url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8481147/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Rockett, III, seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2010) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certifícate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Rockett has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Rockett’s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. United States v. Wines-tock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h). Rockett’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
Finally, we deny Rockett’s motion to seal and motion to subpoena or submit witness statements. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481148/ | *853Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Gadson appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Gadson, No. 4:01-cr-00817-CWH-1 (D.S.C. May 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481152/ | PER CURIAM: *
The attorney appointed to represent Omar Hernandez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hernandez has responded by filing a motion for appointment of new counsel. Our independent review of the record, counsel’s brief, and Hernandez’s motion discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from *910further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Hernandez’s motion for appointment of new counsel is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481153/ | PER CURIAM: *
Reginald Dwain Hart, federal prisoner # 15300-180, seeks leave to proceed in for-ma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on amendments to the Sentencing Guidelines for crack cocaine. He pleaded guilty to distribution of crack cocaine and was sentenced as a career offender under U.S.S.G. § 4B1.1 to 151 months in prison. By moving to proceed IFP, Hart is challenging the district court’s certification decision that his appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997).
On appeal, Hart argues that he is entitled to resentencing under Amendment 706 to the Guidelines. His guidelines imprisonment range was not derived from the quantity of crack cocaine involved in the offense but rather from his status as a career offender. Therefore, the district court was correct in concluding that a sentencing reduction was not permitted. See § 3582(c)(2); United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir.2009).
Additionally, Hart challenges his status as a career offender. A § 3582(c)(2) motion may not be used to challenge a district court’s calculation of an original sentence or to contest the appropriateness of the sentence. United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995). Thus, Hart’s challenges to his status as a career offender are not cognizable in a § 3582(c)(2) motion. See id.
Next, Hart argues that because the Sentencing Guidelines are no longer mandatory in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing judge was entitled to disagree with the career offender provisions and could have imposed a lower sentence. He maintains that the district court failed to consider the 18 U.S.C. § 3553(a) factors and failed to provide reasons for the sentence imposed. Booker does not apply to sentence reductions under § 3582(c)(2) because such proceedings are not full resentencings. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, — - U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009); see also Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-94, 177 L.Ed.2d 271 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings).
Hart has failed to show that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5th Cir. R. 42.2. Hart’s motion for the appointment of counsel is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481193/ | 83412: Case View
Nevada
Appellate Courts
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
Cases
Case Search
Participant Search
22-34523: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 83412
Short Caption:MUELLER VS. HINDS C/W 84077Court:Supreme Court
Consolidated:83412*, 84077Related Case(s):84077
Lower Court Case(s):Clark Co. - Eighth Judicial District - D571065Classification:Civil Appeal - Family Law - Other
Disqualifications:Case Status:Disposition Filed
Replacement:Senior Justice Gibbons for Justice GibbonsPanel Assigned:
Panel
To SP/Judge:SP Status:Exempt
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
Expedited
+
Party Information
RoleParty NameRepresented By
AppellantCraig Allen MuellerMichael J. Mcavoyamaya
(McAvoy Amaya & Revero, Attorneys)
Timothy E. Revero
(McAvoy Amaya & Revero, Attorneys)
RespondentCristina A. HindsLorien K. Cole
(Willick Law Group)
Marshal S. Willick
(Willick Law Group)
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
08/24/2021Filing FeeFiling Fee due for Appeal. (SC)
08/24/2021Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (SEALED) (SC)
08/24/2021Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 10 days. (SC)21-24668
08/25/2021Filing FeeE-Payment $250.00 from Michael J. Mcavoyamaya. (SC)
08/25/2021Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. Docketing Statement mailed to counsel for appellant - due: 21 days. (SC)21-24798
08/30/2021Settlement NoticeIssued Notice: Exemption from Settlement Program. It has been determined that this appeal will not be assigned to the settlement program. Appellant: 14 days transcript request form; 120 days opening brief. (SC)21-25217
08/30/2021Docketing StatementFiled Appellant's Docketing Statement Civil. (SC)21-25271
09/15/2021Transcript RequestFiled Request for Transcript of Proceedings. Transcripts requested: All of May. To Court Reporter: Unknown. (REJECTED PER NOTICE FILED ON 9/15/21) (SC)
09/15/2021Notice/OutgoingIssued Notice of Deficient Transcript Request. (SC)21-26750
09/15/2021MotionFiled Appellant's Motion to Extend Time to File Request for Transcripts. (SC)21-26771
09/20/2021Notice of Appeal DocumentsFiled Addendum to NOA Packet Submitted 08/18/2021 (SEALED). (SC)
09/21/2021Order/ProceduralFiled Order Regarding Motion. Appellant shall have 14 days from the date of this order to file a transcript request form or a certificate of no transcript request. Appellant may also provide this court with a certified copy of the sound recording as part of the appendix. (SC).21-27286
09/28/2021Transcript RequestFiled Certificate of No Transcript Request. (SC)21-27946
10/06/2021Order/ProceduralFiled Order Amending Briefing Schedule. Appellant shall have 40 days from the date of this order to file and serve the fast track statement and appendix. Thereafter, briefing shall proceed in accordance with the provisions in NRAP 3E(d). (SC)21-28716
11/15/2021Fast Track BriefFiled Appellant's Fast Track Statement. (SC)21-32803
11/15/2021AppendixFiled Appellant's Appendix to Fast Track Statement. Vols. 1-3. (REJECTED PER NOTICE ISSUED ON 11/16/21) (SC)
11/16/2021Notice/OutgoingIssued Notice of Rejection of Deficient Appendix. Corrected appendix due: 5 days. (SC)21-32830
11/17/2021Notice/IncomingFiled Respondent's Notice of Child Custody. (SC)21-33063
11/17/2021Notice/IncomingFiled Appellant's Notice in Response. (SC)21-33071
11/19/2021Order/ProceduralFiled Order. The parties have informed this court that, in fact, they are only litigating financial issues and the appeal does not involve child custody. Because the fast track statement and appendix have already been filed, and because there is a challenge to the original divorce decree, which does involve custody, the parties are directed to continue with briefing in accordance with NRAP 3E. Respondent shall have 21 days from the date of this order to file and serve the fast track response. (SC)21-33401
11/29/2021AppendixFiled Appellant's Appendix to Fast Track. Vol. 1 Part 1. (SC)21-34006
11/29/2021AppendixFiled Appellant's Appendix to Fast Track Statement. Vol.1 Part 1. (SC)21-34007
11/29/2021AppendixFiled Appellant's Appendix to Fast Track Statement. Vol.2. Part 1. (SC)21-34008
11/29/2021AppendixFiled Appellant's Appendix to Fast Track Statement. Vol.2 Part. 2 (SC)21-34009
11/29/2021AppendixFiled Appellant's Appendix to Fast Track Statement. Vol. 3. (SC)21-34010
12/08/2021Order/Clerk'sFiled Order Granting Extension Per Telephonic Request. Respondent's fast track response due: December 17, 2021. (SC)21-34970
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 1. (SC)21-36110
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 2. (SC)21-36112
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 3. (SC)21-36113
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 4. (SC)21-36115
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 5. (SC)21-36114
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 6. (SC)21-36116
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 7. (SC)21-36118
12/17/2021AppendixFiled Respondent's Appendix to Fast Track Response. Vol. 8. (SC)21-36117
12/17/2021Fast Track BriefFiled Respondent's Fast Track Response. (SC)21-36119
01/21/2022MotionFiled Appellant's Motion for Leave to Remove Case From Child Custody Fast Track Program. (SC)22-02213
01/21/2022MotionFiled Respondent's Non-Opposition to Consolidation; Opposition to Further Briefing of First Appeal. (SC)22-02261
01/24/2022MotionFiled Appellant's Reply In Support of Motion for Leave to Remove from Fast Track Program and Consolidate. (SC)22-02363
01/28/2022Order/ProceduralFiled Order. The motion to remove the appeal in Docket No. 83412 from the fast track is granted. Appellant shall have 45 days from the date of this order to file and serve an opening brief that complies with NRAP 28(a) and NRAP 32. Appellant need not file a new appendix or supplemental request for transcripts unless deemed necessary. Because the appeal in Docket No. 84077 has been referred to this court's settlement program, Mueller's request to consolidate these appeals is denied without prejudice. Nos. 83412/84077. (SC)22-03000
02/02/2022MotionFiled Appellant's Motion to Consolidate Related Appeals. Case No. 83412 and 84077. (SC)22-03467
02/09/2022MotionFiled Respondent's Non-Opposition to Motion to Consolidate With Related Appeal and Request for Briefing Schedule. (SC)22-04468
02/16/2022Order/ProceduralFiled Order Consolidating Appeals. These appeals shall be consolidated for all appellate purposes. Appellant shall have until March 14, 2022, to file and serve a combined opening brief that addresses all issues. Nos. 83412/84077. (SC)22-05178
02/24/2022Order/ProceduralFiled Order Amending Briefing Schedule. These appeals shall proceed on a parallel briefing schedule. Each appellant shall have until March 14, 2022, to file and serve an opening brief. fn1[Appellant in 83412 has filed an appendix in that appeal. If deemed necessary, within the same time period, appellant may file a supplemental appendix. Within the same time period, appellant in 84077 shall file an appendix containing any necessary documents not already included in the appendix filed in 83412.] Nos. 83412/84077. (SC)22-06094
03/14/2022BriefFiled Appellant's Opening Brief (84077). Nos. 83412/84077 (SC)22-08075
03/14/2022AppendixFiled Supplemental Appendix - Volume IX (84077). Nos. 83412/84077(SC)22-08078
03/14/2022BriefFiled Appellant's Opening Brief. (83412) Nos. 83412/84077. (SC)22-08087
03/14/2022AppendixFiled Appellant's Supplemental Appendix. (83412) Nos. 83412/84077. (REJECTED PER NOTICE ISSUED ON 3/15/22) (SC)
03/14/2022AppendixFiled Appellant's Certificate of Service Hearing Videos. (83412) Nos. 83412/84077. (SC)22-08092
03/15/2022Notice/OutgoingIssued Notice of Rejection of Deficient Appendix. Corrected appendix due: 5 days. (SC)22-08116
03/15/2022AppendixFiled Appellant's Supplemental Appendix. (83412) Nos. 83412/84077. (SC)22-08220
04/04/2022BriefFiled Respondent's Answering Brief. (83412) Nos. 83412/84077. (SC)22-10421
04/12/2022BriefFiled Respondent's Answering Brief (84077). Nos. 83412/84077 (REJECTED PER NOTICE ISSUED 4/12/22) (SC)
04/12/2022Notice/OutgoingIssued Notice of Rejection of Filed Document (Answering Brief - 84077). Nos. 83412/84077 (SC)22-11566
04/12/2022BriefFiled Respondent's Answering Brief (84077). Nos. 83412/84077 (SC)22-11588
05/04/2022BriefFiled Appellant's Reply Brief (83412) Nos. 83412/84077. (SC)22-14163
05/05/2022BriefFiled Respondent's Reply Brief. (84077) Nos. 83412/84077 (SC)22-14446
05/06/2022Case Status UpdateBriefing Completed/To Screening. Nos. 83412/84077 (SC)
09/15/2022Order/DispositionalFiled Order Affirming in Part, Reversing in Part and Remanding. "ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order." fn7[The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment.] Nos. 83412/84077. (SC)22-28925
09/19/2022MotionFiled Respondent's Motion to Publish as an Opinion the Order Affirming in Part, Reversing in Part and Remanding Filed September 15, 2022. Nos. 83412/84077. (SC)Y22-29269
10/03/2022Filing FeeFiling Fee Paid. $150.00 from Michael McAvoyAmaya. E-Payment Ref. no. 22100339379971. Nos. 83412/84077. (SC)
10/03/2022Post-Judgment PetitionFiled Appellant's Petition for Rehearing. Nos. 83412/84077. (SC)22-31186
11/03/2022Post-Judgment OrderFiled Order Granting Rehearing. Having Considered the petition for rehearing, we have determined that rehearing of this matter is warranted. Accordingly, we grant the petition for rehearing. An amended order will be issued forthwith. Nos. 83412/84077 (SC)22-34515
11/03/2022Order/DispositionalFiled Order Affirming in Part, Reversing in Part and Remanding. "ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order." fn7 [The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment.] RP/EC/MG. Nos. 83412/84077 (SC)22-34523
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481154/ | PER CURIAM: *
Jose Luis Rodriguez Martinez (Rodriguez) appeals the sentence imposed following his conviction for illegal reentry after deportation under 8 U.S.C. § 1326. Rodriguez contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction for sexual assault of a child, which is a violation of Texas Penal Code *920§ 22.011(a)(2). He argues that this conviction does not constitute the enumerated offense of sexual abuse of a minor or statutory rape under the Guidelines because an offense under § 22.011 can be committed against a victim who is only 16 years of age. Rodriguez concedes that his argument is foreclosed and moves for summary affirmance to preserve the issue for appeal.
As Rodriguez concedes, his argument is foreclosed by United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 649, 175 L.Ed.2d 496 (2009). Accordingly, his motion for summary affirmance is GRANTED and the judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481156/ | PER CURIAM.*
The attorney appointed to represent Yolanda McDow has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). McDow has filed a response. Our independent review of the record, counsel’s brief, and McDow’s response discloses no nonfrivo-lous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481157/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juan Francisco Castillo Munguia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Castillo Munguia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481158/ | PER CURIAM: *
The Federal Public Defender appointed to represent Benigno Cavazos-Quintanilla has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cavazos-Quintanilla has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481159/ | PER CURIAM: *
Defendant-Appellant Eric Gray, a Texas State Trooper, appeals the district court’s denial of his motion for summary judgment in Plaintiff-Appellee Kevin Wayne Schmidt’s 42 U.S.C. § 1983 action against Gray for use of excessive force. We affirm in part and dismiss in part.
I. FACTS & PROCEEDINGS
Gray stopped Schmidt because his license plate was not visible. Gray smelled alcohol on Schmidt, so he asked him to exit the car. After administering sobriety tests, Gray concluded that Schmidt was intoxicated, arrested him, and placed him in the front passenger seat of the patrol car. Schmidt then informed Gray that he needed medications from his car because *926he suffered from a number of illnesses, including AIDS. While Gray was retrieving those medications, Schmidt began to have difficulty breathing and spit mucus into an empty paper cup in the patrol car. When Gray returned, Schmidt told him about spitting into the cup, after which Gray became upset that Schmidt had spread his bodily fluids in the patrol car. Gray called for a deputy sheriff who was driving a patrol car with a protective divider so that Schmidt could be taken to jail in it because Gray was worried that Schmidt would spit on him and infect him. While waiting for that car, Gray walked Schmidt to the rear of Gray’s patrol car. At some point, Gray closed the trunk lid, which had been left open, slamming it on Schmidt’s thumb.
Schmidt alleges that Gray intentionally slammed the trunk lid on his thumb in retaliation for Schmidt’s spitting in the cup. Gray counters that he did not notice Schmidt’s hand near the trunk lid and that closing it on Schmidt’s thumb was an accident.
Schmidt filed suit against Gray, asserting claims under the Americans with Disabilities Act (ADA) and § 1983.1 Gray filed a motion for summary judgment seeking qualified immunity. The district court granted Gray’s motion as to Schmidt’s ADA claims and as to those of his § 1983 claims based on denial of medical treatment and conspiracy, but denied Gray’s motion as to Schmidt’s § 1983 claim based on use of excessive force, ruling that a genuine issue of fact exists as to whether Gray injured Schmidt intentionally.
Gray appealed, asserting that the district court erred (1) in ruling that the harm to Schmidt’s thumb constituted more than a de minimis injury; (2) in holding as a matter of law that Gray’s conduct was not objectively reasonable, in violation of the Fourth Amendment; and (3) in accepting Schmidt’s version of the facts that Gray’s conduct was intentional despite the patrol car video.2
II. ANALYSIS
A. Jurisdiction
“The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine ‘to the extent that it turns on an issue of law.’ ”3 We interpret *927a district court’s denial of qualified immunity as comprising “two distinct determinations, even if only implicitly”: (1) that the state actor’s conduct “would, as a matter of law, be objectively unreasonable in light of clearly established law”; and (2) that “a genuine issue of fact exists regarding whether the [state actor] did, in fact, engage in such conduct.”4 “According to the Supreme Court, as well as our own precedents, we lack jurisdiction to review conclusions of the second type on interlocutory appeal.”5 When we review determinations of the first type, however, “we ignore the disputes of fact, take those facts assumed by the district court in a light most favorable to [the non-movant], and determine whether under those facts [the non-movant] has stated a claim under clearly established law.”6
In short, we have jurisdiction to entertain this appeal, but only to the extent that it concerns the “purely legal question” whether Gray is entitled to qualified immunity “on the facts that the district court found sufficiently supported in the summary judgment record.”7
B. Standard of Review
“We review de novo the scope of clearly established law and the objective reasonableness of the defendant government official’s actions.”8 Nonetheless, we “consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment.”9
C. Qualified Immunity
Gray’s first two claims on appeal attack the district court’s qualified immunity analysis. “Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from civil liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”10 Therefore, once a state actor invokes the defense of qualified immunity, the court must conduct a two-prong test to determine whether the movant is entitled to such immunity: “First, we assess whether a statutory or constitutional right would have been violated on the facts alleged .... [Second,] we determine whether the defendant’s actions violated clearly established statutory or constitutional rights of which a reasonable person would have known.”11
*928Schmidt alleged that Gray violated his Fourth Amendment right to be free from unreasonable seizures. To maintain a § 1988 claim for excessive force, Schmidt had to show that he was seized and that he “suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” 12 There is no dispute that Schmidt was seized, but Gray asserts on appeal that the injury was de minimis and therefore legally insufficient to support a Fourth Amendment claim of excessive force.
The injury necessary to support such a claim “must be more than a de minimis injury and must be evaluated in the context in which the force was deployed.”13 We have recognized, however, that even insignificant injuries may “qualify as a cognizable injury when the victim is maliciously assaulted by a police officer.” 14 “What constitutes an injury in an excessive force claim is therefore subjective — it is defined entirely by the context in which the injury arises.”15
At the time of Schmidt’s alleged injury, he was not attempting to flee or resist Gray’s arrest; he was merely standing next to the patrol car as Gray had instructed him to do. When we accept Schmidt’s factual assertions as true — that Gray intentionally leaned him against the car and then maliciously slammed the trunk lid on his finger in retaliation against Schmidt and not for any law enforcement purposes — the resulting pain, soreness, and bruising, combined and in context, qualify as a legally cognizable injury. The district court found that “the pain resulting from having one’s thumb slammed in a car’s trunk could be at least as intense as the pain resulting from a kick or a temporary chokehold, and possibly comparable to that caused by a cattle prod.”16 As that finding is not clearly erroneous, we affirm the district court’s holding that the alleged injury is sufficient to support a claim of excessive force.
Completing our excessive force analysis, we conclude that the second element is satisfied because the injury unquestionably resulted from Gray’s use of force. For the third element, given that neither party contends that any use of force was necessary against Schmidt at the time, Gray’s use of force was objectively unreasonable under the nonviolent, nonresistant circumstances of Schmidt’s arrest.17 In sum, Schmidt pleaded facts that are legally sufficient to maintain a § 1983 claim for use of excessive force.
Lastly, we address the second prong of the qualified immunity analysis and Gray’s claim that a reasonable person would not *929have believed that his “mistaken” actions violated the Fourth Amendment.18 At the time of this incident, it was clearly established that Schmidt had a constitutional right to be free from excessive force during an investigatory stop or arrest.19 Gray insists that the injury was accidental and that he reasonably believed that he acted in compliance with the Fourth Amendment.20 The facts alleged by Schmidt that we accept on appeal, however, are not that Gray accidentally slammed the trunk door on Schmidt’s thumb, but that Gray did so intentionally. As it is not clear as a matter of law that, under Schmidt’s version of the facts, Gray’s conduct was objectively reasonable, we affirm the district court’s denial of qualified immunity to Gray.
D. Genuine Issue of Fact
Gray maintains on appeal that the district court erred in accepting Schmidt’s version of the facts that allege Gray’s conduct was intentional. Gray contends that Schmidt’s allegations are “implausible” and “blatantly contradicted” by his patrol car’s video.21 In its review of Gray’s qualified immunity defense, however, the district court found that “Plaintiff has created a fact issue as to ... whether Gray intended to slam the trunk on Plaintiffs thumb.”22 Gray fails to accept that, when “the district court has determined that there are genuine disputes raised by the evidence, we assume plaintiffs version of the facts is true, then determine whether those facts suffice for a claim of excessive force under these circumstances.”23 As “this court lacks jurisdiction to review the court’s determination that a genuine fact issue exists,” 24 we must dismiss Grey’s interlocutory appeal of this claim.
III. CONCLUSION
For the foregoing reasons, we conclude as a matter of law that Schmidt alleged an injury sufficient to support his § 1983 excessive force claim and alleged conduct that a reasonable person would have known violated the Fourth Amendment. We accordingly AFFIRM the district court’s denial of Gray’s motion for summary judgment. We DISMISS Gray’s claim that the patrol car’s video disproves the existence of a genuine fact issue because we lack jurisdiction to review that determination of the district court.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The record on appeal shows that Schmidt originally filed suit against the State of Texas, the Texas Department of Public Safety (DPS), and Montgomery County Hospital District— EMS Division (EMS) in addition to Gray. The district court, however, dismissed Schmidt’s claims against the State of Texas and the DPS in an earlier order and dismissed the claims against EMS in granting its motion for summary judgment.
. Schmidt failed to file a response brief, but neither the Federal Rules of Appellate Procedure nor our circuit rules suggest that an appellee's failure to file a brief should have any effect on the appeal beyond the sanction provided in Federal Rule of Appellate Procedure 31(c) that "[a]n appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.” We agree with the position of other circuits that the courts should "decide the appeal on the appellant's brief alone when the appellee fails to file a brief.” Allgeier v. United States, 909 F.2d 869, 871 n. 3 (6th Cir.1990) (citing Instituto Nacional v. Cont’l Ill. Nat’l Bank, 858 F.2d 1264, 1270-71 (7th Cir.1988); United States v. Everett, 700 F.2d 900, 902-03 n. 5 (3d Cir. 1983)). See also Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1478 (9th Cir. 1992) ("The only sanction authorized by the Federal Rules of Appellate Procedure for an appellee's failure to file a timely brief is refusal to hear the appellee at oral argument. The limited nature of this sanction coincides with our duty to affirm the judgment on any ground fairly supported by the record.”) (citations omitted).
.Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir.2004) (quoting Mitchell v. Forsyth, *927472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.2004) (en banc).
. Id. (emphasis in original and citations omitted). Put another way, "we can review the materiality of any factual disputes, but not their genuineness.” Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir.2000) (emphases in original and citations omitted).
. Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996).
. Kinney, 367 F.3d at 347 (citing Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)).
. Flores, 381 F.3d at 394 (citing Thompson v. Upshur County, Tex., 245 F.3d 447, 456 (5th Cir.2001)).
. Kinney, 367 F.3d at 348 (citing Behrens, 516 U.S. at 313, 116 S.Ct. 834; Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).
. Flores, 381 F.3d at 393-94 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
. Id. at 395 (internal citation and quotation omitted).
. Id. at 396 (citing Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.2000)).
. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.1999)).
. Williams, 180 F.3d at 704.
. Id.
. R. at 487.
. See Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir.1998) ("To determine the objective reasonableness of [an officer’s] conduct, ... [w]e pay 'careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.’ ”) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
. Appellant's Br. at 22-23.
. See Graham, 490 U.S. at 393-94, 109 S.Ct. 1865.
. Appellant's Br. at 23.
. Id. at 18.
. R. at 487-88 ("The Court acknowledges Gray's claim that he closed the trunk on Plaintiff's fingers purely by accident. It is quite possible that, upon hearing Gray’s version of events, a jury will find that no malice was involved and that Plaintiff's injuries do not support an excessive force claim. The Court cannot, however, substitute its judgment for that of the jury
. Wagner, 227 F.3d at 320.
. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481160/ | PER CURIAM: *
The attorney appointed to represent Rogelio Gonzalez-Mendoza has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gonzalez-Mendoza has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cib. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481161/ | PER CURIAM: *
The Federal Public Defender appointed to represent Bertin Morales-Rivera has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Morales-Rivera has filed a response. Our independent review of the record, counsel’s brief, and Morales-Rivera’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481163/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Zavala-Molina has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Zavala-Molina has filed a response. To the extent Zavala-Molina is raising a claim of ineffective assistance of counsel, the record is insufficiently developed at this time to allow for its consideration; such claims generally “cannot be resolved on direct appeal when [they have] not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087,1091 (5th Cir.2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel’s brief, and Zavala-Molina’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481164/ | PER CURIAM: *
The attorney appointed to represent Jose Lino Cordova-Zuniga has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cordova-Zuniga has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481165/ | PER CURIAM: *
The attorney appointed to represent Mark David Cloud has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cloud has filed a response. Our independent review of the record, counsel’s brief, and Cloud’s response discloses no nonfriv-olous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Cloud’s motion for appointment of substitute counsel is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481166/ | PER CURIAM: *
Lawrence Darrell Mask, federal prisoner # 08536-078, appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the amendment of the crack cocaine Guidelines. Mask argues that the district court’s denial of his motion to reduce his sentence was contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Rita v. United States, 551 U.S. 338, 364, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Kimbrough v. United States, 552 U.S. 85, 108-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). He argues that 28 U.S.C. § 994 does not require courts to impose the statutory maximum sentence. Mask contends that the district court should have recalculated his advisory guidelines range in accord with Booker and without the two-level firearm enhancement; that the district court was free to disagree with the crack cocaine guidelines provision; and that the district court erred in not considering his postsentence rehabilitation.
Contrary to Mask’s argument, this court’s precedent forecloses his assertion that the career offender Guideline does not *947preclude a reduction of his sentence. See United States v. Anderson, 591 F.3d 789, 790 & n. 4, 791 & n. 8 (5th Cir.2009). His arguments based on Booker and its progeny are foreclosed by Dillon v. United States, — U.S. -, -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010), and United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). Further, Spears is distinguishable because it did not involve a § 3582(c)(2) motion. See Spears, 129 S.Ct. at 841-45.
Mask’s argument that the district court should have resentenced him without the two-level firearm enhancement is incorrect. A motion under § 3582(c)(2) “is not a second opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995). Therefore, this claim is not cognizable in a § 3582 motion. See United States v. Evans, 587 F.3d 667, 674 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010).
Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time in which to file a brief is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481169/ | USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 1 of 40
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2153
OLIVIA NEAL,
Plaintiff – Appellant,
v.
EAST CAROLINA UNIVERSITY,
Defendant – Appellee,
and
UNIVERSITY OF NORTH CAROLINA,
Defendant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:17-cv-00186-BR)
Argued: September 14, 2022 Decided: November 4, 2022
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion in which Judge King and
Judge Thacker joined.
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 2 of 40
ARGUED: Glenn A. Barfield, HAITHCOCK, BARFIELD, HULSE & KINSEY, PLLC,
Goldsboro, North Carolina, for Appellant. Vanessa N. Totten, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.
2
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 3 of 40
AGEE, Circuit Judge:
After East Carolina University (“ECU”) dismissed Olivia Neal from its School of
Social Work’s Master’s Degree program, Neal sued the university alleging that its decision
discriminated against her in violation of the Americans with Disabilities Act (“ADA”). See
42 U.S.C. § 12132; see also ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553. The district court disagreed and granted summary judgment to ECU based on
its conclusion that Neal failed to come forward with evidence creating a genuine issue of
material fact to support two elements of a prima facie case of discrimination. It determined
that the record did not show that (1) she was “otherwise qualified to participate in ECU’s”
program or (2) ECU dismissed her “on the basis of” her disability. Neal v. Univ. of N.C.,
No. 5:17-CV-186-BR, 2020 WL 5775145, at *6–7 (E.D.N.C. Sept. 28, 2020). Neal
challenges both grounds on appeal. For the reasons set forth below, we affirm the district
court’s judgment in favor of ECU.
I.
To begin we provide a brief overview of the law governing ADA discrimination
claims in the context of collegiate studies. Title II of the ADA prohibits public universities
such as ECU from excluding individuals from their programs “by reason of” their physical
or mental disabilities. 42 U.S.C. § 12132. Plaintiffs can prove their claim by pointing to
direct evidence of discrimination or, more commonly, by using the three-step analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This burden-
shifting analysis requires a plaintiff first to establish, by a preponderance of the evidence,
3
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 4 of 40
a prima facie case of discrimination. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,
252–53 (1981). Once a plaintiff meets that initial burden, the burden shifts to the defendant
to show that its decision was made “for a legitimate, nondiscriminatory reason,” and if that
hurdle is crossed, then the presumption of discrimination is rebutted and the burden returns
to the plaintiff to prove that the university’s proffered reason was pretext for
discrimination. Id. at 253.
To state a prima facie case of ADA discrimination in the context of a university’s
academic programs, a “plaintiff must establish that (1) [s]he has a disability, (2) [s]he is
otherwise qualified to participate in the defendant’s program, and (3) [s]he was excluded
from the program on the basis of h[er] disability.” Halpern v. Wake Forest Univ. Health
Scis., 669 F.3d 454, 461 (4th Cir. 2012) (footnote omitted).
As for the first element, a plaintiff has three paths of proving she has a disability. 42
U.S.C. § 12102(1). First, she can prove that she has “a physical and mental impairment that
substantially limits one or more major life activities” as those terms are further defined in
statutes and regulations. Id. Second, she can prove that she has “a record of such an
impairment.” Id. Or, third, she can prove that the defendant “regarded [her] as having such
an impairment.” Id.
The second element of the prima facie case—proving that the plaintiff is “otherwise
qualified” to participate in the program—requires her to show that she is someone “who,
with or without reasonable modifications to rules, policies, or practices, . . . meets the
essential eligibility requirements for participation in a program or activity.” Halpern, 669
F.3d at 462 (alteration in original) (citation omitted). Because courts are “particularly ill-
4
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 5 of 40
equipped to evaluate academic performance,” they generally afford “some level of
deference to schools’ professional judgments regarding students’ qualifications” for
participating in their academic programs. Id. at 463 (cleaned up).
The third element of the prima facie case is causation, and in the ADA context, the
Court has held that proving discrimination “on the basis of” disability “requires only that
the disability was ‘a motivating cause’ of the” university’s decision. Id. at 462 (emphasis
added).
II.
With this baseline for understanding Neal’s claim, we turn to the record, reciting the
underlying facts under the same principles that constrained the district court when
assessing whether to award summary judgment. In short, for purposes of appeal, we
examine the facts in the best light for Neal, “believ[ing]” her evidence and drawing “all
justifiable inferences” in her favor. Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th
Cir. 2001); see Fed. R. Civ. P. 56(a).
A. ECU’s Master’s of Social Work Program
ECU’s School of Social Work offers a Master’s of Social Work Degree Program
(the “MSW Program”), which consists of both traditional classroom courses and an
internship (referred to as “field instruction”). For the latter component, the MSW Program
places students with an outside agency or organization and provides multiple levels of
coursework and oversight for which students receive one course grade. Field instruction
consumes a significant portion of MSW Program students’ time, as they are generally
5
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 6 of 40
expected to work three days a week for 8 hours a day (24 hours per week) while completing
other program requirements the rest of the week. An MSW Program faculty member serves
as the liaison with the agency or organization and also oversees a weekly seminar course
students must attend. A “field instructor” serves as an overarching supervisor for the
student’s field work. The MSW Program typically recruits licensed clinical social workers
in the community to serve in this role. Field instructors typically meet weekly with their
students to provide regular individualized guidance. Lastly, an employee at the agency or
organization serves as a student’s “task supervisor” and oversees the student’s day-to-day
work. Students who graduate from the MSW Program may then complete a state’s
licensure process for social workers. J.A. 877; see also N.C. Gen. Stat. § 90B-7 (2012)
(describing the qualifications for “Certified Master Social Worker” and “Licensed Clinical
Social Worker,” both of which include having at least a master’s degree from a college or
university with an accredited social work program).
Because the MSW Program is a professional degree, it serves a “gate-keeping
function” to “graduate[] only persons who will make competent practitioners.” J.A. 878–
79. In furtherance of this function, ECU will “not graduate a person who ha[s] exhibited
behavior that could pose a danger to the well-being of vulnerable social work clients.” J.A.
878–79. Relatedly, “a student’s academic performance is not judged solely on grades.
Academic performance includes a student’s behaviors, including whether they are being
disruptive, unprofessional, or failing to attend classes.” J.A. 881. Consistent with these
requirements, the MSW Program holds its students not just to ECU’s code of conduct, but
also to the standards set out in the National Association of Social Workers’ (NASW) Code
6
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 7 of 40
of Ethics and the Council on Social Work’s core competencies for social workers. J.A.
881–82. The MSW Program’s Field Manual provided that “[u]nprofessional conduct or a
breach of the NASW Code of Ethics may be deemed to be serious enough to terminate
field work and the social work program.” J.A. 881. The MSW Program reserved the
right to remove a student from a field placement and/or the program if, in the
opinion of the faculty, the student lacks the maturity, judgment, or
professionalism to function in the field of social work. If it is recommended
that a student withdraw from field [instruction], s/he cannot be readmitted
during that semester. The student must repeat the full semester, including a
field experience, in order to graduate.
J.A. 389.
When concerns about a student’s performance in the MSW Program rise beyond
those capable of being adequately addressed between an individual faculty member and
the student, ECU authorizes the convening of an Admissions & Retention Committee
(“A&R Committee”). J.A. 883. The A&R Committee’s goal is to “help[] a student
determine a remedial course of action to ensure successful completion of the program,”
including “suggestions for improved performance,” clarifying both academic and
“nonacademic competencies expected of students,” and developing a strategy for
“thoughtful and professional” interactions with “instructors, classmates, colleagues, clients
and supervisors.” J.A. 883. An A&R Committee is also charged with recommending “a
specific course of action” for students to follow and “has the authority to determine if those
[expectations] were met, and may terminate a student from the program if they were not.”
J.A. 883–84; 821 (2012–2013 Graduate Catalog: “[G]raduate advisory committees may
render judgments as to whether satisfactory progress is made toward the degree, taking into
7
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 8 of 40
account all aspects of academic performance and promise, not necessarily course work
alone. . . . Failure to meet programmatic/departmental standards may result in program
termination.”). As Professor Nancy Pierson, who was the Director of Field Education for
the MSW Program during the relevant time, put it,
when a student was having some difficulties or there were some issues or
problems that were affecting their success . . . in the program or the course
and internships in any way, we could have an [A&R Committee] meeting to
try to identify what was happening, what those difficulties might be and to
try to figure out a way to help that student take some remedial actions, some
change, some additional support and training so that they could be retained
if at all possible and complete their program.
J.A. 884.
B. Neal’s First Two Years in the MSW Program
Neal began her studies in the MSW Program in the Fall 2012 semester. 1 Her first
two semesters, she maintained a 3.8 and 4.0 GPA, respectively.
In her third semester (Fall 2013), Neal voluntarily withdrew from the MSW
Program. During her field instruction at a hospital that semester, a client attempted suicide
in Neal’s presence, which caused her intense trauma that, in hindsight, she states she did
not know how to process or discuss with others. Neal later explained that this incident,
combined with an abusive living situation at the time, led her to miss a significant amount
In her application’s personal statement, Neal disclosed that she’d been diagnosed
1
with ADHD. At no time did she request an accommodation based on that diagnosis and
her ADA claim does not allege discrimination on account of that condition.
8
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 9 of 40
of coursework. It also led to her eventual hospitalization for about two weeks during which
time she missed additional coursework. 2 Consequently, she voluntarily withdrew.
After Neal and her parents met with faculty members, Neal was permitted to re-
enroll in the MSW Program for the next semester (Spring 2014) despite the program’s
usual policy of requiring students who had withdrawn and wanted to return to do so at the
same time the following academic year to maintain continuity of training. At Neal’s
request, she was assigned to a different organization for field instruction, the House of
Fordham, which provides services to individuals needing assistance with food, housing,
and motherhood. For the Spring 2014 semester, Neal maintained a 4.0 GPA.
C. Neal’s Fall 2014 Semester
Several incidents in the Fall 2014 semester led the MSW Program to convene an
A&R Committee to meet with Neal about her behavior, performance, and continued
enrollment. 3 The problems the Committee identified varied, but included Neal often using
her phone during class for non-class purposes, being habitually tardy and leaving for
extended periods during class, turning in assignments late or not at all, and ignoring faculty
communications requesting responses. In addition, peers complained to faculty about
2
There’s no indication in the record that ECU was apprised of the full circumstances
surrounding Neal’s missed coursework or eventual hospitalization before her decision to
withdraw.
3
Neal’s Fall 2014 A&R Committee included its chairwoman Dr. Kerry Littlewood
(Assistant Director of ECU’s School of Social Work and Coordinator for the MSW
Program), Dr. Lena Carawan (an MSW Program professor), and Professor Nancy Pierson
(Director of Field Education for the MSW Program). Here and throughout this opinion,
individuals who were or are affiliated with ECU are identified by their titles at the time of
the described events.
9
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 10 of 40
Neal’s disruptive behavior and uncivil comments, as well as her method of participating in
team assignments (including taking a “my way or not at all” approach to group assignments
and failing to complete individual tasks assigned to her). During the field instruction
seminar, students expressed concern about sharing sensitive client information in front of
Neal, fearing that she would misuse it. In addition to individual professors addressing
concerns with Neal (to no effect), Dr. Carawan elected to split her seminar into two groups
so that those “most bothered” by Neal were separated from her. J.A. 782.
In addition, Neal’s field instructor—a social worker in the community, Michael
Herring—resigned from that role, leaving her without a necessary supervisor in that
component of her required coursework. 4
During a mandatory A&R Committee meeting, faculty reiterated to Neal that she
needed to improve her attendance, participation, and coursework because her “negative
behavior was having [a negative effect] on [her] ability to successfully complete the
curriculum.” J.A. 889. After Neal complained of various personal problems during the
meeting, Dr. Littlewood also recommended that she see ECU’s counseling services
program. Neal understood that one purpose of the meeting was to assess whether she would
be permitted to remain in the MSW Program and that her “failure to improve could result
4
The record does not contain any statement directly from Herring explaining why
he withdrew as Neal’s supervisor. And while statements appear from other MSW Program
faculty regarding their understanding about why he withdrew, Neal challenges those
statements as inadmissible hearsay and something about which a genuine issue of fact
exists. Because Herring’s reasons for withdrawing are not material to the district court’s
decision or our review, we need not rely on or recount that challenged material. It’s
undisputed that Herring withdrew from this role, an act that compromised Neal’s ability to
complete necessary components of her field instruction.
10
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 11 of 40
in [her] termination from the” program. J.A. 889. She also expressed her agreement “to
make changes” going forward. J.A. 889. As part of their conversation about Neal’s future
in the program, Professor Pierson agreed to serve as Neal’s field instructor for the rest of
the semester so that she could continue with her fieldwork at House of Fordham. And
throughout the rest of the semester, Professor Pierson and Dr. Carawan worked with Neal
to complete all overdue and remaining coursework.
Separate from the A&R Committee proceedings, Neal was also brought before
ECU’s Office of Student Rights and Responsibilities (OSRR). In October 2014, Neal was
arrested and charged with the state criminal offense of simple assault following a physical
altercation with her sister. The charge was later dismissed. When the OSRR learned of the
charge, it treated the incident as a violation of ECU’s student code of conduct. As a
sanction, it required Neal to undergo counseling and to verify having done so by February
6, 2015.
Based on her progress and performance in the second part of the semester, Neal
received As in all her classes.
D. Neal’s Spring 2015 Semester
A few weeks into the Spring 2015 semester, Neal engaged in several specific
incidents that alarmed MSW Program faculty. On February 10, Neal met with one of her
instructors, Dr. Intae Yoon in his office ostensibly to discuss her topic for a semester
project, the prospectus for which was past due. The meeting lasted about two hours, during
which Neal “switched from one topic of conversation to another about personal matters
unrelated to the MSW program such as her boyfriend, financial difficulties, a bad
11
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 12 of 40
relationship with her parents, and her plan to attend law school in California.” J.A. 633. At
times, she raised her voice. When Dr. Yoon asked her to leave, she refused, “continu[ing]
to talk about incoherent topics. Sometimes she would cry and then smile.” J.A. 633. She
told Dr. Yoon she would stand behind his vehicle so that he could not leave campus. In his
declaration, Dr. Yoon characterized Neal as engaging in an “extreme level of disruptive
and inappropriate behavior” that was “so incoherent, we were not . . . communicating at
all” that day. J.A. 633. Other MSW Program faculty overheard the outburst, interceded,
and managed to calm Neal. When questioned about the incident during her deposition, Neal
conceded that she “essentially didn’t let [Dr. Yoon] leave” his office. J.A. 2340. And she
characterized her words and conduct toward him that day as “disrespectful,” J.A. 2341, and
“not acceptable,” J.A. 2344.
On February 20, after OSRR emailed Neal a reminder that she was “over due [sic]
on [her] Counseling verification” from its fall sanction, Neal called that office and left a
rambling and incoherent voicemail message that ran over five minutes long. In her
deposition, Neal agreed that doing so had not been an exercise of her “best judgment,” and
was “inappropriate” and “unprofessional.” J.A. 892, 2519.
Just after midnight on February 21, Neal replied to the OSRR email and copied ECU
staff and MSW Program faculty on her response. It too can be characterized as rambling
and incoherent, as exemplified by the following excerpt: “I am really tired, and sick and
tired, and actually exhausted, with getting emails of this nature. Could one of you, or ANY
of you, try to explain this to me? . . . I would *really prefer,* that we handle this in a quick
and easy manner. I would also *also realllllly prefer,* to not get any kind of legal, drama
12
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 13 of 40
(in any sense of the word).” J.A. 457–58. In her deposition, Neal again agreed that the
email “doesn’t make any sense” and that sending it had been “unprofessional” and
“inappropriate.” J.A. 892, 2523.
Three separate and significant interactions occurred on February 25. At 3:20 a.m.,
Neal sent Dr. Carawan and Professor Pierson an email labeled “URGENT: Field Visit” in
which she apologized for her untimely response, explaining, “it has been an EXTREMELY
enduring day,” and she’d “really like to have the field visit occur tomorrow, however, I
have some (unfortunately, safety-related) concerns I need to speak with you about prior.”
J.A. 460. She closed the email, “Thanks for all you do, Love, Olivia L. Neal MSW3 ;).”
J.A. 460. Later in the day, Neal and Professor Pierson spoke on the telephone. During the
call, Neal exhibited “rapid and pressured” speech and disorganized thinking that “jump[ed]
from topic to topic,” making it difficult for Professor Pierson to communicate with her.
J.A. 729. At one point, she told Professor Pierson “to shut up and listen to her.” J.A. 729.
That evening, Neal emailed around thirty people, including individuals affiliated with ECU
and the MSW Program. Attached to the email was a video Neal recorded from that evening
in which she was yelling at her parents. Neal subsequently characterized herself as being
“‘very upset,’ in an ‘emotionally heightened state,’ ‘erratic,’ and ‘screaming non-sense’”
in the video. J.A. 893. Yet again, she acknowledged that the video was “unprofessional”
and “inappropriate,” and that sending it to ECU faculty and staff had not been wise. J.A.
893, 2527.
Neal’s conduct between February 10 and 25 led to numerous emails between MSW
Program faculty discussing Neal’s interactions with them and covering such matters as
13
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 14 of 40
concern for her well-being, whether and how they could encourage Neal to seek help based
on their respective relationships with her, the MSW Program’s “gate-keeping function,”
and Neal’s academic performance thus far in the semester and how to help her going
forward. In describing Neal’s February 10 interaction with Dr. Yoon, Neal’s faculty
advisor stated, “it was obvious that [she] was quite manic,” J.A. 1130, while Dr. Littlewood
referred to it as Neal “having an episode,” J.A. 1123.
When Dr. Littlewood asked the faculty with whom Neal had course- and field- work
that semester about her academic performance, the professors were equivocal. Dr. Yoon,
for example, had just received an assignment from Neal that was “almost 3 weeks over due
[sic].” J.A. 1133. He indicated that “it is too early to tell whether she will fail my course or
not,” but that they all knew Neal “is smart enough and highly likely to pass [the] course.”
J.A. 1136. Similarly, Dr. Carawan responded that Neal’s House of Fordham “task
supervisor has been very positive in her support,” and “[s]o far, I have all of her
assignments which is much different from fall semester.” J.A. 1127.
Before chronicling the events that occurred after Neal’s emails and phone call on
February 25 through the MSW Program’s decision to dismiss Neal on March 16, it’s
appropriate to note that other information came to light later, but which was not known by
the MSW Program at the time it made its decision. Importantly, Neal’s claim alleges
discriminatory conduct permeating ECU’s entire decisionmaking process—from the MSW
Program’s decision on March 16 through the internal appeals process upholding that
decision. Moreover, Neal relies on a later-developed record to support her argument that
her dismissal was motivated by unlawful discrimination. Consequently, in describing the
14
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 15 of 40
factual record, we point out not just the events of the evening of February 25 through March
16, but also what later became known about them and how they factored into ECU’s total
decisionmaking process.
To briefly forecast that recitation, the record evidence shows what MSW Program
faculty observed during that time frame, what spurred Dr. Littlewood to convene an A&R
Committee meeting where MSW Program faculty decided to dismiss Neal, and what the
Committee cited as the specific grounds supporting that decision. In addition, the later-
developed record partially explains Neal’s actions during those three weeks. And that
explanation led the Graduate Review Panel considering Neal’s internal appeal of her
dismissal to expressly not rely on anything that occurred during this timeframe as part of
its recommendation to uphold her dismissal.
From the time Neal sent her email with the attached video recording on the evening
of February 25 to March 5, no one at ECU, the MSW Program, or House of Fordham heard
from Neal or anyone else on her behalf. She did not appear for scheduled field instruction
at House of Fordham, she did not show up for two classes that met on March 3, she did not
attend weekly supervisory meetings with Professor Pierson or initiate scheduling makeup
sessions for a meeting cancelled due to inclement weather on February 25, she did not
submit any assignments due during that period, and she did not respond to emails and
phone calls from MSW Program faculty requesting that she do so.
On March 5, Neal’s father contacted two individuals at ECU, the Associate Dean of
Students and Professor Pierson. During the calls, Neal’s father indicated only that she had
been “hospitalized after having an automobile accident” on February 25. J.A. 894. While
15
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 16 of 40
he assured them Neal did not have any serious physical injury, he did not disclose the basis
for her hospitalization; that she was at a mental health facility; that she did not have
telephone, email, or Internet access; or that she’d been diagnosed with Bipolar Disorder.
That evening, the Associate Dean emailed several MSW Program faculty to inform them
of Neal’s hospitalization and that he’d expressed concern to Neal’s father about “the
concerns that have arisen regarding [Neal’s] well-being and her behavior, he was very short
and repeated several times ‘At this point, I think she is okay. She is seeking appropriate
care.’” J.A. 1156. The next afternoon, Professor Pierson responded to that email recounting
her own, similar, conversation with Neal’s father and expressing her confusion about why
Neal was being hospitalized for so long if she did not have any “broken bones or serious
physical injuries” from the accident. J.A. 1156. She indicated that Neal’s father had
referred broadly to Neal being “anxious” “from the accident” and that he’d “referred to her
behavior here at ECU” as “being ‘anxious’ and ‘stressed.’” J.A. 1156.
After the Associate Dean had notified her of Neal’s hospitalization, but a few hours
before Professor Pierson sent her response, Dr. Littlewood emailed MSW Program faculty
noting Neal’s lapses in academic performance that semester and specifying that if the
faculty supported her in doing so, she wanted to “pursue dismissal from our program based
on not meeting the guidelines detailed in our handbook . . . for professional and ethical
behavior and also being behind in field without communication by the student.” J.A. 1158–
60. Dr. Littlewood’s email cited six specific reasons for pursuing dismissal: Neal (1) hadn’t
had field work supervision meetings since February 10; (2) hadn’t been seen at House of
Fordham in three weeks; (3) hadn’t attended class “this week, nor notified instructors”; (4)
16
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 17 of 40
sent a “disturbing email” on February 20 “to the student conduct office and cced everyone”;
(5) had “concerning” “confrontations with” Dr. Yoon and Professor Pierson; and (6) had
“already been in this same situation last semester and convened an A&R meeting.” J.A.
1158. A few days later, Dr. Littlewood announced an A&R Committee would convene to
discuss Neal’s dismissal.
The week of March 8 through 14 was ECU’s spring break. On Friday, March 13,
Dr. Littlewood emailed Neal stating that she was required to attend a Monday, March 16,
meeting of the A&R Committee to discuss her continued enrollment.
The morning of March 16, the A&R Committee convened without Neal attending. 5
It reviewed Neal’s entire academic record while enrolled, including her Fall 2013 voluntary
withdrawal, the problems addressed during the Fall 2014 A&R Committee meeting, Neal’s
behavior from February 10 to 25, and her February 25 to March 16 failure to communicate
through absences and missed work. The Committee considered whether to extend another
opportunity to Neal to continue in the program, but decided against it given the multiple
past efforts that had proven unsuccessful. Instead, it voted to dismiss Neal from the MSW
Program for failure to meet its academic and non-academic standards and competencies.
5
Once again, Dr. Littlewood chaired the meeting. It’s not clear who attended, but
Professor Pierson was present and all of Neal’s faculty were invited to attend or submit
information relevant to the Committee’s decisionmaking process.
Neal was discharged from the hospital on Friday, March 13, and subsequently
testified that she had limited telephone and no internet or email access while hospitalized.
She further stated that she’d needed a new cell phone after her accident and that the Friday
of her discharge was the last day of ECU’s spring break, so she did not learn about the
mandatory A&R Committee meeting until after it had convened.
17
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 18 of 40
On the evening of March 16, Neal emailed Dr. Littlewood, Professor Pierson, and
faculty members explaining that she’d been hospitalized since February 25th and seeking
to confirm class and supervisory meeting times and assignment deadlines. In response, Dr.
Littlewood and Professor Pierson instructed Neal that instead of returning to any
coursework, she should meet with them the following afternoon. Neal requested, and
received, permission for her parents to attend the meeting.
At the March 17 meeting, Neal learned that the A&R Committee had decided to
dismiss her from the MSW Program. She was given a letter formally dismissing her and
explaining the decision. The letter cites Neal’s failure to participate in several aspects of
her field instruction from February 10 to March 16, her impaired functioning that was at
odds with Section 4.05 of the NASW’s Code of Ethics, poor class attendance, and
habitually late assignments. It observed that Neal’s conduct in the Spring 2015 semester
was “all the more concerning” given her prior history in the MSW Program, pointing out
that despite attempts to support her, she’d withdrawn from the program in the Fall 2013
semester and had earlier A&R Committee proceedings in the Fall 2014 semester. Lastly,
the letter noted Neal’s “erratic and unprofessional behavior” in February 2015, including
the February 10 incident in Dr. Yoon’s office and her failure to respond to emails from
professors.
E. Neal’s Internal Appeal & Related Pre-Litigation Conduct
Neal appealed her dismissal through ECU’s internal appeals process, as set out in
the Graduate Handbook. A Graduate Review Panel consisting of two faculty members and
one graduate student from other departments met six times from April to June 2015 to
18
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 19 of 40
interview Neal and MSW Program faculty; review Neal’s entire record while enrolled; and
review additional documentary evidence Neal submitted challenging her dismissal. Among
the information Neal submitted in her defense was documentation of her hospitalization
from February 26 to March 13 which—for the first time—disclosed to ECU that she had
been diagnosed with Bipolar Disorder. In addition, Neal submitted her private counselor’s
perspective that her symptoms were now being adequately managed by medication and
that she could resume normal school activities. 6
Neal also submitted documentation to the Graduate Review Panel about how she
continued her social work training in the final weeks of the Spring 2015 semester.
Specifically, despite Neal’s dismissal from the MSW Program, Dr. Yoon permitted her to
continue attending his class because it did not involve client work. She completed all
assignments. Although he could not submit a grade for her work because she was no longer
officially registered, Dr. Yoon informed Neal that she would have earned a “C” in the
course for the semester. Similarly, although the MSW Program had informed House of
Fordham that Neal’s field internship had been terminated and that any further work Neal
performed would be strictly on a voluntary basis, House of Fordham allowed Neal to
continue her volunteer work. Neal recruited individuals to act as the equivalent of a “field
6
The record contains additional information related to the car accident and
hospitalization, most of which is irrelevant to our review. Briefly, she was in the car
accident February 25, but left the scene with no major injuries. The police were later called
to a gas station because its employees described a woman—later identified as Neal—
engaging in bizarre behavior. She was taken to a local hospital and soon transferred to a
mental health facility for involuntary commitment. While there, she was diagnosed for the
first time with “Bi-polar, Type 1, with the most recent episode being mania.” J.A. 489; 893.
19
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 20 of 40
instructor” and “task supervisor,” both of whom reported that Neal performed
exceptionally well at House of Fordham throughout the remainder of the spring of 2015.
The Graduate Review Panel recommended affirming the MSW Program’s decision
to dismiss Neal and found that her dismissal was based on appropriate criteria: her
academic performance and applicable professional standards. The Review Panel
specifically noted Neal’s “erratic and unprofessional behavior” on February 10, multiple
instances of tardiness to class, and inconsistent communication with supervisors and
faculty in the Spring 2015 semester. It further observed that this conduct was “a recurrence
of similar incidents” in the Fall 2014 semester. But the Review Panel also noted that it did
not base its recommendation on “any of the events that occurred from the date [Neal] was
in an automobile accident on February 25, 2015 through March 16, 2015 when [she]
indicated that cell phone and internet service was re-established for her,” nor did it consider
any of the evidence the parties submitted relating to Neal’s “health issues,” which it
deemed “beyond the scope of an academic review panel.” Lastly, the Graduate Review
Panel declined to consider the evidence Neal submitted related to events that occurred after
her dismissal, such as her continued volunteerism at House of Fordham.
In July 2015, ECU’s Dean of Graduate Studies adopted the Graduate Review
Panel’s recommendation and upheld the MSW Program’s decision to dismiss Neal.
Several months later, Neal filed a complaint with the U.S. Department of
Education’s Office of Civil Rights, which investigated her allegation of discrimination
against ECU. In August 2017, the Office closed its investigation after finding that ECU
had not discriminated against her.
20
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 21 of 40
F. District Court Proceedings
In March 2017, Neal filed a complaint in North Carolina state court, which ECU
subsequently removed to the U.S. District Court for the Eastern District of North Carolina
based on federal question jurisdiction. The complaint originally named additional
defendants and claims, which have since been dismissed or otherwise finally resolved and
are not at issue in this appeal. The only claim relevant here is the complaint’s allegation
that ECU discriminated against Neal by dismissing her from the MSW Program, in
violation of the ADA.
Following discovery, ECU moved for summary judgment, which the district court
granted. It assumed, without deciding, that Neal could prove the first element of her claim:
that ECU had regarded her as having a mental impairment such that she met the statutory
definition of having a disability. However, the court concluded that Neal had not come
forward with evidence that would be sufficient to show—or that showed a genuine issue
of material fact with respect to—the second and third elements of her claim, that she was
“otherwise qualified” to remain enrolled in the MSW Program or that ECU dismissed her
from the MSW Program “on account of” her disability.
Neal noted a timely appeal from the district court’s judgment, and we have
jurisdiction under 28 U.S.C. § 1291.
III.
We review the district court’s grant of summary judgment de novo, using the same
standard as the district court: “a court should grant summary judgment only if, taking the
21
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 22 of 40
facts in the best light for the nonmoving party, no material facts are disputed and the
moving party is entitled to judgment as a matter of law.” Goodman v. Diggs, 986 F.3d 493,
497–98 (4th Cir. 2021) (citation omitted); see Fed. R. Civ. P. 56(a). When there’s a “failure
of proof concerning an essential element of a plaintiff’s case,” summary judgment is
appropriate regardless of the evidence proving other elements of the claim. Haulbrook, 252
F.3d at 702 (cleaned up).
Neal contends that the district court misapplied the governing legal principles
related to summary judgment and ADA discrimination claims when it concluded that the
record would not support the second and third elements of her prima facie case. As set out
below, we disagree. 7
A. “Otherwise Qualified” Individual
Congress intended that the ADA “not compel educational institutions to disregard
[a student’s disability] or to make substantial modifications in their programs to allow
disabled persons to participate.” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). Thus,
the second element of a prima facie case of disability discrimination under the ADA
required Neal to “present[] sufficient evidence to show . . . that [s]he could satisfy the
7
In their briefs to this Court, both parties address the first element of the
discrimination claim. It’s not necessary to address that element to affirm, so we will follow
the district court’s lead and assume, without deciding, that the record would be adequate
to support a finding that ECU regarded Neal as disabled at the time of her discharge from
the MSW Program.
22
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 23 of 40
essential eligibility requirements of the [MSW] [P]rogram,” Halpern, 669 F.3d at 462,
including both its academic and non-academic criteria, Davis, 442 U.S. at 406. 8
1. Deference in Assessing “Professionalism” Requirements
Because courts are ill-suited to the task of determining the “essential eligibility
requirements” of an academic program, we traditionally afford “‘great’ deference to a
school’s determination of the qualifications” for its programs. Halpern, 669 F.3d at 463.
This non-controversial proposition has been repeatedly acknowledged and applied by both
the Supreme Court and this Court. E.g., Regents of the Univ. of Mich. v. Ewing, 474 U.S.
214, 225 (1985) (“When judges are asked to review the substance of a genuinely academic
decision . . . they should show great respect for the faculty’s professional judgment.”); Bd.
of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978) (“[T]he determination
whether to dismiss a student for academic reasons requires an expert evaluation of
cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.”); Class v. Towson Univ., 806 F.3d 236, 246 (4th Cir.
2015) (“In determining whether an educational institution’s eligibility requirement is
8
Because this element focuses on the “essential eligibility requirements,” a plaintiff
may be “otherwise qualified” and yet require “reasonable modifications to [a university’s]
rules, policies, or practices.” Halpern, 669 F.3d at 462. Neal represents she did not require
any modifications to the MSW Program for her to be “otherwise qualified.”
Consequently, this case does not present a claim that ECU failed to provide Neal
with a reasonable accommodation. Neal has not and does not contend otherwise. ECU’s
argument that Neal’s discrimination claim fails because she did not submit a timely request
for an accommodation overlooks that a failure to accommodate is just one type of ADA
discrimination claim. Cf. 29 C.F.R. § 1630.2. Consequently, that fact is not dispositive, as
ECU could still be liable if Neal came forward with evidence sufficient to establish that
ECU discharged her from the MSW Program on account of its perception that she had a
mental impairment.
23
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 24 of 40
essential and whether it has been met, we accord a measure of deference to the school’s
professional judgment.”); Halpern, 669 F.3d at 462–63 (“In the context of due-process
challenges, the Supreme Court has held that a court should defer to a school’s professional
judgment regarding a student’s academic or professional qualifications. Based on these
cases, our sister circuits have overwhelmingly extended some level of deference to schools’
professional judgments regarding students’ qualifications when addressing disability
discrimination claims.”); Davis v. Univ. of N.C., 263 F.3d 95, 102 (4th Cir. 2001)
(recognizing the same). “[I]n according deference,” however, “we must take special care
to ensure that eligibility requirements do not disguise . . . discriminatory requirements.”
Class, 806 F.3d at 246. That care entails “assiduously review[ing] the record to ensure that
the educational institution has conscientiously carried out its statutory obligation.”
Halpern, 669 F.3d at 463 (cleaned up).
As is true of many academic programs, and in particular post-graduate degree
programs, “professionalism [is] an essential requirement” of the MSW Program. Halpern,
669 F.3d at 463. Neal stipulated to that fact. J.A. 877. What’s more, the policies governing
Neal’s enrollment in the MSW Program plainly and clearly cautioned that a lack of
professionalism could be a basis for dismissal from the program. J.A. 881 (“Unprofessional
conduct or a breach of the NASW Code of Ethics may be deemed to be serious enough to
terminate field work and the social work program.”); J.A. 883–84 (“If the [A&R]
[C]ommittee makes recommendations to the student for a specific course of action, the
committee has the authority to determine if those standards were met, and may terminate a
student from the program if they were not.”). Neal not only agreed to be governed by those
24
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 25 of 40
policies when she enrolled, but also stipulated that MSW Program students’ “academic
performance is not judged solely on grades. Academic performance includes a student’s
behaviors, including whether they are being disruptive, unprofessional, or failing to attend
classes.” J.A. 881.
We are unpersuaded by Neal’s argument that she met this professionalism standard
because she maintained a high grade point average and had never been cited for
unprofessional conduct in her field work. This argument takes an incorrect and myopic
view of what conduct factors into a student’s “professionalism.” Without question, Neal
earned high marks in her academic classes. And, by all accounts, she excelled at her field
work with House of Fordham. But those are not the sole measures of “professionalism,”
which also appropriately consider matters such as conduct toward faculty and peers, timely
communications, class and meeting attendance, and the like. Universities—not courts—
are best equipped to determine what weight to give the many factors comprising the totality
of a student’s academic record and performance in an academic program and how that
totality measures up against a program’s requirements. Absent evidence of a discriminatory
motive in assessing the numerous factors ECU was entitled to rely on to determine a
student’s qualifications to remain enrolled in one of its programs, we have no cause to
accept Neal’s invitation to reweigh those factors or second-guess ECU’s determination that
Neal failed to satisfy them.
This conclusion does not chart new territory. As the district court recognized, Neal’s
case bears many similarities to our decision in Halpern. There, a former medical student
alleged that a medical school discriminated against him on account of his disability when
25
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 26 of 40
the school dismissed him for unprofessional behavior. 669 F.3d at 456. Like Neal, Halpern
did not disclose any diagnoses to the school and “did not request any disability-related
accommodations.” Id. at 457. Though the precise nature of his conduct differed from
Neal’s, throughout his enrollment in the medical school, the student demonstrated
“difficulties with professionalism” such as behaving in an abusive manner, absences
without providing notice, tardiness, “resistan[ce] to feedback,” and “bizarre behavior” on
campus. Id. at 457–58. The student also had some successes throughout his enrollment,
including positive feedback and “passing or honors marks” on components of his clinical
rotations. Id. at 458.
In assessing whether the medical student had met his burden of establishing that he
was “otherwise qualified” to remain enrolled, we first recognized our “comparative
disadvantage in determining whether [he] is qualified to continue in the Doctor of Medicine
program,” leading us to “accord great respect to the [school’s] professional judgment on
the[] issue[].” Id. at 463. “[F]ind[ing] that professionalism was an essential requirement of
the Medical School’s program,” we concluded that Halpern had failed to show that he
“satisf[ied] this requirement.” Id. Specifically, we noted that the school “identified
professionalism as a fundamental goal of its educational program, and it required that
students demonstrate professional behavior and attitudes prior to graduating.” Id. Further,
we rejected the student’s argument that he satisfied this requirement “because he received
passing marks in professionalism in his clinical rotations,” because that “fail[ed] to take
into account” other aspects of professionalism, including his “treatment of staff,” “behavior
towards faculty,” “resistance to constructive criticism,” and “failure to appear” for required
26
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 27 of 40
components of his coursework. Id. at 463–64. We observed that while none of these
components may have warranted failing grades, “the school reasonably considered them
as part of an ongoing pattern of unprofessional behavior” that had “the potential . . . to
undermine patient care.” Id. at 464. 9
A similar “pattern of unprofessional behavior” appears in Neal’s record and
supports ECU’s decision that—notwithstanding her GPA and positive feedback for field
work—she lacked essential professionalism requirements of the MSW Program.
2. No Genuine Material Dispute of Fact Exists in the Record
Neal makes several arguments attempting to distinguish Halpern and claiming
summary judgment was inappropriate. None persuade us, but a few warrant further
discussion. 10
Neal asserts that a dispute in the record exists as to the factual accuracy of whether
she missed classes and field supervision for unexcused reasons. She claims that this
discrepancy matters because it served as one factor supporting her dismissal. We disagree.
The undisputed record shows a pattern of missed coursework throughout Neal’s
time in the MSW Program such that ECU could rely on that evidence as one basis for its
decision. Neal voluntarily withdrew from the MSW Program in the Fall 2013 semester
9
Halpern also addressed whether the medical student was qualified with an
accommodation, an analysis that isn’t required here.
10
Neal’s briefs to this Court make many sweeping claims about the record, often
without any citation or with references to joint appendix pages that do not align with the
brief’s characterizations and arguments. We have reviewed her arguments and the record.
While we address only a handful of them in the opinion, the others would fail for the same
or similar reasons to those we discuss.
27
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 28 of 40
because she’d missed a significant number of classes, field work, and coursework. See J.A.
886 (stipulating “she eventually stopped attending classes altogether” that semester even
before her hospitalization for two weeks). Similarly, although absences were not
specifically identified as a problem during her Fall 2014 A&R Committee meeting, it did
address related concerns such as being tardy, frequently leaving class for ten or more
minutes several times during a single class, and being distracted or disruptive on her
telephone rather than attentive.
As for the Spring 2015 semester specifically, Neal stipulated that the MSW Program
required students and field instructors to meet “at least weekly” for supervisory meetings
and that students have the responsibility to set up those meetings. J.A. 894. Because of that
requirement, between February 12 and March 16, Neal “should have had at least four (4)
productive supervisory sessions with [Professor] Pierson. Instead, she had none.” J.A.
894. 11 In addition to missing a scheduled field supervision visit on March 3, Neal also
11
Neal asserts that it was inappropriate to rely on these missed classes and
supervision meetings as support for ECU’s determination that she was not qualified to
remain in the MSW Program because the record explains that some were due to inclement
weather and some were due to her hospitalization. That argument misses the mark, as it
goes to what weight ECU should have given to those absences rather than whether the
record supports that they occurred.
Further, given that it’s undisputed that students have the responsibility to schedule
supervisory meetings each week, ECU is entitled to deference in assessing whether and
how Neal attempted to reschedule or make up the missed meetings after weather foreclosed
the initially scheduled meeting. Professor Pierson readily acknowledged that some of their
scheduled meetings were canceled due to inclement weather, and she pointed to Neal’s
failure to initiate and ensure rescheduling of those meetings, as opposed to their initial
cancellation, as evidence of her lack of professionalism. See, e.g., J.A. 728 (“On February
17, 2015 our scheduled supervision was cancelled due to inclement weather (not the fault
of Ms. Neal), however Ms. Neal did not reschedule this supervision or follow up with me
(Continued)
28
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 29 of 40
missed Dr. Yoon’s class and Dr. Carawan’s field seminar. J.A. 893. And while Neal
appeared for her field supervision on February 10, Professor Pierson stated that she “was
unable to provide supervision due to Ms. Neal” being “distracted and off topic, often
moving about the room, and did not allow me to redirect her to supervision topics.” J.A.
728. In short, Professor Pierson classified such “lack of engagement” in person as the
equivalent of not appearing at all for their supervision meeting. J.A. 728–29. In short, the
record does not contain a genuine issue of material fact about whether—over the entire
course of Neal’s enrollment in the MSW Program—missed classes and supervision
meetings played a recurring role that could reasonably factor into ECU’s retention
determination.
Even more problematic for Neal, however, is that this was just one of many factors
that (1) ECU cited at the time of her dismissal and (2) the district court pointed to as a basis
for concluding that she failed to demonstrate she was “otherwise qualified” to remain in
the MSW Program. Thus, even if Neal had been able to cast doubt on whether her absences
from class and supervisory meetings would have warranted dismissal, that would not alter
the outcome here given the totality of the undisputed record. Namely, and as recounted
earlier, Neal admitted to exhibiting unprofessional behavior toward MSW Program faculty
as I requested. On both February 24, 2015 and March 3, 2015, Ms. Neal failed to attend
our pre-scheduled supervision sessions and did not reschedule or respond to my attempts
to reach her.”).
Lastly, regardless of how the Spring 2015 A&R Committee weighed those missed
classes and meetings in its initial decision to dismiss Neal, the Graduate Review Panel
expressly did not consider any of the absences that occurred due to Neal’s hospitalization
when it recommended upholding the decision, nor did it specifically cite any absences from
classes or supervision meetings as a basis for its recommendation.
29
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 30 of 40
in numerous incidents that occurred in person, on the telephone, and in writings throughout
February 2015. Looking beyond her final semester of enrollment, Neal had previously been
warned that her conduct, attitude, and behavior needed to change, and ECU had assisted
her so that she could continue in the MSW Program. For example, she was permitted to re-
enroll for the Spring 2015 semester, which was before the time generally allowed following
withdrawal, and she was required to attend the Fall 2014 A&R Committee meeting at
which point she was formally cautioned about her continued enrollment in the MSW
Program, and its faculty implemented a support team to assist her in completing her field
supervision and other class assignments.
Neal also asserts the record does not support ECU’s justification that her Spring
2015 behavior was a recurrence of problems cited during the Fall 2014 semester. In
support, however, Neal cites portions of her deposition testimony that do not create a
genuine issue of material fact about her poor performance in the Fall 2014 semester. For
example, in her deposition Neal recounted how stressful it was to put together her learning
agreement each semester and she admitted to being late with the learning agreement. She
further admitted that “[i]t’s possible” she turned in additional late assignments based on
syllabus deadlines, though she indicated her professors would sometimes allow her to turn
in assignments on a different date than originally listed. 12 J.A. 2372–73. This testimony
12
The learning agreement was an essential component of a MSW Program student’s
field work. It was both “a plan for the internship, [and] an evaluation instrument.” J.A. 880.
Early in each semester students would submit a draft learning agreement outlining the
activities in which they would participate during their placement so that they could “gain
the professional competencies set out by the Council on Social Work Education,” which is
(Continued)
30
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 31 of 40
does not contradict her professors’ repeated statements that she had trouble submitting
timely class assignments. Even if professors worked with her to complete the assignments
and accepted them late, a habitual inability to meet deadlines could still be a valid basis for
later dismissal from the MSW Program. In Spring 2015, for instance, Dr. Yoon, accepted
an assignment that was “almost 3 weeks over due [sic],” J.A. 1133, but later recounted in
his declaration that although he “tried to work with Ms. Neal by grading her late
assignments” throughout her enrollment, “her consistent inability to meet deadlines was
unprofessional” and a factor in favor of her eventual dismissal. J.A. 632. Neal also contends
that her deposition testimony contradicts other record evidence about the February 10
interaction with Dr. Yoon, namely, whether she “yelled” at or pointed her finger at him
during their interaction. To put it plainly, these “discrepancies” were immaterial to
assessing this incident’s relevance to the decision to dismiss Neal from the MSW Program.
As noted, despite Neal characterizing her raised voice as getting “louder” rather than
“yelling,” J.A. 2342, she admitted that the incident was “unacceptable.” J.A. 891.
Nor did ECU act with an impermissible “imperial decree trumpet[ing] an arbitrary
and capricious bent, demanding not merely the Court’s deference but indeed its fealty,”
Opening Br. 34–35, by declining to consider the view of Neal’s psychiatrist that she could
successfully complete the MSW Program following her March 13 discharge. Whatever his
qualifications in a related field or his familiarity with the professional standards applicable
to social workers, Neal’s psychiatrist was not a member of ECU’s faculty, privy to Neal’s
“the accrediting body for all accredited Social Work degrees in the United States.” J.A.
880.
31
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 32 of 40
academic record or the assessments of those interacting with her on campus, or ultimately
charged with the gatekeeping function of determining eligibility for the MSW Program.
There is nothing arbitrary or capricious about declining to consider his opinion under the
circumstances here. 13
In sum, the record fully supports the district court’s conclusion that ECU was
entitled to deference in its conclusion that Neal no longer met the eligibility requirements
to remain enrolled in the MSW Program. Nothing in the record causes us to deviate from
the usual approach of affording great deference to a university’s determination that a
particular student fails to meet its academic and non-academic requirements, including its
professionalism standards. On this record, Neal failed to come forward with evidence
sufficient to support a finding that she was “otherwise qualified” to remain enrolled in the
MSW Program. Because Neal cannot prove an element of her ADA discrimination claim,
ECU was entitled to summary judgment.
B. Causation
While our conclusion about the “otherwise qualified” element would be sufficient
grounds to affirm the district court’s judgment, we also address the court’s holding that
Neal had not demonstrated that her dismissal was “on the basis of” her disability. Although
13
Similar limitations exist with the declaration from MSW Program professor
Tracey Carpenter-Aeby, which simply states that professors had “discretion” to excuse
student absences when warranted, such as in the case of hospitalization. This conclusory
statement does not address Neal’s academic record or whether she met the required
academic standards as a holistic matter. Nor did Professor Carpenter-Aeby indicate any
familiarity with Neal’s record. Her generic opinion does not move the ball concerning
either Neal’s qualifications to remain in the MSW Program based on the totality of her
academic record or ECU’s motives in deciding to dismiss her.
32
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 33 of 40
the ADA’s causation element can be satisfied by proof that disability was “a” motivating
factor (rather than the “sole” reason) for the defendant’s decision, to establish causation
more is required than “[t]he fact that [the defendant] is aware of [the plaintiff’s]
impairment.” Haulbrook, 252 F.3d at 703. Instead, “a plaintiff must show that the adverse
action occurred under circumstances that raise a reasonable inference of unlawful
discrimination.” Cogwill v. First Data Techs., Inc., 41 F.4th 370, 380 (4th Cir. 2022)
(citation omitted). In other words, while the ADA prohibits a university from dismissing a
student on account of a disability, a university is lawfully permitted to dismiss a student on
account of misconduct triggered by a disability.
Neal challenges this conclusion, asserting that the record contains sufficient
evidence from which a jury could find that ECU dismissed her from the MSW Program
because of her disability. She points to emails between MSW Program faculty and
administration in February 2015 discussing their perceptions of her mental state and her
performance in the program. And she criticizes the district court’s reliance on Halpern,
arguing that the Court did not address causation in that decision, so it should not be part of
a causation analysis. 14 Again, we disagree with Neal.
We’ve considered the February 2015 email exchanges alongside the other record
evidence Neal relies on and conclude that the district court did not err in holding that the
14
Throughout the appeal, Neal attempts to distinguish Halpern by asserting that its
holding depended on an undisputed record of unprofessional behavior, which does not exist
here. For the reasons already discussed, we disagree with Neal that a genuine issue of
material fact exists about the circumstances leading ECU to dismiss her from the MSW
Program, so this is not a valid ground for distinguishing Halpern.
33
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 34 of 40
undisputed record would preclude a jury from finding in favor of Neal on the issue of
causation. Viewed in the light most favorable to Neal, the emails depict a faculty concerned
for Neal’s well-being, sensitive to when and how they could address an adult graduate
student’s personal matters, and fearful that her conduct and interactions with them
beginning on February 10 and continuing through February 24 would affect her successful
performance going forward in the semester.
Far from expressing any indication that Neal should be dismissed from the program
on account of a mental impairment or perceived “manic,” J.A. 1130, “episode,” J.A. 1123,
these emails uniformly demonstrate a genuine desire to help Neal address her health quite
apart from the MSW Program and their concern that if Neal’s recent conduct and behavior
continued, her academic performance in the MSW Program would suffer. At no point did
any of the faculty members suggest that Neal had a mental disability that could itself be a
ground for removing Neal from the MSW Program. In fact, Dr. Yoon—whose email
relaying concern about how Neal behaved in their meeting spurred the series of emails that
followed—expressly stated the exact opposite: “Again, I do NOT mean to stop her from
graduating in May.” J.A. 1136.
