such mortgage is inoperative to release or bar the wife’s dower right and cannot be enforced by the mortgagee as a conveyance of her dower interest in the property. Id. at 25-26. Kentucky is in accord. Lowry v. Fisher, 65 Ky. 70, 1867 WL 3957, 5 (1867). See also 2 Tiffany Real Prop. § 516 (2010) (“If a deed by the husband, in which the wife joins for the purpose of releasing dower, is set aside as being intended to defraud the husband’s creditors or for any other reason, the wife’s right of dower is revived, since, in such case, there is no one having title, in favor of whom the release can operate”). United Bank’s position that inchoate dower cannot be mortgaged is also consistent with the position taken by other recognized legal authorities. See 2 Tiffany Real Prop. § 533 (2010) (“Until the death of the husband, the wife has merely a contingent right or interest, known as ‘dower inchoate.’ She has no estate in the land, even after the husband’s death, until the ‘assignment’ of dower and a fortiori 7she has no estate before his death, nor has she a vested interest in land, legal or equitable, liable to levy and execution ... Inchoate dower is not transferable by the wife, by conveyance or assignment, to one having no interest in the land, even though the husband join in the transfer, but she may release such right to one having an estate in the land, at least if the estate is freehold in character, or to one who obtains an estate by the same instrument by which the release is effected.”); 25 Am. Jue. 2d Dower and Curtesy § 19 (2010) (“Under the common law, dower is inchoate and curtesy is either initiate or inchoate during the marriage. While both spouses are alive, dower interests are inchoate. Thus, a widow’s right of dower, even in real property, remains only an inchoate right until the husband’s death. Although inchoate dower is contingent and uncertain, it possesses the elements of property, and it is a sufficient basis for the wife’s right to maintain an action to protect her future right of action. Indeed, the inchoate right of dower is considered present, fixed, vested, and valuable.”); 28 C.J.S. Dower and Curtesy § 54 (2010) (“It is generally held that the inchoate right of dower is not an estate, or title, or interest in land, and that it confers upon the wife no right of possession or control of the land to which it attaches, but instead is rather a contingent claim or right, or chose of action, or expectancy, which will ripen into an estate in case the husband dies first, but which will be lost if she dies before the husband. The right is nevertheless regarded, at least under some authorities, as fixed and vested in some senses, and which the courts will protect.”). See also 2 Tiffany Real PROP. § 500 (2010) (recognizing a “fallacy” that “the wife has ... an estate or interest in the husband’s lands in his lifetime as she can mortgage as her separate property ... ”). These authorities suggest that while Mary Gilchrist’s inchoate dower interest is vested in some instances, most notably to protect her future right of interest in the property, her inchoate right does not ripen into a property interest that may be transferred, conveyed, assigned, and therefore mortgaged, until the death of her husband. Although the Court agrees with United Bank that its previous ruling is erroneous as it relates to Bank of America’s mortgage lien on Mary Gilchrist’s inchoate dower interest, the Court disagrees with United Bank’s conclusion that Mary Gilchrist’s inchoate dower interest may not serve as the basis of her claimed homestead exemption. While property interests are defined by state law, federal bankruptcy law determines whether an inchoate dower interest is property of the estate. See In re Omegas Group, Inc., 16 F.3d at 1450. A debtor’s inchoate dower interest is considered property of the bankruptcy estate pursuant to 11 U.S.C. § 541(a). See 5 CollieR ON Bankruptcy § 541.04[5] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (“The inchoate and vested rights of a spouse, recognized at common law or created by statute, in the legal and equitable estates possessed by the other spouse during marriage or at the time of death fall within the scope of section 541(a)(1)”). See also In re Rudicil, 343 B.R. 181 (Bankr.S.D.Ohio 2006). This is true regardless of whether an inchoate dower right is transferable or may be reached by creditors. See In re Bowling, 314 B.R. 127 (Bankr.S.D.Ohio 2004). Further, pursuant to section 522(d)(1), a debtor may exempt his or her “interest” in real property. 11 U.S.C. § 522(d)(1). “Interest” includes the present value of a debtor’s inchoate dower interest, limited only by the equity held in 8the property. See In re Miller, 151 B.R. 800, 804 (Bankr.N.D.Ohio 1992). The record reflects that Mary Gilchrist’s inchoate dower interest is valued at $14,648.60 [Doc. 49], Pursuant to 11 U.S.C. § 522(d)(1), Mary Gilchrist is entitled to claim an allowable homestead exemption of $10,075.00, which is less than the present value of her current inchoate dower interest. C. 11 U.S.C. § 522(f) Because Bank of America’s mortgage cannot attach to Mary Gilchrist’s inchoate dower interest under Kentucky law, Bank of America has no lien on the residence that should be considered in the section 522(f) calculation to determine if United Bank’s judgment lien impairs the Debtors’ exemptions. Therefore, the Court must recalculate to determine if the Debtors’ exemptions are impaired. United Bank argues that the section 522(f) calculations should be bifurcated as between the Debtors. Pursuant to section 522(m), section 522 “shall apply separately with respect to each debtor in a joint case.” 11 U.S.C. § 522(m) (2010). The plain language of section 522(f) in its reference to “the debtor” in the singular echoes this statement. 11 U.S.C. § 522(f). Therefore, the calculations as between the co-debtors should be applied separately based on their interest in the property. There is no dispute that the residence at issue is deeded only to John Gilchrist. Mary Gilchrist’s inchoate dower interest in the property is only contingent upon his death. Therefore, in comparing the sum of (1) United Bank’s judgment lien ($150,000.00); (2) all other liens on the property ($0); and (3) John Gilchrist’s exemption ($10,075.00), a total of $160,075.00, and the value of John’s interest in the property absent any liens, or $215,000.00, it is clear that John Gilchrist’s exemption is not impaired by United Bank’s lien. Thus, United Bank’s judgement lien may not be avoided as to John. The section 522(f) calculation to determine if Mary Gilchrist’s exemption is impaired results in a different outcome. The sum of (1) United Bank’s judgment lien ($150,000.00); (2) all other liens on the property ($0); and (3) Mary Gilchrist’s exemption ($10,075.00), a total of $160,075.00, does exceed the value of Mary’s interest in the residence absent any liens, or $0, since Mary does not have an alienable property interest in the residence until John’s death. Thus, United Bank’s judicial lien does impair Mary’s exemption and may be avoided pursuant to section 522(f) as to Mary. Conclusion In conformity with the foregoing, IT IS HEREBY ORDERED that United Bank & Trust Company’s Motion to Alter and Amend is GRANTED. The Court’s Memorandum Opinion [Doc. 50] and Order [Doc. 51] shall be amended to reflect the findings set forth in this opinion and that the Debtor’s Motion for Summary Judgment [Doc. 32] and Bank of America’s Motion for Summary Judgment [Doc. 27] is DENIED and United Bank & Trust Company’s Motion for Summary Judgment [Doc. 30] is GRANTED. . Mary Gilchrist initially claimed a homestead exemption pursuant to 11 U.S.C. § 522(d)(1) but listed its value as $0. The residence was listed on Schedule A and valued at $215,000.00. On November 24, 2010, the Debtors amended their Schedule C to claim homestead exemptions of $10,075.00 each based on John Gilchrist's fee simple interest and Mary Gilchrist's inchoate dower interest [Doc. 32 of Main Case]. Pursuant to Bankruptcy Rule 4003(b), any party in interest had 30 days in which to object to the Debtors' amendment to Schedule C. While United Bank filed its objection after entry of the Court’s Memorandum Opinion and Order in the adversary proceeding herein, United Bank timely filed its objection to the amended exemptions in the main case. . Bank of America has reserved its right in footnote 1 of its Response [Doc. 54] and in oral argument to argue at a later time that the Court's decision to invalidate Bank of America's mortgage as to John Gilchrist’s interest was incorrect. . Although not raised in its pleadings, Bank of America argued at oral argument that Michigan’s dower statute is also similar.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494492/	MEMORANDUM OPINION AND ORDER JOSEPH M. SCOTT, JR., Bankruptcy Judge. The issue before the Court is whether the Debtor’s Chapter 7 bankruptcy should be dismissed pursuant to 11 U.S.C. § 707(b)(3)(B) for abuse. Where the Debtor did not file bankruptcy based on unforeseeable or catastrophic events, has a stable and relatively high income that includes an ability to eventually fund a Chapter 13 plan with money currently used to make 401(k) loan repayments, and thus has the ability to repay his creditors through a Chapter 13 plan, the Debtor’s case should be dismissed pursuant to § 707(b)(3)(B) because the totality of the circumstances of the Debtor’s financial situation demonstrates abuse. Facts The following facts are undisputed. The Debtor filed for Chapter 7 relief on September 29, 2010. He listed no secured debt and $103,291.59 in total unsecured debt. The Debtor’s debts are primarily consumer debts. The Debtor further listed- his monthly gross income, including overtime pay, on Schedule I as $5,202.53 per month. This amount is reduced by a payroll deduction that includes a 401(k) contribution and 401(k) loan repayment in the total amount of $1,485.96. The Debtor’s 401(k) loan was borrowed on July 24, 2008 in the amount of $22,715.55 and is scheduled to be repaid on August 21, 2013. The loan payment amount is $356.61 every two weeks. With the payroll deduction in the amount of $1,485.97, the Debtor is left with a combined average monthly income of $2,741.71. The Debtor listed average monthly expenses on Schedule J as $2,775.00, leaving the Debtor negative disposable income in the amount of -$33.29. The Debtor’s case was dismissed on October 18, 2010, but the dismissal was set aside on November 15, 2010. On November 18, 2010, the United States Trustee filed a statement that the case was presumptively abusive pursuant to 11 U.S.C. § 704(b). On December 16, 2010, the United States Trustee filed a Motion to Dismiss 11the Debtor’s case for abuse. The United States Trustee brought the motion based on two grounds. First, the United States Trustee argues that the Debtor’s current monthly income reduced by allowed deductions and multiplied by sixty, exceeds $11,725 and the case should be dismissed pursuant to § 707(b)(2). The United States Trustee also argues the case should be dismissed because the totality of the circumstances of the Debtor’s financial situation demonstrates abuse pursuant to § 707(b)(3)(B). The United States Trustee and the Debtor resolved the United States Trustee’s Motion to Dismiss pursuant to § 707(b)(2) by the filing of an amended means test by the Debtor, which included information inadvertently not included in the original means test. Unable to resolve the United States Trustee’s Motion to Dismiss pursuant to § 707(b)(3)(B), the parties have stipulated that there are no disputed issues of fact, filed briefs on the issue of abuse pursuant to § 707(b)(3)(B), and submitted the matter in lieu of an evidentiary hearing for the Court’s determination. Discussion Section 707(b)(3) provides that it is “an abuse of the provisions of this chapter” if (a) a Debtor filed the petition in bad faith or (b) the totality of the circumstances of the Debtor’s financial situation demonstrates abuse. 11 U.S.C. § 707(b)(3). The United States Trustee makes no allegations that the Debtor filed his petition in bad faith but rather seeks dismissal of the Debtor’s Chapter 7 bankruptcy because the totality of the circumstances constitute “abuse” within the meaning of § 707(b)(3)(B). In the Sixth Circuit, abuse may be predicated on either lack of honesty or want of need. The facts relevant to determining whether a debtor is “needy” include a debtor’s ability to repay his debts out of future earnings. This factor alone may be sufficient to warrant dismissal. See Behlke v. Eisen (In re Behlke), 358 F.3d 429, 434 (6th Cir.2004) (citing In re Krohn, 886 F.2d 123 (6th Cir.1989)). The United States Trustee has the burden of proof by a preponderance of the evidence. In re Summer, 255 B.R. 555, 563 (Bankr.S.D.Ohio 2000). One way to determine an ability to pay is to evaluate whether there is sufficient disposable income to fund a Chapter 13 plan. In re Behlke, 358 F.3d at 435. This is the crux of the United States Trustee’s argument for dismissal of the Debtor’s case. The United States Trustee argues that the Debtor’s 401 (k) contributions and the amount used to pay the Debtor’s 401(k) loan repayments could be committed to fund a Chapter 13 plan. According to the United States Trustee, if the Debtor ceased contributing to his 401(k) plan and quit paying the 401(k) loan repayments, the Debtor will have a negative tax effect of approximately $564.66 per month for suspension of these payments, but would have approximately $900 remaining each month to repay creditors. The Sixth Circuit in Behlke held under the pre-BAPCPA version of § 707(b)1 that a debtor’s voluntary 401(k) contribution “was not reasonably necessary to the maintenance and support of the 12debtors or their dependents” such that it may be considered as disposable income when analyzing whether a debtor has sufficient income to fund a Chapter 13 plan as part of the totality of the circumstances analysis of § 707(b). Id. Thus, the court in Behlke held that the bankruptcy court did not err in dismissing the case of a debtor who did not file bankruptcy following a catastrophic event, has a stable income and the potential to reduce expenses without depriving himself of necessities, and has an ability to fund a Chapter 13 plan with a 401(k) contribution in order to pay a dividend between 14% and 23% to unsecured creditors. Id. at 437-438. Similarly, 401(k) loan repayments have been treated like 401(k) contributions and also considered as disposable income in the context of determining abuse under the totality of the circumstances test pursuant to § 707(b)(3). See In re Pandl, 407 B.R. 299, 302 (Bankr.S.D.Ohio 2009); In re Felske, 385 B.R. 649, 658 (Bankr.N.D.Ohio 2008). Both bankruptcy courts in the Southern and Northern Districts of Ohio addressed the fact that 401 (k) payments are not considered disposable income in Chapter 13 plans pursuant to § 1322(f) post-BAPCPA, but recognized that § 1322(f) is limited in its applicability to a debtor who has filed a Chapter 13 and has no application to a debtor who files a Chapter 7. The Debtor, while taking no issue with the case law cited herein, argues that he is in a predicament that distinguishes his situation from that of the debtors in Pandl and Felske, as well as justifies this Court deviating from the law as set forth by Sixth Circuit. The Debtor argues that he is being forced into a Chapter 13 plan with negative disposable income, causing him to propose a Chapter 13 plan that has essentially zero being paid into it until the 401(k) loan is repaid in August of 2013. The Debtor further asks for guidance by setting forth “objective criteria” that would guide debtors and their attorneys in this circumstance and would not result in penalizing the debtor for attempting to seek the most relief he is entitled to under Federal law. The Debtor is referring to the changes brought by BAPCPA to the treatment of 401 (k) contributions in terms of a Chapter 13 plan. BAPCPA amended § 541 to add subsection (b)(7) which allows debtors to shelter contributions to their 401(k) from property of the estate up to the permitted limit of the employee benefit plan. See 11 U.S.C. § 541(b)(7); Burden v. Seafort (In re Seafort), 437 B.R. 204 (6th Cir. BAP 2010) (citing In re Nowlin, 366 B.R. 670, 676 (Bankr.S.D.Tex.2007)). In addition, BAPCPA added subsection (f) to 11 U.S.C. § 1322 which prohibits a Chapter 13 plan from altering the terms of a 401 (k) loan and excludes “any amounts” used to repay 401(k) loans from the calculation of a debtor’s “disposable income.” See 11 U.S.C. § 1322(f). Thus, the Debtor complains that realistically, if he is forced to convert to a Chapter 13, there will be no funds to direct to a Chapter 13 plan because of these post-BAPCPA exemptions. But the Sixth Circuit B.A.P. has recently held that income that becomes available after a 401(k) loan repayment is satisfied post-petition may be considered “disposable income” for purposes of funding a Chapter 13 plan. In re Seafort, 437 B.R. at 210. Thus, although Seafort is currently on appeal to the Sixth Circuit, the current state of the law in this Circuit is that the Debtor’s 401 (k) loan repayments may be considered “disposable income” once the 401(k) loan is satisfied in August of 2013. The Northern District of Ohio has addressed the disparate treatment of 401(k) contributions and 401(k) loan repayments 13in Eisen v. Thompson, 370 B.R. 762 (N.D.Ohio 2007) and held that it makes sense to include 401(k) payments as disposable income in the § 707(b)(3) analysis because such payments are finite and Chapter 13 proceedings are prospective: “Because a 401(k) loan might be paid off within the commitment period of a Chapter 13 case, the Trustee would have the ability to direct newly available funds to creditors.” Id. at 777. As mentioned above, the courts in Pandl and Felske reached similar conclusions. In re Pandl, 407 B.R. 299, 302 (Bankr.S.D.Ohio 2009); In re Felske, 385 B.R. 649, 658 (Bankr.N.D.Ohio 2008). Furthermore, while at least one bankruptcy court in the Southern District of Ohio has disagreed with the analysis of the district court in Eisen, arguing instead that the court must take a realistic and objective view of what funds will actually be available to fund a Chapter 13 plan under the post-BAPCPA modifications, the court still concluded that dismissal under § 707(b)(3)(B) is proper where a debtor is able to fund a Chapter 13 plan with money used to pay a 401(k) loan repayment that expires during the course of a plan. See In re Phillips, 417 B.R. 30, 44 (Bankr.S.D.Ohio 2009). There the debtor, who enjoyed a relatively high and stable income, had two 401(k) loans that were to be paid off within seven months and thirty-six months, respectively, allowing the debtor to pay a divided of roughly 30% on unsecured claims over the life of a five year plan. Id. The court concluded this was a meaningful distribution to creditors, even with the reduction of fees paid to the Chapter 13 trustee and an attorney. Id. That is exactly the case herein. Once the loan expires in August of 2013, the Debtor will be able to contribute the almost $700 a month he is paying towards the 401(k) loan repayment to a Chapter 13 plan, which could result in payment to his creditors of an approximate 24% dividend over a course of three years. This is certainly a meaningful distribution to the Debtor’s unsecured creditors. While the Court recognizes the Debtor’s predicament in that the Debtor must initially pay zero into a Chapter 13 plan if forced to convert to a Chapter 13 plan, this Court cannot ignore the plain language of the Bankruptcy Code or the clear precedent set by the Sixth Circuit in Behlke and the Sixth Circuit B.A.P. in Seafort. The Debtor has not claimed he filed for bankruptcy relief because of unforeseen or catastrophic events. The Debtor’s petition shows that he has stable employment as a project leader with a relatively high gross monthly income of $5,202.53; the Debtor therefore has an ability to repay his creditors from future earnings. Moreover, considering the fact that the 401(k) loan will be repaid in August 2013, thus enabling the Debtor to contribute an additional $700 per month to pay his unsecured creditors, the Debtor has money available to fund a Chapter 13 plan. From the standpoint of the § 707(b)(3)(B) analysis, the Debtor is not “needy” and the totality of the circumstances of the Debtor’s financial circumstances warrant a finding of “abuse.” While this determination certainly puts the Debtor between the proverbial rock and a hard place, there is no constitutional right to a bankruptcy discharge. In re Krohn, 886 F.2d 123, 127 (6th Cir.1989) (holding that a § 707(b) dismissal is not foreclosed by a debtor’s inability to seek other relief under the Bankruptcy Code). The Debtor has disposable income to fund a Chapter 13 plan, even if he is unable to fund that plan until August of 2013; while the Debtor may want to seek the most relief he is entitled to under the Bankruptcy Code, he still must do so in its frame14work despite any inconsistencies and unfairness he may perceive. Conclusion Based on the foregoing, the United States Trustee’s Motion to Dismiss is GRANTED in the event that the Debtor fails to convert his case to a case under Chapter 13 within 21 days of the date of entry of this Order. . 11 U.S.C. § 707(b)(3) was modified by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). The modification made a showing of bad faith unnecessary to prevail under § 707(b)(3) and lowered the standard from a showing of "substantial abuse” to "abuse.” Despite these modifications, the pre-BAPCPA cases remain instructive to this Court.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494493/	OPINION REGARDING THE UNITED STATES TRUSTEE’S MOTION TO DISMISS CASE UNDER 11 U.S.C. § 707(b)(3) WALTER SHAPERO, Bankruptcy Judge. The matter before the Court is the United States Trustee’s Motion to Dismiss under 11 U.S.C. § 707(b)(3)1 (Docket No. 21). The Court held an evidentiary hearing and took the matter under advisement. 21I. BACKGROUND James and Heidi Kehl (“Debtors”) filed their Chapter 7 bankruptcy petition on August 7, 2010. The United States Trustee (“UST”) filed a Motion to Dismiss their case (Docket No. 21). Debtors oppose the Motion. The Debtors are married and have two dependents, a one year old son and a three year old daughter. Mr. Kehl is a Kia and SAAB automotive technician working full-time at Glassman Automotive, and Mrs. Kehl works part-time as a registrar at Beaumont Hospital. The Debtors’ tax returns reflect $106,012 in combined gross income in 2008, and $87,183 in combined gross income in 2009 (which decreased due to Mrs. Kehl taking time off work after the birth of their son). Debtors’ paystubs show that their gross income for 2010 exceeds $97,000. During the evidentiary hearing, Mr. Kehl testified that there has been a decrease in the number of Kia and SAAB vehicles being brought in for service at Glassman Automotive and, as a result, his income decreased at the end of 2010. Mr. Kehl also operated a landscaping and snow-plowing business, Big K Outdoor Services, however he apparently ceased operating for some time after he sold his pick-up truck. Mr. Kehl testified that he hoped to resume the landscaping portion of the business, but he has not since filed any amendments to his schedules indicating any additional income from such. Debtors’ Schedule F reflects $66,862 in unsecured debts, which almost entirely consists of credit card bills for consumer purchases. Debtors testified that their bankruptcy filing was primarily caused by those credit card debts, and that the minimum payments became too much for their budget to bear over time. In its Motion to Dismiss, the UST argues that elimination of only Mr. Kehl’s 401K contribution of some $423.24 per month and contribution of Debtors’ continuing income tax refunds (approximately $4,000 per year) for a 60 month period (the required length of a Chapter 13 plan), less potential attorney fees and Chapter 13 oversight expenses, would produce payments of approximately 60% of the unsecured debt in this case. The Trustee argues that, even with no reduction in their current standard of living, the Debtors have the ability to make a significant repayment to their unsecured creditors. II. DISCUSSION Authority to dismiss a case under Chapter 7 is derived from 11 U.S.C. § 707(b)(1), which provides, in part: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter. 11 U.S.C. § 707(b)(1). In those cases where the presumption of abuse does not arise, as here, or is otherwise rebutted, and where bad faith is not a factor, the Court is directed to consider the totality of the circumstances in determining whether dismissal for abuse is warranted. 11 U.S.C. § 707(b)(3)(B). The UST bears the burden of establishing by a preponderance of the evidence that the case should be dismissed as an abuse under § 707(b)(3). In re Beckerman, 381 B.R. 841, 844 (Bankr.E.D.Mich.2008). A. Ability to Pay In determining whether this case constitutes an “abuse” under § 707(b)(3), 22the Court must examine the totality of the circumstances and determine whether the Debtors are “honest” and “needy”. In re Krohn, 886 F.2d 123, 126 (6th Cir.1989); In re Behlke, 358 F.3d 429, 434 (6th Cir.2004). “ ‘[HJonest,’ in the sense that [Debtors’] relationship with [their] creditors has been marked by essentially honorable and undeceptive dealings, and [¶]... ] ‘needy’ in the sense that [their] financial predicament warrants the discharge of [their] debts in exchange for liquidation of [their] assets.” Krohn, 886 F.2d at 126. There is no allegation or indication that Debtors have been anything other than honest in their relationship with their creditors, and therefore the inquiry is limited solely to whether Debtors are “needy” of a chapter 7 discharge. In making determinations as to neediness, courts have looked to the following non-exclusive factors: (a) whether the Debtor has the ability to repay his debts out of future earnings; (b) whether the Debtor enjoys a stable source of future income; (c) whether the Debtor is eligible for chapter 13 relief; (d) whether there are state remedies with the potential to ease the Debtor’s financial predicament; (e) whether relief may be obtained through private negotiations with creditors; and (f) whether expenses can be reduced significantly without depriving the Debt- or of adequate food, clothing, shelter and other necessities. In re Beckerman, 381 B.R. at 845 (citing In re Krohn, 886 F.2d at 126-27). In this case, the Debtor enjoys a stable source of future income and is eligible for Chapter 13 relief. The factor most applicable to the Court’s analysis in this case is (f), whether the Debtors’ expenses can be significantly reduced without depriving them of adequate food, clothing, shelter and other necessities. As noted, the UST argues that elimination of only Mr. Kehl’s 401K contribution of some $423.24 per month and contribution of Debtors’ continuing income tax refunds (approximately $4,000 per year) for a 60 month period (the required length of a Chapter 13 plan), less potential attorney fees and Chapter 13 oversight expenses, would produce payments of approximately 60% (or approximately 39,850) of the unsecured debt in this case. Debtors respond by arguing that (1) they will need the 401K plan for retirement purposes and (2) they may need their tax refund to pay business taxes Mr. Kehl’s business accrued while it was operating. i. I01K Contributions This Court has previously examined the issue of whether voluntary contributions to a retirement plan are per se unnecessary expenses for purposes of determining disposable income in a hypothetical Chapter 13 plan, and found such contributions not to be per se unreasonable, but they must be examined on a case-by-case basis. In re Beckerman, 381 B.R. at 848. In determining whether such a contribution is necessary to the maintenance and support of a debtor, the Court looks to factors such as: (1) amount of any existing retirement savings; (2) the debtor’s age and time left until retirement; (3) annual income and overall budget; (4) amount of monthly contributions; and (5) needs of any dependents. Id. Debtors are in them early thirties and have saved approximately $22,000 toward their retirement. As noted, Mr. Kehl is currently contributing $423.24 per month toward his 401K plan. As also noted, Debtors make approximately $97,000 per year, which is more than $20,000 above the applicable median income for a family of four in Michigan. Their overall budget also has some room for some belt-tighten*23ing, if necessary, and for additional unexpected expenditures. With continuing contributions after the completion of a 60-month plan at the same level as before, and assuming a modest 3% return on investments, the Debtors will have approximately $232,093 by the time they reach the age of 60. The point here is that, even if Debtors were in a Chapter 13 plan, their age and circumstances are such that, absent any contributions during the life of the plan, that account would still accrue a substantial amount to help see the Debtors thru their retirement years. Under the totality of the circumstances, the Court finds that the 401K contribution in this case is unnecessary and should not be deducted when determining disposable income for the fund of a hypothetical Chapter 13 plan. In light of the above, the Court finds that the $423.24 401K contribution should be included in disposable income available to fund a hypothetical plan. Eliminating that monthly expense alone from Debtors’ budget would produce a significant and meaningful distribution (some $25,394.40) to unsecured creditors in a Chapter 13 case, as such, the Court concludes that Debtors are not “needy” of a Chapter 7 discharge. ii. Tax Refunds Debtors’ Schedule B reflected an anticipated income tax refund of some $4,611.00 for 2010, which is apparently the typical refund that Debtors have historically received. Debtors argue that they may need their tax refund to pay business taxes accrued by Mr. Kehl’s business in 2009. The UST argues that, even if that were true, that argument is insufficient to support a complete disregard of the Debtors’ future tax refunds. Even conservatively estimating the Debtors’ expected tax refunds at $4,000 per year going forward, those refunds would generate some $20,000 per year in a 60-month Chapter 13 plan. As Debtors have not made an argument that those refunds are necessary for their support, the Court agrees with the UST that such should be considered disposable income available to fund a Chapter 13 plan. iii. Decrease in Debtors’ Income As noted, Mr. Kehl testified that his income decreased toward the end of 2010 due to a decrease in the number of Kia and SAAB vehicles being brought in for service at Glassman Automotive. This decision takes that particular decrease into account. The evidence as to any further decreases actually occurring, or if likely to occur, and by what amount, is not sufficiently sure or clear as would permit a change in the result. In that regard, it needs to be kept in mind that if Debtors convert their case to Chapter 13 and those decreases materialize in the future, Debtors can account for such by filing a proposed Chapter 13 plan modification, or possibly converting the case back to Chapter 7 if the circumstances call for such. However, at this time and based on the facts and circumstances presently before the Court, granting the Debtors relief under Chapter 7 of the Code would be an abuse of the provisions of that chapter given the totality of the circumstances. III. CONCLUSION For the forgoing reasons, the UST’s Motion to Dismiss pursuant to 11 U.S.C. § 707(b)(3) is GRANTED. Debtors are allowed thirty days from the date of this opinion to file a motion to convert to a Chapter 13 case. If such is not done within that time period, the case will be dismissed by separate order of the court. . The UST’s original Motion to Dismiss also raised issues under 11 U.S.C. § 707(b)(2). However, due to the responses provided by the Debtors to that original Motion and the figures provided on Debtors’ Amended Form 22A, the UST is no longer moving for dismissal under that section.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494494/	OPINION RE: HUNTINGTON’S OCTOBER 7, 2011 MOTION — ENFORCEMENT OF AUTOMATIC STAY JEFFREY R. HUGHES, Bankruptcy Judge. The Huntington National Bank (“Huntington”) requests that the automatic stay be enforced with respect to litigation that El Camino Resources, Ltd. (“El Camino”) has commenced against it in the federal district court.1 For the reasons given in this opinion, the court determines that the stay prohibits El Camino from proceeding further with that litigation. JURISDICTION Jurisdiction exists2 and the issue raised is a core matter.3 This court also has the authority to enter a final order4 because the matter relates to the enforcement of the automatic stay. Cf. Meoli v. Huntington Nat’l Bank (In re Teleservices Group, Inc.), 456 B.R. 318, 335-36 (Bankr.W.D.Mich.2011). BACKGROUND Barton Watson, a convicted con man, used both Teleservices Group, Inc. (“Teles-ervices”) and a related company, Cyberco Holdings, Inc. (“Cyberco”), to perpetrate a massive fraud against numerous equipment finance companies, including El Camino.5 He deceived his victims by convincing them that they were financing Cy-berco’s purchase of computer equipment from Teleservices. Although Teleservices was held out as an independent, third party vendor, it was in fact nothing more than a few bank accounts. Watson used fake invoices to trick the equipment finance companies into depositing millions of dollars into one of these accounts. He would then transfer the purloined funds to Cy-berco in order to sustain the scheme as well as to support his own extravagant lifestyle. Huntington became involved when it replaced a Chicago bank as Cyberco’s lender. The relationship included Huntington’s management of Cyberco’s cash through a revolving line of credit combined with regular sweeps of Cyberco’s Huntington accounts. Consequently, Huntington ended up being the recipient of all of the wire transfers Watson had been making from Teleservices to Cyberco. Huntington also received some checks directly from Teleservices during Cyberco’s waning 31months in payment of the Cyberco indebtedness.6 Trustee has sued Huntington to avoid as fraudulent both the payments Huntington received directly from Teleservices and the amounts it received indirectly through the wire transfers being made into Cyberco’s deposit accounts. The issue here, though, relates to only one of the direct transfers, that being an October 22, 2004 check from Teleservices to Huntington in the amount of $1,945,283.04. The issue arises because El Camino claims that it can trace what it had deposited with Teleservices to that check. This court has already determined that the October 22nd check represented an actually fraudulent transfer by Teleser-vices and that Huntington cannot claim good faith in connection with its receipt.6 However, a final determination of Huntington’s liability regarding this transfer and the many others it received has yet to be made because some issues still remain. Moreover, the district court will have to review de novo whatever this court does finally decide.7 As for the district court litigation, it too is coming to a close. El Camino’s original complaint included counts that Huntington had aided and abetted Watson’s fraud and that it had otherwise converted what El Camino had paid Teleservices. However, the district court summarily dismissed these counts,8 leaving El Camino at this point with only its claim that Huntington was unjustly enriched by the October 22nd transfer.9 Trial of this remaining count is scheduled for April 2012. Huntington’s request to have the district court litigation stayed is prompted by its concern that it will have to account twice, once to the Teleservices estate and again to El Camino, for this one transfer. The motion was heard on November 22, 2011. The court took the matter under advisement at the conclusion of oral argument.10 DISCUSSION Standing As El Camino correctly points out, the automatic stay protects only the estate and the debtor. See, e.g., Patton v. Bearden, 8 F.3d 343, 348 (6th Cir.1993); Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126-27 (4th Cir.1983). Therefore, a junior mortgagee ordinarily has no standing to oppose a senior mortgagee’s motion to modify the stay. It is also typical for the trustee, as opposed to a creditor, to decide whether the stay should be enforced or not. Indeed, in this instance Huntington is not even a creditor of the Teleservices estate.11 32Nonetheless, Trustee’s decision to commence this adversary proceeding has made Huntington an unwilling participant in this estate’s administration. Moreover, Trustee’s pursuit of the same transfer that gives rise to El Camino’s unjust enrichment claim does raise the spectre of Huntington having to pay twice. It only seems fair, then, that Huntington should be able to ask this court whether the Section 36212 stay applies. “In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The concept reflects both the Constitution’s requirement that an Article III court must actually have a “case or controversy” before it and the limits that the federal judiciary has imposed upon itself over the years. Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Therefore, a party seeking relief from a federal court must allege “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Id. at 751, 104 S.Ct. 3315 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). However, a party’s standing is ultimately to be decided through the court’s own assessment of the claim being made. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Allen v. Wright, 468 U.S. at 752, 104 S.Ct. at 3325. With this guidance, the court is satisfied that Huntington does have standing to appear before it and argue the merits of whether the automatic stay affects El Camino’s district court litigation. As another court said in a similar case: [T]o establish that it has standing ... it is enough for RICH [a third party] to establish that it is in the “zone of interest” of § 362 by demonstrating that it has “a cognizable interest in the subject property” and that it is a party “whose interests have been harmed” by the actions taken in alleged violation of the stay. Rehab. Inner City Housing, LLC v. Mayor of Baltimore City (In re Lesick). 13 In this instance, Huntington clearly risks additional loss if both lawsuits proceed unabated. Moreover, the loss is not speculative given that the district court litigation is also pending. And finally, this court is capable of addressing the harm Huntington fears by declaring that the automatic stay applies. Application of the Automatic Stay The next question is whether El Camino’s district court litigation in fact violates the stay. At first blush, the answer would seem to be no. The Teleser-33vices estate is seeking the recovery of a fraudulent transfer under Section 548 whereas El Camino is asking for damages based upon unjust enrichment. Should not El Camino be entitled to pursue what would appear to be its own grievance against Huntington without interference from the bankruptcy proceeding? Indeed, the case law makes a distinction between causes of action that involve harm to the debtor and causes of action involving harm to the creditor, with the latter being treated as belonging exclusively to the creditor. “If a cause of action belongs solely to the estate’s creditors ... the trustee has no standing to pursue the claim.” Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 853 (6th Cir.2002). See also Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir.1997). Moreover, there may be occasions when the trustee and a creditor are both entitled to a recovery from the defendant with respect to the same transaction. Cf. Honigman, 128 F.3d at 949 (Court holding that state law, not bankruptcy law, prohibited creditor from a second recovery from the same defendant).14 However, while the general rule is to permit creditors to proceed postpetition with their own third party claims, an exception has been made for fraudulent transfer actions. In those instances, the courts have held that a creditor may not commence its own avoidance action against a third party.15 Rather, the courts have determined that the estate’s right to avoid that transfer as fraudulent preempts an individual creditor’s ability to proceed on its own. Id. See also 11 U.S.C. § 544(b)(1).16 All of these decisions rely upon the automatic stay for justification. However, there are two different rationales. The more popular is that the fraudulent transfer itself is part of the bankruptcy estate. Courts that subscribe to this view conclude that it is Section 362(a)(3)’s stay of acts against the estate’s property that prevents individual creditors from also pursuing postpetition fraudulent transfers. See, e.g., Am. Nat’l Bank of Austin v. Mortga-34geAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1275 (5th Cir.1983). A few courts, though, have questioned MortgageAmerica Corp. because of Section 541(a)(3)’s suggestion that a voidable transfer does not become property of the estate until there has in fact been a recovery.17 For example, the Second Circuit has said: “If property that has been fraudulently transferred is included in the § 541(a)(1) definition of property of the estate, then § 541(a)(3) is rendered meaningless with respect to property recovered pursuant to fraudulent transfer actions.” 101 B.R. at 305. Further, “the inclusion of property recovered by the trustee pursuant to his avoidance powers in a separate definitional subparagraph clearly reflects the congressional intent that such property is not to be considered property of the estate until it is recovered.” FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125, 132 (2nd Cir.1992) (quoting from In re Saunders, 101 B.R. 303, 305 (Bankr.N.D.Fla.1989)).18 This court agrees. Although the recovery of an avoided transfer certainly augments the estate, the trustee’s ability to actually avoid the transfer is not an interest acquired from the debtor, but rather a power that derives from the Code itself. It mirrors the same power individual creditors have under state law to avoid fraudulent transfers. Indeed, in neither instance does the power to avoid the transfer even arise until the debtor has first divested himself of the interest to be recovered. The court also agrees with Colonial Realty that Section 362 stays postpetition avoidance actions nonetheless because it prohibits actions being taken “against the debtor” as well. Id. at 132.19 A creditor should be able to pursue its own causes of action against another without interference from the bankruptcy estate when the creditor has a separate contractual claim against that party or the party has engaged in tortious conduct specifically injuring that creditor. However, fraudulent transfer actions are different because they do not require either privity with the transferee or even misconduct on the transferee’s part. The focus instead is upon the debtor and, in particular, the debtor’s decision to transfer the property in question. As for the recipient, his conduct becomes relevant only when value has also been exchanged. If, on the other 35hand, the transfer was gratuitous, the recipient will be held accountable in most instances regardless of his innocence.20 This distinction makes a fraudulent transfer action more akin to a post-judgment remedy than a tort or contract claim. What, for example, is the difference between a creditor’s avoidance of a debtor’s fraudulent transfer and that same creditor’s garnishment of the debtor’s accounts receivable? While each involves an action against a third party, each is predicated on there also being an obligation owed that creditor by the debtor. The third party has been targeted only because his own dealings with the debtor have placed him in the unfortunate position of being able to assist the creditor in the collection of that debt. In sum, postpetition fraudulent transfer actions by creditors are prohibited by the automatic stay because they cannot stand independent of that creditor’s claim against the debtor. As the court observed in Colonial Realty: While a fraudulent transfer action may be an action against a third party, it is also an action “to recover a claim against the debtor.” Absent a claim against the debtor, there is no independent basis for the action against the transferee. Id. (quoting from Saunders, 101 B.R. at 305). Unjust Enrichment The final question is whether the pending district court litigation should be stayed for similar reasons. El Camino insists that its unjust enrichment claim is not comparable to a fraudulent transfer action. As El Camino puts it, the relief it seeks is “both different from and not otherwise available to the Trustee in the Adversary Proceeding.”21 The issue, though, is not whether El Camino has usurped a cause of action belonging to the estate. Teleservices without doubt intended Huntington’s receipt of the challenged transfer. As such, Trustee, as Teleservices’ successor, is in no position now to complain that Huntington was unfairly enriched. Cf. Richardson v. Huntington Nat’l Bank (In re Cyberco), 382 B.R. 118, 130 (Bank.W.D.Mich.2008). Nonetheless, Trustee, and, for that matter, Huntington, may still ask whether El Camino’s pursuit of its unjust enrichment claim serves a purpose any different from the one served had El Camino chosen to pursue a prohibited fraudulent transfer action instead.22 Unjust enrichment is a common law theory. Id. at 127-28. It evolved from a court’s willingness to expand the original writ of assumpsit to first provide a remedy for “implicit” contracts and then for any situation where justice warranted legal redress. Id. 36The phrase ‘unjust enrichment’ is used in law to characterize the result or effect of a failure to make restitution of or for property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. Buell v. Orion State Bank, 327 Mich. 43, 56, 41 N.W.2d 472 (1950) (citations omitted). Indeed, constructive trust, which is another theory that El Camino had been pursuing against Huntington,23 is nothing more than the equitable counterpart to unjust enrichment. The two differ only with respect to the relief received. If the defendant remains in possession of the subject property, then a court will typically impose a constructive trust as a device to compel its return. If, though, the property has been transferred and the defendant owns nothing else against which a trust could be imposed, the court will award damages instead on the theory that the defendant was unjustly enriched. Id. Actions for unjust enrichment and constructive trust therefore share with fraudulent transfer actions a common purpose — they are all intended to remedy situations where the defendant has benefitted unfairly. And in this particular situation, it happens that Trustee has simply chosen one of these remedies and El Camino another in order to rectify what both agree is the same injustice deriving from Huntington’s receipt of the same transfer. Moreover, each action is justified not upon harm being done by Huntington, but upon debt being owed by Teleservices. Indeed, the only real difference between Trustee’s and El Camino’s actions against Huntington is that the recovery Trustee seeks is for the benefit of all of Teleservices’ creditors, including El Camino, whereas any recovery by El Camino would be only for its own benefit. CONCLUSION The court recognizes the injustice El Camino perceives — that it is being compelled to share with Teleservices’ creditors a recovery traceable to funds that El Cam-ino believes were stolen from it. However, the overall objective of a bankruptcy proceeding is to create a single forum into which all recoveries like the one anticipated here are to be brought and then distributed. El Camino, may, if it chooses, still claim that it has a superior right to whatever the estate recovers from Huntington on account of the October 22nd transfer. That, though, is an argument to be made before this court in connection with the administration of this case. It is not to be decided elsewhere under the guise of some third party complaint. Indeed, it is for this very reason that the automatic stay prohibits El Camino from continuing with its remaining count in the district court litigation.24 37The court will prepare a separate order consistent with this opinion. . El Camino Res., Ltd. v. Huntington Nat’l Bank, No. 1:07-cv-598 (W.D. Mich, filed June 22, 2007). . 28 U.S.C. §§ 1334 and 157(b)(1) and W.D. Mich. L.Civ.R. 83.2. . 28 U.S.C. § 157(b)(2)(A). . i.e., an order subject only to appeal pursuant to 28 U.S.C. § 158. . See, e.g., Meoli v. Huntington Nat’l Bank (In re Teleservices Group, Inc.), 444 B.R. 767 (Bankr.W.D.Mich.2011). .Cyberco closed in late November 2004 after the FBI raided its offices. An involuntary petition was filed against Cyberco within days and Teleservices filed its own bankruptcy petition approximately one month later. . 444 B.R. at 787, 830. . In re Teleservices, 456 B.R. 318 (holding that only an Article III judge has the constitutional authority to enter the requested money judgment against Huntington). . El Camino Res., Ltd. v. Huntington Nat'l Bank, 722 F.Supp.2d 875 (W.D.Mich.2010). .Although another creditor, ePlus Group, Inc., had joined El Camino in some of the counts, Huntington's motion for summary judgment also disposed of all of ePlus' claims. . Huntington has also requested in the alternative that this court use its Section 105 authority to enjoin El Camino. However, the court’s recognition that the automatic stay applies in this instance renders that request moot. . Huntington’s lending relationship was with Cyberco, not Teleservices. . 11 U.S.C. § 362. Debtor’s petition predates the October 17, 2005 effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA”), Pub.L. No. 109-8, § 1501(B)(1), 119 Stat. 23. Unless otherwise indicated, all citations in this opinion to the Bankruptcy Code will be to the Bankruptcy Code as written prior to the BAPCPA amendments. The citation will be "Section-.” . 2006 WL 2083655 (Bankr.D.D.C.) (citation omitted). .El Camino also cites Torcise v. Cmty. Bank of Homestead (In re Torcise), 116 F.3d 860 (11th Cir.1997) as exemplifying judicial indifference to a bank’s exposure to multiple judgments arising out of the same transaction. In that instance, both the creditors committee in a Chapter 11 proceeding and another secured creditor had separately sued the bank. The appeal involved the trial court's denial of the bank’s motion to join the other secured creditor as a necessary party to the committee’s avoidance actions. The Eleventh Circuit affirmed the lower court. One of the reasons it gave was: "Bel-Bel's [the other secured creditor’s] claims against Bank are tort and conspiracy actions for money damages. Torcise’s and Grower’s [i.e. the committee's] claims against Bank involve claims under federal and state bankruptcy law.” Id. at 866. El Camino argues that this same distinction is applicable here. However, as will be explained later in this opinion, El Camino's unjust enrichment claim is not that different from the fraudulent transfer action Trustee is pursuing here. Moreover, as will also be explained, the issue in this instance turns on the automatic stay, which was not even discussed in Torcise. . See, e.g., NBD Bank, N.A. v. Fletcher (In re Fletcher), 176 B.R. 445, 452 (Bankr.W.D.Mich.1995), rev'd on other grounds, sub nom NBD Bank, N.A. v. Linguist (In re Van Orden), 1995 WL 17903731 (W.D.Mich.1995). 5 Collier on Bankruptcy ¶ 548.02[5] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. rev. 2011). . [T]he trustee may avoid any transfer of an interest of the debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title. . [The bankruptcy] estate is comprised of all of the following property (3) Any interest in property that the trustee recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this title. 11 U.S.C. § 541(a)(3) (emphasis added). . It is not altogether clear which of these two theories the Sixth Circuit embraces. On the one hand, the Sixth Circuit has cited with approval In re MortgageAmerica. See N.L.R.B. v. Martin Arsham Sewing Co., 873 F.2d 884, 887 (6th Cir.1989). However, its approval seemed hesitant. "Any effort to recover this [fraudulently transferred] property is essentially an action to recover property that belongs to the debtor.” Id. (emphasis added). This equivocation at the very least suggests that the panel in Martin Arsham Sewing might have been persuaded by Colonial Realty’s and Saunders' reasoning had those decisions been published earlier. .Although Colonial Realty relies on Section 362(a)(1), Section 362(a)(6) sets forth the same prohibition. [A] petition filed under Section 301 ... operates as a stay, applicable to all entities, of— (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.... 11 U.S.C. § 362(a)(6). .For example, while Section 548(c) offers the initial transferee a defense, it depends upon the recipient taking in good faith AND for value. The same is also true for subsequent transferees relying upon the Section 550(b)(1) defense. Indeed, good faith alone offers a safe haven only in the much rarer instance where the subject transferee took from someone who himself was a recipient eligible for the Section 550(b)(1) defense. Cf. 11 U.S.C. § 550(b)(2). See also Mich. Comp. Laws § 566.38. . Creditor El Camino Resources, Ltd.’s Brief in Opposition to Huntington's Motion to Stay District Court Litigation at 5 (DN 438). . El Camino also argues that its unjust enrichment claim is different because El Cami-no intends to resurrect its jury demand in the district court litigation. However, short of a constitutional challenge to Section 362(a)(6), it is not clear why El Camino’s right to a jury should have any relevance one way or the other with respect to determining whether the automatic stay applies. . El Camino had asked the district court to impose a constructive trust on Huntington and that count had also survived Huntington's dispositive motion. However, El Cami-no recently elected to dismiss it, thereby leaving unjust enrichment as El Camino’s only remaining claim in the district court litigation. . Judge Kennedy made similar observations in N.L.R.B. v. Martin Arsham Sewing Co.: The corporate Chapter 7 bankruptcy case is designed to provide an orderly proceeding in which the debtor corporation's assets may be marshalled and their pro rata distribution to creditors obtained. To this end the Bankruptcy Court is vested with exclusive jurisdiction over all the debtor's property. See 28 U.S.C. § 1471(e) (1982). The filing of a bankruptcy petition operates as a stay of any action to obtain possession of "property of the estate” which is comprised of "all legal or equitable interests of the debtor in property.” 11 U.S.C. § 541(a)(1) (1982). See 11 U.S.C. § 362(a) (1982). 37Once the trustee, under the auspices of the Bankruptcy Court, has collected all the debtor’s property the Code dictates an elaborate step-by-step distribution order which serves to ensure an equitable distribution of the debtor's assets. See 11 U.S.C. § 726 (1982). These characteristics of bankruptcy — the exclusive jurisdiction of the Bankruptcy Court, the stay of any creditors' piecemeal actions to collect the property of the debtor's estate, and the detailed order for distribution of the debtor's assets — protect equal treatment for all creditors and avoid the incoherent dismemberment of the debtor which would occur under a "first-come-first-served” scheme. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 178, reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6138. In a further effort to consolidate all the debtor’s assets and distribute them equally between creditors, the Bankruptcy Code contains provisions empowering the court or the trustee in bankruptcy to recover property belatedly, unlawfully, or fraudulently transferred by the debtor in an effort to place it outside the reach of creditors. 873 F.2d at 887.