Dr. Littlewood’s role in the email thread is particularly relevant given that she later
initiated and chaired the Spring 2015 A&R Committee meeting during which Neal was
dismissed. At one point, she cautioned that it “may be against [the Family Educational
Rights and Privacy Act] for us to discuss [Neal’s mental health and medication] in relation
to her performance in the MSW Program.” J.A. 1136–37. And her redirect appropriately
came in direct response to Neal’s faculty advisor—who did not have other interaction with
34
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 35 of 40
Neal in her MSW Program classes or field work—disclosing a private conversation she’d
had with Neal about her ADHD medication and whether she was in any treatment at the
moment, topics that veered beyond Neal’s conduct and performance in the MSW Program
itself. Dr. Littlewood encouraged faculty to “hold[] [Neal] to the same [coursework]
standards as other students” and to “document [any] academic issues” because “[t]hey are
the issues which we can hold [her] accountable and pursue corrective action.” J.A. 1137.
To conclude that Dr. Littlewood’s and other MSW Program faculty’s words actually
show discriminatory intent would be to twist them beyond all recognition. 15 Though these
emails support Neal’s suggestion that MSW Program faculty and advisors were “aware”
of her impairment, that does not demonstrate causation. Haulbrook, 252 F.3d at 703. Much
more is required and here it is completely lacking. In short, nothing in the emails calls into
question why the MSW Program convened the A&R Committee meeting to decide whether
to dismiss Neal.
In particular, Neal’s conduct from February 25 to March 16 plays a unique but
central role in demonstrating the lack of evidence of causation in both the A&R
Committee’s initial decision to dismiss her and the Graduate Review Panel’s
recommendation to uphold that decision. Part of the uniqueness of that role stems from the
15
In perhaps an unwittingly candid moment, Neal admits as much by arguing that
her February 2015 behavior alone would not support her dismissal because the MSW
Program faculty did not dismiss her immediately following her displays of mania, but
instead adopted a “wait and see posture.” Opening Br. 33. Instead, it was only after she
missed additional communications, classes, and field work that they convened the A&R
Committee to consider her dismissal in light of the totality of her academic performance
and record.
35
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 36 of 40
fact that the A&R Committee relied on that conduct and the Graduate Review Panel refused
to consider it, demonstrating both entities were not acting with discriminatory motive.
As for the A&R Committee’s initial decision—that the same individuals who were
party to the February 2015 emails did not act to dismiss her until after further concerning
academic conduct occurred bolsters the conclusion that no causal link can be shown
between Neal’s disability and her dismissal. Regardless of the reasons for these events, it’s
undisputed that from February 25 to March 16, Neal missed class, supervision meetings,
field work, and class assignments. She also failed to respond to numerous emails and phone
calls from faculty requesting that she respond. Although Neal contends her post-February
25 conduct should have been excused given her hospitalization, it’s undisputed that the
Spring 2015 A&R Committee convened to decide her future in the MSW Program only
after these additional events related to her academic performance occurred. It’s further
undisputed that at the time the A&R Committee acted, no one on the Committee knew of
the reasons for her hospitalization or of her Bipolar Disorder diagnosis. Whatever their
concerns about Neal’s mental health in mid-February, MSW Program faculty did not
convene the A&R Committee meeting to discuss Neal’s dismissal until further concerns
about her academic performance had occurred. And both Dr. Littlewood’s email
delineating the basis for convening the A&R Committee and the MSW Program’s letter
explaining why Neal was being dismissed cited a host of non-discriminatory reasons
supporting the decision.
Further breaking the link between Neal’s dismissal and any discriminatory motive
is the Graduate Review Panel’s independent evaluation of Neal’s record and its
36
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 37 of 40
recommendation to uphold her dismissal while not holding Neal accountable for her
conduct during her hospitalization. As discussed earlier, the Graduate Review Panel was
comprised of individuals outside the MSW Program; they were not part of the February
2015 faculty emails. Moreover, the Panel expressly did not rely on any events that occurred
after February 25, for which time it apparently believed Neal’s hospitalization provided
sufficient grounds for excusing her absences and missed work. And yet it found that the
totality of Neal’s academic record demonstrated grounds for not meeting the MSW
Program’s standards for continued enrollment. At both the initial and internal appeals stage
of ECU’s decision to dismiss Neal, there’s no record evidence that her disability was a
factor, meaning that she cannot prove this essential element of her prima facie case of
discrimination.
Both the A&R Committee and the Graduate Review Panel expressly—and
lawfully—pointed to Neal’s January 2015 incidents in person, via telephone, and through
email as factors supporting the decision to dismiss her. Although our decision in Halpern
did not expressly address causation, the district court aptly cited it for a principle that we
agree is equally relevant to the causation inquiry: “misconduct—even misconduct related
to a disability—is not itself a disability and may be grounds for dismissal” Halpern, 669
F.3d at 464 (cleaned up). Numerous authorities acknowledge the same distinction.
Newberry v. E. Tex. State Univ., 161 F.3d 276, 279–80 (5th Cir. 1998) (distinguishing
between dismissal for “conduct [that] is symptomatic of disability,” which is a legitimate,
nondiscriminatory motive and dismissal based on a “collateral assessment of disability,”
which would violate the ADA); Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997)
37
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 38 of 40
(same); see also Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 811–12 (4th
Cir. 2006) (holding employer’s belief that plaintiff engaged in misconduct was a
permissible nondiscriminatory reason for termination of employment even if his employer
was factually incorrect and even if employer also thought the misconduct was caused by a
mental impairment); 2008 EEOC Guidance, 2008 WL 4786697, at *9 (“The ADA does not
protect employees from the consequences of violating conduct requirements even where
the conduct is caused by the disability.”).
Neal repeatedly acknowledged that her February 2015 interactions—from her
February 10 incident in Dr. Yoon’s office to her voicemail, emails, and phone call with
Professor Pierson—were “unprofessional” and “inappropriate.” But she contends that they
resulted from a transient condition for which she could be adequately treated through
medication and thus should not have been cited against her. Similarly, she admits that
during her hospitalization, she missed multiple classes, field work, field supervision, and
class assignments—though she argues those absences should be “excused” given why they
occurred. But ECU was not required to retroactively excuse misconduct related to her later
Bipolar diagnosis. 16 Neal’s insistence to the contrary sought “not a disability
16
Because it is particularly relevant here, we reiterate that Neal never requested an
accommodation before her dismissal from the MSW Program. Further, she is proceeding
solely under the “regarded as” prong of establishing a disability, which does not require
sua sponte accommodations for a perceived impairment that has caused unprofessional
conduct. See 29 C.F.R. § 1630.2(o)(4) (stating that covered entities are “not required to
provide a reasonable accommodation to an individual who meets the definition of disability
solely under the ‘regarded as’ prong”).
Critically, ECU could dismiss Neal for failing to meet the MSW Program’s
academic requirements—which included its professionalism criteria—even if her
(Continued)
38
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 39 of 40
accommodation, but ‘a second chance to better control [her] treatable medical condition.’”
Halpern, 669 F.3d at 465 (quoting Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894
(8th Cir. 1999)); Off. of the Senate Sergeant. at Arms v. Off. of Senate Fair Emp. Pracs.,
95 F.3d 1102, 1107 (Fed. Cir. 1996) (“[T]he ADA . . . does not require a retroactive
accommodation for a disability, which is what is meant by a fresh start.”); see also Davila
v. Qwest Corp., 113 F. App’x 849, 854 (10th Cir. 2004) (“[E]xcusing . . . misconduct to
provide a fresh start/second chance to an employee whose disability could be offered as an
after-the-fact excuse is not a required accommodation under the ADA.” (citations
omitted)). At bottom, Neal wants to have it both ways, arguing she was a qualified
individual with no accommodation who was dismissed on the basis of her Bipolar Disorder,
yet demanding that ECU had to overlook everything that occurred in February and March
2015 because of evidence about her subsequently diagnosed mental impairment. The ADA
has no such requirement.
The A&R Committee appropriately relied on what it knew about Neal’s
performance during the totality of her enrollment, including February and March 2015
when it made the initial decision to dismiss Neal. The Graduate Review Panel did not act
arbitrarily in deciding not to consider Neal’s conduct after February 25 and yet to rely, in
part, on her earlier conduct as a factor in recommending that decision be upheld. Neither
course demonstrates a genuine issue of material fact about what led to Neal’s dismissal and
misconduct was later disclosed to be the result of a disability so long as the disability itself
was not the basis for the decision. As we recognized in Halpern, “the law does not require
the school to ignore misconduct that has occurred because the student subsequently asserts
it was the result of a disability.” 669 F.3d at 465.
39
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 40 of 40
whether her disability was a motivating factor in that decision. We therefore agree with the
district court that this separate reason also demonstrates that ECU was entitled to summary
judgment.
IV.
We in no way make light of mental illness. However, for purposes of assessing ADA
compliance, universities have a responsibility to the entire academic community and to the
public to ensure that a student is qualified to meet the lawful requirements of their program
especially where, as here, conferral of a degree is a prerequisite to state licensure
requirements. ECU properly exercised its discretion in that regard and bent over backwards
to assist Neal during her enrollment in the MSW Program. It gave her a second chance with
the out-of-order readmission in the Spring 2014 semester. She received a third chance in
the Fall 2014 semester following the A&R Committee proceeding. And MSW Program
faculty gave her a fourth chance as they tried to work with her thereafter, including during
and following the February 10 encounter in Dr. Yoon’s office. Now, Neal wants to force
ECU to provide a fifth chance. The ADA contains no such requirement given an absence
of evidence supporting her claim of discriminatory dismissal.
For the reasons set forth above, we affirm the judgment of the district court.
AFFIRMED
40 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481172/ | USCA4 Appeal: 22-6274 Doc: 15 Filed: 11/04/2022 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6274
JERARD STEVEN DAVIS,
Petitioner - Appellant,
v.
NORTH CAROLINA ATTORNEY GENERAL,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:20-hc-02177-D)
Submitted: August 23, 2022 Decided: November 4, 2022
Before GREGORY, Chief Judge, HEYTENS, Circuit Judge, and KEENAN, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Karen Oakley, LAW OFFICE OF KAREN OAKLEY, LLC, Cincinnati, Ohio, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-6274 Doc: 15 Filed: 11/04/2022 Pg: 2 of 2
PER CURIAM:
Jerard Steven Davis seeks to appeal the district court’s order dismissing his
28 U.S.C. § 2254 petition as untimely and, alternatively, unexhausted. See Shinn v.
Ramirez, 142 S. Ct. 1718, 1731-32 (2022) (discussing exhaustion requirement); Gonzalez
v. Thaler, 565 U.S. 134, 148 & n.9 (2012) (explaining that § 2254 petitions are subject to
one-year statute of limitations, running from latest of four commencement dates
enumerated in 28 U.S.C. § 2244(d)(1)). The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of
appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is
debatable and that the petition states a debatable claim of the denial of a constitutional
right. Gonzalez, 565 U.S. at 140-41 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Davis has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481179/ | Case: 22-10694 Document: 00516534524 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-10694 November 4, 2022
Summary Calendar Lyle W. Cayce
Clerk
Vicker Sichanthavong,
Plaintiff—Appellant,
versus
Tina Hernandez,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:22-CV-118
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiff brings the instant action to enforce a decade-old state court
judgment for unpaid rent. The district court dismissed his lawsuit for lack of
subject matter jurisdiction. Because Plaintiff failed to plead diversity of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10694 Document: 00516534524 Page: 2 Date Filed: 11/04/2022
No. 22-10694
citizenship or to identify a federal question, we AFFIRM. Accordingly,
Plaintiff’s pending motions are DENIED as moot.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481173/ | Case: 22-50072 Document: 00516534603 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50072
Summary Calendar FILED
November 4, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Heinrich Wiebe-Neudorf,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-77-1
Before Davis, Smith, and Dennis, Circuit Judges.
Per Curiam:*
Heinrich Wiebe-Neudorf, federal prisoner # 26999-480, appeals the
denial of his third motion for compassionate release, filed pursuant to 18
U.S.C. § 3582(c)(1)(A)(i). We review a district court’s decision to deny a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-50072 Document: 00516534603 Page: 2 Date Filed: 11/04/2022
No. 22-50072
§ 3582(c)(1)(A)(i) motion for abuse of discretion. United States v. Chambliss,
948 F.3d 691, 693 (5th Cir. 2020).
Wiebe-Neudorf argues that the district court violated his First
Amendment right to be heard when it did not allow the Government to
respond to his current § 3582(c)(1)(A)(i) motion, which would have given
him the opportunity to reply; that extraordinary and compelling reasons for
relief existed; and that the district court’s decision improperly denied relief
based on the U.S.S.G. § 1B1.13 policy statement, 18 U.S.C. § 3142(g), and 18
U.S.C. § 3553(a), which he contends are inapplicable to his motion under
United States v. Shkambi, 993 F.3d 388, 392-93 (5th Cir. 2021).
Wiebe-Neudorf has not provided any authority indicating that he
would be entitled to relief on his First Amendment claim in the context of a
§ 3582(c)(1)(A)(i) motion. To the extent he argues that the district court
abused its discretion in denying his motion without a response from the
Government, his argument is unavailing in light of the plain language of the
statute, which makes no reference to a Government response. See
§ 3582(c)(1)(A); Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021).
Although Wiebe-Neudorf also challenges the district court’s reliance on the
§ 3553(a) factors, consideration of those factors is required under the statute.
See § 3582(c)(1)(A); Shkambi, 993 F.3d at 393. Additionally, although
Wiebe-Neudorf challenges the district court’s reliance on § 1B1.13 and
§ 3142(g), the record indicates that the district court’s decision was
independently supported by its weighing of the § 3553(a) factors. See United
States v. Jackson, 27 F.4th 1088, 1093 n. 8 (5th Cir. 2022); United States v.
Thompson, 984 F.3d 431, 433 (5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
Accordingly, we need not consider Wiebe-Neudorf’s contention that
extraordinary and compelling reasons justified relief. See Ward, 11 F.4th at
360-62.
2
Case: 22-50072 Document: 00516534603 Page: 3 Date Filed: 11/04/2022
No. 22-50072
To the extent that Wiebe-Neudorf challenges the sufficiency of the
district court’s reasons, the argument was raised for the first time in his reply
brief, and we generally do not consider issues raised for the first time in a
reply brief. See United States v. Rodriguez, 602 F.3d 346, 360-61 (5th Cir.
2010). However, even if we were to consider this argument, it lacks merit
because the reasons for the district court’s denial may be reasonably inferred
from the district court’s order and the record. See Chavez-Meza v. United
States, 138 S. Ct. 1959, 1966 (2018).
In light of the foregoing, the district court’s denial of Wiebe-
Neudorf’s § 3582(c)(1)(A)(i) motion did not constitute an abuse of
discretion. See Chambliss, 948 F.3d at 693-94.
AFFIRMED.
3 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481171/ | USCA4 Appeal: 21-1685 Doc: 20 Filed: 11/04/2022 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1685
JOANN ARTIS STEVENS,
Plaintiff - Appellant,
v.
TOWN OF SNOW HILL, NC; COUNTY OF GREENE, NC; LENOIR
COMMUNITY COLLEGE & FOUNDATION, NC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:19-cv-00156-D)
Submitted: September 28, 2022 Decided: November 4, 2022
Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
JoAnn Artis Stevens, Appellant Pro Se. Katherine Marie Barber-Jones, Dan M. Hartzog,
Jr., HARTZOG LAW GROUP LLP, Raleigh, North Carolina; James R. Morgan, Jr.,
WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina; William
John Cathcart, Jr., BROWN, CRUMP, VANORE & TIERNEY, PLLC, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-1685 Doc: 20 Filed: 11/04/2022 Pg: 2 of 2
PER CURIAM:
JoAnn Artis Stevens appeals the district court’s order granting Defendants’ motions
to dismiss and dismissing Stevens’ civil complaint. Limiting our review of the record to
the issues raised in Stevens’ informal brief, we have reviewed the record and find no
reversible error. See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir.
2014) (“The informal brief is an important document; under Fourth Circuit rules, our
review is limited to issues preserved in that brief”). Accordingly, we affirm the district
court’s order. Stevens v. Town of Snow Hill, No. 4:19-cv-00156-D (E.D.N.C. June 8,
2021). We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481176/ | Case: 21-30690 Document: 00516535337 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 4, 2022
No. 21-30690 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jason Boyet,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CR-51-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Jason Boyet pled guilty pursuant to a written plea agreement to one
count of distributing child pornography, in violation of 18 U.S.C.
§ 2252(a)(2). He was sentenced at the low end of the Guidelines range to
210 months of imprisonment and five years of supervised release. He
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-30690 Document: 00516535337 Page: 2 Date Filed: 11/04/2022
challenges his sentence on appeal, arguing that the district court failed to
recognize its authority to depart from the Sentencing Guidelines based on
policy disagreements and erred by applying a five-level enhancement under
U.S.S.G. § 2G2.2(b)(3)(B). He also argues the written judgment broadens
and therefore conflicts with the oral pronouncement of a special condition of
supervised release and so must be reformed.
The government has invoked the appeal waiver, arguing that the
waiver is knowing and voluntary and bars the guidelines challenges raised on
appeal. The government agrees, however, that the written judgment
conflicts with the oral pronouncement of sentence and does not seek to
enforce the appeal waiver as to this issue. See United States v. Story, 439 F.3d
226, 230–31 & n.5 (5th Cir. 2006).
Whether an appeal waiver bars an appeal is a question we review de
novo. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). Here, we agree
the appeal waiver bars Boyet’s claim that the district court failed to recognize
its authority to depart from the Guidelines and erred by applying
Section 2G2.2(b)(3)(B). The record demonstrates that “the waiver was
knowing and voluntary and . . . applies to the circumstances at hand, based
on the plain language of the agreement.” United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005). Because there is no argument that Boyet’s 210-month-
sentence exceeds the 20-year statutory maximum or that trial counsel
rendered ineffective assistance, the two exceptions to the waiver do not
apply. See United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005).
Moreover, although Boyet argues the appeal waiver is inherently unknowing
because he could not have possibly known of a sentencing error when he
entered into the plea agreement, he concedes that argument is foreclosed and
raises it to preserve it for further review. See United States v. Barnes, 953 F.3d
383, 386–87 (5th Cir. 2020); United States v. Burns, 433 F.3d 442, 449–50
(5th Cir. 2005).
Case: 21-30690 Document: 00516535337 Page: 3 Date Filed: 11/04/2022
With respect to the challenged condition of supervised release, the
district court pronounced at sentencing, as a special condition, that Boyet
“shall not cohabitate with anyone who has children under the age of 18,” but
the written judgment, in special condition number 9, states Boyet “shall not
date or cohabitate with anyone who has children under the age of 18.” The
condition that Boyet not date anyone who has children under the age of 18
was not pronounced by the district court or set forth in the presentence
report and, therefore, Boyet had no opportunity to object to the condition.
See United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020); United States
v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020) (en banc). Moreover, by including
the additional prohibition against dating someone with children under the age
of 18, the written judgment imposes a more burdensome and broader
condition than the one orally pronounced. Accordingly, the written
judgment conflicts with the oral pronouncement of sentence and must be
amended. See United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006); see
also United States v. Tang, 718 F.3d 476, 486–87 (5th Cir. 2013) (finding
conflict where oral pronouncement prohibited defendant from cohabitating
with anyone with children under the age of 18 while written judgment
prohibited both cohabitation with and dating such an individual).
Boyet’s claims that the district court failed to recognize its authority
to depart from the Guidelines based on policy disagreements and erred by
applying an enhancement under Section 2G2.2(b)(3)(B) are DISMISSED
as barred by the valid appeal waiver. However, we REMAND to the district
court so the written judgment may be amended to conform with the oral
pronouncement of sentence as it pertains to the special condition of
supervised release identified herein. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481178/ | Case: 21-20475 Document: 00516534547 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 4, 2022
No. 21-20475 Lyle W. Cayce
Clerk
Spring Branch Independent School District,
Plaintiff—Appellant/Cross-Appellee,
versus
O. W., by next friend Hannah W.,
Defendant—Appellee/Cross-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-2643
Before Stewart, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Having reviewed the record and briefs, we order this appeal dismissed
for lack of jurisdiction. The district court’s decision on appeal considered the
parties’ arguments and concluded by remanding the proceedings to an
administrative officer to determine an appropriate compensatory award. At
the end of the decision, the district court explicitly ordered that “this case be
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-20475 Document: 00516534547 Page: 2 Date Filed: 11/04/2022
No. 21-20475
ADMINISTRATIVELY CLOSED.” It also stated that “[i]f either party
decides to appeal the [administrative officer’s] determination, that party may
move to reinstate the case on the court’s active docket.”
Neither party raises jurisdiction as an issue in this case. Indeed, both
parties assert that this court has jurisdiction pursuant to 28 U.S.C. § 1291.
However,“[o]ur court has an independent duty to examine the basis of its
jurisdiction.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 595 (5th
Cir. 2017). Under § 1291, our jurisdiction “extends only to ‘final decisions’
of the district courts.” Cook v. City of Tyler, 974 F.3d 537, 539 (5th Cir. 2020)
(per curiam). This court has held that administrative closures do not meet
this finality requirement. See Gross v. Keen Grp. Sols., L.L.C., 18 F.4th 836,
840 (5th Cir. 2021) (“It is well established that administrative closures
cannot serve as the basis for appellate jurisdiction.” (citations omitted)); S.
La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 F.3d 297, 302 (5th Cir.
2004) (“[W]e hold that administratively closing a case is not a dismissal or
final decision.”). This is especially so here where the district court expressly
provides that the parties can move to reopen the case on its active docket. See
Sentry Select Ins. Co. v. Ruiz, 770 F. App’x 689, 690 (5th Cir. 2019) (per
curiam) (“By administratively closing the case, the district court retains
jurisdiction, meaning it can ‘reopen the case—either on its own or at the
request of a party—at any time.’ ‘[R]eservation of jurisdiction . . . precludes
appellate jurisdiction because an order framed this way is not a final
judgment.’” (citations and quotations omitted)). We thus lack jurisdiction to
review this appeal.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481177/ | Case: 21-50963 Document: 00516535225 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 4, 2022
No. 21-50963 Lyle W. Cayce
Clerk
John Edos Star,
Plaintiff—Appellant,
versus
Alejandro Mayorkas, Secretary, U.S. Department of Homeland
Security; Ur M. Jaddou, Director of U.S. Citizenship and Immigration
Services, Washington DC; Department of Homeland Security,
National Benefit Center Lee’s Summit, Missouri;
Potomac Service Center; Director of U.S. Citizenship
and Immigration Services, New York City,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CV-53
Before King, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50963 Document: 00516535225 Page: 2 Date Filed: 11/04/2022
No. 21-50963
John Edos Star has moved for leave to proceed in forma pauperis (IFP)
on appeal from the dismissal without prejudice of his complaint challenging
the denial of his naturalization application in 2009. The district court found
that Star’s complaint was time barred and that the court lacked subject
matter jurisdiction. Star is contesting the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into an appellant’s good faith “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
Even if we afford his brief very liberal construction, Star briefs no
argument that the district court has jurisdiction over his complaint
challenging the denial of his application for naturalization. Accordingly, this
claim is deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Star has failed to show that there is a nonfrivolous issue on appeal. See
Howard, 707 F.2d at 220. The district court did not err in deciding that his
appeal was not taken in good faith. See id. at 219-20. His request to proceed
IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh,
117 F.3d at 202 n.24; 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481175/ | Case: 21-51201 Document: 00516535134 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-51201
consolidated with FILED
No. 21-51202 November 4, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Dominguez-Resendiz,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-780-1
USDC No. 4:21-CR-838-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-51201 Document: 00516535134 Page: 2 Date Filed: 11/04/2022
No. 21-51201
c/w No. 21-51202
Carlos Dominguez-Resendiz appeals his sentence following his
guilty-plea conviction for illegal reentry after removal in violation of 8 U.S.C.
§ 1326, as well as the revocation of supervised release arising from a prior
conviction and the imposition of a revocation sentence. However, because
Dominguez-Resendiz has failed to raise any challenge to his supervised
release revocation and resulting sentence, he has abandoned those issues on
appeal. See United States v. Pinon-Saldana, 44 F.4th 264, 266 n.1 (5th Cir.
2022).
In the sole issue on appeal, Dominguez-Resendiz contends that the
district court erred by using a 2009 Colorado conviction to enhance his
offense level under U.S.S.G. § 2L1.2(b)(2)(A) because he was 17 years old
when sentenced to Colorado’s Youthful Offender System. We review
whether the Guidelines apply to Dominguez-Resendiz’s prior conviction de
novo. See United States v. Eustice, 952 F.3d 686, 692 (5th Cir. 2020). After
considering the state court sentencing records and the parties’ arguments,
we are not persuaded that the district court erred in concluding that
Dominguez-Resendiz’s 2009 Colorado conviction was an adult conviction
warranting the enhancement. See People v. Miller, 25 P.3d 1230, 1231-32
(Colo. 2001); Colo. Rev. Stat. § 18-1.3-407(1)(d) (2009); § 2L1.2,
comment. (n.1(B)).
AFFIRMED.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481167/ | USCA4 Appeal: 21-4443 Doc: 43 Filed: 11/04/2022 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUOVARTIS SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:21-cr-00068-MOC-DSC-1)
Submitted: October 18, 2022 Decided: November 4, 2022
Before WYNN and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: David Q. Burgess, DAVID BURGESS LAW, PC, Charlotte, North Carolina,
for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4443 Doc: 43 Filed: 11/04/2022 Pg: 2 of 4
PER CURIAM:
Quovartis Spencer appeals the 30-month prison sentence and 3-year term of
supervised release imposed following his guilty plea, pursuant to a written plea agreement,
to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(D); and possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, Spencer argues that the district court erred by
(1) imposing 22 discretionary conditions of supervised release in the written judgment that
were not orally pronounced at sentencing, in violation of United States v. Rogers, 961 F.3d
291 (4th Cir. 2020); and (2) inadequately explaining its rationale for imposing five of the
discretionary supervised release conditions. We affirm in part and dismiss in part.
As an initial matter, the Government contends that the appeal waiver in the plea
agreement bars Spencer’s claim challenging the adequacy of the district court’s explanation
of his sentence. “When the government seeks to enforce an appeal waiver and has not
breached the plea agreement, we will enforce the waiver if it is valid and if the issue being
appealed falls within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603,
608 (4th Cir. 2021) (internal quotation marks omitted). “We review the validity of an
appellate waiver de novo.” United States v. Soloff, 993 F.3d 240, 243 (4th Cir. 2021). “A
waiver is valid if the defendant knowingly and intelligently agreed to waive the right to
appeal.” Id. (internal quotation marks omitted). “When a district court questions a
defendant during a [Fed. R. Crim. P.] 11 hearing regarding an appeal waiver and the record
shows that the defendant understood the import of his concessions, we generally will hold
that the waiver is valid.” Boutcher, 998 F.3d at 608.
2
USCA4 Appeal: 21-4443 Doc: 43 Filed: 11/04/2022 Pg: 3 of 4
Spencer does not assert on appeal that the appellate waiver was not knowing or
intelligent or that his agreement to the waiver was in any way involuntary. Our review of
the plea hearing transcript confirms that Spencer was competent to plead guilty and that he
understood the terms of the plea agreement, including the appellate waiver. Therefore, the
waiver is valid and enforceable. Moreover, Spencer’s challenge to the district court’s
explanation of imposing certain supervised release conditions falls within the waiver’s
scope. See United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (recognizing that
claim “that the district court erred in the process by which it sentenced [a defendant] to the
financial conditions on his supervised release . . . would be covered by the appeal waiver”);
see also United States v. Andis, 333 F.3d 886, 893-94 (8th Cir. 2003) (holding that claim
that district court failed to impose supervised release conditions reasonably related to 18
U.S.C. § 3583(d) factors did not allege “illegal” sentence outside scope of appeal waiver).
Next, turning to Spencer’s claim that the district court failed to orally pronounce
the 22 discretionary conditions of supervised release imposed in the written judgment, a
court may satisfy the obligation to pronounce supervised release conditions at sentencing
through incorporation. Rogers, 961 F.3d at 299-30; see Singletary, 984 F.3d at 345-46.
Here, the corrected sentencing hearing transcript reveals that the district court explicitly
incorporated its own standing order, which included the 22 challenged conditions. (S.J.A.
21). ∗ On this record, we conclude that the district court did not violate Rogers when it
imposed Spencer’s supervised release conditions.
∗
“S.J.A.” refers to the supplemental joint appendix.
3
USCA4 Appeal: 21-4443 Doc: 43 Filed: 11/04/2022 Pg: 4 of 4
Accordingly, we affirm the criminal judgment as to the imposition of the 22
discretionary conditions of supervised release, and dismiss Spencer’s appeal as to adequacy
of the district court’s sentencing explanation. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART,
DISMISSED IN PART
4 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481184/ | 11/04/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0146
No. DA 22-0146
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TYLER FREDERICK ERICKSON,
Defendant and Appellant.
ORDER
Upon consideration of Appellee’s motion for a 10-day extension of time,
and good cause appearing therefor,
IT IS HEREBY ORDERED that Appellee is granted an extension of time
to and including November 24, 2022, within which to prepare, serve, and file its
response brief.
KFS Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 4 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481185/ | 85581: Case View
Nevada
Appellate Courts
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
Cases
Case Search
Participant Search
22-34810: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85581
Short Caption:STIPE VS. SATICOY BAY LLCCourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A858710Classification:Civil Appeal - General - Proper Person
Disqualifications:Case Status:Disposition Filed
Replacement:Senior Justice Gibbons for Justice SilverPanel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantKathleen Susan Stipe
In Proper Person
RespondentSaticoy Bay LLC
+
Due Items
Due DateStatusDue ItemDue From
11/29/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
11/01/2022Filing FeeFiling Fee due for Appeal. (SC)
11/01/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-34309
11/01/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee/Proper Person. No action will be taken on this matter until filing fee is paid. Due Date: 14 days. (SC)22-34312
11/02/2022MotionFiled Appellant's Proper Person Motion for Stay. (SC)22-34497
11/04/2022Order/DispositionalFiled Order Dismissing Appeal. The district courts have final appellate jurisdiction over cases arising in the justice courts. Accordingly, this court lacks jurisdiction over this appeal, and therefore "ORDERS this appeal DISMISSED." fn1 [In light of this order, no action will be taken on the pro se motion to stay filed on November 2, 2022.] EC/KP/MG. (SC)22-34810
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481186/ | 85471: Case View
Nevada
Appellate Courts
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
Cases
Case Search
Participant Search
22-34825: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85471
Short Caption:SHAWN (RICK) VS. STATECourt:Supreme Court
Related Case(s):55549, 84830
Lower Court Case(s):Clark Co. - Eighth Judicial District - C255019Classification:Criminal Appeal - Life - Other/Proper Person
Disqualifications:HerndonCase Status:Disposition Filed
Replacement:Senior Justice Gibbons for Justice SilverPanel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantRick Shawn
In Proper Person
RespondentThe State of NevadaAlexander G. Chen
(Clark County District Attorney)
Aaron D. Ford
(Attorney General/Carson City)
+
Due Items
Due DateStatusDue ItemDue From
11/29/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/07/2022Filing FeeAppeal Filing Fee Waived. Criminal. (SC)
10/07/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-31717
11/01/2022OtherJustice Douglas W. Herndon disqualified from participation in this matter. Disqualification Reason: Sat in District Court Proceedings. (SC)
11/04/2022Order/DispositionalFiled Order Dismissing Appeal. This court's review of this appeal reveals a jurisdictional defect. "ORDER this appeal DISMISSED." EC/KP.MG. (SC)22-34825
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481181/ | Case: 22-50216 Document: 00516534918 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50216
FILED
November 4, 2022
In the Matter of Carl N. Merkle Lyle W. Cayce
Clerk
Debtor,
Carl N. Merkle,
Appellant,
versus
Johnny W. Thomas, Chapter 7 Trustee,
Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-1278
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
This court has “an independent obligation to determine whether
subject-matter jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-50216 Document: 00516534918 Page: 2 Date Filed: 11/04/2022
No. 22-50216
(2006). “Federal appellate courts have jurisdiction over appeals only from
(1) a final decision under 28 U.S.C. § 1291; (2) a decision that is deemed final
due to jurisprudential exception or that has been properly certified as final
pursuant to Fed. R. Civ. P. 54(b); and (3) interlocutory orders that fall into
specific classes, 28 U.S.C. § 1292(a), or that have been properly certified for
appeal by the district court, 28 U.S.C. § 1292(b).” Askanase v. Livingwell,
Inc., 981 F.2d 807, 809-10 (5th Cir. 1993).
This bankruptcy appeal does not fall under any of those categories.
The notice of appeal states that it concerns an oral order by the bankruptcy
judge, not a final order from the district court. And the district court had
only issued only one order at the time, an order to show cause, that was non-
appealable. Accordingly, the appeal is dismissed for lack of jurisdiction.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481663/ | BEE, J.
The first point made for the plaintiff in error is upon the demurrer to the whole declaration for alleged misjoinder of counts'. Some of the counts are upon causes of action for which trespass could certainly be maintained, and these, it is said, could not be united in the same declaration with the others which are strictly appropriate to the action of trespass on the case.
*That this would be so at common law, there is no doubt, and such misjoinder would be fatal on general demurrer. Our statute however in relation to the action of trespass on the case, has, I think, materially modified the rule -as to misjoinders. By ch. 148 of the Code of Virginia, section 7, (at p. 589) it is provided that in any case in which an action of trespass will lie, there may be maintained an action of trespass on the case.—Thus, then, upon the several causes of action in this declaration for which trespass would lie, case may be maintained; and as the action is case, and the declaration purports in its introduction, to be wholly in case, those counts for the matters of which it is said trespass would lie, may be considered counts in case with as much propriety, as counts in trespass. And being for matters which are made the subjects of counts in case by the statute, there can be no reason why they may not be properly united with others which are appropriate at common law to. the same action. That the object of the legislature was to remove the difficulties at common law growing out of the nice distinctions between the cases in which trespass was the proper action and those in which the remedy was case, may be true, but in carrying out this object, they have abolished in effect the distinction between these different causes of action in a declaration in case; for that they may be united in such a declaration, is, as it seems to me, a necessary corollary froth, the provision which authorities case to be maintained where the action of trespass would lie also.
I think there is nothing in the objection, and that the demurrer was properly overruled.
Upon the separate demurrers to the several counts in the declaration, the counsel for the plaintiff in error has forborne to insist except as to those in which there is no averment of malice or want of probable cause; and very properly, as all those counts are clearly good. And as *to those in which neither malice nor want of probable cause is averred, I think no serious doubt can be entertained. If the party had given the bond required by law upon suing out the capias, in a suit upon it for the damages sustained by the defendant in the action by reason of his arrest and imprisonment through the act of the plaintiff or otherwise, no averment of malice or want of probable cause would be necessary; and the plaintiff cannot, be less liable nor can more be required to be averred where the capias is unlawfully sued out without giving the bond. For if one be arrested and imprisoned upon a capias sued out by another unlawfully, or without complying with the condition upon which it might lawfully be issued, and which is afterwards set aside, he is clearly entitled to recover damages for the injury he has sustained without reference to the particular motive by which the party suing out the capias may have been prompted, though where the suing out the process was through malice and without any reasonable cause, the damages would doubtless be aggravated because of the motives by which the party was actuated. 2 Stark. Ev. 261; 3 Rob. P. 619; Parsons v. Lloyd, 3 Wils. R. 341; S. C. 2 Wm. Bl. R. 845; Turner v. Felgate, 1 Lev. R. 95; 1 Sid. R. 272; T. Ray. R. 73; Barker v. Braham, 3 Wils. R. 368; Codrington v. Lloyd, 8 Ad. & El. 449 (35 Eng. C. L. R. 433); Curry v. Pringle, 11 John. R. 444; Bissell v. Gold, 1 Wend. R. 210. And even in case of a misnomer in the capias though the right party be arrested, yet he can maintain trespass against the plaintiff, and the process will be no justification. Shadgett v. Clipson, 8 East’s R. 328; Mead v. Hawes, 7 Cow. R. 332; Griswold v. Sedgwick, 6 Cow. R. 456; Same v. Same, 1 Wend. R. 126.
I think there was no just objection to the proof of the fee paid by the plaintiff in the action to counsel to set aside the process under which he had been arrested, and *procure his discharge from imprisonment. Several of the counts in the declaration allege that the plaintiff was put to great charges and costs in obtaining his release from imprisonment, and the fee paid for that purpose to counsel might be given in evidence to the jury. Bull. N. P. 13; Sandback v. Thomas, 1 Stark. R. 306; 2 Greenl. Ev. § 456, and authorities cited in note n, 1 and 3.
The whole fee paid would not necessarily be allowed by the jury, for they would judge of its reasonableness, and in their estimate would allow only what they thought just and proper on that account; but there could be no objection to its being proven that the fee was paid.
' In reference to the subject of the second and third bills of exceptions it may be re-, marked that whilst it is not at all times easy to see the exact bearing of evidence offered upon the issue between the parties, it is sometimes difficult to say that it is so ■utterly irrelevant that it may mislead the jury and should for .that cause be excluded’. Evidence may seem not to bear immediately *37and. directly upon the contested matters of fact in the cause, yet it may serve to illustrate the conduct of a party by throwing light upon the motives by which he may have been prompted; and where this is a material inquiry if the evidence tend to do this in any degree, it ought not to be rejected although the court tnay think it not entitled to great weight with the jury. Now the evidence of both Phillips and Gibson was of this character. A short time before the capias was sued out, the defendant spoke to the witness Phillips in an angry and excited manner about the plaintiff, complained of an alleged injury that he had received from him, and intimated a determined purpose “to go to work” upon him, and to make -some use of the matter against him at the next Circuit court. The feeling which he manifested was of any thing but a kind and friendly character.—The witness Gibson was the president of a branch bank *at which the plaintiff had been a borrower, “in the town of Romney, some distance from the residence of these parties; and being on a visit to Randolph county, he fell in with the defendant; and in conversation, the latter very unnecessarily introduced the subject of the indebtedness of “the Harpers,” (no doubt including the plaintiff,) and made a remark plainly calculated to impair their credit at bank, and which appears to have had its effect upon the mind of the witness. If the testimony of these witnesses did not bear directly upon the subject of the capias sued out by the defendant, it certainly tended to show the mind and feeling of the defendant towards the plaintiff, and with the other circumstances of the case might serve to make out the malice imputed to him.—Chambers v. Robinson, 1 Str. R. 691; 2 Stark. Ev. $ 64; 2 Greenl. Ev. $ 453, and authorities cited. I cannot undertake to say that the Circuit court erred in permitting it to go to the jury to have such weight as they might think it entitled to.
The fourth bill of exceptions was to the introduction of the record of the case in which the affidavit was made and the capias complained of sued out. It is conceded that so much of the record as disclosed the suing out of the process, and that it was quashed by the court, might properly have been in evidence, but it is insisted that all the rest was inadmissible.
In general, when a record is to be given in evidence, the whole record should be produced. Thus it is said where any record is exemplified, the whole record must be exemplified; for the construction must be taken from the view of the matter taken together. 3 Inst. 173; 3 Bac. Ab. by Bouvier (Phil. Ed. 1852) “Evidence,” E. p. 536; and Chief Baron Comyn says “the whole record which concerns the matter in question ought to be produced,” 4 Com. Dig. “Evidence,” A, 4, p. 89; 2 Phil. Ev. 188. There may be cases doubtless *in which by way of exception to the general rule, parts of the record have been held sufficient for the purpose for
which they were introduced; but in them there could be no objection to the production of the whole. And although it might have been sufficient in this case, if the party desired only to prove the suing out of the capias and that it was quashed, to read so much of the record as went to that extent, yet I conceive, the party had a right to read the whole. If there was any portion of it not proper for the consideration of the jury, the party should have pointed it out distinctly, and asked the court to instruct the jury to disregard it. See Buster’s ex’or v. Wallace, 4 Hen. & Munf. 82; Harriman v. Brown, 8 Leigh 697. The objection therefore was too broad and not made in the proper mode. But I do not perceive why the whole record was not proper for the jury. All the facts and circumstances connected with or surrounding the transaction in issue are proper to be considered for its more perfect elucidation; 1 Greenl. Ev. § 108 et seq., 2 Ibid. ? 89. The record offered was of the case in which the affidavit and capias complained of occurred, and the facts which it disclosed were closely connected with the wrongful act complained of. It showed that the defendant had instituted an action against the plaintiff for malicious defamation, claiming a large amount of damages, and had caused the plaintiff to be unlawfully arrested and imprisoned to answer this demand.—It further showed that his allegations were unfounded, that he had no cause of action, and that he had not the slightest ground on which to sue out the capias. All this, as it seems to me, was strictly germain to the issue between the parties, and was matter which the jury might well consider on the question of malice in connection with the other circumstances of the case, and in making their estimate of the damages which the party was entitled to recover. 2 Greenl. Ev. § 89; Ibid. § *267; Merest v. Harvey, 6 Taunt. R. 442; Bracegirdle v. Orford, 2 Maule & Sel. 77; Tullidge v. Wade, 3 Wils. R. 48; Shafer v. Smith, 7 Har. & John. 67; 2 Greenl. Ev. § 272. Upon both grounds, I think the court properly permitted the record to be read.
The fifth bill of exceptions related to the instruction given b3r the court to the jur3r, on the motion of the plaintiff below, and is much complained of by the plaintiff in error here. The instruction was given after the case had been argued before the jury; and it may be inferred, from its peculiar character, that it was drawn up by the plaintiff’s counsel, with a view to meet various arguments urged by the defendant’s counsel, which they deemed unsound. It is certainly not a model of judicial brevity or skillful generalization ; and the court might well have declined giving it in the precise terms demanded, and have modified it so as to propound the law in more succinct and general terms. As it did give it, however, in the terms of the bill of exceptions, the only inquiry here is what proposition of law it announces, and whether it be correct or otherwise. And it seems to amount *38simply to this: That if the jury believed the defendant had unlawfully sued out process of arrest against the plaintiff, and had caused him to be imprisoned upon it, and the process was afterwards set aside because illegally issued, it constituted no defence to the party, but that the plaintiff was entitled to recover damages for the wrong done him, without regard to the motives of the defendant, or the circumstances attending the doing of the wrongful and unlawful act.- Thus construed, the instruction involves no other question than what has been already considered upon the demurrers to the several counts in the declaration; and I will not repeat what has been said as to them. I think there is nothing in the instruction for which the -judgment should be disturbed.
*With regard to the instruction moved for by the defendant, the refusal to give which by the court constitutes the subject of his sixth bill of exceptions, it may be remarked, that as it does not appear that any evidence was offered tending to show that he had probable cause to believe, and did believe, when he sued out the capias, that the plaintiff in the action was about to depart from the State, the instruction asked for was of so abstract a character that the refusal of the court might be justified upon that ground. But even if the party had probable cause to apprehend his departure, yet if he sued out the process unlawfully, and caused the plaintiff to be imprisoned, the recovery of the latter was not to be restricted to merely nominal damages and the costs of setting aside the process. Por, although if the act were done without malice, the party might not be liable to exemplary and vindictive damages; yet, certainly, the act being unlawful, and in violation of the plaintiff’s right, he was entitled to recover for the loss of time, interruption of his business, and the suffering, bodily and mental, which the act might be shown to have occasioned. I think, therefore, the instruction was properly refused.
Another and the last ground of error alleged, is that the .jury was not legally constituted. This was probably assigned through inadvertence. The 8th section of chapter 162 of the Code, which' requires twenty-four jurors to be summoned, where a special jury is allowed, of whom eighteen are to be chosen by lot, has been replaced by the twenty-seventh section of chapter 27 of the Sessions Acts of 1853, (p.' 46,) which requires the panel to be twenty, and sixteen to be chosen therefrom by lot. So that the jury was constituted strictly in the manner prescribed by the existing law. But if it had been otherwise, and there had been irregularity in forming the jury, unless the party is shown to be injured by *it, the objection should have been made before the swearing of the jury. Sess. Acts 1852, ch. 27, § 25. Certainly it would come too late when made for the first time in this court.
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Tee, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481664/ | DANIRR, J.
Neither of the counts in the declaration is good as a common law count in slander. To say of a party that he swore to a lie is not of itself actionable at common law. Such a charge does not necessarily imply perjury. In case of a charge of forswearing, unless, from the accompanying words, it be clear that a judicial forswearing was meant, the plaintiff must show upon the record, that the defendant alluded to some particular forswearing which amounted to perjury. 1 Starkie on Slander, 355; Hopkins v. Beedle, 1 Caines R. 347.
The first count in the declaration, whilst it sets out in its prefatory or introductory statements, that the defendant in error, before the speaking of the words by the plaintiff in error, had been examined on oath, and had given his evidence as a witness in an action depending before two justices of the peace, has no allegation or averment that the words complained of were spoken in relation to said evidence. In the colloquium, no allusion even is made either to the action aforesaid or to the *evidence, of the plaintiff in error, given therein. The defect was fatal. Hawkes v. Hawkey, 8 East’s R. 427 ; 3 Strobh. R. 455; Sanderson v. Hubbard, 14 Verm. R. 462.
The insufficiency of the second count is still more obvious. It is without any of the introductory averments of the first count. The averment in the innuendo, that the plaintiff in error,' in speaking the words meant to charge the defendant in error with perjury, cannot serve to supply the want of previous statements showing that the words were sx^oken in reference to sworn evidence given by the defendant as a witness on examination in a judicial proceeding. An innuendo is explanatory of subject matter sufficiently expressed before; and it is explanatory of such matter only; it cannot extend the sense of the words beyond their own meaning, unless something is put on the record for it to explain. Vanvechten v. Hopkins, 5 John. R. 211; Sheely v. Briggs, 2 Har. & John. 363; Porter v. Hughey, 2 Bibb’s R. 232; Mosely v. Moss, 6 Gratt. 534.
It seems to me quite clear, also, that, unless certain provisions in the Code, which will be.presently noticed, are to be construed as having altered the rules of pleading in the particular under consideration, neither of the counts can be sustained as a sufficient count for insulting words. In the case of Mosely v. Moss, (just cited) this court held that the legislature did not design, by the act then in force, to interfere with the common law actions for defamation; that a party aggrieved might still proceed at the common law as if the statute had never been made, or might avail himself of the statutory remedy when applicable to his case. That if he proceeded under the statute he should declare under the statute; and that if he did not declare under the statute his declaration, to be good, should properly charge words amounting to slander at common law; that *he could not blend *40charges for the statutory' and the commonTaw grievance in the same count; and that when, therefore, the plaintiff, on the face of his declaration, treated the grievance as a common law defamation, he should be held to his own construction of the words, and required to make out such a case by his pleading and evidence; and, failing to do so, could not recover for an insult (under the statute.
It'is true, there is some apparent conflict between the decision of the court in Mosely v. Moss and its previous decision in the case of Brooks v. Calloway, 12 Leigh 466; inasmuch as the court, in affirming in the last mentioned case the judgment of the Circuit court, rejecting the plea of justification to the first count of the declaration —which, whilst it averred the words complained of to be slanderous, was plainly defective as a common law count for defamation—proceeded on the assumption that said count might be relied on, under the statute, though it neither averred that the words were insulting, nor made any reference to the statute, to indicate that the action was founded on it. It is to be observed, however, that in Brooks v. Calloway there was no demurrer to the declaration; and-that the main question discussed and considered, was, whether treating the first count as a count for insulting words under the statute, a special plea of justification to part of the words charged in said count ought to have been rejected by the Circuit court; whilst in Mosely v. Moss there was a demhrrer to the declaration, in passing upon which, the question how far the mode of declaring, in actions for defamation, had been regulated or affected by our legislation, was distinctly presented to, and fully considered by, the court; and that, of the four judges composing the court in the last mentioned case—all of whom concurred in sustaining the demurrer—three were also members of the *court in Brooks v. Calloway, and had united in rendering the decision made in that case.
The case of Mosely v. Moss is, therefore, I think, entitled to be treated as furnishing the rule on the subject, as matters stood under our former statute. Such a rule is, as I conceive, in strict accordance with the general principles of pleadings, it being well settled, as a general rule, that in a statutory action, the offence or act charged to have been committed or omitted by the defendant, must appear to have been wi.thin the provision of the statute, and all the circumstances necessary to support the action must be alleged, or in effect appear on the face of the- declaration. 2 Saunders on Pl. & Ev. 410. The propriety of the rule, too, it is worthy to be noticed, has been strongly vindicated by the decisions of one of our sister States. The State of Mississippi, at an early period, adopted our act of 1810, and in cases arising under the statute there, the Supreme court, in repeated decisions, have uniformly held that, in counting under the statute, the declaration must contain an averment, that the words, according to the | common acceptation, were insulting and calculated to lead to violence and breach of the peace, or some other averment of like import. Scott v. Peebles, 2 Smeedes & Marsh. 546; Davis v. Farrington, Walker’s R. 304; Warren & wife v. Norman & wife, Ib. 387.
It is argued, however, that the change in the law, as it was enacted in 1810 and in 1830-31, made by the second section of the one hundred and forty-eighth chapter, and the introduction into our system of the new provisions to be found in the forty-fourth section of the one hundred and seventy-sixth chapter, of‘the Code, were designed by the legislature to effect, and should be treated by the courts as affecting, an entire abrogation of the rule in question, as declared in Mosely v. Moss; and that now, whether the plaintiff proceeds *as for. defamation at common law, or charges words that could be actionable only under the statute, no demurrer to the declaration is to preclude the jury from passing on the case. It is said that the main reason on which the rule was rested, was the alleged necessity of informing the defendant distinctly whether he was proceeded against for common law defamation, or merely for insulting words; a necessity (as was supposed) arising out of the consideration that, as the law formerly was, the character of the defence allowable was dependent on the nature of the accusation; a plea of the truth of the words being admissible in cases of common law defamation, and not in cases of words actionable only by the statute, that the Code now allows the defendant in each class of cases to plead the truth of the words, and that, consequently, there no longer exists (if there ever existed) any necessity for or propriety in the rule requiring the plaintiff to show by his declaration whether he imputes to the defendant a slander or merely an insult.
It must be conceded, I think, that the effect of the legislation under consideration, is to extend the plea of justification to words made actionable by the statute. The language of the 44th section of the 176th chapter of the Code is general: “In any action for defamation the defendant may justify b3r alleging and proving that the words spoken or written were true.” It is true that the word defamation has a technical sense as a generic term, comprehending the two species of words slanderous at common law, spoken and written slander, and nothing more. When it is considered, however, that though in some of the earlier cases Bord Hardwicke and other English judges, denied that in suits for libel the defendant could plead the truth of the words in justification; yet that it has been long and well settled, as well in England as in this country, that the plea of the *truth of the words is a good justification in actions for either species of slander, it is very hard to suppose that the legislature used the word in question in its restricted technical sense, and designed, by the new provision under consideration, *41merely to confer upon parties a right which it was the well known uniform course of the courts to accord, in the absence of legislation. It is to be observed, too, that in the clause of the section allowing the defendant to give in evidence, in mitigation of damages, that he made and offered an apology to the plaintiff for the defamation, &c., the term in question is used in the identical sense in which it is employed in the clause allowing the defendant to justify, &c. ; and that there is no conceivable reason why the legislature, in allowing proof of an apology, should restrict the privilege to proceedings for words defamatory at the common law; such proof being quite as appropriate to suits for insult. When, in addition to these considerations, it is further observed that the legislature, whilst re-enacting, in the second section of the 148th chapter, the law making actionable all words which, from their usual construction, &c., are considered as insults, have left out of the second clause of the section so much of the former law as declared that no plea or exception should preclude the jury from passing on the words, and have restricted the inhibition to the sustaining of a demurrer only, it is, I think, impossible to avoid the conclusion that the legislature designed, by the new provision on the subject, to extent to defendants in suits for insulting words, the right to plead and prove the truth of the words. Whether the extension of this privilege is to be construed by the courts as free from all exception or qualification, is a question about which I deem it unnecessary to express any opinion. In Brooks v. Calloway, Judge Allen, in the course of his opinion, supposed many instances of insults—“allusions to personal *defects, family misfortunes, and
the like,”—in which the words would be the more insulting because of their truth ; and if in such cases the plea of justification were allowed, “the law, (as he said) which proffered redress for insult, would furnish the opportunity of aggravating the outrage, and be itself an insulting mockery.” In Mosely v. Moss, also, Judge Baldwin, after reasoning to show that the truth of the insulting words in actions founded upon the statute, should be admitted in mitigation of damages, as a general rule, remarked that such a rule was not free from exception. “On the contrary, (he observed) cases may doubtless occur in which, from their very nature, the truth of the words would be irrelevant, impertinent, and scandalous. ’ ’ After citing certain instances of the kind, he concluded that “it was competent for the courts to exclude evidence wholly irrelevant to the merits of the controversy, especially when absurd or indecent in its character, or wantonly offensive to the feelings and reputations of third persons. ’ ’ In this connection it is proper to add, that the rule which, at the common law, allows the truth of the words to be pleaded inactions for defamation, considers the plaintiff as having excluded himself from the protection of the law by his own misconduct. The reason assigned by Mr. Starkie for allowing the plea of justification is, that “when a plaintiff is really guilty of the offence imputed, he does not offer himself to the court as a blameless party, seeking a remedy for a malicious mischief; his original misbehavior taints the whole transaction with which it is connected, and precludes him from recovering that compensation to which an innocent person would be entitled.”
In cases of the kind just alluded to, it is obvious, there is an entire absence of all the reasons on which the right on the part of the defendant to plead and prove the truth of the words can be supposed to be founded. The *words, however insulting, or however well calculated to injure the feelings of the parties aggrieved, impute no fault or misconduct to him; proof of the truth of the words would not, therefore, even tend to show that there was anything in his conduct or character worthy of blame or reproach, and the only tendency of the proof, as was said by Judge Baldwin, in Mosely v. Moss, “would be to gratify the malice of the defendant.”
There is, as I conceive, therefore some room for the argument, that, broad as are the terms in which the right to justify in actions for defamation is given, the statute is still to be construed in reference to that general power and discretion in the courts, adverted to by Judge Baldwin, as before mentioned, so to control the pleadings before them as to prevent their being used as mere vehicles of scandal. Whilst, therefore, conceding to the defendant in error that the Code does according to its fair construction, allow of the plea of justification in actions for insulting words, I do not wish to be understood as thereby expressing the opinion that the privilege is wholljr free from exception.
As already stated however, the counsel for the defendant in error is, I think, correct in assuming that, as the law now is, the defendant may (as a general rule) plead and prove the truth of the words in all actions for words, whether slanderous at common law or made actionable by our statute. But I cannot think that the argument which he seeks to found on such assumption is sound.—The effect of the new provision on the subject is to destroy the force of some of the reasoning on which the rule in Mosely v. Moss was rested, but not of all. The decision in that case was based not merely on the difference in the character of the pleas appropriate to the common law, and the statutory proceeding, but also, on well settled general principles of pleading; and there still exist, as I conceive, substantial reasons for keeping up *the distinction established in that case, between the several modes of declaring for slander and for insulting words. It may be still a matter of very grave importance to the defendant to be distinctly apprised of the precise nature of the accusation against him. Though entitled to a plea of justification in either *42case, it by no means follows that a defendant would make the same defence to words proceeded for as insulting merely, which he would make to the same words construed and treated by the plaintiff as slanderous. On the contrary the extent to which the defendant’s own character may be involved in the controversy, and the mode and measure of the resistance to the action which he may consequently feel it incumbent upon him to make, may depend on the construction placed by the plaintiff in his declaration on the words complained of. Of this the case in hand itself furnishes one of the best illustrations. Whether the words, for the speaking of which the action is'brought, do or do not import a charge of perjury depends on whether they were spoken in connection with and in reference to certain extrinsic facts and circumstances, or not. Notwithstanding a plea of justification is now allowable in either aspect of the case, the character and the quantum of evidence to sustain this plea would be very different in the former view of the' case from what they would be in the latter. It seems to be well settled, that when the defendant justifies to a charge of prejury he must prove all the particulars which constitute the crime of perjury; viz: the deliberate deposition, the lawfully administered oath, the judicial proceedings, the absoluteness of the matter testified to, its materialitv to the point in question direct or collateral, and its falsity. Hopkins v. Smith, 3 Barb. S. C. R. 602; Clark v. Dibble, 16 Wend. R. 601. And the falsity of the words must be proved either by two witnesses or by one witness and strong circumstances conducing to that end. The oath of the *accused, who is presumed innocent until proved guilty, is held to stand as the oath of a disinterested witness.—A single witness poises the scale of evidence; and some evidence, material, independent' and corroborative of the testimony of the accusing witness,' either positive.or circumstantial, is required to turn the scales and prove the charge. Same cases; and Steinman v. McWilliams, 6 Barr’s R. 171; Woodlick v. Keller, 6 Cowen’s R. 118.
On the contrary, if the declaration be treated as imputing to the defendant merely that he had charged the plaintiff with having sworn to a lie, not on oath in a judicial proceeding, the testimony required to support a plea of justification would depend on the general rules of pleading and evidence.
It seems to me obvious, therefore, that if when the declaration has nothing on its face to show that the plaintiff treats the words as insulting and actionable under the statute, the defendant is not to be allowed to test by a demurrer whether ‘the declaration is good as for a defamation at common law, he may, in many cases, labor under embarrassments and difficulties, in determining on his defence, to which it is not just and fair, that the plaintiff should be allowed to subject him. In actions, whether criminal or civil, our laws of pleading generally recognize and proceed upon the propriety of notifying the defendant fully of the precise nature of the offence or grievance for which he is held to answer. In actions of the kind under consideration where the estate and character of the defendant are both involved in the controversy, it seems to me eminently proper that he should have such notice. The language used by the legislature in respect to the demurrer in the 2d section of ch. 148, Code, is still the same that it was in the former law; and in Mosely v. Moss this court decided that the inhibition, in respect to allowing the demurrer, was restricted to cases where the suit was for words, made *actionable by the statute. If the legislature had designed in 1849 to take away from the defendant the right to demur to a declaration counting as for a common law defamation, it is difficult to suppose that they would not have done so by the simple declaration, that in no action for defamation shall a demurrer preclude a jury from passing on the case. They would hardly have resorted, instead, to the awkward stratagem of an implied repeal of the right to demur in one class of cases, to be deduced from a clause giving the defendant a right to justify in the other.
I think that the rules in respect to the declaration stand, in the particular under consideration, as they did before the Code; that when the plaintiff proceeds under the statute, he must in his declaration aver that the words from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace; or else employ some other equivalent averment to denote that the words are actionable under the statute; that when there is no averment of the kind in a declaration, it may be demurred to as defective, unless it sets out properly, and in substantial compliance with the rules of pleading, such a charge as constitutes defamation at the common law; and that it is not competent for a plaintiff to blend the common law and statutory causes of action in one. count.
Tested by these rules each count is clearly insufficient. They have been shown to be defective as counts for slander at'common law. They are equally so as counts for insulting words. The first count uses no expression whatever, to show that the plaintiff is relying on the statute. In the second count it is true the words are alleged to be false, slanderous, malicious, defamatory and insulting, but they are followed by the innuendo, that the defendant meant by the words, that the plaintiff was guilty of perjury. This count is plainly in violation of *the third rule just announced. On the other questions presented by the petition I deem it unnecessary to express an opinion, as they may not again arise in the court below.
I am of the opinion that the Circuit court erred; that instead of affirming it ought to have reversed the judgment of the County court with costs, and to have set aside the verdict of the jury, and to have rendered *43a judgment for the plaintiff in error, unless the defendant in error on leave obtained from that court, had amended his declaration. It is therefore considered that the judgment be reversed, &c., with costs, and the cause remanded for further proceedings in accordance with the principles herein declared.
The other judges concurred in the opinion of DANIEB, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481665/ | ABBEN, P.,
delivered the opinion of the court:
The defendant in error, the holder of a protested negotiable note, instituted an action of debt against R. A. Hogshead the maker, and the plaintiffs in error, and Harman and Snapp who are endorsers.
The action was a joint one under the act of assembly, and the defendants in the court below' united in the pleas of “nil debet” and usury. By the record it would seem that issue was joined on the plea of nil debet only, but the bill of exceptions shows that on the trial the defendants offered the testimony which was objected to in support of both pleas. It has been conceded in argument here that issues were made up, and the case tried on both pleas; and that the plaintiffs in error are entitled *to the benefit of their exceptions, if the evidence offered and rejected was legal and relevant to either of the issues.
After issues had been joined as aforesaid, and various proceedings had, the maker confessed judgment in the clerk’s office for the debt in the declaration mentioned, with interest thereon till paid, the charges of protest, and the costs of suit; and final judgment was thereupon entered against him separately.
On the trial, after the plaintiff had given | in evidence the negotiable note and protest, the defendants, in support of the issues joined on the pleas of nil debet and usury, gave in evidence the said confession of judgment by the maker, and then proposed to read as evidence the deposition of the maker, with a release to him by the two prior endorsers who are the plaintiffs in error here.
The reading of this deposition was objected to upon the ground, that the maker was an incompetent witness on the score of interest in the event of the suit, as the two last endorsers, Harman and Snapp, had not released him. The court excluded the deposition from the jury, and the correctness of this decision is the only question for consideration here.
It was decided in Taylor v. Beck, 3 Rand. 316, that a party to a negotiable instrument was a competent witness to invalidate it. In that case, the witness was an endorser, and was offered to invalidate the note by proving usury. The conflicting decisions of the English courts in Walton v. Shelley, 1 T. R. 296; and Jordaine v. Lashbrook, 7 T. R. 601; were reviewed by the judges, and the rule adopted in the last case was approved, and has ever since been recognized and followed in this State. But in the case of Taylor v. Beck, the witness was rejected, not because he was a party to the negotiable note, but because, owing to the proceedings there, he had a certain interest in the event of the canse to be ^effected by the verdict being given in evidence against him. There, as here, suit was brought against the several parties to the negotiable instrument jointly under the act of assembly. The endorser, offered as a witness, confessed judgment. The court held that his confession, as the law then stood, could only be received and entered as an interlocutory judgment dependent on the final judgment to be rendered in the cause; that the confessing defendant must receive the same judgment as his co-defendants; he was therefore interested in the final judgment, and as costs might be incurred after his confession, he was interested to that extent, and was thereby rendered incompetent. Conceding for the purposes of this case, as it has been insisted on by the plaintiffs in error, that by the Code, p. 651, ch. 171, i 41, it was proper to take a confession of judgment in the clerk’s office, after the case was upon the trial docket, and that by the Code, p. 653, ch. 171, | 49, such a confession in a joint action by one of the joint-defendants is final; that he thereupon ceases to be a party to the record as to all subsequent proceedings, not responsible for any further costs incurred by the other defendants thereafter in continuing to defend the cause, and therefore not interested in the final judgment; a new provision, introduced since the case of Taylor v. Beck was decided, materially effects the question of competency in this case.
By the Code, p. 587, ch. 146, 'i 6, it is provided, “that if any person liable as bail, *44surety, guarantor, or endorser, &c., shall pay in whole or in part any judgment, decree, or execution rendered or awarded on account of such liability, the person having right of action for the amount so paid may by motion in the court, in which the said judgment, decree, or execution was rendered or awarded, obtain judgment or decree against any person, against whom such right of action exists, for the ^amount so paid with interest from the time of payment and five per centum damages on said amount.”
Notwithstanding the release of two of the endorsers to the maker, he still continued responsible to Harman and Snapp, late endorsers, who were jointly sued, not only for the amount that they might be compelled to pay on the judgment, with interest from time of payment, but also for the five per centum damages on said amount. This liability to these damages is a liability over and beyond the amount for which he is liable under the judgment confessed by him, and a verdict and judgment thereafter rendered against his endorser, would be conclusive evidence against the maker of the right of the endorser to recover in such motion the five per centum damages on the amount paid. The words, “may by motion, &c.,” do not, as was insisted in argument, show that the liability for these damages is contingent, depending upon the mere discretion of the court. These words refer, not to the court, but to the party.
The remedy given by the statute is cumulative. He has his common law right of action, or he may proceed by motion. If he does resort to the latter remedy, the court has no more discretion to refuse to give judgment for such damages, than it has to refuse to give judgment for the amount paid with the interest.
The witness, therefore, was directly interested in the event of the suit against his endorsers, an interest to be effected by the verdict and judgment being given in evidence against him upon a motion to recover the amount paid by any such endorser, with interest and the five per centum damages: and, therefore, in the absence of a release by any endorser who was a defendant in said joint action, . and had united in the joint pleas of nil debet and usury, the maker was an incompetent witness to invalidate the instrument by proof of usury.
This conclusion is- not in conflict . with the case of *Steele v. Boyd, 6 Leigh 547. That was an independent motion by the security in' a delivery bond for an exoneratur, on the ground of an agreement between the creditor and principal, to give the latter time. The principal had no interest in the result of this motion; his liability for the debt would not be effected by the discharge of his surety, or the failure of the suretjr to be exonerated from it; for, as judge Tucker observed in that case, 1 ‘if this were so, then in all cases where the surety is discharged by the creditor’s conduct, the principal will, be discharged also, which cannot be pretended.” In that case, therefore, the witness stood indifferent. He-continued liable for the debt, whatever might be the result of the surety’s motion, he was no party to the proceeding, was not liable for the costs, and the judgment therein, if against the surety, could not be evidence against the principal in any other proceeding. In this case the judgment against the endorser is the foundation upon which the motion rests to recover from him the amount paid by the endorser, with the interest and five per centum damages.
I think the court properly held the maker to be an incompetent witness in this case to invalidate the note, and that the judgment should be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481666/ | AHHUN, P.
This case presents the same question as to *the competency of the maker to be examined as a wit*46ness, which was raised in the case of Mills v. The Central Savings Bank. The circumstances being alike in every particular, as to this matter, the cases were argued together. For the reasons assigned in the other case I think the deposition of the witness was properly excluded.
In this case however there are other questions presented which must be considered.
The first exception taken by the defendants in the court below, was to the refusal of the County court to continue the cause when regularly called, in consequences of the surprise of'one of the counsel of said defendants, and the personal inconvenience to which he would be subjected if the trial was then pressed. The original counsel of the defendants was in court and alleged no want of preparation. It was not alleged that any witness or other evidence was absent. And the want of preparation as to one of the counsel was merely that he had not examined the papers or considered the questions of law involved.
The cause assigned furnished no legal grounds for a continuance. It was a question between the counsel and the clients, and addressed itself to the courtesy of the bar, but did not authorize the court to continue against the consent of the other party.
After the motion to continue was overruled, a motion was made to remove the cause to the Circuit court because it had been pending in the County court more than twelve months. The court properly refused to remove the cause at that time, as has been decided in the case of Spengler v. Davy, 15 Gratt. 381.
From the second bill of exceptions it appeared that two interrogatories had been propounded to the plaintiff in pursuance of the Code p. 667, ch. 176, § 38.
The first interrogatory was in these words, “From *whom did you get the note in suit?” To which the plaintiff had responded in the following words—“I got the note in suit from the defendant John Crawford, who, so far as I had any knowledge, was the owner of it.” —The defendants’ counsel moved to strike from the answer, the last clause as not responsive. I think there was no error in overruling this motion. The object of the interrogatory would seem to have been to ascertain not so much from what person the holder obtained the note, for that appeared by the endorsements and was alleged in the declaration, which averred the endorsement by John Crawford the last endorser to the plaintiff, but to ascertain in what character he endorsed, whether as a mere accommodation endorser or agent for the maker or some previous endorser, or as owner for value. In this view the clause was directly responsive to the substantial purport of the interrogatory. If that was not the object of the interrogatory, it does not appear how the clause objected to was material, and if immaterial it does not appear how it could have injured the defendants.
The second interrogatory required the plaintiff to say if he got the note from Crawford, what did he pay him for it.
Although the record does not show that issue was made up upon the plea of usury after the cause was remanded to the County court, yet it appears from the bills of exception and has been conceded in argument here, that the case was tried on both pleas. And as the defendants below got the benefit of the defence, the decisions of the court must be construed with reference to these joint pleas in which ail the defendants below united, and upon which the cause was tried.
The plaintiff having refused to answer the second interrogatory propounded, the defendants moved the court to compel him to answer it, avowing, in submitting their *motion, their purpose to be to ascertain what the plaintiff had paid to Crawford for the note, in order to fix the measure of his recovery against said Crawford; and not to force the plaintiff to discover usury in the transaction. The motion to compel him to answer was overruled and the defendants excepted. In one aspect of this interrogatory a question might arise as to the measure of recovery, whether the amount of the face of the note or the sum actually paid by the holder.
The cases in this State of Whitworth v. Adams, 5 Rand. 333; McNeil & Turner v. Baird, 6 Munf. 316; Wilson v. Lazier, 11 Gratt. 477; would seem to establish that the bona fide holder, the question of usury being out of the case, is entitled to recover from all the parties the amount of the face of the note. So that if the case stood alone upon the plea of nil debet the answer to the interrogatory would have been immaterial, and the defendants were not injured by the refusal to compel the plaintiff to respond to the interrogatory.
■The interrogatory was objectionable on another ground; the discovery sought was of a matter personal to the last endorser. The previous endorsers, there being no question of usury, would be liable for the amount of the face of the note. The action and plea were joint, and a joint judgment must have followed. If the last endorser had desired to raise the question, and it could have availed him, there should have been a separate plea. But there is still another and decisive objection to the motion, an objection made at the time as appears from the bill of exceptions; that is that the said defendants should have withdrawn their defence of usury, before the plaintiff should have been required to answer the interrogatory.
The Code ch. 176, § 38, p. 667, authorizes the court to require answers to interrogatories such as the person to whom they are propounded"would be bound to answer upon a bill of discovery. The bill of discovery ^referred to, means the pure bill of discovery as understood in equity practice; McFarland v. Hunter, 8 Leigh 489; and not a bill for discovery and relief. And the party to a cause is not *47bound to answer interrogatories which may subject him to a penalty or forfeiture. Under the general provisions of the law, a bill for the discovery of usury could not be maintained even if the plaintiff expressly waived any right to the penalty or forfeiture. For by the Code p. 577, ch. 141, § 11, the penalties and forfeiture go to the commonwealth and informer, were not vested in the plaintiff seeking the discovery and could not be released by him. So no disclosure could be enforced. The 3rd section of the act of 1819 compelled a discovery a* the suit of a borrower; and if it appeared there was usury, obliged the creditor to accept his principal money without any interest, and pay costs; and discharged him from all other penalties of the act. The Code p. 577, ch. 141, $ 7, authorizes a similar bill, compels a discovery, and provides that the lender shall recover where there is more than lawful interest reserved, only his principal money without interest, and pay the costs; but does not like the act of 1819, in express words discharge him from the other penalties of said act. And it may be a question, in consequence of this omission, whether the party may not be compelled to answer notwithstanding the penalties are not released. Such construction would not conform to the spirit of the common law, which as judge Baldwin remarked in Poindexter v. Davis, 6 Gratt. 481, 490, jealous of the liberty of the citizen protects him from being made his own accuser, or forced to give evidence against himself. In conformity with these principles I should be inclined to construe the act in the Code as not having changed the rule; and that where a discovery was made under the 7th section before referred *to, the party would not be subjected thereby to the other penalties of the act.
Be this as it may, the bill authorized by the Code, ch. 141, $ 7, is not a pure bill of discovery, referred to by the law authorizing the propounding of interrogatories; but a bill for discovery and relief, and for relief of a peculiar kind, which can alone be administered in a court of equity, and for which the machinery of a court of law is not adapted. The relief given is to be administered by a court of equity according to its own mode, and the remedy is given by statute only upon bill filed tobe relieved from all but the principal money. The provision being one by which upon the discovery all interest is forfeited, should be strictly construed, and restricted to the mode and the tribunal referred to in the statute. I think therefore as long as the defendants in the court below insisted on their defence of usury, the plaintiff in the action was not bound to answer the interrogatory, and so give evidence which on the plea of usury might invalidate the note.
The paper referred to in the last bill of exceptions, executed by the plaintiff in the court below to John Crawford, was intended to operate as a release to Crawford only upon the contingency that the previous endorsers were discharged. It reserves the right to proceed against him with the previous endorsers; and therefore did not dispense with a release from Crawford to the maker to render him competent.
Unless all the endorsers could be discharged by his testimony invalidating the note, the prior endorsers would be liable to the last endorser. The release could not enure to the benefit of the last endorser until all were so discharged, and until such discharge the maker continued liable for the five per cent, damages on the amount paid by any endorser on a judgment recovered against him.
*1 think there is no error in the judgment to the prejudice of the plaintiffs in error, and that the same should be affirmed, with damages according to law, and costs.
The other judges concurred in the opinion of Allen, P.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481670/ | AUDEN, P.
A notice at the instance of the Commonwealth was given to the plaintiff in error, a sheriff and the securities in his official bond, that a motion would be made for a judgment against them for a balance of license taxes. The notice having been duly proved on the day specified, the defendants were called but came not, and at the instance of the Attorney General the motion was docketed and continued to a future day of the same term. It was afterwards continued at the like ^instance to other days named until the 21st February, 1860, when on the motion of the Attorney General it was continued until the then next regular term of said 'court for the trial of civil causes. On a subsequent day of the same term the last order of continuance was set aside at the instance of the Attorney General, and on his motion the court proceeded to render a judgment against the sheriff and his securities; to which judgment a supersedeas has been awarded by this court.
From the foregoing statement it seems that the defendants named in the notice never appeared or made any defence to the motion, and the preliminary question arises whether this court has jurisdiction at this time to decide upon the regularity of the proceedings.
The Code p. 681, ch. 181, 'i 5, provides, that the court in which there is a judgment by default or a decree on a bill taken for confessed, or the judge of said court in 'the vacation thereof, may on motion reverse such judgment or decree for any error for which an appellate court might reverse it, if the following section was not enacted, and give such judgment or decree as ought to be given. § 6, the following section referred to in the foregoing section, directs that no appeal, writ of error or supersedeas shall be allowed by an appellate court or judge for any matter for which a judgment or decree is liable to be reversed or amended on motion as aforesaid, by the court which rendered it or the judge thereof, until such *57motion be made or overruled in whole or in part.
These sections of tbe Code embrace the provisions contained in the Rev. Code of 1819, p. 512, U 108, 109, 110, authorizing clerical mistakes, &c., to be amended in certain cases by the court in which a judgment or decree was rendered, or the judge thereof in vacation; and also the provision contained in the act of March 12, 1838, Sess. Acts p. 74, extending the act of Jeofails, to judgments rendered in the circuit courts for default of ^appearance, and providing for the reversal of such judgments by the court rendering them, or the judge thereof in vacation, for certain errors which would be ground for the reversal thereof in the court of appeals. The Code applies to all judgments by default whether for want of appearance or for failing to comply with any rule, and authorizes the reversal for any error for which an appellate court would reverse.
The term judgment by default strictly and technically applies to actions at common law only, and it is argued that as under a statutory proceeding of this kind there is no judgment at rules, and no judgment can be entered in court in the absence of all proof of claim, it is not a judgment by default, but a judgment on the merits, which cannot be reversed by the court which rendered it, and therefore not embraced by the Code in the sections referred to.