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494495/	MEMORANDUM OPINION REGARDING MOTION FOR SUMMARY JUDGMENT KAY WOODS, Bankruptcy Judge. This cause is before the Court on Plaintiffs Motion for Summary Judgment filed by Plaintiff Clearview Designs, Inc. (“Plaintiff’) on August 29, 2011 (Doc. # 30). On September 19, 2011, the Debt- or/Defendant Michael Robert Angelilli (“Debtor/Defendant”) filed Reply to Plaintiffs Motion for Summary Judgment (Doc. #31). For the reasons that follow, the Court will grant the Plaintiffs Motion for Summary Judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and the general order of reference (General Order No. 84) entered in this district pursuant to 28 U.S.C. § 157(a). Venue in this Court is proper pursuant to 28 U.S.C. §§ 1391(b), 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The following constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. I. FACTS A. State Court Action On September 22, 2008, the Mahoning County Court of Common Pleas (“Mahoning Court”) held a bench trial in a case styled, Clearview Designs, Inc. v. Michael Daniel Corp. et al. (“State Court Action”). The plaintiff in the State Court Action was the same entity as the Plaintiff herein and one of the defendants in the State Court Action was the Debtor/Defendant. The State Court Action bench trial resulted in a verdict against all defendants in favor of 40the Plaintiff. On January 7, 2009, the Mahoning Court entered Findings of Fact and Conclusions of Law (“Findings and Conclusions”), which held that the Debt- or/Defendant violated the Uniform Trade Secrets Act. On February 3, 2009, the Mahoning Court rendered a final judgment in the amount of $515,218 (“Mahon-ing Judgment”)1 against the Debtor/Defendant based on an intentional violation of the Uniform Trade Secrets Act. An appeal of the Mahoning Judgment was dismissed, sua sponte, for failure of the appellants to file assignments of error and a brief. As a consequence, the Mahoning Judgment is a final judgment. B. Adversary Proceeding On May 27, 2010, the Debtor/Defendant filed a voluntary petition pursuant to chapter 7 of the Bankruptcy Code. The last day to file a complaint regarding dischargeability of a debt was September 20, 2010. On September 16, 2010, the Plaintiff filed Complaint to Determine Dischargeability of Debt and to Obtain Relief (“Complaint”) (Doc. # 1), which commenced this adversary proceeding. The Plaintiff alleges that the Mahoning Judgment is not dischargea-ble based on 11 U.S.C. § 523(a)(6)2. On January 18, 2011, the Debtor/Defendant filed Answer (Doc. # 14), which argues: (i) a co-defendant in the State Court Action also filed for bankruptcy protection, but the Plaintiff did not initiate a nondis-chargeability action against the co-defendant3; (ii) the Mahoning Judgment does not reference willful and malicious intent; and (iii) the Debtor/Defendant surrendered over $100,000 in assets to the Plaintiff after the Debtor/Defendant’s company was shut down. Upon the request of the parties, on April 5, 2011, the Court referred this adversary proceeding to mediation. Mediation did not result in the parties reaching a resolution of their dispute. Thereafter, the Plaintiff filed the Motion for Summary Judgment. II. STANDARD OF REVIEW The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(a), made applicable to this proceeding through Fed. R. BaNKR.P. 7056, which provides, in part, that: The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.CivP. 56(a) (West 2011). Summary judgment is proper if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it could affect the determination of the underlying action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Tennessee Dep’t of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir.1996). A material fact is genuinely in dispute if a rational fact-finder could 41find in favor of either party on the issue. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27 (6th Cir. BAP 1998). Thus, summary judgment is inappropriate “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In a motion for summary judgment, the movant bears the initial burden to establish an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Gibson v. Gibson (In re Gibson), 219 B.R. 195, 198 (6th Cir. BAP 1998). The burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute. Lujan v. Defenders of Wildlife, 504 U.S. 555, 590, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, in responding to a proper motion for summary judgment, the non-moving party “cannot rely on the hope that the trier of fact will disbelieve the mov-ant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (quoting Anderson, 477 U.S. at 257, 106 S.Ct. 2505). That is, the nonmoving party has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. Street, 886 F.2d at 1479. III. LEGAL STANDARDS A. Section 523(a)(6) Section 523(a), which excepts various categories of debt from discharge, states in subsection (6): (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entityf.] II U.S.C. § 523 (West 2011). The plaintiff bears the burden of proving by a preponderance of the evidence that a debt is excepted from discharge pursuant to § 523(a). Meyers v. I.R.S. (In re Meyers), 196 F.3d 622, 624 (6th Cir.1999) (citing Grogan v. Garner, 498 U.S. 279, 290-91, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). Section 523(a) codified the “longstanding bankruptcy policy that any debt which is shown to have arisen from a dishonest or otherwise wrongful act committed by a debtor is not entitled to the benefits of a bankruptcy discharge.” Hoffman v. Anstead (In re Anstead), 436 B.R. 497, 500 (Bankr.N.D.Ohio 2010) (citing Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998)). The plain language of § 523(a)(6) requires the plaintiff to establish that the injury is both willful and malicious. Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 463 (6th Cir.1999). The Supreme Court has held that the inclusion of the word “willful” in § 523(a)(6) requires “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). The Sixth Circuit Court of Appeals expanded the definition of willfulness to include the debtor’s belief that injury is “ ‘substantially certain to result’ ” from the debtor’s actions. Markowitz, 190 F.3d at 464 (quoting Restatement (Second) of Torts § 8A, at 15 (1964)). The element of “mali42cious injury” in § 523(a)(6) requires action “taken in conscious disregard of the debt- or’s duties or without just cause or excuse.” Superior Metal Prods. v. Martin (In re Martin), 321 B.R. 437, 441-42 (Bankr.N.D.Ohio 2004) (citing Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir.1986)). “Based upon a fair reading of [the definition of malice], it is logical to assume that in great [sic] majority of cases, the same factual events that give rise to a finding of ‘willful’ conduct, will likewise be indicative as to whether the debtor acted with malice.” Martin, 321 B.R. at 442. As a result, to prevail in a § 523(a)(6) action, the plaintiff must establish by a preponderance of the evidence: (i)the debtor caused injury to the plaintiff or the plaintiffs property; (ii) the debtor intended to cause such injury or the debt- or’s actions were substantially certain to cause such injury; and (iii) the debtor acted in conscious disregard of the debt- or’s duties or without just cause or excuse. Palik v. Sexton (In re Sexton), 342 B.R. 522, 530 (Bankr.N.D.Ohio 2006). B. Collateral Estoppel4 The doctrine of collateral estop-pel, or issue preclusion, “ ‘precludes reliti-gation of issues of fact or law actually litigated and decided in a prior action between the same parties and necessary to the judgment, even if decided as part of a different claim or cause of action.’ ” Markowitz, 190 F.3d at 461 (quoting Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 480 (6th Cir.1992)). Collateral estoppel principles apply in non-dischargeability proceedings. Gonzalez v. Moffett (In re Moffitt), 252 B.R. 916, 920-21 (6th Cir. BAP 2000) (citing Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). Pursuant to 28 U.S.C. § 1738, federal courts “must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which that judgment was rendered.” Migra v. Warren City School Dist. Bd. Of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). “Collateral estoppel will apply where (1) the law of collateral estoppel in the state in which the issue was litigated would preclude relitigation of such issue, and (2) the issue was fully and fairly litigated in state court.” Markowitz, 190 F.3d at 461 (citing 28 U.S.C.A. § 1738 (West 1994)). In Ohio, the following four elements must be established to assert collateral estoppel: “(1) The party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) There was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) The issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) The issue must have been identical to the issue involved in the prior suit.” Cashelmara Villas Ltd. P’Ship v. DiBenedetto, 87 Ohio App.3d 809, 623 N.E.2d 213, 215-16 (1993) (quoting Monahan v. Eagle Picher Indus., Inc., 21 Ohio App.3d 179, 486 N.E.2d 1165, 1168 (1984)). “The burden of pleading and proving the identity of the issues currently presented and the issues previously decided rests on the party asserting the estoppel.” Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374, 928 N.E.2d 695, 701 (2010) (citing Goodson v. 43McDonough Power Equip., Inc., 2 Ohio St.3d 193, 443 N.E.2d 978, 983 (1983)). C. Ohio Uniform Trade Secrets Act In Ohio, the Uniform Trade Secrets Act is found in Section 1333 of the Ohio Revised Code. In The Spring Works, Inc. v. Sarff (In re Sarff), 242 B.R. 620 (6th Cir. BAP 2000), the Bankruptcy Appellate Panel (“B.A.P.”) for the Sixth Circuit upheld the bankruptcy court’s finding that a misappropriation of trade secrets was not dis-chargeable. Id. at 627. (“The bankruptcy court properly determined that both the compensatory damages for interference with business relations and misappropriation of trade secrets and the punitive damages were nondischargeable. The state court’s award of punitive damages is indicative of a finding of malice.”) IV. ANALYSIS A. Collateral Estoppel and § 523(a)(6) As the party asserting the doctrine of collateral estoppel, the Plaintiff must establish that the four elements of collateral estoppel under Ohio law are present with respect to each material element of this § 523(a)(6) action. Palik v. Sexton, (In re Sexton), 342 B.R. 522, 523 (Bankr.N.D.Ohio 2006). As set forth below, the Court finds that the Plaintiff has satisfied each of the four elements of collateral estoppel and, thus, this Court is required to accept the findings of fact and conclusions of law reached by the Mahon-ing Court. I.Identity of the Parties Because the Plaintiff and the Debtor/Defendant were parties to the State Court Action, the first element—identity or privity of parties—is satisfied without the need for evidence or argument. 2. Final Judgment on the Merits The second element requires the Plaintiff to establish that the Mahoning Judgment is a final judgment on the merits and that the Debtor/Defendant was provided a full and fair opportunity to litigate the issue. DiBenedetto, 623 N.E.2d at 216 (quoting Monahan, 486 N.E.2d at 1168). Neither the Plaintiff nor the Defendant contends that the Mahoning Judgment is not a final judgment on the merits or that each party was not provided a full and fair opportunity to litigate the issue in the Mahoning Court. Further, each party was represented by counsel in the State Court Action and each party appeared at the bench trial. The Debt- or/Defendant appealed the Mahoning Judgment, which appeal was subsequently dismissed. Based upon the foregoing, this Court finds that the Mahoning Judgment is a final judgment. Moreover, the Debtor/Defendant had a full and fair opportunity to litigate in the Mahoning Court, as evidenced by the fact that the Debtor/Defendant: (i) filed an answer in the State Court Action; (ii) was given notice of a trial in the Mahoning Court; (iii) waived the right to a jury trial in the Mahoning Court; and (iv) filed an appeal of the Mahoning Judgment. Lastly, the Mahoning Judgment was entered following the presentation of evidence and testimony by both the Plaintiff and the Debtor/Defendant at the September 2008 bench trial. As a consequence, the Court finds that the parties had a full and fair opportunity to litigate the issue and that the Mahoning Judgment serves as a final judgment on the merits. 3. The Issue Necessary to the Final Judgment was Actually Tried and Decided a. The Issue was Actually Tided and Decided There is no dispute that (i) the Mahon-44ing Court held a bench trial5 on September 22, 2008; (ii) the Mahoning Court entered the Mahoning Judgment following the trial; or (iii) the Mahoning Judgment was actually tried and decided. In addition, neither party disputes that the elements required under § 523(a)(6) were actually tried and decided by the Mahoning Court. These elements are: (i) the Debtor/Defendant caused injury to the Plaintiff; (ii) the Debtor/Defendant intended to cause such injury or his actions were substantially certain to cause such injury (ie., the injury was willful); and (iii) the Debtor/Defendant acted in conscious disregard of his duties or without just cause or excuse (i.e., the injury was malicious). In fact, a review of both the Mahoning Judgment and Findings and Conclusions reveals that the Mahoning Court explicitly found: (i) the Plaintiff was “financially damaged as a result of Trade Secret Violations in the sum of $515,218.00;” (ii) the Debtor/Defendant, in fact, used Clear-view’s trade secrets, including Clearview’s drawings and database; and (iii) the Debt- or/Defendant deliberately misappropriated trade secrets. (Mahoning Judgment at 2; Findings and Conclusions at 15-16) Specifically, the Mahoning Court found: Angelilli, ... acknowledged in writing that Clearview’s computer processes, computer programs and codes, customer lists, financial information, and proprietary production processes are confidential and agreed in writing that [he] would not disclose this information.... [t]he evidence demonstrates that Angel-illi ... [was a] trusted management employee[ ] of Clearview who quit ... at the end of 2002.... Michael Daniel Corp. was able to inject itself into Clear-view’s niche market by convincing five Pella distributors to direct their orders for Clearview products to Michael Daniel Corp. ... The Defendants were not able to manufacture and sell products to the Pella distributors independent of the trade secret information they acquired from Clearview. They deliberately misappropriated technical information, design, process, procedure, formula, pattern, technique, methodology, catalog, customer listings and the like — all of which satisfied the prerequisites of R.C. § 1333.61(D)(1) and (D)(2) as trade secrets. (Findings and Conclusions at 13-16.) Indeed, the Mahoning Judgment found that the conduct of the Debtor/Defendant satisfied all the prerequisites of O.R.C. § 1333.61(D)(1) and (D)(2). As a consequence, the Mahoning Court found that the Debtor/Defendant acted in conscious disregard of his duties and, therefore, acted maliciously. Accordingly, the Court finds that the Mahoning Court actually tried and decided the three elements required by a § 523(a)(6) cause of action. Because the appeal was dismissed, sua, sponte, the Defendant is bound by the factual determinations and legal conclusions reached by the Mahoning Court and may not challenge those findings in this Court. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (“It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which that judgment was rendered”); Palik v. Sexton (In re Sexton), 342 B.R. 522, 534 (Bankr.N.D.Ohio 2006) (“Even if Debtor/Defendant could determine that [the state court judge’s] legal conclusions were premised upon a mistake of fact, she cannot challenge his legal con-45elusions in this Court. Debtor/Defendant had ample opportunity to appeal [the state court judgment] through the state court appellate process.”) b. The Issue Was Necessary to the Final Judgment The Court must next decide whether resolution of the elements of this § 523(a)(6) action was necessary for the Mahoning Court to enter the Mahoning Judgment. The Mahoning Court awarded the Plaintiff damages based on the Debt- or/Defendant’s violation of the Uniform Trade Secrets Act. (Mahoning Judgment at 2.) In order to award damages to the Plaintiff, it was necessary for the Mahon-ing Court to determine that the Debt- or/Defendant caused injury to the Plaintiff6. As a consequence, the Court finds that this prong of the collateral estoppel test has been satisfied. 4. Identical Issue in Both Proceedings The fourth element of the collateral es-toppel test requires the Plaintiff to prove that the issue before this court is identical to the issue before the Mahoning Court. Cashelmara Villas Ltd. P’Ship v. DiBenedetto, 87 Ohio App.3d 809, 623 N.E.2d 213, 215-16 (1993) (quoting Monahan v. Eagle Picker Indus., Inc., 21 Ohio App.3d 179, 486 N.E.2d 1165, 1168 (1984)). In the Mahoning Court, the Plaintiff alleged that it was harmed by the Debtor/Defendant’s violation of the Uniform Trade Secrets Act. As explained, supra, the Mahoning Court found in favor of the Plaintiff and awarded it damages in excess of $500,000 for the Debtor/Defendant’s actions. Therefore, the Mahoning Court determined that (i) the Debtor/Defendant caused injury to the Plaintiff; and (ii) the Debtor/Defendant did so willfully and maliciously. The issue before this Court is whether, pursuant to § 523(a)(6), the Ma-honing Judgment is a debt for willful and malicious injury caused by the Debtor/Defendant — the same issue addressed in the Mahoning Court. As a consequence, this Court finds that the Plaintiff has satisfied the final element of the collateral estoppel test. B. Summary Judgment This Court must also determine if summary judgment in favor of the Plaintiff is warranted. The Plaintiff bears the burden to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Plaintiff argues that summary judgment is proper because the material facts necessary to resolve this proceeding were decided by the Mahoning Court. This Court agrees. As stated supra, at 11-14, the Mahoning Court expressly found that the Debtor/Defendant willfully and maliciously caused injury to the Plaintiff. In addition, because the Mahoning Judgment is final and binding, the Debtor/Defendant is foreclosed from arguing that the Mahoning Court’s findings were not supported by the evidence. Further, under Ohio law, damages awarded for misappropriation of trade secrets are nondischargeable if the state court also determined that the injury was committed both willfully and maliciously. See The Spring Works, Inc., v. Sarff (In re Sarff), 242 B.R. 620 (6th Cir. BAP 2000). *46Having concluded that this Court is bound by the Mahoning Court’s findings of fact and conclusions of law (see supra, at 10-14), this Court finds that there is no genuine dispute that the Mahoning Judgment is a debt for willful and malicious injury caused by the Debtor/Defendant and that the Plaintiff is entitled to judgment as a matter of law. The Mahoning Judgment is not dischargeable pursuant to § 523(a)(6). As a consequence, the Court will grant the Plaintiffs Motion for Summary Judgment. V. CONCLUSION The Mahoning Court determined that the Debtor/Defendant (i) caused injury to the Plaintiff by violating the Uniform Trade Secrets Act; (ii) intended to cause this injury; and (iii) acted maliciously. Pursuant to Ohio law, collateral estoppel precludes this Court from determining issues of fact and conclusions of law determined by the Mahoning Court because (i) the Plaintiff and the Debtor/Defendant were parties to the original State Court Action, which resulted in a final judgment on the merits; (ii) the Debtor/Defendant was provided a full and fair opportunity to litigate the Mahoning Judgment; (iii) the issue of whether the Debtor/Defendant willfully and maliciously caused injury to the Plaintiff was actually tried and decided by the Mahoning Court and was necessary to the Mahoning Judgment; and (iv) the issue in (iii), above, is identical to the issue presently before this Court. Based on the findings by the Mahoning Court, the Plaintiff is entitled to judgment as a matter of law. As a consequence, the Mahoning Judgment is not dischargeable pursuant to 11 U.S.C. § 523(a)(6). This Court will grant the Plaintiffs Motion for Summary Judgment. An appropriate Order will follow. ORDER GRANTING SUMMARY JUDGMENT This cause is before the Court on Plaintiffs Motion for Summary Judgment filed by Plaintiff Clearview Designs, Inc. (“Plaintiff’) on August 29, 2011 (Doc. # 30). On September 19, 2011, the Debt- or/Defendant Michael Robert Angelilli (“Debtor/Defendant”) filed Reply to Plaintiffs Motion for Summary Judgment (Doc. # 31). For the reasons set forth in this Court’s Memorandum Opinion entered on this date, this Court hereby: (1) Finds that, pursuant to the doctrine of collateral estoppel, this Court must accept the findings of fact and conclusions of law reached by the Mahoning Court in the Mahoning Judgment; (2) Finds that there is no genuine issue of material fact in the instant proceeding; (3) Finds that the Plaintiff is entitled to judgment as a matter of law; (4) Finds that the Mahoning Judgment is not dischargeable pursuant to 11 U.S.C. § 523(a)(6); and (5) Grants the Plaintiffs Motion. For the reasons set forth in this Court’s Memorandum Opinion, entered on this date the Court hereby grants the Plaintiffs Motion for Summary Judgment. IT IS SO ORDERED. . The Mahoning Judgment incorporated by reference the Findings and Conclusions. . In the prayer for relief, the Plaintiff also requests “an order disallowing the Trustee to Grant Debtor’s Discharge.’’ (Compl. at 16.) Because tire Complaint is based entirely on 11 U.S.C. § 523(a)(6), denial of a discharge to the Debtor is not properly before the Court. .The Court notes that because the Mahoning Judgment found the Debtor/Defendant jointly and severally liable with the co-defendants in the State Court Action, the Plaintiff was not required to file a non-dischargeability actions against any other co-defendants who also filed for bankruptcy protection. . Although the Plaintiff does not specifically address issue preclusion in the Motion for Summary Judgment, the Court infers that the Plaintiff's Motion for Summary Judgment is based, at least in part, on the doctrine of collateral estoppel. . The Mahoning Judgment explicitly states, ''[t]he parties waived their right to trial by jury and proceeded to a bench trial." (Mot. for Summ. J., Ex. A at 1.) . In fact, the Mahoning Court specifically stated in the Mahoning Judgment that "Clear-view Designs, Inc., ... has been financially damaged as a result of Trade Secret Violations.” (Mahoning Judgment at 18.)	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494496/	51DECISION OF THE COURT: 1) DISMISSING PLAINTIFFS’ THIRD CAUSE OF ACTION FOR VIOLATIONS OF THE EQUAL CREDIT OPPORTUNITY ACT AND PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT; -AND- 2) DENYING THE REMAINDER OF DEFENDANTS’ MOTIONS TO DISMISS LAWRENCE S. WALTER, Bankruptcy Judge. The matter is before the court on two motions for partial dismissal filed by Defendants Ocwen Loan Servicing, LLC (“Ocwen”) and U.S. Bank National Association, as Trustee for the registered holders of GSRPM 2004-1, Mortgage Pass-Through Certificates (“the Trust”) [Adv. Docs. 11 and 14]. A response was filed by Plaintiff-Debtors Harold and Durinda Simmerman (“the Simmermans”) [Adv. Doc. 23]; and Defendants Ocwen and the Trust filed a joint reply [Adv. Doc. 28]. Defendants Ocwen and the Trust (collectively “Defendants”) assert that the court should dismiss all but one1 of the causes of action in the Simmermans’ complaint. The Simmermans’ complaint contains four causes which can be summarized as follows: 1) violation of 11 U.S.C. § 524(i) by Defendants’ attempt to collect funds in this bankruptcy case that have already been paid in a prior one; 2) disallowance of Defendants’ proof of claim for failure to establish that they hold or own the note and mortgage at issue; 3) violations of the Equal Credit Opportunity Act (ECOA) based on allegations that Defendants’ assignor misled the Simmermans into signing a mortgage refinancing agreement with terms that differed from those in their original application; and 4) violations of the Fair Debt Collection Practices Act (“FDCPA”) by Defendant Ocwen for attempting to collect payments without legal authority and/or that were already made. Defendants assert various theories for dismissal at least some of which are related to the fact that this is not the Simmer-mans’ first bankruptcy case and certain causes of action should have been raised in the prior one. After careful research and review of the parties’ memoranda, the court concludes that two of the Simmermans’ causes of action must be dismissed. First, the Sim-mermans fail to state an ECOA claim against the Defendants because there are no allegations that Defendants were involved in the decision to extend credit to the Simmermans or in establishing the terms of that credit. Consequently, Defendants are not “creditors” to whom the ECOA notice requirements apply. The court further dismisses the Simmermans’ fourth cause of action under the FDCPA because the statute of limitations has expired. Defendants’ other arguments for dismissal either lack merit or rely on facts outside the complaint. Consequently, in all other respects, the motions to dismiss are denied. FACTUAL AND PROCEDURAL BACKGROUND The Simmermans filed their most recent Chapter 13 bankruptcy petition on September 30, 2008. On February 6, 2011, they filed an adversary complaint against Defendants regarding the loan and mortgage on the Simmermans’ residential prop52erty at 2670 Hayward Avenue in Dayton, Ohio. Because this matter is before the court on motions to dismiss, the following facts found in the Simmermans’ complaint are deemed true. A. The Simmermans’ Mortgage Loan Refinancing with Bank One On August 31, 2000, prior to filing any bankruptcy proceeding, the Simmermans entered into a loan agreement with Bank One, N.A. to refinance their variable rate mortgage [Adv. Doc. 1, ¶¶ 7-8]. To apply for the loan, the Simmermans believe they submitted a Uniform Residential Loan Application in which they specifically requested a 30 year fixed rate loan [Id., ¶ 18]. At the time of the loan origination, the Sim-mermans were told by a loan officer, Michael Scott, that the refinanced loan would be a 30 year loan and that the payment would include escrow fees for insurance and property taxes [Id., ¶¶ 11-13]. The Simmermans were not provided an opportunity to review the loan documents and were simply asked to sign and initial the paperwork at the twenty-minute closing. [Id., ¶¶ 16-17], At no time during the process or at the closing did Bank One, Michael Scott, or anyone else inform them that their loan application for the 30 year fixed mortgage had been rejected [Id., ¶ 19]. In addition, the Simmermans did not receive any documentation or disclosure of the rejection or why the loan had not been processed [Id., ¶ 20]. The loan the Simmermans actually closed on was a 15 year term note that required a balloon payment of $114,833.02 at the end of the 15 year period [Id., ¶ 15]. B. The Simmermans’ 2002 Bankruptcy Filing and the Purported Assignment of the Mortgage On July 29, 2002, the Simmermans filed their first of two Chapter 13 bankruptcy petitions in Dayton, Ohio. [Id., ¶¶ 28-29]. The first case, Case No. 02-35519 (“the 2002 bankruptcy case”), was filed to resolve various debts incurred in the Sim-mermans’ business [7d]. The Simmermans were never told when filing their 2002 bankruptcy case that the Bank One loan would require a balloon payment [Id., ¶ 30]. Sometime in 2004, while the 2002 bankruptcy case remained active and the mortgage loan was in default, the Trust allegedly became the assignee of the mortgage deed and owner of the Simmermans’ note [Id., ¶¶ 25-26]. The Simmermans believe that the Trust is a private trust established by Goldman Sachs in 2004 to reprocess delinquent mortgage loans in a Goldman Sachs Re-Performing Mortgage (“GSRPM”) privately funded securities package [Id., ¶ 43]. Ocwen, a corporation that provides financial services and loan servicing for commercial and residential property loans, serviced the Simmermans’ mortgage loan for collection upon the loan being acquired by the Trust [Id., ¶¶ 2, 27]. By the end of the 2002 bankruptcy case, the Simmermans paid over $70,000 on the mortgage claims to Ocwen, Bank One, and/or the Trust even though the Trust and Ocwen could not substantiate that the Trust actually owned the note or had been assigned the mortgage deed [Id., ¶ 31]. On January 24, 2008, the Simmermans received a discharge in the 2002 bankruptcy case [Id., ¶ 32]. The court also entered an order that the Simmermans’ real estate mortgage was current effective December 1, 2007 [Id., ¶ 33]. The Simmermans believe that they continued to make all loan payments owed on the mortgage until the date of their second bankruptcy filing [Id., ¶ 34], C.The Simmermans’ 2008 Bankruptcy Filing On November 18, 2008, the Simmermans filed their second bankruptcy petition initi53ating the current Chapter 13 case (“the 2008 bankruptcy case”) [Id., ¶ 34]. Subsequently, Ocwen filed a proof of claim and amended proof of claim on behalf of the Trust [Id., ¶¶ 44-45]. Attached to the proof of claim are a note and mortgage deed which identify Bank One as the holder of the note and owner of the mortgage deed with no documentation of Trust ownership by assignment or otherwise nor any endorsement to the Trust [Id., ¶¶ 44-45, 55], To date, neither the Trust nor Ocwen has provided the Simmermans with documentation that can establish Trust ownership of the Note or the Mortgage [Id., ¶ 47]. Furthermore, neither the Trust nor Ocwen has provided evidence of any endorsement of the Note that would entitle the Defendants to payment on the claim [Id., ¶¶ 55-57], In addition, the Simmermans believe that neither the Trust nor Ocwen can demonstrate compliance with the Trust terms for acquiring the note or mortgage deed at the time they filed claims in the Simmer-mans bankruptcy cases [Id. ¶¶ 36, 46-50, 56-59]. Trust provisions, more specifically the Pooling and Servicing Agreement (“PSA”), require that the note transfer or endorsement and mortgage assignment occur before a “cut-off date” that is 180 days or less from the date the Trust is established [/&]. The Simmermans do not believe that the Trust or Ocwen can demonstrate compliance with these requirements [M], The Simmermans also take issue with aspects of the Defendants’ claim filed in the current bankruptcy case which the Simmermans believe was based on incorrect information about the amounts owed on the loan [Id., ¶ 35]. The claim includes a fee for $1,300.42 for fees or other charges that were effectively paid through the first bankruptcy case [Id., ¶¶ 37-41]. STANDARD FOR DISMISSAL Defendants request partial dismissal of the Simmermans’ complaint under Fed. R.Civ.P. 12(b)(6), incorporated in bankruptcy adversary proceedings by Fed. R. Bankr.P. 7012 for failure of the Simmer-mans to state claims upon which relief can be granted. To survive a 12(b)(6) attack, the Simmermans’ complaint “must contain sufficient factual matter, accepted [by the court] as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (further citation omitted). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard is “not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The factual allegations provided in the complaint need not be detailed. Id.; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, a complaint must only include “a short and plain statement of the claim showing that the pleader is entitled to relief’ in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2) (incorporated in bankruptcy by Fed. R. Bankr.P. 7008); Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Nonetheless, the facts provided must be sufficient to raise a right to relief “above the speculative level” and the plaintiff has the obligation to provide more than just “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. See also Iqbal, 129 S.Ct. at 1949 (noting that “[t]hreadbare recitals of the elements 54of a cause of action, supported by mere conclusory statements do not suffice”). In assessing the complaint, the court must keep in mind that the purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of the plaintiffs claims for relief and not to weigh the evidence. Perry v. United Parcel Service, 90 Fed.Appx. 860, 2004 WL 193203, at 1 (6th Cir. Jan. 30, 2004); Armengau v. Cline, 7 Fed.Appx. 336, 2001 WL 223857, at 5 (6th Cir. March 1, 2001). “Therefore, when deciding a motion to dismiss a court may consider only matters properly a part of the complaint or pleadings.” Armengau, 2001 WL 223857, at 5. See also Kostrzewa v. City of Troy, 247 F.3d 633, 643-44 (6th Cir.2001) (noting that if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Fed.R.Civ.P. 56 and the parties must be provided additional notice and an opportunity to supplement the record). LEGAL ANALYSIS Defendants attack the Simmermans’ adversary complaint- based on a variety of theories including, but not limited to, judicial estoppel, lack of standing, and the failure of the Simmermans to demonstrate that the Defendants can be held liable under the statutory causes of action in the complaint. The court will initially deal with what it considers the preliminary issues involving judicial estoppel and the Simmermans’ standing to bring causes of action that belong to this bankruptcy estate or a prior one and then proceed with the Defendants’ other bases for dismissal.2 A. Judicial Estoppel/Standing Defendants urge this court to conclude that the Simmermans are judicially es-topped from pursuing, or lack standing to pursue, the various causes of action in the complaint because they are estate property. To add more complexity to the argument, some of the causes of action may have arisen before or during a prior bankruptcy case. Consequently, the Defendants’ motions to dismiss raise the following questions: 1) should the Simmermans have raised any of the causes of action in their prior bankruptcy case and, if so, are they judicially estopped from raising them in the current one; and 2) do the Simmer-mans have standing to pursue causes of action that belong to the current bankruptcy estate? 1. Causes of Action as Part of Prior (2002) or Current (2008) Bankruptcy Estate The court begins the inquiry with some of the basic tenants of bankruptcy law. When a debtor files a bankruptcy petition, an estate is created that includes, with limited exceptions, “all legal or equitable interests of the debtor in property as of the commencement of the bankruptcy case.” 11 U.S.C. § 541(a). Property of the estate encompasses a broad range of assets including a debtor’s lawsuits and causes of action that arose prior to the petition filing date. In re Bailey, 421 B.R. 841, 848 (Bankr.N.D.Ohio 2009); Darrah v. Franklin Credit (In re Darrah), 337 B.R. 313, 316 (Bankr.N.D.Ohio 2005). In determining when a cause of action arises, the court looks not to when it accrued but whether it is sufficiently rooted in the debtor’s pre-bank-ruptcy past to constitute property of the 55estate. Mueller v. Hall (In re Parker), 368 B.R. 86 (Table), 2007 WL 1376081, at 7-8 (6th Cir. BAP May 10, 2007); French v. St. Rita’s Medical Center, 2008 WL 3822278, at 3 (ND.Ohio Aug. 12, 2008). Furthermore, in Chapter 13 eases, the estate also includes assets acquired by a debtor after the commencement of the case but before the case is closed, dismissed, or converted. 11 U.S.C. § 1306(a). Upon review of the complaint, it becomes clear that the Simmermans’ third cause of action, for violation of the Equal Credit Opportunity Act (“ECOA”), arose prior to the Simmermans’ 2002 bankruptcy case and consequently, should have been scheduled as part of the 2002 bankruptcy estate. The Simmermans assert that Bank One and its representatives violated the ECOA by failing to provide written notification to the Simmermans that their loan application had been rejected and supplanted with a loan offer including materially different terms [Adv. Doc. 1,¶¶ 85-86]. The critical events creating the potential liability on the part of Bank One, or its assignees, occurred in conjunction with an August 2000 loan closing prior to the Simmermans’ first Chapter 13 bankruptcy filing in 2002. [Id., ¶¶ 7-24]. Consequently, the ECOA cause of action is an asset of the Simmermans’ 2002 bankruptcy estate. Furthermore, aspects of the Sim-mermans’ fourth cause of action against Defendant Ocwen, for violations of the Fair Debt Collections Practices Act (“FDCPA”), may constitute property of the Simmermans’ 2002 bankruptcy estate. The Simmermans claim that Ocwen violated the FDCPA by unlawfully collecting funds from the Simmermans on the mortgage loan without the legal authority to do so [Id., ¶¶ 93-95]. To the extent that the Simmermans attempt to recoup or base liability on money collected by Ocwen during the 2002 bankruptcy case [Id., ¶ 31], that claim would also be property of the Simmermans’ 2002 bankruptcy estate pursuant to 11 U.S.C. § 1306. The remaining causes of action in the complaint include: 1) a violation of 11 U.S.C. § 524(i) for including fees in the Defendants’ current proof of claim that were actually paid or discharged in the prior case3; 2) disallowance of the Defendants’ current proof of claim for failing to demonstrate that Defendants own or hold the note and mortgage; and 3) violations of the FDCPA for Ocwen’s attempts to collect funds already paid or without legal authority after the closing of the Simmer-mans’ 2002 bankruptcy case. The court concludes that these causes of action are sufficiently rooted in events that occurred after the Simmermans’ 2002 bankruptcy case was closed. Consequently, they constitute assets of the Simmermans’ current 2008 bankruptcy estate. 2. Insufficient Facts to Determine Whether the Simmermans Are Judicially Estopped from Pursuing Causes of Action Undisclosed in the 2002 Bankruptcy Case Because the Simmermans’ third cause of action and aspects of the Simmer-mans’ fourth cause of action constitute property of the Simmermans’ 2002 bankruptcy estate, the court must determine whether the Simmermans may litigate these actions in this adversary proceeding. Defendants assert that the doctrine of judicial estoppel bars the Simmermans from pursuing these causes of action because 56they were not disclosed during the prior bankruptcy case.4 Judicial estoppel is an equitable doctrine which “bars a party from asserting a position that is contrary to one the party has asserted under oath in a prior proceeding, where the prior court adopted the contrary position ‘either as a preliminary matter or as part of a final disposition.’ ” Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 897 (6th Cir.2004) (quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir.1990)). Its purpose is to prevent “a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment.” Id. Nonetheless, the doctrine should be applied with caution to “avoid impinging on the truth seeking function of the court, because the doctrine precludes a contradictory position without examining the truth of either statement.” Id. The Sixth Circuit has concluded that judicial estoppel may apply in bankruptcy to bar a debtor from pursuing a cause of action for his own benefit after the debtor intentionally failed to disclose the cause of action, which was properly part of the bankruptcy estate, in his bankruptcy schedules sworn to under oath. Id. at 898. However, the Sixth Circuit has also made clear that judicial estoppel is inappropriate if the failure to disclose the cause of action was inadvertent, such as when a debtor lacks knowledge of the factual basis for the undisclosed claim, or the debtor had no motive to conceal the potential claim. Id. at 898-99; Browning v. Levy, 283 F.3d 761, 776 (6th Cir.2002). In the case at hand, application of judicial estoppel is premature. Because this matter is before the court on a motion to dismiss, there are no facts before the court from which to determine what was disclosed in the prior Chapter 13 case. Furthermore, the court cannot determine, based solely on allegations in the complaint, whether any failure to disclose in the prior case was inadvertent or without motive. Consequently, Defendants’ argument for dismissal lacks merit. 3. The Simmermans Have Standing to Pursue Causes of Action Belonging to the Current (2008) Bankruptcy Estate Even if the Simmermans’ are not judicially estopped from pursuing causes of action from the prior bankruptcy case, those causes of action, along with all of the others, became property of the 2008 bankruptcy estate upon the second bankruptcy filing. The question becomes whether it is the Simmermans or the Chapter 13 Trustee who has standing to pursue causes of action belonging to the current Chapter 13 estate. Although a debtor’s causes of action become estate property upon filing a Chapter 13 bankruptcy petition, it is less clear who has the power to pursue them. The lack of clarity stems from the fact that the Bankruptcy Code vests the Chapter 13 debtor with some but not all of the powers of a trustee. See Smith v. Rockett, 522 F.3d 1080, 1081 (10th Cir.2008). See also Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Ed., § 54. 1, at ¶ 2, Sec. Rev. May 24, 2004, www.Chl3 online.com. For example, a Chapter 13 debtor, unlike a Chapter 7 debtor, remains in possession of estate property except as provided in a confirmed plan or order confirming a plan. 11 U.S.C. § 1306(b). Fur57thermore, the Chapter 13 debtor, unlike a Chapter 7 debtor, is vested with the trustee’s powers under 11 U.S.C. § 363(b) and (d) to use, sell or lease property of the estate. 11 U.S.C. § 1303. Thus, while the Bankruptcy Code does not specifically address the issue of who has the authority to commence or continue a Chapter 13 debt- or’s lawsuits, “the four [now five with Rockett ] circuit courts to consider this issue have all concluded that Chapter 13 debtors have standing to bring claims in their own name on behalf of the bankruptcy estate.” Rockett, 522 F.3d at 1081 (citing cases). The Sixth Circuit is not one of the circuit courts that has addressed whether a Chapter 13 debtor has standing to pursue causes of action belonging to the bankruptcy estate. Nonetheless, a district court facing the issue concluded that the Sixth Circuit would follow the other circuits and hold that a Chapter 13 debtor has standing to bring such lawsuits. Johnson v. Interstate Brands Corp., 2008 WL 152895, at 6 (W.D.Tenn. Jan. 14, 2008). That sentiment was more recently echoed by the Sixth Circuit Bankruptcy Appellate Panel which concluded that the Sixth Circuit would grant a Chapter 13 debtor derivative standing to pursue avoidance actions based, in part, on the fact that the debtor has more power over estate assets and a better ability to pursue lawsuits than a Chapter 13 trustee. Countrywide Home Loans v. Dickson (In re Dickson), 427 B.R. 399, 405-06 (6th Cir. BAP 2010) aff'd on other grounds 655 F.3d 585 (6th Cir.2011). This court agrees with these assessments of the Sixth Circuit’s likely determination of the issue. Consequently, the court concludes that the Simmermans have standing to pursue the causes of action in the complaint on behalf of the current bankruptcy estate and the Defendants’ motion to dismiss the Simmermans’ claims based on a lack of standing is denied. B. “Defective Legal Theories” The court now turns to the Defendants’ remaining arguments for dismissal including their general assertion that the Sim-mermans’ causes of action are based on “defective legal theories.” According to Defendants, the complaint inappropriately focuses on the Simmermans’ mortgage closing with Bank One and the allegation that the Simmermans were “rushed” or “duped” into signing a mortgage refinancing agreement that had different terms than what they had originally requested in their application. Defendants argue that the Simmermans cannot claim that they were misled during the closing when they could have read the documents and chosen not to sign them citing, among other cases, Sheet Metal Workers Int’l Ass’n, Local No. 33 v. Tate, 65 Ohio Misc.2d 48, 640 N.E.2d 1219 (Ct.Com.Pl.1993) (involving an employer’s claim of misrepresentation in a collective bargaining agreement), McCuskey v. Budnick, 165 Ohio St. 533, 138 N.E.2d 386 (1956) (involving a claim of fraudulent inducement to sign a release), and Stonecreek Properties Ltd. v. Ravenna Savings Bank, 2004 WL 1559725 (Ohio Ct.App. July 9, 2004) (involving claims of breach of contract and negligent misrepresentation in a financing agreement). While the Defendants’ arguments and ease citations might be relevant if the Sim-mermans claimed common law fraud or misrepresentation, the Simmermans’ complaint is bereft of such claims. These defensive arguments simply do not engage the specific causes of action that actually appear in the complaint such as the Defendants’ alleged violations of federal statutory provisions or their failure to prove they own or hold the Simmermans’ note and mortgage. Because Defendants’ argu58ments fail to attack the sufficiency of the actual claims in the complaint, these arguments do not form a basis for dismissal. C. Second Cause of Action: Disal-lowance of Claim Next, the Defendants attack the complaint’s second cause of action for dis-allowance of Defendants’ proof of claim. In the complaint, the Simmermans object to the Defendants’ proof of claim asserting it should be disallowed because Defendants have failed to establish that they own or hold the Simmermans’ note and mortgage [Adv. Doc. 1, ¶¶ 68-83]. Certainly it is true that a debtor may object to a proof of claim when the debtor has a valid basis for questioning the creditor’s alleged ownership of the claim or the enforceability of the claim against the debtor outside of bankruptcy. See 11 U.S.C. § 502. See also Veal v. American Home Mortgage Servicing, Inc. (In re Veal), 450 B.R. 897, 922 (9th Cir. BAP 2011) (holding that a debtor may challenge a party’s standing to file a proof of claim at which point the party must show that it is a creditor or the creditor’s authorized agent in order to obtain the benefits of Fed. R. Bankr.P. 3001(f)’s “prima facie evidence” provision); In re Wells, 407 B.R. 873, 882 (Bankr.N.D.Ohio 2009). Nonetheless, Defendants raise two arguments in support of the dismissal of the Simmermans’ claim objection. First, the Defendants again raise the doctrine of judicial estoppel asserting that it bars the Simmermans from challenging the Defendants’ standing to file the proof of claim. Second, the Defendants argue that the Simmermans lack standing to object to the proof of claim based on deficiencies in the assignment to the Defendants. For the reasons cited below, the court concludes that both arguments lack merit as a basis for dismissal. 1. Judicial Estoppel Does Not Bar the Simmermans from Objecting to Defendants’ Proof of Claim Defendants raise the judicial es-toppel doctrine for the second time but in a slightly different manner. Defendants argue that the Simmermans should be “judicially estopped” from challenging the Defendants’ lack of documentation to support their ownership of the proof of claim because the Simmermans failed to raise the issue in the prior 2002 bankruptcy case. Defendants assert that the Simmer-mans received a notice of a change in servicer in 2004 while the 2002 bankruptcy case remained active. Instead of challenging Defendants’ documentation at that time, the Simmermans continued to pay on their mortgage loan to the new servicer. According to Defendants, this inaction coupled with continued payments amounts to an acceptance of Defendants’ proof of claim in the prior case and, consequently, the Simmermans are “judicially estopped” from contesting the proof of claim in the current case. In order to make this argument, Defendants rely on factual assertions that do not appear in the Simmermans’ complaint including that the Simmermans received a notice of a change of mortgage servicer in 2004 that should have prompted them to take action in the first bankruptcy case. Neither these facts nor the specific details of the alleged notice are part of the complaint and are, consequently, not an appropriate basis for dismissal. However, even assuming that such facts were found in the complaint, the Defendants fail to meet the requirements for the application of judicial estoppel. As noted previously, judicial estoppel is an equitable doctrine intended to prevent a “party from abusing the judicial process through cynical gamesmanship, achieving success on one position, 59then arguing the opposite to suit an exigency of the moment.” Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir.1990). To invoke the doctrine, a party must show that “the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court.” Id. See also Burnes v. Pemco Aeroplex Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (noting that “judicial estoppel is applied to the calculated assertion of divergent sworn positions”). Furthermore, intentional misconduct is a necessary element. In re Parker, 391 B.R. 411, 416 (Bankr.S.D.Ohio 2008); In re Trans World Airlines, Inc., 261 B.R. 103, 111 (Bankr.D.Del.2001). Indeed, the assertion of an inconsistent position in the prior action does not alone trigger the application of judicial estoppel. Trans World Airlines, 261 B.R. at 111. “Rather, the self-contradiction must be used as a means of obtaining an unfair advantage.” Id. To support the applicability of judicial estoppel, Defendants rely on the Simmer-mans’ inaction upon receiving notice of a change in servicer rather than any unequivocal and intentional position taken under oath. Furthermore, the Defendants do not explain how the Simmermans’ inaction in the prior bankruptcy case amounts to an intentional attempt to gain an unfair advantage. Indeed, the Simmermans’ inaction, if the complaint’s allegations are true, seems to have resulted in a serious disadvantage to the Simmermans in the form of continued payments on the mortgage claim to the wrong party during the first bankruptcy case. Defendants point to no facts in the complaint to support the type of “gamesmanship” to which judicial estoppel would apply. Consequently, Defendants’ argument is without merit. 2. The Simmermans Have Standing to Challenge the Defendants’ Right to Enforce the Mortgage and Note Although not fully developed in the motion to dismiss, the Defendants further assert that the Simmermans “lack standing” to challenge the Defendants’ proof of claim to the extent that the challenge is based on deficiencies in the assignment of the note and mortgage from Bank One to Defendants. To make the argument, Defendants rely on the Sixth Circuit decision of Rogan v. Bank One, N.A. (In re Cook), 457 F.3d 561 (6th Cir.2006). After careful review of that decision, as well as other recent opinions including that of Judge Humphrey in In re Smoak, the court concludes that the Defendants argument is ultimately without merit and their reliance on the Cook decision is misplaced. The court begins by noting that only a real party in interest may file a proof of claim in a debtor’s bankruptcy case which, pursuant to Fed. R. Bankr.P. 3001(b), is the creditor entitled to payment on a claim or the creditor’s authorized agent at the time the bankruptcy petition is filed. See In re Smoak, 461 B.R. 510, 516-18 (Bankr.S.D.Ohio2011); Densmore v. Litton Loan Servicing (In re Densmore), 445 B.R. 307, 311 (Bankr.D.Vt.2011); Wells, 407 B.R. at 882. The real party in interest with respect to a mortgage proof of claim “is the party entitled to enforce the note and its accompanying mortgage.” Smoak, 461 B.R. at 517. The court must look to applicable nonbankrupt-cy law to determine who is entitled to enforce the promissory note. Id. In Smoak, Judge Humphrey describes how an entity becomes entitled to enforce a promissory note as a “holder” under the Uniform Commercial Code (UCC) as adopted in Ohio: 60Under Ohio law, the holder of a negotiable instrument, including a promissory note, has the right to enforce it. Ohio Revised Code § 1303.31(A)(1) [UCC 3-301]; In re Foreclosure Cases, 521 F.Supp.2d 650, 653 (S.D.Ohio 2007); Nat’l City Mtge. Co. v. Piccirilli, 2011 WL 3819795 (Ohio Ct.App. Aug. 24, 2011).... Ohio Revised Code § 1301.01(T)(1) [now § 1301.201(B)(21) ] [UCC 1-201] defined “holder” with respect to a negotiable instrument as either: a) a person in possession of the instrument if the instrument is payable to bearer; or b) the person identified in the instrument when that person is in possession of the instrument if the instrument is payable to an identified person. Smoak, 461 B.R. at 517. In other words, the holder of a promissory note becomes so by having physical possession of a note made payable to that person or physical possession of a note made payable to bearer through an endorsement in blank. Id.; Wells, 407 B.R. at 879. Because the holder of the promissory note is entitled to enforce the note and receive payment, it is generally the holder, or the holder’s authorized agent, that is the real party in interest for filing a mortgage proof of claim in a bankruptcy case.5 See Smoak, 461 B.R. at 521-22. Significantly, the holder of the note may differ from the owner of the note. Id. at 522-23 (noting that while Article 3 of the UCC establishes the person entitled to enforce a promissory note and receive payment, Article 9 addresses who has property interests in a negotiable instrument). See also Veal, 450 B.R. at 909-10 (noting that “Article 3 does not necessarily equate the proper person to be paid with the person who owns the negotiable instrument”). While a debtor has the right to challenge whether the creditor filing a proof of claim is the holder of the note, a debtor generally lacks standing to challenge who the owner of the note is because it does not impact who is entitled to enforce the note and who may file the proof of claim. Smoak, 461 B.R. at 518 (noting that the debtor “need not be concerned with who the owner of the Note is, but only that the payments are being delivered to a person with the right to enforce the Note”); Veal, 450 B.R. at 912 (noting that the maker of the note “should be indifferent as to who owns or has an interest in the note so long as it does not affect the maker’s ability to make payments on the note”). Turning to the arguments, Defendants assert that the Simmermans’ second cause of action for disallowance of the claim must be dismissed because these debtors “lack standing to challenge transfers of the note and mortgage or to challenge any entity’s compliance with the pooling and servicing agreement.” [Adv. Docs. 11 and 14, p. 6]. Defendants are correct, in part. In Smoak, the court held that debtors lack standing to challenge whether the transfer of a note and mortgage was invalid for failure to comply with the terms of a pooling and servicing agreement (“PSA”). Smoak, 461 B.R. at 518-21. The court’s determination was based on the fact that the debtors were not parties to or beneficiaries of the PSA and neither the transfer nor noncompliance with the PSA affected who was entitled to enforce the promissory note. Id. See also Wells, 407 B.R. at 880 (noting that an attempt to assign a note 61may create a claim to ownership of that note, but does not transfer the right to enforce the note). A somewhat similar conclusion was reached by the Sixth Circuit in Cook when it concluded that a bankruptcy trustee lacked standing to avoid a mortgage based on the failure of the assignee to follow a trust agreement’s requirement that the mortgage assignment be recorded. Cook, 457 F.3d at 567. The Sixth Circuit noted that recording the assignment was not a requirement under applicable state law6 to perfect the lien as long as the original mortgage was recorded. Id Consequently, while the failure to record the mortgage assignment that is only required by the trust agreement may impact the relationship between the parties to the agreement, it did not impede the ability to enforce the mortgage against third parties like the trustee of the bankruptcy estate. Id at 567-68. While Cook and Smoak demonstrate the limits on a debtor’s ability to challenge third party agreements affecting ownership of a note and mortgage, these eases differ from the present dispute in one significant way. In both Cook and Smoak, the entity who filed the mortgage proof of claim was undisputedly the holder of the promissory note, or an agent thereof, with the right to enforce the note against the debtors. See Cook, 457 F.3d at 565-66 (noting that Bank One had possession of the promissory note endorsed in blank); Smoak, 461 B.R. at 516-18 (noting that the parties stipulated to the trust’s status as the holder, a status obtained through possession of the note and an endorsement in blank). Because the Cook and Smoak defendants were able to demonstrate that they were “holders” under Article 3, their standing to file mortgage proofs of claim as the real parties in interest was clear. The same cannot be said for the Defendants in this case. In the complaint, the Simmermans assert that the Defendants have failed to demonstrate standing to file their proof of claim because the documentation attached to the proof of claim does not bear Ocwen or the Trust’s name nor any endorsement. [Adv. Doc. 1, ¶¶ 73-77 and Exs. A-B]. With this cause of action, the Simmermans legitimately question whether Defendants are the real parties in interest to file a proof of claim.7 Resolution of the issue will likely require a physical examination of the original promissory note as well as any endorsements to determine whether Defendants were “entitled to enforce the note” at the time they filed the mortgage proof of claim. See Veal, 450 B.R. at 911. See also Densmore, 445 B.R. at 312 (noting that in order to file a proof of claim, a creditor must have standing and be entitled to enforce its rights under the note and mortgage at the time of the filing). Because the Simmer-mans raise a legitimate basis for disallow-62anee of Defendants’ proof of claim, the cause of action will not be dismissed. D. Third Cause of Action: Violations of the Equal Credit Opportunity Act Next, the Defendants take issue with the Simmermans’ third cause of action for alleged violations of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. According to the complaint, the violations occurred in connection with the refinancing of the Sim-mermans’ loan in August of 2000 [Adv. Doc. 1, ¶¶ 7-8]. The complaint includes no allegations that Defendants were in any way parties to or involved in extending the loan. Nonetheless, the Simmermans assert that Defendants can be held liable as assignees because they “regularly extend consumer credit” and knew or should have known of the violation through Bank One’s loan files in Defendants’ possession [IcL, ¶¶ 24, 86-88]. Defendants urge dismissal arguing that the ECOA does not apply to them because they are only assignees who were not involved in the original loan closing and, consequently, are not “creditors” as that term is used in the ECOA. The Defendants further assert that the statute of limitations for an ECOA cause of action has expired and that the res judicata effect of the confirmed plan would prevent the Simmermans from pursuing the claim. After careful analysis discussed in more detail below, the court concludes that Defendants are not “creditors” to whom the ECOA applies and, consequently, the claim is dismissed without the need to reach the other issues. Before turning to why assignees like the Defendants are not “creditors” under the ECOA, the court believes it is helpful to provide some background on the relevant provisions of the Act. The ECOA makes it unlawful for creditors to discriminate against applicants for credit based on race, color, religion, national original, sex, marital status or age. 15 U.S.C. § 1691(a). More relevant to this case, the ECOA also requires that creditors notify applicants of “adverse action” within thirty days of such action. 15 U.S.C. § 1691(d). “Adverse action” means “a denial or revocation of credit, a change in the terms of an existing credit arrangement, or a refusal to grant credit in substantially the amount or on substantially the terms requested.” 15 U.S.C. § 1691(d)(6). The notification of adverse action must be in writing. 15 U.S.C. § 1691(d)(2). The Simmermans allege that the ECOA’s notice requirements were violated when neither Bank One nor its agents notified the Simmermans that their original application for a mortgage loan had been denied and was replaced by a mortgage offer with terms quite different from the original application. [Adv. Doc. 1, ¶¶ 11-21]. Significantly, these requirements of the ECOA only apply to “creditors.” The ECOA defines a “creditor” as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew or continue credit.” 15 U.S.C. § 1691a(e). This statutory provision clearly covers some assignees but only those who “participate[ ] in the decision to extend, renew or continue credit.” Id. Consequently, a reasonable interpretation of the statutory provision would be that an assignee who does not participate in the decision to extend credit to a borrower, but, instead, only obtains the loan through an assignment after the origination, is not a “creditor” subject to liability under the ECOA. 63The court’s interpretation is supported by the ECOA’s implementing regulation and the comments to it that further define “creditor” for purposes of the Act. The ECOA’s implementing regulation (Regulation B) states in pertinent part: Creditor means a person who, in the ordinary course of business, regularly participates in a credit decision, including setting the terms of the credit. The term includes a creditor’s assignee ... who so participates.... A person is not a creditor regarding any violation of the Act or this regulation committed by another creditor unless the person knew or had reasonable notice of the act, policy, or practice that constituted the violation, before becoming involved in the credit transaction. 12 C.F.R. § 202.20) (2011). Even more helpful is the official staff interpretation of Regulation B that notes the following: The term creditor includes all persons participating in the credit decision. This may include an assignee or potential purchaser of the obligation who influences the credit decision by indicating whether or not it will purchase the obligation if the transaction is consummated. 12 C.F.R. § 202.2(l) (Supp. I). Regulation B and the official staff interpretation make clear that an assignee must somehow participate in or at least influence the “credit decision” to be held liable as a creditor. Further support for this interpretation is given by the comments of the Board of Governors of the Federal Reserve System in relation to a 2003 amendment of § 202.2(1)8: ... commenters asked the Board to clarify that a potential assignee that establishes terms of general applicability for credit extensions that it may acquire, but does not otherwise participate in setting the terms of individual loans, is not a creditor for purposes of the regulation. The [amendment] clarifies that the definition of creditor includes those who make the decision to deny or extend credit, as well as those who negotiate and set the terms of the credit with the consumer. But a potential assignee who establishes underwriting guidelines for its purchases but does not influence individual credit decisions is not a creditor. 68 FR 1314401, 2003 WL 1202439 (Regulation B, Docket No. R-1008) (Mar. 18, 2003). The statutory language together with the implementing regulation and the comments thereto support that an assignee may only be held liable as a “creditor” when the assignee influences the credit decision by, for example, participating in the decision to extend credit or by negotiating the terms of the credit. Without being involved in or influencing the credit decision, the assignee will not be held liable as a creditor under the ECOA. See, e.g., Wright v. Castle Point Mortgage, 2006 WL 1468678, at 4-5 (D.N.J. May 24, 2006) (concluding that the complaint failed to state an ECOA cause of action against an assignee of a mortgage loan when the complaint was void of any factual allegations that the company was directly involved in the violation and the assignment occurred after the loan was originated). Turning to this case, the complaint is bereft of any allegations that the Defen64dants participated in or otherwise influenced the decision by Bank One to extend credit to the Simmermans or the terms of that credit.9 Instead, the complaint alleges that Defendants became involved only when they acquired the loan in 2004, over three years after the loan origination. Because there are no allegations in the complaint that Defendants in any way influenced the decision to extend credit to the Simmermans or the terms of that credit, they are not the type of assignees who are “creditors” for purposes of the ECOA. Consequently, the Simmermans’ third cause of action for violation of the ECOA is dismissed. E. Fourth Cause of Action (Against Ocwen): Violations of the Fair Debt Collection Practices Act The Simmermans’ final cause of action is for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., an act designed to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). The cause of action is directed solely at Defendant Ocwen. The Simmermans assert that certain FDCPA provisions were violated by Ocwen when it attempted to collect on the mortgage debt without authorization as the holder or owner of the note and when it attempted to collect amounts already paid [Adv. Doc. 1, ¶ 94], Ocwen asserts that the claim must be dismissed because: 1) the statute of limitations has expired; 2) Ocwen, a loan servi-cer, is not a “debt collector” to whom the FDCPA applies; and 3) the res judicata effect of the confirmed plan prevents the Simmermans from pursuing the FDCPA claim. The court agrees with Ocwen that the FDCPA’s one year statute of limitations expired before the Simmermans filed their complaint. As such the Simmer-mans’ fourth cause of action is dismissed without the need to reach the issue of whether Ocwen is a “debt collector” or the other issues presented in the motion to dismiss. The FDCPA’s statute of limitations is contained in 15 U.S.C. § 1692k(d) which states that “[a]n action to enforce any liability created by this subchapter may be brought ... within one year from the date on which the violation occurs.” Courts in the Sixth Circuit have concluded that an FDCPA action is time-barred when based on the debt collector’s filing of a proof of claim that occurred more than one year before the FDCPA lawsuit was filed unless additional violating conduct occurred after the proof of claim filing. See Kline v. Mortgage Electronic Security Systems, 659 F.Supp.2d 940, 951-52 (S.D.Ohio 2009) (finding a debtor-mortgagor’s FDCPA claim time-barred to the extent it was premised on the debt collector’s filing of a proof of claim more than one year before the initiation of the FDCPA lawsuit; however, the FDCPA cause of action survived to the extent that the complaint contained additional allegations of improper collection actions outside of bankruptcy subsequent to the filing of the 65proof of claim); Rice-Etherly v. Bank One, N.A. (In re Rice-Etherly), 336 B.R. 308, 313 (Bankr.E.D.Mich.2006) (concluding that an FDCPA cause of action filed by a debtor three years after the filing of the proof of claim was time-barred).10 In the Simmermans’ complaint, the most recent act alleged to violate the FDCPA is the filing of an amended proof of claim in the current bankruptcy case, an act which occurred on October 22, 2008 [Adv. Doc. 1, ¶¶ 37, 41, 69, 94]. The Simmermans did not file their adversary complaint until February 6, 2011, long after the one year statute of limitations expired. Nonetheless, in response to Oewen’s motion to dismiss, the Simmermans argue that “Oewen’s unlawful attempts to collect on [the Simmermans’] mortgage are ongoing and continuing.” [Adv. Doc. 23, p. 13]. However, in making the argument, the Simmermans do not point to a single offending act by Ocwen that occurred after the filing of the proof of claim nor did the court find any allegations of subsequent violating acts in its review of the Simmer-mans’ complaint.11 Such a vague assertion of “ongoing and continuing” or “repeated” offending acts, without further factual detail, is not sufficient to survive dismissal under Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (noting that a complaint does not suffice if it tenders “a naked assertion” devoid of “further factual enhancement”). Because the allegations in the Simmer-mans’ complaint do not demonstrate that Ocwen engaged in improper conduct within the one year window of the FDCPA’s statute of limitations, the court concludes that the FDCPA cause of action is time-barred and, therefore, dismissed. CONCLUSION For the foregoing reasons, the court DISMISSES the following causes of action in the Simmermans’ complaint [Adv. Doc. 1]: a) the third cause of action for violations of the Equal Credit Opportunity Act; and b) the fourth cause of action for violations of the Fair Debt Collection Practices Act. In all other respects, the Defendants’ partial motions to dismiss [Adv. Docs. 11 & 14] are DENIED. SO ORDERED. . Defendants' motions to dismiss do not address the first count in the Simmermans’ complaint for violation of the discharge order pursuant to 11 U.S.C. § 524(i). Instead, Defendants filed answers with respect to that count [Adv. Docs. 13 and 16]. . Defendants filed separate motions to dismiss, but they contain very similar arguments except with respect to the fourth count in the Simmermans’ complaint which is directed only at Ocwen. Consequently, the court will treat the two motions collectively except where noted. . The Defendants do not attempt to dismiss the Simmermans’ first cause of action for violations of § 524(i). Consequently, the cause of action will not be further addressed in this decision. . Defendants also urge the court to determine that the Simmermans' causes of action "were discharged” in the prior case. However, the causes of action are assets and not debts. Consequently, they are not discharged. . Article 3 of the UCC provides other methods of becoming entitled to enforce the note without being a holder or without having physical possession. See Ohio Rev.Code § 1303.31; Veal, 450 B.R. 897, 910 n. 22 and 911-12. However, these methods are more uncommon and were not raised by the parties on dismissal. . Kentucky law was the applicable state law examined in Cook, 457 F.3d at 567. . The Simmermans further allege that the transfer of the note and mortgage to the Trust failed to comply with the terms of a pooling and servicing agreement (PSA) [Adv. Doc. 1, ¶¶ 46-50], As recognized in Smoak, debtors lack standing to challenge the ownership of the note and mortgage based on the failure to comply with the terms of a third party PSA nor is this a basis for objecting to a proof of claim. 461 B.R. at 518-23. Nonetheless, the Simmermans’ second cause of action remains valid because it does not clearly rely on these particular factual allegations, but, instead, appears to be based on the failure of the Defendants to attach documentation to the proof of claim demonstrating that that they are entitled to enforce the note [Adv. Doc. 1, ¶¶ 68-83]. Consequently, the court will not dismiss the Simmermans’ claim, but warns the Sim-mermans to take heed of the Smoak decision and understand the limits of this cause of action. . The wording of § 202.2(1) was changed effective April 15, 2003 to clarify the definition of creditor. 68 FR 1314401, 2003 WL 1202439 (Regulation B, Docket No. R-1008) (Mar. 18, 2003). The language was changed from "regularly participates in the decision of whether or not to extend credit” to "regularly participates in a credit decision, including setting the terms of the credit.” Id. . The Simmermans attempt to cast ECOA liability on Defendants by asserting that Defendants "regularly extend ... credit” which is part of the definition of "creditor” found in 15 U.S.C. § 1691a(e) [Adv. Doc. 1, ¶ 24], However, the remainder of the statutory definition, coupled with Regulation B and the comments thereto, make clear that to be held liable as an assignee, the assignee must, in some manner, influence the decision to extend credit to the consumer at issue. Furthermore, the Simmermans' bald assertion that Defendants regularly extend credit without further factual support would not pass muster under Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (noting that a plaintiff's obligation to provide the grounds for his entitlement to relief requires more than labels, conclusions and/or a formulaic recitation of the elements of a cause of action). . It should be noted that Rice-Etherly was criticized by the District Court for the Southern District of Ohio in the Kline decision with respect to a separate issue concerning the FDCPA. In Rice-Etherly, the bankruptcy court determined that an FDCPA cause of action is unavailable in bankruptcy if premised on conduct that occurred within the bankruptcy case like the filing of a proof of claim. See Rice-Etherly, 336 B.R. at 311-313 (concluding that debtor's FDCPA claim is barred because the conduct is remedied or governed by the Bankruptcy Code and, consequently, an FDCPA claim cannot be premised on the filing of a proof of claim). The District Court for the Southern District of Ohio disagreed with the Rice-Etherly court and held that there is no conflict between the Bankruptcy Code and the FDCPA nor does the Code impliedly repeal the FDCPA in bankruptcy. See Kline, 659 F.Supp.2d at 949-951. These cases highlight a significant dispute among the courts. However, this court need not address the issue because the parties did not raise it and the court is dismissing the Simmermans' FDCPA claim on other grounds. . The only act mentioned in the complaint that occurred after the filing of the proof of claim is Oewen’s issuing of an account statement dated November 17, 2008 [Adv. Doc. 1, ¶ 40 and Ex. C]. However, the Simmermans do not allege that the issuing of this statement violated the FDCPA. Even if it were so alleged, the lawsuit was still initiated more than two years later, long after the one year statute of limitations expired with respect to that act.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494498/	MEMORANDUM OPINION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT JACK B. SCHMETTERER, Bankruptcy Judge. Following judgment herein and remand by the Seventh Circuit Court of Appeals to consider specified issues, the Plaintiff Chapter 11 Trustee Paloian filed a Motion for Partial Summary Judgment. That Motion is denied by separate order for reasons set forth below. I. Introduction Doctors Hospital of Hyde Park, Inc. (“Doctors Hospital” or “Hospital”) filed a Chapter 11 Bankruptcy case on April 17, 2000. On March 28, 2001, LaSalle filed its proof of claim in the bankruptcy case in the amount of $60,139,317.04 based on asserted obligations of Doctors Hospital arising from its guarantee of a loan. Doctors Hospital filed the above titled Adversary Complaint pleading 28 counts against a number of individuals and entities, Dr. James Desnick and many others.1 However, Counts VIII, IX, and X of the Adversary Complaint asserted claims only against LaSalle Bank National Association, f/k/a LaSalle National Bank as trustee for certain asset certificateholders of Asset Securitization Corporation Commercial Mortgage Pass-Through Certificates, Series 1997, D5 (“LaSalle”). Those counts serve as a counterclaim to the LaSalle claim. On April 22, 2004, Gus A. Paloian (“Chapter 11 Trustee” or “Trustee Paloi-an”) was appointed as Chapter 11 Trustee for Doctors Hospital, and he became responsible for those counts. Counts VIII, IX, and X against LaSalle seek (1) to void as fraudulent transfers a guaranty and related security agreement that Doctors Hospital made in connection 96with a loan from LaSalle’s predecessor, Nomura Asset Capital Corporation, to Doctors Hospital’s landlord (Count VIII) and (2) to void a lease held by Defendant as Nomura’s assignee or to recover as fraudulent transfers payments of rent that Doctors Hospital had made to LaSalle in excess of the property’s fair market rental value (Counts IX and X). Count X was brought pursuant to 11 U.S.C. § 548(a)(1)(B). Count IX was brought pursuant to the Illinois Uniform Fraudulent Transfer Act and 11 U.S.C. § 544(b)(1), which is asserted to permit the trustee to avoid a transfer of the debtor’s property under applicable non-bankruptcy law. Trial on these counts concluded in March of 2007. Findings of Fact and Conclusions of Law were made and entered and a Final Judgment Order entered. In re Doctors Hosp. of Hyde Park, Inc., 360 B.R. 787 (Bankr.N.D.Ill.2007). It was held therein that rental payments made after July 7, 1998 were not fraudulent transfers because they were not made with assets of Doctors Hospital. Id. at 853. LaSalle’s request to void the lease pursuant to which rental payments were made was denied in the Judgment and not appealed. For rental payments made prior to July 7, 1998, the Chapter 11 Trustee was awarded damages to the extent that rental payments were found to have exceeded fair market value plus interest, resulting in judgment in favor of the Chapter 11 Trustee allowing his counterclaim in the amount of $4,342,238.43. Both parties filed motions to alter or amend the judgment, which were denied in Additional Findings of Fact and Conclusions of Law dated July 25, 2007. In re Doctors Hosp. of Hyde Park, Inc., 373 B.R. 53 (Bankr. N.D.Ill.2007). Separate appeals were fried and were consolidated by a District Court Judge. That Judge affirmed all Findings and Conclusions. LaSalle Nat. Bank Ass’n v. Paloian, 406 B.R. 299, 310 (N.D.Ill.2009). A. Remanded Issues The proceeding is now before the court on remand from the Court of Appeals for the Seventh Circuit. Paloian v. LaSalle Bank, N.A., 619 F.3d 688 (7th Cir.2010). At issue following remand is the holding following trial here that post-July 1998 rental payments were not fraudulent transfers. The remand order sought further consideration of two issues: First, whether there was a true sale of accounts receivable from the Hospital, and that issue further involves the question whether MMA Funding was in fact an actual business entity and not a part, department, or function of the Debtor. Paloian, 619 F.3d at 696. The status of MMA Funding is therefore relevant to Counts IX and X of the Adversary Complaint, because if it was not a true business entity dealing with its own funds, then payments made by it to LaSalle were from the Debtor’s assets and may be recoverable by the Chapter 11 Trustee. Second, whether Doctors Hospital was insolvent at any time before filing for bankruptcy. Solvency is a significant issue because if the Hospital was not insolvent when the payments in issue took place, then Trustee Paloian may not recover as fraudulent transfers under 11 U.S.C. §§ 544(b)(1) and 548(a)(1)(B) the payments that were made to LaSalle even if those payments are found to have been from property of the Debtor. At the first trial it was determined that certain payments to LaSalle beginning in July 1998 were made with property owned by MMA Funding, LLC, not by Doctors Hospital and therefore did not represent fraudulent transfers by the Hospital. In re Doctors Hospital of Hyde Park, Inc., 360 B.R. 787, 847 (Bankr.N.D.Ill.2007). In support of this conclusion, it was held that 97(a) the post-Agreement conduct of the parties did not modify the terms of the Loan and Security Agreement dated March 31, 1997 between Daiwa Healthco-2 and MMA Funding, In re Doctors Hospital of Hyde Park, Inc., 373 B.R. 53, 60-63; (b) the loans by Daiwa1 pursuant to the MMA Funding Loan Agreement were not in substance a loan to Doctors Hospital, In re Doctors Hospital of Hyde Park, Inc., 360 B.R. 787, 847-50 (Bankr.N.D.Ill.2007); (c) MMA Funding functioned as a special purpose entity, Id. at 851-52; (d) the transfer of the Doctors Hospital receivables was a true sale, Id. at 848; (e) MMA Funding was not the alter ego or instrumentality of Doctors Hospital, Id. at 849-52; and (f) viewing the agreements as written, the post-July 1998 transfers were not made with funds belonging to Doctors Hospital; Id. at 847-49. Further Findings and Conclusions entered here after the first trial relevant to the pending Motion for Summary Judgment include: 1. Legal Issues • Trustee Paloian argued MMA was a “classic shell company.” Id. at 847. That assertion was generally rejected, the Conclusions entered stated that MMA had a specific purpose “to serve as a bankruptcy-remote entity” in order to “isolate the financial assets in the SPE and thereby protect the lender from the bankruptcy risk of the operating company.” Id. To support this conclusion, this court originally pointed to Daiwa’s reliance on separateness and the legal conclusion stating that the special purpose entity would not be subject to substantive consolidation. Id. at 848. That opinion relied on UCC-1 statements and loan closing documents. Id. • In finding that MMA should not be treated as an alter ego of Doctors Hospital, it was earlier concluded that: • Use of common officers and directors does not of itself render one corporation liable for the obligations of another. Id. at 852. • Even though MMA had no officers or employees, filed no tax returns and had no assets other than Contribution Agreement — still had its own function as a special purpose entity limited to receiving and pledging the receivables as collateral. Id. • MMA was not an operating company and was never intended to be an operating company. Id. 2. Findings of Fact at Issue The remand order requires further inquiry related to some Findings of Fact that were earlier made: • No. 92: Doctors Hospital’s receivables were always reflected as its assets on its audited financial statements for fiscal years 1997, 1998, and 1999. • Id. at 803. • No. 93: Doctors Hospital’s audited financial statements for years 1997, 1998 and 1999 did not reflect any accounts receivable transferred to MMA Funding. Id. • No. 94. No balance sheets or profit- and-loss statements were prepared for MMA Funding after the Daiwa Loan closed, and MMA Funding never filed a tax return. Id. • No. 95. However, when the Daiwa Loan closed, a balance sheet for MMA Funding was prepared, which showed MMA Funding as owner of the receivables. Id. 98• No. 97. MMA Funding had no active checking-account, no insurance, and no phone. Id. • No. 98. Doctors Hosp. audited financial statements showed the loan. Id. Although the Court of Appeals Opinion accepted lower court resolution of most issues2, it left for further resolution the status of MMA Funding, LLC and payments of money from it to LaSalle. Nevertheless, the remand opinion disputed “Key Finding” No. 7 (Docket No. 588) that MMA Funding was separate from Doctors Hospital. See Paloian, 619 F.3d at 696. If that money actually belonged to Debtor at the time paid, then the question of whether Debtor was then solvent will determine whether the Trustee Plaintiff may recover it. B. Post-remand Motion After remand, the Chapter 11 Trustee has now moved for partial summary judgment under Fed.R.Civ.P. 56 (made applicable in bankruptcy by Fed. R. Bankr.P. 7056) seeking a determination that “MMA Funding, LLC, from and after July 7, 1998, was not a bankruptcy remote entity and therefore that all payments of rent from Doctors Hospital of Hyde Park, Inc. after July 7, 1998 were transfers of Doctors Hospital’s funds.” (Mot. Summ. J., at 2). The issue thus presented is whether MMA Funding was actually separate from Doctors Hospital so that it was a legitimate “bankruptcy-remote” entity, and if so whether there was a “true sale” of assets to it later used to make the payments in issue here. If MMA Funding became and remained a legitimate “bankruptcy-remote” vehicle arising out of the Daiwa loan, then payments by it would not have come from the Debtor’s assets, so that the Chapter 11 Trustee would be prevented from recovering payments made on the Nomura loan. Under § 548 of the Bankruptcy Code, “the trustee may avoid any transfer ... of an interest of the debtor in property ... made ... on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily ... received less than reasonably equivalent value in exchange for such obligation; and was insolvent on the date that such transfer was made, or became insolvent as a result of such transfer....” The language of the Illinois Uniform Fraudulent Transfer Act mirrors this language. See 745 ILCS 160/1 et seq. The date of the Hospital’s insolvency was an issue remanded by the Seventh Circuit in addition to the question regarding MMA Funding’s status. However, as noted, if MMA Funding was separate from and not part of the Debtor, then payments made to LaSalle by it were not made with the Hospital’s property. If those payments were not made with the Hospital’s property, then they are not recoverable under the pleaded theories. According to argument by Trustee Pal-oian, to be a separate “bankruptcy-remote” vehicle, such a special purpose vehicle must be separate as described in 7th Circuit’s Opinion in Paloian v. LaSalle Bank, N.A., 619 F.3d 688 (7th Cir.2010). In the remand Opinion, the Panel said the following in regards to MMA Funding: 99As far as we can tell from this record, however, MMA Funding lacked the usual attributes of a bankruptcy-remote vehicle. It was not independent of Des-nick or the Hospital; Desnick owned MMA Funding (99% of which was owned by the Hospital, and 1% of which was owned by a firm that Desnick owned directly or through a trust), and MMA Funding operated as if it were a department of the Hospital. It did not have an office, a phone number, a checking account, or stationary; all of its letters were written on the Hospital’s stationary. It did not prepare financial statements or file tax returns. It did not purchase the receivables for any price (at least, if it did, the record does not show what that price was).... Perhaps LaSalle can offer on remand evidence to show that there was a bona fide sale of accounts receivable from the Hospital to MMA Funding in March 2007 [sic, the Panel likely meant 1997], and that MMA Funding was more than a name without a business entity to go with it. Id. at 696. The judgment of the district court affirming the judgment entered here was vacated and ultimately remanded here for proceedings consistent with that opinion. C. Applicable Standard Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (made applicable in bankruptcy by Fed. R. Bankr.P. 7056). “The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.” Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 148 (7th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the initial burden is met, the non-moving party that bears the burden of proof on a dispositive issue at trial must affirmatively demonstrate a genuine issue for trial on that issue. See id. Under Fed.R.Civ.P. Rule 56(a) and Rule 7056(a) Fed. R. Bankr.P., a party may move for summary judgment on separate issues thereby seeking to resolve those issues before trial. Partial summary judgment is permitted if the movant shows there is no genuine issue of material fact on that part or all of a claim or defense. Fed.R.Civ.P. 56(a). II. Jurisdiction This Adversary proceeding arises out of and relates to the Chapter 11 case of Doctors Hospital, No. 00 B 11520. Jurisdiction lies under 28 U.S.C. §§ 157 and 1334 and District Court Internal Operating Procedure 15(a). As Counts VIII, IX, and X comprise counterclaims to the LaSalle claim against the Bankruptcy Estate and to recover fraudulent conveyances, under statute “core” authority lies under 28 U.S.C. § 157(b)(2)(C) and (H) to adjudicate finally those Counts. However, on July 13, 2011, the parties here were required to submit supplemental briefs on a bankruptcy judge’s authority to enter final judgment in this Adversary proceeding in light of the Supreme Court holding in Stern v. Marshall, - U.S.-, 131 S.Ct. 2594, 2620, 180 L.Ed.2d 475 (2011). The order called on the parties to discuss first whether the Constitution permits a bankruptcy judge to enter final judgment on the Chapter 11 Trustee’s fraudulent conveyance action that is defined by statute as a core matter under 28 U.S.C. § 157(b)(2)(C) and (H). Second, if such authority is not Constitutional under reasoning in Stem in absence of consent of the parties, they were asked 100whether they will consent to entry of final judgment under 28 U.S.C. § 157(c)(2) should such consent eliminate Constitutional concerns as to entry of final judgment by a bankruptcy judge. Under 28 U.S.C. § 157(b)(2)(H), fraudulent conveyance actions are core proceedings, which by statute permit a bankruptcy judge to enter final judgment on the action. 28 U.S.C. § 157(b)(1). That authority was arguably called into question by the Supreme Court decision in Stern v. Marshall. That decision held that the Constitution requires the “removal of [certain trustee] counterclaims ... from core bankruptcy jurisdiction” and placed within the purview of an Article III judge for entry of final judgment. 131 S.Ct. at 2620. The Stem holding was directed at non-bankruptcy law counterclaims that are not resolved in the process of ruling on a creditor’s proof of claim. Id. at 2619-20. Based on this holding, a bankruptcy judge’s authority to enter final judgment on non-bankruptcy law matters statutorily designated as “core proceedings” has been called into question. For example, in an article in the Bankmptcy Law Letter, University of Illinois law professor Ralph Bru-baker argues that § 157(b)(2)(H) is likewise unconstitutional to the extent it would allow a bankruptcy judge to enter final judgment. Ralph Brubaker, Article Ill’s Bleak House (Part II): The Constitutional limits of Bankmptcy Judge’s Core Jurisdiction, Bankr.L. Letter, Sept. 2011, at 1-2. In this case, the parties are apprehensive, in the absence of authority interpreting Stem, that a bankruptcy judge may lack authority to enter final judgment on proceedings to recover fraudulent conveyances. The Stem decision has arguably called into question the authority of a bankruptcy judge to enter final judgment on actions to recover a fraudulent conveyance and in other actions based on non-bankruptcy law. If that be so, then the proceeding here would constitute a “related matter,” in which the parties could consent to entry of judgment by a Article I judge under 28 U.S.C. 157(c)(2). Stem did not either impliedly or expressly end a litigant’s right to consent to entry of final judgment by an Article I judge. 28 U.S.C. § 157(c)(2); see In re Olde Prairie Block Owner, LLC, No. 10 B 22668, 2011 Bankr.LEXIS 3170, 2011 WL 3792406 (Bankr.N.D.Ill. Aug. 25, 2011). However, the parties here did not both consent to entry of final judgment by a bankruptcy judge. Therefore, after the remanded trial, proposed Findings of Fact and Conclusions of Law must be prepared here and submitted to a District Court Judge for review and possible entry of judgment. All of the foregoing calls into question this court’s authority to grant Trustee Paloian’s Motion for Summary Judgment as to the status of MMA Funding. Assuming arguendo that fraudulent conveyance actions are impacted by Stem and therefore removed from a bankruptcy judge’s Constitutional authority to enter final judgment, Trustee Paloian’s adversary claims still affect the amount available to pay Doctors Hospital’s creditors. This places Counts VIII, IX, and X of the Adversary Complaint within the “related-to” jurisdiction of the bankruptcy judge under 28 U.S.C. § 157(c)(1). Bankruptcy judges with related jurisdiction may still propose Findings of Fact and Conclusions of Law to a District Court Judge for decision whether to enter final judgment. But Summary judgment cannot be granted by a Bankruptcy Judge where that a Bankruptcy Judge lacks authority to enter judgment. As noted by Judge Wedoff in this District, “[d]enial of summary judgment is consistent with related-to jurisdiction, in that it leaves the entry of ultimate 101judgment to the district court.” In re Emerald Casino, 459 B.R. 298 (Bankr.N.D.Ill.2011) (Wedoff, J.). Accordingly, the Motion for Summary Judgment may be denied upon finding issues of material fact. But, if the Motion were to have merit, it cannot be granted except by a District Judge. III. Undisputed Background Facts A.Parties Relevant to this Motion Doctors Hospital of Hyde Park, Inc. was an Illinois Subchapter-S corporation that had its principal place of business at 5800 South Stony Island Avenue, Chicago, Illinois. From approximately August 24, 1992 until April 17, 2000, it was owned and controlled by Dr. James Desnick. (Jt. Ex. 202 ¶ 1.) James Desnick was, at all relevant times, the sole shareholder and director of Doctors Hospital. (Jt. Ex. 202 ¶ .) Daiwa Healthco-2 LLC (“Daiwa”) is a Delaware limited liability company with its place of business in New York City, New York. (Jt. Ex. 202 ¶ 3.) HPCH LLC (“HPCH”) was a Delaware limited liability company that acquired in 1997 the Doctors Hospital property. HPCH was owned 99% by HPCH Partners, L.P. and 1% by its managing member, HP Membership. Desnick was HPCH’s managing partner, owned 100% of HP Membership and approximately 99% of HPCH Partners, L.P. (Jt. Ex. 202 ¶4.) LaSalle Bank National Association, f/k/a LaSalle National Bank as Trustee for Certificate Holders of Asset Securiti-zation Corporation Commercial Mortgage Pass-Through Certificates, Series 1997, D5, by and through its Servicer, Orix Capital Markets, LLC (“LaSalle”), is a trust whose Trustee, LaSalle Bank National Association is a national banking association with its principal place of business in Illinois. (Jt. Ex. 202 ¶ 2.) Medical Management of America, Inc. was a Delaware corporation and purported manager of Doctors Hospital substantially owned and controlled by James Desnick. (see Jt. Ex. 202 ¶ 12.) MMA Funding, LLC (“MMA Funding”) was an Illinois limited liability corporation owned 99% by Doctors Hospital and 1% by MMA Funding, Inc. (also owned and controlled entirely by Desnick), the special purpose manager of MMA Funding, LLC. (Jt. Ex. 202 ¶ 11.) Nomura Asset Capital Corporation (“Nomura”) is a Delaware corporation with its principal place of business in New York City, New York. (Jt. Ex. 202 ¶ 14.) See generally In re Doctors Hospital of Hyde Park, Inc., 360 B.R. 787, 795-97 (Bankr.N.D.Ill.2007). B. History of Doctors Hospital HPCH Partners, LP, an entity controlled entirely by Desnick, purchased the real estate and facilities for approximately $2,400,000.00 in 1992. On August 24, 1992, HPCH Partners LP leased the real estate located at 5800 South Stony Island Avenue to Doctors Hospital until HPCH acquired the property some time in 1997. On August 28, 1997, Doctors Hospital entered into a lease agreement with HPCH, discussed below. Throughout its existence, Doctors Hospital used the property as a hospital. C. The Daiwa Loan Trustee Paloian appealed from the ruling that certain transfers to LaSalle’s account were not property of Doctors Hospital and therefore could not be recovered by the Hospital (as debtor) as fraudulent transfers. The transfers at issue arise from a March 31, 1997 loan from Daiwa to MMA Funding, LLC, a wholly-owned sub102sidiary of Doctors Hospital. Loans were made during a period from October 1997 until Doctors Hospital’s bankruptcy petition was filed in April 2000. The Daiwa loan was a revolving loan designed as a healthcare securitization program. Under this type of program, Daiwa loaned funds to the wholly-owned subsidiary of participating entities and in exchange, participating entities contributed receivables to their wholly-owned subsidiaries as security for a loan. The Daiwa Loan was memorialized in several documents: (i) The Loan and Security Agreement between MMA Funding and Daiwa (“Daiwa Loan Agreement”); (ii) The Healthcare Receivables Contribution Agreement between MMA Funding and Doctors Hospital (“Contribution Agreement”); (iii) The Depository Agreement between Doctors Hospital, MMA Funding, Daiwa and Grand National Bank; and (iv) Assignment of Healthcare Receivables Contribution Agreement as Collateral Security by MMA Funding in favor of Daiwa (“MMA Funding Assignment”). (Jt. Ex. 202 ¶ 40.) Parties to the Daiwa loan, MMA Funding and Daiwa, indicated through certain documents that they intended MMA Funding to be a special purpose vehicle that would protect Daiwa from the possibility of a bankruptcy case to be filed by Doctors Hospital. See e.g., Credit Approval Memorandum Daiwa Securities America Medical Management of America, Inc. (Jt. Ex. ¶ 117); Shefsky and Froelich Legal Opinion (Def. Ex. 16.) For this reason, transaction documents identified the subsidiary (MMA Funding) as the borrower but not the participating entity (Doctors Hospital), and Daiwa as the lender. According to the terms of the transaction documents in this case, Doctors Hospital was to contribute its accounts receivable to MMA Funding. In return for loan disbursals from March 1997 to March 2000, Doctors Hospital allegedly contributed all of its healthcare receivables to MMA Funding pursuant to the Contribution Agreement. MMA Funding then assigned the receivables as collateral security in favor of Daiwa under an agreement titled “Assignment of Healthcare Receivables Contribution as Collateral Security by MMA Funding in Favor of Daiwa.” Daiwa then agreed to loan funds in the amount of $25 million to MMA Funding in exchange for a security interest in those receivables. Pursuant to this exchange, Daiwa forwarded loan advances to a bank account in the name of MMA Funding. Daiwa and MMA Funding were at all times the only signatories to the loan transaction documents. The loan documents stated that only MMA Funding could borrow and repay the loan. The agreement also required MMA Funding to submit borrowing base certificates to Daiwa in connection with each advance under the loan. The loan documents also provided that MMA Funding was to designate the account into which Daiwa would transfer loan disbursals. From April 1997 to July 1998, Daiwa transferred borrowings into an account titled in the name of MMA Funding at Grand National Bank. After July 1998, MMA Funding directed that new borrowings be deposited into an account controlled by LaSalle Bank pursuant to the terms of the Nomura loan, discussed below. D. The Nomura Loan and HPCH Lease In August 1997 Nomura Asset Capital Corporation loaned $50 million to Doctors Hospital through HPCH LLC, the entity from whom Doctors Hospital leased the Hospital property. The obligations of HPCH under the loan were secured by the Hospital property and a lease between HPCH and Doctors Hospital, among other things. The Hospital promised to pay 103HPCH additional rent. HPCH gave No-mura a security interest in the rent owed by the Hospital. The Nomura loan was securitized and thereafter sold to a third party that bundled several billion dollars of commercial credit for sale to investors. The loan assets were transferred to a trust, of which LaSalle National Bank is the trustee and Orix Capital Markets is the servicer. If MMA Funding actually was a bankruptcy-remote entity then the Chapter 11 Trustee may be able to recover payments made to LaSalle as fraudulent transfers after July 1998. Again, in July or August of 1997, HPCH acquired legal title to the Doctors Hospital property from HPCH Partners LP. On August 28, 1997, Doctors Hospital entered into an agreement with HPCH to lease the Hospital property for approximately $470,000 per month. On that same date, Nomura made a loan to HPCH in the amount of $50 million. Under its lease with HPCH, Doctors Hospital paid rent on a net basis equal to the debt service payment owed by HPCH on the Nomura loan. HPCH assigned to Nomura all of its rights in the HPCH Lease ,and rent due under it. The Nomura Loan was secured by the HPCH lease, the Hospital real estate, hospital equipment, accounts receivable, and other intangibles relating to Doctors Hospital. Doctors Hospital also executed and delivered a Guaranty to Nomura for the entire amount of the loan. The Hospital also executed an “Equity Pledge Agreement” that granted Nomura a security interest and lien on all of Doctors Hospital’s 99% interest in MMA Funding. It was undisputed at the initial trial that although HPCH and Nomura were the parties to the loan agreement and Doctors Hospital the guarantor, the Nomura Loan was intended primarily to benefit Desnick, and initially all proceeds of the Loan were deposited into an account held in the name of Desnick and his spouse. Doctors Hospital received none of the proceeds of the Nomura Loan. HPCH was alone responsible for debt service payments. Absent default of some kind, Doctors Hospital had no obligation to make debt payments. On October 24, 1997, two months after entering into the loan agreement, Nomura transferred all its rights, title, and obligations under the loan to the Asset Securi-tization Corporation (“ASC”). ASC then immediately transferred all its rights, title, and obligations under the loan to LaSalle as ASC’s Trustee. The Nomura Loan thus became part of a pool of loans owned by LaSalle and serviced by Orix. E. Cash Flow Under the Daiwa and Nomura Loans The history of cash flows under the Dai-wa Loan and the Nomura Loan transactions can be divided into three periods: the period from the execution of the Daiwa Loan to the execution of the Nomura Loan; the period from the execution of the Nomura Loan, August 28, 1997 to July 7, 1998; and the period after July 7, 1998. For purposes of this Motion, the only relevant time period is the period after July 7, 1998 because MMA Funding’s status as a bankruptcy-remote entity dictates whether Trustee Paloian may recover payments made by MMA Funding to LaSalle because those payments were fraudulent transfers. Information on previous time periods is provided as background. 1. Cash Flow Before the Nomura Loan Before the execution of the Nomura Loan, repayment of the Daiwa Loan moved through a series of lockboxes and bank accounts. This movement of cash was initially governed by a “Depository Agreement” among MMA, MMA Funding, Daiwa, and Grand National Bank. (Jt. Ex. 104202 P. 41.) Cash originating from Medicare and Medicaid receivables first went to a joint Doctors Hospital-Daiwa account at Grand National Bank. These receipts were then “swept” to another account at Grand National Bank in the name of Daiwa only. The Daiwa account also received cash originating from payments made by insurance companies such as Blue Cross/Blue Shield. From the Daiwa-controlled account at Grand National Bank, the funds were swept to another Daiwa Account at the Bank of New York. The Bank of New York account received not only the cash described above, but also funds related to Daiwa’s financing arrangements with many other borrowers. (Jt. Ex. 202 P. 110.) Daiwa took withdrawals from these commingled funds to retire the debt owed under the Daiwa Loan. (Jt. Ex. 202 P. 111.) As contemplated in the Daiwa Loan agreement, Daiwa forwarded new borrowings under the Daiwa Loan’s revolving structure during this period to an account titled in the name of MMA Funding. (Jt. Ex. 202 P. 112.) Funds transferred to the MMA Funding Account were automatically forwarded to Doctors Hospital’s operating/payroll account at Grand National Bank. (Jt. Ex. 202 P. 113.). 2. Cash Flow After the Nomura Loan and Up to July 7, 1998 The Nomura Loan called for the creation of additional restricted bank accounts and other significant changes in the way that cash flowed through the accounts under the Daiwa Loan. Due to the complexity of the Nomura Loan transaction documents, however, these changes were not implemented until July 7, 1998. (Jt. Ex. 202 P 114.) The parties executed four documents to integrate the Nomura Loan with the already-existing Daiwa Loan: (1) the Inter-creditor Agreement, (2) the Cash Collateral Agreement, (3) the Collection Account Agreement, and (4) the Payment Direction Letter. These documents (collectively the “Cash Flow Agreements”) restructured the flow of funds between Daiwa, MMA Funding, Defendant LaSalle, and Doctors Hospital, in part through the creation of two new bank accounts: the “Cash Collateral Account” and the “Collection Account.” The “Cash Collateral Account” was located at LaSalle National Bank and was under LaSalle’s control, as Nomura’s successor in interest. The “Collection Account” was maintained at Grand National Bank in Northwood, Illinois, and was also under LaSalle’s control, again as Nomura’s successor. According to the District Court Judge following the initial trial, the cash flow structure’s complexity resulted in a failure to comply with the specified procedures. The District Court Judge explained: “Baffled by the complexity of the Cash Flow Agreements and concerned about complying with their terms, Phillip Robinson, the CFO of MMA, approached the accounting firm of KPMG on November 7, 1997 for help resolving the meaning of the Agreements. John Depa, a KPMG representative, agreed with Robinson that the Nomu-ra documents were extremely difficult to interpret and expressed his opinion that they made cash management needlessly cumbersome and inefficient. Indeed, as described below, cash flow did not strictly comply with the terms of the Cash Flow Agreements. Later in November 1997, Depa proposed amending or simplifying the documents, or in the alternative, suggested that Nomura and HPCH draft a “clarification amendment” to the various documents to articulate plainly all the compliance steps required. AMRESCO, the predecessor to Orix as servicer and special servicer of the pool which included the Nomura Loan, rejected these proposals. 105AMRESCO instead advised Robinson in June 1998 of the appropriate steps for compliance with the terms of the Cash Flow Agreements and the Nomura Loan. Robinson confirmed the process for compliance with Richard Felbinger, the CFO of Doctors Hospital, and money flows began to adhere to the terms of the Nomura transaction documents beginning July 7, 1998.” Thus, because of confusion between August 28, 1997 and July 7, 1998, the cash flow under the Daiwa Loan and the Nomu-ra Loan transaction documents proceeded as it had done in the period prior to the Nomura Loan. In contravention of the “Cash Flow Agreements,” Daiwa forwarded new borrowings to an account titled in the name of MMA Funding, and funds transferred to the MMA Funding Account were automatically forwarded to Doctors Hospital’s general payroll account at Grand National Bank. (Jt. Ex. 202 PP. 113.) Doctors Hospital then made direct transfers (in the form of rental payments) from its general payroll account to the Trust’s Cash Collateral Account at LaSalle National Bank. The Trust used funds from the “Cash Collateral Account” to service HPCH’s debt and other obligations on the Nomura Loan until July 1998. (Jt. Ex. 202, P 115.) It was initially found that these payments exceeded fair market value for rent under the HPCH Lease and were made after Doctors Hospital became insolvent. These payments were, therefore, voidable as fraudulent transfers. 3. Cash Flow After July 7, 1998 However, beginning July 7, 1998, the parties began to act in conformance with the terms of the Nomura Loan, and as a result, all advances from the Daiwa Loan were made directly from Daiwa to the Trust’s “Cash Collateral Account” without first passing through either MMA Funding or Doctors Hospital. This cash flow practice adhered to the terms of the “Inter-creditor Agreement” between Daiwa and Nomura and those of the “Cash Collateral Account Agreement,” both entered into on August 28, 1997, the date of the Nomura Loan. The Intercreditor Agreement established Daiwa’s and Nomura’s respective rights and obligations concerning new borrowings under the Daiwa Loan. The Cash Collateral Account Agreement provides: “Daiwa has been instructed by [Doctors Hospital], [MMA Funding] and [Nomura] to deposit all [new borrowings under the Daiwa Loan] directly into the [Nomura Account].” (Jt. Ex. 202 PP 118, 119.) Pursuant to the Intercreditor Agreement, all advances MMA Funding was entitled to under the Daiwa Loan were to be paid into the “Cash Collateral Account.” By signing the “Intercreditor Agreement,” MMA Funding agreed to the use of its funds to repay the Nomura Loan. Also on July 7, 1998, a “Collection Account” was created at Grand National Bank to receive “miscellaneous receipts of Doctors Hospital that were not part of the Daiwa receivables borrowing base.” (Jt. Ex. 14, sec. 16.) The funds in the Collection Account were then transferred to the Cash Collateral Account pursuant to the Collection Account Agreement among Grand National Bank, HPCH, Doctors Hospital, and Nomura. From July 1998 through April 2000, Doctors Hospital deposited $ 3,712,818.46 in receipts from its accounts into the Collection Account. The funds in the “Cash Collateral Account” consisted of advances from Daiwa to MMA Funding under the Daiwa Loan Agreement, funds from the “Collection Account,” and any interest income received on these combined assets. Each month, the Trust withdrew from the “Cash Collateral Account” amounts sufficient to fund reserve accounts for capital improvements, taxes, and insurance, and the debt service 106on the Nomura Loan (the “Reserve Accounts”). After July 7, 1998, funds for the debt service payments were forwarded to the Trust’s certificateholders. After the payment of expenses and the funding of the Reserve Accounts, any excess funds in the Nomura Cash Collateral Account were then sent to Doctors Hospital’s general operating account. In summary, between August 28, 1997 and July 7, 1998, Doctors Hospital made transfers directly to the Nomura “Cash Collateral Account,” controlled by LaSalle, and LaSalle accepted these transfers and used them to make payments on the No-mura Loan. Under the initial Findings and Conclusions, it is these transfers that were void to the extent they exceeded fair market value of the rent on the Doctors Hospital property. From July 7, 1998 through April 2000, however, the Trust took payments owed under the Nomura Loan from deposits made by Daiwa into the “Cash Collateral Account” at the direction of MMA Funding. It then forwarded to the certificateholders funds representing debt service payments. It was held that rent payments during this time period were not made with Doctors Hospital’s assets but with MMA Funding’s and therefore not voidable as fraudulent transfers. F. Trustee Paloian’s Evidence in Support of His Motion In support of his Motion for Summary Judgment, Trustee Paloian offers no affidavits or additional evidence. He entirely relies on facts already in the record indicating (he argues) that MMA Funding was not operationally distinct from Doctors Hospital. He first maintains that MMA Funding never carried out the functions it was supposed to carry out as set forth in its Operating Agreement. (Mem. Mot. Support, p. 8.) According to that document, MMA Funding’s “business” was to accept contribution of receivables from the Hospital. Yet, Trustee Paloian argues that never happened and MMA Funding never received any contributions of receivables. Id. (citing Tr. II: 53, which does not identify the witness purportedly making a statement to this effect). Furthermore, under the Operating Agreement, MMA was to administer the servicing, collection and distribution of the proceeds of receivables, but assertedly never did so. Nor did it conduct any business according to Trustee Paloian. It did not maintain separate checks and stationary, did not maintain its own books of account, financial reports, computer and operating systems, and limited liability company records separate and distinct from the records and systems of related parties — all activities called for by the Operating Agreement. But no new evidence is offered in support of these contentions. Since the Circuit remand Opinion made clear that the prior record and Findings were insufficient as to the issues remanded, the Chapter 11 Trustee can hardly imply that the Circuit Opinion was wrong and the existing record entitles him to prevail. The Chapter 11 Trustee next relies on facts showing that parties to the Daiwa Loan treated the loan as one between Dai-wa and Doctors Hospital, not between Dai-wa and MMA Funding. According to Trustee Paloian, the Hospital functioned as the borrower of the Daiwa loan. He points to the fact that the Hospital’s books and records shows the Hospital as borrower of the Daiwa loan, the owner of the healthcare receivables, and the liable party on the Daiwa Loan. (Mem. Support Mot. Summ. J., p. 8) (citing Jt. Ex. 28.) In addition, there is evidence that the Hospital managed the loan by preparing, twice weekly, requests for a loan advance from Daiwa based on current receivables. Id. (citing Tr. I: 72.) 