There is force in this argument, but it seems to me that although not a technical judgment by default at common law, a proceeding by notice falls within the equity, and was intended to be embraced within the scope of these provisions of the Code. Claims of the Commonwealth and many claims of individuals were recoverable by motion on ten days’ notice before the Code. This mode of procedure having worked well in practice, the Code p. 640, ch. 167, $ 5, authorized any person entitled to recover money by action on any contract to obtain a judgment on motion after sixty days’ notice.—Under these provisions of the law in regard to motions a large proportion of the recoveries for money will be obtained on motion. In dealing with the subject of errors and amendments the legislature must have had in contemplation all modes of procedure by which judgments were to be rendered. The statutes in relation to this subject of Jeofails are remedial and should receive a liberal construction. We have seen that the legislature *has been gradually extending the power of the court rendering a judgment, or the judge in vacation to correct mere clerical errors and reverse judgments for errors in the proceedings at rules, &c., to which the attention of the court had not been called. Thus the Revised Code authorized the amending of judgments by correcting clerical mistakes. The act of 1838 authorized the court to reverse such judgments for illegal orders at.rules or in case of any variance between the writ and declaration. And the Code still extending the remedy, gives to the court which renders the judgment or to a judge in vacation authority to reverse a judgment by default for any error for which an appellate court might reverse it. The object of the legislature was to save the parties the delay and costs of an appeal to correct such irregularities and formal errors; errors which seldom affect the merits of the controversy, and which would have been corrected at once by the court if pointed out. The case of a motion comes within the reason of the statute, and I think the term judgment by default was intended to apply to all judgments where there was default of appearance. If the error be one for which the judgment might be reversed in an appellate court, no appeal, writ of error, or supersedeas should be allowed until after motion to the court or judge has been made and overruled. In the case of Preston v. Auditor, 1 Call 471, there was a judgment on a motion against a sheriff’s security, who failed to appear. The law then required that the property of the sheriff should be ascertained to be insufficient before proceeding against the surety. The court said that every court should state on record legal grounds for the judgment. But that it being stated that it appeared to the court that the property of the sheriff was insufficient, it was enough. That the appellate court could not inquire how this was made to *appear, and that it was the default of the appellant that he did not appear and have the whole evidence stated.
In Cunningham v. Mitchell, 4 Rand. 189, there was a motion by a security to recover money from a person alleged to be a principal ; there was no appearance for the defendant. In the report it is said judgment was rendered by default. And Judge Green, in delivering the opinion of the court, states that the defendant cannot now, after submitting to a judgment by default, object in this court to the truth of the sheriff’s return ; thus giving to the judgment the effect of a judgment by default, and styling it a judgment by default. I think the legislature used the phrase in the same sense in the act under consideration, and that this must be considered as a judgment by default in the meaning of the law, and that the supersedeas should not have been allowed until a motion had been made to the court in which the judgment was entered or the judge of said court in the vacation thereof, and overruled. And that the supersedeas having been improperly allowed should be dismissed.
The other judges concurred in the opinion of Allen, P.
Supersedeas dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481672/ | DANIEE, J-
The note upon which the suit was brought was dated at Washington and made payable at a banking house in that city; and we must look to the law of that place for the rule by which to ascertain the true nature of the contract entered into by the endorser. No proof of that law having been given on the trial the first question presenting itself is, whether said law is one of» which the Circuit court was bound to take notice judicially.
As a general rule no court takes judicial notice of a ^foreign law ; and this rule has very properly, I think, been recognized as determining the question of how far the courts of any one of the states formerly composing the United States were bound to take notice of the laws of any other one of those states. The relation of the United States to each other in regard to all matters not surrendered to the general government by the constitution, were those of foreign states in close friendship, each being sovereign and independent; and the courts have very generally held that, therefore the laws of one state were to be proved in the courts of another only as other foreign laws. 1 Greenl. on Ev. § 489.
In section 490 of the same work, however, the author states that, because of the reciprocal relations between the national government and the several states, the courts of the United States take judicial notice of all the public laws of the respective states, whenever they are called upon to' consider and apply them; and in like manner the courts of the several states take judicial notice of all public acts of Congress, including those which relate exclusively to the District of Columbia, without any formal proof. I have been unable to find any case in which the latter member of the foregoing proposition, so far as it relates to the District of Columbia, has been in terms judicially announced by the supreme court of any one of the states, though it seems to me that it must be as the author has stated it.
By the 8th section of the 1st article of the constitution of the United States, the Congress was clothed with exclusive legislation over the District which should become the seat of the government of the United States; and by the 6th article it is declared that the constitution and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.
*The District of Columbia having become, by the cession of Maryland and Virginia and the acceptance of Congress, the seat of the government of the United States, it is difficult to conceive-on what grounds it is to be said that a public act of Congress in relation to said district, passed in the exercise of its exclusive legislation over said district,is not a law of which the courts of the states were bound, to take *120notice, judicially. It is by cdmity only that contracts made in one state are enforced by the courts of another state according to the laws of the former; and no state is bound to enforce a contract made in another state which is contrary to its general policy and laws. But it is obvious that a state court in enforcing a contract made in the District of Columbia according to the lex loci contractus cannot proceed upon any notion of comity; in as much as if it did it would have a right to disregard such law if found in conflict with the law of the state; and this right it could not exercise without violating the constitution, the lex loci contractus, in such case, being a law of Congress, which, if to be noticed at all, is to be observed as a supreme law, and binding upon the court though it should be in conflict with the laws of the state. In other words, if in enforcing a contract made in the District of Columbia a state court is bound to notice, at all, the laws of the place, regulating such contracts in the District of Columbia, it must treat them as it does any other public - acts of Congress passed in pursuance of the constitution, which it is required to administer, to wit, as supreme public laws of the land—laws which the court is presumed to know and is bound to notice without requiring them to be first proved.
The act of Congress to which reference is had above, is an act passed the 27th February, 1801, by which it is declared that the laws of the State of Virginia as they now exist, shall be and continue in force in that part of *the District of Columbia which was ceded by the said states to the United States, and by them accepted for the permanent seat of government; and that the laws of the State of Maryland as they now exist, shall be and continue in force in that part of said district which was ceded by that State to the United States, and by them accepted as aforesaid. Brightly’s Digest 251. At the time of the passage of this act the statute 3 and 4 Anne ch. 9, in relation to promissory notes, was, as is conceded, and as is seen from the reports of several decisions of the Supreme court of Maryland, cited at the bar, a law of that State; and by that statute, all notes in writing payable to any person or persons, his, her, or their order, are assignable or indorsable over in the same manner as inland bills of exchange are or may be; and all persons to whom such • notes are indorsed or assigned may have their actions thereon against the maker or any of the persons that indorsed the same in like manner as in cases of inland bills of exchange. By this law, thus made the law of the city of Washington, the indorsers, if duly protested and notified by protest, were liable on the note on which the, suit was brought, in like manner as they would have been on a regularly protested inland bill of exchange; and by the 10th and 11th sections of ch. 144, Code 1849, an action of debt is given when any note or writing by which there is a promise, or undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby or his agent. And it is further declared that upon any such note which on its face is payable at a particular bank or a particular office thereof for discount and deposit, or the place of business of a savings institution or savings bank, and upon any bill of exchange, whether such note or bill be payable in or out of this State, if the same be protested, an action of debt may be maintained and judgment given jointly against *all liable by virtue thereof, whether drawers, indorsers or acceptors, or against one or any intermediate number of them, for the principal and charges of protest, with interest thereon from the date of such protest.
If the steps in relation to the protest and notice have been regular there would thus, as I conceive be nothing wanting to maintain the action. The protest is iii regular form, and the only question remaining to be considered is as to the sufficiency of the notice.
None of the cases cited by counsel, comprehend in their decisions all the points in respect to notice arising out of the proofs in this; though several of them bear a close resemblance to it in some important features. Thus in the case of P. Chouteau v. Daniel Webster, 6 Metc. R. 1, in which the notice was held sufficient to charge the indorser, when the note on which the suit was brought, which was payable at New York, fell due, the indorser, Mr. W. was at Washington attending to his duties at a session of Congress, as a senator from Massachusetts. His general domicil and place of business was in Boston, where he at all times had an agent who had the charge and management of his business affairs in his absence; though the holder.of the note had no notice that he had such agent, nor had the indorser requested that notice should be sent to him at Boston. Notice of the non-payment of the note was seasonably put into the post office at New York, directed to the indorser at Washington, where letters addressed by mail to members of the senate during the session of Congress, were taken from the post office by officers charged with that duty and deliyered to the members in their places when the senate was actually in session, and on other days were delivered by those officers at the members’ lodgings. In that case, as has been seen, the' senate was in session, and Mr. Webster was in Washington at the time the notice was sent. In this case Congress had adjourned *and the indorser had left Washington, a.few days after the adjournment and some ten or fifteen days before the note was protested;' and it was proved that it was his general habit to leave Washington immediately after the adjournment of Congress, and not return until the commencement of the next session. So in the case of Graham v. Sangston, 1 Maryland R. 59, the indorser at the time of the maturity of the bill wqs a member of the general assembly of Maryland, then in session, and boarded at a hotel in Annapolis, the seat of *121government; and the notary gave notice by leaving the notice at the room of the indorser in the hotel; but whether the indorser was in Annapolis on the day that the notice was given did not appear; nor was there any proof in respect to the general domicil of the indorser. The notice was decided to be sufficient.
In the last case the fair inference from the facts is, that the indorser must in fact have received the notice—the notice being left at his lodgings where he was then staying in attendance upon the legislature. The case would apply here if in this case Congress-had been in session at the time the notice was left at the house of Bayly in Washington.
The residence of a member of Congress at Washington during the session of Congress is a matter required by law; and so long as the session continues it is but just and reasonable to inter that the member is where the discharge of most important public duties demands of him that he should be. It was on such grounds, mainly, that the court in Chouteau v. Webster, justified the notice to the indorser in that case.
Strong, however, as are the reasons on which this case was decided, it is opposed by the case of Walker v. Tunstall, 3 How. Miss. R. 259. In that case the indorser, Robert J. Walker, was a member of the United States senate; the senate was in session; and he was proved to *have been in Washington attending to his duties of senator at the time of the protest; notice of which was sent in' good time by mail directed to him at Washington. The proofs in this cause tended to show that Mr. Walker had a general domicil in the State of Mississippi ; and in passing upon certain instructions given in the court below, the supreme court of Mississippi held in such a state of facts, that when the indorser has a residence in the state which he represents the notice should be sent to such residence; and if his residence is not known due diligence should be used to ascertain the same ; and that notice sent to Washington city is not sufficient. The cause being remanded for a new trial, that trial was had, and a verdict and judgment obtained in the court below in favor of the indorser. The plaintiff in the action then appealed, and we have a report of the case on its second hearing in the Supreme court of the state in 2 Smeedes & Marsh. R. 638. It now appearing from the additional facts proved on the second trial, that the indorser had no general domicil, or known place of residence or business, at the time of the protest, the court held that notice sent to him at Washington city was sufficient to fix his liability. The two decisions of the court are not in conflict; and their joint result is to declare that notice sent to a member of Congress who has no known place of residence, is good if directed to him at Washington, whilst Congress is in session, and he is there engaged in the discharge oE his official duties; but that such notice is not sufficient if he has a I known place of residence, except upon a. | failure of the notary to ascertain the resi- ] dence after having used due diligence to I ascertain it.
I It seems to me, that the rule declared in i Chouteau v. Webster is the more reasonable ! one, but, seeing, that in the opinion of learned and able judges, it is deemed too broad already, I do not feel disposed to extend it still ^further than any case has yet gone, and make it embrace a notice directed to a member of Congress at Washington after the adjournment of Congress, and after the member had in fact left the city. The presumptions which uphold the notice during the session of Congress seem to me to have nothing to sustain or justify them after the body has adjourned. The presumption is then the other way. It is then but reasonable to suppose that the members have left the city and gone to their respective homes; and it is difficult to believe that any notary in Washington could remain for many days ignorant of the adjournment of Congress. The indorser had been, at the time of the protest, for more than ten years a member of Congress ; punctual in his habit of attending Congress during its session, and regular in his habit of leaving Washington immediately after the adjournment and of not returning until the commencement of the ensuing session. Very little diligence used by the notary in enquiring of the citizens of Washington, would (we must believe) have acquainted him with the fact, if he did not already know it, that the indorser was a member of Congress from Virginia, having his general domicil in that State, and residing in Washington only during the sessions of Congress; that Congress had adjourned and that he had as was his habit, left the city. It does not appear that any enquiry of the kind was made. The fact that the note was dated at Washington it is well settled does not dispense with due diligence to ascertain the residence of the indorser in cases where, if the note were dated elsewhere such diligence should have been used. Upon a view of all the facts I do not think that the notice was sufficient; and the court it seems to me erred in giving the instructions complained of, and in refusing to set aside the verdict and grant a new trial. It seems to me that the judgment should be reversed, *the verdict set aside, and the’ case remanded for a new trial.
AEEEN, P., and ROBERTSON, J., concurred in the opinion of Daniel, J.
MONCURE, E, dissented. He thought the notice sufficient.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481673/ | MONCURE, J.,
delivered the opinion of the court.
The principal question to be decided in this case is, as to the sufficiency of the excuse for not giving oyer of the writing obligatory on which the action is founded. The declaration, or rather the amended declaration which is regarded as the commencement of the pleadings in the case, made no profert, but the defendant craved oyer, of the said writing obligatory; according to the provision in the Code, chap. 171, sec. 9, which makes it unnecessary in any action to make profert of any deed, but declares that a defendant majr have oyer in like manner as if profert were made. The excuse for not giving oyer is in these words :
*125*“The plaintiff, in answer to the oyer craved by defendant of the original bond upon which this action is founded, and for reason for not producing it says that the original bond is now on file in the ‘Circuit court of the United States for the county of Washington in the District of Columbia; that he the plaintiff has applied to the said court, since the institution of this suit, for said original bond; that said ■application was opposed by the defendant; and that the court therefore refused to deliver to the plaintiff said original bond; ■and so it is impossible for the plaintiff to produce said bond, after the use of all means in the power of plaintiff to produce it. And this he is ready to verify. Wherefore he prays judgment, &c.”
To this excuse there was a demurrer which the court sustained, and the plaintiff waiving the leave granted him to plead any further excuse, judgment was rendered for the defendant.
It was a general rule of the common law that where a party in pleading claimed or justified under a deed and was presumed to have it in his possession, he was bound to make profert of it, or a sufficient excuse for not doing so. 1 Chit. pi. 365. The rule had its origin in the solemnity attending the execution of deeds, and the dignity formerly attached to such instruments. One reason assigned for the rule was, that the court might be enabled by inspection to judge of the sufficiency of the deed. Another was, to enable the adverse party to have oyer of it and better make his answer or defence. Stephens in his work on pleadings, p. 441, assigns a different one from these, which, as he says, have long since become obsolete though in practice profert was still continued to be made.
Whatever may have been the origin or reason of the rule, it had long been considered in England as matter of form and not of substance, the statute 4 Anne, c. 16 ^having expressly declared that the omission of profert should be ground only of special demurrer, 1 Chit, pi. 641; until, at length in 1852, it was altogether abolished by 15 and 16 Viet. c. 76, $ 55, which provides that “it shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading; and if profert shall be made it shall not entitle the opposite party to crave oyer of, or set out upon oyer, such deed or other document. ” 3 Rob. Prac. 507. Our Code, enacted a few years before, did not go so far; but only dispensed with the necessity of making profert, while it retained the right of craving oyer in like manner, as if profert were made.
So that now, when a party craves oyer of a deed under which his adversary claims or justifies, the latter must produce it, or give a sufficient excuse for not doing so; and the question as to the sufficiency of the excuse for not giving oyer is precisely the same as was the question formerly as to the sufficiency of the excuse for not making profert. The question to be considered in this case therefore is, whether the excuse made for not giving oyer is sufficient according to the settled principles of law in regard to profert.
An excuse which, from a very early period was allowed as sufficient was, when the deed had been pleaded and remained in another court. A deed was supposed to remain in court during all the term at which it was pleaded, but no longer; unless the opposite party during that term plead in denial of it; in which case it was supposed to remain in court till the action was determined. Steph. 88. Another excuse allowed from a very early period was, when the deed was in the hands of the adverse party, or had been destroyed by him. It was at one time doubted whether the loss of a deed was a good excuse for not making profert; and the jurisdiction of equity in such cases is founded on the idea which ^formerly existed that there was no remedy at law. But in Read v. Brookman, 3 T. R. 151, it was held by the court of King’s Bench that it was a sufficient excuse for not making profert of a deed that it was “lost and destroyed by time and accident.” This is a leading case on the subject, and placed it on the true ground, which is that the law compels no one to do an impossibility. Indeed Lord Coke had placed it on the same’ ground in assigning as a reason why a deed remaining in one court may be pleaded in another, without shewing forth, quia lex non cogit ad impossibilia. Where-ever therefore a partjr cannot produce a deed, at least unless his inability proceed from his own wilful act, he is not bound to give oyer of it. We regard this as a true test, though we do not mean to say it is the only one.
Let us apply this plain and simple test to the present case, and see whether according to it the excuse here given is sufficient. The formula of stating the excuse in the approved precedents of pleading is very general; as, that the deed has been lost or destroyed by accident; or, that it is in the possession of the defendant, &c. ; and that therefore, the plaintiff cannot produce the same to the court. 1 Chit. Pl. 349; 2 Id. 439; Steph. 441. In this case the excuse is stated very fully and formally, and the substance of it is; that the original bond on which the action was brought was then on file in the Circuit court of the United States for the county of Washington in the District of Columbia; that the plaintiff had applied to the said court since the institution of this for said bond; that said application was opposed by the defendant; and the court therefore refused to deliver the bond to the plaintiff; and so it was impossible for the plaintiff to produce it after the use of all the means in his power to do so. This excuse comes fully up to the requisition of the test before stated, and not only shows an impossibility on the part *of the plaintiff to produce the deed, but that such impossibility has been occasioned by the act of the defendant himself, who, by demurring to the excuse, ad*126mits the truth of it. We are therefore of opinion that the excuse is sufficient.
It is not necessary for the excuse to show that the part}1- making it is entitled to the custody of the deed, but on the contrary that he is not so entitled, or is otherwise unable to produce the deed. Nor is it necessary for the excuse to show that the plaintiff is entitled to recover the money mentioned in the deed and claimed in the action. The right to such recovery must be tried under the general issue or some other issue directly made up -for the purpose; and not in a collateral enquiry, the only object of which is to ascertain whether oyer ought to be given of the deed. It is supposed that a defendant who craves oyer desires to have it, and will himself do nothing to prevent his having it. His object in craving it is, to be better able to make his defence after he gets it, and not to make his defence in the act of craving it.
An excuse for not producing a deed may be made in the declaration, or it may be made in another form after oyer is craved by the defendant. . Suppose the declaration contains neither proferí nor any excuse for not.making it, and the defendant - appears at rules when the declaration is filed and craves oyer, as he did in this case; what ought then to be the course of proceeding? Ought oyer to be given or a good excuse for not giving it made before the defendant is required to plead? or may the clerk proceed, as he did in this case, to mature it for trial at the next term by giving a rule to plead, and entering a judgment in the office by nil dicit? If the original deed be filed with the declaration, as is generally the case, the defendant should at once take oyer of it and demur or plead at his election; but if the deed be not so filed, and the defendant will not "plead without ojrer, the clerk may properly take the rules, as he did in this case, without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court unless there be good cause for a continuance. If an excuse for not giving oyer can be made at rules its sufficiency can only be determined by the court, and there is no reason for making it until the next term of the court after oyer is craved.
But it was argued by the counsel for the defendant in error that though the excuse in this case be sufficient, the demurrer thereto goes back to the declaration, which is faulty, and the judgment should therefore for the defendant.
It is true as a general rule that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. But to this rule there are exceptions; as when the plaintiff demurs to a plea in abatement, in which case the court, deciding against the plea will give judgment |of respondeat ouster, without regard to any defect in the declaration. So the court, in examining the whole record to adjudge according to the apparent right, will consider only the right in matter of substance, and not in respect of mere form, such as should have been the subject of special demurrer. Steph. 162-4.- We think that this case also is an exception, and that in deciding on the demurrer to the excuse the court ought not to go back to the declaration. The excuse is a mere collateral matter, certainly standing on no higher ground than matter of abatement. The law prescribes no mode of making it. It may be made as well ore tenus as in writing. And the objection to it may be made as well orally as by a formal demurrer. If made orally, the objection would of course not reach back to the declaration and make it necessary for the court to pass upon its "sufficiency.
It can have no such effect if made formally by demurrer. There can be no legal difficulty, and generally no inconvenience, in presenting the question on both sides ore tenus. It is a question for the court to decide, (unless an issue of fact be made up thereon for the jury), and may be disposed of by its rules and orders like any other collateral question coming up for its decision in the course of legal proceedings before it. The case is analogous to a proceeding to enforce the production of an instrument not under seal on which an action or defence may be founded and which the court may require to be produced for the inspection of the adverse party. 3 Chit. Gen. Prac. 433, 619; 2 Arch. Prac. 219. An error of the court in deciding the question when it comes up orally would be liable to review and correction by an appellate court, as well as when it comes up formally by written excuse and demurrer. In the former case the point could be put upon the record by a bill of exceptions. In the-latter it would be put there by the pleadings,, and the decision of the court thereon which would be entered in the order book.
Even if the demurrer to the excuse operated as a demurrer . to the declaration it would be to the whole declaration, and not to each count severally. As the craving of oyer and excuse go to the whole, so also-must the demurrer to the excuse, if it goes to the declaration at all; according to the principle of the case of Ward v. Sackride, 3 Caine’s Rep. 263, referred to in 1 Rob. Pr. (old) 290. That principle is, that a. demurrer by the plaintiff to the defendant’s, plea cannot operate as a demurrer by the defendant to the plaintiff’s declaration to any greater or less extent than the plea of the defendant was pleaded to the declaration. If therefore a declaration contain two counts the first of which is confessedly bad, and the plea of the defendant is to the whole cause of action, extending as well to-the first "count as to the second; upon a demurrer by the plaintiff to this plea, judgment cannot be given for the defendant upon the ground that the first count is bad. In this view of the case we would have to consider it as upon a demurrer to the whole declaration; and we must so consider it, because there was a demurrer to the declaration which was not decided upon by the Circuit court otherwise tham *127by giving judgment for the defendant on his demurrer to the excuse. The whole record is before this court; and if upon the whole, judgment ought to be for the defendant, the judgment of the Circuit court must be affirmed. We will therefore proceed to consider the case upon the demurrer to the declaration.
It is a general demurrer, and indeed could not have been otherwise, the action having been brought since the enactment of the Code which abolished special demurrers. And it is a demurrer to the whole declaration, and must therefore be overruled if either count be good. We think both counts are good, at least in substance.
As to the first count; a formal objection is taken to it which would be unavailing if well founded, to wit: that it sets out the cause of action by way of recital. But it is not even well founded. The quod cum, as it was called, might always have been used, and generally was, in actions ex contractu, though not in actions of trespass. But the chief objection taken to the first count is, that it does not aver performance of a condition precedent, to wit: that the plaintiff’s testator was first duly authorized to receive the amount demanded in the action. This condition precedent is supposed to be created by the use of these words in parenthesis, “(they being first duly authorized to receive the said amount),” which follow the agreement to secure on real estate the several sums of money to the several parties mentioned in the instrument.
In deciding upon the demurrer we *must construe the instrument by itself, and cannot look to the cases in 4 Peters 205, 9 Id. 418, and 12 Id. 145, or any thing else dehors the instrument, for explanation. So construing it, the words in parenthesis are insensible, and cannot affect the obligation of the express promise to pay the money. They must be treated and rejected as surplusage. An obligation is construed most strongly against the obligor. He must take care to use intelligible words to express any condition precedent he may wish to impose on his obligation. Of course, the obligee is duly authorized to receive a sum of mone3r which the obligor expressly promises to pay him; there being nothing in the instrument to show how or by whom the obligee is to be otherwise duly authorized. If the words can derive such explanation from the light of extrinsic facts as would give them effect, it devolves on the obligor to allege and prove the facts in his defence. The shifting of the burden of allegation and of proof is the only consequence of his neglect to express his intention plainly, provided he has so expressed it as that, with the aid of extrinsic facts any effect at all can be given to it. The instrument is not a deed inter partes between Lloyd and Schofield. The latter is not a party to it, and his name is not so mentioned therein as to show that he has any interest in it.
As to the second count, the only objection taken to it is that it does not sufficiently aver performance of the condition precedent, supposing the words in question to create one. It avers such performance in the very words of the condition, to-wit: that the plaintiff “is duly authorized to receive” of the said John Lloyd the said sum of $1100 with interest thereon as aforesaid. It is a general rule that a breach of a covenant or other contract may be assigned in the very words of the contract. 3 Rob. Prac. 590-597, 4 Id. 8. And that is generally the best and safest mode of assigning it. In
Martyn v. *Clue, 83 Eng. C. L. R. 681, Lord Campbell said, in answer to an objection to an assignment of this kind, 1 ‘Ho authority was cited to show that an allegation of the breach following the words of the covenant was insufficient; and we find no principle for so holding. The defendant must be taken to have understood the application of the covenant he chose to make.” A breach need not be assigned in the words of a covenant, but may be assigned in equivalent words; as in Eletcher v. Peck, 6 Cranck’s R. 87, 127, cited in 3 Rob. Pr. and 4 Id. 6, where it was objected to the declaration that the covenant was that the legislature had a right to convey, and the breach was that the legislature had no authority to convey. Marshall, C. J., said: “It is enough that the words of the assignment show unequivocally a substantial breach. The assignment under consideration does show such a breach. If the legislature had no authority to convey, it had no right to convey.” Generally the same rules which apply to an assignment of breaches also apply to an averment of performance of a condition precedent. If there be any difference the rules which apply to the latter are less stringent than those which apply to the former. The courts, especially in England, have gone very far in sustaining the sufficiency of averments of performance of conditions precedent. 3 Rob. Prac. 571, 578.
It is true that it is sometimes insufficient to follow the words of the contract, but it is necessary to be more specific. And it is also true that there are cases which decide that the declaration should not present for the determination of the jury what is matter of law; or partly of law and partly of fact; as that a party was duly appointed administrator; or was duly appointed receiver; but it should state what in particular was done; so that if the fact be admitted, the court can determine whether he was duly appointed; or, if issue be joined on the allegation, the jury can answer as to its truth. 3 Rob. Prac. 530 and the cases cited.
*But whether or not, according to the strict and technical rules of pleading, the averment, being in the very words of the deed, is sufficient; or should have been more specific; or should have been only of matter of fact; certainly the defect, if there be one, is only of form and not of substance, and, since special demurrers have been abolished, is not now ground of demurrer. The Code, ch. 171, § 31, provides *128that “on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment, according to law and the very right of the cause, cannot be given.” The important words, “whether it has been heretofore deemed mispleading or insufficient pleading or not,” were added at the last revisal, and seem to be a very material extension of the operation of the law. The most that can be said of the defect in question is, that it might have been deemed insufficient pleading before the enactment of the Code; and not that anything is omitted in the declaration so essential to the action that judgment according to law and the very right óf the case cannot be given.
We are therefore of opinion that the words in parenthesis do not create a condition precedent, the performance of which it is necessary for the declaration to aver, and therefore the first count is good; and if they did, that performance of the condition precedent is sufficiently averred in the second count, which is therefore good; and one, if not both, of the counts being certainly good, the demurrer to the declaration cannot be sustained.
The result of the foregoing opinion is that the judgment must be reversed, the excuse for not giving oyer sustained, the demurrer thereto overruled, and the defendant required to answer without having oyer.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481674/ | MONCURE, J.
This is a.supersedeas to a judgment of the circuit court of Halifax
county, reversing a judgment of the county court setting aside and reversing an office judgment confirmed of the latter court in an action of debt, brought by the defendant against the plaintiffs in error, on a promissory note. The summons was directed to the sheriff of Halifax county, and was returned, “Executive in person. Eielder Cage D. S. for James R. West, Sheriff.” The common order was entered at Eebruary rules 1858, (to which the summons was returnable), *and was confirmed at the following March rules, and the office judgment, not' having been set aside, became final on the 22nd of the same month. A motion was made, on notice, to set aside and reverse this judgment on various grounds; and it was accordingly set aside and reversed at the following July term of the county court. The judgment of reversal was, itself, afterwards reversed by the circuit court; to whose judgment a supersedeas has been awarded by a judge of this court; and that is the case now under consideration.
The only error assigned in the judgment of the circuit court is that the plaintiffs in error, who were defendants to the action in the county court, do not appear to have been served with the process summoning them to answer. If they do appear to have been so served then there is no error in the judgment; as the Code ch. 171, $ 18, provides that a defendant, on whom the process summoning him to answer, appears to have been served, shall not take advantage of any defect in the writ or return, unless the same be pleaded in abatement; and there was, in this case no plea in abatement. The only evidence in the record of service of the process on the defendants is the return thereon, which is clearly sufficient, unless there be some requisition of law not therein complied with which makes it insufficient. The following provisions of the Code embrace all the requisitions of law upon the subject.
Chap. 49, \ 28. “Every officer to whom any order, warrant pr process may be lawfully directed, shall make true return thereon of the day and manner of executing the same, and subscribe his name to such return. Where the service is by a deputy, such deputy shall subscribe to the return his own name as well as that of his principal. ” “Any officer failing to comply with this section shall forfeit $20, and if he make a false return, shall forfeit therefor $100.”
*Chap. 170, § 5. “The process to *129commence a suit shall be a ‘writ commanding the officer to whom it is directed, to summon the defendant to answer the bill or action.”
Chap. 170, l 6. “Any summons or scire facias against any person may be served as a notice is served under the 1st section of chap. 167; to which end the clerk issuing such process, unless otherwise directed, shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served. No judgment by default on a scire facias shall be valid if it become final within one month after the service of such process. ’ ’
Chap. 167, | 1. “A notice, no particular mode of serving which is prescribed, may be served by delivering a copy thereof in writing to the party in person; or, if he be not found at his usual place of abode, by delivering such copy and giving information of its purport to his wife or any white person found there, who is a member of his family and above the age of 16 years; or, if neither he nor his wife, nor any such white person be found there, by leaving such copy posted at the front door of said place of abode. Any sheriff or sergeant thereto required, shall serve a notice within his bailiwick, and make return of the manner and time of service; for a failure so to do he shall forfeit $20. Such return, or a similar return by any other person who verifies it by affidavit, shall be evidence of the manner and time of service. ’ ’
The supposed defect in the return in this case is, that it does not state the manner and time of service. Admitting that to be a defect which might be pleaded in abatement, yet, there having been no plea in abatement, is it a fatal defect even after judgment by default?
A return of ‘ ‘ executed, ’ ’ made by an officer whose duty it is to execute the process, shows that it was served *on the defendant according to its mandate, and it will be presumed that the service was in the mode prescribed by law. The officer acts under oath, and is bound by bond with surety for the faithful discharge of his official duties. He not onty incurs the specific penalty imposed by law for any failure, but is bound for all damages sustained by any person in consequence thereof. The law gives him credit for knowing his duty, or binds him for all the consequences of not knowing it. It also gives him credit for an intention to do his duty, until the contrary be shown. When, therefore, process comes to his hands for execution, and he returns it “executed,” it appears from the return to have been served on the defendant within the meaning of the Code chap. 171, § 18.
That brief form of return was almost universally used on capias ad respondendum on which no bail was required. Indeed the statute directed the officer in such case to return the writ “executed,” I. R. C. 1819 p. 491, | 42. It was also the form of return of a scire facias; Id. 506, \ 66; and of a summons, when that was the proper process instead of a capias. Id. $ 68. Formerly, a subpoena in chancery was not required to be served by delivering a copy. I. R. C. 212, \ 74. Afterwards, when the decree nisi was embodied in the subpoena, it was directed to be served by delivering a copy; but'still it appears that a return of “executed” was sufficient, without stating that a copy was delivered, Sess. Acts 1825-6, p. 15.
There is a manifest difference between a return upon a summons and a return upon a notice. A summons is directed to an officer, and contains a mandate to which his return of “executed” is a response that the thing commanded has been done. A notice is not directed to any officer, but to the party on whom it is to be served. It contains no mandate, and therefore a return of “executed,” simply, is no response, but unmeaning. The manner of ^service, whether by an officer or another person, must be stated; the only difference being, that the simple statement of an officer is sufficient, while the statement of another person must be upon oath. This difference the Code makes, chap. 167, § 1. It did not formerly exist, but the statement was required to be on oath, whether made by an officer or another person. And the reason was, that the officer, in serving a notice, did not act as an officer but as any other person. 1 Hen. & Munf. 206.
There is one case in which a return on a summons, of “executed,” simply, would perhaps be fatally defective, even after judgment by default; and that is the case of a summons against a corporation, the manner of serving which is prescribed by the Code, chap. 170, | 7; which expressly declares that “service on any person under this section shall be in the county or corporation in which he resides; and the return shall show this, and state on whom and when the service was, otherwise the service shall not be valid.” This difference of expression, in regard to an individual and a corporation, indicates a difference of legislative intention in the two cases; and that while, in the latter, the failure of the return to comply with the direction of the law will invalidate the service, in the former it will at most be a defect which, to be taken advantage of, must be pleaded in abatement, if it appears that the defendant was served with the process. There seems to be some reason for the difference in the fact that process against a corporation cannot be served personally on the defendant, but only on some person in lieu of the defendant. However this may be, the law seems to have made the difference, and the courts must execute the law as it is written. It will not do to say that what the law has expressed in the one case, may be implied ip the other. Fxpressio unius, alterius est exclusio.
In this case the return is not “executed,” merely, but “executed in person;” that is, on the defendants in person; *and its meaning is, that the summons was served by delivering them *130a copy. The only defect, if any, in,the return, is. the omission of the words “by delivering- a copy;” and the question is, whether this is not a defect' which, to be taken advantage of, must be pleaded in abatement. If it be .not, the provision in the Code, chap. 171, $ 18, must indeed have a very limited operation, and almost every judgment by default might be liable to be reversed for a defect of the return on the process. If the return, to be valid, must show, literally, that the process was executed in one of the many modes prescribed by law, then the only defects to which the provision could apply would be the omission to state the time of service, and where the service is by a deputy, the omission to subscribe to the return his own name as well as that of his principal. Of course these defects, if no other existed in the return, would be covered by the provision. But one of them, to-wit the omission to state the time of service, seems to be more important than the defect, if any, which exists in this case. For by omitting to state the time of service, the defendant may be disabled from proving the falsity of the return by proving an alibi. At least the provision should apply whenever it appears from the return, though defective, that the summons, was actually served on the defendant that is, so served as that he was notified to appear and answer; whether by delivering a copy in the mode prescribed by law, or by reading the. summons to the defendant, or informing him of its contents. In such case the .defendant having actual notice, and such notice as always was sufficient service of process before the enactment of the present Code, .has a full opportunity of appearing and making, his defence,, not only on the merits but .even by plea in abatement, and . therefore has no good ground of complaint. In the present -case the. return shows that the summons was actually served *on the defendant in person, and, according to the views above presented the provision aforesaid applies.
I am therefore of opinion that there.is no error in the judgment of the Cirquit court and that it be affirmed.
JDANIEE and ’ROBERTSON, Js., concurred in the opinion of Moncure, J., except as to the effect of a return of “executed’ ’ merely; as to which they expressed no opinion, deeming it unnecessary to do so, to a decision of this case.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481675/ | AUDEN, P.
The principal question in this case is whether the securities of Jonathan C. Gibson, who qualified as the administrator with the will annexed on the estate of John Beckham deceased, are bound by the alleged administration bond. On the 23d of November, 1831, the last will and testament of John Beckham, deceased, was exhibited to the County court of Culpeper, and proved by the oath of one of the subscribing witnesses thereto; which was ordered to be certified. At the December term following, the executors named in the will refused to take upon themselves the burthen of the execution thereof; and the widow having relinquished her right of adminis-, tration, on the motion of said Gibson, administration c. t. a. was granted to him on said estate, he having qualified and entered into bond with security according to law. At the December term of said court 1837, six years after the grant of administration, the said last will was again produced to the court and proved by another subscribing witness; and the codicil annexed to the will, having been proved to be in the handwriting of the testator, there being no subscribing witness to the ^codicil, the same was ordered to be recorded. The administration bond is regular on the face thereof, conforming to the requisitions of the statute prescribing the form of a bond to be executed by an administrator c. t. a. Upon these facts it is insisted that the bond was void, because the court had no authority, as the matter stood at the time, to commit said estate to an administrator c. t. a.
The law in force when the will was first exhibited for probate, is to be found in the R. C. of 1819. 1 R. C. I 21, p. 379, provides
that before granting a certificate of probate of any will the executor or administrator c. t. a., shall in open court take the oath set forth, and also give bond, &c. ; and by the 23d section of the act it is declared, that the power of executors over their testators’ estates before probate of the will, is not thereby restrained, but shall continue as theretofore. These provisions of the act were so construed by this court in Monroe v. James, 4 Munf. 194, as to mean that a sale by an executor named, who at the time had not qualified, and died before qualifying by giving bond and security, is void as against the executor who afterwards qualified; but it was said by Cabell, Judge, that as an executor derives his power from the will, at common law nothing was re7 quired to invest him with the full exercise of that power for almost every possi ble purpose, but an acceptance of the trust; and as he may become complete executor by giving bond, and ought to do so, after intermeddling with the estate, the law so far regards him as executor, as to consider his acts valid for the present; and they would become irrevocably so provided he should perfect his character as executor, by after-wards giving bond. If he refuses or fails he is considered as having refused the office; and the refusal relates to the death of the testator. p As to him the will is considered as having never been made. In consequence of the difficulty encountered *in this case the law was amended by the Code of 1849, to conform to the judicial construction. Code, ch. 30, $ 1, p. 540, enacts that a person appointed executor, shall not have the power of executor until he qualifies as such, by taking the oath and giving bond in the court in which the will is recorded, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.
It is argued with much earnestness, that the record of the probate court shows that this will was not recorded. That no one can have the powers of an executor until he qualifies in the court in which the will is recorded; and therefore it is concluded, that the record of the will is the commission to appoint. The error of the argument, consists as it seems to me, in substituting the mode in which the authority is exercised for the authority itself; the correctness of the judgment of the court upon a certain state of facts in the particular case, with the authority of the court to take cognizance of the subject matter submitted to it. The court of probate is a court of record, and a judgment rendered by it, upon a subject cognizable before it, is conclusive, and cannot be questioned incidentally. These principles have been repeatedly adjudicated in a variety of cases in this court; and I am not aware of any conflict of decision in this tribunal, where the mere question of authority was involved. Cases have arisen upon the validity of bonds taken by *132such tribunals, where for some departure from the prescribed form, the bonds were held to be invalid, either for the particular purpose for which they were, sued on, or void entirely. But there is no case which decides, that 'the validity of the bond can be impeached, where the authority to take it existed, and the bond was in due form. In the Commonwealth v. Jackson’s ex’or, 1 Leigh 485, the form of the bond perhaps was unexceptionable; but the Hustings court of Williamsburg was *acting upon a subject matter over which it could not take cognizance. Its jurisdiction did not attach, and its order and the bond taken by it were null and void. So in Manns v. Flinn, 10 Leigh 93, the co'krt held that the grant of administration as upon an intestacy where a will exists, though not ostensible, was void, or a nullity quoad the executor. The appointment of an executor vests the personal estate in the party so appointed. The legal title was vested in him. He derives his power from the will, and, as we have seen, at common law nothing was required but an acceptance of the trust, to invest him with almost almost full power for every possible purpose. The right thus conferred by the will could not be divested by a court of probate. The case falls into that class, where the order is held to be void, because the subject matter was not within .the cognizance of the court. That is to say that there should be the estate of a decedent and no representative to take charge of it. In that case there was a representative taking under the will, capable under our statute of doing some acts before qualification, requiring only the qualification prescribed by statute to exercise full power for every purpose, and whose qualification related back to the death of the testator. Whether however the court did not go too far in holding in that case that the appointment was absolutely void, and this incidentally in a contest between other parties, might deserve serious consideration if thf question should again arise; especially as the judges delivering opinions concede that payments made to an administrator in such case might have been good whilst the executor remains unknown; 1 Wms. on executors, 369; and do not seem to have had their attention called to the condition of the bond required of an administrator, by which" he is required to render up his letters of administration upon the appearance of a will. In view of the exception admitted and this provision of *the statute, it would be worthy of enquiry whether the committing the administration would in any sense be held void as it respected third persons whose rights would be affected thereby, however it might be in a contest with the executor. See on this head, 1 Wms. on executors, 147; and for the propositions that the probate is merely operative as authenticated evidence, and not at all as the foundation of the executor’s title, for he derives all his interest from the will and the property vests in him from the testator’s death. See 1 Wms. | on executors, p. 159. These are the only cases decided in this court to which we have been referred, where the bond or administration were treated as void for want of authority to act on the subject matter. In Fisher v. Bassett, 9 Leigh, 119, the true state of facts was not such as to justify the exercise of the authority in that case to grant administration. Yet as the court had general jurisdiction to grant administration, when there was an unrepresented estate of a dead man in question, the court having cognizance of the subject matter, must determine for itself whether the circumstances justify the exercise of its jurisdiction in the particular case; and the grant is valid until revoked or the order is reversed. So in Burnley v. Duke, 2 Rob. R. 102, upon a question of authority it was held, in conformity with Risher v. Bassett, ubi supra, that where administration and administrations d. b. n. were granted by a court which upon the facts should not have taken jurisdiction, the grants were valid, the orders standing unreversed, and the grants unrevoked. And further that when the grant to the administrator d. b. n. expired by his death, and the estate was unrepresented, it was competent for the court which might in the first instance have rightfully exercised jurisdiction, to make a valid grant; and the sureties in the last administration bond were bound. In Hutcheson sheriff v. Priddy, 12 Gratt. 85, administration had been Committed to the sheriff before the expiration of three months from the death of the decedent; but it was held that the case fell within the principle of the cases referred to; and the grant was not void, although the court, having jurisdiction to commit an estate to the sheriff for administration, may have erred upon the facts in making the order at the time it was made. And in Andrews v. Avery, 14 Gratt. 229, it was decided that administration granted where the deceased lived and died out of the state and left no estate within it, is not void; the judge who delivered the opinion of the court remarking, that the subject matter being within the jurisdiction of the court, to wit, the appointment of a personal representative to a decedent who is without one, the court making the appointment will be considered as having adjudged the question of jurisdiction in the particular case; and the order will not be void. A similar conclusion was arrived at in Cox v. Thomas, 9 Gratt. 323, as to a judgment of a circuit court upon a different matter, but where the authority of the court to act came into question.
These seem to be all the cases in this court, where the authority of the court came directly into controversy; and tried by the principle so uniformly affirmed, what is the effect upon the case under consideration. The order in question was made by a court whose general jurisdiction over the subject matter and of this particular case is not questioned. There was a decedent and this court was the proper one to take pro*133bate of his will. A paper purporting to be the will of the deceased was exhibited at the November term 1831, for probate, and was proved by the oath of one of the three subscribing witnesses thereto; which was ordered to be certified.—The other subscribing witnesses were not examined, nor was any proof produced that the codicil revoking a legacy was in the handwriting of the testator. At the following *term of the court, the executors named in the will refused to accept, the widow relinquished her right to administration, and thereupon administration with the will annexed was, on motion of Jonathan C. Gibson, committed to him, and ■ he thereupon gave bond and qualified.
The will in this case was exhibited for probate before the passage of the act of 1834-5. Sess. acts, p. 43. In the case of Worsham’s adm’r v. Worsham’s ex’or, 5 Leigh 589, it was decided by the whole court, (for Brockenbrough who did not sit, had decided the cause in the court below, and his sentence was affirmed), that before the act aforesaid, a testament of personal estate might be well proved by a single witness. It was in consequence of this decision and at the suggestion of the court, that the act of 1834-5 was passed requiring the same proof in cases of wills of personalty as of realty. This will so far as the duties of the executor or administrator c. t. a. were concerned, was a testament of personal estate. The real estate was specifically devised. The court then had the case of a decedent, with the will exhibited of the testator so proved as to justify the recording of the will as a will of personalty, and the grant of letters testamentary. That proof was entered on its record and, as the record recites, ordered to be certified. At the'following term the executors refused to take upon themselves the burthen of the office, and ihe widow relinquished her right to administer; and then the estate was committed. The subject matter (Judge Moncure observes in Andrews v. Avery, ubi supra), to bring a case within the jurisdiction of a court of probate, “is the appointment of a personal representative to a decedent who has none, and whose personal estate is therefore without an owner. The validity of an order making an appointment must depend on the existence of that state of facts.” By this refusal of the executors named, the ^personal estate was left without an owner. It was the duty of the court to take some order for its preservation. There was no controversy about the will or administration, to remind them of the necessity or propriety of appointing a curator to take care of it, pending any such controversy. It is manifest that the executor named and the widow supposed the action of the court had placed the matter in a condition for administration ; and I think it equally clear the court so considered and adjudged when the estate was committed to an administrator c. t. a. The only matter required as to the body of the will was an order to record it, as a will of personalty, bn the proof by one witness; though it would have been irregular, perhaps erroneous, to grant administration in the then state of the proof until action of some kind was had on the codicil which revoked a legacy. But this if an error, was an error in the judgment of fhe court upon a question arising upon a matter of which they had full cognizance, and could not be enquired into incidentally. The order was never reversed, the grant remains unrevoked ; by virtue of it, the administrator c. t. a. has possessed himself of the estate, and I think it cannot be alleged in favor of the sureties, that the grant was merely void. I think the principle of the cases referred to governs this case, and fully justify this conclusion.
The position of the appellants does not receive much support, if any, from that class of cases cited, in which bonds taken by virtue of some statute were held to be invalid. Tor in this case the bond is regular, pursues the form prescribed by law for the bond of an administrator c. t. a. The objection is not that it is defective on its face, but that there was no authority to take it. In the cases bearing on this subject, some confusion has arisen from judges not at all times distinguishing between the words void and voidable or defective. But a ^careful examination of the cases themselves, and looking to the subject really discussed and the points decided clears up the obscurity. With the exception of one case hereafter adverted to, it will, I think, be found, that there is no conflict in the decisions of this court on the subject, or discordance with the principle affirmed in the class of cases already commented on. In Stuart v. Lee, 3 Call 421, the bond was taken by a proper court and was made payable to the Governor, instead of the justices. The suit was in the name of the successor of the governor; and the plaintiff assigned a breach for the benefit of the party injured. The bond was in the penalty of ^10,000. As the law then was the bond should have been made payable to the justices, and the penalty prescribed was j£l,000. The court decided that as the bond was not taken pursuant to law, no action could be maintained thereon by the plaintiff in his character of Governor or successor in office only. So in Branch v. Commonwealth, 2 Call 510, the bond was taken for collection of taxes under an act which had expired. It was held the sureties could not be made liable for taxes collected under a subsequent law. They were not liable under their contract. In Frazier v. Frazier’s ex’or, 2 Leigh 642, the decree was against the surety in an administration bond, taken on committing the estate to an administrator c. t. a. The bond executed was in the form of the bond prescribed for an administrator of an intestate and not that for an administrator c. t. a., and of course contained no condition for the benefit of legatees. The stipulation to administer the goods, &c., according to law, was held not to embrace the surplus assets payable to *134legatees or distributees; but only extended to disbursements made in the expenses of administration and the payment of debts; that if it went further and embraced legatees and distributees there would have been no necessity for the further provision *for the benefit of legatees and distributees. It was therefore held that upon this statutory bond no suit in law or equity could be maintained for the benefit of and at the relation of a legatee. The court did not decide that the bond was void or would have been voidable if put in suit by a party, as a creditor, for whose benefit there was a stipulation in the condition. Roberts v. Colvin, 3 Gratt. 358, followed Frazier v. Frazier, and held that as the bond in that case contained no provision for the benefit of creditors, the sureties were not liable.
Morrow v. Peyton, 8 Leigh 54, does decide the broad proposition that a bond not conforming to the requisitions of the statute was void as to all purposes. The case even supposing it should be recognized as a binding authority, would not affect materially the present case. For here the grant was to an administrator c. t. a., and the bond is such as the law requires in such case. In Morrow v. Peyton, after the death of an executor who had qualified, administration was committed to an administrator d. b. n. c. t. a., but the bond was in the form prescribed for administration d. b. n. of an intestate, instead of. an administration d. b. n. c. t. a. The form of the bond adopted did contain a condition for the benefit of creditors; and creditors were suing; but the court in the decree' says that the administration bond was void on the authority of Frazier v. Frazier, and the securities were not bound by it. Tucker, P., towards the conclusion of his opinion merely remarks on that branch of the case, that the bond was void on the same authority. The great question in that case was whether, when two administrators execute a joint administration bond, one is surety for the other. Upon this proposition the three judges differed, each delivering a separate opinion.—-Brockenbrough and Tucker holding the affirmative, Brooke the negative. On the other parts of the case the other judges concurred with Tucker. We have seen all *that he said on the question under consideration, and it
is clear that he was misled from a hasty consideration of the case of Frazier v. Frazier. It certainly did not decide that the bond was void or invalid for any purpose provided for in the condition. But the decision and opinion of Green, J., was carefully restricted to the case of the legatee suing, and for whom no provision had been made. Had not the court in Morrow v. Peyton, been misled by this mistake in the effect of the decision in Frazier v. Frazier, I do not for a moment suppose they would have decided that such a bond was void entirely and the sureties not bound by it.
In the United States v. Bradley, 10 Peters R. 343, the general question was discussed
by Judge Story who delivered the opinion of the court. He draws the distinction between bonds given to parties who have a capacity to take, and bonds given to parties having no capacity to take. The former may be good in part, the latter are wholly void. And he further remarks that there is no distinction between bonds containing conditions not malum in se, but illegal at common law ; and those containing conditions which are illegal by express provision of statute. At common law a bond conditioned to do several things may be void for illegality as to one part, and yet be good as to the other part. 2 Thos. Coke p. 19, n. P. The same rule applies to bonds taken by virtue of a statute unless indeed' the statute expressly or by necessary implication avoids it to all intents and purposes. Accordingly it was held in that case, in accordance with many English authorities, that the bond taken by a public officer having a capacity to take, with some good conditions and others not authorized by law, was valid to the extent oí the good condition. So this court decided in Aylett v. Roane, 1 Gratt. 282, that a bond of indemnity taken according to the act of 1819, 1 R. C. ch. 134, § 25, p. 533, but omitting the provision *for the protection of the purchaser of the property as required by the act of 1828, Sup. R. Code 272, was a good statutory bond to protect the sheriff from the action of the claimant of the property, the bond containing the condition required by law for his protection.
In Almond, &c., v. Mason, &c., 9 Gratt. 700, the will after a bequest of property real and personal to his wife for life or widowhood, directed that at her death or marriage, his executor should sell the whole of his estate and divide the proceeds. One of the executors died, the power of the other was revoked, and the estate was committed to an administrator d. b. n. c. t. a. But the bond he executed did not embrace land as the law required where the executor was authorized to sell real .estate. The court below dismissed the bill as to the sureties. This court reversed the decree, holding that as after the termination of the life estate, the administrator took possession of and sold the personal estate, and as the bond containéd a condition for the benefit of legatees, the sureties were bound so far as the goods, chattels and credits would extend. So in Pratt v. Wright, 13 Gratt. 175, it was decided that although the condition in a guardian’s bond was not as extensive as the statute requires, yet as it relates to a part of his duties, the bond is not void, but binds the obligors to the extent of the condition. Daniel, J., in his opinion refers to United States v. Bradley, ubi supra, and cites many other authorities to the same effect. It is manifest therefore that this court in Morrow v. Peyton, intended to place their decision on this point upon the authority of Frazier v. Frazier alone, supposing through inadvertence, and because the novel and interesting question as to the liability of the executors under the *135joint bond had diverted attention from the minor questions arising on the record, that Frazier v. Frazier ruled this’ branch of the case. **1 do not therefore regard Morrow v. Peyton as an authority on this proposition.
Nor is it necessary to invoke the aid of another class of cases cited in argument to support the validity of this bond. Cases where there was a clear capacity to take such bond, and the bond ’fulfilled all the requirements of the statute; but contained recitals essential to its validity, and it was held that the obligors were estopped from denying the truth of such recitals. Of this class was the case of Franklin v. Depriest, 13 Gratt. 257; Monteith, sheriff v. Commonwealth, 15 Gratt. 172, and many other cases referred to in the argument.
From these three classes of cases decided by this court, may be deduced the following principles: First, that where a court has cognizance of the subject matter, its judgment, though, it might be erroneous, is not void; it is binding until set aside or reversed, and cannot be questioned incidentally; acts done and bonds taken under it, bind the obligors and sureties as well as principals. Second, where the’ court or officer has authority or capacity to take a bond, and makes a mistake ’ by omitting some condition prescribed, or inserting; a condition not authorized or illegal, unless the statute by express words or necessary implication makes it wholly void, the bond is not void; the good shall not be vitiated by the bad, and the bond may be suéd on : so far as the conditions are good as a statutory bond. Third, where the court has cognizance of the subject matter or capacity to take a bond, and takes a bond which on its face is valid, but contains a recital of facts necessary to its validity, as in the cases referred to of the election and induction into office of a sheriff, the presence of the justices named as obligors and the like, the obligors shall be estopped from denying the truth of such recitals. These principles firmly established are essential to the security of the public and individuals. Bonds of sheriffs, clerks and other ^officers of administrators, &c., are taken in the absence of those who may be most affected by the acts of such functionaries, and should be sustained unless clearly made invalid by law. Nor do I perceive how the surety, as has been argued, can occupy any higher ground than his principal. It is his intervention which has enabled the principal to act; and he should be bound to the extent of his obligation for him.
On the whole I am of opinion, that the order of the court committing administration t. c. a. to said Jonathan C. Gibson, was not void, and therefore the bond taken . from him was valid and binding on all the obligors.
The other judges concurred in the opinion of Allen, P.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481676/ | AI/IíSN, P.
• The plaintiffs in error brought ejectment to recover a lot of land in this city, claiming to be the owners in fee. It does not appear by the printed record that they filed with the declaration a statement of the profits and other damages they meant to claim; or that the deféndant had filed with his plea, or at subsequent time before the trial, with the leave of the court, a statement of his claim for improvements. It is said in argument that such statements on either side were filed within two *or three days before a jury was sworn to try the issue, and that this is shown.by some memorandum endorsed on or filed with the original papers. On the 24th of November 1856, the jury sworn to try the issue returned a verdiet that the plaintiffs had a right to the possession, and that their estate was in fee simple; and they allowed the defendant for his improvements, over and above the damages to which the plaintiffs were entitled, the sum of $1,250. Por reasons appearing to the court judgment on this verdict was suspended. On the 29th of November 1856, during the same term and before any judgment was entered, but after the jury had been discharged and had dispersed, the plaintiffs moved the court, by an entry on record, to require that the value of their estate in the premises in the declaration demanded, without the improvements, be ascertained by impanelling a jury for the purpose. The motion was held under advisement until the following term, when the court overruled the motion, and entered up judgment upon the verdict according to law. The plaintiffs excepted to the decision overruling their motion, and have brought the case to this court by a writ of supersedeas.
By the R. C. of 1819, ch. 118, § 1, it was provided that the demandant in a writ of right, if he recover his seisin, may also recover. damages, to be assessed by the recognitors of assize, for the tenants withholding possession of the tenement demanded. By an act passed April 6th, 1838, Sess. acts p. 75 provision was made for the assessment of damages for mesne profits; the act providing that in the trial of all actions of ejectment, if the jury find a verdict in favor of the plaintiff, it shall be lawful for them to assess damages for the mesne profits, &c. ; provided that such damages shall not be assessed unless the plaintiff file with his *139declaration a statement showing the amount of profits and other damages which he means to claim. These provisions
were for the benefit of *the demand-ant or plaintiff, and the jury that tried the issue, also assessed the damages. The enquiry was simple and not complicated with any question as to the value of improvements, and could be made by the recognitors of the assize or the jury sworn to try the issue upon the question of possession or title in ejectment, without materially interfering with the trial of the main question in issue.
By an act concerning delinquent and forfeited lands passed March 10th, 1832, Sess. acts p. 61, 'Í 7, provision was made that whenever any judgment or decree should be entered for the recovery of land, or the possession thereof, situated in any of the counties lying west of the Alleghany mountains, it should be lawful for the tenant to produce evidence, tending to show that he or those under whom he claimed, have bona fide settled and seated such lands &c., and have made valuable and permanent improvements thereon, over and above the value of the use and occupation thereof; and if satisfied of the probable truth of such allegations, the court was impowered to suspend the execution of the judgment or decree until the same could be enquired of by a jury which should be empanelled and sworn well and truly to ascertain the reasonable additional value given to such recovered land by the permanent improvements over and above a reasonable allowance for the use and occupation of the land; the amount ascertained to constitute a lien on the land. But the act was to be construed as not to authorize a valuation of improvements so as to reduce the value of the plaintiff’s land below the actual value of the same without improvements at the time of eviction.
This law, it will be observed, looked at the assessment of the allowance to the defendant for improvements as always to be made after judgment or decree by a jury specially impanelled and sworn to such enquiry. *This was the condition of the law when the " attention of the revisors was directed to this subject. They reported two bills embracing the various provisions contained in the previous laws, with some substantial alterations, and with modifications as to the manner of carrying the law into effect.
In the Code ch. 135, § 30, is found the provision for the plaintiff. If the plaintiff file with his declaration a statement of the profits and other damages he means to demand, and the jury find in his favour, they shall at the same time, unless the court otherwise order, assess the damages for mesne profits, and also damages, for any destruction or waste of the buildings or other property. So far the law is in accordance with the previous laws. This enquiry, being for the benefit of the plaintiff alone, is to be made by the jury which tries the issue, unless the court should otherwise order. The act is silent as to the mode of assessment when the courts did otherwise order, but as the law gave the plaintiff a right to such an assessment, it would be competent for the court, under its general powers to empanel juries to ascertain facts, and from analogy to other portions of the, act, to direct another jury to be empanelled to make such assessment of the damages. The 32nd section takes up the case of the defendant, and provides, that if he intends to claim allowance for improvements he shall file with his plea, or at a subsequent time before the trial, (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff. The 33rd section declares that the damages of the plaintiff and the allowance to the defendant for improvements shall be estimated and the balance ascertained and judgment therefor rendered as prescribed in the 136th chapter. That chapter as will be seen, as reported by the revisors, was copied in a great measure from the act of March 10th, 1832. The 34th *section of chapter 135, provides that on motion of either party, the court may order the assessment of, damages and allowance to be postponed until after the verdict on the title is recorded.
We thus perceive that when the. law was so modified, as to admit the plaintiff, in addition to a claim for damages for mesne profits, to claim also damages for waste and destruction to buildings and the other property, although in general, the assessment was to be made by the jury that tried the issue, the court might order otherwise : a power the court might, and on proper suggestion, would exercise, whenever from the complexity of the questions concerning the title, justice to the parties would be promoted by confining the jury to the main issue, and that alone. But when the defendant filed a statement of his claim to allowance for improvements, the enquiry becomes still more complicated; the amount of damages for mesne profits, for destruction and waste of buildings and other property, the value of improvements, the bona fides of the possession when they were made, their permanence, &c., were all subjects of enquiry, presenting generally questions more numerous and perplexing than those referring to the title to the premises. The court therefore on motion of either party, may order this assessment to be postponed until after verdict on the title is recorded. Until that question was settled it would be uncertain whether there would be any necessity for such assessment. If the plaintiff failed, the time spent and costs incurred, in these collateral enquiries would have been spent and incurred for no beneficial purpose; and the attention of the jury would have been diverted from the main issue, and their verdict from that cause be less satisfactory.
The allowance for improvements was fully provided for by the 136th chapter of Code, p. 613, which embodied the provisions of the act of March 10, 1832, confined *140*to the counties west of the Alleghany originally, but extended to the whole State by the Code. When damages were to be assessed and improvements estimated before a judgment as provided for in ch. 135, it was to be done as prescribed by ch. 135. The proceedings under this chapter as in the act of March 10, 1832, followed the judgment or decree for the recovery of the land. The defendant against whom the judgment or decree was rendered, might at any time before the execution thereof, present his petition, stating that while he, or those under whom he claimed, were holding the premises under a title believed by him or them to be good, valuable improvements were made thereon, and praying that he be allowed for the same over and above the value of the use and occupation of such land. The court if satisfied of the probable truth of the allegations may suspend the execution of the judgment, and empanel a jury to assess the damages of the plaintiff and the allowance for improvements. The second section directs that the jury, in assessing such damages under this chapter or chapter 135, shall estimate against the defendant the clear annual value of the premises, exclusive of the use by the tenant of the‘improvements thereon made by himself or those he claims under. The 4th section provides that if the jury shall be satisfied that the tenant, or those he claims under, made, on the premises, at a time when there was reason to’ believe the title good under which possession of the premises was held, valuable and permanent improvements, they shall estimate in his favor the value of such improvements, &c. The 5th section contains some further directions; and the 6th provides that after offsetting the damages and allowance, the jury shall find a verdict for the balance for plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict. And the 7th section makes the balance due to *the defendant a lien on the land until paid. The 8th and 9th sections contain provisions for the case of tenant for life or refer to a suit brought by a mortgagee.
This completed the scheme of the revisors as reported to the legislature in chapters 135-6. Revisors report page 697 to 700. By the scheme the jury sworn to try the issue, where statements were filed with the declaration or plea, might, unless the court ordered, or either party so moved, make all the inquiries required; or they might, if the court should so order, be made by the same jury after the verdict on the title was recorded, or, as I construe the act, by a new jury to be empanelled. And where the application was made on petition after judgment, the assessment was necessarily to be made by a new jury. But in either case the assessment of damages and for the allowance for improvements must be made by the same jury. The enquiry is blended; the value of the premises estimated against the defendant, is to be exclusive of his use of improvements made by him; a balance is to be struck and a verdict for such balance-found.
The legislature when deliberating on this subject, could not fail to see, that however correct in principle it might be, to allow the occupying tenant for improvements, made at a time he had reason to believe his-title was good, and before notice of the.plaintiff’s claim, yet in carrying out the-principle into practice cases of great hardship to the true owner would arise, unless, some further protection was provided for' him. The balance found by the verdict, might be more than the owner could pay down; yet a judgment passed against him for it, and it constituted a lien on his land. In the unsettled portions of the State, to-which the law was at first confined, unimproved lands were of no great value; and as sympathy might be felt for the occupying claimant and prejudice entertained against a non-resident proprietor, there *was some risk that cases might arise, in which by the finding of the
jury, the owner of the fee would be improved out' of his estate; a lien fixed on it for more than it was worth. To guard against such contingencies, the legislature engrafted upon the bills reported by the revisors, the sections under which this controversy has, arisen. The 10th section enacts that “when the defendant shall claim allowance for improvements as before provided, the plaintiff may, by an entry on record, require that the value of his estate in the premises, without the improvements, shall be ascertained. By the 11th section, the value of the premises shall be estimated as it would have been at the time of the enquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner, therein before provided, for estimating the value of improvements ; and by the 12th section, the plaintiff in such cases, if judgment is rendered for him, may at any time during the same term, or before judgment or decree is rendered on the assessment of the value of the improvements, enter on the record, his election, to relinquish his estate in the premises to the defendant, at the value so ascertained, &c. The remaining sections of the chapter provide for that contingency. The word 1 ‘ when’ ’ used in the beginningof the 10th section, “when the defendant shall claim,” was not intended to prescribe the period at which the plaintiff by entry on record, was to require that the value of his estate in the premises should be ascertained. The acts could not be contemporaneous. And when a petition was filed, as provided for in the 136th chapter, § 1, the plaintiff might not have any notice of it; the petition could be filed at any time before the execution of the judgment or decree. “When,” in this as' in other instances in the Code, is used in the sense of “if,” “in case.” The frequent use of this word in its relative sense was the subject of comment *in Pulliam v. Aler, 15 Gratt. 54. The value of his estate is to be *141ascertained in the manner therein before -provided for estimating the value of the improvements; that is by a jury; that being the way or method provided for making all the assessments and estimates referred to in the two chapters. But there is nothing to show that the value was to be ascertained by the same jury. I incline to think it was not so intended, or else it would have been expressed. This provision, as has been shown, was a new one, forming no part of the scheme reported by the re visors, and not found in the former acts of assembly ; and there was good reason why it should not be blended with the other enquiries. This enquiry was of a different -character, and the necessity for it would depend on the result of the previous investigation. Until it - was ascertained, that there would be a balance in favor of the •defendant for improvements, it would be unnecessary to enter into the enquiry as to the value of the land. The jury if confined to the assessment of damages for mesne profits and waste, and to the allowance for improvements, had many perplexing points to settle; such as the bona fides of the tenant in making the improvements, the nature of the improvements whether permanent or temporary, the amount of rents or profits, the damages for waste and destruction. What reason of convenience would there be in perplexing the jury with testimony touching a matter foreign to all the other questions? A matter which if the jury made no allowance for the improvements, they would not be required to consider. It is for the plaintiff to determine whether he will require the valuation, in order to a relinquishment of his estate; and justice would seem to demand that he should know whether any charge would be fixed on his estate, and the amount of it, before incurring the trouble and expense of proving the value of his interest, and consuming *the time of the court and jury in- what might turn out to be a fruitless enquiry. Such enquiry too if made necessarily before the same jury, might tend to his prejudice upon the other subjects to be investigated. It might be inferred, that he was conscious the improvements were made, when the defendant or those under whom he claims, believed they held under a good title, notwithstanding any efforts of the plaintiff to make the contrary appear. Or it might be ascribed to a more intimate knowledge of the value of the improvements ; or the conviction that his claim to damages for waste and destruction was unfounded. Considerations of this kind may exercise an influence over the minds of jurors to an extent of which they themselves are unconscious, and give a coloring to the evidence which, but for such impressions, it would not bear. The plaintiff must enter on the record his election to relinquish his estate,. during the same term, if judgment is entered for him, or before judgment is rendered on the assessment of the value of the improvements.
The act I think contemplated all the enquiries, as well those relating to damages and allowance for improvements, as those to ascertain the value of the plaintiffs estate in the land, if no such improvement had been made, to be directed to the same period of time. The value of the plaintiffs’ estate shall be estimated as it would have been at the time of the enquiry is the language of the act; which I think relates to the enquiry into all the subjects contemplated by the act, as well as this particular one to ascertain the value of the land. All must be made during the same term, in some rare case, owing to a disagreement of the jury or some unforeseen contingency, as in the present case, where the court held the case over for advisement, the enquiry may be postponed; but in such case it would be attended with no difficulty in ascertaining the value as it was at the time when the ^estimate for the allowance for improvements was made. The spirit of the act would be carried out; and as it is remedial, giving a remedy for what would otherwise be a crying enormity, the disherison of men, by compelling them to pay for improvements they did not make, and perhaps would not have desired, it should receive a fair construction so as to effectuate the intention of the legislature, and do justice to both parties. I think the motion was in time and that the court should have sustained it, and erred in overruling it; and therefore that the judgment should be reversed and the cause remanded; and unless the plaintiffs, when the case is again docketed, shall waive their right, that a jury should be empanelled and sworn to asertain, what was the value of the estate of the plaintiffs in the declaration demanded, without the improvements, as of the 24th day of November, 1856, the time when the former verdict was found; and upon the coming in of such verdict, if the plaintiffs in person or by their attorney in the cause, enter on the record, their election to relinquish their estate in the premises to the defendant, at the value so ascertained, the court to make all proper entries and render judgment according to law. But if the plaintiffs shall waive their right to require that the value of their estate in the premises, without the improvements, shall be ascertained, the court is to proceed and enter judgment on the verdict so found on the 24th day of November, 1856. Which is ordered to be certified.
The other judges concurred in the opinion of Allen, P.
Judgment reversed.
See principal case cited in Witten v. St. Clair, 27 W. Va. 766. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481677/ | ROBERTSON, J.
The only ground for the jurisdiction of á court of equity, in this case, is that a discovery'from the defendant was necessary to enable the plaintiffs to recover the slaves in controversy. The bill sufficiently alleges the necessity of such discovery, but the allegation is disproved by the evidence in the cause.
The exhibits from the case of Bradshaw v. Shore and others (including the depositions, which, it is apparent, were read on the hearing of this case), show that the plaintiffs had it- in their power to prove, independently *of any discovery which they might obtain from the defendant, that, as the grandchildren of William Hines, they were entitled, under his will, to the slaves in controversy, upon the death of Thomas Hines, on the 29th day of November, 1849: that said slaves had been sold by Thomas Hines, as his absolute property, to Alexander Scott, on the 26th day of December, 1840, as Shown by his bill of sale warranting the title against all persons whatsoever: that Henry E. Shore after-wards became possessed of them by intermarriage with the widow of Scott, who took them under his will; that Shore held them as his absolute property, and sold them as such to the defendant, on the 23d day of November, 1849, and that the defendant, under that purchase, took possession of them as absolute owner.
The discovery asked for could not disclose any fact, in addition to these, material to the plaintiffs.
In -the absence of proof to the contrary, a jury would have been authorized - and required to infer that the defendant was in possession of the slaves at the death of Thomas Hines, when the title of the plaintiffs accrued. He held them a few days previously to that event, claiming to be the absolute owner, and the burthen of proof would have been upon him to show that he had parted with the possession before it happened ; for one in possession of property, claiming to be the absolute owner, is presumed to continue to hold it, until the contrary is made to appear.
It is doubtful whether the bill is to be understood as charging that, in addition to the slaves John, Reuben and Huey, there were four others whoses names were unknown, who also went into the possession of the defendant. If it is to be so understood, the allegation was not only wholly unwarranted by the facts, but was obviously so known to be by the plaintiffs themselves. The defendant makes no reference whatever to these four ^slaves in either of his answers, but treats the bill as seeking to, recover from him only the three above named, and their increase, if any. In their exceptions to the answers the plaintiffs did not object that the defendant failed to respond as to the four slaves also; nor did they propound any question to him respecting them in either of his examinations before the commissioner. It is manifest that it was well understood, by a.11 parties, that the defendant had nothing to do with these four slaves, and that no discovery was needed or desired by the plaintiffs in reference to them.
The call for a discovery as to the increase of the slaves named in the bill was a mere pretence. There was no increase; and there is no reason to believe that the plaintiffs supposed that there was any. The case of Armstrong v. Huntons, 1 Rob. R. 326, is authority to show that a call like this is insufficient to give jurisdiction to a court of equity.
As to the call for a discovery of the value of the slaves, it is enough to say that it was as easy for the plaintiffs as for the defendant to ascertain their value.
Upon the whole case it is quite clear that the demand for a discovery was colorable only, and that a court of equity ought not to take jurisdiction.
But it is insisted that the objection must be made by demurrer, or by plea.
In this case a demurrer could not be sustained because the allegations of the bill are sufficient to show the necessity of a discovery.
No plea was filed putting directly in issue the allegation that a discovery was nec*144essary to the plaintiffs: but the defendant in his amended answer says he is advised that the plaintiffs’ proper remedy, if they are entitled to recover at all, would be an action at law, and that they ought not to be permitted to prosecute their *suit in chancery, because they have a full and sufficient remedy at law. We deem it unnecessary to decide whether this put properly in issue the fact as to the necessity of a discovery; because we think that even if no objection to the jurisdiction were made in any form in the pleadings, it would be competent to the defendant to make the objection on the hearing; and the court should dismiss the bill if it then appeared, from the whole case, that the call for a discovery was colorable merely.
The statute, Code ch. 171, § 19, p. 711, has no application to such a case. It applies where the objection is for mere matter of abatement; as, where the case is a proper one for a court of equity, but not for the particular court in which the suit is brought; or, where, the suit ought to be abated by reason of some circumstance attending the situation of the plaintiff, or defendant, or the like.
But the statute does not apply where the objection, instead of merely tending to divert the proceedings to some other equitable jurisdiction, or to suspend them, or to abate the particular suit, is absolutely in bar of the claim to the interposition of a court of equity, and impugns the right to sue in that court altogether.
Accordingly where the case appears on the face of the bill to be proper for the cognizance of a court of law only, and not of any court of equity the statute has been held not to apply. Pollard v. Patterson, 3 Hen. & Munf. 67; Hudson v. Kline, 9 Gratt. 379; Beckley v. Palmer, 11 Gratt. 625.
Where the bill alleges proper matter for the jurisdiction of a court of equity (so that a demurrer will not lie), if it appears on the hearing that the allegations are false, and that such matter does not in fact exist, the result must be the same as if it had not been alleged, and the bill should be dismissed for want of jurisdiction.
*In this case, the decree must be reversed, and the bill dismissed. It having been suggested in this court, that the amount of the' decree against the appellant has been paid by him, it will be proper for the Circuí t court if that shall be made to appear, to make an order of restitution in his favor, unless cause be shown to the contrary. Flemings v. Riddick, 5 Gratt. 272.
The other judges concurred in the opinion of, Robertson, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481678/ | *MONCURF, J.
This is a supersedeas to a judgment of the Circuit court of Frederick county, reversing a judgment of the county court of said county overruling a motion to set aside a judgment confessed in the clerk’s office of said county, by an attorney in fact of the defendants, in an action of debt brought in the said county court. The summons in the action, and the power of attorney to confess the judgment bear date on the same day, to-wit: the 21st day of January 1857, on which day also it appears that the judgment was confessed. The power of attorney recites that the suit in which the judgment was authorized to be confessed was then pending in the said count}’ court. The notice of the motion to set aside the judgment bears date on the 13th of February 1857, and stated that the motion would be made on the 1st day of the March term next, which was the first, quarterly term of the said county court after the said confession of judgment was entered. The grounds for setting aside the judgment as specified in the notice were: 1st, because the power of attorney was executed before suit was brought; 2dly, because Wm. Iy. Bent, (who was impowered to confess the judgment and did confess it), was not an attorney at law, and an attorney in fact cannot confess a judgment for his principal ; and 3dly, because if an attorney in fact could confess in open court, only the defendant himself can confess a judgment in the clerk’s office.- There was a 4th ground, which need not be stated, as it was afterwards abandoned. At the March term of the county court, the notice was proved and docketed, and by agreement of counsel the motion was continued until the June term of said court, when it was heard and overruled. Three exceptions were taken by the plaintiff in the motion to opinions of the court given on the hearing. The 1st was, to the refusal of the court to reject a plea of estoppel filed by the defendant in the motion to the 1st ground set out in the ^'notice, to wit: 1 ‘because the power of attorney was executed before suit brought;” the 2nd was to the refusal of the court to permit the plaintiff to examine a, witness for the purpose of proving that the power of attorney was executed before the suit was brought; and the 3rd was to the refusal of the court to set aside the said judgment confessed in the clerk’s office. The 3rd bill of exceptions sets out all the evidence, which consisted of the judgment confessed in the office, the summons issued in the action, the power of attorney, and the following proofs and admissions, viz: It was admitted that at the time said Wm. Iv. Bent, made the confession of judgment he was not an attorney at law and never had been. It was also proved by the clerk of the court, that the confession was made by Wm. i/. Bent under said power of attorney, which he produced, though there was no proof before the clerk of the execution of the power. But on the trial of the motion it was admitted that the said power was executed by the defendants in the action, Barley & Swartzwelder, on the day of its date, and that the clerk then filed the power of attorney with the papers. The county court having overruled the motion, the Circuit court awarded a supersedeas to the judgment of the county court; and after-wards reversed it- and set aside the judgment confessed in the clerk’s office. A supersedeas to the judgment of the Circuit court has brought up the case to this court for revision.
The question to be decided by this court is, whether the judgment confessed in the clerk’s office is invalid on both or either of these grounds, viz: 1st, because it was confessed under a power of attorney executed as alleged before the action was brought; or, 2dly because it was confessed by an attorney in fact?
But before I consider these grounds of objection to the said judgment, I will notice an objection taken by the plaintiff in error to the jurisdiction of the county *court to hear the motion at the term at which it was made, to-wit: the next quarterly term after the judgment was confessed. He insists that it ought to have'been made at the next monthly term thereafter. The question depends upon the true construction of the Code ch. 171, $ 51, which declares that “the court shall have control over all proceedings in the office during the preceding vacation. It may re-instate any cause discontinued during such vacation, set aside any of the said proceedings or correct any mistake therein and make such order concerning the same as may be just.” I think that, as actions at law brought in the county court are cognizable only al a quarterly term thereof, Code ch. 157, § 17, so motions to set aside or correct any of the proceedings in the office in such actions, are cognizable only at a quarterly term. The “preceding vacation” referred to in the Code ch. 171, (S 51, means, in its application to this case, the interval between the quarterly terms next after and next before the judgment was confessed. The motion was therefore properly made at the next quarterly, and not the next monthly term thereafter. I will now consider the grounds of objection to the judgment, and
First, Is it invalid because it was confessed under a power which was executed, as alleged, before the action was brought?
At common law a power, or warrant, of attorney to confess judgment in an action to be brought after the making of the power, was valid, and was a very common security. See 1 Tidd’s Prac. 9th Hondon edition chap. 21 pp. 545—555; Tidd’s Forms chap. 21, pp. 181, 183. The common law on this subject was the law of Virginia, modified no doubt by the peculiar practice of our courts, until September 1744, when an act was passed by the colonial legislature reciting that “whereas a practice has of late been introduced of taking bonds, commonly *151^called judgment bonds, with condition for the payment of money, and a general power to any attorney to appear and suffer judgment to pass against the obligor in any court of record in this colony, in such manner as the attorney thinks proper, thereby ratifying the same, and releasing all errors either in the proceedings or record of the judgment; which practice must be attended with ill consequences, debtors having no previous notice of the time and place of rendering such judgments, whereby they are deprived of an opportunity of making discounts appear against the bond, and are first put to unnecessary law charges, and then obliged to enter into expensive chancery suits for relief:” Ror remedy whereof it was enacted, ‘ ‘that from henceforth all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and general releases of error to be made or given, by any person or persons whatsoever in this colony, before action brought, shall be and they are hereby declared to be absolutely null and void; and if any attorney shall presume to appear for a defendant under such power, he shall for every offence forfeit and pay the sum of five hundred pounds to such defendant.” 5 Hen. St. at Large p. 240, 'i'i 4 and 5. This law continued in force, without any very material charge, until the Code of 1849 took effect. It was embodied in the Code of 1819 in the following form, ch. 128, | 106: “A judgment, or confession, shall be equal to a release of errors; but all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error made or to be made, by any person or persons whatsoever within this commonwealth, before action brought, shall be and are hereby declared to be absolutely null and void. ’ ’ Ch. 76, § 12; “If any attorney, or other person practising as an attorney, shall presume to appear under any power of attorney, made before action brought, for confessing or suffering judgment *to pass by default or otherwise, for any defendant in any court of record in this commonwealth, such attorney shall for every such offence forfeit and pay fifteen hundred dollars to such defendant,” &c. These provisions of the Code of 1819 were omitted in the Code of 1849, not by inadvertence but by design ; the revisors having appended to their report, p. 826, ch. 164, § 12, this note: “Section 12, 1 R. C. p. 270, is omitted as of no value. We do not perceive any good reason why a power of attorney to confess judgment should not be lawful before a writ is sued out as well as after. It .is contemplated to omit also the provision on the same subject in 1 R. C. p. 512, ‘i 106.” The omission of these provisions in Code of 1849, and the general repealing clause contained in chap. 216, § 1, operated as a repeal of the said provisions and a restoration of the common law. The provision in the Code, chap. 16, £ 19, that ‘ ‘when a law which may have repealed another shall itself be repealed, the previous law shall not be revived without express words to that effect, unless1 the law repealing it be passed the same session,” does not apply to the case, but only to a case in which one statute repealing another is itself repealed. When a statute changing the, common law is repealed, the common law is restored to its former state. I am therefore of opinion the judgment is not invalid on the ground first mentioned.
Secondly, Is it invalid because it was confessed by an attorney in fact?
That a judgment may be confessed in court by an attorney in fact, is a proposition which cannot now be successfully denied. Such has been the uniform practice in this county from the earliest period down to the present time. It is referred to in the following terms in 1 Rob. Pr. old ed. p. 268: “It frequently happens that the defendant confesses judgment without being present in court, and without having-any attorney at law to make *the confession for him. This is effected by a power of attorney under the hand and seal of the defendant, whereby he constitutes some particular person his attorney to make the confession. This power of attorney states the style of the suit, the name of the court in which it is pending and the amount for which judgment is to be confessed. Upon the power of attorney being produced in court and proved by an attesting witness, the confession is entered accordingly.” In Robinson’s Rorms, p. 71, No. 49, a form is given of such a confession, which has no doubt been generally used since it was published. In Calwells v. Shields, &c., 2 Rob. R. 305, a judgment confessed by an attorney in fact was the subject of controversy, but the validity of the judgment was not questioned in the' argument of counsel, which was very elaborate, nor in the opinion of the court. On the contrary both seemed to proceed on the assumption that the judgment was valid. That the legislature, with a full knowledge of the universality of this practice, has never prohibited or changed it, amounts almost to a statutory confirmation.
Then may not a judgment be confessed in the clerk’s office by an attorney in fact? That it may, is not shown by long practice as in the case of a judgment confessed in court, because confessions in the office are of comparatively recent origin. Until 1819 a judgment could only be confessed in court, and a debtor in custody was often subject to long confinement before he could confess judgment and take the benefit of the insolvent laws. To remedy that evil, an act was then passed, providing that any person in custody, in any civil action, on any original or mesne process, and desirous to avail himself of the privileges thereby given to insolvent debtors, may confess judgment in the clerk’s office, at any time during vacation, for the whole amount of the plaintiff’s demand in his writ or declaration set forth and costs, or such *part thereof as the plaintiff may be willing to accept a judgment for. Such judgment so confessed shall be entered of record by the *152clerk, shall be final, shall have the same validity as if entered in open court; and the defendant may .thereupon discharge himself from confinement in the same manner as if the judgment had been rendered in court. 2 R. C. p. 585. Under this act the judgment would of course be confessed by the defendant in person; as, being in custody, he would of necessity be present;' and therefore the question never arose whether the confession could be by an attorney in fact. In 1840, however, an act was passed making it lawful for a defendant in any suit, either at law or in equity, to confess a judgment or decree in the clerk’s office of the court in which the same may have been instituted, for the whole amount of the plaintiff’s demand with costs, or for such part thereof as the plaintiff in person or by attorney may be willing to take judgment or decree for, &c. Acts of 1839-40, p. 46. But this act remained in force a very short time, having been repealed by the act of March 20, 1843. Sess. acts p. 50, l 4. There was no law for confessing a judgment in the clerk’s office except the 1st section of the last mentioned act" which confined the right to a defendant in actual custody under original or mesne process, as under the act of 1819 before mentioned. And such continued to be the law until the Code of 1849 took effect; in which there is this provision—-“In any suit a defendant may confess a judgment or decree in the clerk’s office for so much principal and interest as the plaintiff may be willing to accept a judgment or decree-for. The same shall be entered of record by the clerk in the. order or minute book, and be as final and as valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by the last section of this chapter;” being the section giving *the court control over all proceedings in the office during the preceding vacation, as before stated. This provision has ever since been in force, and the question I am now considering arises under it.
Why may not a judgment as well be confessed in the clerk’s office under this provision, as in court under the common law, by an attorney in fact? There is at least as much reason in the former as in the latter case; and if the long acquiescence of the legislature in the uniform practice which has prevailed in the latter cáse amounts to a 'legislative sanction of it then it seems to follow that the legislature intended, by the provisions made on the subject in the Code, to authorize a confession to be made in the office bj- a defendant not onljr in person but by an attorney in fact. There is certainly nothing in the terms of the provision itself which excludes such an inference. It does not expressly say that the defendant may confess “in person or by attorney in fact” ; nor was that at all necessary. It was sufficient Only to say, as it does, that “in any suit a defendant may confess,” &c. ; and it was more natural that the idea should have been expressed in this brief way, seeing that to avoid the use of surplus words, was an object much aimed at by the revisors if not by the legislature. The maxim qui facit per alium facit per se applies to the case, unless the act be of such a nature that it cannot be done by an attorney in fact. It is a general rule of the common law that whatever a person sui juris may do of himself he may do by another. Story on Agency, 2, 6, 11. There are exceptions to the rule, but this case does not seem to be one of them. It does not seem that the act of confessing a judgment is of such a nature that it cannot be done by an attorney in fact. A man may do the most important acts, requiring the exercise of the greatest discretion by an attorney in fact. ' Why may he not do by the same agency this single simple *act of confessing a judgment? It is a mere ministerial act requiring the .exercise of no discretion, and no professional or other’ skill for its performance. Why ma3r it not be as well performed b3r an attorney in fact as a deed may be executed by an attorney in fact, and acknowledged b3’ him in court, or in the clerk’s office, or before a justice, &c.? It may be supposed to have been one of the objects of the legislature, in making this provision, to' save unnecessary expense to the parties; and to authorizei a debtor to give, and a creditor to receive, a confession of judgment in the office, without the intervention of an attorney at law. It says the judgment may be confessed “for so much principal and interest as the plaintiff may be willing to accept a judgment for.” May not the plaintiff signify his acceptance by an attorney in fact? and if so, why may not a defendant confess the judgment by such art attorney? Convenience requires that he should have such power, as much as it requires that a man should have power to make and acknowledge a deed by an attorney in fact. He may not be able to go to the office and confess judgment in person. He ma3r live, in a distant county. A judgment is a security, as much as a mortgage or deed of trust, and is often given for that .purpose, especially when it is confessed in the office; and it is required to be registered like a deed. Why may not all these securities be given in the same way?
But it is argued that the confession of a judgment, except by the defendant in proper person, is an act which belongs to the practice of the law, and as the law imposes a penalty on any person who shall practice law in any court of this State without being licensed, or without taking the oaths required to be taken by attorneys at law, it necessarily- prohibits the confession of judgment .by an attorney in fact. The same argument would apply at least as strongly to a confession in court as to a confession *in the office. But is the confession of a judgment except by a defendant in person, necessarily and exclusively in the province of an attorney at law.? It is an act often done by an attorney at law; and so is a deed often drawn and a debt often collected by an attorney1 *153at law. Are these acts therefore exclusively within his province, and may not any other person draw a deed and collect a debt, and receive compensation for his services too, without incurring the penalty above mentioned? Why for the same reason, may not any other person confess a judgment under a power of attorney, especially when he does that without receiving any compensation for his services? The office of an attorney at law is to prosecute and defend suits, or, as it is expressed, “ad prosequendum, or defendendum, in any court.” 1 Com. Dig. Attorney B. 1. To confess a judgment, especially in the office, is neither to prosecute nor defend a suit, but to carry into effect an agreement of parties which can as well be carried into effect by laymen as by lawyers.
It is further argued that no English case can be found which recognizes the power to confess judgment by an attorney in fact, and that all the forms of warrants of attorney to confess judgment, contained in the English form books, refer to attorneys at law and not attorneys in fact. On the other hand it may be said that no English case has been found which denies the existence of such a power. It seems to be the general, if not universal practice in England, for attorneys at law and not attorneys in fact, to act under warrants of attorney to confess judgment; and therefore the forms of such warrants are so prepared in the English form books. They are generally addressed to certain attorneys, by name, of one of the courts, jointly and severally, or to any other attorney of the same court; and authorize them or any of them to appear for the defendant, as of the present or any subsequent term of the court, receive a declaration *for him in the action (describing it), and thereupon to confess the
same action, or else to suffer a judgment by nil dicit or otherwise to pass against him in the action; and after the judgment is entered they further authorize a release of errors to be executed: and a memorandum is endorsed on the warrant, in the nature of a defeasance, setting out any terms or conditions on which the warrant ma3r be given. Tidd’s Eorms 181, ch. 21. The propriety of addressing such a paper to an attorney at law, instead of an attorney in fact, is manifest from its terms. It contemplates the performance of acts which appropriately belong to the province of an attorney at law. But a mere confession of judgment which a defendant may and often does give in proper person, is a very different and a very simple thing, and may as well be done by an attorney in fact. The form of such a confession is given in Tidd’s Forms p. 185, ch. 22; and in Bingham on Judgments p. 35, 13 Law Library. At common law, as a general though not universal rule, a party could prosecute or defend his suit, only in proper person. By the statute of Westm. 2 (13 Edw. 1) ch. 10, a general liberty was given to the parties of appearing by attorney. 1 Tidd’s Prac. 92, ch. 4. But a party may still prosecute or defend his suit in proper person, if he chooses to do so; which however he rarely does, as it is an act requiring professional skill. The mere confession of a judgment however, being an act which requires no professional skill, is generally done by the party in proper person ; and not being within the peculiar province of an attorney at law, may be done by an attorney in fact, according to the general principle that what a man does by another he does himself. This I think has always been the law, and of course was so even before the stat. of West. 2, ch. 10.
It is further argued that the law as it was before the Code of 1849 was adopted, imposed a penalty on attorneys *at law only, for confessing judgment under a power made before action brought, which showed the intention of the legislature that such attorneys only, and not attorneys in fact should confess judgments, otherwise the object of the law would be frustrated by the confession of judgment by attorneys in fact under a power made before action brought. The answer to this argument is, that the evil intended to be remedied by the act of 1744, 5 Hen. St. p. 239, before referred to, which was the origin of that law, was the practice which had previously ' prevailed of taking what were called judgment bonds with a general power to any attorney to appear and suffer judgment to pass against the obligor in any court of record in the colony; and therefore the law property imposed a penalty on any attorney who should act under such a power. But the law also declared the power null and void, so that it could not be frustrated by the appointment of an attorney in fact, who could no more execute a void power than an attorne3r at law.
Again it is argued that the legislature could not have intended to give the clerk the power to decide upon the sufficiency and proof of the power of attorney, and therefore the law makes no provision in regard to the manner in which such a power is to be proved. The power to take a confession of judgment is not greater than many powers which a clerk unquestionably' has. There is rarely if ever any difficulty in receiving a confession of judgment, as the power is generally plainly drawn, leaving no room for construction, and the clerk if he does not know the parties can easily satisfy himself as to their identity. And if he should make any mistake, or be imposed on in any way, his act is subject to the control of the court, which may set it aside or correct any mistake therein, and make such order concerning the same as may be just. It is said that at least the power of attorney ought to have been proved by an ^attesting witness, whereas, in this case, there was no attesting witness and no proof at all before the clerk of the execution of the power, which was simply received and filed by him. The law does not require that there should be an attesting witness, nor prescribe the mode of proof. 1 Tidd’s Pr. 546. The defendant in the action who moved to set aside the judgment, *154admitted, on the trial of the motion, that the power of attorney was executed by himself and his co-defendant on the day of its date, and did not pretend .that it was executed under any mistake or misrepresentation, or that the debt was not justly due; but based his claim for relief solely on the ground, of mere technicalities.' I think they do not sustain it, and that the law' as well as the justice of the case is against him. I am therefore of opinion to reverse the judgment of the Circuit court and affirm that of the County court.
The other judges concurred in the opinion of Moncure, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481679/ | ADDISK, P.,
delivered the opinion of the court:
The question presented by the record in this case is whether the paper propounded for probate as the olograph will of David M. Roy has been executed in the mode prescribed by law.
The Code of 1849, ch. 122, $ 4, requires that the will shall be signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature.
In Ramsey & als. v. Ramsey’s ex’or, 13 Gratt. 664, it was held that the name of a testator at the commencement of an olograph will is an equivocal act, and unless it appears affirmatively from something on the face of the paper, that it was intended as his signature, it is not a sufficient signing under the statute. In that case Judge Daniel, delivering the opinion in which all the judges concurred, after reviewing and commenting upon the decision and opinions of the judges who delivered opinions in the case of Waller v. Waller, 1 Gratt. 454, upon the reports of the revisors, and referring to Judge Tomax’s exposition of the statute, 3 Lom. Dig. 2d ed. $ 35, p. 70, observed that “he thought there was no serious difficulty in coming to the conclusion that the act recognizes no will as sufficiently signed unless it appears affirmatively from the position of the signature, as at the foot or end, or from some other internal. evidence equally convincing, that the testator designed by the use of the signature to authenticate the instrument. ’ ’
It appears in this case that the instrument propounded was in the handwriting of the deceased; that it was written on a sheet of letter paper, the body of the writing commencing on the first page and ending about the middle of the next; that the paper was folded so that the third page was outside; that after the death of the deceased the paper was found in a pocket book in a trunk of the deceased; that there were bonds, receipts and other papers in the pocket book; that when found the paper was folded up in the form of a letter, and the words David M. Roy’s will endorsed on the back, being about the middle of the third page when the paper is unfolded. The words endorsed were in the hand writing of the deceased. The name of the deceased is not signed at the foot or end of the writing. A date is attached and after the date a clause added appointing an executor. *164The instrument does not profess ' to dispose of nor does it appear that it does dispose of the whole of his estate; and it has no residuary clause. Upon this proof the case is nearly alike to the case of Ramsey v. Ramsey. The will there had more of the marks of a complete and concluded act than this. In that case he declared he thereby made his last will and .testament in the manner and form following. The will disposed of all his estate, appointed an executor to that his last will and testament and revoked all former wills, and was dated. It was carefully preserved, was found in the pocketbook of the deceased locked up in his drawer, ^folded up in the form of a letter and sealed with a wafer, but without endorsement of any kind.
It is insisted, however, in this case that the endorsement on the third page in these words “David M. Roy’s will,” proved to be in the handwriting of the deceased, amounted to a signing in such manner as to make it manifest that the name was intended as a signature to give authenticity to the paper. Or if it cannot be regarded as a signature, that it was intended to recognize the signature of the name in the body of the will as a signing.
The argument pre-supposes that the deceased was aware of the necessity of a signing to give it authenticity and to show that it was a final and concluded act. If so it is very improbable that he would, instead of sigriing'his name at the end of the writing in the usual manner, have written it on the middle of the next page, leaving two half pages blank from where the writing terminated in the middle of the-second to the middle of the third page; a. space to have written as much nearly as was written in' the body of the instrument; or that he should have endorsed these words on the paper for the purpose of making it manifest that the name in the body of the instrument was intended as a signature, when the ■ name itself written at the end of the instrument would have concluded all inquiry as to the intention.
May it not rather be inferred that the paper was a draft for further consideration. It seems that the instrument was not regarded as final when the date was added, for the clause appointing the executor follows immediately thereafter, and the instrument may have been left in its present condition with the veiw of adding new provisions as they occurred to his mind; as was the case in respect to the clause appointing his executor. It *is an unusual mode of signing or authenticating a paper as a concluded act, by endorsing the name of the person executing in on the back. Such endorsement is usually made as a label or mark to distinguish, it from other papers, and probably it never occurred to the deceased that it was to have any other function on this case. It is at the most equivocal, and being so is ruled by the case of Ramsey v. Ramsey.
In olograph wills there is no publication by the signing and acknowledgment, and the attestation of witnesses in the manner prescribed by the statute; the signing is the only evidence that it is a final and concluded act. In an instrument purporting to be an attested will the proof must come up to the requisitions of the law; the court cannot dispense with any of the formalities made essential by the act. In England the signing at the foot or end is alone the index of intention by the statute of Victoria ; and the manifest intention of the signature wherever placed is the rule in Virginia, and as was said in Ramsey v. Ramsey, it was intended bj' our legislature to furnish a rule in respect to the signature, which, whilst it would have all the certainty of the British statute, would yet let in wills, which though not signed at the foot or end, might be signed in. such a manner as to afford internal evidence of authenticity equally • convincing. The endorsement here does not furnish such internal evidence, and I therefore think the Circuit court erred in admitting the paper to probate.
The sentence should be reversed with costs; and this court proceeding to give such sentence in the premises as the Circuit court should have given, it is further declared that the paper writing aforesaid propounded for probate as and for the last will and testament of said David M. Roy deceased, has not been signed by the deceased or by some other person in his presence and by *his direction so as to make it manifest that the name was intended as a signature, and that probate of the paper be refused; and that the costs of both parties in said Circuit court be a charge on and to be paid out of the estate of said decedent.
MONCURE, J. dissented.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481680/ | MONCURE, J.,
delivered the opinion of the court.
These three cases are precisely alike, and present the same questions for decision. They were actions of ejectment brought in the Circuit court of the city of Richmond. In each of them the declaration was filed at rules, on the first Monday in Eebruary, 1860, with proof of service of notice thereof according to law; and thereupon *was entered a rule upon the defendants to appear and plead at the next rule day. At which day, to-wit: on the first Monday in March, 1860, the defendants having failed so to appear and plead, though duly served with a copy of said rule, their default was entered and judgment given against them. At the next term of the court, and after the fifteenth day thereof, the defendants appeared and moved the court for leave to plead to issue, and set aside the office judgment; but the court, being of opinion that the office judgment became final on the fifteenth day of the term (under section 44 of chapter 171 of the Code), not having previously been set aside, overruled the said motion ; to which opinion and decision ‘ of the court the defendants excepted: and they afterwards applied for and obtained a supersedeas to the judgment.
It is contended that the judgment is erroneous on one of two grounds, viz: 1st, that section 44, of chapter 171 of the Code, does not apply to an action of ejectment; and, if it does, 2ndly, that it was competent for the court after the fifteenth day of the term, for good cause shown, to permit the defendants to plead to issue and set aside the office judgment; and good cause was in fact shown.
We will proceed to consider the first of these grounds to wit: Whether the said section applies to an action of ejectment. It is in these words:
‘‘Every judgment entered in the office in a case wherein there is no order for an enquiry of damages, and every non-suit or dismission therein, shall, if not previously set aside, become a final judgment, if the case be in the general or a Circuit court, of the last day of the next term, or the fifteenth day thereof (whichever shall happen first), and if it be in a count}’ or corporation court, of the last day of the next quarterly term, and have the same effect, by way of lien or otherwise, as a judgment ^rendered in the court at such term. Every such judgment for any plaintiff! shall be for the principal sum due, with interest thereon from the time it became payable (or commenced bearing interest) till payment, unless it be in such action as is mentioned in the 11th section of chapter 144, in which case it shall be according to that section.”
The above section, it will be perceived, is expressly confined to office judgments in cases wherein there is no order for an enquiry of damages, and the question at once arises, what are those cases? The next two preceding sections answer the question. The 42d section, providing for an office judgment against a defendant in default, directs that “judgment shall be entered against him, with an order for the da'mages to be enquired into, when such enquiry is proper.” The 43d section is in these words:
“There need be no such enquiry in an action of debt upon any bond or other writing for the payment of money, or against the drawer or endorsers of a bill of exchange or negotiable note, or in action of debt or scire facias upon a judgment or recognizance.”
Then follows the 44th section before recited, commencing with the words, “Every judgment entered in the office in a case wherein there is no order for an enquiry of damagés;” thus obviously referring to the cases mentioned in the 43d section, and having the same meaning as if the 44th section had commenced in these words: “Every judgment entered in the'office in an *166action of debt upon bond or other writing for the payment of money,” &c., as set out in the 43d section. That' the 44th section was intended to be confined to those cases, is further shown by the latter branch of the section, which “declares, that “Every such judgment for any plaintiff shall be for the principal sum due, with interest thereon from .the time it became payable,” &c. *The terms “every such judgment” here used, relate to the terms, “every judgment,” &c., in the former branch of the section; and the words, “shall be for the principal sum due,’ &c., are strictly applicable only to such actions as are mentioned in the 43d section.
The 43d section is the only law which dispenses with the necessity for an enquiry of damages; which, therefore, is necessary in every case not enumerated in that section, of an office judgment against a defendant. Before the enactment of that section, such an enquiry was dispensed with, only-in an action of debt upon a bond, bill, promissory note, or other writing for the payment of money or tobacco. In every other action in which a judgment was obtained in the office by the plaintiff, an order for an enquiry of damages, was made at the same rule day at which the conditional judgment was affirmed. 1 Rob. Pr. old ed. p. 170. And the- law declared, that “all judgments by default, obtained in the office for want of appearance of plea, in which no writ of enquiry shall be awarded, and which shall not be set aside on some day of the next succeeding term; and all non-suits and dismissions obtained in the office and not so set aside, shall be considered as final judgments of the last day of the term, and executions may issue thereupon accordingly,” &c. 1 R. C. 1819, p. 508, $ 79. There have been several decisions of this court upon the construction of that law; most of which are stated in 1 Rob. Pr. cited supra.
In Hunt, &c., v. McRae, 6 Munf. 454, the declaration was in debt for money lent, but said nothing of any contract in writing, and a judgment was confirmed in the office which became final. This court was of opinion, that the judgment was erroneous, ,in being made final on a declaration claiming a debt due for money loaned, and not alleged to be founded on any specialty, bill, or note in writing. It was therefore reversed, and *the cause remanded for a writ of enquiry to be executed, unless the defendant should plead to issue.
In Metcalfe v. Battaile, Gilm. 191, it was held that a negotiable note was not, as to the indorser, a note for the payment of money, within the meaning of the law in question ; and that, consequently, judgment could not be rendered in such case, without the intervention of a jury. That was an action of debt against the indorser of the note; whose contract, the court said, was not a writing for the payment of money absolutely, but a collateral contract to pay it under certain circumstances.
In Hatcher v. Lewis, 4 Rand. 152, a joint action of debt was brought against drawer and endorsers of a negotiable note, and it was held that an office judgment could not be confirmed against all or either of the defendants without a writ of enquiry.
In Rees v. Conococheague Bank, 5 Id. 326, the action was against the maker of a note, which was protested for non-payment, and the protest had this indorsement upon it, “$550 has been received, at sundry times, on account of the within note, Julj' 19th, 1819.” An office judgment was entered for the whole amount of the note, without allowing the credit. There was reason to believe that the plaintiff intended to contest the credit. This court was of opinion, that “a final judgment, when no plea is filed, may be rendered in the office at rules for principal and interest, when the action is founded upon any instrument in writing for the payment of an ascertained sum of money. But if the plaintiff, by any paper filed by himself, shows that the defendant is entitled to a credit, the judgment ought either to be entered subject to such credit, or, if the plaintiff refuses to take a judgment in that way, a writ of enquiry should be awarded.” And accordingly the judgment was reversed, and the cause remanded with direction to award a writ of enquiry.
*In Shelton’s ex’ors v. Welsh’s adm’rs, 7 Leigh 175, the action was debt upon a decree; and an office judgment was entered and confirmed for the amount of the decree. This court held that it was error to enter judgment in the office without awarding a writ of enquiry.
These cases clearly show that under the Code of 1819, the award of a writ of enquir3r was necessary in every case of an office judgment against a defendant, except the case of an action of debt upon an instrument of writing for the payment of an ascertained sum of money, absolutely and unconditionally. The present Code, ch. 171, fj 43, seems to have made no other change in this respect than to extend the exception to an action of debt against endorsers, as well as the drawer, of a bill of exchange or negotiable note; and to an action of debt or scire facias upon a judgment or recognizance; in which cases it had been held, as we have seen, that a writ of enquiry was necessary, under the Code of 1819. It follows, therefore, that an order for an enquiry of damages is necessary, under the present Code, when an office judgment is entered against a defendant in ejectment; unless, as is contended, there be something in chapter 135 of the Code, concerning “the action of ejectment,” which dispenses with the necessity for such an order. Bet us examine that question.
That chapter makes most important and radical changes in the nature of the action of ejectment. It abolishes the fictitious features of the action; requires it to be conducted in the names of the real parties; gives it the effect of a writ of right, as well *167as of an action of ejectment under the former law ; applies it to the recovery of dower, and to the recovery not only of the principal subject itself of the action, but of the mesne profits, &c., which were formerly recoverable only in an action of trespass therefor, brought after the conclusion of the action of ejectment; makes the
judgment in the action ^conclusive as to the title or right of possession established therein, subject to a saving in favor of persons under disability; and abolishes real actions. It may well be supposed that a law having such important objects in view would be carefully framed, and would not dispense with any precaution which might be necessary to prevent injustice. Accordingly we find that it contains minute details as to the parties, pleadings, proofs, and other proceedings in the action, and expressly requires the defendant to be served, not only with the declaration, and notice of the filing thereof, but afterwards also, with a rule to appear and plead. It is true that the law authorizes the declaration to be filed at rules, or in court, instead of in court only, as under the old law; and section 12 provides, that “upon filing the declaration with proof of the service of notice thereof as aforesaid, the plaintiff shall be entitled" to a rule upon the defendant, to appear and plead at the next rule day if the declaration be filed at rules, or if filed in court to appear and plead within such time as shall be prescribed by the court; and if, upon service of such rule, he shall fail so to appear and plead, his default shall be entered and judgment given against him.” But the only object of the law in authorizing these proceedings at rules, seems to be, to place the action of ejectment on the footing of other actions in that respect, and to enable the parties to mature the pleadings and have the case ready to be disposed of at the next term. It could not have been intended, by implication merely, to effect so radical a change in the law as to authorize an office judgment against a defendant in ejectment which would become a final judgment of the succeeding term of the court, by mere operation of law, without the intervention of the court or a jury. It is true, there is in the said chapter no direction for an enquiry of
damages after judgment by default is entered at rules ; but it is *also true that there is no direction therein that the office judgment shall become final on the last day of the next term or the 15th day thereof, if not previously set aside. In these respects the case was left to be governed by chapter 171, | 42, as to office judgments generally. The direction for an office judgment, implied no direction to dispense with a writ of enquiry. Wherever pleadings are matured at rules, there may be judgment by default at rules. Wherever a writ of enquiry is awarded at rules, it is founded on a judgment by default in the office. So that, a direction in the law that the defendant’s ‘‘default shall be entered and judgment given against him” at rules, leaves undecided the question, whether a writ of enquiry is to be awarded or not, being perfectly consistent with either alternative.
Anciently, the action of ejectment had no other object but to recover damages by a lessee against any person who ousted him of his term. Afterwards, complete justice was done in the action by applying it to the recovery’, as well of the term itself, as of damages for the ouster and detention. Still later, it was used mainly for trying titles, and a string of legal fictions was invented to make it available for that purpose. In this last phase, the title or possession of the subject was the only substantial object of the suit, and damages for the ouster and detention, though still declared for, were merely nominal in the action itself, but were recoverable in a separate action of trespass for mesne profits. The present Code dispenses with the necessity of an action of trespass for mesne profits, and makes the damages recoverable in the action of ejectment. It requires the declaration to claim damages, and provides that “if the plaintiff file with his declaration a statement of the profits and other damages which . he means to demand and the jury find in his favdr, they shall at the same time, unless the
court otherwise order, assess the damages *for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit un-
til the verdict, and also the damages for any destruction or waste of the buildings or other property, during the same time for which the defendant is chargeable.” Chap. 135, § 30. Certainly, if such a statement be filed, an order for an enquiry of damages would be necessary. Id. $ 31. And so also is such an order necessary, though no such statement be filed, if the right or title of the plaintiff expired after the commencement of the suit; in which case the law provides, that “judgment shall be entered for his damages, sustained from the withholding of the premises by the defendant, and as to the premises claimed the judgment shall be, that the defendant go thereof without day.” Id. 28. In the latter case the plaintiff is certainly entitled to his costs, and the mode of recovering them is by continuing the prosecution of the suit for the damages. He is at least entitled to nominal damages; and the only mode of recovering nominal damages, where there is a judgment by default, is by an enquiry of damages. That a plaintiff is entitled only to nominal damages, is not of itself a sufficient reason why there should not be an enquiry of damages. No action of debt sounds in damages ; and yet an order for an enquiry of damages is necessary in every action of debt in which there is an office judgment, except those enumerated in the Code, ch. 171, 1 43; and is necessary even in those cases, if there be any apparent uncertainty as to the amount of the debt, or of the credits applicable thereto. The function of such an enquiry is, not only to ascertain the amount of damages, but to remove any uncertainty which may exist as *168to the subject in controversy or the amount thereof.
We conclude, upon this branch of the subject, that an office judgment in an action of ejectment, does not ^become final without the intervention of the court or a jury, but there ought in every such case to be an order for an enquiry of damages; and therefore, that the 44th section of chapter 171 of the Code, is not applicable to such action.
The conclusion to which we have come upon the first ground of error, renders it unnecessary to express any opinion upon the other; and it would be improper to do so, especially as that ground impugns the decision of this court in Bnder’s ex’ors v. Burch, 15 Gratt. 64, which was a unanimous decision of a court of four judges, whereas the court now sitting consists of but three. As, however, the question was argued by the counsel in these cases, and has, to some extent, been reconsidered by the court, (all the members of which were also members of the court that decided that case), it may be proper to state that two of the judges now sitting entertain some doubt of the correctness of that decision, and the court is therefore of opinion that a reargttment of the question ought' to be heard whenever it may come up for decision before a full court.
In each of the three cases the judgment must be reversed, and the cause remanded to the Circuit court, with instructions to allow the plaintiffs in error to plead to issue if they shall again offer to do so, and for'further proceedings therein to a final judgment, in conformity with the foregoing opinion.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481209/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
In the interest of J.H. and K.H., children, * From the 326th District Court
of Taylor County,
Trial Court No. 10045-CX.
No. 11-22-00122-CV * November 3, 2022
* Memorandum Opinion by Williams, J.
(Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.)
This court has inspected the record in this cause and concludes that there is no
error in the order below. Therefore, in accordance with this court’s opinion, the
order of the trial court is in all things affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481214/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Joshua Robert Belleville, * From the 385th District Court
of Midland County,
Trial Court No. CR54224.
Vs. No. 11-21-00153-CR * November 3, 2022
The State of Texas, * Memorandum Opinion by Trotter, J.
(Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.)
This court has inspected the record in this cause and concludes that there is
error in the judgment below. Therefore, in accordance with this court’s opinion,
we modify (1) the trial court’s judgment to clarify that “all court costs, fines, fees,
assessments and restitution” does not include court-appointed attorney’s fees and
(2) the district clerk’s amended bill of costs to delete the court-appointed attorney’s
fees assessed against Appellant. As modified, we affirm the judgment of the trial
court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481213/ | Opinion filed November 3, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00153-CR
__________
JOSHUA ROBERT BELLEVILLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR54224
MEMORANDUM OPINION
Appellant, Joshua Robert Belleville, was indicted for aggravated assault with
a deadly weapon, a second-degree felony offense. See TEX. PENAL CODE ANN.
§ 22.02(a)(2), (b) (West Supp. 2022). The jury found Appellant guilty as charged in
the indictment, and upon Appellant’s election, the trial court assessed his
punishment at seven years of imprisonment in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ-ID).
Appellant raises two issues on appeal. First, Appellant argues that he was
harmed when the trial court refused to submit his requested jury instruction on self-
defense. Second, Appellant asserts that the trial court erroneously assessed court-
appointed attorney’s fees against him because he is indigent. We modify and affirm.
I. Factual Background
On August 31, 2019, Edward Roman was playing a video game in his
bedroom with his two-year-old daughter when he heard a knock at the bedroom door.
Roman testified that Appellant—the live-in brother of Roman’s girlfriend—was at
the bedroom door asking Roman to transfer his clothes from the washer to the dryer
in the laundry room, a small room adjacent to Roman’s bedroom. Roman testified
that, earlier that morning, Appellant had been acting strangely by “pacing back and
forth in [Appellant’s] room constantly and looking at [Roman].” Evidently, Roman
and Appellant had a contentious relationship.
Roman testified that, as he moved clothing from the washer to the dryer,
Appellant swung the laundry room door open and punched Roman twice in the back
of the head. Appellant and Roman then began fighting in the laundry room. After
Roman “threw [Appellant] across the hallway,” Appellant “got up from the ground,
. . . rushed [Roman] with the knife, and . . . stabbed [Roman]” under his jawline,
severing his superior thyroid artery.
After Appellant stabbed him, Roman held Appellant’s hands to prevent
Appellant from stabbing him again. Appellant’s father heard the commotion and ran
to the laundry room, where Roman yelled, “he stabbed me in the neck.” Appellant’s
father saw blood “gushing out of [Roman’s] neck,” removed Roman’s daughter from
the immediate area, and called 9-1-1. Appellant’s father testified that only Roman
was bleeding at this point in the altercation.
Roman testified that, after Appellant’s father left with his daughter, Roman
was able to move Appellant into the bedroom, still holding onto the blade-end of the
2
knife while Appellant held onto the handle. Roman testified that he got on top of
Appellant and “was fighting for [his] life.”
Appellant’s father ran back to the altercation and found Roman on top of
Appellant; the two were fighting over the knife in the bedroom—Roman still having
the blade-end while Appellant had control of the knife’s handle. During cross-
examination, Appellant’s father testified that “[i]t was obvious . . . who had control
of the knife and who was trying to defend themselves from the knife blade,” which,
according to Appellant’s father, indicated that Roman was trying to defend himself
from Appellant’s use of the knife. Appellant’s father further testified that he was
able to persuade Appellant and Roman to drop the knife; he then put the knife in the
kitchen sink. Appellant’s father described the knife as an “extremely sharp” knife
and recalled that it had been missing from the butcher block for several days prior
to the assault.
When Appellant’s father returned to the bedroom, he found Roman attempting
to strike Appellant with a 25-pound dumbbell. Roman testified that he hit Appellant
with the dumbbell in the head three times. Roman dropped the dumbbell and
Appellant’s father broke up the altercation; he then ordered Appellant to leave the
home, locked the front door as Appellant left, and began tending to Roman’s injuries.
Both Roman and Appellant were treated at the hospital. Roman sustained stab
wounds to his neck, inner right arm, and right hand, and a bite wound to his left
index finger. Roman also suffered a severed superior thyroid artery, a perforated
jugular vein, and a “hole in his trachea” that necessitated surgery. Appellant
sustained lacerations to his face, scalp, and hands.
Appellant’s trial counsel argued in his opening statement that Appellant “was
attacked and . . . was simply defending himself.” However, the evidence presented
during the trial did not support Appellant’s claim of self-defense. Rather, the
evidence showed that Appellant’s attack on Roman was premeditated. Roman and
3
Appellant’s father testified regarding the knife missing from the butcher block, and
Roman testified regarding Appellant’s menacing behavior toward Roman on the day
of the assault. Although Roman acknowledged that he was on deferred adjudication
probation for having committed a prior aggravated assault against Appellant that
involved the use of a bat, the evidence showed that, during the altercation in this
case, Appellant lured Roman into a small laundry room to effectuate the stabbing
and that Appellant used deadly force against Roman after Appellant had provoked
and initiated the altercation.
After the evidence closed, Appellant’s trial counsel requested the submission
of a self-defense instruction in the trial court’s charge, arguing that the testimony of
Appellant’s father was based on assumptions and that Roman’s testimony was “self-
interested.” Appellant’s trial counsel argued that “a scintilla of evidence” existed
that justified the instruction “based on their history of [Roman] and [Appellant].”
The trial court denied the request. During closing arguments, Appellant’s trial
counsel did not argue self-defense. Instead, trial counsel argued that (1) the officers
“made a snap judgment” to charge Appellant because he was the larger-sized
individual, (2) Roman and Appellant’s father were not credible, and (3) the State had
not met its burden to prove the elements of the charged offense.
The jury sent several questions to the trial court during its deliberations. One
note related to police reports but was not signed. When the trial court returned the
note to the jury for a signature, the jury members returned the same note with two
additional questions relating to whether Appellant’s motive for stabbing Roman
“mattered,” and why “we rest[ed] the case.” With each note that was returned to the
jury, the trial court directed the jury to the evidence admitted and the trial court’s
charge. The jurors sent three additional questions to the trial court, asking whether
Appellant’s trial counsel “object[ed] to resting the case,” “what happens” if the
jurors could not reach a unanimous verdict, and “how long” the jury must deliberate.
4
The trial court again directed the jurors to the charge for the first question but issued
an Allen charge 1 for the latter two. The jurors then sent a final note to the trial court,
asking who the second “he” was referring to in Appellant’s medical records when
the narrative said, “[p]t states ‘he’ got in a fight with his sister’s boyfriend and that
‘he’ had a knife.” The trial court directed the jury to comply with its instructions
once more. Shortly thereafter, the jury reached a unanimous verdict and found
Appellant guilty as charged in the indictment. The trial court sentenced Appellant
to imprisonment for seven years in TDCJ-ID. This appeal followed.
II. Analysis
In his first issue, Appellant asserts that the trial court erred in denying trial
counsel’s request for a self-defense instruction in the court’s charge. Appellant
argues that “the ‘scintilla’ of proof” to support the submission of this instruction
exists within statements in Appellant’s medical records. Specifically, in the
emergency triage narrative, the records state the following: “Pt states he got in a
fight with his sisters (sic) boyfriend and that he had a knife.” In addition, in the
history narrative, the records state: “Patient was involved in a stabbing episode
[with] him and another. This patient has lacerations [on his] face[,] head[, and]
bilateral hands.” Appellant contends that the above statements, “as evidenced in the
jury note inquiring as to who the ‘he’ was” in the narrative, constituted a “scintilla”
of evidence that entitled Appellant to have a self-defense instruction included in the
trial court’s charge.
In asserting self-defense, the use of force is justified “when and to the degree
the actor reasonably believes the force is immediately necessary to protect the actor
against the other’s use or attempted use of unlawful force.” PENAL § 9.31(a) (West
See Allen v. United States, 164 U.S. 492 (1896); Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex.
1
Crim. App. 2006) (“An Allen charge is a supplemental charge sometimes given to a jury that declares itself
deadlocked.”).
5
2019). In the same manner, the use of deadly force against another is justified under
the above circumstances “if the actor would be justified in using force against the
other” under Section 9.31 and “when and to the degree the actor reasonably believes
the deadly force is immediately necessary . . . to protect the actor against the other’s
use or attempted use of unlawful deadly force.” Id. § 9.32(a). “‘Deadly force’ means
force that is intended or known by the actor to cause, or in the manner of its use or
intended use is capable of causing, death or serious bodily injury.” Id. § 9.01(3). A
reasonable belief is a belief that would be held by an ordinary and prudent person in
the same circumstances as the actor. Id. § 1.07(a)(42) (West 2021).
Self-defense is a “confession-and-avoidance” defense. Jordan v. State, 593
S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Juarez v. State, 308 S.W.3d 398,
404 (Tex. Crim. App. 2010)). A “confession-and-avoidance” defense does not
negate any elements of the charged offense. See Jordan, 593 S.W.3d at 343; Juarez,
308 S.W.3d at 401–02; Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).
Instead, the defense requires that a defendant (1) admit to the commission of the
charged offense and (2) offer a justification to his otherwise criminal conduct.
Jordan, 593 S.W.3d at 343; cf. Juarez, 308 S.W.3d at 399.
Upon request, a trial court must include a self-defense instruction in its charge
if such a defense “is raised by the evidence.” Jordan, 593 S.W.3d at 343 (citing
Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)). A defense is “raised
by the evidence” if “there is sufficient evidence to support a rational jury finding as
to each element of the defense.” Jordan, 593 S.W.3d at 343 (citing Shaw, 243
S.W.3d at 657–58). The “burden of showing that each element of the defense has
been satisfied” rests with the defendant. Juarez, 308 S.W.3d at 404; Shaw, 243
S.W.3d at 657. “It is of no consequence ‘whether such evidence or testimony was
produced by the prosecution or the accused, or whether such defensive evidence or
testimony might be strong, weak, unimpeached, or contradicted.” Juarez, 308
6
S.W.3d at 405 (quoting Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App.
1984)); see also Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).
We “view the evidence in the light most favorable to the defendant’s requested
defensive instruction,” using the court’s “own judgment, formed in the light of its
own common sense and experience, as to the limits of rational inference from the
facts proven.” Jordan, 593 S.W.3d at 343; see also Maciel v. State, 631 S.W.3d 720,
723 (Tex. Crim. App. 2021) (quoting Shaw, 243 S.W.3d at 658). The trial court errs
in refusing to submit a requested defensive instruction if there is “some evidence,”
when viewed in the light most favorable to the defendant, that will support its
elements. Jordan, 593 S.W.3d at 343 (citing Gamino v. State, 537 S.W.3d 507, 510
(Tex. Crim. App. 2017)). However, a finding that the trial court did not err in its
refusal to submit a requested defensive instruction ends our analysis and precludes
the need for any review of potential harm. See Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012); Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App.
2010) (citing Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)).
In this case, Appellant’s requested instruction would have concerned self-
defense involving the use of deadly force, rather than non-deadly force, because
Appellant used deadly force against Roman by stabbing him with a knife. The Texas
Pattern Jury Charges describes such an instruction as follows: “You have heard
evidence that, when the defendant [insert specific conduct constituting offense], he
believed his use of force was necessary to defend himself against [name]’s use [or
attempted use] of unlawful deadly force.” Comm. on Pattern Jury Charges, State
Bar of Texas, TEXAS PATTERN JURY CHARGES: CRIMINAL DEFENSES PJC 32.2 (2018)
(Instruction—Self-Defense Involving Deadly Force to Protect against Deadly Force
by Another). To be entitled to this defensive instruction, (1) Appellant was required
to admit that he committed the aggravated assault against Roman and (2) the
evidence at trial must have indicated that Appellant was justified in the use of force
7
under Section 9.31 and that Appellant reasonably believed that his use of deadly
force was immediately necessary to defend himself against Roman’s use or
attempted use of unlawful deadly force. PENAL § 9.32(a); see also Jordan, 593
S.W.3d at 343. As such, Appellant would have been entitled to a self-defense
instruction only if some evidence satisfied each element of both Sections 9.31 and
9.32.
Here, Appellant did not admit to committing the charged offense, nor did he
produce evidence to support the elements of self-defense. First, the record is silent
as to any admission by Appellant, overtly or otherwise, that he committed
aggravated assault as charged in the indictment. The only evidence that could
possibly be perceived as an “admission” is the ambiguous statement Appellant relies
on in the admitted medical records that prove just the opposite—“[p]t states he got
in a fight with his sisters (sic) boyfriend and that he had a knife.” In addition,
although Appellant’s trial counsel initially argued in his opening statement that
Appellant acted in self-defense, as the trial progressed and during his closing
argument, Appellant’s trial counsel instead presented and relied on other theories,
some of which were arguably inconsistent with a self-defense theory. Thus,
Appellant failed to admit to the charged offense, a crucial and necessary component
of any “confession-and-avoidance” defense. See Jordan, 593 S.W.3d at 343; see
also Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (trial counsel’s
arguments that the defendant acted reasonably and that his actions were “necessary
to save his life” did not “present the defense of necessity”); cf. Lozano v. State, 636
S.W.3d 25, 34 (Tex. Crim. App. 2021) (“[e]rroneous arguments of counsel about a
defensive issue not raised by the evidence do not weigh in favor of finding egregious
harm”).
Nevertheless, the evidence is undisputed that Appellant initiated and
provoked the assault upon Roman and that Appellant was the first person to use
8
deadly force during the altercation. See PENAL § 9.32(a)(2) (deadly force must be
immediately necessary); see, e.g., Lozano, 636 S.W.3d at 33 (self-defense is not
raised by the evidence where the defendant provoked the altercation and did not
otherwise meet the presumptions in Section 9.32(b)). As stated above, Appellant
(1) lured Roman into a small laundry room to effectuate the assault, (2) initiated the
altercation by punching Roman in the back of the head, and (3) then used deadly
force against Roman, by stabbing him in the neck with an “extremely sharp” knife,
in response to Roman’s attempt to defend himself by using non-deadly force. Even
if Roman’s defensive actions with the dumbbell could be construed as a use of
deadly force, Roman and Appellant’s father both testified that Roman sustained the
serious stabbing injury to his neck before Roman struck Appellant with the
dumbbell. Indeed, Appellant did not act in response to deadly force being used
against him because Roman did nothing to place Appellant in fear of death.
Moreover, although the medical records state that Appellant “was involved in
a stabbing episode” and, along with photographic evidence, that Appellant “ha[d]
lacerations [on his] face[,] head[, and] bilateral hands,” Appellant’s father testified
that, at the beginning of the altercation, only Roman was stabbed, only Roman was
bleeding, and “[t]here was no blood coming from” Appellant at that time. Without
more, the ambiguous statements within Appellant’s medical records—that “he got
in a fight with his sisters (sic) boyfriend and that he had a knife” and that Appellant
was “involved in a stabbing episode”—do not constitute sufficient evidence to
support a rational jury finding that each element of a claim of self-defense has been
met. There is no evidence in the record that the term “he” refers to Roman.
Moreover, these statements do not indicate the timing of the knife’s possession—
before, during, or after Appellant’s use of deadly force. There is no evidence that
Roman used deadly force against Appellant prior to being stabbed multiple times by
Appellant with a knife. As such, there is no evidence that Appellant believed his use
9
of deadly force was immediately necessary to defend himself against any purported
use or attempted use of unlawful deadly force by Roman.
Viewing the evidence in the light most favorable to the requested instruction
and considering the limits of rational inferences from the facts proven at trial, we
conclude that there is insufficient evidence to support a rational jury finding as to
each element of Appellant’s claim of self-defense. The evidence in the record does
not meet each element of the defense under Sections 9.31 and 9.32. Therefore,
Appellant was not entitled to a self-defense instruction, and the trial court did not err
when it refused Appellant’s request. See Jordan, 593 S.W.3d at 343; cf. Lozano,
636 S.W.3d at 33; Young, 991 S.W.2d at 839.
We overrule Appellant’s first issue on appeal.
III. Court-Appointed Attorney’s Fees
In his second issue on appeal, Appellant asserts, and the State agrees, that the
trial court and the district clerk erroneously assessed court-appointed attorney’s fees
against him.
An indigent defendant cannot be taxed the cost of services rendered by his
court-appointed attorney unless the trial court finds that the defendant has the
financial resources to repay those costs in whole or in part. Smith v. State, 631
S.W.3d 484, 501 (Tex. App.—Eastland 2021, no pet.) (citing Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010)); see TEX. CODE CRIM. PROC. ANN. art.
26.05(g) (West Supp. 2022). The Texas Court of Criminal Appeals has held that the
trial court must find that the defendant had the ability to repay court-appointed
attorney’s fees prior to assessing such fees against an indigent defendant. Cates v.
State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d
at 556 (“[T]he defendant’s financial resources and ability to pay are explicit critical
elements in the trial court’s determination of the propriety of ordering
reimbursement of costs and fees.”). Further, a “defendant who is determined by the
10
[trial] court to be indigent is presumed to remain indigent for the remainder of the
proceedings in the case unless a material change in the defendant’s financial
circumstances occurs.” Cates, 402 S.W.3d at 251 (quoting CRIM. PROC. art.
26.04(p)).
On September 3, 2019, Appellant filed an affidavit of indigence certifying that
he did not have the necessary funds to hire an attorney for his defense for the instant
case. The trial court determined that Appellant was indigent and appointed trial
counsel to represent Appellant’s interest in all proceedings in this case. Subsequent
to this appointment, the trial court did not receive evidence, nor did it issue a finding,
that Appellant had the ability to pay any portion of the attorney’s fees that were
incurred by his court-appointed attorney. Moreover, nothing in the record indicates
that (1) Appellant is no longer indigent or (2) the trial court made a subsequent
determination that Appellant’s financial circumstances had materially changed or
that he had the financial resources or ability to pay the court-appointed attorney’s
fees of $9,450 that were assessed against him. Because the trial court’s judgment
ordered Appellant to pay “all costs” and the district clerk improperly assessed the
attorney’s fees incurred by his court-appointed attorney as reimbursement costs
against Appellant, we must modify the trial court’s judgment and the district clerk’s
amended bill of costs to remove the improperly assessed fees. See Cates, 402
S.W.3d at 252; Smith, 631 S.W.3d at 501.
Here, the trial court’s judgment erroneously orders Appellant to pay “all costs
in this proceeding incurred . . . [including] all court costs, fines, fees, assessments
and restitution.” Similarly, the district clerk’s amended bill of costs erroneously
includes court-appointed attorney’s fees as reimbursement costs for which Appellant
is responsible. Accordingly, we modify (1) the trial court’s judgment to clarify that
“all court costs, fines, fees, assessments and restitution” does not include court-
11
appointed attorney’s fees and (2) the district clerk’s amended bill of costs to delete
the court-appointed attorney’s fees assessed against Appellant.
IV. This Court’s Ruling
As modified, we affirm the judgment of the trial court. See TEX. R.
APP. P. 43.2(b).
W. STACY TROTTER
JUSTICE
November 3, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
12 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481219/ | NO. 12-22-00168-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LAZY W CONSERVATION DISTRICT, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
ARLIS A. JONES,
APPELLEE § HENDERSON COUNTY, TEXAS
PER CURIAM ORDER
Lazy W Conservation District appeals from a judgment of May 20, 2022. The reporter’s
record was originally due on July 23, 2022. On July 25, 2022, Reporter Beverly Dixon filed a
motion for extension of time to file the reporter’s record and the motion was granted to August 5.
On August 8, Dixon filed a second motion for extension of time to file the record and the motion
was granted to August 17. On August 18, the Clerk of this Court notified Dixon that the
reporter’s record was past due and gave Dixon until August 29 to file the record. On August 18,
Dixon filed a third motion for extension of time to file the record, requesting an extension to
August 29. On August 18, counsel for Lazy W filed a response to Dixon’s third motion, in
which it opposed further extensions and expressed concern that Dixon may have lost notes or
records pertinent to the appeal. On August 24, this Court requested that Dixon respond to Lazy
W’s objection by August 29. Dixon did not file a response by the deadline.
On August 31, this Court overruled Dixon’s third motion for extension and ordered that
Reporter Dixon file the record on or before September 12. On September 1, Dixon filed a late
response to Lazy W’s objection, in which she described experiencing repeated daily telephone
calls and “venom and hatefulness” from Lazy W’s counsel. In response, Lazy W’s counsel
labeled Dixon’s allegations as “fiction.” On September 12, Dixon filed a fourth motion for
extension of time to file the reporter’s record and requested until September 15 to file the record.
No record was filed by September 15, and this Court overruled Dixon’s fourth motion on
September 19. On September 19, this Court notified Dixon that the matter had been referred to
the Court for further action. On September 22, this Court issued an Order to Appear and Show
Cause to Dixon.
On October 24, the hearing on this Court’s Order to Appear and Show Cause was held, at
which Dixon appeared in person and with her counsel, Mr. Jeff Coe. This Court found Dixon in
contempt for violating our order of August 31 and ordered Dixon be arrested and confined to the
Smith County Jail for such violation until she purged herself of the contempt by preparing and
filing with the Clerk of this Court the complete reporter’s record in legible form as required by
the Supreme Court. This Court’s commitment order required that Dixon file volumes two and
four of the record by noon on October 25 and gave Dixon until 1:00 p.m. on October 31 to file
the complete record. We ordered that “Dixon shall report to the Smith County Jail … at 1:00
p.m. on October 31, 2022, and each day thereafter, excluding Saturdays and Sundays, with all
equipment necessary to complete the reporter’s record in cause number 12-22-00168-CV, and
shall work on the referenced record from 8:00 a.m. until 5:00 p.m. until the referenced record is
complete.” We explained that “[t]he record shall be deemed complete when it is presented in
legible format, and accepted and filed by the Clerk of this Court” and that “[a]fter the complete
record is presented in legible format, Reporter Dixon shall continue to report to the Smith
County Jail until she receives notification from the Court that the record has been accepted and
filed.”
Dixon untimely filed volume two of the record on October 25 at 1:43 p.m. and untimely
filed volume four on October 27 at 4:02 p.m. It is this Court’s understanding the volume one
consists of the master index, volume three consists of deposition testimony and live testimony,
and volume five consists of trial exhibits. On November 2, 2022, Mr. Coe filed a letter with this
Court, in which he explained that other court reporters were assisting Dixon with preparation of
the record and were able to complete the deposition testimony for volume three. But he further
explained that one of the assisting reporters discovered that “the content of the live testimony is
… as if a two year old was typing on the machine. It is unintelligible.” Based on this letter, this
Court determined that Dixon would be unable to complete the record and we ordered her
released from confinement in the Smith County Jail.
The Texas Rules of Appellate Procedure provide that, when the reporter’s record is lost
or destroyed, an appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court
reporter’s notes and records has been lost or destroyed or--if the proceedings were electronically
recorded--a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed
exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by
agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of
the parties or with a copy determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit.
TEX. R. APP. P. 34.6(f). “By written stipulation filed with the trial court clerk, the parties may
agree on the contents of the appellate record.” TEX. R. APP. P. 34.2. “An agreed record will be
presumed to contain all evidence and filings relevant to the appeal.” Id.
Accordingly,
It is ORDERED that the Honorable Christi J. Kennedy 1 shall, in accordance with Texas
Rule of Appellate Procedure 34.6(e)(2), conduct a hearing, on or before November 16, 2022,
and make written findings of fact as to whether a portion of the record has been lost or destroyed.
If the trial court finds the record to be lost or destroyed, the trial court shall determine whether
(1) without Appellant’s fault, a significant portion of the record has been lost or destroyed and, if
so, whether the missing portion of the record is necessary to the appeal’s resolution, (2) the
missing portion of the record can be replaced by stipulation or agreement of the parties, and (3)
Appellant is entitled to a new trial under Rule 34.6(f).
It is FURTHER ORDERED that a supplemental clerk’s record including the trial court’s
written findings, along with any supporting documentation and orders, be certified to this Court
on or before November 21, 2022.
It is FURTHER ORDERED that the court reporter file a reporter’s record of the hearing
on or before November 23, 2022.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
1
The Honorable Christi J. Kennedy is a retired Judge for the 114th District Court in Smith County, Texas,
sitting by assignment.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this 2nd
day of November 2022, A.D.
By: _______________________________
KATRINA MCCLENNY, CLERK | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481223/ | NO. 12-22-00257-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 307TH
IN THE INTEREST OF A.S.M.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ GREGG COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for failure to comply with the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 42.3(c).
Author J. Manning, II, acting pro se, filed a notice of appeal with this Court on
September 16, 2022. That same day, the Clerk of this Court notified Appellant that the notice of
appeal failed to contain the information specifically required by Texas Rules of Appellate
Procedure 9.5 and Section 51.017(a) of the Texas Civil Practice and Remedies Code. 1 See TEX.
R. APP. P. 9.5 (service); see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a) (West Supp.
2019) (notice of appeal must be served on each court reporter responsible for preparing
reporter’s record). The notice warned that, unless Appellant filed a proper notice of appeal on or
before October 17, the appeal would be referred to the Court for dismissal. This deadline passed
and Appellant has not filed a compliant notice of appeal or otherwise responded to this Court’s
notice.
1
Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable
rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by
counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—
Tyler June 21, 2017, no pet.) (mem. op.).
Because Appellant failed, after notice, to comply with Rule 9.5 and Section 51.017(a),
the appeal is dismissed. 2 See TEX. R. APP. P. 42.3(c) (on its own initiative after giving ten days’
notice to all parties, appellate court may dismiss appeal if appeal is subject to dismissal because
appellant failed to comply with a requirement of these rules, a court order, or a notice from the
clerk requiring a response or other action within a specified time).
Opinion delivered October 31, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
2
We also note that the notice of appeal does not show this Court’s jurisdiction, in that there is no final
judgment or appealable order. Nor has Appellant filed the required docketing statement. See TEX. R. APP. P. 32.1.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 31, 2022
NO. 12-22-00257-CV
IN THE INTEREST OF A. S. M., A CHILD
Appeal from the 307th District Court
of Gregg County, Texas (Tr.Ct.No. 2001-1995-DR)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481218/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Dr. Robert L. Hogue, M.D. and * From the 35th District Court
Brownwood Regional Medical Center, of Brown County,
Trial Court No. CV2007303.
Vs. No. 11-21-00124-CV * November 3, 2022
Brandon Steward and Courtney Steward, * Memorandum Opinion by Bailey, C.J.
(Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.)
This court has inspected the record in this cause and concludes that there is
error in one of the orders below. Therefore, in accordance with this court’s
opinion, we affirm the order of the trial court denying Dr. Robert L. Hogue’s motion
to dismiss. We reverse the order of the trial court denying Brownwood Regional
Medical Center’s motion to dismiss. We remand this cause to the trial court for
further proceedings consistent with this opinion. The costs incurred by reason of
this appeal are taxed 50% against Dr. Robert L. Hogue and 50% against Brandon
and Courtney Steward. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481233/ | THE THIRTEENTH COURT OF APPEALS
13-22-00275-CV
SOLAR MOSAIC, LLC AS SUCCESSOR IN INTEREST TO SOLAR MOSAIC, INC.
AND STREAMLINE ENERGY, LLC
v.
ANDREW BROWN
On Appeal from the
County Court at Law No. 4 of Nueces County, Texas
Trial Court Cause No. 2021CCV-61372-4
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal will be taxed against the
party incurring the same.
We further order this decision certified below for observance.
November 3, 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481236/ | NUMBER 13-21-00334-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GREG MILLER, LMFT, CADC II,
ICADC, LMFT-S, Appellant,
v.
EMILY CASTLEMAN, Appellee.
On appeal from the 200th District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides
This is an interlocutory appeal from the trial court’s denial of appellant Greg Miller,
LMFT, CADC II, ICADC, LMFT-S’s, motion to dismiss appellee Emily Castleman’s
healthcare liability claims. By three issues, which we analyze as one, Miller contends that
the trial court abused its discretion by denying his motion to dismiss because Castleman’s
expert report was untimely served. We affirm.
I. BACKGROUND1
In October of 2020, Castleman filed an original petition asserting that Miller’s care
as a licensed marriage and family therapist (LMFT) was deficient, caused her mental
health to deteriorate, and resulted in “extreme mental and physical trauma.”
Miller filed a plea in abatement and answer on January 28, 2021, requesting that
all proceedings be abated for sixty days pursuant to Texas Civil Practice and Remedies
Code § 74.052(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(a) (providing that a
health care liability claimant’s failure to authorize the release of protected health
information “shall abate all further proceedings . . . until 60 days following receipt by the
physician or health care provider of the required authorization”). On July 7, 2021, Miller
filed a motion to dismiss, asserting that Castleman had asserted a health care liability
claim but failed to file an expert report by May 28, 2021, as required under Chapter 74.
See id. § 74.351(b). The parties agree that Castleman did not file a motion to extend the
deadline, nor did she confer with Miller about extending the deadline. However, on July
27, 2021, sixty days after the expert report deadline, Castleman served Miller with an
expert report produced by Shari Julian, Ph.D.
Castleman filed two responses to Miller’s motion to dismiss. In her second
1 This appeal was transferred to this Court from the Third Court of Appeals in Austin by order of
the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority
to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).
Because this is a transfer case, we follow the precedent of the transferor court to the extent it differs from
our own. See TEX. R. APP. P. 41.3. However, the dispositive issue here appears to be a matter of first
impression for both the Third Court of Appeals and this Court. See id.; see also Broadway v. Lean on 8,
Inc., No. 03-21-00663-CV, 2022 WL 3691678, at *4 (Tex. App.—Austin Aug. 26, 2022, no pet. h.) (mem.
op.) (expressing “no opinion” on “whether the emergency orders would permit the retroactive extension of
[a] statute of limitations”).
2
response, filed on August 28, 2021, Castleman requested that the trial court deny Miller’s
motion to dismiss and that it retroactively extend the expert report deadline to ensure her
compliance with the requirements of Chapter 74. 2 She also attached an unsworn
declaration signed by Dr. Julian to her response. In her declaration, Dr. Julian explained
that she first began experiencing flulike symptoms on May 5, 2021, and “by the time that
[she] was diagnosed with C[OVID-]19, in mid[-]May 2021, [Dr. Julian] was very ill, unable
to eat, walk, or be awake[] for 20 to 21 hours per day.” On or about June 1, 2021, Dr.
Julian “was diagnosed with . . . concurrent [s]trep [t]hroat.” Dr. Julian attested that she
was unable to “do any work[] or take care of [her] daily needs” during this time period.
She stated that she was “still not completely well” and had “periods of extreme weakness
and fatigue which [her] physician . . . attributed to C[OVID-]19.”
On September 1, 2021, the trial court heard Miller’s motion to dismiss. Counsel for
Castleman acknowledged that the expert report was served after May 28, 2021, but
detailed his attempts to communicate, stating that when he “reached out” to Dr. Julian by
email on May 15, 2021, Dr. Julian did not respond. Castleman’s counsel explained that
when he was able to reach her, he learned that Dr. Julian “wasn’t able to get the report
done during this May 15th to May 28th time frame” because of her COVID-19 symptoms.
2 In both her first and second responses, Castleman asserted that Miller’s plea in abatement halted
the proceedings and extended the deadline for sixty days. However, there is no indication in the record that
the court granted the plea or abated the proceedings for any reason. In any event, it is well-settled that an
abatement for failure to comply with notice or authorization requirements does not toll the deadline to serve
an expert report in a health care liability claim, and Castleman does not revive this argument on appeal.
See Estate of Regis ex rel. McWashington v. Harris Cnty. Hosp. Dist., 208 S.W.3d 64, 69 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 329–30 (Tex. App.—
San Antonio 2006, pet. denied); see also Reid v. Seton Hosp., No. 03-16-00301-CV, 2016 WL 7046843, at
*2 (Tex. App.—Austin Nov. 30, 2016, no pet.) (mem. op.). Therefore, we will not address this issue further.
See TEX. R. APP. P. 47.1.
3
Counsel argued, “And I think this is the exact kind of circumstance that the Supreme
Court’s emergency order that [sic] allows this [c]ourt to set aside any deadline.”
At the conclusion of the hearing, the trial court stated, “Okay. So due to the COVID
issue, due to the fact that licensed family marriage counselors are not listed under
Chapter 74, and because of the COVID issues raised by plaintiff, the [c]ourt is going to
deny the motion to dismiss.” The following day, the trial court signed a written order
denying Miller’s motion to dismiss. The order did not reference COVID-19, and it did not
explicitly state that the deadline to serve the expert report was extended.
This interlocutory appeal followed. See id. § 51.014(a)(9).
II. STANDARD OF REVIEW & APPLICABLE LAW
Under the Texas Medical Liability Act (TMLA), a claimant in a “health care liability
claim” must serve an expert report on the defendant health care provider within 120 days
of the filing of the defendant’s answer, unless the parties otherwise agree in writing to
extend the deadline. Id. § 74.351(a). If this “statute-of-limitations-type deadline” is not
met, the court, on the motion of the defendant health care provider, must dismiss the
claim with prejudice and award the health care provider reasonable attorney’s fees and
court costs. Ogletree v. Matthews, 262 S.W.3d 316, 319–20 (Tex. 2007); see TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(b).
We review a trial court’s decision to deny a Chapter 74 motion to dismiss for an
abuse of discretion. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); Hayes v.
Carroll, 314 S.W.3d 494, 503 (Tex. App.—Austin 2010, no pet.). “An abuse of discretion
occurs when a trial court acts in an arbitrary or unreasonable manner or without reference
4
to any guiding rules or principles.” Parker v. CSS/Meadow Pines, Inc., 166 S.W.3d 509,
511 (Tex. App.—Texarkana 2005, no pet.); see Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding).
With respect to factual issues, we may not substitute our judgment for that of the
trial court. Walker, 827 S.W.2d at 839. Thus, we defer to the trial court’s factual
determinations if they are supported by the evidence. Adams v. Godhania, 635 S.W.3d
454, 458 (Tex. 2021) (citing Haedge v. Cent. Tex. Cattlemen’s Ass’n, 603 S.W.3d 824,
827 (Tex. 2020)). However, a trial court has no discretion to determine what the law is or
how to apply the law to the facts. Id. “A clear failure by the trial court to analyze or apply
the law correctly will constitute an abuse of discretion.” Hayes, 314 S.W.3d at 503.
III. ANALYSIS
As a preliminary matter, the parties dispute whether the TMLA applies to
Castleman’s claims, as the parties disagree on whether an LMFT is a “health care
provider” under the TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (stating
that a “health care liability claim” must be “a cause of action against a health care provider
or physician”); see also id. § 74.001(a)(12)(A) (defining “health care provider”). For the
purposes of this analysis, we assume without deciding that Chapter 74 applies and that
an expert report was therefore necessary.
Miller does not dispute the sufficiency of Dr. Julian’s expert report; rather, he
argues it did not comply with Chapter 74 because it was untimely filed. Thus, to determine
whether the trial court acted within its discretion in denying Miller’s motion to dismiss, we
need only answer two questions: (1) did the COVID-19 emergency orders imbue a trial
5
court with the discretion to retroactively extend the expert report deadline, and (2) did the
trial court retroactively extend the expert report deadline in this case?
Whether the trial court may permit the plaintiff additional time beyond the 120-day
deadline is a legal question. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011);
see Kim v. Ramos, 632 S.W.3d 258, 265 (Tex. App.—Houston [1st Dist.] no pet.). Thus,
we review this specific issue de novo. See Stockton, 336 S.W.3d at 615; Kim, 632 S.W.3d
at 265. The supreme court is vested with the power to modify or suspend certain
procedures that are affected by disasters. TEX. GOV’T CODE ANN. § 22.035(b). On July 19,
2021, the Texas Supreme Court exercised this power and signed the Fortieth Emergency
Order Regarding the COVID-19 State of Disaster. See Fortieth Emergency Order
Regarding the COVID-19 State of Disaster, 629 S.W.3d 911 (Tex. 2021). This order
permitted all courts in Texas “in any case, civil or criminal, without a participant’s consent”
to “modify or suspend any and all deadlines and procedures, whether prescribed by
statute rule, or order, for a stated period ending no later than October 1, 2021,” “[s]ubject
only to constitutional limitations.” Id. at 912.3
Miller argues that Castleman failed to do several things to warrant an extension or
modification of the expert report deadline prior to the deadline lapsing. According to Miller,
Castleman “could have (1) requested an extension from Miller, (2) requested an extension
from the [c]ourt, (3) sought an order from the [c]ourt on the Plea in Abatement providing
the expert deadline was extended, (4) obtained a partial report from Dr. Julian, or
3 This discretion was not extended to a court when presiding over certain proceedings brought
under the family code that are not applicable here. See Fortieth Emergency Order Regarding the COVID-
19 State of Disaster, 629 S.W.3d 911, 912 (Tex. 2021).
6
(5) retained another expert.” But the emergency order in question does not require
Castleman to take any of these steps before a deadline can be modified. See id.; Kim v.
Ramos, 632 S.W.3d 258, 271 (Tex. App.—Houston [1st Dist.] 2021, no pet.). Our sister
court has held that “we must construe the COVID-19 Emergency Orders according to
their plain terms, and those terms authorize a trial court to modify an expert-report
deadline ‘[s]ubject only to constitutional limitations.’” Ajao v. Hall, No. 14-21-00123-CV,
2022 WL 3037550, at *4 (Tex. App.—Houston [14th Dist.] Aug. 2, 2022, no pet. h.) (citing
Kim, 632 S.W.3d at 271). We agree with this construction.
Miller does not contend that either the state or federal constitution forbade the trial
court from retroactively granting an extension. The emergency order does not specify that
the issue of an extension must be brought before the court or ruled on by the court prior
to a deadline lapsing. See Fortieth Emergency Order Regarding the COVID-19 State of
Disaster, 629 S.W.3d at 912. Additionally, extensions of the expert report deadline have
on occasion been granted by a trial court after the deadline has passed. See Kim, 632
S.W.3d at 262–63; Hanzi v. Bailey, 48 S.W.3d 259, 263–64 (Tex. App.—San Antonio
2001, pet. denied). The supreme court’s emergency orders relating to COVID-19
undoubtedly vest trial courts with “broad discretion” to modify deadlines and procedures.
See Kim, 632 S.W.3d at 270; see also Broadway v. Lean on 8, Inc., No. 03-21-00663-
CV, 2022 WL 3691678, at *4 (Tex. App.—Austin Aug. 26, 2022, no pet.) (mem. op.); CBS
Stations Grp. Of Tex., LLC v. Burns, No. 05-20-00700-CV, 2020 WL 7065827, at *2 (Tex.
App.—Dallas Dec. 3, 2020, no pet.) (mem. op.). In the absence of any constitutional
concern, we conclude that the trial court was authorized to retroactively extend the expert
7
report deadline. See Fortieth Emergency Order Regarding the COVID-19 State of
Disaster, 629 S.W.3d at 912.
Miller argues that, because the trial court did not enter an order explicitly extending
the deadline, the deadline was not actually extended. However, as he acknowledges in
his reply brief, “[i]n the absence of findings of fact or conclusions of law, a trial court’s
judgment will be upheld on any theory supported by the record.” See Rosemond, 331
S.W.3d at 766. A court does not have discretion to deny a motion to dismiss when a timely
expert report has not been served. Ogletree, 262 S.W.3d at 319. But here, the trial court
did deny the motion, and because of this, we must presume that the trial court found the
report served by Castleman on July 27, 2021, was timely. See Rosemond, 331 S.W.3d
at 766.
Assuming the TMLA applies to Castleman’s suit, the only permissible way the trial
court could have found the report to be timely was if it had used its discretion under the
emergency order to enlarge the deadline to serve the report. Cf. Kim, 632 S.W.3d at 262–
63. A court may implicitly extend the expert report deadline when denying a motion to
dismiss. See Moncado v. Trujillo, 267 S.W.3d 420, 423 (Tex. App.—Corpus Christi–
Edinburg 2008, no pet.). Here, the trial judge stated at the hearing that, “due,” in part, “to
the COVID issue,” she was denying the motion to dismiss. Because an implicit order
extending the deadline pursuant to the COVID-19 emergency order is supported by the
record, we conclude the trial court enlarged the expert report deadline by sixty days when
it denied the motion to dismiss, making the expert report served on Miller timely. See id.;
Rosemond, 331 S.W.3d at 766. Thus, the trial court did not abuse its discretion by denying
8
Miller’s motion to dismiss. See Daybreak Cmty. Servs., Inc. v. Cartrite, 320 S.W.3d 865,
873 (Tex. App.—Amarillo 2010, no pet.).
We overrule this issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
3rd day of November, 2022.
9 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481217/ | Opinion filed November 3, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00124-CV
__________
DR. ROBERT L. HOGUE, M.D. AND BROWNWOOD
REGIONAL MEDICAL CENTER, Appellants
V.
BRANDON STEWARD AND COURTNEY STEWARD, Appellees
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV2007303
MEMORANDUM OPINION
This is an interlocutory appeal from the denial of two motions to dismiss filed
by Dr. Robert L. Hogue and Brownwood Regional Medical Center (BRMC).
Dr. Hogue alleged in his motion to dismiss that Appellees did not timely serve him
with an expert report as required by Section 74.351. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351 (West 2017). BRMC alleged in its motion to dismiss that
Appellees did not serve BRMC with a sufficient expert report. See id. We affirm in
part, reverse in part, and remand this cause for further proceedings.
Background Facts
On July 20, 2018, Appellee Brandon Steward (Steward) presented at BRMC
for a scheduled tonsillectomy to be performed by Dr. Hogue. Appellees allege that
prior to surgery, Steward noticed that “Dr. Hogue had a black eye, busted hands, and
appeared shaky.” Appellees further allege that Dr. Hogue told Steward that he had
been in a car accident “a few days prior” but was still able to perform his surgery.
Ultimately, Dr. Hogue performed the tonsillectomy and sent Steward home.
Following his initial surgery, Steward returned to BRMC multiple times after
experiencing various complications.1 On August 3, 2018, EMS transported Steward
to BRMC where Dr. Hogue again attempted to operate on Steward in order to
alleviate the complications Steward was experiencing. Over the next two days,
Dr. Hogue performed two additional surgeries on Steward to alleviate the ongoing
complications. After the third surgery, Dr. Hogue decided to transfer Steward to a
larger hospital for a higher level of care.
Steward filed his original petition on July 14, 2020. 2 He alleged that after the
initial tonsillectomy, and his three subsequent surgeries, he has experienced many
different complications. Steward alleged theories of medical malpractice and gross
negligence against Dr. Hogue and BRMC.
Dr. Hogue filed his original answer to Steward’s petition on August 28, 2020.
Thus, Steward had 120 days from August 28, 2020, to serve Dr. Hogue with his
expert report. See id. § 74.351(a). On December 29, 2020, after Appellees’ 120-
day deadline to serve their expert report had expired on the previous day, Dr. Hogue
1
Steward’s complications included difficulty breathing, excessive bleeding, and blood loss.
2
Courtney Steward was added as a plaintiff in Appellees’ second amended petition.