107Furthermore, the Trustee Paloian points to a stipulation by LaSalle admitting that Daiwa “loaned money to Doctors Hospital secured by its receivables.” (emphasis added) (Mem. Mot. Support Summ. J., p. 9) (citing Jt. Ex. 135.) LaSalle also admitted that Nomura was authorized to deduct amounts “from Doctors Hospital’s loan proceeds.” (emphasis added) (Jt. Ex. 142, ¶ 55.) James Desnick, owner of the Hospital, referred to “the contract that Doctors Hospital had with Daiwa” and “the contract between Daiwa and my hospital.” (Def. Ex. 37 (Desnick) (1/29/03) at 155, 156.) Trustee Paloian then points to LaSalle’s own admission made in its counterclaim against the estate that Desnick “created and utilized” all of the Hospital’s related entities, including MMA Funding, as a “single economic unit.” (Jt. Ex. 142 at 71, ¶ 110.) Finally, the Chapter 11 Trustee relies heavily on the remand Opinion and argues that “[f]or all practical purposes, the Seventh Circuit found that MMA Funding was not a bankruptcy remote entity and thus there was no true sale of accounts receivable to MMA Funding.” (Mem. Mot. Support Summ. J., p. 9.) In response to a set of interrogatories from LaSalle, Trustee Paloian stated again that the Seventh Circuit “found that MMA Funding was not a Bankruptcy Remote Entity on March 31, 1997” and referred to the remand Opinion and facts cited therein for the conclusion that MMA Funding was not a bankruptcy remote entity. (Ans. First Set of Interrog. ¶ 4.) But that very issue was remanded for an opportunity to both parties to offer more evidence and for further consideration of remanded issues in light of both the prior record and new evidence. G. LaSalle’s New Evidence In opposing the Chapter 11 Trustee’s Motion for Summary Judgment, LaSalle’s new evidence in support of its position consists of three affidavits and additional documents either not admitted or not presented in the initial trial. The first affidavit comes from Issac Soleimani, the former Senior Vice President of Daiwa, the lender in the MMA Funding Loan. (Def. Ex. 11.) Soleimani says he has extensive experience in healthcare securitization transactions such as the one in this case. Soleimani described the “two-tier” loan structure used by Daiwa and MMA. According to Soleimani, “two-tier” structures are designed “so that the special purpose entity [has] no operations, no purpose other than to own the receivables and be the borrower.... ” (Soleimani Aff. ¶ 6.) Soleimani also states that Daiwa relied on MMA’s representations of separateness, would not have loaned the money unless the entities were separate, and throughout the loan Daiwa understood the entities to be separate. (Soleimani Aff. ¶ 14, 16.) In its brief, La-Salle repeatedly emphasizes that Daiwa relied on MMA remaining separate and that it specifically required corporate separation in making loan distributions. So-leimani was a witness in the first trial and testified to the bona fides of the loan transaction. In re Doctors Hospital of Hyde Park, Inc., 360 B.R. at 801. Soleimani’s affidavit is bolstered by a second affidavit from LaSalle’s securitization expert, Craig A. Wolson, who states that the MMA transaction “was consistent with the general securitization structure” typical of such transactions. (Wolson Aff. ¶ 18.) According to Wolson, once formed, a “special purpose entity does not engage in ‘operations’ but, rather, is formed for the sole and exclusive purpose of owning the receivables and borrowing funds from the lender. Because of the special purpose entity’s very limited function, there is no need for the special purpose entity to have its own employees.” (Wolson Aff. ¶ 14.) Beyond these references, Wolson’s 108affidavit does not speak to the separateness standard suggested in the Seventh Circuit remand opinion. Finally, LaSalle offers the affidavit of Seth Gillman, general counsel to Medical Management of America, Inc., Doctors Hospital’s management company. In 1998 he became the registered agent for MMA Funding, LLC. (Def. Ex. 21; Gillman Aff. ¶ 6.) Aside from describing how he became familiar with the Daiwa loan, his affidavit otherwise simply maintains “MMA Funding LLC was a separate legal entity from Doctors Hospital during the period of time in which I served as a registered agent for MMA Funding LLC.” (Gillman Aff. ¶ 8.) The documents offered by LaSalle consist of the following: • Certificate of James Desnick, delivered in connection with an opinion by Chuhak & Tecson, P.C. regarding the Daiwa loan closing containing various representations that do nothing to address the Seventh Circuit opinion. (Def. Ex. 7, tab 15.) • Articles of Incorporation, By-laws, and certain resolutions of MMA, Inc. (Def. Ex. 7, tab 17.) • Articles of Incorporation and Certificate of Dissolution of MMA Funding, LLC. (Def. Ex. 9.) • State of Illinois Domestic Corporation Annual Reports, years 1998-2000. (Def. Ex. 10.) • Additional Borrowing Base Certificates. (Def. Ex. 18.) (Trustee Paloian points out that these are the same, or very similar to those presented at the first trial. Mem. Support. Mot. Summ. J., at 17.) • MMA Funding’s Annual Reports filed with Illinois Secretary of State. It may be observed that views expressed in the remand Opinion as to the “usual attributes” of a bankruptcy-remote entity are different from that proposed by La-Salle’s affiants. The Opinion requires analysis of whether the entity was operationally distinct from the Debtor, and requires evidence that MMA managed in its own assets and observed corporate formalities. The Opinion questioned whether MMA Funding lacked the “usual attributes” of a bankruptcy remote vehicle because: • 99% of the equity was owned by Doctors Hospital, with the remaining owned by a trust controlled by Des-nick; • MMA Funding had no office, phone number, or letterhead of its own; • MMA Funding did not have its own checking account; • MMA Funding did not file tax returns or prepare financial statements; and • Doctors Hospital carried the accounts receivables on its books as a corporate asset. Paloian, 619 F.3d at 696. Earlier opinions by this court and the District Judge relied on a law review article by University of Tennessee law professor Thomas Plank entitled partly “The Security of Securitization and the Future of Security” in determining whether MMA Funding was effectively a bankruptcy-remote vehicle. Those opinions analyzed whether MMA should have been treated as an alter ego of Doctors Hospital. Important to prior decision that MMA was not an alter ego of the Hospital was Daiwa’s reliance on MMA’s separateness as evidenced by an officer’s certificate and legal opinions attesting to MMA’s separateness. The test in those opinions was whether MMA Funding was a distinct legal entity, not whether it was operationally separate from Doctors Hospital. However, the remand Opinion suggested in this Circuit an expanded legal criterion for entities seeking bankruptcy remote status, i.e., a need to show an operational function and inde109pendence as well as intent and documentary formalities. Commentary following the Panel’s Opinion supports Trustee Paloian’s assertion that the Opinion detailed a new and incorrect separateness standard for entities seeking to become and remain “bankruptcy-remote.” In an article in the New York Law Journal, that article’s authors observe that Judge Easterbrook (author of the remand Opinion) “examined the extent to which MMA was operationally separate from Doctors Hospital.” Aaron R. Cahn, et al., “When Assets are ‘Sold’ to Special Purpose Entities; Seventh Circuit Sheds Light on When Transaction May be Considered a Loan” N.Y.L.J. (Dec. 13, 2010). The authors find this notable because that sort of analysis typically appears in case law addressing substantive consolidation. Similarly, in the Commercial Finance Newsletter, the author comments that the Panel opinion “calls into question many factually similar transactions, in which the [bankruptcy remote entity] is closely connected to the entity that generated the securitized assets (such as accounts receivable). If this [bankruptcy remote entity] did not pass muster, many others will be similarly vulnerable.” Dan Schecter, Indenture Trustee Receiving Payments on Behalf of Investors is “Initial Transferee” of Fraudulent Transfer, Rather Than Mere Conduit; Bankruptcy-Remote Entity May be Disregarded If it is Not Sufficiently Separate from Bankrupt Operating Corporation [Paloian vs. LaSalle Bank, N.A. (7th Cir.).], 71 Com. Fin. Newsl. 1, 3 (2010). Despite such disapproval, however, the standard indicated in the remand Opinion must be applied here. IV. Discussion A. What is a Bankruptcy Remote Entity? No authoritative precedence or statute appears to exist for bankruptcy remote entities. Some courts have accepted the existence of “bankruptcy remote” entities, and typically rely on outside commentary and literature as to the characteristics of those entities. See, e.g., In re General Growth Properties, Inc., 409 B.R. 43, 49 (Bankr.S.D.N.Y.2009) (citing David B. Stratton, Special-Purpose Entities and Authority to File Bankruptcy, 23-2 AM. Bankr.Inst. J. 36 (March 2004); Standard and Poor’s, Legal Criteria for Structured Finance Transactions (April 2002)); In re LTV Steel Co. Inc., 274 B.R. 278, 280 (Bankr.N.D.Ohio 2001); Roseton OL, LLC v. Dynegy Holdings Inc., C.A. No. 6689-VCP, 2011 WL 3275965, at 4-5, 2011 Del. Ch. LEXIS 113, at 1215 (Del. Ch. July 29, 2011) (citing 1 Com. Real Estate Forms 3d § 4:2, and Drafter’s Note). Most commentary on these entities discuss the legal structure and not operational activity required to achieve and retain bankruptcy-remoteness. Although a “bankruptcy remote entity” is not defined in the Bankruptcy Code, it is recognized in the business world and literature as a structure designed to hold a defined group of assets and to protect those assets from being administered as property of a bankruptcy estate in event of a bankruptcy filing. Comm. Bankr.fe Corp. Reorganization of Ass’n of Bar of N.Y.C., Structured Financing Techniques, 50 Bus. Law. 527, 528-29 (1995). A form of structured financing, the idea is to separate the credit quality of identified assets upon which financing is based from the credit and bankruptcy risks of any entity involved in the financing. Id. at 529. To function properly, the entity must be legally separate from all related entities so that its property can be distinguished from property of a bankruptcy estate as defined in the Code in 11 U.S.C. § 541. The entity, if actually created, is a type of special 110purpose vehicle that holds the isolated assets being financed. Id. The parties involved in a structured financing typically include: • “An entity that has financing needs and that also has assets capable of serving as the basis for a structured financing... .This entity parts absolutely with ownership of the assets in the structured financing and is typically referred to as the ‘originator’ or ‘transferor.’ ” • One or more entities created for the structured financing that acquire ownership of the transferred assets. These are typically referred to as “ ‘special purpose vehicles’ or ‘SPVs.’ ” Id. A “bankruptcy remote special purpose vehicle” is an entity that is unlikely to become insolvent as a result of its own activities and that is adequately insulated from the consequences of another party’s bankruptcy. Id. at 533. There are a few general requirements for creating a bankruptcy remote entity. First, the transfer of assets that are the basis of the financing must be a “true sale,” as opposed to a transfer of assets that serve as collateral for a loan. Id. This transfer should be structured so that the originator retains no legal or equitable interests in the assets following transfer. Id. Second, the activities and relationship with the originator should be structured so that the special purpose vehicle’s assets should not appear to be among assets of the originator and therefore relied on by creditors in event of the originator’s bankruptcy. Id. Usually counsel for the borrower is asked for an opinion as to each of these concerns as a prerequisite to financing. Id. at 537. However, the remand Opinion found other “usual attributes” of a bankruptcy remote entity that might be lacking in this case. Paloian, 619 F.3d at 696 (quoted swpra). According to one commentator, some aspects of the remand opinion expanded on prior case law on issues of corporate separateness. Debora Hoehne, Has Bankruptcy Remoteness Become, Well, More Remote in the Seventh Circuit?, Bankruptcy Blog, http ://http:// business-finance-restructuring.weil.com (last visited Oct. 31, 2011). Ms. Hoehne writes that special purpose entities do not often send out correspondence, so they may not need their own stationary. But, these entities typically segregate their funds in separate accounts, which MMA may not have done. She also notes that bankruptcy remote vehicles are sometimes part of a consolidated group for purposes of financial reporting and filing tax returns (LaSalle has not yet established whether this is what occurred in this case). Finally, she notes that when the transferor of a financial asset holds the equity in a special purpose vehicle it does not always receive the purchase price in cash but instead may receive a combination of subordinated notes and cash. It was not clarified in the remand Opinion whether a cash purchase is required to find the bankruptcy-remote entity separate from the transferor of assets. The latter commentary and others have opined that the Panel Opinion did not clearly involve substantive consolidation— as the Opinion does not use that language nor cite to case precedent on the subject. See also Aaron R. Cahn et al., When Assets are “Sold” to Special Purpose Entities; Seventh Circuit Sheds Light on When Transaction May be Considered a Loan, N.Y.L.J. (Dec. 13, 2010), available at http://www.newyorklawjournal.com/Pub ArticleNY.jsp?id=1202476011056. Rather, the Opinion looked beyond the form of the transaction and focused on the substance of it. Hoehne, supra. The remand Opinion may be said to have used in its reason111ing some factors often considered in cases determining whether corporate entities should be substantively consolidated. In deciding whether two entities should be consolidated in bankruptcy, for example, opinions have examined a variety of issues including: compliance with corporate formalities, separateness of decisionmaking, separateness of operations (including offices and financial statements), possession of assets, and whether the entities acted at arms-length in their dealings. Comm. Bankr.& Corp. Reorganization of Ass’n of Bar of N.Y.C., Structured Financing Techniques, 50 Bus. Law. 527, 560(1995). The ALI-ABA Course of Study Materials cited in the remand Opinion explains how special purpose vehicles (“SPVs”) can be “bankruptcy proofed.” Kenneth N. Klee & Brendt C. Butler, Asset-Backed Securitization, Special Purpose Vehicles and Other Securitization Issues, ALI-ABA Course of Study Materials SJ082 (June 2004). Recognizing that an SPV can never be fully shielded from the prospect of bankruptcy, the ALI-ABA materials nevertheless provide guidance on how to enhance the chance of a bankruptcy remote entity being recognized. Those materials suggest that treatment as if substantively consolidated can be avoided if: ... the organizational documents ... require that the [special purpose vehicle] maintain all corporate formalities, such as maintaining separate books and records, maintaining separate accounts, preparing separate financial statements, avoiding commingling of its assets with those of any other person, acting solely in its own corporate name and through its own officers and agents, and conducting only arm-length transactions with affiliated entities. Id. One tactic in bankruptcy-proofing a special purpose vehicle is to limit the purpose and activities of the SPV to the purchase and ownership of securitized assets and any other functions related to these functions. According to Professor Plank, limiting the entity’s functions is intentional— “because there should be no other activities or significant debt, the SPE [special purpose entity] will not have creditors other than the holders of the asset-backed securities.” Thomas E. Plank, The Security of Securitization and the Future of Security, Cardozo L.Rev. 1655, 1665 (2004). This argument would support a holding that MMA was a distinct entity despite having no function other than owning Doctors Hospital’s receivables. Other published commentary concerning bankruptcy-remote entities does, however, conform to the Opinion’s view. For example, in the law review relied on by this court and the District Court Judge after the initial trial, Professor Plank discussed the trend of precedent to disregard the express form of a transaction when the substance of the transaction does not match that form. Thomas Plank, The Security of Securitization and the Future of Security, Cardozo L.Rev. 1655, 1683 (2004). While he opined that courts are correct to collapse a sale transaction where the seller retains all of the benefits and burdens of ownership, he argued that sec-uritization transactions similar to the one in this case should be viewed differently because of the process that isolates assets sold from the seller’s other creditors. Id. at 1684. Professor Plank emphasized the legal characteristics and form of bankruptcy remote entities. Nonetheless, it appears the remand Opinion has suggested a broader standard for testing the legitimacy of purported bankruptcy-remote entities. That Opinion is “law of the case” that clearly applies here. Detailed evidence as to indicia of entity operations is yet to be produced. The 112evidence LaSalle has now submitted in opposition to the Motion for Partial Summary Judgment is largely the same as that it presented in the first trial. The affidavits filed by it speak only to the ways MMA Funding was a distinct legal entity; they do not show that MMA Funding had a distinct set of operations. While MMA Funding’s structure may have in many respects fit the pre-Paloian understanding of requirements for bankruptcy-remoteness, it cannot yet be determined from evidence whether or not it operated as a distinct business entity under the standard stated in the remand Opinion. Therefore, LaSalle and Trustee Paloian, in failing to submit evidence of MMA’s operational separateness, have not yet given clarity to the aspects that must be reviewed after remanded trial. This emphasis on the operational aspects of MMA Funding at and after its purported inception presents questions. If MMA Funding existed at its inception and there was then a “true sale” of receivables to it, it may have to be determined when if ever it ceased to exist. In addition, the remand Opinion specifically directed that on remand, “[t]he second question is whether the transfer of the accounts receivable was a true sale.” Paloian, 619 F.3d at 692. B. What is a “True Sale”? For a special purpose entity to be bankruptcy remote, the transfer of assets from the debtor must be an actual sale under applicable law and not a disguised loan. There is a dearth of precedent on what constitutes a “true sale” in securitization transactions. Once again, the source of reasoning on this issue comes mostly here from published literature, not from case precedent. See, e.g., Stephen J. Lubben, Beyond True Sales: Securitization and Chapter 11, 1 N.Y.U.J.L. & Bus. 89, 92-97 (2004). If the transfer is a true sale the assets transferred should not be considered assets of the estate of the transferor under 11 U.S.C. § 541, and the transfer should not be subject to revocation as a fraudulent conveyance. So in this case, if it is found that there was a valid bankruptcy remote vehicle, and if there was a true sale of assets to it, the Chapter 11 Trustee will have no recourse against assets sold to the bankruptcy remote entity. To create a true sale, the parties must take steps evidencing that a true sale is intended. A court must look to the substance of the transaction, rather than its form. Structured Financing Techniques, supra, at 542. In general, review focuses on the economic substance of the transfer, particularly whether sufficient in-dicia of ownership of the assets shifted from the seller to the special purpose vehicle, ignoring the labels attached to the transaction by the parties. Id. Therefore, it is important to focus on whether a transaction was at arms-length and commercially reasonable. Typically, the issues involved in determining whether a true sale occurred include: • Recourse: The nature and extent of the recourse, direct and indirect against the transferor, to determine whether the risk of loss is transferred to the BRE. The originator must retain little if any of the benefits and burdens of owning the receivables. If the originator retains too much risk or benefit from the receivables and later becomes a debtor in bankruptcy, there is a risk that the receivables will be included in the bankruptcy estate. E.g., Fireman’s Fund Ins. Co. v. Grover (In re Woodson Co.), 813 F.2d 266, 269 (9th Cir.1987); • Post-transfer control over the assets and administrative activities: Whether the transferor is permitted to ser113vice or collect the assets but must be removed if it defaults on those duties; • Accounting treatment: Whether the transfer must be treated as a sale on the transferor’s books; • Adequacy of consideration: Whether the transaction is at arms-length for adequate consideration (meaning full market value) received by the trans-feror; • Parties intent: It is suggested that the transfer documents contain a section saying “the parties intend a sale” or that the terms of the transaction otherwise describe it as a sale. See Structured Financing Techniques, supra, at 566. Trustee Paloian explicitly states that he is not questioning whether a true sale occurred in this case. He argues that the issue is irrelevant and that “[t]he Seventh Circuit’s analysis does not even suggest that Defendant could salvage MMA Funding simply by offering evidence that it was separate at its inception.” (P. Mem. Support Mot. Summ. J., at 11). This stance presents some difficulties. First, the Panel Opinion explicitly remanded the issue of whether there was a bona fide sale of receivables. Second, if it were found here that there was a “true sale” of accounts receivable to MMA Funding and if MMA Funding is found to exist as a legitimate special purpose vehicle on March, 31, 1997, the loan closing date, then there might be a further issue as to when if ever its separate existence ended. In response to “contention interrogatories” issued by LaSalle, Trustee Paloian contended that MMA Funding was not a separate entity on March 31, 1997 and never became a separate entity after that date. (Ans. Interrog. ¶ ¶ 3, 5.) He further contends that the period of time after March 31, 1997 is not applicable. {Id. ¶¶ 69.) This position is at odds with the Seventh Circuit Opinion ruling that “.... if MMA Funding became a bankruptcy-remote vehicle as part of the Daiwa loan, this prevents recovery of payments made on the Nomura loan from July 1998 forward.” Paloian, 619 F.3d at 695. Although the Opinion went on to question whether MMA Funding ever existed, it left to this court the determination whether there was a true sale of accounts receivable. Id. at 696. The remand Opinion did not find from the earlier rulings any record of a purchase price or actual payment by MMA to Doctors Hospital for the assets. Id. While further evidence may clarify this, it may be that MMA Funding simply took a share from proceeds of receivables every month to cover its own operating costs and left the remainder with Doctors Hospital rather than buying the assets at the outset. LaSalle insists that Doctors Hospital received from the arrangement a 99% equity interest in MMA, payment of a loan taken out for Doctors Hospital’s benefit, and $1.3 million given to the Hospital by MMA. (Def.’s Resp., at 26-27.) The parties also stipulated that when the Daiwa Loan closed, a balance sheet for MMA Funding was prepared that showed that MMA Funding was the owner of the receivables. (Jt. Stipulation for Purposes of Remand ¶ 95.) LaSalle argues that this was “true sale” of Doctors Hospital’s receivables that took place in March 1997. LaSalle’s view of the transaction is different from that of Trustee Paloian who reasons as follows: On March 25, 1997, MMA Funding was newly formed as an Illinois limited liability company under Illinois law. (Def. Ex. 3.) On March 31, 1997, pursuant to a Healthcare Receivables Contribution Agreement (“Contribution Agreement”) executed by Doctors Hospital in favor of MMA Fund114ing, Doctors Hospital agreed to transfer ownership of all of its healthcare receivables, on an ongoing basis, to MMA Funding. (Def. Ex. 4.) Also on March 31, 1997, Daiwa made a $25,000,000 revolving loan to MMA Funding pursuant to a Loan and Security Agreement dated March 31, 1997. (Def. Ex. 4.) The transaction contemplated by the MMA Funding Loan Agreement was a “securitization” transaction. (Def. Ex. 4.) To secure the MMA Funding Loan, MMA Funding granted to Daiwa security interests in the healthcare receivables which MMA Funding acquired from Doctors Hospital pursuant to the “Contribution Agreement.” LaSalle has provided “a complete set” of MMA Funding loan closing documents in support of its position that MMA Funding was a separate entity as of the loan closing date. As part of the transaction, Doctors Hospital was made servicer of the accounts and the accounts remained on its balance sheet because a transfer would be “administratively burdensome.” (Desnick Officer Certificate, Def. Ex. 15, pp. 1, 7-8.) In Section 1.01 of the Contribution Agreement between Doctors Hospital and MMA Funding, “[Doctors Hospital] agrees ... to contribute all of its receivables to [MMA Funding], and [MMA Funding] agrees ... to accept the Contribution by [Doctors Hospital] of such Receivables.” (Def. Ex. 7, tab 1.). In exchange for its contribution of receivables, Doctors Hospital received a 99% equity interest in MMA Funding, retirement of an existing line of credit taken out on the Hospital’s behalf, in the amount of $6,524,000.00. (Evidence of this comes in the form of a letter from Grand National Bank to Daiwa acknowledging that payment will be made on an outstanding balance from the loan proceeds) (Def. Ex. 7, tab 7.) Finally, $1,372,000.00 was made available (at MMA Funding’s direction) to Doctors Hospital. LaSalle Nat. Bank Ass’n v. Paloian, 406 B.R. 299, 315 (N.D.Ill.2009). The Seventh Circuit’s Opinion questioned whether a true sale occurred but did not specify particular failings of the transaction in this case. The Opinion’s reference to lack of purchase price did not address whether the grant of an equity interest, the loan satisfaction, and some cash made available to Doctors Hospital was an inadequate consideration. The parties to the loan clearly and repeatedly asserted in documents they executed, such as the Shefsky & Froelich Legal Opinion and Daiwa Loan documents, that the transaction contemplated was a true sale. (Def. App. Ex. 5, 6, 7 tab. 11.) After the first trial, it was concluded here that Doctors Hospital transferred all of its receivables on a continuing basis to MMA Funding as a “true sale.” In re Doctors Hospital of Hyde Park, Inc., 360 B.R. at 848. In sum, some “elements” of a true sale are present while others may ultimately be found to be lacking. The remand opinion does not specify any factor(s) that would be dispositive in the analysis on this issue. That, it appears, is to be determined here after reviewing all available evidence relevant to whether a true sale occurred. Conclusion For reasons set forth in the forgoing Opinion, the Motion for Summary Judgment will be denied by separate order. The forthcoming trial on remanded issues will therefore still include all of the issues remanded: 1. Was MMA Funding a valid bankruptcy remote entity when assets were transferred to it by the future Debtor? 2. If so, were those assets transferred to it by a true sale? 1153. Did the asset transfer have the effect of rendering the future Debtor insolvent, and so, when did that result? ORDER DENYING PLAINTIFF TRUSTEE’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Memorandum Opinion of this date, the Motion of Plaintiff Trustee Paloian for Partial Summary Judgment is hereby denied. . On or about April 1, 2004, Doctors Hospital filed with this Court a Settlement Agreement between Doctors Hospital, Desnick, and all the other defendants except LaSalle, Stephen Weinstein, and Robert Krasnow. The Hospital’s claims against Weinstein and Krasnow were severed from Counts against LaSalle for purposes of trial. Initial Findings, at 798 ¶ 30. Krasnow was dismissed as a party to the case and all counts against him dismissed, both with prejudice on May 21, 2007. (Docket No. 653) Counts against Weinstein were dismissed, and he from the case, with prejudice on October 22, 2007 (Docket No. 702). Additionally, LaSalle filed a counterclaim in the Adversary proceeding, seeking approximately $60 million based on the guaranty and security agreement related to the loan. (Docket No. 183). All Counts of that Counterclaim were dismissed on February 26, 2004 except for LaSalle's breach of guaranty claim (Count II) against Doctors Hospital. (Docket No. 309). The grant of Summary Judgment entered against LaSalle on Count II of its counterclaim was affirmed by the District Court Judge on appeal and was undisturbed by the Seventh Circuit Remand Opinion. LaSalle Nat’l Bank Ass'n v. Paloian, 406 B.R. 299, 310 (N.D.Ill.2009); Paloian, 619 F.3d 688, 692 (7th Cir.2010). . Of the other issues in the proceeding, the Panel Opinion stated: "In bypassing other questions, we do not necessarily approve the bankruptcy judge's or district judge’s reasoning; we approve only the result. And some of the results ... are approved only because vital arguments have not been preserved for appellate decision.” Paloian, 619 F.3d at 692. The Opinion also commented that, "[t]he subjects that this opinion pretermits [i.e., as to which prior Conclusions are not questioned] are the law of the case.” Id.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494500/	AMENDED OPINION THOMAS L. PERKINS, Chief Judge. This case involves a dispute between the Debtor, Gary W. Scharp (DEBTOR), and 126Merlin Corporation (MERLIN), over the interpretation and effect of 11 U.S.C. § 365(h)(1). As explained below, both parties attribute more significance to this provision than it deserves, as it has little to do with the ultimate resolution of their dispute. FACTUAL AND PROCEDURAL BACKGROUND In 1999 and 2000, the DEBTOR negotiated with MERLIN to obtain a franchise to operate a Merlin’s Muffler & Brake Shop. MERLIN granted him a franchise for two locations, one in Peoria and one in East Peoria, both of which he operated for several years. The East Peoria shop was located on property that he owned at 927 E. Washington Street. In 2000, Merlin Franchising, Inc. (MFI), and the DEBTOR entered into a “Franchise Agreement” granting the DEBTOR the exclusive right to operate a Merlin’s shop at the East Peoria location subject to compliance with a standard set of terms and conditions as set forth in the 33 page agreement. As a condition to granting the franchise, MERLIN required that it obtain a leasehold interest in the real estate via a lease and leaseback arrangement. On August 19, 1999, the DEBTOR and MERLIN executed a document entitled “Lease” granting exclusive tenancy in the East Peoria real estate to MERLIN for a term of 15 years, renewable for 25 additional years, with monthly rent starting at $4,560 and escalating to $7,815 for the 5th renewal term. Subsequently, after construction and/or modification of the improvements to meet MERLIN’S standards, MERLIN and the DEBTOR executed a document entitled “Sublease” that sublet the real estate back to the DEBTOR. The term of the Sublease is identical and runs concurrently with the term of the Lease, including the 5 renewal terms. The monthly rental payment due MERLIN under the Sublease is exactly $200 more than the rental payment due the DEBTOR under the Lease for each rental period. In March, 2011, the parties entered into a “Release and Reconciliation Agreement,” reciting that MERLIN was due $97,600 in unpaid rent and related charges under the Sublease, and that the DEBTOR was due the same amount under the Lease. They effectively agreed to offset and cancel these mutual obligations and stipulated that no defaults existed under either the Lease or Sublease as of March 31, 2011. The Release and Reconciliation Agreement does not refer to the Franchise Agreement. The Lease makes no reference to the Franchise Agreement, although it requires the improvements and signage to conform to the national standards applicable to Merlin’s Muffler & Brake Shops. The Sublease refers to and attaches a copy of the Lease, requires the property to be used as a Merlin’s Muffler & Brake Shop, and provides for cross-default between the Lease and Sublease. The Sublease also specifically refers to the Franchise Agreement, providing for cross-default with it. The Franchise Agreement requires the franchisee to lease or own the business real estate and provides: If the FRANCHISEE leases the SHOP from a party other than the COMPANY or MERLIN, or purchases the Premises, it shall lease or sublease the Premises to MERLIN. MERLIN will, in turn, sublease the Premises to Franchisee for the same rent. Par. 4(A). The term of the franchise is tied to the term of the Sublease, Par. 1(A), and cross-default exists between the Sublease and the Franchise Agreement, Par. 14(C)(4). In addition, the Franchise Agreement in the event of termination grants MFI (re127ferred to as the “Company”) the option, exercisable for 30 days, to purchase all assets of the shop and to assume the Sublease. Since the DEBTOR owns the real estate, he was required to: [G]rant the COMPANY or the COMPANY’S assignee a standard commercial lease for a term of ten (10) years, at a rental rate of eight percent (8%) of the monthly net revenues of the SHOP, plus all costs FRANCHISEE incurs in connection with the payment of real estate taxes, insurance and assessments for the Premises. The COMPANY will have the right to assign this option to purchase. Par. 15(D). There is no evidence or allegation in the record that the purchase option was exercised. On April 1, 2011, the day after the effective date of the Release and Reconciliation Agreement, MFI gave written notice to the DEBTOR that he was past due the sum of $74,284.23 for royalty, service and advertising fees for the East Peoria franchise, demanding payment within 10 days to avoid termination of the Franchise Agreement. The DEBTOR did not pay the amount demanded and the Franchise Agreement was terminated. On July 29, 2011, MERLIN filed a forcible entry and detainer action against the DEBTOR in the circuit court for Tazewell County, Case No. ll-L-80, seeking to preserve its rights under the Lease but to terminate the Sublease and remove the DEBTOR from possession of the East Peoria property and recover unpaid rent. The DEBTOR answered on August 26, 2011. A similar action was filed in Peoria County with respect to the Peoria shop property. On September 15, 2011, the DEBTOR filed a voluntary petition for protection under Chapter 7, listing MERLIN on his schedule of executory contracts and unexpired leases as lessor on a lease of the East Peoria shop property and of the Peoria shop property. On Schedule D, the DEBTOR lists F & M Bank as holding a mortgage in the amount of $390,431 on the East Peoria property valued at $370,000. The petition filing stayed the forcible entry actions. A. Clay Cox is serving as the Chapter 7 Trustee (TRUSTEE). On September 19, 2011, MERLIN filed a motion for relief from the automatic stay in order to continue the prosecution of the forcible entry actions. On September 21, 2011, MFI filed a motion for stay relief, alleging that the Franchise Agreement terminated prepetition, that the DEBTOR continues to operate the East Peoria shop in violation of the Franchise Agreement, and seeking relief from the stay in order to commence an action for an injunction to stop the ongoing violations by the DEBTOR. The DEBTOR filed a response indicating he had no opposition to MFI’S motion and an order was entered modifying the stay for the purpose requested. Thereafter, on October 5, 2011, MFI filed its complaint in the U.S. District Court for the Central District of Illinois seeking to enjoin the DEBTOR from operating a Merlin’s shop or a competing business. With respect to MERLIN’S motion, the DEBTOR did not oppose the requested relief as to the Peoria property and his attorney signed off on an agreed order modifying the stay to permit the Peoria County forcible entry action to proceed. The DEBTOR continues to oppose stay relief as to the East Peoria property. He asserts that the Lease will not be assumed so that MERLIN’S possessory rights will be terminated. Anticipating MERLIN’S reliance on section 365(h)(1)(A), he contends that provision is inapplicable because the Lease was part of a “single integrated 128transaction” with the Sublease and Franchise Agreement, both now terminated. The DEBTOR argues that the effect of these circumstances is that the Lease is not a “true lease,” is not covered by the provisions of section 365, and, therefore, MERLIN is not accorded rights under section 865(h)(1). He states that if the Court determines that section 365(h)(1)(A) does not apply, there will be no possessory right for MERLIN to enforce in state court, so that stay relief as to the East Peoria property should be denied. Although MERLIN, in its brief, accurately describes the purpose behind section 365(h), it fails to address the DEBTOR’S primary argument, that the Lease is not a “true lease” and that section 365 in toto is inapplicable. MERLIN states its intent to remain in possession of the East Peoria property, to evict the DEBTOR or whomever is presently occupying the premises, to replace the DEBTOR with another franchisee of its choosing, and to continue to realize the benefits of its tenancy under the Lease for the stated term thereof. MERLIN argues that section 365(h) gives it the right to do exactly that, notwithstanding that the DEBTOR, as the owner of the property and as its lessor, no longer wants to lease the property to MERLIN now that his franchise has been terminated. The F & M Bank has moved for relief from the automatic stay, not to foreclose its mortgage, but to exercise an assignment of rents conveyed by the DEBTOR, so that it will receive the rent due from MERLIN under the Lease. No objections to the motion were filed and the requested relief has been granted. ANALYSIS When a creditor moves for stay relief to commence or continue a lawsuit, the first point of inquiry is whether the purpose of the suit is to collect a prepetition debt that has been or might be discharged in the bankruptcy case. Where the purpose of the suit is to enforce an interest in property, real or personal, the court should determine whether the property interest is one that is avoidable by the debtor or the trustee or that may otherwise be cut off by provisions of the Bankruptcy Code. See In re The Ground Round, Inc., 482 F.3d 15, 19 (1st Cir.2007) (property right survives bankruptcy and remains enforceable unless cut off by a Bankruptcy Code provision). If an unavoidable property interest is at issue, the focus turns to whether the debtor proposes to somehow deal with that property interest in the context of the rights and powers given to the debtor in the applicable chapter of the Bankruptcy Code. If not, the next point of inquiry is whether the creditor has a colorable claim to the non-debt collection, non-bankruptcy related relief sought in the lawsuit. Matter of Vitreous Steel Products Co., 911 F.2d 1223 (7th Cir.1990). If so, stay relief should be granted. The last two points operate in tandem as a forum selection mechanism, determining whether the matter will be resolved in or outside of bankruptcy. The bankruptcy court should be mindful that a motion for relief from the automatic stay is heard as a contested matter, not an adversary proceeding, in the nature of an expedited, summary proceeding that is not intended to resolve the merits of underlying claims or disputes. Id. at 1234; In re Mullarkey, 536 F.3d 215, 226-27 (3rd Cir.2008); Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 31-33 (1st Cir.1994). Despite the fact that stay relief motions are largely procedural motions that are intended to be resolved as summary proceedings, the parties are requesting that this Court resolve, in the context of a stay relief motion, a novel and complicated is129sue of state contract and real property law that will determine their respective rights in a certain parcel of real estate for the next 30 years. Generally, while a debtor may use a bankruptcy case to get out from under an unfavorable lease where the debtor is the lessee, where the debtor is the lessor he is often stuck with the tenant. While the lease may be rejected, rejection does not effect its cancellation, and no Bankruptcy Code provision empowers a debtor-lessor or its trustee to avoid or strip off an unwanted lease. A non-debtor tenant’s rights under unexpired leases have been protected against that very result since before the Bankruptcy Code was enacted. Bankruptcy Act, section 70b; In re Taylor, 198 B.R. 142 (Bankr.D.S.C.1996). Although the statutory language has been modified on several occasions, the concept of protecting a tenant’s leasehold estate has been part of the Bankruptcy Code since its inception without interruption. See Robert M. Zinman, Precision in Statutory Drafting: The Qualitech Quagmire and the Sad History of Section 365(h) of the Bankruptcy Code, 38 J. Marshall L.Rev. 97 (2004). Under section 365(h), once a lease under which the debtor is the lessor is rejected, the tenant has a choice. The tenant may treat the lease as terminated, vacate the premises without liability for future rent, and may assert an unsecured claim for damages resulting from the lessor’s breach. 11 U.S.C. § 365(h)(l)(A)(i); In re Milstead, 197 B.R. 33 (Bankr.E.D.Va.1996). Alternatively, if the tenant wants to retain possession of the property, he may do so. The statute expressly provides that: [T]he lessee may retain its rights under such lease ... for the balance of the term of such lease and for any renewal or extension of such rights to the extent that such rights are enforceable under applicable nonbankruptcy law. 11 U.S.C. § 365(h)(l)(A)(ii). A rejection of a lease does not cancel or terminate it. In re Miller, 282 F.3d 874, 878 (6th Cir.2002). Despite rejection, an unexpired lease continues and may be honored or repudiated by either party. Id. The primary effect of rejection is to abandon the lease from the estate so that it reverts back to the debtor’s control outside of bankruptcy. In re Rosenfeld, 23 F.3d 833, 839 (4th Cir.1994). Assumption and rejection are bankruptcy concepts that determine whether the estate will administer the lease; rejection merely removes it from property of the estate. Stoltz v. Brattleboro Housing Authority, 259 B.R. 255, 258 (D.Vt.2001). In a Chapter 7 case, the right to assume or reject an unexpired lease resides exclusively with the trustee; the debtor has no authority or standing to do so. In re Metro, 2008 WL 1348665 (Bankr.E.D.Pa.2008); In re Gatea, 227 B.R. 695 (Bankr.S.D.Ind.1997); In re Rodall, 165 B.R. 506 (Bankr.M.D.Fla.1994). What is to be made of the TRUSTEE’S failure to reject the Lease and to rely instead on his abandonment of the Lease and of the East Peoria real estate? Little, if anything. Because rejection and abandonment both have the effect of removing a lease from property of the estate, In re Reed, 94 B.R. 48, 52 (E.D.Pa.1988), treating a trustee’s abandonment the same as if he had rejected the lease, for purposes of administration of the estate, is sensible. It could be that the TRUSTEE accepts the DEBTOR’S argument that the Lease terminated prepetition along with the Franchise Agreement and the Sublease, so that there was no unexpired lease that could be assumed or rejected, although, admittedly, 130his opinion of that argument is not material. But assuming as the parties seem to, that the TRUSTEE’S abandonment equates to a rejection that served to trigger section 365(h)(1)(A), what effect does that provision have on the ability of MERLIN to retain its Lease rights and on the DEBTOR’S ability to cut off those rights? And since this issue is presented in the context of a motion for relief from the stay to proceed in state court, what is the proper division of adjudicative responsibility between this Court and the state court? This fundamental issue of forum selection is always present when stay relief is sought to litigate outside of bankruptcy. See In re Pro Football Weekly, Inc., 60 B.R. 824 (N.D.Ill.1986). MERLIN concedes that the Lease, the Sublease and the Franchise Agreement are different parts of a single business transaction, the goal of which was to allow the DEBTOR to obtain and operate a Merlin’s Muffler & Brake Shop franchise at the East Peoria property that he owns. The DEBTOR goes beyond that, arguing that the three contracts are so dependent on each other, that the termination of the Franchise Agreement and the Sublease defeats the business purpose for the Lease and renders it unviable as a stand-alone agreement. Presenting it as an issue of bankruptcy law for this Court to decide, the DEBTOR says that the integrated relationship among the three contracts means that the Lease is not a “true lease” for purposes of section 365. This presentation has some surface appeal, if for no other reason than that bankruptcy courts are well familiar with having to determine whether a contract labeled “lease” is in substance a mechanism to finance the “lessee’s” ultimate acquisition of an ownership interest, a “disguised sale” that is dressed up to look like a lease. A creditor who is party to a disguised sale transaction is stuck with the lesser rights of a secured lender rather than the more favorable treatment accorded in bankruptcy to a party to a true lease. The DEBTOR’S theory also garners general support from the Illinois Supreme Court which recognizes a “longstanding principle that instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction are regarded as one contract and will be construed together.” Gallagher v. Lenart, 226 Ill.2d 208, 223, 314 IIl.Dec. 133, 874 N.E.2d 43, 58 (2007). The true lease analysis in bankruptcy has been well-defined by the Seventh Circuit Court of Appeals. Whether a lease and leaseback arrangement was a true lease or a disguised security agreement was at issue in a bankruptcy appeal in In re United Air Lines, Inc., 447 F.3d 504 (7th Cir.2006). To fund improvements at its facilities in the Los Angeles International Airport, United entered into a transaction with a public entity, RAIC, that was authorized to issue tax-exempt bonds. United, as lessee of its airport space, assigned a portion of its leasehold to RAIC in exchange for the issuance of the bonds. RAIC then leased back to United the proposed improved facilities with the term and rent payment tied to the bond payouts. In its Chapter 11 plan of reorganization, United sought to characterize the transaction as a secured loan rather than a true lease. First addressing whether the form of the lease agreement should be controlling, the court determined that substance trumps form for purposes of section 365, reiterating its earlier holding that the genuine nature of a transaction will prevail over the titles and terms used, as a matter of federal law. Id. at 506, citing United Airlines, Inc. v. HSBC Bank USA, N.A., 131416 F.3d 609 (7th Cir.2005). Next addressing whether federal or state law governs the lease-versus-loan determination, the court again reiterated what it had decided earlier, that state law controls, putting the issue in the proper context by quoting from its earlier opinion the reference that “the states have devoted substantial efforts to differentiating leases from secured credit in commercial and banking law.” 447 F.3d at 507. The court proceeded to analyze United’s transaction with RAIC under California law, concluding that the transaction was not a true lease for purposes of section 365, but was properly characterized instead as a secured loan transaction. Among other things, the court emphasized its finding that United’s rent payments were not intended to compensate RAIC for the use of the facilities based upon a fair rental value, but rather were intended as reimbursement for the cost of borrowed funds. Following the analytical road map laid out by the Seventh Circuit, this Court first recognizes that whether a transaction is a lease subject to section 365 is a question of federal bankruptcy law. It should be noted that “lease” is not a term that is defined in the Bankruptcy Code. Second, since property rights are at issue, bankruptcy courts must look to state law to supply the rule of decision. If the DEBTOR was asserting the theory that the transaction with MERLIN was a disguised secured loan, the analysis would proceed in a fashion similar to that used by the Seventh Circuit in In re United Air Lines, Inc. The disguised sale theory, however, is not being advanced by the DEBTOR. Since the DEBTOR already owned the fee simple interest in the East Peoria real estate, his transaction with MERLIN could not have given him any greater property rights than he already had. The transaction did not finance his acquisition of the property. Neither did MERLIN finance the improvements to the building required as a condition of awarding the franchise; F & M Bank did. The DEBTOR is not claiming the transaction was a disguised sale and the facts clearly would not support such a claim. So what exactly is the DEBTOR’S theory? The position stated in his brief is summarized as follows. The three contracts embody a single integrated franchise relationship. Even though MERLIN “leased” the property, it never took physical possession of the property and leased it back to the DEBTOR at virtually the same rental rate. The DEBTOR characterizes the “lease component of the composite agreements” as “an additional default protection provision” to protect the franchise arrangement. The DEBTOR contends that the Lease was not a “bona fide attempt to create a right of possession” in MERLIN (or MFI) and was therefore not a “true lease” within the scope of section 365. The DEBTOR does not argue that his “not a true lease” theory fits within a broader fact pattern that has been developed or recognized by Illinois courts, such as the disguised sales arena. At least for Illinois courts, his theory appears to be a novel one. Cf. In re Harrison, 117 B.R. 570 (Bankr.C.D.Cal.1990) (gas station leases that were part of franchise relationship were integrated with dealer agreement and, as such, were not true leases). In support of his position, the DEBTOR relies upon Matter of Tak Broadcasting Corp., 137 B.R. 728 (W.D.Wis.1992), and U.S. Bank Nat. Ass’n v. United Air Lines, Inc., 331 B.R. 765 (Bankr.N.D.Ill.2005). Both of these cases, however, involved transactions that were determined to be disguised sales, an argument that the 132DEBTOR cannot make with respect to his transaction with MERLIN. The DEBTOR’S theory, a very different one, does not appear to have been adopted by any Illinois court or federal court applying Illinois law. The absence of Illinois authority is critical since the term “lease” under section 365 is defined by reference to state law. To the extent that the DEBTOR invites this Court to adopt a novel theory of Illinois common law without any supporting decisional authority, this Court respectfully declines that invitation. The Court is mindful of the strong public policy of freedom of contract in Illinois where private parties are generally permitted to contractually arrange a commercial relationship in whatever manner they wish. Speed District 802 v. Warning, 242 Ill.2d 92, 157, 351 Ill.Dec. 241, 950 N.E.2d 1069, 1106 (2011). In addition, federal courts, when asked by a litigant to create or expand upon a substantive state law claim or defense, are loathe to engage in the speculation that such a request entails. Great Cent. Ins. Co. v. Insurance Services Office, Inc., 74 F.3d 778, 786 (7th Cir.1996). The true lease issue almost always comes up in the either/or context of a contract or transaction being a lease that must be assumed with defaults cured under section 365 or a disguised secured transaction with the debt subject to modification and reamortization under a plan of reorganization. In this context, the true lease issue has a long, well-defined history that presents a clear choice between two mutually exclusive options that entirely occupy the field. It is either a true lease or a secured transaction, but it can’t be both and it must be one or the other. Fundamentally, the true lease contest serves as a mechanism to recharacterize an instrument to conform to its substance rather than its title or form. But the DEBTOR is not seeking to recharacterize the Lease as, in substance, a different kind of instrument. He is attempting to nullify it. The DEBTOR cites no reported opinion applying Illinois law that holds that a lease that is not a true lease is therefore terminated or terminable at the “lessor’s” election. The DEBTOR may have improperly framed his theory as a true lease issue. The DEBTOR’S desire to treat the Lease as void or cancelled is more properly characterized as seeking the imposition of an implied condition, that if his franchise rights are terminated then, likewise, the Lease is terminated. Whether such a condition should be implied is purely a question of Illinois law. The DEBTOR needlessly worries that section 365(h)(l)(A)(ii) grants MERLIN a substantive “bankruptcy right” of possession that trumps state law to the contrary. It does not. That provision clarifies the long-standing principle that a landlord’s bankruptcy cannot be used to cancel, avoid or terminate a tenant’s leasehold estate. Neither the bankruptcy case itself nor rejection under section 365 alters the substantive rights of the parties to the rejected lease. In re Flagstaff Realty Associates, 60 F.3d 1031, 1034 (3rd Cir.1995). Section 365(h) preserves certain tenant rights but it does not enhance them. In re MMH Automotive Group, LLC, 385 B.R. 347, 366 (Bankr.S.D.Fla.2008). The lease passes through the bankruptcy proceeding largely unaffected by it.1 133The statute very carefully qualifies that “the lessee may retain its rights under such lease ... to the extent that such rights are enforceable under applicable nonbankruptcy law.” 11 U.S.C. § 365(h)(l)(A)(ii). As indicated above, this provision preserves but does not enhance a tenant’s rights, which are defined by state law. If the circumstances are such that the tenant would have lost its tenancy under state law, the intervening bankruptcy of its landlord does not alter this result. The DEBTOR’S argument is that once the franchise terminated, the Lease was no longer enforceable under applicable non-bankruptcy law, in this case, Illinois law. If the DEBTOR was attempting to reorganize, whether the Lease was or was not still enforceable under Illinois law, might have been an issue related to the bankruptcy case. Because the DEBTOR is liquidating in Chapter 7, and the TRUSTEE has abandoned the real estate, resolution of the issue will not have any effect on the administration of the estate. Therefore, this Court should simply pass it off to the state court, which is what granting MERLIN’S stay relief motion would accomplish. It bears emphasizing that the DEBTOR’S bankruptcy filing did not effect a termination of or a breach under the Franchise Agreement. It is undisputed that the Franchise Agreement was terminated prepetition and was not an executory contract that was subject to assumption or rejection in bankruptcy. This important fact further supports the conclusion that this bankruptcy case has little effect on the rights of these parties. If, under state law, the termination of the Franchise Agreement operated to terminate MERLIN’S tenancy rights, that state of affairs existed before this bankruptcy case was filed. If the bankruptcy case had never been filed, the DEBTOR could have raised that argument by way of defense to the forcible entry action (and he still can) and the state court would have determined it (and it still should). The automatic stay temporarily stalled that proceeding, but the DEBTOR’S decision to file a Chapter 7 case, and the TRUSTEE’S decision not to assume the Lease but to abandon the East Peoria real estate, make the resolution of MERLIN’S future tenancy rights one for the state court. The parties’ efforts to shoehorn the issue into bankruptcy court under the guise of section 365(h)(1) are misguided. CONCLUSION The DEBTOR frames his argument that the Lease is not a true lease for purposes of section 365 as a defense to MERLIN’S stay relief motion. Whether an agreement labeled as a lease is not a true lease under section 365 is a question of federal law that is determined by reference to state law. The DEBTOR cites no Illinois caselaw that would support a finding that a lease is not enforceable as a lease when it is part and parcel of a franchise agreement that has been terminated where none of the related documents provide that the lease will terminate when the franchise does.2 Accordingly, this Court determines that the Lease is a true lease 134as a matter of federal law for purposes of section 365.3 This Court’s determination, however, is limited to sections 362(d) and 365 of the Bankruptcy Code. As such, this decision should have no preclusive effect on the Tazewell County Circuit Court. See, Matter of Vitreous Steel Products Co., 911 F.2d at 1234. Out of respectful deference for the authority of the circuit and appellate courts of Illinois to develop the common law of this state, this Court has declined the DEBTOR’S request to adopt what is presented as a matter of first impression under Illinois law, effectively deferring that issue for a de novo determination by the Tazewell County Circuit Court in the pending forcible entry and detainer action. MERLIN’S motion will be granted to allow it to continue the prosecution of the forcible entry and detainer action. In that action, the DEBTOR may raise the exact argument he raises here, that the Lease is no longer enforceable. That question should be determined by the state court as a matter of Illinois law without regard to section 365(h) of the Bankruptcy Code and indeed without regard to the DEBTOR’S bankruptcy filing.4 This Opinion constitutes this Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate Order will be entered. . Rejection of a lease in bankruptcy, does serve to relieve the debtor-lessor of the duty of future performance of the lease covenants, while permitting the lessee the right to offset damages from the lessor's failure to perform the covenants against the obligation to pay rent. 11 U.S.C. § 365(h)(1)(B); In re Chestnut Ridge Plaza Assoc., L.P., 156 B.R. 477, 133481 (Bankr.W.D.Pa.1993); In re LHD Realty Corp., 20 B.R. 717, 719 (Bankr.S.D.Ind.1982). . The lack of caselaw does not necessarily reflect a lack of merit to the DEBTOR’S argument. The DEBTOR makes a strong case that his ownership interest would be unduly impaired if the Lease were allowed to stand for the remainder of its term plus five renewal terms, despite the termination of his franchise rights. See In re Buffets Holdings, Inc,, 387 B.R. 115 (Bankr.D.Del.2008) (on a motion to assume commercial leases in a Chapter 11 case, applying Illinois law to the question of whether leases were divisible or were part of an indivisible transaction, determining that severability depends on the intent of the parties). . Even if the Lease was determined to not be a true lease, stay relief may nevertheless have been properly granted, since the DEBTOR is not seeking to reorganize the muffler shop business or the East Peoria real estate in this bankruptcy case, and admits to being under water and in default on the mortgage. . It should be noted that section 365(h)(1)(B), not at issue here, grants a lessee the right to offset against the rent, expenses incurred as a result of the debtor-landlord's nonperformance of a rejected lease. This right of offset is one that tenants already enjoy under Illinois law. A landlord of a rejected lease may, of course, elect to continue to perform his duties, and earn the full rent.