2
filed his motion to dismiss. In his motion to dismiss, Dr. Hogue asserted that he did
not receive Appellees’ expert report within the statutory deadline. Appellees
responded to Dr. Hogue’s motion to dismiss by asserting that they did timely serve
their expert report or, in the alternative, that the COVID-19 pandemic prevented
them from timely serving their expert report.
On January 15, 2021, BRMC filed its motion to dismiss. In its motion to
dismiss, BRMC asserted that Appellees’ expert report did not constitute a good faith
effort to comply with the statutory requirements. The trial court denied both Dr.
Hogue’s and BRMC’s motions to dismiss.
Analysis
Dr. Hogue’s Appeal - Timeliness of Appellees’ Expert Report
In his sole issue on appeal, Dr. Hogue contends that the trial court erred in
denying his motion to dismiss because the record reflects that he was not timely
served with Appellees’ expert report. As set out below, we conclude that Appellees
did not timely serve Dr. Hogue with their expert report. However, because the trial
court had discretion to grant Appellees’ request for an extension under an emergency
order issued by the Texas Supreme Court, the trial court did not abuse its discretion
when it implicitly did so.
We review the denial of a motion to dismiss a health care liability claim for
abuse of discretion. Ajao v. Hall, No. 14-21-00123-CV, 2022 WL 3037550, at *3
(Tex. App.—Houston [14th Dist.] Aug. 2, 2022, no pet.) (citing Jelinek v. Casas,
328 S.W.3d 526, 539 (Tex. 2010)). The court abuses its discretion if it acts
arbitrarily or unreasonably, without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). As
we noted in Kendrick v. Garcia:
When reviewing matters committed to a trial court’s discretion,
an appellate court may not substitute its own judgment for the trial
3
court’s judgment. Nor may a reviewing court set aside the trial court’s
determination unless it is clear from the record that the trial court could
only reach one decision. On the other hand, our review of a trial court’s
determination of the legal principles controlling its ruling is much less
deferential. A trial court has no “discretion” in determining what the
law is or applying the law to the facts. Thus, a clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of
discretion.
Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex. App.—Eastland 2005, pet. denied)
(internal citations omitted) (citing Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992)).
We note at the outset that we do not have any findings by the trial court
regarding whether it determined that Appellees timely served their export report on
Dr. Hogue. The trial court conducted a hearing on Dr. Hogue’s motion to dismiss,
but it did not receive any sworn testimony at the hearing. The hearing concluded
with the trial court taking the motions to dismiss under advisement. The order
denying Dr. Hogue’s motion to dismiss does not state the basis for the trial court’s
ruling. In the absence of findings of fact or conclusions of law, a trial court’s
decision on a motion to dismiss a health care liability claim will be upheld on any
theory supported by the record, and any necessary findings of fact will be implied.
Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (citing Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Davis v. Huey, 571 S.W.2d
859, 862 (Tex. 1978)).
The Texas Medical Liability Act (the TMLA) requires health care liability
claimants to serve an expert report upon each defendant within 120 days after the
defendant files an answer. CIV. PRAC. & REM. § 74.351(a). “The issue of timeliness
is a threshold issue in the expert report framework[.]” Rosemond, 331 S.W.3d at
767. We held in Kendrick that “serve” as used in Section 74.351(a) is synonymous
with service under Rule 21a of the Texas Rules of Civil Procedure. 171 S.W.3d at
4
703. Rule 21a provides that service may be accomplished in the following ways:
(1) through an electronic filing manager if the opposing party’s attorney’s e-mail is
on file with the electronic filing manager; (2) in person; (3) by mail; (4) by
commercial delivery service; (5) by fax; (6) by e-mail; or (7) by any other means
that the court may direct. TEX. R. CIV. P. 21a(a).
In response to Dr. Hogue’s assertion that he was not timely served with
Appellees’ expert report, Appellees contend that they provided prima facie evidence
of service, thus creating a rebuttable presumption of timely service. If there is a
question about whether proper service occurred, “[a] certificate by a party or attorney
of record, or the return of the officer, or the affidavit of any other person showing
service of a notice shall be prima facie evidence of the fact of service.” TEX. R.
CIV. P. 21a(e); see also Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005).
Such prima facie evidence establishes a presumption of service. Mathis, 166 S.W.3d
at 746; see also In re E.A., 287 S.W.3d 1, 5 (Tex. 2009). “The presumption of service
under Rule 21a ‘is not “evidence” and it vanishes when opposing evidence is
introduced that [a document] was not received.’” In re E.A., 287 S.W.3d at 5
(quoting Cliff v. Huggins, 724 S.W.2d 788, 780 (Tex. 1987)).
Appellees’ evidence of service consists of the certificate of service in
Appellees’ second amended original petition, an affidavit from Anabel Govea
(Appellees’ counsel’s paralegal), an affidavit from Mario A. Rodriguez (Appellees’
counsel), and an “eFiling” printout for Appellees’ Second Amended Petition. We
first note that the eFiling printout only indicates that Appellees’ second amended
petition, along with Appellees’ expert report and the curriculum vitae of their expert,
were filed on December 16, 2020. It does not contain any information that the
documents were served on Dr. Hogue’s counsel in the form of a “notification of
service.” As we held in Kendrick, filing an expert report with the trial court clerk
does not constitute service of the report as required by Section 74.351(a). 171
5
S.W.3d at 700–04; see Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 455–56 (Tex.
App.—Austin 2006, no pet.).
The certificate of service in Appellees’ second amended petition states as
follows:
I hereby certify that on the 16th day of December, 2020, a true and
correct copy of this document has been served via facsimile
transmission, electronic mail and/or U S. mail service, in accordance
with Tex. R. Civ. P. 21 and 21a, upon the following counsel of record:
. . . [signed by Appellees’ counsel].
However, the Govea affidavit states:
On December 16, 2020, I filed the Expert Report and CV that are
in question in the cause, with the District Court of Brown County.
At that time[,] I requested, as is customary, that the Brown [sic]
District Clerk issue service upon all parties of record. As I was home
under quarantine, I failed to send the reports under separate cover to
counsel for Defendant Hogue, as I had already requested such of the
District clerk.
The Rodriguez affidavit states that:
Mrs. Govea, while under quarantine, attempted to manage her
filings from her residence. Although she was able to timely file the
necessary records with the District Court and timely submitted the
documents for electronic filing to each party with the District Clerk, she
did not send under separate cover the report to counsel for Defendant
Hogue.
....
On December 16, 2020, as evidence that Mrs. Govea had in fact
timely filed the required report and CV, I was served with an electronic
filing from the Brown County District Clerk Electronic filing system
which included a link to the “filed stamped” copies of the Expert Report
and CV which is currently under scrutiny.
Appellees contend that these affidavits provide prima facie evidence that they
completed service of Dr. Baker’s expert report on Dr. Hogue. We disagree.
6
We first note that the affidavits contradict the methods of service indicated in
the certificate of service of Appellees’ second amended petition because the
affidavits do not establish that Appellees served the expert report and curriculum
vitae attached to the petition by facsimile transmission, electronic mail, or U.S. mail
service. Second, the affidavits reference a manner of service that is not recognized
by Rule 21a—requesting the trial court clerk to issue service on the other parties.
See Kendrick, 171 S.W.3d at 704 (only methods of service authorized under
Rule 21a will suffice for purposes of service under Section 74.351(a)). Third, the
affidavits establish that Appellees did not send the expert report “under separate
cover” to Dr. Hogue. Thus, both of Appellees’ affidavits are insufficient to create a
presumption of service because they only establish that the expert report was filed
with the Brown County District Clerk and not actually served on Dr. Hogue.
Therefore, we conclude that Appellees have not established that the expert report
and curriculum vitae were timely served on Dr. Hogue.
Alternatively, Appellees assert that we should affirm the trial court’s denial
of Dr. Hogue’s motion to dismiss because the trial court implicitly extended the
deadline to serve the expert report and curriculum vitae under the authority of the
Texas Supreme Court’s Twenty-Ninth Emergency Order Regarding the COVID-19
State of Disaster. In relevant portion, the Twenty-Ninth Emergency Order provided
as follows:
Subject only to constitutional limitations, all courts in Texas may in any
case, civil or criminal—and must to avoid risk to court staff, parties,
attorneys, jurors, and the public—without a participant’s consent . . .
modify or suspend any and all deadlines and procedures, whether
prescribed by statute, rule, or order, for a stated period ending no later
than February 1, 2021.
Twenty-Ninth Emergency Order Regarding COVID-19 State of Disaster, 629
S.W.3d 863 (Tex. 2020).
7
In general, emergency orders from the Texas Supreme Court are not self-
executing. Carrigan v. Edwards, No. 13-20-00093 CV, 2020 WL 6504418, at *2
(Tex. App.—Corpus Christi–Edinburg Nov. 5, 2020, pet. denied) (mem. op.). We
are to interpret emergency orders according to the plain meaning of the terms the
order uses. Kim v. Ramos, 632 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.]
2021, no pet.) (interpreting the Texas Supreme Court’s Twenty-Ninth Emergency
Order). A claimant seeking relief under an emergency order must allege facts that
support that the delay in meeting a deadline was due to the COVID-19 crisis. See
Ruff v. Wick Phillips Gould & Martin, LLP, No. 11-21-00130-CV, 2021 WL
3087505, at *2 (Tex. App.—Eastland July 22, 2021, no pet.) (mem. op.) (declining
to extend an appellate deadline because the appellant “failed to allege any facts in
her motion to support that the reason for her delay in filing the notice of appeal was
due to the COVID-19 crisis”). “[T]he fact of the pandemic, standing alone, is not a
reasonable explanation for a missed appellate deadline.” Jones v. White, No. 02-20-
00198-CV, 2020 WL 5666564, at *1 (Tex. App.—Fort Worth Sept. 24, 2020, no
pet.) (mem. op.).
We note that the trial court did not explicitly grant an extension under the
Twenty-Ninth Emergency Order. However, the trial court’s order is to be upheld on
any theory “supported by the record.” Rosemond, 331 S.W.3d at 767 (quoting Davis,
571 S.W.2d at 862). Dr. Hogue contends that Appellees cannot rely on the Twenty-
Ninth Emergency Order because they did not file a motion seeking an extension
under it. We disagree.
Appellees addressed the terms of the Twenty-Ninth Emergency Order in their
first supplement to their response to Dr. Hogue’s motion to dismiss. In their prayer,
Appellees requested an extension of the expert report deadline under the Twenty-
Ninth Emergency Order. Generally, “courts should acknowledge the substance of
the relief sought despite the formal styling of the pleading.” In re J.Z.P, 484 S.W.3d
8
924, 925 (Tex. 2016) (quoting Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d
664, 666 (Tex. 2011) (per curiam)); see also Jurgens v. Martin, 631 S.W.3d 385,
400 (Tex. App.—Eastland 2021, no pet.) (noting that courts look at the substance of
pleas for relief rather than the title of the document). Additionally, counsel for
Appellees orally requested an extension under the Twenty-Ninth Emergency Order
at the hearing on the motion to dismiss.
In terms of substance, Appellees’ response quotes from a portion of the
Twenty-Ninth Emergency Order, and they attached a copy of the order as an exhibit.
Additionally, in relevant portion, Appellees’ response stated as follows:
7. In light of the Supreme Court Order, this Honorable Court should be
made aware that when Plaintiffs filed their Expert Report and CV on
December 16, 2020, the McAllen office of the Rodriguez Law Firm.
P.C. was temporarily shut down due to a Covid Outbreak. The
litigation paralegal assigned to this file, Mrs. Anabel Govea was under
quarantine at her residence due to a Covid outbreak in her home. Mrs.
Govea’s daughter and husband had each tested positive with the Covid-
19 virus.
8. Mrs. Govea, while under quarantine, attempted to manage her filings
from her residence. Although she was able to timely file the necessary
records with the District Court and timely submitted the documents for
electronic filing to each party with the District Clerk, she failed to send
under separate cover the report to counsel for Defendant Hogue. . . .
9. Additionally, the undersigned counsel was also under home
quarantine due to his contact with his legal assistant. Counsel, while
under quarantine at home, attempted to properly maintain his active
trial docket and supervise his McAllen office as well as his San Antonio
office. . . .
....
Plaintiffs ask that the Court, (1) under its authority under the 29th
Order of the Texas Supreme Court, (2) the effect of Covid-19 on the
Rodriguez Law Firm, and (3) the actual timely filing of the expert report
DENY Defendant’s Motion to Dismiss and grant Plaintiffs all relief set
9
out above in the foregoing paragraphs and all other relief to which
Plaintiffs are justly entitled.
Also attached to Appellees’ response to Dr. Hogue’s motion were the Govea and
Rodriguez affidavits supporting the matters set out in the response with respect to
the effect of the Covid-19 crisis on serving Dr. Hogue.
Through their response and two affidavits, Appellees established that the
reason they missed the 120-day deadline to serve their expert report was due to
counsel, and counsel’s paralegal, working from home due to possible exposure to
the COVID-19 virus. Appellees’ counsel’s oral request for an extension under the
Twenty-Ninth Emergency Order repeated these matters. Accordingly, Appellees
sufficiently requested an extension under the Twenty-Ninth Emergency Order. See
Ruff, 2021 WL 3087505, at *2.
Dr. Hogue additionally asserts that the trial court erred if it granted Appellees
an extension under the Twenty-Ninth Emergency Order. To the extent that the trial
court denied the motion to dismiss based upon an extension under the Twenty-Ninth
Emergency Order, we review the decision for an abuse of discretion. See Ajao, 2022
WL 3037550 at *3. Dr. Hogue contends that Appellees should not be able to rely
on any emergency authority because Dr. Baker’s report was dated September 2020,
and Appellees waited until December 30, 2020, to initially serve the report. We do
not find this argument persuasive. As stated previously, if Appellees showed that
they had a COVID-19 related reason for missing the 120-day deadline of December
28th, then it was within the trial court’s discretion to grant an extension. See Ruff,
2021 WL 3087505, at *2. Because Appellees alleged a COVID-19 related reason
for missing their deadline, we conclude that the trial court was within its discretion
10
to extend Appellees’ expert report deadline and deny Dr. Hogue’s motion. We
overrule Dr. Hogue’s sole issue on appeal. 3
BRMC’s Appeal - Sufficiency of Appellees’ Expert Report
In four issues, BRMC challenges the trial court’s denial of its motion to
dismiss. We will address BRMC’s first three issues together as each of them
challenge the sufficiency of Dr. Baker’s expert report. Specifically, BRMC contends
that Dr. Baker’s report does not set forth the proper standard of care attributable to
BRMC, fails to establish how BRMC breached any standard of care, and fails to
state how any purported BRMC breach caused Appellees’ injuries.
We review a trial court’s decision to deny a motion to dismiss based on the
sufficiency of an expert report for an abuse of discretion. Abshire v. Christus Health
Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). In analyzing a report under
this standard, we consider only the information contained within the four corners of
the report. Id. We defer to the trial court’s factual determinations if supported by
the evidence but review its legal determinations de novo. Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam).
The purpose of the expert report requirement is “to weed out frivolous
malpractice claims in the early stages of litigation, not to dispose of potentially
meritorious claims.” Abshire, 563 S.W.3d at 223. An expert report must provide a
fair summary of the expert’s opinions regarding the applicable standard of care, the
manner in which the care rendered failed to meet that standard, and the causal
relationship between the failure to meet the standard of care and the injury suffered.
CIV. PRAC. & REM. § 74.351(r)(6); Abshire, 563 S.W.3d at 223; Am. Transactional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (citing former
version of TMLA). However, the expert report must still set out what care was
3
Dr. Hogue does not challenge the sufficiency of Dr. Baker’s report as it pertains to him.
11
expected but not given. Abshire, 563 S.W.3d at 226 (citing Palacios, 46 S.W.3d at
880). Sections 74.351(l) and 74.351(r)(6) require that the expert report explain how
and why the alleged negligence caused the injury in question. Id. at 224 (citing
Jelinek, 328 S.W.3d at 536). The expert must explain the basis of his statements and
link his conclusions to specific facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
52 (Tex. 2002) (per curiam) (citing former version of TMLA); see also Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017)
(“[W]ithout factual explanations, the reports are nothing more than the ipse dixit of
the experts, which . . . are clearly insufficient.”). The expert report must set forth
specific information about what the defendant should have done differently, and it
must explain factually how proximate cause is going to be proven. Abshire, 563
S.W.3d at 226.
A trial court may grant a motion to dismiss regarding the adequacy of an
expert report under the TMLA only if it appears that the expert report is not an
objective good faith effort to comply with the statutory requirements. CIV. PRAC. &
REM. § 74.351(l). An expert report demonstrates a “good faith effort” when it
(1) informs the defendant of the specific conduct the plaintiff has called into question
and (2) provides a basis for the trial court to conclude that the claims have merit.
Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). “A report that merely states
the expert’s conclusions about the standard of care, breach, and causation” is
insufficient. Palacios, 46 S.W.3d at 879; accord Abshire, 563 S.W.3d at 223. An
expert’s mere conclusion that the standard of care was not met does not constitute a
good faith effort to comply with the statutory requirements. Palacios, 46 S.W.3d at
880.
12
Standard of Care
Dr. Baker’s reports consist of his initial report and two supplemental reports
that were filed after BRMC filed its motion to dismiss. Dr. Baker’s initial report is
primarily directed at the conduct of Dr. Hogue.
In regard to BRMC’s standard of care, Dr. Baker stated in his initial report
that “[BRMC] and [Dr. Hogue] acting directly and by and through their agents,
employees and/or servants . . . who were responsible for [Steward’s] treatment and
care at Brownwood Regional Medical Center violated the accepted and applicable
standards of care.” Dr. Baker followed this statement with six items that primarily
detailed alleged deficiencies with Dr. Hogue’s treatment. A hospital is generally not
vicariously liable for the acts or omissions of a doctor on the hospital’s medical staff.
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.
2009). Dr. Baker’s initial report does not contain any statements that identify any
nurse, administrator, or other employee of BRMC that allegedly did anything wrong.
Generally, “[t]he standard of care for a hospital is what an ordinarily prudent
hospital would do under the same or similar circumstances.” Palacios, 46 S.W.3d
at 880 (citing Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 366 (Tex.
1987)). It is important that an expert report state what the applicable standard of
care is because a breach cannot be determined without it. See id. A fair summary
of what the applicable standard of care is does not require directly quoting the
standard quoted above. Id. However, it does require stating what care was expected,
but not received. Abshire, 563 S.W.3d at 226.
Here, the standard of care stated in Dr. Baker’s initial report is not a fair
summary of the standard of care with respect to BRMC. Appellees assert on appeal
that BRMC was negligent in “failing to maintain policies and procedures for
evaluating a physician’s mental and physical state.” However, Dr. Baker’s initial
report does not set out the applicable standard of care for BRMC to evaluate the
13
well-being of doctors prior to surgery. As previously noted, Dr. Baker’s initial
expert report is directed at the conduct of Dr. Hogue. Therefore, Dr. Baker’s initial
report does not provide a fair summary of the standard of care to applicable BRMC.
See Palacios, 46 S.W.3d at 880 (noting that a fair summary requires that an expert
report describe the conduct it is calling into question).
Schwartz v. Fipps informs our analysis of the sufficiency of the standard of
care listed in Dr. Baker’s initial report. In Schwartz, the expert report stated the
following regarding the applicable standard of care for a gastric bypass surgery:
“[Dr. Schwartz] failed to observe the standard of care expected of a surgeon in Texas
. . . .” Schwartz v. Fipps, 553 S.W.3d 549, 556 (Tex. App.—San Antonio 2018, no
pet.). The San Antonio Court of Appeals determined that the expert report failed to
state the applicable standard of care. Id. Dr. Baker’s initial report is fundamentally
the same as the one found in Schwartz with respect to BRMC. Like in Schwartz,
Dr. Baker’s initial report fails to elaborate on what the acceptable standards of care
are that he alleges BRMC violated.
Even if we consider Dr. Baker’s first and second supplemental reports
alongside his initial report, they still fail to cross the threshold of a good faith attempt
at an expert report with respect to the applicable standard of care. Unlike the initial
expert report, the supplemental reports contain a separate section addressing the
applicable standard of care for BRMC. In the two supplemental reports, Dr. Baker
prefaces BRMC’s standard of care as “what a reasonable healthcare provider would
have done under the same and/or similar circumstances.” Dr. Baker further states
that the standard of care required BRMC to:
1. Credential and verify on a regular scheduled basis Dr. Robert L.
Hogue, M.D.’s surgical knowledge, education, training and
experience to perform tonsillectomies on adult 30 year old
patients such as Brandon Steward.
14
2. Verify Dr. Robert L. Hogue’s training, knowledge, education
and experience was current and up to date in evaluating and
handling postoperative complications such as experienced by
Brandon Steward.
Thus, Dr. Baker did not address the standard of care for assessing a physician’s
fitness to perform surgery as a result of a physical injury. Instead, Dr. Baker asserted
a negligent credentialing claim against BRMC.
Generally, “a negligent credentialing claim involves a specialized standard of
care” and “the health care industry has developed various guidelines to govern a
hospital’s credentialing process.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458,
463 (Tex. 2008) (quoting Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex.
2004)). A plaintiff making a negligent credentialing claim against a hospital must
show how the hospital failed to meet the specialized standard of care and how this
failure proximately caused his or her injury. See id. “[I]n most negligent
credentialing cases, the plaintiff calls into question the medical malpractice history
of a doctor and alleges that the health care facility was thereby negligent in allowing
such a doctor to practice medicine in their facility.” Soliz v. McAllen Hosps., L.P.,
No. 13-18-00638-CV, 2020 WL 1060572, at *5 (Tex. App.—Corpus Christi–
Edinburg Mar. 5, 2020, pet. denied) (citing Moreno v. Quintana, 324 S.W.3d 124,
134 (Tex. App.—El Paso 2010, pet. denied); Rose v. Garland Cmty. Hosp., 168
S.W.3d 352, 356 (Tex. App.—Dallas 2009, no pet.)). Additionally, a plaintiff
making a negligent credentialing claim must prove that the hospital acted with actual
malice. Moreno, 324 S.W.3d at 133–35.
Here, Dr. Baker’s reports contain no discussion of the medical malpractice
history or qualifications of Dr. Hogue. See Soliz, 2020 WL 1060572, at *5.
Dr. Baker’s reports also contain no reference to any guidelines that BRMC failed to
follow before allowing Dr. Hogue to perform Steward’s tonsillectomy. See McAllen
Med. Ctr., Inc., 275 S.W.3d. at 463. Additionally, Dr. Baker’s reports fail to address
15
what guidelines that BRMC did not follow in credentialing Dr. Hogue to perform
the follow-up surgeries on Steward. See id. Therefore, we conclude that Dr. Baker’s
report failed to sufficiently describe BRMC’s standard of care regarding negligent
credentialing.
Appellees contend that Dr. Baker’s reports provided the correct standard of
care because their claim against BRMC is not for negligent credentialing but for its
lack of policies governing its medical staff. However, Dr. Baker’s reports do not
state that BRMC’s standard of care required it to maintain policy/procedures
governing medical staff. Dr. Baker’s reports do not call into question any conduct
of BRMC related to its policies. Thus, Dr. Baker failed to describe how BRMC
should have acted differently. See Abshire, 563 S.W.3d at 226.
Breach of Standard of Care
Even if Dr. Baker sufficiently described BRMC’s standard of care, other
aspects of his initial report fail to meet the good faith requirement. Dr. Baker’s initial
report fails to provide a fair summary of BRMC’s purported breach of a standard of
care. Appellees contend that Dr. Baker’s initial report detailed how BRMC breached
its duty to Steward in the following respects:
1. Failing to assess Dr. Hogue’s fitness to perform surgery given that he had
been in an “apparently serious automobile accident.”
2. Failing to reassess Dr. Hogue’s fitness to perform additional surgeries on
Steward.
3. Failing to require further evaluation by a surgical specialist in light of
Steward’s “worsening condition.”
As we previously noted, a hospital is generally not vicariously liable for the acts or
omissions of a doctor on the hospital’s medical staff. Hawley, 284 S.W.3d at 862.
By statute, medical care is only to be performed by a person that is licensed to
practice medicine. See Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (citing
16
CIV. PRAC. & REM. § 74.001(a)(19); TEX. OCC. CODE ANN. § 151.002(a)(13) (West
2022)).
The first portion of Dr. Baker’s initial report, which Appellees suggest shows
that BRMC breached its standard of care, is located in the factual background of the
report. At this point in the report, Dr. Baker had not yet described what BRMC’s
standard of care is, nor had he detailed any purported breach by BRMC.
Additionally, nowhere in Dr. Baker’s initial report does he allege that BRMC
breached its standard of care by allowing Dr. Hogue, in spite of his alleged injuries,
to operate on Steward on the day of the initial tonsillectomy.
The second and third portions of Dr. Baker’s initial report, which, Appellees
allege, show that BRMC breached its standard of care, both implicate the practice of
medicine. See Doctors Hosp. at Renaissance, Ltd v. Andrade, 493 S.W.3d 545, 548
(Tex. 2016) (noting that only a person that is licensed to practice medicine can
provide medical care). The second alleged breach asserts that BRMC breached its
standard of care by failing to “emergently evaluate the differential diagnosis” of
Steward. This assertion falls squarely into the practice of medicine. See OCC.
§ 151.002(a)(13); see also Doctors Hosp. at Renaissance, 493 S.W.3d at 548 (noting
that only those licensed to practice medicine in the State of Texas may make a
diagnosis). Dr. Baker’s theory of how BRMC breached its standard of care would
have required BRMC to make a medical diagnosis—which it is expressly forbidden
from doing. See Doctors Hosp. at Renaissance, 493 S.W.3d at 548. The third
alleged breach asserts that BRMC breached the standard of care by not evaluating
the efficacy of Dr. Hogue’s repeated surgeries on Steward and not diagnosing the
potential for further harm from those repeated surgeries. Again, in order to comply
with the purported standard of care, BRMC would be required to make both
diagnosis and treatment decisions. Thus, standing alone, Dr. Baker’s first report was
not a good-faith effort to describe BRMC’s breach.
17
Dr. Baker’s first and second supplemental reports also fail to describe how
BRMC breached its purported standard of care. In his supplemental reports,
Dr. Baker states that BRMC breached its standard of care in the following ways:
1. Failure to credential and verify Dr. Robert L. Hogue, M.D.’s surgical
knowledge, education, training and experience to perform
tonsillectomies on adult 30 year old patients such as Brandon
Steward.
2. Failure to ensure that the Credentials Committee and Surgical
Department Chairman verified Dr. Robert L. Hogue’s training,
knowledge, education and experience in evaluating and handling
postoperative complications such as experienced by Brandon
Steward.
Here, Dr. Baker’s report fails to either allege or show how BRMC acted with malice.
In Dr. Baker’s alleged breaches by BRMC of the applicable standard of care, he fails
to identify in what way(s) Dr. Hogue was unqualified to perform the tonsillectomy
on Steward. Such deficiency would make it impossible to objectively determine
whether BRMC’s act of allowing Dr. Hogue to operate presented an extreme risk to
Steward. Additionally, this deficiency makes it impossible to determine whether
BRMC knew of, and ignored, any potential issues with Dr. Hogue’s credentials.
Thus, Dr. Baker’s report fails to provide a good faith summary of how BRMC was
negligent in credentialing Dr. Hogue.
Causation
In assessing the sufficiency of the causation element of an expert report, we
must consider whether the expert provided a causal link between the alleged
negligent act and the plaintiff’s injury. See Mendez-Martinez v. Carmona, 510
S.W.3d 600, 607 (Tex. App.—El Paso 2016, no pet.) (citing Clapp v. Perez, 394
S.W.3d 254, 258 (Tex. App.—El Paso 2012, no pet.)). We do not address in detail
the matter of causation other than to note that the absence of the standard of care and
the breach of the standard of care with respect to BRMC from Dr. Baker’s reports
18
renders his references to causation with respect to BRMC inadequate. See CIV.
PRAC. & REM. § 74.351(r)(6) (the expert report must address the “causal
relationship” between the failure of the health care provider to meet the applicable
standard of care as described in the report and the claimed injuries). We sustain
BRMC’s first three issues.
No report at all?
In BRMC’s fourth issue, it contends that the trial court erred in denying its
motion to dismiss with prejudice because Dr. Baker’s initial report, and his two
supplemental reports, were so deficient as to constitute no report at all. BRMC relies
on Lewis v. Funderburk in support of this proposition. 253 S.W.3d 204, 207–08
(Tex. 2008). Essentially, BRMC seeks for us to disregard Section 74.351(c) of the
Texas Civil Practices and Remedies Code and dismiss the Stewards’ case with
prejudice. We decline to do so.
Section 74.351(c) provides:
If an expert report has not been served within the period specified
by Subsection (a) because elements of the report are found deficient,
the court may grant one 30-day extension to the claimant in order to
cure the deficiency. If the claimant does not receive notice of the
court’s ruling granting the extension until after the applicable deadline
has passed, then the 30-day extension shall run from the date the
plaintiff first received the notice.
CIV. PRAC. & REM. § 74.351(c). As discussed above, even considering the initial
report together with the supplemental reports, Dr. Baker’s expert report is deficient.
Thus, the trial court abused its discretion by denying BRMC’s motion to dismiss.
However, we find it important to note that this is the first time that Dr. Baker’s report
has been found deficient in this cause. The TMLA allows a trial court to grant
one thirty-day extension to cure a deficiency in an expert report. Id. A trial court
must grant an extension if the report’s deficiencies are curable. Zamarripa, 526
S.W.3d at 461; Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). While
19
Dr. Baker’s reports are deficient with respect to BRMC, we cannot conclude that it
would be impossible to do so. Therefore, the trial court must have an opportunity to
consider an extension under the TMLA. See Zamarripa, 526 S.W.3d at 461. We
overrule BRMC’s fourth issue.
This Court’s Ruling
We affirm the trial court’s order denying Dr. Hogue’s motion to dismiss. We
reverse the trial court’s order denying BRMC’s motion to dismiss. We remand this
cause to the trial court for further proceedings consistent with this opinion.
JOHN M. BAILEY
CHIEF JUSTICE
November 3, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
20 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481238/ | NUMBER 13-21-00070-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DINA CAVAZOS Appellant,
v.
STRYKER SALES CORPORATION, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Opinion by Justice Tijerina
By one issue, appellant Dina Cavazos challenges the trial court’s summary
judgment in favor of appellee Stryker Sales Corporation. We reverse and remand.
I. PERTINENT FACTS
According to Cavazos’s original petition, on August 26, 2012, a Stryker employee
injured Cavazos by “forcefully kicking [her] in the back of her knee.” Cavazos sued Stryker
and Cody Sample, the employee.1
On September 8, 2020, Stryker moved for summary judgment on the basis that
the statute of limitations barred Cavazos’s lawsuit. Stryker acknowledged that Cavazos
filed her suit against it within the limitations period.2 However, Stryker claimed that it was
nonetheless entitled to a limitations defense because Sample, although not a party, could
have invoked that defense if properly served in 2020. Specifically, Stryker stated,
“Because Mr. Sample was not served prior to the expiration of the statute of limitations,
[Cavazos’s] derivative claims against Stryker are also barred by the statute of limitations.
Stryker is therefore entitled to summary judgment.”
Cavazos responded Stryker did not claim: that “Sample is a necessary party to the
suit”; that her suit against Stryker is barred by limitations; or that Stryker was untimely
served. Cavazos pointed out that “Stryker cite[d] no authority that would serve to limit the
timely prosecution of this suit against Stryker based on the absence of service on a third
party.” Cavazos argued the following:
Taking Stryker’s argument to its logical end, an injured victim could sue the
employer of a negligent tortfeasor the day after the incident, diligently
prosecute the claims against the employer defendant for two years, and
then be subject to a limitations argument based upon the plaintiff’s decision
not to join an unnecessary party. Alternatively, Stryker’s argument would
require that an individual employee must always be sued in addition to an
employer who is already fully liable vicariously for the negligence of its
1 Although in her original petition filed on February 24, 2014, Cavazos named Sample as a
defendant, she did not serve him with citation, and he was dismissed from this lawsuit prior to the running
of the statute of limitations. Stryker in its motion for summary judgment acknowledges that Sample has not
been served in this lawsuit, and it does not dispute that Cavazos filed suit within the limitations period.
2This Court previously concluded that Stryker waived its limitations defense because the defense
was neither pleaded in its live answer nor tried by consent. See Cavazos v. Stryker Sales Corp., No. 13-
17-00247-CV, 2018 WL 4215620, at *9–10 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2018, pet.
denied) (mem. op.) (reversing summary judgment granted in favor of Stryker). On remand, the trial court
allowed Stryker to file an amended answer pleading the limitations defense.
2
employees.
The trial court held a hearing on Stryker’s motion for summary judgment on
January 14, 2021, and on February 3, 2021, it signed a final take-nothing summary
judgment in favor of Stryker. This appeal ensued.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the trial court’s granting of a traditional motion for summary judgment
de novo. Franks v. Roades, 310 S.W.3d 615, 620 (Tex. App.—Corpus Christi–Edinburg
2010, no pet.) (first citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003); and then citing Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—
Corpus Christi–Edinburg 2003, no pet.)). “We must determine whether the movant met
its burden to establish that no genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law.” Id.; see TEX. R. CIV. P. 166a(c). A defendant
seeking a traditional summary judgment must either disprove at least one element of each
of the plaintiff’s causes of action or plead and conclusively establish each essential
element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)
(per curiam); Sanchez v. Matagorda County, 124 S.W.3d 350, 352 (Tex. App.—Corpus
Christi–Edinburg 2003, no pet.). A matter is conclusively established if reasonable people
could not differ as to the conclusion to be drawn from the evidence. Franks, 310 S.W.3d
at 621 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).
Statutes of limitations exist “to compel the exercise of a right of action within a
reasonable time so that the opposing party has a fair opportunity to defend while
witnesses are available and the evidence is fresh in their minds.” Willis v. Maverick, 760
3
S.W.2d 642, 644 (Tex. 1988). For a personal injury suit, a plaintiff complies with the
statute of limitations if the plaintiff sues the defendant not later than two years following
the date the cause of action accrues. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.003(a)).
A party asserting a limitations defense must allege it in its answer to the plaintiff’s
pleadings. TEX. R. CIV. P. 94. In addition, to avoid a limitations defense, the plaintiff must
exercise diligence in serving the defendant with process prior to the expiration of the
limitations period. Zive v. Sandberg, 610 S.W.3d 44, 48 (Tex. App.—Dallas 2020) (“When
a plaintiff files a petition within the limitations period, but does not serve the defendant
until after the statutory period has expired, the date of service relates back to the date of
filing if the plaintiff exercised diligence in effecting service.” (citing Gant v. DeLeon, 786
S.W.2d 259, 260 (Tex. 1990) (per curiam))), aff’d, 644 S.W.3d 169 (Tex. 2022). Moreover,
a statute of limitations defense is waived if not pleaded or tried by consent. Miles v.
Peacock, 229 S.W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.) see also
TEX. R. CIV. P. 94 (listing defenses that a party “shall set forth affirmatively”).
III. ANALYSIS
By her sole issue, Cavazos contends that the trial court improperly granted
Stryker’s motion for summary judgment. Specifically, she argues that the trial court
incorrectly concluded that her cause of action against Stryker is barred by the statute of
limitations merely because a suit filed in 2020 against Sample would be barred by
limitations—even though she undisputedly filed suit against Stryker within the limitations
period and thereafter chose not to sue Sample in her live petition.
4
Cavazos further argues that according to the rationale espoused by Stryker and
the trial court, when a plaintiff sues an employer under a respondeat superior theory, the
plaintiff must always sue both the employer and tortfeasor employee. Otherwise,
according to Cavazos, the plaintiff that chooses to only sue the employer will eventually
be barred from continuing the suit against the employer once the statute of limitations
passes for filing suit against the tortfeasor employee. Stryker, responds that, although
Cavazos did not sue Sample, “an employer sued within the applicable limitations period
remains entitled to assert any limitations defense available to an employee.”
Cavazos filed her original petition against Stryker and Sample well within the
applicable statute of limitations—a fact not disputed by Stryker. Cavazos did not serve
Sample, and he was dismissed. Therefore, Sample was never a defendant in this cause,
and Sample was not required to file an answer in response to her suit. See Zive, 610
S.W.3d at 48; see also TEX. R. CIV. P. 99(b) (establishing that the defendant must “file a
written answer to the plaintiff’s petition on or before 10:00 a.m. on the Monday next after
the expiration of twenty days after the date of service thereof”). Accordingly, because
Sample was not a defendant, he was not entitled to an affirmative defense. See TEX. CIV.
PRAC. & REM. CODE ANN. § 33.011 (providing that, for purposes of proportionate
responsibility, “‘[d]efendant’ includes any person from whom, at the time of the submission
of the case to the trier of fact, a claimant seeks recovery of damages.”).
Finally, even if Stryker may invoke Sample’s affirmative limitations defense, to
prevail, Stryker must have proved as a matter of law: (1) when the cause of action
accrued, and (2) that Cavazos brought her suit against Sample beyond the limitations
5
period. See Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021). Stryker is unable to
show that the applicable statute of limitations has run in this case because Cavazos sued
Stryker within the statute of limitations period and Sample has not been sued outside that
period. See id.
Stryker claims that under Dewitt v. Harris County, a principal may always assert
every affirmative defense available to its agent when the principal’s liability under a tort
claim is solely based on respondeat superior. 904 S.W.3d 650, 654 (Tex. 1995). In Dewitt,
the plaintiff sued an officer and his county employer. See id. at 651. The Dewitt court
concluded the defendant officer had official immunity, and therefore, the county employer
was not liable to the plaintiff “for the negligence of its employee when the employee has
no liability because of official immunity.” Id. at 654 (applying TEX. GOV’T CODE ANN.
§ 101.021). Here, Sample is not a defendant and a statute of limitations defense is not
available to him.
Moreover, Stryker’s reliance on Dewitt is misplaced because that case involved
the Texas Tort Claims Act’s limited waiver of sovereign immunity, which expressly limits
a government employer’s vicarious liability to the extent “the employee would be
personally liable to the claimant according to Texas law.” Id. at 652 (quoting TEX. CIV.
PRAC. & REM. CODE ANN. § 101.021(1)(B)). Stryker is not a “governmental unit,” and thus,
the Tort Claims Act does not apply here. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(3).
Stryker further relies on Lab Corporation of America v. Compton, 126 S.W.3d 196,
200 (Tex. App.—San Antonio 2003, pet. denied) and Clements v. Conrad, 21 S.W.3d
6
514, 523 (Tex. App.—Amarillo 2000, pet. denied). In both cases, the courts held that the
employer was entitled to assert the employee’s statute of limitations defense. Lab Corp.
of Am., 126 S.W.3d at 200; Clements, 21 S.W.3d at 523. However, the plaintiffs in both
cases filed each suit against the principal employer outside of the statute of limitations
applicable to the employee. Lab Corp. of Am., 126 S.W.3d at 200; Clements, 21 S.W.3d
at 523. Thus, each plaintiff’s suit was barred by limitations. Lab Corp. of Am., 126 S.W.3d
at 200 (holding that the principal was entitled to assert the tortfeasor employee’s two-year
limitations defense under the former medical liability statute and not subject to a general
four-year statute of limitations and since the plaintiff’s claim arose in 1997 and she failed
to file suit until 2000, the plaintiff’s claim was barred); Clements, 21 S.W.3d at 523
(concluding that, because the plaintiff failed to sue the employer within the statute of
limitations applicable to the employee, the plaintiff’s cause was barred).
Here, even assuming, without deciding, that Stryker is correct that Dewitt,
Compton, and Clements apply, like those defendants, Stryker would have been allowed
to assert a limitations defense had Sample been sued individually outside of that period.
Nonetheless, here, Cavazos sued Stryker within the limitations period applicable to
Sample. We decline Stryker’s invitation to adopt a rule that a principal is entitled to
dismissal because the plaintiff did not sue the tortfeasor employee.3
3 Stryker cites Stephens v. Petrino, 86 S.W.3d 836, 843 (Ark. 2002), In Stephens, the plaintiffs
sued a tortfeasor employee outside the pertinent statute of limitations period. Id. The trial court dismissed
the tortfeasor employee from the lawsuit after granting the employee’s motion for summary judgment on
the basis that any complaint against the employee was time-barred. Id. Because the plaintiff failed to sue
the tortfeasor employee within the applicable statute of limitations, the plaintiff’s suit against the employer
was also barred. Id.
Those facts differ from the facts before us. Here, Cavazos did not sue Stryker or Sample outside
the limitations period. Thus, Stephens does not support a conclusion that when a plaintiff sues an employer
7
Accordingly, as a matter of law, Stryker is not entitled to derivatively invoke that
defense in this case. See Westview Drive Invs., LLC, v. Landmark Am. Ins., 522 S.W.3d
583, 604 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (noting that there is no
derivative liability where the primary wrongdoer successfully asserts an affirmative
defense). We sustain Cavazos’s sole issue.
IV. CONCLUSION
We reverse the trial court’s judgment and remand for further proceedings.
JAIME TIJERINA
Justice
Delivered and filed on the
3rd day of November, 2022.
under a vicarious liability theory, such as respondeat superior, the plaintiff must also sue the tortfeasor
employee within the statute of limitations to maintain the plaintiff’s claim against the employer. See id.
Therefore, Stephens is irrelevant to our analysis of the question presented here. See id. The remainder of
the cases cited by Stryker are inapplicable for the same reason.
8 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481222/ | NO. 12-22-00187-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 294TH
S.A. & P.A., § JUDICIAL DISTRICT COURT
CHILDREN § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
Appellants A.A. and J.A. appeal the termination of their parental rights to their minor
children, S.A. and P.A. In two issues, Appellants (1) argue that the trial court’s jurisdiction expired
before an extension was granted or a trial commenced, rendering the trial court’s subsequent order
of termination void, and (2) challenge the legal and factual sufficiency of the evidence supporting
the trial court’s finding that they failed to complete parenting classes as required by their service
plan. 1 We affirm the trial court’s judgment.
BACKGROUND
A.A. is the children’s mother, and J.A. is the children’s father. On December 14, 2020, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of S.A. and P.A., for conservatorship, and for termination of Appellants’ parental rights.
On January 20, 2021, the trial court signed a “scheduling/discovery order,” in which it noted that
the Department was named temporary managing conservator on January 19, 2021, and concluded
that the one-year dismissal date is January 24, 2022. 2 In a written “Temporary Order Following
1
Neither parent challenges the sufficiency of the evidence regarding the finding that termination is in the
best interest of the children.
2
In an initial permanency hearing order, dated July 27, 2021, the trial court erroneously stated that the
automatic dismissal date is January 17, 2022. In a later permanency hearing order, which was signed on November
5, 2021, the trial court correctly identified the automatic dismissal date as January 24, 2022.
Show Cause Hearing,” dated February 24, 2021, the trial court appointed the Department
temporary managing conservator of the children and stated that the court conducted a show cause
hearing via Zoom on January 19, 2021. Other documents in the appellate record also identify
January 19, 2021, as the date on which the trial court appointed the Department temporary
managing conservator.
In a “Permanency Hearing Order Before Final Order,” signed on January 7, 2022, the trial
court noted that it held a permanency hearing on December 20, 2021, and the trial court again
stated that the dismissal date is January 24, 2022. The trial court also stated in its order that neither
A.A. nor J.A. had “demonstrated adequate and appropriate compliance with the service plan.” In
another Permanency Hearing Order Before Final Order, signed on January 26, 2022, the trial court
again found that neither parent had demonstrated adequate and appropriate compliance with the
service plan and found that extraordinary circumstances necessitate the Department remaining
temporary managing conservator of the children, retained the case on the court’s docket, and set
July 23, 2022, as the automatic dismissal date. The trial court’s docket sheet entry dated January
13, 2022, states that neither parent is in compliance, “[t]oday is [the] permanency hearing[,]”
“placement status quo[,]” and notes that the trial court granted an extension. 3 On April 8, 2022,
the Department filed a permanency report, in which it indicated that A.A. is not in compliance
with each requirement set out by the Department but J.A. “is doing as asked by the Department.”
In a permanency hearing order filed on May 2, 2022, the trial court stated that A.A. “has not
demonstrated adequate and appropriate compliance with the service plan[,]” but J.A. was in
compliance.
After a trial on the merits, the trial court found that the Department established, by clear
and convincing evidence, that (1) both A.A. and J.A. engaged in the acts or omissions necessary
to support termination of their parental rights under Section 161.001(b)(1)(O) of the Texas Family
Code and (2) termination of Appellants’ parental rights is in the children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(O), (2) (West 2022). Based upon these findings, the trial court
signed an order terminating the parental rights of both A.A. and J.A. on July 6, 2022. This appeal
followed.
3
The January 13 docket sheet entry states, in pertinent part, “Extension granted.”
2
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights involves fundamental constitutional rights. Vela
v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53 S.W.3d
684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ denied).
Because a termination action permanently sunders the bonds between parent and child, the
proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In
re Shaw, 966 S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.). “[W]e must exercise the
utmost care in reviewing the termination of parental rights to be certain that the child’s interests
are best served and that the parent’s rights are acknowledged and protected.” Vela, 17 S.W.3d at
759.
Section 161.001(b) of the Texas Family Code permits a court to order termination of
parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001(b) (West 2022).
The movant must show that (1) the parent committed one or more predicate acts or omissions, and
(2) termination is in the child’s best interest. See id. § 161.001(b)(1), (2); see also In re J.M.T.,
39 S.W.3d 234, 237 (Tex. App.—Waco 1999, no pet.). Both elements must be established by
clear and convincing evidence, and proof of one element does not alleviate the petitioner’s burden
of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T.,
39 S.W.3d at 237.
The “clear and convincing” evidentiary standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. “Clear and convincing evidence” is defined as “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2019). The party
seeking termination of parental rights bears the burden of proof. In re J.M.T., 39 S.W.3d at 240.
JURISDICTION
In their first issue, A.A. and J.A. assert that the trial court’s jurisdiction expired before an
extension was granted or a trial commenced, rendering the trial court’s subsequent order of
termination void.
3
Standard of Review and Applicable Law
Whether a trial court possesses subject matter jurisdiction is a question of law that we
review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
In re X.A.F., No. 07-19-00443-CV, 2020 WL 2896533, at *1 (Tex. App.—Amarillo June 1, 2020,
no pet.) (mem. op.); In re T.B., 497 S.W.3d 640, 644 (Tex. App.—Fort Worth 2016, pet. denied).
Section 263.401(a) of the Texas Family Code, states as follows:
Unless the court has commenced the trial on the merits or granted an extension under Subsection
(b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary
order appointing the department as temporary managing conservator, the court’s jurisdiction over
the suit affecting the parent-child relationship filed by the department that requests termination of
the parent-child relationship or requests that the department be named conservator of the child is
terminated and the suit is automatically dismissed without a court order. Not later than the 60th day
before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the
automatic dismissal date.
TEX. FAM. CODE ANN. § 263.401(a) (West Supp. 2022). In other words, a trial court automatically
loses jurisdiction over a termination of parental rights case if the court does not commence a trial
on the merits or grant an extension by the dismissal deadline. In re Z.S., 631 S.W.3d 313, 316
(Tex. App.—Houston [14th Dist.] 2020, no pet.). If the trial court fails to commence trial on time,
the court’s jurisdiction over the suit is terminated, and the suit is automatically dismissed without
a court order. TEX. FAM. CODE ANN. § 263.401(a). Additionally, Subsection 263.401(b) provides
that the trial court may not retain the suit on its docket after the time described in Subsection
263.401(a) unless the court finds that (1) extraordinary circumstances necessitate the child
remaining in the temporary conservatorship of the Department and (2) continuing the
Department’s appointment as temporary managing conservator is in the children’s best interest.
Id. § 263.401(b). If the trial court makes the required findings, it may retain the suit on its docket
for not more than 180 days after the time set forth in Subsection 263.401(a). Id.
Analysis
Generally, docket sheet entries are insufficient to constitute a decree of the court; however,
Section 101.026 of the Texas Family Code modifies this rule in suits affecting the parent-child
relationship, including termination of parental rights cases, and expressly allows a trial court to
pronounce or render an order on its docket sheet. Id. § 101.026 (West 2019); In re G.X.H., 627
S.W.3d 288, 297-98 (Tex. 2021). In this case, it is undisputed that the one-year dismissal date was
4
January 24, 2022. It is also undisputed that the trial court’s docket sheet states that on January 13,
2022, the trial court granted an extension. We conclude that the January 13 notation on the trial
court’s docket sheet, which stated that it granted an extension, is sufficient to avoid automatic
dismissal, and the trial court retained jurisdiction over the case. See TEX. FAM. CODE ANN.
§§ 101.026, 263.401(a), (b); In re G.X.H., 627 S.W.3d at 297-98; In re J.-R.A.M., No. 10-20-
00221-CV, 2020 WL 7866877, at *3 (Tex. App.—Waco Dec. 30, 2020, pet. denied) (mem. op.)
(holding that the oral rendition of an extension is sufficient to comply with the Texas Family
Code). Accordingly, we overrule issue one.
FAILURE TO COMPLY WITH PROVISIONS OF COURT ORDER
In their second issue, A.A. and J.A. challenge the legal and factual sufficiency of the
evidence to terminate their parental rights. The sole predicate ground found by the trial court as
to both A.A. and J.A. was failure to comply with the provisions of a court order that specifically
established the actions necessary to obtain the return of the children. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O). A.A. argues that she had not been served, so it was “objectively factually
impossible for her to comply” because the trial court did not acquire jurisdiction over her until she
made a general appearance on the day of trial. J.A. contends that (1) the children were not removed
for abuse or neglect and (2) the service plan does not identify with sufficient specificity the
parenting series that he is required to complete, and therefore the record does not demonstrate that
he knew what the order required of him.
Pertinent Pleadings and Evidence
In its original petition for protection of the children, for conservatorship, and for
termination, the Department alleged that “[t]here is a continuing danger to the physical health or
safety of the children caused by an act or failure to act of the person entitled to possession of the
children[,] and that allowing the children to remain in the home would be contrary to the children’s
welfare[.]” The removal affidavit attached to the Department’s petition alleged that the
Department received a report of neglectful supervision on October 8, 2020, stating that A.A. had
given birth, was “displaying concerning behaviors, including screaming after birth and answering
questions inappropriately[,]” and tested positive for marijuana at a prenatal appointment.
According to the affidavit, A.A. was only taking prescribed medication for her mental health
“when she wanted to.” The affidavit further asserted that the Department received an additional
5
intake on October 13, 2020, which stated that A.A. was committed to a psychiatric facility and
subsequently discharged after a hearing, but A.A. “was actively psychotic, paranoid, and refusing
treatment and medication, as well as refusing food or drinks.” Additionally, the affidavit asserted
that J.A. tested positive for marijuana, and that the parents were ordered to participate in family-
based safety services “to address father’s substance use and mother’s mental health.”
In its temporary order following the show cause hearing, the trial court stated that it
examined and reviewed the Department’s pleadings and the sworn affidavit of removal. Based
upon the facts contained therein and the evidence presented at the hearing, the trial court stated
that it found sufficient evidence to show (1) a continuing danger to the physical health or safety of
the children caused by an act or failure to act of the person entitled to possession, (2) continuation
of the children in the home would be contrary to the children’s welfare, and (3) reasonable efforts
were made to prevent or eliminate the need to remove the children. The trial court appointed the
Department temporary managing conservator of the children and appointed A.A. and J.A. as
possessory conservators with limited rights, duties, possession, and access to the children.
At trial, Tara Skinner, a family-based safety service worker for the Department, testified
that at the time of the December 2020 compliance hearing, neither parent was in compliance with
the trial court’s orders because A.A. had not participated in the required services, J.A. had not
completed his substance abuse assessment, and J.A. was continuing to test positive for marijuana,
so a removal affidavit was ordered. According to Skinner, because the Department was concerned
that A.A. was “not addressing her mental health[,]” and about whether J.A. could keep the children
safe from A.A., as well as J.A. continuing to test positive for marijuana, the children were placed
with their paternal grandparents, and J.A. was ordered to remain in the home with the paternal
grandparents. A.A. was not allowed to visit the children except at the Department’s office. Skinner
explained that both parents had prior cases with the Department involving similar issues. Skinner
testified that the Department sought removal due to concerns about A.A.’s mental health and her
lack of cooperation to address her mental health, as well as the usage of marijuana by J.A. and the
paternal grandparents. According to Skinner, J.A. was not compliant with services before the
children were removed, and the Department believed J.A.’s supervision of the children was
neglectful.
Marion Barrera, who previously worked in the Department’s conservatorship unit, testified
that she worked on the case for approximately six months. Barrera testified that she discussed the
6
service plan with J.A., and J.A. signed the plan, which the trial court designated as an order of the
court at the status hearing. Barrera explained that J.A. contacted a parenting organization and
although he was scheduled to begin classes, he did not begin parenting classes while she was the
caseworker. According to Barrera, A.A. did not begin any of the ordered services during Barrera’s
time as caseworker, and she did not regularly visit the children.
Amanda Skafec, a conservatorship caseworker for the Department, testified that she was
assigned the case in July 2021, and J.A. had completed his psychological evaluation, ETCADA
assessment, and individual counseling, and he was taking the required drug tests. Skafec testified
that J.A. had not completed his parenting classes as of the date of trial. According to Skafec, A.A.
has not visited the children. Skafec testified that being placed in their parents’ home would be
dangerous for the children because of A.A.’s mental health “and the fact that mom and dad are
still not divorced.”
J.A. testified that he wants his children to return home. J.A. explained that he has one
parenting class left to complete and testified, “I’ve got everything done but the very last lesson, I
believe.”
Standard of Review and Applicable Law
When presented with a challenge to both the legal and factual sufficiency of the evidence,
an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen.
Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.—
Amarillo 1999, no pet.). When reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the finding to determine whether “a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could, and we disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible. Id. If no reasonable factfinder could form a
firm belief or conviction that the matter that must be proven is true, the evidence is legally
insufficient. Id. The trier of fact is the exclusive judge of the credibility of the witnesses and the
weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—
Houston [1st Dist.] 1997, pet. denied).
When reviewing the factual sufficiency of the evidence, we must determine whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth
7
of the Department’s allegations. In re J.F.C., 96 S.W.3d at 266. We give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing, and we
consider whether disputed evidence is such that a reasonable factfinder could not have resolved
that disputed evidence in favor of its ruling. Id. If, considering the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, the evidence is
factually insufficient. Id.
Analysis Regarding A.A.
A.A. contends that the trial court did not acquire jurisdiction over her until the date of the
final hearing, when she “made a general appearance through her attendance at the trial.” A.A.
asserts that the evidence supporting termination under Section 161.001(b)(1)(O) is legally and
factually insufficient because it was “objectively factually impossible for her to comply” with the
requirements of the family service plan the trial court ordered when it allegedly lacked jurisdiction
over her. A.A. does not actually discuss of challenge the sufficiency of the evidence that she failed
to comply with the requirements of the service plan. Rather, the crux of her argument is that the
trial court lacked personal jurisdiction over her.
The record does not indicate that A.A. was served with citation or signed a written waiver
of service. An officer who attempted to personally serve A.A. noted on his return that service was
not executed, and that “[b]ased on previous attempts, [A.A.] will actively avoid process service.”
Upon making a second attempt at serving A.A., the same officer noted that A.A. was avoiding
delivery. The record reflects that the trial court appointed an attorney to represent A.A. on
December 17, 2020, A.A.’s counsel submitted bills to the trial court during the pendency of the
case for, among other things, meeting with A.A. The trial court’s temporary order following the
show cause hearing reflects that A.A. and her appointed attorney appeared and announced ready
at the show cause hearing on January 19, 2021. At the Department’s request, the trial court also
signed an order appointing a guardian ad litem for A.A.
The record shows that A.A. participated in Family Group Decision Making with J.A., a
court appointed special services advocate, Department caseworkers, and her court-appointed
guardian ad litem. The family service plan was filed with the court on March 2, 2021, and was
declared an order of the court in the trial court’s order of March 11, 2021. A.A. appeared
telephonically and through her counsel of record at the status hearing that occurred on March 11,
8
2021, and the trial court’s docket sheet from that date states that A.A. wants her children returned
to her and wants an attorney. A.A. also appeared at a hearing on March 18, 2021, and the trial
court’s docket sheet from that date states that A.A. “is asking for placement with her and her
husband[,]” “wants the Judge to dismiss this case today[,]” and “[d]oes not want her children in
foster care.” The docket sheet further states that the trial court denied A.A.’s requests to dismiss
the case and to return the children to her and J.A. The trial court’s initial permanency hearing
order, signed on July 27, 2021, states that A.A. appeared through her attorney of record and
announced ready. A.A. also appeared at a permanency hearing in person and through her counsel
of record on October 22, 2021, and she again asked the court to dismiss the case. Moreover, A.A.
appeared through her attorney at permanency hearings in December 2021, January 2022, and April
2022 and announced ready.
“A party enters a general appearance when it (1) invokes the judgment of the court on any
question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly
pending, or (3) seeks affirmative action from the court.” In re D.M.B., 467 S.W.3d 100, 103 (Tex.
App.—San Antonio 2015, pet. denied) (quoting Exito Electronics Co. v. Trejo, 142 S.W.3d 302,
304-05 (Tex. 2004). “An attorney’s appearance on behalf of a defendant in a termination
proceeding constitutes the defendant-parent’s general appearance[.]” In re N.F., No. 09-19-
00435-CV, 2020 WL 2070286, at *16 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem.
op.). A party waives complaints regarding service of process if she makes a general appearance.
TEX. R. CIV. P. 120 (providing that entering a general appearance has the same force and effect as
if citation had been issued and served as provided by law); In re D.M.B., 467 S.W.3d at 103; In
re A.E.G., No. 12-11-00307-CV, 2012 WL 4502085, at *3 (Tex. App.—Tyler Sept. 28, 2012, no
pet.) (mem. op.).
As discussed above, the record reflects that A.A. and her court-appointed attorney appeared
and announced ready at the show cause hearing on January 19, 2021. A.A. also appeared
telephonically and through her counsel of record at the status hearing that occurred on March 11,
2021, after which the trial court made the family service plan an order of the court, and the trial
court’s docket sheet from that date states that A.A. wanted her children returned to her. We
conclude that A.A., both personally and through her court-appointed attorney, entered a general
appearance and requested affirmative relief from the court by seeking dismissal of the case and the
return of the children. See TEX. R. CIV. P. 120; In re N.F., 2020 WL 2070286, at *16; In re
9
D.M.B., 467 S.W.3d at 103; In re A.E.G., 2012 WL 4502085, at *3. The trial court had jurisdiction
over A.A., and she was therefore required to comply with the terms of the court-ordered service
plan. For all these reasons, we overrule issue two with respect to A.A.
Analysis Regarding J.A.
As discussed above, J.A. challenges the legal and factual sufficiency of the evidence
supporting termination under Section 161.001(b)(1)(O) of the Texas Family Code. Specifically,
J.A. argues that (1) the evidence was insufficient to demonstrate that the children were removed
for abuse or neglect and (2) the service plan does not identify with sufficient specificity the
parenting series that he must complete.
The trial court may order termination of the parent-child relationship if the court finds by
clear and convincing evidence that the parent failed to comply with the provisions of a court order
that specifically established the actions necessary for the parent to obtain the return of the children.
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Subsection (O) does not quantify any particular
number of provisions of the family service plan that a parent must fail to achieve for parental rights
to be terminated or the degree of a parent’s conduct that will be deemed to be a failure to achieve
a particular requirement of the service plan. See id.; In re B.H.R., 535 S.W.3d 114, 122 (Tex.
App.—Texarkana 2017, no pet.). Neither the statute nor the order that the trial court entered
prescribes the degree to which the parent must comply with the court order, and neither the order
nor the statute “make[s] provision for excuses” for a parent’s failure to comply with such an order.
See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—
Eastland 2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet.
denied), overruled on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—Waco 2012,
no pet.)).
Due process and specificity
J.A. asserts that the trial court’s status hearing order of April 1, 2021, which incorporated
the family service plan by reference, as well as the plan itself, are insufficiently specific regarding
the series of parenting classes J.A. must complete, thereby violating his right to due process.
Appellate issues should direct our attention to error in the trial court. In re S.K.S., No. 06-
11-00014-CV, 2011 WL 2462030, at *2 (Tex. App.—Texarkana June 21, 2011, no pet.) (mem.
op.) (citing TEX. R. APP. P. 33.1). “Due process and other alleged constitutional violations also
must be raised in the trial court for them to be preserved for appellate review.” Id. Because the
10
due process issue was not raised in the trial court, we conclude that it was not preserved for our
review. See id.
Even if the issue were preserved, J.A. would not prevail. Section 263.102 of the Texas
Family Code sets forth the requirements for a valid service plan. TEX. FAM. CODE ANN. § 263.102
(West 2019). Section 263.102 requires that the service plan must (1) be specific, (2) “in writing in
a language that the parents understand, or made otherwise available[,]” (3) be prepared by the
Department in conference with the parents, (4) state appropriate deadlines, (5) “specify the primary
permanency goal and at least one alternative permanency goal[,]” (6) state the steps that are
necessary to either return the children to their home, enable the children to remain in their home,
or otherwise provide a safe and permanent placement, (7) state the actions and responsibilities the
parents must take to achieve the goals of the service plan and the assistance the Department will
provide the parents toward meeting the goal, (8) state any specific skills or knowledge the parents
must acquire or learn, as well as any required behavioral changes, (9) state the actions the parents
must take to ensure that the children attend school or improve academic compliance, (10) state the
name of the person with the Department that the parents may contact for information, “if other
than the person preparing the plan[,]” and (11) “prescribe any other term or condition that the
[D]epartment determines to be necessary to the service plan’s success.” Id. § 263.102(a). The
Department “must write the service plan in a manner that is clear and understandable to the parent
in order to facilitate the parent’s ability to follow the requirements of the service plan.” Id.
§ 263.102(d)
The status hearing order provides, in pertinent part, that “except as specifically modified
by this order or any subsequent order, the plan of service for the parents, filed with the Court on
March 2, 2021, and incorporated herein by reference as if the same were copied verbatim in this
order, is APPROVED and made an ORDER of this Court.” In a section entitled “Required
Action,” the family service plan states that J.A. “shall participate in a parenting series . . . [and]
provide the Department, through his caseworker, with a certificate of completion.” The service
plan further stated that J.A. shall demonstrate through his interactions with the children that he can
apply the skills acquired in the classes. The family service plan stated that the agency that provided
the required parenting series is Canton Child Advocacy Center, and the address and telephone
number of said agency were listed.
11
J.A. cites no authority for his contentions that due process requires that the plan contain
details of the parenting series, such as a referral and the required modules, and we are aware of
none. We conclude that the trial court’s order and the service plan were sufficiently specific. See
TEX. FAM. CODE ANN. § 263.102(a), (d); see generally In re N.G., 577 S.W.3d 230, 238 (Tex.
2019) (holding that the trial court’s order describing the actions necessary to obtain return of the
children must be “sufficiently specific to warrant termination of parental rights for failure to
comply with it.”).
Sufficiency of the Evidence
J.A. contends that the evidence was legally and factually insufficient to show that (1) the
children were removed from him for abuse or neglect and (2) that he failed to comply with the
requirements of the service plan. J.A. points to the caseworker’s testimony that the danger to the
children was A.A.’s mental health and the fact that J.A. and A.A. are not divorced. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(O). However, Subsection (O) does not require that the parent who
failed to comply with a court order be the same parent whose abuse or neglect warranted the
children’s removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, no pet.);
In re S.N., 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Had the
legislature intended such a requirement, it could have easily provided that conservatorship be ‘as
a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child by the parent.”).
The trial court heard evidence that A.A.’s mental health endangered the children. See In
re B.H.R., 535 S.W.3d at 122; In re D.R.J., 395 S.W.3d at 320; In re J.S., 291 S.W.3d at 67; In
re S.N., 287 S.W.3d at 188. The trial court also heard Barrera testify that she discussed the service
plan with J.A., and that J.A. signed the plan. In addition, the trial court heard Skafec testify that
J.A. had not completed the required parenting classes at the time of trial, as well as J.A.’s testimony
that he had not yet completed “the very last lesson” in the parenting series. Viewing the evidence
in the light most favorable to the finding, we conclude that a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true. See In re J.F.C., 96 S.W.3d at 266.
Therefore, the evidence is legally sufficient. See id.; see also TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O). Additionally, giving due consideration to evidence the factfinder could
reasonably have found to be clear and convincing, as well as the lack of evidence that J.A.
completed the required parenting series, we conclude that the evidence is factually sufficient. See
12
In re J.F.C., 96 S.W.3d at 266; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O). For all these
reasons, we overrule issue two as to J.A.
DISPOSITION
Having overruled issues one and two as to both A.A. and J.A., we affirm the trial court’s
judgment.
BRIAN HOYLE
Justice
Opinion delivered October 31, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
13
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 31, 2022
NO. 12-22-00187-CV
IN THE INTEREST OF S.A. & P.A., CHILDREN
Appeal from the 294th District Court
of Van Zandt County, Texas (Tr.Ct.No. FM20-00498)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below for
observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481220/ | CAUSE NO. 12-22-00168-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
____________________________
LAZY W CONSERVATION DISTRICT,
APPELLANT
V.
ARLIS A. JONES,
APPELLEE
ORDER FOR RELEASE OF CONTEMNOR
On October 24, 2022, following a hearing at which Reporter Ms. Beverly Dixon was
present and appeared with her counsel, Mr. Jeff Coe, this Court found that Ms. Beverly Dixon
was in contempt of this Court for violating its order entered on August 31, 2022. As part of the
penalty assessed, Ms. Beverly Dixon was arrested and confined in the Smith County Jail, subject
to the terms and conditions set forth in this Court’s Judgment of Contempt dated October 24,
2022. Ms. Beverly Dixon’s confinement was ordered to continue until the complete record in
this appeal was presented in legible format for filing in this Court and Ms. Beverly Dixon
received notification from the Court that the record had been accepted and filed.
Ms. Dixon filed volumes two and four, albeit untimely. Ms. Dixon was to work at the
jail until she filed the remaining volumes, which consisted of a master index, an exhibit volume
and the third volume, composed of deposition testimony and live testimony. On November 2,
2022, Mr. Coe filed a letter with this Court, in which he explained that another court reporter was
assisting Ms. Dixon in preparation of volume three when she discovered that “the content of the
live testimony is … as if a two-year old was typing on the machine. It is unintelligible.” Based
on counsel’s letter, it is this Court’s conclusion that Ms. Dixon is unable to file the complete
record in this case and there is no longer a reason to require that she report daily to the Smith
County Jail.
Accordingly,
IT IS THEREFORE ORDERED that the Sheriff of Smith County, Texas, immediately
release Reporter Ms. Beverly Dixon from confinement in the Smith County Jail.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 2nd
day of November 2022, A.D.
_________________________________
KATRINA MCCLENNY, CLERK | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481230/ | NUMBER 13-22-00138-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JAMES CLICK, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
ORDER
Before Chief Justice Contreras and Justices Benavides and Tijerina
Order Per Curiam
This cause is before this Court on appellee James Click’s fourth motion for
extension of time to file a brief. Appellee’s brief was initially due to be filed on July 14,
2022. This Court granted three motions for extensions of time to file the brief filed by
appellee, and the brief was due on November 2, 2022. Appellee’s counsel represents in
his motion that he is a solo practitioner without any staff, has had numerous cases to
prepare for trial, and in the past week has been sick. Appellee requests a five-day
extension to file the brief on November 7, 2022.
We grant appellee’s fourth motion for extension of time and order appellee’s brief
to be filed on or before Monday, November 7, 2022. No further extensions of time will be
granted.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
3rd day of November, 2022.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481237/ | THE THIRTEENTH COURT OF APPEALS
13-21-00334-CV
GREG MILLER, LMFT, CADC II, ICADC, LMFT-S
v.
EMILY CASTLEMAN
On Appeal from the
200th District Court of Travis County, Texas
Trial Court Cause No. D-1-GN-20-006471
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellant.
We further order this decision certified below for observance.
November 3, 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481229/ | NO. 12-22-00273-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHRISTINE REULE, § APPEAL FROM THE 241ST
APPELLANT
V.
BERNARD JOHN CHISM AND WIFE, § JUDICIAL DISTRICT COURT
HARRINGTON FAMILY TRUST,
PAUL HARRINGTON, THOMAS
HARRINGTON, AND AMANDA
MOONEY,
APPELLEES § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
On June 17, 2020, Christine Reule filed a pro se notice of appeal in the trial court. 1 It
appears from a search of the Smith County online records that an order of dismissal was entered
on February 19, 2020. On October 6, 2022, this Court notified Reule that the notice of appeal
does not show the jurisdiction of this Court, i.e., there was no notice of appeal filed within the
time allowed by the rules of appellate procedure and no timely motion for an extension of time to
file the notice of appeal. See TEX. R. APP. P. 26.1, 26.3. We informed Reule that the appeal
would be dismissed unless the information was amended on or before October 17 to show this
Court’s jurisdiction. Reule filed a response, which fails to establish this Court’s jurisdiction over
the appeal.
1
Reule also filed an original proceeding with this Court on September 30, 2022, which is pending in cause
number 12-22-00271-CV. In the course of that proceeding, we discovered that she filed a notice of appeal that was
never forwarded to this Court. The Clerk of this Court brought this issue to the attention of the Smith County
District Clerk’s Office and the notice of appeal was subsequently forwarded to this Court on October 5, 2022. See
TEX. R. APP. P. 25.1(f) (“trial court clerk must immediately deliver a copy of the notice of appeal to the appellate
court clerk, to the trial judge, and to each court reporter responsible for preparing the reporter’s record”).
1
Under Rule 26.1, the notice of appeal must be filed within thirty days after the judgment
is signed or, if the case is accelerated, within twenty days after the judgment or order is signed.
TEX. R. APP. P. 26.1. Unless the appeal is accelerated, the notice of appeal must be filed within
ninety days “after the judgment is signed” if any party timely files a motion for new trial, motion
to modify, motion to reinstate, or request for findings of fact and conclusions of law when such
could be properly considered by the appellate court. TEX. R. APP. P. 26.1(a)-(b), 28.1(b). The
case information sheet from the Smith County District Clerk’s Office reflects that Reule did not
file a motion for new trial or a request for findings of fact and conclusions of law. Assuming this
is a regular appeal, even had she timely filed a post-judgment motion or request for findings, her
notice of appeal was filed well outside the time for perfecting an appeal from the February 19,
2020 order, or for seeking an extension of time to file a notice of appeal. See TEX. R. APP. P.
26.3 (motion to extend time for filing notice of appeal must be filed within fifteen days after
deadline for filing notice of appeal).
As this Court is not authorized to extend the time for perfecting an appeal except as
provided by the Texas Rules of Appellate Procedure, we dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a). All pending motions are overruled as moot.
Opinion delivered October 31, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 31, 2022
NO. 12-22-00273-CV
CHRISTINE REULE,
Appellant
V.
BERNARD JOHN CHISM AND WIFE, HARRINGTON FAMILY TRUST, PAUL
HARRINGTON, THOMAS HARRINGTON, AND AMANDA MOONEY,
Appellees
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 18-1871-C)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
3 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481225/ | NO. 12-22-00050-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WALTER CHARLES LINK, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Walter Charles Link appeals his fifty-year sentence following his conviction for
possession of between 200 and 400 grams of methamphetamine. In one issue, Appellant argues
that the evidence is legally insufficient to support the second enhancement allegation and, as a
result, the trial court considered the incorrect range of punishment in determining his sentence.
We affirm.
BACKGROUND
Appellant was charged by indictment with possession of between 200 and 400 grams of
methamphetamine. The indictment further alleged that Appellant used or exhibited a deadly
weapon during the commission of or immediate flight from the offense. Further still, the
indictment alleged that Appellant previously was convicted of aggravated robbery. Later, the
State filed a Brooks 1 notice, in which it set forth its intent to seek higher punishment based on
another prior felony conviction in North Carolina for possession of cocaine. Appellant pleaded
1
See Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997).
“guilty” as charged and pleaded “true” to the deadly weapon allegation as well as the first
enhancement for aggravated robbery. 2
At Appellant’s bench trial on punishment, the trial court admonished Appellant that he
faced a sentencing range of imprisonment for twenty-five years to ninety-nine years, or life.
Following the presentation of evidence and argument of counsel, the trial court found the
enhancement for aggravated robbery and the deadly weapon allegation each to be “true” but
made no finding on the enhancement contained in the Brooks notice. 3 Thereafter, the trial court
sentenced Appellant to imprisonment for fifty years, and this appeal followed.
EVIDENTIARY SUFFICIENCY OF ENHANCEMENT - INCORRECT RANGE OF PUNISHMENT
In his sole issue, Appellant argues that there is insufficient evidence of the second
enhancement allegation that he previously was convicted in North Carolina for the felony of
possession of cocaine, and, as a result, the trial court considered the incorrect range of
punishment in determining his sentence. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e)
(West Supp. 2022); compare TEX. PENAL CODE ANN. § 12.42(c)(1) (West 2019) (range of
punishment for first degree felony with one prior felony conviction is imprisonment for 15 years
to 99 years, or life) with TEX. PENAL CODE ANN. § 12.42(d) (West 2019) (range of punishment
for first degree felony with two prior felony convictions is imprisonment 25 years to 99 years, or
life). In its brief, the State acknowledges that there is no evidence in the record to support
Appellant’s prior conviction for possession of cocaine 4 as alleged in its Brooks notice and, as a
result, the correct range of punishment the trial court should have considered is imprisonment for
2
Appellant entered an “open” plea of “guilty” without a plea agreement with the State.
3
In the judgment, in the field pertaining to finding on the “Second Enhancement,” there is a notation of
“N/A.”
4
The presentence investigation report contains a “TCIC-NCIC” criminal history report, which references
the conviction that is the subject of the Brooks notice. It references a similar cause number, describes the offense
generally as possession of a controlled substance, and describes the disposition as “GP 3/21/05: 36 months
Probation; Probation Revoked 10/10/05: 6 months NCDC.” We note that a criminal history report has been held to
contain sufficient proof of a prior conviction for enhancement purposes. See, e.g., Jackson v. State, 474 S.W.3d
755, 757–58 (Tex. App.–Houston [14th Dist.] 2014, pet. ref’d). However, because the second enhancement
allegation in this case relates to an out-of-state conviction, the information provided in this criminal history report,
without more, is not sufficient to support the enhancement allegation beyond a reasonable doubt. See TEX. PENAL
CODE ANN. §§ 12.41(1) (West 2019), 12.42(d) (West 2019); cf., e.g., Gibbs v. State, No. 04-18-00002-CR, 2019
WL 7196608, at *6 (Tex. App.–San Antonio Dec. 27, 2019, no pet.) (mem. op., not designated for publication)
(observing that out-of-state conviction shall be treated as third-degree felony if imprisonment in a penitentiary “is
affixed to the offense as a possible punishment”).
2
fifteen to ninety-nine years or life. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e); TEX.
PENAL CODE ANN. 12.42(c)(1).
Discussion
As the State further acknowledges in its brief, the court of criminal appeals held that
when there is insufficient proof to support an enhancement allegation which results in the
factfinder’s consideration of the incorrect range of punishment in making its sentencing
determination, absent discrete, objective facts decided by the factfinder in assessing punishment,
there is no way to quantify what impact the unsupported enhancement allegation had on the
factfinder’s normative sentencing function. See Jordan v. State, 256 S.W.3d 286, 293 (Tex.
Crim. App. 2008) (jury improperly considered enhanced range of punishment with minimum
sentence of twenty-five years; however, because evidence was insufficient to support correct
sequencing of prior convictions, evidence only supported minimum sentence of fifteen years).
Thus, any attempt to calculate how the factfinder exercised this normative function in assessing
Appellant’s punishment necessarily would entail pure speculation. See id. As a result, under
such circumstances, the State’s failure to meet its burden of proof, even if subjected to a harm
analysis, never can be deemed harmless. See id.; Conley v. State, No. 12-21-00109-CR, 2022
WL 3012441, at *2 (Tex. App.–Tyler July 29, 2022, pet. filed) (mem. op., not designated for
publication).
However, the State argues that Appellant invited the error of which he now complains.
The law of invited error estops a party from making an appellate error of an action he induced.
Prytash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999); Pedraza v. State, 69 S.W.3d 220,
224 (Tex. App.–Corpus Christi 2001, no pet.). This rule applies regardless of whether the error
is perceived to be fundamental. See Franks v. State, 90 S.W.3d 771, 781 (Tex. App.–Fort Worth
2002, no pet.); see also Cadd v. State, 587 S.W.2d 736, 741 (Tex. Crim. App. 1979) (op. on
reh’g).
In support of its contention that we should apply the invited error doctrine to the case at
hand, the State cites the court of appeals’ decision in Harrison v. State, No. 10-07-00253-CR,
2009 WL 1579002 (Tex. App.–Waco June 3, 2009, pet. ref’d) (mem. op., not designated for
publication). There, the appellant argued, in pertinent part, that the trial court assessed his
sentence while relying on an incorrect range of punishment. See id. at *2. In considering
3
whether the appellant was estopped from making such an argument under the invited error
doctrine, the court of appeals recounted the following historical facts:
At the sentencing hearing, Harrison’s counsel was the first to suggest that the applicable
punishment range was imprisonment for fifteen to ninety-nine years or life. After a discussion in
which Harrison’s counsel, the State, and the trial court concluded that the second enhancement
paragraph was inapplicable, Harrison’s counsel stated, “Fifteen year minimum instead of twenty-
five.” The trial court then asked Harrison’s counsel, “Minimum fifteen to life or ninety-nine?”
Harrison’s counsel replied, “Yes, sir.”
Id. The court of appeals held that, based on this exchange, the appellant was estopped from
complaining on appeal that the trial court committed fundamental error by basing its punishment
assessment on an incorrect punishment range. See id.
In the instant case, Appellant argues that he is entitled to a new trial on punishment
because the State failed to prove the second enhancement allegation, which resulted in the trial
court’s relying on the incorrect range of punishment in assessing his sentence. However,
Appellant did not apprise the trial court of the error after it became apparent that the State failed
to offer sufficient proof of the second enhancement allegation or when the trial court reiterated
the incorrect range of punishment after the close of evidence. 5 He also perpetuated the error in
his closing argument by stating to the trial court that he was “facing 25-to-life” and asking the
court to “sentence him to the 25 years” when the minimum term of imprisonment Appellant
faced, based upon the evidence and the law, was fifteen years.
Based on our review of the record, we agree that Appellant actively perpetuated and
reinforced the trial court’s consideration of the incorrect range of punishment of which he now
complains on appeal. As a result, we hold that Appellant is estopped from raising his sole issue
on appeal complaining of error he perpetuated at trial. See Prytash, 3 S.W.3d at 531; Harrison,
2009 WL 1579002, at *2. Appellant’s sole issue is overruled.
5
We also note that the trial court never sought to take Appellant’s plea on the Brooks notice enhancement
allegation, and Appellant never objected to the trial court’s failure to do so. See Marshall v. State, 185 S.W.3d 899,
903 (Tex. Crim. App. 2006)) (explaining that defendant must object when he has “notice that the proceedings may
have gone amiss,” and he has this notice when he learns that the State is seeking a higher penalty despite the
enhancement allegations not being read); Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.–Austin 2006, pet. ref’d)
(holding that defendant’s “objection at any point during the penalty stage [was] sufficient to preserve the error” of
not reading the enhancement allegations and taking his plea).
4
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered October 31, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 31, 2022
NO. 12-22-00050-CR
WALTER CHARLES LINK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1475-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481681/ | DANREU, J.
The language employed in the first sentence of the forty-first section of the one hundred and seventy-first chapter of the Code, literally interpreted, *is broad enough to embrace a judgment confessed in the clerk’s office of a court after the court shall have commenced its session.
It declares that “in any suit a defendant may confess a judgment or decree, in the clerk’s office for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for.” The section, however, in its second clause, provides that “the same shall be entered of record by the clerk in the order or minute book, and be as final and as valid as if entered in court on the day of such confession, except, merel3r that the court shall have such control over it as is given by the last section of this chapter,” and by the said last section (the 51st) it is declared that “the court shall have control over all proceedings in the office during the preceding vacation. It may reinstate any cause discontinued during such vacation, set aside any of the said proceedings or correct any mistake therein, and make such order concerning the same as may be just.”
Notwithstanding the generality of the terms used in the first clause of the forty-first section, the fair implication arising from reading the whole of that section and of the fifty-first section together, is, that the judgment is to be confessed in vacation, and that it is to be subject to the same control that is given to the court over all other proceedings in the office had in vacation. Indeed, a consideration of the very nature of the subject, and a reference to our former practice and legislation, would seem wholly to forbid any other conclusion. In receiving the confession of judgment the clerk, pro hac vice, performs the functions of the court—functions, which, in the absence of *176legislative enactments, could have been performed only by the judges or justices in session in their respective courts. Prior to the passage of the act to be found in 2 R. C. 1819, App. 6, chap. 1, whilst the courts could receive a confession of judgment in any stage of *a cause, there was no power in the clerk to take such confession in his office. The result was that a defendant detained in custody for want of bail, though unable to give it, and insolvent, and willing to confess a judgment for the entire demand of the plaintiff, was kept in jail till the session of the court in which the action was brought. In order to relieve insolvent debtors from the long and useless imprisonment which often intervened between the times of their arrest and the sittings of the courts the act just mentioned was passed. I Rob. Pr.(|136, 137. It provides that any person in custody in any civil action, on any original or mesne process, and desirous to avail himself, of the privileges thereby given to insolvent debtors, may confess a judgment in the clerk’s office, at any time during vacation, for the whole amount of the plaintiff’s demand in his writ or declaration set forth and costs, or such part thereof as the plaintiff may be willing to accept a judgment for. Such judgment, so confessed, shall be entered of record by the clerk, shall be final, shall have the same validity as if entered in open court; and the defendant may thereupon discharge himself from confinement in the same manner as if the judgment had been rendered in court.
Had the words ‘1 at any time during vacation” been been omitted the courts could never have construed the statute as intending to allow of confessions of judgment in the clerk’s office during the actual sitting of the court. No good end could have been accomplished, no mischief avoided by such a construction. As has been stated, the evil to be remedied was that persons were often kept in jail in the vacations or intervals between the sittings of the courts by reason of the want of some tribunal empowered to take their confessions of judgment. During the session of the court there could be no need or occasion for the vicegerency of any such tribunal.
'x'These views, aided by considerations of the incompatibility involved in allowing the clerk in his office, to discharge, in the place and stead'of the court, during the session of the court, duties appropriately belonging to the latter, and by the further consideration of the inconvenience and confusion likely to arise from such a practice, would, I am satisfied, have led the courts, in the absence of the words in question from the statute, to a construction restricting confessions of judgment in the office to the vacation. In the acts of 1839-40 (p. 46) and 1842-3 (p. 50) and in the 41st section of chapter 173 of the Code, the legislature have omitted the use of these words. They have said nothing about the vacation. The omission, I am satisfied for the reasons stated, has proceeded from no change of policy in regard to the particular in question.
This view of the provisions of the Code on the subject does not however, as it seems to me, necessitate the conclusion that the judgment in controversy is void.
The appellee Hume charges in his bill, that the judgment was obtained by the appellant by the confession of Hunt, on the 16th day of March, 1858, the second day of the March quarterly term of the County court of Culpeper, in the clerk’s office of the said court before the clerk’s deputy, and while the said court was in session.
The appellant in his answer denies the allegation of the bill, and says that, Hunt being indebted to him by bond (in the sum of $594 13) on the 15th day of March, 1858, he instituted suit upon said bond against said Hunt in the clerk’s office of the County court of Culpeper, before the hour at which the court was accustomed to sit; that said Hunt feeling under some obligation to secure to the appellant the payment of the debt, determined to give him the lien of a judgment; and for this purpose went into the clerk’s office before *the sitting of the court and confessed a judgment before the sworn deputy-—the clerk being then otherwise engaged in said office—for said debt. This confession (he proceeds) was not on the 16th of March, 1858, the second day of the March term, as stated in complainant’s bill, as will appear by reference to a copy of the writ and endorsement filed marked X. The writ is dated the 15th of March, and the copy of the judgment is simply “judgment confessed in office March 15, 1858. ’ ’
There are no other proofs in the cause. It will be seen that there is no proof, nor any direct admission in the answer, that the court did in fact hold a session on the 15th day of March at all. This may, however, I think be fairly inferred from the answer; which at the same time, however, positively avers that the confession took place before the sittingjof the court. And as the appellee charges the confession to have been made on the 16th day of March— the second day of the court—and the appellant avers and proves that it was made on the 15th of March, we are justified, without any reference tó the calendar, in concluding from the pleadings, that the confession was made on the first day of the term before the court commenced its session.
No objection was made to the judgment in the argument here, because of its having been confessed before the deputy clerk instead of the clerk, and the fact cannot, I apprehend, operate any prejudice to the judgment, it being provided by the 8th section of chapter 163, of the Code, that the deputy “may discharge any of the duties of the clerk.”
The confession being in all other respects regular, the simple question for decision is: whether the fact, that the 15th of March was the day fixed by law for the commencement of the term of the court, of itself, or aided by the further fact that the *177court sat on that day, ^renders void a confession of judgment made in the clerk’s office, on the morning of that day, before the court was opened.
For some purposes the term of a court and the time appointed by law for the holding of the court have the same legal import and meaning. Thus the law may require process to be returned, pleadings to be filed, notices to be given, or other steps to be taken, a certain number of days before a given term of the court. A party of whom such a requirement is made, has no right to wait till the time for holding the court arrives, and then if for any cause the court is not held, avail himself of the omission to hold it as an excuse for not having performed an act which the law required to be done a certain number of days before the court could have been opened. In such cases the day on which the act is to be done is fixed by reference to the named term of the court with as much certainty as if it had been designated by its place in the calendar.
In other instances the word “term” is considered as meaning not the stated time when a court should be held, but the actual session of the court. Thus, in the 28th section of the 169th chapter of the revised Code of 1819, it is provided, that when any prisoner committed for treason or felony shall apply to the court the first day of the term by petition or motion, and shall desire to be brought to his trial before the end of the term, and shall not be indicted in that term, unless it appear by affidavit that the witnesses against him cannot be produced in time, the court shall set him at liberty upon his giving bail to appear at a day, to be appointed, of the succeeding term. That every person charged with such crime who shall not be indicted before, or at the sec- . ond term after he shall have been committed, unless the attendance of witnesses against him appears to have been prevented by himself, shall be discharged from his ^imprisonment, if he be detained for that cause only; and if he be not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime, unless such failure proceed from any continuance granted on the motion of- the prisoner, or from the inability of the jury to agree on their verdict. In the case of Santee, 2 Va. cases 363, the prisoner was remanded for trial bj' the examining court in July, 1822; at the October term of the Superior court that court did not sit; at the May term succeeding the cause was continued for the Commonwealth ; and at the third term in October, 1823, the court failed to sit; and the question to be decided by the general court was whether under the act aforesaid the prisoner was entitled to be forever discharged of the crime; and this question turned on the meaning of the word term as used in the act. The minority of the judges, speaking, through Judge Parker, held that in common parlance the term of a court meant the period assigned by law for the holding of the court; and that this was the sense annexed to it by the legislature. That the word was employed in this sense in reference to all three of the terms of the court mentioned in the act. That though, to entitle a prisoner to bail if not indicted the first term, it was necessary there should be a court long enough to enable the prisoner to make an application to be bailed, that being a preliminary step, it did not follow that court and term were used by the legislature in the passage relating to the first term, as synonymous. And that in respect to the second and third terms, no application by the prisoner to the court at either of said terms, was required in order to entitle him to the rights and privileges growing out of the failure of the Commonwealth to indict him at the second, and to try him at the third term after his examination; and that it was clear beyond all doubt that the word term in the passage relating *to the second and third terms was intended to mean the stated time for
holding the court; and that three terms having passed without a trial, the prisoner was entitled to his discharge. On the other hand Judge Dade, in delivering the opinion of the majority of the judges, said, “If the word term had a fixed and definite meaning in all cases whatsoever, this court would probably never have had to decide this question. But upon reference to the books we can derive no satisfactory conclusion from them. An author indeed (Jacobs’ Daw Dictionary title Term) defines the terms as ‘those spaces of time wherein courts of justice are open for all that complain of wrongs and injuries and seek their rights by course of law and action in order to their redress ; and during which the courts in Westminster Hall sit and give judgments &c.’ And this definition favors the construction which would make them synonymous with courts. But it cannot be denied that in common parlance in some of the statutes and amongst the law writers the word has been often indiscriminately used to express the actual session of the court, and the stated time when it should sit. This gives room for construction, and imposes the necessity of enquiring into the reason of this law; of considering the word in the context and comparing the relative provisions of the section, so as to ascertain the sense in which the word was used by the legislature in this particular law; and upon the result of this enquiry the decision of this question turns.” Proceeding to examine and comment on the several clauses of the section, he came to the conclusion, that in each of the passages in which the word was used it was intended to denote not the time appointed for the holding of the court, but the actual sitting of the court; and that as there was no court either at the first or third term, there had been no failure to try the prisoner at the third term in *the true meaning of the statute ; and that the prisoner had shown no right to his discharge; and the court accordingly refused to discharge the prisoner.
In speaking of the operation and force of *178judgments in reference to the times at which they were rendered, it is often said by judges and text-writers, that at the common law the whole term is regarded as but one day, and that all the judgments therein relate to the first day thereof, and overreach all intermediate conveyances of the debtors’ lands. Yet there are several well recognized exceptions to this rule. And Judge Green, in delivering the opinion of the court in Coutts v. Walker, 2 Leigh 268, expressed the opinion, that the exceptions might well apply to all cases in which it appeared that the plaintiff’s case could not be matured for judgment on the first day óf the term. And in the case of Skipwith v. Cunningham, 8 Leigh 271, it was held that the term of a court was not to be considered as necessarily commencing on the day appointed by law for its commencement; and a deed admitted to record on the day appointed for commencing a term, but before the day on which the court actually commenced its session, was adjudged to be unaffected by the lien of a judgment rendered during the term. Judge Tucker in delivering the opinion of the. court said— “But admitting that the judgment relates back to the first day of the term, I cannot pursttade myself that we ought to consider the term as commencing bn the day appointed by law for its commencement, although in point of fact the court was not held until'the third day afterwards. There is no analogy between such a case and the session days of the .terms in the English courts; and the extension of the 'fiction of relation to embrace a period when the court was to no intent whatever in session, would b.e unreasonable and without precedent. I should certainly be averse to any such extension, having in fact very *great doubt of the wisdom of the fiction at best; and as there is no precedent to bind me I shall not be the first to make one. I shall consider the judgment as relating back to the first day of the term and the first moment of that day ; but I look upon the day on which the court commenced its session as being the first day of the term.”
Consistently with this, and as was to have been naturally expected from the correlativeness of the words, we find that there is a like want of uniformity in the meaning attached to the word Vacation, and that it is employed indiscriminately in several different senses. Jacobs in his Law Dictionary, (title Vacation), defines it as being “all the time between the end of one term and the beginning of another; and,” he adds, “it begins the last day of every term as soon as the court rises.” Burrili (title Vacation) speaks of it as the “intermission of judicial proceedings—the recess of courts—■ the time during which courts are not held. ” And he also quotes the definition of Jacobs.
Thus, where we look to its own appropriate definition, or seek to deduce its meaning from the use made of its correlative by the law writers, it would seem that there is not attached to the word vacation, a well ascertained, fixed, single, unvarying, technical meaning which is to control the interpretation of a statute in which the word has been employed; but that, on the contrary, there are several well received meanings of the word, from which it is our duty to select that, which, looking to the whole scope and true purpose of the law, will most probably carry out the intention of the legislature.
In view of the evil sought to be cured by the act of 1819, to wit, the useless and unnecessary imprisonment of debtors, we can see no reason for supposing that the legislature in framing the law of 1819 intended to leave an interval in which a party detained for want of bail *could not confess judgment either in the clerk’s office or in court. And as the language of the statute readily admits of an interpretation extending the period during which the clerk may take confession in his office, to the commencement of the actual sitting of the court, no reason is perceived why we should not adopt that interpretation. It is true that since the abrogation of our system of laws relating to bail, the argument against the intention of the legislature to allow of such an interval in the present law, is without one of the grounds on which it formerly rested. Nor, however, (it may with equal propriety be said), is there the same necessity now for allowing judgments to be confessed in the clerk’s office at all. Yet they are allowed, doubtless from considerations of public convenience, and as there is clearly in the new law continuing the indulgence, nothing to narrow or abridge the limits of the period within which the confession of judgment may be made in the office, there is obviously no rule of construction which would require us to contract the boundaries of such period.
The argument of incongruity in allowing judgment to be entered, both iñ the clerk’s office and in the court on the first day of the term, may be urged with equal force against allowing the like state of things to occur on the last day of the term; yet according to the authority ' already cited (Jacobs) the vacation begins the last day of the term as soon as the court rises. In this view of th.e law a judgment confessed in the clerk’s office on the last day of a term after the court has closed its session, would be as valid as if entered in court on the same day; and this being so, what reason have we for declaring that a judgment entered in the office on the first day of the term before the court has commenced its session, shall be void?
According to our practice there is no legal incompatibility *or absurdity in the same judge’s sitting and rendering judgments in two courts on the same day. In such cases it has not been supposed by our judges that, in order to give full efficacy to the orders and judgments of either of the two courts, it was necessary to vacate the orders and judgments of the other. The circuit court law of 1819, (see Revised Code of 1819) required that each of said courts should sit until the business thereof was dispatched, unless the judge *179holding the same should he compelled to leave the court in order to arrive in time at the next succeeding court of his circuit, or at the general court. And the general court law, 1 Revised Code 219, required said court to be holden at the capitol in the city of Richmond twice in every year, namely, on the 15th of June and 15th of November. In Mendum’s case, 6 Rand. 704, judgment passing sentence of death on the prisoner, was rendered by the Superior court of Chesterfield on the 15th day of November, the day for holding the general court. The jurisdiction of the Superior court of Chesterfield was sustained and its judgment affirmed by the general court. That court held that if the judge of the Superior court of Chesterfield, after closing that court on the 15th of November, did arrive or could arrive at the capitol at any time on the same day, he would have been, in the meaning of the act, in time to hold a general court on that day; and that as it did not appear that, when the judgment was rendered in the Superior court of Chesterfield, there was not time for the judge to arrive at the general court during the 15th, it would be presumed that there was; Chesterfield court house being distant from the capitol only a three hours’ ride; and that there was no ground shown for vacating the judgment of the Superior'court. Judge Bouldin, in delivering the opinion of the court, said that some of the judges of the court were in the habit of finishing the business of one ^Superior court in the morning of the first day of the next succeeding Superior court, and sometimes of doing a good day’s business in the latter court on the same day. A like habit prevails under our present system. Members of this court have not unfrequently sat in the district courts of appeals with judges of the Circuit courts on the same days on which the latter had closed the session of one of their Circuit courts.
It is not believed that any inconvenience or confusion has resulted from this practice. It does not violate, or run counter to, any conceivable policy of the law, whilst its obvious effect is to promote the dispatch of the business of the courts. The argument by analogy in favor of upholding the judgment in controversy seems to me to apply with great force, and to stand without any sufficient answer. And upon the whole I am for reversing the decree of the Circuit court, and for rendering a decree declaring the judgment aforesaid to be valid, dissolving the injunction, and remanding the cause for further proceedings.
The other judges concurred in the opinion of Daniel, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481682/ | ROBERTSON, J.,
delivered the opinion of the court:
The returns having been made without .reference to the recent act of Congress suspending the privilege of the writ of habeas corpus in certain cases, and the respondent not asking leave to amend them and rely upon -that act; but on the contrary stating that he asserts no right under it to hold the petitioners in custody; the court does not consider it necessary to decide any question which might arise under said act, and will proceed to consider these cases irrespective of it.
Although this court has, more than once, acted upon questions arising under the acts of Congress approved on the 16th day of April 1862, and on the 27th day of September 1862, commonly called the conscription acts, it has never until now been called on to decide upon their constitutional validity, that having been heretofore either expressly or tacitly conceded. But the question, whether Congress had the power, under the constitution, to pass said acts, is now raised: and, as it is of the highest public importance, it is proper that it should receive the most careful and deliberate examination. In deciding it, considerations of expediency and policy cannot be permitted to control our judgment. We must expound the constitution according to what appears to be its true meaning; and if it be clear that no power to pass the acts in question has been conferred by it, we are bound to declare them void and of no effect, however disastrous may be the consequences of our decision.
*It is said that Congress cannot, under the grant of the power to raise armies, place, by force, and at their own discretion, the citizens of a state in the ranks of the army of the Confederate States. That a power so to do, would be despotic in its nature, and far greater and more dangerous than any possessed by the government; subjecting as it does the personal freedom of every citizen to arbitrary discretion : and moreover that it would be inconsistent with the rights of the state; putting their very existence at the mercy of the Confederate government. That a mere general grant of the power to raise armies, without specifying the mode in which they are to be raised, cannot be held to confer an authority so repugnant to the spirit of free institutions, the principles on which our constitution rests, and the rights secured by it.
The power of coercing the citizen to render military service, is indeed a transcendent power, in the hands of any government; but so far from being inconsistent with liberty, it is essential to its preservation. A nation cannot foresee the dangers to which it may be exposed: it must therefore grant to its government a power equal to every possible emergency; and this can only be done by giving to it the control of its whole military strength. The danger that the power may be abused, cannot render it proper to withhold it; for it is necessary to the national life. The hazard of abuse should be guarded against by so framing the- government as to render it unlikely that it will ever use the power oppressively.
The real question for our consideration, then, is not whether the power exists, but where it exists. Has it been conferred on the Confederate government, or is it retained by the states? In its effects upon the individual personally, the act of compelling him to render the service is the same whether it is performed 'by the state, or by the Confederate government. The question *as to .which of them should exercise the authority relates merely to the proper distribution of political power between the two governments. And the idea that first suggests itself is that it ought to be placed in the hands of the one which is charged with the duty of providing for the defence of the country; for a government “from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.”
The clauses of the Confederate constitution relating to the military power, and its exercise, have been adopted without change from the constitution of the United States, the amendments to the latter being inserted in the body of the former. Whatever therefore throws light upon the meaning of the constitution of the United States, on this point, throws equal light upon the meaning of ours.
It is well known that the union of the colonies was formed for the purpose of combined resistance to the oppression of the mother country. Delegates from the several colonies, constituted a Congress which assumed the conduct of the war, in the name and on behalf of all the colonies, which soon became the United States of America. But the Congress could exercise the power of compelling citizens to serve in the army only through the intervention of the states, by means of requisitions upon them for their respective quotas of men; and, being *181unable to enforce compliance with these requisitions, it was found impossible to raise an army sufficient for the vigorous prosecution of the war. This difficulty, which had been so painfully felt throughout the contest, and which, indeed, put to serious hazard the success of the cause, was one of the chief reasons urged in favor of the change of the form of government effected by the adoption of the constitution of the United States. It was insisted that the government having the power of determining on peace and war, and ^charged with the duty of providing for the common defence, should be invested with power commensurate with that end, and that this could only be done by abandoning the system of requisitions upon the States, and authorizing the Federal government to act directly upon individuals. These views prevailed, the constitution being framed in accordance with them.
It will be observed that a broad distinction is made in the constitution, between the “militia,” and the “armies,” referred to in it: the powers conferred upon Congress, and denied to the states, in reference to the one, being widely different from the powers con-' ferred and denied in reference to the other. And, indeed, the two words could not properly have been used to convey the same idea. An army is a body of men whose business is war: the militia a body of men composed of citizens occupied ordinarily in the pursuits of civil life, but organized for discipline and drill, and called into the field for temporary military service when the exigencies of the country require it.
The experience acquired during the revolutionary war had demonstrated, what indeed all previous experience had taught, that however valuable a militia may be, it is unable to contend permanently and successfully with veteran troops; and that it would be to the last degree unsafe to trust to it exclusively for the defence of the country. It was well known that a regular army would be absolutely indispensable in a protracted contest with a powerful nation. Accordingly, in spite of the jealousy, inherited from their English ancestors, against standing armies, the framers of the constitution gave to Congress the power “to raise and support armies.” There is certainly nothing in the terms of the grant to restrict Congress to voluntary enlistments as a means of raising armies. Nor does any sufficient reason appear why such restriction should have been imposed. The experience *of the revolution had shown that it was necessary to resort to compulsion to fill the ranks of the army. This compulsion had not, it is true, been applied by the Federal government; but that was because it had no power to resort to it, being confined to requisitions upon the states. The states had the pow'er: and, in compliance with the requisitions made upon them by Congress, continually exercised it, not for the purpose of bringing out the militia merely, but for the purpose also of filling the ranks of the regular army when voluntary enlistments fell short of the number ‘to be furnished for it. See Marshall’s Life of Washington, vol. 4. p. 241.
Instances of such legislation are to be found on the statute book of the State. In May 1777, an act was passed “For the more speedily completing the quota of troops to be raised in this commonwealth for the continental army, and for other purposes:” in which it was provided that if, before the 10th day of August 1777, a sufficient number of men should' not'have enlisted to make up the quota required, the deficiency should be made up by draughts from the militia; and that each man, so draughted, should “be to all intents and purposes, considered as a regular soldier;” and should serve as such, for three years, if the war should so long continue. See 9 Hen. Stat. at large, p. 275. See also the same volume of Hen. p. 337, and vol. 10 Id. pages 82, 214, 259, 333; and vol. 11 Id. p. 14, for instances of similar legislation. Other instances might doubtless be pointed out; but these are amply sufficient to put it beyond controversy that compulsory draughting was an ordinary means used for filling the ranks of the regular continental army. This, of course, was well known to the framers of the constitution of the United States. If it had been their design to restrict Congress to voluntary enlistments as the means of raising armies, is it at all probable that they would have failed so to declare "x"in express terms? In granting the power “to raise armies,” without any words of limitation or restriction as to the mode to be employed, they must be understood ‘as intending that the power should be exercised in any and all of the modes w’hich had been previously employed by the States. Full power to make war was vested in the Federal government. Of course it could not have been intended, if an offensive war, necessary for the assertion of the rights or vindication of the honor of the countrjq should be undertaken, to withhold from the government the means of prosecuting it with success, by denying to it the use of any troops, except such as might be obtained by voluntary enlistment. Yet this was done, if the power to use compulsion to fill the ranks of the army was not conferred on Congress; for the militia can be called out only for the purpose of executing the laws, suppressing insurrections, or repelling invasions.
But it is said that it does not appear that any objection was made, at the time of the adoption of the constitution of the United States, to the clause granting the power to raise armies, on the ground that it gave to Congress the power of conscription; and that it is incredible that a power so vast and dangerous would have passed without objection, if it had been then supposed to be possible that it would ever be claimed by anjT one that such power was conferred. It will hereafter be shown that the failure to make the objection may be accounted for on other grounds than the one suggested; *182but however this may be, it is entitled to not the slightest weight in determining the construction of the constitution of the Confederate States. When that constitution was adopted, it was well known that the power in question had been asserted to exist, under the constitution of the United States, by many statesmen whose opinions *had always been received ■ with the utmost respect, especially in the southern states of the late union.
In October 1814, Mr. Monroe, who was then Secretary of War under the administration of Mr. Madison, addressed a letter to Mr. Troup of Georgia, as chairman of the military committee of the house of representatives, in which he proposed four different plans for organizing the forces of the United States. The first of these plans, and „the' one for which he expressed his preference, proposed that the army should be raised by draught from the free male population of the United States, between 18 and 45 years of age; and he entered into a full examination of the question as to the constitutional right of Congress to compel citizens to serve in the army; coming to the conclusion that there was no doubt of the existence of such right. Mr. Troup, as chairman of the committee on military affairs, reported a bill in conformity with the first plan recommended by Mr. Monroe; but it was never acted upon; a bill upon a different plan having been passed by the senate and sent to the house, where it was amended in certain particulars, in reference to which no agreement was had. between the house and senate, when the treaty of peace with Great Britain rendered the passage of any bill unnecessary, and the 'whole subject was dropped. But the proposition of Mr. Monroe to raise men by conscription (as it was then designated) led to much discussion, in which the right was earnestly asserted by some, and as earnestly denied by others; those asserting it belonging generally to the states rights party. See Annals of Congress (13 Cong. 1814-15, vol. 3).
This is not referred to as settling conclusively the true construction of the constitution in this particular; but it shows that the framers of the constitution of the Confederate States did not agree in opinion with those who think that the power in question is fraught with *danger to the liberties of the citizen or the rights of the states, or they would have taken care to use language which would leave no doubt that they did not intend to confer it, instead of retaining that which had been construed, by many of the wisest statesmen under the government of the United States, to give it.
But it is impossible that it could have beeii supposed, at the time of the adoption of the constitution of the United States, that it would never be claimed by any one that it conferred this power; for such was the construction of the constitution in the papers of the federalist, written with the view of inducing the people of the states to adopt it; and recommending it to them because it invested the federal government “with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the support of an army and navy, in the customary and ordinary modes practised by other governments. ” Federalist, No. 23. See also, Id. from No. 23 to No. 28, inclusive.
The failure to make special objection, at the time, because of the grant to Congress of the power of conscription is not surprising. There was no serious reason to apprehend that a government designing to overthrow the liberties of the people, would raise an army for the purpose, by a conscription of the very people whose rights were to be assailed; and it was obvious that if it should have the folly to do so, the army, when raised, would be the most efficient instrument that could be devised, for the defeat of the object in view. The danger really apprehended, from the grant of the power to raise and support armies, was that the federal government would be enabled to raise and keep in its pay an army of mercenary troops with no interests in common with the people; which might be used for the overthrow of their liberties and the destruction of the ^rights of the states. It was to this danger that the objections pointed. It was guarded against.by adding to the grant of the power to raise and support armies, a proviso that “no appropriation to that use should be for a longer period than two years ;” thus requiring the consent of every new Congress to the continuance of an appropriation for the support of the army. It was not deemed safe to go further than this in limiting the power of Congress on the subject. A proposition to limit the number of the army to be raised was rejected, because it was impossible to foresee what number the exigencies of the country might require. The objection to permitting a standing army to be kept up in time of peace was disregarded, because, when it was conceded that armies were necessary to protect the country from foreign aggression, it was manifest that it would be unwise to withhold the power to raise them until after hostilities had actually commenced. When it was resolved that the federal government should be entrusted with the common defence, it followed, as a corollary, that it ought to be “invested with all the powers requisite to the complete execution of the trust.” It was wisely determined therefore “that there should be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy; that is, in any matter essential to the formation, direction, or support of the national forces.” Fed. No. 23. As has been already stated, experience had shown that the exercise of the power of compulsion was necessary to raise an army of sufficient size for the necessities of the country in time of war. It had been habitually applied by the states in the war-from which the country had just .emerged. What then could be more natural or proper *183than to entrust this power to the Pederal government along with the other war powers confided to it? Why should it be excepted from the *grant? Such exception would be opposed to the principle on which the grant was founded; apd might, at a time of critical danger to the country, render ■ the grant itself nugatory. The power to raise armies by conscription is less dangerous to the liberties of the people, than is the power of raising them by voluntary enlistment. An improper exercise of the power of conscription could not fail to excite at once the indignant opposition of the people; while an army might be improperly increased by voluntary enlistment without attracting much popular attention; and one thus raised would, as has been shown, be much more dangerous to the rights of the States, and the liberties of the people, than the one raised by conscription.
It is said, however, that the absence of a provision requiring the power of conscription to be exercised equally and uniformly, shows that it was never designed to be conferred upon Congress; for, without some such limitation, Congress may act most unjustly and oppressively, distributing the burden of raising an army unequally between the different states; and that any state is liable to have its whole armsbearing population withdrawn from it, and carried off, to any part of the world, in the ranks of the army.
To this it may be answered that this power, like all others, is unquestionably liable to abuse; though it does not seem probable that the attempt would ever be made to abuse it in the manner suggested. The protection against its abuse in this, or any other manner, is to be found in the responsibility of Congress to the people, ensured by their short tenure of office; and in the reserved right of each state to resume the powers delegated to the Confederate government, whenever, in her judgment, they are perverted to the injury or oppression of her pepple.
Again, it is objected that if the authority to raise ^armies gives to Congress the right to compel citizens to serve as soldiers, it embraces the whole war power, so far as relates to the raising of men ; and not only renders the provisions in reference to the militia supererogatory, but enables Congress to destroy the militia itself, by absorbing into the army all the men who compose it. And it is argued that it must therefore be inferred that the right of conscription does not exist; as it cannot be supposed that it was intended to confer power upon Congress to destroy the militia of the states.
It is true that the constitution does recognize the militia, and provide for using it, as well as regular armies, in the military service of the country. A well regulated militia has (as is, stated in one of the amendments) always been regarded as necessary to the security of a free state. It was therefore proper that provision should be made-in the constitution for its organization, and for the authority to be exercised over it by the state governments and Congress respectivelj'. It was not probable that in the exercise of the power to raise armies, Congress would, under ordinary circumstances, materially diminish the number of the militia. But it cannot be true that, with the view of presérving the militia entire, it was intended to deny to Congress the right to take individuals belonging to it for the regular army. This construction would prevent Congress from obtaining from its ranks not only conscripts but volunteers also; and as the militia embraces the whole armsbearing population, it would render it necessary that the army should contain none but foreigners hired for the purpose, and having no interest in common with the people of the country. No one can imagine that such was the intention of the framers of the constitution.
The true interpretation of the constitution in reference to this matter would seem to be, that the power to use the whole military force of the country was conferred *upon Congress, and it was left to their discretion to fix, as the varying necessities of the country might require, the relative proportion of regular troops and militia to be employed in the service. If it should appear at any time to be proper to increase the army, it might be done by taking men from the militia either as volunteers or as conscripts—the action in either case being upon the individual citizen, and not upon the militia as an organized body. As it was impossible to foresee how large an army the exigencies of the country might demand, the number of militiamen to be thus transferred to its ranks was wisely left to the discretion of Congress. It may be difficult to say to what extent Congress have the right, in the exercise of this discretion, to affect the militia, as an organized body. It is sufficient for the purposes of this decision to see, as we do, that neither of the acts of Congress, the validity of which has been called in question, does destroy or impair the organization of the militia; construing them, as it is proper that they should be construed, in connection with the exemption acts which are in pari materia. It will be time enough, when a case is brought before us in which the organization of the militia is destroyed or impaired by Congress, to enquire what limits are fixed to their action in this respect.
It is further, objected that if Congress have the right of compelling citizens to serve in their armies, the state governments are at their mercy, and exist at their will: that they may conscribe all of the officers of the state, executive, legislative and judicial; and thus put a stop to the action of its government. This objection is without foundation. Congress can have no such power over state officers. The state governments are an essential part of our political system; upon the separate and independent sovereignty of the states the foundation of our confederacy rests.
*184All powers not delegated to the *Confederate States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people thereof; and the Confederate States guarantee to each state a republican form of government.
It is absurd to suppose that the government of the Confederate States can rightfully destroy the governments of the states which created it; and all the powers conferred on it must be understood to have been given with the limitation that, in executing them, nothing shall be done to interfere with the independent exercise of its sovereign powers by each state. Congress can have no right therefore to deprive a state of the services of any officer necessary to the action of its government. And the state itself is the sole judge as to the officers that are necessary for that purpose.
But it is said that this is not enough to satisfy the rights and duties of the state as a sovereign. That each state has the right to command the services of all her citizens, and on the other hand is bound to afford them protection. That this right and duty are both interfered with by the exercise of the power of conscription by Congress; for by it the citizen may be dragged from his home and forced into the army, for service perhaps in a foreign land, against the wish of the state to which he belongs.
If, however, the power in question has been conferred upon Congress by the constitution, it is a mistake to say that it can be exercised without the consent of the states. For each state by ratifying the constitution gave her consent. We are brought again to the enquiry, is the power granted to Congress by the constitution? For the reasons already indicated we think it clear that it is. And it was wisely granted; for the rights of the states and liberties of the citizens can be much more effectually asserted and defended than they could possibly be if the power had been withheld.
*The objectipn that the states have been deprived of the power of appointing the officers is founded on the mistake of regarding the forces called out as “the militia.” They are not militia, but an army; created under the power given to “raise armies.” Not, it is true, a standing army to be kept up in time of peace, but a provisional army, brought into the field for service during the existing war. No power is reserved to the states, by the constitution, to appoint officers of the army, whether it be regular or provisional.
Fastly, it is objected to the acts under consideration that Congress do not themselves exercise the power of raising an army, but delegate it to the President.
We do not think that they are susceptible of any such interpretation. They delegate no authority to the President to raise an army; but merely authorize him to call out and place in the field the army raised under and by the laws. There can be no valid objection to the discretion given him to call out from time to time, as the necessities of the country might demand, those made liable to service by the laws. It was, on the contrary, eminently proper that, as commander in chief, he should be invested with such discretion.
For the foregoing reasons we are of opinion that the objections which have been taken to the constitutional power of Congress to pass the acts in question are not well founded, and that said acts should be sustained and enforced.
The next question for our consideration is, whether Congress possessed the constitutional power to pass the act approved on the 5th day of January 1864, entitled, “An act to put an end to the exemption of those who have heretofore furnished substitutes.” It is insisted that the government, in permitting substitution, entered into a contract with each individual in whose stead a substitute was accepted, that he should not *(except in certain contingencies specified in the regulations made by the Secretary of War), be required to render military service, during the period of time for which the substitute was put in; and that the law in question is unconstitutional and void because it violates this contract. The constitution of the Confederate States provides that no state shall pass any law impairing the obligation of contracts; but does not impose any restriction upon the power of Congress in this respect. It is insisted, however, that the omission to prohibit expressly the passage of such laws by Congress, resulted simply from the belief that such prohibition was unnecessary; and does not authorize the inference that Congress have the power to pass them. That if any legislature can violate its contracts, it is because of its unlimited powers, and its being beyond the pale of being questioned in any of its tribunals. That the Confederate government exists only by virtue of powers conferred on it; and, as no power has been granted it to break any engagement it may enter into, it has no right to break a contract which it has a constitutional right to make.
On the other hand it is said, that though it be true that the Confederate government has no right to exercise any power which has not been granted, yet that if, in the exercise of a granted power, a law should be passed impairing the obligation of a contract, such law will be valid and cannot be set aside by the courts. In support of this position they compare the clause of the constitution declaring that no state shall “pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts,” with the clause which declares that “no bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves, shall be passed” by Congress; and they argue that it cannot be supposed that the words “or law impairing *the obligation of contracts” would have been omitted from the latter clause, if it had been intended that the power of Congress over1 *185contracts should be as restricted as that of the states.
In the view we take of the matter before us, it is unnecessary to decide the question as to the extent of the power of Congress in this respect, and we express no opinion upon it. If the privilege of substitution had been granted upon a valuable consideration paid directly to the government, Congress would have a right to put an end to the exemption granted by reason of it, whenever in their judgment the situation of the country became such as to render it proper that the party should be again required to serve in the army. The arrangement of substitution cannot be made to extend further than to discharge the person putting in the substitute from the liability to which he is then subject under the existing law. No contract entered into by Congress can be enforced or sustained, unless it appear that the power to make such contract has been conferred by the constitution. No power has been granted them to agree that any person, liable to render military duty, shall be exempted, for any fixed time, from such liability, under any and every call for troops which the necessities of the country may require to be made. The obligation of the citizen to render military service is a paramount social and political duty. It is a matter in which the whole body politic is interested. “The citizens have a right collectively and individually to the service of each other to avert any danger which may be menaced. The manner in which the service is to be apportioned among them and rendered by them, is a matter for legislation.” The government, as the agent and trustee of the people, is charged with the whole military strength of the nation, in order that it may be employed so as to ensure the safety of all.
The power which it has to enforce the ^performance of the obligation to render military service is given that it may be used, not abdicated. No right has been conferred on the government to divest itself, by contract or otherwise, of the power of employing, whenever and as the exigencies of the country may demand, the whole military strength that has been placed at its disposal. As the nature and extent of those exigencies cannot be foreseen, and it is impossible to say in advance that the services of every citizen capable of bearing arms may not become indispensable for the defence of the country, the government has no right to enter into anjr contract precluding itself from requiring those services if they should be needed. If there be such right, the spectacle might be presented of a nation subjugated and destroyed at a time when it has within its limits citizens amply sufficient to defend it successfully against all the assaults of its enemies; but whose services, cannot be commanded because, forsooth, the government has contracted with them that they shall not be required to serve in the army.
It may possibly be said that our protection against this danger is to be found in the reserved concurrent power of the states to employ their military strength for the defence of the country. This might perhaps lessen our danger, but it does not meet the argument. The proposition is that the government of no nation can abdicate, or bind itself not to exercise, any part of the power entrusted to it for the defence of the community. And it cannot be supposed that it was intended, under our system of government, to confer the right upon congress to strip themselves of their power, and trust to the irregular, uncertain and tardy action of the several states to bring out the military force of the country.
It may be said also that the case supposed is an extreme one; and that it is not at all probable that any government would ever enter into contracts depriving *itself, to such an extent, of the right to exercise the powers with which it is invested. It is true that the case supposed is an extreme one, not likely to arise even if the right in question were possessed by governments. But it tests the principle. In determining the powers of governments we ought not only to look to what will probably be done, but we should look also to what may possibly be done under them.
No government can have the right to endanger the life of the nation it represents, by contracting that it will not exercise the powers confided to it. Tor a proposition so obviously true it can hardly be necessary to cite authority; but the authorities are ample to show that in less important matters than that of military defence, “a legislative bodj* cannot part with its powers, by any proceeding, so as not to be able to continue the exercise of them,” and if any attempt be made to do so the act is null and void. “It can and should exercise them, again and again, as often as the public interests require.” “It cannot abridge its own legislature power, by making permanent and irrepealable contracts in reference to matters of public interest.” East Hartford v. Hartford Bridge Company, 10 How. U. S. R. 511; Goszler v. The Corporation of Georgetown, 6 Wheat. R. 593. In the case of The Ohio Life Insurance and Trust Company v. Debolt, 16 How. U. S. R. 416, in which the question was as to the validity of a state law, Chief Justice Taney says, “The powers of sovereignty confided to the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good; and no one legislature can by their own act disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body, unless they are authorized to do so by the constitution under which they are elected.”
*We think therefore that if it appeared that congress had attempted to make a binding and irrepealable contract to exempt from liability to all subsequent calls for military service those who put in substitutes, during the time for which they were put in, such contract would be *186void because of the want of power in congress to make it. But there has been no attempt 'to make any such contract. Exemption from future liability on the part of a citizen to render military service at the call of the country, is not a subject matter of contract, within the meaning of the clause of the constitution prohibiting the passage of any law impairing the obligation of contracts. By the term “contracts” in that clause it is not meant to include rights and interests growing out of measures of public policy. Acts in reference'to such measures are to be regarded as rather in the nature of legislation than of compact, and although rights or interests may have been acquired under them, those rights and interests cannot be considered as violated by subsequent legislative changes which may destroy them. Whatever in the nature of a contract could be considered to exist, there must be implied in it a condition that the power is reserved to the legislature to change the law thereafter as the public interest may from time to time appear to require. In delivering the opinion of the whole court in the case of Butler v. Pennsylvania, 10 How. U. S. R. 416, Mr. Justice Daniel says, ‘ ‘The contracts designed to -be protected by the tenth section of the first article of the Federal constitution are contracts by which perfect rights, certain, definite, fixed private rights of property are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or state government, for the benefit of all, and from the necessity of the case, and according to universal understanding to be varied- or discontinued as the public good may require.” Accordingly it was *held in that case that an appointment to a public office which by the existing law of the state was to be held for one year with a fixed per diem compensation, does not amount to a contract by the state thus to employ and pay the officer during the year. So that a law repealing the one under which the officer went in, and directing that the office should be vacated before the expiration of the year, and that the officer, in the meantime, should receive a smaller per diem compensation than he was entitled to under the law, by virtue of which he was appointed, was held to be valid; and the officer who continued to discharge the duties of the office, from the day fixed by the lat-. ter statute for the reduction of his compensation, until the day when the office was vacated, was held to ■ be entitled to the reduced compensation only, and not to that fixed by the statute under which he received, his appointment. See also East Hartford v. Hartford Bridge, 10 How. U. S. R. 511; and the opinion of Mr. Justice Campbell in the case of State Bank of Ohio v. Knoop, 16 How. U. S. R. 369, 405. So, divorces granted by the legislature of a state do not (according to the great preponderance of-authority, and as we think in accordance with sound principle) impair the obligation of contracts, within the meaning of the constitutional inhibition; because marriage, although usually denominated a contract, and certainly one in some senses, is also a status or civil relation, and therefore subject to legislative control. Bishop on Mar. and Div. jj 771 to § 775. Where a seizure was made by a revenue officer, under a promise, contained in a law of the United States, that on conviction he should share the forfeiture; and a condemnation was regularly had adjudging the forfeiture to have been incurred, it was held that a discharge of the forfeiture by the Secretary of the Treasury, without making compensation to the revenue officer, who had incurred trouble and expense *in making the seizure and procuring the condemnation, was no violation of vested rights, or impairment of the obligation of a contract. United States v. Morris, 10 Wheat. R. 246. See also the cases of The State Bank of Ohio v. Knoop, 16 How. U. S. R. 369; The Ohio Life Insurance and Trust Company v. Debolt, Id. 416; Alexander v. The Duke of Wellington, 2 Russ. & Myl. 35, 6 Cond. Eng. Ch. R. 383; The Elsebe-Maas, 5 Chr. Rob. Adm. R. 155. For the marked distinction between an engagement to render military service and a contract, the cases of The United States v. Cottingham, 1 Rob. R. 615, and The United States v. Blakeney, 3 Gratt. 405, decided by our own court may be referred to. To-borrow the language of Mr. Justice Campbell in the case of The State Bank of Ohio v. Knoop, and apply it to the cases before us: “A plain distinction exists between statutes which create hopes and -expectations, and those which form contracts.” Congress allowed exemptions from military service to those who furnished substitutes, “on existing considerations of policy, without annexing restraints on their will, or abdicating their prerogative, and consequently are free to modify, alter or repeal .them. ”. Whatever therefore may have been the expectation, at the time, in reference to the extent of the exemption obtained by putting in a substitute, there was clearly no contract the obligation of which has been impaired, and no vested right which has been violated by the passage o.f the law putting “an end to the exemption from military service of those who have heretofore furnished substi-. tutes.”
The truth seems to be that substitution was permitted as an act of grace and favor on the part of the government, and not as a matter of contract. The government received nothing except the service of one man in the place of another to whose service it was entitled. The consideration paid by the principal for the service *of the substitute was a matter of private arrangement between them, with which the government had nothing to do. It is true that under a regulation made by the Secretary of War, the substitute was not received for less than three years or the war, although the party putting him in may not have had so long to serve. And it is said that, in this way, the government *187received more than a mere equivalent for the service of the principal. The advantage gained by the government is rather seeming than substantial. Por the government has the undoubted right, on the expiration of the time for which the principal is liable, to make a new call upon him, and compel him to serve so long as the necessities of the country may require. The only advantage then it can be said to have gained is that it has relieved itself from the inconvenience of having to make a new call as soon as it might otherwise have been required to make it; and this advantage cannot be regarded as a material one. Indeed it was found that substitution on these terms was so disadvantageous to the service, that before the passage of the act now under consideration, one was passed prohibiting entirely all future substitution. It was originally permitted as a privilege to individuals, and not from any benefit the government expected to derive from it; and it did not cease to be a privilege because of the terms imposed as a condition of granting it. It is said, however, that where the substitute is in service, at - the time that the principal is again called in, the government gets the service of two men; when but for the substitution it would have had the service of one of them only. This is an incident of the substitution which may result favorably to the government in the case supposed; but it is not perceived that either the principal or the substitute has a right to complain. The substitute is required to serve no longer than he has, for a consideration satisfactory to himself, ^agreed to serve; and the principal has received all he has a right to claim under the exemption granted him. But even if the permission granted by Congress to individuals to put in substitutes could be held to amount to a “contract” by which Congress was irrevocably bound, what would be the true interpretation of such contract? The well established rule of construction is that all grants of privileges and exemptions from general burdens are to be construed liberally in favor of the public and strictly as against the grantee. Whatever is not plainly expressed and unequivocally granted is to be taken to have been withheld. Charles River Bridge v. Warren Bridge, 11 Pet. R. 420; The Richmond R. R. Co. v. The Louisa R. R. Co., 13 How. U. S. R. 71; State Bank of Ohio v. Knoop, 16 How. U. S. R. 369; The Ohio Life Insurance and Trust Co. v. Debolt, Id. 416. It would be especially improper to infer, in the absence of the most distinct indication of intention, that Congress designed in any grant to go further than the constitution allows them to go. But it is not necessary to apply a strict rule of construction. No fair interpretation of the law can make it a grant of exemption from liability to service under laws which might thereafter be passed as the necessities of the country might from time to time require. The 9th section of the act of 16th April 1862 provides, “That persons not liable for duty may be’ received as substitutes for those who are, under such regulations as may be prescribed by the Secretary of War.” This is the whole provision on the subject. There is not one word to show that it was intended to extend the exemption from liability, by reason of having furnished substitutes, to any liability other than that created by the act. On the contrary the language is, “persons not liable for duty may be received as substitutes for those who are.” What duty and liability are referred to? The duty and liability, *of course, imposed by the law of which this section forms a part, and no other. When the liability was extended to other persons by the amendatory act of 27th September 1862, the privilege of substitution was also extended to those then made liable, by the provision that nothing therein contained should be understood as repealing or modifying any part of the act of 16th April 1862, except so far as was therein expressly stated. Nor is there any thing in the regulations made by the Secretary of War under the authority conferred on him by these acts, from which it can be inferred that the exemption could be made to extend to any liability other than that created by the acts themselves. If it had been supposed that those furnishing substitutes were to be relieved from liability to future calls, during the period of time for which the substitute was furnished, an exemption paper so stating in express terms would have been given. Instead of such a paper we find that nothing more was ever given than a simple discharge from the army. Again, whatever might be the power of Congress, no one can pretend that the Secretary of War had any right, without express authority of law, to make a contract for exemption which would relieve the party from liability under any call for service that might be made by Congress, during the time for which the Secretary’s exemption lasted. Now the law permitting substitution merely gave the sanction of Congress to a practice which had previously prevailed under orders of the Secretary. It made no change in that practice, and there is nothing to show that it was designed to extend the exemption by reason of substitution, beyond the limits within which it was confined under it.
The nature of the transaction, the terms of the act, and the regulations and practice under it, all show that according to the true intent and meaning of the parties the person furnishing a substitute was to be relieved *from the liability then resting on him, under existing laws, to render military service, and from that only. There is nothing to show that it was designed to exempt him from any service which the future wants of the country might make it proper for Congress to require of him. He may, it is true, have entertained the belief that the necessities of the country would not be such as to require another call to be made upon him; and so have hoped and expected that by putting in the substi*188tute he would in fact be relieved from the performance of military service during the time for which he was put in. The disappointment of these hopes and expectations can give him no right to complain. If he has sustained loss, it is damnum absque injuria. The government has been guilty of no such breach of faith; for if the transaction be called a contract, he has had the benefit of all that he contracted for; namely, exemption from service until the situation of the country became such as to make it necessary that he should again be called upon to take part in its defence. The act putting an end to the exemption from military service of those who have furnished substitutes, commences with the recital, ‘ ‘Whereas in the present circumstances of the country it requires the aid of all who are able to bear arms;” thus showing, on its face, that but for the pressing necessity of the country the exemption would not have been taken away.' It would be beyond the jurisdiction of this court to enquire whether Congress was right or wrong in supposing such necessity to exist. Of its existence, Congress, to whose discretion it is confided to provide means adequate to the defence of the country, have the exclusive right to judge.
But it is objected that the law is unconstitutional and void, because it makes no provision for compensating those whose exemptions are taken away. It is said that the privilege of exemption is a valuable right; and if *the public necessity requires that the citizen should be deprived of it, it can be taken only upon making to him a just compensation.
We have seen that the transaction is one relating to a matter of. public concern as to which Congress could not, if they would, make any valid contract which would entitle the party to compensation ; and further that they have not attempted to make any such contract. It has also been shown that even if the transaction could be regarded as a contract, the government has fully complied with its engagement, and has deprived the party of no right; for the condition has happened, upon the happening of which, by the contract itself according to its true interpretation, the exemption was to cease. If there should be any case presenting an equitable ground for relief or indemnity, it is a matter of which the courts can take no cognizance.
The only remaining question is, whether the petitioner Burroughs, who claims to have put in his substitute under the law of this State, passed on the 10th day of February 1862, stands on a different footing, as to this matter, from those who have put in substitutes under the act of Congress.
It has been very much disputed, in the argument of the case, whether he did really put in a substitute under the State law, in such a way as to entitle himself to a discharge from service according to its provisions. We consider it unnecessary to enter upon an examination of this question; because, supposing him to have acted in strict conformity with the requirements of that law, and to have become entitled to a discharge from service, in accordance with its provisions, we do not think that he occupies a better position than those do who put in substitutes and obtained their discharge under the law of Congress. The law of the State, like the law of Congress, exempted only from the then existing liability to render military service, and did not (as it could not properly) undertake to exempt from future liability, if the necessities of the country should make a further call necessary. The act of Congress of 16th April 1862, operated upon all white men who were residents of the Confederate States, between the specified ages, and not legally exempted, whether they were in or out of the army. Those in the army, however the}' had been put there —whether under requisitions upon the states, or as volunteers turned over by state authority, or in any other manner—became liable to service under the act of Congress, which superseded all previous laws, and all calls that had been made for troops. Those who had put in substitutes under State authority had a right to enjoy the benefit of the substitution in like manner as if it had been effected under the orders of the Secretary of War, or the act of Congress; and this right has always belen recognized and allowed by the Confederate government. But they have no claim to stand on any higher ground than those who put in substitutes under Confederate authority.
We are of the opinion therefore that each of the petitioners is liable to render military service, and must be remanded to the custody of the respondent.
The motion to discharge the petitioners overruled, and they remanded to the custody of the .officer. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481683/ | ALLFjST, P.
At a quarterly term of the Hustings court held for the .city of Lynch-burg on the 5th of March 1860, the prisoner was indicted for feloniously stealing an axe of the value of fifty cents; and it was alleged in the indictment that the accused had previously been indicted in the same court of a different offence of petit larceny, and sentenced to punishment. The accused being in custody plead not guilty to so much of said indictment as charged the felonious stealing of the axe; and admitted the truth of so much of the indictment as charged that he had been previously indicted, convicted and sentenced for a different offence of petit larceny. The jury empanelled to try the issue, found him guilty, and fixed the time of his imprisonment in the city jail to seven days; but further found that he had been indicted, tried, convicted and sentenced in due form of law for the petit larceny charged in the indictment.
On this finding of the jury, the Attorney for the Commonwealth moved the court to sentence the accused to one year’s imprisonment in the penitentiary according *to the provisions of the Code, ch. 199, 1 27, p. 752. To this the accused objected; and moved in arrest of judgment for several causes assigned. But the court overruled his objection and motion in arrest of judgment, and sentenced him to be confined in the penitentiary for one year. To which opinion and judgment of the court he excepted; and his exception was signed, sealed and made part of the record. A writ of error having been allowed, the judgment of the Hustings court was affirmed by the Circuit court for the corporation of Lynch-burg ; to which judgment of affirmance a writ of error has been allowed by his court.
Upon these proceedings the first question is that raised by the motion in arrest of judgment, and assigned as error in the petition : Had the Hustings court jurisdiction to try the cause, as the offence with which the accused was charged is punishable with confinement in the penitentiary?
The county and corporation courts of the commonwealth deriving their existence from the acts of the legislature, can exercise such jurisdiction only as has been conferred by statute. The Code, p. 616, ch. 157, | 3, provides that the county or corporation courts shall have jurisdiction to hear and determine all cases, &c., “except criminal causes against free negroes charged with felonious homicide, or any felony, the punishment whereof may be death, and against white persons, charged with any offence, the punishment whereof may be death, or imprisonment in the penitentiary. ’ ’
This provision of the Code, except that portion in reference to free negroes, conforms to the policy of the legislature from the first organization of county courts. By the act of 1748, 5 Hen. Stat. 489, l 5, entitled “An act for establishing county courts, and for regulating and settling the proceedings therein,” cognizance of such criminal causes where judgment or conviction shall be x'for loss of life or member, was excepted from the jurisdiction conferred. A similar provision is found in the act passed the 3rd December, 1792, ch. 67, \ 5. In the interval between the revision of 1792 and 1819, the penitentiary system was introduced. The act of 1819, 1 Rev. Code, p. 246, ch. 71, 1 7, regulating the jurisdiction of the county and corporation courts, excepts from the jurisdiction conferred, such criminal cases where the judgment, upon conviction, shall be for the loss of life or member, or imprisonment in the public jail and penitentiary house, as shall not be expressly declared cognizable in the said courts by act of assembly. ” This long settled policy of the legislature excepting from the jurisdiction of these inferior courts such criminal causes punishable on conviction with loss of life or member, or imprisonment in the penitentiary, has never been departed from in relation to white persons. There is no statute expressly declaring, in the language of the Rev. Code of 1819, such causes cognizable in said courts. On the contrary such jurisdiction is not only withheld by the negative provisions of the statute already quoted, but by the express terms of the law, Code, p. 773, ch. 208, § 1, it is affirmatively declared, “that a trial of any white person for felony, and of a free negro for felonious homicide, or any felony punishable with death, shall be in the Circuit court.” It is moreover provided, Code, p. 764, ch. 205, $ 1 and 7, that before a white person charged with a felony or a free negro charged, &c., is tried before a Circuit court he shall be examined as therein provided for, unless by his assent entered of record in such court, such examination be dispensed with. By the 7th section it is enacted, that if it appear on the examination of such person, *190that a felony has been committed, and .that there is probable catlse to charge the accused therewith, the examining court shall remand him for trial in the Circuit court having cognizance *of the case. These provisions of the Code render it clear that if the offence charged was a felony the Hustings court had no jurisdiction to try the cause.
The Code, p. 750, ch. 199, 4 1, defines felony and misdemeanor: “Offences are either felonies or misdemeanors. Such offences as are punishable when committed by free persons with death or confinement in the penitentiary, are felonies; all other offences are misdemeanors.”
At common law simple larceny, whether grand or petit larceny, was felony: Of-fences, Blackstone says, which are considerably distinguished in their punishment; but not otherwise. 4 Black. Com. 229. And it is said by Hawkins, that whenever an offence would amount to grand larceny if the thing stolen were above the value of twelve pence, it is petit larceny if it be of that value or under. And it seems that all petit larceny is felony, and consequently, requires the word felonice, in an indictment for it. Hawkins’ Pleas of the Cr. 146. § 34, 36.
By the act found in 1 Rev. Code of 1819, p. 617, § 7, it was provided, that if any person shall feloniously take, steal and carry away any goods or chattels, under the value .of four dollars, he should on conviction, be punished with stripes or by'confinement in the jail and penitentiary for a term not less than six or more than eightéen months. And if any person having been punished by stripes for such offence, shall be convicted of a like offence a second time, he shall be sentenced to undergo a confinement in the penitentiary for a term not less than five or more than ten years. The Code has in some respects changed the law in regard to the two kinds of larceny. By the Revised Code of 1819, it continued a felony though it might on conviction be punishable with stripes or confinement in the penitentiary at the discretion of the jury. The
Code, p. 729, *ch. 192, 4 14 enacts, that if a person commits simple larceny of goods and chattels of less value than twenty dollars, he shall be deemed guilty of petit larceny, and confined in jail not exceeding one year, and at the discretion of the court may be punished with stripes.” The offence not being punishable with death or confinement in the penitentiary, is a misdemeanor according to the Code. ch. 199, 4 1, defining felonies and misdemeanors. But as the Revised Code of 1819 imposed a heavier punishment upon conviction of a like offence the second time, the Code likewise, p. 752, ch. 199, 4 27, provides that, “when any person is convicted of petit larceny, and it is alleged in the indictment on which he is convicted and admitted, or by the jury found, that he has been before sentenced in the United States for the like offence, he shall be sentenced to be confined in the penitentiary for one year. The argument of the Attorney General that the law ascribes the punishment to the offence, and declares the offence to be felony where that punishment is death or confinement in the penitentiary, and does not refer to the person, is answered by the terms of the 27th section, which describes the offence as a like offence. In either case the act is similar,- and the Code makes the commission of the first act a misdemeanor. But if the lighter punishment fails to reform, and the party is guilty of a like offence a second time, such second offence is punishable with confinement in the penitentiary, and is a felony. Being so punishable, the county and corporation courts cannot take cognizance of the cause. The indictment having alleged that in addition to the offence for which he was then charged, he had been before sentenced for the like of-fence, the charge so preferred amounted to felony, which could be tried in the Circuit court only, and that after being examined by a called court, unless such examination had been dispensed with. If the *offence, though punishable as aforesaid, could be regarded as a misdemeanor, it would follow that under the provisions of the Code, ch. 199, 4 25, 26, after repeated convictions and sentences a white person might be sentenced by the county court to be confined in the penitentiary for life. If the legislature intended to confer such jurisdiction on the county and corporation courts it would have done so expressly, and not left it to implication.
It was suggested in argument that the provision contained in the Code, ch. 199, 4 7, could not be reconciled with the construction that would make this offence felony to be tried in the circuit court only. The section referred to, punishes the principal in the second degree, as if he were the principal in the first degree. He is punishable for his own offence as the principal in the first degree, but is not sentenced according to the sentence which may be imposed upon the principal offender. Being the first offence in his case, he may be punishable as for a misdemeanor, whilst the principal offender may be sentenced to a different punishment. And so it would be in cases under the 25th and 26th sections of chapter 199, imposing additional punishment after previous convictions and sentences.
I think the Hustings court had no jurisdiction to' proceed with the case. That the indictment charged the accused with a felony, and when returned by the grand jury it should have been treated as a presentment, and steps taken in conformity with the Code, p. 771, ch. 207, § 15.
It therefore seems to me that the judgment of the Circuit court affirming the judgment of the Hustings court was erroneous, and should be reversed. And this court proceeding to render such judgment as the Circuit court should have done, it further seems to me that the judgment of the Hustings court overruling the motion *of the plaintiff in error in arrest of judgment was erroneous, and *191should be reversed and annulled. That all proceedings on the verdict should be stayed or arrested; that the verdict and all proceedings subsequent to the finding of the indictment be set aside; and the cause be remanded to said Hustings court for the accused to be dealt with according to law.
The other j udges concurred in the opinion of Allen, P.
Judgment reversed, all proceedings subsequent to the indictment set aside, and cause remanded to the Hustings court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481684/ | DANIEE, J.
The question, upon the decision of which depends the judgment to be given in this case, is a nice and difficult ■one. It is res integra here; and the counsel on either side and the court after diligent search, have failed to find any authority in the British Reporters or text books which would seem to rule it. The only case cited at the bar in which the question has been fully discussed and distinctly adjudged is the case of Ganaway v. The State, 22 Alab. R. 772, relied on by the counsel of the plaintiff in error—in their printed argument. In that case after several continuances of a *prosebution for an assault and battery for which Ganaway had been indicted, the indictment was lost or destroyed, and the inferior court upon the motion of the solicitor, after notice to the accused, allowed a paper, which was offered as, and proved to be, a correct copy of the ■original indictment, to be substituted in its ■stead, and proceeded with the trial upon the substituted copy. Upon an appeal to the Supreme court the case was there ably .argued, and the majority of the court came to the conclusion that the judgment of the Circuit court should be reversed. The grounds of their decision are very forcibly ■stated in the opinion of Judge Phelan. After conceding the right of the court to supply or substitute any part of the record which has been lost or destroyed in a civil case, he proceeds to remark that “In criminal proceedings we are, in many cases, bound by settled principles of law and practice, to consider not that which abstractly exists, but a certain visible external form as essential to the legal existence and sufficiency of the thing itself. Eor instance, what authority in law (he asks) will protect an officer in arresting my person on a criminal charge or require of me to submit to the arrest? Will a copy of a warrant do? Not at all. ’ It must be the original, lawful warrant itself which I have a right to call for and inspect. This rule, we are inclined to think, has been commonly applied to indictments. The prisoner has been supposed to have a right to have an inspection of the indictment found, and to be arraigned on that only.
But conceding that a declaration and an indictment are alike in many respects, in some other respects there is a very marked difference between them. A declaration is a statement of his cause of action by the party himself or his counsel not under oath. An indictment is a statement of the facts which constitute the alleged offence against the public, on the part of the *accused made under oath by a grand jury, and which to be good in law must have certain formalities; and by the constitution of this State certain words are essential. The one is good even though it be not signed by counsel. The other is nothing if it does not bear the name of the foreman of the grand jury and the words “a true bill.” These are indispensable marks of an indictment. The one may be changed at pleasure by leave of the court. The other cannot be changed or altered in the slightest degree by any power after it has been returned into court and the grand jury is discharged. The statutes of jeofails which in general terms authorize corrections and amendments in process and pleadings have never been held to apply to indictments.
“It may be granted, the court has and ought to have power to supply copies or duplicates of all parts of the record or proceedings which emanated from it or under its authority in the first instance; because the power which could make the original, ought to be at all times able to supply a copy, if that be lost or destroyed. But this power does not embrace an indictment. The court has no power to make an indictment or to direct one to be made; that power resides exclusive^ with the grand jury. Admitting then that a court may supply or substitute whatever part of the proceedings it has power to issue or create in the first instance, yet the principle will not embrace an indictment, because the court has no power to make that or direct it to be made. In the matter of indictments, the grand jury are the sole judges under their oath of the propriety of their own action.” The judge also stated in the course of his opinion that with the exception of a single circuit, *193the rule of practice forbidding the substitution of an indictment prevailed throughout the State.
*In the dissenting opinion delivered bj7 Judge Gibbons, the only case cited by him as an instance in which it had been held allowable to try a person indicted, upon a copy of the indictment, was the case of John, a slave, v. The State, 2 Alab. R. 290. In that case, it is true it was held that where several persons are indicted and the venue is changed by less than the whole number, those who change the venue are to be tried on a copy of the indictment. I have been unable however, to discover anything in that case which countenances the proposition that an accused who has not obtained a change of venue may be tried against his consent upon any substitute for the original indictment. On the contrary, I think, the case looks the other way. There the venue had been changed at the instance of one of several persons indicted for a felony, and an order had been made sending not only a transcript of the record but also the original indictment to the court to which the venue was changed. Subsequently another order was made requiring the clerk of the last mentioned court to return the original indictment; which was executed, and the party who bad not obtained a change of venue was tried on the original indictment so returned, and convicted. And on his appeal it was insisted, in his behalf, that the prosecution had been discontinued and jurisdiction of the court over the case lost in consequence of the execution of the order directing the original indictment to be sent to the court to which the venue, as to one of the parties, had been changed.
Goldthwaite, J., in delivering the opinion of the court sustaining the judgment of the court below, so far as it turned on the question arising upon the orders of the court below, above mentioned, remarked—'“The presiding judge at the time of permitting the change of venue as to Anderson, was probably misled by the generality of the rule of this court with respect to changes of venue. *The rule was not intended to apply to criminal cases where more persons than one are indicted, when one only shall apply for a change of venue. In such a case if the accused makes out a sufficient cause, he is entitled bjr statute to a change of venue; but the original papers of right appertain to the court, which retains jurisdiction over such of the accused as do not desire, or cannot procure a change of venue. A transcript of the record which must necessarily include a transcript of the indictment, as well as of all other original papers, is ‘all which can regularly be transmitted to the court to which the venue is changed. The accused who under such circumstances, asks for a change of venue may be tried on such a transcript, and his consent, if that is to be considered as essential, will be inferred from his application. If the practice was otherwise, the monstrous absurdity might result, that the prosecution against the others accused might be terminated or indefinitely delayed by the measure of grace accorded the one who sought elsewhere a trial which he might not obtain in an impartial manner in the county where the indictment was preferred.” He then proceeded to show that the irregularity which had occurred, of sending the original papers to the court to which the venue had been changed, had worked no injury to the plaintiff in error; that the order for the re-transmission of the indictment to the court in which the prosecution originated was right; and that there had been no discontinuance of the case.
There is nothing in the decision of the court nor in its opinion bearing adversely to the case of the plaintiff in error here. He has had no agency in creating the necessity or exigency by which it is sought to justify his trial on a substituted indictment. He is in no degree chargeable with the absence of the original. He has not procured nor sought a change of venue.
He has *given no consent express or implied to be tried on anything short of the original, identical indictment found.
The case of the People v. Burdock, &c., 3 Caines R. 104, cited by the Attorney General, does not necessarily involve the decision that a person accused may, against his consent, be tried on a copy of a lost indictment. The reporter, it is true, in his syllabus states the case as deciding the general proposition that, if a record, of an indictment be lost the court will grant leave to file one nunc pro tunc. But on examination of the case it will be seen that it does not go to an3r such length. The report of the case is very brief and I give it entire: “An indictment found against the defendants for a forcible entry and detainer in April term 1798, had, on being removed into this court been quashed and restitution ordered, but the record of it could not on search in the clerk’s office, be found. Riker applied for leave to file a record nunc pro tunc, on an affidavit by the attorney employed in the prosecution, disclosing the above facts, and that on examination of his register he found not only that a record had been duly filed, but that he actually obtained an exemplification of it which had been lost. Granted accordingly7.” When it is seen that in that case the motion was made in 1805 in respect to an indictment found in 1798—which had been long since quashed—it is obvious that the decision then made, is no precedent for the case under consideration. It is manifest that there the substituted indictment was to be used for some purpose other than the trial of the person indicted.
The only case, which I have been able to find, in addition to those cited at the bar, bearing immediately on the question in hand, is that of The State v. Harrison, 10 Yerger’s R. 542. The decision and reasoning of the Supreme court of Tennessee in that case, are strongly in favor of the plaintiff in error in this. In that case after *the prisoner had been regu*194larly indicted, tried and found guilty of a felony, by the verdict of a jury, he moved in arrest of judgment, on the ground that there was no bill .of indictment on record against him. It appeared that the indictment had been lost or mislaid during the trial and upon diligent search could not be found; and the solicitor thereupon moved the court to make a copy of the indictment together with certain affidavits, proving very fully that it was a correct copy, a part of the cause, which was done. The entry made upon the record was as follows : "State v. Harrison. The' attorney general appeared in open court and moved the court that the following copy of the indictment in this case and the affidavits annexed be made a part of the record in said cause. Whereupon the court upon examination and inspection of the same, order the same to be spread upon the minutes and made a part of the record in his cause;” and a copy of the indictment and affidavits annexed was also inserted in the entry. In a bill of exceptions the judge recited that the copy of the indictment was filed upon' record by him not merely from the affidavits “but because the court was fully satisfied, that said copy of said indictment so ordered and made a' part of the record, was an exact literal copy of the original indictment, not only from the affidavits appended to said copy, but from the recollection and memory of the court itself.” The Supreme court held that no judgment could be rendered against the prisoner upon a copy of the indictment thus spread on the records of the court below; and that the case was one proper for arrest of judgment.
In delivering the opinion of the court, Turley, J., after considering the general power of a court to alter and supply from its own memory alone, any order judgment or decree pronounced by it at the same term, qualifies the ' concession with the remark that the principle doubtless applies with more force to things which have emanated *from the court itself, for the reason that the judge may well recollect what he has himself directed to be done and find it impossible to remember what has been done by others. And he then proceeds to say, “If the indictment could be supplied from the memory of the judge the record must show explicitly and certainly that it was so done. The recital in the bill of exceptions does not amount to this. To establish the principle that a judge might supply a lost bill of indictment upon the affidavit of others independent of-his own recollection would, as we think, be exceedingly dangerous to the lives and liberty of the citizens; and we cannot do so. We think we go far enough in saying this may be done upon the memory of the judge.”
The provisions of chapter 180 of the Code, allowing papers, “in any cause,” lost or destroyed to be substituted by an authenticated copy of what is lost or destroyed or proof of the contents thereof, have obviously no application to the case. Though the language of those provisions is broad enough to cover the loss of papers in criminal prosecutions, yet, from the general frame and tenor of this chapter, and from its position in the Code, as one of a series of chapters under the title of (51) “Proceedings in civil suits,” considered in connexion with the declaration of the design set forth in the preamble., of the Code, to arrange the general statutes of the commonwealth “in appropriate titles, chapters and sections,” it is manifest that the remedy proposed by the provisions in question, applies to the loss or destruction of papers in civil causes only.
Upon the whole it seems to me that the plaintiff in error is entitled to a judgment of this court in his favor. There is no legislative provision regulating the practice in his case; there is no authoritative decisions in England or Virginia ruling the point raised by him, against him; whilst the weight of the few adjudications on the ^question by the courts in this country, of which we have any reports, is clearly in his favor. In this state of the law I do not think we are authorized by affirming the judgment to introduce a practice which would tend to impair the efficiency of one of those guards which the law has provided for the protection and security of the citizen. Whenever, on a trial, the original indictment is substituted by parol proof of its contents, the accused is necessarily exposed to the hazard of being tried for, and convicted of, a charge differing, in greater or less degree, from that preferred by the grand jury. To expose to such a hazard an accused who is nowise responsible for the loss or destruction of the original indictment, seems to me to be hardly in accordance with the spirit that regulates the proceedings in criminal trials; and I am for reversing the judgment.
The other judges concurred in the opinion of Daniel, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481685/ | ROBERTSON, J.,
delivered the opinion of the court.
We are of opinion that the house alleged in this case, to have been partially destroyed, is a dwelling house within the meaning of the statute under which the prosecution was had: and that the court committed no error in giving the instruction asked for by the Attorney for the Commonwealth, and in refusing that asked for by the prisoner.
But it is insisted that a new trial ought to have been granted because the destruction was not such as is contemplated by the statute; and numerous English decisions have been referred to for the purpose of showing that where the destruction is partial only, it must, to bring the case within the statute, be made to appear that there was an intention to destroy totally. The language of the English statute is as follows, viz: “If any persons riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down or destroy,” &c. And it has been held, under it, that to convict of beginning to destroy a house, an intention to destroy the house, and not a portion of it merely, must be shown : in other words that a destruction of the whole house must have been begun.
It is obvious that these decisions rest upon the peculiar wording of the English statute. If the same language were used in ours, it might well be said that, having *been adopted subsequently to these decisions, it ought to be construed in conformity with them: that in cop3ring the English statute our legislature intended to take it with the meaning affixed to it by the English courts.
But the language of our statute is very different. It is, “If any rioter, being free, pull down, or destroy, in whole, or in part, any dwelling house, or assist therein, he shall be confined in the penitentiary not less than one, nor more than five years; and, though no such house be so injured, every rioter,” &c.
It seems to have been intended by this statute to put the partial destruction of a dwelling house on the same footing with its total destruction, as to the guilt and punishment of the rioters engaged in it; and the terms used appear to have been adopted with the express view of excluding the possibility of an3- such construction as that placed upon the English statute.
The only question remaining is, whether, in this case, any part of the house was *204pulled down or destroyed? A window was broken into; and the front door was broken open, by splitting a panel and removing the bar with which it1 was fastened. The door was thus rendered useless, and destroyed as a door. This was a destruction of a part of the house, sufficient to bring the perpetrators within the purview of the statute passed to prevent rioters from injuring dwellings.