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494501/	MEMORANDUM OF DECISION ON WEBSTER FIRST FEDERAL CREDIT UNION’S OBJECTION TO CONFIRMATION OF PLAN AND DEBTORS’ MOTION TO AMEND SCHEDULE A MELVIN S. HOFFMAN, Bankruptcy Judge. The debtors, John and Maureen Sarno, and their second mortgage lender, Webster First Federal Credit Union (“WFCU”), are embroiled in a dispute over the value of the debtors’ home in Auburn, Massachusetts and whether WFCU’s mortgage on the home maybe stripped off. The debtors propose in their chapter 13 plan to do just that and to treat WFCU’s claim of approximately $65,000 as a general unsecured claim. In an apparently related gambit, the debtors filed a motion seeking leave to amend schedule A to their bankruptcy petition, which lists real estate owned, to reduce the stated value of then-home from $339,000 to $335,000. WFCU opposes both confirmation of the plan and allowance of the motion to amend. As both matters involve the value of the debtors’ home, they were consolidated and an evidentiary hearing on both took place on September 14, 2011. The reason the value of the debtors’ home is such a critical issue is because under Bankruptcy Code § 1322(b)(2), as interpreted by a number of courts including the Bankruptcy Appellate Panel for the First Circuit in In re Mann, 249 B.R. 831 (1st Cir. BAP 2000), a claim secured by a debtor’s principal residence may be modified only if the claim is completely “underwater,” that is, the value of the residence is no greater than the amount of liens on the residence senior to the lien of the creditor whose claim is being modified. A debtor’s ability to invoke § 1322(b)(2) to modify a mortgage solely on his principal residence depends on the mortgage being entirely unsupported by collateral value. If the value of the home exceeds the amount of senior liens by even one dollar so that the claim of the lender in question is supported by one dollar of collateral value, a chapter 13 debtor may not modify the claim at all and must treat it as if it is 165fully secured. See Nobelman v. Am. Sav. Bank, 508 U.S. 824, 330-31, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993).1 At the hearing the debtors introduced evidence of their home’s value consisting of an appraisal along with the testimony of the appraiser, Douglas Pulsifer, which concluded that as of June 9, 2011, more than six months after the November 27, 2010 bankruptcy petition date, their home was worth $315,000. WFCU introduced its own appraisal along with the testimony of the appraiser, Robert Cote, Jr., that as of December 17, 2010 the home was worth $350,000. WFCU also introduced into evidence a comparative market analysis dated May 15, 2010 prepared for the debtors by Ron Ouelette of Remax Advantage 1 setting forth a “market value range” for the debtors’ home of between $335,000 and $345,000 with an opinion that the home’s “final value/sale price” was $339,000. In response to WFCU’s objection to their chapter 13 plan, the debtors acknowledged that they relied on the Remax market analysis in placing a value on their home as of the November 27, 2010 petition date, originally listing their home on schedule A to their petition as having a value of $339,000 and subsequently moving to amend schedule A to reduce the value to $335,000.2 The debtors derived both values from the Remax market analysis, $339,000 being the “final value/sale price” and $335,000 being the low end of the “market value range.” The debtors insist, however, that the value of their home on the bankruptcy petition date is not relevant to evaluating a § 1322(b)(2) lien stripping provision in a chapter 13 plan. The debtors assert that value at or near the time of plan confirmation is the proper benchmark and urge reliance on the June 9, 2011 Pulsifer appraisal of $315,000. WFCU advocates the petition date or shortly thereafter as the appropriate temporal perspective for valuation, proffering the December 17, 2010 Cote appraisal of $350,000 as the best evidence of value. But value is only one side of the § 1322(b)(2) coin. See In re Abdelgadir, 455 B.R. 896, 901-02 (9th Cir. BAP 2011) (discussing the two-step decision process in determining whether a creditor’s claim may be modified). To determine whether a mortgage claim is out of the money it is necessary to know the amount of the senior debt on the collateral. The parties stipulated that the principal balance due to Bank of America (“BofA”), holder of the first mortgage on their home, on September 1, 2011 was $326,156.31. The undisputed evidence presented established that as of December 13, 2010 the principal bal-166anee due by the debtors to BofA was $333,599.40 and that after a monthly payment to BofA of $2076.94 on or about January 1, 2011 the principal balance due dropped by $703.44 to $332,895.67. From these facts as well as from the fact that the debtors’ chapter 13 plan reflects no pre-petition arrearage to BofA, I deduce that as of November 27, 2010, the date of the commencement of this ease, the principal balance due BofA was approximately $700 greater than it was on December 13, 2010. Therefore, I find that the principal balance of the first mortgage loan on the debtors’ home as of the bankruptcy petition date was no greater than $334,500. Armed with the requisite numbers, all that remains is to determine the appropriate vantage point from which to apply them. There is no binding precedent in the First Circuit and courts are generally in disagreement as to whether the point of reference is the petition date as advocated by WFCU or the plan confirmation date as urged by the debtors.3 It is generally acknowledged that the Bankruptcy Code mandates a flexible approach to valuation based on the purpose of the valuation and the proposed disposition or use of the property being valued. See In re Winthrop Old Farm Nurseries, Inc., 50 F.3d 72, 73-74 (1st Cir.1995) (citing Bankruptcy Code § 506(a)’s express directive on flexible valuation). So, for example, in determining lack of equity under Bankruptcy Code § 362(d)(2)(A), liquidation value might be the appropriate standard in a chapter 7 case while in a chapter 11 case fair market value might be the better measure. In this case, the purpose for the valuation of the debtors’ home is in order to determine the treatment of WFCU’s claim in the debtors’ plan. Also, an integral part of any such determination is establishing the amount of senior claims, here the first mortgage claim of BofA. The bankruptcy petition date is the only reasonable reference point for establishing claims in bankruptcy and, therefore, like the Ninth Circuit Bankruptcy Appellate Panel in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011),41 find that the proper date for determining the value of the debtors’ home and whether WFCU’s claim is secured by that home is the petition date of November 27, 2010. I have found that on the petition date BofA was owed no more than $334,500 on its first mortgage loan. Thus to obtain confirmation of their chapter 13 167plan the debtors had the burden to prove that on the petition date their home was worth no more than $334,500. They have not carried their burden. The Pulsifer appraisal of $315,000 introduced by the debtors provides evidence of value in June 2011 and is not probative of value as of the petition date. WFCU’s appraisal of $350,000 dated three weeks after the petition date would at the very least rebut any argument by the debtors that the Pulsifer appraisal should be considered relevant to their home’s value some six months prior to the appraisal date. Further undercutting the relevance of the Pulsifer appraisal is the debtors’ own schedule A to their bankruptcy petition where both the original schedule A and the proposed amended schedule A value the home at more than the first mortgage debt to BofA. Whether on the petition date the debtors’ home was worth $350,000 as asserted by WFCU or $335,000 as proposed by the debtors in their amended schedule A, WFCU’s claim is immune from modification under Bankruptcy Code § 1322(b)(2). In their response to WFCU’s objection to confirmation of their chapter 13 plan, the debtors raise two additional arguments in favor of treating WFCU’s claim as wholly unsecured. The first is procedural. The debtors maintain that WFCU’s objection to confirmation was untimely and thus should not be considered. Appendix 1, § 13-8(a) of the Massachusetts Local Bankruptcy Rules requires that unless the court orders otherwise objections to confirmation of a chapter 13 plan shall be filed by the later of thirty days after the first date set for the § 341 meeting or thirty days after service of a modified plan. As no modified plan was filed in this case, the deadline for objections to confirmation of the debtors’ plan under the local rule was February 6, 2011. WFCU’s objection was not filed until March 24, 2011. While WFCU’s objection was technically untimely the local rule affords the court discretion to order otherwise. There has been no allegation that between February 6 and March 24, 2011 anything whatsoever occurred in this case which would make WFCU’s objection prejudicial or unfair. Furthermore, even had WFCU not objected to its treatment under the plan, the bankruptcy court has an independent responsibility under Bankruptcy Code § 1325(a) to determine that the plan complies with the provisions of chapter 13 and the Bankruptcy Code. Under these circumstances I decline to disable WFCU from asserting its objection to the debtors’ plan. The final argument offered by the debtors as to why WFCU should be deprived of a claim secured by their home is based on WFCU’s issuing an Internal Revenue Service form 1099-C in connection with the debtors’ loan after the petition date. A form 1099-C is a return which a creditor must file with the IRS notifying the IRS of the cancellation of a debt. Sometime after the debtors filed their bankruptcy petition, WFCU filed a form 1099-C with respect to the debtors’ loan notifying the IRS of the bankruptcy and of the cancellation of $64,961.65 of debt. The debtors assert that this filing estops WFCU from objecting to their plan. The debtors fail to elaborate on the nature of the estoppel to which they refer. In their response to WFCU’s objection to their plan they suggest that the filing of the form 1099-C created “potential income tax consequences” to them (presumably cancellation of debt income). This would imply an equitable estoppel argument. In their supporting brief, however, the debtors seem to focus more on the direct consequences of the form 1099-C, namely that the document itself effectuated the forgive168ness of their mortgage debt. Either way, the debtors’ argument fails. The requirements for the issuance of forms 1099-C are set forth in § 6050P of the Internal Revenue Code (26 U.S.C. § 6050P) and 26 CFR 1.6050P-1. The latter provides: Except as provided in paragraph (d) of this section; any applicable entity (as defined in section 6050P(c)(l)) that discharges an indebtedness of any person (within the meaning of section 7701(a)(1)) of at least $600 during a calendar year must file an information return on Form 1099-C with the Internal Revenue Service. Solely for purposes of the reporting requirements of section 6050P and this section, a discharge of indebtedness is deemed to have occurred, except as provided in paragraph (b)(3) of this section, if and only if there has occurred an identifiable event described in paragraph (b)(2) of this section, whether or not an actual discharge of indebtedness has occurred on or before the date on which the identifiable event has occurred. It is apparent from this regulation that a form 1099-C is “informational” and that it must be filed “whether or not an actual discharge of indebtedness has occurred.” In construing this regulation the IRS has stated that it does not view a form 1099-C as an admission by the creditor that it has discharged the debt and can no longer pursue collection thereof. Zilka v. Bayer Emp. Fed. Credit Union (In re Zilka), 407 B.R. 684, 688-89 (Bankr.W.D.Pa.2009). In Owens v. Commissioner, 67 Fed.Appx 253, 2003 WL 21196200 (5th Cir.2003), the U.S. Court of Appeals for the Fifth Circuit observed that a form 1099-C evidences an intention to cancel “not, we must point out, actual cancellation of the loan.” Id. at 3; see also In re Zilka, 407 B.R. at 690. While a creditor’s filing of a form 1099-C does not in and of itself cancel the underlying indebtedness, it may nevertheless be deemed to effect cancellation if it is determined to be an “intentional voluntary act” of discharge within the meaning of § 3-604(a) of the Uniform Commercial Code, codified in Massachusetts as Mass. Gen. Laws ch. 106, § 3-604(a). See Amtrust Bank v. Fossett, 223 Ariz. 438, 224 P.3d 935, 936-37 (2009) (interpreting Arizona’s identical UCC provision). Section 3-604(a) provides: A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party’s signature, or the addition of words to the instrument indicating discharge, or (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing. The Massachusetts Appeals Court has held that the mistaken cancellation of a note is not an effective discharge under § 3-604. NationsBanc Mtg. Corp. v. Eisenhauer, 49 Mass.App.Ct. 727, 733 N.E.2d 557, 562 (2000). Here, the unre-butted evidence establishes that WFCU’s issuance of the form 1099-C was a mistake. Subsequent to the issuance, WFCU filed a corrected form 1099-C changing the amount of debt cancelled from $64,961.55 to $0. And since WFCU’s corrected 1099-C effectively neutralized any negative tax consequences to the debtors created by the original,5 the debtors did not suffer 169any material detriment as a result of WFCU’s conduct. Material detriment is one of the hallmarks of a claim of equitable estoppel. See Howard J. Alperin, 14A Mass. Practice § 9.49. As to the debtors’ motion to amend schedule A to their bankruptcy petition, the debtors have admitted that they relied on the Remax market analysis in placing a value on their home as of the petition date. As indicated previously, the Remax analysis establishes $339,000 as the “final value/sale price” of the home which is the value ascribed to it by the debtors in their original schedule A. In seeking to amend schedule A to reduce the value to $335,000 the debtors are taking the lowest end of the “market value range” indicated in the Remax analysis. There is no reasonable or rational basis for this choice. The motion to amend appears to be nothing more than a post-facto attempt to value the home at less than the BofA loan balance, and a clumsy attempt at that given that the BofA loan balance on the petition date was $334,500. Based on the foregoing, I will deny the debtors’ motion to amend schedule A to their bankruptcy petition and sustain WFCU’s objection to their plan. The debtors shall file an amended plan within forty-five days. Separate orders shall issue. . While the statute as explicated by the Supreme Court in Nobelman is clear enough, its wisdom is not. The inability of consumer debtors in chapter 13 or chapter 11 to restructure their home mortgage debt by modifying partially unsecured mortgages in the same way that corporate debtors routinely restructure their secured debts has greatly exacerbated the duration and severity of the current economic downturn. See, e.g., Adam J. Levitin, Resolving the Foreclosure Crisis: Modification of Mortgages in Bankruptcy, 2009 Wis. L.Rev. 565, 571-77 (discussing why the "bankruptcy system ... is incapable of handling the current home-foreclosure crisis because of the special protection it gives to most residential-mortgage claims.”). To date, all efforts to obtain Congressional approval of amendments to §§ 1322(b)(2) and 1123(b)(5) to level the playing field for consumer and business debtors have been unsuccessful. The most recent proposed amendment, included in the Home Foreclosure Reduction Act of 2011, awaits action by the House Subcommittee on Courts, Commercial and Administrative Law. See Home Foreclosure Reduction Act of 2011, H.R. 1587, 112th Cong. § 5 (2011). . The debtors’ motion to amend schedule A to their bankruptcy petition (Docket No. 32) was followed by an amended motion to amend schedule A (Docket No. 39). Both motions are identical as to the issues under consideration here. . Compare In re Valls, 2010 WL 2745951, at 1 (finding that where the debtor seeks to keep his home, the petition date is the relevant valuation date); In re Young, 390 B.R. 480, 488 (Bankr.D.Me.2008) (finding the petition date to be the appropriate date time for valuing the real property because "[t]he estate’s interest in property ... is established upon the commencement of the bankruptcy case.”); In re Dean, 319 B.R. 474, 478 (finding the petition date to be the appropriate date to value the debtors' principal residence), with In re Reese, 428 B.R. 508, 510 (Bankr.E.D.Mo.2010) (holding that vehicles should he valued as of the date of confirmation when determining the amount owed under a chapter 13 plan); Crain v. PSB Lending Corp. (In re Crain), 243 B.R. 75, 82, 85 (Bankr.C.D.Cal.1999) (holding the proper valuation date is ten days after plan confirmation); In re Kennedy, 111 B.R. 967, 973-74 (Bankr.S.D.Ala.1995) (finding that the value of the debtor’s car should be determined as of the confirmation hearing).- . The court in In re Abdelgadir concluded: [A] creditor’s right to payment, whether it later is deemed secured or unsecured depending on the value of the collateral, is fixed as of the petition date. Therefore, our statutory analysis leads us to conclude that the determinative date for whether a claim is secured by a debtor's principal residence is, like all claims, fixed at the petition date. 455 B.R. 896, 903 (9th Cir. BAP 2011). . It is doubtful that the debtors could have suffered any negative tax consequences as a result of WFCU issuing a form 1099-C. Although the general rule is that discharge of 169indebtedness results in gross income to the borrower, 26 U.S.C. § 108(a)(1) provides that when the discharge occurs "in a title 11 case” or "when the taxpayer is insolvent,” then the borrower is not required to recognize gross income as a result of the lender's discharging the debt. See In re Crosby, 261 B.R. 470, 474 (Bankr.D.Kan.2001).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494502/	MEMORANDUM OF DECISION HENRY J. BOROFF, Bankruptcy Judge. Before the Court are two matters, both of which center around § 362(h) of the Bankruptcy Code,1 added by the Bankruptcy Abuse and Consumer Protection Act of 2005 (the “BAPCPA”).2 Pursuant to the relatively new § 362(h), the automatic stay under § 362(a) (the “Automatic Stay”) terminates with regard to personal property that secures a prepetition debt if the debtor fails to timely state and then perform his or her intention to surrender, redeem, or reaffirm the property. The issues before the Court involve not only the scope and operation of § 362(h), but also the impact of that section on a Chapter 7 trustee’s powers under other sections of the Bankruptcy Code. I. FACTS AND TRAVEL OF THE CASE Brett M. Mollison (the “Debtor”) filed this Chapter 7 case on November 8, 2010 (the “Petition Date”). On the Petition Date, the Debtor owned a 2003 Cadillac CTS (the “Cadillac”), which he disclosed on his .Schedule B, estimating the current value as $6,000.3 On his Schedule D, the Debtor indicated that “Source One Financial Corp.” (“Source One”) held a lien on the Cadillac to secure a claim in the amount of $8,800. And on Schedule J, the Debtor indicated that his monthly installment payment on that auto loan was $320. On the Petition Date, the Debtor also filed a “Chapter 7 Individual Debtor’s Statement of Intention” (the “Statement of Intent”). In his Statement of Intent, the Debtor listed the debt owed to Source One and Source One’s security interest in the Cadillac and indicated that the Cadillac would be “retained.” The Debtor did not, however, indicate on the Statement of Intent that the Cadillac would be redeemed or the underlying debt reaffirmed. Instead, the Debtor wrote on the Statement of Intent that he intended to “make regular monthly payments” on account of the debt. At the meeting of creditors required by § 341 (the “341 Meeting”) held on December 7, 2010, David W. Ostrander, the 173Chapter 7 trustee (the “Trustee”), questioned the Debtor about the Cadillac. The Debtor testified that he was in possession of the certificate of title for the Cadillac (the “Title”). The Trustee requested a copy of the Title, which he received on December 22, 2010. Despite various indications in the Debtor’s schedules that Source One was a secured creditor with respect to the Cadillac, the Title did not identify any lienholders. In addition to requesting a copy of the Title, the Trustee had also requested a copy of the purchase contract between the Debtor and Source One (the “Contract”). While the submitted pleadings do not explain why the Debtor was delayed in producing a copy of the Contract, it is undisputed that the Trustee did not receive a copy of the Contract until April 5, 2011.4 Upon receipt of the Contract on April 5, the Trustee ran a search of the Title in the database maintained by the Massachusetts Department of Transportation Registry of Motor Vehicles (the “Registry”) and confirmed that Source One was not listed as a lienholder. See Trustee’s Mot. for Sanctions, Ex. D, Mass. Registry of Motor Vehicles Title/Lien Inquiry-Details 4/5/2011. That day, the Trustee contacted Source One by telephone and spoke with an Attorney Matthew E. Mitchell (“Attorney Mitchell”). The Trustee followed that conversation with an email to Attorney Mitchell confirming the Trustee’s position that Source One’s lien was unperfected and avoidable. Apparently, the Trustee hoped Source One would concede its unsecured position vis-a-vis the bankruptcy estate, and he proposed a settlement to Source One. Attorney Mitchell did not immediately acquiesce, however, and responded to the Trustee’s further email sent April 11 by indicating that he was still “checking into it.” Stipulated Facts, 3 ¶ 18, Aug. 4, 2011, ECF No. 42. In fact, Source One was not prepared to readily concede unsecured status, and, unbeknownst to the Trustee, began to take steps to perfect its lien on the Cadillac. After the Trustee’s initial contact, Source One contacted the Registry in an attempt to figure out why its lien was not noted on the Title. Michael Cain, a Source One representative (who had been copied on the emails sent between the Trustee and Attorney Mitchell), traveled to the Registry office and spoke with at least one Registry employee, setting into motion the process of correcting the Title. By April 27, when Attorney Mitchell again emailed the Trustee, Source One had succeeded in having the title “suspended” by the Registry after a Registry hearing in which it was determined that the original dealer had made a clerical error in processing the Title.5 And in a May 4 email, Attorney Mitchell reported to the Trustee his belief that “Source One will ultimately be listed as the First Lienholder after the hearing.” Stipulated Facts, 4 ¶ 23. The Trustee’s response to Attorney Mitchell’s reports was understandably less-than-positive. In an email dated April 27, the Trustee warned Attorney Mitchell that efforts to fix any problems with the Title would be “void,” id. at 4 ¶ 22, and on May 5, the Trustee informed Attorney Mitchell via email that any attempt to have 174Source One’s lien on the Cadillac perfected would violate the Automatic Stay, id. at 4 ¶ 24. But despite the fact that Source One was taking fairly aggressive steps to perfect its lien, the Trustee continued to correspond with Attorney Mitchell, exchanging further settlement offers (all of which were rejected). On May 18, 2011, the Trustee was contacted by a new attorney for Source One, James McGinley. When the Trustee and Attorney McGinley were unable to reach a resolution, the Trustee finally took action with the Court, filing an expedited “Motion to Compel Turnover of Estate Property” (the “Turnover Motion”) on May 19, 2011. In the Turnover Motion, the Trustee averred that the Cadillac was property of the bankruptcy estate, that the alleged lienholder (Source One) did not have a perfected lien as of the Petition Date, and that the Trustee believed that “Source One may be attempting to note its lien on the Title.” Turnover Motion, 2 ¶ 13, ECF No. 22. The Trustee also indicated his intention to file an adversary proceeding seeking to avoid Source One’s lien and preserve it for the benefit of the bankruptcy estate under §§ 544 and 551, respectively. Accordingly, in the Turnover Motion, the Trustee asked the Court for an order compelling the Debtor to turn over the Cadillac, the Title, and the keys to the Trustee pending the outcome of the adversary proceeding or, alternatively, the entry of an order compelling the Debtor to make his $320 monthly car payments directly to the Trustee. At an expedited hearing on the Turnover Motion held on May 25, 2011 (the “Turnover Hearing”), the Trustee informed the Court that he had been told that very morning by Debtor’s counsel that Source One had sent paperwork to the Debtor to have the Title corrected and that the Debtor had completed the paperwork and mailed the Title and the paperwork to Source One in the envelope that was provided to him. Based on the Trustee’s representations, the Court unhesitatingly stated that Source One’s actions appeared to be blatantly in violation of the Automatic Stay and ordered the Debtor to turn the Cadillac over to the Trustee. On May 31, 2011, the Trustee filed an adversary proceeding against Source One, seeking to avoid Source One’s unperfected lien on the Cadillac and to preserve the avoided lien for the benefit of the bankruptcy estate (the “Adversary Proceeding”). Shortly thereafter, on June 10, 2011, the Trustee filed a “Motion for Sanctions Against Source One Financial Corporation for Willful Violation of the Automatic Stay” (the “Sanctions Motion”) in the Debtor’s main case. In the Sanctions Motion, the Trustee provided the Court with more detailed information on Source One’s postpetition attempts to perfect its lien, asserting that those actions were clear violations of the Automatic Stay. On June 28 and June 30, respectively, Source One filed an opposition to the Sanctions Motion and a motion to dismiss the Adversary Proceeding (the “Motion to Dismiss”). After a hearing on both motions, the Court took both the Sanctions Motion and the Motion to Dismiss under advisement. II. POSITIONS OF THE PARTIES A. The Sanctions Motion There is no dispute that the postpetition actions taken by Source One to perfect its lien in the Cadillac would be contravention of the Automatic Stay, assuming that the Automatic Stay remained in effect when those actions were taken. Source One contends, however, that the motion must be denied because, pursuant to § 362(h), the Automatic Stay had terminated with respect to the Cadillac at the time it took 175steps to perfect its lien.6 According to Source One, because the Debtor failed to elect in his Statement of Intent either reaffirmation of Source One’s secured claim or redemption of the Cadillac, the Automatic Stay terminated by operation of § 862(h)(1) on January 7, 2011, thirty days after the first date set for the 841 Meeting. The Trustee raises several arguments against the applicability of § 362(h)(1) to the facts of this case. First, the Trustee argues that § 362(h)(1) does not apply because the Debtor did file a Statement of Intent and acted consistent with his stated intent — retaining the Cadillac and continuing monthly payments to Source One. The Trustee contends that this was sufficient compliance under § 362(h)(1) to prevent the termination of the Automatic Stay. In response, Source One argues that the Debtor failed to comply with § 362(h)(1)(A) ab initio by failing to choose one of the elections with respect to the Cadillac permitted by that subsection (namely, surrender, reaffirmation, or redemption), thus triggering the termination of the Automatic Stay. Second, the Trustee maintains that § 362(h)(1) does not apply because Source One is not within the class of creditors protected by that section. The Trustee reads § 362(h)(1) as intended to protect secured creditors who are not receiving ongoing payments, thereby affording such creditors relief from the Automatic Stay in order to repossess and protect depreciating collateral. Since “Massachusetts law does not readily permit repossession of a motor vehicle when a borrower is not in monetary default,” In re Koufos, 09-44158-MSH, 2010 WL 4638408, 2 (Bankr.D.Mass. Nov. 8, 2010), the Trustee argues that Source One could not have repossessed the Cadillac (because the Debtor was continuing to make postpetition payments), and, therefore, § 362(h)(1) should not be considered applicable in this case. Third, the Trustee contends § 362(h)(1) does not apply because Source One’s lien on the Cadillac was not perfected. Citing to Gigandet v. HSBC Auto Finance (In re Houseal), Bankr. No. 306-02082, Adversary No. 306-0429A, 2007 WL 5582053 (Bankr.M.D.Tenn. Feb. 16, 2007), the Trustee maintains that § 362(h)(l)’s reference to personal property “securing in whole or in part a claim” refers only to property covered by a perfected security interest. Since Source One’s lien was not perfected, the Trustee argues, its claim against the Debtor does not come within the purview of § 362(h)(1). In response, Source One insists that a plain reading of § 362(h)(1) compels the conclusion that the Cadillac did secure Source One’s claim against the Debtor, regardless of whether the security interest was perfected. Therefore, Source One concludes, § 362(h)(1) applies in this case, despite the Trustee’s protestations that Source One is not the type of creditor the provision was enacted to protect. According to Source One, all that is required to trigger § 362(h)(1) is the existence of personal property of the debtor or the estate subject to a security interest. Source One says that the In re Houseal case is inappo-site, because the court there did not say that unperfected liens were not security interests for purposes of § 362(h)(1). Rather, Source One argues that In re Houseal involved the question of whether 176the creditor had a secured interest in the debtor’s personal property at all, whether perfected or unperfected. Source One also argues that, even if this Court were to conclude that Source One violated the Automatic Stay, sanctions for any violation would be inappropriate. First, Source One cites to Judge Bailey’s recent holding that a trustee does not qualify as an “individual” to whom sanctions can be awarded under the relevant Code provision, § 362(k), see In re Sayeh, 445 B.R. 19, 27 (Bankr.D.Mass.2011), and urges this Court to reach the same conclusion. Second, Source One says that sanctions are unwarranted because it acted in a good faith belief that the Automatic Stay had terminated under § 362(h)(1). See 11 U.S.C. § 362(k)(2) (recovery for violation of automatic stay limited to actual damages where violating party acted in a good faith belief that § 362(h) applied). B. The Motion to Dismiss Through the Complaint filed in the Adversary Proceeding,7 the Trustee seeks avoidance of Source One’s lien on the Cadillac pursuant to § 544(a)(1), based on the undisputed allegation that the lien was not perfected on the Petition Date.8 Relying on § 551 of the Code, the Trustee asserts that the lien should therefore be preserved for the benefit of the bankruptcy estate. See 11 U.S.C. § 551. Finally, the Trustee asks that the postpetition payments to Source One be turned over to the Trustee. Source One has moved to dismiss the Complaint on the grounds that the Trustee no longer has the power to avoid its unper-fected lien. Noting that § 362(h)(1) not only terminates the Automatic Stay with respect to personal property subject to its provisions, but also provides that such property “shall no longer be property of the estate,” 11 U.S.C. § 362(h)(1), Source One says the Cadillac is no longer property of the bankruptcy estate and therefore is no longer subject to the Trustee’s § 544(a) avoiding powers. Source One further argues that, even assuming the lien could be avoided pursuant to § 544(a), it cannot be preserved for the benefit of the estate, since under § 551 an avoided lien is preserved only “with respect to property of the estate.” 11 U.S.C. § 551. And because the Cadillac is no longer property of the bankruptcy estate, there is no longer any property of the estate to which the lien attaches and could be preserved. Finally, as an alternative argument, Source One urges the Court to adopt the 177reasoning of the bankruptcy court in Noland v. HSBC Auto Fin., Inc. (In re Baine), 393 B.R. 561 (Bankr.S.D.Ohio 2008). The court in In re Baine, faced with an almost identical factual situation and an attempt by a Chapter 7 trustee to avoid an unperfected lien, analogized the effect of § 362(h)(l)’s removal of property from the bankruptcy estate to the removal of property from the estate that occurs when property is abandoned under § 554. Because the In re Baine court opined that a trustee loses the power to bring a § 544(a) avoidance action with regard to abandoned property, it concluded that property removed from the estate pursuant to § 362(h)(1) is likewise no longer subject to lien avoidance. The Trustee responds by arguing that the effect of § 362(h)(1) cannot be properly analogized to the abandonment of estate property, as abandonment of estate property can occur only under § 554 of the Code, which contains specific notice and other substantive requirements. The Trustee argues that Source One’s reading of § 362(h)(1) would eviscerate the requirements for abandonment of estate property established by § 554 and would unjustifiably shorten the two-year statute of limitations for avoidance actions provided by § 546. And the Trustee again relies on In re Houseal, arguing that the Cadillac remains property of the bankruptcy estate because § 362(h)(1) applies only to perfected security interests, and not to Source One’s unperfected lien. At any rate, says the Trustee, the language of § 544(a) establishes the Petition Date as the relevant time for measuring a trustee’s ability to avoid an unperfected lien, and extends the trustee’s avoidance power to all “property of the debtor,” 11 U.S.C. § 544(a), not just property of the estate. According to the Trustee, then, his § 544(a)(1) avoidance power is not truncated, even if § 362(h)(1) does apply. III. DISCUSSION A. The Sanctions Motion “The automatic stay imposed by § 362(a) that arises upon the filing of a bankruptcy case is one of the ‘cornerstones of bankruptcy law.’ ” In re Blake, 452 B.R. 1, 12 (Bankr.D.Mass.2011) (quoting Curtis v. LaSalle Nat’l Bank (In re Curtis), 322 B.R. 470, 483 (Bankr.D.Mass.2005)); see also Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 975 (1st Cir.1997). The Automatic Stay prohibits, inter alia, “any act to create, perfect, or enforce any lien against property of the estate” and “any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case....” 11 U.S.C. § 362(a)(4), (5). But once the Automatic Stay is terminated, either by court order on motion of an interested party, see, e.g., 11 U.S.C. § 362(d), or without court order by operation of applicable Code provisions, see, e.g., 11 U.S.C. § 362(c), previously stayed actions against a debtor or property are once again permissible unless the claim is discharged. In this case, Source One argues that the Automatic Stay terminated with respect to the Cadillac on January 7, 2011 by operation of § 362(h)(1) — prior to Source One taking any action to perfect its lien. Section 362(h), added to the Bankruptcy Code in 2005, terminates the Automatic Stay as to personal property of a debtor in certain instances, without the need for court order. The Bankruptcy Appellate Panel for the Ninth Circuit recently addressed the purpose behind this new provision: Section 362(h) was added to the Bankruptcy Abuse Prevention and Consumer 178Protection Act of 2005 (BAPCPA) as part of the amendments characterized as “Protections for Secured Creditors.” H.R.Rep. No. 109-31(1), 109th Cong., 1st Sess. 2005, reprinted in 2005 U.S.C.C.A.N. 88, 103. Section 362(h) was intended to provide greater protection to creditors by terminating the automatic stay with respect to personal property of the debtor if the debtor failed to timely reaffirm the underlying obligation or redeem the property. Samson v. Western Capital Partners, LLC (In re Blixseth), 454 B.R. 92, 99 (9th Cir. BAP 2011). Specifically, the relevant portion of § 362(h)(1) provides: (1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim ... and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)— (A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property ... [or] enter into a[ reaffirmation] agreement ... applicable to the debt secured by such personal property ...; and (B) to take timely the action specified in such statement, ... unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms. 11 U.S.C. § 362(h)(1) (emphasis supplied). Notably, if a debtor owns personal property that would be subject to termination of the Automatic Stay pursuant to § 362(h)(1), the bankruptcy estate is not left entirely at the mercy of the debtor. If a trustee believes that a debtor’s personal property subject to § 362(h)(1) also has value for the bankruptcy estate, the trustee is afforded the opportunity, by leave of § 362(h)(2), to file a motion to prevent the automatic termination of the Automatic Stay and removal of the property from the estate. Such a motion must be timely filed, as § 362(h)(2) provides: Paragraph (1) does not apply if the court determines, on the motion of the trustee filed before the expiration of the applicable time set by section 521(a)(2), after notice and a hearing, that such personal property is of consequential value or benefit to the estate, and orders appropriate adequate protection of the creditor’s interest, and orders the debtor to deliver any collateral in the debtor’s possession to the trustee.... 11 U.S.C. § 362(h)(2) (emphasis supplied). The crux of § 362(h)(1) is its creation of a “direct linkage” between a debtor’s failure to comply with § 521(a)(2) and termination of the Automatic Stay and removal of property from the bankruptcy estate. In re Baine, 393 B.R. at 564. That link is created by subsections (A) and (B) of § 362(h)(1), which correspond directly to subsections (A) and (B) of § 521(a)(2)— each subsection imposing separate duties on individual debtors who own property subject to a security interest. The first component, set forth in sections 521(a)(2)(A) and 362(h)(1)(A), which the Court will refer to as the “Filing Requirement,” requires the debtor to file a Statement of Intent by the earlier of 30 179days from the filing of the petition or the date of the 341 Meeting. See 11 U.S.C. § 521(a)(2)(A); 362(h)(1)(A). But the Filing Requirement requires the debtor to both file the Statement of Intent and indicate whether the debtor intends to surrender or redeem the property or reaffirm the underlying debt. See 11 U.S.C. § 521(a)(2)(A); 362(h)(1)(A). Section 362(h)(1)(A) requires that a debtor “indicate ‘either’ surrender ‘or’ retention; if he chooses the latter, he must indicate ‘either’ redemption, reaffirmation, ‘or’ assumption. ‘Either’ means ‘[t]he one or the other.’.... [T]he ‘either ... or’ disjunction has always meant that one of the listed alternatives must be satisfied” Dumont v. Ford Motor Credit Co. (In re Dumont), 581 F.3d 1104, 1114 (9th Cir.2009) (emphasis supplied) (quoting Am. Heritage Dictionary of the English Language 572 (4th ed. 2000)).9 Thus, for purposes of the Filing Requirement, a debt- or’s failure to choose one of the “approved” options (surrender, redeem, or reaffirm) has the same effect as if the debtor failed to file the Statement of Intent at all.10 Assuming a properly-filed Statement of Intent, the second subparts of both §§ 362(h)(1) and 521(a)(2) further require the debtor, “within 30 days after the first date set for the meeting of creditors ..., [to] perform his intention with respect to such property.” 11 U.S.C. § 521(a)(2)(B); see also 11 U.S.C. § 362(h)(1)(B). This “Performance Requirement” thus contemplates that, within 30 days after the 341 Meeting, the debtor will have surrendered, 180redeemed, or tried to reaffirm any personal property that is subject to a security interest. A cursory reading of § 362(h)(1) initially lends the impression that, where a debtor fails to comply with the Filing Requirement of subsection (A), the automatic stay terminates (and the personal property is removed from the bankruptcy estate) 30 days after the debtor files the bankruptcy petition. And many courts interpreting that subsection have not hesitated to so hold. See, e.g., In re Hoisington, 383 B.R. 369, 372 (Bankr.D.S.C.2008) (automatic stay terminated 30 days after the petition filed when debtor did not indicate intent to surrender, redeem, or reaffirm collateral); In re McFall, 356 B.R. 674, 677 (Bankr.N.D.Ohio 2006) (same); In re Record, 347 B.R. 450, 453 (Bankr.M.D.Fla.2006) (same); In re Craker, 337 B.R. 549, 551 (Bankr.M.D.N.C.2006) (same). But for the following reasons, this Court reads subsections (A) and (B) as ambiguous with regard to when the Automatic Stay terminates under § 362(h)(1) and, consequently, when a Chapter 7 trustee is required to file a motion under (h)(2) to prevent the operation of (h)(1) and preserve the asset for the estate. The statute says that the Automatic Stay is “terminated ... if the debtor fails within the applicable time set by section 521(a)(2)” to: (A) timely fulfill the Filing Requirement “and" (B) timely fulfill the Performance Requirement. 11 U.S.C. § 362(h)(1). This could mean that the Automatic Stay is terminated only if the debtor fails to fulfill the Filing Requirement and fails to fulfill the Performance Requirement. See In re Norton, 347 B.R. 291, 297 (Bankr.E.D.Tenn.2006). Or the subsections could be interpreted as terminating the Automatic Stay unless the debtor complies with both the Filing Requirement and the Performance Requirement — i.e., fails to fulfill either one of the requirements. See In re McMullen, 443 B.R. 67, 72-73 (Bankr.E.D.N.C.2010). In In re Norton, the bankruptcy court interpreted § 362(h)(1) as requiring a failure of the debtor to comply with both the Filing Requirement and the Performance Requirement before the Automatic Stay would terminate. 347 B.R. at 297 (Bankr. E.D.Tenn.2006). Therefore, the Automatic Stay could not terminate, under the Norton court’s reasoning, until the later of the two deadlines found in § 521(a)(2) — or 30 days following the first date set for the meeting of creditors. This reading of the statute, while defensible from the way in which it is drafted, leads to the essential problem raised by the In re McMullen court; namely, that debtors could avoid termination of the Automatic Stay under § 362(h)(1) by filing a compliant Statement of Intent, while failing to ultimately carry through with their stated intention. See In re McMullen, 443 B.R. at 73. This result is plainly at odds with the purpose of the amendment articulated in its legislative history. See Recovery Grp., Inc. v. Comm’r of Internal Revenue, 652 F.3d 122, 127 (1st Cir.2011) (legislative history may be analyzed to determine congressional intent where statutory language is ambiguous). While the legislative history of § 362(h)(1) is decidedly sparse, it is at least clear that the intent of § 362(h)(1) was to “terminate the automatic stay with respect to personal property if the debtor does not timely reaffirm the underlying obligation or redeem the property." H.R. Rep. 109-31(1), at 11 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 103 (emphasis supplied). While requiring the timely filing of a Statement of Intent (and making a proper election therein) encourages debtors to make their choice early in the case, the legislation was primarily aimed at forcing debtors to actually carry through on that 181choice within certain deadlines. Interpreting § 362(h)(1) as terminating the automatic stay only if a debtor failed to both file and perform would undercut the purpose of § 362(h)(1) by allowing debtors to file, but not perform under, a Statement of Intent without consequence. Accordingly, the Court agrees with the In re McMullen court’s conclusion that either the failure to properly file the Statement of Intent or to perform according to a properly-filed Statement of Intent will trigger the termination of the Automatic Stay under § 362(h)(1). But given the ambiguity in the statute, the Court is still left with the question of timing — assuming a debtor has failed to fulfill either the Filing Requirement or the Performance Requirement, when does the automatic stay terminate and the property become non-estate property under § 362(h)(1), and, therefore, by when must the trustee file an (h)(2) motion, if necessary? Put another way, if a debtor fails to file a Statement of Intent or does not make a sanctioned election in a timely-filed Statement of Intent, does the Automatic Stay terminate 30 days after the petition date? Or 30 days after the first date set for the meeting of creditors? Given the profound consequences that would redound to bankruptcy estates if the Automatic Stay terminated and property was removed from the estate 30 days after the petition date, the Court is compelled to conclude that the termination of the Automatic Stay and removal of property from the bankruptcy estate under § 362(h)(1) cannot occur until the passage of the latter of the two deadlines found in § 521(a)(2)— 30 days from the first date set for the 341 meeting. 11 U.S.C. § 521(a)(2)(B). “The essential duties of the trustee in a Chapter 7 case are to collect and reduce to money the assets of the debtor’s estate and then to distribute that money to the creditors.” William L. Norton, Jr., 1 Norton Bankr. L. & Prac. 3d § 3:12. In furtherance of those duties, the Bankruptcy Code gives a Chapter 7 trustee “the power to recover property for the estate through the avoidance of various types of transfers from the debtor or from the estate.” Collier on Bankr. (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) ¶ 700.04. The meeting of creditors required by § 341 is critical to a Chapter 7 trustee’s ability to perform his or her duties, primarily because it is almost invariably the first opportunity for a trustee to question the debtor in depth, and under oath, regarding inter alia, the debtor’s assets, liabilities, prepetition transfers, and other relevant financial matters. But the 341 Meeting is very often scheduled more than 30 days after the petition date — a natural consequence of the fact that the 341 Meetings must be scheduled between 21 and 40 days after the commencement of the case. See Fed. R. Bankr.P. 2003(a). Interpreting § 362(h)(1) as allowing for the termination of the Automatic Stay and removal of property from the bankruptcy estate at a time when it is highly probable that neither the trustee nor the other creditors have had an opportunity to examine the debtor would be, in a word, absurd. There is nothing in the legislative history of § 362(h)(1) to suggest that Congress intended that section to eviscerate long-established practice and principles underlying the trustee’s duties and ability to preserve, marshal, and distribute estate assets. Accordingly, the Court is compelled to conclude that the deadline in § 541(a)(2) referred to in § 362(h)(1) must be that deadline found in subsection (B) (30 days after the first date set for the meeting of creditors). To hold otherwise would be destructive to the proper functioning of the bankruptcy system. See 182Hamilton v. Lanning, — U.S.-, 130 S.Ct. 2464, 2475-76, 177 L.Ed.2d 23 (2010) (rejecting interpretation of the Bankruptcy Code that “would produce senseless results that [the Court did] not think Congress intended.”). This interpretation of the applicable deadline maintains a proper balance between preservation of estate assets (by allowing for proper investigation into the debtor’s financial affairs prior to removing assets from the estate) and the desire of Congress, through § 362(h)(1), to give greater protection to creditors where a debtor has failed to surrender, redeem, or reaffirm personal property serving as collateral for the debt. See Morse v. Rudler (In re Rudler), 576 F.3d 37, 50 (1st Cir.2009) (congressional intent relevant to interpretation where “literal application of the statute would lead to absurd results”).11 This interpretation also makes sense in light of the fact that § 362(h)(1)(B) allows for the amendment of a Statement of Intent within 30 days from the first date set for the 341 Meeting.12 Because subsection (B) allows for such amendments, it cannot be determined whether the Debtor has fully complied with both the Filing Requirement and the Performance Requirement until the later deadline has run. In sum, the ambiguity in subsections (A) and (B) of § 362(h)(1) regarding the time when the automatic stay terminates (and, hence, the deadline by which the trustee must file a § 362(h)(2) motion) compels the conclusion that employing the deadline set forth in § 521(a)(2)(B) — 30 days after the first date set for the meeting of creditors — is most consistent with both the purpose of § 362(h)(1) and the long-standing purposes of and practices under the Bankruptcy Code as a whole. Accordingly, this Court holds that, where a debtor fails to file (or file properly) a Statement of Intent or fails to perform according to his or her stated intent, the Automatic Stay will not terminate and personal property will not be removed from the bankruptcy estate pursuant to § 362(h)(1) until the expiration of 30 days after the first date set for the 341 Meeting.13 183Here, the Debtor timely filed a Statement of Intent, and noted that he intended to retain the Cadillac secured by Source One’s lien. The Debtor did not indicate that he intended to either redeem the Cadillac or reaffirm the underlying debt. Thus, it is irrelevant whether the Debtor “timely [took] the action specified in such statement” (i.e., retaining the Cadillac and making monthly payments to Source One), see 11 U.S.C. § 362(h)(1)(B), because he failed to comply with the Filing Requirement established by § 362(h)(1)(A) and § 521(a)(2)(A) by not indicating that he intended to either redeem the Cadillac or reaffirm the underlying debt. The Trustee argues, however, that § 362(h)(1) does not apply because Source One did not have a perfected lien on the Cadillac. This Court respectfully disagrees. Section § 362(h)(1) applies to personal property that “secures” a claim. 11 U.S.C. § 362(h)(1). It does not contain any language limiting the application of that section to perfected security interests.14 As § 362(h)(1) makes no provision for the additional requirement that the security interest be “perfected,” the Court reads that section as requiring only that the claim be secured. See In re Erving Indus., Inc., 432 B.R. 354, 374 (Bankr.D.Mass.2010) (“The Court should not find an ambiguity where there is none....”) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 533, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004); Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); United States v. Lewis, 554 F.3d 208, 214 (1st Cir.2009)). A claim is “secured” if it is “supported or backed by security or collateral.” Black’s Law Dictionary (9th ed.) 1475. “[A] creditor obtains a security interest in property, and becomes ‘secured’ with respect to the property, by entering into a security agreement.” In re Baine, 393 B.R. at 566 (citing 11 U.S.C. § 101(51) (“security interest” under the Code means a “lien created by an agreement.”)). Enforceability of a security agreement giving rise to a “secured claim” is distinguished from “perfection.” See James J. White & Robert S. Summers, Uniform Commercial Code, § 31-1 (2009). “It is perfection ... that affords maximum secured creditor protection against third parties,” id., but “it is the security interest created by an agreement between a debtor and a creditor that makes the creditor a secured party.” In re Baine, 393 B.R. at 566; see also Mass. Gen. Laws ch. 106 § 9-102(a)(72)(A) (“Secured party” defined as “a person in 184whose favor a security interest is created or provided for under a security agreement. .. The validity of the Contract as a security agreement between the Debtor and Source One is determined in accordance with applicable state law (here, Massachusetts law). See In re Inofin, Inc., 455 B.R. 19, 34 (Bankr.D.Mass.2011) (citing Levitz v. Arons Arcadia Ins. Agency, Inc. (In re Levitz Ins. Agency, Inc.), 152 B.R. 693, 697 (Bankr.D.Mass.1992); Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)). The Massachusetts version of the Uniform Commercial Code, Article 9, governs the creation and enforceability of Source One’s security interest in the Cadillac. Baystate Drywall, Inc. v. Chicopee Sav. Bank, 385 Mass. 17, 429 N.E.2d 1138, 1140 (1982); see also In re Inofin, 455 B.R. at 35. The Massachusetts Supreme Judicial Court (the “SJC”) has summarized the requirements for creating a security interest in a motor vehicle found at Mass. General Laws ch. 106, § 9-203: where the collateral is not in the possession of the secured party, as is the case here, three conditions must be met before a security interest in the collateral can attach. There must be a proper security agreement signed by the debtor and containing a description of the collateral; the debtor must have rights in the collateral; and value must be given. Baystate Drywall, 429 N.E.2d at 1140 (citations omitted).15 While maintaining that Source One’s security interest in the Cadillac was not perfected, the Trustee has not suggested that Source One does not have a security interest in the Cadillac, and the Court finds that, under relevant Massachusetts law, Source One held a valid security interest in the Cadillac on the Petition Date. There is no dispute that value was given and the Debtor had rights in the Cadillac. The Contract is signed by the Debtor, provides a description of the Cadillac (including the vehicle identification number), and states that the Debtor is granting a security interest in the Cadillac to secure the repayment of Source One’s loan to the Debtor for the purchase of the vehicle. Accordingly, the Court concludes that the Cadillac is personal property of the Debtor “securing in whole or in part” Source One’s claim for purposes of § 362(h)(1). Likewise, the Court necessarily rejects the Trustee’s argument that Source One is not in the “class” of creditors § 362(h)(1) was drafted to protect. The language of the section must, if possible, be applied according to its terms. Adding an additional policy-based requirement to § 362(h)(1) as argued by the Trustee (namely, that the section should apply only to creditors who are not receiving postpetition payments or would be entitled to repossess the property under relevant non-bankruptcy law) would be inappropriate. See In re Erving Indus., 432 B.R. at 374 185(“The Court should not ... make policy decisions to limit the application of Bankruptcy Code provisions when the language of the statute is otherwise clear.”). Accordingly, the Court finds that § 362(h)(1) is applicable in this case. The Debtor failed to indicate in his Statement of Intent that the Cadillac would be surrendered or redeemed or that the underlying debt would be reaffirmed. Thus, the Automatic Stay terminated with respect to the Cadillac on January 7, 2011 (30 days after the first date set for the meeting of creditors) and the Cadillac was thereafter “no longer property of the estate.” 