It can make no difference that the purpose of the rioters may have been to rob, rather than to destroy. If in the accomplishment of that purpose they destroyed any part of the house, their offence, .under this statute, was as complete as if their original design had been to pull down ór déstroy the house.
The motion for a new trial was properly overruled; and the judgment müst be affirmed.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481686/ | Moncure, P.
delivered the opinion of the court:
Two cases have been decided by this court, which. have a material bearing on the one now under consideration, viewing it as a suit in equity for the settlement of a partnership account, and without reference to the effect of the settlement, which will be presently mentioned. Those cases are Coalter v. Coalter, 1 Rob. R. 79, decided in 1842, and Marsteller v. Weaver’s adm’x, 1 Grratt. 391, decided in 1845. In the former it was held, first, that an action of account by one partner against his co-partners for a settlement of the partnership accounts, must be commenced within five years next after the cause of action accrued, and unless so commenced will be barred by the statute of limitations—1 R. C. 1819, ch. 128, § 4, p. 488; for such accounts do not concern the trade of merchandise between merchant and merchant, and therefore are not embraced by the exception to the statute; and secondly, that a suit in equity between such parties for such a settlement, being a substitute for the action of account, should, like that action, be brought within five years, and if not brought within that time, will be barred by the statute of limitations. In the *334latter it was held that in such a suit the plea of the statute of limitations cannot be sustained where it appeal’s that there were good debts due to the firm outstanding within five years before the suit was brought.
The business of the partnership in this case commenced in March, 1837, and ended in March, 1839. The original suit for the settlement of the account was brought in December, 1856, and would have been barred by the statute of limitations according to the case of Coalter v. Coulter, but for the fact that there were debts due to the firm outstanding within five years before the suit ivas brought, one or more of which appear to have been good; and it appears also that during that period one or two debts due by the firm were paid; under which circumstances it seems that, according to the case of Marsteller v. Weaver's adm'r, the suit would not be barred by the statute, at least as it stood in the Revised Code of 1819.
How far does the change made of that statute by the Code of 1849, ch. 149, § 5, affect this case? The Code provides that an action by one partner against his co-partner, for a settlement of the partnership accounts, may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after. The time prescribed by the statute does not begin to run as to any of the partnership dealings until there has been a cessation of all of them. But what acts are comprehended in the word “ dealings ” in the meaning of the Code, may be a question of some doubt. Is the word confined to the active operations of the partnership during its continuance, or does it embrace also any act done after its dissolution in winding it up ; such as the collection or payment of outstanding debts due to or by the firm, and even good debts due to the firm, outstanding when the suit is *335brought ? I think the word should be construed in the latter and extended sense; otherwise no action or suit could be brought for a settlement of a partnership ac- ° r . count after the lapse of five years from the dissolution of the partnership, although its business may not have been wound up for a long time thereafter. I therefore think that the cases of Coalter v. Coalter, and Marsteller v. Weaver's adm'x, apply to the statute of limitations as it now stands in the Code of 1849, as much as they did to the statute as it stood in the fievised Code of 1819.
The statute of limitations not being a bar to the suit, it seems to follow, as a necessary consequence, that laches and lapse of time constitute no such bar; but they may, notwithstanding, have a material effect in deciding upon particular claims which may be asserted in the course of the settlement of the partnership account. Of course I do not mean to say that laches and lapse of time constitute no bar in any case in which the statute does not constitute one. ' When the statute is a bar there is no need of any bar from laches or lapse of time. The latter bar peculiarly applies where the former does not. What I mean to say is, that if the cause of action be one to which the statute applies, but the lapse of time since it accrued be not such as to bring the case within the statute, laches and lapse of time cannot in themselves constitute a bar to the suit. Though the time prescribed by the statute may not begin to run until the business of the partnership is wound up, yet the parties may have a partial settlement of the partnership account before, and may bring a suit for such a settlement. It is not necessary that a suit for a settlement of the partnership account should be delayed until all the debts due to the firm have been collected, and all due from it have been paid. Circumstances may delay the collection of a debt until long after all the other business of the partnership *336has been wound up. Such delay may result from the gross negligence of the partner charged with the duty of winding up the business. In such a case, although a suit for a settlement, even by the partner guilty of such negligence, may not be barred by the statute of limitations until five years after the collection of all the good debts due to the firm, yet it is the duty of a partner, claiming that a balance will he due to him upon a settlement of the partnership account, to have such a settlement as far as possible, and if necessary to bring a suit for that purpose before the lapse of time and loss of evidence and death of parties render it impossible or difficult to have a just settlement; and if he fail to do so, he must abide the consequences of his laches, and hear the loss resulting therefrom. Doubtful questions, made so by his laches, must be solved against him.
Where there has been a partial settlement of a partnership account, and there is no valid objection to the settlement, it is conclusive upon the parties to it as far as it goes, and leaves open only the unsettled portion of the account. The time prescribed by the statute of limitations begins to run at the time of the settlement against the cause of action arising therefrom, but the transactions not embraced in the settlement remain unaffected by the statute, as if the settlement had never been made.
In this case there was a settlement on the 12th day of March, 1845, between John W. Foster, acting for himself and Marsten Foster, and William Rison, witnessed by an agreement in writing under the hands and seals of the parties, and described in said agreement as “ a full settlement ” of the partnership: upon which settlement said Rison executed his bond for the sum of $575.75, in full of all demands which said John W. and Marsten had against said Rison on account of said partnership, except a certain acceptance due said John W. and a cer*337tain balance due said Marsten, as mentioned in said agreement; in consideration of which bond, the said Fosters transferred a parcel of debts to the said Rison due to . the said firm, amounting to $8ÍÍ7. 21, which he agreed to take without recourse to the said Fosters; and he further agreed to release and discharge the said Fosters from all debts due from the said firm, “which have been created by the said Rison, he having the entire management of said firm and taking the payment of the same upon himself; a parcel of debts due the said firm, amounting to some 1,532.7U, which are considered as insolvent, are to be left with the said William Rison for collection, which when collected, or any portion thereof, are to be divided equally between the said Fosters and the said Rison; that is one-third to each; any costs attending the collection of any of such last referred to debts, shall be deducted from any amounts collected, or be paid by the parties equally.”
This agreement, if valid, was a full and final settlement of the partnership account, at least as between said Fosters and Rison, except as to the parcel of debts due the said firm which were considered as insolvent. And in order to succeed in this suit for a general" settlement, William Rison and Marsten Foster, or his representative, must therefore, in some way, get rid of the said agreement.
How do they seek to get rid of it? On two grounds: First, on the ground that it was not authorized by Mars-ten Foster, but made without his consent or knowledge; and secondly, on the ground that material mistakes and omissions were made in the settlement to the prejudice both of Marsten Foster and William Rison.
I will examine these objections in their order; and, first, that the agreement was not authorized by Marsten Foster. If it is charged, it certainly is not proved, that J. W. Foster was guilty of any fraud in making the settle*338ment. To justify his conviction of such a fraud it ought to have been expressly charged and clearly proved. He made the settlement in behalf of himself and his brother, with his nephew. In making it with his nephew he was dealing with one who was the only acting partner of the concern; had kept and was still in possession of all its books and papers, and was better informed about its affairs than any other person. The two brothers lived in Amelia'county, and the' nephew at Pittsylvania courthouse, where the business had been conducted, where the settlement was made, and where the books and papers were at the time of the settlement. Every circumstance of the case repels the idea of fraud. The question then is merely one of authority. Was J. W. Foster authorized by Marsten Foster to make the settlement ? It was made under hand and seal, and there is no evidence of any authority under the hand and seal, or even'the hand of Marsten Foster to make it. It is not probable that any such authority was in fact given. Nor was it necessary. J. W. Foster had no right to execute a deed for Marsten Foster without authority by deed; but he had a right to make a settlement for him under a parol authority if he had such authority, and such a settlement, if made, would not be invalidated by any instrument purporting to be a deed with which it might be accompanied. The instrument might be void as a deed and still be good evidence of the terms of the settlement. Nor was it necessary that the authority to make the settlement should have been express. It may have been implied from the relations and previous dealings of the parties, especially in reference to the subject of the settlement.
(The judge then proceeded to consider the evidence on the subject; and then proceeded as follows:)
I am therefore of opinion that J. W. Foster had authority from Marsten Foster, express or implied, to make *339the settlement, and that after so great a lapse of time and so much laches on the part of Marsten Foster, and after the death of J. W. Foster, it would be against the policy of the law to disturb it on the ground that it was made without authority. If it can be clearly shown that there were any mistakes or omissions in the settlement, and that they can now be corrected without doing injustice to any party, they ought to be corrected accordingly. But that can and ought to be done without disturbing the settlement further than may be necessary for the purpose of such correction. In that way Marsten Foster will get the full benefit of the correction without losing the benefit of the settlement, and William Rison will get all the benefit he is entitled to; for in no view of the case can he object to the settlement except on the ground and to the extent of such mistakes or omissions, so far as his interest may be affected by them. And this brings me to the next enquiry, which is,
Secondly—Were any mistakes or omissions made in the settlement to the prejudice of Marsten Foster and William •Rison, or either of them ?
It is a curious fact, that neither in the original bill nor in the answer of Marsten Foster thereto, is there any complaint of any such mistake or omission. In these the settlement is impeached only on the ground of want of authority, as before stated. In the cross-bill filed in October, 1858, after the death of Marsten Foster and by his executor, errors in the settlement are, for the first time, charged, and the charge is repeated in the answer of Wm. Rison to the cross-bill.
(The judge then proceeded to consider the first error in the settlement alleged to have been made. This relates to the two sums of $ 615.25 and $294.43, which it was claimed should have been credited to Marsten Foster. He then proceeded as follows:)
*340But if J. W. Foster did receive these two sums from his brother to be paid to Wm. Rison on account of the firm and failed to make such payment, the firm is not accountable for them to Marsten Foster; but his only recourse is against J. W. Foster individually, Whether J. W. Foster is liable for them or not is a question not in issue in this cause.
The next error alleged in the settlement is, that John W. Foster was credited with $ 975 as for merchandise put in by him from Clai'ksville.
(The judge then proceeded to consider the evidence in relation to that alleged error. He then proceeded as follows :)
It is possible, after all, that the account given of this matter in the examination of Wm. Rison is the true one, and that the credit of $975 given to J. W. F. in the settlement was in fact given by mistake. But whether the fact be so or not, I think it is not proved by that degree and amount of evidence which ought to be required under the circumstances, and that in attempting to correct such supposed mistake, there would be danger of doing injustice to the estate of J. W. Foster. Ten years elapsed after the settlement was made and before the death of J. W. Foster, during which time nothing was said about any mistake in the settlement, nor until more than a year thereafter when the original bill was filed. Had the suit been brought in his lifetime he might have explained the transaction as he was a party to it, and probably knew, or had the means of showing, a'.l about it. At all events he would have had the benefit of his answer. I am therefore of opinion that it would be against public policy and the principle of our decisions on the subject to afford relief in such a case, at least without the strongest evidence to sustain the claim. As was said by Allen, J. (with whom the rest of the court *341concurred), in Caruther's adm'rs v. Trustees of Lexington, 12 Leigh 610, 619, “no particular period is fixed by the cases as limiting the demand for an account. If ^ ° 4 from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive must be at best but conjectural, and that the original transactions have been so obscured by time and the loss of evidence, and the death of parties, as to render it difficult to do justice, the court will not relieve. It is the duty of the plaintiff in equity, as well as at law, to establish his title to the relief sought for by satisfactory proof; it will not answer to show a probable title to something. He must satisfy the court that it can extend relief without the hazard of doing injustice to the defendant.”
The only remaining error alleged in the settlement is as to the charge to Wm. Rison of $220.65 and $347.31 for interest on the balance of capital not returned to his partners. It is a sufficient answer to this objection that the matter was argreed in the settlement, and is concluded by it if the settlement be valid and binding, as I think I have shown that it is; at least as between the Fosters and Rison. The exception of Rison to the commsssioner’s report, which was overruled by the court below, rests on the same principle with the objection just disposed of. The court below sustained the appellants’ fifth exception to the commissoner’s report, “because the commissioner has allowed to the said Wm. Rison the sum of $ 5U3.0S commission for collecting the debts of said concern of Wm. Rison & Co.; ” and the counsel for Rison complains that this was error. The same answer may be made to this objection as to the one just disposed of, that the subject of it is concluded by the settlement.
I have now fully considered the case so far as Wm. Rison is concerned, and so far as it is affected by the *342settlement. But Marsten Foster’s executor contends that the settlement was only of the partnership account as between the Fosters and Bison, and not as between the Fosters inter se; and that the estate of John W. Foster is largely indebted to the estate of M. Foster on account of money received by the former from the latter, to be applied to the credit of the latter in making up the capital of the concern but not so applied; and on account of money received by the former out of the partnership assets over and above the proportion to which he was entitled. The object of the cross-bill was to ascertain and recover the amount of this claim and to have the proper account settled for that purpose. I will now proceed to consider this part of the case.
The only money charged to have been received by J. W. Foster from M. Foster, on account of the partnership, was the two sums of $615.25 and $294.43 received in April and May, 1837, which havé already been the subject of observation in this opinion. And in regard to those two sums of money, as well as any money which John W. Foster may have received from William Bison for Marsten Foster on account of the latter’s interest in the partnership assets, Marsten Foster, to the extent of any just claim he may have had thereto, had a legal remedy for the recovery thereof, which has been long since barred by the statute of limitations. There was no partnership between John W. and Marsten Foster; so that the account between them does not stand on the footing of a partnership account, though it may be composed of items for money received by one on account of the interest of the other in the partnership assets. The case stands upon the same footing with any other case in which money is had and received by one party for and at the instance and request of another. I have, already, I think, shown, that whatever money *343may have been received by John W. for Marsten Foster on account of the latter’s interest in the partnership assets, was received by his authority, express or implied. Nor is this a case in which an action of account would lie, and to which, therefore, the legal limitation to that action applies, even though the suit be in equity. It is not even such a case as to give jurisdiction to a court of equity on the ground of mutual account. The account consists altogether of items on one side, for money alleged to have been received by one party for another. A. portion of this money, to wit: the two sums of $615.25 and $294.43, is alleged to have been received in April and May, 1837, more than twenty-one years before the cross-bill was filed, in October, 1858. Another portion is alleged to have been received in 1840, when payment was made for the goods sold by W. Rison & Co at the time of their dissolution to "Rison & Poindexter, more than eighteen years before the cross-bill was filed. Nothing was ever received by John W. Foster on account of the partnership assets, for himself or any other person, after the settlement of March, 1845, except on account of the bond for $ 575.75 taken upon that settlement, which was made more than thirteen years before the cross-bill was filed. And nothing has been received on account of that bond but $406, which was paid in March, 1846, more than twelve years before the filing of the cross-bill. This was the last payment made to John W. Foster on account of the assets of the partnership, on which can be founded any pretense of a right of action against him or his personal representative, for money had and received to the use of Marsten Foster. This is not a case of trust which would give a court of chancery jurisdiction, and to which the statute of limitations does not apply. If it be said that a resort to a court of chancery might have been necessary to have an *344account taken to ascertain the portion of the money received by John "W. Foster on account of the partnership assets to which Marsten Foster was entitled; still that would not take the case out of the operation of the statute which applies to an action for money had and received. The equitable suit in such a case would be only incidental and ancillary to the legal demand, and would be barred by the statute which bars the legal demand. Jt'would not be like an ordinary suit to settle a partnership account, which would not be barred by the statute, unless five years had elapsed after the “ cessation of the dealings” in which the partners were “interested together” and before the institution of the suit. If a partnership, after the close of its active operations, be in a course of liquidation and settlement, and the acting partner, charged with the duty of winding up the concern, make a payment to atiother partner for himself and a third for whom he is acting, the third partner has an immediate cause of action for his part of the payment against the partner to whom the payment was made, and prima facie, they would be entitled to the amount equally. They might, under the circumstances, be entitled to it uneqally, and an account might be necessary to ascertain their several portions; but they ought to proceed with due diligence to have the account settled, and a suit for such a settlement must be brought within the period limited by law for the bringing of an action for the money.
The settlement of March, 1845, was a full and final settlement of the partnership account between the Fosters who contributed the capital and Rison the only acting partner, with the single exception of the debts due to the concern, which were considered as insolvent, amounting to $1,532.70, and which were left with said Rison for collection on the joint and equal account of the parties. They remained partners only in regard to the matter of *345that exception, as to which only an account between them may now be called for. If John W. Foster became indebted to Marsten Foster on account of, or in regard to, the partnership, it was for money had and received to his use; and the cause of action therefore arose at least as far back as the time of the settlement in March, 1845, and so was barred by the statute of limitations when the cross-bill was filed in October, 1858, unless the bar of the statute can be repelled upon the ground of fraud or concealment upon the part of John W. Foster. The statute applies as well to a suit in equity for an account of such money as to an action at law for its recovery; and the bar of the statute cannot be prevented or affected by the fact that debts due to the partnership and included in the insolvent list at the time of the settlement, have since been or may hereafter be collected. Those debts have no connection with any debt of J. W. to Marsten Foster for money had and received to the latter’s use as aforesaid.
• Then the only remaining question is, was there any fraud or concealment on the part of J. W. Foster in regard to any money received by him for M. Foster on account of the partnership ? If there was, and the effect of such fraud or concealment was to keep M. Foster in ignorance of the receipt of such moneys or prevent him from suing for it, until within five years before the filing of the cross-bill, then the statute of limitations is not a bar to the suit. The mere fact that Marsten Foster was ignorant of the existence of any debt which may have been due to him by J. W. Foster until within five years before the institution of the suit, will not be sufficient to repel the bar of the statute. To have that effect, such ignorance must proceed from the fraud of J. W. Foster, which ought to be plainly charged by the pleadings, and clearly shown by the proofs. The charge of fraud in this case *346*s not as P'a'n as it might be. To be sure the said John W. is substantially charged in the cross-bill with “ secretly and wrongfully obtaining possession of much the greater Part partnership assets and concealing the same from the said Marsten and failing to render any account thereof,” but the complainant expresses a hope that such failure to account ivas “through accident or forgetfulness-.” .The cross-bill, too, was filed, not by Marsten Foster, but by his executor, who could have had no personal knowledge- of the fact of fraudulent concealment therein charged. The answer to the original bill was filed by M. Foster himself, and contains no charge of fraud or concealment. But admitting the fact to be sufficiently charged, as it no doubt is, in the bill, it is certainly not proved, anc] there is no evidence in the cause which even tends to prove it. The case then stands upon a mere charge of fraud, made by a personal representative knowing nothing about the fact, and after the death of the party charged with the fraud, whose personal representative knows nothing about it, and without a particle of evidence to sustain the charge. In perfect consistence Avith all the evidence in the case, John W. Foster may have promptly and regularly communicated to his brother all his transactions on their joint account in regard to the partnership, and accounted with him for all the money received on his account. Is not such a mere charge, unsupported by evidence, plainly insufficient to repel the bar of the statute ? I think it is. Had the charge been made by Marsten Foster against John W. Foster in the lifetime of both, it might have been denied in the ansAver on oath of the latter; and it could then have been sustained only by at least two witnesses, or one and pregnant circumstances. The charge having been made after the death of both, in a suit betAveen their representatives having no personal knowledge of the transaction, it ought to be sustained by *347at least one witness to have any effect, especially after so great a lapse of time and so much laches on the part of Marsten Foster.-
Something may be due: I might go farther and say that probably something is due from the estate of John "W. to the estate of Marsten Foster on account of the transactions stated in the bill. But tSe possibility or even probability that something is so due, is not enough to entitle the plaintiff to »n account. Independently of the bar of the statute, it would be a sufficient answer to his claim for an account, that one cannot be now settled with any reasonable expectation of doing justice to the defendant, and that the plaintiff’s testator is in fault for not having sooner asserted and prosecuted his claim. It may be said that John W. Foster was also in fault, for not having himself rendered and settled an account. Non constat that he did not render and settle an account. He is not now here to speak for himself. But concede that he was equally in fault with the other partners, that is not enough to make him liable. In such a state of equality the condition of the defendant is better than that of the plaintiff. It may be further said, that Mars-ten Foster did not know7 that anything was due to him until shortly before the institution of the suit, and was led to believe the contrary. It certainly does not appear, as I have already shown, that John W. Foster led him to such belief, or did anything to conceal or cover up the transaction. Marsten Foster knew that he was a partner in the concern, and it was his business to enquire into it and inform himself of its condition. If he chose to depend upon another to do this for him, he must take the consequence of neglecting his own duty, and having lost his opportunity of delay he cannot excuse himself on the ground of want of information, unless it proceeded from the fraud of his adversary, which must be proved. Vint*348lantibus non dormientibus jura subveniunt, is a favorite maxim in a court of equity. The principles which govern that court in this 1 espect are beautifully set forth by Lord Camden in the often cited case of Smith, v. Clay, 3 Br. Ch. R. 640. “Ncthing can call forth this court into activity but conscience, good faith and reasonable diligence. When these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced.” Most of the English and American cases on this subject are referred to in a note to 2 Story’s Eq. § 1520. See also Carr’s adm'r v. Chapman, 5 Leigh 164, and the cases therein cited. In Carr v. Chapman Judge Carr says: “The principles deduced from the English cases are fully supported, if not advanced a step, by the spirit of our own decisions and of our legislation also.” Id. 178. Our subsequent decisions on the subject or some of them are; Hayes v. Goode, 7 Id. 452; Atkinson v. Robinson, 9 Id. 393; Caruther's adm'r v. Trustees of Lexington, 12 Id. 610. Hillis v. Hamilton, 10 Gratt. 300; Crawfonl's ex'or v. Patterson, Id. 364; Doggett v. Helm, supra.
Upon the whole, I am of opinion that the decree should be reversed and all of the bills dismissed with costs; but without prejudice to any claim-which the representatives of John W. and Marsten Foster or either of them may have for an account of the debts due to the firm of William Bison & Co., which were considered as insolvent and left in the hands of William Bison for collection at the time of the settlement of the 12th of March, 1845; and also without prejudice to any claim the representative of said Marsten may have to the balance or any part thereof due upon the bond for $575.75 given upon the said settlement by the said Bison to the said John W. and Marsten Foster.
Degree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481687/ | Joynes, J.
I think that the court did not err in treating the whole of the fund realized under the decree of 1836’ as capital. For it was expressly provided by that decree, that the appellant should invest the sums decreed to be paid to him, after deducting expenses; pay to Mrs. Tebbs for life the interest of the money so invested; and distribute the principal sum, after her death, among the parties entitled. This arrangement, though injurious to Mrs. Tebbs, may have been sanctioned by her for the benefit of her children. But whether it was or not, it was embodied in the decree to which she was a party, and which is binding upon those who claim under her.
And I think the court did not err in refusing to allow the appellant an extra commission, as compensation for his services in relation to the case of Tebbs v. Chapman. It would have been proper to assert that claim in the case of Tebbs v. Chapman, when the court was adjusting the rights of the parties in respect to the fund recovered The facts, too, were then recent, parties now dead were then living, and the merits of the claim, depending upon the chai’acter and value of the services, and the circumstances under which they were rendered, could have been more fully ascertained and better understood, than they can be now.
Perhaps, however, it would be going too far to hold the appellant precluded by his failure to assert this claim in that cause, because he settled no account in that cause, and was not required by the decree to make a report as to the collection and investment of the fund. It is a circumstance, however, which deserves to be considered along with others which I will now advert to.
It appears from the deposition of Phillips, that the appellant contemplated the assertion of this claim soon after the decree of 1836, and took steps to collect the *357opinions of gentlemen who had been counsel in Tebbs v. Chapman, as to the commission which ought to be allowed him. He obtained a letter from one gentleman, and made an effort to get one from another, the result of which does not appear; and whilst it appears that the letter which he did get was lost, it does not appear that another was obtained to supply its place. But it does not appear that anything else was done. It does not appear that the claim was presented to the parties, and, if presented, it was certainly not allowed; nor does it appear that the appellant entered any charge for these services in his accounts. The first time we hear of the claim again is in 1854, when it is advanced by the appellant in his answer in this cause. These circumstances, of themselves, afford strong ground for the presumption, that this claim was abandoned by the appellant; and other circumstances greatly increase the force of this presumption. The appellant was himself a party interested in the fund to be recovered in Tebbs v. Chapman. It does not appear that his services in reference to that case were rendered upon any promise of compensation by the other parties. It must be supposed that his actual expenses out of pocket were retained, as he had a right under the decree to retain them. The other parties were his mother, brothers and sisters, to whom he might have been willing to render a gratuitous service, or, at any rate, to surrender his claim, in consideration of the sacrifices to which they had been subjected by the compromise, and especially as his services, however great and however meritorious, had proved, by the result, to be in a great measure fruitless. But however all this may have been, which it may now be impossible to ascertain, we can see, in these various circumstances, abundant reasons why the appellant may have been willing to abandon his claim against the other *358members of his family, on. account of services rendered for the common benefit.
The main ground of objection to the decree is, that it admits the representatives of the children of Mrs. Tebbs, who died in her lifetime, to a participation, along with those who survived her, in the two-thirds of the fund which accrued from the deaths of William and John Carr.
The fund in controversy arose under the residuary clause of the will of William Carr, the elder, deceased. By that clause, the property embraced in it was, upon his sons’ attaining full age, to be divided equally between the testator’s three children, Betsey Tebbs, William Carr and John Carr, “ that each child may know their part.” But the will directed that the principal should be retained by the trustees, to whom, the residuum had been given, or laid out in land and negroes, “ to the use of my said children for life, and to go as the other estate devised to them.” The “other estate” here alluded to consisted of land and negroes, the latter being real estate as the law then was, and was devised by three several clauses in preceding parts of the will, which, omitting the description of the property, are respectively in the following words:
1st. “I say I give the above recited land and negroes to my said daughter Betsey Tebbs during her natural life, and then to her child or children, if any living at her death, to be equally divided; if none, then to my sons William and John for life, then to be equally divided between them and their children.” * * *
2d. “ I say I give the aforesaid land and negroes to my dear son William Carr during his natural life, and after his decease to his child or children; if none, to my son John Carr and my daughter Betsey Tebbs for life, and then to be equally divided amongst their children.” # *
*3593d. “ I say I give the above related lands and negroes to my son John Carr during his natural life, and then to his child or children, if any living at his death; if none, to my daughter Betsey Tebbs and my son William Carr during life, and then to their children to be equally divided.”
The rights of the parties in this case depend therefore on the proper construction of these clauses. And nothing turns upon the character of the residuary fund, as real or personal, if that would make any difference in the construction, because by the express terms of the residuary clause, all the property embraced by it, real and personal, is “ to go as the other estate,” which was devised by the clauses just quoted.
At the date of the will Betsey Tebbs was married and had children. William Carr survived the testator, and died in 1801, never having had a child. John Carr died in 1808, never having had a child. Betsey Tebbs died in 1852, leaving the appellant S. J. Tehhs, and two other children surviving her, and having had four other children who died in her lifetime.
It was contended on behalf of the appellant S. J. Tebbs, by one of his counsel, that upon the death of John Carr the moiety of William’s original share, which, on his death, passed to John under the will, was undisposed of and passed as property of the testator, in respect to which he had died intestate, the real estate to the heirs at law of the testator, and the personal estate to his distributees, because the latter being part of the residuum, would not fall into the residuum, as decided in Frazier v. Frazier's ex'or, 2 Leigh 642. Following out this theory the counsel presented a statement of the distribution of the fund in controversy, showing that after the death of John Carr, one-third of the fund was held by Mrs. Tebbs for life, remainder to *360her child or children living at her death, and that the other two-thirds were held by her absolutely. These last were claimed as belonging to the appellant, under the deed from Mrs. Tebbs, dated February 18th, 1845.
I do not concur in this view. I think it impossible to read this will without perceiving that it was the purpose of the testator to control the disposition of the entire property in all the events contemplated and provided for by the will. This is apparent from the structure of the several clauses above quoted, which are identical in meaning and effect, though not identical in words, and were so regarded in the argument on both sides. And this view is confirmed by the second codicil, to which I shall allude in another connection.
I hold, therefore, that the entire property passed by the will, in all the events contemplated and provided for by it, and that there was no intestacy as to any part of it in any of those events. To effectuate this purpose cross remainders for life must be implied between Mrs. Tebbs and her brothers, subject to the limitations over to their children, the character of which will appear hereafter. Upon this subject it will be sufficient to refer to the cases collected in 2 Jarman on Wills 457—480, and 3 Lomax Digest 257—263, from which it will appear that this construction is fully authorized by the language of the will. It follows that, upon the death of John Carr, the whole of the property in question became, by virtue of the will, vested in Mrs. Tebbs for life, subject to the limitations in favor of her children.
In respect to the original shares of Mrs. Tebbs, the language is explicit, that it shall pass upon her death to her child or children then living, if any. And accordingly it was not controverted in the argument, that this share passed to such of the children of Mrs. Tebbs as were living at her death in exclusion of the repre*361sentatives of those who died in her lifetime. But in respect to the shares which accrued to Mrs. Tebbs for life by the death of her brothers, the language is not equally explicit, the limitation being to her- “ children ” generally, and not to such as might he living at her death.
The counsel on both sides have contended, that the construction of this clause may be ascertained by the application of certain general rules of law, which have been laid down in the construction of wills. But I do not think it necessary to consider these general rules, or their application to the present case. General rules of this sort often serve as guides for the court when none can be found in the will. Where the will affords no satisfactory clue to the intention of the testator, the court must, from the necessity of the case, resort to legal presumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have -no application where the intention thus appears. It seems to me that the intention of the testator, in the present case, may be ascertained from the will, without any resort to technical rules. ,
We do not know the motives which led the testator to give the original shares of his children to such only of their children as should happen to survive them. He may have had a reason for, it good or bad, or it may have been the result of mere whim and caprice. But still there was a motive of some kind, and whatever it was, it must, as far as we can see, have been applicable equally to the dei’ivative shares to accrue from the death of the testator’s other children. The testator was providing for bringing the original shares together, as any of his children should die without a child or children surviving, and it was natural that he should have the same purpose in reference to the shares after they had been thus increased in amount and value, as he had in reference to them in *362their original state. If a distinction had been intended, it would have been most natural to express it by words which would indicate clearly, that while he intended, in respect to the original shares, to' exclude such of his grandchildren as should die before their parent, he had a different instruction in respect to the accrued shares.
As already alluded to the original shares are limited, in the former part of the several clauses under consideration, to the children who may be living at the death of their parents, while in the latter part; the accrued shares are limited to children, generally. But this change of phraseology does not indicate any difference of intention. The testator was, in these several clauses, making provision, in the future, for the same general .class of objects (his grandchildren), with reference to the same events (the death of his own children), and he was making it out of property which he had bound up together by cross limitations, in case any of his own children should die without child or children surviving. Having in the first part of the clause, defined precisely the class of his grandchildren for which he meant to provide, out of the original share, he would naturally have in his mind the same intention in reference to what was to be added to that share, or to go along with it, under the provision in the latter part of the clause, and he might, by a very natural process, have dropped, in the latter part of the clause, the terms of description he had used in the former, without really intending any distinction. And this view is the stronger from the fact, that the expressions we are considering are in such close connection with one another, being found in the same brief clause, and almost in the same line.
If it could be clearly shown that the word “ children” is used in other parts of the will, or in any part of it, in a general sense, as comprehending all the children which *363the testator’s children might at any time have, there would be more foundation for our argument founded on the omission in the latter part of these clauses, of the terms of description used in the former. For it might then be said that the testator had marked the distinction, by speaking of children generally, when he intended to include all, and adding terms- of description when he intended to include only a part. But this cannot be done. On the contrary, the testator has, more than once, dropped the terms of description, “ living at the death,” &c., when his meaning clearly embracedjthem. Thus, in the clause in reference to William Oarr, his original share is given, after his death, to his “ child^or children,” in general terms, not saying, as in the other clauses, “if any living at his death.” Yet the meaning was obviously the same, and it was so regarded by this court in Smith & ux v. Chapman & al. 1 Hen. & Mun. 240. We have another instance in the second codicil, where the terms of description were dropped, though the meaning was evidently the same as if they had been added. There the testator speaks of the contingency of all his children dying “ without issue of their bodies,” in general terms, where the meaning was “ without issue of their bodies ” [children] living ai théir death, as was held by this court in the case just mentioned.
The strength of the argument on behalf of the representatives of the deceased children, lies in the presumption, which, it is insisted, must be made, that the testator intended an equal benefit to each one of his grandchildren. The court is always inclined to make such a presumption, because it is in accordance with the natural affections, and the motives by which men are usually governed, and is, in most cases, therefore, in accordance with the intention of the testator. But the will now before us.affords conclusive evidence that the testator did *364not intend to confer an equal benefit upon each one of his grandchildren, for as to the original shares he expressly excludes such as shall happen to die before their parents. When we thus find that the motives and views upon which such a presumption is founded, did not control this testator in respect to the original shares of his own children which were certainly to come to their children, if any, we cannot, with any propriety, suppose that they controlled him in reference to the shares to accrue contingently upon the death of his other children. However natural and just it may be to make such a presumption in most cases, it cannot be made in this, and to act upon it would only lead us away from the real intention of the testator.
I have already shown that there is nothing in the language of these clauses inconsistent with the construction which restricts the word “ children,” in the latter part of them, to children living at the death of their parent. So far from it, the language in the latter part of these clauses, BeemS' to indicate that the testator in providing for children, had reference to a class of objects who should be in existence at the death of the parent. The testator, in each clause, gives property to one of his own children for life, and then, that is, upon the death of the tenant for life, to his or her child or children, if any then living, and if none, to the testator’s other children for life, and then, that is, upon the death of said children, “ to be equally divided among their children.” This language seems to contemplate the children provided for, as a class of persons to be in existence at the time of the division, so as to be able to participate in it. And it has béen held that where there is no gift to the objects, except in a direction to divide the subject among them upon the happening of a particular event, only such can take as answer the description at the period of division, unless a contrary intention can be collected from the will. Leake *365v. Robinson, 2 Meriv. R. 363; Jones v. Mackilwain, 1 Rus. R. 220. Vide, 2 Redfield on Wills 621.
If any doubt remains as to the right of the children of Mrs. Tebbs who survived her, to the- whole fund in controversy, it will be removed by considering the provisions of the second codicil. That codicil, according to the construction placed upon it by this court in Smith ux v. Chapman & al., makes a disposition of the property which, by the will, the testator had given to his children for life, in the event of their all dying without leaving a child or children surviving. It was as if the testator had said: “ I have, by my will, disposed of the whole of this property in the event that my children, or any of them, should have a child or children surviving, but not having disposed of it, or of any part of it, in the event that all my children should die without leaving a child or children surviving, I now proceed to dispose of the whole of it in that event.”
If Mrs. Tebbs had survived all her children, and had died in the lifetime of the testator’s widow, the contingency would have happened in which the whole property was to go over, under the codicil, one-half to the widow, and the other half to Thomas Chapman and others. Yet in that case, according to the argument of the counsel for the appellees, two-thirds of -the entire property would have been vested absolutely in the representatives of the deceased children of Mrs. Tebbs.
I am of opinion, therefore, that the children of Mrs. Tebbs who survived her were entitled to the whole of the fund in controversy, and that the decree is consequently erroneous, and should be reversed.
The other judges concurred in the opinion of Jovnes, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481689/ | Moncure, P.
delivered the opinion of the court:
The court is of opinion that while the facts certified may be sufficient to raise a strong suspicion that a part of the meat found in the possession of the prisoner or his wife was stolen property, they do not identify it as part of the hogs supposed to have been stolen from Blair Bur-well ; but on the contrary tend to show that it was not a part of the said hogs; and that the Circuit court therefore erred in overruling the prisoner’s motion for a new trial: Therefore it is considered that the said judgment be reversed and annulled. And this court proceeding to give such judgment as the said Circuit court ought to have given, it is further considered that the verdict of the jury be set aside. And the cause is remanded to the said Circuit court for a new trial to be had therein: which is ordered to be certified to the said Circuit court of Powhatan county.
JüDSMENT REVERSED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485239/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Fasia Vaifanua filed his application with the Registrar of Titles to be registered as the holder of the matai title Matagaono, attached to the Village of Afono. Objections to the proposed registration were filed severally by Galuega and Sua, each of the objectors becoming a candidate for the title. Hence, this litigation. See Section 932 of the A. S. Code.
At the opening of the hearing Sua withdrew his objection and ceased to be a candidate and a party in the case.
Section 926 of the A. S. Code as amended prescribes the qualifications for holding a matai title or name. We find *410that both Vaifanua and Galuega meet these qualifications and that each of them is eligible to be registered as the holder of a matai title or name.
Section 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of the opposing candidates for a matai name shall be registered as its holder. It reads as follows:
“Section 9BB. Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of the family;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa."
Throughout this opinion, we shall refer to Matagaono as Gaono. It was so referred to by the parties while on the witness stand.
With respect to the issue of hereditary right, the undisputed testimony shows that Vaifanua is the blood son of Gaono Laifa and that Galuega is the great-great grandson of Gaono Sinamataala. Vaifanua has one-half Gaono blood while Galuega has one-sixteenth Gaono blood. It follows, therefore, that Vaifanua prevails over Galuega on the issue of hereditary right, and we so find.
Each of the two remaining candidates (candidate Sua withdrew) filed a petition with the Court purporting to be signed by those blood members of the Gaono Family favoring his candidacy for the title. There were 108 signers on the petition for Galuega and 336 on the petition for Vaifanua.
Vaifanua admitted that 63 of the 108 signers on Galuega’s petition were blood members but denied that the other *41145 were. Galuega admitted that 56 of the 336 on Vaifanua’s petition were blood members but said that the remaining 280 were either not blood members or children who were blood members but under 14 years of age. Each of the candidates testified that all of the signers on his own petition were blood members.
Our view is that the weight of evidence is to the effect that a number of the 280 are not blood members» We think that a number of them are married persons to the family and without Gaono blood in their veins. Also we think that a number of children under 14 years of age, although actually blood members, are included in the 280. We have repeatedly held in matai name cases that a child under 14 is too young to express an intelligent opinion as to whom he wishes to be the matai where there is a vacancy in the title. And we think that a number of those on Vaifanua’s petition who did not indicate thereon descent from a Gaono may not be blood members. However, it is not probable that every one of those who did not so indicate committed a fraud when he signed for Vaifanua. We have considered all of the evidence on the issue of the "wish of the majority or plurality Of those blood members of the family related by blood to the title,” and it is our conclusion that a majority of the blood members of the family favor Vaifanua. We find for Vaifanua on this issue.
Vaifanua is 62 years of age. He completed the fifth grade in a mission school in Afono and then had about a year’s schooling in a Government school. He does not speak English, although he knows a few English words. After his schooling, he rendered service to his matai and worked on family plantations. He was the pulenuu of his village for two years. Vaifanua has held a matai title for more than 20 years. He has been generous With his fellow villagers in permitting them to use his boat without charge. Also he has furnished the village with an umuti when there was a *412shortage of food in the village. He raises tobacco and sells $80.00 to $100.00 worth of it a year. He sells a pig occasionally; also some chickens. He estimated his income from pigs and chickens at $22.00 during the last year. ■
Galuega is 43 years of age. After graduation from Poyer School, he attended Fagalele School for one year. Subsequent to his attendance at Fagalele, he attended Leulumoega School in Upolu for three years. He then returned to his home in Afono and worked on family plantations. When the war broke out, he enlisted in the Samoan Marines. Subsequent to his discharge at the end of the war, he attended the vocational school established for war veterans in American Samoa for four years, studying carpentry. After graduation from the vocational school, Galuega returned to his home in Afono and looked after family plantations. He then got a job at the Van Camp fish cannery and worked there for a couple of years. He has been a policeman since last April. Galuega speaks English quite well. He earns $43.76 a month as a policeman. He has a son who works at the Van Camp fish cannery. His son gives Galuega his pay checks, which vary from $25.00 to $50.00 a week. This money is used by Galuega for family purposes, as is the custom in Samoa. Galuega also sells mats woven by the women in his family from pandanus grown on family plantations. Galuega is not a matai title. However, Galuega is the holder of the matai name Alavatualua which is attached to the Village of Vatia. Galuega has been active in church affairs in Afono, having been a deacon from 1950 to 1959. He has composed songs for use in ceremonies at the church and was a choir leader for four years.
The Court had an excellent opportunity to observe the personalities of the two candidates during the hearing. Our finding, based upon the evidence and our observations, is to the effect that Galuega prevails over Vaifanua on the issue of forcefulness, character, personality and capacity for leadership.
*413We shall now consider the fourth issue, viz., the value of the holder of the matai name to the Government of American Samoa. Generally speaking, the value of a matai depends primarily upon his ability to handle the affairs of his family well. And this in turn depends upon his forcefulness, character, personality, and capacity for leadership. We have so stated numerous times in deciding matai name cases. See Faamalolo v. Liligo Letuli, No. 25-1956 (H.C. of Am. S.); I. Malaga v. Mase Molioo, No. 4-1957 (H.C. of Am. S.); Soonapu v. Salapu, No. 3-1958 (H.C. of Am. S.); Pito Tufono v. Kisi, No. 17-1958 (H.C. of Am. S.). As a general rule, the better a matai looks after the affairs of his family the more value he is to the Government. It is our conclusion from the evidence, and we so find on this issue, that Galuega would be of more value to the Government as the holder of the Gaono title than would Vaifanua.
However, Section 933, above quoted, provides that the Court in deciding matai name cases “shall be guided by the following in the priority (emphasis added) listedwhich means that the four issues shall be given weight in a descending order, i.e., that more weight shall be given to hereditary right than to the wish of the family, and so on down, giving the least weight to the issue of value to the Government.
It follows, therefore, that Vaifanua, having prevailed on the first two issues, should be awarded the title. However, it will be necessary for him to resign from the Vaifanua title prior to being registered as the holder of the Gaono title. He cannot hold two matai titles at the same time.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Fasia Vaifanua shall be registered as the holder of the matai name Matagaono, attached to the Village of Afono, subject to the condition that he file with the *414Registrar of Titles, within two weeks; from March 7, 1960, the date, of this, decree, his resignation from the matai name Vaifanua, attached to, the- Village of Afono.
Costs in the sum of $37.50 are hereby assessed against Galuega, the same tobe paid within 30; days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485240/ | OPINION AND DECREE
*415OPINION OF THF COURT
MORROW, Chief Judge.
Malama filed his, application to, he registered as. the holder of the matai title Leoso attached. t.o the Village of Leone, Aigamaua and Atofau filed objections to the proposed registration,, each of them hecoming a candidate, for the name. Hence this litigation-. See Sec. 932. of the A. S. Code.
Section 92.fi of the A. S.. Code, as amended prescribes; the qualifications for- holding a matai name or title.. The evidence showed that each of the three candidates, has the necessary qualifications and is, therefore, eligible to be registered as. the holder of a matai title, or name.,
Section. 93.3 of the. A. S- Code as amended, prescribes the law which the Court shall follow in making its determination as to which, one of opposing candidates for a. matai name shall be registered a.s its holder. It. reads as follows
‘•‘Consideration Given by Court: In the trial of matai name cases, the High Court shall fee guided fey the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall fee. equal in the. family where this has be,e,n customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.-”
With respect to. the issue of hereditary right, the undisputed evidence was to the. effect that Malama is the blood son of Leoso Fiavivini and has lh Leoso blood in his veins; also. that. Atofau is the great-grandson of Leoso Tafaevalu Sipa’i and has Va Leoso blood in his veins. With respect to Aigamaua, the evidence is in conflict. He claims *416to be the grandson of Leoso Vaiausia with 1U Leoso blood in his veins, and he so testified. However, Atofau, who has the records of the Leoso Family — they were given to him by Leoso Fiavivini before his death — testified that there were three Vaiausias; that two of them were Leosos while the third one was a man originally named Taele who was brought to Tutuila from what is now Western Samoa by the second Leoso Vaiausia who gave him the name Vaiausia (a young man’s name) and that this young man (originally named Taele and later named Vaiausia) was the grandfather of Aigamaua. If Atofau’s testimony is correct, Aigamaua has no Leoso blood and is at most a descendant of a man adopted by the Leoso Family. However, we think that the weight of evidence is to the effect that Aigamaua is the grandson of Leoso Vaiausia with % Leoso blood in his veins, and we so find. Malama, who has V2 Leoso blood, prevails over both Aigamaua and Atofau on the issue of hereditary right and Aigamaua with V4 Leoso blood prevails over Atofau, who has Vs Leoso blood, on this issue. In other words, Malama stands first on the issue of hereditary right, Aigamaua second and Atofau third.
Each of the three candidates filed with the Court a petition purporting to be signed by those blood members of the Leoso Family supporting his candidacy for the title. There were 273 signatures on the petition for Malama, 557 on the petition for Aigamaua, and 626 on the petition for Atofau. Each of the candidates testified that all of the signatures on his petition were those of blood members of the family. Aigamaua refused to say that any of the signers on the petitions of the other two candidates were not blood members. He testified that he “forgave” the other candidates for what they had done; that he wanted “no revenge”; and that he wanted “to preserve peace and harmony in the family.” However, Aigamaua did admit that all 273 signers on *417Malama’s petition were blood members. Malama testified that only 153 of the 557 on Aigamaua’s petition were blood members and that the remaining 404 were not. Malama also testified that only five of the 626 on Atofáu’s petition were blood members and that 621 were not. Atofau and Aigamaua both testified that all of the 273 signers on Ma-lama’s petition were blood members. Atofau testified that 128 on Aigamaua’s petition were not blood members, they being persons married to the family only and without Leoso blood. Aigamaua admitted that he procured many signatures on his petition after the following fashion: He would go to a village, contact a matai and the matai would get certain people in the village together; the matai would then tell Aigamaua that these people were members of the Leoso Family and Aigamaua would then get them to sign his petition. He had no personal acquaintance whatever with many of these people and had no actual knowledge that they were members. All that he actually knew was that the matai had told him that they were members. Knowledge that a matai had told him that a certain person was a member is an entirely different thing from knowledge that such person is a member. No doubt this accounts for some of the names on Aigamaua’s list of signers being palagi and not Samoan. For instance, we find “Rusty, Edward,” and “Herman” on Aigamaua’s petition. The weight of evidence was .that no such people exist. Aigamaua’s own testimony as to how he procured many of the signatures on his petition would indicate that a considerable number of the names on it is open to serious question. We note that there were 75 signers from Leone on Aigamaua’s petition, 108 from Leone on Malama’s, and only five from Leone on Atofau’s. The five were his own and those of four of his children.
All three of .the candidates are from Leone, and that is the village in which they are best known. Malama was very *418honest with respect to his petition. He crossed out the names of those who were only married persons to the family, These persons, since Samoans do not marry within the family, had no Leoso hlood. Both Atofaü and Aigamaua admitted that all 273 signers On Malama’s petition were blood members of the family and Malama so testified, as we have said. In view of our findings with respect to the other three issues, it is not necessary for us to make a finding with respect to the issue of the wish of the majority or plurality of the family, However, we will say, without making a specific finding, that we believe that a majority of the family wish Malama to be the matai.
Malama is 58 years old. At a family meeting held after the death of Leoso Fepulea’i, he Was selected by the family to hold the title. Candidate Aigamaua signed a petition that Malama be registered as the holder of the Leoso title, Malama graduated from the Marist Brothers School in 1919. He speaks English Well. After graduation from school, he returned to Leone, worked On family plantations, and served the Leoso title, He served as a school teacher. Later he became a clerk in Charles Scanlan’s store; still later a clerk in the G.H.G. Reid & Company store in Leone. He has worked as a stevedore for the Matson Navigation Company. For many years he has held the responsible part-time position of checker for the Matson Navigation Company, checking incoming and outgoing freight, During the war he was a checker for the United States Government, The fact that he has been a checker for many years is an indication not only of care in doing his work but also of his integrity and trustworthiness. When a former Director of Samoan Affairs went to Swains Island to check into conditions there, Malama was entrusted with handling the affairs of the Director’s office in Tutuila. For the last Six years Malama has held a responsible position in the office of Adult Education and Public Information. He *419has charge of The School of the Air for Adult Education and Public Information. Among other things it is his duty to collect information about the outside world and prepare broadcasts based on such collected information; broadcasts useful to the Samoan people. The proper preparation of the broadcasts necessarily requires considerable research. He has prepared lessons about the operation of the Government for broadcasting. He kept the public informed about the new constitution when it was being drafted. He translated into Samoan for the use of the Samoan people a book on diet prepared by a Miss Malcolm for the South Pacific Commission. He taught Feleti school teachers and also some high school teachers the Samoan language. Ma-lama has been the leading young man in the Leoso Family for 30 years. He has been entrusted by the family with maintaining the Leoso monotaga since the death of Fepulea’i about three years ago. He has served the Leoso title well. For instance, he bore about 3k of the expense incident to building the new Leoso guest fale, the remainder of the family taking care of only % Aigamaua’s contribution covered the expense for only one day. Atofau’s contribution was very small. Malama has property in Western Samoa which he rents.
Aigamaua is 52 years old. He graduated from the Marist Brothers School in 1925. He speaks English. From 1925 to 1958 he clerked behind the counter for various storekeepers; first for Alex Forsythe, then for a German firm, then for Ship’s Service. He became a clerk behind the counter for G.H.C. Reid & Company in 1942 and continued as such until 1958 when he became the manager of the Fagatogo branch store of G.H.C. Reid & Company. He has continued as such manager from 1958 to date. Aigamaua has plantations from which he sells produce at the Samoan market in Fagatogo. He sells fish from his fish trap. Aigamaua has *420held his title for 11 years. He has property in Leone which he rents. He is an energetic and industrious person.
Atofau is 53 years old. He completed the 7th grade in the Marist Brothers School. He speaks English fairly well although he testified that he spoke “not very much English.” After finishing his schooling, Atofau lived in the Leoso Family in Leone, worked on family plantations and rendered service to the Leoso. He was the secretary of a committee which prepared a book on Samoan customs for use in the Samoan High School. He has held the Atofau title for 16 or 17 years. Atofau is an industrious man. He sold $383 worth of cocoa last year. Atofau sold $236 worth of coconuts, bananas, and taro in January of this year and $190.76 worth of copra during January and February of this year. These latter items came from plantations on communal land as did the cocoa.
During the hearing, the judges had an excellent opportunity to observe the personalities of the respective candidates. It is our conclusion from the evidence and from our observations during the hearing that Malama and Aigamaua are on an equality on the issue of forcefulness, character, personality, and capacity for leadership and that Atofau ranks second to both of them on this issue.
There are a total of 188 signatures of members of the Leoso Family living in Leone on the three petitions. One hundred and eight of these signed for Malama, 75 for Aigamaua, and only five (Atofau himself and his four children) for Atofau. The three candidates have lived in Leone all of their lives. The Leoso Family members in Leone know them well. They are the very people who will live under and serve the new Leoso, while .those members living in other villages will live in other families under other matáis. The fact that so few (only five out of 188 and these Atofau himself and his four children) signed Atofau’s petition is a very convincing indication that those family *421members who know him best do not wish Atofau to be the new matai and their leader. This fortifies our conclusion that Atofau ranks second to Malama and Aigamaua on the issue of forcefulness, character, personality and capacity for leadership.
We shall next consider the issue of the value of the holder of the matai name to the Government. Samoa is coming in contact with the outside world more and more as time goes on. The new jet airfield at Tafuna will accelerate that contact. It is a good thing for the Samoan people to have as much information as possible about the outside world. In view of the recent adoption of the constitution, it is an excellent thing for the Samoan people to be informed about their Government and how it operates. The School of the Air broadcasts about the outside world prepared and put on the air by Malama are very much worthwhile as are his broadcasts about the operation of the Samoan Government. A well-informed public is beneficial to any Government. Aigamaua is managing a branch store for the G.H.C. Reid & Company. No doubt his work benefits the G.H.C. Reid & Company and himself. The agricultural pursuits of Atofau benefit himself and his family. It is value to the Government which the statute requires us to consider, not value to G.H.C. Ried & Company, Aigamaua, the Atofau Family or Atofau. Our conclusion is that Ma-lama will be of much value to the Government and that he prevails over Aigamaua and Atofau on this issue.
In view of our findings that Malama stands first on the issue of hereditary right, first on the issue of value to the Government, and on an equality with Aigamaua and ahead of Atofau on the issue of forcefulness, character, personality and capacity for leadership, it is not necessary for us to make any finding with respect to the issue of the wish of the majority or plurality of the family, and we shall not. This is true, since, if we were to find that Atofau stands *422first on .the issue of the, wish of the majority or plurality of the family, we would be required nevertheless to award the title to. Malama instead of Atofau, since Malama prevails over Atofau on the other three issues; and, on the other hand, if we were to find that Aigamaua prevails over Ma-lama on the issue of the wish of the majority or plurality of the family, it would still be necessary for us to award the title to Malama sinee we, have found that. Malama prevails over him on the issue of hereditary right,, the issue of value to: the Government and is on an equality with him on the issue of forcefulness, character, personality and capacity for leadership; that is, Malama would prevail over Aigamaua on two issues and be on an equality with him on a third, while Aigamaua would prevail over Malama on one issue only.
Our conclusion is that the matai name Leoso should be awarded to Malama.
DECREE
Accordingly, it is ADJUDGED, ORDERED and DECREED that Malama shall be registered as the holder of the matai name Leoso attached ta the Village of Leone. The Registrar of Titles will be so notified.
Costs in the sum of $37.50 are hereby assessed against Aigamaua and a like sum against Atofau. Costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481235/ | THE THIRTEENTH COURT OF APPEALS
13-21-00173-CV
KEITH ANTHONY RAMOS, M.D., AND ZORALY NUNEZ RAMOS
v.
NATIONSTAR MORTGAGE, LLC, AND WELLS FARGO BANK,
NATIONAL ASSOCIATION, AS TRUSTEE FOR LEHMAN MORTGAGE
TRUST PASS-THROUGH CERTIFICATES, SERIES 2007-4
On Appeal from the
93rd District Court of Hidalgo County, Texas
Trial Court Cause No. C-0416-15-B-1
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellants.
We further order this decision certified below for observance.
November 3, 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481239/ | THE THIRTEENTH COURT OF APPEALS
13-21-00070-CV
DINA CAVAZOS
v.
STRYKER SALES CORPORATION
On Appeal from the
117th District Court of Nueces County, Texas
Trial Court Cause No. 2014DCV-0851-B
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of the trial court should be reversed and the cause
remanded to the trial court. The Court orders the judgment of the trial court REVERSED
and REMANDED for further proceedings consistent with its opinion. Costs of the appeal
are adjudged against appellee.
We further order this decision certified below for observance.
November 3, 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481242/ | NUMBER 13-22-00304-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF M.R. AND X.R., CHILDREN
On appeal from the County Court at Law
of Aransas County, Texas.
ORDER
Before Justices Longoria, Hinojosa, and Silva
Order Per Curiam
This is an appeal of a final order terminating parental rights. The notice of appeal
was filed on July 5, 2022, and appellee’s brief was due on October 31, 2022. Appellee
has filed a motion for extension of time, providing the reason for its request therein.
Appellee requests until November 15, 2022, to file the brief.
Appeals in parental termination and child protection cases are governed by the
rules of appellate procedure for accelerated appeals but include additional expedited
deadlines and procedures. See TEX. R. APP. P. 28.4; TEX. R. JUD. ADMIN. 6.2(a). The
intermediate appellate courts are directed to ensure “as far as reasonably possible” that
appeals in such cases are brought to final disposition within 180 days of the date the
notice of appeal is filed. See TEX. R. JUD. ADMIN. 6.2(a). Accordingly, it is the policy of this
Court to limit extensions of time in such cases absent truly extraordinary circumstances.
See TEX. R. APP. P. 38.6(d).
We GRANT IN PART and DENY IN PART appellee’s motion for extension of time
and ORDER appellee’s brief to be filed on or before Monday, November 14, 2022. No
further extensions of time will be granted absent truly exigent and extraordinary
circumstances.
PER CURIAM
Delivered and filed on the
2nd day of November, 2022.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481826/ | Moncure P.
delivered the opinion of the court.
This is an appeal from a decree of the Chancery Court of the city of Eichmond rendered on the 31st day of October 1871, perpetually enjoiningthe said city from taking, or otherwise interfering with, the property of the complainant in the bill mentioned, for the purpose of widening Franklin street; unless, and until, the defendant shall acquire the legal right to do so in the mode prescribed by law.
The said property consists of a narrow strip of land lying on the north side of Franklin street, between Jefferson and Madison streets, inside of the complainant’s enclosure; and which has been within the enclosure of the complainant, and of those under whom he claims, continually for more than sixty years last *168Pas^ ’ whicb the city has never had the possession or enjoyment, for any purpose, for a single instant; hut which it claims to be entitled to as a part of Franklin street, under an alleged dedication thereof, ma<^e more than seventy years ago, by Thomas Rutherford, in his addition to the city of Richmond. The learned chancellor who decided the cause in the court below, delivered at the time a very able opinion, which is referred to in the decree appealed from, and thereby made a part of the record' in the cause. That opinion covers the whole case, and strongly presents ttie principles on which it rests; and as we entirely concur in it, we deem it sufficient to express such concurrence, without adding anything to what is there said, or saying substantially the same thing in different words.
Therefore, for the reasons assigned by the chancellor as aforesaid, we are of opinion that there is no error in the said decree and that it ought to be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481827/ | Christian, J.
delivered the opinion of the court.
These cases involving precisely the same question were heard together. They are before the Court on applications made by the parties respectively, for writs of mandamus to compel the second auditor to fund certain bonds' and interest thereon accrued of the State of Virginia, according to the provisions of the act of the General Assembly approved March 30th, 1871, in coupon bonds payable to bearer with coupons receivable at and after maturity for all taxes, debts, dues and demands due the State, as to two-thirds of the principal and interest, &c.
In each case this Court awarded a rule upon the second Auditor to show cause why said writs of mandamus should not issue.
To this rule the secondAuditor answered, “ that there is no law authorizing respondent to fund any of the said *170^on<^s *n bonds with coupons receivable for taxes; the act of 1871 having been repealed before the presentation to resPonc^en^ the bonds mentioned in said petitions. He is willing and has been ready and willing to fund sa'rá bonds and coupons into bonds with coupons annexed, but without the receivability clause annexed thereto; c^ass bonds the said parties can get by calling at his office and filing the original bonds and coupons as provided by the act of March 30th, 1871.”
The cases are submitted upon the rules and answer-of the Auditor; which is the same in both cases.
The records show that the petitioners, Wise Bros., presented their bonds to the 2nd Auditor on the 22nd March 1873, and the petitioners Maury & Co., on the 24th March, 1873.
On the 7th March 1872 the Legislature passed the following act:
1. Be it enacted by the Genei’al Assembly of Virginia, that hereafter it shall not b,e lawful for the officers charged with the collection of taxes, or other demands of the State, due now or that shall hereafter become due, to receive in payment thereof, anything else than gold or silver coin, United States treasury notes or notes of the National banks of the United States.
2. All acts and parts of acts inconsistent with this act are hereby repealed.
3. This act shall be in force from and after its passage.
This act is a direct and unconditional repeal of so much of the second section of the act approved March 30th, 1871, entitled “ an act to provide for the funding and payment of the public debt ” as declares that “ the coupons shall be payable semi-annually,and be receiva ble at and after maturity for all taxes, debts, dues and demands, due the State, which shall be so expressed on their face.”,
*171The act must therefore now be read as if these words were stricken out. And while it is true, as decided by this Court in Antoni v. Wright, Sheriff, 22d 838 Gratt., that those who had come forward and funded their bonds according to the provisions of the act of March 30th, 1871, could not be affected by the act of March 7th, 1872, and that as to them the act was unconstitutional and void, because it impaired the obligation of the contract which the State had entered into with all its citizens, who had cepted the provisions of the former act before the passage of the latter; it is equally clear, that the act of March 7th, 1872, is valid and binding upon all those who did not avail themselves of the provisions of the funding bill, before the passage of that act. The Legislature had the unquestioned right to amend, modify or repeal the act of March 30th, 1871; and those who like the petitioners, delayed the presentation of their bonds until after the passage of the act March 7th, 1872, must be held bound by the provisions of that act.
The court is therefore of opinion that the second auditor was right in the opinion, that “ he had no authority under existing laws, to fund the stock referred to in the manner proposed: to wit, into coupon bonds with coupons attached receivable for taxes fc ;” and that the rules awarded against him having been fully answered, must be dismissed.
Rules dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481828/ | Anderson J.
delivered the opinion of the court.
These causes all rest upon the same ground, and involve the same question. Bach of them is a petition for a mandamus, to compel the second auditor to fund, in the name of the petitioner, certain certificates of stock, according to the act of 30th of March 1871. That act authorizes the funding of two-thirds the amount of “ any of' the bonds, stocks, or interest certificates, heretofore issued by this State, which are recognized by its constitution and laws as legal, except the 5 per centum dollar bonds, and what are known as sterling bonds,” &c. The second auditor in his answer to the several petitions of the plaintiffs, avers that the said bonds or certificates of indebtedness, claimed by the plaintiffs respectively, have not been recognized by the constitution as legal, and are therefore not authorized, by the act aforesaid to be funded. The provision in the constitution (Art. 10§10,) is, “Bo appropriation shall ever bo made for the payment of any debt or obligation created in the name of the State of Virginia, by the pretended and usurped State authorities assembled in Richmond during the war.” It appears from a certificate of the second auditor, that the stock was issued to the James River and Kanawha Company, under the second section of an act of the legislature of Virginia, passed March 18th, 1862; and we think that a mistake in the date of the act in its recital in the certificates of stock, is a clerical error, which may be corrected by the records of the office from which they issued. It is further shown that *174the certificates of stock claimed by the plaintiffs, Francis Tates, Charles Aglionby, and Julia Terrell, were transfprredi by said James River and Kapawha Compaq ny to R. H. Maury & Co., October 30th, 1862; by them to J. H. Strider, November 1st, 1862, and by him to the said parties respectively, January 2d, 1863; and that the certificate of stock claimed by Mrs. Mary L. Meredith, was transferred by the said James River and Kanawha Company to Wm.M. Sutton & Co., January 7th, 1864, and by them to Mrs. Mary L. Meredith, January 21st, 1864. It thus appears that the several certificates of indebtedness, claimed by the plaintiffs respectively, are parts and parcels of liabilities assumed by the legislature during the war, and were created by an act of the legislature of 1862.
It might be questioned whether the legislature which passed the act aforesaid, comes within the terms of description used in the constitution, “pretended and usurped State authorities assembled, in Richmond during the war.” Though this court might be ever so clearly of opinion, that the legislature of 1862 does not answer the description cf a pretended and usurped authority, yet they cannot doubt, that within the contemplation of the framers of the constitution, it falls within that description; and that said clause of the constitution, was designed to invalidate every obligation on the part of the State for the payment of money created by act of the legislature during the war.
Then the question would arise, whether such provision of the State constitution is consistent with Article I, see. x, clause 1, of the constitution of the United States. But that question does not arise in these causes. The only question upon which they turn, is, whether the claims sought to be funded by these proceedings, are embraced by the act of March 30th, 1871; and if they *175are not recognized by the constitution and laws, (as we have seen they are not,) whether their repudiation by the constitution is valid or not," no provision' is'made by the act of March 30th, 1871, nor authority given to the auditor, for.funding>■,them. Therefore the 2d auditor, in declining to fund them, acted strictly within the line of his duty; and the mandamus must be refused in each case.
Mandamus denied. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481829/ | Moncure, P.
This is an action of debt, brought by a sheriff against his deputy and the sureties of thej deputy, on the official bond of the deputy, to recover the of a judgment rendered] against the sheriff for the default of the deputy, in not duly accounting for money made by the latter under execution. The only question presented by the record is, whether the judgment rendered against the sheriff in such a case, the deputy having attended the trial and made full defence to the action, is binding and conclusive upon him and his sureties, in the action of the sheriff against them?
That it is binding and conclusive upon the deputy himself is certainly true, according to the best settled principles of the law. That it is at leást prima facie evidence against his sureties is also true. But whether it is conclusive evidence against them, is a question which we now have to solve.
Why is it not also conclusive against them? The sheriff is presumed to know nothing, and generally, in fact, does know nothing, of the acts and defaults of his deputy, in the execution of the office of such deputy, and the sureties of the deputy are equally ignorant of such aet3 and defaults. The only person who is presumed to know anything about them is the deputy himself, who, of course, knows all about them. He is primarily liable for them, and is bound to indemnify against all loss and damage arising from them, not only his own sureties, but the sheriff also. When, therefore, an action is brought against the sheriff to recover damages arising fronrany of these acts and defaults, the sheriff' has a right, and it is an act of prudent precaution on his part, to throw the burden and responsibility of defending the action upon the deputy, whose action it, in effect, is. It is due both to the deputy and his sureties that this should be done. There would be no reason and no pro*180priety in throwing this burden on the sureties, who have not the necessary information to enable them to bear it. have no more information on the subject than the sheriff has, if so much. They have no right to require the sheriff to do more than to notify the deputy to defend the action, and having done that, the sheriff' may leave the defence of the action to the deputy; and may look to the deputy and his sureties for full and complete indemnity against any judgment which may be recovered in the action, and against the costs of defending it. We have seen that this is certainly the case in regard to the deputy. Why is it not also the case in regard to his sureties? They have voluntarily placed themselves in his shoes. They have become sponsors for him; have expressly undertaken that he will faithfully perform the duties of his office, and will well and truly indemnify the sheriff against all loss and damage arising from the acts and defaults of the deputy. • When, therefore, his default is established, in a judgment against the sheriff rendered in an action defended by the deputy, why should not the judgment be conclusive against the sureties of the deputy, as it certainly is against the deputy himself? According to the true intent and meaning of the bond, it binds the sureties as well as the deputy, to to pay such a judgment in exoneration of the sheriff'. Without doing so, the deputy will not in all respects indemnify and save harmless the sheriff' from all loss and damages in any wise arising from the conduct of the deputy in his said office, for which he and his sureties expressly bound themselves, jointly and severally, to the sheriff. Suppose the condition of the bond had been that the deputy and his sureties would pay all judgments recovered against the sheriff for the deputy’s default during his continuance in office; and suppose that a judgment had been recovered in an action against *181the sheriff for such a default, which action was defended by the deputy, would not the sureties, as well as the deputy, have been conclusively bound by such a judgment? Would it not have been included in the very terms of the condition ? Could it be said that there was no privity of contract between them and the shei’iff in such a case ? Upon the same principles, and for the same reason, I think the sureties are conclusively bound by the judgment in this case. If there had .been any fraud or collusion between the sheriff and his deputy in the defence of the action against the sheriff, the case would have been different, and the sureties would not have been bound by the judgment. But it is not pretended that there was any such fraud or collusion, and in fact there was none. The defence appears to have been bona fide, and the judgment was recovered against •the sheriff in invitum, both as to him and the deputy.
But the cases of Munford &c., v. Overseers of the Poor of Nottoway, 2 Rand. 313; and Jacobs v. Hill &c., 2 Leigh, 393, are relied on by the learned counsel for ■the plaintiffs in error, to show that the judgment was only prima facie and not conclusive evidence against the sureties. I will now enquire whether they or either of them can have any such effect.
And first, as to the case of Munford &c. v. Overseers of the Poor of Nottoway:
In that case it was held that a judgment against a principal in a bond is not conclusive evidence against his sureties. It was an action of debt brought in the name of the Governor of Virginia, for the benefit of the overseers of the poor of hfottoway county, against Mun-ford and others, on a bond given by said Munford for the faithful discharge of his duties as sheriff, with the other •defendants as his sureties. The only question in the ■case was, whether a judgment which had been recov*182ered by the overseers against the sheriff' as collector of P00r rates of the county, was conclusive evidence that the sheriff had been appointed to collect them, and precluded and estopped the sureties from giving any evidence going to contradict that fact. It was admitted that judgment was conclusive of that fact against the sheriff, or rather would have been conclusive of it in a separate action brought against him; but whether it was conclusive in an action against the sureties, or even in an action brought against the sheriff and his sureties jointly, was the question. “ The question how far sureties,” says Judge Green in delivering his opinion in the case, “are bound by a judgment or other evidence against their principal, which estops or concludes him, has never, as far as I am informed, been settled in this court, except in the case of Baker v. Preston and others, Gilm. 235, decided in a special court. In that case it was decided that the treasury books kept by Preston were conclusive evidence against him, and estopped him from giving any evidence to contradict them, and that hissureties were, in like manner, estopped and concluded. The court argued that if a judgment against the principal would conclude his sureties, so ought the evidence on which such judgment is rendered to conclude them.” But Judge Green proceeded to show that the cases relied on by the special court did not sustain it; and after reviewing the authorities on the subject, he concludes: “I think, therefore, that the question is still open, whether a judgment against the principal is conclusive evidence against the sureties or not.” He then pi’oceeds to give his views upon the question thus: “ The general rule is that verdicts and judgments bind conclusively parties and privies; because privies in blood, in estate, and in law, claim under the person against whom the judgment is rendered; and they claiming his rights* are, *183of course, bound as he is. But as to all others, they are not conclusively binding; because it is unjust to bind a party by any proceeding in which he had no opportunity of making a defence, of offering evidence, of cross examining witnesses, or of appealing, if he was dissatisfied with the judgment; and this is called by the court in Bourke v. Granberry, ‘ a golden rule,’ Gilm, 16, 25. Sureties and joint contractors do not claim to any purpose under their principal, or under each other.” “ There are cases,” the Judge then proceeds to say, “ in which those who are not parties to the suit, and do not claim under either of the parties, may be bound by the judgment, as in the cases of contracts of indemnity, and in the nature of contracts of indemnity, and in those cases in which a person, although not in form a party to the suit, is bound to assist in the prosecution or defence, and either does so in fact, or, having notice of the pendency of the suit, fails to do so. But these cases do not come within the principle or reason of the general rule aforesaid; and the case of principal and surety, so far as it relates to the effect upon the sureties, of a judgment against the principal, does not come within the reason of this latter class of cases, but within the general rule.”
How the case we have under consideration falls under the latter class, and not under the general rule referred to by Judge Green ; and what he says tends, therefore, to sustain the view that the judgment in this case was conclusive against the sureties as well as against the deputy. Their bond is a bond of. indemnity within the meaning of the class of cases referred to, and the deputy was a person, in the meaning of those cases, who, although not in form a party to the action against the sheriff, was bound to assist in defence of the same and did so in fact.
*184Secondly, as to the case of Jacobs v. Hill &c.:
In that case a motion was made against a'sheriff for deof his deputy, upon which the sheriff'with the assent of the deputy, but without the knowledge of his sureties, confesses judgment: Held, the record of this judgment is admissible evidence against the deputy’s sureties, upon a motion by the sheriff against the deputy and his sureties. There the proceeding was upon the official bond of a deputy sheriff which was to some extent an indemnifying bond, and somewhat though not precisely like the bond in this case. It was not necessary to decide, and was not decided in that case, that the judgment against the sheriff was not conclusive evidence against the sureties of the deputy, but it was sufficient to decide, as it was decided, that the said judgment was prima facie evidence against them. The remark of Judge Garr in delivering the opinion of the court, that “ this, we think was ample evidence of the fact, and charged his sureties, unless disproved by them,” was extra-judicial as to the concluding words, “ unless disproved by them,” and seems in that respect to have been made without adverting to the distinction noticed by Judge Green, as before mentioned.. 2 Rand. 318. Judge Carr treated the case before him as a case falling under the general' rule which governs the ease of principal and surety, instead of a case falling under the exceptions, which include cases of contracts of indemnity and the like. Whether it properly fell under the one or the other, the result of the case would be precisely the same.
In that case the judgment against the sheriff' was by confession, though with the assent of the deputy, and it was therefore contended by the sureties of the deputy, that it did not bind them; there being, as they said, no other evidence of the deputy’s default. But the court said the redbrd showed that the motion against the *185sheriff was for judgment for the amount of the clerk’s tickets for fees put into the hands of his deputy, and that upon this motion the deputy assented in open court to the confession of judgment by the sheriff'; in other words confessed that he had received the clerk’s tickets and had not accounted for them; this, the court thought, “ was ample evidence of the fact, and charged his sureties, unless disproved by them.” Had the judgment been rendered against the sheriff, not by confession, but in invitum,, and against the utmost resistance of the deputy, the court might have thought the judgment conclusive, not only against the deputy but also against his sureties. In the case now under consideration the judgment against the sheriff was in invitum, and against the utmost resistance of the deputy, who was present on the trial, was examined as a witness for the defendant, and seemed to be the person manifesting the most interest in the progress and result of the action.
Besides the two cases relied on by the counsel for the plaintiffs in error, my attention has been called to the case of Cox and als v. Thomas’ adm’x, 9 Gratt. 323, as also tending to show that the judgment against the sheriff is only prima facie, and not conclusive, evidence against the sureties of the deputy in this case. But it is enough to say, that it does not appear that the deputy was present on the trial of the motion against the sheriff in that case, or had any notice of such trial or motion, and yet the court considered the judgment recovered against the sheriff, showing that it was for the default of the deputy, suprima facie evidence of such default, or the trial of a motion by the sheriff against the deputy and his sureties, to recover the amount of such judgment. Had the deputy been notified of the motion against the sheriff, and attended and made the best defence he could upon the trial, the judgment rendered *186against, the sheriff might have been considered coiiclusiye evidence against the deputy and his sureties. It may be said of this case also, as was said of Jacobs v. Hill &c., that the effect was precisely the same whether the evidence was regarded as prima facie or conclusive in the particular case; and therefore it was immaterial to discriminate between the two for the purpose of deciding the case in hand.
Since writing the foregoing opinion my attention has been called by my brother Staples,to a great many cases in the reports ot some of our sister States, and especially New York, which seem to have an important bearing upon this case, and some of which he supposed might be in conflict with the views expressed in the said opinion. I have examined all those cases, I believe, and only one or two of them, if any, seem to be in conflict with those views. While most of them lay down or affirm the general principle that a judgment is conclusive only against, parties or privies, they admit that there are exceptions to the general rule; and the question in each case is, whether it falls within the general rule or one of the exceptions to it. There are two propositions which none of these cases seem to deny. And they are, 1st, that where one party is bound to indemnify another against a liability, the latter may notify the former to defend a suit brought to enforce such liability, and the judgmeut recovered in such suit will be conclusive evidence in a suit by the latter against the former to enforce such indemnity. And, 2ndly, when by the terms of the contract of indemnity, express or implied, the indemnifying party and his sureties can be considered as contracting for the payment of any judgment which may Joe recovered against the party indemnified, on account of an act or default to which the contract of indemnity applies, then the indemnifying party and-his *187sureties are bound by privity of contract for tbe payment of such judgment, which is therefore conclusive, not only against the principal indemnifier but his sureties also; at least if notice of the pendency of the suit in which such judgment was obtained was given to the principal, although no such notice was given to the sureties. These two propositions, so well established by reason and authority, amply sustain the views I have expressed, and emphatically so in a case like this, in which the contract of indemnity is a bond by a deputy sheriff and his sureties, not only that he “shall, in all things,well and truly and faithfully discharge the duties of his said office of deputy sheriff during his continuance therein; ” but also that he “ shall, in all respects, indemnify and save harmless the sheriff and all other persons, from any loss and damage in any wise arising from the conduct of the said deputy in the said office.” In the case of Thomas v. Hubbell &c., 15 New York R. 405, which is the principal if not the only case of those referred to, apparently in conflict with the views before expressed, the condition of the bond was, only that the principal obligor would “ do his duty as deputy sheriff; ” and not, further, as in this case, that he would “in all respects indemnify and save harmless the sheriff and all other persons from all loss and damage in any wise arising from the conduct of the deputy in the said office.” The court in that case held, that the terms and condition of the bond did not bring it within the class of cases in which an indemnitor is concluded by the result of the suit against the person whom he has undertaken to indemnify, upon the ground that such is the fair interpretation of the contract. Ve have reason to believe that the court would have been of a different opinion if the condition of the bond in that case had been the same as in this. In Westervelt v. Smith, 2 Duer’s R. 449, the condition of the *188bond was substantially the same as in this. And in regard to that case, the court, in Thomas v. Hubbell &c., that it “was reviewed in this court and put upon the ground that itfell within the class of cases before alluded to, in which one has stipulated to be bound by the event of a suit between strangers.” The case of Thomas v. Hubbell &c., therefore, can not in fact be said to be in conflict with the views I have expressed. But if it could he, and there were other such cases, yet not being of binding authority with us, I would consider it proper for this court to lay down and follow the rule indicated by those views, which rule I consider much more reasonable and just than the contrary. That rule is, that where the condition of the bond of a deputy and his sureties to the sheriff is such as it is in this case, a judgment rendered against the sheriff for the default of a deputy, in a suit which was defended by the deputy, or which he was duly notified to defend, and had an opportunity of defending, is conclusive evidence, in the absence of fraud or collusion, not only against the deputy, but against his sureties also. That such is the true rule in this State, I think the Code of 1860, chapter 49, sections 41 and 42, page 287, giving a summary remedy to the sheriff and his sureties against the deputy and his sureties, and the decisions of this court in regard to those provisions of law, especially the cases of McDaniel & als. v. Brown’s executor, 8 Leigh 118, and Scott’s adm’r v. Tankersley’s exo’r, 10 Id. 581, strongly tend to show.