11 U.S.C. § 362(h)(1). As the Automatic Stay was not in effect (and the Cadillac was no longer property of the bankruptcy estate) at the time Source One took steps to perfect its security interest in the Cadillac, Source One’s actions did not violate the Automatic Stay with regard to either the Debtor or the estate and the Trustee’s Sanctions Motion must be denied.16 B. The Motion to Dismiss The Court has ruled that Source One held a valid security interest in the Cadillac as of the Petition Date. But it appears from the undisputed facts on record that Source One’s security interest was not perfected when Debtor’s case was filed: The perfection of a security interest in a motor vehicle is governed by Mass. Gen. Laws ch. 106, the Uniform Commercial Code, and Mass. Gen. Laws ch. 90D, the Motor Vehicle Certificate of Title Act.... Chapter 90D provides that: A security interest in a vehicle for which a certificate of title is issued under this chapter is perfected by the delivery to the registrar of the existing certificate of title containing the name and address of the lienholder and the date of his security agreement and the required fee.... Mass. Gen. Laws ch. 90D, § 21. The Supreme Judicial Court has clearly stated that “the exclusive method of perfecting a security interest in a motor vehicle is through notation of the lien on a valid certificate of title.” City of Boston v. Rockland Trust Co., 391 Mass. 48, 51, 460 N.E.2d 1269 (1984). BankBoston, N.A. v. Desmond, 256 B.R. 348, 350 (D.Mass.2000) (emphasis supplied); see Mass. Gen. Laws ch. 90D, § 21. As of the Petition Date, Source One was not identified as a lienholder on the Title (then in the Debtor’s possession), and its lien was thus unperfected at the commencement of the case. Because Source One’s security interest was not perfected on the Petition Date, its lien became susceptible to avoidance by the Trustee pursuant to § 544(a)(1) of the Code. Under § 544(a)(1), “[a] trustee in bankruptcy has, as of the commencement of the case, the status of a hypothetical lien creditor and is empowered to avoid any transfer of property of the debtor that could be avoided by such creditor.” BankBoston, 256 B.R. at 350. Section 544(a)(1) (often referred to, along with subsections (a)(2) and (3), as the “strong arm” clause) provides: (a) The trustee shall have, as of the commencement of the case, ... the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— 186(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists; 11 U.S.C. § 544(a)(1) (emphasis supplied). “The purpose of the ‘strong arm clause’ is to cut off unperfected security interests, secret liens, and undisclosed prepetition claims against the debtor’s property as of the commencement of the case.” Ostrander v. Gardner (In re Millivision, Inc.), 331 B.R. 515, 522 n. 12 (Bankr.D.Mass.2005), aff'd 474 F.3d 4 (1st Cir.2007) (quoting Collier on Bankr. (Alan N. Resnick & Henry J. Sommer eds., 15th ed. 2005) ¶ 544.03). The rights of the Trustee as a hypothetical lien creditor under § 544(a)(1) are determined under state law. Abboud v. The Ground Round, Inc., 482 F.3d 15, 20 (1st Cir.2007). Under Massachusetts law, a lien creditor has superior rights to an unperfected security interest in a motor vehicle. See Mass. Gen. Laws ch. 106, § 9-317 (“A security interest ... is subordinate to the rights of: ... (2) ... a person that becomes a lien creditor before the earlier of the time: ... (A) the security interest ... is perfected_”). Since the Trustee’s rights as a hypothetical lien-holder under § 544(a)(1) are measured “as of the commencement of the case,” 11 U.S.C. § 544(a); see also In re Millivision, 331 B.R. at 521, the Trustee’s hypothetical lienholder status trumped Source One’s unperfected security interest in the Cadillac on the Petition Date. In the usual case, the result on these facts would be cut and dry — an unperfect-ed lien can be avoided pursuant to § 544(a)(1) and preserved for the benefit of the bankruptcy estate by § 551; and pursuant to § 550, the Trustee may recover either the property or its value from the initial transferee. But where, as here, the property is no longer property of the estate, and was not property of the estate at the time the Trustee filed the Complaint to avoid Source One’s hen on the Cadillac, the question raised by the Motion to Dismiss is whether the Trustee’s action under §§ 544(a)(1) and 551 remains viable. At least one court has concluded, on almost identical facts, that removal of personal property from the bankruptcy estate under § 362(h)(1) can be analogized to the abandonment of estate property governed by § 554, because both have the “effect of divesting the estate of all its interests in the property.” In re Baine, 393 B.R. at 568. The court in In re Baine, citing to Keller v. CIT Grp./Consumer Fin., Inc. (In re Keller), 229 B.R. 900, 903 (Bankr.S.D.Ohio 1998), and In re Burchette, 2002 WL 31051033 (Bankr.M.D.N.C. June 21, 2002), stated that a trustee loses the right to avoid an unperfected lien under § 544(a)(1) when the property subject to the otherwise-avoidable lien has been abandoned and is no longer property of the estate. In re Baine, 393 B.R. at 568. Accordingly, the In re Baine court reasoned, removal of estate property pursuant to § 362(h)(1) divests the trustee of the right to later avoid an unperfected lien on that property. Id. While In re Baine has been criticized for analogizing the removal of property from the bankruptcy estate under § 362(h)(1) to the abandonment of estate property under § 544,17 this Court believes 187such criticism misses the point. The In re Baine court did not say that § 362(h) actually effects an “abandonment” of estate property. Rather, the court insightfully recognized that the removal of estate property by operation of specific Code provisions is substantially the same for both abandonment and § 362(h).18 Where this Court disagrees with Baine and other cases addressing similar issues19 is in their conclusion that the consequence of both is the nullification of a trustee’s ability to avoid a lien on the property under § 544(a)(1).20 The language used in § 544(a)(1) does not limit a trustee’s avoidance power under that section to only property of the estate. Instead, a trustee is given, “as of the commencement of the case,” the status of a hypothetical lienholder and is empowered to “avoid any transfer of property of the debtor” avoidable by a hypothetical lienholder. 11 U.S.C. § 544(a) (emphasis supplied). While “property of the debtor” often encompasses property that is also “property of the estate,” the terms are not necessarily co-extensive and are differentiated throughout the Bankruptcy Code. See, e.g., Jumpp v. Chase Home Fin., LLC (In re Jumpp), 356 B.R. 789, 794-95 (1st Cir. BAP 2006) (noting various Code provisions “differentiating between the debtor, prop188erty of the debtor, and property of the estate”). Congress drafted § 544(a)(1) as applicable to “property of the debtor” and did not limit the trustee’s powers to only “property of the estate.” If Congress wanted to limit the trustee’s powers to only property that remained property of the estate postpetition, it could have done so in § 544 itself, through § 546, or in some other Code provision.21 Having plainly extended the § 544(a) strong arm powers to property of the debtor, the Court must conclude the Trustee’s § 544(a)(1) avoiding power is not limited by the removal of property from the estate pursuant to § 362(h)(1). But “[effective avoidance by a trustee is a two-step process. First, the trustee must avoid the transaction, then he must effect a recovery.” Gold v. United States (In re Laines), 352 B.R. 420, 425-26 (Bankr.E.D.Va.2006) (internal citations omitted); see also Collins v. Cayuga Energy, Inc. (In re South Glens Falls Energy, LLC), 2009 WL 2883141, 3-4 (Bankr.N.D.N.Y. Jan. 30, 2009) (avoidance and recovery are separate concepts and processes) (collecting cases). To recover the avoided lien for the benefit of the Debtor’s bankruptcy estate, the Trustee relies, not on § 550, but on the automatic preservation of avoided liens under § 551. Section 551 provides that “[a]ny transfer avoided under section ... 544 ... is preserved for the benefit of the estate but only with respect to property of the estate.” 11 U.S.C. § 551 (emphasis supplied). As the Cadillac is no longer property of the estate, § 551 cannot provide the Trustee with a source of recovery for the avoidance of Source One’s lien. See Waldschmidt v. Metals (In re Ward), 42 B.R. 946, 952 (Bankr.M.D.Tenn.1984). And since the Trustee’s theory for the recovery of postpetition payments to Source One is dependent upon preservation of the avoided lien under § 551, see White v. Wachovia Dealer Sens. (In re Wyatt), 440 B.R. 204, 213 (Bankr.D.C.2010), the request for recovery of those payments must likewise be denied.22 189The primary purpose of § 551 is to provide the Trustee with the additional lever of employing the avoided lien in order to retain its (and the bankruptcy estate’s) priority over junior liens. Here, the Trustee has no need of this additional statutory assistance, as there are no junior liens. See Lassman v. OneWest Bank (In re Swift), 458 B.R. 8, 14 (Bankr.D.Mass. 2011); Riley v. Sullivan (In re Sullivan), 387 B.R. 353, 358 (1st Cir. BAP 2008). Rather, the Trustee’s recovery is more properly sought under § 550(a), which provides that “to the extent that a transfer is avoided under section 544, ... the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from ... the initial transferee....” 11 U.S.C. § 550(a)(1). The estate’s rights against the Cadillac arose as of the Petition Date. Once Source One’s lien is avoided, the Trustee holds the estate’s rights under § 550. And that section permits the Trustee to recover the Cadillac or its value. There is no requirement in § 550 that the Cadillac or its value be property of the estate at the time of recovery.23 Accordingly, the Motion to Dismiss must be denied with respect to the Trustee’s claim for relief under § 544(a) and granted with respect to the Trustee’s claims under § 551, including the Trustee’s demand that Source One turn over the Debtor’s postpe-tition payments. As recovery under § 550(a) appears viable, however, the Trustee will be granted leave to amend the Complaint. IV. CONCLUSION This Court could not agree more with one commentator’s recent observation that “Section 362(h) is obviously a trustee land mine, but it is not possible to wish it away.” Wendell J. Sherk, Section 362(h) Deprives a Trustee of Property of the Estate, 30-8 Am. Bankr. Inst. J. 42 (Oct. 2011). The provisions of § 362(h) have the potential to strip bankruptcy estates of valuable property without court order or intervention. Trustees will have yet another deadline and another duty to fulfill in order to preserve personal property that may have value for the estate. While the Court has taken the liberty of interpreting § 362(h) in a fashion which does the least harm to Congress’s perceived statutory goals, this Court cannot merely “wish away” its underlying scheme. The Court cannot resist one last observation. By dint of § 362(h)(1), Source One has escaped the consequences of a violation of the Automatic Stay, which, in light of the willfulness of its actions, would have been severe indeed. But what benefit has Source One achieved by first ignoring and then attempting an end-run around the Chapter 7 trustee? At day’s end, it will have derived no monetary benefit from its efforts to perfect its lien against the Cadillac, and has incurred an even greater loss on account of the costs of its defense. In any event, for all the reasons articulated herein, the Court will deny the Trustee’s Sanctions Motion. The Court will also grant Source One’s Motion to Dismiss 190to the extent the Complaint seeks relief under § 551. But because the Court concludes that the avoidance of the lien is not precluded, the Motion to Dismiss will be denied with respect to the Trustee’s claim under § 544(a)(1). The Trustee will be granted ten (10) days to further amend his Complaint to assert a claim under § 550(a), following which the Court will schedule a further pretrial conference in order to determine the parties’ respective positions with respect to disposing of the Adversary Proceeding. Orders in conformity with this memorandum shall issue forthwith. . See 11 U.S.C. § 101 etseq. (the "Bankruptcy Code” or the "Code”). All references to statutory sections are to the Bankruptcy Code unless otherwise specified. . Pub. L. 109-8, 119 Stat. 23, enacted April 20, 2005, effective October 17, 2005. .On Schedule C, the Debtor claimed an exemption in the Cadillac under § 522(d)(2), but listed the value of that exemption as "$0.00.” . The Contract was originally signed by the Debtor and a representative of the auto dealership where the Cadillac was purchased, but reflects that the Contract was to be assigned to Source One. See Trustee's Mot. for Sanctions, Ex. A, Retail Installment Sale Contract, June 20, 2011, ECF No. 30. . See Trustee’s Mot. for Sanctions, Ex. B, Mass. Registry of Motor Vehicles Registration/Title Inquiry 4/26/2011. . As will be explained in greater detail below, § 362(h) provides for termination of the Automatic Stay with respect to personal property of an individual debtor when the personal property secures a prepetition claim and the debtor either fails to file an appropriate statement of intention with regard to the property or fails to act according to his or her stated intention within certain deadlines. See 11 U.S.C. § 362(h). . After these matters were taken under advisement, the Trustee filed an amended complaint and motion to amend on August 29, 2011. The amended complaint added a paragraph requesting return of the $2,078.34 paid by the Debtor to Source One postpetition. No objections to that motion were filed, and the request to amend the complaint was allowed. In fact, even before the amended complaint was filed, Source One acknowledged that the Trustee was attempting, through the Adversary Proceeding, to recover postpetition payments. See Mem. in Supp. of Mot. to Dismiss, 2, AP No. 11-3025, June 30, 2011, ECF No. 7. Accordingly, this memorandum refers to the complaint as amended as the "Complaint.” . At paragraph 17 of the Complaint, the Trustee references his "rights and powers of a hypothetical lien creditor” under § 544(a)(1), but later in the Complaint, he requests relief pursuant to § 544(a)(3 ). See Amended Complaint, 2 ¶ 17, 3 ¶ 20, AP No. 11-3025, Aug. 29, 2011, ECF No. 16. Neither party has been confused or prejudiced by this apparent typographical error, as both have acknowledged that subsection (a)(3) was erroneously cited. See Mem. in Supp. of Trustee's Opp’n to Mot. to Dismiss, 2 n.l, AP No. 11-3025, Aug. 12, 2011, ECF No. 12; Mem. in Supp. of Mot. to Dismiss, 3 n.l. The Court therefore interprets the Complaint as having been brought pursuant to § 544(a)(1). . Section 362(h) also applies to personal property subject to an unexpired lease, providing for termination of the Automatic Stay if the debtor fails to assume the lease pursuant to § 365(p) if the trustee does not do so. 11 U.S.C. § 362(h)(1)(A). As the In re Du-mont court noted, “Although traditionally ["either”] has referred to only two items, the standards of the English language have degenerated such that either is now acceptable with more than two clauses.” 581 F.3d at 1114 (citing Am. Heritage Dictionary of the English Language 572-73 (usage note)). This Court respectfully disagrees. The English language stands unblemished. There is no reason to blame the language for the clumsiness of its users. . Prior to the BAPCPA amendments, the First Circuit Court of Appeals had interpreted § 521(a)(2)(A) as requiring that a debtor elect to surrender, reaffirm, or redeem property securing a consumer debt, see Bank of Boston v. Burr (In re Burr), 160 F.3d 843, 849 (1st Cir.1998), and that interpretation is now further buttressed by the specificity found in the new § 362(h)(1)(A). Even in those circuits where a "fourth” option of retaining and making payments on secured debts under § 521(a)(2)(A) had been sanctioned, several courts have now recognized that § 362(h)(1)(A) does not allow such a "ride through.” See, e.g., In re Dumont, 581 F.3d at 1113-14 (noting that the BAPCPA amendments are "inconsistent” with prior 9th Circuit law, which had allowed debtors to retain personal property and continue to make payments and holding that § 362(h) now requires debtors, in the statement of intention, to " 'indicate in such statement that’ he will do one of four things: surrender, redeem, reaffirm, or assume an unexpired lease’ ”); In re Miller, 443 B.R. 54, 58 (Bankr.D.Del.2011) ("New section 362(h) thus changed the pre-BAPCPA analysis because the debtor must now indicate whether she will surrender, reaffirm, redeem, or assume an unexpired lease, and then perform accordingly. Consequently, the pre-BAPCPA 'ride through’ option available to debtors in the Third Circuit has been narrowed.”); but see In re Baker, 390 B.R. 524 (Bankr.D.Del.2008), aff'd Ford Motor Credit Co. v. Baker (In re Baker), 400 B.R. 136 (D.Del.2009) (Third Circuit Court of Appeals’ decision in Price v. Delaware State Police Fed. Credit Union (In re Price), 370 F.3d 362, 372 (3d Cir.2004), which held "that the enumeration of three options for treatment of secured property under former section 521(2) — i.e., surrender, redemption or reaffirmation — did not preclude the debtor from exercising a so-called 'fourth option' — i.e., retaining the property while remaining current on payments” was not affected by changes in BAPCPA and remained controlling law.). . See also Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827 (1966) (When statutory language leads to "absurd or futile results, however, this Court has looked beyond the words to the purpose of the act” and has rejected unreasonable interpretations "plainly at variance with the policy of tire legislation as a whole.”) (quoting United States v. Am. Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940)); Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 85 L.Ed. 303 (1941) ("Courts in the interpretation of a statute have some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results or would thwart the obvious purpose of the statute.”) (citing Haggar Co. v. Helvering, 308 U.S. 389, 60 S.Ct. 337, 84 L.Ed. 340 (1940); United States v. Katz, 271 U.S. 354, 362, 46 S.Ct. 513, 70 L.Ed. 986 (1926)). . See 11 U.S.C. § 362(h)(1)(B) (addressing the failure of the debtor to "take timely the action specified in [the Statement of Intent] as it may be amended before expiration of the period for taking such action ”) (emphasis supplied). . This Court is mindful that it has rewritten § 362(h) in two respects. First, it has changed the word "and,” positioned between § 362(h)(1)(A) and (B), to "or.” Second, it has supplied the date for termination of the Automatic Stay where the statute has, arguably, offered two mutually exclusive alternatives. Courts should be very careful to avoid acting or being viewed to act as if they are a legislative body. But where the legislative body, here the Congress, has put a structure in place that, if taken literally, is ambiguous, can lead to absurd results, and does not serve the interests of those that legislative history indicates were to be protected, the Court has 183no choice but to supply the fix that appears most likely to be the one that would have been adopted by the legislative body had it seen the problem that its language created. See Hamilton v. Lanning, 130 S.Ct. at 2475. . This Court does not read In re Houseal as establishing a “perfected security interest’’ requirement under § 362(h)(1). In that case, the Chapter 7 debtor indicated an intent to surrender a vehicle to a secured creditor, but did not actually surrender the vehicle. 2007 WL 5582053, at 1. Subsequently, the Trustee filed a motion to sell the vehicle, noting that the alleged secured creditor had provided no proof of its secured interest. Id. The creditor argued that the trustee could not sell the vehicle because the automatic stay had previously terminated, "and the property was abandoned,” pursuant to § 362(h)(1)(B). Id. Ultimately, the Court declined to address the parties’ various arguments regarding the trustee’s ability to sell the vehicle because the question remained whether the creditor had a “valid security interest” in the vehicle, and thus whether § 362(h) even applied. Id., at 2. The court did not hold that the creditor would need to demonstrate a "perfected” security interest; rather, the court concluded that it first needed evidence as to whether the creditor had any secured interest in the vehicle at all. Id.; see also In re Baine, 393 B.R. at 567 n. 3 (In re Houseal decision was "limited to allowing [the] trustee! 1 to continue preliminary investigation into whether the creditor!] at issue [was] really 'secured.’ ”). . Although in Baystate Drywall the SJC was addressing an earlier version of § 9-203, under the current version of § 9-203 (enacted in 2001), the requirements for the creation of a security interest as relevant to this case are identical. The current version of § 9-203 provides: (b) Enforceability.... a security interest is enforceable against the debtor and third parties with respect to the collateral only if: (1) value has been given; (2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and (3) one of the following conditions is met: (A) the debtor has authenticated a security agreement that provides a description of the collateral.... Mass. Gen. Laws ch. 106, § 9 — 203(b). . Because the Court concludes that the Automatic Stay was not violated, the Court need not address the parties’ arguments regarding the imposition of sanctions, including the ability of a Chapter 7 trustee to seek sanctions under § 362(k) or § 105(a) and the applicability of the “good faith” exception in § 362(k)(2). . See, e.g., Neil C. Gordon, Section 362(h) Does Not Deprive a Trustee of Standing to Avoid a Lien, 29-10 Am. Bankr. Inst. J. 50 187(Dec. 2010); In re Blixseth, 454 B.R. at 99 n. 11. . The similarity between the removal of property from the estate under § 362(h)(1) and abandonment under § 554 is reflected in the language used by other courts to describe the consequences of § 362(h)(1). See, e.g., In re Dumont, 383 B.R. at 486 (summarizing § 362(h) and stating that “section 362(h) terminates the ... stay as to personal property securing a claim ... (and also abandons that property)....”); In re Houseal, 2007 WL 5582053, at 2 (“Pursuant to 11 U.S.C. § 362(h)(1), the stay lifts and abandonment of the personal property occurs....”). . See, e.g. In re Burchette, 2002 WL 31051033, 2 (where property was disclosed by debtor prior to closure of the case, court denied motion to reopen case to allow trustee to avoid defective security interest, because property had been abandoned and there were no remaining assets to administer); In re Keller, 229 B.R. at 902-03 (where trustee had abandoned property, court no longer had jurisdiction over property and trustee no longer had control over property for purposes of avoiding defective lien under § 544(a)(3)); Huntington Nat’l Bank v. Hunter (In re Hunter), 76 B.R. 117, 120 (Bankr.S.D.Ohio 1987) (where trustee had abandoned property, the abandonment would not be revoked to allow the trustee to avoid the security interest on the property as a preference under § 547; once abandoned, the property reverted to the debtor and was no longer under the control of the trustee as property of the bankruptcy estate); Putterbaugh v. Int’l Harvester Credit Corp., 32 B.R. 506 (Bankr.D.Me.1983) (trustee sought to avoid, as preferential transfer, a judicial lien attachment on properly previously abandoned by the trustee; the court held that, due to the abandonment, "the trustee no longer has any interest in whether or not International Harvester’s attachment is a preferential transfer.... whether or not the requested relief is granted, the bankrupt estate would remain unaffected,' the trustee’s complaint shall be dismissed as moot.”) (quoting In re PEA Express. Inc., 2 B.R. 730, 732 (S.D.N.Y.1980)); see also Old West Annuity & Life Ins. Co. v. The Apollo Group, 605 F.3d 856, 863 (11th Cir.2010) (trustee’s status as hypothetical lien creditor under § 544 "attaches 'as of the commencement of the case,’ ” and terminates when the property is no longer property of the estate). .Where the abandonment of disclosed property occurs automatically upon closing of the bankruptcy case pursuant to § 554(c), however, a more serious obstacle to a subsequent attempt by the trustee to avoid a defective security interest on the property is found, not in the concept of abandonment, but in the limitation on the avoidance powers established by § 546, which bars commencement of avoidance actions by the trustee after "the time the case is closed.” 11 U.S.C. § 546(a)(2). . See, e.g., 11 U.S.C. § 362(c)(1), which continues "the stay of an act against property of the estate ... until such property is no longer property of the estate." (emphasis supplied). . The Court also notes its inclination to disagree with the analysis and conclusion reached in In re Wyatt that would require a court to look at the debtor's "motivation” for making postpetition payments to a secured creditor whose lien is ultimately avoided by the trustee, on grounds that the trustee may recover such payments as "proceeds” of the avoided lien. 440 B.R. at 213-17. This Court’s dubious response is based on the many other cases reaching the opposition conclusion based on plain statutory language. See, e.g., Old West, 605 F.3d at 864 (postpetition transfers can only be avoided under § 549); Morris v. Vulcan Chem. Credit Union (In re Rubia), 257 B.R. 324, 327-28 (10th Cir. BAP 2001), aff'd 2001 WL 1580933 (10th Cir. Dec. 12, 2001) (where trustee avoided lien as preferential transfer, debtor's post-petition payments to creditor were not recoverable by the trustee because avoidance and preservation of lien gave the trustee rights in the vehicle, but not a right to collect post-petition payments, although the lender would have to reduce its (now unsecured) claim by any amount paid by the debtor post-petition); Kelley v. Chevy Chase Bank (In re Smith), 236 B.R. 91, 101 (Bankr.M.D.Ga.1999) (where trustee avoided lien, postpetition payments to creditor were not recoverable because they were paid by debtor's post-petition earnings and did not involve estate property); In re Closson, 100 B.R. 345, 347 (Bankr.S.D.Ohio 1989) (where trustee avoided lien on vehicle, trustee failed to establish right under § 551 to recover postpetition payments to creditor: "avoidance of the lien does not automatically create a right of recovery of the payments made under the contract between debtor and lienholder.... [t]he trustee bears the burden of establishing a right to recover the Postpetition Payments — either pursuant to 11 U.S.C. § 549 or some other Code provision....”). . Indeed, the docket of this case reflects that, in the interim, the Trustee requested and obtained leave of this Court to sell the Cadillac, without any objection by the Debtor or Source One. See Motion to Sell Property of the Estate at Public Auction, Sept. 16, 2011, ECF No. 52; Notice of Intended Sale of Estate Property, Sept. 19, 2011, ECF No. 55; Order on Motion to Sell Property of the Estate by Public Auction, Oct. 20, 2011, ECF No. 61. While the consequences of that sale or the disposition of the sale proceeds are not presently before the Court, the failure of the Debtor or Source One to object to the sale may reflect their conclusion that, even if the Cadillac is no longer property of the bankruptcy estate, it is certainly an appropriate target of recovery under § 550.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494503/	198FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE TRUSTEE’S OBJECTION TO EXEMPTION MELVIN S. HOFFMAN, Bankruptcy Judge. David M. Nickless, the chapter 7 trustee in this case, has objected to the exemption claimed by the debtors, Kesnel Moise and Bianca Moise (also known as Bianca Adrien), in a certain savings account at Citizens Bank. The basis for the trustee’s objection is that the account was a trust account for the benefit of the debtors’ son and that all or substantially all the funds in the account were deposited within four years of the bankruptcy filing when the debtors were insolvent. According to the trustee, the transfers by the debtors into the account are avoidable by him and upon his recovering the funds in the account the debtors will be barred from exempting the funds by § 522(g) of the Bankruptcy Code, 11 U.S.C. § 522(g). The parties filed a joint pretrial memorandum which included a statement of agreed-upon facts and after an evidentiary hearing at which both debtors testified I took the matter under advisement. My findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052 are as follows. In schedule B (personal property) to their bankruptcy petition the Moises listed six bank accounts at Citizens Bank, including an account identified as “Savings Account in Debtor’s [sic] Possession — in trust for Children.” This account refers to a Citizens Bank account denominated “Kesnel Moise Bianca Adrien Trustees for Kaleb Joseph Adrien” (the “Savings Account”). Kaleb Joseph Adrien is the debtors’ son. The Savings Account was originally opened in 2004. No independent trust documents or agreements setting forth the terms of any trust established by the Moises for their son were introduced into evidence or alleged to exist by any party. The debtors scheduled the Savings Account’s value as $11,272.13, the balance in the account at or near the date of their bankruptcy petition. On Schedule C to their petition, the debtor^ claimed each of their bank accounts, including the Savings Account, to the extent of its full value, exempt pursuant to § 522(d)(5) of the Bankruptcy Code.1 In the year prior to them bankruptcy, one or both of the debtors voluntarily transferred a total of $14,540 into the Savings Account. Some of the money transferred into the account came from the debtors’ other accounts at Citizens Bank. At various times during the year prior to their bankruptcy the Moises withdrew funds from the Savings Account totaling $4400. Except for the accrual of interest, there were no other transactions involving the Savings Account during the year prior to the bankruptcy petition date. The trustee objected to the debtors’ claimed exemption in the Savings Account asserting that because the debtors voluntarily transferred all or substantially all of the funds into the Savings Account during the four years prior to filing bankruptcy when they were insolvent, he could recover the funds for the bankruptcy estate by deploying his arsenal of avoidance powers stockpiled in chapter 5 of the Bankruptcy Code and the debtors would be ineligible 199to exempt such funds due to the application of Bankruptcy Code § 522(g), which provides in relevant part: Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if&emdash; (1)(A) such transfer was not a voluntary transfer of such property by the debtor; and (B) the debtor did not conceal such property.... The debtors responded in their papers and by their testimony that at all times since the Savings Account was opened they believed the account was a “family savings account” and that they could and did deposit and withdraw funds at will for their own benefit and use. Mr. Moise testified that the account was designated as a trust account for his son because that was how a bank employee prepared the paperwork. The debtors assert that they properly listed the Savings Account on schedule B to their bankruptcy petition as their asset and so they are not relying on § 522(g) as the basis for their seeking to exempt it. The foregoing facts establish without question that the Savings Account is a classic “Totten”2 or savings account trust whereby a depositor/trustee establishes a savings account for the benefit of a third party as beneficiary, retaining the right to make deposits and withdrawals during the depositor/trustee’s lifetime, and agreeing that upon the depositor/trustee’s death all funds in the account become payable to the beneficiary. Mass. Gen. Laws ch. 167D, § 6, which governs deposits held in trust for others, recognizes such savings account trusts and authorizes the depository bank to pay the account proceeds to the beneficiary upon the death of the trustee. The Massachusetts Appeals Court, in Bongaards v. Millen, 55 Mass.App.Ct. 51, 60, 768 N.E.2d 1107, 1114 (2002), aff'd on other grounds 440 Mass. 10, 793 N.E.2d 335 (2003), characterized the statute as one: which essentially shields the bank from liability for payment of the account to the trust beneficiary following the death of the trustee but which also may be read as permitting withdrawal of part or all of the account by the trustee. In examining the nature of these accounts the Appeals Court noted: A savings bank trust is revocable by the depositor at any time during his life ... if the depositor changes the form of the account, withdraws the money on deposit, or makes a will leaving the account to someone other than the trust beneficiary.... (Internal citations omitted). In terms of trust law, therefore, the essential feature of savings account trusts is its revocability. In Martucci v. US, 1986 WL 5351, at 2 (D.Mass. March 26, 1986), Judge Keeton held that a savings account trust was the property of the depositor and subject to levy by the IRS for her outstanding tax obligations. Relying on Scott on Trusts, he observed: Absent any written trust agreement to the contrary, a savings account trust such as those created by Mrs. Martucci is revocable by the settlor, and is there200fore reachable by the settlor as well as by the creditors of the settlor during the settlor’s lifetime. See also Bongaards, 55 Mass.App.Ct at 60, 768 N.E.2d at 1114. Applying the principles just enunciated to the Savings Account leads to the conclusion that when the Moisés filed their bankruptcy petition the Savings Account became an asset of their bankruptcy estate. There would have been no need for the chapter 7 trustee to bring an avoidance action to recover the funds in the Savings Account, he could have instructed the Moisés to withdraw all the funds in the account and turn them over to him. Except of course, he could not compel turnover if the Moisés were entitled to claim the Savings Account as exempt. The facts in this case are almost identical to the ones confronting Judge Deasy in In re Arsenault, 318 B.R. 616 (Bankr.D.N.H.2004), where the court held that a debtor’s depositing in excess of $144,000 into a savings account trust for his son a month prior to his bankruptcy filing was not a transfer avoidable by his trustee because the debtor had “unfettered dominion and control” over the account prior to and on the bankruptcy petition date and thus the account became property of his estate. Like the chapter 7 trustee here, the trustee in Arsenault had objected to the debtor’s claim of exemption in the savings account based on an anticipatory avoidance action to recover the account and invoking § 522(g) to disqualify the debtor’s exemption. Applying the recognized principles of trust law to the debtor’s savings account, the court in Arsenault overruled the trustee’s objection because the account was property of the bankruptcy estate and there was no transfer for the trustee to avoid. In this case, under Massachusetts law the Savings Account was always property of the Moisés, reachable by their creditors. Martucci, 1986 WL 5351, at *2. When they filed bankruptcy the Savings Account became property of their bankruptcy estate. The transfer of funds by the Moisés into the Savings Account prior to their bankruptcy petition date amounted to nothing more than moving them own money from one pocket to another. There was no transfer for the trustee to avoid. The Moisés properly scheduled the Savings Account as an asset and properly exempted it. The trustee’s objection is, therefore, overruled. A separate order will issue. . In response to question 14 of their statement of financial affairs accompanying their bankruptcy petition, the Moises disclosed that they held two Wells Fargo accounts in trust for their minor children. Account statements for these accounts identified as "College-bound Fund” accounts were admitted into evidence. The debtors did not schedule these accounts as assets on schedule B to their petition and the trustee has not challenged the debtors' characterization. . The name refers to a leading New York case, In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494504/	MEMORANDUM OF DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY ALBERT S. DABROWSKI, Bankruptcy Judge. I. INTRODUCTION In this adversary proceeding the Plaintiff, Gillian Orr (hereafter, the “Plaintiff’), requests determinations of nondischarge-ability of debts under Bankruptcy Code § 523(a)(6) for damages, interest, costs, and attorney’s fees arising from the failure of Glenn Marcella (hereafter, the “Debt- or”) and/or his fitness club business, The Center Studio, Inc., to pay the Plaintiffs wages in connection with her employment. For the reasons set forth hereafter, the Court concludes that the Plaintiffs claims are dischargeable. II. JURISDICTION The United States District Court for the District of Connecticut has jurisdiction over the instant adversary proceeding by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine this proceeding on reference from the District Court pursuant to 28 U.S.C. § 157(a), (b)(1) and the District Court’s General Order of Reference dated September 21, 1984. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(I). III.FACTUAL AND PROCEDURAL BACKGROUND The facts herein are gleaned from an evidentiary hearing held before the Court on January 25, 2011 (hereafter, the “Hearing”), a post-trial hearing held April 12, 2011 (hereafter, the “Post-Trial Hearing”), a stipulation between the parties, and the files and records of this case and proceeding. In March, 2007, the Plaintiff started working as an independent contractor instructing others in personal training and group exercise for The Center Studio, LLC, a Connecticut limited liability company owned by the Debtor. See, Stipulations of Fact, ECF No. 62, ¶¶ 1, 4-6. Around January 7, 2008, the Debtor dissolved The Center Studio, LLC and formed a new corporate entity in its place called The Center Studio, Inc. (hereafter, the “The Center Studio”), organized under Connecticut law with the Debtor as both owner and president. Id., ¶2, 4, 7. The Plaintiff continued working for the new business as a personal trainer and group exercise instructor, but around March 17, 2008, the Debtor “reclassified Plaintiff as [a salaried] employee” with the title of General Manager and an annual salary of $40,000, payable at the rate of $1,538.46 gross every two weeks. Id., ¶ 6-9; see also, Exhibit l.1 The Plaintiff worked for The Center Studio in that capacity until March 2009. During March 2009, the perfect storm of increased competition, a down economy, and dwindling revenue contributed to the Debtor’s inability to fully fund both the payroll obligations of The Center Studio 216and other expenses2. On or about March 18, 2009, the Debtor wrote out a check payable to the Plaintiff in the amount of $1,176.32, the net salary for her employment from March 2, through March 15, 2009, but failed to give the check3 to the Plaintiff and informed her that he did not have enough money to cover it. Approximately five days later, the Debtor opened an account in his own name at Sovereign Bank with a deposit of $2,500. Exhibit M. Notwithstanding the Debtor’s failure to pay her salary for employment from March 2, through March 15, 2009, the Plaintiff continued to work at The Center Studio for another two weeks, from March 16, to March 29, 2009, earning an additional .$1,176.84 in net income for that time period. At the end of March, 2009, the Debtor again wrote out a check4 payable to the Plaintiff, this time for the March 16 through March 29 pay period, but again refused to give the check to the Plaintiff citing a lack of funds to cover it.5 As of March 29, 2009, the Debtor owed the Plaintiff $3,076.92 in gross wages for the previous four weeks. At or near that same date he informed the Plaintiff that he was reclassifying her as an independent contractor, and proposed a plan (hereafter, the “Plan”) to the Plaintiff by which the arrearage attending her wages would be repaid.6 See, Stipulations of Fact, ¶ 11-13. Pursuant to the Plan, the Debtor proposed to permit the Plaintiff to retain the full fee she earned from conducting personal training sessions, rather than remitting a portion of each fee to the Debtor, which would partially offset the arrearage. Id., ¶ 13. Attending the change in status from an employee to an independent contractor was the Plaintiffs realization that she needed to obtain her own liability insurance, which she previously had as an independent contractor but which had terminated when she became a salaried employee. The Plaintiff testified that a discounted rate on liability insurance was then available if she provided the State of Connecticut Department of Consumer Protection with the license number of her employer’s fitness center on the insurance application. When the Plaintiff requested the license number of The Center Studio from the Debtor, she was informed there was no such license, and the conversation escalated. Soon thereafter her employment was terminated. The parties dispute the reasons for the Plaintiffs termination. The Plaintiff contends that she was retaliated against for inquiring about the license number. The Debtor contends that the Plaintiff was discharged because she was an independent contractor without liability insurance, who refused to teach a spinning (exercise) 217class. To the limited extent the Debtor’s and Plaintiffs testimony is in conflict, as is the case regarding certain facts attending her termination, the Court, having observed the demeanor of these witnesses, specifically credits the testimony of the Debtor over that of the Plaintiff. By April 29, 2009, the Plaintiff had made several unsuccessful requests for payment of unpaid wages. As previously noted, on or about March 23, 2009, the Debtor opened a new personal account at Sovereign Bank, and during April, 2009, several' deposits were made into that account including, $2,000, $450 and $2900, on April 9, 20, and 29, 2009, respectively. Exhibit M. However, the Hearing evidence was inconclusive as to the origin of those deposits. More specifically, the Debtor’s Schedule I, filed together with his wife as part of their joint bankruptcy petition, shows sufficient income from his spouse’s nursing job to adequately cover deposits made into the Debtor’s personal bank account at Sovereign Bank. In addition, the bank records of The Center Studio do not evidence the occurrence of a diversion of assets from that entity. On April 29, 2009, the Plaintiff filed a Statement of Claim for Wages with the State of Connecticut Department of Labor. Receiving no response from the Debtor, the Plaintiff commenced a lawsuit7 against him in the Superior Court for the State of Connecticut alleging, inter alia, violations of the Connecticut Minimum Wage Act, Conn. Gen.Stat. § 31-71b, and retaliatory discharge under the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. § 42-110a. On June 4, 2009, the Debtor paid the Plaintiff the principal amount of her accrued wages from March 2009, but did not pay the Plaintiffs liquidated damages claim of $2,727, nor her attorney’s fees or costs. The June 4 payment to the Plaintiff was drawn on the Debtor’s personal account at Sovereign Bank rather than The Center Studio account at Bank of America, as the financial condition of The Center Studio had ultimately forced it out of business on June 1, 2009. The Debtor filed a joint petition with Elizabeth Marcella under Chapter 7 of the Bankruptcy Code on October 7, 2009, and received a discharge on January 13, 2010. On January 5, 2010, the Plaintiff commenced the present adversary proceeding by filing a complaint (hereafter, the “Complaint”), No. 10-02001, seeking determinations of nondischargeability of claims against the Debtor and The Center Studio, alleging occurrence of a “willful and malicious injury” pursuant to Bankruptcy Code Section 523(a)(6). The Hearing was held on January 25, 2011, after which the Court permitted the parties to file briefs. The Post-Trial Hearing was held on April 12, 2011, after which the Court took the matter under advisement. IV. DISCUSSION A. Dischargeability of Claims Against The Center Studio, Inc. Under § 523(a)(6) (Counts One, Three, Five and Seven) In Counts One, Three, Five, and Seven of the Complaint, the Plaintiff seeks a determination of nondischargeability of-various claims against The Center Studio pursuant to Bankruptcy Code Section 523(a)(6), which excepts from discharge debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C.A. § 523(a)(6) (2010). The Debtor’s bank218ruptcy petition was filed under Chapter 7 of the Bankruptcy Code; therefore, § 727 provides for the Debtor’s discharge. Pursuant to that section, corporations such as The Center Studio are not eligible for a Chapter 7 discharge. See, 11 U.S.C. § 727(a)(1) (2010) (“The court shall grant the debtor a discharge, unless the debtor is not an individual”). Because The Center Studio is not eligible to receive a discharge under Chapter 7, and § 523(a) is only applicable to “[a] discharge under section 727 [and other sections not applicable here],” § 523(a)(6) is inapplicable to The Center Studio. See, 11 U.S.C.A. § 523(a) (2010). Furthermore, the listing of The Center Studio with the “d/b/a,” or “doing business as,” designation on the bankruptcy petition of the Debtor is insufficient to render The Center Studio a debtor. Section 523(a)(6) specifically applies to “willful and malicious injury by the debtor,” 11 U.S.C. § 523(a)(6) (emphasis added). For the foregoing reasons, § 523(a)(6) provides no grounds for the Court to determine Counts One, Three, Five, and Seven of the Complaint. Assuming, arguendo, a determination of dischargeability/nondischargeability pursuant to § 523(a)(6) to be appropriate as to The Center Studio, the Plaintiff has failed to establish any “wilful and malicious” conduct by that entity, through the Debtor or any other representative. See Part TV B, supra. B. Dischargeability of Claims Against the Debtor Under § 523(a)(6) (Counts Two, Four and Six) In Counts Two, Four, and Six of the Complaint, the Plaintiff seek determinations of nondischargeability under Bankruptcy Code Section 523(a)(6)8 of claims against the Debtor “in his individual capacity”. Specifically, the Plaintiff alleges that the Debtor’s failure to pay wages related to the period March 1-31, 2009, totaling $2,727, violates the Connecticut Minimum Wage Act (Count Two), that his failure to pay “premium wages” related to the period March 17-31, 2009, totaling at least $15,000, violates the Connecticut Minimum Wage Act (Count Four), and that his failure to pay “overtime wages” related to the period March 17-31, 2009, totaling at least $15,000, violates the Federal Fair Labor Standards Act (Count Six), and, as to Counts Two and Six, that debts arising therefrom involve conduct that was “wilful and malicious in that it was done with the intent to harm the Plaintiff.” ¶ 16 (Each Count). Count Four, however, differs and specifically alleges the Debtor’s conduct to be “unreasonable, arbitrary and/or in bad faith”. ¶ 16. As a threshold matter, the Court finds that the Plaintiff has provided insufficient evidence to support her alleged entitlement to “premium” or “overtime” wages. And, as previously noted, on June 4, 2009, the Debtor paid the Plaintiff her accrued wages from March 2009, but did not pay the Plaintiffs liquidated damages claim of $2,727, nor her attorney’s fees or costs. Accordingly, and at best, the Plaintiff has arguably established a technical violation of the Connecticut Minimum Wage Act arising from a failure to timely pay wages triggering further consideration of Count Two only. Nevertheless, as more fully discussed hereafter, the Court finds that the Plaintiff has not satisfied her burden of proving that any debt arising from her claims against the Debtor is the result of “willful and malicious” conduct as that phrase is used in § 523(a)(6). 219The Court now turns to a more detailed discussion of that central issue in this proceeding — the alleged existence of a “willful and malicious” injury within the purview of § 523(a)(6). At the outset, the Court notes that exceptions to discharge are strictly and narrowly interpreted so as to promote the Bankruptcy Code’s purpose of providing a fresh start to debtors. See, In re Persechino, 423 B.R. 1, 3 (Bankr.D.Conn.2010) (Shiff, J.) (citing, e.g., In re Bonnanzio, 91 F.3d 296, 300 (2d Cir.1996)). A plaintiff seeking nondischarge-ability of a debt under § 523(a)(6) bears the burden of establishing the requisite elements by a preponderance of the evidence. See, Crestwood James, LLC v. Persechino (In re Persechino), 423 B.R. 1, 3 (Bankr.D.Conn.2010) (citing Grogan v. Garner, 498 U.S. 279, 285, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006); Fed. R. Bankr.P. 4005). “The ‘willful and malicious’ nature of the injury may be proved at trial from all the facts and circumstances.” In re Picard, 339 B.R. 542, 555 n. 11 (Bankr.D.Conn.2006)(citing, e.g., Navistar Financial Corporation v. Stelluti (In re Stelluti), 94 F.3d 84, 88 (2d Cir.1996)). A. Willful Injury In the seminal case construing the first prong of § 523(a)(6), the Supreme Court has held that [t]he word “willful” in (a)(6) modifies the word “injury,” indicating that nondis-chargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 57-58, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998); see also, In re Stelluti, 94 F.3d at 87 (citation omitted). Moreover ... the (a)(6) formulation triggers in the lawyer’s mind the category ‘intentional torts,’ as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend ‘the consequences of an act,’ not simply ‘the act itself.’ Geiger, 523 U.S. at 61-62, 118 S.Ct. 974; see also, Staub v. Proctor Hosp., — U.S. -, 131 S.Ct. 1186, 1194 n. 3, 179 L.Ed.2d 144 (2011) (“Under traditional tort law, ‘intent’ ... denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”) (citation omitted). It is clear from the Supreme Court’s holdings and dicta that § 523(a)(6) contemplates injury analogous to an intentional tort. Although the Debtor may have breached an employment contract with the Plaintiff by failing to pay her wages that were due, “a breach of contract unaccompanied by tortious conduct ... does not give rise to a Section 523(a)(6) nondischargeability claim.” In re Picard, 339 B.R. 542, 554 (Bankr.D.Conn.2006) (Weil, J.) (citing cases involving breach of contract wherein debts were held dis-chargeable absent tortious conduct). In Picard, the court distinguished its holding from In re Jercich, 238 F.3d 1202 (9th Cir.2001), a Ninth Circuit case involving an employer who withheld wages from an employee, because Picard did not implicate tortious conduct, whereas in Jercich, breach of a contractual duty to pay wages gave rise to a nondischargeable debt under Section 523(a)(6) because prompt payment of wages due an employee is a fundamental public policy under applicable law and, thus, a bad faith failure to pay the same constitutes a tort In re Picard, 339 B.R. at 554 (citing Jercich). Not surprisingly, the Plaintiff seeks this Court’s accord with the Ninth Circuit’s 220holding in Jercich, where the Ninth Circuit held a debt owed from an employer to an employee nondischargeable because “the employer.... knew both that he owed wages to his employee and that his failure to pay those wages would, with substantial certainty, harm his employee ...” In re Johnson, 2007 WL 1728721, at 7 (Bankr.D.Mont., June 13, 2007)(citing In re Jercich, 238 F.3d at 1208-1209). However, the Court deems Jercich inapposite to the facts of this case. Notably, the Jercich Court found that the debtor had committed a tort willfully because, inter alia, he had the means to pay wages but refused to do so, see, Jercich, 238 F.3d at 1207. Furthermore, even the Bankruptcy Appellate Panel for the Ninth Circuit has recently limited the holding of Jercich, stating that “Jercich involved an employer who not only failed to pay his employee, but used business funds for personal investments, including a horse ranch ..In re Weinberg, 410 B.R. 19, 36-37 (9th Cir. BAP 2009), and who “ruthlessly exploited the corporation’s assets and staff,” id. at 36. In sharp contrast to the deliberate diversion of substantial corporate assets in Jer-cich, the Hearing record in this proceeding evidences (1) a gradual decline in the average daily ledger balance of the business as revenue declined during the months of March and April 2009, (2) numerous checks returned during that time for insufficient funds at a cost of $35.00 per occasion,9 (3) the inability of the company to pay all of its creditors, and (4) deposits into the personal Sovereign Bank that do not appear to be from funds diverted from The Center Studio’s Bank of America business account. The violation of a strict liability statute such as Connecticut’s Minimum Wage Act, Conn. Gen.Stat. § 31-72, does not equate to a finding of willfulness and maliciousness. See, Crestwood James, LLC v. Persechino (In re Persechino), 423 B.R. 1, 3 (Bankr.D.Conn.2010)(holding that liability under Conn. Gen.Stat. § 22-357, a dog-bite statute which “makes no reference to willfulness or maliciousness as elements to be plead or proven in establishing strict liability,” is not entitled to collateral estoppel for nondischargeability under § 523(a)(6)). A breach of contract, or in this case, the violation of a strict liability statute, without conduct akin to an intentional tort, is not sufficient to render a debt nondischargeable. Furthermore, “[t]he mere failure to pay an obligation cannot be a willful and malicious injury in and of itself.” In re Buckallew, 172 B.R. 927, 932 (Bankr.W.D.Mo.1994) (a pre-Geiger decision citing, inter alia, 11 U.S.C. § 523(a)(6); Barclays American Business Credit, Inc. v. Long (In re Long), 774 F.2d 875 (8th Cir.1985)). To hold that § 523(a)(6) is applicable to every failure to pay a debt, even in the absence of intentionally tortious conduct, would essentially render meaningless the protections afforded a debtor by the Bankruptcy Code, and vitiate its underlying purpose of providing relief to the “honest but unfortunate debt- or.” Grogan v. Garner, 498 U.S. at 286-87, 111 S.Ct. 654. A fundamental policy of bankruptcy law is to “relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” Expanding the scope of § 523(a)(6) to include contracts that are intentionally 221breached whenever it is substantially certain that injury will occur would severely circumscribe the ability of debtors to “start afresh.” Lockerby v. Sierra, 535 F.3d 1038, 1042 (9th Cir.2008) (citation omitted). The present case is also distinguishable from In re Alessi, 405 B.R. 65 (Bankr.W.D.N.Y.2009), in which a debtor/ex-wife’s failure to turn over funds to her ex-husband from the sale of the marital home was held nondischargeable under § 523(a)(6). Particularly, the Court in Al-essi found willful conduct in addition to a mere breach of contract where there was not just a failure to pay a debt, but a failure to pay from funds that the debtor had agreed specifically to earmark for that purpose ... [which were] accessible and not otherwise encumbered, ... [and where the debtor] deliberately and intentionally refused to turn over the proceeds. In re Alessi, 405 B.R. 65, 67-68 (Bankr.W.D.N.Y.2009). In the present case, the Debtor had not earmarked specific company funds for payroll, had encumbered the funds to the point where The Center Studio’s bank account had a negative balance on April 1, 2009, and at various other times, see Exhibit N, and proposed a payment schedule in an attempt to pay the Plaintiff. Although the payment schedule is not a defense to Connecticut General Statutes Section 31-72, it militates against a finding of willfulness in the context of that requisite finding under § 523(a)(6). Finally, the Plaintiffs reliance on In re Wong, 291 B.R. 266 (Bankr.S.D.N.Y.2003), is also misplaced. In Wong, the Court deemed sufficient under § 523(a)(6) a claim alleging embezzlement in which a debtor wrongfully transferred property securing an interest of a creditor in order to prevent the creditor from reaching it. See, Wong, 291 B.R. at 280-281. The Plaintiff herein avers that the Debtor acted willfully and intentionally by diverting funds [from The Center Studio] into a new personal account, [lying] to Plaintiff about his ability to pay her wages, and then us[ing] those available funds for his own personal use. Pl.’s Trial Brief, at 13. Central to the holding in Wong was the specific allegation in the complaint that the debtor “removed the property to injure the Bank” despite the lack of any “personal hatred, spite, or ill-will,” Wong, 291 B.R. at 280-281. In the present proceeding, there is no evidence of a “diversion of assets”, or that the Debtor lied to the Plaintiff about The Center Studio’s ability to timely pay her wages. In fact, the evidence is to the contrary, no asset diversion was evidenced, and the financial records of The Center Studio reveal negative account balances and numerous overdrafts during the relevant period. B. Malicious Injury “As used in section 523(a)(6), malicious means wrongful and without just cause or excuse even in the absence of personal hatred, spite or ill-will. Malice may be constructive or implied. Implied malice may be demonstrated by the acts and conduct of the debtor in the context of the surrounding circumstances.” In re Picard, 339 B.R. 542, 553 (Bankr.D.Conn.2006)(quoting Navistar Financial Corporation v. Stelluti (In re Stelluti), 94 F.3d 84, 87-88 (2d Cir.1996)), “Even absent personal malevolence, a person will be found to have acted maliciously when that person acts in conscious disregard of his or her duties or without just cause or excuse.” In re Wentland, 410 B.R. 585, 600 (Bankr.N.D.Ohio 2009) (citation omitted). The Court finds that the Debtor did not demonstrate any personal malevolence in 222connection with the relevant events of this case. The Court also finds no conscious disregard by the Debtor of his duty to pay the Plaintiff her wages. Unlike Jercich, which involved a debtor who deliberately refused to pay wages while diverting large amounts of his company funds to his personal use, the present case involves a debt- or whose company bank account lacked the funds to cover the paychecks10. First, maliciousness is lacking with respect to the Debtor’s withholding of the Plaintiffs April 1 paycheck because the Plaintiff continued to work for The Center Studio after her first paycheck was withheld for insufficient funds. The Connecticut Supreme Court has held that [w]e cannot conclude as a matter of law ... that an employer experiencing financial hardship that honestly informs employees that it cannot meet payroll and that does not promise them that future payment will be made is acting unreasonably when it allows employees to continue to work with the hope of future payment. Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 726, 941 A.2d 309, 317 (2008). The Debtor’s conduct in withholding the Plaintiffs March 18 paycheck, while without a valid defense under Connecticut law, is insufficient for a determination of malice in the context of § 523(a)(6). Unlike the second withheld payment, the record fails to support that, while working for The Center Studio during the first two weeks of March 2009, the Plaintiff was aware of the possibility that the Debtor could not fund the payroll of the company. The Plaintiffs wages were due her on March 18, 2009, and Connecticut General Statutes § 31-72 specifically abrogates as a defense to the nonpayment of wages an agreement to defer such payment other than as provided by the statute. Notwithstanding the absence of a valid defense under Connecticut law, however, the surrounding facts and circumstances do not support a finding of maliciousness under § 523(a)(6). Malice requires conduct more culpable than that which is in reckless disregard of the creditor’s economic interests and expectancies. A debtor acts with malice by intending or fully expecting to harm the economic interests of the creditor. A debtor’s knowledge that he or she is violating the creditor’s legal rights is insufficient to establish malice absent additional aggravating circumstances. Thus, it must be established that the debtor intended the consequences of his act to cause harm to the creditor, not simply the act itself. Econ. Dev. Growth Enters. Corp. v. McDermott (In re McDermott), 434 B.R. 271, 283 (Bankr.N.D.N.Y.2010)(internal citations omitted). The withholding of a paycheck or discharge of an employee are not, standing alone, malicious acts. The conduct giving rise to certain causes of action may be inherently malicious, such as malicious prosecution or assault. In other cases, malice may be easily deduced where the debtor’s conduct giving rise to liability has no potential for economic gain or other benefit to the debtor, from which one could only conclude that the debtor’s motivation must have been to inflict harm upon the creditor. However, in cases where a debtor seeks profit or some other benefit, the underlying conduct, however deplorable, *223would not give rise to liability under § 523(a)(6) in the absence of some additional, aggravating conduct on the part of the debtor of sufficient gravity to warrant an inference of actual malice under the Second Circuit decision in [Stelluti]. Rescuecom Corp. v. Khafaga (In re Khafaga), 419 B.R. 539, 550 (Bankr.E.D.N.Y. 2009) (citations and quotations omitted). The Plaintiff has failed to establish, by a preponderance of the evidence, such “aggravating circumstances” warranting the conclusion that in withholding the Plaintiffs paycheck, the Debtor intended to keep those earned funds out of the hands of the Plaintiff. Rather, the evidence fully supports that the financially distressed Debtor intended to find a way to pay the Plaintiff. Finally, the Court finds that the Debt- or’s opening of a personal checking account at Sovereign Bank, and his deposit of funds into that account between March and April 2009, is not conclusive of maliciousness. The Sovereign Bank account was opened after the Debtor first became unable to fund payroll obligations for The Center Studio, and the record fails to establish that specific funds belonging to The Center Studio were diverted to the Debt- or’s personal checking account. The present case is therefore distinguishable from the Second Circuit case on which the Plaintiff relies, In re Stelluti, 94 F.3d 84 (2d Cir.1996), a pre-Geiger case in which the joint debtors’ diversion of proceeds to a separate account, preventing a creditor from reaching the funds, was held nondischargeable under § 523(a)(6). Unlike the present case, the debt in Stelluti was determined to be nondischargeable because the Court found “there was no other purpose for [the debtors’] conduct except to harm the interests of [the creditor].” In re Stelluti, 94 F.3d at 88. V. CONCLUSION The Plaintiff has not satisfied her burden of proving that any debt arising from her claims against the Debtor is the result of willful and malicious conduct. Consequently, any such debt is dischargeable in the Debtor’s present bankruptcy case. This Memorandum of Decision shall constitute this Court’s Findings of Fact and Conclusions of Law pursuant to Fed. R. Bankr.P. 7052. A separate Judgment in favor of the Debtor shall enter simultaneously herewith. . "Exhibit(s)” refers to documentary evidence admitted in evidence at the Hearing. . Hearing, at 11:46. All references to the record of the hearing held January 25, 2011, are labeled “Hearing Tr. at_". . The check, numbered 2965, is drawn on a Bank of America account in the name of The Center Studio. Exhibit 1. The Center Studio's daily ledger balance in its Bank of America account in fact reflects a negative balance of ($1,444.08) on March 18, 2009. Exhibit N. . The check, numbered 2978, is drawn on the Bank of America account in the name of The Center Studio. Exhibit 1. . The Center Studio’s daily ledger balance in its Bank of America account reflects a negative balance of ($87.40) on March 27, 2009, a positive balance of $386.60 on March 30, 2009, and a negative balance of ($49.96) on March 31, 2009. Exhibit N. . The Plaintiff initially stated that this conversation occurred on April 1 or 2, 2009, but subsequently testified that she did not work for The Center Studio in April 2009. Hearing Tr. at 12:17:35. . Gillian Orr v. Center Studio, Inc. et al., Docket No. HHD-CV-09-4044684-S. . While the individual counts do not separately allege the specific statutory basis for the relief requested therein it is clear that the entire Complaint is founded on § 523(a)(6). . During March 18-30, 2009, the Bank of America business account reflects thirteen (13) charges of $35.00 each for "Overdraft(s)”. Exhibit N, Statement Period 3/01/09 thru 3/31/09, p. 4. . Returns of checks for insufficient funds would also incur further charges against the company’s bank account, thereby reducing the amount available to ultimately pay employees. See fn. 9, supra (re numerous overdrafts during March, 2009).	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494505/	MEMORANDUM-DECISION AND ORDER ROBERT E. LITTLEFIELD, JR., Chief Judge. Currently before the court is the Motion to Compel Turnover filed by the Chapter 7 trustee, Philip J. Danaher, Esq. (“Trustee”) seeking, pursuant to 11 U.S.C. §§ 521(a)(3) and (4),1 turnover of funds 225that were in the debtor’s checking account at the time he filed for bankruptcy. JURISDICTION The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 157(b)(1), (b)(2)(E), and 1334. FACTS Based upon the record, including the Joint Stipulation of Facts (ECF No. 21), the court finds the following facts to be undisputed. On June 8, 2010, David Wilt-sie (“Debtor”) filed a Chapter 7 petition and related schedules. On Schedule B, Personal Property, the Debtor lists a checking account with First National Bank of Scotia having a balance of $1,000. None of this amount was claimed as exempt on Schedule C. Prior to filing, the Debtor was employed at Tecniflex Banksource, Inc. His bi-weekly salary was direct-deposited into his checking account. Other than minimal amounts of interest, the Debtor’s bank statements reflect the following deposits in the period leading up to his bankruptcy. Date_Amount Deposited Source_Total Balance March 4. 2010_4,298.00_Federal Tax Refund 6.937.83_ March 15. 2010_500.00_State Tax Refund_6.965.51_ April 9,2010(60 days before 1,208.58 Wages 5,577.74 filing)_ April 23. 2010_1,293.97_Wages_5.334.15 May 7, 2010_1,287.73_Wages_5.901.18_ May 21. 2010_1,258.06_Wages_5.386.13 June 4, 2010_1,208.56_Wages_5.050.34_ June 8,2010 (day of filing)3.500.21 Prior to the deposit of the Debtor’s paycheck on April 9, 2010, the account had a balance of $4,369.16. (See Debtor’s Mem. of Law (ECF No. 22) Ex.)2 From April 9, 2010 to June 4, 2010, the Debtor made withdrawals against the account totaling $5,577.02. (See Debtor’s Mem. of Law Ex.) The § 341 meeting of creditors was originally scheduled for July 16, 2010. It was adjourned on several occasions, most recently until November 18, 2011. Along with the adjournments, the court granted extensions of time to the Trustee to file a complaint objecting to the Debtor’s discharge. On July 21, 2010, the Trustee sent a letter to counsel for the Debtor requesting turnover of the $3,500.21 in Debtor’s account as of the filing date. The request was ignored. The Trustee then filed the instant motion on September 28, 2010. The Debtor filed an objection to the motion, as well as amended Schedules B and C on October 9, 2010. The amended schedules list an account balance $3,500.21 as of the filing date and claim the entire amount exempt, pursuant to New York Civil Practice Law and Rules (“C.P.L.R.”) 5205(d)(2), as wages earned within sixty days of filing for bankruptcy protection.3 ARGUMENT The Trustee’s argument is twofold. First, as a substantive matter, the Trustee 226argues that the Debtor lost his exemption by commingling exempt wages with nonexempt tax refunds in the same bank account. The Trustee relies on In re Lubecki, 332 B.R. 256 (Bankr.W.D.N.Y.2005) for the principle that, in calculating the exempt portion of the commingled funds, withdrawals are deemed to derive first from exempt assets. Because the balance of the account as of the filing date was less than the amount the Debtor received from his tax refunds, that remaining balance was a non-exempt asset subject to turnover. Second, as a procedural matter, the Trustee points to the fact that the Debtor failed to claim the wage exemption in his initial Schedule C, and argues that the court should deny leave to amend because the exemption was claimed only after the Trustee discovered the asset. The Trustee cites In re Howe, Ch. 7 Case No. 08-10551, 2009 WL 2914229 (Bankr.N.D.N.Y. June 26, 2009) and In re Cinelli, Ch. 7 Case No. 05-16962, 2006 WL 3545444 (Bankr.N.D.N.Y. Dec. 8, 2006) in support of the argument that leave to amend should be denied because allowing the amended exemption would prejudice the bankruptcy estate. The Debtor counters that the funds are exempt under New York law and that schedules can be amended at any time. The Debtor argues that the Trustee’s emphasis on the balance in the checking account is misplaced because the direct deposit of the Debtor’s salary created the illusion of a cache of funds in the account. Absent direct deposit, the account balance would have been reduced to zero based on receipt and expenditure of the tax refunds; there would remain only exempt wages. The Debtor distinguishes Howe and Cinel-li on the basis that there is no prejudice to creditors in this case. DISCUSSION A chapter 7 bankruptcy estate comprises, among other things, “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Pursuant to § 522(b), debtors may exempt certain property from property of the estate. Exemptions are determined according to the law in effect on the date of the filing of the petition. See 11 U.S.C. § 522(b)(3)(A); Owen v. Owen, 500 U.S. 305, 314 n. 6, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). Prior to 2011, New York had “opted out” of the federal exemption scheme, choosing to provide its own exclusive set of exemptions for debtors domiciled in the state. See In re Nudo, 147 B.R. 68, 70 (Bankr.N.D.N.Y.1992) (citing N.Y. Debt. & Cred. Law §§ 282, 284; N.Y. C.P.L.R. 5205(d)(2)).4 This case concerns the wage exemption under New York law, which provides, in relevant part: The following personal property ... is exempt from application to the satisfaction of a money judgment ... ... ninety per cent of the earnings of the judgment debtor for his personal 227services rendered within sixty days before, and at any time after, an income execution is delivered to the sheriff or a motion is made to secure the application of the judgment debtor’s earnings to the satisfaction of the judgment.... N.Y. C.P.L.R. 5205(d)(2) (McKinney 2010). Exemption statutes are to be liberally construed in favor of debtors. See In re Sherman, 237 B.R. 551, 555 (Bankr.N.D.N.Y.1999) (citation omitted); see also In re Keil, 88 F.2d 7, 8 (2d Cir.1937). A party in interest may object to the list of property claimed as exempt by a debtor within thirty days after the § 341 meeting of creditors is concluded or within thirty days after any amendment to the debtor’s exemption. Fed. R. Bankr.P. 4003(b)(1).5 “The objecting party bears the burden of proving by a preponderance of the evidence that the exemption claimed by a debtor is improper. Assuming a legal basis for the amended exemption exists, when a party objects, allowance of the amended exemption depends on other considerations, namely, whether there is a showing of bad faith by the debtor or prejudice to creditors.” In re Howe, 2009 WL 2914229, at 4 (internal quotation marks and citations omitted). At issue is whether the funds on deposit in the Debtor’s checking account at the time of filing are exempt under C.P.L.R. 5205(d)(2) and, if yes, whether it would be prejudicial to allow the Debtor to amend his schedules to exempt those funds. Generally, commingled funds only lose their exempt status when they can no longer be traced. Compare In re Lubecki, 332 B.R. 256, 260-61 & n. 1 (Bankr.W.D.N.Y.2005) (funds in debtor’s bank account that were traceable to wages could be claimed as exempt), In re Lichtenberger, 337 B.R. 322, 324 (Bankr.C.D.Ill.2006) (commingling does not transmute exempt funds into non-exempt funds, however, the funds must be reasonably traceable to keep their exempt status), and In re Christensen, 122 Nev. 1309, 149 P.3d 40, 49 (2006) (commingling does not destroy the exemption as long as tracing is possible), with In re Schlein, 114 B.R. 780, 784 (Bankr.M.D.Fla.1990) (exemption denied because the presence of five sources of funds and multiple withdrawals rendered tracing impossible). The court agrees with the majority view that commingled funds only lose their exempt status when they can no longer be traced. This view “comports with the liberal construction to be accorded exemption statutes in favor of a debtor and his family and the ‘fresh start.’ ” See In re Miller, 103 B.R. 65, 67 (Bankr.N.D.N.Y.1989) (citation omitted). In this case, all but two of the deposits into the account were wages. Because the wages can be traced, they can retain their exempt status. Courts have adopted several approaches to tracing exempt funds in a commingled account, including: (1) the lowest intermediate balance approach (“LIBA”); (2) the pro-rata approach; (3) the last-in, first-out approach (“LIFO”); and (4) the first-in, first-out approach (“FIFO”). In re Lichtenberger, 337 B.R. at 324 (citation omitted). LIBA “operates on a common-sense view that dollars are fungible and cannot practically be earmarked in an account.” C.O. Funk & Sons, Inc. v. Sullivan Equip., Inc., 89 Ill.2d 27, 59 Ill.Dec. 85, 431 N.E.2d 370, 372 (1982). Under LIBA, proceeds 228are presumed to “remain in the account as long as the account balance is equal to or greater than the amount of the proceeds deposited.” Id. Under the pro-rata approach, withdrawals from a commingled account are “attributed to the several funds in proportion to their respective sizes at the time of the withdrawals.” In re Christensen, 149 P.3d at 40. Under LIFO, withdrawals against the account reduce the most recent deposits first, while under FIFO they reduce the oldest first. See Foley v. Transocean Ltd., 272 F.R.D. 126, 129 (S.D.N.Y.2011). The Western District of New York has adopted “an administrative rule of convenience” when dealing with wages commingled with other funds. In re Wrobel, 268 B.R. 342, 344 (Bankr.W.D.N.Y.2001). Under this rule, the trustee is generally entitled to the lesser of two amounts: “(1) the amounts on deposit in the account on day sixty-one, ten percent of the debtor’s earnings for services rendered within sixty days of the date of the filing of the petition and all non-earnings deposited into the account within sixty days of the filing of the petition; or (2) the amount on deposit in the account as of the date of filing.” In re Coolbaugh, 250 B.R. 162, 167 (Bankr.W.D.N.Y.2000). The Western District adopted this approach in response to the “cost beneficial policy,” whereby some of the trustees in that district had stopped pursuing minimal checking account balances because they felt it was not an efficient use of limited resources. Id. at 165 & n. 7. The court is not inclined to adopt an “administrative rule of convenience.” Guided by the liberal construction to be accorded exemption statutes in favor of debtors, the court uses the FIFO approach to trace the exempt funds in this case. See, e.g., In re Lichtenberger, 337 B.R. 322, 326 (Bankr.C.D.Ill.2006). In doing so, however, the court is mindful of Justice (then Chief Judge) Cardozo’s admonition in Carson v. Federal Reserve Bank of New York, 254 N.Y. 218, 172 N.E. 475, 480 (1930), where he stated: We have no thought to suggest that this or any other formula as to the application of payments to the items of an account is of such inflexible validity as to admit of no exceptions. Whatever rule is framed will be subordinated to the broader principle that an application, usually appropriate, may be varied by the court when variance is necessary to promote the ends of justice. This court finds that, under the FIFO approach, the Debtor is entitled to exempt his earnings in the amount of $3,149.02. Prior to the deposit of the Debtor’s paycheck on April 9, 2010, the Debtor’s checking account had a balance of $4,369.16. In the sixty days leading up to filing, the account was periodically infused with the Debtor’s direct-deposited paychecks totaling $6,526.90. During that same time period, the Debtor made withdrawals against the account totaling $5,577.02. Applying these withdrawals to the oldest deposits first, the court finds that the $4,369.16 of non-exempt funds in the account was depleted long before the Debtor filed his bankruptcy petition. The $3,500.21 balance remaining in the account on the filing date derived from the Debtor’s earnings. Subtracting $1.30 of non-exempt interest leaves $3,498.91. Ninety percent of that amount, $3,149.02, is exempt. The remaining $349.89 is non-exempt property of the estate. Finally, the court must consider whether to disallow the amendments to the Debtor’s schedules. “Debtors may, under F.R.B.P. 1009(a), amend their bankruptcy schedules, including Schedule C, at any time before their case is closed.” In re Howe, Ch. 7 Case No. 08-10551, 2009 WL 2292914229 (Bankr.N.D.N.Y. June 26, 2009), aff'd, 439 B.R. 257 (N.D.N.Y.2010) (footnote and citation omitted). Case law supports debtors’ right to freely amend their exemptions. Id. (citing In re Cinelli, Ch. 7 Case No. 05-16962, 2006 WL 3545444, at 3 (Bankr.N.D.N.Y. Dec. 8, 2006); In re Fournier, 169 B.R. 282, 283 (Bankr.D.Conn.1994)). “Courts have no discretion to reject amendments unless a debtor has acted in bad faith or concealed property, or the amendment would prejudice creditors.” In re Turner, Ch. 7 Case Nos. 09-11281, 09-11365, 09-11420, 09-11466, 2011 WL 482840, at 5 (Bankr.D.Vt. Feb. 3, 2011) (citations omitted). In this case, the court does not find that the Debtor intentionally concealed property. While the discrepancy between his original and amended Schedule B may certainly raise an eyebrow, it does not constitute bad faith sufficient to disallow the amendment. Nor is there prejudice to creditors in this case; the Trustee has yet to administer assets. CONCLUSION Based upon the foregoing, the Trustee’s objection to the Debtor’s claim of exemption is overruled. The court grants the Debtor ten days leave to file an amended Schedule C in accordance with this order. The Debtor is directed to turn over to the Trustee within ten days of the date of this order $351.19 of non-exempt funds. It is SO ORDERED. . Unless otherwise noted, all statutory references herein are to the Bankruptcy Code, 11 U.S.C. §§ 101 to 1532. . The court arrived at this number after subtracting the $220.09 withdrawal on April 8, 2010 from the April 6 beginning balance of $4,589.25. . This case was filed before the enactment of the 2010 Amendments to the New York Debt- or and Creditor Law. Under the law in effect at the time, debtors could " 'claim either a homestead exemption or a cash exemption, *226but not both.' ” In re Howe, Ch. 7 Case No. 08-10551, 2009 WL 2914229 (Bankr.N.D.N.Y. June 26, 2009), aff'd, 439 B.R. 257 (N.D.N.Y.2010) (quoting In re Gross, 394 B.R. 693, 696 (Bankr.W.D.N.Y.2008)). In this case, the Debtor chose to claim a homestead exemption of $50,000 to the exclusion of a cash exemption, and hence must resort to the wage exemption to exempt the disputed funds from his bankruptcy estate. . The 2010 Amendments to New York Debtor and Creditor Law sections 282, 283, and 285 and C.P.L.R. 5205 and 5206, which took effect on January 22, 2011, increased the available exemptions and gave New York debtors the ability to choose between the state and federal exemption schemes. . No formal motion was filed objecting to the Debtor's exemptions. Instead, the Trustee raised his objection to the Debtor’s exemptions in his Reply to the Debtor’s Objection to his Motion to Compel Turnover. The § 341 meeting has not been concluded. Thus, a timely objection to the Debtor's amended exemption claim could still be filed. As the parties have fully briefed the exemption issue, the court will treat the Reply as an Objection.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494506/	MEMORANDUM-DECISION AND ORDER ROBERT E. LITTLEFIELD, JR., Chief Judge. Before the court is the adversary proceeding commenced by the Chapter 7 trustee, Michael J. O’Connor, Esq. (the “Trustee”), against Dennis V. Leone and Susan Leone (the “Debtors”) objecting to the Debtors’ claim of an annuity exemption pursuant to New York Debtor and Creditor Law section 283 and seeking denial of the Debtors’ discharge pursuant to § 727(a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6).1 In the amended adversary complaint, filed December 4, 2007, the Trustee asserts, inter alia, that the Debtors failed to disclose the purchase of an annuity with the cash set forth as an asset on Schedule B of their petition. On December 7, 2007, the Debtors filed an answer to the amended complaint asserting a counterclaim for attorney’s fees, which was eventually withdrawn. The Debtors filed a motion to dismiss the complaint arguing the Trustee’s objections to discharge and to the Debtors’ exemption were time-barred and that the complaint failed to state a cause of action. The motion was denied. A trial in this proceeding was conducted on June 9, 2008, at which time the court received a number of exhibits into evidence. In addition, the Trustee called Andrea E. Celli, the Chapter 13 trustee, to testify. The Trustee did not call the Debtors to testify and instead indicated he was relying on his exhibits, including the answers to interrogatories and letters written by the Debtors, to provide the evidence needed for the court to find in his favor. The Debtors declined to call any witnesses or take the stand in their own defense, believing the Trustee had failed to meet his burden. Following the trial, the court provided the parties with the opportunity to file memo-randa of law in support of their positions. The court, having heard the sworn testimony and arguments of counsel and having considered the parties’ pleadings and submissions, makes the following findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. JURISDICTION The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 157(b)(1), 157(b)(2)(B), 157(b)(2)(J), and 1334. FACTS The Debtors refinanced the mortgage against their residence on or about July 18, 2005, and received $35,573.95. (Pl.’s Ex. D.) Approximately $35,559 was deposited into the Debtors’ checking account at Wilber National Bank on July 25, 2005 and, then, approximately $33,000 was moved a few days later into a savings account. (Pl.’s Ex. I.) The Debtors had hoped to pay off their debt with the proceeds from the refinancing and get back on their feet. (PL’s Ex. G.) Instead, the Debtors found themselves getting deeper 235into debt. (Id.) The Debtors sought the advice of bankruptcy counsel in early September 2005. (Id.) According to the Debtors, they were advised “to put as much money as possible from the refinance, into an annuity” as it “would be safe and protected from bankruptcy.” (Id.) The Debtors signed their chapter 13 petition on September 12, 2005, declaring under penalty of perjury that they had read the petition and the information contained therein was true and correct to the best of their knowledge. (Pl.’s Ex. A.) They listed a savings account at Wilber National Bank with a balance of $27,500 as an asset on Schedule B, Personal Property. (Id.) The Debtors did not claim an exemption for the cash. Checking account records produced by the Debtors establish that on September 12, 2005, a total of $24,920 was deposited into their account. (PL’s Ex. I.) Meanwhile, on that same date, Mr. Leone issued a check payable to Northwestern Mutual for $21,000 and indicated on the memo line that it was for the opening of an annuity account. (Id.) An account statement issued by Northwestern Mutual confirms receipt of $21,000 to fund an annuity with a contract date of September 16, 2005, in the name of Mr. Leone. (Pl.’s Ex. J.) The Debtors’ chapter 13 petition was filed on September 17, 2005. (Bankruptcy Case No. 05-16603 (“Main Case”), ECF No. 1.) The Debtors’ check payable to Northwestern Mutual cleared their account on September 21, 2005, four days after their petition was filed. (Pl.’s Ex. I) At the time the Debtors’ petition was filed, Mr. Leone had been employed as a school bus driver for approximately four years, and Mrs. Leone was self-employed as a cleaning woman. (PL’s Ex. A.) In addition, the Debtors were attempting to operate a small Bed and Breakfast, which at the time had not generated any income. (Id.) The Debtors’ combined net monthly income was $3,503. (Id.) The Debtors’ initial meeting of creditors with the Chapter 13 trustee was held on October 26, 2005.2 There is no indication on the court’s docket for the Debtors’ underlying bankruptcy case that the meeting was adjourned. On December 1, 2005, the Chapter 13 trustee filed an objection to confirmation on the basis that she needed additional information regarding the money the Debtors received in connection with the refinancing of their mortgage, as well as documentation with respect to the cash listed on Schedule B and the answer to question three on the Statement of Financial Affairs.3 (Main Case, ECF No. 12.) According to the testimony of the Chapter 13 trustee, confirmation was adjourned to allow the Debtors time to provide her with the requested information.4 The Chapter 13 trustee testified further that in February 2006, she was informed by the Debtors’ attorney that there was no money left in the savings account referenced on Schedule B and that it had been trans236ferred to an annuity, which the Debtors were claiming as exempt. On February 16, 2006, the Debtors filed an amended Schedule B to indicate a reduction of their cash from $27,500 to $500 and the addition of a jointly owned $27,500 annuity. (Defs.’ Ex. A.) They also filed an amended Schedule C on the same date to claim an exemption on behalf of Mrs. Leone of the $27,500 annuity pursuant to New York Debtor & Creditor Law section 283(1). (Id.) Neither the Chapter 13 trustee nor any creditor filed an objection to the annuity exemption claimed by the Debtors. The Debtors’ chapter 13 plan was ultimately confirmed at a hearing held on February 2, 2006. The confirmation order was entered on March 14, 2006. (Pl.’s Ex. L.) The Debtors’ confirmed plan provides for bi-weekly payments of $184.61 for a term of sixty months, with a dividend for unsecured creditors of not less than 10 percent. (Id.) In addition, the confirmation order provides, in part: IX. Notwithstanding any other provision of the plan or Order Confirming Plan, no article of property, real or personal, with a value of more than $2,500 may be sold or otherwise disposed of without prior consent of the Trustee. (Id.) The Debtors made post-petition payments on their refinanced mortgage through May 2006, when they came to the realization that they could no longer afford their residence. (PL’s Ex. F.) The Debtors’ attempts to sell their home had proven unfruitful. (Id.) As a result, the Debtors voluntarily converted their chapter 13 case to one under chapter 7 on September 12, 2006. (Main Case, ECF No. 24.) The Trustee was appointed on September 17, 2006. During the course of the chapter 7 proceeding, the Debtors’ mortgage holder obtained an order permitting it to proceed with an action to foreclose the Debtors’ mortgage. (Main Case, ECF No. 54.) A meeting of creditors pursuant to 11 U.S.C. § 341 was conducted by the Trustee on October 20, 2006, and adjourned numerous times until it was eventually concluded on June 16, 2008. At the October 20, 2006, meeting of creditors, the Debtors informed the Trustee that the information on their original Schedule B was not accurate, because they had purchased an annuity, as reflected on their Amended Schedule B, with the cash prior to filing their chapter 13 petition on the advice of counsel. Upon learning of the conversion of the cash to the annuity, and subsequently learning that the Debtors had withdrawn the bulk of the money from the annuity post-petition, the Trustee began a quest to reconstruct the Debtors’ financial history commencing with the refinancing of their mortgage. In response to the Trustee’s inquiries, the Debtors provided the Trustee with a letter and “Affidavit,”5 both dated December 26, 2006 (the “Letter” and the “Affidavit,” respectively), attempting to explain and itemize how the money from the refinancing of their mortgage and the annuity was spent. (PL’s Exs. F and G.) The Debtors indicate in the Letter that the information was being provided for the fourth time and that copies of their mortgage and bank statements were enclosed. (PL’s Ex. F.) According to the Debtors, the proceeds from their refinancing, namely $33,027, 237was deposited into their savings account. (Id.) From this amount, $21,000 was used to purchase the annuity.6 (Id.) The balance was used for repairs to their vehicle and their daughter’s vehicle, car insurance, taxes owed to the Internal Revenue Service, mortgage payments, and credit card debt. Money was also invested in their failing Bed and Breakfast for things such as advertising and upkeep. (Pl.’s Exs. F and G.) The Debtors also advised the Trustee that they did not have mortgage statements after September 2005, because their mortgage company ceased sending them once the bankruptcy was filed. (Pl.’s Ex. F.) Instead, the Debtors produced their bank statements and cancelled checks to document that they were paying their mortgage. (Id.) The Letter also confirms the Debtors contacted their attorney in August 2006 about converting their chapter 13 case to chapter 7 after they concluded they could no longer afford their home. (Id.) They did not hear from their attorney until early September. (Id.) Meanwhile;, they had depleted all their savings and the bulk of the annuity “on the house and vehicle repair and gas combined with [their] daughter’s college education.” (Id.) More specifically, the Debtors made the following withdrawals totaling $17,500 from the annuity: $400 on the sixteenth day of every month to reimburse themselves for the monthly plan payment they were making to the Chapter 13 trustee from their wages; $5,200 on April 1, 2006, to cover expenses incurred in moving from their home and into an apartment in anticipation of their mortgage being foreclosed; $500 on April 28, 2006 for their daughter to use as a deposit for a used vehicle; and $7,000 on August 15, 2006 to purchase two used 4-cylinder vehicles to replace the two newer 8-cylinder vehicles that they would be surrendering in connection with the conversion of their bankruptcy case. (Id.) Pursuant to the Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines served on the Trustee and all parties-in-interest, the deadline to file a complaint objecting to the Debtors’ discharge was December 19, 2006. (Main Case, ECF No. 28.) Over the course of the next year, the Trustee filed five successive motions for orders extending his time to file a complaint objecting to the Debtors’ discharge by ninety days. (Main Case, ECF Nos. 33, 39, 57, 65, 70.) The court ultimately extended the Trustee’s time to object one final time from September 19, 2007 to October 17, 2007. (Main Case, ECF No. 76.) In addition, the Trustee filed a motion to extend his time to object to the Debtors’ claimed exemptions. No opposition to the motion was filed, and the motion was granted by default. As a result, the Trustee’s time to object to the Debtors’ exemptions was extended to the later of ninety days from December 13, 2006, or thirty days from the closing of the meeting of creditors. (Main Case, ECF No. 42.) The instant adversary proceeding was commenced on October 16, 2007. During the discovery process, the Debtors provided the Trustee "with answers to interrogatories and responses to request for documents, which included bank statements, cancelled checks, and annuity documents. (PL’s Exs. H and I.) The Debtors responded to various questions regarding how money from the refinancing of their mortgage was spent and why they tunneled a portion of those proceeds into the annuity as follows: Q: State what the purpose of the annuity was. 238A: [Our attorney] advised us to put as much money as possible from the refinance into the annuity to protect it from bankruptcy. Q: State the purpose for which the annuity was purchased. A: [Our attorney] advised us to put as much money from the refinance into the annuity as possible to protect it from bankruptcy. (PL’s Ex. H, Nos. 16, 25.) With respect to the Debtors’ disclosure of the annuity, the Debtors answered as follows: Q: State whether the annuity was disclosed in the bankruptcy petition. A: Yes. Q: State the date in which the annuity was disclosed in any amended schedules. A: We stated from the beginning and continue to acknowledge the annuity. Q: Provide an explanation as to why the annuity was not disclosed in the bankruptcy petition. A: Incorrect, the annuity was disclosed from day one by us. Unless it was an oversight on the part of our attorneys ... and not disclosed. Q: State whether the transfer of funds from the refinance proceeds was disclosed in the statement of financial affairs. A: Yes. Q: State the date in which the transfer of funds from the refinance proceeds to purchase the annuity was disclosed and any amended statement of affairs filed. A: The day we filed bankruptcy in Sept. 2005. (PL’s Ex. H, Nos. 9-13.) ARGUMENTS The Trustee contends that the Debtors* exemption for the annuity should be denied. Alternatively, if the court were inclined to allow the exemption, the Trustee asserts it is invalid as the exemption was claimed on behalf of Mrs. Leone, but the annuity is in Mr. Leone’s name. Moreover, even if the annuity is exempt, the Trustee argues the Debtors’ exemption should be limited to $5,000 pursuant to New York Debtor & Creditor Law section 283(1) as the annuity was purchased within six months of the Debtors’ bankruptcy filing. The Trustee also seeks denial of the Debtors’ discharge under multiple theories. First, the Trustee contends that the Debtors violated either § 727(a)(2)(A) or (a)(2)(B), depending upon whether the court determines the annuity was purchased pre- or post-petition. Under either theory, the Trustee alleges that the statements made by the Debtors in the Letter, the Affidavit, answers to interrogatories and responses to requests for documents satisfy his burden to establish that the Debtors’ purchase of the annuity was a transfer of property with the intent to hinder, delay, or defraud creditors. Second, the Trustee argues that the Debtors’ failure to provide a full accounting of the proceeds they received from the refinancing of their mortgage and the subsequent withdrawals from the annuity during the term of the chapter 13 case justifies denial of the Debtors’ discharge under § 727(a)(3). The Trustee asserts that the Debtors’ discharge should also be denied under § 727(a)(4) as their failure to disclose the purchase of the annuity with nonexempt funds in their Statement of Financial Affairs (“SOFA”) constitutes a false 239oath. Furthermore, the Trustee asserts that there was inadequate disclosure by the Debtors regarding their use of the proceeds from the refinancing of their mortgage in their SOFA. Additionally, the Trustee contends that the Debtors’ failure to provide documentation or an adequate explanation for the diminution of the annuity justifies denial of discharge under § 727(a)(5), as they failed to satisfactorily explain the loss of assets or deficiency of assets to meet their liabilities. Finally, the Trustee alleges that the Debtors dissipation of the annuity during the pen-dency of their chapter 13 case without the Chapter 13 trustee’s permission violated the provision in the confirmation order prohibiting them from selling or disposing an asset with a value in excess of $2,500. Thus, the Trustee asserts the Debtors’ discharge should also be denied under § 727(a)(6). The Debtors assert as an affirmative defense that the Trustee’s objection to the annuity exemption is time-barred because the Chapter 13 trustee failed to object within thirty days after their amended schedule C was filed. Additionally, the Debtors contend that, given the chain of. events, their schedules at the time of filing were entirely accurate, as the annuity was not funded until their check cleared post-petition. Furthermore, the Debtors argue that there is no evidence of fraud, as the funds received from the refinancing were derived from an exempt asset, namely, their homestead. Thus, in effect, they argue there could be no fraudulent intent because the sequence of events involved the conversion of an exempt asset to a non-exempt asset and then back to an exempt asset. The Debtors assert that the real issue is whether they failed to obey an order of the court by making-withdrawals from the annuity during the chapter 13 proceeding. They acknowledge that if the annuity had been an estate asset, an argument could be made that their discharge should be denied under § 727(a)(6). However, because the annuity was claimed as exempt and no objection was interposed by the Chapter 13 trustee, the Debtors contend that they were entitled to disburse those funds as they wished. The Debtors also assert that the Trustee’s § 727 causes of action are time barred because the Trustee submitted proposed orders to the court in connection with his motions to extend time to object to discharge containing erroneous and unauthorized extensions. Additionally, the Debtors argue that the Trustee’s § 727 causes of action are barred under the doctrine of laches because the Trustee engaged his firm to prosecute these causes of action on March 7, 2007, but did not file his complaint until October 10, 2008. They claim that in the absence of a justifiable excuse for delay the complaint should be dismissed. DISCUSSION The court is asked to resolve eight causes of action, six aimed at depriving the Debtors of a discharge, one regarding the disputed exemption, and the last seeking a money judgment. The court will first address the Trustee’s objection to the annuity exemption claimed by the Debtors and the request for a money judgment. Then, the court shall address the merits of the specific § 727 causes of action. I. Objection to Annuity Exemption The commencement of a bankruptcy case creates an estate comprised of all of a debtor’s interest in property as of the filing date. 11 U.S.C. § 541(a). A debtor may claim certain property exempt from the bankruptcy estate, see 11 U.S.C. § 522(b)(1), and that property “will be ex-240eluded from the bankruptcy estate ‘[u]n-less a party in interest’ objects.” Schwab v. Reilly, — U.S. -, 130 S.Ct. 2652, 2657, 177 L.Ed.2d 234 (2010); 11 U.S.C. § 522(1). If there are no objections, “the property claimed as exempt ... is exempt.” 11 U.S.C. § 522(1). This is true even if there is no colorable basis for the exemption. Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), Federal Rule of Bankruptcy Procedure 4003(b)7 provides, in pertinent part: [A] party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. The court may, for cause, extend the time for filing objections if, before the time to object expires, a party in interest files a request for an extension. Fed. R. Bankr.P. 4003(b) (2207).8 Although the Trustee did not file a motion objecting to the Debtors’ annuity exemption, his first cause of action seeks the disallowance of the exemption. See Liberty State Bank & Trust v. Grosslight (In re Grosslight), 757 F.2d 773, 777 (6th Cir. 1985) (timely filing of adversary proceeding treated as an objection to claim of exemptions). Prior to addressing the merits of the objection, the Debtors contend that the Trustee’s objection is untimely. At the time this case was commenced, courts were split on whether the conversion of a chapter 13 case to one under chapter 7 provided a second opportunity to object to exemptions claimed by the debtor in the chapter 13 case,9 One line of cases holds the thirty-day period to object to a debtor’s claimed exemptions starts anew upon the conversion. See, e.g., In re Alexander, 236 F.3d 431 (8th Cir.2001); In re Brown, 375 B.R. 362 (Bankr.W.D.Mich.2007); In re Hopkins, 317 B.R. 726, (Bankr.E.D.Mich.2004); In re Fish, 261 B.R. 754 (Bankr.M.D.Fla.2001); In re Mims, 249 B.R. 378 (Bankr.D.N.J.2000) (re-conversion of chapter 13 case to chapter 7). These cases find support in § 348(a), which provides that the conversion of a chapter 13 ease to one under chapter 7 “constitutes an order for relief under the chapter to which the case is converted, but ... does not effect a change in the date of the ... order for relief.” 11 U.S.C. § 348(a). The courts reason that because the conversion constitutes an order for relief, a new meeting of creditors must be held in the converted chapter 7 case under § 341(a) and Rule 2003(a). Then, because there is nothing in Rule 4003(b) limiting the “meeting of creditors” to the first meeting conducted in the chap241ter 13 case, they conclude parties in interest have thirty days from the conclusion of the meeting of creditors in the converted chapter 7 case to object to a debtor’s exemptions. The other line of cases holds that conversion of a chapter 13 case to chapter 7 does not, restart the thirty-day period to object to exemptions. See, e.g., Bace v. Babitt (In re Bace), 07 Civ. 2421, 2008 WL 800672 (S.D.N.Y.2008); In re Rogers, 278 B.R. 201 (Bankr.D.Nev.2002); DiBraccio v. Ferretti (In re Ferretti), 230 B.R. 883 (Bankr.S.D.Fla.1999), aff'd without opinion, Dibraccio v. Ferretti 268 F.3d 1065 (11th Cir.2001); In re Beshirs, 236 B.R. 42 (Bankr.D.Kan.1999); see also In re Bell, 225 F.3d 203 (2d Cir.2000) (conversion from chapter 11 to chapter 7). These cases point out that Rule 1019(2) is silent regarding a renewed objection period upon conversion. They also find support for their holdings in § 348(a), which provides that a conversion of a ease does not change the date of the filing, commencement of the case, or the order for relief except for those instances specifically provided for by § 348(b) and (c), not applicable here. The court, however, need not weigh in on this issue, as the Trustee obtained an order on default extending his time to object to discharge until thirty days from the closing of the meeting of creditors. In addition to not opposing the Trustee’s motion, the Debtors did not move to reconsider or seek relief from the default order pursuant to Rules 9023 or 9024. The Trustee closed the meeting of creditors on June 16, 2008. The adversary proceeding was filed prior to that date on October 16, 2007. Thus, the objection was timely under the court’s order. Exempt property is determined on the date of the filing of the petition. In re Karr, 278 Fed.Appx. 741 (9th Cir.2008). Although the Debtors issued a check for the annuity pre-petition, it was not honored by the drawee bank until post-petition. This court previously evaluated the question of whether a check issued pre-petition, but cashed post-petition signifies dispersal of estate property and found, in accordance with New York law, that “a check is not considered absolute payment until it is honored by the drawee bank.” In re Parker, Ch. 7 Case No. 05-17912, 2008 WL 906570, at 4 (Bankr.N.D.N.Y. Apr. 3, 2008). Thus, the $21,000 used to fund the annuity, and not the annuity, was property of the estate at the time of filing.10 As a result, there was no annuity for the Debtors to exempt at the time of filing. The Trustee’s objection to the Debtors’ exemption is timely based upon the default order extending his time to object. The objection, however, has been rendered moot because the annuity was removed from the bankruptcy estate during the chapter 13 proceeding, long before the Trustee was appointed, by the Debtors’ exemption claim to which no timely objection was filed.11 II. Monetary Judgment The Trustee’s eighth cause of action seeks a money judgment against the Debtors for the dissipation of non-exempt estate assets post-petition. More specifically, the Trustee is seeking a judgment in an amount equal to the annuity that the 242Debtors invaded and spent prior to the conversion of their case. The Trustee provides no authority or statutory basis in support of his request for a monetary judgment. Seemingly, the Trustee is seeking a money judgment because the annuity no longer exists. Pre-conversion, however, the annuity was deemed exempt because no timely objection was filed. It was not until the Debtors converted their case and almost eight and a half months had passed that the Trustee filed his motion to extend his time to object. It was at that point that the Debtors were put on notice that there may be an issue with their claimed exemption. Meanwhile, the Debtors had already invaded and spent most of the annuity, which was, at the time, an exempt asset. Thus, the relief sought by the Trustee is denied as there was no dissipation of non-exempt estate assets. III. Denial of Discharge Under 11 U.S.C. § 727 The fresh start provided by a discharge is reserved for “the honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In essence, the Trustee’s causes of action under subsections of § 727(a) contest the Debtors’ honesty. Denial of a debtor’s discharge, “imposes an extreme penalty for wrongdoing” and, thus, § 727 “must be construed strictly against those who object to the debtor’s discharge and ‘liberally in favor of the bankrupt,’ ” In re Chalasani 92 F.3d 1300, 1310 (2d Cir.1996) (quoting In re Adlman, 541 F.2d 999, 1003 (2d Cir.1976)). The Trustee has the burden of proving the essential elements of each of the § 727(a) causes of action by a preponderance of the evidence. Fed. R. Bankr.P. 4005; McCarthy v. Nandalall (In re Nandalall), 434 B.R. 258, 265 (Bankr.N.D.N.Y.2010) (citation omitted). A. Transfer or Concealment of Property: § 727(a)(2)(A) and (B) The Trustee’s second and third causes of action are plead in the alternative and seek denial of the Debtors’ discharge under § 727(a)(2), which provides that a discharge shall not be granted if the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, ... (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A), (B). The § 727(a)(2)(A) cause of action is premised on the Debtors’ purchasing the annuity immediately prior to filing and failing to disclose its existence in their schedules. The § 727(a)(2)(B) cause of action is based upon the annuity being purchased with estate assets post-petition. Because the court has determined that the cash used to fund the annuity, and not the annuity, was property of the estate at the time of filing, there was no pre-petition transfer. As a result, the Trustee’s § 727(a)(2)(A) claim fails. Section 727(a)(2)(B) is intended to deny a discharge to a debtor who fails to disclose transactions regarding his assets post-petition. In re Bostick, 400 B.R. 348, 356 (Bankr.D.Conn.2009). To prevail under § 727(a)(2)(B), the party objecting to discharge must demonstrate by a preponderance of the evidence that: “(1) the debtor, (2) transferred or concealed (3) property of the bankruptcy estate (4) with the intent to hinder, delay or defraud the 243creditor (5) after the filing of the bankruptcy petition.” In re Pisculli, 408 Fed.Appx. 477, 479 (2d Cir.2011). As the court determined that the annuity was purchased post-petition, the first, second, third, and fifth elements of § 727(a)(2)(B) are satisfied. The issue is whether in purchasing the annuity, the Debtors intended to deceive or mislead creditors. As a debtor ordinarily will not admit to intentionally hindering, delaying, or defrauding creditors, fraudulent intent may be shown by circumstantial evidence, or by inferences drawn from a course of conduct. In re DeMartino, 448 B.R. 122, 128 (Bankr.E.D.N.Y.2011) (citing Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983)). Intent to defraud can also be drawn from certain “badges of fraud,” including “(1) the lack or inadequacy of consideration; (2) a family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suit by creditors; and (6) the general chronology of the events and transactions under inquiry.” In re D’Amico, No. 05-19217, 2008 WL 4552806, at 4 (Bankr.N.D.N.Y. Oct. 9, 2008) (citation omitted). Most often, a “determination concerning fraudulent intent depends largely upon an assessment of the credibility and demean- or of the debtor.” Republic Credit Corp. I v. Boyer (In re Boyer), 367 B.R. 34, 45 (Bankr.D.Conn.2007) (internal quotation marks and citation omitted). This case presents the unusual situation where the Trustee did not subpoena the Debtors to testify, and the Debtors chose not to testify on their own behalf. In place of trial testimony, the court is left with the Debtors’ Letter (Pl.’s Ex. F), Affidavit (Pl.’s Ex. G), answers to interrogatories (Pl.’s Ex. H), and responses to requests for documents (PL’s Ex. I), which were all received into evidence without objection. The four documents appear to have been prepared by the Debtors, as opposed to their counsel. To establish the requisite intent, the Trustee points to the Debtors’ declaration contained in their answers to interrogatories that they were advised to put as much money from the refinancing of their’ mortgage into the annuity as possible to protect it from bankruptcy. The Debtors, however, also indicate that this was done on the advice of counsel. The court recognizes that “reliance upon advice of counsel” is not an “impenetrable shield” behind which a debt- or may continually hide. In re Dubrowsky, 244 B.R. 560, 575 (E.D.N.Y.2000). “The advice of counsel is not a defense when it is transparently clear that the advice is improper.” Id. (citing In re Kelly, 135 B.R. 459, 462 (Bankr.S.D.N.Y.1992)). After reading the four documents prepared by the Debtors, the court finds the Debtors to be forthcoming and credible. The Debtors believed that the purchase of the annuity was permissible and in conformance with the advice they received from their attorney. There is nothing in the record to counter this. Thus, the court cannot conclude that the Debtors’ reliance on advice of counsel was not reasonable and in good faith. Additionally, the Debtors did not act in a secretive manner; Debtors revealed their actions. Creditors and the Chapter 13 trustee were on notice that the Debtors had over $20,000 in cash when they filed. Then, with the filing of the Debtors’ amended Schedules B and C, they were put on notice that at some point instead of 244cash, the Debtors had an annuity that they claimed as exempt. Despite these disclosures, no one objected during the course of the Debtors’ chapter 13 case. While, the Chapter 13 trustee did raise some questions concerning the Debtors’ cash in her objection to confirmation, her objection was resolved and the case confirmed. After the Debtors converted to chapter 7, the annuity was disclosed to the Trustee at the meeting of creditors. Based upon the slim record before it, the court cannot find the requisite intent on the part of the Debtors to sustain a cause of action under § 727(a)(2)(B). B. Failure to Maintain Records: § 727(a)(3) Section 727(a)(3) provides that a discharge shall be denied when the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case. 11 U.S.C. § 727(a)(3). The purpose and intent of this section is to “make the privilege of discharge dependent on a true presentation of the debtor’s financial affairs.” D.A.N. Joint Venture v. Cacioli (In re Cacioli), 463 F.3d 229, 234 (2d Cir.2006) (internal quotation marks and citation omitted). Notably, “[a] denial of a discharge under § 727(a)(3) does not require a showing of intent; only a showing that the debtor’s records are not reasonable under the circumstances.” Bronfman v. O’Hara (In re O’Hara), Ch. 7 Case No. 08-12108, Adv. No. 09-90055, 2011 WL 1467927, at 7 (Bankr.N.D.N.Y. Apr. 18, 2011) (citation omitted). “The Bankruptcy Code does not specifically require a debtor seeking a discharge to maintain ... an impeccable system of bookkeeping.” In re Jacobowitz, 296 B.R. 666, 670 (Bankr.S.D.N.Y.2003), aff'd, 309 B.R. 429 (S.D.N.Y.2004) (quoting Meridian Bank v. Alten, 958 F.2d 1226, 1230 (3d Cir.1992)). Rather, when an objection under § 727(a)(3) is raised, the court must determine “whether a debtor’s records are adequate to explain his finances and, if not, whether this failure is justified.” Id. “Whether a debtor’s failure to appropriately keep or preserve books and records is justified is a question of ‘reasonableness in the particular circumstances.’ ” Pergament v. DeRise (In re DeRise), 394 B.R. 677, 688 (Bankr.E.D.N.Y.2008) (citing Shiboleth v. Yerushalmi (In re Yerushalmi), Ch. 7 Case No. 07-72186-478, Adv. No. 08-8037-478, 2008 WL 4107491, at 7 (Bankr.E.D.N.Y.2008)). The Trustee alleges that the Letter (Pl.’s Ex. F), the Affidavit (PL’s Ex. G), answers to interrogatories (PL’s Ex. H), and responses to request for documents (PL’s Ex. I) establish that the Debtors failed to preserve or produce records. He argues that not only did the Debtors fail to provide documentation until after this proceeding was commenced, but also that the documentation provided is insufficient to ascertain the Debtor’s financial condition and transactions involving the proceeds of their refinancing. Upon closer examination of the Letter, the Affidavit, and answers to interrogatories, the court is satisfied that the Debtors did provide an adequate accounting of the proceeds from the refinancing of their mortgage under the circumstances. The court also notes that the Letter and Affidavit were provided to the Trustee in late December 2006, approximately ten months prior to commencement of the adversary proceeding. In the Letter, the Debtors explain that they have no mortgage state245ments because their lender stopped sending them after commencement of the. bankruptcy, but they do indicate which of their checks represent mortgage payments.12 The Debtors go on to describe in detail both how the money from the refinance and the money withdrawn from the annuity account was spent. (Pl.’s Ex. F.) This accounting is further corroborated by the Debtors’ answers to interrogatories and the documents they produced in response to the Trustee’s First request for Production of Documents. (PL’s Exs. H and I.) While the court did not have the benefit of the Debtors’ live testimony, the Trustee’s exhibits reveal a detailed picture of their financial history, albeit not fully corroborated by formal statements issued by financial institutions. The Debtors do, however, provide bank statements and cancelled checks normally maintained by consumer debtors. In light of the Debtors’ employment and income, and the principle of liberally construing objections to discharge in favor of a debtor, the court concludes that the Debtors have provided an adequate accounting of their financial history under the circumstances. C. False Oath or Account: § 727(a)(4)(A) Section 727(a)(4)(A) provides that “[t]he court shall grant the debtor a discharge, unless ... the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” 11 U.S.C. § 727(a)(4)(A). Under this section, the plaintiff must establish that: (1) the debtor made a statement under oath, (2) such statement was false, (3) the debtor knew it was false, (4) the statement was made with fraudulent intent, and (5) the statement related materially to the bankruptcy. Levine v. Raymonda (In re Raymonda), Ch. 7 Case No. 99-13523, Adv. No. 99-91199, slip op. at 4-5 (Bankr.N.D.N.Y. Feb. 9, 2001). As it has been determined that the Debtors did, in fact, have cash when they filed as a result of the check for the annuity not being cashed until post-petition, Debtors’ Schedule B setting forth cash instead of the annuity was accurate. As for the failure to set forth in the petition how the proceeds from their refinancing were spent and the inaccuracy as to the amount of the annuity, the issue is not whether the Debtors’ petition and schedules contained inaccuracies, but whether the Debtors intended to deceive or mislead creditors. The Trustee must show that the omitted information in the Debtors’ schedules occurred because the Debtors exhibited a reckless indifference for the truth or intended to mislead their creditors, not because of mere carelessness or misunderstanding. Harris v. D’Amico (In re D’Amico), Ch. 7 Case No. 05-19217, Adv. No. 06-90188, 2008 WL 4552806, at 6 (Bankr.N.D.N.Y. Oct. 9, 2008) (citing In re Brundege, 359 B.R. 22, 30 (Bankr.N.D.N.Y.2007)). While a debtor has an affirmative duty to file accurate schedules and amended schedules, “if items were omitted from the debtor’s schedules because of an honest mistake or upon the honest advice of counsel, such a false declaration may not be sufficiently knowingly and fraudulently made so as to result in a denial of discharge.” In re Ptasinski, 290 B.R. 16, 23 (Bankr.W.D.N.Y.2003). In response to the Trustee’s inquiry of whether the transfer of funds from the refinance was disclosed in the State246ment of Financial Affairs, the Debtors replied, “Yes.”13 There is no further evidence of the circumstances surrounding the Debtors’ completion of the schedules. The Debtors provided the Letter and the Affidavit to the Trustee prior to this adversary proceeding being commenced. The Letter indicates that this was the “fourth time we are sending you the same information.” In both the Letter and the Affidavit, the Debtors lay out for the Trustee, in their own words, where the proceeds from their refinancing went. The Debtors credibly explain that they believed they had disclosed how the proceeds from their refinancing were spent. The Affidavit also refers to the annuity in the amount of $21,000. It is unclear why the Debtors’ counsel did not further amend schedules B and C to reflect the correct amount of the annuity, and the Statement of Financial Affairs. There is no indication, however, that counsel’s failure to amend the Debtors’ schedules was the result of the Debtors’ failure to cooperate. As § 727 must be construed liberally in favor of the Debtors, the court finds the Trustee has not satisfied his burden of showing the inaccurate statements and omissions were made knowingly and fraudulently. D. Failure to Explain Loss of Assets: § 727(a)(5) Section 727(a)(5) provides that “[t]he court shall grant the debtor a discharge, unless ... the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities.” 