The fact is that the relation which has always subsisted in this State, from the eai’liest times, between the sheriff and his deputy, naturally gave rise to such a rule, and made it proper and necessary. Formerly, we know, that the sheriff, rarely if ever, performed any of the duties of the office; which was the only reward conferred upon the justices for their public ser*189vices. And they were permitted to farm the office to a deputy, who performed all the duties, and gave to the sheriff bond, with sureties, conditioned for his full indemnity against all the acts and defaults of the deputy. Under such circumstances, it was meet and fit that when a suit was brought against the sheriff', for any act or default of the deputy, it should only be necessary for the former to notify the latter, of the pendency of the suit in order to make the judgment rendered in such suit conclusive evidence, not only against the deputy, but his sureties also, in a proceeding against them for the indemnity of the sheriff' against such act or default. The relations between the sheriff and his deputy, and the terms of the official bond of the latter and his sureties, made it his duty to defend such a suit, which he only in fact could do, and made the judgment rendered in it conclusive, both against him and them, in the absence of fraud and collusion, though he only had notice of the pendency of the suit. To have required the sheriff’ in order to make the judgment thus conclusive, to give such notice, not only to the deputy but to all his sureties, would have been unreasonable in the last degree. The penalty of the bond is large, and we know very well that the sureties are often numerous and scattered. To give notice to them all, including the representatives of such as are dead, would be extremely inconvenient, to say the least of it; and what good purpose would it answer ? The sureties know nothing of the facts and could only notify the deputy to make defence. But that, according to the requisition of the rule is supposed to have been already done for them by the sheriff.
I am, therefore, for affirming the judgment of the Circuit court.
Christian, Anderson and Staples, Jr., concurred in the opinion of Moncure P.
*190Bouldin, J. I have felt some difficulty, under the decisions and intimations of opinion of this court and °^er authorities, in reaching the conclusion that a judgment against a high sheriff for the deputy’s default can regarded as higher than prima fade evidence mere]y against the sureties of the deputy. But the conclusion reached by the court is in my opinion just, reasonable, and conclusive, and I yield my doubts to the • concurring opinions of the other judges.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481830/ | Christian, J.
delivered the opinion of the court.
The court is of opinion that there is no error in the decree of the circuit court of the city of Richmond.
It is conclusively shown that the appellant did not comply with his contract. That contract bound him to pay for the corn purchased of the appellee, upon its delivery on board the vessel which was to convey it to the city of Richmond. Neither the appellee nor his agent was present when the vessel received her cargo. An agent of the appellant arrived after the vessel had sailed, and says he sought the appellee, for the purpose of paying for the corn, but failed ft) meet him. But even then, according to his own statement, he did not have the money, but had a blank check which he expected to fill up and deliver to the appellee. The appellee was not bound to receive a check; and if he had seen the agent, he had a right to refuse the check and sell the corn as his own.
Under the contract, there was no obligation upon the appellee to detain the vessel a moment after the corn was delivered. When that was done, and the vessel was ready to sail, the appellant not being present to pay, according to his contract, the appellee was at once released, and had the unquestioned right to sell or con*194sign the cargo to whomsoever he might please. This was his legal right under any circumstances; but the appellee in this case was fully justified in the course he took, by the extraordinary circumstances which then surrounded him. At that time (February 1863) an hour’s detention might have occasioned the loss of both vessel and cargo. The blockading vessels of the United States were almost daily in the waters of the York. It was with difficulty that any communication by water could be had with that section, and the few vessels trading in that river were running constant risks of capture. This was well known to the parties; and the knowledge of this fact required the appellant to act with the greatest promptness in the execution of his contract. His failure to do so released the appellee from all obligation under the contract.
It is further shown in the record before us, that the cargo was consigned by the appellee to Logan Waller & Co., then commission merchants in this city. But before the cargo reached its destination, an injunction was obtained by the appellant, enjoining and restraining the appellee and Logan "Waller & Co. from, selling it; and in this injunction suit an order was made to sell the corn, which was accordingly done and the proceeds of sale were deposited in the Bank of Virginia, where it remained until it perished with the fall of the -Confederate government and the consequent destruction of the Confederate currency.
The loss thus occasioned was manifestly caused, first, by the failure of the appellant to comply with his contract, and the assertion afterwards, of an unjust demand, the consequence of which was the loss to the appellee of the whole proceeds qf the sale of the corn. The burden of this loss has been properly fixed by the court below upon the party who caused it.
*195The court is further of opinion that so far from being a ground of error (as assigned in the petition of appeal) it was entirely proper for the court below adjust the rights of the parties as established by the record, instead of simply dissolving the injunction and dismissing the bill. The plaintiff, having invoked the extraordinary jurisdiction of the court by way of injunction, and the defendant having answered the bill, and the case having been submitted upon full proofs on the issue thus made, and the defendant having established an equitable demand against the plaintiff, there was no reason why the court should stop with the dissolution of the injunction. ÜSTor is there any rule of equity practice which required the court to turn the defendant-out, to a suit on the injunction bond in a court of law. On the contrary, the court having jurisdiction of the subject matter and the parties, it was competent and proper for the court to dispose of the whole case, and to adjust completely the respective rights and obligations of the parties as established by the proofs before it.
There is only 01 e other ground of errorassigned necessary to be noticed, an d that is, that there was no proof in the cause showing the depreciation of Confederate currency, and that the case ought to be sent back for an enquiry by a commissioner to ascertain the value of the Confederate currency which the appellee lost. The amount of Confederate money deposited in bank was $8,500. The sum decreed against the appellant is $369.50, showing the scale adopted by the court to be $23 to one. It is not suggested that this is not the true scale, or that the decree is for too large a sum; but simply that there is no proof in the record as to what ivas the scale of depreciation at the time of the sale. This court will not reverse the decree on this ground, but will rather pre*196sume that a broker’s scale, which was universally adopted by the courts as proof of the value of Confederate money, was before the court when the decree was ren¿ere(p guch presumption may well be made in the absence of any suggestion, from any quarter, that the decree is for too large a sum.
We are of opinion that the decree of the Circuit court of the city of Richmond should be affirmed.
Decree aeeirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481243/ | NUMBER 13-22-00531-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE GERALD MORA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Longoria1
On November 1, 2022, relator Gerald Mora filed a pro se petition for writ of
mandamus seeking to compel the trial court to vacate a judgment adjudicating guilt in trial
court cause number 08-CR-3883-G(S1) in the 319th District Court of Nueces County,
Texas. 2
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
2 We note that the intermediate appellate courts lack jurisdiction to grant writs of habeas corpus in
In a criminal case, to be entitled to mandamus relief, the relator must establish
both that the act sought to be compelled is a ministerial act not involving a discretionary
or judicial decision and that there is no adequate remedy at law to redress the alleged
harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);
In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam);
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the
relator fails to meet both requirements, then the petition for writ of mandamus should be
denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207,
210 (Tex. Crim. App. 2007) (orig. proceeding).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. See State ex rel. Young, 236 S.W.3d at 210; In re Pena, 619 S.W.3d 837, 839 (Tex.
App.—Houston [14th Dist.] 2021, orig. proceeding); see also Barnes v. State, 832 S.W.2d
424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a
pro se applicant for a writ of mandamus must show himself entitled to the extraordinary
relief he seeks.”). In addition to other requirements, the relator must include a statement
of facts and a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the appendix or record. See generally TEX. R. APP. P. 52.3
(governing the form and contents for a petition). Further, the relator must file an appendix
and record sufficient to support the claim for mandamus relief. See id. R. 52.3(k)
criminal cases. See TEX. GOV’T CODE ANN. § 22.221(d); Ex parte Braswell, 630 S.W.3d 600, 601–02 (Tex.
App.—Waco 2021, orig. proceeding); In re Quinata, 538 S.W.3d 120, 120–21 (Tex. App.—El Paso 2017,
orig. proceeding); In re Ayers, 515 S.W.3d 356, 356–57 (Tex. App.—Houston [14th Dist.] 2016, orig.
proceeding) (per curiam).
2
(specifying the required contents for the appendix); R. 52.7(a) (specifying the required
contents for the record).
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has not met his burden to obtain
mandamus relief. Therefore, we deny the petition for writ of mandamus. See TEX. R. APP.
P. 52.8(a), (d).
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
2nd day of November, 2022.
3 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481244/ | NUMBER 13-22-00518-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE INTEX RECREATION CORP.
On Petition for Writ of Mandamus.
ORDER
Before Chief Justice Contreras and Justices Benavides and Tijerina
Order Per Curiam
On October 28, 2022, relator Intex Recreation Corp. filed a petition for writ of
mandamus contending through five issues that the trial court abused its discretion by
granting a motion for summary judgment which implicates issues regarding parental
immunity, proportional responsibility, the standard of care, the “reasonably foreseeable
risk” of personal injury, and contributory negligence.
The Court requests that the real parties in interest, Jaime Flores and Veronica
Flores, individually and on behalf of the estate of A.F. and as next friend of J.C., minor
child, and William Kobus, or any others whose interest would be directly affected by the
relief sought, file a response to the petition for writ of mandamus on or before the
expiration of ten (10) days from the date of this order. See TEX. R. APP. P. 52.2, 52.4,
52.8.
PER CURIAM
Delivered and filed on the
31st day of October, 2022.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350147/ | 12/23/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0404
No. DA 22-0404
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TYLIN JAMES WEBER,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including January 30, 2023, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
December 23 2022 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350146/ | Filed 12/23/22 In re Autumn G. CA2/2
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 TWO
In re AUTUMN G. et al., B316536
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No.
21CCJP04304A-C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JESSICA J.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County, Tamara E. Hall, Judge. Affirmed.
Marsha F. Levine, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
______________________________
Defendant and appellant Jessica J. (mother) challenges the
juvenile court’s exercise of dependency jurisdiction pursuant to
Welfare and Institutions Code section 3001 over her three
children, Autumn G. (Autumn, born July 2005), Aiden G. (Aiden,
born Apr. 2007), and Daniel J. (Daniel, born Aug. 2009).2
Because the jurisdictional findings and orders are supported by
substantial evidence, we affirm.
BACKGROUND
I. The Collision
On the evening of August 22, 2021, following a party at a
park to celebrate Daniel’s birthday, mother drove her car with
her boyfriend, Michael L. (Michael), Daniel, and Daniel’s friend,
12-year-old Robert M. (Robert), as passengers. Mother’s car
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 We refer to Autumn, Aiden, and Daniel, collectively, as
minors. Raymond G. (Raymond) is Autumn and Aiden’s
presumed father. Daniel’s father is unknown. Neither father is a
party to this appeal.
2
collided with several parked cars. Daniel and Robert sustained
seat belt abrasions and complained of neck pain.
A California Highway Patrol (CHP) officer who responded
to the scene of the collision “detected a very strong odor of an
alcoholic beverage emitting from [mother’s] breath and person”
and noted that her “speech was slurred and fast.” Mother’s eyes
were watery and red and her gait was unsteady. She denied that
she had consumed alcohol prior to driving but was unable to
perform a field sobriety test. Mother was arrested for driving
under the influence of alcohol. (Veh. Code, § 23153, subd. (a).)
A test of mother’s blood alcohol content subsequently
returned at a level of 0.25 percent—“‘well above’ the legal
drinking limit” to drive.3
II. Referral; DCFS’s Initial Investigation
The Los Angeles County Department of Children and
Family Services (DCFS) received a referral regarding the
collision, alleging severe neglect of Daniel, with Autumn and
Aiden also at risk. Based on the referral, a DCFS social worker
conducted several interviews in early September 2021.
A. CHP officer
According to the responding CHP officer, mother “was
behaving ‘up and down’” when she was transported to the
hospital after the collision. For example, she initially said that
she would comply with giving a blood sample and rolled up her
sleeves. She then changed her mind, rolled her sleeves back
down, and stated, “‘You’re going to have to fight me!’”
3 “It is unlawful for a person who has 0.08 percent or more,
by weight, of alcohol in his or her blood to drive a vehicle.” (Veh.
Code, § 23152, subd. (b).)
3
Robert and Daniel had given detailed statements regarding
mother’s drinking on the evening of the collision. Robert knew
that mother and Michael had been consuming alcohol and that
“mother was in no condition to drive.” Both children reported
“that mother and Michael were drinking out of ‘Solo’ plastic cups,
as in trying to hide the fact that they were consuming alcohol in a
public park.”
B. Mother
Mother stated that the only alcohol she consumed on
August 22, 2021, “was a ‘few drinks’ before heading out to the
park” to celebrate Daniel’s birthday. When asked to elaborate,
she “state[d] that she actually only had one tall Michelada.”
Mother denied that she consumed any alcohol at the party and
claimed that a problem with her car’s power steering caused the
collision.
Mother stated that she only consumed alcohol on special
occasions and would have about two drinks on those days. She
denied having any mental health issues but had been advised to
seek therapy following the recent death of her sister.
C. Michael
According to mother’s boyfriend, Michael, mother only
drank one alcoholic beverage much earlier on the day of the
collision. Michael denied that anyone had drunk alcohol at the
park or that mother had been under the influence or had smelled
of alcohol. He also denied that mother had any issues with
alcoholism and or that she drank often. On days that mother
drank, she would consume two or three drinks.
D. Daniel
Daniel denied that anyone, including mother, was drinking
at the park. He denied feeling like mother was speeding or
4
driving recklessly. He reported that mother “only dr[ank]
sometimes,” consuming about one or two drinks. When asked if
mother would drive after drinking, Daniel responded, “‘not on
most days.’”
E. Aiden
Aiden had left the party early with his grandparents, but
he denied that mother had behaved like she was intoxicated. He
stated that he had “never witnessed mother drinking to the point
of stumbling, talking loudly, slurring her words, or changing any
of her normal behaviors.”
F. Autumn
Autumn had also left the party early with her
grandparents and had not seen any alcohol at the park. Autumn
reported that, on average, mother drank two times per month
and had never driven under the influence.
G. Maternal grandmother
Minors’ maternal grandmother had left the party a little
early with Autumn and Aiden, but when she was there no one
was consuming alcohol or behaving drunk. She denied that
mother had any history of alcoholism or driving while under the
influence.
H. Robert’s mother
Robert’s mother reported what she had learned from
questioning her son about the collision. Robert had disclosed that
he had seen cans or bottles of what he suspected to be beer at the
party. Robert thought that mother and Michael were drunk and
“that mother was not in any condition to be driving.” Just before
she hit the parked cars, mother was speeding.
5
III. Removal Order
On September 8, 2021, DCFS sought and was granted an
order authorizing the removal of minors from mother. Minors
were detained the next day and placed with maternal relatives.
IV. Dependency Petition
On September 13, 2021, DCFS filed a dependency petition
seeking the juvenile court’s exercise of jurisdiction over Daniel
pursuant to section 300, subdivision (b)(1) (failure to protect), and
over Autumn and Aiden pursuant to section 300,
subdivisions (b)(1) and (j) (abuse of sibling). The identical b-1
and j-1 counts alleged that mother had placed Daniel “in a
detrimental and endangering situation by driving a vehicle while
under the influence of alcohol” with Daniel as a passenger.
Mother’s conduct also placed Daniel’s siblings at risk of serious
physical harm.
V. Detention Hearing
At the detention hearing on September 16, 2021, the
juvenile court found that a prima facie showing had been made
that minors were persons described by section 300 and that they
were in substantial danger absent removal from mother. Mother
was granted monitored visitation. Upon four consecutive clean
tests, unmonitored visits would be permitted.
VI. Jurisdiction/Disposition Report
The jurisdiction/disposition report detailed additional
interviews conducted by a DCFS dependency investigator in
October 2021.
A. Mother
This time, mother admitted to drinking alcohol at the park
on the day of the collision. She stated that she drank about four,
12-ounce beers and ate only a small meal. When asked if the
6
beers had made her intoxicated, mother responded, “‘I would say
so. I don’t drink often. So [one] or [two], I would feel already
kinda [sic] buzzed, I guess.’” She explained that she felt more
tired than intoxicated. When she decided to drive, mother was
not “‘drunk, drunk’” but “did ‘feel it.’” The dependency
investigator told mother that her blood alcohol content was
0.25 percent, indicating that she had consumed about six
alcoholic beverages before the collision. Mother was shocked it
was so high and denied drinking that much.
Mother stated that she had begun drinking alcohol when
she was 16 or 17 years old because of peer pressure. As to
whether she believed that she had a drinking problem, mother
responded, “‘I don’t. It’s just been very hard lately. Just the
passing of my sister. That’s just something to get my mind off of
that and everything else going on. I don’t drink often.’” Mother
claimed to never want to touch alcohol again.
Mother was enrolled in individual therapy, had completed a
four-hour parenting course, and had been attending AA meetings
for two months.
B. Autumn and Aiden’s father
Raymond, Autumn and Aiden’s presumed father, reported
that there were lots of pictures of mother drinking with friends
on social media.4 When asked about mother’s drinking when
they were in a relationship, Raymond stated, “‘It was mostly just
drinking. We were drinking a lot. This was before the kids.’”
After their children were born, “‘[mother] was still drinking. Her
mom would watch the kids a lot. She would drink, and she would
get to the point where she was passing out. I took care of her a
4 In October 2021, mother told the dependency investigator
that she had not seen Raymond in 14 years.
7
lot. She would get to the point where she would just pass out
somewhere. She would just drink a lot.’” Mother would also
want to drive even though she was drunk.
Raymond believed that mother was still drinking a lot
because she was drinking with the same friends that she had
when she was younger.
C. Michael
Michael reported that mother had not drunk alcohol since
her arrest. Prior to her recent sobriety, however, mother’s
alcohol consumption had increased following the death of her
sister. She would drink to the point of getting drunk about two
times per month. Michael and mother would usually wait until
minors were asleep or with their grandparents to drink.
VII. Adjudication Hearing
The adjudication hearing was held on November 16, 2021.
After entertaining oral argument,5 the juvenile court sustained
the dependency petition, declared minors dependents of the court,
and removed them from mother’s custody.
The juvenile court found Raymond’s statements regarding
mother’s history of excessive drinking to be credible and that they
spoke to a history that “led up” to the incident where mother
placed the lives of two children—Daniel and Robert—as well as
her own “in jeopardy.” The court noted that mother “elected to
drive a vehicle” with multiple passengers while her blood alcohol
level was triple the legal limit, her speech slurred, her body
emitting the odor of alcohol, her eyes bloodshot and watery, and
her gait unsteady. The court found that mother had an “ongoing
5 Counsel for minors joined mother’s counsel in asking the
juvenile court to dismiss the petition.
8
issue with alcohol and . . . excessive drinking” that continued to
place minors “in harm’s way.”
Mother was ordered to submit to drug and alcohol testing
and to complete a full drug and alcohol program with aftercare, a
parenting class, and individual counseling. Mother was granted
visitation with minors.
VIII. Appeal
Mother filed a timely notice of appeal from the
jurisdictional findings and dispositional orders.
IX. Subsequent Events
At a six-month review hearing held on May 17, 2022, the
juvenile court found that mother had made substantial progress
and ordered minors returned to her custody. Minors remained
under the court’s jurisdiction.6
On November 15, 2022, the juvenile court found that the
conditions which justified the initial assumption of jurisdiction
under section 300 no longer existed and were not likely to exist if
supervision was withdrawn. Accordingly, the court terminated
its jurisdiction over minors. As to Autumn and Aiden, the court
issued a juvenile custody order on November 28, 2022, which
awarded mother sole legal and physical custody with monitored
visits for their father, Raymond.7
6 On May 31, 2022, mother filed a request asking us to take
judicial notice of the juvenile court’s May 17, 2022, minute
orders. We granted the request on June 1, 2022. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
7 On December 1, 2022, DCFS filed a status update letter
informing us of the juvenile court’s termination of jurisdiction.
We take judicial notice of the documents attached to the letter,
which consist of minute orders from November 15, 2022, and the
9
DISCUSSION
As a general rule, an order terminating juvenile court
jurisdiction renders an appeal from a previous order in the
dependency proceedings moot. (See In re Michelle M. (1992)
8 Cal.App.4th 326, 330.) However, dismissal for mootness in
such circumstances is not automatic, but “must be decided on a
case-by-case basis.” (In re Kristin B. (1986) 187 Cal.App.3d 596,
605.) An appeal should not be dismissed if, for example, the
purported error could affect a parent in future proceedings. (In re
J.K. (2009) 174 Cal.App.4th 1426, 1431–1432.)
In this appeal, mother challenges the juvenile court’s initial
exercise of dependency jurisdiction, contending that the evidence
was insufficient to support the jurisdictional findings. In light of
the court’s November 15, 2022, order terminating jurisdiction,
which occurred after appellate briefing was complete, mother’s
appeal is arguably moot. However, in an abundance of caution,
we exercise our discretion to consider the merits of her appeal.
I. Relevant Law
Under section 300, subdivision (b)(1), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
a “child [who] has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of
the failure or inability of the child’s parent . . . to adequately
supervise or protect the child, . . . or by the inability of the
parent . . . to provide regular care for the child due to the
parent’s . . . substance abuse.”
Under section 300, subdivision (j), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
November 28, 2022, custody order. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)
10
a child whose “sibling has been abused or neglected, as defined in
subdivision (a), (b), (d), (e), or (i), and there is a substantial risk
that the child will be abused or neglected, as defined in those
subdivisions.” In determining whether to exercise jurisdiction
under subdivision (j), the court is required to “consider the
circumstances surrounding the abuse or neglect of the sibling, 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).)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction. The subdivision[] at issue here require[s] only a
‘substantial risk’ that the child will be abused or neglected. The
legislatively declared purpose . . . ‘is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’
(§ 300.2, italics added.)” (In re I.J. (2013) 56 Cal.4th 766, 773; see
also In re K.B. (2021) 59 Cal.App.5th 593, 603 [“The court need
not wait for disaster to strike before asserting jurisdiction.
[Citation.] This is why the statute uses the word ‘risk.’”].)
The existence of a substantial risk is a function of the
likelihood of a particular harm and the magnitude of that harm.
Thus, “‘[s]ome risks may be substantial even if they carry a low
degree of probability because the magnitude of the harm is
potentially great. . . . [¶] . . . [¶] . . . Conversely, a relatively
high probability that a very minor harm will occur probably does
11
not involve a “substantial” risk. . . .’” (In re I.J., supra, 56 Cal.4th
at p. 778.)
II. Standard of review
We review jurisdictional findings for substantial evidence.
(In re Mia Z. (2016) 246 Cal.App.4th 883, 891.) Under this
standard, “[w]e do not evaluate the credibility of witnesses,
attempt to resolve conflicts in the evidence or determine the
weight of the evidence. Instead, we draw all reasonable
inferences in support of the findings, view the record favorably to
the juvenile court’s order and affirm the order even if there is
other evidence supporting a contrary finding.” (In re R.V. (2012)
208 Cal.App.4th 837, 843.) “Substantial evidence may include
inferences, so long as any such inferences are based on logic and
reason and rest on the evidence.” (In re Madison S. (2017)
15 Cal.App.5th 308, 318.)
III. Analysis
Mother chose to drive herself and three passengers,
including two children, while she was under the obvious influence
of alcohol. Her blood alcohol content was over three times the
legal limit to drive (Veh. Code, § 23152, subd. (b)), and her
significant state of intoxication was clearly observable—she
emitted a strong odor of alcohol, her speech was slurred, her eyes
were watery and red, and her gait was unsteady. As later
reported by Robert, a 12-year-old passenger, it was apparent that
mother was drunk and “not in any condition to be driving.”
Mother’s conduct did not just place Daniel at serious risk of
physical harm; rather, actual harm ensued when she crashed the
car, causing Daniel and Robert to suffer physical injuries. And,
following the collision, mother displayed a concerning lack of
candor about her drinking. (See In re Gabriel K. (2012)
12
203 Cal.App.4th 188, 197 [“One cannot correct a problem one fails
to acknowledge”].) She first denied that she had consumed any
alcohol prior to driving. She later admitted to consuming alcohol
but only before her arrival at the park. It was not until a
subsequent interview that mother finally admitted to drinking
alcohol at the park on the day of the collision. But even then, she
minimized her state of intoxication.
Furthermore, mother’s abuse of alcohol on the day of the
collision was not an isolated incident but rather part of a longer
history. Raymond reported that mother drank heavily—often to
the point of passing out—when they had been in a relationship
years earlier. According to Raymond, mother would want to
drive despite her inebriated state. As to her more recent alcohol
use, mother’s boyfriend, Michael, reported that her alcohol
consumption had increased following the death of her sister, and
that mother would drink to the point of getting drunk about two
times per month. Mother acknowledged that she had been
experiencing a very difficult time with the death of her sister and
that she drank to “‘get [her] mind off of that and everything else
going on.’”
Taken together, this constitutes ample substantial evidence
that mother failed to adequately supervise or protect minors or
that her substance abuse interfered with her ability to provide
regular care for them, thus creating a substantial risk that
minors would suffer serious physical harm. (§ 300, subd. (b)(1).)
Resisting this conclusion, mother relies heavily on In re
J.N. (2010) 181 Cal.App.4th 1010. In that case, a juvenile court
exercised dependency jurisdiction over three children after their
father crashed his car while driving under the influence of
alcohol, with the children and their mother, who was also
13
intoxicated, as passengers. (Id. at pp. 1014–1015, 1021.) The
Court of Appeal reversed, concluding that “[d]espite the profound
seriousness of the parents’ endangering conduct on the one
occasion in this case, there was no evidence from which to infer
there [wa]s a substantial risk such behavior w[ould] recur.” (Id.
at p. 1026.) The Court of Appeal pointed to a lack of evidence
that the parents had a substance-abuse problem or that their
“parenting skills, general judgment, or understanding of the risks
of inappropriate alcohol use [wa]s so materially deficient that
[either] parent [wa]s unable ‘to adequately supervise or protect’
the children.” (Ibid.)
Mother contends that, with the exception of the juvenile
court’s finding that mother’s history of alcohol abuse led up to the
collision, “the instant case is on all fours with In re J.N.” She
argues that the juvenile court’s finding regarding her history of
alcohol abuse is flawed and should be disregarded because it was
based on Raymond’s statements about mother’s conduct 14 years
earlier and an inaccurate recitation of statements made by
Michael.
For the reasons already discussed, however, substantial
evidence supports the juvenile court’s finding that mother’s abuse
of alcohol on the day of the collision was not an isolated event—a
finding that distinguishes this case significantly from In re J.N.
Here, Raymond’s statements indicated mother’s longstanding
problem with alcohol. Even if that problem had abated in the 14
years since their relationship ended, other evidence indicated
that it had reemerged and culminated in mother’s egregious act
of driving drunk with children as passengers on the evening of
the collision. And, even if the court misstated details of the
record when explaining its ruling, “‘“‘a ruling or decision, itself
14
correct in law, will not be disturbed on appeal merely because
given for a wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion.’ [Citation.]” [Citation.]’ [Citation.]” (In re L.K.
(2011) 199 Cal.App.4th 1438, 1448.)
DISPOSITION
The jurisdictional findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
15 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350143/ | Filed 12/23/22 P. v. Jones CA3
Opinion following transfer from Supreme Court
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, C090630
Plaintiff and Respondent, (Super. Ct. No. 01F07610)
v. OPINION ON TRANSFER
GERALD EDWARD JONES,
Defendant and Appellant.
Defendant Gerald Edward Jones appeals from a postjudgment order denying his
petition for resentencing under Penal Code1 section 1172.6.2 A jury found defendant
1 Further undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was recodified without
substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his
petition under former section 1170.95, but we will refer to the current section 1172.6
throughout this opinion.
1
guilty of the first degree murder of Justin Roberts during the course of a burglary; the
trial court sentenced him to life without the possibility of parole, and his conviction was
affirmed on appeal.
Defendant later petitioned the trial court for resentencing based on changes to the
felony-murder rule under Senate Bill No. 1437. (Stats. 2018, ch. 1015, § 4, eff. Jan. 1,
2019.) The trial court summarily denied his petition finding the record established
defendant was ineligible for resentencing given the jury’s true finding on the burglary-
murder special circumstance under section 190.2. The court reasoned that in finding the
special circumstance true, the jury necessarily found defendant was either the actual
killer, aided and abetted the actual killer with the intent to kill, or was a major participant
who acted with reckless indifference to human life during the crimes.
In an unpublished opinion, we affirmed the trial court’s order denying defendant’s
resentencing petition, holding that any error in failing to obtain briefing before summarily
denying the petition was harmless beyond a reasonable doubt given the jury’s true
finding on the burglary-murder special circumstance, which this court had previously
upheld in defendant’s direct appeal. (People v. Jones (Dec. 15, 2020, C090630) [nonpub.
opn.].)
The California Supreme Court subsequently granted review and transferred the
matter back to us with directions to vacate our opinion and reconsider the cause in light
of People v. Strong (2022) 13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952
(Lewis). By separate order, we vacated our decision.
In supplemental briefing after transfer, the parties agree that defendant’s petition
was facially sufficient, and that under Strong neither the jury’s true finding on the
burglary-murder special-circumstance allegation, which was made before our Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 clarified what it means to be a major participant who acts with reckless
indifference to human life, nor this court’s conclusion on direct appeal that substantial
2
evidence supported the special-circumstance finding, precludes defendant from relief
under section 1172.6 as a matter of law. Having reconsidered the matter, we agree and
will reverse and remand for further proceedings under section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts from the unpublished opinion we issued in 2004 affirming
defendant’s convictions in case No. C045098. (People v. Jones (Nov. 24, 2004,
C045098) [nonpub. opn.].)3 In September 2001, defendant and two cohorts, Andre
Craver and Eric Shelmire, planned to steal marijuana from Roberts’s apartment. They
arrived in two cars at the apartment complex; defendant drove his own vehicle and the
codefendants drove in another vehicle. All three were dressed in black so as not to be
seen. Defendant saw Craver pull out a gun before entering Roberts’s darkened
apartment. Craver entered the apartment first through an open window, and defendant
followed; Shelmire remained outside. Immediately upon entering, Craver landed on a
person who was sleeping beneath the open window. They struggled, and upon hearing
the commotion, Roberts came running out and turned on a light. Three gunshots were
fired, and defendant and Craver then left the apartment through the window. Roberts
died of a gunshot wound to the chest.
A jury found defendant guilty of the first degree murder of Roberts and found true
the special circumstance that the murder was committed during a robbery. The jury also
found true that a principal was armed with a firearm during the offense. Defendant was
sentenced to state prison for one year plus a consecutive indeterminate term of life
without possibility of parole.
3 A copy of our unpublished opinion in Jones is included in the record on appeal.
We provide this summary of facts from the prior opinion in defendant’s direct appeal
solely for context and do not rely on these facts for our analysis or disposition here.
(§ 1172.6, subd. (d)(3).)
3
Defendant appealed his conviction, arguing, among other things, that insufficient
evidence supported the true finding on the burglary-murder special circumstance. We
found sufficient evidence supported the finding that defendant was a major participant
who acted with reckless indifference to human life, and affirmed the judgment in full.
In January 2019, defendant filed a petition for resentencing under section 1172.6,
alleging that he could not now be convicted of murder because of the changes Senate Bill
No. 1437 made to sections 188 and 189. He also requested appointment of counsel
during the resentencing process.
The court issued an order appointing defendant counsel. The People responded to
the petition, arguing, as relevant here, that defendant failed to establish a prima facie case
for relief because the jury’s true finding on the burglary-murder special circumstance
rendered him ineligible for relief as a matter of law. (§§ 187, 190.2, subd. (a)(17).)
The trial court denied defendant’s petition, concluding that he was ineligible for
relief because in finding the burglary-murder special circumstance true, “the jury
necessarily found that defendant . . . was either the actual killer, acted with intent to kill,
or was a major participant in the underlying crime who acted with reckless indifference to
human life.” The court further noted that this court had previously found sufficient
evidence supported the special-circumstance finding. Defendant timely appealed the trial
court’s denial of his petition.
DISCUSSION
Defendant originally argued the trial court prejudicially erred by denying his
petition without first obtaining his counsel’s reply to the People’s response and because
the jury’s true finding on the burglary-murder special circumstance did not preclude him
from relief as a matter of law. In supplemental briefing, the parties now agree, as do we,
that the trial court erred in summarily denying defendant’s petition.
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) to “amend
the felony murder rule and the natural and probable consequences doctrine, . . . to ensure
4
that murder liability is not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the underlying felony who acted
with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate
Bill No. 1437 achieves these goals by amending section 188 to require that a principal act
with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by
amending section 189 to state that a person can be liable for felony murder only if (1) the
“person was the actual killer”; (2) the person, with an intent to kill, was an aider or
abettor in the commission of murder in the first degree; or (3) the “person was a major
participant in the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill No. 1437 also added what is now section 1172.6,
which permits a person convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to vacate the murder
conviction and resentence the person on any remaining counts if, among other things, the
petitioner could not be convicted of first or second degree murder due to the change in
the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that
requests counsel, the court shall appoint counsel and provide the parties an opportunity to
submit briefs. (§ 1172.6, subds. (b)(3) & (c).) Following briefing, the court must hold a
hearing to determine whether the petitioner has made a prima facie case for relief.
(§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an
order to show cause. (§ 1172.6, subds. (c) & (d).)
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court “ ‘ “takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved.” ’ ” (Ibid.) Although the court may
rely on the record of conviction (including a prior appellate court opinion) in determining
whether defendant has made a prima facie showing, the court “should not engage in
5
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at
p. 972.)
Since defendant’s convictions, our Supreme Court has refined the analysis for who
qualifies as a major participant acting with reckless indifference to human life in Banks
and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other
grounds in Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant’s claims in
our previous opinion, our Supreme Court decided Strong, which concluded: “Findings
issued by a jury before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.”
(People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the
jury’s pre-Banks and Clark finding, which this court upheld against defendant’s
sufficiency of the evidence challenge on direct appeal, precluded defendant from making
a prima facie showing. The trial court’s conclusion does not survive Strong.
Defendant’s resentencing petition, which requested counsel, was facially sufficient
and alleged the essential facts necessary for relief under section 1172.6 if proven.
(§ 1172.6, subds. (a)-(c); Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record
demonstrates defendant is ineligible for relief as a matter of law, so we must reverse and
remand the matter for the trial court to issue an order to show cause, and, to the extent
necessary, conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion
on the ultimate resolution of the petition.
6
DISPOSITION
The trial court’s order denying defendant’s Penal Code section 1172.6 petition is
reversed. On remand, the trial court is directed to issue an order to show cause, and, to
the extent necessary, the court shall hold an evidentiary hearing on the petition.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Boulware Eurie, J.
7 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350294/ | USCA4 Appeal: 20-6569 Doc: 28 Filed: 12/22/2022 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON LARICO WYLIE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:05-cr-00353-RJC-DCK-1; 3:16-cv-
00410-RJC)
Submitted: December 20, 2022 Decided: December 22, 2022
Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Aaron Larico Wylie, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 20-6569 Doc: 28 Filed: 12/22/2022 Pg: 2 of 2
PER CURIAM:
Aaron Larico Wylie seeks to appeal the district court’s order denying relief on his 28
U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge issues
a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability
will not issue absent “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists could find the district court’s
assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct.
759, 773-74 (2017). When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the motion states a debatable claim of the denial of a constitutional right. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Wylie has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
2 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350374/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,334-01
IN RE BRENT SINGLETON, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 10535 IN THE 411TH DISTRICT COURT
FROM TRINITY COUNTY
Per curiam.
ORDER
Relator has filed a motion for leave to file an application for a writ of mandamus under this
Court’s original jurisdiction. He contends that he filed an application for a writ of habeas corpus in
Trinity County and his application has not been properly forwarded to this Court.
Respondent, the District Clerk of Trinity County, shall forward Relator’s habeas application
to this Court, respond that Relator has not filed a habeas application in Trinity County, or forward
a copy of an order designating issues together with correspondence documenting the date the State
received Relator’s habeas application. See TEX . CODE CRIM . PROC. art. 11.07, § 3(c) and (d); TEX .
R. APP . P. 73.4(b)(5). This motion for leave to file will be held. Respondent shall comply with this
order within thirty days from the date of this order.
2
Filed: December 21, 2022
Do not publish | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481245/ | Order filed November 3, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00584-CV
____________
In the Interest of K.L. and C.L.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-01646J
ORDER
On October 11, 2022, this court ordered appointed counsel, Daniella
Gonzalez, to file a brief on or before October 20, 2022. No brief was filed.
Accordingly, we issue the following order.
We ORDER the judge of the 315th District Court to immediately conduct a
hearing to determine:
(1) the reason for the failure to file a brief;
(2) whether appellant desires to continue this appeal; and
(3) if appellant desires to continue the appeal, a date certain when
appellant’s brief will be filed.
The judge shall:
(1) appoint new appellate counsel for appellant if necessary;
(2) see that a record of the hearing is made;
(3) make findings of fact and conclusions of law; and
(4) order the trial clerk to forward a record of the hearing and a
supplemental clerk’s record containing the findings and
conclusions.
The transcribed record of the hearing, and supplemental clerk’s record shall
be filed with the clerk of this court on or before November 8, 2022.
If the parties do not request a hearing, the court coordinator of the trial court
shall set a hearing date and notify the parties of such date. If counsel files a brief
before the date set for a hearing, the trial court need not hold a hearing.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain and Hassan. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481248/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed
November 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00504-CV
VALARIS PLC, Appellant
V.
GORDON GILLIES, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2020-36729
MEMORANDUM OPINION
This is an appeal from a judgment signed April 15, 2022. On October 26,
2022, appellant filed a motion to dismiss the appeal and remand to the trial court
for rendition of judgment in accordance with the parties’ agreement to settle. See
Tex. R. App. P. 42.1(a)(1)–(2). We reinstate the appeal and grant the motion.
The appeal is dismissed, and mandate is ordered to issue immediately per the
request of the parties.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Poissant.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481249/ | Order filed November 3, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-21-00468-CV
____________
SCWYANA SMITH, Appellant
V.
ANKUS, L.L.C., Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2018-52368
ORDER
Appellant’s brief was due October 31, 2022. No brief or motion for
extension of time has been filed.
Accordingly, we order appellant to file a brief with this court within thirty
(30) days of the date of this order. If appellant fails to do so, the appeal is subject
to dismissal without further notice for want of prosecution. See Tex. R. App. P.
42.3(b).
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Wise and Zimmerer. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481250/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed
November 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00575-CV
RICHARD BALDWIN AND OAK CREEK INVESTMENTS, LLC,
Appellants
V.
BAYKO, PREBEG, FAUCETT & ABBOTT PLLC, F/K/A PREBEG,
FAUCETT & ABBOTT PLLC, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2021-61517
MEMORANDUM OPINION
This is an appeal from an order signed July 20, 2022. On October 26, 2022,
the parties filed a joint motion to dismiss the appeal. See Tex. R. App. P. 42.1. The
motion is granted. We dismiss the appeal.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Wise and Hassan. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481251/ | Order filed November 3, 2022.
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00707-CV
____________
RANDALL SEXTON, Appellant
V.
APO GATEWAY LLC, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1187535
ORDER
The notice of appeal in this case was filed September 23, 2022. To date, the
filing fee of $205.00 has not been paid by appellant. No evidence that appellant is
excused by statute or the Texas Rules of Appellate Procedure from paying costs has
been filed. See Tex. R. App. P. 5.
Accordingly, appellant is ordered to pay the filing fee in the amount of
$205.00 to the clerk of this court within ten (10) days of the date of this order. If
appellant fails to do so, the appeal is subject to dismissal without further notice for
want of prosecution. See Tex. R. App. P. 42.3(b).
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481252/ | Continuing Abatement Order filed November 3, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00078-CV
____________
MINAZ HASSANALI AND WESTMONT HOSPITALITY GROUP,
Appellants
V.
MAHENDRA KAPADIA AND WESTCHASE INTERESTS, LLC, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2021-51498
CONTINUING ABATEMENT ORDER
On August 30, 2022, we abated this appeal for sixty days. On October 28,
2022, appellants filed an unopposed motion requesting that we continue the
abatement of this appeal. That motion is GRANTED.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket until December 30, 2022. The appeal will be reinstated on this
court’s active docket at that time, or when the parties file a motion to dismiss the
appeal or other dispositive motion. The court will also consider an appropriate
motion to reinstate the appeal filed by any party, or the court may reinstate the
appeal on its own motion.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Hassan. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481281/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,867-02
EX PARTE DANIEL TOLOPKA, II, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CM-06-522 IN THE 278TH DISTRICT COURT
FROM LEON COUNTY
Per curiam.
ORDER
Applicant filed this application for a writ of habeas corpus in the county of conviction, and
the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. According to
the record, the trial court held an evidentiary hearing on October 26, 2022, but the transcript of the
hearing was not forwarded to this Court. Under Article 11.07 of the Texas Code of Criminal
Procedure, a reporter is required to transcribe a hearing within fifteen days of its conclusion and then
to immediately forward the transcript to the district clerk in the county of conviction. Id. at § 3(d).
After receiving the transcript, the district clerk is required to forward it, among other things, to this
Court. Id.; see also TEX . R. APP . P. 73.4(b)(4).
The district clerk shall serve the reporter in Applicant’s case with a copy of this order and
2
then either forward to this Court the transcript of the evidentiary hearing or certify in writing that the
reporter has not transcribed the hearing.
Under Article 11.07 of the Texas Code of Criminal Procedure, a district clerk is required to
forward to this Court, among other things, “the application, any answers filed, any motions filed,
transcripts of all depositions and hearings, any affidavits, and any other matters such as official
records used by the court in resolving issues of fact.” Id. at § 3(d); see also TEX . R. APP . P.
73.4(b)(4). The record forwarded to this Court appears, however, to be incomplete. The findings
of fact reference affidavits filed by counsel, but those affidavits are not included in the record
forwarded to this Court. The district clerk shall comply with this order within thirty days from the
date of this order.
Filed: November 02, 2022
Do not publish | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481253/ | Order filed November 3, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00688-CV
____________
GEORGE SCHILTER, IN HIS CAPACITY AS THE INDEPENDENT
EXECUTOR OF THE ESTATE OF KATHRIN GVADIA,
DECEASED, Appellant
V.
ZACHARY T. DIXON, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2020-79584
ORDER
This is an appeal from a judgment signed June 13, 2022. Appellant timely
filed a post-judgment motion. The notice of appeal was due September 12, 2022.
See Tex. R. App. P. 26.1. Appellant, however, filed the notice of appeal on
September 23, 2022, a date within 15 days of the due date for the notice of appeal.
A motion for extension of time is necessarily implied when the perfecting
instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d
615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the
notice of appeal. While an extension may be implied, appellant is still obligated to
come forward with a reasonable explanation to support the late filing. See Miller v.
Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—
Houston [14th Dist.] 1998, no pet.).
Accordingly, we order appellant to file a proper motion to extend time to file
the notice of appeal within ten (10) days of the date of this order. See Tex. R. App.
P. 26.3;10.5(b). If appellant fails to do so, the appeal is subject to dismissal without
further notice for want of jurisdiction. See Tex. R. App. P. 42.3(a).
PER CURIAM
Panel Consists of Justices Wise, Jewell, and Poissant. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481257/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed
November 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00202-CV
CLAUDE LOVELACE, Appellant
V.
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF
BCMB1 TRUST; PLANET HOME LENDING, LLC; AND PRESTIGE
DEFAULT SERVICES, LLC, Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2021-45667
MEMORANDUM OPINION
This is an appeal from a judgment signed March 11, 2022. On October 27,
2022, appellant filed a motion to dismiss the appeal. See Tex. R. App. P.
42.1(a)(1). The motion is granted. We dismiss the appeal.
PER CURIAM
Panel consists of Justices Spain, Poissant, and Wilson. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481254/ | Affirmed in Part, Reversed in Part, Remanded, and Opinion filed November 3,
2022.
In the
Fourteenth Court of Appeals
NO. 14-21-00279-CV
FREDRIC N. ESHELMAN, Appellant
V.
TRUE THE VOTE, INC.; CATHERINE ENGELBRECHT; WILLIAM
ENGELBRECHT; OPSEC GROUP LLC; GREGG PHILLIPS; THE BOPP
LAW FIRM, P.C.; AND JAMES BOPP JR., Appellees
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2021v-0015
OPINION
In this appeal from the judgment granting the defendants’ pleas to the
jurisdiction and dismissing the case, charitable donor Fredric N. Eshelman argues
that he has standing to sue a public charity for the return of his donation because the
charity failed to comply with the conditions of his gift. He further maintains that
even if he lacks standing to sue the charity, he has standing to sue the charity’s
employees, officers, agents, and vendors, whom the charity paid using funds he
donated. Five of the defendants challenged the existence of the jurisdictional facts
alleged by Eshelman. Because that challenge was supported by evidence
controverting Eshelman’s allegations, and Eshelman failed to offer any evidence in
response, the trial court properly granted the plea to the jurisdiction of those
defendants. The two remaining defendants challenged only the sufficiency of
Eshelman’s live pleading. Because Eshelman’s pleading alleged facts sufficient to
affirmatively demonstrate the trial court’s jurisdiction, the trial court erred in
granting the jurisdictional pleas of those two defendants. Thus, we affirm in part,
reverse in part, and remand the case for further proceedings.
I. BACKGROUND
Eshelman pleaded that he contributed $2.5 million to True the Vote, Inc.
(“TTV”), to fund their efforts to investigate and litigate alleged voter fraud in the
2020 presidential election, and to do so before election-certification deadlines. He
spoke by phone with TTV’s president Catherine Englebrecht two days after the
election, and based on that conversation, he wired $2 million to TTV. Shortly
thereafter, he wired TTV an additional $500,000.
According to Eshelman, Englebrecht represented that TTV intended to solicit
“whistleblower” testimony, publicize the whistleblowers’ stories, “galvanize
Republican legislative support for voter fraud challenges in key states,” “aggregate
and analyze data to identify patterns of election subversion,” and file federal lawsuits
“in the seven closest battleground states.” The lawsuits were to be filed by TTV’s
general counsel James Bopp Jr. and his law firm, The Bopp Law Firm. Eshelman
alleged that, based upon data to be subpoenaed in those lawsuits, TTV would partner
with OPSEC Group, LLC, and its principal Gregg Phillips to perform data modeling
and statistical analysis to identify potentially fraudulent balloting. Eshelman further
2
alleged that his contributions were made on the condition that the funds were to be
used for the TTV projects concerning the 2020 presidential election that Catherine
Engelbrecht described to Eshelman. These projects came to be referred to as the
“Validate the Vote 2020” initiative. Eshelman pleaded that he expressed his intent
that $1 million of his contribution would be used to fund rewards for whistleblowers,
$1 million “would be used for some combination of communications outreach and
litigation,” and the remaining $500,000 would be used to fund TTV’s Validate the
Vote 2020 initiative in some manner not specifically described. He alleged that TTV
agreed to these conditions.
Despite Eshelman’s requests for information, TTV identified no
whistleblowers. He alleges that TTV filed lawsuits in four states “none of which
cited any substantial evidence” of voter fraud, and that the four lawsuits were quickly
and voluntarily dismissed. When he learned that TTV had dismissed its lawsuits,
Eshelman demanded his money back. TTV offered to return part of the donation if
Eshelman would release his claims against TTV. Eshelman refused.
Eshelman then filed and nonsuited a case in federal court before bringing this
suit in an Austin County district court. Eshelman sued TTV and Catherine
Englebrecht, and, alleging that payments from his conditional contributions were
made to OPSEC, Phillips, Bopp, The Bopp Law Firm, and Catherine’s son William
Engelbrecht, Eshelman sued them as well. Against TTV, Eshelman asserted a claim
for breach of contract, and he sued both TTV and Catherine Engelbrecht for
fraudulent misrepresentation and negligent misrepresentation. Against all of the
defendants, Eshelman asserted claims for conversion and money had and received,
and he requested declaratory relief. He also asked the trial court to appoint receivers
for the organizational defendants TTV, OPSEC, and The Bopp Law Firm.
3
All of the defendants filed pleas to the jurisdiction challenging Eshelman’s
standing. TTV, the Englebrechts, OPSEC, and Phillips challenged the existence of
a key jurisdictional fact alleged by Eshelman, namely, that his contributions to TTV
were in any way conditional. All of the defendants also argued that Eshelman’s
pleading does not, and cannot, show that the trial court has subject-matter
jurisdiction because there is no evidence that Eshelman made his donations through
a “gift instrument” expressly providing that the donations would revert to Eshelman
if TTV failed to use the funds in accordance with his stated conditions. They
maintain that, absent such an express written right of reverter, Eshelman lacks
standing to sue the public charity TTV, and that his claims against the remaining
defendants are similarly barred, being derivative of his claims against TTV.
The trial court granted all of the defendants’ pleas without stating the grounds
and rendered final judgment dismissing Eshelman’s claims without prejudice.
Eshelman appeals the ruling. In two issues, he argues that the trial court erred in
granting the jurisdictional plea of TTV and of the remaining defendants.
II. STANDARD OF REVIEW
Subject-matter jurisdiction can be challenged by a plea to the jurisdiction, and
we review de novo the trial court’s ruling on the plea. Tex. Dep’t. of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
If the plea challenges the existence of jurisdictional facts, the procedure and
the standard of review mirror those applicable to summary judgments. See id. at 228.
We consider the relevant jurisdictional evidence submitted by the parties, taking as
true all evidence favorable to the plaintiff, indulging all reasonable inferences and
resolving all doubts in the plaintiff’s favor. Id. After the defendant asserts and
supports with evidence that the trial court lacks subject-matter jurisdiction, the
burden shifts to the plaintiff to show that there is a disputed material fact concerning
4
jurisdiction. Id. If the jurisdictional evidence, considered in the light most favorable
to the plaintiff, raises at least a question of fact as to the jurisdictional issue, then the
plea must be denied, leaving the matter to be resolved by the factfinder. Id. at 227–
28.
If the plea challenges the plaintiff’s pleading, we determine if the plaintiff
alleged facts affirmatively demonstrating the court’s jurisdiction to hear the case. Id.
at 226. To do so, we construe the pleading liberally in the plaintiff’s favor and
consider the plaintiff’s intent. Id. If the pleading neither contains sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction nor affirmatively
demonstrates incurable jurisdictional defects, the issue is one of pleading
sufficiency, and the plaintiff should be given the opportunity to amend. Id. at 226–
27. But, if the pleading affirmatively negates jurisdiction so that the problem cannot
be cured by amendment, the suit may be dismissed without giving the plaintiff an
opportunity to amend. Id. at 227.
III. CONDITIONAL GIFT
The defendants’ pleas to the jurisdiction primarily focus on issues arising from
Eshelman’s characterization of his contribution to TTV as a “conditional gift.” The
expression “conditional gift” is something of an oxymoron, for “to constitute a gift
inter vivos there must be a delivery of possession of the subject matter of the gift by
the donor to the donee, and a purpose on the part of the donor to vest in the donee,
unconditionally and immediately, the ownership of the property delivered.” Wells v.
Sansing, 151 Tex. 36, 39, 245 S.W.2d 964, 965 (1952) (emphasis added).
5
Unlike true gifts, “conditional gifts,” also referred to as “restricted gifts,”1 are
“premised upon the fulfillment of a condition by the donee.” 38 AM. JUR. 2d Gifts
§ 68. Generally speaking, if the donee performs the condition, then the gift becomes
the donee’s property; if not, then the gift must be returned. Id. To illustrate the
concept, gifts most often characterized as “conditional” under Texas law have been
those made in contemplation of marriage. See, e.g., Curtis v. Anderson, 106 S.W.3d
251, 256 (Tex. App.—Austin 2003, pet. denied); McLain v. Gilliam, 389 S.W.2d
131, 132 (Tex. App.—Eastland 1965, writ ref’d n.r.e.); Shaw v. Christie, 160 S.W.2d
989, 991 (Tex. App.—Beaumont 1942, no writ). In that circumstance, “[a] gift to a
person to whom the donor is engaged to be married, made in contemplation of
marriage, although absolute in form, is conditional; and upon breach of the marriage
engagement by the donee the property may be recovered by the donor.” Shaw, 160
S.W.2d at 991.
Because of the requirement that the donee agree to the conditions placed on
the donor’s contribution, “conditional gifts” of personal property are sometimes
characterized simply as contracts. For example, in Douglass v. Huntress, No. 06-17-
00103-CV, 2018 WL 4224898 (Tex. App.—Texarkana Sept. 5, 2018, no pet.) (mem.
op.), a mother donated most of her life savings to her son and daughter-in-law for
the purchase and improvement of a home where the mother was to live with them
for the rest of her life. Id. at *1. Less than two years later, the son and daughter-in-
law demanded that the mother move out, and they sold the property. Id. at *3–4.
They refused to reimburse the mother, maintaining that her contribution had been “a
gift, without any conditions.” Id. at *4. But, the trial court found, and the reviewing
court agreed, that the mother’s contributions were conditioned on the family’s
1
See, e.g., TEX. TRANSP. CODE § 172.001(8) (specifying that a “restricted gift” is not part
of the definition of “revenue” in laws governing rural rail transportation districts).
6
continuing to live together on the property for the remainder of the mother’s life. See
id. at *6. The parties’ agreement was therefore treated as an oral contract, and the
son and daughter-in-law were held liable for its breach. Id. at *5.
As between private parties, standing to sue for the return of a conditional gift
upon the failure of the condition is straightforward under the general test for
standing:
First, the plaintiff must have suffered an “injury in fact”—an invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be “fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
Heckman v. Williamson Cnty., 369 S.W.3d 137, 154–55 (Tex. 2012) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992)) (alterations in original). So, for example, a person who gives a prospective
spouse an engagement ring in contemplation of marriage has standing to sue for its
return when the other party breaks the engagement.
The question of standing becomes more complicated when the recipient of a
conditional gift is a public charity, also known as a “charitable trust.”2 The attorney
general “is the representative of the public and is the proper party to maintain” a suit
“vindicating the public’s rights in connection with that charity.” Nacol v. State, 792
S.W.2d 810, 812 (Tex. App.—Houston [14th Dist.] 1990, writ denied); see also TEX.
PROP. CODE § 123.002 (attorney general’s participation in proceeding involving
2
It is undisputed that TTV is a public charity. Consequently, TTV is considered a
“charitable trust,” as is any gift to it, and this case is a “proceeding involving a charitable trust.”
See TEX. PROP. CODE § 123.001(1), (2), and (3).
7
charitable trust). A private individual has standing to maintain a suit against a public
charity only if the person seeks vindication of some “peculiar or individual rights,
distinct from those of the public at large.” Lokey v. Tex. Methodist Found., 479
S.W.2d 260, 265 (Tex. 1972) (quoting Carroll v. City of Beaumont, 18 S.W.2d 813,
820 (Tex. App.—Beaumont 1929, writ ref’d)).
Eshelman contends that the conditional nature of his contribution gave him
the individual right to revoke the gift for TTV’s failure to abide by the conditions.
The defendants argued in their pleas that Eshelman in fact attached no conditions to
his gift or that his pleading of a conditional gift was incurably deficient.
IV. CHALLENGE TO THE UNDERLYING FACTS
The parties’ appellate briefing focuses on their argument that a “conditional
gift” such as Eshelman has alleged requires an express, written “right of reverter,”
which Eshelman has not alleged. Indeed, the first subheading in the defendants’ joint
response brief is, “The Only Facts That Are Relevant Here Relate to Eshelman’s
Missing Right to Reverter, and Core Facts Prove it Missing.” But, what all of the
parties have overlooked on appeal—and what Eshelman appears to have overlooked
in the trial court as well—is that defendants TTV, Catherine Engelbrecht, William
Engelbrecht, OPSEC, and Phillips have challenged not only Eshelman’s pleading,
but also the existence of a crucial jurisdictional fact.
We, however, cannot overlook this ground. As the Supreme Court of Texas
has stated, “if a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to do.” Miranda,
133 S.W.3d at 227 (emphasis added). The trial court was required to consider the
challenge by five of the defendants to a key jurisdictional fact, and so must we.
Eshelman does not argue on appeal that the trial court erred in granting these
8
defendants’ jurisdictional pleas on this ground, and after reviewing the record and
the evidence de novo, we conclude that this ground supports the trial court’s ruling
granting the jurisdictional pleas of these defendants.
TTV, the Engelbrechts, OPSEC, and Phillips stated in their jurisdictional
pleas that Eshelman lacked “standing to sue these Defendants relating to matters that
concern the contribution to a charitable organization and its operations.” In the brief
in support of their plea, they elaborated on this assertion, stating, “There were no
particular ‘strings’ on the money that had been donated,” and “there was never a
discussion that suggested the donated funds were conditional, were contingent upon
certain actions or conduct, or were subject to being revoked if True the Vote
somehow failed to perform a task or was not as successful in their efforts.” These
assertions were supported by Catherine Engelbrecht’s declaration that “there was no
discussion or suggestion of any sort between Mr. Eshelman and myself, or his
agents . . . and myself, that Eshelman’s gift was conditional in any way.” She added
that “there was no communication, written or oral, where any limitation or condition
was imposed on his contribution, or even discussed, or that if we did not do certain
things . . . , he would be entitled to a return of his funds.” The statements in this
declaration contradict the allegation in Eshelman’s petition that he made
contributions to TTV “on the condition that the funds would be used to fund
Defendant True the Vote’s projects related to the 2020 presidential election that
Defendant Englebrecht represented on the call.”3
By this evidence, TTV, the Engelbrechts, OPSEC, and Phillips challenged the
facts underlying Eshelman’s position “that he, himself (rather than a third party or
the public at large), suffered the injury” at issue. Meyers v. JDC/Firethorne, Ltd.,
3
Emphasis in original.
9
548 S.W.3d 477, 485 (Tex. 2018) (quoting Heckman, 369 S.W.3d at 155). If, as
these parties contend, Eshelman’s contributions were unconditional, then he has
suffered no injury distinct from that of the general public’s injury from TTV’s failure
to dedicate at least $1 million to its whistleblower program, at least $1 million to
some combination of communications outreach and litigation, and at least an
additional $500,000 to these or other programs to invalidate the results of the 2020
presidential election. Because these parties produced evidence that there were no
conditions on Eshelman’s donation, the burden shifted to Eshelman to produce
evidence sufficient to raise a genuine issue of material fact as to whether his
contributions were conditional as he alleged. See Miranda, 133 S.W.3d at 228.
Although Eshelman filed a consolidated response to all of the defendants’
pleas, he failed to support it with any evidence, instead simply referring the trial
court to his live pleading. Catherine Engelbrecht’s declaration is therefore
uncontroverted. Because there is no evidence that Eshelman’s gift was conditional,
there is no evidence that Eshelman sustained a particularized injury distinct from
that of any other donor or from the public at large. The trial court accordingly did
not err in sustaining TTV’s jurisdictional plea.
The same problem exists concerning Eshelman’s claims against the
Engelbrechts, OPSEC, and Phillips. All of Eshelman’s claims against them are
premised on his unsupported allegation that TTV did not abide by the conditions on
his contribution, but the special standing requirements applicable to public charities
exist not only to protect the charitable trust from harassment, but also to protect its
trustees. Coffee v. William Marsh Rice Univ., 403 S.W.2d 340, 347 (Tex. 1966). The
standing requirement of a particularized injury distinct from that suffered by the
public at large would be eviscerated if Eshelman, having failed to produce any
evidence controverting Catherine Engelbrecht’s declaration that Eshelman made an
10
unconditional gift to TTV, could circumvent that requirement by substituting claims
against TTV’s agents, or to its employees or contractors who received funds from
the charity.
We overrule Eshelman’s first issue, which pertains only to TTV, and we
overrule his second issue as it pertains to Catherine Engelbrecht, William
Engelbrecht, OPSEC, and Phillips.
V. CHALLENGE TO THE SUFFICIENCY OF ESHELMAN’S PLEADING
Bopp and The Bopp Law Firm (“the Bopp Defendants”) challenged only
Eshelman’s pleading; they did not challenge his allegation that he transferred funds
to TTV on the condition that the money be used for specific purposes. 4 This is a
crucial distinction, because if the movant produces no controverting evidence, we
assume the plaintiff’s factual allegations are true. See Heckman, 369 S.W.3d at 150.
Thus, in our review of the trial court’s granting of the Bopp Defendants’ plea to the
jurisdiction, we assume that Eshelman and TTV agreed that his contributions were
conditioned on TTV using the funds as Eshelman directed.
The crux of the Bopp Defendants’ arguments is that even if Eshelman and
TTV orally agreed to his conditions, Eshelman can have no special interest in the
money he donated—that is, an interest separate and distinct from the public’s interest
in TTV’s use of its donations generally so as to support the first element of
standing—unless he has “contractual standing created by way of a gift instrument”
that “explicitly provide[s] that the gift was made conditionally and that [Eshelman]
4
TTV, the Engelbrechts, OPSEC, and Phillips also challenged the sufficiency of
Eshelman’s pleading on the same ground relied upon by the Bopp Defendants, but because we
have sustained the trial court’s granting of their pleas based on their challenge to the underlying
facts, we refer in this section only to the Bopp Defendants.
11
retains the right to reverter.”5 Because Eshelman pleaded that he and TTV had an
oral agreement and he did not plead the existence of an express written right of
reverter, the Bopp Defendants maintain that Eshelman has no standing to seek
recovery of his contribution based on TTV’s failure to abide by the agreed-upon
conditions.
We have found no support for this contention in Texas law.6 In Texas, “right
5
They stated in their plea, the “Bopp Defendants also maintain that Eshelman did not make
his gift conditionally, but this Plea to the Jurisdiction is based on the lack of a right to reverter.”
Unlike the other defendants, the Bopp Defendants presented no evidence controverting
Eshelman’s allegation that the gift was conditional.
6
The only Texas source on which the Bopp Defendants rely to support their assertion of
the need for an explicit, written right of reverter is an article presented in 2014 at the State Board
of Texas’s 12th Annual Governance of Nonprofit Organizations course. See Darren B. Moore &
Megan C. Sanders, Giving With Strings Attached: An Examination of Key Issues for
Consideration, STATE BAR OF TEXAS, 12TH ANNUAL GOVERNANCE OF NONPROFIT
ORGANIZATIONS Ch. 9, at 7 (Aug. 21–22, 2014). The authors of the article state that a private
donor’s standing to sue a nonprofit “requires that the donor have a special interest in the donated
gift.” Id. (citing Cornyn v. Fifty-Two Members of the Schoppa Family, 70 S.W.3d 895, 899–901
(Tex. App.—Amarillo 2001, no pet.) (donors had special interest in deceased family members’
brain tissue donated for Alzheimer’s research)). The authors then state, “Generally, however,
absent contractual standing created by way of a gift instrument a donor lacks standing to enforce
the terms of a restricted gift because the very concept of a gift is that the donor has irrevocably
parted with all rights in the gifted property.” Id. (emphasis added). The authors cite no authority
for their statement of a general rule. Moreover, they do not contend it is a rule of universal
application. To the contrary, the authors acknowledge that a charity is “required to return donations
when the gift is conditional and the condition fails.” Id. at 8. This was also acknowledged in
another article presented at the same seminar. See Brad Fletcher & Jennifer Justice, Governance
of Nonprofit Organizations: “Give It Back”, STATE BAR OF TEXAS, 12TH ANNUAL GOVERNANCE
OF NON-PROFIT ORGANIZATIONS COURSE Ch. 16, at 4 (Aug. 21–22, 2014) (“A donor can make a
gift subject to a condition with such condition having the potential to cause the donee to be divested
of its title in the gifted property.”). See also 38A C.J.S. Gifts § 67 (Westlaw 2022) (“Where a party
makes a gift on certain conditions and the donee violates the conditions or refuses to perform them,
the donor may, in general, revoke the gift on such violation or refusal on the part of the donee.”).
The article on which the Bopp Defendants rely does not state, as the Bopp Defendants represented,
that “[i]n order for a donor to have standing to seek return of his donation, the gift instrument must
explicitly provide that the gift was made conditionally and that the donor also retains the right to
reverter.”
12
of reverter” is used interchangeably with “possibility of reverter,”7 which is a term
of art for “the grantor’s right to fee ownership in the real property reverting to him
if the condition terminating the determinable fee occurs.” El Dorado Land Co., L.P.
v. City of McKinney, 395 S.W.3d 798, 801 n.6 (Tex. 2013) (quoting Luckel v. White,
819 S.W.2d 459, 464 (Tex. 1991)) (emphasis added). Reversionary interests in real
property generally are in writing because under the general statute of frauds,
agreements for the sale of real property, or for the lease of real property for more
than one year, are unenforceable unless the agreement, or a memorandum of it, is in
a signed writing. See TEX. BUS. & COM. CODE § 26.01. But, the general statute of
frauds does not apply to a cash contribution to a public charity, so we must look
elsewhere for the source of any requirement that a donor’s reversionary interest in a
conditional cash gift must be memorialized in an express writing.
Nevertheless, the Bopp Defendants have not cited, and we have not found,
any Texas case recognizing such a requirement or holding that a donor who has made
a conditional gift to a public charity has standing to sue for recovery of the
contribution upon the charity’s breach of the orally agreed-upon condition only if
the parties also expressly agreed in writing that the donor retained a reversionary
interest in the contributed funds. Because we find no support in Texas law for the
contention that such a writing is essential to Eshelman’s standing to sue TTV, we
cannot conclude that Eshelman must plead the existence of such a writing in order
to establish his standing to sue the Bopp Defendants.
7
See, e.g., ConocoPhillips Co. v. Koopmann, 542 S.W.3d 643, 659 (Tex. App.—Corpus
Christi–Edinburg 2016), aff’d on other grounds, 547 S.W.3d 858 (Tex. 2018) (“right of reverter”
used in the intermediate appellate court, and “possibility of reverter” used in the Supreme Court
of Texas); BP Am. Prod. Co. v. Laddex, Ltd., 458 S.W.3d 683, 684 (Tex. App.—Amarillo 2015),
aff’d, 513 S.W.3d 476 (Tex. 2017) (same).
13
Further, for the purpose of reviewing the trial court’s grant of the Bopp
Defendants’ plea to the jurisdiction, we must assume the truth of Eshelman’s
allegation that TTV agreed that its breach of the parties’ agreement to use the
contributed funds solely for the “Validate the Vote 2020” project “would entitle
[Eshelman] to damages in the amount of his conditional contribution at a minimum.”
In effect, Eshelman is suing to enforce this provision of the oral agreement. Unlike
the attorney general, who has standing to represent the general public’s interest in
the charity’s administration, Eshelman has standing to assert his private interest in
enforcing his agreed-upon right to recover damages for breach of the parties’ oral
agreement.
Given the facts as alleged, this is so even though the causes of action he asserts
against the Bopp Defendants are for conversion, declaratory relief, and for money
had and received. Eshelman has alleged that Bopp is TTV’s general counsel, and
that Bopp provides these legal services in and through The Bopp Law Firm.
Eshelman’s claims against the Bopp Defendants include allegations that the Bopp
Defendants received a portion of Eshelman’s conditional contribution, and that their
continued retention of the money is wrongful precisely because they were notified
both that (1) the contribution was conditioned on its use solely for funding TTV’s
“Validate the Vote 2020” effort, and (2) Eshelman revoked the contribution because
the money was not so used. These allegations, accepted as true, are sufficient to
establish Eshelman’s standing to sue the Bopp Defendants for the claims asserted.
Because we find no support in Texas law for the Bopp Defendants’ contention
that Eshelman was required to plead that there is a gift instrument containing an
express right to reverter in order to establish standing, we conclude that the trial
court erred in sustaining the Bopp Defendants’ plea to the jurisdiction.
We sustain Eshelman’s second issue as it pertains to the Bopp Defendants.
14
VI. CONCLUSION
We affirm the portion of the trial court’s judgment granting the jurisdictional
pleas of TTV, Catherine Engelbrecht, William Engelbrecht, OPSEC, and Phillips,
because those parties produced uncontroverted evidence that the donation to TTV
was unconditional. The trial court erred, however, in granting the jurisdictional plea
of the Bopp Defendants, because they challenged only Eshelman’s pleading, and
Eshelman alleged sufficient facts to demonstrate his standing. We accordingly
reverse the portion of the judgment dismissing the claims against James Bopp Jr.
and The Bopp Law Firm, and we remand the case for further proceedings.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain
15 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481269/ | Order filed November 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00793-CV
IN RE CLARK EQUIPMENT COMPANY D/B/A BOBCAT COMPANY,
Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
269th District Court
Harris County, Texas
Trial Court Cause No. 2019-69076
ORDER
On October 28, 2022, relator Clark Equipment Company d/b/a Bobcat
Company (“CEC” or “relator”) filed a petition for writ of mandamus in this Court.
See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition,
relator asks this Court to compel the Honorable Cory Don Sepolio, presiding judge
of the 269th District Court of Harris County, to vacate three orders: (1) the trial
court’s February 18, 2022 order finding that “Plaintiffs have demonstrated a
substantial likelihood of success on their claims for exemplary damages in
accordance with CPRC chapter 41” as to CEC; (2) the trial court’s October 14,
2022 order incorporating the February 18, 2022 finding pursuant to Chapter 41 and
compelling production of CEC’s “current net worth” by November 4, 2022 at 5:00
p.m.; and (3) the trial court’s March 10, 2022 order denying CEC’s motion to
strike improper evidence used by RPIs in the hearing which resulted in the trial
court’s February 18, 2022 Order.
Relator also has filed a motion for temporary relief. See Tex. R. App. P.
52.8(b), 52.10. Relator requests this Court to stay the trial court’s order of October
14, 2022 requiring production of net worth evidence by November 4, 2022 pending
this Court’s consideration of the merits of relator’s petition.
It appears from the facts stated in the petition and motion that relator’s
request for mandamus relief requires further consideration and that relator will be
prejudiced unless immediate temporary relief is granted. We therefore grant
relator’s motion for temporary relief and issue the following order:
We order the trial court’s October 14, 2022 order requiring production of net
worth evidence by November 4, 2022 stayed until a final decision by this Court on
relator’s petition for writ of mandamus, or until further order of this Court.
In addition, the Court requests the real parties in interest, to file a response to
the petition for writ of mandamus on or before November 18, 2022. See Tex. R.
App. P. 52.4.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481268/ | Order filed November 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00791-CV
IN RE FECON, INC., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
269th District Court
Harris County, Texas
Trial Court Cause No. 2019-69076
ORDER
On October 27, 2022, relator Fecon, Inc. filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this Court to compel the Honorable Corey
Don Sepolio, presiding judge of the 269th District Court of Harris County, to
vacate the trial court’s February 18 and February 24, 2022 orders finding that
“Plaintiffs have demonstrated a substantial likelihood of success on their claims for
exemplary damages in accordance with CPRC chapter 41.”
Relator also has filed a motion for temporary relief. See Tex. R. App. P.
52.8(b), 52.10. Relator requests this Court to stay the trial court’s order of October
14, 2022 requiring production of net worth evidence by November 4, 2022 pending
this Court’s consideration of the merits of relator’s petition.
It appears from the facts stated in the petition and motion that relator’s
request for mandamus relief requires further consideration and that relator will be
prejudiced unless immediate temporary relief is granted. We therefore grant
relator’s motion for temporary relief and issue the following order:
We order the trial court’s October 14, 2022 order requiring production of net
worth evidence by November 4, 2022 stayed until a final decision by this Court on
relator’s petition for writ of mandamus, or until further order of this Court.
In addition, the Court requests the real parties in interest, to file a response to
the petition for writ of mandamus on or before November 18, 2022. See Tex. R.
App. P. 52.4.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481263/ | Order filed November 1, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00681-CV
____________
IN THE INTEREST OF J.M.R.C AND J.M.A.C, CHILDREN, Appellant
V.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Appellee
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2016-00958J
ORDER
The clerk’s record was filed September 26, 2022. Our review has determined
that a relevant item has been omitted from the clerk's record. See Tex. R. App. P.
34.5(c). The record does not contain the trial court’s order signed October 27,
2022, granting appellant K.A.D.’s request to withdraw Donald M. Crane as
appointed appellate counsel and permit appellant K.A.D. to appear pro se.
The Harris County District Clerk is directed to file a supplemental clerk’s
record on or before November 7, 2022, containing the trial court’s order signed
October 27, 2022, granting appellant K.A.D.’s request to withdraw Donald M.
Crane as appointed appellate counsel and permit appellant K.A.D. to appear pro se.
If the omitted item is not part of the case file, the district clerk is directed to
file a supplemental clerk’s record containing a certified statement that the omitted
item is not a part of the case file.
PER CURIAM
Panel Consists Justices Wise, Jewell and Poissant. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481264/ | Order filed November 1, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00628-CV
____________
In the Interest of J.M.F., Jr., a child
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2019-04346J
ORDER
This is an accelerated appeal from a judgment in a parental termination
appeal. Appellant’s brief was due October 31, 2022. No brief has been filed.
Appeals in parental termination cases and child protection cases are to be
brought to final disposition within 180 days of the date the notice of appeal is filed.
See Tex. R. Jud. Admin. 6.2(a). This accelerated schedule requires greater
compliance with briefing deadlines.
Therefore, we order appellant’s appointed counsel, William Leslie
Shireman, to file appellant’s brief no later than November 10, 2022. If the brief is
not filed by that date, counsel may be required to show cause why he should not be
held in contempt of court. In addition, the court may require appointment of new
counsel due to the failure to timely file appellant’s brief.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Bourliot and Wilson. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481270/ | Order filed November 1, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00399-CR
____________
STATE OF TEXAS, Appellant
V.
ALFREDO CRUZ, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCR-076512
ORDER
On September 22, 2022, the court reporter, Marisol Ramos, notified this
court that appellant had requested and made payment arrangements for preparation
of a supplemental reporter’s record. On October 13, 2022, appellant requested an
extension of time to file its brief pending the supplemental reporter’s record being
filed in two weeks. The court has not received a request to extend time for filing
the record. The supplemental reporter’s record has not been filed with the court.
Because the supplemental reporter’s record has not been filed timely, we issue the
following order.
We order Marisol Ramos, the court reporter, to file the record in this appeal
within 10 days of the date of this order.
PER CURIAM
Panel Consists of Justices Spain, Poissant, and Wilson. | 01-04-2023 | 11-07-2022 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.