11 U.S.C. § 727(a)(5). The element of intent to deceive creditors, which is necessary under other subsections of § 727, is not required under § 727(a)(5). Nof v. Gannon (In re Gannon), 173 B.R. 313, 317 (Bankr.S.D.N.Y.1994). The Second Circuit has held that In order to obtain a denial of discharge under § 727(a)(5), first, the creditor must establish a loss or deficiency of assets. If the creditor makes such a showing, the debtor has an opportunity to explain the whereabouts of the assets. As long as the debtor’s explanation is convincing and not rebutted, there is no need for documentary corroboration. See Krohn v. Cromer (In re Cromer), 214 B.R. 86, 97 (Bankr.E.D.N.Y.1997) (stating that “as long as debtor’s explanation convinces the judge that the debt- or has not hidden or shielded assets, corroborating evidence by way of documentation is not necessary in every instance ”). D.A.N, Joint Venture v. Cacioli (In re Cacioli), 463 F.3d at 238-39 (some citations omitted; emphasis added). It is not disputed that the majority of the annuity was spent. Thus, the burden shifts to the Debtors to satisfactorily explain the loss or deficiency. D.A.N. Joint Venture v. Cacioli (In re Cacioli), 463 F.3d 229 (2d Cir.2006), (citing Caolo v. 247McGovern (In re McGovern), 215 B.R. 304, 307 (Bankr.D.Conn.1997)). After reviewing the Debtors’ responses to the Trustee’s demand for documents and interrogatories, the court finds the Debtors satisfactorily explained how the money from the annuity was spent. The Debtors earn a modest income. The budget filed with their petition shows no sign of extravagance. From all indications, the Debtors used the annuity to pay ordinary living expenses, without malice or wrongful intent. There was no rebuttal by the Trustee to the Debtors’ explanations. While the Trustee has shown a loss, the evidence offered at trial provides a reasonable accounting of the proceeds of the annuity. Accordingly, the Debtors’ discharge will not be denied under § 727(a)(5). E. Failure to Obey Lawful Order: § 727(a)(6)(A) Under § 727(a)(6)(A), the court may deny a debtor a discharge if “the debtor has refused, in the case ... to obey any lawful order of the court, other than an order to respond to a material question or to testify.” 11 U.S.C. § 727(A)(6). The Trustee bears the ultimate burden of persuasion in a § 727(a)(6)(A) action, “but the burden of production will shift once the objecting party has shown a violation of a court order.” In re Gardner, 384 B.R. 654, 669 (Bankr.S.D.N.Y.2008) (citation omitted). Denial of discharge under this subsection “requires that the debtor willfully and intentionally refused to obey a court order.” Id. at 669-70. As a result, “a mere failure to obey the order, resulting from inadvertence, mistake, or inability to comply, is insufficient; the party seeking revocation must demonstrate some degree of volition or willfulness on the part of the debtor.” Id. at 670. While “ ‘§ 727(a)(6) provides that a bankruptcy court shall deny a discharge for failure to obey a lawful court order, case law has demonstrated that the denial is subject to the discretion of the court.’ ” Weiss v. Winkler, No. 98-CV-5742 FB, 2001 WL 423050, at 3 (E.D.N.Y. Mar. 30, 2001) (quoting In re Beeber, 239 B.R. 13, 31 (Bankr.E.D.N.Y.1999) (citing In re Kokoszka, 479 F.2d 990, 997 (2d Cir.1973), cert. granted sub nom., Kokoszka v. Belford, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), aff'd, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), and reh. denied, 419 U.S. 886, 95 S.Ct. 160, 42 L.Ed.2d 131 (1974))). There is no dispute the Debtors invaded the annuity post-petition. Nor, is there any dispute that upon conversion of the case to chapter 7, the Debtors did not attempt to hide the withdrawals from the Trustee. The Trustee asserts that the Debtors’ withdrawal of funds, from the annuity violated the confirmation order’s prohibition of selling or otherwise disposing of property having a value greater than $2,500 without the trustee’s consent. The Debtors, however, claimed the annuity exempt. Because there was no timely objection while the Debtors were in chapter 13, the annuity was exempt at the time the withdrawals were made. The evidence establishes that the Debtors’ understanding was that the annuity was not part of the estate and, thus, they were free to access it. As a result, it is impossible to find that the Debtors willfully and intentionally violated the confirmation order. Thus, the court concludes that the Trustee has failed to meet his burden under § 727(a)(6)(A),14 *248CONCLUSION Something went awry in this case. The Debtors refinanced the mortgage against their residence shortly before filing for bankruptcy. As a result, when they filed, they had non-exempt cash, rather than equity in their home that could have been claimed exempt. The cash was disclosed on Schedule A; it was not claimed exempt. The conversion of the cash to an annuity was disclosed by the Debtors with the filing of an amended Schedule B, and the filing of an amended Schedule C gave notice that the Debtors claimed the annuity exempt. The cash was never marshaled, and there was no objection to the annuity exemption prior to the Debtors’ conversion of their chapter 13 case to chapter 7. Denial of a discharge, however, is the death penalty of bankruptcy. In re Raymonda, Ch. 7 Case No. 99-13523, Adv. Pro. 99-91199, slip op. at 4. It is a harsh remedy to be reserved for a truly pernicious debtor. Soft Sheen Prods., Inc. v. Johnson (In re Johnson), 98 B.R. 359, 367 (Bankr.N.D.Ill.1988). From the evidence before the court and the arguments of counsel, the court cannot conclude that the Leones are not deserving of a discharge. For the reasons discussed above, it is hereby ORDERED, that the Trustee’s objection to the Debtors’ exemption is moot; and it is further ORDERED, that the Trustee’s request for a monetary judgment against the Debtors is denied; and it is further ORDERED, that the complaint is dismissed, and a discharge shall be issued to the Debtors. . Unless otherwise noted, all statutory references are to title 11 of the United States Code, 11 U.S.C. § 101 etseq., prior to the enactment of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. . The court takes judicial notice of the record in the main case. See In re Burdick, 191 B.R. 529, 537 n. 7 (Bankr.N.D.N.Y.1996) (citing Matter of Holly's, Inc., 172 B.R. 545, 553 n. 5 (Bankr.W.D.Mich.1994)) (“A bankruptcy judge may take judicial notice of the court’s records.”); In re Colder, 907 F.2d 953, 955 n.2 (10th Cir.1990). . Question 3 on the Statement of Financial Affairs requires a list of "all payments on loans, installment purchases of goods or services, and other debts, aggregating more that $600 to any creditor, made within 90 days immediately preceding the commencement of this case.” (PL’s Ex. A.) In response, the Debtors disclosed a $1,550 payment made to Direct Merchants and a $2,129.67 payment made to the Internal Revenue Service. (Id.) .Neither party obtained a transcript of the June 2008 trial; thus, the court has relied solely on the electronic recording of the proceeding. . The Debtors' "Affidavit” does not take the traditional form. While it is dated and signed by the Debtors, there is no jurat indicating the Affidavit was sworn to. Nonetheless, it was offered by the Trustee at trial and received without objection, so the court will accept it at face value. . No explanation was given as to why the Debtors’ amended Schedule B indicates the annuity had a value of $27,500. . Unless otherwise noted, the Federal Rules of Bankruptcy Procedure will be referred to simply as “Rules” or "Rule.” . Subdivision (b) of Rule 4003 was rewritten in 2008 to include four paragraphs. The amendment to the Rule was not in effect at the times relevant here. . This issue was put to rest with the amendment of Federal Rule of Bankruptcy Procedure 1019, effective December 1, 2010. The amended Rule redesignates 1019(2) as part (2)(A), and adds a new part (2)(B), that provides as follows: (B) A new time period for filing an objection to a claim of exemptions shall commence under Rule 4003(b) after conversion of a case to chapter 7 unless: (i) the case was converted to chapter 7 more than one year after the entry of the first order confirming a plan under chapter 11, 12, or 13; or (ii) the case was previously pending in chapter 7 and the time to object to a claimed exemption had expired in the original chapter 7 case. Fed. R. Bankr.P. 1019(2)(B) (as amended Dec. 1, 2010). . The record is silent as to why the nonexempt cash, which was disclosed in the petition, was not marshaled during the chapter 13 proceeding for the benefit of creditors. . Presumably, if an objection had been filed within thirty days after the Debtors filed their amended Schedule C during the chapter 13 proceeding, the objection would have been sustained and the value of the annuity made available for the benefit of creditors. . The Trustee did not provide any of the documents that were allegedly attached to the Letter, but because he made no representation that they were not attached, the court accepts the Letter as true. . Item 3 a on the Statement of Financial Affairs instructs a debtor to list all payments aggregating more than $600 made to any creditor within 90 days immediately preceding the commencement of the case. Debtors set forth payments made to Direct Merchants in the amount of $1,550 on August 9, 2005, and to the Internal Revenue Service in the amount of $2,129.67 on September 7, 2005. Both payments were made after the Debtors refinanced their mortgage. Item 10 asks a debtor to list all property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred within one year immediately preceding the commencement of the case. Debtors checked "None” in response to both questions. (Pl.’s Ex. A.) . Given the court's holdings in connection with the Trustee's § 727 causes of action, it need not address the Debtors' arguments regarding the unorthodox date calculations in the orders extending the Trustee's time to object to discharge or laches.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8494508/	AMENDED MEMORANDUM DECISION DENYING MOTION FOR ADMINISTRATIVE CLAIM AND GRANTING MOTION TO REJECT EMPLOYMENT CONTRACT CECELIA G. MORRIS, Bankruptcy Judge. At the hearing on November 15, 2011, the Court heard argument on the Debtors’ 291motion to reject the employment contract of Chester Walczyk, former chief operating officer of the Debtors. Walczyk opposed the motion, and argued that he should be allowed an administrative claim for severance pay, to which he claims he is entitled under his employment contract. The Court denies the motion for the administrative claim pursuant to 11 U.S.C. section 503(c)(2), and grants the motion to reject the employment contract pursuant to the “functional approach” to rejection of executory contracts under section 365. Background Debtors commenced their cases on April 29, 2011. Debtors in these jointly administered cases are Majestic Capital, Ltd. (“Majestic Capital,” the lead Debtor on the pleadings and the parent company of the group), Majestic USA Capital, Inc. (“Majestic USA”), Compensation Risk Managers, LLC (“CRM”), Compensation Risk Managers of California, LLC (“CRM CA”), Eimar, LLC, and Embarcadero Insurance Holdings, Inc. (“Embarcadero”). Majestic Capital was formerly known as CRM Holdings, Ltd., and wholly owns Majestic USA. See id. at 4; Motion by Debtors and Debtors-in-Possession for Authority to Reject Employment Contract With Chester J. Walczyk 3, ECF No. 101. Majestic USA’s direct subsidiaries include Embarcadero. Affidavit Pursuant to Local Bankruptcy Rule 1007-2, ECF No. 3. Embarcadero’s wholly owned subsidiary is Majestic Insurance Company (“Majestic Insurance”), a non-debtor undergoing liquidation in a conservatorship proceeding in California. See Motion by Debtors and Debtors-in-Possession for Authority to Reject Employment Contract With Chester J. Walczyk 3, ECF No. 101. The conservator of Majestic Insurance entered into an agreement to sell substantially all Majestic Insurance’s assets to AmTrust North America. Motion by Debtors and Debtors-in-Possession for Authority to Reject Employment Contract With Chester J. Walczyk 3, ECF No. 101. The sale was approved by the California court on June 2, 2011, and closed on July 1, 2011. Id. Debtors state that one of the purposes of the bankruptcies is to facilitate and support the conservation proceeding so as to preserve a potential surplus for themselves. Affidavit Pursuant to Local Bankruptcy Rule 1007-2 20, ECF No. 3. On September 28, 2011, Debtors’ counsel filed a motion to reject the employment contract of chief operating officer Walczyk, on the grounds that Walczyk was terminated by the conservator of Majestic Insurance on or about July 31, 2011, and his services are not required by the Debtors’ estates. Motion by Debtors and Debtors-in-Possession for Authority to Reject Employment Contract With Chester J. Walc-zyk 3, ECF No. 101. The employment agreement was made on January 1, 2010, between CRM Holdings, Ltd. — the former name of Debtor Majestic Capital — “and its Subsidiaries” and Walczyk, setting a base salary of $300,000, and severance pay for termination without cause, among other benefits. Motion by Debtors and Debtors-in-Possession for Authority to Reject Employment Contract With Chester J. Walczyk Exh. A, ECF No. 101. The employment contract terminates by its own terms on December 31, 2012. See id. On October 28, 2011, Walczyk filed a motion for allowance of an administrative claim of $600,000, pursuant to 11 U.S.C. section 503(a), allegedly for severance pay. See Motion By Chester J. Walczyk For Allowance And Payment Of Administrative Expense 13, ECF No. 148. It appears that Walczyk seeks to recover under paragraph 9(f)(iii) of the employment contract: Termination due to Change in Control. In the event Executive’s employment is terminated by the Company without 292cause or by Executive for good reason upon the occurrence of or within six months following a Change in Control (as defined below), Executive’s sole remedy under this Agreement shall be to receive: iii. Severance pay equal to 200% of the base Salary immediately prior to the Termination Date (unless a reduction in Base Salary is the reason for Good Reason termination, in which case, the Base Salary amount prior to any such reduction), which severance pay shall be payable in 24 equal monthly payments commencing within 10 days after the effective date of the release provided for in Section 9(i) hereof. Motion By Chester J. Walczyk For Allowance And Payment Of Administrative Expense 4, ECF No. 148. Walczyk notes that on or about May 26, 2011 — less than a month after the present cases were commenced, and two months before Walczyk was terminated — the Debtors moved to reject the executory employment contracts of two other employees, the chief executive officer and general counsel of the Debtors, respectively; in that motion, the Debtors failed to mention Walczyk. Motion By Chester J. Walczyk For Allowance And Payment Of Administrative Expense 2, ECF No. 148. Walczyk points out that in that motion, it is stated that employees of the Debtor were to perform numerous critical functions during the cases, including supporting the consummation of the sale of the assets of Majestic Insurance in the conservation proceeding, and assisting the conservator of Majestic Insurance in evaluating claims against any surplus after the sale. Id. Walczyk alleges that he worked pre- and post-petition with the Majestic Insurance conservator to complete that sale. Id. at 3. He argues that he was an employee of the Debtors, despite a “paper move” to the payroll of Majestic Insurance — his focus remained that of the parent-debtor, which was to preserve Majestic Insurance, and the employment contract was not terminated or amended. See id. at 7. Walczyk argues that his service regarding the sale of Majestic Insurance provided benefit to the Debtors’ estates, as the sale is the only significant generator of revenue for the Debtors. See id. at 9. He argues that he is not “double dipping” in both the conservator’s recovery and the Debtors’ estates, as the conservator is requiring releases that may jeopardize any recovery from the bankruptcy estates. Id. Separately, Walczyk opposes the motion to reject his contract, arguing he was terminated on July 29, 2011, and the motion to reject the contract was filed on September 28, 2011. He argues that the contract cannot be rejected because it is not an executory contract — he was terminated by the California conservator after the bankruptcy cases were commenced and before the motion to reject was filed, and there is no performance due on his part. Objection to Motion to Reject Employment Contract of Chester J. Walczyk 4, ECF No. 151. Allegedly, the only part of the agreement yet to be performed is Debtors’ payment of Walczyk’s severance pay. Debtors replied to Walczyk’s opposition to the motion to reject and opposed his motion for the administrative claim, arguing that during the post-petition period, Walczyk was employed by Majestic Insurance, a non-Debtor, and performed no services for the Debtors. See Response to Objection by Chester J. Walczyk to Debtors’ Motion to Reject Employment Contract and Objection by Debtors to Motion by Chester J. Walczyk for Allowance and Payment of Administrative Expense 4-5, 6, ECF No. 170. They characterize Wale-293zyk as an employee “in name only,” who performed no work post-petition for the Debtors, and they distinguish the former employee’s legal authority on the grounds that it concerns employees of Debtors who worked for the Debtors post-petition. Id. at 6. Debtors argue that the administrative claim should be barred by 11 U.S.C. section 503(c)(2). Id. at 7-8. The Debtors argue that Walczyk’s severance benefits are limited to a general unsecured claim under section 502(b)(7). Id. at 8. At the hearing held on November 15, 2011, Debtors’ counsel advised the Court that the proceeds of the sale of Majestic Insurance are assets of the present estates — after the claims of Majestic Insurance are satisfied. It was argued that the California conservator of Majestic Insurance was authorized by court order in that proceeding to terminate management, such as Walczyk; this authority was not disputed. Debtors’ counsel and Walczyk’s counsel agreed that Walczyk was an employee of all the Debtors and Majestic Insurance under the employment contract — though Debtors’ counsel argued that Walczyk was not an employee of the Debtors at the time the case was commenced, as his payroll status had been transferred to Majestic Insurance. Debtors alleged that after the present bankruptcy cases were commenced, Walczyk allegedly worked for Majestic Insurance, winding-up East Coast business ahead of the sale — though Debtors’ counsel would not admit that Walc-zyk’s services benefitted the present estates. It was agreed that Walczyk was an insider of the Debtors. Statement of jurisdiction This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a) and the Standing Order of Reference signed by Acting Chief Judge Robert J. Ward dated July 10, 1984. This is a “core proceeding” under 28 U.S.C. § 157(b)(2)(A) and (B). Part I: The motion for an administrative claim is denied. Walczyk’s claim arose upon termination by the conservator. The motion to reject the contract and the motion for an administrative claim are both fundamentally concerned with the priority of the claim. The Court commences its analysis with the motion to allow the administrative claim, as the outcome of that motion influences the analysis of whether the employment contract may be rejected under section 365. Walczyk, indisputably an insider, offered no evidence that his claim meets the requirements of section 503(c)(2), and therefore the motion for an administrative claim must be denied. A. Insiders’ claims for severance pay are not allowed under 11 U.S.C. section 508(c)(2), absent specific statutory requirements. Section 503(b) of the Bankruptcy Code provides as follows: (b) After notice and a hearing, there shall be allowed administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate including— (i) wages, salaries, and commissions for services rendered after the commencement of the case ... 11 U.S.C. § 503(b). The Second Circuit grants administrative priority to severance benefits. In Straus-Duparquet, Inc. v. Local Union No. 3, IBEW, 386 F.2d 649 (2d Cir.1967), a Bankruptcy Act case, the bankruptcy referee allowed claims of union employees for vacation and severance pay, pursuant to a collective bargaining agreement. The Second Circuit granted administrative status to the portion of vacation 294pay that had been earned between the commencement of the bankruptcy and the termination of the employment, and general unsecured status to the balance of the vacation pay. Regarding the severance pay, the Second Circuit determined it to be an administrative claim, stating, “[sjeverance pay is not earned from day to day and does not ‘accrue’ so that a proportionate part is payable under any circumstances. After the period of eligibility is served, the full severance pay is due whenever termination of employment occurs.” Id. at 651 (2d Cir.1967). Section 101(31) defines an “insider” as .... (B) if the debtor is a corporation— (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor; (E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and (F) managing agent of the debtor. As chief operating officer of “CRM Holdings, Ltd. And its Subsidiaries,” see Employment Agreement, which include Debtors and non-debtor subsidiary Majestic Insurance, Walczyk is admittedly and indisputably an “insider” of the Debtors for purposes of the Bankruptcy Code. Section 503 of the Bankruptcy Code limits the status of claims payable to a Debt- or’s executives and other insiders, whether in the form of “key employee retention” benefits, severance pay, or other compensation. Walczyk argues that section 503(c)(1)(C) (key employee retention incentives) does not apply to his circumstances, as he was not offered any post-petition inducement to stay — the severance benefits at issue arise from a pre-petition employment contract. He argues that the section is meant to apply to Debtors who seek to retain their pre-existing management, which is different from the circumstances at bar, as he is seeking the administrative claim on his own initiative. In the matter at bar, Walczyk requests an administrative claim for severance pay pursuant to a prepetition employment contract, and the allowance of such a claim is governed by 11 U.S.C. § 503(c)(2): (c) ... there shall neither be allowed, nor paid— (2) a severance payment to an insider of the Debtor, unless— (A) the payment is part of a program that is generally applicable to all full-time employees; and (B) the amount of the payment is not greater than 10 times the amount of the mean severance pay given to nonman-agement employees during the calendar year in which the payment is made[.] Courts apply a strict application of section 503(c)(2). In In re Dana Corp., 351 B.R. 96 (Bankr.S.D.N.Y.2006), the court rejected the proposed compensation plans for certain executives, as the plans did not meet the requirements of section 503(c)(2), among other reasons. In Dana, the court rejected the proponents’ arguments that the severance payments were consideration for abiding by non-compete agreements, stating Straus-Dwparquet’s definition of severance pay as “a form of compensation to alleviate the consequent need for economic readjustment but also to recompense him for certain losses attributable to the dismissal.” Id. at 102; cf. Blade’s Law Dictionary 1406 (8th ed. 2004) (defining severance pay as “[mjoney 295(apart from back wages or salary) paid by an employer to a dismissed employee.”). The court held that no showing had been made to satisfy the evidentiary burdens set by section 503(c)(2). Id. at 103. In In re Forum Health, 427 B.R. 650 (Bankr.N.D.Ohio 2010), the court denied a severance payment to the debtor’s former chief executive officer, holding, “[djebtors’ severance program, although generally applicable to all full-time non-union employees, is not generally applicable to all full-time employees.” Id. at 655. In Forum Health, the insider was found to be a participant in the severance benefit program available to non-union employees; as union employees were not covered by the program, the program did not satisfy section 503(c)(2)(A), and the insider’s benefit was denied by the bankruptcy court. See also In re Robb & Stucky Limited, LLLP, 2011 WL 3948805 (Bankr.M.D.Fla. Sept. 7, 2011) (denying administrative expense claim of the former chief executive officer for severance benefits arising from the post-petition termination of his pre-petition employment agreement). Persuaded by the foregoing authority, the Court holds that Walczyk’s motion for an administrative claim must be denied, as the requirements of section 503(c)(2) are not satisfied. Walczyk is indisputably an insider, and his claim satisfies neither requirement of section 503(c)(2). Walczyk and the contract expressly characterize the payment as severance pay, and no argument has been made that the payment represents another form of compensation that is beyond the scope of section 503(c)(2). Further, there is no limiting language in section 503(c)(2) that could support an argument that severance payments that are created under individual contracts, as opposed to programs of broader applicability, are beyond the scope of the Code section — the statute simply states, “There shall neither be allowed nor paid a severance payment to an insider of the debtor,” unless certain criteria are met. See 11 U.S.C. § 503(c)(2). The genesis of the severance payment itself is not limited by the statute, and pre-BAPCPA authority suggests that a claim such as the one at issue would be granted nonpriority status, as a form of damages. See In re AppliedTheory Corp., 312 B.R. 225, 240-241 (Bankr.S.D.N.Y.2004) (discussed herein). The Court rejects Walczyk’s interpretation of the provision as only applying where the debtor seeks to make the payment, as opposed to the insider seeking it on his own initiative, as no such limiting language is present in the statute. Walc-zyk characterizes his claim for severance pay, arising pursuant to his employment contract. The proposed claim arises under Walczyk’s personal employment contract, not a program generally applicable to all employees. As is amply demonstrated in Debtors’ earlier motion to retain the other two insiders, Walczyk’s proposed severance pay — $600,000—exceeds the amount available to other employees ($9605) by much more than ten times. See Motion to Authorize Debtors to Enter into Severance Program and to Reject Certain Executory Employment Contracts, ECF No. 31. Further, Walczyk failed to offer any evidence that his severance claim met the criteria of section 503(c)(2). Therefore, his motion for an administrative claim is denied. B. Damages resulting from the rejection of the employment contract are limited by 11 U.S.C. section 502(b)(7). Bankruptcy Code section 502(b)(7) states that if a debtor objects to a claim, the court shall determine the amount of 296the claim and allow it, except to the extent that if such claim is the claim of an employee for damages resulting from the termination of an employment contract, such claim exceeds— (A) the compensation provided by such contract, without acceleration, for one year following the earlier of— (i) the date of the filing of the petition; or (ii) the date on which the employer directed the employee to terminate, or such employee terminated, performance under such contract; plus (B) any unpaid compensation due under such contract, without acceleration, or the earlier of such dates. Application of section 502(b)(7) is independent of whether a contract is exec-utory — it applies from the earlier of (1) the date of filing the petition or (2) the date the employee was terminated. Levinson v. LHI Holding, 176 B.R. 255, 258 (M.D.Fla.1994). It is irrelevant whether the termination was remote in time or cause to the bankruptcy, and whether the termination occurred as a result of the debtor’s worsening financial condition. See id. at 259. See also Anthony v. Interform, Corp., 96 F.3d 692, 697 (3d Cir.1996) (holding that section 502(b)(7) caps all employment contract termination claims, regardless of whether the claim was reduced to judgment, there is any connection between termination and debtor’s financial troubles, or years passed between termination and the filing of the bankruptcy); In re Sheehan Mem. Hosp., 377 B.R. 63 (Bankr.W.D.N.Y.2007) (limiting termination damages to those wages that would have been earned in the 60-day notice period for termination; noting that section 502(b)(7) concerns amount of allowed claim, not its priority). When considering whether to allow an administrative claim for the severance benefit payable to an executive, the Court is persuaded by the reasoning of In re AppliedTheory Corp., 312 B.R. 225 (Bankr.S.D.N.Y.2004) (Gerber, Bankr. J.). In AppliedTheory, five executives sought severance pay of a total of $2.4 million, having provided about six weeks’ post-petition services before departing “with good reason.” The bankruptcy court distinguished Straus-Duparquet: 1) The claim arose from a pre-petition contract that was duly rejected; 2) The claim fails to meet the standard required for an administrative claim; and 3) The claim in Straus-Dupar-quet concerned severance of two-weeks’ pay, in contrast to a multi-year salary computation that amounted to a “golden parachute.” Id. at 228. The bankruptcy court described the hallmarks of a “golden parachute”: the claimed entitlements substantially exceed the amount that would have been earned if the employee remained employed; do not turn on length of service; are not in lieu of notice; and would be due even upon the employee’s decision to quit. Id. In AppliedTheory, the executives’ post-petition services included work done related to soliciting bids beyond the stalking horse bids in a 363 sale process, and ordinary-course activities. The employment contracts were rejected pursuant to the sale orders. The bankruptcy court held that the provisions of the contract under which the claims arose set a general unsecured claim, not an administrative claim: Here, the Executives and the Debtors fixed amounts in each of their contracts — equal to the salary, bonuses (if earned), and current fringe benefits— based on their shared perceptions of what the Executives’ services were worth for as long as they were working. ... [Significantly, if the Executives 297did not leave the Debtors’ employ, they would receive no more. The salary continuation (putting aside its doubling or quadrupling) was not an indication of the value of their work; it was rather, in substance, a species of damages, liquidated or otherwise (albeit arguably disproportionate to any resulting actual damage), for action on the part of the Debtors that caused an Executive’s regular draw of salary to come to an end— either because of a breach of his employment contract by the Debtors, or a change in the Executive’s working conditions justifying his departure for “Good Reason”, or for entering into a transaction with an entity with whom the Executive might not have a future. In re AppliedTheory Corp., 312 B.R. 225, 240-241 (Bankr.S.D.N.Y.2004). The court returned to the threshold question of whether an executive’s pay should have administrative status: “the extent, if any, to which the salary paid and other benefits then provided fell short of the reasonable value of the services provided by the Executives during their post-petition prerejection tenure with the Debtors.” Id. at 241. The court distinguished Straus-Dupar-quet, noting the severance claims in that case were based upon the length of employment, and constituted at most a few weeks’ pay. The court found that in Ap-pliedTheory, the payments were not meant to avoid hardship, as they were payable even if the executive chose to leave; the payments were different in nature from the severance pay in Straus, which was linked to duration of employment, and the AppliedTheory executive’s pay was a promise of future payment in the event of a contingency. Notably, the court stated, [t]he undertaking to pay “severance” if the Executive chose to quit (if accompanied by the condition of a change of control or other “Good Reason”), or if the Executive was dismissed for other than “Cause,” was a pre-petition promise that created a contingent liability on the part of the Debtors to make that payment if the condition was satisfied. Though contingent, it was a claim on the Filing Date. It is basic bankruptcy law that a pre-petition promise to satisfy an obligation upon the happening of a later condition is not transmogrified into a post-petition obligation when the condition is satisfied post-petition. Instead, it is simply a pre-petition contingent claim. In re AppliedTheory Corp., 312 B.R. 225, 245 (Bankr.S.D.N.Y.2004). The court found that the payments in that case, representing a few years’ salary, were different in kind than the two-weeks’ pay at issue in Straus. Id. at 246. Finally, the court denied administrative priority on the grounds that the claims were capped under section 502(b)(7) and the employment contract had been rejected. See also Mason v. Official Committee of Unsecured Creditors (In re FBI Distribution Corp.), 330 F.3d 36, 48 (1st Cir. 2003) (affirming denial of administrative status for executive’s purported severance pay, ás the pay was really compensation for prepetition act of forgoing other employment; “Mason is entitled to receive the reasonable value of the beneficial services rendered during the reorganization. For these services, she was fully compensated by the Debtor in possession: she received her full salary plus fringe benefits pursuant to the terms of her Employment Agreement for all the services she rendered postpetition. Absent a court approved assumption of her Employment Agreement, this was all she is entitled to receive.”). Similarly, in the matter at bar, the “severance pay” was payable under the employment agreement even if Walczyk chose to leave upon a “change in control.” The 298payment represents 200 percent of base salary, representing compensation for a period of far longer than a few weeks, the kind of severance pay considered in Straus. The payment is different in kind, for the same reasons as stated in Ap-pliedTheory. Any payment that could be allowed from the rejection of the agreement is limited by 502(b)(7). The Court finds that Walczyk was an employee of the Debtors, post-petition. His employment contract is titled “CRM Holdings, Ltd. and its Subsidiaries/ Employment Agreement for Chester J. Walc-zyk;” and it is made between Walczyk and CRM “together with its subsidiaries from time to time.” The Court rejects the Debtors’ argument that Walczyk ceased to be an employee of the Debtors when his payroll was switched to Majestic Insurance. Debtors’ indirect subsidiaries include Majestic Insurance. It is irrelevant to the questions at bar which subsidiary paid the payroll, in the face of such a broad employment agreement. Section 502(b)(7) does not conflict with section 503(c)(2). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Kucana v. Holder; — U.S.-, 130 S.Ct. 827, 838, 175 L.Ed.2d 694 (2010); see also Air Transp. Ass’n of Am. v. Prof'l Air Traffic Controllers Org., 667 F.2d 316, 321 (2d Cir.1981) (noting that a court may presume that Congress is aware of settled judicial construction of existing law). When Congress added section 503(c)(2) in enacting the BAPCPA amendments, it did not revisit section 502(b)(7). Given that Congress is presumed to have known about both sections, the Court holds that the limitation of section 503(c)(2) denies administrative priority of the claim for severance pay, whereas section 502(b)(7) controls the amount of the allowed claim. Section 503(c)(2) exists under a Code section titled, “Allowance of administrative expenses;” subsection (c) commences with the clause, “Notwithstanding subsection (b),” which concerns “allowed administrative expenses;” and section 503(c)(2) expressly references severance pay to insiders. See 11 U.S.C. § 503(c); In re Dana Corp., 358 B.R. 567, 578 (noting that section 503(c) on its face limits the allowance and payment of administrative claims). In contrast, section 502(b) is captioned, “Allowance of claims or interests,” without reference to the priority of claims. Cf. 11 U.S.C. § 507(a)(3) (establishing priority of specific subsection of section 502(b)). Further, section 502(b)(7) concerns “employees,” and contemplates damages arising from “termination” of an employment contract. Therefore, the Court interprets the two provisions as not allowing an administrative claim for severance pay unless it meets the requirements of section 503(c)(2), while allowing at least the opportunity to argue that a claim may be asserted for the termination of the contract. The motion for the administrative claim is denied, but Walczyk may still file a claim for damages related to the rejection of the employment agreement, which will be capped by section 507(b)(7). Part II: The employment contract is rejected, as rejection is in the best interests of the estate. Section 365(a) governs the assumption or rejection of “any executory contract or unexpired lease” of the Debtor. The significance of rejection of an executory contract is that it not only relieves the estate of burdensome future obligations but it also gives rise to a prepetition general unsecured claim for damages rather than an administrative expense priority. 299The option to assume or reject is limited to contracts that are executory. Although not defined by the Code, the definition proffered by Professor Vern Countryman is widely accepted, to wit, a contract is executory for purposes of applying section 365 if the “obligations of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other.” In re Spectrum Info. Techs., 193 B.R. 400, 403-404 (Bankr.E.D.N.Y.1996) (citations omitted). The Second Circuit has not adopted the Countryman definition of an executory contract; it has characterized such a contract as one on which performance remains due to some extent on both sides. In re Penn Traffic Co., 524 F.3d 373 (2d Cir.2008) (citing Eastern Air Lines, Inc. v. Ins. Co. of Pa. (In re Ionosphere Clubs, Inc.), 85 F.3d 992, 998-99 (2d Cir.1996)). Executoriness normally is measured as of the petition date, yet post-petition events may occur that render an executory contract non-executory. In re Penn Traffic Co., 524 F.3d at 381. “The standard to be applied [to whether an ex-ecutory contract should be rejected] hinges on the exercise of the debtor’s business judgment.” In re Child World, 147 B.R. 847, 850 (Bankr.S.D.N.Y.1992). Employment contracts that are terminated post-petition present a special challenge for Second Circuit courts, as severance pay is awarded high priority, and rejection damages are treated as general unsecured claims. Compare Straus-Duparquet, Inc. v. Local Union No. 3, IBEW, 386 F.2d 649 (2d Cir.1967) (granting administrative status to severance pay) with 11 U.S.C. § 365(g)(1) (stating that rejection of a contract constitutes a breach immediately before the filing date). On a motion to reject a terminated employment contract, courts focus their analyses on whether the contract is “executory” for purposes of section 365(a). In In re Spectrum Information Technologies, Inc., 193 B.R. 400 (Bankr.E.D.N.Y.1996), Debtor hired a president for one of its subsidiaries, about eight months before the subsidiary stopped doing business and filed its own bankruptcy case. After the subsidiary filed its bankruptcy, Debtor and the president continued the employment, with the president helping the Debtor with other aspects of its businesses. About two months after the Debtor and the subsidiary commenced their cases, the president was terminated, with several months yet remaining under the employment agreement. Subsequently, the Debtor moved to reject the employment contract. The bankruptcy court determined that the contract was not executory, as the only remaining obligation was the Debtor’s obligation to pay the president severance. Regarding the priority of the claim for severance pay, the court noted, “employment-related benefits such as severance and vacation pay have been deemed to be forms of ‘wages’ which may be entitled to administrative expense priority if incurred during the administration of a bankruptcy case.” Id. at 405. See also In re CPC Health Corp., 81 Fed.Appx. 805 (4th Cir.2003) (affirming denial of motion for rejection damages, as termination of employee ended employee’s obligation to perform); but see In re Child World, 147 B.R. 847, 852 (Bankr.S.D.N.Y.1992) (holding that terminated employment contracts were ex-ecutory and stating that “[t]he debtor is obligated under the contracts to make salary continuation payments and the employees are required to release the debtor of all claims for compensation and to use their best efforts to seek suitable employment in mitigation of the compensation to which they are entitled.”). 300“[T]he Second Circuit holds that the right to severance pay arises on the date of termination and that the entire amount is entitled to administrative expense priority under section 507(a).” In re Spectrum Information Technologies, Inc., 193 B.R. at 405 (citing In re W.T. Grant Co., 620 F.2d 319 (2d Cir.) cert. denied, 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980)). The Spectrum court allowed the full amount of severance pay as an administrative claim: By seeking Marchione’s continued employment post-petition, Spectrum received the benefits of his expertise and services during the administration of the estate. Although Marchione was duly paid for his services, under the terms of the Employment Agreement, the value of the benefits conferred by Marchione included the indirect compensation of severance payments which, as suggested by the Second Circuit, is intended to compensate employees for the hardships attributable to termination and is earned when the employee is dismissed. Spectrum, 193 B.R. at 407. But see Trustees of Amalgamated Ins. Fund v. McFarlin’s, Inc., 789 F.2d 98 (2d Cir.1986) (holding “withdrawal liability” regarding union pension and benefit plans was a general unsecured claim; the liability arose during a pre-petition period based on the consideration of the employees’ labor in that time, and therefore could not be said to have been incurred for the benefit of the estate’s creditors). Walczyk cites Spectrum for the proposition that employee-related benefits such as severance and vacation pay have been deemed wages that may be entitled to administrative priority under section 503(b)(1)(A) if incurred during the administration of a bankruptcy case. Bankruptcy courts in this district sometimes apply the “functional approach” in determining whether a contract may be rejected under section 365. “Under the functional approach the issue is not whether or not the contract is executory but rather whether or not the estate will benefit from the assumption or rejection of the contract.” In re Child World, 147 B.R. at 851. In In re Drexel Burnham Lambert Group, Inc., 138 B.R. 687 (Bankr.S.D.N.Y.1992) (Conrad, Bankr. J.), the court rejected a strict application of the Countryman test for “executoriness,” and held that an executive who had been terminated post-petition was not entitled to “severance pay” pursuant to the employment contract. The court parsed the reasoning underlying the Countryman definition and subsequent scholarship, and determined that the purpose of the trustee’s power to assume or reject executory contracts is to bring benefit to the estate. See, e.g., id. at 704 (“The material breach test is Countryman’s effort to ensure that the trustee’s right to assume or reject is indeed an option to be exercised when it will benefit the estate and which does not extend to situations where the only effect of its exercise would be to prejudice other creditors of the estate.”) (citation omitted). The court adopted a four-part analysis: 1. the trustee determines whether the contract gives to the non-Debtor party an enforceable interest in property of the Debtor that has passed to the estate, such as a security interest; 2. the trustee determines whether any such interest is avoidable under the trustee’s avoiding powers; 3. If there is no interest as is described in No. 2, or if it is avoidable, then the trustee will determine whether the estate will benefit more from breach and payment of the claim in “tiny Bankruptcy Dollars” (a general unsecured claim) or by performance; 3014. If the non-Debtor party has an unavoidable interest, the trustee must determine whether the estate will benefit most from breach or performance. Id. at 709. If the Court were to apply the “functional” approach adopted by the Drexel Burn-ham court, “breach” of Walczyk’s contract would be in the best interest of the estate. Walczyk has filed an administrative claim for the severance pay; he has not argued that he has any interest in property of the Debtor that passed to the estate. The trustee has determined that breach would be better than performance, as Walczyk’s services are not required by these estates. The criticism of the Drexel Burnham reasoning is that it minimizes the statutory limitation of section 365 to contracts that are “executory.” See Child World, 147 B.R. at 851. If only executory contracts may be rejected, then it follows that there must be “non-executory” contracts that are beyond the scope of section 365. In the matter at bar, the California conservator terminated Walczyk, and the parties agree that such an act is within his authority. As a result, Walczyk does not owe any further performance to the Debtors. Therefore, under the Countryman definition, the employment contract is not execu-tory. In a district that follows both the Countryman test and the functional approach, see In re Child World, 147 B.R. at 852 and In re WorldCom, Inc., 2010 WL 2465362 at 5 (Bankr.S.D.N.Y. June 11, 2010), the Court holds that the functional approach should be applied to allow the rejection of the present employment contract. The severance benefit in the matter at bar is more similar to Drexel Burnham than Spectrum, and, in a post-BAPCPA world, the outcome of Drexel Burnham is more easily reconciled to section 503(c)(2)’s limitation on insiders’ severance pay. As discussed in Part I, the Bankruptcy Code simply forbids Walczyk an administrative claim for the severance pay, and limits all damages arising from the termination of the employment contract. Much of the authority concerning rejecting executives’ contracts — and the attendant effect on the executives’ claims — pre-dates section 503. Nowadays, the question is less about the status of the contract and more about defining the employee’s claim — if the employee has been terminated and cannot be paid a contractual benefit, then how does the debtor dispose of the contract and define the employee’s claim? The riddle is solved by rejection pursuant to section 365, the Code’s mechanism for eliminating contracts that are burdensome to the estate, authorized by the functional approach to executoriness. See In re Child World, 147 B.R. at 852 (“Rejection is not the equivalent of rescission because rejection under 11 U.S.C. § 365(a) simply means that the court will permit the debtor to breach the contract, with the result that the contractual obligations will be reduced to general unsecured claims for prepetition damages pursuant to 11 U.S.C. § 365(g)(1).”). Further, while the parties do not dispute the California conservator’s authority to terminate Walczyk, the termination was not performed by an officer of these bankruptcy estates, and was not done in the exercise of the Debtors’ business judgment. The conservator’s act has deprived the Debtors of an officer and resulted in a claim against their estates. These decisions are usually made by debtors-in-possession, as part of the overall strategy of the bankruptcy. Indeed, in AppliedTheory, the executives performed significant work related to the bankruptcy before their contracts were rejected. See In re AppliedTheory Corp., 312 B.R. at 233-34. In the matter at bar, in light of the amorphous relationship between the Debtors and Majestic Insurance, and the entangle*302ment of the claims allowance process of the bankruptcies with the conservation proceeding, it is imperative that the autonomy of the present estates be maintained. The Court grants the motion to reject, as it represents a decision made by the Debtors in their business judgment that the contract should not be assumed. See In re Old Carco LLC, 406 B.R. 180, 193 (Bankr.S.D.N.Y.2009) (stating rule that court’s inquiry was limited to whether the rejection will benefit the debtor’s estate, under the business judgment standard). CONCLUSION Walczyk’s motion for an administrative claim for “severance” pay is denied, as it does not meet the requirements of section 503(c)(2). The Court grants Debtors’ motion to reject the contract, as to hold otherwise would thwart the policies of the Bankruptcy Code and circumvent the goal of section 365 — that a debtor should be relieved of burdensome agreements of no value to the estate.	01-04-2023	11-22-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488307/	IN THE SUPREME COURT OF THE STATE OF DELAWARE DERRICK J. SMITH, § § No. 306, 2022 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1101020846 (N) STATE OF DELAWARE, § § Appellee. § Submitted: October 26, 2022 Decided: November 18, 2022 Before VALIHURA, VAUGHN, and TRAYNOR, Justices. ORDER Upon consideration of the appellant’s opening brief, the appellee’s motion to affirm, and the record below, it appears to the Court that: (1) The appellant, Derrick J. Smith, filed this appeal from the Superior Court’s denial of his motions for correction of illegal sentence and for reargument thereof. The State has moved to affirm the judgment below on the ground that it is manifest on the face of Smith’s opening brief that his appeal is without merit. We agree and affirm. (2) In July 2011, Smith pleaded guilty to possession of a firearm during the commission of a felony (“PFDCF”) and attempted first-degree assault. The charges arose from an incident on January 29, 2011, during which Smith fired a gun at a police officer several times during a foot chase. The Superior Court sentenced Smith in September 2011 to twenty-five years of imprisonment for PFDCF and to twenty- five years of imprisonment, suspended after five years for decreasing levels of supervision, for attempted first-degree assault. This Court affirmed on direct appeal.1 (3) Smith has filed numerous motions for postconviction relief or correction or reduction of sentence. At issue in this appeal are the Superior Court’s denial of a motion for correction of illegal sentence under Superior Court Criminal Rule 35(a) that Smith filed in July 2022 and the court’s denial of Smith’s motion for reargument. (4) We review the denial of a motion for correction of sentence under Rule 35(a) for abuse of discretion.2 To the extent the claim involves a question of law, we review the claim de novo.3 A sentence is illegal if it exceeds statutory limits, violates double jeopardy, is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by 1 Smith v. State, 2012 WL 1530849 (Del. Apr. 30, 2012). The Superior Court later determined that Smith should have received no more than twenty years for the attempted first-degree assault offense because of an error on the plea paperwork and resentenced Smith accordingly for that offense. This Court affirmed. Smith v. State, 2014 WL 1017277 (Del. Mar. 13, 2014). 2 Fountain v. State, 2014 WL 4102069, at 1 (Del. Aug. 19, 2014). 3 Id. 2 statute, is uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize.4 (5) Under the applicable version of 11 Del. C. § 1447A, the minimum- mandatory sentence for PFDCF was three years.5 For a class B violent felony such as PFDCF, the Sentencing Accountability Commission (“SENTAC”) guidelines established a presumptive sentence of up to five years.6 Smith asserts that his PFDCF sentence is illegal because the aggravating factors were insufficient to merit the upward departure from the SENTAC guidelines; the sentencing judge did not sufficiently explain the enhancement, as required by 11 Del. C. § 4204(n);7 the sentencing judge sentenced Smith with a closed mind; and the sentence was disproportionate compared to the sentences imposed on others for the same offense. (6) The appeal is without merit. As an initial matter, Smith filed the motion for correction of illegal sentence more than ten years after the imposition of sentence. This Court has previously construed a motion for sentence correction based on the sentencing judge’s failure to explain the reasons for departing from the SENTAC guidelines as a claim that the sentence was imposed in an illegal manner that must 4 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 5 11 Del. C. § 1447A(b) (effective July 9, 2001, to May 23, 2018). 6 SENTAC Benchbook 2011, at 31, 32, 35, available at https://courts.delaware.gov/superior/ pdf/benchbook_2011.pdf. We refer to the 2011 version of the Benchbook because Smith was sentenced for PFDCF in 2011. Gibson v. State, 2020 WL 7213227, at 1 n.1 (Del. Dec. 3, 2020). 7 See 11 Del. C. § 4204(n) (effective May 31, 2003, to present) (“Whenever a court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing Accountability Commission, such court shall set forth on the record its reasons for imposing such penalty.”). 3 be raised within ninety days of sentencing.8 Absent extraordinary circumstances, which Smith has not identified, his motion was untimely. (7) In any event, Smith’s arguments are unpersuasive. This Court has held that “a sentence is not illegal simply because it exceeds the SENTAC guidelines.”9 Section 4204(n) provides that “[w]henever a court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing Accountability Commission, such court shall set forth on the record its reasons for imposing such penalty.”10 In this case, the sentencing transcript reflects that the court identified undue depreciation of the offense and the fact that Smith was on probation at the time of the offense as aggravating factors.11 The court also emphasized the serious risk of death that Smith created by firing a gun at a police officer and its desire to deter such conduct in the future.12 Thus, the court sufficiently explained on the record its reasons for the sentence that it imposed.13 Moreover, as the Superior Court correctly observed, this Court previously determined that the Superior Court 8 Richmond v. State, 2022 WL 2276282, at 2 (Del. June 22, 2022). 9 Id. 10 11 Del. C. § 4204(n); see also Gibson, 2020 WL 7213227, at 2 (stating that Section 4204(n) “imposes a statutory duty upon a sentencing judge to state on the record the reasons for any sentence that falls outside the SENTAC presumptive sentence”). 11 Smith v. State, Crim. ID No. 1101020846, Sentencing Transcript at 13 (Del. Super. Ct. Sept. 30, 2011). 12 Id. at 11-12. 13 Cf. Lloyd v. State, 2022 WL 4372760, at 3 (Del. Sept. 22, 2022) (affirming denial of motion to correct illegal sentence because sentencing judge had sufficiently explained upward departure from SENTAC guidelines). 4 properly found aggravating factors; held that “[w]hile harsh, [Smith’s] sentence was within the statutory limits;” and rejected Smith’s claim that the sentencing judge imposed the sentence with a closed mind.14 Finally, Smith’s claim that his sentence is disproportionate compared to the sentences imposed on others does not “give rise to a cognizable claim under Rule 35(a).”15 NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED and the judgment of the Superior Court is AFFIRMED. BY THE COURT: /s/ James T. Vaughn, Jr. Justice 14 Smith v. State, 2012 WL 1530849, at 1 (Del. Apr. 30, 2012). 15 Williams v. State, 2012 WL 5844891, at *1 (Del. Nov. 16, 2012). 5	01-04-2023	11-21-2022
https://www.courtlistener.com/api/rest/v3/opinions/8488309/	IN THE SUPREME COURT OF THE STATE OF DELAWARE IN THE MATTER OF THE ESTATE § OF THOMAS E. ARCHIE, § No. 101, 2022 DECEASED JANUARY 31, 2018 § § Court Below—Court of § Chancery of the State of § Delaware § § C.A. 2020-0691 Submitted: October 14, 2022 Decided: November 18, 2022 Before VALIHURA, VAUGHN, and TRAYNOR, Justices. ORDER After consideration of the parties’ briefs and the record on appeal, we conclude that the judgment below should be affirmed on the basis of the Court of Chancery’s order, entered February 23, 2022 (the “Final Judgment”). The Final Judgment denied the appellant’s exceptions to, and adopted, a Master in Chancery’s Final Report, issued October 26, 2021, which granted the appellees’ motion to dismiss their own petition under Court of Chancery Rule 41(a)(2), in the absence of any properly pleaded counterclaims. NOW, THEREFORE, IT IS ORDERED that judgment of the Court of Chancery is AFFIRMED. BY THE COURT: /s/ James T. Vaughn, Jr. Justice	01-04-2023	11-21-2022

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